Some GEORGIA Codes about Writ of HABEAS CORPUS

[Jim]

Be sure to read all the related codes to these below.

OCGA 9-14-1. Who may seek writ
(a) Any person restrained of his liberty under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.

(b) Any person alleging that another person in whom for any cause he is interested is kept illegally from the custody of the applicant may seek a writ of habeas corpus to inquire into the legality of the restraint.

(c) Any person restrained of his liberty as a result of a sentence imposed by any state court of record may seek a writ of habeas corpus to inquire into the legality of the restraint.

OCGA 9-14-42. Grounds for writ; waiver of objection to jury composition
(a) Any person imprisoned by virtue of a sentence imposed by a state court of record who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of this state may institute a proceeding under this article.

(b) The right to object to the composition of the grand or trial jury will be deemed waived under this Code section unless the person challenging the sentence shows in the petition and satisfies the court that cause exists for his being allowed to pursue the objection after the conviction and sentence have otherwise become final.

(c) Any action brought pursuant to this article shall be filed within one year in the case of a misdemeanor, except as otherwise provided in Code Section 40-13-33, or within four years in the case of a felony, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, from:

(1) The judgment of conviction becoming final by the conclusion of direct review or the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until July 1, 2005, in the case of a misdemeanor or until July 1, 2008, in the case of a felony to bring an action pursuant to this Code section;

(2) The date on which an impediment to filing a petition which was created by state action in violation of the Constitution or laws of the United States or of this state is removed, if the petitioner was prevented from filing such state action;

(3) The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review; or

(4) The date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence.

(d) At the time of sentencing, the court shall inform the defendant of the periods of limitation set forth in subsection (c) of this Code section.

OCGA 9-14-43. Jurisdiction and venue
A petition brought under this article must be filed in the superior court of the county in which the petitioner is being detained. The superior courts of such counties shall have exclusive jurisdiction of habeas corpus actions arising under this article. If the petitioner is not in custody or is being detained under the authority of the United States, any of the several states other than Georgia, or any foreign state, the petition must be filed in the superior court of the county in which the conviction and sentence which is being challenged was imposed.

OCGA 9-14-44. Petition -- Contents and verification
A petition brought under this article shall identify the proceeding in which the petitioner was convicted, give the date of rendition of the final judgment complained of, clearly set forth the respects in which the petitioner's rights were violated, and state with specificity which claims were raised at trial or on direct appeal, providing appropriate citations to the trial or appellate record. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his or her conviction and, in the case of prior habeas corpus petitions, shall state which claims were previously raised. Argument and citations of authorities shall be omitted from the petition; however, a brief may be submitted in support of the petition setting forth any applicable argument. The petition must be verified by the oath of the applicant or of some other person in his or her behalf.

OCGA 9-14-3. Petition for writ -- Contents
The application for the writ of habeas corpus shall be by petition in writing, signed by the applicant, his attorney or agent, or some other person in his behalf, and shall state:

(1) The name or description of the person whose liberty is restrained;

(2) The person restraining, the mode of restraint, and the place of detention as nearly as practicable;

(3) The cause or pretense of the restraint. If the restraint is under the pretext of legal process, a copy of the process must be annexed to the petition if this is within the power of the applicant;

(4) A distinct averment of the alleged illegality in the restraint or of any other reason why the writ of habeas corpus is sought; and

(5) A prayer for the writ of habeas corpus.

[Jim]

What I find interesting is that 9-14-1 says you can bring an action for Writ of Habeas Corpus under ANY pretext for restraint of liberty to inquire into the legality of the restraint.

Yet, at 9-14-16, subparts (1), (4), & (6) they say there is no discharge for bench warrants or contempt. Presumably, these are civil-family court matters. This is a violation of the first section mentioned above, where it allows an action for ANY pretext. Since laws are based on their authority by descending order, I believe that 9-14-1 is controlling in all situations, and that even in contempt and bench warrant matters, they are superceded by 9-14-1. Otherwise, there would be a substantial Constitutional argument for violations of Equal Protection Under Law saying that it can be used in ALL situations, except . . . which is unfair, unjust, outrageous and unconscionable.

Also, bench warrants and contempts are civil matters, and since one cannot be arrested on a CIVIL matter because there is no probable cause to arrest because no crime has or is being committed, the bench warrant aspect and contempt aspect are fraudulent and deceptive on their faces and are, therefore, null & void. Every US Court of Appeals (2nd highest courts in the land) and the US Sup. Ct. have held that you cannot be arrested in a CIVIL matter because there is no 4th Amendment probable cause to arrest, because there is no crime in a CIVIL matter. Since these are mandated under the US Supreme Court and Federal Courts of Appeals, under the Supremacy Clause of Article III of the U.S. Constitution, they supercede state courts, and state law.

Does anyone here know anything more about this?

9-14-16.
No person shall be discharged upon the hearing of a writ of habeas corpus in the following cases:
(1) When he is imprisoned under lawful process issued from a court of competent jurisdiction unless his case is one in which bail is allowed and proper bail is tendered;
(2) By reason of any irregularity in the warrant or commitment where the same substantially conforms to the requirements of law;
(3) For want of bond to prosecute;
(4) When the person is imprisoned under a bench warrant which is regular upon its face;
(5) By reason of any misnomer in the warrant or commitment when the court is satisfied that the person detained is the party charged with the offense;
(6) When the person is in custody for a contempt of court and the court has not exceeded its jurisdiction in the length of the imprisonment imposed; or
(7) In any other case in which it appears that the detention is authorized by law.

Also;
9-14-49.
After reviewing the pleadings and evidence offered at the trial of the case, the judge of the superior court hearing the case shall make written findings of fact and conclusions of law upon which the judgment is based. The findings of fact and conclusions of law shall be recorded as part of the record of the case.