Cannon v. Mullin

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 13 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JEMAINE MONTEIL CANNON,

Petitioner - Appellant,
v. No. 03-5008
MIKE MULLIN, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 99-CV-297-H(M))

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

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

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

HARTZ , Circuit Judge.
 Jemaine Monteil Cannon was convicted in Oklahoma state court of first

degree murder and sentenced to death. After the Oklahoma Court of Criminal

Appeals (OCCA) denied his direct appeal and his pro se state petition for post-

conviction relief, Mr. Cannon timely filed an application for relief under 28

U.S.C. § 2254. The United States District Court for the Northern District of

Oklahoma rejected Mr. Cannon’s request for an evidentiary hearing and denied all

relief.

On appeal Mr. Cannon raises numerous claims of ineffective assistance of

trial counsel; three claims of trial counsel misconduct, which we recharacterize as

additional claims of ineffective assistance of counsel; and a claim of ineffective

assistance of appellate counsel for failure to pursue on appeal the claims of

ineffectiveness of trial counsel. We have jurisdiction under 28 U.S.C. § 2253 and

28 U.S.C. §1291. We affirm on all claims except three. There are factual issues

regarding the merits and procedural bar with respect to Mr. Cannon’s allegations

that (1) his trial counsel failed to notify the court of improper contacts between

prosecution witnesses and jurors during trial recesses, and (2) his trial counsel

prevented him from testifying in his own defense at trial. We therefore reverse

and remand to the district court for further proceedings on those two claims. We

also remand for further consideration Mr. Cannon’s claim of ineffective

assistance of appellate counsel.

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I. FACTUAL BACKGROUND

Because Mr. Cannon filed his habeas petition after the April 24, 1996,

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), that statute governs our review. See Rogers v. Gibson, 173 F.3d 1278,

1282 n.1 (10th Cir. 1999). Under AEDPA factual determinations made by state

courts are presumed to be correct. See 28 U.S.C. § 2254(e)(1). Thus, we adopt

the OCCA’s recitation of facts.

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

On February 4, 1995, [Mr. Cannon] borrowed money, bought a bus
ticket and went to Flint, Michigan to stay with an uncle. From Michigan,
[Mr. Cannon] telephoned his mother who told him Clark was dead and to
turn himself in and tell police his side of the story. After convincing
[Mr. Cannon] to turn himself in, [Mr. Cannon]'s mother told Tulsa police
detective Tom Fultz [Mr. Cannon]'s location. Shortly thereafter,
[Mr. Cannon] telephoned Detective Fultz and told him that he killed Clark
in self-defense. [Mr. Cannon] was arrested shortly after his conversation
with Fultz and he was returned to Oklahoma. Although [Mr. Cannon]
claimed he killed Clark in self-defense and that they had a violent fight,

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 [Mr. Cannon] did not have any wounds or noticeable abrasions when he
was arrested.

Cannon v. State, 961 P.2d 838, 843 (Okla. Crim. App. 1998). Other facts will be

set forth as necessary to the discussion.

II. PROCEDURAL HISTORY

A jury in the District Court of Tulsa County, Oklahoma, convicted

Mr. Cannon of murder in the first degree. The jury found four aggravating

circumstances and recommended a sentence of death. The trial court sentenced

him accordingly. Mr. Cannon was represented at trial by attorneys Sid Conway

and Julie O’Connell from the Tulsa Public Defender’s office. A different

attorney from the Tulsa Public Defender’s office, Barry Derryberry, represented

Mr. Cannon on direct appeal to the OCCA, which affirmed his conviction. See

Cannon v. State, 961 P.2d 838.

Mr. Cannon later pursued post-conviction remedies in the OCCA.

Although he was originally represented by the Oklahoma Indigent Defense System

(OIDS), an entity distinct from the Public Defender’s office, he later elected to

represent himself, with OIDS serving as standby counsel. He raised a number of

claims of ineffective assistance of counsel and sought an evidentiary hearing.

The OCCA denied relief and denied his request for an evidentiary hearing.

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 On August 16, 1999, Mr. Cannon filed an application for relief under 28

U.S.C. § 2254 with the United States District Court for the Northern District of

Oklahoma. The district court denied the application on December 9, 2002.

Mr. Cannon obtained a certificate of appealability (COA) from the district court

on the ineffective-assistance-of-counsel and trial-counsel-misconduct issues. See

28 U.S.C. § 2253(c). He filed an opening brief and a reply brief with this court;

standby counsel filed a supplemental brief addressing only procedural bar and

appeared at oral argument on behalf of Mr. Cannon. We now address the issues

authorized by the COA.

III. DISCUSSION

All Mr. Cannon’s claims on appeal amount to allegations of ineffective

assistance of counsel. We will address the claim of ineffective assistance of

appellate counsel after concluding our discussion of the claims of ineffective

assistance of trial counsel.

To prevail on a trial-counsel-ineffectiveness claim, a defendant must satisfy

the two-pronged test articulated by the United States Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984). First, he must show that counsel’s

performance was deficient. Id. at 687. Second, he must show that counsel’s

deficient performance prejudiced his defense. Id. To show that counsel’s

performance was deficient, the defendant must demonstrate that counsel’s

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performance “fell below an objective standard of reasonableness.” id. at

688—that is, was not “within the range of competence demanded of attorneys in

criminal cases.” Id. at 687 (internal quotation marks omitted). To show

prejudice, a defendant “must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, . . . the [jury] would have had a reasonable

doubt respecting guilt.” Id. at 694-95. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

None of Mr. Cannon’s current ineffective-assistance claims was raised on

direct appeal to the OCCA. Oklahoma, unlike most jurisdictions, generally

requires a criminal defendant to raise such claims on direct appeal or forfeit them.

See 22 Okla. Stat. §§ 1086, 1089; Walker v. State, 933 P.2d 327, 332 (Okla. Cr.

App. 1997). As a result, the State argues that Mr. Cannon’s claims are

procedurally barred.

When questions of procedural bar are problematic, however, and the

substantive claim can be disposed of readily, a federal court may exercise its

discretion to bypass the procedural issues and reject a habeas claim on the merits.

See Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000). All but two of

Mr. Cannon’s claims of ineffective trial counsel are clearly without merit, so we

will dispose of them without regard to procedural bar. We will then address the

remaining two claims; after determining that these claims have potential merit, we

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will proceed to consider whether they are procedurally barred and whether

Mr. Cannon should have the opportunity to develop the pertinent facts at an

evidentiary hearing.

A. Meritless Claims

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

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

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

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

28 U.S.C. § 2254(d). If, however, the state court did not adjudicate a claim on

the merits, this court defers to any state-court factual determinations, see 28

U.S.C. § 2254 (e)(1) ( “In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be

correct.”), and addresses issues of law de novo, while reviewing the district

court’s findings of fact for clear error. See LaFevers v. Gibson, 182 F.3d 705,

711 (10th Cir. 1999). Because Mr. Cannon proceeds pro se, we construe his

appellate brief liberally. See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.

1998).

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 1. Detective’s testimony

At trial the prosecution played a tape of a conversation between

Mr. Cannon and Detective Fultz, who had investigated the crime scene. On the

tape Mr. Cannon admitted killing the victim, but claimed that he had killed her in

self-defense. After the tape was played, the prosecutor asked Detective Fultz,

“Based on what the defendant was telling you and based upon what you were

seeing from the scene, what opinions did you form about what the defendant was

telling you?” Tr. 764. Defense counsel objected to this question as irrelevant.

The court overruled the objection. Detective Fultz then answered, “I did not

believe Mr. Cannon’s version of what had occurred.” Tr. 765.

Mr. Cannon now argues that his trial attorney was ineffective for not

objecting to the question on the ground that it called for improper opinion

testimony. We reject this claim because we are bound by the OCCA’s

determination on the merits that any error in admitting Fultz’s opinion was

harmless. In resolving Mr. Cannon’s direct appeal, the OCCA wrote:

Even if we construed Fultz’ statement as an improper opinion
telling the jury what to find, defense counsel attacked Fultz on cross-
examination because he could not produce any evidence of who
started the fight, who had the knife first or any statements of the
victim to disprove [Mr. Cannon’s] self defense claim. Defense
counsel’s attempts to expose the basis of Fultz’ conclusion on cross-
examination cured any error which could have resulted.”

Cannon, 961 P.2d at 846.

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 Because the OCCA neither adjudicated the claim in a manner that was

“contrary to, or . . . an unreasonable application of, clearly established Federal

law” nor made its decision “based on an unreasonable determination of the facts,”

we must deny relief. See 28 U.S.C. § 2254(d).

2. Doctor’s testimony

Mr. Cannon claims that his trial counsel was ineffective for failure to raise

several objections to testimony by Dr. Hemphill, who examined the victim’s body.

