Georgia Prisoners’ Speak
Model Legislation | Draft (Revised) | March 2026
Bill A: Georgia Post-Conviction Justice Restoration Act
Restoring Existing Statutes to Their Plain Meaning
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House Bill ___
By: Representatives [Sponsors to be identified]
A BILL TO BE ENTITLED
AN ACT
To provide for a short title; to provide for legislative findings and determinations; to amend Code Section 9-14-48 of the Official Code of Georgia Annotated, relating to hearing, evidence, depositions, affidavits, and determination of compliance with procedural rules, so as to define “miscarriage of justice” and to provide that the miscarriage of justice exception is an independent ground for habeas corpus relief that overrides all procedural bars; to amend Code Section 17-9-4 of the Official Code of Georgia Annotated, relating to validity of judgment rendered by court having no jurisdiction of person or subject matter, so as to provide that “judgment” includes both the conviction and the sentence and that constitutional violations render a judgment void; to provide for reform of ineffective assistance of counsel proceedings by adding a new Code Section 9-14-42.1; to provide for coordination with Code Section 5-6-39.1; to provide for severability; to provide for an effective date; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1. SHORT TITLE
This Act shall be known and may be cited as the “Georgia Post-Conviction Justice Restoration Act.”
SECTION 2. LEGISLATIVE FINDINGS AND DETERMINATIONS
The General Assembly finds and determines that:
(1) On March 3, 2026, Chief Justice Nels Peterson of the Georgia Supreme Court, in a concurrence in Sanders v. State, No. S26A0222, joined by seven of the court’s nine justices, declared that “Georgia’s post-conviction litigation system is a mess” created “in large part because of a series of well-meaning but short-sighted decisions this Court made over the course of several decades.” Chief Justice Peterson further stated that “no rational person would have chosen the system we have today if presented with it as a whole” and that “the system is broken. We did a lot of the breaking. But it will require legislative action to fix it.” Chief Justice Peterson confirmed that the rules creating the current system “are simply creatures of decisional law, not interpretations of the Georgia or United States Constitutions that would be much harder to alter,” thereby affirming that the General Assembly has the authority to change them by statute.
(2) The General Assembly finds that the following judicial decisions have narrowed or nullified statutes beyond the intent of the General Assembly, and that legislative action is necessary to restore the statutes to their plain meaning:
(A) Valenzuela v. Newsome, 253 Ga. 793 (1985), which narrowed the “miscarriage of justice” exception in Code Section 9-14-48(d) by adding a requirement that the petitioner be “in no way even culpable” — a standard that appears nowhere in the statutory text and was not enacted by the General Assembly;
(B) Walker v. Penn, 271 Ga. 609 (1999), which described the miscarriage of justice exception as “an extremely high standard” that “is very narrowly applied” and reversed a habeas court that had granted relief after finding the jury would likely have acquitted the defendant;
(C) State v. Colack, 273 Ga. 361 (2001), which held that the miscarriage of justice exception is “only a basis for excusing the defendant’s procedural default, and is not an independent ground for granting habeas relief” — a limitation that contradicts the plain language of the statute, which provides that “in all cases habeas corpus relief shall be granted to avoid a miscarriage of justice”;
(D) Gavin v. Vasquez, 261 Ga. 568 (1991), which reversed a habeas court that had granted relief to avoid a miscarriage of justice;
(E) Harper v. State, 286 Ga. 216 (2009), which overruled Chester v. State, 284 Ga. 162 (2008), and held that the word “judgment” in Code Section 17-9-4 does not encompass a conviction — a reading that contradicts the settled meaning of “judgment” in Georgia law and was made possible solely by the replacement of a single justice on the court;
(F) Cook v. State, 313 Ga. 471 (2022), which eliminated out-of-time appeals, dismissing all pending cases and forcing defendants into a habeas corpus system that itself had been restricted by the decisions listed above; and
(G) Glover v. State, 266 Ga. 183 (1996), and its progeny, which created the “earliest practicable moment” doctrine requiring ineffective assistance of counsel claims to be raised in the motion for new trial — a court-made procedural rule that Chief Justice Peterson identified as a primary cause of the system’s dysfunction in Sanders v. State.
(3) The General Assembly is not creating new rights through this Act. It is restoring existing statutes to their plain meaning after judicial decisions narrowed them beyond legislative intent, and correcting court-created procedural rules at the express invitation of the Chief Justice of the Georgia Supreme Court. This Act follows the well-established model of the Civil Rights Act of 1991, in which Congress overrode approximately twelve Supreme Court decisions that had narrowed workplace anti-discrimination protections and wrote directly into the statute’s findings that legislative action was necessary to restore the prior consistent interpretation of the law. The Voting Rights Act Amendments of 1982 and the Civil Rights Restoration Act of 1988 followed the same restorative override model.
