*1 unnecessary it is to ad- appeal that the because Appellant sub- agree with char- receivership ques- determines its the merits of the stance of a transaction dress to form. Okla. Stat. regard attorney’s without grant acter tion. The fees CIT (Article 12A, applies “to § tit. 9-102 is VACATED. form,
transaction, of its which is regardless part, in in AFFIRMED REVERSED interest,” security a in- intended to create proceedings for part, REMANDED contract”); Okla. cluding “title retention opinion. with this consistent 1-201(9) (1991) (“A 12A, person § Stat. tit. ... security ... as acquires goods a in the ordi- money buyer debt is not business”); tit. Okla. Stat. nary course (Article
12A, apply 2 “does not 2-102 although in the form
any transaction which pres-
of an unconditional contract to sell or only operate ent sale is intended CANNON, Monteil Jemaine transaction”); 12A, tit. security Okla. Stat. Petitioner-Appellant, (“Each provision § 9-202 of this Article title to collateral is in applies ... debtor”). or the party the secured MULLIN, Warden, Mike Oklahoma only stands Repurchase Agreement Penitentiary, Respondent- State separate independent se- alone as a Appellee. transaction, it but also reveals the cured entire deal. The true character of the No. 03-5008. financing transaction
transaction was Appeals, United States Court of outset, from the and the failure CIT to Tenth Circuit. security perfect its interest renders its inferior to proceeds claim in the Stillwa- Sept. lien. See Okla. Stat. prior perfected ter’s 12A, § tit. 9-312. retention of title to the purported
CIT’s
Subject until remitted Equipment Sabre Repurchase to the
payment pursuant change
Agreement does not result Ill, at Aplt.App.,
this case. See Vol. 626- devices
27. Retention of title are limited security of a effect to the reservation 12A, §
interest. Okla. tit. 2—401. Stat. 2-401(1) provides “[a]ny
Section re- by the
tention or reservation seller goods shipped or deliv- (property)
title buyer in effect to a
ered limited security of a interest.”
reservation the district court and
We REVERSE pro- is entitled to the
hold that Stillwater supe- due to its lien which is
ceeds blanket unperfected security
rior to interest. CIT’s district court on
We AFFIRM the cross- *5 (Jemaine Greubel, Tulsa, OK,
Stephen J. Cannon, briefs), him on Monteil Petitioner-Appellant. for Elmore, Attorney Bránt M. Assistant (W.A. General, Division Drew Criminal Edmondson, General, Attorney and David Brockman, General, Attorney Assistant M. Division, brief), on the Criminal Oklahoma OK, City, Responden1>-Appellee. for KELLY, HARTZ, Before O’BRIEN, Judges. Circuit HARTZ, Judge. Circuit Jemaine Monteil Cannon was convicted degree in Oklahoma state court of first murder and sentenced to death. After the Court of Criminal Appeals Oklahoma (OCCA) appeal denied his direct and his petition post-conviction se state for pro relief, timely applica- filed an tion relief under 28 U.S.C. *6 The United States District Court for the rejected Northern District of Oklahoma evidentiary request for an hearing and denied all relief. appeal
On
Mr. Cannon raises numerous
of trial
claims of ineffective assistance
counsel;
of trial counsel mis-
three claims
conduct, which we recharacterize as addi-
tional claims of
assistance of
ineffective
counsel; and a claim of ineffective assis-
counsel for failure
tance
appellate
ineffective-
pursue
appeal
the claims of
jurisdiction
ness of trial counsel. We
§ 2253 and 28 U.S.C.
under 28 U.S.C..
except
§ 1291.
affirm on all claims
We
regarding
factual
three. There are
issues
procedural
respect
bar with
the merits and
(1)
allegations
to Mr. Cannon’s
notify
failed to
the court of
trial counsel
prosecution
improper
between
contacts
recesses,
jurors during trial
witnesses
(2)
him
prevented
trial counsel
in his own defense at trial.
testifying
from
therefore reverse and remand
in
was dead and to turn himself
proceedings
court for further
Clark
district
also remand for
police
story.
two claims. We
and tell
his side of the
those
Mr. Cannon’s claim
further consideration
convincing
After
to turn
[Mr. Cannon]
appellate
coun-
of ineffective assistance
in,
himself
mother told
[Mr. Cannon]’s
sel.
police
Tulsa
detective Tom Fultz [Mr.
thereafter,
Shortly
location.
Cannon]’s
I. FACTUAL BACKGROUND
telephoned
[Mr. Cannon]
Detective
Because Mr. Cannon filed his habeas
him
Fultz and told
that he killed Clark
24, 1996,
petition
April
after the
effective
in self-defense.
was ar-
[Mr. Cannon]
Antiterrorism and Effective
date of the
shortly
rested
after his conversation
(AEDPA),
Penalty Act of 1996
Death
with Fultz and he was returned to Okla-
Rogers
our
governs
statute
review. See
Although
homa.
claimed
[Mr. Cannon]
Gibson,
173 F.3d
1282 n.
he killed Clark
self-defense and that
Cir.1999).
AEDPA factual deter-
Under
they
fight,
[Mr.
had
violent
Cannon]
pre-
minations made
state courts are
did not have
wounds or noticeable
sumed to be correct. See 28 U.S.C.
when he was arrested.
abrasions
2254(e)(1). Thus,
adopt
we
the OCCA’s
(Okla.
State,
Cannon v.
961 P.2d
recitation of facts.
Crim.App.1998). Other facts will be set
3, 1995,
February
Cannon]
On
[Mr.
necessary
forth as
to the discussion.
girlfriend,
to death his
stabbed
Sharon-
II. PROCEDURAL HISTORY
referred to as
[also
da Clark
Sharonda
at trial
The contested issue
White].
A
jury
the District Court of Tulsa
stabbed Clark
[Mr. Cannon]
Oklahoma,
County,
convicted Mr. Cannon
aforethought
malice
or in self-de-
degree.
jury
of murder
the first
body
police
fense. Tulsa
found Clark’s
found
aggravating
four
circumstances and
apartment
Jacque Pepper
in her
after
recommended a sentence of death. The
police
contacted
when she could not lo-
him accordingly.
trial court sentenced
missing
cate Clark who had been
represented
at trial
attor-
twenty-four
over
had been
hours. Clark
neys
Conway
Sid
and Julie O’Connell from
*7
in
stabbed several times
the neck
A
Tulsa Public Defender’s office.
dif-
also
chest. She
had incise wounds on
attorney
ferent
from the Tulsa Public De-
commonly
her hands
characterized as
office, Barry Derryberry,
repre-
fender’s
Elliott
defensive wounds. Sheena
testi-
appeal
sented Mr.
on direct
Cannon
fied that
[Mr.
she saw
Cannon]
OCCA, which affirmed his conviction. See
Clark around noon
the third and that
State,
Cannon v.
