Cannon v. Trammell

FILED
United States Court of Appeals
Tenth Circuit

August 11, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEMAINE MONTEIL CANNON,

Petitioner - Appellant,

v. No. 13-5071

ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 99-CV-00297-TCK-PJC)

Jack Fisher, Fisher Law Office, Edmond, Oklahoma, and Paul S. McCausland,
Young, Bogle, McCausland, Wells & Blanchard, Wichita, Kansas, for Appellant.

Jennifer J. Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Appellee.

Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.

TYMKOVICH, Circuit Judge.
 Jemaine Cannon was convicted in 1996 of murdering his then-girlfriend,

Sharonda Clarke, and was sentenced to death. After a lengthy state appeals

process, he filed a federal habeas petition in the Northern District of Oklahoma,

which denied relief. In an appeal to this court in 2004, we concluded Cannon

raised substantial questions about the performance of his trial and appellate

counsel and remanded to the district court for further proceedings. We directed

the court to consider whether Cannon’s counsel unconstitutionally (1) failed to

investigate alleged contacts between jurors and prosecution witnesses and (2)

denied him the right to testify at trial in his defense.

The district court concluded that Cannon had not diligently pursued his

claims relating to juror contacts in state court, denied his request for an

evidentiary hearing on those claims, and denied relief. The court did, however,

hold an evidentiary hearing on Cannon’s right-to-testify claim but ultimately

denied relief after finding trial counsel had provided adequate assistance

concerning the right to testify.

Cannon raises two issues on appeal. First, he argues the district court erred

in resolving his juror-contact ineffectiveness claims without an evidentiary

hearing and in refusing to grant relief on those claims. We agree with the district

court that Cannon was not diligent in developing the factual basis for these claims

in state court and thus was not entitled to an evidentiary hearing. Given the

resulting absence of any reliable evidence in the record showing that improper

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contacts occurred, the district court did not err in denying relief on these claims.

Cannon’s second argument is that the district court erred in finding that counsel

(1) informed him of his right to testify, (2) did not prevent him from exercising

that right, and (3) properly advised him as to the consequences of testifying. We

find no error in the district court’s factual and legal conclusions on this issue.

As a result, exercising jurisdiction under 28 U.S.C. § 2253, we AFFIRM.

I. Background

A. Factual Background

Jemaine Cannon, who had recently escaped from custody for an unrelated

assault conviction, stabbed his girlfriend, Sharonda Clark, to death on February 3,

1995. When she was found more than twenty-four hours later, police discovered

that she had been stabbed three times in the throat and once in the center of her

chest. After the murder but before his arrest, Cannon spoke to his mother, telling

her he had acted in self-defense and that Clark had fallen on the knife after she

had attacked him. Although Cannon eventually turned himself in to police, he

first called Tulsa police and provided an account of the attack to Detective Tom

Fultz. In that conversation, Cannon admitted to stabbing Clark but claimed that

he only did so after she attacked him and he snapped.

A jury convicted Cannon of first-degree murder and sentenced him to

death.

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 B. Procedural History

After his conviction, Cannon appealed directly to the OCCA, which

rejected all of his claims. He then petitioned that court for post-conviction relief,

presenting a number of ineffective assistance of counsel claims concerning both

trial and appellate counsel. Three of these claims are now at issue.

In 1999, Cannon filed a petition for a writ of habeas corpus in federal

district court, which the district court subsequently dismissed. Cannon then

appealed to this court. We reversed the district court’s determination that

Cannon’s failure to present his ineffective assistance claims on direct appeal, as

required by Oklahoma law, meant that he was necessarily procedurally barred

from raising those claims on federal habeas review. See Cannon v. Mullin

(Cannon I), 383 F.3d 1152, 1174 (10th Cir. 2004). As we noted, a failure to

comply with a state procedural rule requiring a petitioner to raise ineffective

assistance claims on direct appeal will not always bar federal review. Such

claims are only barred when the petitioner has had “an opportunity to consult with

separate counsel on appeal.” Id. at 1172 (quoting English v. Cody, 146 F.3d

1257, 1259 (10th Cir. 1998)) (internal quotation marks omitted).

