Garibay v. Terry

This Court granted Jesus Garibay’s application for a certificate of probable cause to appeal to address whether the habeas court erred in dismissing Garibay’s habeas petition for failure to prosecute where no written order was taken within five years even though the petition had been orally denied at an earlier hearing and all that remained in the proceeding was for the habeas court to enter an order memorializing its ruling. Concluding that Garibay’s petition was improperly dismissed, we reverse the habeas court’s order and remand this matter to the habeas court.

The facts are not in dispute. Garibay filed a petition for habeas corpus in the Macon County Superior Court, and, in November 2008, the habeas court entered an order setting the matter for an evidentiary hearing. During the subsequent hearing, held in late November 2008, the habeas court orally denied the petition, and an attorney for the Warden represented to Garibay that she would prepare an order for the habeas court. In May 2009, after the Warden had failed to submit a proposed order, Garibay submitted his own proposed order. In August 2009, Garibay filed a “Notice for Ruling,” in which he highlighted the Warden’s failure to submit a proposed order and asked the habeas court for a written ruling. On December 23, 2013, the habeas court issued an order dismissing the petition under OCGA §§ 9-2-60 and 9-11-41 for want of prosecution because no written order had been filed since the November 2008 order setting the hearing. The parties agree that the habeas court’s order is due to be reversed.