Res Judicata and “Law-at-the-Time” Limits on OCGA § 5-6-39.1 Out-of-Time Appeals from Pre-Collier Guilty Pleas

I. Introduction

Case: Shine v. State (Supreme Court of Georgia, Apr. 21, 2026).
Parties: I’Kenyo Shine (appellant) vs. The State (appellee).
Posture: Appeal from the Superior Court of Bibb County’s denial of Shine’s 2025 motion for an out-of-time appeal.

Shine pleaded guilty in 2006—via a negotiated plea pursuant to North Carolina v. Alford, 400 US 25 (1970)—to felony murder and received a life sentence. Over many years, he pursued repeated collateral attacks (including habeas petitions and earlier out-of-time appeal efforts). After this Court’s decision in Cook v. State, 313 Ga. 471 (2022) eliminated the judicially created out-of-time appeal procedure in trial courts, the General Assembly enacted OCGA § 5-6-39.1 (2025), creating a statutory framework for seeking leave to file an out-of-time motion for new trial or notice of appeal, including a time-limited opportunity for defendants whose cases were affected by Cook.

Key issues: (1) whether Shine could use OCGA § 5-6-39.1 to obtain an out-of-time appeal based on alleged ineffective assistance for not advising him of appellate rights; (2) whether prior habeas rulings foreclosed the request under res judicata/collateral estoppel; and (3) whether Judge Simms was disqualified (and, critically, whether Shine preserved that claim).

II. Summary of the Opinion

The Supreme Court of Georgia affirmed the denial of Shine’s 2025 motion for an out-of-time appeal. The Court held:

  • Shine’s ineffective-assistance theory (failure to advise of appellate rights / motion to withdraw plea) had already been litigated and rejected in Shine’s 2009 state habeas case, making the issue res judicata and not relitigable through an out-of-time appeal request.
  • Independently, Shine failed on the merits because counsel cannot be deficient for failing to advise of a non-existent appellate right under the law in effect in 2006 (when Smith v. State, 266 Ga. 687 (1996) and Morrow v. State, 266 Ga. 3 (1995) governed plea-appeal limits).
  • Shine’s attempt to reattack the 2009 habeas denial (and this Court’s denial of a certificate of probable cause) was impermissible.
  • Shine’s judicial-disqualification claim failed because it was raised for the first time on appeal, contrary to preservation rules requiring prompt recusal motions.

III. Analysis

A. Precedents Cited

1. Guilty pleas, appealability, and the pre-Collier regime

  • Smith v. State, 266 Ga. 687 (1996): At the time of Shine’s plea and original 30-day window, Georgia law recognized “no unqualified right” to a direct appeal from a guilty plea. This was central to the habeas court’s 2009 finding that counsel had no duty to advise Shine of an “automatic” appeal right.
  • Morrow v. State, 266 Ga. 3 (1995): Reinforced that an appeal from a guilty-plea judgment lay only where the issue could be resolved from facts in the record. The 2026 Court used this framework to explain what Shine needed—but failed—to show.
  • Collier v. State, 307 Ga. 363 (2019): Overruled Smith and changed the plea-appeal landscape, including holding that (for pleas in that post-Collier context) a defendant seeking an out-of-time appeal was not required to identify a meritorious issue to show prejudice. The Court emphasized that this did not automatically translate into Shine’s entitlement regarding a 2006 plea.
  • Momon v. State, 322 Ga. 848 (2025): Provided the key temporal lens—deficient performance is assessed based on objective reasonableness “at the time” under the law then in effect. This undercut Shine’s attempt to use Collier (2019) to retroactively create counsel deficiency in 2006.

2. Out-of-time appeal procedure and legislative response

  • Cook v. State, 313 Ga. 471 (2022): Eliminated the judicially created trial-court out-of-time appeal procedure, holding trial courts lack jurisdiction to decide such motions on the merits absent legal authority. This Court had previously vacated Shine’s 2020 granted out-of-time appeal order and remanded for dismissal under Cook (Shine v. State, S22A0439 (June 22, 2022)).
  • OCGA § 5-6-39.1 (2025): Created statutory grounds to seek leave for an out-of-time notice of appeal, including where failure was attributable to counsel’s deficient performance (subsection (a)(1)(C)), and a temporary right (until June 30, 2026) for defendants whose out-of-time attempts were dismissed due to Cook (subsection (b)). The Court assumed “without deciding” the statute’s applicability to Shine’s guilty-plea scenario, but held he still failed.