1159
16,1999,
an have had a
doubt respecting
Mr. Cannon filed
reasonable
August
On
694-95,
relief under 28 U.S.C.
application for
guilt.” Id. at
fact clear error. See LaFevers v. Gib- adjudicated Because the OCCA neither son, Cir.1999). F.3d “contrary the claim a manner that was se, proceeds pro Because Mr. Cannon we to, of, ... an unreasonable application appellate liberally. construe his brief See clearly established Federal law” nor made Evans, Cummings v. 161 F.3d its decision “based on an unreasonable de- (10th Cir.1998). facts,” deny termination of the we must testimony 1. Detective’s 2254(d). relief. See 28 U.S.C. played
At prosecution trial the tape of a conversation between Mr. Can testimony 2. Doctor’s Fultz, non and Detective who had investi Mr. Cannon claims that his trial counsel gated tape the crime scene. On the was ineffective for failure to raise several victim, killing Cannon admitted but objections testimony by Hemphill, Dr. claimed that he had killed her self- who examined body. the victim’s He con- defense. tape played, After the (1) tends that Hemphill objec- Dr. offered Fultz, prosecutor asked Detective “Based testimony tionable on the element of intent on what telling you the defendant was by declaring that the cause of death was based upon you seeing what were from the (2) “homicide”; improperly testified that scene, opinions you what did form about certain wounds on the victim were “de- telling you?” what the defendant was Tr. (3) wounds”; fense improperly objected 764. Defense to this testified question that a as irrelevant. The court over necklace found at the scene could objection. ruled the Detective Fultz then have caused injuries; some of the victim’s answered, “I (4) did not believe lacked sufficient knowledge testify; *9 version of what had occurred.” Tr. 765. (5) should have been cross-examined regarding the time of death. Mr. Cannon
Mr. Cannon argues now that his trial also contends that counsel was ineffective attorney objecting was ineffective for not object failing prosecution’s for question the ground the on the that it called improper opinion for mischaracterization of Dr. testimony. Hemphill’s re- testi- ject this claim because we are mony during closing argument. bound recross-examination, defense at- On testimony a. “Homicide” asked, of homicide torney ‘Tour definition Dr. that complains Mr. Cannon The to cause harm?” includes intent testify that permitted Hemphill was Id. ‘Tes.” witness answered homicide. death was the victim’s of cause during occurred exchange following The of Cannon’s the basis Whatever Hemphill: Dr. examination direct testimony, he has about concerns you viewing prejudice. what any possibility on Q: And failed to based show opin- an viewed, you formulate the cause of description did Dr. Hemphill’s of death? manner ion as to the con- completely was as “homicide” death of the theories with Mr. Cannon’s A: Yes. sistent regarding no issue There .was case. opinion, what expert Q: your And victim. intent to harm the of death? the manner was acted in self- whether he only were issues Homicide. A: and, not, culpabili- if whether his defense Tr. at 881. manslaughter. See only ty attor- the defense cross-examination On (defining manslaughter § 711 Okla. Stat. questioning: line of up on this ney followed with- perpetrated “[w]hen as “homicide” uh, you said that you, Q: Hemphill, Dr. death, and in a heat to effect design out a have, that opinion formulated and unusual in a cruel passion, but homicide, right? this was a manner, dangerous by means’ of or A: Yes. under it committed weapon; unless is me define for you please Q: Would as constitute excusa- circumstances such homi- you' say you mean when what homicide” or justifiable “[w]hen or ble cide? unnecessarily either while re- perpetrated Examiner’s Medical Part of the A: Yes. killed to attempt by" person sisting an a case investigating responsibility crime, attempt after such commit a appro- as to the opinion an give is to failed”). theo- defense Neither shall have death into which the priate manner harm. intent to ry cause excludes is report Our classified. should be only an it. It’s without incomplete testimony “Defense-wound” b. Nobody ruling. not a opinion. It’s that his tri argues it, but anything based has to do Dr. it, objected homicide, means should al counsel way we use death, wounds testimony that opinion, Hemphill’s in our certain that the by the wounds.” was caused action were “defense death on the victim testimony that consti person and action First, another that the he asserts that’s to cause harm and intended Dr. because surprise,” tuted “unfair all it means. not so classi did expert report Hemphill’s added). Br. at 6. To Aplt. fy the wounds. (emphasis Id. 884-85 contending that extent that Mr. examination, prosecutor On re-direct have raised constitu should you anything that asked, is there “And testimony objection tional that cross examination thought about on ‘ he was warned ground clas- regarding your your changes opinion explain, advance, testimony does as homi- death victim’s] of [the sification contention how his perceive, nor do we harm?” to cause cide, being intended n is no proposition “[t]here “No, survives the answered, isn’t.” there The witness discovery in .right to constitutional general at 890. Id. *10 ” a criminal case.... v. Bur to this testimony as an opinion” “ultimate Weatherford sey, 429 U.S. S.Ct. 51 did not constitute ineffective assistance of (1977). L.Ed.2d 30 There also was no trial counsel. objection
meritorious state-law available to requires counsel. Oklahoma law testimony c. Necklace State, upon by defense, request expert reports “including disclose results Mr. Cannon contends that or physical mental examinations and of counsel was ineffective because she failed tests, scientific experiments, or compari object to Dr. Hemphill’s testimony that 2002(A)(1)(d). § sons.” Okla. Stat. some of the victim’s wounds could have require But does not everything it by been a necklace. caused which an expert testifies be contained argues that because the necklace nev was expert’s report. Fed.R.Civ.P. Cf. er custody taken into by police and 26(a)(2)(B) (requiring experts retained because Dr. Hemphill only photo saw prepare a report “containpng] complete a graphs necklace, his testimony was opinions statement of all expressed to be beyond scope of his personal therefor”); knowl the basis and reasons Fed. (at 16(a)(1)(G) edge. R.Crim.P. defendant’s re quest, government provide must Hemphill Dr. was asked to explain what summary
written of expert testimony to be injuries could have caused some to the trial). during used its case-in-chief In victim’s He neck. answered: particular, expert’s report need not contain all the expert’s ultimate conclu are a type These of blunt injury, by so See, State, sions. e.g., Pierce v. 786 P.2d definition, they’re by caused or blunt 1255, 1262-63 (Okla.Crim.App.1990). Mr. semi-sharp object being dragged across Cannon’s trial counsel was not ineffective the skin. As to what could have done failing object for to the testimony as this, fingernails could do this. There “unfair surprise.” scene, small necklace found at the Second, Mr. Cannon contends that Dr. I which was pictures shown told Hemphill’s reference to certain wounds as about, could have conceivably “defense wounds” improper ultimate- caused some of these. The necklace was opinion testimony. law, Under Oklahoma broken. If grabbed it, the assailant for “opinion testimony merely which tells a example, pulled or any- twisted init jury what result to reach is inadmissible.” [sic], way slipping around could have State, (Okla. Romano v. 909 P.2d caused some this. Crim.App.1995). “expert But witnesses suggest can jurors inference which Tr. at 874. ground see no proper application should draw from the of spe objection to this testimony. Mr. Cannon id., knowledge facts,” cialized dispute does not that a necklace had been “[tjestimony in the form of opinion an found at the scene the crime. does Nor inference otherwise is not admissible ob explain why depiction of the neck- jectionable because it embraces an ulti lace in photograph provided an inade- mate issue to by be decided the trier of quate foundation for Dr. Hemphill to infer fact.” 12 Here, § Okla. Stat. 2704. Dr. that it could have injury. caused the An Hemphill explained why he inferred that expert may express opinion certain based on likely wounds trying resulted from to ward off factual provided an attack. evidence Such testimony is others. See barred Romano. object Failure to Okla. Stat. *11 f.Closing argument body Knowledge of the victim’s d. counsel contends that Hemphill Mr. Cannon that Dr. argues