Based on the record available in Cannon I, we found cause to believe that

trial and appellate counsel were not separate because they both worked for the

same federal public defender’s office. Nonetheless we noted that the district

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court could hold an evidentiary hearing and allow Oklahoma an opportunity to

establish otherwise. Id. at 1174.

After determining that Cannon’s claims likely were not procedurally

barred, we also considered whether he was entitled to an evidentiary hearing to

establish his claim that certain state witnesses had improperly contacted his

jurors. Id. at 1174–77. Pursuant to the Antiterrorism and Effective Death Penalty

Act (AEDPA), a district court can only grant an evidentiary hearing when the

petitioner has acted diligently in developing the state court record. See Williams

v. Taylor, 529 U.S. 420, 432 (2000) (interpreting 28 U.S.C. § 2254(e)(2)). An

evidentiary hearing was necessary to Cannon’s success on the juror-contact

claims because—aside from a second-hand account contained in an affidavit from

Cannon—nothing in the record hinted that any improper contacts had actually

occurred. Despite their apparent availability, Cannon never provided the

Oklahoma courts with affidavits, statements, or testimony from any of the family

members or friends who allegedly witnessed the improper juror contacts. We

noted in Cannon I that a “diligent person would have done as much, absent an

impediment preventing him from doing so.” 383 F.3d at 1177. As a result, we

remanded the issue to the district court with instructions to determine whether

there were any such impediments excusing Cannon’s failure to develop the record

that would thus entitle him to an evidentiary hearing on his juror-contact claims.

We also concluded Cannon was entitled to an evidentiary hearing on his right to

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testify because he had diligently developed the factual record underlying that

claim by providing a first-hand affidavit to the OCCA.

On remand, the district court found that trial and appellate counsel were not

separate because of their close working and personal relationships. As a result,

none of Cannon’s ineffective assistance claims were procedurally barred. But the

court went on to find that Cannon was not entitled to an evidentiary hearing on

the juror-contact issue because he was not diligent in developing the state court

record and there were no impediments justifying this failure. Because there was

no reliable evidence in the record of any improper juror contacts, the district court

determined that both Cannon’s ineffective assistance of trial counsel and

ineffective assistance of appellate counsel claims based on the alleged improper

contacts were meritless.

Finally, the district court turned to Cannon’s claim that trial counsel

provided ineffective assistance concerning his right to testify. After review of the

record, the court again found that Cannon had not met his burden of proving that

counsel’s performance was in any way deficient.

II. Analysis

Cannon asserts two errors on appeal. First, he asserts both his trial and

appellate counsel were deficient in pursuing his allegation that certain state

witnesses improperly contacted jurors in his case, and that the district court erred

on remand in denying an evidentiary hearing in which he could establish facts to

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support these claims. Second, he argues the district court erred in finding both

that trial counsel properly advised him concerning his right to testify and that

counsel did not prevent him from testifying when he expressed a desire to do so.

We consider each claim in turn.

A. Improper Juror Contact

Cannon raises two ineffective assistance of trial counsel claims concerning

improper contacts between jurors and state witnesses. First, he says trial counsel

ignored evidence he gave them regarding the improper contacts. He contends he

had information from five friends and family members who observed several

witnesses interacting with jurors. He claims his trial counsel were

constitutionally ineffective for failing to pursue this information.

Next, he claims his direct appellate counsel compounded the error by

refusing to raise trial counsel’s ineffective assistance before the OCCA. Cannon

argues he thus lost the opportunity for appellate review on a potentially

meritorious claim.

