Cannon v. Sirmons

Filing 398

OPINION AND ORDER by Judge Terence Kern ; transferring case to 10th Circuit Court (re: 2nd or Successive 2254 Petition) (terminates case) ; directing court clerk to take action; denying 386 Motion to Stay; granting in part and denying in part 387 Motion to Dismiss (Re: 386 MOTION to Stay , 387 MOTION to Dismiss ) (Documents Terminated: 385 PETITION for Writ of Habeas Corpus - 2254 , 386 MOTION to Stay , 387 MOTION to Dismiss ) (clb, Dpty Clk)

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JEMAINE MONTEIL CANNON,
Petitioner,
v.
CHRISTE QUICK,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 99-CV-297-TCK-SH
CAPITAL CASE
EXECUTION SET: JULY 20, 2023

OPINION AND ORDER
Petitioner Jemaine Monteil Cannon, an Oklahoma prisoner presently incarcerated at the
Oklahoma State Penitentiary (OSP), in McAlester, Oklahoma, is scheduled to be executed by the
State of Oklahoma on July 20, 2023, at 10:00 a.m. This matter is before the Court on Cannon’s
Application for a Writ of Habeas Corpus Pursuant to [28] U.S.C. §§ 2254 and 2241 filed July 14,
2023 (“habeas application”) (Dkt. 385) and Cannon’s Motion to Stay Proceedings filed July 14,
2023 (Dkt. 386). Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus as
Second or Successive (Dkt. 387), along with a supporting brief (Dkt. 388), and an Objection to
Petitioner’s Motion for Stay of Execution (Dkt. 389) on July 17, 2023. As directed by the Court,
Cannon’s counsel filed a Response to the Motion to Dismiss (Dkt. 394) and a Reply to the
Objection (Dkt. 393) on July 18, 2023, and Respondent filed a Reply to the Response to the Motion
to Dismiss (Dkt. 397) that same day.
I.
Through his habeas application, Cannon challenges the lawfulness of his continued
custody, under the judgment and sentence entered against him in Tulsa County District Court Case

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 2 of 7

No. CF-1995-727. Dkt. 385, at 32. 1 Specifically, he claims that the Oklahoma Court of Criminal
Appeals (OCCA) erroneously denied his “third pro se application for capital post-conviction relief
and related motion for evidentiary hearing, in Case No. PCD-2023-511.” Dkt. 385, at 2. In
support of his request for federal habeas relief, Cannon reasserts the same five claims he presented
to the OCCA: (1) the State of Oklahoma lacked jurisdiction to prosecute him for committing
first-degree murder in Indian country because he is Indian (“jurisdiction claim”); (2) the State
“provided [Cannon] with court appointed conflicted trial and appellate counsel which prevented
[Cannon’s] jurisdiction claim from being raised before his conviction became final”; (3) the OCCA
committed “Due Process, Equal Protection and U.S. Constitutional Amendment violations” by
applying State ex rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021), cert. denied
sub nom. Parish v. Oklahoma, 142 S. Ct. 757 (2022) (“Wallace”), to deny Cannon’s jurisdiction
claim as it was asserted in an application for postconviction relief Cannon filed in September 2020;
(4) the “OCCA violated the Ex post Facto Clause” by applying Wallace to deny Cannon’s
jurisdiction claim as it was asserted in the application for postconviction relief Cannon filed in
September 2020; and (5) the OCCA violated a “preexisting, longstanding rule” established by state
law “that subject matter jurisdiction can never be waived or forfeited” by “impermissibly imposing
a condition for vacating a judgment void on its face,”—namely, the condition that the finality of a
conviction precludes relief from the void judgment as held in Wallace. Dkt. 385, at 11-30, 3239. Through his motion to stay, Cannon asks this Court to enter an order staying his execution
pending a ruling on his habeas application. Dkt. 386, at 3.