Mr. Cannon object to necessary failing for ineffective knowledge personal was the lacked prosecution dur case. On reeross-examina- statements made testify in the Dr. mischaracterizing asked argument counsel as closing trial ing tion brought to was forth Dr, testimony. this case As set Hemphill’s Hemphill, “When you Anything you know? on earlier, all did testified cuts you, Hemphill what Dr. that Dr. Tr. at 891. to?” testified wounds. haven’t were defensive victim’s hands “Well, I don’t Hemphill responded, cross-examination, Mr. attor On only I can recollection. independent be other ex that there could ney elicited had written investigator my you what tell they could be cuts—that for the planations the first body for I saw the by the time out that he claim with Mr. Cannon’s consistent ” that contends Mr. Cannon time.... Id. exami redirect On acted self-defense. Dr. that testimony demonstrates this asked: “[Defense] prosecution nation the knowl- personal sufficient lacked Hemphill possible causes you about asked [c]ounsel of the cause opinion of edge to form ques to her you After listened injuries. of testimo- quoted disagree. death. We answers, your thought about you tions knew Hemphill Dr. only to what ny related your within explanation best your it still body. It is examining the victim’s before it’s still con that experience, training Hemphill Dr. that from the record clear classify the sistent, opinion, to your examination a medical actually performed as defensive to her major hands wounds testimony. for his the basis provided that re Tr. The doctor 889-90. wounds?” classify would still that sponded death Time e. at 890. wounds.” Id. as “defensive wounds Dr. that argues Cannon recounted prosecutor During closing during period Hemphill’s estimate “[Finally I testimony. He stated: this inconsistent occurred was death which well, say, up to stand had redirect wit testimony prosecution with the coun- questions defense [the those all [did] mur away him from placed nesses who one iota? your opinion change asked] sel Apparently during period. scene der Id. at answered] No.” the doctor [And should his counsel contending that he is argue that seems to Mr. Cannon on this Hemphill Dr. have cross-examined doctor’s description mischaracterized not a But the time death point. Although agree we testimony. (Mr. did case critical issue testimony describe did not prosecutor defense) the cross- an alibi not have cause verbatim, description was success Hemphill Dr. examination objection. Decisions respects. other ful in several generally are a witness question how El- of Sheena 3. Cross-examination See counsel’s discretion. committed to liott F.2d Snyder, United States argues that Cir.1986) (“Counsel’s selection failing assistance ineffective rendered ‘strategic matter of is a questions adequate Elliott Sheena to cross-examine lati choice,’ broad to which has [s]he between inconsistencies ly. points He tude.”). failure hold counsel’s her testimony' and hearing preliminary her Hemphill regarding Dr. cross-examine agree that several testimony. We ineffective did not constitute time of death preliminary at the made she statements counsel. assistance of *12 hearing were inconsistent with important statements hardly evidence is inconsistent notably, made at trial. Most Ms. Elliott investigator’s with the belief in the preliminary hearing testified at the strength of the already evidence obtained. the last time she saw Ms. Clark alive was nothing There was inadequate about trial 2, 1995; on Thursday, February but at counsel’s failure to cross-examine on this trial she testified that this occurred on matter. Friday, February day 3—the of the homi- Collins, Adrian a friend of Mr. cide. Cannon’s, testified that he drove Mr. not, however, always It is the best trial station, Cannon to the bus and he identi strategy every to exploit inconsistency in pair bloody fied a sneakers found witness, the statements of a even a witness apartment victim’s belonging as to by opposing called counsel. To some ex- Mr. Cannon. Mr. Cannon asserts that tent, testimony Ms. Elliott’s was consistent trial counsel should have impeached Mr.
with Mr. Cannon’s defense and was re- using Collins his “extensive criminal rec ferred to favorably his counsel’s final ord.” But Mr. Cannon fails to provide argument. Mr. Cannon has not shown sufficient information about that criminal that defense strategy counsel’s with re- record to determine impeach spect cross-examining Ms. Elliott was so ment would have been possible under the unreasonable as to constitute ineffective applicable evidence, Oklahoma rule of assistance of counsel. §
Okla. Stat. 2609 (allowing impeachment impeach 4. prosecu- Failure to other use of criminal convictions in certain tion situations). witnesses and call a witness Furthermore, it appears that Mr. Collins testify did not anything argues Mr. Cannon that he received in- impeaching. worth effective assistance of counsel because his trial impeach counsel failed to three other Scott, Betty mother, Mr. Cannon’s prosecution Fultz, witnesses: Detective matters, testified on various including the Collins, Betty Adrian Scott. He also telephone call from her son in Michigan suggests that trial counsel should have after he had killed the victim. Mr. Can called the testify. victim’s mother to non asserts that trial counsel should have respect Fultz, to Detective With impeached her eliciting that she inwas Mr. Cannon contends that the officer’s possession of a phone. stolen cell We conduct belied his testimony that he disagree. gratuitous Such a attack on a did not believe Mr. Cannon when Mr. Can client’s mother is unlikely to helpful. be gave non his version of events in their argues also that “trial telephone conversation. On February counsel should have called Sharonda over a week after he spoke with Mr. Can mother, Clark’s Phyllis Lacy[,] testify as non on the telephone and examined the phone a recent call she received from scene, homicide requested Detective Fultz Sharonda in which Sharonda told her lab work to determine whether Mr. Can mother how happy she was in her relation non’s blood was found at the scene. Mr. ship with Mr. Aplt. Cannon.” Br. asserts that request demon observe, however, We strates that that such testimony Detective Fultz “solidly may grounded in opinion theory undermined his por as he that the trayed himself to victim February aggressor. Moreover, was the 7th.” ex Aplt. Br. at 14. The pecting contention is testify frivo a mother to favorably for An investigator’s lous. decision pursue admittedly defendant who killed her presented.” men, available was though strat- risky trial surely be daughter would Stat. 12 Okla. at 16. Under Id. egy. evi- 2404(a)(2), may offer an accused claim that reject trait of the pertinent character dence of failure ineffective because *13 victim. these witnesses or call to cross-examine suggests. he purposes for the Nevertheless, has failed Mr. Cannon testimony any helpful additional show evidence to introduce Failure he states: In affidavit available. an was assis- ineffective claim of his fifth For lived with Sharonda Cannon[ ] “Tamoura coun- only, “Trial tance, states Mr. Cannon Clark[,] husband, for Kelly her Clark reveal evidence or introduce failure to sel’s person- had time. Ms. Cannon period assis- ineffective evidence was existence violent Clark’s knowledge al Sharonda prosecu- murder capital tance of counsel her husband. This toward tendencies In the absence Br. at 15. Aplt. tion.” testimony of supported have brief claim, we explanation any further Pro to the same Se Agnes Clark effect.” it. reject must Relief, Post Conviction for Application added). (emphasis 1 at Exh. (call) necessary to consult 6. Failure reviewing Agnes It is therefore worth experts matter: testimony on the Clark’s trial contends ever Okay. victim] Q: [the Was she call consult or improperly failed you? with violent Stating that trial. at his experts to assist counsel was by trial only expert called A.: No. sentencing during testified who a doctor fights into get her Q: you Did ever see argues he dangerousness, future regarding aggressive? or be arguments or sought the have counsel should that “[t]rial Yes, A: once. neuropsychiatrist, blood- of a assistance that for us. Q: Okay. Describe expert, medical-examiner expert, spatter anyone Well, like angry she A. present order to expert in and self-defense know, and had else, angry, you Id. defense.” [his] it. that was argument, and to testi- called the defense doctor anger her draw you ever see Q: Did neuropsycholo- sentencing during fy anyone or to come blows her us, has Mr. nor apparent It is not gist. anyone because attack aggressively indicated, testimony helpful what Cannon anger? of her could, would, been elicited even have get mad. Well, seen her yes, A: I’ve suggests. he experts of the additional Yes, mad. get her say that I’ve seen cannot this record we On to en- failing for ineffective counsel was Q: At who? (Nor has Mr. experts. gage additional At husband. her A.: ordering an any basis provided Cannon any- it as you Q: Would characterize matter.) evidentiary hearing on the ordinary? thing out of the No. A: argue facts elicit and 7. Failure to to self-defense
relevant testimony “to Tr. at 710-11. Additional helped effect” would the same that “[e]vi Mr. Cannon states reject this ar- therefore Mr. Cannon. We ag violent and Clark’s of Sharonda dence gument. tendencies, towards particularly gressive also asserts that trial coun- 8. Failure to invoke the rule of se- questration