We agreed in Cannon I that the two ineffective assistance claims might

have merit. But we were unable to review the substance of the claims because

Cannon had yet to establish reliable evidence showing that any improper juror

contacts actually occurred. As a result, we directed the district court to determine

whether Cannon was entitled to an evidentiary hearing at which he would be able

to supplement the record with evidence in support of his claims. But on remand,

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the district court found Cannon had not been diligent in developing the factual

record underlying his claim in state court and thus denied his request for an

evidentiary hearing. More specifically, the court found no circumstances

excusing his failure—on both direct and collateral review—to provide the

Oklahoma courts with affidavits that might substantiate his claims.

We review the district court’s legal conclusions de novo and its factual

determinations for clear error. Fairchild v. Workman, 579 F.3d 1134, 1140 (10th

Cir. 2009). We agree with the district court that Cannon was not entitled to an

evidentiary hearing because he failed to diligently develop the record supporting

his claims in state court. Because of this failure, there are no facts in the record

from which we could conclude that any improper juror contacts occurred, much

less that counsel performed deficiently in response to these alleged contacts.

Accordingly, we must deny relief on this issue.

1. Diligence

Under AEDPA, a district court cannot hold an evidentiary hearing in a

habeas proceeding if “the applicant has failed to develop the factual basis of a

claim in State court proceedings.” 28 U.S.C. § 2254(e)(2). As the Supreme Court

held in Williams v. Taylor, however, an applicant cannot be said to have “failed”

to develop the factual basis of his claim “unless there is lack of diligence, or

some greater fault, attributable to the prisoner or the prisoner’s counsel.” 529

U.S. at 432. Diligence, at a minimum, requires that an applicant both seek “an

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evidentiary hearing in state court in the manner prescribed by state law,” and

develop the record by submitting “evidence that would be readily available if the

claim were true.” Cannon I, 383 F.3d at 1176–77. 1

In Cannon I, we concluded that Cannon had not yet demonstrated he had

diligently developed the record underlying his improper juror-contact claims. The

only evidence of improper contacts submitted to the Oklahoma courts was an

affidavit from Cannon himself, and that affidavit did not assert any first-hand

knowledge of the allegations. We noted that despite their apparent availability,

Cannon never provided the Oklahoma courts with affidavits or statements from

any of the family members or friends who allegedly witnessed the improper juror

contacts. “A diligent person would have done as much, absent an impediment

preventing him from doing so.” Id. at 1177. The district court’s task on remand

was to consider whether any legally significant impediments prevented Cannon

from developing a record in state court on this issue.

1
Cannon cites Stouffer v. Trammell for the proposition that a mere
allegation of improper juror contact automatically entitles a prisoner to an
evidentiary hearing, regardless of diligence. See 738 F.3d 1205, 1220 (10th Cir.
2013) (noting that the “proper remedy” for an allegation of jury tampering “is an
evidentiary hearing”). Stouffer, however, cannot reasonably be read as
establishing such a rule. Not only was the petitioner found to have been diligent,
id. at 1219, but the court even explicitly stated that the petitioner “cannot receive
a hearing if he ‘failed to develop the factual basis of [his] claim in state court,’”
id. (quoting 28 U.S.C. § 2254(e)(2)). There is no special exception to the
diligence requirement for improper contact cases.

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 The district court found Cannon was not diligent and rejected his request

for an evidentiary hearing on the juror-contact claims. It found that Cannon was

not diligent in developing the record on direct appeal because he never provided

counsel with a list of potential witnesses and because he failed to prepare and file

a pro-se request to supplement the record. The court found that Cannon also

failed to act diligently during his state collateral proceedings because he failed to

include first-hand witness affidavits in his application for post-conviction review.

Cannon resists the district court’s conclusion for a number of reasons. As

an initial matter, he restates an argument we rejected in Cannon I. He contends

he satisfied the diligence requirement merely by requesting an evidentiary hearing

in state court, submitting a personal affidavit detailing his juror-contact claims,

and by seeking a similar affidavit from trial counsel prior to submitting his state

application for post-conviction relief. But that argument is foreclosed by Cannon

I, in which we concluded Cannon’s efforts were insufficient to establish diligence

on the juror-contact claims unless he could show some kind of impediment

excusing his failure to obtain eyewitness affidavits.