He contends that Dr. Hemphill (1) offered objectionable testimony on the element

of intent by declaring that the cause of death was “homicide”; (2) improperly

testified that certain wounds on the victim were “defense wounds”; (3) improperly

testified that a necklace found at the scene could have caused some of the

victim’s injuries; (4) lacked sufficient knowledge to testify; and (5) should have

been cross-examined regarding the time of death. Mr. Cannon also contends that

counsel was ineffective for failing to object to the prosecution’s

mischaracterization of Dr. Hemphill’s testimony during closing argument.

a. “Homicide” testimony

Mr. Cannon complains that Dr. Hemphill was permitted to testify that the

cause of the victim’s death was homicide. The following exchange occurred

during direct examination of Dr. Hemphill:

Q: And based on viewing what you viewed, did you formulate an
opinion as to the manner of death?

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 A: Yes.

Q: And in your expert opinion, what was the manner of death?

A: Homicide.

Tr. at 881.

On cross-examination the defense attorney followed up on this line of

questioning:

Q: Dr. Hemphill, you, uh, said that you have formulated the opinion that
this was a homicide, right?

A: Yes.

Q: Would you please define for me what you mean when you say
homicide?

A: Yes. Part of the Medical Examiner’s responsibility in investigating a
case is to give an opinion as to the appropriate manner into which the
death should be classified. Our report is incomplete without it. It’s
only an opinion. It’s not a ruling. Nobody has to do anything based
on it, but homicide, the way we use it, means that the death, in our
opinion, the death was caused by the action of another person and
that action was intended to cause harm and that’s all it means.

Id. at 884-85 (emphasis added).

On re-direct examination, the prosecutor asked, “And is there anything that

you thought about on cross examination that changes your opinion regarding your

classification of [the victim’s] death as a homicide, that being intended to cause

harm?” The witness answered, “No, there isn’t.” Id. at 890.

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 On recross-examination, the defense attorney asked, “Your definition of

homicide includes the intent to cause harm?” The witness answered “Yes.” Id.

Whatever the basis of Mr. Cannon’s concerns about this testimony, he has

failed to show any possibility of prejudice. Dr. Hemphill’s description of the

cause of death as “homicide” was completely consistent with Mr. Cannon’s

theories of the case. There was no issue regarding Mr. Cannon’s intent to harm

the victim. The only issues were whether he acted in self-defense and, if not,

whether his culpability was only for manslaughter. See 21 Okla. Stat. § 711

(defining manslaughter as “homicide” “[w]hen perpetrated without a design to

effect death, and in a heat of passion, but in a cruel and unusual manner, or by

means of a dangerous weapon; unless it is committed under such circumstances as

constitute excusable or justifiable homicide” or “[w]hen perpetrated unnecessarily

either while resisting an attempt by the person killed to commit a crime, or after

such attempt shall have failed”). Neither defense theory excludes an intent to

cause harm.

b. “Defense-wound” testimony

Mr. Cannon argues that his trial counsel should have objected to

Dr. Hemphill’s testimony that certain wounds on the victim were “defense

wounds.” First, he asserts that the testimony constituted “unfair surprise,”

because Dr. Hemphill’s expert report did not so classify the wounds. Aplt. Br. at

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6. To the extent that Mr. Cannon is contending that his counsel should have

raised a constitutional objection to the testimony on the ground that he was not

warned of the testimony in advance, he does not explain, nor do we perceive, how

his contention survives the proposition that “[t]here is no general constitutional

right to discovery in a criminal case . . . .” Weatherford v. Bursey, 429 U.S. 545,

559 (1977). There was also no meritorious state-law objection available to his

counsel. Oklahoma law requires the State, upon request by the defense, to

disclose expert reports “including results of physical or mental examinations and

of scientific tests, experiments, or comparisons.” 22 Okla. Stat. § 2002(A)(1)(d).

But it does not require that everything to which an expert testifies be contained in

the expert’s report. Cf. Fed. R. Civ. P. 26(a)(2)(B) (requiring retained experts to

prepare a report “contain[ing] a complete statement of all opinions to be

expressed and the basis and reasons therefor”); Fed. R. Crim. P. 16(a)(1)(G) (at

defendant’s request, the government must provide a written summary of expert

testimony to be used during its case-in-chief at trial). In particular, the expert’s

report need not contain all the expert’s ultimate conclusions. See, e.g., Pierce v.

State, 786 P.2d 1255, 1262-63 (Okla. Crim. App. 1990). Mr. Cannon’s trial

counsel was not ineffective for failing to object to the testimony as “unfair

surprise.”

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 Second, Mr. Cannon contends that Dr. Hemphill’s reference to certain

wounds as “defense wounds” was improper ultimate-opinion testimony. Under

Oklahoma law, “opinion testimony which merely tells a jury what result to reach

is inadmissible.” Romano v. State, 909 P.2d 92, 109 (Okla. Crim. App. 1995).

But “expert witnesses can suggest the inference which jurors should draw from

the application of specialized knowledge to the facts,” id., and “[t]estimony in the

form of an opinion or inference otherwise admissible is not objectionable because

it embraces an ultimate issue to be decided by the trier of fact.” 12 Okla. Stat.

§ 2704. Here, Dr. Hemphill explained why he inferred that certain wounds likely

resulted from trying to ward off an attack. Such testimony is not barred by

Romano. Failure to object to this testimony as an “ultimate opinion” did not

constitute ineffective assistance of trial counsel.

c. Necklace testimony

Mr. Cannon contends that trial counsel was ineffective because she failed

to object to Dr. Hemphill’s testimony that some of the victim’s wounds could

have been caused by a necklace. Mr. Cannon argues that because the necklace

was never taken into custody by the police and because Dr. Hemphill saw only

photographs of the necklace, his testimony was beyond the scope of his personal

knowledge.

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 Dr. Hemphill was asked to explain what could have caused some injuries to

the victim’s neck. He answered:

These are a type of blunt injury, so by definition, they’re caused by a
blunt or semi-sharp object being dragged across the skin. As to what could
have done this, fingernails could do this. There was a small necklace found
at the scene, which I was shown pictures of and told about, that could have
conceivably caused some of these. The necklace was broken. If the
assailant grabbed it, for example, and pulled or twisted it in anyway [sic],
slipping around could have caused some of this.

Tr. at 874. We see no ground for proper objection to this testimony. Mr. Cannon

does not dispute that a necklace had been found at the scene of the crime. Nor

does he explain why the depiction of the necklace in the photograph provided an

inadequate foundation for Dr. Hemphill to infer that it could have caused the

injury. An expert may express an opinion based on factual evidence provided by

others. See 12 Okla. Stat. § 2703.

d. Knowledge of the victim’s body

Mr. Cannon argues that Dr. Hemphill lacked the personal knowledge

necessary to testify in the case. On recross-examination Mr. Cannon’s trial

counsel asked Dr. Hemphill, “When this case was brought to you, what all did you

know? Anything you haven’t testified to?” Tr. at 891. Dr. Hemphill responded,

“Well, I don’t have an independent recollection. I can only tell you what my

investigator had written out by the time I saw the body for the first time. . . .” Id.

Mr. Cannon contends that this testimony demonstrates that Dr. Hemphill lacked

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sufficient personal knowledge to form his opinion of the cause of death. We

disagree. The quoted testimony related only to what Dr. Hemphill knew before

examining the victim’s body. It is clear from the record that Dr. Hemphill

actually performed a medical examination that provided the basis for his

testimony.

e. Time of death

Mr. Cannon argues that Dr. Hemphill’s estimate of the period during which

death occurred was inconsistent with the testimony of prosecution witnesses who

placed him away from the murder scene during that period. Apparently he is

contending that his counsel should have cross-examined Dr. Hemphill on this

point. But the time of death was not a critical issue in the case (Mr. Cannon did

not have an alibi defense) and the cross-examination of Dr. Hemphill was

successful in several other respects. Decisions on how to question a witness are

generally committed to counsel’s discretion. See United States v. Snyder, 787

F.2d 1429, 1432 (10th Cir. 1986) (“Counsel’s selection of questions is a matter of

‘strategic choice,’ as to which [s]he has broad latitude.”). We hold that counsel’s

failure to cross-examine Dr. Hemphill regarding the time of death did not

constitute ineffective assistance of counsel.

f. Closing argument

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 Mr. Cannon contends that counsel was ineffective for failing to object to

statements made by the prosecution during closing argument as mischaracterizing

Dr. Hemphill’s testimony. As set forth earlier, Dr. Hemphill testified that cuts on

the victim’s hands were defensive wounds. On cross-examination, Mr. Cannon’s

attorney elicited that there could be other explanations for the cuts—that they

could be consistent with Mr. Cannon’s claim that he acted in self-defense. On

redirect examination the prosecution asked: “[Defense] [c]ounsel asked you

about possible causes of injuries. After you listened to her questions and you

thought about your answers, is it still your best explanation within your training

and experience, that it’s still consistent, in your opinion, to classify the major

wounds to her hands as defensive wounds?” Tr. 889-90. The doctor responded

that he would still classify the wounds as “defensive wounds.” Id. at 890.

