Overstreet: Appellate counsel was constitutionally ineffective

In Overstreet v. Warden, No. 13-14995 (Jan. 27, 2016), the Court (Black, Martin, and Anderson., JJ.) reversed the denial of habeas relief to a Georgia inmate.. The Court held that Georgia appellate counsel was constitutionally ineffective in failing to raise on appeal, in the Georgia appellate courts, the issue that convictions for the crime of “kidnapping” should be reversed, because intervening Georgia law held that the asportation of victims during a robbery did not constitute “kidnapping.” The Court noted that appellate counsel has no duty to raise every non-frivolous issue and reasonably weed out weaker (albeit meritorious) arguments. Only when ignored arguments are “clearly stronger than those presented” will appellate representation be ineffective. The Court noted: “In many (perhaps most) cases, counsel may err without being deficient or may be deficient without causing prejudice.” But in light of intervening Georgia caselaw, Overstreet’s kidnapping convictions would have been reversed. Therefore, appellate counsel’s representation was “undeniably ineffective.”