sel was ineffective for offering evi- dence bruises on the victim’s wrists Mr. Cannon claims that trial coun were consistent with grab- “[Mr. Cannon’s] sel was ineffective because she failed to bing possessed her wrist while she invoke the sequestration, rule of which knife in Aplt. her hand.” Br. at 16. This prevents witnesses from being in the evidence, argues, he would have been con- courtroom while other witnesses are testi This, fying. sistent with the being aggres- argues, victim’s “allowed pros ecution witnesses to sit sor and would have and listen to supported his claim each testify other specifically craft their record, however, self-defense. The reveals *14 testimony own to prejudice Aplt. [him].” no failure defense in counsel this re- Br. at 21. Yet Mr. Cannon fails to allege spect. Trial counsel vigorously cross-ex- which witnesses present were during other amined the medical examiner in an effort testimony, witnesses’ making impossible it get him to admit many to determine whether good there was victim’s wounds were consistent with Mr. (for cause for the present witnesses to be theory Cannon’s of self-defense. In par- example, principal agent case is often ticular, questioned trial counsel the medi- permitted to present be the counsel cal examiner about whether bruises on the trial, table to assist throughout the see 12 victim’s forearm were consistent with Mr. § Okla. Stat. 2615 (providing rule of se grabbing Cannon’s her forearm. During questration listing exceptions); Dyke closing argument said, “The exter- State, (Okla.Cr. 716 P.2d 697-98 nal circumstances that I see are a bruise App.1986) (construing statute to include here, right consistent with grabbing and agent case exception to rule of seques stopping Sharonda from attacking with a tration)), or prejudice could knife.” Tr. at 915. appears Counsel have resulted. support There is no for a exactly have done what Mr. Cannon claims claim of ineffective assistance on this she did not do. ground. Additionally, Mr. argues 9. manslaughter Presentation of de- that trial counsel should have offered evi fense dence of cuts hands, on Mr. Cannon’s Mr. Cannon claims that trial coun
which were consistent with defending him sel violated his rights constitutional by ar against self someone with a knife. But the guing a defense of manslaughter in addi officer who arrested Mr. Cannon in Michi tion to self-defense. Mr. Cannon asserts gan testified that he did not any inju see that he wished to argue only self-defense ries on Mr. Cannon’s hands anywhere at trial counsel, but “[t]rial repeated over on Mr. body at the time of ar objections by Cannon[,] presented and In rest. an attempt officer, to impeach argued a manslaughter against defense trial counsel elicited testimony will.” Aplt. Br. at 24. He lights contends that were dim inclusion of a during manslaughter the arrest and that defense undermined his the officer’s self-defense claim attention was focused else because the logically two are inconsistent. where. She also made point during disagree. closing argument. Mr. Cannon does not
indicate what more his trial counsel could In 27, 1999, his affidavit of January have done. Cannon stated: if 'danger, “even he great in that he was trial counsel arguments closing In or where theory of in such belief not warranted argued was
presented objections of acting over the manslaughter although self-defense slayer did Petitioner petitioner. Id free from blame.” not himself man- theory or wish desire refer Thus, courts and commentators some own on his presented slaughter be “imperfect” self- manslaughter as aware counsel was Trial behalf. is, the defendant although defense—that it. ignored Petitioner’s desire of self-de satisfy all the elements cannot theory that a desired only Petitioner he can fense, because culpable is less on his own argued of self-defense . See 2 the elements satisfy some of included also Trial counsel behalf. LaFave, L. Wayne R. Subst. Crim. jury instruc- it[s] manslaughter ed.2003). 10.4(i) (2d peti- objection of the tions over prejudiced Petitioner tioner. theories, counsel, by arguing Trial both counsel because this act find self-de- jury essentially asked peti- against it prosecution used so, not do fense, jury if the could but This closing arguments. tioner *15 did argument The manslaughter. find available have been option wouldn’t any fashion. guilt concede Mr. Cannon’s it presented hadn’t if trial counsel a offense argue to lesser-included Whether There objections. petitioner[’]s over by counsel after to decided a is matter guilty as not thing a is such See ABA with the defendant. consultation is no but there reason of self-defense 4-5.2 Justice Cmt. for Criminal Standards by reason guilty as not thing such of ed.1993) (8d (omitting statement at 202 manslaughter. edition that in 1980 second appearing manslaugh- theory of By arguing a 5. seek submission whether to client decides made an admission ter, trial counsel instruc- jury of lesser-included-offense to Trial behalf. petitioner’s guilt on tion). reject this claim ineffective authority to has no due counsel assistance. on guilt be- any make admission peti- without of the petitioner half pro Right proceed
tioner[’]s consent.... se to 10. Re- for Post Conviction Application Pro Se that claims trial Mr. Cannon lief, 1 at 6. Exh. proceed to right him the counsel denied complete a de is Although self-defense A defendant has appeal. direct pro se on murder, justifying first-degree to fense himself, represent right to a constitutional only a manslaughter is whereas acquittal, detrimental to would be doing if so even offense, theories are two lesser California, v. See Faretta his defense. inconsistent. On contradictory logically 2525, 834, 45 L.Ed.2d 95 S.Ct. U.S. “It complementary. contrary, they are (1975). asserts resulting passion general rule is proceed to his desire aware of was counsel to may be sufficient or terror fright from inform the to appeal but failed se pro on man murder from to a homicide reduce however, reveals, record judge. The closely may be killing and such slaughter regard in this counsel by trial any failure See in self-defense.” killing to akin He had any prejudice. him not cause did (Okla. State, P.2d Wood judge inform both opportunity may be A homicide Crim.App.1971). rep of his desire and appellate killing when manslaughter to be found appeal. on resent himself belief by the defendant’s motivated following exchange se, The pro occurred at sen- yet years almost elapsed two be- 26,1996: tencing on March tween the date he was sentenced and the you ready The Are Court: for sentenc- date his appeal argued before the ing, Mr. Cannon? OCCA. Mr. Cannon: Yes. Mr. Cannon also contends that he filed you
The Court: Do have anything say timely applications to proceed pro se on sentencing? before appeal direct but he was right denied the Mr Cannon: No. to do so because the court clerk mishan- Conway, The Court: Mrs. you do have dled applications. The record belies anything say before sentencing? this assertion. Whether the clerk mishan- No, Mrs..Conway: sir. dled his applications was of no conse- All right. Court: It will be the quence. Mr. Cannon’s letters judgment of the Court that the defen- OCCA clerk 5, 1998, were dated March dant be sentenced to die adminis- and March approximately one 1998— injection tration of intravenous I month after appeal his direct had been will set the time for sentencing, which heard at argument oral February 10, merely formality, day the 23rd Thus, applications to proceed May, midnight. pro se on direct appeal were too late for The public hereby defender’s office is any action by the OCCA. appointed represent the defendant Although Mr. Cannon asserts that he for purposes appeal. had previously sent a letter requesting to Cannon, you do funds proceed se, pro specifics offers no about *16 with which to your hire own attorney? letter, that such as when he sent it. Fur- Mr. Cannon: Not at the moment. thermore, other than an affidavit attached Well, you The Court: do rela- to reply court, brief to this the record anyone tives or plans that on hiring contains no reference to such a letter. your attorney? own Therefore, we can properly ignore this as- Mr. Cannon: I got haven’t to talk to sertion. yet. them The Court: You got haven’t to talk to B. Claims with Possible Merit yet. meantime, them inWell the I We now turn to two claims may that be will appoint the Public Defender’s Of- meritorious. Mr. Cannon claims that trial fice here in Tulsa to represent you. If counsel was failing ineffective for notify to you get money if your family can the court improper of contact between get money the and can hire another prosecution jurors witnesses and during it, attorney, so be but up until that recesses, trial and for usurping his deci-
time the Public Defender’s Office is
sion
testify
whether to
in his
responsible
own
defense.
