Shelby v. McDaniel

• Decision Date: 08 January 1996
• Docket Number: No. S95A1868,S95A1868
• Citation: 465 S.E.2d 433,266 Ga. 215
• Parties: SHELBY v. McDANIEL, Clerk.
• Court: Georgia Supreme Court

Page 433

465 S.E.2d 433

266 Ga. 215

SHELBY v. McDANIEL, Clerk.

No. S95A1868.

Supreme Court of Georgia.

Jan. 8, 1996.

Reconsideration Denied Feb. 5, 1996.

James Edward Shelby, Oglethorpe, pro se.

Joseph F. Dana, David D. Gottlieb, Watson & Dana, LaFayette, Ralph Van Pelt, Jr., Dist. Atty., Lafayette, Bill McDaniel, Clerk, Walker County, LaFayette, for McDaniel.

THOMPSON, Justice.

Shelby was convicted of malice murder in Walker County Superior Court on November 30, 1993. His conviction was affirmed by this Court on appeal. Shelby v. State, 265 Ga. 118, 453 S.E.2d 21 (1995). Thereafter, Shelby filed a pro se mandamus petition in forma pauperis to require the Clerk of the Walker County Superior Court to furnish him with a copy of the trial transcript and other documents at government expense. He alleged that the requested documents were needed in connection with a proposed habeas corpus proceeding. He submitted a form affidavit in which it was averred, inter alia, that neither he nor his attorney ever received a copy of the trial transcript. The Superior Court denied filing of the petition. We affirm.

"It is well established that an indigent is not entitled to a copy of his trial transcript for collateral post-conviction proceedings absent a showing of necessity or justification. McDowell v. Balkcom, 246 Ga. 611 (272 SE2d 280) (1980)." Rogers v. Wood, 263 Ga. 568, 436 S.E.2d 495 (1993). Shelby failed to make this showing. First, he did not attach a copy of a pending or proposed habeas petition. See Mydell v. Clerk, Superior Court of Chatham County, 241 Ga. 24, 25, 243 S.E.2d 72 (1978) (copy of pending or proposed habeas petition should be attached to petition seeking transcript). While he did include a list of the habeas issues he proposes to raise, that list demonstrates that Shelby does not propose to raise any new habeas issues--only issues previously raised in the appeal of his criminal conviction. ¹ This he cannot do. See Davis v. Thomas, 261 Ga. 687, 689(2), 410 S.E.2d 110 (1991) (issues decided on direct appeal cannot be relitigated on habeas corpus). Second, we have taken judicial notice of the record in Shelby's previous appeal. As in Mydell, supra, it is apparent from the brief filed by Shelby's attorneys that the transcript had been made available to them. ²

"We conclude that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief ..." See OCGA § 9-15-2(d). The Superior Court did not err in denying the filing of the petition.

Judgment affirmed.

All the Justices concur.

1 Shelby proposes to raise three issues in a habeas corpus proceeding: (1) the sufficiency of the evidence, (2) the voluntariness of his custodial statement, and (3) the propriety of the trial court's recharge. These...