Gordon v. Caldwell

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The Georgia Supreme Court granted a certificate of probable cause in a habeas corpus action to determine whether the habeas court erred in ruling that certain claims alleged in Andre Gordon’s petition for habeas corpus were foreclosed from habeas review. In 2008, a jury found Gordon guilty of child molestation, aggravated sexual battery, rape, and incest in connection with crimes he committed in June and July of 2000. Although the State had originally indicted Gordon in December 2006 only for child molestation, the State nolle prossed that indictment in October 2007 and re-indicted Gordon the following day, adding counts of aggravated sexual battery, rape, and incest. All of the new counts still concerned the June and July 2000 criminal activity against the same victim. The aggravated sexual battery and incest counts were subject to a seven-year statute of limitations, and a fifteen-year statute of limitations applied to the rape count. On direct appeal, Gordon argued that the statute of limitations had run on the aggravated sexual battery count and that trial counsel was ineffective for failing to challenge the indictment on that ground. The Court of Appeals found that the substantive statute of limitations issue was procedurally barred because trial counsel had not moved to demure, quash, or dismiss that count at trial. The Court of Appeals also refused to reach the merits of the related ineffective assistance claim because Gordon’s appellate filings contained no supporting record citations. Another claim by Gordon on direct appeal was that the evidence was insufficient to sustain his rape conviction. The Supreme Court granted Gordon’s application for a certificate of probable cause to appeal, and requested the parties address two issues: (1) whether the habeas court erred in finding that the statute of limitations issue addressed in Claims Two and Six of the underlying petition was foreclosed from review in habeas; and (2) whether the habeas court erred in finding that the claim of ineffective assistance of trial counsel underlying the claim of ineffective assistance of appellate counsel presented in Claim Four of the underlying petition had been resolved adversely to petitioner in his direct appeal. Because the Supreme Court concluded that some of those claims were not foreclosed, it vacated the judgment in part and remanded to the habeas court to consider them. View "Gordon v. Caldwell" on Justia Law