Cannon v. Phelps et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Gregory M. Sleet on 6/21/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

ALLEN CANNON,
Petitioner,
v.

PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.

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Civil Action No. 10-411-GMS

Allen Cannon. Pro se petitioner.
Elizabeth R. McFarlan, Delaware Department of Justice, Wilmington, Delaware. Counsel for
Respondents.

MEMORANDUM OPINION

c.1 ~ 2...) ,2013
Wilmington, Delaware

Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner Allen Cannon ("Cannon"). (D.!. 2) For the reasons discussed, the
court will deny the petition.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2006, someone fired at least four shots at Terrence Dendy. State v. Cannon,

Cr. ID No. 0607025498, Rep. & Rec., Parker, Cmm'r., at 1 (Del. Super. Ct. Aug 11,2009). The
target's father, Richard Dendy, witnessed the shooting. Both Terrence and his father Richard
made the following contemporaneous statements to the police on the evening of the shooting.
The day before the shooting, Terrence had a fight with the family of a girl who had used his car
without permission. Terrence went to the girl's house to complain to her mother. Some type of
altercation involving Cannon ensued following Terrence's complaint to the girl's mother. The
next evening, Terrence drove his mother's car to a convenience store operated by his family on
lOth Street in Wilmington. Terrence went to his car to retrieve a phone charger. Richard

accompanied his son outside. While Terrence was crossing the street towards his car, Cannon
came up and asked Terrence to return his chain, believing that Terrence had taken it the night
before during the altercation following the complaint to the girl's mother about the car. Terrence
told Cannon he did not have any chain, and then Cannon took out his gun and started firing shots
at Terrence. Terrence ducked down behind the car for cover. Richard was standing close to
Cannon and told him to stop firing the gun at his son and attempted to take the gun away from
him. After firing the shots, Cannon ran away. Id. at 2-3.

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That evening, Detective Looney from the Wilmington Police Department went to
investigate the shooting incident. Richard went up to Detective Looney and advised him that
"Messy shot my son." Messy was Cannon's nickname. Id. at 3. That same evening, at about
10 p.m., both Richard and Terrence Dendy voluntarily went to the police station to provide
statements. These statements were videotaped. At the police station, Richard again
unequivocally identified Cannon as the shooter, referring to Cannon by his nickname "Messy."
Richard told the police that earlier that evening "Messy" walked up and said hello "Mr. Richie"
and then asked Terrence if Terrence had his chain. Messy then pulled out a gun and started
shooting at Terrence. Richard was standing right next to Messy and was grabbing at him trying
to get the gun away but Messy kept stepping away. After firing five to six shots, four of which
hit the car, Messy ran away. Id.
On the evening of the shooting, Terrence was reluctant to identify the shooter, and
advised the police that under no circumstances was he going to testify in court. He did not want
his name associated in any way with his statement to the police. He then stated that earlier that
evening Cannon had accused him of having taken a chain during the altercation the night before.
Terrence told the police his father stepped between the shooter and him to attempt to stop the
shooting. Although he did not know Cannon's name or nickname, Terrence unequivocally
identified Cannon as the shooter from a photo lineup in a matter of seconds. Id.
Richard and Terrence Dendy, however, changed their stories by the time of the trial in
February 2007. Although neither denied making the prior statements, they alleged that they were
not telling the truth on the night of the shooting when they identified Cannon as the shooter.
Terrence testified that, sometime after the shooting, he told Cannon's attorney that Cannon was

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not the shooter, but did not contact the police or the prosecutor to give them that information.
Terrence also testified that, while crossing the street towards the car to retrieve a phone charger,
Terrence heard someone yell "watch out." He turned around, "saw the gun," and ducked behind
the car. When the shooting stopped, he got up and started running after the shooter, but did not
catch him. Terrence testified that he did not get a good look at the shooter and did not know his
identity. Id. at 4.
In turn, Richard testified that while his son was crossing the street towards the car, he
stood in front of the store and Cannon passed by, greeted him, and started crossing the street.
Richard then heard two shots. According to Richard, Cannon ran back toward him, after which
someone fired three more shots. Richard then went over to the shooter and told him to stop
firing the gun at this son. The shooter then ran away. Richard did not know the identity of the
shooter. Id.
Because their testimony was factually incompatible with their previous statements to the
police identifying Cannon as the shooter, Terrence and Richard explained to the jury why they
had changed their testimony. Richard testified that he only got a brief glimpse of the shooter
because he was focused on his son. Richard testified that he identified Cannon as the shooter
because "people" told him that it was "Messy" (Cannon's nickname). He therefore took it for
granted that Messy was the shooter but found out later that it was not Messy. Id.
Terrence also testified that he did not get a good look at the shooter and did not know his
identity. He also explained that his statements to the police were based on "people" or
"somebody" telling him that Cannon was the person who shot at him. Id.

