PERRY JOSEPH, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT

Fla. 4th DCA | 2013-07-03
No. 4D12-2380
STEVENSON, MAY and FORST, JJ„ concur.
125 So. 3d 1020 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 2 cases

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.

Synopsis

Perry Joseph seeks habeas corpus relief claiming his appellate counsel was ineffective for failing to raise additional arguments challenging the prosecutor's closing remarks and the admission of a police statement. The court denies the petition, finding that appellate counsel's omissions did not constitute serious deficiency and that the omitted arguments were meritless.


Holding

Appellate counsel was not ineffective. The alleged omissions did not constitute serious error or substantial deficiency falling outside the range of professionally acceptable performance, and the omitted arguments were meritless.


Headnotes

[1] A writ of habeas corpus may be issued when appellate counsel's deficient performance compromises the appellate process and undermines confidence in the outcome.

[2] Failure to raise a non-meritorious issue on appeal does not constitute ineffective assistance of appellate counsel.

Previewing 2 of 6 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

Key Quotes

“failure to raise a non-meritorious issue(s) on appeal does not constitute appellate ineffectiveness”

Establishes that counsel is not ineffective for omitting meritless claims

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Joseph was convicted of second degree murder and attempted robbery with a firearm. On direct appeal, appellate counsel raised four grounds for reversa…

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.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioner, Perry Joseph, seeks a writ of habeas corpus based on alleged ineffective assistance of appellate counsel in Joseph v. State, 41 So.3d 307 (Fla. 4th DCA 2010). In Joseph, appellate counsel raised four grounds for reversal of petitioner’s convictions for second degree murder and attempted robbery with a firearm, including a challenge to two comments by the prosecutor during closing argument which petitioner claimed violated his right to a constitutionally-fair trial by shifting the burden of proof from the state to petitioner. In this petition, petitioner claims appellate counsel should have raised additional grounds for finding the prosecutor’s closing argument cumulatively improper. Petitioner also contends that appellate counsel should have challenged on appeal the admission into evidence of a portion of one of his police statements which referenced him having committed previous armed robberies with the charged co-defendants (“every time they want to go do some [robberies] they come get me because I am a good driver, I am going to get away from the cops”).

A writ of habeas corpus is appropriately issued when appellate counsel has performed deficiently so as to compromise the appellate process, undermining confidence in the reliability of the outcome. Buzia v. State, 82 So.3d 784, 792 (Fla.2012). However, failure to raise a non-meritorious issue(s) on appeal does not constitute appellate ineffectiveness. Barwick v. State, 88 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 standard” for reviewing claims of ineffective assistance of direct appeal counsel, setting forth the following:

Appellate counsel’s ineffectiveness is properly raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Barwick, 88 So.3d at 106-07. “The defendant has the burden of alleging a specific, serious omission or overt act upon which *1022the claim of ineffective assistance of counsel can be based.” Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Here, we have examined the challenges. petitioner alleges should have been made by his appellate counsel on direct appeal with respect to various comments made by the prosecutor during closing argument, but find “the alleged omissions are [not] of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance.” Rimmer, 59 So.3d at 786.

Likewise, petitioner’s complaint that appellate counsel’s failure to seek appellate review of the admission of that portion of his police statement which referenced prior robberies constitutes ineffective assistance of counsel is unavailing, as the evidence was admissible to show petitioner’s knowledge of the robbery plan among his co-defendants out of which these charges arose. See, e.g., Johnson v. State, 112 So.3d 564 (Fla. 4th DCA 2013). Thus, we find appellate counsel was not ineffective in foregoing a meritless claim on petitioner’s direct appeal. Lamb v. McNeil, 41 So.3d 964, 965 (Fla. 4th DCA 2010).

Accordingly, the petition for writ of ha-beas corpus is denied.

STEVENSON, MAY and FORST, JJ„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Hernando Camero v. State, 123 So. 3d 648 (Fla. 4th DCA 2013)
    …4th DCA 2012), because all five grounds raised here by petitioner lack merit, rendering counsel’s decision to reject these claims as proper for direct appeal effective assistance. See Barwick v. State, 88 So. 3d 85, 108 (Fla.2011); Joseph v. State, 125 So. 3d 1020 (Fla. 4th DCA 2013); Lamb v. McNeil, 41 So. 3d 964, 965 (Fla. 4th DCA 2010), review denied, 55 So. 3d 1287 (Fla.2011). Petition Denied. WARNER, STEVENSON and TAYLOR, JJ., concur.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw