Cannon v. Sirmons

Filing 306

OPINION AND ORDER by Judge Terence Kern Denying Dockets 10 and 13 ; denying certificate of appealability; striking/terminating deadline(s)/Hearing(s); adding party Anita Trammell ; accepting 300 Report and Recommendation (Re: 200 Order, Denying Certificate of Appealability, ) (cds, Dpty Clk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA

JEMAINE MONTEIL CANNON,

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Petitioner
vs.
ANITA TRAMMELL, Warden,1
Respondent.

No. 99-CV-297-TCK-PJC

OPINION AND ORDER
This is a 28 U.S.C. § 2254 habeas corpus action, filed by death row inmate Jemaine Cannon,
and remanded by the Tenth Circuit Court of Appeals. Cannon v. Mullin, 383 F.3d 1152 (10th Cir.
2004). The Court has for consideration the second Report and Recommendation (R&R) of United
States Magistrate Judge Paul Cleary (Dkt. # 300), entered on January 15, 2013. Judge Cleary
recommends that the petition for writ of habeas corpus be denied. Petitioner filed his objections to
the R&R on March 21, 2013 (Dkt. # 305). Respondent did not file a response to the objections.
In accordance with Rule 8(b) of the Rules Governing Section 2254 Cases and 28 U.S.C. §
636(b)(1)(C), the Court has reviewed de novo those portions of the R&R to which Petitioner has
objected, and concludes that, for the reasons discussed below, the R&R should be accepted over
Petitioner’s objections. The petition for writ of habeas corpus shall be denied.

1

Anita Trammel is no longer the “Interim Warden” of Oklahoma State Penitentiary. She was
appointed Warden on February 28, 2013. Therefore, the Court Clerk shall substitute Anita
Trammell, Warden, in place of Anita Trammell, Interim Warden, as party Respondent. See Fed. R.
Civ. P. 25(d).
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BACKGROUND
Petitioner initiated the instant habeas corpus action on April 22, 1999. By Order entered
December 9, 2002 (Dkt. # 81), this Court denied Petitioner’s request for a writ of habeas corpus.
Petitioner appealed to the Tenth Circuit Court of Appeals. The appellate court affirmed the decision
of this Court to deny habeas corpus relief, with the exception of three (3) ineffective assistance of
counsel issues: (1) ineffective assistance of trial counsel for failure to notify the trial court of alleged
improper contacts between prosecution witnesses and jurors during trial recesses; (2) ineffective
assistance of trial counsel for preventing Mr. Cannon from testifying in his own behalf at trial; and
(3) ineffective assistance of appellate counsel for failing to raise the above ineffective assistance of
trial counsel claims on direct appeal. Cannon, 383 F.3d 1152. The appellate court did not direct this
Court to grant relief on these issues, but gave instructions for further review in the manner this Court
determined to be most effective.2 Id. at 1178. By Order entered January 13, 2005 (Dkt. # 108), this
Court determined that the best method for conducting its mandated review would be to address
certain issues in phases.
Phase I
It was determined that the first review phase (Phase I) was limited to consideration of
whether Petitioner’s appellate counsel and trial counsel were “separate” under the standards
delineated in Kimmelman v. Morrison, 477 U.S. 365 (1986), and English v. Cody, 146 F. 3d 1257

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The Circuit Court noted that resolution of the two ineffective assistance of trial counsel
claims “may moot the ineffective-appellate-counsel claims if the district court resolves the trialcounsel claims on the merits (either denying relief because they do not have merit or granting relief
because they do).” Cannon, 383 F.3d at 1178.
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(10th Cir. 1998).3 The evidentiary hearing on Phase I was conducted on June 14-16, 2006. See Dkt.
## 174-176. Additional briefing was provided by the parties following the hearing (Dkt. ## 187,
189). In a thorough R&R, Judge Cleary recommended a finding by the District Court that, for
purposes of procedural bar analysis, Petitioner’s trial and appellate counsel were not “separate.” See
Dkt. # 204 at 44. By Order entered December 6, 2007, this Court adopted and affirmed Judge
Cleary’s R&R (Dkt. # 209). Because trial and appellate counsel were not separate, the ineffective
assistance of trial counsel claims were not procedurally barred. Thus, the Court proceeded to
consider the ineffective assistance of trial counsel claims.
Phase II
Upon conclusion of the Phase I review, the parties were ordered to submit briefs addressing
Petitioner’s diligence in pursuing an evidentiary hearing on the issue of whether his trial attorney
was ineffective for failing to inform the trial court of improper juror contact4 (Phase II). See Dkt.
# 209 at 9. The parties complied (Dkt. ## 216, 218, 221). By Order entered March 18, 2011, the
Court found that Petitioner was not diligent in developing facts underlying his juror contact claim,
and was not entitled to an evidentiary hearing on the ineffective assistance of counsel claim related
to alleged improper juror contact. See Dkt. # 222 at 12. Noting that Petitioner’s allegations regarding
improper juror contact, as set forth in his January 27, 1999, affidavit submitted to the OCCA as part