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On February 2,2007, a Superior Court jury found Cannon guilty of first degree reckless
endangering, possession of a deadly weapon during the commission of a felony ("PDWDCF"),
and criminal mischief. Cannon had previously waived his right to a jury trial on the charge of
possession of a deadly weapon by a person prohibited ("PDWPP"), and the trial judge found him
guilty of that charge after the jury entered its verdict. The Delaware Supreme Court affirmed
Cannon's convictions and sentences on direct appeal. Cannon v. State, 2008 WL 1960131 (Del.
May 6, 2008).
In February 2009, Cannon filed a motion tor post-conviction relief under Delaware
Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied. The
Delaware Supreme Court affinned that decision. Cannon v. State, 992 A.2d 1236 (Table), 2010
WL 1267751 (Del. Apr. 1,2010).

II.

GOVERNING LEGAL PRINCIPLES
A. The Antiterrorism and Effective Death Penalty Act of 1996
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

"to reduce delays in the execution of state and federal criminal sentences ... and to further the
principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003).
Pursuant to AEDP A, a federal court may consider a habeas petition filed by a state prisoner only
"on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards
for analyzing the merits of a habeas petition in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v.

Cone, 535 U.S. 685,693 (2002).

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B. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. 28 U .S.C. § 2254(b);

O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971). AEDPA states, in pertinent part:
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 unless it appears that ­
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.c. § 2254(b)(1).
The exhaustion requirement is based on principles of comity, requiring a petitioner to
give "state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process." 0 'Sullivan, 526 U.S. at

844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. Bell, 543 U.S. at 451 n.3;

Castille v. Peoples, 489 U.S. 346,351 (1989).
A petitioner's failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d
Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160; Coleman

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v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to

the state's highest court, but that court "clearly and expressly" refuses to review the merits of the
claim due to an independent and adequate state procedural rule, the claim is exhausted but
procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-64
(1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage ofjustice will result if the court does not review the
claims. lvfcCandless, 172 F.3d at 260; Coleman, 501 U.S. at 750-51. To demonstrate cause for
a procedural default, a petitioner must show that "some objective factor external to the defense
impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477
U.S. 478, 488 (1986). To demonstrate actual prejudice, a petitioner must show "that [the errors
at trial] worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions." Id. at 494.
Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage ofjustice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir.

2001). A petitioner demonstrates a miscarriage ofjustice by showing a "constitutional violation
has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at
496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner must

present new reliable evidence - not presented at trial

that demonstrates "it is more likely than

not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

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House v. Bell, 547 U.S. 518, 537-38 (2005); Sweger v. Chesney, 294 F.3d 506,522-24 (3d Cir.
2002).

C. Standard of Review
When a state's highest court has adjudicated a federal habeas claim on the merits, I the
federal court must review the claim under the deferential standard contained in 28 U.S.C.
§ 2254(d). Pursuant to 28 U.S.c. § 2254(d), federal habeas relief may only be granted ifthe
state court's decision was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States," or the state
court's decision was an unreasonable determination of the facts based on the evidence adduced
in the trial. 28 U.S.C. § 2254(d)(1) & (2); see also Williams v. Taylor, 529 U.S. 362,412

(2000); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). This deferential standard of § 2254(d)
applies even "when a state court's order is unaccompanied by an opinion explaining the reasons
relief has been denied." Harrington v. Richter, _ U.S. _, 131 S.Ct. 770, 784-85 (2011). As
recently explained by the Supreme Court, "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." Id.
If the state's highest court has not adjudicated a federal habeas claim on the merits, but
the claim is exhausted and the merits are properly before the federal court on habeas review, then
the federal court must review the claim de novo. See Breakiron v. Horn, 642 F.3d 126, 131 (3d
Cir. 2011)(citing Porter v. McCollum, 558 U.S. 30 (Jan. 19,2011». De novo review means that
the court "must exercise its independent judgment when deciding both questions of constitutional
IA claim has been "adjudicated on the merits" for the purposes of28 U.S.C. § 2254(d) if the
state court decision finally resolves the claim on the basis of its substance, rather than on a
procedural or some other ground. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009).
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law and mixed constitutional questions." Williams, 529 U.S. at 400 (2000)(O'Connor, J.,
concurring).
Finally, whether reviewing a habeas claim de novo or under § 2254(d), a federal court
must presume that the state court's determinations of factual issues are correct. 28 U.S.C. §
2254(e)( 1); Appel, 250 F .3d at 210. This presumption of correctness applies to both explicit and
implicit findings of fact, and is only rebutted by clear and convincing evidence to the contrary.
28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000); Miller-EI v.

Cockrell, 537 U.S. 322, 341 (2003)(stating that the clear and convincing standard in § 2254(e)(l)
applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies
to factual decisions).

III.

DISCUSSION
Viewing Cannon's form petition and memorandum together, the court interprets

Cannon's timely filed petition as asserting the following seven grounds for relief: (1) the trial
court erred by permitting the Dendys to testify that "people" told them that Cannon was the
shooter (D.I. 2 at 5); (2) the trial court violated his confrontation clause rights by permitting a
Detective Selekman to testify in lieu of the evidence detection unit ("EDU") officer who
collected evidence at the scene (D.I. 8 at 1); (3) trial counsel provided ineffective assistance in
several ways (D.1. 2 at 7; D.L 8 at 10-33); (4) there was insufficient evidence at trial to establish
his guilt (D.1. 2 at 8); (5) he did not knowingly and voluntarily waive his right to a jury trial on
the charge of possession of a deadly weapon by a person prohibited because the trial court did
not conduct an on-the-record colloquy (D.1. 2 at 10; D.I. 8 at 30-33); (6) he is actually innocent
(D.1. 2 at 12); and (7) the Dendys' initial identifications of Cannon as the shooter were made
under unduly suggestive circumstances (D.L 8 at 19-33). The State contends that claims two,
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four, five, and seven should be denied as procedurally barred, and claims one, three, and six
should be denied for failing to satisfy § 2254(d); the State's answer does not address claim one.

A. Claim One: Non-Cognizable and Procedurally Barred
In claim one, Cannon contends that the trial court erred in admitting the Dendys'
testimony because such testimony constituted inadmissible hearsay. Cannon raised this claim on
direct appeal, but conceded the Delaware Supreme Court could only review the argument under
the plain error standard because trial counsel did not raise this objection during the trial. (D.I.
19, Appellant's Op. Br. in Cannon v. State, No.295,2007, at 7) The Delaware Supreme Court
denied the claim after determining that the trial court did not commit plain error in admitting the
challenged testimony. Cannon, 2008 WL 1960131, at *3.
When Cannon raised this hearsay argument on direct appeal, he contended that the
admission of the Dendys' testimony without any corroborating evidence to implicate Cannon
violated his confrontation clause rights and deprived him of a fair trial. (D.l. 19, Appellant's
Op. Br. in Cannon v. State, No.295,2007 at 11) However, in this proceeding, Cannon presents
the issue as an error of state evidentiary law, and does not assert any confrontation clause
violation or fair trial deprivation. (D.l. 2 at 5)

It is well-settled that "[s]tate courts are the ultimate expositors of state law,,,1 and claims
based on errors of state law are not cognizable on habeas review. Estelle v. McGuire, 502 U.S.
62,67-68 (1991). Given Cannon's presentation of claim one as an issue of state law, the court
concludes that it must deny claim one for failing to assert a proper basis for federal habeas relief.
However, even if claim one should be construed as asserting an appropriate basis for
federal habeas review, the court concludes that it does not warrant relief. By explicitly applying

I

Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).

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the plain error doctrine (of Delaware Supreme Court Rule 8) to claim one on direct appeal, the
Delaware Supreme Court articulated a "plain statement" under Harris v. Reed, 489 U.S.
255,263-64 (1989), that its decision rested on state law grounds. In turn, Delaware's plain error
doctrine constitutes an independent and adequate state procedural rule for procedural default
purposes. See Campbell v. Burris, 515 F.3d 172, 177-82 (3d Cir. 2008). Accordingly, claim one
is procedurally defaulted, meaning that the court cannot review its merits absent a showing of
cause and prejudice, or a miscarriage ofjustice.
Petitioner appears to assert ineffective assistance of trial counsel as cause for his default
of the instant argument. "A successful claim of ineffective assistance of counsel ... satisfies the
'cause' prong of a procedural default inquiry." United States v. Garth, 188 F.3d 99, 107 (3d Cir.
1999). However, as explained later in this opinion, counsel's failure to object to the Dendys'
testimony as inadmissible hearsay did not rise to the level of constitutionally ineffective
assistance. See infra at 14-16. Thus, trial counsel's alleged inaction does not constitute cause
for Cannon's procedural default of claim one.

In the absence of cause, the court will not address the issue of prejUdice. Additionally,
the court cannot apply the miscarriage ofjustice exception to excuse Cannon's default, because
he has failed to provide new reliable evidence of his actual innocence? Accordingly, the court
will alternatively deny claim one as procedurally barred.