representing you for
The OCCA has never
purposes
appeal.
of
Cannon,
Mr.
addressed the merits
of
your
what is
either
birth date?
claim. Mr. Cannon did not raise
the claims on
appeal
direct
OCCA;
Tr. at 1240-41. Mr. Cannon fails to ex-
and when he raised
in post-conviction
them
plain why he could not have informed the
proceedings, the OCCA held
judge of his
them to
proceed
desire to
be
pro se dur-
ing
procedurally
exchange
the
barred because
regarding
they
who would
had not
represent him
been
appeal. Moreover,
on
raised on
appeal.
direct
As we pro-
Cannon
alleged
has not
(1)
that
ceed to explain, however,
he informed
each claim
appellate
of
counsel
his desire to proceed
has merit if Mr. Cannon’s
allega-
factual
and the
Mr. Salzman
tact between
by persua-
supported
to be
out
turn
tions
cor-
further
would
and
jurors
trial
are
claims
(2)
the
evidence;
sive
testimony that
findings
Petitioner’s
roborate
on
depends
barred
procedurally
im-
the
of
on re-
was aware
make
counsel
trial
must
court
the district
nothing.
did
and
procedural
no
(3)
contacts
proper
if there is
mand; and
hearing
only
hearing
is
evidentiary
entitled
An
bar,
sup-
ac-
develop evidence
discover
necessary to
further
can
means
which
may
and
failure-to-testify claim
be-
communications
of
porting
tual content
his im-
hearing on
jury
and
to such
entitled
Mr. Salzman
tween
by dis-
begin
claim.
prejudice
extent
proper-contact
determine
claim,
pro-
then
of each
merits
cussing the
petitioner.
of an
propriety
bar,
finally
cedural
State
also saw
same witnesses
3.These
to each
respect
hearing with
evidentiary
Simpkins communi-
Awanna
witness
claim.
during a
jurors
verbally with
cate
Simpkins
Ms.
recess,
time
at which
claims
1.Merits
that Petitioner
a statement
made
juror contact
Improper
a.
These witnesses
her.
raped
had
trial counsel
testify that
also
counsel
alleges
contact
improper
of this
the court of
was aware
to inform
for failure
ineffective
wit-
and the
the witness
prosecution
between
between
contact
improper
a record
recesses.
during trial
failed to make
jurors
jurors but
nesses
submit-
or take
the court
January
before
the incident
His affidavit
post-
of his
im-
part
the OCCA
determine
measures
ted
other
attack, states:
mem-
collateral
conviction
of the communication
pact
evidentiary
action or
An
to take
jury.
failed
1. Trial
bers
concerning im-
hearing
present this
necessary to
request
hearing is
influences
outside
witnesses
summon
proper
evidence
aware
became
im-
jury. Petitioner
concerning
prejudicial
testify
*17
wit-
Salzman,
of
father
State
Larry
these errors.
of
pact
himself an
Pam Salzman
ness
Re-
Post Conviction
for
Application
Se
Pro
witness,
improp-
had
State
endorsed
by
listed
was
4. Mr. Salzman
lief,
1 at
Exh.
during
jurors
trial
with
er contact
witness, al-
potential
aas
prosecution
the
good
in
believes
Petitioner
trial.
the
Simpkins
testify. Ms.
he did not
though
have
following persons
the
faith that
sentencing
trial’s
during the
testified
contact
such
knowledge that
actual
for
“Request
entitled
pleading
In a
phase.
was
counsel
occur, that
trial
did
filed si-
Investigator”
of an
Appointment
con-
improper
of this
aware
made
by his
and referenced
with
multaneously
steps
proper
to take
tact,
failed
supplemented
Plaintiff
application,
§ 2254
prejudi-
remedy
court
to alert
Simpkins’
Ms.
stating that
the affidavit
jury
trial.
upon
influences
cial
guilt
during the
occurred
accusation
rape
Sallis, Betty Can-
Sallis, Lee
Hamon
Mullin,
Bryan
trial. See
of the
phase
Cannon, and Wade
non, Tamoura
(en
Cir.2003)
(10th
1207, 1214
F.3d
con-
improper
witnessed
all
Johnson
part
hearing justified
banc) (evidentiary
one
Larry Salzman
tact between
application).
in habeas
allegations
These
jurors.
trial
or more
Cannon’s
allegations
If the
when
present
also
witnesses were
likely rendered
true,
are
affidavit
con-
was advised
counsel
trial
ineffective
counsel,
assistance of
because of
assume that
the OMahoma court would
the probability
proof
juror
of such
Supreme
found
Court authority to be
contact would have entitled
him relief
persuasive, or, in any event, would have
from the trial court.
If trial counsel was
presumed prejudice here from an inflam-
in fact
improper
informed about
juror com- matory allegation
rape
and the other
munications and did nothing, such inaction alleged improper communications.
appear
to satisfy Strickland’s first
Accordingly, if Mr. Cannon’s assertions
prong.
for
As
prejudice
Strickland’s
true,
are
he was likely prejudiced by his
prong, in
States,
Remmer v. United
counsel’s inaction. Whether Mr. Cannon
227, 229,
U.S.
