Lanier v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDURAT

TAMPA DIVISION

NICHOLAS D. LANIER,

Applicant,

v. CASE NO. 8:14-cv-323-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

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. BACKGROUND1

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

1 This summary of the facts derives from the briefs on direct appeal (Respondent’s Exhibits 2

and 3) and the trial transcripts.

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.

2 The trial transcript does not identify the speakers on the recording, and the record contains

no other transcript that identifies the speakers.

(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

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.

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 self-

incrimination 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 ground two, ground

four, ground five, ground six, ground seven, ground eight, and ground nine are

procedurally barred from federal review because Lanier failed to exhaust the claims.

(Doc. 24 at 10–12, 21–23, 28, 30–37, 50–51, 54–55) “[E]xhaustion of state remedies

requires that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to

give the State the ‘opportunity to pass upon and correct’ alleged violations of its

prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard

v. Connor, 404 U.S. 270, 275 (1971)). “To provide the State with the necessary

‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state

court (including a state supreme court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,

29 (2004) (citing Henry, 513 U.S. at 365–66).

Ground One:

Lanier asserts that trial counsel was ineffective for not arguing in an expanded

motion for judgment of acquittal that the prosecutor failed to prove that the recorded

telephone call contained Lanier’s voice. (Doc. 1 at 5–6) Lanier raised this claim as

ground four in his motion for post-conviction relief and as issue four in his brief on

post-conviction appeal. (Respondent’s Exhibit 6 at 42–45 and Exhibit 7 at 14–15) In

both his motion and his appellate brief, Lanier cited Strickland v. Washington, 466

U.S. 668 (1984). (Respondent’s Exhibit 6 at 42 and Exhibit 7 at 6) Ground one is

exhausted.3

Ground Two:

Lanier asserts that trial counsel was ineffective for not objecting during trial to

the admission of a trial court docket sheet because the prosecutor violated the rules

governing discovery by failing to disclose the document before trial. (Doc. 1 at 7)

(“Ineffective Assistance of Counsel Claim”) He further asserts that the prosecutor

violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the document to

the defense before trial. (Doc. 3 at 13–14) (“Brady Claim”)

The respondent asserts that the Brady claim is unexhausted and procedurally

barred. (Doc. 24 at 21–22) Lainer raised the Brady claim in neither his brief on

direct appeal, nor his motion for post-conviction relief, nor his brief on

post-conviction appeal. (Respondent’s Exhibit 2, Exhibit 6 at 39–40, and Exhibit 7

at 11–12) Lanier is barred from raising the Brady claim in a successive Rule 3.850

motion. Fla. R. Crim. P. 3.850(b), (h). The Brady claim in ground two is

unexhausted.

3 The respondent argues that the ground is procedurally barred because the State of Florida

asserted that Lanier raised an unpreserved claim on post-conviction appeal. (Doc. 24 at 10–11) The

State of Florida contended that Lanier asserted for the first time on appeal that trial counsel was

ineffective for not arguing that the prosecutor failed to present eyewitness testimony and physical

evidence to prove guilt. (Respondent’s Exhibit 8 at 28) Because Lanier does not present that claim in

Ground One, the State of Florida’s assertion of lack of preservation on post-conviction appeal does

not bar federal review. (Docs. 1 at 5–6 and 3 at 8–12)

Ground Four:

Lanier asserts that trial counsel was ineffective for not objecting to an

irrelevant and inflammatory question by the prosecutor during the cross-examination

of Lanier about his insulting behavior toward a woman named Georgia Peach.

(Doc. 1 at 11) Lanier raised this claim as ground three in his motion for

post-conviction relief and as issue three in his brief on post-conviction appeal.

(Respondent’s Exhibit 6 at 40–42 and Exhibit 7 at 12–14) In both his motion and his

appellate brief, Lanier cited Strickland. (Respondent’s Exhibit 6 at 41 and Exhibit 7

at 6) Ground four is exhausted.

Ground Five, Ground Six, Ground Seven, and Ground Eight:

In ground five Lanier asserts that the trial court violated his federal right to

due process because the prosecutor failed to prove that the recorded telephone call

contained Lanier’s voice and that Lanier’s testimony during Glenn’s trial was false.

(Docs. 1 at 12–13 and 3 at 25–30) In ground six Lanier asserts that the trial court

violated his federal right to due process because the prosecutor failed to prove that

Lanier’s testimony during Glenn’s trial was material. (Docs. 1 at 15 and 3 at 31 at

34) In ground seven Lanier asserts that the trial court violated his federal right to due

process during trial by admitting into evidence transcripts of Lanier’s deposition in

Glenn’s case. (Docs. 1 at 16– 17 and 3 at 35–37) In ground eight Lanier asserts that

the trial court violated his federal right to due process during trial by admitting

evidence that he insulted Georgia Peach. (Docs. 1 at 18–19 and 3 at 38–40)

Lanier presented similar claims as four issues on direct appeal but presented

those issues under state law and not as the violation of a federally protected right.

(Respondent’s Exhibit 2) The failure to alert the state appellate court of the claim

that the trial court violated a federally protected right fails to meet the exhaustion

requirement. Henry, 513 U.S. at 366 (“If a habeas petitioner wishes to claim that an

evidentiary ruling at a state court trial denied him the due process of law guaranteed

by the Fourteenth Amendment, he must say so, not only in federal court, but in state

court.”); Preston v. Sec’y, Fla. Dep’t Corrs., 785 F.3d 449, 460 (11th Cir. 2015)

(“[S]imply mentioning a phrase common to both state and federal law, like

‘sufficiency of the evidence,’ cannot constitute fairly presenting a federal claim to the

state courts.”).

In support of a sufficiency-of-the-evidence claim similar to the federal due

process claim in ground five of his federal petition, Lanier cited Bronston v. United

States, 409 U.S. 352 (1973), and United States v. Michael, 17 F.3d 1383 (11th Cir.

1994), in his brief on direct appeal. (Respondent’s Exhibit 2 at 25–26) However,

Bronston, 409 U.S. at 357, construed the federal statute criminalizing perjury, and

Michael, 17 F.3d at 1385, reviewed a federal due process claim based on a

prosecutor’s presentation of false testimony during trial. In ground five Lanier

asserts a federal due process claim based on the sufficiency of evidence. (Doc. 1 at

12–13) See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (“[An] applicant is entitled to

habeas corpus relief if it is found that upon the record evidence adduced at the trial

no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”).

