ELLINGBURG v. STATE (2021)

Patrick Glenn Ellingburg petitions for relief from his convictions and sentences for robbery with a firearm, grand theft, and aggravated assault with a firearm. He asserts that counsel in his direct appeal rendered ineffective assistance when he failed to argue that the trial court should have excused two jurors on the court's own motion. We deny the petition on the merits.

Our standard of review for a claim for ineffective assistance of appellate counsel mirrors the Strickland * standard for claims of ineffective assistance of trial counsel. See Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985). To prevail on such a claim, a “[p]etitioner must show 1) specific errors or omissions which show that appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine the confidence in the fairness and correctness of the appellate result.” Id. It is the petitioner's burden to allege specific, serious omissions by appellate counsel about an issue “which is error affecting the outcome, not simply harmless error.” See Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981).

Ellingburg did not meet his burden here. His trial counsel did not seek to strike the jurors that Ellingburg now alleges were biased. Even so, Ellingburg does not allege that the trial court fundamentally erred by not striking the two jurors on its own motion. And even if he had, there was no fundamental error because Ellingburg has not shown that the jury that served was biased. See Jenkins v. State, 824 So. 2d 977, 981–82 (Fla. 4th DCA 2002); Pryear v. State, 243 So. 3d 479, 482–83 (Fla. 1st DCA 2018) (explaining that trial counsel's failure to object a juror is not normally a basis for postconviction relief “because the prejudice prong cannot be proven absent some indication that the jury that actually served was biased”). And so, Ellingburg's appellate counsel was not ineffective for failing to raise issues that are procedurally barred because they were not raised at trial and do not present a question of fundamental error. See Downs v. Moore, 801 So. 2d 906, 910 (Fla. 2001). For these reasons, we deny the petition on the merits.

Denied.

FOOTNOTES

FOOTNOTE.   Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).

Per Curiam.

Rowe, Makar, and Osterhaus, JJ., concur.