74 S.Ct.
1171 has a defendant criminal A being of position the change own testify in his right to testify to constitutional desire petitioner’s against Arkansas, 483 v. begin- Rock At the trial. behalf own behalf. his on 2704, 97 49-52, L.Ed.2d 44, to reiterated 107 S.Ct. petitioner U.S. trial of ning testify testify on to to (1987). his desire The decision trial counsel 37 defendant; not it is behalf. own with the squarely his lies Barnes, 463 trial to v. request Jones decision. petitioner[’]s counsel’s Upon behalf, 3308, his own 77 L.Ed.2d testify on 103 S.Ct. to counsel U.S. enraged and inform became (1983). counsel should counsel trial Defense 987 finesse previous to right [her] abandoned the he has that the defendant aggressive to went technique and to decision whether that the testify and to responded and bulldog approach Teague, to him. See solely belongs testify assigned Hopper “Judge petitioner, also should Counsel 1533-34. F.2d at 953 I am and case represent tome strategic the defendant with discuss make I ship and of captain testify, to choosing whether implications this case concerning decisions all a recommendation make should testify, to going say you’re I au lacks Yet counsel id. See defendant. in already list is our witness besides from testi a defendant thority to prevent couldn’t you it so you are doing defense, even when in own fying his still Petitioner testify anyway.” See United strategy. is suicidal so testify. to his wish maintained & n. Janoe, F.2d States case it[ ]s rested the State 3. When Cir.1983). defense for the Judge called true, then is affidavit If Cannon’s side, Petitioner ]s it[ present to constitutional of the him deprived ready get to jacket his to fix started Such a own defense. testify right in.his testify stand witness take satisfy counsel would duty by counsel dereliction Trial behalf. his own of Strickland. petitioner[’]s prong of the first aware well purpose- In order to testify. towish above, Strickland’s As discussed petitioner’s and subvert sabotage ly is there prong-prejudice-is second established if behalf testify on his own right testimony probability fendant’s reasonable a de- for the de- Judge called when juror’smind a raised sprang quickly fense, trial counsel ing doubtconcern reasonable said the chair and out Strickland, at 694- guilt. U.S. cut the in order to rests defense proba-bility reasonable 2052.“A S.Ct. knowing the off[,] well full petitioner probability confidence mine under- sufficient inci- an[ ] afford couldn’t petitioner 694,104S.Ct. Id. at outcome.” Petition- jury. in front dent jury recognize had Sallis, 2052. Hamon grandparents, er’s recording account heard already Cannon, Tamoura Sallis; sister Lee Clark’sdeath Sharonda (note: State Betty Scott Mother telephone Fultz. Detective conversation Witness) Johnson Wade *19 friend physical light evidence In Petition- knowledge of prior all had testimony, jectedMr. re- jury behalf other his own testify on er’s wish skeptical be can knowledge account.We testify such would changed jury’s been have the court. view by to do so if called would testimony, by live hearing Re- Conviction for Post Application Pro Se particularly what light what lief, 1 at 5-6. Exh. could have been elicited cross-examina- footnote recites the harm to Mr. Cannon tion. that would have resulted from his testify- ing. The not, however, footnote does
Nevertheless, ad- the recorded account was dress hardly whether his testimony seamless. The would have recording contains been long periods helpful on the manslaughter of silence (perhaps issue; from edit ing nor tape) and the does it state 22-page that absence of transcript prejudice contains 64 from not “inaudibles.” Such interrup testifying is an alternative in the tions impact ground narrative per could its for the court’s ruling. noteWe suasiveness. are cognizant also appellate the state’s brief makes no power of a appeal. face-to-face Most im reference to the footnote. In the circum- portantly, however, Mr. Cannon’s testimo stances, we prudent think it that our re- ny particular relevance to the mand for further consideration include this presented claim by his trial attorney that issue as well as issue.) the jury-contact his acts only constituted' manslaughter. objective Even when appears evidence Procedural bar to preclude a claim, self-defense the jury “On review, habeas this court does might still harbor a reasonable doubt not address issues that been have default whether-Mr. actually believed that ed in state court on an independent and he inwas danger, see State, v.Wood 486 adequate procedural state ground, unless P.2d (homi (Okla.Crim.App.1971) the petitioner can demonstrate cause and may cide be found to be manslaughter prejudice or a fundamental miscarriage of killing where was motivated defendant’s justice.” English v. Cody, 146 F.3d “belie[f] inwas great danger, even (10th Cir.1998). procedural A ground if he was not in such warranted belief or is “independent” if it is state, based where the slayer although acting self- federal, rather than law. See id. at 1259 & defense was not himself blame”), free from n. 2. That is indisputably here, the case or was by passion, aroused see Cipriano where the OCCA refused to hear Mr. Can State, 32 P.3d 874 (Okla.Crim.App. non’s ineffective-assistance claims because 2001) (listing elements of heat-of-passion they had not been raised on direct appeal, manslaughter). Mr. Cannon’s testimony, as required by Oklahoma law. and his demeanor testifying, while could special significance to the For a jury on state rule of procedural de matter.' fault to be “adequate,” several conditions must be satisfied. with, To begin it “must
We conclude that the issue of prejudice be applied evenhandedly in the major vast is of sufficient doubt that it should not be ity of cases.” Id. at 1259. That is not an resolved in the first instance this court. issue on appeal. In addition, however, remand, On resolution of the merits of the rule is not “adequate” to (which, claim bar a claim of course, would not be nec- ineffective assistance of essary if the trial counsel: claim barred) is procedurally require will unless procedures district the state court to resolve comply with factual disputes imperatives regarding set whether Mr. forth in Kimmelman Cannon’s attorney actually Morrison, prevented [v. him 477 U.S. 106 S.Ct. from and, so, testifying if 2574, (1986) whether Mr. (1) L.Ed.2d 305 ]: allow- Cannon suffered requisite prejudice. ing petitioner an opportunity to consult (Although the question very close, we do with separate counsel on appeal in order not treat footnote 10 in the district court’s objective obtain an assessment of trial opinion as dispositive point. on this performance (2) counsel’s providing *20 firm ap- lawyers private from same law direct [on
a
mechanism
procedural
adequate-
can
whereby a
are often treated as one for conflict-of-
peal]
petitioner
of
claims
the factual basis
ly develop
See Restatement
purposes.
interest
(Third)
of ineffectiveness.
Governing Lawyers
of the Law
d(iv) (2000) (“Restatement”)
§ 123 & cmt.
We now ad-
office can also make substantial 351, differ- (1989) N.M. 785 P.2d (Hartz, 269 history ence. A of raising J., ineffective-as- concurring) (“Perhaps a practical sistance claims allay could concerns. every matter predicated reversal on plain error is a consequence particular Of of ineffective importance assis here is the alle- counsel.”); tance of gation that appellate Gitelman, Morton counsel had a policy claiming Plain Error Rule ineffective assistance Plainly Arkansas — public defenders at Time Change, trial. Although 53 Ark. L.Rev. presented (2000) has no 217 n. sworn (“abrogating affidavit the [plain asserting the policy, the record is strongly error] doctrine in the criminal area may be suggestive. On direct appeal from Mr. even more compelling [than in civil cases] conviction, appellate counsel since error that deprives a defendant raised including six claims of of due process can issues— more properly plain error. State, See Cannon v. 961 P.2d remedied a claim of ineffective assis 846, 848, 849, at 850, 854. Under Oklahoma counsel”); tance of 25 Ohio Jur.3d Crim. law, plain errors are “errors which counsel (2003) (“The § Law 59 of preju standard failed preserve through objection required dice to be satisfied to establish which, upon but appellate review, are clear ineffective assistance of trial counsel for from the record and affect substantial object failure to at trial is far more solici rights.” State, Valdez 900 P.2d tous rights defendant’s than the plain n. 6 (Okla.Crim.App.1995). Yet appellate error standard applicable to conduct not counsel failed assert that trial counsel complained of, and it possible is raise had been ineffective in not objecting to any ineffective assistance claim when the plain of these allegedly plain errors. error precludes standard a direct chal Especially light of what stake lenge to conduct.”); such Wayne R. La a death-penalty case, given appellate Fave, Israel, H. Jerold & Nancy J. King, counsel’s willingness (24) to raise many so 11.10(d) Criminal Procedure & n. 143 other alleged errors, we it striking find (2d (“courts ed. & Supp.2004) have appellate argued never noted that prejudice element of Strick trial coúnsel had been ineffective for not may land be more readily satisfied than objecting to a “clear” error that “affect[ed] the ... [comparable] component of the rights.” substantial Often, Id. even ordi plain cases). error standard”; citing narily, one would expect a claim of ineffec On the us, record before we tive assistance to accompany a claim of to conclude that Mr. Cannon’s trial and plain error. See Rhodes, State v. appellate counsel were “separate” (Minn.2003) N.W.2d 839 n. 7 (noting within the meaning of the in English. word similarities between plain error and inef On remand, however, the district court fective assistance and analyzing alleged er may grant the State an evidentiary hear- rors under ineffective-assistance frame ing that could establish otherwise. work); Hansen, State v. 1062, 1067 61 P.3d (Utah 2002) (‘When n. 2 a party fails to b. Claim resolved trial record preserve an issue for appeal, we will nev ertheless review the issue if Besides requiring the appealing “separate” counsel for party can plain demonstrate trial and appeal, error or ex English also states that ceptional circumstances. The party may procedural Oklahoma’s bar to ineffective- also assert ineffective assistance of counsel assistance adequate claims is only if either in failing preserve (internal (1) the issue.” the claim could have been resolved citations omitted)); State v. Crislip, 109 based on (2) the trial alone, record there
1175
barred,
ishe
procedurally
not
claims are
an
appeal
of direct
the time
at
existed
A find-
to relief.
necessarily entitled
specific not
to remand
procedure
adequate
only that
means
supplemen-
bar
procedural
no
ing
court
district
to the
claims
F.3d at
the court.