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The Circuit advised that, on the record before that Court, it would have to conclude that
trial and appellate counsel were not “separate” within the meaning of the word as determined in
English. However, “[o]n remand, the district court may grant the State an evidentiary hearing that
could establish otherwise.” Cannon, 383 F.3d at 1174.
4

As part of its Order remanding this matter, the Circuit Court directed this Court to address
whether Petitioner was diligent in trying to develop the facts underlying his juror-contact claim.
Cannon, 383 F.3d at 1177.
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of his post-conviction proceeding, contain no first-hand knowledge and are all hearsay, the Tenth
Circuit advised this Court that: “[w]hether Mr. Cannon has a meritorious claim will depend,
however, on whether he is entitled to an evidentiary hearing on this claim and whether such hearing
elicits persuasive evidence supporting his assertions.” Cannon, 383 F.3d at 1170, 1177. Having
determined that Petitioner is not entitled to an evidentiary hearing in Phase II, the Court concludes
that Petitioner’s ineffective assistance of counsel claim relating to alleged improper juror contact
lacks merit.
Phase III
The final remaining issue for consideration on remand is whether trial counsel was
ineffective for allegedly preventing Petitioner from testifying in his own behalf at trial (Phase III).
The matter was referred to Magistrate Judge Cleary for the purpose of holding an evidentiary
hearing on this issue (Dkt. # 222). The evidentiary hearing was held July 9-11, 2012. See Dkt.
##281, 282, 283. The parties each filed Proposed Findings of Fact and Conclusions of Law (Dkt.
## 292, 293). Judge Cleary filed his R&R on January 15, 2013 (Dkt. # 300). In the R&R, Judge
Cleary recommends a finding by the District Court that Petitioner’s petition for habeas corpus relief
based on his allegation that he was denied the right to testify at his 1996 trial be denied (Id. at 51).
Petitioner objects to the R&R in its entirety (Dkt. # 305).
DISCUSSION
Judge Cleary provided a thorough summary of the factual and procedural background of this
case in his R&R. That summary is hereby adopted by reference. In brief, Petitioner was convicted
by a jury in Tulsa County District Court of Murder in the First Degree, in Case No. CF-95-727. He
was represented at trial by attorneys Sid Conway and Julie O’Connell from the Tulsa Public

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Defenders Office. At the conclusion of the sentencing stage of the trial, the jury found the existence
of four aggravating circumstances and recommended a death sentence as punishment for the murder.
The trial court sentenced Petitioner accordingly.
Following unsuccessful direct appeal and post-conviction proceedings in state court,
Petitioner filed his petition for writ of habeas corpus in this Court. The issues under consideration
in this Order are the final issues pending in this habeas proceeding.
1.

Governing law
Petitioner acknowledges that his constitutional claim that he was denied the effective

assistance of counsel when he was not allowed to testify at his 1996 trial is governed by the
principles of Strickland v. Washington, 466 U.S. 668 (1984). To be entitled to habeas corpus relief
on this claim, Petitioner must show that his counsel’s performance was deficient and that the
deficient performance was prejudicial. Strickland, 466 U.S. at 687; Osborn v. Shillinger, 997 F.2d
1324, 1328 (10th Cir. 1993). Petitioner can establish the first prong by showing that counsel
performed below the level expected from a reasonably competent attorney in criminal cases.
Strickland, 466 U.S. at 687-88. There is a “strong presumption that counsel’s conduct falls within
the range of reasonable professional assistance.” Id. at 688. In making this determination, a court
must “judge . . . [a] counsel’s challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct.” Id. at 690. Moreover, review of counsel’s performance must be
highly deferential. “[I]t is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Id. at 689.
To establish the second prong, Petitioner must show that this deficient performance prejudiced the
defense, to the extent that “there is a reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694; see also Sallahdin v.
Gibson, 275 F.3d 1211, 1235 (10th Cir. 2002); Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).
A federal habeas court may intercede only if the petitioner can overcome the “doubly deferential”
hurdle resulting from application of the standards imposed by § 2254(d) and Strickland. Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011). If Petitioner is unable to show either “deficient
performance” or “sufficient prejudice,” his claim of ineffective assistance fails. Strickland, 466 U.S.
at 700. Thus, it is not always necessary to address both Strickland prongs.
In Petitioner’s case, out of an abundance of caution, Judge Cleary addressed both prongs of
the Strickland standard, and concluded that Petitioner did not show that his counsel’s performance
was deficient or that he was prejudiced.5
2.

Objections to deficient performance prong6
First, Petitioner asserts that Judge Cleary erred in concluding that trial counsel’s performance

was not deficient under Strickland. In challenging Judge Cleary’s finding that trial counsel did not
refuse to allow Petitioner to testify, Petitioner appears to place the burden on Respondent to establish
that Petitioner’s attorney advised him of his right to testify and did not prevent him from testifying

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The Tenth Circuit stated that if Petitioner’s allegations about trial counsel depriving him
of his right to testify were found to be true, then “such dereliction of duty by counsel would satisfy
the first prong of Strickland.” Cannon, 383 F.3d at 1171. However, the Circuit Court went on to say
that “the issue of prejudice is of sufficient doubt that it should not be resolved in the first instance
by this court.” Thus, the District Court was ordered “to resolve factual disputes regarding whether
Mr. Cannon’s attorney actually prevented him from testifying and, if so, whether Mr. Cannon
suffered the requisite prejudice.” Id. at 1172.
6

Because this claim involves Petitioner’s assertion that his trial counsel’s performance was
constitutionally deficient because the attorney denied him his right to testify at trial, Judge Cleary
has referred to the first prong as the “Denial Prong.” See Dkt. # 300 at 5.
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in his own defense. See Dkt. # 305 at 13. The burden of showing that trial counsel refused to allow
him to testify, however, is on Petitioner. See Strickland, 466 U.S. at 687 (“the defendant must show”
that counsel was deficient).
Petitioner criticizes the R&R conclusions that (1) Petitioner’s testimony was not credible,
and (2) the attorneys’ testimony, concerning their customary practice to advise clients of their right
to testify and to never prevent a client from testifying if that is what he or she wanted to do, was
credible. See Dkt. # 305 at 7-8. Faced with conflicting testimony, Judge Cleary made credibility
determinations in accord with his role of fact-finder. See Heizer v. Shepherd, 236 Fed. Appx. 366,
371 (10th Cir. 2007) (unpublished).7 His credibility findings are entitled to deference. See United
States v. Benoit, 274 Fed. Appx. 689, 692 (10th Cir. 2008) (unpublished). The Magistrate Judge had
the opportunity to observe the witnesses while testifying and note their demeanor on the witness
stand. See e.g., Nat’l Refining Co. v. Wagner, 169 F.2d 43, 45 (10th Cir. 1948). He concluded that
Petitioner’s account of events was less credible than that of the trial attorneys. In addition to the
testimony of witnesses, Judge Cleary considered written evidence supplied by the parties, including,
but not necessarily limited to, a 1998 letter from trial attorney Julia O’Connell to Petitioner, in which
she specifically stated, “I cannot swear out an affidavit claiming I would not let you testify, because
I never told you that you couldn’t testify and I don’t recall you informing me you wanted to testify.”
See Dkt. # 218, Ex. 4. Upon de novo review of the evidentiary hearing record and the R&R in light
of Petitioner’s objections, the Court finds that Petitioner’s arguments concerning the alleged
deficient performance of counsel are without merit. Accordingly, the Court accepts the Magistrate’s

7

This unpublished opinion, and others, are cited for persuasive value. See 10th Cir. R.

32.1(A).
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conclusion that Petitioner has not demonstrated that trial counsel performed deficiently as required
by Strickland.
3.

Objections to prejudice prong
As the second part of his objections to the R&R, Petitioner first asserts that Judge Cleary

applied the incorrect standard in concluding that Petitioner was not prejudiced. See Dkt. # 305 at
67. Judge Cleary correctly stated that the second prong of Strickland requires a showing that
counsel’s error were so serious that Cannon was deprived of a fair trial - “a trial whose result is
reliable.” See R&R (Dkt. # 300 at 41) (quoting Strickland, 466 U.S. at 687). Citing both Strickland
and Harrington v. Richter, 131 S.Ct 770, 787 (2011), Judge Cleary noted that Petitioner must
establish a reasonable probability that, but for counsel’s errors, there would have been a different
result. Further, the likelihood of a different result must be substantial. (Dkt. # 300 at 41).
Questioning the language in the Harrington decision, Petitioner contends that the Strickland standard
does not require a “substantial” likelihood of a different result. See Dkt. # 305 at 68. Although
Petitioner is correct that Strickland does not contain the exact words attributed to it by the
Harrington decision, it is not uncommon for a Supreme Court case to fine-tune a previous decision
from the Court. The Harrington Court simply provided an expanded explanation of the prejudice
component of the Strickland standard, and Judge Cleary was not wrong in citing the Harrington
language.
Petitioner urges this Court to believe that, if he had testified at trial, at least one juror would
have concluded that he acted in self defense in taking the life of his victim. Judge Cleary, however,
found that Petitioner’s testimony was not credible and concluded that his testimony would not have
made a difference in the jury’s decision to find him guilty of First Degree Murder. Upon careful