(4) Under the Georgia Constitution, Article I, Section II, Paragraph III, the legislative, judicial, and executive powers shall forever remain separate and distinct. As the Georgia Supreme Court held in Thompson v. Talmadge, 201 Ga. 867 (1947), only the General Assembly can enact, amend, modify, or repeal its own valid statutes, and the courts have no power to do so. When the judiciary effectively amends a statute by reading a word to exclude its primary meaning, by imposing a limitation the legislature never enacted, or by substituting judicial policy preferences for legislative text, it transgresses the constitutional boundary between the branches. The amendments in this Act reassert the General Assembly’s constitutional authority over the content of its own statutes.
(5) The Constitution of the United States and the Constitution of the State of Georgia are the supreme law — superior to every statute, court rule, and procedural deadline. Any conviction obtained through a documented violation of either Constitution exceeds the authority of the government under its own charter. No interest in procedural finality can cure a conviction that the Constitution forbids, because a judgment born of a constitutional violation was never legitimate to begin with.
(6) The General Assembly finds that an estimated 2,500 or more innocent people are currently incarcerated in Georgia based on nationally recognized wrongful conviction rates of 4 to 6 percent, and that the persons trapped by this broken system include Aaron Keith Penn, convicted of malice murder in 1988, whose habeas court found the jury would likely have acquitted on self-defense grounds, but whose relief was reversed by the Georgia Supreme Court in Walker v. Penn, establishing the “extremely high standard” that has blocked habeas petitioners since; Richard James Harper, convicted of murder in 1982, whose appeal was used to overrule Chester v. State and close the door for all persons seeking to challenge void convictions, and who served approximately 40 years before parole; and Cadedra Lynn Cook, who pled guilty to felony murder at age 20 in 2013 and whose case was used to eliminate out-of-time appeals for every defendant in Georgia, and who at age 32 remains incarcerated at Pulaski State Prison.
(7) The General Assembly enacted House Bill 176 in 2025, which codified out-of-time appeals and provided a grace period for defendants affected by Cook v. State, and the Wrongful Conviction and Incarceration Compensation Act (O.C.G.A. Chapter 22 of Title 17) in 2025, which established a compensation framework for the wrongfully convicted. This Act extends the General Assembly’s demonstrated willingness to address post-conviction failures to the deeper statutory and procedural problems that those enactments did not address.
PART I — RESTORING THE MISCARRIAGE OF JUSTICE EXCEPTION
SECTION 1-1.
Code Section 9-14-48 of the Official Code of Georgia Annotated, relating to hearing, evidence, depositions, affidavits, and determination of compliance with procedural rules, is amended by revising subsection (d) and adding new subsections (e), (f), and (g) to read as follows:
“(d) The court shall review the trial record and transcript of proceedings and consider whether the petitioner made timely motion or objection or otherwise complied with Georgia procedural rules at trial and on appeal and whether, in the event the petitioner had new counsel subsequent to trial, the petitioner raised any claim of ineffective assistance of trial counsel on appeal; and absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted, except as provided in subsections (e) and (f) of this Code section. In all cases habeas corpus relief shall be granted to avoid a miscarriage of justice.
If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence challenged in the proceeding and such supplementary orders as to rearraignment, retrial, custody, or discharge as may be necessary and proper.
