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Appealing a Criminal Case: Court Issues Rare Ruling in Deciding That Previous Lawyer Missed an Issue That Would Have Helped the Defendant

Kish Law LLC

Here at our firm we do a fair number of criminal appeals.  Some cases come out of the federal courts, here in Atlanta, throughout Georgia, and occasionally in other parts of the country.  We also handle criminal appeals arising out of Georgia’s state courts.  As described in an opinion issued two days ago by the U.S. Court of Appeals for the Eleventh Circuit, Overstreet v. Warden, “The fundamental purpose of an appellate lawyer representing a defendant in a direct criminal appeal is to identify and argue bases for reversal of a conviction.”  The value of appellate counsel is based on his or her “examination into the record, research of the law, and marshalling of arguments on [the defendant’s] behalf”.   But what happens if the appellate attorney misses an issue?  The Overstreet decision is one of those rare cases in which a federal court of appeals overruled the lower federal court, and the state courts, in concluding that the attorney handling the appeal made such an egregious mistake that the Defendant was entitled to have some of his convictions reversed many years after the fact.

Johnny Overstreet apparently was no angel.  A jury found him guilty for a series of crimes arising out of robberies at five fast food establishments.  For each incident, he was also found guilty of kidnapping store employees.  Prosecutors successfully argued that Overstreet kidnapped the store managers by forcing them to walk back to a safe or office, and then return to the front of the establishment. At the time of Overstreet’s trial, Georgia’s kidnapping law required  even a “slight movement” of a victim in order to comply with the “asportation” aspect of this crime.   However, the following year, well before Overstreet appealed his own convictions, the Georgia Supreme Court reversed this “slight movement” test.  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.  Even more importantly, two later cases with facts almost identical to Overstreet’s trial reversed kidnapping convictions based on the Georgia Supreme court’s new rule.

Here is where the problem arose.  The lawyer handling Overstreet’s appeal filed his legal papers 15 months after the new test for asportation had been announced by the Georgia Supreme Court, and several months after the other cases with identical facts had resulted in reversals.  The lawyer never mentioned asportation, the new cases, or any attack on the kidnapping convictions at all other than to say that the evidence was insufficient.  Not surprisingly, the state appeals courts did not look at nor reverse the kidnapping  convictions.

Overstreet himself then filed a series of rambling attacks over the next several years, first in the state courts, and then in a federal “habeas corpus” action under 28 U.S.C. §2254.  Again, no judge noticed that in the midst of his pleadings Mr. Overstreet himself did raise the asportation issue, and argued that his appeals lawyer was ineffective in not bringing this issue up. Federal habeas corpus cases are very limited, and when a District Judge denies such a petition, the Defendant does not have the right to appeal to a higher court unless either the District Judge or the Court of Appeals itself grants what is called a “certificate of appealability.”  That is what happened, for someone in the federal appellate court noticed this issue, they granted a certificate of appealability, and two days ago the Eleventh Circuit issued its decision, holding that the failure by the appeals lawyer to bring up the asportation issue was ineffective, and Mr. Overstreet was “prejudiced” by the error.  They sent the case back to the lower courts with directions that the kidnapping convictions be reversed.

Overstreet contains a number of lessons.  First off, any lawyer handling a criminal appeal needs to keep up on legal developments, as we do in trying to regularly read the opinions from the Court of Appeals, the Supreme Court and other relevant sources.  Second, if an issue is not raised, it rarely can be brought back up years later.  Overstreet is the rare case where courts decided that an appeal lawyer’s performance was so sub-standard that the judges simply could not stand for the result, and they reversed his kidnapping convictions.

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