Valenzuela v. Newsome

• Citation: 253 Ga. 793,325 S.E.2d 370
• Decision Date: 30 January 1985
• Docket Number: No. 41566,41566
• Parties: Eduardo VALENZUELA v. Lanson NEWSOME, Warden.
• Court: Supreme Court of Georgia

Page 370

325 S.E.2d 370

253 Ga. 793

Eduardo VALENZUELA v. Lanson NEWSOME, Warden.

No. 41566.

Supreme Court of Georgia.

Jan. 30, 1985.

Rehearing Denied Feb. 19, 1985.

David A. Cook, West & CooK, Decatur, for Eduardo Valenzuela.

Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for Lanson Newsome, Warden.

WELTNER, Justice.

Valenzuela was convicted of burglary and sentenced to ten years in prison. His conviction was affirmed by the Court of Appeals in Valenzuela v. State, 157 Ga.App. 247, 277 S.E.2d 56 (1981). Thereafter he initiated habeas corpus proceedings in which he maintained inter alia that the state did not present evidence sufficient to authorize a rational trier of fact to find guilt beyond a reasonable doubt.

The habeas corpus court held a hearing, reviewed the transcript of the trial evidence, and by order denied relief, a portion of which is as follows:

"Relying upon Bankston v. State, 251 Ga. 730 ; Crosby [Cosby] v. Jones, 682 F.2d 1373 (11th Cir.1982) and other cases, Valenzuela contends that the only evidence supporting the conviction is the evidence of his recent, unexplained possession and that such evidence does not establish the offense beyond a reasonable doubt and is therefore insufficient to support the conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A motion for directed verdict raising this claim was timely made and overruled at trial. This court finds that the recent, unexplained possession of some of the stolen items was the only evidence to support the conviction. On the other hand, the court further finds that there was no explanation given by the petitioner to explain his recent possession of the stolen items.

"Based upon the record of evidence, this court finds and believes that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)...."

Having weighed the evidence and found it wanting, the habeas corpus court continued: "Even though the court finds that the evidence is insufficient to support a conviction of burglary, the court is bound to follow the case of Littles v. Balkcom, 245 Ga. 285, 264 S.E.2d 219 (1980), which holds that 'Georgia law requires claims as to the sufficiency of evidence to be raised on direct appeal, such a claim may not be raised in a state habeas corpus proceeding.' The claim of the general insufficiency of the evidence was not raised on the direct appeal and the court concludes that it cannot be raised now."

We granted a certificate of probable cause for review.

1. In Littles v. Balkcom, supra, we held that claims as to the sufficiency of the evidence must be presented on direct appeal, and cannot be raised initially in habeas corpus proceedings. Valenzuela presented on appeal certain claims which related to the sufficiency of evidence to prove possession of certain property, and to the sufficiency of the identification of property taken during the burglary. These were resolved adversely. 157 Ga.App. supra at 249, 250, 277 S.E.2d 56. The broader question of constitutional sufficiency under Jackson v. Virginia, supra, is not addressed in the Court of Appeals' opinion.

Stated otherwise, there was ample complaint as to the breadth of permissible inference to be drawn from the evidence at trial; there was no attack upon the adequacy of the evidence in constitutional terms.

2. It may be of value to consider our habeas corpus statute, OCGA § 9-14-42, et seq., both in its present form and as it existed prior to the 1982 amendment, Ga.L. 1982, pp. 786 et seq.

Previously, the scope of habeas corpus review was this: "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 or under the laws of this state may institute a proceeding under this article." OCGA § 9-14-42(a). Subparagraph (b) of the old Code section set out the circumstances under which such a substantial denial would be considered waived for failure to make contemporaneous objection, which we may paraphrase as equating a knowing, intelligent relinquishment of a right to a waiver of that right.

The old statute was criticized by Chief Justice Jordan in a concurring opinion to McDuffie v. Jones, 248 Ga. 544, 283 S.E.2d 601 (1981): "The majority opinion points up a serious defect in our Habeas Corpus statute. An applicant for the Writ of Habeas Corpus should be required to allege violation of the Federal and or State Constitution. A simple violation of a state statute should not be relitigated in a habeas proceeding, as set forth and treated in Divisions 2 and 3 of the opinion.

"The General Assembly should take steps to amend our Habeas Corpus statute so that it allows relief only for a substantial denial of a Federal or State constitutional right.

"The statute should also be amended to eliminate the waiver requirements of the statute, which as written exceed the waiver requirements of present federal constitutional law." 248 Ga. at 551, 283 S.E.2d 601.

The final paragraph of the concurring opinion refers, we think, to the departure by the United States Supreme Court from its widely criticized holding in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), as chronicled in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Summarizing the two holdings, Fay preserved a right to review on habeas corpus independent of contemporaneous objection unless there had been a "deliberate by-pass" of the trial court; under Wainwright, by contrast, failure to make timely objection ordinarily will result in waiver, unless good cause be shown for such failure and unless actual prejudice shall have ensued.

It is interesting (and gratifying) that the General Assembly implemented both of Chief Justice Jordan's suggestions in amending OCGA § 9-14-42. See Ga.L.1982, pp. 786 et seq. Now, under the 1982 amendment, habeas corpus is available to review constitutional deprivations only, and the old "knowing, intelligent relinquishment" standard for waiver has been supplanted by a "cause" and "prejudice" requirement consistent with Wainwright v. Sykes, supra, and other authorities discussed below.

3. OCGA § 9-14-48(d) provides: "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;" Valenzuela has not complied with Georgia procedural rules on appeal inasmuch as he failed to present his constitutional insufficiency of evidence claim on appeal, as the procedural rule in Littles v. Balkcom, supra, requires.

But the failure to comply with a valid procedural rule does not, in every case, preclude consideration by the habeas corpus court of claimed deficiencies at trial. The statute provides, immediately following the material we have quoted: "and absent a showing of cause for noncompliance with such requirement, and of actual prejudice, habeas corpus relief shall not be granted." OCGA § 9-14-48(d).

The concept of "cause" and "prejudice" is discussed in the majority opinion of Francis v. Henderson, 425 U.S. 536, 542, 96 S.Ct. 1708, 1711, 48 L.Ed.2d 149 (1976): "In a collateral attack upon a conviction that rule requires ... not only a showing of 'cause' for the defendant's failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice."

Francis extended to state convictions the "cause" and "prejudice" requirement applied to federal habeas corpus proceedings in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). "The presumption of prejudice which supports the existence of the right is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner." 411 U.S. at 245, 93 S.Ct. at 1584.

See Wainwright v. Sikes, supra, as to the desirability of this requirement. "We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the 'main event,' so to speak, rather than a 'tryout on the road' for what will later be the determinative federal habeas hearing... If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right there is every reason for his following state procedure in making known his...