Because Lanier neither mentioned nor argued the standard governing a federal due

process claim based on the sufficiency of evidence in his brief on direct appeal, he

failed to fairly present the federal claim. (Respondent’s Exhibit 2 at 25–26) McNair

v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (“We therefore hold that ‘[t]he

exhaustion doctrine requires a habeas applicant to do more than scatter some

makeshift needles in the haystack of the state court record.’”) (quoting Kelley v. Sec’y,

Dep’t Corrs., 377 F.3d 1317, 1345 (11th Cir. 2004)). Ground five, ground six, ground

seven, and ground eight are unexhausted.

Ground Nine:

In ground nine Lanier asserts that fundamental error arose from the admission

of testimony by a witness who opined on Lanier’s guilt and compared Lanier’s

conduct to conduct by other witnesses who committed perjury. (Docs. 1 at 20 and 3

at 41–44) In a memorandum, Lanier supports the claim with citations to opinions by

federal courts of appeal and the United States Supreme Court reviewing federal due

process claims based on prosecutorial misconduct. (Doc. 3 at 41–44)

A fundamental error claim asserts a violation of state law. Pinkney v. Sec’y,

Dep’t Corrs., 876 F.3d 1290, 1299 (11th Cir. 2017). “In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution,

laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

“This limitation on federal habeas review is of equal force when a petition, which

actually involves state law issues, is ‘couched in terms of equal protection and due

process.’” Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (citation omitted).

Because the fundamental error claim in ground nine does not assert the violation of a

federally protected right, the claim is not cognizable in federal court.

Also, in his brief on direct appeal, Lanier raised the fundamental error claim

and asserted in the last paragraph of his brief that the admission of the testimony

“denied [ ] his rights to due process and to a fair trial under the United States and

Florida Constitutions.” (Respondent’s Exhibit 2 at 35–36) Because Lanier neither

mentioned nor argued in his brief on appeal the standard governing a federal due

process claim based on the improper admission of evidence, he failed to fairly

present a federal claim. (Respondent’s Exhibit 2 at 35–36) McNair, 416 F.3d

at 1303. See Blackburn v. State of Ala., 361 U.S. 199, 206 (1960) (“[T]he Fourteenth

Amendment forbids ‘fundamental unfairness in the use of evidence whether true or

false.’”) (citation omitted); Leverett v. Spears, 877 F.2d 921, 925 (11th Cir. 1989) (“The

standard in determining whether the admission of prejudicial evidence constitutes

a denial of fundamental fairness is whether the evidence is ‘material in the sense of

a crucial, critical, highly significant factor.’”) (citation omitted). Lanier’s reference to

his federal rights in the last paragraph of his brief did not suffice. (Respondent’s

Exhibit 2 at 36)

The Brady claim in ground two, ground five, ground six, ground seven, ground

eight, and ground nine are barred from federal review absent a showing of either

“actual cause and prejudice” or a “fundamental miscarriage of justice.” Coleman

v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier, 477 U.S. 478, 496 (1986).

Lanier proffers no specific facts to establish either. Consequently, the Brady claim in

ground two, ground five, ground six, ground seven, ground eight, and ground nine

are procedurally barred from federal review.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 governs this

proceeding. Wilcox v. Fla. Dep’t Corrs., 158 F.3d 1209, 1210 (11th Cir. 1998). Section

2254(d), which creates a highly deferential standard for federal court review of a state

court adjudication, states:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential

standard:

In sum, § 2254(d)(1) places a new constraint on the power of

a federal habeas court to grant a state prisoner’s application for

a writ of habeas corpus with respect to claims adjudicated on

the merits in state court. . . . Under the “contrary to” clause,

a federal habeas court may grant the writ if the state court

arrives at a conclusion opposite to that reached by this Court on

a question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from this Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s

case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). The phrase “clearly established Federal law” encompasses

only the holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Williams, 529 U.S. at 412.

“[AEDPA] modified a federal habeas court’s role in reviewing state prisoner

applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court

convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 694.

“AEDPA prevents defendants — and federal courts — from using federal habeas

corpus review as a vehicle to second-guess the reasonable decisions of state courts.”

Renico v. Lett, 559 U.S. 766, 779 (2010). Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the benefit of

the doubt’ . . . .”) (citations omitted).

When the last state court to decide a federal claim issues an explanatory and

reasoned opinion, a federal habeas court reviews the specific reasons in the opinion

and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018). When the relevant state-court decision is not accompanied with

reasons for the decision, the federal court “should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale

[and] presume that the unexplained decision adopted the same reasoning.” Wilson,

138 S. Ct. at 1192. A respondent may contest “the presumption by showing that the

unexplained affirmance relied or most likely did rely on different grounds than the

lower state court’s decision . . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court

affirmed the denial of Lanier’s Rule 3.850 motion for post-conviction relief.

(Respondent’s Exhibit 10) A state appellate court’s per curiam decision without a

written opinion warrants deference under Section 2254(d)(1). Wright v. Sec’y, Dep’t

Corrs., 278 F.3d 1245, 1254 (11th Cir. 2002). Richter, 562 U.S. at 100 (“When a

federal claim has been presented to a state court and the state court has denied relief,

it may be presumed that the state court adjudicated the claim on the merits in the

absence of any indication or state-law procedural principles to the contrary.”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to

a state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

“[A] determination of a factual issue made by a State court shall be presumed to be

correct.” 28 U.S.C. § 2254(e)(1). Lanier bears the burden of rebutting that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The

presumption applies to a finding of fact but not to a mixed determination of law and

fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). Lanier’s federal application

presents the same grounds that he presented to the state court. The state court’s

rejection of Lanier’s claims warrants deference in this federal action. (Respondent’s

Exhibit 6 at 72–83 and Exhibit 6a at 436–38)

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Lanier claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386

(11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains

that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

performance prejudiced the defense. This

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

“There is no reason for a court deciding an ineffective assistance claim . . .

to address both components of the inquiry if the defendant makes an insufficient

showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” 466 U.S. at 690. “[A] court deciding an

actual ineffectiveness claim must judge the reasonableness of counsel’s challenged

conduct on the facts of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances,

the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Lanier must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. To meet this burden, Lanier must show

“a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” 466 U.S. at 694.

Lanier cannot meet his burden by showing that the avenue chosen by counsel

proved unsuccessful. White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992).

Strickland cautions that “strategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690–91.