B. Claims Two, Four, and Seven: Procedurally Barred
The record reveals that Cannon did not exhaust state remedies for claims two, four, and
seven. For instance, in claim two, Cannon contends that the trial court violated his rights under
Cannon contends that he is "actually innocent" because the Dendys recanted their initial
identification of him when they testified during the trial. (D.I. 2 at 12) However, the fact that
the Dendys' recantation was presented and explored during Cannon's trial disqualifies it as "new
reliable evidence" for purposes of the miscarriage ofjustice exception.
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2

the confrontation clause by pennitting Detective Selekman to testify in lieu of the evidence
detection officer who collected evidence at the scene. Cannon, however, did not raise any
substantive confrontation clause argument concerning Detective Selekman's testimony on direct
appeal or on post-conviction appeaL And, although Cannon did raise an argument in his Rule 61
motion and on post-conviction appeal that counsel provided ineffective assistance by failing to
call the evidence detection officer to testify on his behalf at trial, an ineffective assistance of
counsel argument raising the issue of counsel's failure to call the evidence detection officer as a
witness is not "substantially equivalent" to an argument asserting a substantive confrontation
clause violation stemming from calling Detective Selekman. Therefore, the court concludes that
Cannon has not exhausted state court remedies for claim two. See Lambert v. Blackwell, 134
F.3d 506, 513 (3d Cir. 1997).
In claim four, Cannon asserts that there was insufficient evidence to support his
conviction. Although Cannon raised this argument in a motion for judgment of acquittal filed at
the end of trial, he did not present this insufficiency of the evidence argument to the Delaware
Supreme Court on direct or post-conviction appeal. Therefore, he has not exhausted state
remedies for claim four.
And finally, the record reveals that Cannon never presented claim seven's argument
regarding an unduly suggestive identification procedure to the Delaware Supreme Court on
direct or post-conviction appeaL Thus, Cannon did not exhaust state remedies for claim seven.
At this juncture, Delaware Superior Court Criminal Rule 61 (i)(1), (2) and (3) would bar
Cannon from presenting claims two, four, and seven to the Delaware state courts in a new Rule
61 motion. See Lawrie v. Snyder, 9 F. Supp. 2d 428,453 (D. Del. I 998)(Rule 61(i)(2) bars any
ground for relief that was not asserted in a prior proceeding); Bright v. Snyder, 218 F. Supp. 2d

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573,580 (D. Del. 2002)(Rule 6I(i)(3) would bar the Superior Court from considering the claim
because petitioner did not raise the claim in the proceedings leading to his conviction). As a
result, these claims are procedurally defaulted, meaning that the court cannot review their merits
absent a showing of cause and prejudice, or that review is necessary to prevent a miscarriage of
justice.
Cannon does not allege, and the court cannot discern, any cause for his default of these
three claims. In the absence of cause, the court need not address the issue prejudice. Moreover,
the court concludes that the "miscarriage ofjustice" exception to the procedural default doctrine
is inapplicable, because Cannon has failed to provide new reliable evidence of his actual
innocence. Accordingly, the court will deny claims two, four and seven as procedurally barred.

C. Claim Three: Ineffective Assistance of Counsel
In claim three, Cannon asserts that defense counsel was ineffective for: (a) failing to
object to the admission the Dendys' out-of-court statements pursuant to Del. Code Ann. tit. 11,
§ 3507; (b) failing to object on hearsay grounds to the Dendys' testimony that unnamed people
told them that Cannon was the shooter; (c) failing to request "identity" and "limited" jury
instructions regarding the Dendys' testimony; (d) failing to present expert medical testimony
that that he could not have been the shooter because his arm was in a cast; (e) failing to
investigate any circumstances of the crime; (f) failing to argue that the Dendys' prior out-of­
court identification was the result of an unduly suggestive procedure; and (g) failing to call the
evidence detection officer to testify on his own behalf at triaL
Cannon did not exhaust allegations (d) and (f) of claim three because he did not present
them to the Delaware Supreme Court on post-conviction appeaL At this juncture, these two
allegations are procedurally defaulted, because Rule 61 (i)(l) and (2) would preclude Cannon
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from raising these claims in a new Rule 61 motion. Cannon does not assert any cause for his
default, and the miscarriage ofjustice exception is inapplicable for the reasons previously
discussed. Thus, the court will deny as procedurally barred claim three (d) and (f).
However, the Delaware Supreme Court denied as meritless allegations (a), (b), (c), (e),
and (g) of claim three. Thus, the court must review these five allegations pursuant to § 2254(d)
to determine if the Delaware Supreme Court's decision was either contrary to, or an
unreasonable application of, clearly established federal law.
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first

Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an
objective standard of reasonableness," with reasonableness being judged under professional
norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that,
but for counsel's error the result would have been different." Id at 687-96. A reasonable
probability is a "probability sufficient to undermine confidence in the outcome." Id at 688.
In order to sustain an ineffective assistance of counsel claim, a petitioner must make
concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See