Cannon thus presents two fall-back arguments for why we should excuse

his failure to develop a reliable factual record in state court, and thus grant him an

evidentiary hearing now. First, he argues that Oklahoma’s failure to provide him

with separate trial and appellate counsel on direct review prevented him from

raising the juror-contact issue in his initial appeal. Second, he says he was

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prevented from developing a record on collateral review because his ineffective

trial assistance claim was procedurally barred by OCCA rules.

Although we assume for purposes of our review that the lack of separate

counsel excuses Cannon’s failure to develop the record on direct appeal, we find

there were no impediments that would prevent a diligent applicant from

developing a reliable record on this claim during state post-conviction

proceedings.

a. Direct Appeal

Cannon was represented by lawyers from the Tulsa federal defender’s

office at both trial and on direct appeal. He argues that his appellate counsel’s

failure to develop the record should not be attributed to him because trial and

appellate counsel were not separate and the Constitution requires that criminal

defendants have “an opportunity to consult with separate counsel on appeal in

order to obtain an objective assessment of trial counsel’s performance.” English

v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998). On remand, the district court

found that although he had different lawyers at trial and on appeal, they were not

legally separate because of their close personal and professional relationship.

Because counsel were not legally separate, the district court concluded the

ineffective assistance of trial counsel claim was not procedurally barred.

Nonetheless, the court found the lack of separate counsel did not excuse Cannon

of his obligation to develop the record.

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 Traditionally, the requirement that trial and appellate counsel be separate

has been used to excuse a petitioner’s failure to bring an ineffective assistance

claim on direct appeal. See, e.g., id. (noting a lack of separateness trumps state

procedural bar). We have yet to address whether the doctrine can also be used to

excuse an appellant’s failure to develop the record relating to such a claim. We

have, however, found that there are two concerns motivating the requirement of

separateness between trial and appellate counsel: “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.’” Cannon I, 383 F.3d at 1173

(internal citation omitted) (quoting Kimmelman v. Morrison, 477 U.S. 365, 378

(1986)). “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.” Id. Given these concerns, Cannon argues the district court

erred in finding that he was still required to develop the record pro se on direct

review concerning trial counsel’s failures despite the lack of separateness.

Oklahoma argues that even though trial and appellate counsel were not separate,

Cannon knew he had a potentially meritorious claim but failed to provide

appellate counsel with the names of potential witnesses. The State also contends

that nothing prevented Cannon from personally supplementing the record on

direct appeal—Oklahoma law establishes a procedure by which criminal

appellants can file pro-se pleadings with the OCCA and even move to supplement

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the record. The district court agreed with both of Oklahoma’s arguments and

found the lack of separateness did not excuse Cannon’s failure to develop the

record on direct appeal.

We need not decide whether Cannon’s knowledge of his potential claim

combined with Oklahoma’s supplementation process makes him responsible for

the failure to develop the record on direct review. 2 Nor do we address Cannon’s

argument that he demonstrated sufficient diligence on direct appeal by bringing

the juror-contact issue to his conflicted appellate counsel’s attention and that any

failure to develop the record that occurred after that point is not attributable to

Cannon. Rather, because we have determined that Cannon was not diligent in

developing a record on collateral review, we assume for purposes of our

discussion that a lack of separate trial and appellate counsel prevents us from

attributing the failure to develop the record on direct appeal to Cannon.

b. Collateral Review

The district court also found that Cannon was not diligent because he failed

to develop his ineffective assistance claim by submitting witness affidavits during

the OCCA post-conviction process. We agree that his lack of diligence at this

2
Oklahoma points to Amos v. Roberts, 189 F. App’x 830 (10th Cir. 2006),
as establishing a duty for defendants to file supplemental pleadings if possible
under state law. But Amos only found that a petitioner could have raised
supplemental claims on direct appeal in circumstances where he had conflict-free
counsel. Amos never presented an ineffective assistance claim or a separateness
challenge, so counsel’s failure to raise the defaulted claims was imputed to him.
The court’s discussion of state pro-se procedures was superfluous to this point.

