Opinion
A24A1634
09-12-2024
WASEEM DAKER v. THE STATE.
The Court of Appeals hereby passes the following order:
In 1996, a jury found Waseem Daker guilty of two counts of aggravated stalking, and the trial court sentenced him to ten years in prison. We affirmed the judgment on direct appeal. Daker v. State, 243 Ga.App. 848 (533 S.E.2d 393) (2000). In 2012, Daker filed a motion for an out-of-time appeal, which the trial court denied. Daker appealed, but we dismissed the appeal for lack of jurisdiction. See Case No. A19A0610 (Nov. 9, 2018). In 2021, Daker filed another pro se motion for an out-of-time appeal, arguing that he was entitled to a second direct appeal because he had proceeded pro se in his first direct appeal without validly waiving his right to appellate counsel. The trial court dismissed the motion, concluding, among other things, that Daker had already had a direct appeal and was not entitled to a second one. Daker filed a notice of appeal from the dismissal. We, however, lack jurisdiction.
Daker is serving a prison sentence of life plus 47 and one-half years following his conviction for murder in a separate proceeding. See Daker v. State, 300 Ga. 74, 74, n. 1 (792 S.E.2d 382) (2016).
Daker directed his notice of appeal to the Supreme Court of Georgia, which transferred the matter to this Court. See Case No. S24A0822 (Apr. 30, 2024).
As an initial matter, our dismissal of Daker's previous appeal from the dismissal of his 2012 motion for out-of-time appeal renders this appeal barred by the law of the case. See Case No. A19A0610. "It is well established that any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court," and it matters not that the dismissal of the previous appeal did not reach the merits of the claim "because the dismissal, nevertheless, constitutes binding law of the case." Ross v. State, 310 Ga.App. 326, 327 (713 S.E.2d 438) (2011) (citation and punctuation omitted). See also Hicks v. McGee, 289 Ga. 573, 577-578 (2) (713 S.E.2d 841) (2011) ("Under the 'law of the case' rule, any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals, as the case may be[.]") (citation and punctuation omitted).
Additionally, as Daker acknowledges, an out-of-time appeal is no longer an available remedy from a trial court. See Cook v. State, 313 Ga. 471, 506 (5) (870 S.E.2d 758) (2022). However, Daker contends that the trial court should have construed his 2021 motion for an out-of-time appeal as a petition for habeas corpus under Waye v. State, 239 Ga. 871, 873-875 (1) (238 S.E.2d 923) (1977), and Moss v. State, 255 Ga.App. 107 (564 S.E.2d 516) (2002), and that we should remand the case for the trial court to do so. However, Daker has already pursued habeas as a remedy in this case, and his conviction was affirmed. See Daker v. Williams, 279 Ga. 782 (621 S.E.2d 449) (2005). Thus, even if his 2021 motion for out-of-time appeal had been construed as a habeas petition, he has waived any claims he did not raise in his previous habeas petition, and a subsequent habeas petition could only be considered under limited circumstances that do not apply here.
Daker asks us to vacate the trial court's order and remand the case with instructions to the court to dismiss the motion, to the extent it sought an out-of-time appeal, for lack of jurisdiction under Cook. We decline to do so, as the trial court has already dismissed the motion.
See OCGA § 9-14-51 ("All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be raised by a petitioner in his original or amended petition. Any grounds not so raised are waived unless the Constitution of the United States or of this state otherwise requires or unless any judge to whom the petition is assigned, on considering a subsequent petition, finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.").
Daker argues that Allen v. Daker, 311 Ga. 485, 503 (858 S.E.2d 731) (2021), constitutes a change in the law in his favor, entitling him to raise a new claim in a subsequent habeas petition. In Allen v. Daker, the Supreme Court held that the habeas court did not err by concluding that Daker did not validly waive his right to appellate counsel in his 2012 murder case, and Daker was entitled to a second, out-of-time direct appeal in that case. Id. at 504-505 (4). According to Daker, the "change in the law" in Allen v. Daker, as well as Hall v. Jackson, 310 Ga. 714 (854 S.E.2d 539) (2021), was that a second, out-of-time direct appeal was now allowed. However, those cases did not change the law; instead, they involved defendants who were entitled to habeas relief in the form of a second, out-of-time direct appeal, which relief was then available. See Trauth v. State, 295 Ga. 874, 876-877 (1) (763 S.E.2d 854) (2014) (holding that, because indigent defendant was improperly denied appointed counsel for his direct appeal, he was entitled to habeas relief in the form of a second, out-of-time direct appeal). In other words, Daker could have raised the denial-of-appellate-counsel issue he now seeks to raise when he filed his first habeas petition in this case. Therefore, he has waived the claim. See OCGA § 9-14-51.
For these reasons, this appeal is DISMISSED for lack of jurisdiction. Daker's motions for extension of time to file a reply brief, for non-consideration of the State's brief, for copies of the record and transcripts, and for a copy of the State's brief are DENIED AS MOOT.