Wells v. Petsock, 941 F.2d 253, 259-260 (3d Cir. 1991). Although not insurmountable, the
Strickland standard is highly demanding and leads to a "strong presumption that the
representation was professionally reasonable." Strickland, 466 U.S. at 689.
In this case, the Delaware Supreme Court applied the Strickland standard in affirming the
Superior Court's decision. Thus, the Delaware Supreme Court's decision was not contrary to
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clearly established Federal law. See Williams, 529 U.S. at 406 ("[A] run-of-the-mill state-court
decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner's
case [does] not fit comfortably within § 2254(d)(1)'s 'contrary to' clause").
The court's inquiry is not over, however, because it must also determine if the Delaware
Supreme Court reasonably applied the Strickland standard to the facts of Cannon's case. When
performing this inquiry, the court must review the Delaware Supreme Court's decision with
respect to Cannon's ineffective assistance of counsel claims through "doubly deferential" lens.
Richter, 131 S.Ct. at 788. Notably, when § 2254(d) applies, "the question is not whether
counsel's actions were reasonable, [but rather], whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard." Jd.
1. Claims Three (a),(b),(c)

Cannon's first three exhausted ineffective assistance of counsel allegations relate to the
Dendys' out-of-court and trial statements regarding their identification of Cannon as the shooter.
In claim three (a), Cannon alleges that defense counsel should have objected to the admission of
the Dendys' prior out-of-court statements because the State did not lay the proper foundation as
required by Del. Code Ann. tit. 11, § 3507. Claim three (b) asserts that defense counsel should
have objected to the Dendys' testimony that unnamed persons told them Messy was shooter as
constituting inadmissible hearsay. And finally, claim three (c) alleges that counsel should have
requested that the jury be instructed that the Dendys' out-of-court statements could not be used
to support his guilt.
Applying Delaware evidentiary law, the Delaware Supreme Court rejected all of these
arguments. First, the Delaware Supreme Court held that there was no basis for counsel to object
to the admission of the Dendys' prior out-of-court statements pursuant to § 3507, because both
14

Richard and Terrence Dendy "testified on direct and cross-examination concerning the shooting
as well as their original statements to police." Dendy, 2010 WL 1267751, at *2. As for
Cannon's contention that counsel should have objected to the Dendys' trial testimony that
"people" told them "Messy" did the shooting as inadmissible hearsay, Cannon raised the same
underlying hearsay argument on direct appeal, and the Delaware Supreme Court denied it as
meritless. Consequently, in his post-conviction appeal, the Delaware Supreme Court held that
the argument was barred under Rule 61(i)(4) as formerly adjudicated. And finally, with respect
to Cannon's contention that trial counsel should have asked for an instruction limiting the jury's
consideration of the Dendys' out-of-court statements to the witnesses' credibility, the Delaware
Supreme Court concluded there was no basis for requesting this type of instruction, because
§ 3507 permits the admission of a witness' out-of-court statement as substantive evidence of
guilt. Id.
On habeas review, the court must defer to the Delaware Supreme Court's interpretation
and application of Delaware law. In turn, an attorney does not provi.de ineffective assistance by
failing to raise meritless objections or arguments. Given the Delaware Supreme Court's
conclusion that defense counsel did not violate Delaware evidentiary rules by acting or not acting
in the manner described by Cannon,3 the court cannot conclude that trial counsel was ineffective.
Accordingly, the court concludes that the Delaware Supreme Court reasonably applied
Strickland in denying claim three (a), (b), and (c).

Although the Delaware Supreme Court denied claim three (b) as procedurally barred rather than
as meritless, that decision was based on the fact that it had already determined on direct appeal
that the Dendys' testimony did not constitute inadmissible hearsay. Considering that an attorney
does not perform deficiently by failing to raise a meritless objection, the court concludes that the
Delaware Supreme Court's denial of claim three (b) on post-conviction appeal constituted a
reasonable application of Strickland.
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3

2.

Claim Three (e)

Cannon next asserts that counsel was ineffective for failing to conduct a forensic
examination of the crime scene. In his Rule 61 affidavit, trial counsel explained that he did not
perform such an investigation because the shooting itself was not at issue. Rather, the issue was
"the credibility of an eye witness and the victim. Counsel was aware that the witness and victim
intended to testify that [Cannon] was not perpetrator as previously thought." (D.L 19, State's
App. to Ans. Br. in Cannon v. State, No.596,2009, at B7) Noting that the "only issue in dispute
was the identity of the shooter," as well as the absence of any evidence rebutting the presumption
that trial counsel exercised sound trial strategy in not conducting a forensic examination of the
crime scene itself, the Delaware Supreme Court rejected as meritless the instant argument.