Sustaining a claim of ineffective assistance of counsel under Section 2254(d)

is very difficult because “[t]he standards created by Strickland and § 2254(d) are both

‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”

Richter, 562 U.S. at 105. Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303

(11th Cir. 2019) (“Given the double deference due, it is a ‘rare case in which an

ineffective assistance of counsel claim that was denied on the merits in state court is

found to merit relief in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t

Corrs., 643 F.3d 907, 911 (11th Cir. 2011)).

In denying Lanier’s Rule 3.850 motion for post-conviction relief, the state

court recognized that Strickland governs a claim of ineffective assistance of counsel.

(Respondent’s Exhibit 6 at 73–74) Because the state court rejected the grounds based

on Strickland, Lanier cannot meet the “contrary to” test in Section 2254(d)(1). Lanier

instead must show that the state court either unreasonably applied Strickland or

unreasonably determined a fact. In determining “reasonableness,” Section 2254(d)

authorizes determining only “whether the state habeas court was objectively

reasonable in its Strickland inquiry” and not independently assessing whether

counsel’s actions were reasonable. Putman v. Head, 268 F.3d 1223, 1244 n.17

(11th Cir. 2001). The presumption of correctness and the highly deferential standard

of review require that the analysis of each ground begin with the state court’s

analysis.

A. Grounds of IAC Before and During Trial

Ground One:

Lanier asserts that trial counsel was ineffective for not arguing in an expanded

motion for a judgment of acquittal that the prosecutor failed to prove that the

telephone call recorded by the jail contained Lanier’s voice. (Doc. 1 at 5–6) The

post-conviction court denied the claim as follows (Respondent’s Exhibit 6 at 82–83)

(state court record citations omitted):

. . . Defendant alleges ineffective assistance of counsel for

failure to move for an adequate judgment of acquittal.

Specifically, Defendant contends that counsel should have

moved for a judgment of acquittal on the basis that the State’s

evidence was insufficient to establish that Defendant was one of

the speakers on the three-way call. More specifically,

Defendant contends that the only evidence presented to suggest

that Defendant was one of the three speakers on the call was

[testimony by] Assistant State Attorney Covington who was not

a voice-recognition expert or a party to the conversation.

Because the evidence was insufficient to establish that

Defendant had been one of the speakers [on] the call,

Defendant contends, counsel should have argued such in an

adequate motion for judgment of acquittal at the close of the

State’s evidence. Had counsel argued such, Defendant

contends, there is a reasonable probability the judgment of

acquittal would have been granted, thereby affecting the

outcome of Defendant’s trial, or alternatively, this issue would

have been preserved for appeal.

The Court notes that voice recognition testimony is admissible

as positive proof of identity. See England v. State, 940 So. 2d 389,

401 (Fla. 2006). Moreover, such recognition testimony may be

offered through lay witnesses, and does not require a voice

recognition expert or party to the conversation. See State v.

Benton, 567 So. 2d 1067, 1068 (Fla. 2d DCA 1990) (noting that

of another person, including identification of a voice”). In the

present case, there was witness testimony identifying Defendant

by voice. The Court finds there was sufficient evidence at trial

to establish that Defendant had been identified by voice as a

speaker [on] the call, and thus there was no valid basis for a

motion for judgment of acquittal on that basis. Additionally,

the Court finds that, even if such a motion had been argued by

counsel, it would not have been granted based on the evidence

presented at trial, and thus Defendant cannot show a

reasonable probability that the outcome of his trial would have

been different but for counsel’s failure to raise this argument in

his motion for judgment of acquittal. For these reasons, the

Court finds that counsel cannot be deemed deficient under

these circumstances as alleged, nor can Defendant demonstrate

prejudice as a result [of] this alleged deficiency. Consequently,

Defendant warrants no relief on this claim . . . .

Whether a lay witness may identify a voice on a recording is an issue of state

law, and a state court’s determination of state law receives deference in federal court.

Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985) (“The federal courts must

defer to a state court’s interpretation of its own rules of evidence and procedure.”).

“When a witness is previously familiar with a defendant, they are permitted to

identify the voice of the defendant as a lay witness.” Johnson v. State, 252 So. 3d

1114, 1117 (Fla. 2018). “[A] familiarity with a defendant’s voice acquired during an

ongoing investigation may constitute the requisite prior special familiarity for voice

identification testimony.” Johnson, 252 So. 3d at 1118. See also State v. Cordia,

564 So. 2d 601, 602 (Fla. 2d DCA 1990) (holding that “witnesses [who identify the

defendant] should be either eyewitnesses or else capable of independently identifying

the individual from photographs, tape recordings, or similar evidence.”) (italics in

original).

At the perjury trial, a prosecutor from Glenn’s case identified Lanier’s voice

after listening to hundreds of recorded telephone calls and deposing Lanier

(Respondent’s Exhibit 1b at 206–11):

[Prosecutor:] Now, sir, you talked about listening to this

jail call. For this particular case, did you

only listen to one jail call?

[Witness:] I listened to hundreds of jail calls, and

they were all provided to the defendant at

that time, Mr. Glenn.

[Prosecutor:] About how long would say you spent

listening [to] these jail calls?

[Witness:] Hours and hours and hours. These jail

calls could be a maximum of twenty

minutes and I believe each jail call was

very close to twenty minutes long.

. . .

[Prosecutor:] My point about this is did there come

a time when you were actually able to

recognize voices and people on these

calls?

[Witness:] Yes.

[Prosecutor:] Are you or were you able to recognize

Mr. Glenn’s voice himself?

[Witness:] I was intimately familiar with Mr. Glenn’s

voice.

[Prosecutor:] This particular jail call that we’ve been

talking about, you said that it was a

three-way call?

[Witness:] Yes.

[Prosecutor:] What does that mean?

[Witness:] That means Mr. Glenn called the

individual by the name of Derrick Ellis,

he asked Little D to get him in touch with

Mr. Lanier, and I don’t know how [you

do] it, you do something on the phone

that allows you to talk to three people at

the same time.

[Prosecutor:] Do you recognize the person that

Mr. Glenn initially called, Derrick Ellis?

[Witness:] Yes, I had heard calls with Mr. Ellis

before.

[Prosecutor:] So are you and were you able to

distinguish between Glenn’s friend [and]

who this Little D was, [that] this is this

person calling?

[Witness:] Yes. And he would always basically refer

to them by name, something like that.

[Prosecutor:] Do you become familiar with the way that

Mr. Glenn would speak?

[Witness:] Yes.

[Prosecutor:] And did he ever use slang, certain terms

and slang and things like that?

[Witness:] Yes.

[Prosecutor:] Mr. Glenn’s vocabulary?

[Witness:] Yes.

. . .