During closing the prosecutor recounted this testimony. He stated:

“[F]inally I had to stand up on redirect and say, well, [did] all those questions [the

defense counsel asked] change your opinion one iota? [And the doctor answered]

No.” Id. at 928. Mr. Cannon seems to argue that this description mischaracterized

the doctor’s testimony. Although we agree that the prosecutor did not describe

the testimony verbatim, his description was not cause for objection.

3. Cross-examination of Sheena Elliott

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 Mr. Cannon argues that counsel rendered ineffective assistance by failing to

cross-examine Sheena Elliott adequately. He points to inconsistencies between

her preliminary hearing testimony and her trial testimony. We agree that several

statements she made at the preliminary hearing were inconsistent with statements

made at trial. Most notably, Ms. Elliott testified at the preliminary hearing that

the last time she saw Ms. Clark alive was on Thursday, February 2, 1995; but at

trial she testified that this occurred on Friday, February 3—the day of the

homicide.

It is not, however, always the best trial strategy to exploit every

inconsistency in the statements of a witness, even a witness called by opposing

counsel. To some extent, Ms. Elliott’s testimony was consistent with

Mr. Cannon’s defense and was referred to favorably in his counsel’s final

argument. Mr. Cannon has not shown that defense counsel’s strategy with respect

to cross-examining Ms. Elliott was so unreasonable as to constitute ineffective

assistance of counsel.

4. Failure to impeach other prosecution witnesses and call a
witness

Mr. Cannon argues that he received ineffective assistance of counsel

because his trial counsel failed to impeach three other prosecution witnesses:

Detective Fultz, Adrian Collins, and Betty Scott. He also suggests that trial

counsel should have called the victim’s mother to testify.

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 With respect to Detective Fultz, Mr. Cannon contends that the officer’s

conduct belied his trial testimony that he did not believe Mr. Cannon when

Mr. Cannon gave his version of events in their telephone conversation. On

February 16, over a week after he spoke with Mr. Cannon on the telephone and

examined the homicide scene, Detective Fultz requested lab work to determine

whether Mr. Cannon’s blood was found at the scene. Mr. Cannon asserts that this

request demonstrates that Detective Fultz was not as “solidly grounded in his

opinion as he portrayed himself to be on February 7th.” Aplt. Br. at 14. The

contention is frivolous. An investigator’s decision to pursue important evidence

is hardly inconsistent with the investigator’s belief in the strength of the evidence

already obtained. There was nothing inadequate about trial counsel’s failure to

cross-examine on this matter.

Adrian Collins, a friend of Mr. Cannon’s, testified that he drove

Mr. Cannon to the bus station, and he identified a pair of bloody sneakers found

in the victim’s apartment as belonging to Mr. Cannon. Mr. Cannon asserts that

trial counsel should have impeached Mr. Collins using his “extensive criminal

record.” But Mr. Cannon fails to provide sufficient information about that

criminal record to determine whether impeachment would have been possible

under the applicable Oklahoma rule of evidence, 12 Okla. Stat. § 2609 (allowing

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impeachment by use of criminal convictions in certain situations). Furthermore, it

appears that Mr. Collins did not testify to anything worth impeaching.

Betty Scott, Mr. Cannon’s mother, testified on various matters, including

the telephone call from her son in Michigan after he had killed the victim.

Mr. Cannon asserts that trial counsel should have impeached her by eliciting that

she was in possession of a stolen cell phone. We disagree. Such a gratuitous

attack on a client’s mother is unlikely to be helpful.

Mr. Cannon also argues that “trial counsel should have called Sharonda

Clark’s mother, Phyllis Lacy[,] to testify as to a recent phone call she received

from Sharonda in which Sharonda told her mother how happy she was in her

relationship with Mr. Cannon.” Aplt. Br. at 14. We observe, however, that such

testimony may have undermined his theory that the victim was the aggressor.

Moreover, expecting a mother to testify favorably for the defendant who

admittedly killed her daughter would surely be risky trial strategy.

We reject Mr. Cannon’s claim that his counsel was ineffective because of

failure to cross-examine or call these witnesses for the purposes he suggests.

5. Failure to introduce evidence

For his fifth claim of ineffective assistance, Mr. Cannon states only, “Trial

counsel’s failure to introduce evidence or reveal existence of evidence was

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ineffective assistance of counsel in capital murder prosecution.” Aplt. Br. at 15.

In the absence of any further explanation of the claim, we must reject it.

6. Failure to consult (call) necessary experts

Mr. Cannon contends that trial counsel improperly failed to consult or call

experts to assist at his trial. Stating that the only expert called by trial counsel

was a doctor who testified during sentencing regarding future dangerousness, he

argues that “[t]rial counsel should have sought the assistance of a

neuropsychiatrist, blood-spatter expert, medical-examiner expert, and self-defense

expert in order to present [his] defense.” Id.

The doctor called by the defense to testify during sentencing was a

neuropsychologist. It is not apparent to us, nor has Mr. Cannon indicated, what

helpful testimony would, or even could, have been elicited by any of the

additional experts he suggests. On this record we cannot say that trial counsel

was ineffective for failing to engage additional experts. (Nor has Mr. Cannon

provided any basis for ordering an evidentiary hearing on the matter.)

7. Failure to elicit and argue facts relevant to self-defense

Mr. Cannon states that “[e]vidence of Sharonda Clark’s violent and

aggressive tendencies, particularly towards men, though available was not

presented.” Id. at 16. Under 12 Okla. Stat. § 2404(a)(2), an accused may offer

evidence of a pertinent character trait of the victim.

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 Nevertheless, Mr. Cannon has failed to show that any additional helpful

testimony was available. In an affidavit he states: “Tamoura Cannon[] lived with

Sharonda Clark and her husband, Kelly Clark[,] for a period of time. Ms. Cannon

had personal knowledge of Sharonda Clark’s violent tendencies toward her

husband. This would have supported brief testimony of Agnes Clark to the same

effect.” Pro Se Application for Post Conviction Relief, Exh. 1 at 3 (emphasis

added).

It is therefore worth reviewing Agnes Clark’s testimony on the matter:

Q: Okay. Was she [the victim] ever violent with you?

A.: No.

Q: Did you ever see her get into fights or arguments or be aggressive?

A: Yes, once.

Q: Okay. Describe that for us.

A. Well, she was angry like anyone else, you know, angry, and had an
argument, and that was it.

Q: Did you ever see her anger draw her to come to blows with anyone or
aggressively attack anyone because of her anger?

A: Well, yes, I’ve seen her get mad. Yes, I’ve seen her get mad.

Q: At who?

A.: At her husband.

Q: Would you characterize it as anything out of the ordinary?

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 A: No.

Tr. at 710-11. Additional testimony “to the same effect” would not have helped

Mr. Cannon. We therefore reject this argument.

Mr. Cannon also asserts that trial counsel was ineffective for not offering

evidence that bruises on the victim’s wrists were consistent with “[Mr. Cannon’s]

grabbing her wrist while she possessed the knife in her hand.” Aplt. Br. at 16.

This evidence, he argues, would have been consistent with the victim’s being the

aggressor and would have supported his claim of self-defense. The record,

however, reveals no failure by defense counsel in this respect. Trial counsel

vigorously cross-examined the medical examiner in an effort to get him to admit

that many of the victim’s wounds were consistent with Mr. Cannon’s theory of

self-defense. In particular, trial counsel questioned the medical examiner about

whether bruises on the victim’s forearm were consistent with Mr. Cannon’s

grabbing her forearm. During closing argument counsel said, “The external

circumstances that I see are a bruise right here, consistent with grabbing and

stopping Sharonda from attacking with a knife.” Tr. at 915. Counsel appears to

have done exactly what Mr. Cannon claims she did not do.

Additionally, Mr. Cannon argues that trial counsel should have offered

evidence of cuts on Mr. Cannon’s hands, which were consistent with defending

himself against someone with a knife. But the officer who arrested Mr. Cannon

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in Michigan testified that he did not see any injuries on Mr. Cannon’s hands or

anywhere on Mr. Cannon’s body at the time of arrest. In an attempt to impeach

the officer, trial counsel elicited testimony that the lights were dim during the

arrest and that the officer’s attention was focused elsewhere. She also made this

point during closing argument. Mr. Cannon does not indicate what more his trial

counsel could have done.

