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Model Legislation  |  Draft  |  March 2026 — Revised August 2026

The Habeas Corpus Restoration Act

Correcting Ourselves — Removing the 2004 Deadline from Georgia’s Habeas Corpus Statute

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SECTION 1. SHORT TITLE

This Act shall be known and may be cited as the “Habeas Corpus Restoration Act.”

SECTION 2. LEGISLATIVE FINDINGS AND DETERMINATIONS

The General Assembly finds and determines that:

(1) Georgia’s habeas corpus statute descends from the Code of 1863. Section 3909 of that Code gave “[a]ny person restrained of his liberty” the right to “sue out a writ of habeas corpus, to inquire into the legality of such restraint.” For the 141 years from that Code until 2004, the statute carried no filing deadline. The title set no period within which the prisoner had to apply; the only period it ran against a party to the proceeding ran against the custodian — the return day fell within twenty days.

(2) The lineage Georgia’s Code cites for the writ reaches the Habeas Corpus Act of 1679, printed in Cobb’s 1851 Digest at the very pages the history line of Code Section 9-14-1 still cites. That Act’s only sanction for a prisoner’s own delay — even willful delay of two full court terms — was to deny him the writ in vacation time; it still ran in term time. It did not extinguish the writ.

(3) The Habeas Corpus Act of 1967 made the writ the exclusive remedy for constitutional claims surviving direct appeal. It expanded the writ to any “substantial denial” of state or federal constitutional rights; declared, in the findings still carried at Code Section 9-14-40, that “the scope of state habeas corpus be expanded”; and narrowed the extraordinary motion for new trial to exclude constitutional claims, as the Supreme Court of Georgia confirmed in Mitchum v. State, 306 Ga. 878 (2019). Since 1967, every post-appeal constitutional claim has had one door, and that door is habeas corpus.

(4) In 2004, the General Assembly imposed the first filing deadline ever placed on the writ under Georgia’s general habeas corpus statute: four years in the case of a felony and one year in the case of a misdemeanor. Ga. L. 2004, p. 917. (The only earlier limitation touching habeas corpus in Georgia is the 180-day provision of Code Section 40-13-33, enacted in 1986 and confined to challenges to misdemeanor convictions of the traffic laws; this Act does not disturb it.)

(5) The four-year period yields to no excuse for late filing. In Stubbs v. Hall, 308 Ga. 354 (2020), the Supreme Court of Georgia held the period subject to neither statutory nor equitable tolling, and held that the statute provides no remedy when a sentencing court fails to give the warning subsection (d) of Code Section 9-14-42 requires — a subsection that requires only that warning, and has no operation once subsection (c) is repealed. In State v. Sosa, 291 Ga. 734 (2012), a habeas court granted relief, and the grant was reversed solely because the petition was untimely. A limitation period presumes that the person subject to it had a fair opportunity to act before it closed. Under current law, no Georgia court is permitted to ask whether that premise held.

(6) The persons subject to the period are, in the ordinary case, imprisoned, unrepresented, and opposed by the State. There is no right to appointed counsel in a Georgia habeas proceeding. In 58.4 percent of the habeas cases disposed of by the superior courts in the years 2021 through 2025, the petitioner had no lawyer; the respondent warden is represented by the Attorney General, on whom every petition from a person in Department of Corrections custody is served under Code Section 9-14-45. Department of Corrections Standard Operating Procedure 227.03 requires placement on a call-out for access to the electronic law library and allots a requesting person “at least 30 minutes” there, in an amount determined by “the number of computers and the number of offenders requesting access”; the additional hours the same procedure permits are reference-library time, tied to a documented deadline and designated “a privilege and not a right,” and the printed collection may not be used during a terminal session. And the United States Department of Justice’s findings report of October 1, 2024, found correctional officer vacancy rates of roughly 50 percent systemwide, exceeding 70 percent at ten of the State’s largest facilities.

(7) The deadline extinguishes the oldest class of claim the writ reached. Code Section 17-9-4, enacted in the Code of 1863 and never amended, declares a judgment void for want of jurisdiction “a mere nullity.” Georgia’s courts route the post-appeal claim to habeas corpus: McDonald v. State, 126 Ga. 536 (1906), states the rule that where no question as to the validity of the indictment was adjudicated at trial, “the prisoner may be discharged upon a writ of habeas corpus at any time thereafter”; and Harper v. State, 286 Ga. 216 (2009), confirmed that the remedies for a void judgment of conviction are the statutory procedures. Habeas hears the claim unwaived, Tolbert v. Toole, 296 Ga. 357, 361 n.8 (2014), but only in a timely petition, and the companion routes do not reach it: a motion in arrest of judgment must be made within the term of court (Code Section 17-9-61), and an extraordinary motion for new trial cannot carry a constitutional claim. The result since 2004 is that a void sentence is correctable forever, while a void conviction is correctable for four years.

(8) The General Assembly has already determined that correcting a wrongful conviction may outweigh the interest in repose. Subsection (c) of Code Section 9-14-42 exempts from its periods any petition “challenging a conviction for which a death sentence has been imposed or challenging a sentence of death.” The principle is therefore established in the very subsection this Act repeals; the only question is where the line falls. It presently falls at execution: a person serving any sentence short of death has four years in which to act, while a person sentenced to die is subject to no deadline at all — and no one describes the capital habeas docket as disordered by the absence of one.