[Prosecutor:] And the date of that call, do you recall

when that call was made?

[Witness:] I know it was after Mr. Lanier’s

deposition. I believe it was in August of

2005.

. . .

determine who was on that call?

[Witness:] Mr. Glenn made the call from jail. Yes,

I can determine that.

[Prosecutor:] Who — who were the players on that call?

[Witness:] Mr. Glenn made a call — made the call

from jail to Little D, Derrick Ellis, who

made a three-way call to Nino or Nicholas

Lanier.

The trial court overruled trial counsel’s objection to the admission of the

recorded telephone call as follows (Respondent’s Exhibit 1b at 191–92):

[Judge:] While we’re at it, why don’t we go ahead

and discuss the contents of the jail call.

What are your objections, Mr. Ragano, to

[the] contents, i.e., transcript of this jail

call?

[Trial counsel:] Yes, Your Honor. The contents of the jail

call — first of all, Michael Glenn is one of

the assumed — one of the speakers on the

jail call, hearsay, number one with

Michael Glenn; number two, as

Ms. Silver pointed out, it’s very hard to

decipher who is what, identifying the role

of which speaker. I can’t even tell where

my client is on the jail call. So, I object to

hearsay, I object to it’s prejudicial, it’s

misleading, it’s confusing. And as to

proving up, I’m not sure how they’re

going to prove up who is actually — as far

as authenticating who the speaker is

because I never met Mr. Glenn in my life.

I don’t know who he is, and I can’t tell

who Mr. Lanier is on the phone call, the

jail calls. So those are my objections in

a nutshell, Your Honor.

[Judge:] All right, hearsay as to Mr. Glenn

overruled. Mr. Glenn is not on trial and so

—

asserted, specifically in the amended

information, “Have you ever talked to

Mr. Glenn on the phone about his case?”

[Judge:] Overruled.

[Trial counsel:] I guess Your Honor would have to hear it

in camera to really understand what my

problem —

[Judge:] Oh, I understand your problem. I’m

already thinking ahead. Your client’s

going to take the stand.

[Trial counsel:] Yes. And then they can use that,

obviously.

[Judge:] Yes.

[Trial counsel:] I know what they’re going to do.

[Judge:] The other objections are overruled as well

at this point. . . . Clearly, the finder of fact

has the responsibility to make

conclusions, reach conclusions. Those

conclusions remain entirely subject to

their discretion. There may be confusing

aspects as to who is speaking at times.

That is for the jury to determine. That

goes to the weight to be afforded the

evidence, not the admissibility itself at this

time. . . .

When moving for a judgment of acquittal, a defendant “‘admits not only the

facts stated in the evidence adduced, but also admits every conclusion favorable to

the adverse party that a jury might fairly and reasonably infer from the evidence.’”

Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (citation omitted).4 The witness

4 At the perjury trial, Lanier testified and admitted that he spoke with Glenn during the

telephone call. (Respondent’s Exhibit 1b at 265) However, “‘[t]he State may not rely on evidence

presented in the defense’s case to supply the missing elements necessary to prove its case.’” Rodriguez

v. State, 335 So. 3d 168, 171 (Fla. 3d DCA 2021) (citation omitted).

identified Lanier’s voice after listening to hundreds of telephone calls and deposing

Lanier. Johnson, 252 So. 3d at 1118. Because the witness competently testified that

the recorded telephone call contained Lanier’s voice, a motion for judgment of

acquittal would not succeed, and the post-conviction court did not unreasonably

deny the claim. Meders v. Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354

(11th Cir. 2019) (“It is not ineffective assistance of counsel to fail to make an

objection that is not due to be sustained.”). Ground one is denied.

Ground Two:

Lanier asserts that trial counsel was ineffective for not objecting during trial to

the prosecutor’s use of a trial court docket sheet to refresh a witness’s recollection

because the prosecutor violated the rules governing discovery by failing to disclose

the document before trial. (Doc. 1 at 7) The post-conviction court denied the claim

as follows (Respondent’s Exhibit 6 at 75–78) (state court record citations omitted):

. . . Defendant alleges ineffective assistance of counsel for

failure to object to a discovery violation. Specifically,

Defendant contends that, at trial, “the State introduc[ed] a copy

of a computer record case management system’s document

regarding the case events of outgoing calls made by murder-

Defendant Glenn in which was alleged to have been made to

the Defendant through another party on the date in question.”

Although counsel objected on the grounds that he had never

seen the document before, resulting in the court allowing use of

the evidence to refresh the State’s witness’s recollection only as

to the date of the jail call, Defendant contends that counsel

should have objected to the State’s discovery violation for

failure to provide such to the defense in a timely manner, and

should have moved for a Richardson5 hearing, which would

have resulted in further inquiry by the court. But for counsel’s

deficiencies, Defendant contends this issue would have been

5 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

outcome of Defendant’s trial would have been different.

The Court first notes that Defendant is alleging that counsel’s

alleged deficiency prejudiced Defendant because, but for the

alleged deficiency, this issue would have been preserved for

appeal. A defendant alleging such, however, is unable to

demonstrate the necessary prejudice under Strickland.

See Strickland, 466 U.S. [ ] at 686–87. Specifically, a defendant

alleging ineffective assistance of counsel for failure to raise an

objection and thus failure to preserve the issue for appeal

cannot demonstrate the necessary prejudice for relief on such

an allegation. See Diaz v. State, 980 So. 2d 1275, 1278 (Fla. 4th

DCA 2008) (explaining that focus on the prejudice prong of

Strickland in motions for post-conviction relief “is on the effect

of defense counsel’s deficient performance on the original trial

outcome, and not on whether the defendant could have

prevailed on appeal if an objection had been raised”). “The

prejudice in counsel’s deficient performance is assessed based

upon its effect on the results at trial, not on its effect on appeal.”

Strobridge v. State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009);

see e.g., Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007). As

Defendant cannot demonstrate prejudice as a result of counsel’s

alleged deficiency, Defendant warrants no relief on this portion

of his allegation [ ].

As to his implied assertion that counsel’s alleged deficiency

prejudiced Defendant by affecting the outcome of his trial, the

Court disagrees. Specifically, this Court does not find there

to be a reasonable probability that the outcome of Defendant’s

trial would have been different had counsel continued to object

to the use of the case management system’s document on the

basis of an alleged discovery violation. A review of the record

reflects that, at trial, the State used a copy of a case

management system’s document to refresh a witness’s

recollection about a date, and defense counsel objected on the

basis that he had not yet seen the document:

[Prosecutor:] And the date of that call, do you

recall when that call was made?

