YANCEY CHARLES LIGHTNER,

v.

THE STATE OF FLORIDA,

LINDSEY, J. Pro se Petitioner Yancey C. Lightner seeks a writ of habeas corpus based on manifest injustice. We grant the State’s motion to dismiss because Petitioner is simultaneously being represented by counsel in another appeal pending before this Court. Even if he were not, the petition fails on the merits. I. BACKGROUND

Petitioner was charged with three counts of armed robbery with a firearm or deadly weapon and possession of a firearm or weapon by a convicted felon. The count for possession of a firearm was severed and the case proceeded to a jury trial on the armed robbery counts.

In August of 2003, a jury found Petitioner guilty of robbery with a firearm on all three counts, and we affirmed his conviction and sentence. Lightner v. State, 948 So. 2d 768 (Fla. 3d DCA 2007). Since that time, Petitioner has filed four other habeas petitions, all of which have been denied. Lightner v. State, 12 So. 3d 233 (Fla. 3d DCA 2009); Lightner v. State, 119 So. 3d 452 (Fla. 3d DCA 2013); Lightner v. State, 230 So. 3d 1207 (Fla. 3d DCA 2017); Lightner v. State, 242 So. 3d 398 (Fla. 3d DCA 2017). In addition, Petitioner has filed one appeal from an order denying a Rule 3.850 motion and one appeal from an order denying a Rule 3.800(a) motion. Lightner v. State, 59 So. 3d 282 (Fla. 3d DCA 2011); Lightner v. State, 227 So. 3d 587 (Fla. 3d DCA 2017).

We affirmed both orders.¹

Petitioner currently has pending in this Court another appeal of an order denying his Rule 3.850 motion (3D19-1681). In that case, Petitioner is represented by counsel, and he claims entitlement to relief based on newly discovered evidence.

The instant petition alleges manifest injustice for failure to instruct the jury on a necessary lesser included offense. In response, the State moved to dismiss. II. JURISDICTION

We have jurisdiction to issue a writ of habeas corpus under Article V § 4(b)(3) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(b)(3).

III. ANALYSIS A. Petitioner’s Pending Appeal A pro se petition for writ of habeas corpus will be dismissed if a defendant is “simultaneously being represented by counsel in ongoing criminal proceeding” in an appellate court. Sheppard v. State, 17 So. 3d 275, 282 (Fla. 2009); see also Johnson v. State, 974 So. 2d 363, 364-65 (Fla. 2008); Logan v. State, 846 So. 2d 472, 473 (Fla. 2003). Here, Petitioner, through counsel, filed an appeal before this Court of an order denying his Rule 3.850 motion claiming newly discovered evidence. That appeal remains pending. Subsequent to the filing of that appeal, Petitioner, pro se, filed the instant habeas petition.

Thus, Petitioner is simultaneously being represented by counsel in an ongoing criminal proceeding in an appellate court, i.e. this appellate

Court. He does not dispute this fact but rather asks us to ignore our binding precedent in Sheppard, Johnson, and Logan. We decline to do so. B. Petitioner’s Manifest Injustice Claim Is Without Merit

Under Florida law, appellate courts have the authority to correct a manifest injustice by way of habeas corpus. See Harris v. State, 12 So. 3d 764, 765 (Fla. 3d DCA 2008) (citing Adams v. State, 957 So. 2d 1183 (Fla. 3d DCA 2006)).

However, “[t]he mere incantation of the words ‘manifest injustice’ does not make it so.” Beiro v. State, 289 So. 3d 511 (Fla. 3d DCA 2019); see also Cuffy v. State, 190 So. 3d 86, 87 (Fla. 4th DCA 2015) (“The term ‘manifest injustice,’ which has been acknowledged as an exception to procedural bars to postconviction claims in only the rarest and most exceptional of situations, now is abused widely by postconviction litigants.”).

Here, Petitioner claims that due to a missing charge conference transcript, he has been deprived of meaningful appellate review of the trial court’s failure to instruct the jury on the lesser included offense of robbery with a weapon. In 3D16-2262, one of Petitioner’s prior habeas petitions, Petitioner similarly asserted that appellate counsel was ineffective for failing to demonstrate that the missing charge conference transcript would show that the trial court erred in failing to instruct the jury on the necessary included offense of robbery with a weapon.² Following review in 3D16-2262, we denied the petition. See Lightner, 230 So. 3d 1207.

The record shows that the trial court held a reconstruction hearing. During the hearing, both sides agreed to the jury instructions and the lesser offenses that would be included. See Silver v. State, 149 So. 3d 54, 58 (Fla. 4th DCA 2014) (“A defendant in a non-capital case must specifically request instructions on lesser-included offenses, or object to the omission; otherwise, any error in failing to give an instruction that was not requested is not preserved for appellate review and is not fundamental error.”). Because there are no circumstances that warrant habeas relief based on the narrow manifest injustice exception, the petition fails on its merits.

IV. CONCLUSION

Accordingly, for the reasons set forth above, we grant the State’s motion to dismiss because Petitioner is simultaneously being represented by counsel in a pending appeal in this Court. In addition, we find no manifest injustice and that Petitioner is not entitled to relief on the merits of his claim.