            Case: 13-14995   Date Filed: 01/27/2016   Page: 1 of 10


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 13-14995
                         ________________________

                 D.C. Docket No. 1:12-cv-00086-JRH-BKE



JOHNNY OVERSTREET, JR.,

                                               Petitioner - Appellant,

versus

WARDEN,

                                               Respondent - Appellee,

ATTORNEY GENERAL, STATE OF GEORGIA,

                                               Respondent.

                         ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                       ________________________

                             (January 27, 2016)

Before MARTIN, ANDERSON and BLACK, Circuit Judges.

BLACK, Circuit Judge:
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       Johnny Overstreet, Jr., a Georgia prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 petition for writ of habeas corpus. This Court granted a

certificate of appealability on the following issue:

       Whether appellate counsel rendered ineffective assistance in failing to
       argue that there was insufficient evidence to support Overstreet’s
       kidnapping convictions in light of Garza v. State, 670 S.E.2d 73, 78
       (Ga. 2008).

After careful review and with the benefit of oral argument, we answer the certified

issue in the affirmative, reverse the order of the district court, and remand with

instructions for the district court to issue the writ.

       In 2007, a jury found Overstreet guilty of 35 counts arising from his role in

armed robberies of five fast-food restaurants. Among Overstreet’s convictions

were four counts for kidnapping. The record shows 1 that Overstreet’s kidnapping

convictions were based on Overstreet’s leading the restaurant manager to the

restaurant safe in a back room or office and then ordering the manager to open the

safe. On two of the four occasions, before fleeing, Overstreet led the restaurant

manager back to the front of the restaurant, where the remaining employees were

being held. Under Georgia law at the time of Overstreet’s conviction, Overstreet’s

moving the restaurant managers in this manner was sufficient to satisfy the

asportation element of kidnapping. See Lyons v. State, 652 S.E.2d 525, 528 (Ga.


       1
         The parties do not dispute the pertinent facts on appeal. The parties do, however,
dispute the legal conclusions to be drawn therefrom.
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2007) (“The requirement of asportation to prove kidnapping is satisfied if there is

movement of the victim, however slight that movement is.”).

       In 2008, the Georgia Supreme Court modified the test for asportation,

overruling Lyons. Garza, 670 S.E.2d at 78. Under the new test, movement of a

victim that is “part and parcel” of an independent crime, such as armed robbery,

would generally not be considered asportation. Id. at 76 (discussing, as an

example of a situation that should not constitute kidnapping, “the robber who

forces his victim to move from one room to another in order to find a cashbox or

open a safe”) (quotation omitted). This modification applied to any kidnapping

conviction that had not yet been adjudicated on direct appeal. See Kollie v. State,

687 S.E.2d 869, 874 (Ga. App. 2009).2

       In 2009, the Georgia Court of Appeals overturned several kidnapping

convictions in which the movement of the victim was part and parcel of an armed

robbery. Kollie, 687 S.E.2d at 875 (movement of victim to safe in back office then

to front of restaurant); Grimes v. State, 678 S.E.2d 167, 168 (Ga. App. 2009)

(movement of victim from front of restaurant to money cabinet in back office, then

to front cash register). Kollie and Grimes are substantially identical to the

pertinent facts in Overstreet’s case. See 687 S.E.2d at 873; 678 S.E.2d at 168.

       2
         The Georgia legislature has since abrogated Garza by statute, but this amendment
applies to conduct on or after July 1, 2009. See Horne v. State, 680 S.E.2d 616, 619 n.1 (Ga.
App. 2009). Overstreet’s conduct took place in 2006 and is therefore adjudicated under the
Garza test for asportation.
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Likewise, Garza’s example of “the robber who forces his victim to move from one

room to another in order to find a cashbox or open a safe” is strikingly similar to

the pertinent facts in Overstreet’s case. Garza, 670 S.E.2d at 76 (quotation

omitted). Garza, Grimes, and Kollie were all decided after Overstreet’s conviction

but before his direct appeal. Thus, as in Grimes and Kollie, Overstreet’s

kidnapping convictions were likely to be reversed on appeal.

