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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