(9) Paragraph (c)(1) of Code Section 9-14-42, the general accrual rule, is not narrow: it runs the period from the conclusion of direct review, so a person who appeals holds the entire appeal and four years besides. The exceptions to it leave almost no reported trace. The late-discovery trigger of paragraph (c)(4) has been cited in ten decisions — nine distinct pieces of litigation — in twenty-two years; it is a trigger and not a tolling rule, as the Supreme Court of Georgia cautioned in Stubbs; and while the Court in Mitchum pointed to that paragraph as evidence the limitation leaves habeas an adequate remedy, the petitioner it saved in Watkins v. Ballinger, 308 Ga. 387 (2020), required counsel, an innocence organization, and two appearances before the Supreme Court of Georgia in that litigation, with twenty-one years passing between his conviction and the affirmance of his relief in Ballinger v. Watkins, 315 Ga. 369 (2022). The miscarriage-of-justice sentence of subsection (d) of Code Section 9-14-48 addresses procedural default, and no Georgia court has held that it reaches a petition dismissed as untimely. Persons exonerated in the United States in 2024 lost an average of 13.5 years to wrongful imprisonment (National Registry of Exonerations, 2024 Annual Report) — ordinarily with professional assistance no unrepresented prisoner possesses. A freestanding claim of innocence travels by the extraordinary motion for new trial, which has no deadline; what the four-year period extinguishes are the constitutional claims through which a wrongful conviction is ordinarily proved.

(10) Georgia is a national outlier. Eleven states impose no post-conviction limitations period at all. Of the states in which habeas corpus is the operative vehicle for challenging a conviction, only four run a deadline that cannot be excused for any reason: Georgia, South Dakota, Virginia, and Washington. The federal system’s one-year period is tolled while a properly filed state petition is pending, is subject to equitable tolling under Holland v. Florida, 560 U.S. 631 (2010), and yields to an actual innocence gateway under McQuiggin v. Perkins, 569 U.S. 383 (2013) — both narrow doors, and both open. Georgia’s four-year period has none of the three.

(11) The State does not measure the outcomes of these proceedings. The Judicial Council’s Annual Report: Georgia Courts carried the Supreme Court’s dispositions of habeas certificate-of-probable-cause applications through its FY2013 volume, reporting data through calendar year 2012; in that final published year the grant rate was 2.0 percent, down from 10.0 percent in 2007. The Judicial Council’s Office of Research and Data Analysis confirmed in writing on August 7, 2026, that it does not collect data regarding case outcomes. Denials of further review issue by unpublished order in “thousands” of cases (Redmon v. Johnson, 302 Ga. 763 (2018)), so the ordinary disposition, however carefully considered, leaves no public record — the results of these proceedings are neither published nor centrally collected.

(12) Repeal removes a clock, not a screen. Procedural default under subsection (d) of Code Section 9-14-48; the successive-petition and waiver rules of Code Section 9-14-51; the certificate-of-probable-cause requirement of Code Section 9-14-52; the petitioner’s burden of proof; and, for convictions had before July 1, 2004, the State’s prejudicial-delay defense under subsection (e) of Code Section 9-14-48 — all survive this Act, except as Code Section 9-14-42.1, enacted by this Act, provides for petitions previously dismissed as untimely. From 1967 until 2004, Georgia ran the writ with every one of those screens and no filing deadline — thirty-seven years of exactly the configuration this Act restores.

(13) The habeas article is properly before the General Assembly. In Sanders v. State (decided March 3, 2026), the Chief Justice of Georgia, joined by six other Justices, wrote that the repairs the post-conviction system needs — counsel, venue, and budget among them — are “the sort of thing that far exceeds the judicial power.” Repeal of this limitation is not among the concurrence’s items, and this Act claims no support from it; the concurrence establishes that the repair belongs to this body. This Act sends no class of claim to habeas that is not already there and creates no new claim; it changes only when an existing claim may be filed. Georgia superior courts received roughly nine hundred habeas petitions a year in 2021 through 2025, and the capital docket — exempt from this deadline since its enactment — has never been described as disordered by the exemption.

(14) The General Assembly has recently corrected post-conviction error by statute. House Bill 176 (2025), restoring the out-of-time appeal that Cook v. State, 313 Ga. 471 (2022), had eliminated, passed the House 168-0 and the Senate 51-0 and was signed on May 14, 2025. The Wrongful Conviction and Incarceration Compensation Act, signed the same day, set compensation for wrongful incarceration at $75,000 per year. Self-correction is possible, bipartisan, and recent.

(15) This Act creates no proceeding, appoints no one, and funds nothing. And the rule of decision is one the General Assembly gave long ago, at Code Section 9-2-3, unchanged since the Code of 1863: “For every right there shall be a remedy; every court having jurisdiction of the one may, if necessary, frame the other.”

SECTION 3. REPEAL

Code Section 9-14-42 of the Official Code of Georgia Annotated, relating to grounds for writ of habeas corpus, waiver of objection to jury composition, time limitations, and notice, is amended by repealing subsections (c) and (d) in their entirety, so that the Code section shall read as follows:

SECTION 4. APPLICABILITY

SECTION 5. REFILING OF PETITIONS PREVIOUSLY DISMISSED AS UNTIMELY; NEW CODE SECTION

Article 2 of Chapter 14 of Title 9 of the Official Code of Georgia Annotated is amended by adding a new Code section to read as follows:

SECTION 6. CONSTRUCTION

SECTION 7. 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.

SECTION 8. EFFECTIVE DATE

This Act shall become effective on July 1 immediately following its enactment.

SECTION 9. REPEALER

All laws and parts of laws in conflict with this Act are repealed.

THE HABEAS CORPUS RESTORATION ACT — SUMMARY

Appropriations required: None.   Effective date: July 1 following enactment.
New institutions created: None.

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