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Wilkes v. Terry

A habeas court is not required to transfer a properly filed petition for habeas corpus to another county's superior court when the petitioner is transferred to that county for detention.

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The issue in this case is whether a habeas court is required to transfer a properly filed petition for habeas corpus to another county’s superior court when the petitioner is transferred to that county for detention. We hold that while a habeas court may in its discretion transfer a habeas petition after the petitioner’s county of detention changes, transfer of the petition is not required in every case. See Preer v. Johnson , 279 Ga. 90 610 SE2d 46 2005. Porter Wilkes was convicted in 2000 of burglary and sentenced as a recidivist to 20 years in prison. The Court of Appeals affirmed his conviction and sentence. Wilkes v. State , 269 Ga. App. 532 604 SE2d 601 2004. Wilkes filed a petition for habeas corpus in 2005 in Gwinnett County, where he was then incarcerated at Phillips State Prison. His habeas petition was transferred to Macon County in 2006 after he was transferred to Macon State Prison. In 2007, Wilkes was transferred to a facility located in Baldwin County, and he filed a motion to transfer his habeas petition to that county’s superior court.

While the transfer motion was pending in Macon County, the case was called for a hearing, and Wilkes was returned to Macon County for the hearing. The habeas court denied both the motion to transfer and the habeas petition over Wilkes’ objection, determining it had authority to inquire into the legality of Wilkes’ detention because he was present in Macon County and based on the length of time the case had been pending there. Wilkes filed a notice of appeal and application for certificate of probable cause to appeal, which this Court granted to determine whether the habeas court erred by not transferring the habeas petition to Baldwin County.

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