REVISED, February 17, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-50934
JOSEPH JOHN CANNON,
Petitioner-Appellant,
versus
GARY JOHNSON, Director, Texas
Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
January 30, 1998
( )
Before HIGGINBOTHAM, DAVIS, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Joseph John Cannon seeks permission for further collateral
review of his conviction for capital murder and the resulting death
sentence. Because the district court effectively granted Cannon a
certificate of probable cause, he does not need our permission to
appeal. We proceed to the merits, and with benefit of full
briefing in the case, we affirm the denial of the writ and vacate
the stay of execution.
I.
In 1977, when he was only seventeen years old, Cannon emptied
a .22 caliber revolver into Anne C. Walsh at close range, attempted
to have sex with her dead body, and then drove off in her truck.
As Cannon explained in his confession, he had no reason to kill
Walsh. She was an attorney, and her brother, Dan Carabin, had been
appointed Cannon’s counsel in a burglary prosecution. Walsh had
opened her home to Cannon because he had no place to stay and was
unable to take care of himself, in part because of his illiteracy
and poor cognitive skills.
At his first trial, in 1980, Cannon pled insanity. The jury
rejected this defense. During the punishment phase, Cannon’s
defense counsel presented psychological experts who testified to
Cannon’s low intelligence and mental instability. The defense also
had Cannon’s mother testify about his troubled, violent childhood.
The jury apparently found this mitigating evidence unpersuasive,
and it sentenced him to death.
The trial court, however, granted him a new trial. At the
second trial, in 1982, Cannon received new appointed attorneys who
decided not to rely on an insanity theory. Instead, they tried to
suppress Cannon’s blood-chilling confession and, after the court
admitted it into evidence, tried to convince the jury that it
should not credit the confession because of inconsistencies with
the indictment and with other evidence before them. This strategy
also failed, and the second jury convicted Cannon. At the
punishment stage, the defense decided not to use the parade of
psychiatric experts that resulted in a death sentence in the first
2
trial. Instead, Cannon’s lawyers presented no mitigating evidence
in the hope that the jury would view him as a confused,
disadvantaged teenager who had a momentary loss of self-control and
who no longer posed a threat to society. They managed to exclude
testimony from the state’s psychiatric expert. The prosecution’s
punishment evidence was limited to reports from a bailiff at the
first trial and from Vincent Walsh, the victim’s son, who was 13 at
the time of the murder, that Cannon had threatened them. The state
also told the jury that Cannon was on probation for burglary when
he killed Walsh. But the defense’s strategy resulted in the
state’s failure to inform the jury about the pattern of juvenile
violence that surfaced in the first trial. Once again, the jury
imposed the death sentence. The jury’s decision has been upheld on
direct appeal, see Cannon v. State, 691 S.W.2d 664 (Tex. Crim. App.
1985), cert. denied 474 U.S. 1110, 106 S. Ct. 897, 88 L. Ed. 2d 931
(1986), and has survived five state petitions for habeas corpus.
The district court held a hearing on October 17, 1996, on
Cannon’s claim that his counsel was ineffective during the
punishment phase of the second trial. On November 19, 1996, the
court denied Cannon’s application for a writ of habeas corpus. Its
opinion addressed a variety of theories and applied the habeas law
that was in place before enactment of the Antiterrorism and
Effective Death Penalty Act of 1995 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214. With respect to the only theory that remains
before us, the district court noted that “[a]t the time of Cannon’s
trial, there was a genuine legal question as to whether
3
unadjudicated acts of juvenile misconduct were admissible” and thus
that the defense’s strategy had at least caused the state not to
rebut Cannon’s evidence with “unadjudicated acts of misconduct
which might have had the tendency to infuriate the jury.” The
court did, however, grant Cannon’s request for a certificate of
appealability without specifying which issue or issues were worthy
of appellate attention.
In keeping with the AEDPA, Cannon has asked this court to
issue a certificate of appealability for the sole purpose of
challenging the district court’s ruling that his appointed
attorneys at his second trial did not violate his right to
effective assistance of counsel. Specifically, he asserts “that
trial counsel’s decision not to present available mental health
evidence in mitigation at the punishment phase of Appellant’s trial
amounted to constitutionally ineffective assistance . . . [and
that] the deficiency prejudiced Appellant to the extent that a
reasonable person would lose faith in the confidence of the outcome
of the trial.”
II.
Because he filed his habeas petition in the district court on
March 5, 1995, before the effective date of the AEDPA, Cannon’s
appeal is governed by the scheme of habeas corpus law that
prevailed before the AEDPA’s enactment. In Lindh v. Murphy, ___
U.S. ___, 117 S. Ct. 2059, ___ L. Ed. 2d ___ (1997), the Supreme
Court held that the AEDPA’s standard for reviewing petitions by
state prisoners, codified at 28 U.S.C. § 2254(d), does not apply
4
retroactively to petitions filed before April 24, 1996.1 The AEDPA
has amended § 2253 to require a certificate of appealability
instead of a certificate of probable cause. Both types of
certificates require Cannon to make a substantial showing of the
denial of a constitutional right. Barefoot v. Estelle, 463 U.S.
880, 893, 103 S. Ct. 2283, 3394, 77 L. Ed. 2d 1090 (1983); Drinkard
v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), cert. denied, ___
U.S. ___, 117 S. Ct. 1114, 137 L. Ed. 2d 315 (1997). But, in
contrast to pre-AEDPA law, if a district court grants a certificate
of appealability, it must “indicate which specific issue or issues
satisfy the showing required.” 28 U.S.C. § 2253(c)(3). See also
Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997).
In light of Lindh, we have held that habeas petitioners who
want to appeal need only a certificate of probable cause if they
filed their petition in the district court before enactment of the
AEDPA. United States v. Roberts, ___ F.3d ___, ___, 1997 WL
420166, at *1 (5th Cir. July 24, 1997) (per curiam). We construe
the district court’s certificate of appealability as a certificate
of probable cause. Thus, Cannon does not need further
certification from a circuit judge before we can hear the merits of
his appeal.
1
The AEDPA explicitly provides for retroactive application
in certain capital cases. Pub. L. No. 104-132, § 107(a), 110 Stat.
1214, 1221-26 (1996) (creating 28 U.S.C. §§ 2261-2266). Because
Texas has not instituted a system of representation that complies
with the relevant requirements, this is not one of those cases.
Gochicoa v. Johnson, ___ F.3d ___, ___ n.4, 1997 WL 402936, at *9
n.4 (5th Cir. Aug. 4, 1997); Carter v. Johnson, 110 F.3d 1098, 1104
(5th Cir. 1997).
5
Cannon’s 14-page motion for a certificate of appealability
comes to us along with a 92-page brief in support of the motion.
These documents lay out Cannon’s ineffective-assistance theory in
detail. We also have before us the record and accompanying
exhibits as well as full briefing on the merits. See Garrison v.
Patterson, 391 U.S. 464, 466, 88 S. Ct. 1687, 1688, 20 L. Ed. 2d
744 (1968) (per curiam) (“[N]othing we say here prevents the courts
of appeals from considering the questions of probable cause and the
merits together, and nothing said . . . here necessarily requires
full briefing and oral argument in every instance in which a
certificate is granted.”); Carafas v. LaVallee, 391 U.S. 234, 242,
88 S. Ct. 1556, 1562, 20 L. Ed. 2d 554 (1968) (indicating that a
circuit court does not necessarily have to “give the parties full
opportunity to submit briefs and argument in an appeal which,
despite the issuance of a certificate of probable cause, is
frivolous”) (both discussing Nowakowski v. Maroney, 386 U.S. 542,
87 S. Ct. 1197, 18 L. Ed. 2d 282 (1967) (per curiam)).
III.
Although we review findings of fact for clear error, the
district court’s ultimate conclusion that counsel was not
constitutionally ineffective is a mixed question of law and fact
that we review de novo. Boyle v. Johnson, 93 F.3d 180, 187 (5th
Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 968, 136 L. Ed.
2d 853 (1997).
Cannon’s counsel at his 1982 trial were Fred G. Rodriguez and
Gus Wilcox. Rodriguez had tried seven capital cases as a state
6
prosecutor, although this was his first capital case on the defense
side. Wilcox was an assistant district attorney in Bexar County
from 1970 to 1977, when he entered private practice. Both
participated actively at trial. They won important victories
before a sympathetic judge, including the exclusion of testimony by
the prosecution’s psychiatric expert, Dr. James P. Grigson, during
the punishment phase.
The district court found that Rodriguez conscientiously
studied the first trial to learn from any mistakes that might have
contributed to the initial death sentence. Affidavits attached to
the state’s reply to Cannon’s first application for a state writ
explain why Cannon’s counsel chose not to present evidence of his
mental health during the punishment phase of his second trial.
Rodriguez provided the following account of his reasoning:
Before conferring with co-counsel on our trial
strategy, I had the benefit of meeting with and
consulting Mr. Cannon’s prior counsel, William Brown,
examining his file and reading the complete transcripts
[of the 1980 trial].
It was my belief (and later co-counsel joined me in
this belief) that the insanity defense was extremely
weak, and had been quickly dismissed by a previous jury
and there was no reason to believe that a subsequent jury
would react any differently. Additionally, our client
refused to admit to the offense. Furthermore, the
introduction of psychological/psychiatric testimony would
allow the prosecution to bring before the jury, every
conceivable wrong, offense and referral to the probation
office committed by young Cannon. In the previous trial,
the prosecution, through cross-examination, brought out
every offense which the defense had omitted addressing,
of which there were many, including a manslaughter
charge. All of these acts/offenses contributed to a
quick verdict in the second phase of the trial. By
staying away from this type of testimony, we sought to
keep out of the record the defendant’s prior criminal
history. This we accomplished completely.
. . .
7
The same rationale for staying away from
psychological/psychiatric testimony was applicable to the
punishment phase of the trial. All of the [potential
psychological] witnesses had examined young Cannon after
he had committed some criminal act and been referred to
them. We didn’t want to place before the jury a pattern
of anti-social behavior, aggressiveness and a long
criminal history which would be considered by the jury on
the question of future dangerousness. That information
could have been elicited quite easily from any or all of
these medical witnesses or from any reputation witnesses
including Cannon’s mother by way of “have you heard”
questions. Through our strategy we were able to keep out
of the record all the damning testimony elicited by both
sides which portrayed Cannon as an individual who,
because of his criminal past, would periodically continue
a life of crime and pose a continuing threat to society,
and also keep out the testimony of Dr. Grigso[n].
Wilcox filed an affidavit that expressed the same views. Their
analysis proved accurate. The state sought to introduce Dr.
Grigson’s testimony on future dangerousness. The judge barred it,
but at the same time he made it clear that the testimony would have
been proper if the defense had made an issue of Cannon’s
psychological strengths and weaknesses.
Counsel points to Cannon’s personal history suggesting that he
is a victim of circumstance. A car hit him when he was four or
five, and he spent three months in the hospital. Doctors now think
he sustained a brain injury. He contends that he could not speak
comprehensibly until he was about eight. He has learned how to
read and write in prison, but he alleges that at the time of the
murder he could barely write his name. When he was a child,
doctors repeatedly suggested institutionalization, but Cannon’s
mother did not follow through.
Any defense team, however, would have trouble confining the
personal history to these mitigating circumstances. At the first
8
trial, his mother testified that schools would not keep him because
he was so disruptive. He broke one girl’s arm, and a boy drowned
after Cannon threw him into a bayou. When he was fourteen and
fifteen, he was arrested six times on burglary and theft charges.
Even defense experts at the first trial portrayed Cannon as someone
who needs constant supervision in order to control his violent and
destructive impulses.
Cannon does not dispute that Rodriguez and Wilcox considered
introducing psychological evidence, studied the transcript of the
first trial, and concluded that Cannon’s past was too checkered for
that strategy to be effective. Nor does he claim that Rodriguez
and Wilcox should have pursued an insanity theory in the second
trial. Instead, he argues that Rodriguez and Wilcox should have
mounted their own independent investigation into the strength and
nature of the mitigating evidence. According to Cannon, they
should not have assumed that a trial built on the same strategy as
the first trial would fail, especially because, in Cannon’s view,
his defense attorneys at the first trial did not adequately convey
his human qualities during the punishment phase. In the federal
habeas proceeding below, Cannon presented legal experts who
explained that Texas criminal defense clinics have been teaching
the art of humanization of capital defendants since the late 1970s
and that reasonable defense lawyers would never decline to present
mitigating evidence when the state has offered evidence of a prior
burglary conviction and the facts of the murder are so horrific.
But even if Rodriguez and Wilcox chose a bad strategy, and we
9
make no such suggestion, their defense was not ineffective under
the standard announced in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). They had
reason to avoid an insanity theory, not only because Cannon refused
to admit his guilt, but because the facts showed advanced planning,
deliberate cocking and perhaps reloading of the gun, and an
awareness immediately afterward that the murder was wrong. At the
punishment phase, therefore, they were relegated to arguing that
the shooting was not deliberate and that Cannon would not pose a
danger to the public in the future. The defense had every reason
to think that once the jury learned about Cannon’s personal
history, they would find that he would pose a danger in the future.
As Wilcox explained before the district court, the decision whether
to use the insanity defense in the guilt phase practically
determined whether to use Cannon’s psychological history as a
mitigating factor in the punishment phase. Once the jury was left
with nothing but the question of future dangerousness, Cannon was
arguably better off as a confused, disadvantaged juvenile than as
a repeat offender whose aggressive behavior no one had been able to
control. See Mann v. Scott, 41 F. 3d 968, 983-84 (5th Cir. 1994)
(holding that the decision not to present evidence of low I.Q. and
an abusive childhood during the punishment phase of a capital trial
was an objectively reasonable strategic decision), cert. denied,
514 U.S. 1117, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995); King v.
Puckett, 1 F.3d 280, 284 (5th Cir. 1993) (finding that a defense
attorney acted reasonably by not offering mitigating evidence
10
because he had a legitimate fear that it would open the door to
rebuttal testimony about the capital defendant’s poor reputation in
the community); McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir.
1990) (explaining that the decision whether to raise an insanity
defense is a matter of trial strategy and does not warrant a
presumption of prejudice).
Even if Rodriguez and Wilcox performed below the Strickland
standard, we cannot grant relief unless counsel’s failings
prejudiced Cannon. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. In this unusual case, we do not need to have a robust
imagination to compare the second trial strategy of keeping the
state from presenting harmful evidence at the punishment phase with
the strategy at the first trial, which involved a detailed plea for
the jury’s understanding and sympathy. Counsel in the second trial
had the benefit of studying the first trial and learning how the
scenario that Cannon now seems to favor would likely have played
out. Their choice to take a different tack did not make the second
trial “fundamentally unfair or unreliable.” Lockhart v. Fretwell,
506 U.S. 364, 369, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993).
Cannon provides only a thin explanation of how Rodriguez and
Wilcox could have prevented a replay of the first trial if they had
chosen to emphasize his psychological and developmental problems.
He has not specified what useful material an independent
investigation might have revealed. He cites a medical reference
manual for the claim that “[c]ertain sociological psychological
characteristics that reveal themselves at an early age either
11
disappear after the age of 15 or become significant for other
purposes after the age of 18.” But this statement is too general
to be of much use, and it’s unlikely that a jury would disregard
Cannon’s behavior based on such an amorphous psychological
observation. Cannon points out that the defense made only a short
conclusory statement at the close of the punishment phase in the
first trial and insists that Rodriguez and Wilcox could have
carried out the mitigation strategy more effectively in the second
trial. But it’s too speculative to conclude that this minor
difference would have changed the outcome. Consequently, Cannon
cannot show that Rodriguez’s and Wilcox’s strategic choices
prejudiced him.
The denial of the writ is AFFIRMED, and the stay of execution
is VACATED.
12
Cannon v. Johnson
Combined Opinion