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stage, even if he were diligent on direct appeal, cannot be excused under

§ 2254(e)(2). As a result, the district court did not err in denying Cannon’s

request for an evidentiary hearing.

Cannon presents several arguments challenging this conclusion. First, he

argues that the diligence requirement does not apply at all to post-conviction

proceedings. Second, he argues that requiring a pro-se petitioner to develop the

record on post-conviction review violates the Sixth Amendment right to counsel

and that, as a practical matter, his pro-se status prevented him from obtaining

affidavits from family members who did not understand the importance of

providing supplemental evidence in post-conviction proceedings. Finally, he

contends that the OCCA’s improper procedural-bar finding—which precluded him

from raising his ineffective trial-assistance claims on state collateral review—was

an impediment that excuses his failure to develop the record on collateral review.

i. Diligence in Post-Conviction Proceedings

Cannon contends that diligence is only required on direct appeal and that

lack of diligence at the post-conviction stage is immaterial. We disagree.

First of all, nothing in the text of 28 U.S.C. § 2254(e)(2) distinguishes

between appeals as of right and post-conviction proceedings—the statute simply

requires that an applicant “develop the factual basis of a claim in State court

proceedings.” 28 U.S.C. § 2254(e)(2). We see no obvious reason why AEDPA’s

diligence requirement would apply only to direct appeals and not also to post-

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conviction proceedings, especially when the post-conviction review involves legal

errors not resolved on direct appeal. If anything, the policy of requiring

petitioners to play all of their cards in state court is better served when prisoners

have a second chance at demonstrating trial error and an opportunity to challenge

errors made in the direct appeal. See Williams v. Taylor, 529 U.S. 420, 437

(2000) (explaining the diligence requirement allows state courts “their rightful

opportunity to adjudicate federal rights”). We note that this conclusion is in line

with the Fifth Circuit’s finding in Dowthitt v. Johnson, which we cited favorably

in Cannon I. Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (finding that

a petitioner was not diligent for failing to submit affidavits during state post-

conviction proceedings); see also Lopez v. Ryan, 630 F.3d 1198, 1206 (9th Cir.

2011); Koste v. Dormire, 345 F.3d 974, 985–86 (8th Cir. 2003); Alley v. Bell, 307

F.3d 380, 390–91 (6th Cir. 2002).

We thus conclude 28 U.S.C. § 2254(e)(2) required Cannon to act diligently

in developing the factual record during post-conviction review. Any other

holding would deny the state its initial rightful opportunity to fully adjudicate the

federal claims at issue. See Williams, 529 U.S. at 437.

ii. Pro-Se Status and Developing the Record

Next, Cannon argues that requiring a pro-se prisoner to develop the record

during post-conviction review violates his Sixth Amendment right to counsel. In

making this argument, Cannon points to the Supreme Court’s decision in Martinez

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v. Ryan for the proposition that a pro-se prisoner is in “no position to develop the

evidentiary basis for a claim of ineffective assistance, which often turns on

evidence outside the trial record.” 132 S. Ct. 1309, 1317 (2011). In that case, the

Supreme Court concluded that, where a state does not allow for ineffective trial

assistance claims to be brought on direct appeal, ineffective assistance of

post-conviction counsel can excuse a petitioner’s failure to bring a trial-assistance

claim at that stage. Id. at 1317–19. Cannon also points to Trevino v. Thaler, in

which the Supreme Court extended Martinez to circumstances where it was

“virtually impossible” to assert ineffectiveness claims on direct review because of

obstacles created by state law. 133 S. Ct. 1911, 1915 (2013).

Cannon argues that, because his trial and appellate counsel were not

separate, his first realistic opportunity to raise his ineffective assistance claims

was on post-conviction review. Citing the difficulty of investigating his claims

from prison, which motivated both Martinez and Trevino, he argues that he could

not have been required to develop the record pro se on post-conviction review.

