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A habeas claim is procedurally barred if the claim was raised on direct appeal. Schofield v. Palmer, Ga. A habeas claim is procedurally defaulted if the claim could have been raised earlier but was not. It is also not procedurally defaulted if Petitioner can show cause and prejudice to excuse the procedural default.

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On April 18, , Petitioner was convicted of aggravated child molestation under O. On April 28, , Petitioner's direct appeal was denied, and, on May 18, , his Motion for Reconsideration was denied. In his Motion for Reconsideration, the Petitioner argued for the first time that his constitutional rights were violated based on the change in the law.

On June 7, , Petitioner filed his Petition for Certiorari. On July 1, , the amended aggravated child molestation statute became effective. Both parties agree that had Petitioner committed the act underlying his conviction on or after July 1, , he could have only been sentenced under O. In his habeas corpus, Petitioner raises that his right to be free from cruel and unusual punishment under the United States and Georgia Constitutions was violated as a result of this change in the law.

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Respondent argues that Petitioner is procedurally defaulted from raising this constitutional challenge in a habeas corpus because he raised it in his Motion for Reconsideration to the Georgia Court of Appeals. This argument is without merit. Georgia appellate law is clear that new claims can not be raised for the first time on appeal. Holland v. State, Ga.

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ESI v. WestPoint Stevens, Ga. Johnston v. Ross, Ga. Since the aggravated child molestation statute was not amended until after Petitioner's direct appeal was filed, Petitioner could not have reasonably argued that the amended statute resulted in a constitutional violation of his right to be free from cruel and unusual punishment. This Court finds that his claim is not procedurally defaulted.

Under the cause and prejudice standard, cause exists for not raising Petitioner's claims earlier because of the passage of the law after his conviction, which is an external factor to the defense in that the legal basis for Petitioner's claim was not readily available to Petitioner.

Turpin v.


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Todd, Ga. If Petitioner can prevail on his constitutional issue, there likewise would be no procedural default. Georgia, U. Zant, Ga. In Fleming, the Georgia Supreme Court considered the issue of whether applying an amended statute specifically made prospective instead of retroactive as cruel and unusual punishment. The Georgia Legislature amended a state statute prohibiting the execution of mentally retarded defendants on or after July 1 in the year the statute was amended.

Id at Similarly, the crime for which Petitioner was convicted was amended, so as to apply to defendants on or after July 1 of the year the amendment was passed.

In Fleming, "the legislative enactment reflects a decision by the people of Georgia that the execution of mentally retarded offenders makes no measurable contribution to acceptable goals of punishment. Citing Fleming, the Georgia Supreme Court considered whether death by electrocution was cruel and unusual punishment in Dawson v.

The Georgia Legislature amended O. Contemplating that the Georgia Supreme Court would find death by electrocution to be unconstitutional, the Georgia Legislature stated that lethal injection should be applied if the Supreme Court makes such a finding.

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The standard of reviewing an issue of cruel and unusual punishment does not turn on whether the statute amended applies to a procedural or substantive change in the law as the Respondent argued. Applying this standard to Petitioner's case, it is clear that Petitioner was convicted of the felony aggravated child molestation requiring a year prison sentence with no parole and registration as a sex offender. Soon after Petitioner's conviction, this same Legislature that passed the original statute changed the statute, making Petitioner's conduct a misdemeanor with a maximum 12 months in jail and no sex offender registration.

This is a significant change to the statute under both Fleming and Dawson.

This significant change shows this State's clear views as to how persons convicted of Petitioner's conduct should be punished. Under both federal and state standards, the imposition of a felony conviction and sex offender registration is cruel and unusual punishment under the circumstances of this case.

Likewise, in the case of Luke v. Battle, Ga. In Luke, the Court held a new rule of substantive criminal law must be applied retroactively to cases on collateral review. A new rule of substantive law was created when O. Genarlow Wilson has been in prison for two years for taking part in the sex act when he was 17 years old.

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State Rep. Wilson was also charged in with raping a year-old girl at the party, but a jury acquitted him of the charges. Attorney General Thurbert Baker immediately appealed that ruling, drawing criticism from civil rights activists. The Georgia Supreme Court is set to hear the latest appeal in October. Bernstein, had sought to get Wilson released on bond while the appeal moved forward. Bernstein is appealing that decision. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.