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review of the trial transcript and evidence presented at the evidentiary hearing, this Court agrees.
On cross-examination, the State undoubtedly would have used Petitioner’s prior conviction for
Assault and Battery With Intent to Kill to impeach his testimony at trial. This Court cannot find that
“the jury’s view would have been changed by hearing Mr. Cannon’s live testimony, particularly in
light of what could have been elicited on cross-examination.” Cannon, 383 F.3d at 1171-72. After
reviewing the record and R&R in light of Petitioner’s objections, the Court finds that Petitioner’s
arguments are without merit. Accordingly, the Court accepts the Magistrate’s conclusion that
Petitioner has not demonstrated prejudice as required by Strickland.
4.

Ineffective assistance of appellate counsel
Finally, the Court concludes that appellate counsel was not ineffective for failing to raise

ineffective assistance of trial counsel claims related to Petitioner’s claims of improper juror contact
and that he was not allowed to testify. When a habeas petitioner alleges that his appellate counsel
rendered ineffective assistance by failing to raise an issue on direct appeal, the Court first examines
the merits of the omitted issue. Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999). “If the
omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even
from an otherwise strong appeal, its omission may directly establish deficient performance; if the
omitted issue has merit but is not so compelling, the case for deficient performance is more
complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential
consideration must be given to any professional judgment involved in its omission; of course, if the
issue is meritless, its omission will not constitute deficient performance.” Cargle v. Mullin, 317 F.3d
1196, 1202 (10th Cir. 2003) (citation and footnote omitted); see also Parker v. Champion, 148 F.3d
1219, 1221 (10th Cir. 1998) (citation omitted). Having found the ineffective assistance of trial

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counsel claims meritless, the ineffective assistance of appellate counsel claim is, likewise, without
merit. Cannon, 383 F.3d at 1178.
4. Certificate of Appealability
Rule 11, Rules Governing Section 2254 Cases in the United States District Courts, instructs
that “[t]he district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” The Court recognizes that “review of a death sentence is among the most
serious examinations any court of law ever undertakes.” Brecheen v. Reynolds. 41 F.3d 1343, 1370
(10th Cir. 1994). To be granted a certificate of appealability, however, Petitioner must demonstrate
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner
can satisfy that standard by demonstrating that the issues raised are debatable among jurists of
reason or that the questions deserve further proceedings. Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). “Obviously the petitioner need not show that he should prevail on the merits. He has already
failed in that endeavor.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (citations omitted).
The Court reviewed each of the remanded issues, and found that Petitioner was not denied
the effective assistance of either trial or appellate counsel. However, the Court recognizes that these
issues relate to the alleged deprivation of one of his constitutional rights, which, if substantiated,
could entitle him to habeas relief. In order to ensure that these issues receive the type of review on
appeal which should be accorded such serious matters, the Court finds that the remanded issues
could be debated among jurists or could be resolved differently by another court. Additionally, this
Court finds that these same issues are adequate to deserve encouragement to proceed further. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot, 463 U.S. at 893).

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CONCLUSION
The Court has reviewed de novo those portions of the R&R to which the Petitioner has
objected, see Rule 8(b), Rules Governing Section 2254 Cases, and 28 U.S.C. § 636(b)(1)(C), and
concludes that the R&R of the United States Magistrate Judge (Dkt. # 300) should be accepted.
Petitioner’s objections are overruled. Petitioner’s trial counsel did not provide ineffective assistance
in violation of the Sixth Amendment. Appellate counsel was not ineffective for failing to raise these
ineffective assistance of counsel claims on direct appeal. As a result, the petition for writ of habeas
corpus shall be denied as to the issues remanded from the Tenth Circuit Court of Appeals.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

The Court Clerk is directed to substitute Anita Trammell, Warden as Respondent.

2.

The Report and Recommendation of the United States Magistrate Judge (Dkt. # 300) is
accepted.

3.

This is a final order, and all requests for relief contained in the petition for writ of habeas
corpus (Dkt. ## 10, 13) are denied.

4.

A separate judgment shall be entered in this matter.

5.

A Certificate of Appealability is granted as to the issues remanded to the Court and
rejected.

DATED this 30th day of April, 2013.

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