Cannon v. Trammell
| Decision Date | 11 August 2015 |
| Docket Number | No. 13–5071.,13–5071. |
| Citation | 796 F.3d 1256 |
| Parties | Jemaine Monteil CANNON, Petitioner–Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jack Fisher, Fisher Law Office, Edmond, OK, and Paul S. McCausland, Young, Bogle, McCausland, Wells & Blanchard, Wichita, KS, for Appellant.
Jennifer J. Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of Oklahoma, with her on the brief), Oklahoma City, OK, for Appellee.
Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.
Jemaine Cannon was convicted in 1996 of murdering his then-girlfriend, Sharonda Clarke, and was sentenced to death. After a lengthy state appeals process, he filed a federal habeas petition in the Northern District of Oklahoma, which denied relief. In an appeal to this court in 2004, we concluded Cannon raised substantial questions about the performance of his trial and appellate counsel and remanded to the district court for further proceedings. We directed the court to consider whether Cannon's counsel unconstitutionally (1) failed to investigate alleged contacts between jurors and prosecution witnesses and (2) denied him the right to testify at trial in his defense.
The district court concluded that Cannon had not diligently pursued his claims relating to juror contacts in state court, denied his request for an evidentiary hearing on those claims, and denied relief. The court did, however, hold an evidentiary hearing on Cannon's right-to-testify claim but ultimately denied relief after finding trial counsel had provided adequate assistance concerning the right to testify.
Cannon raises two issues on appeal. First, he argues the district court erred in resolving his juror-contact ineffectiveness claims without an evidentiary hearing and in refusing to grant relief on those claims. We agree with the district court that Cannon was not diligent in developing the factual basis for these claims in state court and thus was not entitled to an evidentiary hearing. Given the resulting absence of any reliable evidence in the record showing that improper contacts occurred, the district court did not err in denying relief on these claims. Cannon's second argument is that the district court erred in finding that counsel (1) informed him of his right to testify, (2) did not prevent him from exercising that right, and (3) properly advised him as to the consequences of testifying. We find no error in the district court's factual and legal conclusions on this issue.
As a result, exercising jurisdiction under 28 U.S.C. § 2253, we AFFIRM.
Jemaine Cannon, who had recently escaped from custody for an unrelated assault conviction, stabbed his girlfriend, Sharonda Clark, to death on February 3, 1995. When she was found more than twenty-four hours later, police discovered that she had been stabbed three times in the throat and once in the center of her chest. After the murder but before his arrest, Cannon spoke to his mother, telling her he had acted in self-defense and that Clark had fallen on the knife after she had attacked him. Although Cannon eventually turned himself in to police, he first called Tulsa police and provided an account of the attack to Detective Tom Fultz. In that conversation, Cannon admitted to stabbing Clark but claimed that he only did so after she attacked him and he snapped.
A jury convicted Cannon of first-degree murder and sentenced him to death.
After his conviction, Cannon appealed directly to the OCCA, which rejected all of his claims. He then petitioned that court for post-conviction relief, presenting a number of ineffective assistance of counsel claims concerning both trial and appellate counsel. Three of these claims are now at issue.
In 1999, Cannon filed a petition for a writ of habeas corpus in federal district court, which the district court subsequently dismissed. Cannon then appealed to this court. We reversed the district court's determination that Cannon's failure to present his ineffective assistance claims on direct appeal, as required by Oklahoma law, meant that he was necessarily procedurally barred from raising those claims on federal habeas review. See Cannon v. Mullin (Cannon I), 383 F.3d 1152, 1174 (10th Cir.2004). As we noted, a failure to comply with a state procedural rule requiring a petitioner to raise ineffective assistance claims on direct appeal will not always bar federal review. Such claims are only barred when the petitioner has had “an opportunity to consult with separate counsel on appeal.” Id. at 1172 (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998) ) (internal quotation marks omitted).
Based on the record available in Cannon I, we found cause to believe that trial and appellate counsel were not separate because they both worked for the same federal public defender's office. Nonetheless we noted that the district court could hold an evidentiary hearing and allow Oklahoma an opportunity to establish otherwise. Id. at 1174.
After determining that Cannon's claims likely were not procedurally barred, we also considered whether he was entitled to an evidentiary hearing to establish his claim that certain state witnesses had improperly contacted his jurors. Id. at 1174–77. Pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court can only grant an evidentiary hearing when the petitioner has acted diligently in developing the state court record. See Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) ( 28 U.S.C. § 2254(e)(2) ). An evidentiary hearing was necessary to Cannon's success on the juror-contact claims because—aside from a second-hand account contained in an affidavit from Cannon—nothing in the record hinted that any improper contacts had actually occurred. Despite their apparent availability, Cannon never provided the Oklahoma courts with affidavits, statements, or testimony from any of the family members or friends who allegedly witnessed the improper juror contacts. We noted in Cannon I that a “diligent person would have done as much, absent an impediment preventing him from doing so.” 383 F.3d at 1177. As a result, we remanded the issue to the district court with instructions to determine whether there were any such impediments excusing Cannon's failure to develop the record that would thus entitle him to an evidentiary hearing on his juror-contact claims. We also concluded Cannon was entitled to an evidentiary hearing on his right to testify because he had diligently developed the factual record underlying that claim by providing a first-hand affidavit to the OCCA.
On remand, the district court found that trial and appellate counsel were not separate because of their close working and personal relationships. As a result, none of Cannon's ineffective assistance claims were procedurally barred. But the court went on to find that Cannon was not entitled to an evidentiary hearing on the juror-contact issue because he was not diligent in developing the state court record and there were no impediments justifying this failure. Because there was no reliable evidence in the record of any improper juror contacts, the district court determined that both Cannon's ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims based on the alleged improper contacts were meritless.
Finally, the district court turned to Cannon's claim that trial counsel provided ineffective assistance concerning his right to testify. After review of the record, the court again found that Cannon had not met his burden of proving that counsel's performance was in any way deficient.
Cannon asserts two errors on appeal. First, he asserts both his trial and appellate counsel were deficient in pursuing his allegation that certain state witnesses improperly contacted jurors in his case, and that the district court erred on remand in denying an evidentiary hearing in which he could establish facts to support these claims. Second, he argues the district court erred in finding both that trial counsel properly advised him concerning his right to testify and that counsel did not prevent him from testifying when he expressed a desire to do so. We consider each claim in turn.
Cannon raises two ineffective assistance of trial counsel claims concerning improper contacts between jurors and state witnesses. First, he says trial counsel ignored evidence he gave them regarding the improper contacts. He contends he had information from five friends and family members who observed several witnesses interacting with jurors. He claims his trial counsel were constitutionally ineffective for failing to pursue this information.
Next, he claims his direct appellate counsel compounded the error by refusing to raise trial counsel's ineffective assistance before the OCCA. Cannon argues he thus lost the opportunity for appellate review on a potentially meritorious claim.
We agreed in Cannon I that the two ineffective assistance claims might have merit. But we were unable to review the substance of the claims because Cannon had yet to establish reliable evidence showing that any improper juror contacts actually occurred. As a result, we directed the district court to determine whether Cannon was entitled to an evidentiary hearing at which he would be able to supplement the record with evidence in support of his claims. But on remand, the district court found Cannon had not been diligent in developing the factual record underlying his claim in state court and thus denied his request for an evidentiary hearing. More specifically, the court found no circumstances excusing his failure—on both direct and collateral review—to provide the Oklahoma courts with affidavits that might substantiate his claims.
We review the district court's legal conclusions de novo and...
To continue reading
Request your trial
-
Padillow v. Crow
...right to testifyat trial and the ultimate decision of whether or not to testify belongs solely to the defendant." Cannon v. Trammel, 796 F.3d 1256, 1270 (10th Cir. 2015) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). The right to present one's defense is not unlimited, however. "[I]n a......
-
Nazzal v. United States
...offered, and that the defendant therefore had not shown that he was prejudiced when he was not called to testify); Cannon v. Trammell, 796 F.3d 1256, 1275 (10th Cir. 2015) ("Cannon would not have advanced his cause by testifying at trial. Nor do we find any error in the district court'sconc......
-
Hamilton v. Warden, Case No. 17-CV-664-TCK-CDL
...right to testify at trial and the ultimate decision of whether or not to testify belongs solely to the defendant." Cannon v. Trammel, 796 F.3d 1256, 1270 (10th Cir. 2015) (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)). At the close of the state's case the trial court made a record of Ha......
-
United States v. Alam
...30. Boyle v. McKune, 544 F.3d 1132, 1138 (10th Cir. 2008) (citations omitted). 31. Strickland, 466 U.S. at 694. 32. Cannon v. Trammell, 796 F.3d 1256, 1271 (10th Cir. 2015) (quoting Strickland, 466 U.S. at 694). 33. Id. (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)) (alteration in......
-
Review Proceedings
...v. Kernan, 948 F.3d 952, 971 (9th Cir. 2020) (evidentiary hearing barred because evidence existed at time of trial); Cannon v. Trammell, 796 F.3d 1256, 1261-62 (10th Cir. 2015) (evidentiary hearing barred because defendant did not exert diligent efforts to investigate claims made in state c......