[Witness:] I know it was after [Defendant’s]

deposition. I believe it was in

August of 2005.

[Prosecutor:] Do you recall if that call was made

on the pre-trial conference date?

[Witness:] Yes, it was made on the pre-trial

conference date . . . .

[Prosecutor:] Would looking at the copy of the

case system’s document regarding

the case events help you recall

[when] the jail call [ ] was made?

[Witness:] It might.

[Trial counsel:] I object, Your Honor, I have not

seen that particular document.

[Judge:] This particular evidence is marked

as what?

[Prosecutor:] It’s marked as evidence, Judge. I’m

using it merely to attempt to

refresh a witness’s recollection.

[Judge:] Well, has Mr. Covington identified

any document that might refresh

his recollection with respect to this

very point? . . . Mr. Covington, is

there any document that would in

some form or fashion refresh your

recollection as to the date of this

conversation that’s on this CD?

[Witness:] Your Honor, [the State] asked me

about a specific trial date. Yes,

there’s a specific pre-trial date. This

document would probably refresh

my recollection as a record that we

keep in our office.

[Court:] Very good. Let’s mark this

document identified. Show it to

[trial counsel] and then proceed.

[Prosecutor:] Your Honor, may I approach the

witness?

[Judge:] You may.

purposes as State’s Exhibit 6-A.

Mr. Covington, if you could just

look at that document and see

whether it refreshes your

recollection.

[Witness:] Okay.

[Prosecutor:] Does it refresh your recollection?

[Witness:] Yes.

[Prosecutor:] What was the date that jail call was

made?

[Witness:] I believe it’s August 23rd of 2005.

The Court finds that counsel raised an adequate objection to

the use of this evidence, and finds that further objection and

argument that this amounted to a “discovery violation” was

unwarranted under these facts. In Defendant’s trial, when a

witness stated that a particular phone call occurred “in August

of 2005,” the State used a copy of a case management system’s

document to refresh that witness’s recollection only as to the

specific date, “August 23rd of 2005.” Defense counsel objected

on the basis of not having previously seen this document, and

this Court does not find there to be a reasonable probability

that the outcome of Defendant’s trial would have been different

had counsel continued to object to this alleged discovery

violation and sought a Richardson hearing on this basis.

See e.g., Wuornos v. State, 644 So. 2d 1000, 1006 (Fla. 1994);

Wilson v. State, 789 So. 2d 1127, 1130 (Fla. 2d DCA 2001).

Consequently, Defendant cannot demonstrate prejudice, nor

does the Court find counsel to have been ineffective as alleged.

As such, Defendant warrants no relief on this allegation [ ].

In his post-conviction motion, Lanier did not allege prejudice under Strickland

to support his claim (Respondent’s Exhibit 6 at 40) (citations omitted):

Florida courts [have] long held when a defendant fails to timely

object to a discovery violation or request a Richardson hearing,

the defendant does not preserve the point for appellate review.

It is essential that the defendant either raise a timely objection

or request a hearing to allow the trial court to specifically rule

on the issue. Under these facts, the trial court was hardly given

But for counsel’s failure, the court would have been obligated to

conduct a further inquiry.

Because Lanier failed to allege that “there [was] a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” the post-conviction court did not unreasonably apply Strickland.

Strickland, 466 U.S. at 694. Daniel v. Comm’r, Ala. Dep’t Corrs., 822 F.3d 1248, 1260

(11th Cir. 2016) (“Summary dismissals [for failure to state a claim] are adjudications

on the merits and subject to AEDPA review.”) (citing Borden v. Allen, 646 F.3d 785,

808 (11th Cir. 2011)).

Also, whether an objection under Richardson would succeed is an issue of state

law, and a state court’s determination of state law receives deference in federal court.

Machin, 758 F.2d at 1433. Rule 3.220(b)(1)(K), Florida Rules of Criminal Procedure,

requires the prosecutor to timely disclose to the defense “any tangible papers or

objects that the prosecuting attorney intends to use in the hearing or trial and that

were not obtained from or that did not belong to the defendant.”

“A Richardson hearing is required when there is a possible discovery violation in

order to flesh out whether there has indeed been a discovery violation.” Joseph

v. State, 336 So. 3d 218, 231 (Fla. 2022) (citation and internal quotation marks

omitted and italics in original). “During a Richardson hearing, the trial court must

inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial

or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.”

Andres v. State, 254 So. 3d 283, 293 (Fla. 2018) (citation and internal quotation marks

omitted).

During trial, the prosecutor from Glenn’s case could not remember the exact

day when the jail recorded the telephone call.6 (Respondent’s Exhibit 1b at 209)

The prosecutor testified that the recording of the telephone call coincidentally

occurred on the date when the attorneys attended a pre-trial conference.

(Respondent’s Exhibit 1b at 209) The prosecutor refreshed his recollection by

reviewing a “copy of the case management system’s document regarding the case

events,” that is, a trial court docket sheet. (Respondent’s Exhibit 6b at 209) After

reviewing the docket sheet, the prosecutor testified that the jail recorded the

telephone call on August 23, 2005. (Respondent’s Exhibit 6b at 210–11)

Because the prosecutor in Lanier’s case did not anticipate the need to use the

docket sheet to refresh the witness’s recollection, the prosecutor’s failure to disclose

the document before trial was inadvertent. Delhall v. State, 95 So. 3d 134, 161–62

(Fla. 2012) (“[D]efense counsel’s explanation for not providing the booking sheet in

discovery was essentially that he could not have anticipated that the State would

demand evidentiary proof of the jail stay when Wadada was on the witness stand.

Thus, it appears that even though defense counsel could have provided the booking

sheet prior to Delhall’s testimony, counsel’s failure to do so was not clearly shown to

be willful nondisclosure.”). Also, because the prosecutor did not introduce the

6 At trial, the parties stipulated to the authentication of the telephone call recorded by the

jail. (Respondent’s Exhibit 1b at 189–91)

docket sheet into evidence and instead only used the docket sheet, which was

a public record available to both parties, to refresh the witness’s recollection,

a discovery violation was trivial. § 90.202, Fla. Stat. Delhall, 95 So. 3d at 162

(“[I]n light of the nature of the document sought to be introduced — a simple

booking sheet that the prosecutor could easily verify — the violation was not shown

to be substantial.”).