1

For consistency, the Court’s citations refer to the CM/ECF header pagination.
2

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 3 of 7

II.
Respondent Christe Quick moves to dismiss Cannon’s habeas application, asserting that
this Court lacks jurisdiction to adjudicate the habeas application because Cannon did not seek
authorization from the United States Court of Appeals for the Tenth Circuit to file a second or
successive habeas application, as required by 28 U.S.C. § 2244(b)(3)(A). Dkts. 387, 388, 397.
Cannon contends he was not required to obtain authorization because § 2244(b)’s requirements
apply only to habeas applications seeking relief under 28 U.S.C. § 2254, and his application seeks
relief under 28 U.S.C. § 2241. Dkt. 394.
Having carefully considered the parties’ arguments, the Court agrees with Respondent that
Cannon’s habeas application seeks relief under § 2254, not § 2241. Dkt. 388, at 17-19. In claim
one, Cannon directly challenges the validity of his judgment and sentence based on an alleged lack
of jurisdiction in the trial court. In claim two, Cannon either directly challenges his judgment and
sentence based on an alleged violation of his Sixth Amendment right to the effective assistance of
trial and appellate counsel or asserts that no procedural bars should preclude relief as to the
jurisdiction claim because his failure to raise the jurisdiction claim before his conviction became
final rests on the alleged Sixth Amendment violation. Both claims are most reasonably construed
as seeking relief under § 2254. See Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir.
2008) (explaining that “§ 2241 is a vehicle for challenging pretrial detention” “or for attacking the
execution of a sentence,” whereas § 2254 “is the proper avenue for attacking the validity of a
conviction and sentence,” and stating that the petitioner’s “claim that the state court lacked
jurisdiction over him is an attack on his conviction and sentence”). In his remaining claims,
claims three through five, Cannon alleges constitutional errors arising from the OCCA’s decision
3

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 4 of 7

to deny Cannon’s request for postconviction relief as to the jurisdiction claim Cannon raised in the
application for postconviction relief he filed in September 2020.

Dkt. 385, at 23-30.

As

Respondent contends, these claims do not present cognizable habeas claims because they allege
that constitutional errors occurred during state postconviction proceedings. See Sellers v. Ward,
135 F.3d 1333, 1339 (10th Cir. 1998) (discussing petitioner’s claim that the OCCA erroneously
applied a state procedural rule barring successive postconviction claims to determine that he
waived an actual-innocence claim based on newly discovered evidence and concluding, in part,
that “because the constitutional error Sellers raises focuses only on the State’s post-conviction
remedy and not the judgment which provides the basis for his incarceration, it states no cognizable
federal habeas claim.”); Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986) (describing state
prisoner’s claims as alleging “a denial of the sixth amendment right to effective assistance of
counsel” in postconviction proceedings and a denial of due process and equal protection based on
the state court’s refusal to provide substitute postconviction counsel; describing these claims as
“unrelated to his detention,” concluding prisoner did not state cognizable habeas claims, and
reasoning “that the writ is not the proper means by which prisoners should challenge errors or
deficiencies in state post-conviction proceedings such as Kirby claims here because the claims
address collateral matters and not the underlying state conviction giving rise to the prisoner’s
incarceration”).

Thus, claims three through five do not properly seek federal habeas relief.

Moreover, some of Cannon’s arguments in support of all five claims could be construed as
improperly asking this Court to exercise appellate review over the OCCA’s July 5, 2023, decision.
See Goetz v. Hand, 195 F. Supp. 194, 196 (D. Kan. 1960) (“It is not a function of this court when
presented with petitions for the writ of habeas corpus to act as a super-appellate reviewer of the
4

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 5 of 7

decisions of the state”). Based on the foregoing, the Court construes Cannon’s application as one
seeking relief under § 2254. 2
The Court further agrees with Respondent that the habeas application is an unauthorized
second or successive habeas application subject to § 2244(b)’s requirements. Dkt. 388, at 19-21.
The Antiterrorism and Effective Death Penalty Act instituted a “gate-keeping mechanism for the
consideration of second or successive habeas corpus applications in federal courts.” Case v.
Hatch, 731 F.3d 1015, 1026 (10th Cir. 2013). Under § 2244(b)(3)(A), a petitioner must obtain
authorization from the appropriate court of appeals before filing a second or successive habeas
application in district court. If the petitioner does not obtain the requisite authorization, the
district court does not have jurisdiction to adjudicate any claims raised in the second or successive
petition. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). The record in this case
establishes that Cannon first sought federal habeas relief from the judgment and sentence entered
against him in Tulsa County District Court Case No. CF-1995-797 through the habeas application
he filed in August 1999. Dkt. 10; see also Dkt. 388, at 12-14 (discussing procedural history).
This Court denied that application in December 2002. Cannon v. Mullin, No. 99-CV-297 H(M),
2002 WL 35630319 (N.D. Okla. Dec. 9, 2002) (unpublished). The United States Court of

