FINAL COPY
294 Ga. 605
S14A0036. WILKERSON v. HART.
MELTON, Justice.
Following the denial of his application for habeas corpus relief, Lenzie
Aaron Wilkerson appeals, contending that the evidence presented at his trial was
insufficient, under Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), to support
his convictions for kidnapping. In addition, Wilkerson contends that the trial
court erred by finding that his trial counsel did not render ineffective assistance
of counsel. For the reasons set forth below, we reverse the habeas court’s ruling
on the kidnapping convictions but affirm its finding regarding ineffective
assistance of counsel.
1. The facts of this case are generally set forth in Wilkerson v. State, 280
Ga. App. 29 (633 SE2d 367) (2006). There, the Court of Appeals set forth:
[A]t approximately 11:00 p.m. on Sunday, November 26,
2001, Dustin James, Sean Greer, and S. S., an adult female, were
visiting with their friends, Jason Parrish, Jason Rigby, and Joel
Pressley, who lived in an apartment complex in Statesboro. Rigby
testified that two men knocked at the door and asked to buy
marijuana and that fifteen minutes later, the same men returned, one
of whom carried a pistol, and charged into the apartment. They were
accompanied by three men, who were wearing masks, and one of
the masked men was carrying a shotgun. Rigby described the first
two men: one was short and stocky and wore a skull cap and the
other was tall and skinny and had a shaved head and a light
complexion.
Pressley, Rigby, and Greer all testified that the men covered
their eyes with duct tape, tied their hands behind their backs, piled
them on top of each other, and placed a coffee table on top of them.
James testified that the perpetrator carrying the pistol found him in
the kitchen, ordered him to the floor, and bound his hands and feet
with duct tape. Rigby testified that the perpetrators stole the money
from his wallet, and Pressley testified that they stole his keys and
his camcorder.
Parrish testified that he and his girlfriend, S. S., were in his
bed when a young, black, skinny male walked into the room and
threw the bedcover over their heads; that some of the other men
came into the room and used duct tape to bind his hands and cover
his eyes before throwing him to the floor; that one of the men put
a gun to the back of his head and that they kicked him in his head;
that one of the men dared the one holding the pistol to shoot him
and that he heard the sound of the gun being cocked; and that the
men stole his cell phone and $400 from him. Parrish also testified
that while lying on the floor, he heard the bed moving and S. S.
crying. S. S. testified that one of the perpetrators fondled and licked
her left breast, penetrated her with his fingers, then removed her
shorts and underwear and dragged her toward the side of the bed by
her ankles before penetrating her with Parrish's lava lamp. She
recalled that one of the perpetrators repeatedly struck the lamp to
drive it into her, then rolled her onto her stomach and taped her
hands together behind her back before leaving the room. S.S. did
not see any of the perpetrators.
Id. at 30. Based on these facts, Wilkerson was convicted of one count of
burglary, four counts of armed robbery, one count of criminal attempt, six
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counts of kidnapping, one count of aggravated sexual battery, and one count of
possession of a firearm or knife during the commission of certain crimes. The
facts later set forth by the habeas court in its ruling are consistent with the facts
set forth by the Court of Appeals, and, “[i]n reviewing the grant or denial of a
petition for habeas corpus, this Court accepts the habeas court’s factual findings
and credibility determinations unless they are clearly erroneous, but we
independently apply the law to the facts.” (Citation omitted.) Henderson v.
Hames, 287 Ga. 534, 536 (2) (697 SE2d 798) (2010).
2. As an initial matter, we find that Wilkerson’s claim that the evidence
was insufficient to prove asportation under Garza is cognizable in habeas. “[A]
new rule of substantive criminal law must be applied retroactively to cases on
collateral review and . . . an appellate decision holding that a criminal statute no
longer reaches certain conduct is a ruling of substantive law.” Luke v. Battle,
275 Ga. 370, 373 (2) (565 SE2d 816) (2002).
Garza ultimately held that, with respect to the asportation element
of Georgia's pre-2009 kidnapping statute, the movement necessary
to establish asportation must be more than “merely incidental” to
other criminal activity, and four judicially created factors must be
considered before a court can conclude that more than “merely
incidental” movement had occurred. Id. at 702 (1). Garza has since
been superseded by statute for offenses occurring after July 1, 2009.
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OCGA § 16-5-40 (b) (2). However, because the rule created in
Garza constituted a substantive change in the law with respect to the
elements required to prove the crime of kidnapping at the time that
the case was decided, the rule became retroactively applicable to
cases such as the instant case. See, e.g., Hammond v. State, 289 Ga.
142, 143 (1) (710 SE2d 124) (2011) (A substantive change in case
law “includes decisions that remove certain conduct from the reach
of criminal statutes”) (citation omitted).
Sellars v. Evans, 293 Ga. 346, 347, n. 1 (745 SE2d 643) (2013). Therefore, the
substantive change to the interpretation of the asportation requirement set forth
in Garza satisfies the cause and prejudice analysis and is cognizable in habeas
corpus proceedings.