       Fifteen months after Garza, nine months after Grimes, and three months

after Kollie, Overstreet’s appellate counsel 3 filed a brief in support of Overstreet’s

direct appeal of his convictions. The brief mentioned neither asportation generally

nor Garza and its progeny specifically. The brief argued, among other things, that

Overstreet’s conviction was “strongly against the weight of the evidence” and

challenged the credibility of several witnesses for the prosecution. Without having

been notified in any way of the Garza issue, the Georgia Court of Appeals denied

Overstreet’s appeal. Overstreet v. State, 696 S.E.2d 114 (Ga. App. 2010).

       In the ensuing years, Overstreet sought habeas corpus relief in the Georgia

Superior Court, the Georgia Supreme Court, and the United States District Court

for the Southern District of Georgia. Before each court, Overstreet, proceeding pro

se, argued that his appellate counsel had been ineffective for failing to raise Garza.


       3
        Overstreet’s counsel in this federal habeas corpus appeal is not the appellate counsel to
whom the Court refers. References to Overstreet’s appellate counsel refer to the attorney who
represented Overstreet in Georgia state court for his post-trial motions and direct appeal.
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Among a series of meritless arguments, Overstreet attempted to articulate a

meritorious argument—Overstreet’s appellate counsel was ineffective for failing to

raise Garza because Garza changed the law and compelled reversal of the four

kidnapping counts.

      Although Overstreet raised a meritorious claim of ineffective assistance of

appellate counsel, both the Georgia Superior Court and district court appear to

have been mired in Overstreet’s many meritless claims and to have misinterpreted

Overstreet’s argument as being a fact-based challenge to the sufficiency of the

evidence presented at trial. Overstreet’s challenge was not based on the facts but

on the law—the jury had convicted Overstreet using the wrong test for asportation,

and the facts did not support the asportation element under the new law. Without

ever mentioning Garza or its progeny, each court denied Overstreet’s request for

relief. With the benefit of thorough briefing and oral argument as to the single

issue on appeal, the Court now recognizes what was nearly overlooked:

Overstreet’s appellate counsel rendered ineffective assistance under Strickland v.

Washington, 466 U.S. 668 (1984).

      When reviewing a district court’s denial of a 28 U.S.C. § 2254 petition, we

review “questions of law and mixed questions of law and fact, including

ineffective assistance of counsel claims, de novo, and review findings of fact for

clear error.” Pardo v. Sec’y, Fla. Dept. of Corr., 587 F.3d 1093, 1098 (11th Cir.


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2009). The Court is “highly deferential” to a state court’s adjudication on the

merits. Id. When a state court has adjudicated on the merits a state prisoner’s

claim, a federal court may grant the writ of habeas corpus only if the state court’s

decision:

      (1)    resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law, as
             determined by the Supreme Court of the United States; or

      (2)    resulted in a decision that was based on an unreasonable
             determination of the facts in light of the evidence presented in
             the State court proceeding.

28 U.S.C. § 2254(d). “A state court decision involves an unreasonable application

of Supreme Court precedent ‘if the state court identifies the correct governing legal

rule from [Supreme Court] cases but unreasonably applies it to the facts of the

particular state prisoner’s case.’” Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.

2000) (quoting Williams v. Taylor, 529 U.S. 362, 407–08 (2000)). “Where a state

court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable basis for the state

court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

      Strickland governs a claim of ineffective assistance of appellate counsel.

Dell v. United States, 710 F.3d 1267, 1273 (11th Cir. 2013). Under Strickland, a

petitioner must show (1) his attorney’s performance was deficient, and (2) the

deficient performance prejudiced the petitioner’s defense. 466 U.S. at 687. When


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considering deficient performance, a court must presume counsel’s performance

was “within the wide range of reasonable professional assistance.” Id. at 689.

Appellate counsel has no duty to raise every non-frivolous issue and may

reasonably weed out weaker (albeit meritorious) arguments. See Philmore v.

McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). “Generally, only when ignored

issues are clearly stronger than those presented, will the presumption of effective

assistance of counsel be overcome.” Smith v. Robbins, 528 U.S. 259, 288 (2000)

(quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see also Burger v.