Also, in his post-conviction motion, Lanier failed to allege facts demonstrating

that the prosecutor’s failure to timely disclose the docket sheet prejudiced the

preparation of his defense. (Respondent’s Exhibit 6 at 39–40) State v. Schopp,

653 So. 2d 1016, 1020 (Fla. 1995) (“[T]he defense is procedurally prejudiced if there

is a reasonable possibility that the defendant’s trial preparation or strategy would

have been materially different had the violation not occurred. Trial preparation or

strategy should be considered materially different if it reasonably could have

benefited the defendant.”).

Lanier failed to explain how he would have prepared for trial differently if the

prosecutor had timely disclosed the docket sheet. Also, even before refreshing his

recollection with the docket sheet, the prosecutor in Glenn’s case testified that the jail

recorded the telephone call on “August of 2005.” (Respondent’s Exhibit 1b at 209)

“The State [is] not required to prove that the crime took place on the exact dates

listed in the information, as that is not an element of the offense.” Bettey v. State, 244

So. 3d 364, 367 (Fla. 1st DCA 2018). Proof of the date of the offense suffices if the

evidence proves that “the crime was committed before the information was filed and

within the period of the statute of limitations.” S.B. v. State, 392 So. 2d 592, 592 (Fla.

2d DCA 1981). Testimony that the crime occurred on “August of 2005” sufficiently

proved that Lanier committed the crime both before the prosecutor filed the

information on June 14, 2006 and within the three-year statute of limitation for the

second-degree felony. (Respondent’s Exhibit 1 at 12–15) § 837.02(2) and

775.15(2)(b), Fla. Stat.

Because Lanier failed to allege facts in his post-conviction motion

demonstrating a reasonable probability that an objection under Richardson would

succeed and that the outcome at trial would change, the post-conviction court did

not unreasonably deny the claim. Strickland, 466 U.S. at 694. Conahan v. State,

118 So. 3d 718, 727 (Fla. 2013) (“Even if Mrs. Montgomery’s testimony was stricken

after a Richardson hearing, the outcome would have been the same and confidence is

not undermined because there was other evidence linking the victim and Conahan,

such as the testimony of Whitaker and Newman.”). Ground two is denied.

Ground Three:

Lanier asserts that trial counsel was ineffective for not adequately advising

him before he rejected the prosecutor’s plea offer. (Doc. 1 at 9) The post-conviction

court denied the claim as follows (Respondent’s Exhibit 6c at 436–38) (state court

record citations omitted):

. . . Defendant alleges ineffective assistance of counsel for

misadvising [or] misinforming Defendant, inducing him to

reject a favorable plea offer. Specifically, Defendant contends

that counsel misadvised or misinformed Defendant about the

evidence in this case, inducing him to proceed to trial and reject

the State’s sixty-month offer [ ]. More specifically, Defendant

first-degree murder trial in which he provided sworn testimony

that he and the defendant in that case, Michael Glenn, had not

discussed Glenn’s case prior to the trial. Defendant contends

further that the State then charged Defendant with having

committed perjury in that capital proceeding.

The primary evidence against Defendant, he contends, was

a recorded jail conversation between Defendant and Glenn.

Defendant contends that counsel provided Defendant with

a CD copy of the recorded call, and that, after listening to it,

Defendant asked counsel several times if it constituted

a “discussion of the case,” to which counsel responded that it

did not demonstrate that they had discussed the case. Based on

counsel’s legal opinion regarding this evidence [and] what it

showed, Defendant contends, Defendant rejected the State’s

offer and proceeded to trial. Defendant argues that “counsel

failed to correctly advise him in regards to the phone

conversation between himself and Glenn, and, had counsel

correctly informed him that the limited conversation

constituted a legal discussion, [Defendant] would have

accepted the plea offer instead of proceeding to trial. Had he

pled guilty, he would have received a lesser sentence of five

years as opposed to the thirty years he received after trial.”

At the evidentiary hearing, Defendant’s prior defense counsel

testified that he reviewed the call with Defendant and did not

advise him that this call did not amount to a discussion of the

case, as Defendant alleges. Rather, counsel testified, he advised

Defendant that this issue would be a question for the jury to

determine if Defendant wished to proceed to trial. Counsel

testified further that he discussed the strengths and weaknesses

of Defendant’s case as well as Defendant’s exposure at trial, but

that the ultimate decision of whether to reject the State’s offer

and proceed to trial was up to Defendant. Counsel also testified

that Defendant believed he was not guilty of the charged

offense, was adamant about proceeding to trial, and never

expressed any interest in entering a plea. The Court finds this

testimony to be credible, and finds that counsel cannot be

deemed deficient under these circumstances. Additionally, after

review of this testimony as well as Defendant’s testimony —

in which Defendant repeatedly expressed his belief he was not

guilty of the offense and that he would not have accepted the

State’s offer of five years when he “didn’t do anything” — this

Court does not find there to be a reasonable probability that

Defendant would not have proceeded to trial and would have

entered a plea. For these reasons, the Court finds that counsel

demonstrated prejudice as a result of counsel’s alleged

deficiency. Consequently, Defendant warrants no relief on this

allegation [ ].

“Determining the credibility of witnesses is the province and function of the

state courts, not a federal court engaging in habeas review.” Nejad v. Att’y Gen., State

of Ga., 830 F.3d 1280, 1292 (11th Cir. 2016) (citation and internal quotation marks

omitted). “Federal habeas courts have no license to redetermine credibility of

witnesses whose demeanor has been observed by the state trial court, but not by

them.” Nejad, 830 F.3d at 1292 (citation and internal quotation marks omitted).

At the post-conviction evidentiary hearing, trial counsel testified that he

advised Lanier that the jury would determine whether Lanier discussed Glenn’s case

with Glenn on the recorded telephone call (Respondent’s Exhibit 6c at 462–66):

[Prosecutor:] Initially when, you know, in the initial

part when you first met Mr. Lanier about

this case, did he express to you his own

opinion [or] belief about his innocence or

his guilt?

[Trial counsel:] Yes, he did.

[Prosecutor:] Can you explain to the court about that?

[Trial counsel:] Well, my recollection is that when I had

spoken to Mr. Lanier about the case, his

position all along was that when he spoke

to Michael Glenn that he wanted [ ] to be

on the visitation list so he could see

[Mr. Glenn] at the jail and that his

position was he didn’t discuss the case

with Mr. Glenn. He was saying that he

just wanted to be put on the list so he can,

you know, visit him because they were

very, very close apparently.

for the jury to decide whether there was

really a discussion about the case, were

they discussing the case or was he, being

Mr. Glenn, discussing the case with

Mr. Lanier or was it Mr. Lanier discussing

with Mr. Glenn and that was the ultimate

issue for the jury to decide.