(e) As used in this Code section, ‘miscarriage of justice’ means the imprisonment of a person under any of the following circumstances:
(1) The conviction was obtained through a documented violation of the Constitution of the United States or the Constitution of this state, including but not limited to:
(A) Suppression of material exculpatory or impeachment evidence by the prosecution;
(B) Knowing use of false testimony or fabricated evidence by the prosecution;
(C) Use of a coerced, involuntary, or fabricated confession or statement;
(D) Racial discrimination in the selection of the grand jury or trial jury;
(E) Denial of the constitutional right to counsel, or provision of counsel operating under an actual conflict of interest that adversely affected the representation;
(F) Prosecution under a statute subsequently declared unconstitutional as applied to the defendant’s conduct; or
(G) Any other violation of the defendant’s rights under the Constitution of the United States or the Constitution of this state that undermines confidence in the reliability of the conviction;
(2) New evidence not available at trial, which could not have been discovered through the exercise of due diligence at the time of trial, establishes that the petitioner is actually innocent of the offense of conviction, such that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt;
(3) The conviction was based in whole or significant part on forensic evidence or expert testimony that has been materially undermined by subsequent scientific research, methodological advances, or recantation by the expert;
(4) The defendant received constitutionally deficient representation that prejudiced the outcome, as defined under Strickland v. Washington, 466 U.S. 668 (1984), whether or not the claim was raised in a motion for new trial or on direct appeal; or
(5) The conviction resulted from a guilty plea, or a proceeding that was the functional equivalent of a guilty plea within the meaning of Brookhart v. Janis, 384 U.S. 1 (1966), that was not knowing, intelligent, and voluntary, including but not limited to pleas or plea equivalents entered without disclosure of material exculpatory evidence known to the prosecution, pleas or plea equivalents entered under conditions that were coercive within the meaning of applicable constitutional standards, or proceedings in which defense counsel effectively conceded guilt without the defendant’s knowing and intelligent consent.
(f) The miscarriage of justice exception set forth in subsection (d) of this Code section is an independent ground for granting habeas corpus relief. It is not limited to excusing procedural default under the cause-and-prejudice standard. When a petitioner demonstrates that continued imprisonment constitutes a miscarriage of justice as defined in subsection (e), the court shall grant relief regardless of whether the petitioner has satisfied the cause-and-prejudice standard, regardless of whether the claim was raised in a motion for new trial or on direct appeal, and regardless of any other procedural bar, including but not limited to the time limitation set forth in subsection (c) of Code Section 9-14-42.
(g) In determining whether a miscarriage of justice has been established, the habeas court shall not require the petitioner to demonstrate that he or she is ‘in no way even culpable’ or to satisfy any standard of moral purity beyond what is expressly required by subsection (e) of this Code section. The standard set forth in Valenzuela v. Newsome, 253 Ga. 793 (1985), requiring that a miscarriage of justice ‘demands a much greater substance, approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense, but who is in no way even culpable,’ is hereby abrogated as inconsistent with the intent of the General Assembly.”
PART II — RESTORING THE VOID JUDGMENT STATUTE
SECTION 2-1.
Code Section 17-9-4 of the Official Code of Georgia Annotated, relating to validity of judgment rendered by court having no jurisdiction of person or subject matter, is amended by adding new subsections to read as follows:
“17-9-4.
(a) The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.
(b) For purposes of this Code section, ‘judgment’ includes both the conviction and the sentence. Nothing in this Code section shall be construed to distinguish between a void conviction and a void sentence. A criminal judgment that is void for any cause, whether as to conviction, sentence, or both, is a mere nullity.
(c) A judgment is void for purposes of this Code section if it was obtained through a documented violation of the Constitution of the United States or the Constitution of this state, including but not limited to the categories of constitutional violations set forth in paragraph (1) of subsection (e) of Code Section 9-14-48.
(d) A motion asserting that a judgment is void under this Code section may be filed in the trial court at any time and is not subject to any statute of limitations or other time bar. The trial court shall have jurisdiction to hear and determine any such motion.
(e) The denial of a motion to vacate a void conviction or sentence under this Code section is directly appealable as a matter of right.
(f) This section codifies the holding of Chester v. State, 284 Ga. 162 (2008), that Code Section 17-9-4 applies to void convictions as well as void sentences. The holding of Harper v. State, 286 Ga. 216 (2009), that ‘a motion to vacate a conviction is not an appropriate remedy in a criminal case,’ is hereby abrogated as inconsistent with the intent of the General Assembly and the plain meaning of this Code section as it has existed since its original enactment in the Original Code of 1863, Section 3513.”
PART III — INEFFECTIVE ASSISTANCE OF COUNSEL REFORM
SECTION 3-1. IAC CLAIMS IN HABEAS PROCEEDINGS
Article 2 of Chapter 14 of Title 9 of the Official Code of Georgia Annotated, relating to habeas corpus procedure for persons under sentence of state court of record, is amended by adding a new Code section to read as follows:
“9-14-42.1. Ineffective assistance of counsel claims; primary venue; waiver prohibited.
(a) Habeas corpus proceedings under this article shall be the primary venue for claims of ineffective assistance of counsel. A claim of ineffective assistance of counsel may be raised in a habeas corpus petition regardless of whether the claim was raised in a motion for new trial or on direct appeal.
