Eddie Davis Martin, Jr. appeals from the denial of his petition for a writ of habeas corpus. In 2006, Martin was tried in Dawson County and convicted of aggravated sexual battery, aggravated child molestation, and child molestation. His convictions were affirmed on direct appeal. See Martin v. State, 294 Ga. App. 117 668 SE2d 549 2008. Martin now asserts that he was denied the effective assistance of counsel in his direct appeal because his appellate lawyer never raised a claim of error with respect to proof of venue. The State failed to prove at trial, Martin contends, that venue was proper in Dawson County, and if only his appellate lawyer had raised this shortcoming of proof on direct appeal, his convictions would have been overturned. The habeas court rejected this contention, and for the reasons that follow, we reject it as well. The denial of the petition for a writ of habeas corpus is affirmed.
To prevail on a claim of ineffective assistance of appellate counsel, a habeas petitioner must show that his appellate counsel was deficient in failing to raise an issue on appeal and that, if counsel had raised that issue, there is a reasonable probability that the outcome of the appeal would have been different. Thompson v. Brown, 288 Ga. 855, 855 708 SE2d 270 2011. Performance and prejudice always are distinct questions in an analytical sense, but in cases like this one, they often are substantially conflated in practice, and the merits of the underlying claim that the petitioner contends his lawyer should have raised on direct appeal often are dispositive of both questions. If the underlying claim of reversible error has clear and strong merit under the law as it existed at the time of the appeal, that would tend to show that a competent lawyer ought to have raised it, and it would tend to show as well that the outcome of the appeal probably would have been different if the claim had been raised. If the claim is without merit, however, it cannot be said that every competent lawyer would have asserted such a claim, and it likewise cannot be said that the outcome of the appeal would have been other than it was. We now turn, therefore, to the merits of the underlying claim that the State failed at trial to offer sufficient proof that venue was proper in Dawson County.