And so we listened to the CDs, we looked

at the transcripts. In fact we actually blew

up a demonstrative aid of the pertinent

part of the discussions to use at the jury

trial in front of Judge Holder. And so,

I mean, that was — we had multiple

discussions and office conferences

regarding that.

[Prosecutor:] How adamant, if you will, was Mr. Lanier

about the fact that he was telling you that

he did not discuss this case with Mr.

Glenn?

[Trial counsel:] He was very adamant. I mean, his

position from the get-go, from day one

was that it wasn’t a discussion. He — it

was Mr. Glenn discussing it. He just

wanted to be on the visitation list and that

he didn’t feel he was guilty of this.

[Prosecutor:] Did you ever advise Mr. Lanier that in

your own opinion that Mr. Lanier was not

discussing the case with Mr. Glenn?

[Trial counsel:] No. My discussion with Mr. Lanier was

that it’s up to the jury to decide. I can’t

make that decision whether in fact he had

discussions or not. That’s why if there’s

reasonable doubt the jury would find him

not guilty. On the other hand, obviously,

if they felt that he did discuss that with

Mr. Glenn then he could be found guilty.

So it’s not my role as the attorney to tell

him whether it was a discussion or not.

I just give him the options and tell him

exposure is.

[Prosecutor:] Did the defendant ever ask you and say,

hey, was this a discussion about the case?

[Trial counsel:] Yeah, he asked me about it, but again, it

was the same answer I gave before. It’s

not my position to make a finding

whether it was a discussion or not. It’s

ultimately up to the jury and that’s why

we — the strategy was that that’s how

we’re going to try to get reasonable doubt

and try to get a not guilty [verdict]. It

really hinged on whether it was a

discussion or not. That was — that was

the whole premise of the case.

. . .

[Prosecutor:] Was it Mr. Lanier’s idea or statement —

well, let me strike that, Judge. I’m sorry.

Who was it that came up with the opinion

of, I didn’t discuss the case with Mr.

Glenn?

[Trial counsel:] Well, when we — I guess when we were

waiting initially for the CD as far as the

audio recordings, I wanted to see what

actually transpired as far as the

conversation. And then when we sat

down and we listened to it and Mr. Lanier

and I went over that together, that’s when

I started looking at the jury instructions

and looking what the State has to prove.

And then I was getting feedback from

him, okay, what’s your position on this,

I mean, tell me what is going on in your

mind, what was — how would — how do

you characterize this conversation with

Mr. Glenn? And he said, I didn’t have any

discussions. It’s all about getting on the

visitation list and that was it.

So he — he was adamant that there was

no discussion about the materiality or the

on the visitation list. And that was his

position from the onset all the way

through trial.

Because the post-conviction court determined that trial counsel credibly

testified, trial counsel did not deficiently perform, and Lanier failed to demonstrate

a reasonable probability that he would have accepted the plea offer. Consequently,

the post-conviction court did not unreasonably deny the claim. Lafler v. Cooper,

566 U.S. 156, 163–64 (2012) (“[Where] [h]aving to stand [trial], not choosing to

waive it, is the prejudice alleged[,] . . . a defendant must show that but for the

ineffective advice of counsel there is a reasonable probability that the plea offer

would have been presented to the court (i.e., that the defendant would have accepted

the plea and the prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms, and that the conviction

or sentence, or both, under the offer’s terms would have been less severe than under

the judgment and sentence that in fact were imposed.”); Osley v. United States,

751 F.3d 1214, 1224 (11th Cir. 2014) (“Osley’s claim that he would have pled guilty

had he been properly informed is also undermined by his repeated claims of

innocence.”); Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984) (“But

counsel owes a lesser duty to a client who pleads guilty than to one who decides to

go to trial, and in the former case counsel need only provide his client with an

understanding of the law in relation to the facts, so that the accused may make an

informed and conscious choice between accepting the prosecution’s offer and going

to trial.”). Ground three is denied.

Ground Four:

Lanier asserts that trial counsel was ineffective for not objecting during trial to

the admission of irrelevant and inflammatory evidence demonstrating his insulting

behavior toward a woman named Georgia Peach. (Doc. 1 at 10–11) The

post-conviction court denied the claim as follows (Respondent’s Exhibit 6 at 78–81)

(state court record citations omitted):

. . . Defendant alleges ineffective assistance of counsel for

failure to “make a precise contemporaneous objection to

prosecutorial misconduct, which allowed irrelevant improperly

admitted bad character evidence.” Specifically, Defendant

contends that, at trial, the State admitted into evidence

irrelevant and highly-prejudicial testimony Defendant had

given in Glenn’s murder trial regarding Defendant’s interaction

with Georgia Peach. Defendant contends that his testimony

regarding Georgia Peach in Glenn’s trial was inflammatory,

embarrassing, and unrelated to the perjury charge in

Defendant’s own case, warranting a contemporaneous

objection by counsel. More specifically, Defendant contends

that counsel had objected on the basis of relevancy and

prejudice, [and] the court, at sidebar, overruled the objection

because the testimony went toward Defendant’s credibility, but

noted that the questioning would end. When the questioning

resumed, Defendant contends, and the State again focused on

Defendant’s tone and demeanor in Glenn’s trial, counsel failed

to make a timely objection on the basis of irrelevant character

evidence.

[T]he trial transcript reflects that the State cross-examined

Defendant about his tone in Glenn’s trial, and as part of this

cross-examination, the State referenced Defendant’s prior

testimony about Georgia Peach:

[Prosecutor:] “I’m pleading the Fifth, tada, tada,

stutter.” That’s what you said,

right?

[Lanier:] Yeah.

[Prosecutor:] Did you say it in the tone of voice

you said now?

[Lanier:] Yeah, same way I come off and

speak, yes, yes.

[Prosecutor:] That wasn’t with an attitude of

being like “Did I stutter? Did I

stutter?”

[Lanier:] Didn’t mean it like that. But I

probably did. I was frustrated.

[Prosecutor:] Let’s talk about some more

frustration you had . . . . [ ] the last

question Mr. Covington asked you:

“Isn’t it a fact after Mr. Glenn

committed this crime you told

Georgia Peach to be quiet with

your finger?”

[Lanier:] Yes.

[Prosecutor:] And you answered: “Hell, no.”

[Lanier:] Yes, ma’am.

[Prosecutor:] Did you make that statement with

the tone of voice that you’re using

now when you stated, “Hell, no?”

How was the tone there?