3. Preclusion doctrines applied to repetitive postconviction litigation

  • Beasley v. State, 298 Ga. 49 (2015): A prior habeas denial can preclude a later out-of-time appeal attempt on the same issues under res judicata.
  • Davis v. State, 287 Ga. 414 (2010): Issues litigated in habeas are collaterally estopped from being relitigated elsewhere, including through out-of-time appeal motions.
  • Spiller v. State, 282 Ga. 351 (2007): Choosing to proceed in habeas can preclude subsequent relitigation of ineffective-assistance claims in another procedural vehicle.

4. Record-based showing and appellant’s burden

  • Wheeler v. State, 269 Ga. 547 (1998): Affirmed denial of an out-of-time appeal where the defendant did not specify the questions to be raised or explain how they could be resolved from the record—consistent with the pre-Collier guilty-plea appeal limitation.
  • Smith v. State, 287 Ga. 391 (2010) (including its citation to Grantham v. State, 367 Ga. 635 (1997) and Brown v. State, 280 Ga. 658 (2006)): Before claiming counsel was ineffective for not pursuing an appeal from a guilty plea, a defendant must show the desired claim could be resolved on the face of the existing record (and not be resolved against him).
  • Williams v. State, S26A0389 (Ga. Mar. 17, 2026) and Jacobs v. State, 306 Ga. 571 (2019): Reinforced that the appellant bears the burden to show error by the record; appellate courts will not “cull the record” to construct claims. Shine’s failure to include the plea transcript and key plea documents was “fatal” to his argument.

5. Faretta/self-representation and recusal preservation

  • Faretta v. California, 422 US 806 (1975): Shine argued lack of counsel/waiver; the Court rejected this because a Faretta hearing had already been held (Oct. 28, 2021) and Shine did not show he re-invoked the right to counsel.
  • United States v. Nunez, 137 FApp'x 214 (11th Cir. 2005) and Clay v. State, 378 Ga. App. 283 (2026): Supported the view that absent a substantial change or re-invocation, the court need not repeatedly re-assess a prior valid self-representation waiver for each subsequent proceeding.
  • State v. Hargis, 294 Ga. 818 (2014): Required prompt recusal motions upon learning grounds for disqualification; failure to do so waives preservation for appellate review. This controlled the result on Shine’s late-raised recusal theory.
  • OCGA § 15-1-8(a)(3): The Court noted the substantive rule that judges generally may not sit in cases they handled as counsel absent consent—while still holding Shine’s claim was unpreserved on this record.

B. Legal Reasoning

1. OCGA § 5-6-39.1(a)(1)(C) does not bypass preclusion

Shine framed his motion as falling under OCGA § 5-6-39.1(a)(1)(C): that failure to timely appeal was “attributable to the deficient performance” of plea counsel. The Court held that even assuming the statute applied, Shine could not use it to relitigate a claim already decided in his 2009 habeas case. The habeas court had expressly rejected the same contentions (failure to advise of appeal rights; failure to pursue withdrawal/appeal) and this Court denied a certificate of probable cause (Shine v. Tillman, Warden, S09H0126 (October 19, 2009)). That final adjudication triggered res judicata/collateral estoppel, which the Court treated as a complete bar to Shine’s renewed attempt.

2. Deficient performance is assessed under the law at the time

The Court’s alternative, merits-based holding is the decision’s core doctrinal clarification for OCGA § 5-6-39.1(a)(1)(C) claims tied to older guilty pleas: because plea counsel’s performance is evaluated against the legal backdrop at the time (Momon v. State, 322 Ga. 848 (2025)), Shine had to show that, in 2006, he actually possessed a right to pursue the kind of direct appeal he claims counsel failed to advise him about. Under Smith v. State, 266 Ga. 687 (1996) and Morrow v. State, 266 Ga. 3 (1995), a guilty-plea appeal existed only in a limited, record-based sense; therefore Shine needed to identify an issue resolvable from the existing plea record. He did not do so; indeed he did not even supply the plea transcript and related documents, preventing a record-based evaluation. The Court therefore concluded counsel could not be deemed deficient for failing to advise Shine of a “non-existent right” (as the habeas court had already found).