Kemp, 483 U.S. 776, 784 (1987) (finding no ineffective assistance of counsel when

the failure to raise a particular issue had “a sound strategic basis”). A petitioner

satisfies the prejudice prong upon showing that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. “The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal citation and

quotations omitted).

      Overstreet’s appellate counsel’s failure to make a Garza argument can be

explained in one of two ways: he either failed to recognize or elected not to raise




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this strong basis for reversal of four criminal convictions. 4 Either way, counsel’s

performance is patently deficient. Cf. Cave v. Singletary, 971 F.2d 1513, 1518

(11th Cir. 1992) (“The attorney’s choice of tactic must be reasonable under the

circumstances.”) (emphasis in original). Although Overstreet’s appellate counsel

made arguments in support of more comprehensive relief than reversal of just four

out of 35 counts, no argument was particularly likely to succeed. Even if

meritorious, none of appellate counsel’s arguments was as compelling as Garza,

which almost certainly would have resulted in reversal of the kidnapping counts.

Appellate counsel’s deficient performance also prejudiced Overstreet. See Black v.

United States, 373 F.3d 1140, 1142 (11th Cir. 2004) (explaining that a petitioner

satisfies the prejudice prong of Strickland upon showing that “but for the deficient

performance, the outcome of the appeal would have been different”). But for

appellate counsel’s failure to raise Garza, the Georgia Court of Appeals would

almost certainly have reversed Overstreet’s kidnapping convictions.

       The United States Supreme Court holds that it is possible for appellate

counsel to render ineffective assistance. See Smith v. Murray, 477 U.S. 527, 535

(1986). Therefore, there must be a set of facts under which appellate counsel could

be found ineffective. The fundamental purpose of an appellate lawyer representing

       4
          At an evidentiary hearing before the Georgia Superior Court, appellate counsel testified
that he believed he raised every meritorious argument and that any arguments he omitted were
left out for a reason. Counsel was not questioned about Garza specifically and provided no
reason for the omission.
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a defendant in a direct criminal appeal is to identify and argue bases for reversal of

a conviction. See Douglas v. California, 372 U.S. 353, 358 (1963) (describing the

value of appellate counsel’s “examination into the record, research of the law, and

marshalling of arguments on [the defendant’s] behalf”). Appellate counsel might

fail to identify a mediocre or obscure basis for reversal without being ineffective

under Strickland. See, e.g., Brown v. United States, 720 F.3d 1316, 1335 (11th Cir.

2013). In many (perhaps most) cases, counsel may err without being deficient or

may be deficient without causing prejudice. Overstreet’s chances of reversal,

however, were not merely possible or even probable. As discussed above, had

Overstreet’s appellate counsel raised Garza, Grimes, or Kollie, absent a departure

from precedent, Overstreet’s kidnapping convictions would have been reversed.

Therefore, Overstreet’s appellate representation was undeniably ineffective. See

Eagle v. Linahan, 279 F.3d 926, 943 (11th Cir. 2001) (“Where, as here, appellate

counsel fails to raise a claim on appeal that is so obviously valid that any

competent lawyer would have raised it, no further evidence is needed to determine

whether counsel was ineffective for not having done so. . . . Her failure to raise it,

standing alone, establishes her ineffectiveness.”). The state court’s determination

to the contrary was an unreasonable application of Strickland. 5



       5
        We need not and do not address whether the district court should have reviewed the
adjudication of the Georgia Superior Court or of the Georgia Supreme Court because there is no
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       We therefore answer the certified issue in the affirmative. Overstreet’s

appellate counsel rendered ineffective assistance in failing to argue that there was

insufficient evidence to support Overstreet’s kidnapping convictions in light of

Garza. This case is reversed and remanded with instructions for the district court

to issue the writ as to Overstreet’s kidnapping convictions, counts 2, 10, 17,

and 26.

       REVERSED and REMANDED.




reasonable basis upon which either state court could have concluded that Overstreet’s appellate
counsel rendered effective assistance. See Harrington, 562 U.S. at 98.
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