2

To support his contention that he seeks relief under § 2241, Cannon asserts that his
circumstances are like the circumstances faced by the petitioner in Graham v. White, Case No. 23CV-0164-CVE-SH, 2023 WL 4141662 (N.D. Okla. June 22, 2023). Dkt. 385, at 8; Dkt. 394, at
2-3. Critically, though, unlike the petitioner in that case, Cannon was not granted postconviction
relief as to his jurisdiction claim, did not have the judgment and sentence he seeks to challenge
through the habeas application vacated, did not have his underlying charges dismissed, was not
released from custody, did not have his previously vacated judgment and sentence reinstated, and
was not remanded to custody based on the reinstated judgment and sentence. See Graham, 2023
WL 4141662, at *1-12 (discussing unique procedural facts presented in Graham). As Respondent
states, “Graham bears no resemblance, legally or factually, to this case.” Dkt. 397, at 4.
5

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 6 of 7

Appeals for the Tenth Circuit affirmed in part, reversed in part, and remanded the case to this Court
for further proceedings. Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004), cert. denied 544 U.S.
928 (2005). This Court ultimately denied Cannon’s application as to his remaining claims, the
Tenth Circuit affirmed that decision, and the Supreme Court denied Cannon’s petition for writ of
certiorari. Cannon v. Trammell, 796 F.3d 1256 (10th Cir. 2015), cert. denied sub nom. Cannon
v. Duckworth, 579 U.S. 932 (2016). Nothing in the record demonstrates that Cannon sought or
obtained authorization from the United States Court of Appeals for the Tenth Circuit before filing
the instant habeas application in this Court.

When a petitioner fails to comply with this

requirement, this Court may either dismiss the habeas application, without prejudice, for lack of
jurisdiction or transfer the habeas application to the United States Court of Appeals for the Tenth
Circuit for authorization in the interest of justice pursuant to 28 U.S.C. § 1631. Cline, 531 F.3d
at 1252. Respondent argues, in part, that dismissal is more appropriate because Cannon’s claims
are untimely. Dkt. 388, at 30-33. Respondent may be correct. Nevertheless, given the urgency
of Cannon’s request for habeas relief, this Court finds, contrary to Respondent’s position, that it
would best serve the interests of justice to transfer Cannon’s habeas application to the United States
Court of Appeals for the Tenth Circuit for authorization. Based on this transfer, the Court denies
Cannon’s motion to stay, without prejudice to refiling if Cannon obtains authorization to file a
second or successive habeas application.
III.
IT IS THEREFORE ORDERED that Respondent’s Motion to Dismiss Petition for Writ
of Habeas Corpus as Second or Successive (Dkt. 387) is GRANTED IN PART AND DENIED
IN PART.
6

Case 4:99-cv-00297-TCK-SH Document 398 Filed in USDC ND/OK on 07/19/23 Page 7 of 7

IT IS FURTHER ORDERED that Cannon’s Application for a Writ of Habeas Corpus
Pursuant to [28] U.S.C. §§ 2254 and 2241 filed July 14, 2023 (“habeas application”) (Dkt. 385) is
construed as an unauthorized second or successive habeas application seeking relief under 28
U.S.C. § 2254 and is TRANSFERRED to the United States Court of Appeals for the Tenth Circuit
for authorization.
IT IS FURTHER ORDERED that Cannon’s Motion to Stay Proceedings filed July 14,
2023 (Dkt. 386) is DENIED without prejudice to refiling if Cannon obtains authorization to file a
second or successive habeas application.
IT IS FURTHER ORDERED that a copy of this Opinion and Order shall be sent to Mr.
Cannon through the Oklahoma State Penitentiary via email to the OSP’s Warden at
[e-mail].
DATED this 19th day of July 2023.

7