Upon consideration of the application for certificate of probable cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied. All the Justices concur, except McMillian and Colvin, JJ., who dissent. Boggs, C. J., disqualified. McMillian, Justice, dissenting. Because I believe that the Court should grant the application for a certificate of probable cause, vacate the dismissal of Marlon Ellis’s habeas petition, and remand for a hearing on the merits, I respectfully dissent from the denial of Ellis’s application for a certificate of probable cause. Following a jury trial in October 2012, Ellis was found guilty of aggravated sexual battery, child molestation, and sexual battery. It appears that Ellis timely moved for a new trial following his convictions, which motion was denied, and that Ellis then filed a timely notice of appeal. The Court of Appeals subsequently affirmed in a per curiam opinion in September 2016. While his motion for new trial was pending, however, Ellis filed a pro se habeas petition in June 2013.[1] The habeas court dismissed the petition based on res judicata and lack of exhaustion and did not consider the merits. Even though it appears that Ellis had a motion for new trial pending in his direct appeal, the habeas court found that “Ellis’s claims are also procedurally defaulted because he failed to directly appeal his conviction.” It does not appear that Ellis attempted to appeal this dismissal. In 2019, Ellis filed a second habeas petition, also pro se. At the hearing on the second habeas petition, the State and the habeas court recognized that there was a direct appeal that was decided after the first habeas petition was dismissed, but no one addressed the question of whether the first habeas petition was premature. After the habeas court dismissed the second habeas petition as successive, as urged by the State, and without considering the merits of the petition, this appeal followed. It has been established that “a person cannot institute a petition for habeas corpus until the conviction is final.” Stubbs v. Hall, 308 Ga. 354, 359 (3) (b) n.7 (840 SE2d 407) (2020) (citation and punctuation omitted). Although there is no case directly on point, because a habeas court is required to dismiss a habeas petition that is premature, rather than rule on its merits, it follows that the petitioner in a habeas case that has been filed prematurely cannot reasonably raise a ground for relief in that petition within the meaning of OCGA § 9-14-51,[2] such that the habeas court’s dismissal of the second petition as successive was in error. Despite this clear error, which is made even more egregious by the recognition by the State and the habeas court that the first habeas petition was dismissed even though the direct appeal had not been decided (an issue that the State and habeas court then ignored), the Court has now determined to deny Ellis’s application for a certificate of probable cause without any court having reviewed the merits of Ellis’s claims on habeas even though he has twice attempted to assert them.[3] For these reasons, I would grant the application for a certificate of probable cause, vacate the dismissal of Ellis’s habeas petition, and remand for the habeas court to conduct a review of Ellis’s claims on the merits.[4] I am authorized to state that Justice Colvin joins in this dissent.
