        IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

                                    FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


MARQUIES BRISBANE,

               Petitioner,

 v.                                                    Case No. 5D15-1945

STATE OF FLORIDA,

               Respondent.

________________________________/

Opinion filed May 6, 2016

Petition Alleging Ineffectiveness
of Appellate Counsel,
A Case of Original Jurisdiction.

Marquies Brisbane, Cross City, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Roark Wall,
Assistant Attorney General, Daytona Beach,
for Appellee.



BERGER, J.

        In this habeas petition, Marquies Brisbane alleges ineffective assistance of

 appellate counsel and seeks a new appeal. He argues, inter alia, that counsel was

 ineffective for failing to supplement the record with the transcript of his voir dire

 proceedings. We deny the petition and write only to explain why this court’s opinion in
Zankman v. State, 992 So. 2d 365 (Fla. 5th DCA 2008), does not entitle Brisbane to a

new appeal.

       "A petition for writ of habeas corpus is the proper vehicle for a claim of ineffective

assistance of appellate counsel." Hampton v. State, 178 So. 3d 921, 922 (Fla. 5th DCA

2015) (citing Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)). However, it is well-

settled that claims of ineffective assistance of appellate counsel "may not be used as a

disguise to raise issues which should have been raised on direct appeal or in a

postconviction motion." Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). To

prevail, a petitioner "must demonstrate a specific error or omission that falls outside the

range of acceptable performance, and demonstrate, as well, that the deficiency

compromised the appellate process so as to undermine our confidence in the

correctness of the result." Zankman, 992 So. 2d at 366 (citing Ortiz v. State, 860 So. 2d

1006 (Fla. 5th DCA 2003)). "In the case of appellate counsel, this means the deficiency

must concern an issue which is error affecting the outcome, not simply harmless error."

Freeman, 761 So. 2d at 1069 (quoting Knight v. State, 394 So. 2d 997, 1001 (Fla.

1981)). Additionally, "ineffective assistance of [appellate] counsel cannot be argued

where the issue was not preserved for appeal . . . ." Id. (citing Medina v. Dugger, 586

So 2d 317 (Fla. 1991)). This review parallels the Strickland1 standard for ineffective

assistance of trial counsel. Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985).

       In Zankman, this Court addressed an ineffective assistance of appellate counsel

petition where the defendant contended that his appellate counsel had incorrectly failed

to ensure that the appellate record in his direct appeal was supplemented with a copy of



       1   Strickland v. Washington, 466 U.S. 668 (1984).


                                              2
direct appeal" is insufficient to warrant relief. Instead, Brisbane must show how the

issue was preserved. He could have done so by alleging in his petition that counsel

raised a proper objection at the time the State exercised its peremptory challenge and

again before the jury was sworn, see Denis v. State, 137 So. 3d 583, 585 (Fla. 4th DCA

2014) (explaining that more than an objection to the use of peremptory strike is required

to preserve error), or by simply attaching the voir dire transcript as an appendix. Having

failed to do either, he cannot establish deficient performance. See Davis v. State, 928

So. 2d 442, 447 (Fla. 5th DCA 2006) (restating that appellate counsel cannot be

deemed deficient for not raising issues not preserved (citing Rutherford, 774 So. 2d at

648)).

         PETITION DENIED.

COHEN and EDWARDS, JJ., concur.




                                            5
worthy of a good faith argument . . . ." State v. Causey, 503 So. 2d 321, 322 (Fla.

1987).       Counsel’s statement is meant to "induce the court to pursue all the more

vigorously its own review." Id. (quoting Anders, 386 U.S. at 745). However, this type of

independent review is not required in non-Anders appeals. See, e.g., Hoskins v. State,

75 So. 3d 250, 257 (Fla. 2011) (stating argument not raised in initial brief barred);

Parker-Cyrus v. Just. Admin. Comm’n, 160 So. 3d 926, 928 (Fla. 1st DCA 2015)

(determining issue not raised in the initial petition for appeal abandoned; noting

"[w]ithout strict adherence to this rule, the appellees are left unable to respond in writing

to new issues presented by the appellants, and the filing deadline imposed on the

appellants for their initial brief is rendered meaningless" (quoting Snyder v. Volkswagen

of Am., Inc., 574 So. 2d 1161, 1161-62 (Fla. 4th DCA 1991))); J.A.B. Enters. v.

Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992) ("[A]n issue not raised in an initial

brief is deemed abandoned and may not be raised for the first time in a reply brief.").

Whereas the failure to supplement the record with the transcript of jury selection in

Zankman hindered this court’s independent review, no similar examination of the record

was necessary in Brisbane’s appeal because review was limited to the single issue he

raised. 3

         Therefore, in order to prevail on his claim of ineffective assistance of appellate

counsel for failing to supplement the record, Brisbane must show that the issue –

asserting that the State’s peremptory strike of an African-American venireman was

pretextual – was preserved on appeal. See Freeman, 761 So. 2d at 1069. This he has

failed to do. His bare assertion that the issue was "properly preserved for review on


         3
        See Brisbane v. State, 119 So. 3d 1263 (Fla. 5th DCA 2013) (affirming per
curiam Brisbane's convictions on direct appeal in Case No. 5D12-3009).

                                             4
direct appeal" is insufficient to warrant relief. Instead, Brisbane must show how the

issue was preserved. He could have done so by alleging in his petition that counsel

raised a proper objection at the time the State exercised its peremptory challenge and

again before the jury was sworn, see Denis v. State, 137 So. 3d 583, 585 (Fla. 4th DCA

2014) (explaining that more than an objection to the use of peremptory strike is required

to preserve error), or by simply attaching the voir dire transcript as an appendix. Having

failed to do either, he cannot establish deficient performance. See Davis v. State, 928

So. 2d 442, 447 (Fla. 5th DCA 2006) (restating that appellate counsel cannot be

deemed deficient for not raising issues not preserved (citing Rutherford, 774 So. 2d at

648)).

         PETITION DENIED.

COHEN and EDWARDS, JJ., concur.




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