Moussa Diarra v. Jeffrey Mann, Dekalb County Sheriff

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 10, 2016

The Court of Appeals hereby passes the following order:

A17D0141. MOUSSA DIARRA v. JEFFREY MANN, DEKALB COUNTY SHERIFF.

In this habeas corpus case, Moussa Diarra has filed an application for discretionary appeal from the trial court’s order denying his motion to recuse the trial court judge. We lack jurisdiction. Because the case remained pending below when Diarra filed his application, he was required to follow the interlocutory application procedures set forth in OCGA § 5-6-34 (b), which include obtaining a certificate of immediate review from the trial court, to obtain appellate review. See Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21) (2013) (dismissing appeal from recusal order based on failure to follow the interlocutory appeal procedure). Although Diarra filed an application for discretionary appeal, as described in OCGA § 5-6-35, compliance with that procedure does not excuse a party seeking appellate review of an interlocutory order from complying with the additional requirements of OCGA § 5-6-34 (b). See Bailey v. Bailey, 266 Ga. 832 (471 SE2d 213) (1996).1 Diarra’s failure to comply with the interlocutory appeal procedures deprives us of jurisdiction over this application, which is hereby DISMISSED.

1 In addition, while OCGA § 42-12-8 provides that appeals of all actions filed by prisoners must follow the discretionary application procedures of OCGA § 5-6-35, that requirement does not apply to habeas corpus cases. See OCGA § 42-12-3 (1); Jones v. Townsend, 267 Ga. 489, 490, n.3 (480 SE2d 24) (1997).

Court of Appeals of the State of Georgia 11/10/2016 Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.