Cannon, 2010 WL 1267751, at *3.
In this proceeding, Cannon has not demonstrated prejudice, because he does not even
suggest what evidence could have been discovered at the scene that would have benefitted him.
Thus, viewing the instant allegation through doubly deferential lens applicable on habeas review,
the court cannot conclude that the Delaware Supreme Court unreasonably applied Strickland in
denying this claim. Accordingly, the court will deny claim three (e).

3.

Claim three (g)

Finally, Cannon contends that defense counsel was ineffective for not calling the
evidence detection officer who collected the shell casings to testify that the casings had not been
tested for fingerprints. In denying this claim, the Delaware Supreme Court explained:
[t]he record reflects that the officer had been subpoenaed to testify at trial by the State,
but had not been subpoenaed by defense counsel. By the time the prosecutor announced
that he had decided to call the chief investigating officer to testify instead of the evidence
detection officer, the evidence detection officer had already been told that he would not
be needed and was unavailable. Ultimately, however, defense counsel was able to elicit
the testimony he needed from the chief investigating officer [Detective Selekman]. As
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such, even assuming that counsel's performance was deficient in failing to subpoena the
officer, there is no evidence that Cannon suffered any prejudice as a result.

Cannon, 2010 WL 1267751, at *3.
During the trial, it was clearly understood that no testing was done on the casings
recovered from the crime scene. Significantly, in this proceeding, Cannon does not indicate
what favorable testimony he would have been able to elicit from the evidence detection officer
that trial counsel was unable to elicit from Detective Selekman. Thus, the court concludes that
the Delaware Supreme Court reasonably applied Strickland in denying this claim for lack of
prejudice.

D. Claim Five: Procedurally Barred by Application of Independent and Adequate
State Procedural Rule
In claim five, Cannon contends that he did not knowingly and voluntarily waive his right
to a jury trial for the PDWPP charge. The record reveals, and Cannon concedes, that he did not
present this jury trial waiver issue to the Delaware Supreme Court on direct appeal, in his Rule
61 motion, or in his opening brief on post-conviction appeal. Rather, after briefing was
completed in his post-conviction appeal, Cannon filed in the Delaware Supreme Court a motion
for remand, asking the Delaware Supreme Court to apply the "interest ofjustice" exception
contained in the plain error doctrine of Delaware Supreme Court Rule 8 and remand the case
back to the Superior Court for a determination as to whether he voluntarily waived his right to a
jury trial on the PDWPP charge. In the same decision denying Cannon's post-conviction appeal,
the Delaware Supreme Court denied as moot the motion to remand, and noted that the "motion is
without merit in any case." See Cannon, 2010 WL 1267751, at *3 n.11. The Delaware Supreme
Court explained that "the [remand] motion was filed after briefing was completed and the appeal

17

had been submitted for decision. Cannon failed to demonstrate good cause for a remand at that
stage of the proceedings." Id.
Delaware Supreme Court Rules 8 and 14 articulate the parameters of Delaware's "waiver
of appellate arguments" doctrine. For instance, pursuant to Delaware Supreme Court Rule 8,
"[o]nly questions fairly presented to the trial court may be presented for review; provided,
however, that when the interests ofjustice so require, the Court may consider and determine any
question not so presented." Similarly, Delaware Supreme Court Rule 14(b)(vi)(A)(3) states that
"[t]he merits of any argument that is not raised in the body of the opening brief shall be deemed
waived and will not be considered by the Court on appeal." In this case, the Delaware Supreme
Court's explanation that it was denying Cannon's remand motion because it was filed after the
completion of appellate briefing, and because there was no probable cause for a remand, was a
"plain statement" under Harris v. Reed that its decision rested on Delaware's waiver law,
namely, Delaware Supreme Court Rules 8 and 14(b)(vi)(A)(3).
As previously explained, it is well-settled that Delaware Supreme Court Rule 8
constitutes an independent and adequate state procedural rule precluding federal habeas review.
See supra at 10. However, whether or not Delaware Supreme Court Rule 14(b)(vi)(A)(3)
constitutes an independent and adequate state procedural rule is an question of first impression
for this court. For the following reasons, the court concludes that Rule 14(b)(vi)(A)(3) does,
indeed, constitute an independent and adequate state law barrier to federal habeas review.
"A state procedural rule is adequate if it was firmly established and regularly followed at
the time of the alleged procedural default." Ford v. Georgia, 498 U.S. 411,424 (1991). In tum,
to "be considered firmly established and regularly followed, (1) the state procedural rule must
speak in unmistakable terms; (2) all appellate courts must have refused to review the petitioner's
18

