JOSE NEREY, PETITIONER,
v.
THE STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Nerey petitioned for habeas corpus relief claiming his appellate counsel was ineffective for failing to raise a Miranda waiver issue on appeal. The Florida District Court of Appeal, Third District, denied the petition, holding that appellate counsel has discretion to focus on stronger arguments and need not raise every non-frivolous issue.
Appellate counsel was not ineffective because counsel has discretion to 'winnow out' weaker arguments and focus on those most likely to prevail, and the record clearly demonstrated the defendant's knowing, intelligent, and voluntary waiver of his Miranda rights.
[1] A claim of ineffective assistance of appellate counsel may be raised by a petition for habeas corpus.
[2] Appellate counsel is not required to raise every non-frivolous issue on appeal; counsel has a responsibility to "winnow out" weaker arguments.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“counsel need not raise every non-frivolous issue revealed by the record”
Establishes the core principle that appellate counsel has discretion in selecting which arguments to pursue
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNerey, a 16-year-old defendant, was questioned regarding a homicide. The trial court found him to be very intelligent, articulate, with no language pr…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waiver Of Miranda Rights cases and more on FLexlaw
PER CURIAM.
This claim of ineffective assistance of appellate counsel is properly raised by petition for habeas corpus. State v. District Court of Appeal of Florida, First District, 569 So. 2d 439 (Fla.1990). Having considered the error claimed, we deny the petition.
Defendant argues that his appellate counsel was ineffective for failing to argue that defendant did not knowingly, intelligently, and voluntarily waive his Miranda rights, and thus his confession was admitted into evidence in violation of the Fifth Amendment.
We disagree. While this claim was preserved for appellate review, it is well-established that counsel need not raise every non-frivolous issue revealed by the record, see Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
One of appellate counsel’s responsibilities is to “winnow out” weaker arguments on appeal and to focus upon those most likely to prevail. Smith v. Murry, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The record demonstrates the defendant’s knowing, intelligent, and voluntary waiver of his Miranda rights. The defendant was sixteen years of age, and appeared to the trial judge “very intelligent ... [more] so than a lot of people his age,” with no language problem and according to the trial court “very articulate.” Defendant’s parent was told she could go to the homicide office if she wanted to. The youth was told he was entitled to have a lawyer present and if he could not afford one, an attorney would be provided. See W.M. v. State, 585 So. 2d 979 (Fla. 4th DCA 1991), review denied, 593 So. 2d 1054 (Fla.1991).
Here, counsel could have reasonably concluded defendant would not prevail on the voluntariness point and therefore decided to “winnow out” this weak argument.
Thus, we find unmeritorious the claim that appellate counsel was ineffective for failing to argue this issue.
As to the remaining points raised, “Habeas corpus is not a second appeal and cannot be used to litigate or re-litigate issues which could have been, should have been, or were raised on direct appeal.” Breedlove v. Singletary, 595 So. 2d 8,10 (Fla.1992). Finally, petitioner had no constitutional right to counsel to pursue discretionary review by the Florida Supreme Court, thus he was not deprived of effective assistance of counsel by his counsel’s failure to appeal to .the Florida Supreme Court an additional point he had raised in his defense. Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982); Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).
Accordingly, the petition for habeas corpus relief is denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Partridge v. Moore, 768 So. 2d 1128 (Fla. 1st DCA 2000)…ld have differed had counsel moved this court for rehearing and/or sought further review in the Supreme Court of Florida. The petition is therefore facially insufficient. See Knight v. State, 394 So. 2d 997, 1001 (Fla.1981); see also Nerey v. State, 634 So. 2d 206 (Fla. 3d DCA 1994) (rejecting theory that appellate counsel was ineffective for failing to pursue discretionary review in the Supreme Court of Florida). PETITION DENIED. KAHN, WEBSTER and VAN NORTWICK, JJ., concur.…
-
Joseph v. State, 125 So. 3d 1020 (Fla. 4th DCA 2013)…8 So. 3d 85, 108 (Fla.2011). Nor must counsel raise every issue with potential merit, as part of “appellate counsel’s responsibilities is to ‘winnow out’ weaker arguments on appeal [so as] to focus upon those most likely to prevail.” Nerey v. State, 634 So. 2d 206, 206 (Fla. 3d DCA 1994) (citation omitted); see also Valentine v. State, 98 So. 3d 44, 57 (Fla.2012). In Barwick, the Florida Supreme Court noted that, in Rimmer v. State, 59 So. 3d 763, 786 (Fla.2010), it had previously addressed “the applicable s…
Authorities Cited
- Jones v. Barnes, 463 U.S. 745 (U.S. 1983)
- Smith v. Murray, 477 U.S. 527 (U.S. 1986)
- Ross v. Moffitt, 417 U.S. 600 (U.S. 1974)
- State v. Dist. Court of Appeal of Fla., 569 So. 2d 439 (Fla. 1990)
- McArthur Breedlove v. Singletary, 595 So. 2d 8 (Fla. 1992)
- Wainwright v. Torna, 455 U.S. 586 (U.S. 1982)
- W.M. v. State, 585 So. 2d 979 (Fla. 4th DCA 1991)