(b) A claim of ineffective assistance of counsel shall not be deemed waived solely because the petitioner failed to raise such claim in a motion for new trial, on direct appeal, or at any earlier stage of the proceedings. No court shall dismiss or deny a habeas petition raising an ineffective assistance of counsel claim on the ground that the claim should have been raised at the earliest practicable moment or at an earlier stage of the proceedings.
(c) The rule established by Glover v. State, 266 Ga. 183 (1996), requiring ineffective assistance of counsel claims to be raised at the earliest practicable moment, and as applied by Garland v. State, 283 Ga. 201 (2008), and their progeny, shall not bar the assertion of an ineffective assistance of counsel claim in habeas corpus proceedings under this article.
(d) No claim of ineffective assistance of counsel shall be evaluated by, or require the participation of, the attorney whose performance is at issue. If a motion for new trial raising ineffective assistance of counsel is filed, the trial court shall ensure that counsel other than the attorney whose performance is challenged represents the defendant on such claim.
(e) An indigent petitioner raising an ineffective assistance of counsel claim in habeas corpus proceedings under this article shall have the right to appointed counsel. The appointed counsel shall be independent of the attorney or office whose performance is the subject of the claim.
(f) In evaluating an ineffective assistance of counsel claim in habeas corpus proceedings, the court shall:
(1) Apply the two-prong standard established in Strickland v. Washington, 466 U.S. 668 (1984), requiring the petitioner to demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense;
(2) Permit the petitioner to develop a factual record, including testimony from trial counsel, expert witnesses, and other evidence not contained in the trial record; and
(3) Make de novo findings of fact regarding counsel’s performance, giving no deference to any prior determination of the issue by the trial court on a motion for new trial.
(g) An ineffective assistance of counsel claim sustained in habeas corpus proceedings shall constitute a miscarriage of justice within the meaning of subsection (e) of Code Section 9-14-48, as amended by Part I of this Act.”
PART IV — GENERAL PROVISIONS
SECTION 4-1. COORDINATION WITH HOUSE BILL 176
(a) The remedies provided under this Act are available in addition to, and not in lieu of, the remedies established by Code Section 5-6-39.1 as enacted by House Bill 176 (Act No. 252, 2025 Session). A defendant who has pursued relief under Code Section 5-6-39.1 is not precluded from also pursuing habeas corpus relief under Article 2 of Chapter 14 of Title 9 or void judgment relief under Code Section 17-9-4 as amended by this Act.
(b) Nothing in this Act shall be construed to limit or modify the rights established by Code Section 5-6-39.1, including the right to appointed counsel for indigent defendants seeking out-of-time motions for new trial or notice of appeal.
SECTION 4-2. SEVERABILITY
If any provision of this Act or its application to any person or circumstance is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or applications of this Act that can be given effect without the invalid provision or application. To this end, the provisions of this Act are declared severable. Each Part of this Act is designed to operate independently, and the invalidation of any Part shall not affect the validity or enforceability of any other Part.
SECTION 4-3. EFFECTIVE DATE
This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, and shall apply to all habeas corpus petitions, motions, and proceedings filed or pending on or after such date.
SECTION 4-4. REPEAL
All laws and parts of laws in conflict with this Act are repealed.
BILL A — SUMMARY
| Part | What It Does | Statutes Affected | Cases Overridden |
|---|---|---|---|
| I | Defines “miscarriage of justice”; makes it independent ground for relief; abrogates Valenzuela standard | § 9-14-48 (new (e), (f), (g)) | Valenzuela, Walker v. Penn, Colack, Gavin |
| II | Restores void judgment statute; “judgment” = conviction + sentence; constitutional violations = void | § 17-9-4 (new (b)-(f)) | Harper (codifies Chester) |
| III | Moves IAC to habeas; ends waiver trap; right to counsel for IAC; de novo review | § 9-14-42.1 (new) | Glover, Garland |
| IV | H.B. 176 coordination; severability; effective date; repeal | — | — |
Appropriations required: None. Effective date: Immediate upon Governor’s approval.
New institutions created: None.
Critical Design Feature
Part I, subsection (f), provides that the restored miscarriage of justice exception overrides “any other procedural bar, including but not limited to the time limitation set forth in subsection (c) of Code Section 9-14-42.” This means Bill A functions as a safety valve against the four-year habeas deadline even without Bill B’s full repeal. If a petitioner establishes a miscarriage of justice under Bill A’s definition, the deadline cannot bar relief. Bill B removes the deadline entirely; Bill A ensures the deadline cannot block meritorious claims regardless.
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