8. Failure to invoke the rule of sequestration

Mr. Cannon claims that trial counsel was ineffective because she failed to

invoke the rule of sequestration, which prevents witnesses from being in the

courtroom while other witnesses are testifying. This, he argues, “allowed the

prosecution witnesses to sit and listen to each other testify and specifically craft

their own testimony to prejudice [him].” Aplt. Br. at 21. Yet Mr. Cannon fails to

allege which witnesses were present during other witnesses’ testimony, making it

impossible to determine whether there was good cause for the witnesses to be

present (for example, the principal case agent is often permitted to be present at

the counsel table to assist throughout the trial, see 12 Okla. Stat. § 2615

(providing rule of sequestration and listing exceptions); Dyke v. State, 716 P.2d

693, 697-98 (Okla. Cr. App. 1986) (construing statute to include case agent as

exception to rule of sequestration)), or whether any prejudice could have resulted.

There is no support for a claim of ineffective assistance on this ground.

-23-
 9. Presentation of manslaughter defense

Mr. Cannon claims that trial counsel violated his constitutional rights by

arguing a defense of manslaughter in addition to self-defense. Mr. Cannon

asserts that he wished to argue only self-defense at trial but “[t]rial counsel, over

repeated objections by Mr. Cannon[,] presented and argued a manslaughter

defense against Mr. Cannon’s will.” Aplt. Br. at 24. He contends that inclusion

of a manslaughter defense undermined his self-defense claim because the two are

logically inconsistent. We disagree.

In his affidavit of January 27, 1999, Mr. Cannon stated:

4. In closing arguments trial counsel presented and argued a
theory of manslaughter over the objections of the petitioner.
Petitioner did not desire or wish that a theory of manslaughter
be presented on his own behalf. Trial counsel was aware of
Petitioner’s desire and ignored it. Petitioner only desired that
a theory of self-defense be argued on his own behalf. Trial
counsel also included manslaughter in it[s] jury instructions
over the objection of the petitioner. Petitioner was prejudiced
by this act of counsel because the prosecution used it against
the petitioner in closing arguments. This option wouldn’t have
been available if trial counsel hadn’t presented it over
petitioner[’]s objections. There is such a thing as not guilty by
reason of self-defense but there is no such thing as not guilty
by reason of manslaughter.

5. By arguing a theory of manslaughter, trial counsel made an
admission of guilt on petitioner’s behalf. Trial counsel has no due
authority to make any admission of guilt on behalf of the petitioner
without petitioner[’]s consent. . . .

Pro Se Application for Post Conviction Relief, Exh. 1 at 6.

-24-
 Although self-defense is a complete defense to first-degree murder,

justifying an acquittal, whereas manslaughter is only a lesser offense, the two

theories are not contradictory or logically inconsistent. On the contrary, they are

complementary. “It is the general rule that passion resulting from fright or terror

may be sufficient to reduce a homicide from murder to manslaughter and such a

killing may be closely akin to a killing in self-defense.” See Wood v. State, 486

P.2d 750, 752 (Okla. Crim. App. 1971). A homicide may be found to be

manslaughter when the killing was motivated by the defendant’s belief that he

was in great danger, “even if he was not warranted in such belief or where the

slayer although acting in self-defense was not himself free from blame.” Id.

Thus, some courts and commentators refer to manslaughter as an “imperfect” self-

defense—that is, although the defendant cannot satisfy all the elements of self-

defense, he is less culpable because he can satisfy some of the elements. See 2

Wayne R. LaFave, Subst. Crim. L. § 10.4(i) (2d ed. 2003).

Trial counsel, by arguing both theories, essentially asked the jury to find

self-defense, but if the jury could not do so, to find manslaughter. The argument

did not concede Mr. Cannon’s guilt in any fashion. Whether to argue a lesser-

included offense is a matter to be decided by counsel after consultation with the

defendant. See ABA Standards for Criminal Justice 4-5.2 Cmt. at 202 (3d ed.

1993) (omitting statement appearing in 1980 second edition that client decides

-25-
whether to seek submission to jury of lesser-included-offense instruction). We

reject this claim of ineffective assistance.

10. Right to proceed pro se

Mr. Cannon claims that trial counsel denied him the right to proceed pro se

on direct appeal. A defendant has a constitutional right to represent himself, even

if doing so would be detrimental to his defense. See Faretta v. California, 422

U.S. 806, 834 (1975). Mr. Cannon asserts that trial counsel was aware of his

desire to proceed pro se on appeal but failed to inform the judge. The record

reveals, however, that any failure by trial counsel in this regard did not cause him

any prejudice. He had the opportunity to inform both the judge and appellate

counsel of his desire to represent himself on appeal.

The following exchange occurred at sentencing on March 26, 1996:

The Court: Are you ready for sentencing, Mr. Cannon?

Mr. Cannon: Yes.

The Court: Do you have anything to say before sentencing?

Mr Cannon: No.

The Court: Mrs. Conway, do you have anything to say before
sentencing?

Mrs. Conway: No, sir.

The Court: All right. It will be the judgment of the Court that the
defendant be sentenced to die by administration of
intravenous injection and I will set the time for

-26-
 sentencing, which is merely a formality, on the 23rd day
of May, 1996, at midnight.

The public defender’s office is hereby appointed to
represent the defendant for purposes of appeal.

Mr. Cannon, do you have any funds with which to hire
your own attorney?

Mr. Cannon: Not at the moment.

The Court: Well, do you have any relatives or anyone that plans on
hiring your own attorney?

Mr. Cannon: I haven’t got to talk to them yet.

The Court: You haven’t got to talk to them yet. Well in the
meantime, I will appoint the Public Defender’s Office
here in Tulsa to represent you. If you get money or if
your family can get the money and can hire another
attorney, so be it, but up until that time the Public
Defender’s Office is responsible for representing you for
purposes of appeal. Mr. Cannon, what is your birth
date?

Tr. at 1240-41. Mr. Cannon fails to explain why he could not have informed the

judge of his desire to proceed pro se during the exchange regarding who would

represent him on appeal. Moreover, Mr. Cannon has not alleged that he informed

appellate counsel of his desire to proceed pro se, yet almost two years elapsed

between the date he was sentenced and the date his appeal was argued before the

OCCA.

Mr. Cannon also contends that he filed timely applications to proceed pro

se on direct appeal but he was denied the right to do so because the court clerk

-27-
mishandled his applications. The record belies this assertion. Whether the clerk

mishandled his applications was of no consequence. Mr. Cannon’s letters to the

OCCA clerk were dated March 5, 1998, and March 11, 1998—approximately one

month after his direct appeal had been heard at oral argument on February 10,

1998. Thus, his applications to proceed pro se on direct appeal were too late for

any action by the OCCA.

Although Mr. Cannon asserts that he had previously sent a letter requesting

to proceed pro se, he offers no specifics about that letter, such as when he sent it.

Furthermore, other than an affidavit attached to his reply brief to this court, the

record contains no reference to such a letter. Therefore, we can properly ignore

this assertion.

B. Claims with Possible Merit

We now turn to two claims that may be meritorious. Mr. Cannon claims

that trial counsel was ineffective for failing to notify the court of improper

contact between prosecution witnesses and jurors during trial recesses, and for

usurping his decision whether to testify in his own defense. The OCCA has never

addressed the merits of either claim. Mr. Cannon did not raise the claims on

direct appeal to the OCCA; and when he raised them in post-conviction

proceedings, the OCCA held them to be procedurally barred because they had not

been raised on direct appeal. As we proceed to explain, however, (1) each claim

-28-
has merit if Mr. Cannon’s factual allegations turn out to be supported by

persuasive evidence; (2) whether the claims are procedurally barred depends on

findings that the district court must make on remand; and (3) if there is no

procedural bar, Mr. Cannon is entitled to a hearing at which he can further

develop evidence supporting his failure-to-testify claim and may be entitled to

such a hearing on his improper-contact claim. We begin by discussing the merits

of each claim, then procedural bar, and finally the propriety of an evidentiary

hearing with respect to each claim.

1. Merits of the claims

a. Improper juror contact

Mr. Cannon alleges that counsel was ineffective for failure to inform the

court of improper contact between prosecution witnesses and jurors during trial

recesses. His affidavit of January 27, 1999, submitted to the OCCA as part of his

post-conviction collateral attack, states:

1. Trial counsel failed to take action or request a hearing
concerning improper outside influences on the jury.
Petitioner became aware that Larry Salzman, father of
State witness Pam Salzman and himself an endorsed
State witness, had improper contact with trial jurors
during the trial. Petitioner believes in good faith that
the following persons have actual knowledge that such
contact did occur, that trial counsel was made aware of
this improper contact, and failed to take proper steps to
alert the court or remedy prejudicial influences upon the
jury at trial.

-29-
 2 Hamon Sallis, Lee Sallis, Betty Cannon, Tamoura
Cannon, and Wade Johnson all witnessed improper
contact between Larry Salzman and one or more of the
trial jurors. These witnesses were also present when
trial counsel was advised of the contact between
Mr. Salzman and the trial jurors and would further
corroborate Petitioner’s testimony that trial counsel was
aware of the improper contacts and did nothing. An
evidentiary hearing is the only means necessary to
discover the actual content of communications between
Mr. Salzman and the jury and determine the extent of
prejudice to petitioner.