claims on the merits; and (3) the state courts' refusal in this instance must be consistent with
other decisions." Lewis v. Horn, 581 F.3d 92, 105 (3d Cir. 2009)(internal citations omitted),
Delaware Supreme Court Rule 14(b)(vi)(A)(3), and the Delaware Supreme Court's application
of that rule to Cannon's case, satisfies all of these requirements. First, Rule 14(b)(vi)(A)(3)
speaks in clear and unmistakable terms, and explicitly states that an argument not raised in the
body of an appellate opening brief shall be deemed waived. Second, the Delaware Supreme
Court (on post-conviction appeal) was the only state appellate court before which Cannon filed
the motion for remand, and that court did not review the merits of the jury trial waiver issue
because the remand request/jury trial waiver issue was not presented in the opening appellate
brief. And finally, the Delaware Supreme Court's refusal to review the merits of Cannon's
February 1, 2010 remand motion (and, implicitly, the merits of the jury trial waiver issue) for
failure to raise the issue in the body of the opening appellate brief was consistent with other
Delaware Supreme Court decisions. Significantly, since 1958, the Delaware Supreme Court has
consistently and repeatedly held that the failure to raise a legal issue in the text of an opening
appellate brief on appeal constitutes a waiver of that claim on appeal; the cases cited hereafter
represent only a small sampling of such decisions,4 See Stilwell v. Parsons, 145 A.2d 397, 02
(Del. 1958); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993); Turnbull v. Fink, 644 A.2d
1322, 1324 (Del.l994); Roca v. E.I du Pont de Nemours and Co., 842 A.2d 1238, 1242-43

Indeed, the court has discovered only one decision, Flamer v. State, 953 A.2d 130, 135 (Del.
2008), where the Delaware Supreme Court determined that the defendant waived all of his legal
issues on appeal, but proceeded to conclude that the "interests ofjustice" required examination
of one issue raised in the case. In Flamer, the defendant's waiver of his arguments stemmed
from his failure to cite any cases in his opening brief to support his arguments regarding
Delaware Rule of Evidence 106. However, the Delaware Supreme Court concluded that, given
the newness of Rule 106, it may have been impossible for Flamer to find any supporting caselaw
to cite. /d. No such circumstances existed in Cannon's case.
4

19

(Del. 2004); Dixon v. State, 41 A.3d 429 (Table), 2012 WL 892632, at * 1 n.2 (Del. Mar. 15,

2012); Roten v. State, 49 A.3d 1194 (Table), 2012 WL 3096659, at *1 n.3 (Del. July 30,2012);
Erskine v. State, 2013 WL 1919121, at * 1 n.3 (Del. May 7, 2013). For all of these reasons, the
court concludes that Rule 14(b)'s waiver doctrine was finnly established and regularly followed
when Cannon filed his remand motion on February 1,2010.
Given the Delaware Supreme Court's explicit explanation that its refusal to review the
substance of Cannon's jury trial waiver claim was due to the fact that Cannon failed to raise the
remand request and/or jury trial waiver issue in the opening appellate brief, the court concurs
with the State's contention that the Delaware Supreme Court relied on an independent and
adequate state procedural rule in refusing to review the merits of claim five. 5 Thus, claim five is
procedurally defaulted, and the court cannot review its merits absent a showing of cause for the
default, and prejudice resulting therefrom, or upon a showing that a miscarriage ofjustice will
occur if the claim is not reviewed.
Cannon does not assert any cause for his default ofthe instant jury trial waiver argument.
Rather, he merely contends that he exhausted state remedies for this argument by presenting it to
the Delaware Supreme Court in his motion to remand and by citing specific federal constitutional
or statutory provisions. (D.1. 8 at 6-7) This argument is unavailing, because exhaustion requires
that the claim be presented to the highest state court in a manner permitting the state court to
The court finds support for this conclusion in Buck v. Colleran, 115 F. App'x 526,528 (3d Cir.
2004), a Third Circuit case involving Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure. In Buck, the Third Circuit recognized that a failure to comply with Rule 1925(b) and
identify all the issues to be reviewed on appeal resulting in a waiver of those claims at the state
court level constitutes a procedural default on independent and adequate state grounds.
Significantly, Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure requires an
appellant to file a concise statement of errors complained of on appeal; this requirement is
similar to Delaware Supreme Court Rule 14's requirement that all arguments must be presented
in the opening appellate brief in order to avoid waiver. Although not precedential, the court
finds the Buck Court's reasoning persuasive and, therefore, follows suit.
20
5

review the claim on its merits. As previously explained, the fact that Cannon presented the
instant jury waiver issue in his motion to remand rather than in his opening appellate brief caused
the Delaware Supreme Court to view the argument as waived; the omission or inclusion of
specific citations does not "cure" this error.
In the absence of cause, the court need not discuss the issue of prejudice. Nevertheless,
Cannon's conclusory statement that his right to a fair trial was prejudiced by the absence of any
explicit waiver of his right to have a jury trial on the PDWPP charge fails to demonstrate the
prejudice needed to excuse a procedural default. Significantly, there is no Supreme Court or
constitutional precedent requiring a court to conduct an on-the-record colloquy before accepting
a defendant's waiver of his right to be tried by ajury. See United States v. Lilly, 536 F.3d 190,
197 (3d Cir. 2008). In addition, Cannon's assertions do not satisfy his burden to establish that
his jury trial waiver was not expressly and intelligently made. See Adams v. United States ex reI.
McCann, 317 U.S. 269, 281 (1942).

