Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2055 _____________________________ LENARD ANDERSON, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition Alleging Ineffective Assistance of Appellate Counsel— Original Jurisdiction. March 31, 2021 PER CURIAM. Lenard Anderson petitions for relief from his convictions and sentences for manslaughter and possession of a firearm by a convicted felon. He argues that his counsel on direct appeal was ineffective and raises several claims. Finding no merit in his claims, we deny Anderson’s petition on the merits. The standard of review applicable to claims of ineffective assistance of appellate counsel mirrors the Strickland * standard for claims of ineffective assistance of trial counsel. Hernandez v. *Strickland v. Washington, 466 U.S. 668 (1984). State, 180 So. 3d 978, 1021 (Fla. 2015). To prevail on this type of claim, a petitioner must show that “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 that “the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.” Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). The burden is on the petitioner to allege a specific, serious omission or overt act by counsel on “an issue which is an error affecting the outcome” of the appeal and not merely harmless error. Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000) (quoting Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981)). Anderson raises four claims in his petition. We address each in turn. First, Anderson claims that his appellate counsel was ineffective for failing to argue that the three issues raised in his direct appeal under state law also violated federal law. He asserts that had his counsel made an argument under federal law, there is a reasonable probability that the outcome of the appeal would have been different. And had counsel made such an argument, Anderson could have then presented his federal law claims to a federal court in a petition for writ of habeas corpus. This claim fails because Anderson cannot show prejudice. Anderson does not explain how arguing under federal law the same arguments his counsel advanced under state law in his direct appeal would have changed the outcome of his appeal. Even so, Anderson contends that his counsel’s failure to make these arguments bars him from raising the federal law claims in a habeas petition filed with the federal court. Anderson is wrong. To exhaust state remedies and preserve a claim for federal review, a defendant need only present the substance of a federal constitutional claim to the state courts. See Picard v. Connor, 404 U.S. 270, 278 (1971). Because his counsel’s failure to raise the federal claims on direct appeal does not hamper his ability to seek relief in federal court, Anderson has not shown prejudice and cannot prevail on this claim. See Pardo v. State, 941 So. 2d 1057, 1072–73 (Fla. 2006) (explaining that if a defendant cannot establish one prong of an ineffective assistance of counsel claim, the court need not address the other prong). 2 Second, Anderson asserts that his counsel was ineffective for failing to argue that the trial court erred by overruling Anderson’s objection to the admission of two photographs. Anderson argues that appellate counsel should have argued that the trial court should not have allowed admission of the photographs because they were not taken on the date of the charged offenses. Trial counsel objected to the admission of the photographs on grounds that they could not be authenticated, but not on grounds that they were taken on a date other than the date of the charged offenses. Thus, trial counsel did not preserve any argument about the date the photographs were taken. So the issue was procedurally barred on appeal because it was not raised at trial and did not present a question of fundamental error. See Downs v. Moore, 801 So. 2d 906, 910 (Fla. 2001). For this reason, Anderson’s appellate counsel cannot be considered ineffective as to this claim. Third, Anderson claims that appellate counsel was ineffective for not arguing trial court error based on the court’s denial of Anderson’s motion to suppress Annietorvis English’s identification of him. Anderson asserts that the police obtained English’s identification through an impermissibly suggestive procedure. But even if true, Anderson cannot show any prejudice from the trial court’s decision not to suppress the identification. English did not identify Anderson as the shooter. She testified only that she saw Anderson at the club—a fact that was not disputed. Because no prejudice flowed from English’s identification of Anderson, he cannot prevail on this claim, either. See Pardo, 941 So. 2d at 1073. Fourth, Anderson contends that his appellate counsel was ineffective for not arguing another, similar claim of trial court error—that the court erred when it denied his motion to suppress the pretrial and in-court identification of Anderson by Joshua Duncan. Before his initial identification of Anderson, Duncan had given the police a description of the shooter, but twice failed to pick Anderson out of a photographic line-up. But when a detective showed Duncan a picture of Anderson wearing a red hat at the club, which matched Duncan’s previous description of the shooter, Duncan identified Anderson as the shooter. Duncan admitted that he lied when he said he could not identify the shooter from the lineup and that he knew who the shooter was the whole time. At the suppression hearing, the State described the picture Duncan 3 saw as small and fuzzy with most of Anderson’s features obscured. The trial court denied the motion because Duncan testified that he could have identified Anderson as the shooter all along. This claim fails, too. Duncan had a brief chance to see a picture of Anderson in a red hat. Even so, he testified that he could have identified Anderson all along and lied when he said he could not. Thus, the trial court did not err in denying the suppression motion because Duncan’s failure to identify Anderson in the photographic line-up affected only the weight to be given to his pretrial and in-court identifications of Anderson, not their admissibility. See Perez v. State, 539 So. 2d 600, 601 (Fla. 3d DCA 1989) (holding that weaknesses in eyewitness identification and photographic display “went to the weight, not the admissibility, of the photographic identification”). And appellate counsel cannot be considered ineffective for not raising on appeal the trial court’s ruling on the suppression motion. For these reasons, we DENY the petition on its merits. ROWE, MAKAR, and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ William Mallory Kent of Kent & McFarland, Jacksonville; and Lenard Anderson, pro se, Petitioner. Ashley Moody, Attorney General, Tallahassee, for Respondent. 4