English,
before
properly
record.
are
the
his claims
tation
that En-
court ruled
are
the claims
The district
that
prove
still
1263-64.
He must
to
respect
Mr.
with
satisfied
whether
glish was
consider
We now
meritorious.
Spe-
claims.
ineffective-counsel
evidentiary
Cannon’s
to an
is entitled
Mr. Cannon
that
the
Mr.
to
claim
respect
cifically with
allega-
his
the
truth
hearing to establish
testify, the
to
right
the
was denied
Cannon
tions.
be resolved
claim “can
that the
court said
The trial
alone.
record
the trial
upon
hearing
Evidentiary
testi-
did not
Petitioner
that
reveals
record
in 1996 re
of AEDPA
The enactment
]
issue[
...
[The]
behalf[.]
own
fy on his
to
authority of federal courts
the
stricted
appeal
direct
raised
have been
could
habeas cases.
hearings in
evidentiary
grant
R.
fact-finding[.]”
doc.
additional
without
standard, a habeas
pre-AEDPA
the
Under
omitted).
(citation
We have
at
evidentiary
to an
was entitled
petitioner
view.
different
(1) “the facts
court if
hearing
federal
ato
communication
An out-of-courtroom
in the state
developed
adequately
not
were
ordinarily not
reflected
be
juror would
not
court,
long
[was]
as that failure
so
any discussion
Nor would
record.
trial
the
Medina
petitioner,”
attributable
attorney
Mr. Cannon
between
(10th Cir.
Barnes,
363, 369-70
71 F.3d
only
reflects
The record
testifying.
about
(2)
if true and
1995),
allegations,
“his
It
testify.
states
did
Cannon
that Mr.
existing factual
by the
not contravened
decision that
made
who
the
nothing about
relief.”
him habeas
record,
to
would entitle
Additionally,
testify.
he would
1207, 1214
Mullin, 335 F.3d
Bryan v.
did not ask
judge
state trial
banc)
(internal
Cir.2003) (en
quotation
Certainly,
testify.
to
he wished
omitted).
marks
of direct
knew at
time
But the
these claims.
he
had
appeal
pro-
It
the standard.
changed
AEDPA
the issues
not have resolved
could
OCCA
vides:
alone.
trial record
on the
based
develop
has failed
applicant
If the
court
claims
claim State
of a
Accordingly, Mr. Cannon’s
basis
factual
unless
not hold
barred
court shall
procedurally
not be
proceedings,
could
time of
at the
unless
place
had in
claim
hearing on the
evidentiary
Oklahoma
supplementa
allowing
procedure
appeal a
that—
applicant shows
See, e.g., English,
the record.
tion of
(A)
relies on—
claim
procedural
rely on
To
1264-65.
F.3d at
law,
(i)-
of constitutional
rule
new
on remand
bar,
establish
must
the State
cases on collat-
retroactive
made
time of
law
that Oklahoma
Court,
Supreme
by the
eral review
have allowed
appeal would
direct
unavailable; or
previously
that was
record
supplement
him to
(ii)
that could
predicate
a factual
that counsel
his claims
support
evidence
discovered
previously
been
not have
the court
inform
failed
improperly
due dili-
the exercise
.through
juror influence
outside
gence; and
testify.
right
denied
(B)
the claim
underlying
the facts
court de-
course,
if the
even
district
Of
establish
sufficient to
on remand
termines
clear
convincing
mum,
evidence that but
seek an evidentiary hearing in state
error,
for constitutional
no reasonable
court in the
prescribed
manner
by state
factfinder would have found
appli-
*23
437,
law.”
er was he claims that to respect affidavit Mr. hearsay. The all are affidavit counsel when of assistance effective of denied knowledge first-hand no references of (1) notify the court failed counsel and witnesses between contact improper (2) prevented and juror contact improper family members It states jurors. Mr. trial. Whether testifying at from him knowl have actual Cannon friends Mr. either ultimately prevail on will Cannon events, underlying edge as such matters depend on claim will an knowledge at testify to they would proeedurally are claims whether has hearing. Yet evidentiary support barred, his evidence whether any of these affidavits not included ishe and whether persuasive, is the claims diligent A or friends. family members hearing to devel- evidentiary to an entitled much, absent have done would person the dis- leave to We further evidence. op doing from him preventing impediment an effi- court most district cretion so. proceeding. method cient impedi- was an not there Whether below. however, litigated ment, was Appel- Alleged Ineffectiveness C. explicit not make an did court The district Counsel late dili- Mr. Cannon’s regarding finding of fact ap- asserts that Cannon Finally, Mr. the dis- remand therefore gence. failing to for counsel ineffective pellate Can- question court trict raises he now the claims appeal pursue develop trying diligent non was counsel. of trial ineffectiveness regarding claim. juror-contact underlying his facts hardly inef- course, appellate Of evidence may take further court meritless pursue failure to fective hearing on discretion, conduct may, in its Hannigan, Hawkins claims, see deter- court If the district matter. Cir.1999); we so F.3d diligent, mines that pursue failure only the need address hearing evidentiary granted should be that we claims (if ineffective-trial-counsel two claim juror-contact of his merits on the merit. may have already said barred). proeedurally it is not respect With to those two trial-counsel completely princi- inconsistent these claims, however, we are remanding to the ples court remands for an evidentiary —the district court for further proceedings that hearing on claims that were presented may the ineffeetive-appellate-counsel moot court, federal district or not pre- claims if the district' court resolves the sented supported adequately. (either trial-counsel claims on the merits I. to Testify Failure denying they relief because do not have do). merit or granting relief they because (on I reject merits) the inef- Therefore, we remand the corresponding claim fectiveness upon based two ineffective-appellate-counsel claims for failure testify. As the district court further by the consideration district court. held, Mr. Cannon cannot show prejudice. Mr. Cannon’s theory of self defense was IV. CONCLUSION presented to the jury upon based his own We AFFIRM the district judg- court’s (the account recording) and a hearsay ac- *25 ment in all respects except that we RE- by count his mother. Tr. 669-81. As MAND to that court the issues whether by noted the court, district (1) Mr. Cannon is entitled to relief because (a) Although the Court finds attorney this issue is failed to inform the procedurally barred, court juror (b) of improper a review contact or the de- rec- nied right testify him the ord in reveals that his own Petitioner would not defense, (2) because his benefitted, counsel on di- have indeed would have been rect appeal pursue failed to these two seriously harmed, by testifying on his claims of ineffectiveness of trial counsel. own testified, behalf. Had he prose- the The issues before the district court will be cution could have emphasized the defi- procedural bar, diligence Mr. Cannon’s in in ciencies Petitioner’s “self defense” pursuing the development factual of his story. Cross examination would most juror-contact court, claim in state the mer- likely exposed have the facts that Peti- its of Mr. contentions, Cannon’s and tioner prison was a escapee at the time any of Mr. violation Cannon’s con- murder, of the that he was previously rights stitutional was harmless. Resolu- of a convicted violent crime against a tion of some may others, issues moot so we girlfriend, former that he only suffered leave to the district court’s discretion the injuries, minor if any, during the inci- manner in which to proceed. question dent in while the victim suf- multiple, fered wounds, fatal stab and KELLY, Jr., PAUL Circuit Judge, victim only tall, 5'5" concurring part and dissenting part. pounds while Petitioner is 6' over tall. I concur in the opinion, court’s R. Doc. 81 at 21 exceptions. three