[A] failure to make timely objection to an alleged error or
deficiency ordinarily will preclude review by writ of habeas corpus.
However, an otherwise valid state procedural bar will not preclude
a habeas corpus court from considering alleged errors or
deficiencies if there shall be a showing of adequate cause for failure
to object and a showing of actual prejudice to the accused. Even
absent such a showing of cause and prejudice, the relief of the writ
will remain available to avoid a miscarriage of justice.
(Emphasis omitted.) Valenzuela v. Newsome, 253 Ga. 793, 796 (4) (325 SE2d
370) (1985). Georgia law requires sufficiency of the evidence claims to be
raised in the first instance on direct appeal, so, in habeas, such a claim is
procedurally defaulted if not raised on direct appeal (or procedurally barred if
raised on appeal and decided against the petitioner) unless the petitioner
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establishes either “cause and prejudice” or that relief is necessary to prevent a
“miscarriage of justice.” Id.
3. While the habeas court appropriately considered Wilkerson’s Garza
claim, it erred by finding that the facts of this case were sufficient to satisfy
Garza’s asportation requirement. Under Garza, the question whether asportation
was more than “merely incidental” to another crime is decided based on the
consideration of four factors:
(1) the duration of the movement; (2) whether the movement
occurred during the commission of a separate offense; (3) whether
such movement was an inherent part of that separate offense; and
(4) whether the movement itself presented a significant danger to
the victim independent of the danger posed by the separate offense.
(Citation omitted.) Garza, supra, 284 Ga. at 702 (1). Generally, the satisfaction
of all four factors is not required in order for the evidence to support a proper
finding of asportation under Garza. See Brown v. State, 288 Ga. 902 (3) (708
SE2d 294) (2011) (asportation found where three of four Garza factors met). In
the present case, however, the record does not support the conclusion that
enough of the Garza factors were met to warrant a finding of asportation.
In this case, the movement of the victims, which was mainly to subdue
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them with duct tape,1 occurred during the commission of the separate crimes
being committed in this situation and did not expose any of the victims to
danger independent of the crimes already in progress. For example, the duct
taping of individuals was an incidental part of the commission of burglary and
armed robbery, under the current facts, and the movement of S. S. was part of
the manner in which aggravated sexual assault was committed against her.
Furthermore, there was no showing that the slight movement of the victims
presented a significant danger outside of the danger from the crimes already
being committed. See Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28)
(2009) (kidnapping statute is “intended to address ‘movement serving to
substantially isolate the victim from protection or rescue’”) (citation omitted).
Under these circumstances, the evidence was insufficient to show asportation
under Garza, and Wilkerson’s convictions for kidnapping must be vacated.
4. Wilkerson separately contends that he received ineffective assistance
of counsel because his trial counsel did not know he was entitled to present two
hours of closing argument and did not object when the trial court limited him to
In fact, this act is actually more of a restriction of movement than
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movement, itself.
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thirty minutes, which he thought was his limit.2
Similar to other claims of ineffective assistance, a habeas petitioner
seeking to overcome a procedural default must show professionally
deficient performance by trial or direct appeal counsel and that the
deficiencies had a reasonable probability of changing the outcome
of the [proceeding]. See Strickland[ v. Washington, 466 U. S. 668,
687 (104 SCt. 2052, 80 LE2d 674) (1984)]; Hall v. Lewis, 286 Ga.
767, 769 (692 SE2d 580) (2010).
Perkins v. Hall, 288 Ga. 810, 822 (III) (C) (708 SE2d 335) (2011).
In this case, even if Wilkerson’s trial counsel was deficient, Wilkerson has
failed to show harm. In presenting his closing argument, trial counsel was
wholly unaware of his ability to insist on a two-hour closing argument and,
therefore, “he presumably tailored his argument” for the time he thought he did
have. See Hardeman v. State, 281 Ga. 220, 223 (635 SE2d 698) (2006).
Although trial counsel testified that he needed the additional time to “flesh out”
his arguments in more detail, the habeas court found that trial counsel did, in
fact, argue the principles of law he wished to argue in his closing. “The decisive
issue is whether, but for the erroneous denial of the extra hour [and a half], there
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Wilkerson’s trial counsel testified that he was unaware that he was
actually entitled to two hours of closing argument because kidnapping with
bodily injury is a capital offense. OCGA 17-8-73.
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is a reasonable probability that trial counsel could have convinced the jury that
his client was innocent of the crimes charged. [Wilkerson] failed to make that
showing.” Id. The habeas court, therefore, properly denied Wilkerson’s claim
that he received ineffective assistance of counsel.
Judgment affirmed in part and reversed in part. All the Justices concur.
Decided February 24, 2014.
Habeas corpus. Ware Superior Court. Before Judge Blount, Senior Judge.
Brian Steel, for appellant.
Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A.
Kolb, Assistant Attorney Geneal, for appellee.
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