3. These same witnesses also saw State witness Awanna
Simpkins communicate verbally with jurors during a
recess, at which time Ms. Simpkins made a statement
that Petitioner had raped her. These witnesses would
also testify that trial counsel was aware of this improper
contact between the witness and the trial jurors but
failed to make a record of the incident before the court
or take other measures to determine the impact of the
communication on members of the jury. An evidentiary
hearing is necessary to present this evidence and
summon witnesses to testify concerning the prejudicial
impact of these errors.

Pro Se Application for Post Conviction Relief, Exh. 1 at 4. Mr. Salzman was

listed by the prosecution as a potential witness, although he did not testify.

Ms. Simpkins testified during the trial’s sentencing phase. In a pleading entitled

“Request for Appointment of an Investigator” filed simultaneously with and

referenced by his § 2254 application, Plaintiff supplemented the affidavit by

stating that Ms. Simpkins’ rape accusation occurred during the guilt phase of the

-30-
trial. See Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc)

(evidentiary hearing justified in part by allegations in habeas application).

If the allegations in Mr. Cannon’s affidavit are true, he was likely rendered

ineffective assistance of counsel, because of the probability that proof of such

juror contact would have entitled him to relief from the trial court. If trial

counsel was in fact informed about improper juror communications and did

nothing, such inaction would appear to satisfy Strickland’s first prong. As for

Strickland’s prejudice prong, in Remmer v. United States, 347 U.S. 227, 229

(1954), the Supreme Court held:

In a criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a trial about the
matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of the court made
during the trial, with full knowledge of the parties. The presumption
is not conclusive, but the burden rests heavily upon the Government
to establish, after notice to and hearing of the defendant, that such
contact with the juror was harmless to the defendant.

See United States v. Scull, 321 F.3d 1270, 1280 n.5 (10th Cir. 2003). Although

this court has declined to apply Remmer in a § 2254 proceeding to determine

whether jury contact was prejudicial, see Crease v. McKune, 189 F.3d 1188, 1193

(10th Cir. 1999), that is not the issue before us. The question here is not whether

we would find that the contact was prejudicial but whether the state court would

have found prejudice had trial counsel raised the issue. If the state court had

-31-
applied Remmer to the facts alleged by Mr. Cannon, it very likely would have

found prejudice. Unfortunately, there is no definitive Oklahoma decision

adopting or rejecting Remmer. The only reference in reported Oklahoma cases to

the Supreme Court decision is a case distinguishing, but not criticizing, Remmer.

See Silver v. State, 737 P.2d 1221, 1224 (Okla. Crim. App. 1987). In this

circumstance we believe the proper course is to assume that the Oklahoma court

would have found Supreme Court authority to be persuasive, or, in any event,

would have presumed prejudice here from an inflammatory allegation of rape and

the other alleged improper communications.

Accordingly, if Mr. Cannon’s assertions are true, he was likely prejudiced

by his counsel’s inaction. Whether Mr. Cannon has a meritorious claim will

depend, however, on whether he is entitled to an evidentiary hearing on this claim

and whether such a hearing elicits persuasive evidence supporting his assertions.

b. Right to testify

Mr. Cannon alleges that trial counsel would not allow him to take the stand

in his own defense, despite his unequivocal expression of the desire to do so. The

district court construed Mr. Cannon’s allegations that he was denied the right to

testify as an ineffective-assistance claim. Other courts also treat such claims as

ineffective-assistance claims. See, e.g., United States v. Teague, 953 F.2d 1525,

1534 (11th Cir. 1992) (en banc) (“the appropriate vehicle for claims that the

-32-
defendant’s right to testify was violated by defense counsel is a claim of

ineffective assistance of counsel”). We agree that Mr. Cannon’s claim is best

treated as an ineffective-assistance-of-counsel claim and analyze it as such.

Mr. Cannon’s affidavit to the OCCA states in relevant part:

1. In more than one pre-trial conference petitioner
informed trial counsel that the petitioner wished to
testify on petitioner’s own behalf. Trial counsel was
against this decision. Through the course of several pre-
trial discussions concerning this issue petitioner would
never relent or change his position and desire to testify
on his own behalf. Trial counsel also refused to relent
or change the position of being against petitioner’s
desire to testify on his own behalf. At the beginning of
trial petitioner reiterated to trial counsel his desire to
testify on his own behalf.

2. Upon petitioner[’]s request to trial counsel to testify on
his own behalf, trial counsel became enraged and
abandoned [her] previous finesse technique and went to
an aggressive bulldog approach and responded to
petitioner, “Judge Hopper assigned me to represent this
case and I am the captain of the ship and I make all
decisions concerning this case and I say you’re not going
to testify, besides our witness list is already in and you
are not on it so you couldn’t testify anyway.” Petitioner
still maintained his wish to testify.

3. When the State rested it[ ]s case and the Judge called for
the defense to present it[ ]s side, Petitioner started to fix
his jacket to get ready to take the witness stand to testify
on his own behalf. Trial counsel was well aware of the
petitioner[’]s wish to testify. In order to purposely
sabotage and subvert petitioner’s right to testify on his
own behalf when the Judge called for the defense, trial
counsel quickly sprang out of the chair and said that the
defense rests in order to cut the petitioner off[,] full well

-33-
 knowing the petitioner couldn’t afford an[] incident in
front of the jury. Petitioner’s grandparents, Hamon
Sallis, Lee Sallis; sister Tamoura Cannon, Mother Betty
Scott (note: State Witness) and friend Wade Johnson all
had prior knowledge of Petitioner’s wish to testify on
his own behalf and would testify to such knowledge if
called to do so by the court.

Pro Se Application for Post Conviction Relief, Exh. 1 at 5-6.

A criminal defendant has a constitutional right to testify in his own behalf

at trial. Rock v. Arkansas, 483 U.S. 44, 49-52 (1987). The decision whether to

testify lies squarely with the defendant; it is not counsel’s decision. Jones v.

Barnes, 463 U.S. 745, 751 (1983). Defense counsel should inform the defendant

that he has the right to testify and that the decision whether to testify belongs

solely to him. See Teague, 953 F.2d at 1533-34. Counsel should also discuss

with the defendant the strategic implications of choosing whether to testify, and

should make a recommendation to the defendant. See id. Yet counsel lacks

authority to prevent a defendant from testifying in his own defense, even when

doing so is suicidal trial strategy. See United States v. Janoe, 720 F.2d 1156,

1161 & n.10 (10th Cir. 1983).

If Mr. Cannon’s affidavit is true, then counsel deprived him of the

constitutional right to testify in his own defense. Such a dereliction of duty by

counsel would satisfy the first prong of Strickland.

-34-
 As discussed above, Strickland’s second prong—prejudice—is established

if there is a reasonable probability that defendant’s testimony would have raised

in a juror’s mind a reasonable doubt concerning his guilt. Strickland, 466 U.S. at

694-95. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. We recognize that the jury had already

heard a recording of Mr. Cannon’s account of Sharonda Clark’s death in his

telephone conversation with Detective Fultz. In light of the physical evidence

and other testimony, the jury rejected Mr. Cannon’s account. We can be skeptical

that the jury’s view would have been changed by hearing Mr. Cannon’s live

testimony, particularly in light of what could have been elicited on cross-

examination.

Nevertheless, the recorded account was hardly seamless. The recording

contains long periods of silence (perhaps from editing the tape) and the 22-page

transcript contains 64 “inaudibles.” Such interruptions in the narrative could

impact its persuasiveness. We are also cognizant of the power of a face-to-face

appeal. Most importantly, however, Mr. Cannon’s testimony would be of

particular relevance to the claim presented by his trial attorney that his acts

constituted only manslaughter. Even when the objective evidence appears to

preclude a self-defense claim, the jury might still harbor a reasonable doubt

whether Mr. Cannon actually believed that he was in danger, see Wood v. State,

-35-
486 P.2d 750, 752 (Okla. Crim. App. 1971) (homicide may be found to be

manslaughter where killing was motivated by defendant’s “belie[f] that he was in

great danger, even if he was not warranted in such belief or where the slayer

although acting in self-defense was not himself free from blame”), or was aroused

by passion, see Cipriano v. State, 32 P.3d 869, 874 (Okla. Crim. App. 2001)

(listing elements of heat-of-passion manslaughter). Mr. Cannon’s testimony, and

his demeanor while testifying, could have special significance to the jury on this

matter.

We conclude that the issue of prejudice is of sufficient doubt that it should

not be resolved in the first instance by this court. On remand, resolution of the

merits of the claim (which, of course, would not be necessary if the claim is

procedurally barred) will require the district court to resolve factual disputes

regarding whether Mr. Cannon’s attorney actually prevented him from testifying

and, if so, whether Mr. Cannon suffered the requisite prejudice. (Although the

question is very close, we do not treat footnote 10 in the district court’s opinion

as dispositive on this point. The footnote recites the harm to Mr. Cannon that

would have resulted from his testifying. The footnote does not, however, address

whether his testimony would have been helpful on the manslaughter issue; nor

does it state that absence of prejudice from not testifying is an alternative ground

for the court’s ruling. We note that the state’s appellate brief makes no reference

-36-
to the footnote. In the circumstances, we think it prudent that our remand for

further consideration include this issue as well as the jury-contact issue.)

2. Procedural bar

“On habeas review, this court does not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998).

A procedural ground is “independent” if it is based on state, rather than federal,

law. See id. at 1259 & n.2. That is indisputably the case here, where the OCCA

refused to hear Mr. Cannon’s ineffective-assistance claims because they had not

been raised on direct appeal, as required by Oklahoma law.

For a state rule of procedural default to be “adequate,” several conditions

must be satisfied. To begin with, it “must be applied evenhandedly in the vast

majority of cases.” Id. at 1259. That is not an issue on appeal. In addition,

however, a rule is not “adequate” to bar a claim of ineffective assistance of trial

counsel:

unless the state procedures comply with the imperatives set forth in
Kimmelman [v. Morrison, 477 U.S. 365 (1986)]: (1) allowing
petitioner an opportunity to consult with separate counsel on appeal
in order to obtain an objective assessment of trial counsel's
performance and (2) providing a procedural mechanism [on direct
appeal] whereby a petitioner can adequately develop the factual basis
of his claims of ineffectiveness.

-37-
English, 146 F.3d at 1263. We now address this two-part test, beginning with the

requirement that “separate” counsel be available on appeal.

a. “Separate” counsel

As previously set forth, Mr. Cannon was represented at trial by two

attorneys from the Tulsa Public Defender’s office. He was represented on direct

appeal by another attorney from the same office. Mr. Cannon argues that two

attorneys who work in the same Public Defender’s office cannot be considered

“separate” counsel within the meaning of English. He further alleges that his

appellate counsel had a policy of not arguing ineffective assistance of trial

counsel in cases tried by the Public Defender’s office.

Mr. Cannon’s allegations raise serious concerns under English. The

requirement that trial and appellate counsel differ derives from two

considerations. First, a defendant, on his own as a layman, will “ordinarily be

unable to recognize counsel’s errors and to evaluate counsel’s professional

performance.” Kimmelman, 477 U.S. at 378. Second, a lawyer who renders

ineffective assistance at trial will likely be hesitant to raise his own trial

inadequacies on appeal, or even inform the client of any inadequacies.

That second consideration may still have force when distinct lawyers

handle the trial and appeal but the two are professionally aligned. If a criminal

defendant is represented by trial and appellate counsel from the same office,

-38-
appellate counsel’s assessment of trial counsel’s performance may be less than

completely objective. An understandable, although inappropriate, regard for

collegiality may restrain appellate counsel from identifying and arguing trial-

attorney error. We note that two lawyers from the same private law firm are often

treated as one for conflict-of-interest purposes. See Restatement (Third) of the

Law Governing Lawyers § 123 & cmt. d (iv) (2000) (“Restatement”) (discussing

imputation of conflicts among affiliated lawyers and noting that the “rules on

imputed conflicts and screening . . . apply to a public-defender organization as

they do to a law firm in private practice in a similar situation”); Martinez v.

Sullivan, 881 F.2d 921, 930 (10th Cir. 1989) (assuming that two law partners

should be considered as one attorney for conflict-of-interest purposes). When an

appellate attorney argues ineffective assistance of trial counsel, he is arguing that

the trial attorney—who may have an office down the hall—“was not a reasonably

competent attorney,” Strickland, 466 U.S. at 687 (internal quotation marks

omitted), and that trial counsel’s representation was so bad that it was not within

“the range of competence demanded of attorneys in criminal cases.” Id. (internal

quotation marks omitted). Arguing ineffective assistance with respect to a

colleague’s performance is saying that the performance was not only inferior, but

unreasonable. These are indeed bold statements to make about a co-worker.

Presenting an ineffective-assistance-of-counsel claim may well damage the

-39-
reputation of the trial attorney and the office for which both trial and appellate

counsel work.

In our view, whether trial and appellate attorneys from the same “office”

should be deemed “separate” counsel will turn on the specific circumstances. A

statewide public defender’s office with independent local offices, and perhaps

even a distinct appellate office, would not raise the same concerns as when trial

and appellate counsel work in adjacent rooms. Cf. Restatement § 123 & cmt. e

(for conflict-of-interest purposes, lawyers who share office space may be

considered conflicted). The culture of an office can also make a substantial

difference. A history of raising ineffective-assistance claims could allay

concerns.

Of particular importance here is the allegation that appellate counsel had a

policy of not claiming ineffective assistance by public defenders at trial.

Although Mr. Cannon has presented no sworn affidavit asserting the policy, the

record is strongly suggestive. On direct appeal from Mr. Cannon’s conviction,

appellate counsel raised 24 issues—including six claims of plain error. See

Cannon v. State, 961 P.2d at 846, 848, 849, 850, 854. Under Oklahoma law, plain

errors are “errors which counsel failed to preserve through trial objection but

which, upon appellate review, are clear from the record and affect substantial

rights.” Valdez v. State, 900 P.2d 363, 369 n.6 (Okla. Crim. App. 1995). Yet

-40-
appellate counsel failed to assert that trial counsel had been ineffective in not

objecting to any of these allegedly plain errors.

Especially in light of what is at stake in a death-penalty case, and given

appellate counsel’s willingness to raise so many (24) other alleged errors, we find

it striking that appellate counsel never argued that trial counsel had been

ineffective for not objecting to a “clear” error that “affect[ed] substantial rights.”

Id. Often, even ordinarily, one would expect a claim of ineffective assistance to

accompany a claim of plain error. See State v. Rhodes, 657 N.W.2d 823, 839 n.7

(Minn. 2003) (noting similarities between plain error and ineffective assistance

and analyzing alleged errors under ineffective-assistance framework); State v.

Hansen, 61 P.3d 1062, 1067 n.2 (Utah 2002) (“When a party fails to preserve an

issue for appeal, we will nevertheless review the issue if the appealing party can

demonstrate plain error or exceptional circumstances. The party may also assert

ineffective assistance of counsel in failing to preserve the issue.” (internal

citations omitted)); State v. Crislip, 785 P.2d 262, 269 (N.M. App. 1989) (Hartz,

J., concurring) (“Perhaps as a practical matter every reversal predicated on plain

error is a consequence of ineffective assistance of counsel.”); Morton Gitelman,

The Plain Error Rule in Arkansas—Plainly Time for a Change, 53 Ark. L. Rev.

205, 217 n.66 (2000) (“abrogating the [plain error] doctrine in the criminal area

may be even more compelling [than in civil cases] since any error that deprives a

-41-
defendant of due process can more properly be remedied by a claim of ineffective

assistance of counsel”); 25 Ohio Jur. 3d Crim. Law § 59 (2003) (“The standard of

prejudice required to be satisfied to establish ineffective assistance of trial

counsel for failure to object at trial is far more solicitous of a defendant's rights

than the plain error standard applicable to conduct not complained of, and it is

possible to raise an ineffective assistance claim when the plain error standard

precludes a direct challenge to such conduct.”); Wayne R. LaFave, Jerold H.

Israel, & Nancy J. King, Criminal Procedure §11.10(d) & n.143 (2d ed. 1999 &

Supp. 2004) (“courts have noted that the prejudice element of Strickland may be

more readily satisfied than the . . . [comparable] component of the plain error

standard”; citing cases).

On the record before us, we would have to conclude that Mr. Cannon’s trial

and appellate counsel were not “separate” within the meaning of the word in

English. On remand, however, the district court may grant the State an

evidentiary hearing that could establish otherwise.

b. Claim resolved on trial record

Besides requiring “separate” counsel for trial and appeal, English also

states that Oklahoma’s procedural bar to ineffective-assistance claims is adequate

only if either (1) the claim could have been resolved based on the trial record

alone, or (2) there existed at the time of direct appeal an adequate procedure to

-42-
remand specific claims to the district court for supplementation of the record.

English, 146 F.3d at 1263-64. The district court ruled that English was satisfied

with respect to Mr. Cannon’s ineffective-counsel claims. Specifically with

respect to the claim that Mr. Cannon was denied the right to testify, the court said

that the claim “can be resolved upon the trial record alone. The trial record

reveals that Petitioner did not testify on his own behalf[.] . . . [The] issue[] could

have been raised on direct appeal without additional fact-finding[.]” R. doc. 81 at

22 (citation omitted). We have a different view.

An out-of-courtroom communication to a juror would ordinarily not be

reflected in the trial record. Nor would any discussion between Mr. Cannon and

his attorney about testifying. The record reflects only that Mr. Cannon did not

testify. It states nothing about who made the decision that he would not testify.

Additionally, the state trial judge did not ask Mr. Cannon whether he wished to

testify. Certainly, Mr. Cannon knew at the time of direct appeal that he had these

claims. But the OCCA could not have resolved the issues based on the trial

record alone.

Accordingly, Mr. Cannon’s claims could not be procedurally barred unless

Oklahoma had in place at the time of his appeal a procedure allowing

supplementation of the record. See, e.g., English, 146 F.3d at 1264-65. To rely

on procedural bar, the State must establish on remand that Oklahoma law at the

-43-
time of Mr. Cannon’s direct appeal would have allowed him to supplement the

trial record with evidence to support his claims that counsel improperly failed to

inform the court of outside juror influence and that he was denied the right to

testify.

Of course, even if the district court determines on remand that

Mr. Cannon’s claims are not procedurally barred, he is not necessarily entitled to

relief. A finding of no procedural bar means only that his claims are properly

before the court. He must still prove that the claims are meritorious. We now

consider whether Mr. Cannon is entitled to an evidentiary hearing to establish the

truth of his allegations.

3. Evidentiary hearing

The enactment of AEDPA in 1996 restricted the authority of federal courts

to grant evidentiary hearings in habeas cases. Under the pre-AEDPA standard, a

habeas petitioner was entitled to an evidentiary hearing in federal court if (1) “the

facts were not adequately developed in the state court, so long as that failure

[was] not attributable to the petitioner,” Medina v. Barnes, 71 F.3d 363, 369-70

(10th Cir. 1995), and (2) “his allegations, if true and not contravened by the

existing factual record, would entitle him to habeas relief.” Bryan v. Mullin, 335

F.3d 1207, 1214 (10th Cir. 2003) (en banc) (internal quotation marks omitted).

AEDPA changed the standard. It provides:

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 If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that--

(A) the claim relies on–

(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2254(e)(2).

“Under the opening clause of § 2254(e)(2), a failure to develop the factual

basis of a claim is not established unless there is a lack of diligence, or some

greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.

Taylor, 529 U.S. 420, 432 (2000). If the prisoner did not “fail[] to develop the

factual basis of [his] claim in State court, § 2254(e)(2) is not applicable and a

federal habeas court should proceed to analyze whether a[n evidentiary] hearing is

appropriate or required under pre-AEDPA standards.” Bryan, 335 F.3d at 1214

(internal citations and quotation marks omitted).

We agree with the district court that Mr. Cannon has not satisfied the

AEDPA requirements set forth in § 2254(e)(2)(A) or (B). To determine whether

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pre-AEDPA standards apply, we must review whether Mr. Cannon was diligent in

trying to develop the factual record in state court.

The Supreme Court stated in Williams that “[d]iligence . . . depends upon

whether the prisoner made a reasonable attempt, in light of the information at the

time, to investigate and pursue claims in state court.” 529 U.S. at 435. In prior

cases in which the issue was raised, we have said that requesting an evidentiary

hearing was sufficient to constitute diligence. See, e.g., Boyd v. Ward, 179 F.3d

904, 925 & n.10 (10th Cir. 1999); Miller v. Champion, 161 F.3d 1249, 1253 (10th

Cir. 1998). But we have never stated a categorical rule that requesting an

evidentiary hearing in state court ipso facto satisfies the diligence requirement.

Indeed, the Supreme Court said in Williams, “Diligence will require in the usual

case that the prisoner, at a minimum, seek an evidentiary hearing in state court in

the manner prescribed by state law.” 529 U.S. at 437 (emphasis added). AEDPA

speaks of failure “to develop the factual basis of a claim.” An evidentiary hearing

is not the only means to accomplish that task. We have not had occasion in our

prior opinions to address whether an applicant has demonstrated a lack of

diligence in pursuing a claim by failing to utilize a means other than a hearing to

develop the facts.

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 But a sister circuit has. In Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.

2000), the Fifth Circuit held that sometimes diligence requires obtaining pertinent

affidavits. The court wrote:

Dowthitt argues that he exercised due diligence because he
requested evidentiary hearings in state habeas proceedings, and those
requests were denied. Thus, he asserts that his failure to develop his
habeas claims are excused under § 2254(e)(2). We do not agree.
Mere requests for evidentiary hearings will not suffice; the petitioner
must be diligent in pursuing the factual development of his claim.
As the state habeas court found, Dowthitt did not present affidavits
from family members and did not show that they "could not be
obtained absent an order for discovery or a hearing. " In response,
Dowthitt now argues that his "proffers" of what would be presented
at a hearing constituted due diligence. We do not find his argument
persuasive. Given that the family members were willing to testify at
a hearing, Dowthitt could have easily obtained their affidavits. A
reasonable person in Dowthitt's place would have at least done as
much. Dowthitt's arguments that lack of funding prevented the
development of his claims are also without merit. Obtaining
affidavits from family members is not cost prohibitive. Thus,
Dowthitt has not rebutted the state habeas finding in this regard.

Id.

We share the Fifth Circuit’s view. The federal district court should not be

required to conduct an evidentiary hearing on a claim when the applicant for

relief has not presented evidence that would be readily available if the claim were

true. We now proceed to address whether Mr. Cannon established the necessary

diligence.

a. Juror contact

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 The allegations regarding improper juror contact contained in Mr. Cannon’s

affidavit are all hearsay. The affidavit references no first-hand knowledge of any

improper contact between witnesses and jurors. It states that family members and

friends of Mr. Cannon have actual knowledge of the underlying events, and that

they would testify to that knowledge at an evidentiary hearing. Yet Mr. Cannon

has not included affidavits by any of these family members or friends. A diligent

person would have done as much, absent an impediment preventing him from

doing so.

Whether or not there was an impediment, however, was not litigated below.

The district court did not make an explicit finding of fact regarding Mr. Cannon’s

diligence. We therefore remand to the district court the question whether Mr.

Cannon was diligent in trying to develop the facts underlying his juror-contact

claim. The court may take further evidence and may, in its discretion, conduct a

hearing on the matter. If the district court determines that Mr. Cannon was

diligent, he should be granted an evidentiary hearing on the merits of his juror-

contact claim (if it is not procedurally barred).

b. Right to testify

Mr. Cannon’s affidavit, in which he alleges trial counsel usurped his

decision whether to testify, provides a first-hand account of events based on his

own personal knowledge. The only people who know the truth of Mr. Cannon’s

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allegations are Mr. Cannon and his trial counsel. Mr. Cannon requested an

evidentiary hearing on this issue in state court. We cannot see what more he

could have done to pursue development of the record. Hence, he satisfies the

diligence requirement. Under pre-AEDPA law he is entitled to an evidentiary

hearing regarding the merits of the issue.

In sum, we reverse and remand with respect to Mr. Cannon’s claims that he

was denied effective assistance of counsel when counsel (1) failed to notify the

court of improper juror contact and (2) prevented him from testifying at trial.

Whether Mr. Cannon will ultimately prevail on either claim will depend on such

matters as whether his claims are procedurally barred, whether his evidence in

support of the claims is persuasive, and whether he is entitled to an evidentiary

hearing to develop further evidence. We leave to the discretion of the district

court the most efficient method of proceeding.

C. Alleged Ineffectiveness of Appellate Counsel

Finally, Mr. Cannon asserts that his appellate counsel was ineffective for

failing to pursue on appeal the claims he now raises regarding ineffectiveness of

trial counsel. Of course, appellate counsel is hardly ineffective for failure to

pursue meritless claims, see Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir.

1999); so we need address only the failure to pursue the two ineffective-trial-

counsel claims that we have already said may have merit.

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 With respect to those two trial-counsel claims, however, we are remanding

to the district court for further proceedings that may moot the ineffective-

appellate-counsel claims if the district court resolves the trial-counsel claims on

the merits (either denying relief because they do not have merit or granting relief

because they do). Therefore, we remand the corresponding two ineffective-

appellate-counsel claims for further consideration by the district court.

IV. CONCLUSION

We AFFIRM the district court’s judgment in all respects except that we

REMAND to that court the issues whether Mr. Cannon is entitled to relief (1)

because his trial attorney (a) failed to inform the court of improper juror contact

or (b) denied him the right to testify in his own defense, or (2) because his

counsel on direct appeal failed to pursue these two claims of ineffectiveness of

trial counsel. The issues before the district court will be procedural bar,

Mr. Cannon’s diligence in pursuing the factual development of his juror-contact

claim in state court, the merits of Mr. Cannon’s contentions, and whether any

violation of Mr. Cannon’s constitutional rights was harmless. Resolution of some

issues may moot others, so we leave to the district court’s discretion the manner

in which to proceed.