[Lanier:] The tone — the tone was — the

tone —

[Trial counsel:] I’m going to object to relevance.

It’s also beyond the scope, Your

Honor.

[Judge:] Overruled. You may answer, sir.

[Lanier:] The tone was loud. He was trying

say, like, I was threatening her or

something.

[Prosecutor:] You know Georgia Peach, right?

[Lanier:] Huh?

[Lanier:] Yes.

[Prosecutor:] All right. Next question, after he

asked you that you told Georgia

Peach to be quiet with your finger,

your answer, “Hell, no.”

“Question: That didn’t happen?”

“Answer: Hell, no. I probably told

her to suck my d*ck or something,

I don’t know, man.” That’s what

you said, right?

[Trial counsel:] Objection to relevancy and very

prejudicial, Your Honor. I move to

strike.

[Judge:] Counsel, please approach.

(The following proceedings ensued at the bench)

[Judge:] This is the trial testimony?

[Prosecutor:] Absolutely, Judge. It’s

unbelievable when you read it.

[Trial counsel:] She is trying to commit a character

assassination. He’s already

admitted he’s an eight-time

convicted felon.

[Judge:] Part of the defense is [Defendant]

did not understand the questions

by Mr. Covington.

[Prosecutor:] The arguments go straight to his

credibility in that regard, Judge.

[Judge:] How much more of that do we

have to hear?

[Prosecutor:] That’s pretty much it, Judge.

[Judge:] Objection overruled.

referencing the lack of relevancy of the testimony, the

prejudicial nature of the testimony, and that the testimony

amounts to bad character evidence, or “character

assassination.” The Court finds further that, in the testimony

that followed, counsel raised additional objections to the State’s

questions of Defendant about his prior testimony. After review

of the testimony, this Court does not believe yet another

objection on the basis of “bad-character evidence” was

warranted, as Defendant alleges. The Court believes counsel

raised sufficient objections, which the trial court considered and

overruled, and believes that the testimony that followed did not

warrant an additional bad-character-evidence objection. Under

these circumstances, counsel cannot be deemed deficient as

alleged. Moreover, the Court does not find there to be a

reasonable probability that the outcome of Defendant’s trial

would have been different had counsel raised an additional

bad-character-evidence objection, and thus Defendant cannot

demonstrate prejudice as a result of counsel’s alleged

deficiencies. For these reasons, Defendant warrants no relief on

this allegation [ ].

When the prosecutor cross-examined Lanier about his earlier testimony

concerning Georgia Peach, trial counsel objected, asserted that the earlier testimony

was irrelevant and “very prejudicial,” and moved to strike the prosecutor’s reference

to the earlier testimony. (Respondent’s Exhibit 1b at 284) The trial judge

summoned the attorneys to a bench conference outside the presence of the jury, and

trial counsel further asserted (Respondent’s Exhibit 1b at 284): “[The prosecutor] is

trying to commit a character assassination. He’s already admitted he’s an eight-time

convicted felon.” Because trial counsel objected to the use of Lanier’s earlier

testimony concerning Georgia Peach for cross-examination, the record refutes

Lanier’s ineffective assistance of counsel claim.

Also, on cross-examination, Lanier testified that he asserted his right against

self-incrimination under the Fifth Amendment because he did not understand the

prosecutor’s questions (Respondent’s Exhibit 1b at 281):

[Prosecutor:] Why did you plead the Fifth?

[Lanier:] I plead the Fifth because I didn’t really

understand the question — how the

question was really, you know, what —

what it was he really was trying to get to.

I didn’t understand what he was trying

[to] get to in the question, and when

[Mr. Glenn] said plead the Fifth, I thought

that this was something that could hurt —

hurt — hurt his case or something, so I

pled the Fifth.

At the bench conference, the prosecutor argued, and the trial judge agreed, that

Lanier’s earlier testimony concerning Georgia Peach was relevant to rebut Lanier’s

claim that he did not understand the prosecutor’s questions. (Respondent’s Exhibit

1b at 284)

Because Lanier “opened the door” to the admission of his earlier testimony

concerning Georgia Peach for impeachment, an additional objection would not have

succeeded, and the post-conviction court did not unreasonably deny the claim.

Dippolito v. State, 275 So. 3d 653, 657 (Fla. 4th DCA 2019) (“As an evidentiary

principle, the concept of ‘opening the door’ allows the admission of otherwise

inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence

previously admitted.”) (citation omitted); Russell v. State, 269 So. 3d 621, 623

(Fla. 1st DCA 2019) (“[A] testifying defendant may open the door to impeachment

with otherwise inadmissible collateral crime evidence by inaccurately testifying to

material facts. To do so, the defense must first offer misleading testimony or make

a specific factual assertion which the state has the right to correct so that the jury will

not be misled.”) (citations and internal quotation marks omitted).

Lastly, after the bench conference, the prosecutor further cross-examined

Lanier about his earlier testimony concerning Georgia Peach as follows

(Respondent’s Exhibit 1b at 285):

[Prosecutor:] Mr. Lanier, that was your statement,

right?

[Lanier:] Yes, ma’am.

[Prosecutor:] That you felt confident enough to make

that statement, right?

[Lanier:] I didn’t like what she did.

[Prosecutor:] I’m sorry?

[Lanier:] I didn’t like what she did.

[Prosecutor:] That’s not my question.

[Lanier:] Yes, ma’am.

[Prosecutor:] My question was you felt confident

enough to make that statement?

[Lanier:] Yes. Yes, ma’am.

[Prosecutor:] In a court of law like this?

[Lanier:] I didn’t really realize it, you know.

Frustration just flying. The State would

get mad, I would get mad, the judge

would get mad, everybody was mad. It

was chaos.

Because these additional questions on cross-examination were relevant to rebut

Lanier’s claim that he did not understand the prosecutor’s questions, and an

objection to the questions would not succeed, the post-conviction court did not

unreasonably deny the claim. Ground four is denied.

VI. CONCLUSION

Lanier’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Lanier and CLOSE this case.

DENIAL OF CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Because Lanier fails to demonstrate either a substantial showing of the denial

of a constitutional right or that reasonable jurists would debate either the merits of

the grounds or the procedural issues, a certificate of appealability and leave to appeal

in forma pauperis ace DENIED. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 478 (2000). Lanier must obtain permission from the court of appeals to appeal

in forma pauperis.

ORDERED in Tampa, Florida, on March 28, 2023.

Min Wirrryelucy

STEVEND.MERRYDAY □□

UNITED STATES DISTRICT JUDGE

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