We see two problems with this argument. First, Oklahoma law, in contrast

to the Supreme Court cases, grants defendants the right to an attorney for post-

conviction challenges. As a result, petitioners are not required to develop either

trial or appellate ineffective assistance claims on their own. And that is what

happened here, at least initially. Cannon was provided appointed counsel through

the Oklahoma Indigent Defense System for purposes of his post-conviction

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appeal. See Okla. Stat. tit. 22, § 1089(B) (1995). After several months, however,

dissatisfied with appointed counsel, he insisted on representing himself. At a

hearing to consider his request to go pro se, the trial court advised him to keep

appointed counsel and detailed the problems with representing oneself from

prison. Cannon insisted on proceeding pro se and the trial court reluctantly

conceded Cannon was entitled to represent himself. Nonetheless, the trial court

appointed stand-by counsel who was available to assist Cannon in investigating

and presenting his application to the OCCA.

In these circumstances, Cannon cannot refuse the assistance of counsel and

then use his resulting pro-se status to argue that it would violate the Sixth

Amendment to require him to develop the record. Nor has Cannon demonstrated

how his confinement, as a practical matter, interfered in any particular way with

his ability to obtain affidavits from his relatives and friends. As the district court

found, Cannon did not need access to his legal files or records to obtain affidavits

from his family members, and he never alleged any restrictions on his

communications with them. In sum, Cannon’s pro-se status during post-

conviction review does not excuse the requirement that he act diligently to

develop the record.

At oral argument, Cannon’s attorney advanced the theory that Cannon had

diligently sought affidavits from eyewitness family members but that his relatives

refused to accommodate him. In support of this contention, he referenced three

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family-member affidavits he provided in support of diligence after our remand in

Cannon I. In those affidavits his relatives asserted that Cannon had asked them to

prepare affidavits for his state post-conviction application but they either were

unable or refused because they did not understand the usefulness of additional

evidence after completion of trial and direct appeal. 3 Cannon contends their

reluctance constituted an obstacle excusing his failure to more fully develop the

record and that the affidavits prove he was diligently attempting to develop the

state court record.

But Cannon did not pursue this argument in either his opening or reply

brief to this court. Neither brief mentions that he previously requested affidavits

from his family members, much less that his family members refused to provide

them. This is especially problematic because the district court found that

“Cannon’s diligence in obtaining the affidavits began in earnest only after the

Tenth Circuit noted in its 2004 opinion that he had not provided affidavits from

any of the alleged witnesses.” R., Vol. I, Doc. 222 at 9. The court also found “a

reasonably diligent person would have been able to obtain the affidavits earlier”

3
We note that, despite claiming that they did not understand the value of
providing affidavits after Cannon had already been convicted and lost his appeal,
two of the affiants attended a post-conviction hearing at which Cannon sought to
waive his appointed counsel.

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because “each of the affiants states he or she was willing to testify at a hearing.”

Id. at 11. 4

This court will not consider issues initially raised at oral argument. United

States v. Irving, 665 F.3d 1184, 1210 n.23 (10th Cir. 2011) (issues raised for the

first time in oral argument are waived); United States v. Rivera-Nevarez, 418 F.3d

1104, 1112 n.12 (10th Cir. 2005) (same). Not only is it “unfair to lie in wait until

oral argument to present issues material to the appeal,” but “[r]aising [an] issue

for the first time at oral argument affords the [opposing party] an inadequate

opportunity to address it.” United States v. Almaraz, 306 F.3d 1031, 1040–41

(10th Cir. 2002). Consequently, we decline to consider this argument as it has

been waived.

iii. Procedural Bar

Finally, Cannon argues that the OCCA’s finding that his ineffective

assistance of trial counsel claims were procedurally barred served as an

impediment that prevented him from developing a record in post-conviction

proceedings. Oklahoma does not seriously contest the notion that a procedural

bar can serve as an impediment to factual development. Instead, the State argues

that, due to the circumstances of this case, the procedural bar here did not prevent

Cannon from submitting the contested affidavits and thus developing the record.

4
In the district court, