Cannon v. Trammell
796 F.3d 1256
10th Cir.2015Background
- Jemaine Cannon was convicted of first-degree murder and sentenced to death for the 1995 stabbing of Sharonda Clarke; he gave a recorded statement admitting the stabbing but claiming self-defense.
- Cannon raised multiple ineffective-assistance claims in state and federal proceedings, including (1) that trial counsel failed to investigate/raise alleged improper contacts between jurors and state witnesses, and (2) that counsel denied or misadvised him about his right to testify.
- In Cannon I, this court found plausible problems with counsel and remanded to allow the district court to decide (a) whether Cannon had been diligent in developing juror-contact evidence in state court (affecting entitlement to an evidentiary hearing under AEDPA § 2254(e)(2)), and (b) to hold an evidentiary hearing on the right-to-testify claim (because he had developed that record).
- On remand the district court found: trial and appellate counsel were not separate (so claims were not procedurally barred), Cannon was not diligent in developing the record on juror contacts in state court (so no federal evidentiary hearing), and after an evidentiary hearing it found no deficient performance or prejudice on the right-to-testify claim.
- The Tenth Circuit affirmed: it refused to permit expansion of the record where Cannon failed to diligently develop juror-contact evidence in state proceedings and upheld the district court’s factual credibility findings and Strickland analysis as to the right-to-testify claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cannon was entitled to an evidentiary hearing on alleged improper juror contacts under AEDPA because he diligently developed the record in state court | Cannon: he sought an OCCA hearing, submitted a personal affidavit, and later obtained family affidavits after remand; lack of separate counsel and alleged procedural bars excused earlier development | State: Cannon failed to produce eyewitness affidavits in state proceedings despite available procedures and opportunities; no impediment excused his lack of diligence | Held: Cannon was not diligent in state court; no evidentiary hearing permitted under 28 U.S.C. § 2254(e)(2); additional affidavits submitted later cannot be considered (affirmed denial of juror-contact claims) |
| Whether lack of separate trial/appellate counsel excuses failure to develop the record in state proceedings | Cannon: lack of separate counsel meant he could not rely on appellate counsel to develop claims and so could not be charged with failing to develop the record | State: even with nonseparate counsel, Oklahoma pro se and post-conviction procedures permitted record supplementation; Cannon still had opportunities | Held: Court assumed without deciding that nonseparateness might excuse failure on direct appeal but found Cannon still not diligent on collateral review, so no excusal under AEDPA |
| Whether requiring a pro se petitioner to develop evidence in post-conviction proceedings violates Sixth Amendment or is excused by Martinez/Trevino | Cannon: Martinez/Trevino show pro se prisoners often cannot develop evidentiary bases; he contends practical obstacles and his choice to go pro se justify excuse | State: Oklahoma provides appointed counsel for post-conviction proceedings; Cannon waived continued counsel and cannot use pro se status to excuse lack of diligence; he gave no specific proof of communication restrictions | Held: Martinez/Trevino do not excuse Cannon here: he had appointed counsel and later stand-by counsel; pro se status does not excuse his failure to obtain affidavits |
| Whether trial counsel deprived Cannon of the constitutional right to testify or misadvised him, constituting ineffective assistance under Strickland | Cannon: counsel prevented him from testifying, failed to inform him of the right to testify, and misadvised about admissibility of past conviction/escape evidence | State: counsel credibly testified they discussed the right/risks, did not prevent testimony, and correctly advised that prior conviction and escape evidence would likely be admissible on impeachment/motive if he testified | Held: District court’s credibility findings affirmed; counsel’s performance not constitutionally deficient, and Cannon was not prejudiced — right-to-testify claim denied |
Key Cases Cited
- Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA bars evidentiary hearings when petitioner failed to diligently develop state-court factual record)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance test: deficient performance and prejudice)
- Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance of post-conviction counsel may excuse procedural default in limited circumstances)
- Trevino v. Thaler, 569 U.S. 413 (2013) (Martinez extended where state procedures make it practically impossible to raise ineffectiveness on direct review)
- Harrington v. Richter, 562 U.S. 86 (2011) (prejudice requires a substantial—not merely conceivable—likelihood of different outcome)
- Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003) (documents outside state-court record cannot be considered where petitioner failed to develop record under § 2254(e)(2))
- Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004) (prior Tenth Circuit opinion remanding for further development on juror-contact and right-to-testify claims)