Lanier v. Sec'y, Dep't of Corr.

1

NICHOLAS D. LANIER, Applicant, v. SECRETARY, Department of Corrections, Respondent.

No. 8:14-cv-323-SDM-TGW

United States District Court, M.D. Florida, Tampa Division

March 28, 2023

ORDER

STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

Lanier applies under 28 U.S.C. § 2254 for a writ of habeas corpus (Docs. 1 and 3) and challenges his conviction for perjury, for which Lanier is imprisoned for ten years. Numerous exhibits (“Respondent's Exhibit ___”) support the response. (Doc. 10) The respondent admits the application's timeliness (Doc. 24 at 5) but argues that some grounds are unexhausted and procedurally barred. (Doc. 24 at 10-12, 21-23, 28, 30-37, 50-51, 54-55)

I. BACKGROUND^[1]

A prosecutor charged Michael Glenn with first-degree murder armed robbery, and attempted armed robbery. The charges arose from a homicide that occurred during a robbery of two persons attempting to buy drugs. Before trial, Glenn notified the prosecutor that he intended to assert an alibi defense. Glenn claimed that, when the homicide had occurred, he had hosted a barbecue at his home and watched a football game on television. Also, Glenn notified the prosecutor that he intended to call Lanier as a witness at trial.

Before trial, the prosecutor deposed Lanier. After the deposition, Glenn, who was detained, telephoned Derrick Ellis, who telephoned Lanier. During the three-way telephone call recorded by the jail, Glenn and Lanier spoke about Glenn's criminal case (Respondent's Exhibit 1b at 212-21)^[2]:

[Recording:] Hello. This is [a] collect call from Hillsborough County Jail. To accept charges press - to refuse charges press one. Thank you for using T-Medix.

Hello? What's up, (unintelligible). Hey man, I got (unintelligible) f*cked over, man. You got what? . . . What? I got the depo (unintelligible) got typed up. He came out here yesterday, um, the guy subpoenaed us. Hey, ah, you told him about the depo? No, I forgot to ask him. (Unintelligible) all right. (Unintelligible) f*ck, see what's going on (unintelligible).

...

Man, you supposed to tell him straight up, man, man. (Unintelligible) oh, man, you listen (unintelligible) you listen up. Man, this is my sh*t, and see what I said. (Unintelligible) you I didn't, man? Okay (unintelligible) you say I didn't say that. I did say that, bro. You was home doing house arrest, bro. (Unintelligible) football game (unintelligible) I know for a fact you didn't do that (unintelligible). Straight up. (Unintelligible) look at me. I (unintelligible) verify that up, man.

(Unintelligible) man. I got two charges (unintelligible). I fittin' to get ready to go to court at 1:30, man. Yeah. (Unintelligible) same time, you know what I'm saying? You put me down (unintelligible). You need to come up and step up, my man. They got me (unintelligible) they got me (unintelligible). Nick-nick, put me down on the schedule, I will come see you (unintelligible) I work from like six in the morning (unintelligible).

I really need you in court today, man. Bro, (unintelligible) know what's going on, bro. That's what I'm telling you. Lace me up. Lace me all the way up.

...

I said - I told - I told (unintelligible). Look, man, I fittin' to (unintelligible) and hear motions, man. To hear who? To hear my motions, man. (Unintelligible) illegally arrested for (unintelligible). You going to a motion, right? Go ahead, go ahead. Pre-trial and everything, man. (Unintelligible) ain't nothing (unintelligible) going for a motion, ain't it (unintelligible) pre-trial today (unintelligible) pre-trial today. (Unintelligible). Man, man, trial, you know what I'm saying? (Unintelligible) just put me on the schedule (unintelligible). Just [put] me down on the schedule tomorrow (unintelligible).

...

Trying to feed me to the wolves (unintelligible), don't nobody know that? (Unintelligible). Hey, all we have are dreams (unintelligible) other attorneys who [are] willing to take this case (unintelligible). Yeah. (Unintelligible) [took] my money, playing around with it, man. And I got charged - I got charged - everybody else wants 25, 30, 40, 50. Now I got to trying [to] figure out (unintelligible) just for - just for get[ting] on my case. Then he tell me (unintelligible) he going to run with it all the way and get me cleared because he know I ain't do it. (Unintelligible) out to the wolves like that.

...

The subpoena only thing cover for you, man. (Unintelligible) listen, I talked to Morris before I left St. Pete (unintelligible). Morris (unintelligible) told me exactly what [to] say down here. Hey, look here now, man, check this out, man. (Unintelligible). Look (unintelligible) pre-trial (unintelligible) you could be, you know what I'm saying (unintelligible) a good witness for me, man. (Unintelligible) Miranda rights and all that junk, man. You can't just show up in court like that (unintelligible) you hear me? You got to be subpoenaed or you got to be on the docket or something, bro. I just can't show up, walk in there and be, like, “Yeah, yeah, this is really what happened.” [It] don't go like that.