Cannon also contends that the court should excuse his default in order to prevent a
miscarriage ofjustice. This argument is similarly unavailing, because he has failed to provide
"new reliable evidence" of his actual innocence. Accordingly, the court will deny claim five as
procedurally barred. 6

The court does not view the Delaware Supreme Court's statement that the "motion [to
remand] is without merit in any case" as an alternative holding denying as meritless Cannon's
jury trial waiver argument. The language used by the Delaware Supreme Court indicates that
it found Cannon's reasons for remand to be meritless, not that the actual jury trial waiver
argument lacked merit. Nevertheless, even ifthe Delaware Supreme Court did alternatively
deny as meritless Cannon's underlying jury trial waiver argument, the court still denies claim
five as procedurally defaulted, given the Delaware Supreme Court's explicit invocation of the
waiver doctrine set forth in Delaware Supreme Court Rules 8 and 14. See Harris, 489 U.S. at
264 n.lO; Johnson v. Pinchak, 392 F.3d 551, 557-58 (Del. 2004).
21
6

E. Claim Six: Actual Innocence
In claim six, Cannon contends that he is actually innocent of the crimes for which he was
convicted. Specifically, he argues that his actual innocence is demonstrated by the fact that the
Dendys recanted their out-of-court identification of him as being the shooter.
The Supreme Court has not resolved whether a prisoner is entitled to habeas relief for a
freestanding claim of actual innocence. See McQuiggin v. Perkins,

U.S. _ , 133 S.Ct. 1924

(2013); see also Sistrunk v. Rozum, 674 F.3d 181, 187 n.2 (3d Cir. 2012). Rather, "a credible
showing of actual innocence may allow a prisoner to pursue his constitutional claims on the
merits notwithstanding the existence of a procedural [or timeliness] bar to relief." Id. However,
these "gateway claims" of actual innocence will permit a habeas court to review the merits of
procedurally barred claims only if the petitioner proves his claim of actual innocence with new
reliable evidence that was not presented at trial. House, 126 S.Ct. at 2077; Hubbard v. Pinchak,
378 F.3d 333, 340 (3d Cir. 2004).
Given the absence of clearly settled federal law establishing the cognizability of a
freestanding "actual innocence" claim, the court will deny claim six for failing to present a
proper basis for habeas relief. Nevertheless, even if the court were to consider the instant
argument as presenting a proper basis for federal habeas relief, it would be unavailing. In

Herrera v. Collins, 506 U.S. 390,417 (1993), the Supreme Court raised the possibility of
recognizing "actual innocence" claims as cognizable issues in capital cases, but advised that the
burden of showing actual innocence in order to establish a freestanding claim would be higher
than the burden to make out a gateway claim of actual innocence. Id. In this case, Cannon has
not even satisfied the burden for establishing a gateway claim of actual innocence because he has

22

not proffered any new reliable evidence of his actual innocence that was not presented at trial.
Thus, his attempt to establish a freestanding claim of actual innocence necessarily fails.

F. Motion for Appointment of Counsel
During the pendency of this proceeding, Cannon filed a motion requesting the
appointment of counsel. (D.1. 23) Given the court's conclusion that the instant petition does not
warrant relief, the court will deny the motion as moot.

IV.

CERTIFICATE OF APPEALABILITY
When a district court issues a final order denying a § 2254 petition, the court must also

decide whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating "that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 484 (2000). If a federal court denies a habeas petition on
procedural grounds without reaching the underlying constitutional claims, the court is not
required to issue a certificate of appealability unless the petitioner demonstrates that jurists of
reason would find it debatable: (1) whether the petition states a valid claim of the denial of a
constitutional right; and (2) whether the court was correct in its procedural ruling. Id.
The court has concluded that Cannon's petition fails to warrant federal habeas relief, and
is persuaded that reasonable jurists would not find this conclusion to be debatable. Therefore,
the court will not issue a certificate of appealability.

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V.

CONCLUSION
For the reasons stated, Cannon's petition for habeas relief pursuant to 28 U.S.C. § 2254 is

denied without an evidentiary hearing or the issuance of a certificate of appealability. An
appropriate order shall issue.

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