259 F.3d 1253 (10th Cir. 2001), 99-6311, Cannon v. Gibson

Docket Nº:99-6311
Citation:259 F.3d 1253
Party Name:RANDALL EUGENE CANNON, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case Date:August 07, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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259 F.3d 1253 (10th Cir. 2001)

RANDALL EUGENE CANNON, Petitioner-Appellant,


GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 99-6311

United States Court of Appeals, Tenth Circuit

August 7, 2001

Appeal from the United States District Court for the W. District of Oklahoma (D.C. No. 97-CV-346-L)

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Jack Fisher, Edmond, Oklahoma, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General of Oklahoma, (W. A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR, LUCERO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.


Randall Eugene Cannon appeals from the district court's denial of his federal habeas corpus petition brought pursuant to 28 U.S.C. § 2254. In his petition, Cannon lodged numerous challenges to his Oklahoma first degree murder and arson convictions and to his death sentence. The district court denied relief as to each claim but granted Cannon a certificate of appealability ("COA") to raise five issues on appeal. See supra section II.B. After conducting a case management conference, this court granted Cannon a COA to raise three additional issues. See supra section II.B. After a thorough review of the record and consideration of Cannon's appellate contentions, this court concludes that Cannon is not entitled to habeas relief. Accordingly, this court exercises jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c) and affirms the district court's denial of Cannon's § 2254 habeas corpus petition.


A. Factual Background

Cannon and his co-defendant Loyd LaFevers were convicted in state court of murdering eighty-four-year-old Addie Hawley. The Oklahoma Court of Criminal Appeals ("OCCA") recounted the facts of the crime as follows:

On June 24, 1985, [LaFevers] and . . . Cannon decided to steal a car after [LaFevers'] car broke down in a northwest Oklahoma City neighborhood. After selecting a house in the neighborhood, the two men forced their way into the home of eighty-four year old Addie Hawley. They ransacked her home, taking eight dollars from her purse, along with the keys to her car and the garage door opener. The two took her out of the house and into the car. Cannon, who was driving the car, drove for just over a mile before pulling over so that they could put Hawley in the trunk.

The two men drove to a convenience store where they bought a two liter bottle of orange soda. After drinking some of the soda, they poured the rest out and filled the bottle with gasoline. [LaFevers] directed Cannon to drive to a secluded area where he removed Hawley from the trunk of the car. Although there was evidence presented at trial that indicated that Hawley was raped, neither defendant admitted having committed rape or sodomy. Each man indicated in his pretrial confession to police and during his testimony at trial that the other man had committed the sexual offenses while he remained as a lookout.

After the completion of the sex acts, one of the two men, again each blamed the other, poured gasoline from the orange soda bottle on Hawley and set her on fire. They drove the car a short distance away and also set it on fire.

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Rescue personnel were called to the scene soon after the fires were set. Although Hawley had been burned over sixty percent of her body, she was still alive. She had suffered a blunt injury to the forehead and had two black eyes along with multiple cuts and bruises. She died a short time after being taken to the hospital.

Lafevers v. State, 819 P.2d 1362, 1364 (Okla. Crim. App. 1991) (footnote omitted); see also Cannon v. State, 827 P.2d 1339, 1340-41 (Okla. Crim. App. 1992) (noting that facts of Cannon's case were detailed in the OCCA's original opinion in Lafevers); Cannon v. State, 904 P.2d 89, 100-01 (Okla. Crim. App. 1995) (Cannon I) (setting forth in detail contents of Cannon's written statement to police and taped confession).

B. Procedural Background

An Oklahoma jury found Cannon guilty of first degree murder, rape, forcible sodomy, and arson.1 The jury sentenced Cannon to death for the murder conviction. On direct appeal, the OCCA vacated the rape and sodomy convictions, concluding they were not supported by sufficient evidence; it affirmed the murder and arson convictions and death sentence. See Cannon I, 904 P.2d at 102, 108. Cannon then filed an application for post-conviction relief, along with a request for an evidentiary hearing, directly with the OCCA.2 The OCCA rejected the request for an evidentiary hearing and denied Cannon's application for post-conviction relief. See Cannon v. State, 933 P.2d 926, 930 (Okla. Crim. App. 1997) (Cannon II).

