383 F.3d 1152 (10th Cir. 2004), 03-5008, Cannon v. Mullin

Docket Nº:03-5008.
Citation:383 F.3d 1152
Party Name:Jemaine Monteil CANNON, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
Case Date:September 13, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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383 F.3d 1152 (10th Cir. 2004)

Jemaine Monteil CANNON, Petitioner-Appellant,


Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 03-5008.

United States Court of Appeals, Tenth Circuit

September 13, 2004

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Stephen J. Greubel, Tulsa, OK, (Jemaine Monteil Cannon, with him on the briefs), for Petitioner-Appellant.

Brant M. Elmore, Assistant Attorney General, Criminal Division (W.A. Drew Edmondson, Attorney General, and David M. Brockman, Assistant Attorney General, Criminal Division, on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before KELLY, HARTZ, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Jemaine Monteil Cannon was convicted in Oklahoma state court of first degree murder and sentenced to death. After the Oklahoma Court of Criminal Appeals (OCCA) denied his direct appeal and his pro se state petition for post-conviction relief, Mr. Cannon timely filed an application for relief under 28 U.S.C. § 2254. The United States District Court for the Northern District of Oklahoma rejected Mr. Cannon's request for an evidentiary hearing and denied all relief.

On appeal Mr. Cannon raises numerous claims of ineffective assistance of trial counsel; three claims of trial counsel misconduct, which we recharacterize as additional claims of ineffective assistance of counsel; and a claim of ineffective assistance of appellate counsel for failure to pursue on appeal the claims of ineffectiveness of trial counsel. We have jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. We affirm on all claims except three. There are factual issues regarding the merits and procedural bar with respect to Mr. Cannon's allegations that (1) his trial counsel failed to notify the court of improper contacts between prosecution witnesses and jurors during trial recesses, and (2) his trial counsel prevented him from testifying in his own defense at trial. We therefore reverse and remand to the

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district court for further proceedings on those two claims. We also remand for further consideration Mr. Cannon's claim of ineffective assistance of appellate counsel.


Because Mr. Cannon filed his habeas petition after the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that statute governs our review. See Rogers v. Gibson, 173 F.3d 1278, 1282 n. 1 (10th Cir. 1999). Under AEDPA factual determinations made by state courts are presumed to be correct. See 28 U.S.C. § 2254(e) (1). Thus, we adopt the OCCA's recitation of facts.

On February 3, 1995, [Mr. Cannon] stabbed to death his girlfriend, Sharonda Clark [also referred to as Sharonda White]. The contested issue at trial was whether [Mr. Cannon] stabbed Clark with malice aforethought or in self-defense. Tulsa police found Clark's body in her apartment after Jacque Pepper contacted police when she could not locate Clark who had been missing for over twenty-four hours. Clark had been stabbed several times in the neck and chest. She also had incise wounds on her hands commonly characterized as defensive wounds. Sheena Elliott testified that she saw [Mr. Cannon] and Clark around noon on the third and that she sensed they were having an argument. Elliott tried to telephone Clark later in the afternoon to check on her, but [Mr. Cannon] told her that Clark was not there even though Elliott could hear Clark in the background. No one, except [Mr. Cannon], had contact with Clark after noon on the third.

On February 4, 1995, [Mr. Cannon] borrowed money, bought a bus ticket and went to Flint, Michigan to stay with an uncle. From Michigan, [Mr. Cannon] telephoned his mother who told him Clark was dead and to turn himself in and tell police his side of the story. After convincing [Mr. Cannon] to turn himself in, [Mr. Cannon]'s mother told Tulsa police detective Tom Fultz [Mr. Cannon]'s location. Shortly thereafter, [Mr. Cannon] telephoned Detective Fultz and told him that he killed Clark in self-defense. [Mr. Cannon] was arrested shortly after his conversation with Fultz and he was returned to Oklahoma. Although [Mr. Cannon] claimed he killed Clark in self-defense and that they had a violent fight, [Mr. Cannon] did not have any wounds or noticeable abrasions when he was arrested.

Cannon v. State, 961 P.2d 838, 843 (Okla.Crim.App.1998). Other facts will be set forth as necessary to the discussion.


A jury in the District Court of Tulsa County, Oklahoma, convicted Mr. Cannon of murder in the first degree. The jury found four aggravating circumstances and recommended a sentence of death. The trial court sentenced him accordingly. Mr. Cannon was represented at trial by attorneys Sid Conway and Julie O'Connell from the Tulsa Public Defender's office. A different attorney from the Tulsa Public Defender's office, Barry Derryberry, represented Mr. Cannon on direct appeal to the OCCA, which affirmed his conviction. See Cannon v. State, 961 P.2d 838.

Mr. Cannon later pursued post-conviction remedies in the OCCA. Although he was originally represented by the Oklahoma Indigent Defense System (OIDS), an entity distinct from the Public Defender's office, he later elected to represent himself, with OIDS serving as standby counsel. He raised a number of claims of ineffective assistance of counsel and sought an evidentiary hearing. The OCCA denied relief and denied his request for an evidentiary hearing.

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On August 16, 1999, Mr. Cannon filed an application for relief under 28 U.S.C. § 2254 with the United States District Court for the Northern District of Oklahoma. The district court denied the application on December 9, 2002. Mr. Cannon obtained a certificate of appealability (COA) from the district court on the ineffective-assistance-of-counsel and trial-counsel-misconduct issues. See 28 U.S.C. § 2253(c). He filed an opening brief and a reply brief with this court; standby counsel filed a supplemental brief addressing only procedural bar and appeared at oral argument on behalf of Mr. Cannon. We now address the issues authorized by the COA.


All Mr. Cannon's claims on appeal amount to allegations of ineffective assistance of counsel. We will address the claim of ineffective assistance of appellate counsel after concluding our discussion of the claims of ineffective assistance of trial counsel.

To prevail on a trial-counsel-ineffectiveness claim, a defendant must satisfy the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, he must show that counsel's performance was deficient. Id. at 687, 104 S.Ct. 2052. Second, he must show that counsel's deficient performance prejudiced his defense. Id. To show that counsel's performance was deficient, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." id. at 688, 104 S.Ct. 2052--that is, was not "within the range of competence demanded of attorneys in criminal cases." Id. at 687, 104 S.Ct. 2052 (internal quotation marks omitted). To show prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, ... the [jury] would have had a reasonable doubt respecting guilt." Id. at 694-95, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

None of Mr. Cannon's current ineffective-assistance claims was raised on direct appeal to the OCCA. Oklahoma, unlike most jurisdictions, generally requires a criminal defendant to raise such claims on direct appeal or forfeit them. See 22 Okla. Stat. §§ 1086, 1089; Walker v. State, 933 P.2d 327, 332 (Okla.Cr.App.1997). As a result, the State argues that Mr. Cannon's claims are procedurally barred.

When questions of procedural bar are problematic, however, and the substantive claim can be disposed of readily, a federal court may exercise its discretion to bypass the procedural issues and reject a habeas claim on the merits. See Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000). All but two of Mr. Cannon's claims of ineffective trial counsel are clearly without merit, so we will dispose of them without regard to procedural bar. We will then address the remaining two claims; after determining that these claims have potential merit, we will proceed to consider whether they are procedurally barred and whether Mr. Cannon should have the opportunity to develop the pertinent facts at an evidentiary hearing.

A. Meritless Claims

Under AEDPA we may not grant Mr. Cannon's application for relief:

with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal

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law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). If, however, the state court did not adjudicate a claim on the merits, this court defers to any state-court factual determinations, see 28 U.S.C. § 2254(e) (1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct."), and...

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