3. Collier’s change in law does not retroactively create deficiency for a 2006 plea

Shine’s motion relied heavily on Collier v. State, 307 Ga. 363 (2019). The Court agreed with Shine only in the limited, forward-looking sense: for guilty pleas taken after Collier, a defendant may not need to demonstrate a meritorious issue to obtain certain appeal-related relief. But the Court refused to treat Collier as a time machine for counsel-performance analysis. Because the predicate for Shine’s statutory claim is “deficient performance,” and deficiency is measured by what reasonable counsel would do under then-controlling law, Collier could not establish that counsel was ineffective in 2006.

4. Procedural finality: no second appeal of habeas

Shine also attempted to challenge the habeas court’s 2009 ruling and this Court’s subsequent refusal to grant a certificate of probable cause. The Court rejected this outright, pointing to OCGA § 9-14-52(a) (appeals from adverse habeas orders require a certificate of probable cause) and emphasizing that Shine already attempted—and failed—to secure appellate review in the proper timeframe and manner.

5. Recusal/disqualification claims must be timely raised

Shine argued Judge Simms should not have presided due to an alleged prior recusal and/or prior role as district attorney. The Court did not reach the factual merits because Shine raised the issue for the first time on appeal and did not move for recusal when Judge Simms was handling the matter (including when Judge Simms granted Shine relief in 2020). Under State v. Hargis, 294 Ga. 818 (2014) and Uniform Superior Court Rule 25.1, recusal must be promptly sought when grounds are known or discovered; otherwise the issue is not preserved. The Court added a cautionary note referencing OCGA § 15-1-8(a)(3) (judges generally cannot sit in cases they handled as counsel absent consent), but made clear that nothing in the opinion diluted that prohibition.

C. Impact

  • OCGA § 5-6-39.1 is not a universal “reset.” Even with the statute’s remedial purpose after Cook, litigants remain bound by final habeas adjudications. The opinion underscores that statutory out-of-time relief does not override res judicata/collateral estoppel where the same ineffective-assistance/appeal-right theories were already resolved.
  • Pre-2019 guilty-plea cases face a “historical-right” gatekeeping requirement. For older pleas, defendants seeking to characterize a missed appeal as counsel’s “deficient performance” must grapple with the limited plea-appeal doctrine that existed at the time (Smith/Morrow) and must show an appealable, record-resolvable issue.
  • Record completeness is decisive. The Court’s reliance on Williams and Jacobs signals that pro se status does not relax the appellant’s burden to provide transcripts and relevant documents—particularly where the right to appeal turns on what appears in the plea record.
  • Recusal issues are preservation-sensitive. The opinion reinforces that parties cannot “sandbag” a disqualification issue—raising it only after an adverse ruling. This may significantly shape strategy in long-running postconviction litigation.

IV. Complex Concepts Simplified

  • Alford plea (North Carolina v. Alford): A guilty plea in which the defendant does not admit the factual basis but concedes the State likely could prove guilt beyond a reasonable doubt, and accepts conviction to avoid the risk of trial.
  • Out-of-time appeal: Permission to file an appeal after the deadline. In Georgia, the judicially created trial-court mechanism was eliminated by Cook v. State, and the legislature later created a statutory pathway in OCGA § 5-6-39.1.
  • Res judicata / collateral estoppel: Doctrines that prevent re-litigation. Res judicata bars reasserting the same claim after a final judgment; collateral estoppel bars re-litigating an issue actually decided previously.
  • “Law at the time” deficiency analysis: When evaluating whether counsel performed unreasonably, courts assess what competent counsel would have done under the law as it existed then—not under later legal developments.
  • Certificate of probable cause (habeas): Under OCGA § 9-14-52(a), a habeas petitioner cannot appeal an adverse final order unless the Supreme Court issues a certificate of probable cause to appeal.
  • Preservation (recusal): To challenge a judge’s qualification, a party must move promptly when the grounds are known; otherwise the appellate court will treat the issue as waived.

V. Conclusion

Shine v. State crystallizes two practical limits on Georgia’s post-Cook statutory out-of-time appeal regime: (1) OCGA § 5-6-39.1 does not allow defendants to relitigate ineffective-assistance and appeal-right issues already finally decided in habeas, and (2) claims of counsel “deficient performance” tied to older guilty pleas must be evaluated under the plea-appeal law that existed at the time, not under later expansions such as Collier v. State. The decision further reinforces strict record burdens on appellants and strict preservation requirements for judicial disqualification claims.