After the OCCA denied his request for post-conviction relief, Cannon filed a 28 U.S.C. § 2254 habeas petition in federal district court. The district court denied relief as to each of the numerous claims set forth in the petition. It did, however, grant Cannon a COA, see 28 U.S.C. § 2253(c), to raise the following five claims on appeal: (1) statements Cannon made after his arrest were improperly admitted at trial because the statements were fruits of an illegal arrest and detention; (2) evidence seized during a warrantless search of Cannon's home was improperly admitted at trial; (3) trial counsel was constitutionally ineffective during the guilt phase of the trial; (4) prosecutors violated Cannon's due process rights when they failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83 (1963), evidence favorable to the defense; and (5) trial counsel was constitutionally ineffective during the penalty phase of the trial.

This court conducted a case management conference. See In re: Procedures for the Management of Death Penalty Matters issued Apr. 8, 1999. At the conclusion of that conference, Judge Porfilio issued a case management order granting Cannon a COA as to the following additional three claims: (1) the trial court denied Cannon his constitutional right to an impartial jury when it removed a prospective juror for cause; (2) the aiding and abetting instructions given at trial allowed the jury to convict Cannon of malice aforethought murder without any showing that he intended to kill the victim; and (3) the death penalty is invalid because the trial court failed to instruct the jury, pursuant to Tison v. Arizona, 481 U.S. 137 (1987) and Enmund v. Florida, 458 U.S. 782

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(1982), to make findings as to whether Cannon had the specific intent to kill the victim.3


A. Standard of Review

Because Cannon filed his § 2254 habeas petition on September 29, 1997, well after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),4 this court reviews Cannon's petition pursuant to the revised standards of review set out in 28 U.S.C. § 2254(d) and (e).5 See Moore v. Gibson, 195 F.3d 1152, 1160-61 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000). This court recently stated as follows regarding the revised standards of review set forth in § 2254(d)(1):

The Supreme Court . . . elucidated the opaque language of § 2254(d)(1) in Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000) (opinion of O'Connor, J.). Speaking for a majority of the Court in her separate concurring opinion, Justice O'Connor noted the AEDPA allows a federal court to grant habeas relief under § 2254(d)(1) only if the relevant

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state-court decision was either "contrary to" or "an unreasonable application of" established Supreme Court precedent. See id. at 1519. As for § 2254(d)(1)'s "contrary to" clause, Justice O'Connor noted that a state-court decision would be contrary to the Court's clearly established precedent in two circumstances: (1) "the state court applies a rule that contradicts the governing law set forth in [the Court's] cases"; or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from" the result reached by the Supreme Court. Id. at 1519, 1519-20. Under the "unreasonable application" clause, on the other hand, a federal habeas court may grant the writ only if "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 1523. To be clear, "[u]nder § 2254(d)(1)'s 'unreasonable application' clause . . . , a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.

Thomas v. Gibson, 218 F.3d 1213, 1219-20 (10th Cir. 2000).

To the extent that the state court has not addressed the merits of a claim and "the federal district court made its own determination in the first instance," this court reviews "the district court's conclusions of law de novo and its findings of fact, if any, for clear error." LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

B. Guilt Phase Issues

1. Confession Obtained in Violation of the Fourth Amendment

In his habeas petition, Cannon argued that the Oklahoma state courts committed constitutional error when they refused to suppress certain statements he made shortly after his arrest. In particular, Cannon argued that his arrest was illegal because the outstanding warrants for which he was arrested were invalid. He thus argued the custodial statements were fruits of an illegal arrest. The district court concluded that it was barred from reaching the merits of Cannon's claim because Cannon received an opportunity for full and fair...

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