Following a May 1995 jury trial, Eric Kelley was convicted of two counts of felony murder with the underlying felony of aggravated assault in connection with the shooting deaths of two people at a pawn shop. This Court affirmed Kelley’s convictions on appeal. See Kelly v. State, 266 Ga. 709 469 SE2d 653 1996. On February 20, 2006, Kelley filed a habeas corpus petition, which he amended on June 24, 2008, and May 30, 2009. Following an October 21, 2009, hearing, on August 4, 2011, the habeas court granted relief to Kelley on the ground that he had received ineffective assistance of appellate counsel. Specifically, the habeas court found that appellate counsel was ineffective for having failed to argue on direct appeal that the trial court erred in charging the jury on both subsections a 1 and a 2 of OCGA § 16‑5‑211 when the indictment stated only that Kelley had committed aggravated assault in connection with felony murder by shooting the victims with a pistol. The Warden of Scott State Prison appeals from this ruling, and, for the reasons that follow, we reverse.
Under Strickland v. Washington, 466 U.S. 668 104 SC 2052, 80 LE2d 674 1984, to prevail on a claim of ineffective assistance of appellate counsel, the petitioner bears the burden of showing both that counsel’s performance was deficient and that the deficiency prejudiced the appeal. Battles v. Chapman, 269 Ga. 702 1 506 SE2d 838 1998. The deficiency prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the petitioner by the Sixth Amendment.” Anderson v. State, 285 Ga. 496, 498 3 678 SE2d 84 2009. Moreover, the petitioner ” ‘must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.’ Cit.” Morgan v. State, 275 Ga. 222, 227 10 564 SE2d 192 2002. The prejudice prong requires the petitioner to show that there is ” ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Cit.” Hardeman v. State, 281 Ga. 220, 221 635 SE2d 698 2006. Finally, “ a habeas court’s determination on a claim of ineffective assistance of counsel is to be affirmed unless the reviewing court concludes the habeas court’s factual findings are clearly erroneous or are legally insufficient to show ineffective assistance of counsel. Cit.” Head v. Thomason, 276 Ga. 434, 436 1 578 SE2d 426 2003.
