Nerey v. State
Nerey v. State
Opinion of the Court
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).
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.