...

I told them exactly what the game plan was, you dig? Yeah, man. I just told him, look, I wasn't able to make it out there to your house to watch the game (unintelligible) b*tch, you dig? I seen that there, man. I seen everything, man.... And I ain't got no attorney, man. You (unintelligible) big conspiracy, dog. I'm playing up against the State, man. All them all against me, man. That's why I ain't (unintelligible) gather facts on my behalf, man. Right, my man, right, my man. I'm pro se. I'm representing myself, man. I got stand-by counsel and an investigator, but I'm pro se right now. ...

[Y]ou don't really know too much about the law like that, bro. Man, (unintelligible) I know enough about the law, man. (Unintelligible) I know these people playing games with me, man. They won't give me no good attorney who really (unintelligible) go out there today. You got to get you [ ] a lawyer. Hey, man, I'm going to get back at you, man. All right, blood. Hey, I love you (unintelligible)....

During the recorded telephone call, Lanier spoke with Glenn about Glenn's former attorney, who withdrew because of a conflict but kept the fee that Glenn paid, and about Mark Moore, the cousin of Martin Moore, who planned to testify on behalf of Glenn at trial. Lanier told Glenn, “I already talked to Mark. He laced me up.” Lanier asked Glenn to “put [him] on the viso,” which meant the visitation list at the jail. Also, Lanier advised Glenn, “You need to talk to your lawyer,” and told him, “Get your lawyer to subpoena me.”

During the murder trial, Glenn represented himself, and Lanier testified on behalf of the defense. Lanier testified that he prepared meat for the barbecue but denied attending the barbecue and denied knowing if Glenn remained at the barbecue when the homicide occurred. On cross-examination, Lanier further denied that he spoke with Glenn on the telephone about Glenn's criminal case (Respondent's Exhibit 1b at 225-29):

[Prosecutor:] Have you ever talked to Mr. Glenn about his case?

[Lanier:] Not really.

[Prosecutor:] You never talked to - you never talked to him on the phone about his case?

[Lanier:] No, not really. I went to see him one time. When you locked up like that you try and keep your case in there, man. What's going on in the outside world, it really is irrelevant.

[Prosecutor:] Mr. Lanier, have you ever talked to Mr. Glenn?

[Lanier:] I just told you.

...

[Prosecutor:] It is simply a yes or no question. Have you ever talked to Michael Glenn on the phone about his case?

[Lanier:] No.

...

[Prosecutor:] You said no, correct?

[Lanier:] Have I ever talked to him about his case? No.

[Prosecutor:] Have you ever talked to Mr. Glenn on the phone?

[Lanier:] What do you mean, like a phone call conversation?

[Prosecutor:] Yes.

[Lanier:] Yeah.

[Prosecutor:] How many times when he was in jail?

[Lanier:] Maybe like once or twice. I just got out of prison. I've been gone myself.

[Prosecutor:] What did you talk about on the phone?

[Lanier:] Good to see you. Glad I'm home, man.

...

[Prosecutor:] Did Mr. Glenn ever talk to you on the phone and get mad at you because you wouldn't verify that he was at the barbecue?

[Glenn:] Plead the Fifth.

[Lanier:] Plead the Fifth.

[Prosecutor:] Excuse me? You mean you're pleading the Fifth Amendment?

[Lanier:] Yeah, I'm pleading the Fifth, tada, tada, tada (stutter).

[Prosecutor:] Isn't it a fact Mr. Glenn wanted you to say you were at the barbecue and that you saw him there?

[Lanier:] I plead the Fifth.

After Lanier denied that he had spoken with Glenn about Glenn's criminal case, the prosecutor introduced into evidence the recorded telephone call to impeach Lanier. (Respondent's Exhibit 1b at 250-51)

An information charged Lanier with perjury for his testimony during Glenn's trial. Lanier exercised his right to a jury trial. At the perjury trial, Lanier testified in his own defense. Lanier testified that during Glenn's trial he felt frustrated and nervous. Lanier claimed that he did not believe that he had discussed Glenn's criminal case with Glenn because Glenn mostly spoke during the telephone call. Lanier claimed that he truthfully responded, “not really,” when the prosecutor asked him if he had spoken with Glenn about Glenn's case. During the telephone call, Lanier wanted Glenn to know that he supported Glenn. Lanier further claimed that his testimony during Glenn's trial was not material because his testimony did not support an alibi. Lanier contended that he asserted his right against selfincrimination under the Fifth Amendment because he did not understand the prosecutor's questions.

II. COGNIZABILITY, EXHAUSTION, AND PROCEDURAL DEFAULT

The respondent argues that ground one, a sub-claim in...