n. recently Cannon noted that: never explained how his testimony District courts would have are entitled to some lati- differed from tude with the regard presented account evidentiary hear- the ings, jury and and the how it higher standard is than would have countered the notice pleading. District courts are items by not mentioned the district court. Mr. required to hold evidentiary hearings in Cannon does not argue that his testimony collateral attacks without a firm idea of was necessary for a manslaughter de- what testimony will encompass and fense—to the contrary, Mr. argues how it will support a movant’s claim.. that trial counsel was ineffective pre- for United Cervini, States v. senting F.3d a manslaughter against defense (10th Cir.2004). Remanding this case is Mr. Cannon’s will. See Ct. Op. at 24-26. insistence, would Mr. Cannon’s which undo inqui- prejudice court remands This in which he urged retrial (1) tape surely quality ry because Br. at 22 See persua- Aplt. its Pro testify. affected Se may might have transcript (2) (“Mr. cognizant to note siveness, the court is like court Cannon would (3) Mr. appeal, firmly a face-to-face a claim of asserts power that Mr. Cannon pertinent testimony (“There would be defense.”), finding Cannon’s can be self Mr. Cannon manslaughter defense but of self-defense guilty not reason (4) court’s want, the district not does thing as not absolutely no such there likely harm of concerning discussion manslaughter.”). by reason of guilty (a) not address testifying does Mr. Cannon hardly required to court was The district (b) defense, not does manslaughter testimony address whether preju- that the absence explicitly state manslaugh- on the helpful have been would alternative testifying is an from not dice disavowal given Mr. Cannon’s ter defense (c) refer- is not holding, ground its and his understandable of that defense None brief. appellate by the state’s enced (both on it at the district rely failure persuasive. are of these reasons court) presenting and this court no us First, given has simply the court reading of the only reasonable claim. The by Mr. likely to be adduced facts that were conclusion that district court’s already testimony that were indeed benefitted would have recording and jury given before testi- harmed his own been *26 The mother. testimony of hearsay the preju- not that Cannon was mony is Mr. recording and that statement court’s not iden- the district court did That diced. persuasive not have been transcript may holding anas alternative tify its discussion re- of the quality of the technical because is so obvi- it hardly surprising because is more It is far speculation. cording pure is pro- reciting that the claim was ous—after rejected Mr. Cannon’s jury likely that the barred, court then the district cedurally injuries severe the victim’s given defenses record it had reviewed explained that injury to Mr. serious the lack and is a its were—this and what conclusions enough to note not It is Cannon. in the alternative. holding merits-based without appeal of a face-to-face power brief appellate the state’s fact that The in the appeal context that placing alter- court’s the district rely not does cross-exami- searching and troubling facts state moment —the holding is of no native followed Mr. Cannon’s that nation would arguments that Mr. Cannon’s argues inquiry testimony. prejudice The direct claims are that these appeal are new rec- the whole upon must be made based are Regardless, we barred. procedurally simply ord, presented been and what has opinion the district court’s bound review probability a reasonable not establish does regardless judgment, supporting the have would in this case the outcome that rely upon it. parties different. been of Mr. possible benefit Relying upon the Improper Juror Contact II. manslaughter de- testimony to a Cannon’s claim the ineffectiveness Insofar as does, im- completely fense, is the court as contact, I juror improper upon based posi- has taken proper. barred. reject procedurally it does not proceedings tion these fairly presented claim either The The fact manslaughter defense. want or not devel- OCCA entirety to the in its not ineffec- hold that counsel was that we or the the OCCA before adequately oped cannot such a presenting defense tive 1180
federal district court. The district court that would entitle petitioner to relief. summarily rejected this upon claim based Where the record has not been developed, Mr. provide failure to supporting the burden is on the petitioner to demon- facts, argument authority. Doc. 81 at (1) strate that he was not at fault for failing to develop the state court record or (2) meets the conditions of 28 U.S.C.
Mr. Cannon’s affidavit to the OCCA al
2254(e)(2);
if
met,
this burden is not
leges “improper contact”
Larry
between
district court should not
hold
evidentia-
Salzman, who did not testify, and one or
—
ry hearing.
Jackson,
See Holland v.
jurors”
more “trial
sentencing
-,
2736,
U.S.
124
S.Ct.
phase
witness Awanna Simpkins told the
(2004).
L.Ed.2d 683
jurors
at a
Because
recess
Mr. Cannon had
has
explained
raped
how
her.
he satisfies
“improper
contact”
these
conditions,
ground
I
nothing
but a
would not
conclusion
remand the dili-
devoid
specifics
who, where,
gence
issue
about
district
when and
court.
what. As to the
ground,
second
Simp-
Ms.
C. Remmer Presumption
kins did
testify
indeed
“He [Mr. Cannon]
me,”
raped
in the sentencing phase.
Finally,
Only
the Remmer presumption the
in his
petition
federal
suggests
did
Cannon court
that the OCCA would apply
claim that
Simpkins
raped
“he
me”
juror
improper
claim
contact
is a
comment
guilt
came in the
phase. Thus,
rule of federal
procedure,
criminal
not fed
Mr. Cannon did not
present
fairly
eral
law,
constitutional
and this court has
(with
claim
focus on
guilt
its
phase) to
declined to
it in
apply
the habeas context.
court;
the state
it is unexhausted
pro
Vigil
Zavaras,
298 F.3d
941 n. 6
cedurally defaulted. See
Picard v. Con
Cir.2002);
McKune,
Crease v.
nor,
270, 276,
U.S.
92 S.Ct.
(10th Cir.1999).
F.3d
Although
(1971) (“[W]e
L.Ed.2d 438
required
rejected
the OCCA
the improper juror
*27
prisoner
state
present
the state courts
contact claim on the
procedural
basis of
with the
urges
same claim he'
upon the
bar and we are analyzing the merits for
courts.”).
federal
Mr. Cannon has not
time,
the first
Mr. Cannon should not be
shown cause
prejudice
or a fundamen
aided
a presumption that is a matter of
tal
justice
miscarriage of
that would excuse
federal
procedure.
criminal
Though the
this default.
Carrier,
See Murray v.
477 OCCA once cited Remmer and then distin
478, 485, 495,
U.S.
2639,
106 S.Ct.
it,
guished
State,
Silver v.
737 P.2d
(1986).
L.Ed.2d 397
1224 (Okla.Crim.App.1987), that hardly
Moreover,
suggests that
having named
five
OCCA would adopt
witnesses
such
contacts,
categorical
I
improper
agree
given
rule
our
this
treatment of it
court that
should
context
provid
have
habeas
and its dilution or
ed
abrogation
affidavits to the
post-convic
OCCA
in the
federal context. See
tion. Certainly by
Scull,
United
time
States v.
he filed his
321 F.3d
(10th
federal petition,
they
Cir.2003) (“We
n. 5
should have been
note that
provided if
expected
circuit
evidentiary
and others
questioned
ap
hearing. Federal courts
required
propriate
are not
breadth of
presump
Remmer’s
(even
to hold hearings
if a petitioner
tion of prejudice rule,
postulating the stan
diligent) without some
why
idea of
dard should
significantly narrowed,
petitioner would be entitled
replaced
to relief. Cer
altogether.”),
denied,
cert.
vini, 379
F.3d
994. This
means a de
U.S.
124 S.Ct.
vived). Petitioner-Appellant, SERRANO,
Jerry Warden, WILLIAMS,
Joseph
Respondent-Appellee.
No. 02-2268. Appeals, Court States
United
Tenth Circuit. 14, 2004.
Sept.