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No. 03-5008, Jemaine Monteil Cannon v. Mike Mullin

KELLY, Circuit Judge, concurring in part and dissenting in part.

I concur in the court’s opinion, with three exceptions. We recently noted

that:

District courts are entitled to some latitude with regard to evidentiary
hearings, and the standard is higher than notice pleading. District
courts are not required to hold evidentiary hearings in collateral
attacks without a firm idea of what the testimony will encompass and
how it will support a movant’s claim.

United States v. Cervini , – F.3d–, –, No. 03-6144, 2004 WL 1790026, at *5 (10th

Cir. Aug. 11, 2004). Remanding this case is completely inconsistent with these

principles–the court remands for an evidentiary hearing on claims that were not

presented to the federal district court, or not presented and supported adequately.

I. Failure to Testify

I would reject (on the merits) the ineffectiveness claim based upon Mr.

Cannon’s failure to testify. As the district court held, Mr. Cannon cannot show

prejudice. Mr. Cannon’s theory of self defense was presented to the jury based

upon his own account (the recording) and a hearsay account by his mother. Tr.

669-81. As noted by the district court,

Although the Court finds this issue is procedurally barred, a review
of the record reveals that Petitioner would not have benefitted,
indeed would have been seriously harmed, by testifying on his own
behalf. Had he testified, the prosecution could have emphasized the
deficiencies in Petitioner’s “self defense” story. Cross examination
would most likely have exposed the facts that Petitioner was a prison
 escapee at the time of the murder, that he was previously convicted
of a violent crime against a former girlfriend, that he suffered only
minor injuries, if any, during the incident in question while the
victim suffered multiple, fatal stab wounds, and that his victim was
only 5’5” tall, 125 pounds while Petitioner is over 6’ tall.

R. Doc. 81 at 21 n.10. Mr. Cannon never explained how his testimony would

have differed from the account presented to the jury and how it would have

countered the items mentioned by the district court. Mr. Cannon does not argue

that his testimony was necessary for a manslaughter defense–to the contrary, Mr.

Cannon argues that trial counsel was ineffective for presenting a manslaughter

defense against Mr. Cannon’s will. See Ct. Op. at 24-26.

This court remands the prejudice inquiry because (1) the quality of the tape

and transcript may have affected its persuasiveness, (2) the court is cognizant of

the power of a face-to-face appeal, (3) Mr. Cannon’s testimony would be

pertinent to the manslaughter defense that Mr. Cannon does not want, and (4) the

district court’s discussion concerning the likely harm of Mr. Cannon testifying

(a) does not address the manslaughter defense, (b) does not explicitly state that

the absence of prejudice from not testifying is an alternative ground for its

holding, and (c) is not referenced by the state’s appellate brief. None of these

reasons are persuasive.

First, the court simply has given us no facts that were likely to be adduced

by Mr. Cannon’s testimony that were not already before the jury given the

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recording and the hearsay testimony of his mother. The court’s statement that the

recording and transcript may not have been persuasive because of the technical

quality of the recording is pure speculation. It is far more likely that the jury

rejected Mr. Cannon’s defenses given the victim’s severe injuries and the lack of

any serious injury to Mr. Cannon. It is not enough to note the power of a face-to-

face appeal without placing that appeal in the context of the troubling facts and

searching cross-examination that would followed Mr. Cannon’s direct testimony.

The prejudice inquiry must be made based upon the whole record, and what has

been presented simply does not establish a reasonable probability that the

outcome in this case would have been different.

Relying upon the possible benefit of Mr. Cannon’s testimony to a

manslaughter defense, as the court does, is completely improper. Mr. Cannon has

taken the position in these proceedings that he does not want a manslaughter

defense. The fact that we hold that counsel was not ineffective for presenting

such a defense cannot undo Mr. Cannon’s insistence, which would surely be

urged at any retrial in which he might testify. See Pro Se Aplt. Br. at 22 (“Mr.

Cannon would like the court to note that Mr. Cannon firmly asserts a claim of

self defense.”), 25 (“There can be a finding of not guilty by reason of self-

defense but there is absolutely no such thing as not guilty by reason of

manslaughter.”).

-3-
 The district court was hardly required to address whether Mr. Cannon’s

testimony would have been helpful on the manslaughter defense given Mr.

Cannon’s disavowal of that defense and his understandable failure to rely on it

(both at the district court and this court) in presenting this claim. The only

reasonable reading of the district court’s conclusion that Mr. Cannon would not

have benefitted and indeed would have been harmed by his own testimony is that

Mr. Cannon was not prejudiced. That the district court did not identify its

discussion as an alternative holding is hardly surprising because it is so

obvious–after reciting that the claim was procedurally barred, the district court

then explained that it had reviewed the record and what its conclusions were–this

is a merits-based holding in the alternative. The fact that the state’s appellate

brief does not rely on the district court’s alternative holding is of no moment–the

state argues that Mr. Cannon’s arguments on appeal are new and that these claims

are procedurally barred. Regardless, we are bound to review the district court’s

opinion supporting the judgment, regardless of whether the parties rely upon it.

II. Improper Juror Contact

Insofar as the ineffectiveness claim based upon improper juror contact, I

would reject it as procedurally barred. The claim either was not fairly presented

in its entirety to the OCCA or not developed adequately before the OCCA or the

federal district court. The district court summarily rejected this claim based upon

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Mr. Cannon’s failure to provide supporting facts, argument and authority. Doc.

81 at 19.

Mr. Cannon’s affidavit to the OCCA alleges “improper contact” between

Larry Salzman, who did not testify, and one or more “trial jurors” and that

sentencing phase witness Awanna Simpkins told the jurors at a recess that Mr.

Cannon had raped her. The “improper contact” ground is nothing but a

conclusion devoid of specifics about who, where, when and what. As to the

second ground, Ms. Simpkins did indeed testify “He [Mr. Cannon] raped me,” in

the sentencing phase. Only in his federal petition did Mr. Cannon claim that the

Simpkins “he raped me” comment came in the guilt phase. Thus, Mr. Cannon did

not fairly present this claim (with its focus on the guilt phase) to the state court; it

is unexhausted and procedurally defaulted. See Picard v. Connor , 404 U.S. 270,

276 (1971) (“[W]e have required a state prisoner to present the state courts with

the same claim he urges upon the federal courts.”). Mr. Cannon has not shown

cause and prejudice or a fundamental miscarriage of justice that would excuse

this default. See Murray v. Carrier , 477 U.S. 478, 485, 495 (1986).

Moreover, having named five witnesses to the improper contacts, I agree

with this court that Mr. Cannon should have provided affidavits to the OCCA on

post-conviction. Certainly by the time he filed his federal petition, they should

have been provided if he expected an evidentiary hearing. Federal courts are not

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required to hold hearings (even if a petitioner was diligent) without some idea of

why the petitioner would be entitled to relief. Cervini , – F.3d at –, 2004 WL

1790026 at *5. This means a description of the facts (even if contested) that

would entitle the petitioner to relief. Where the record has not been developed,

the burden is on the petitioner to demonstrate that he (1) was not at fault for

failing to develop the state court record or (2) meets the conditions of 28 U.S.C.

§ 2254(e)(2); if this burden is not met, the district court should not hold an

evidentiary hearing. See Holland v. Jackson , 124 S.Ct. 2736, 2738 (2004).

Because Mr. Cannon has not explained how he satisfies these conditions, I would

not remand the diligence issue to the district court.

C. Remmer Presumption

Finally, the Remmer presumption the court suggests that the OCCA would

apply to the improper juror contact claim is a rule of federal criminal procedure,

not federal constitutional law, and this court has declined to apply it in the habeas

context. Vigil v. Zavaras , 298 F.3d 935, 941 n.6 (10th Cir. 2002); Crease v.

McKune , 189 F.3d 1188, 1193 (10th Cir. 1999). Although the OCCA rejected the

improper juror contact claim on the basis of procedural bar and we are analyzing

the merits for the first time, Mr. Cannon should not be aided by a presumption

that is a matter of federal criminal procedure. Though the OCCA once cited

Remmer and then distinguished it, Silver v. State , 737 P.2d 1221, 1224 (Okla. Ct.

-6-
Crim. App. 1987), that hardly suggests that the OCCA would adopt such a

categorical rule given our treatment of it in the habeas context and its dilution or

abrogation in the federal context. See United States v. Scull , 321 F.3d 1270,

1280 n.5 (10th Cir.) (“We note that this circuit and others have questioned the

appropriate breadth of Remmer’s presumption of prejudice rule, postulating the

standard should be significantly narrowed, or replaced altogether.”), cert. denied ,

124 S. Ct. 175 (2003); United States v. Sylvester , 143 F.3d 923, 933-34 (5th Cir.

1988) (concluding that Remmer presumption has not survived).

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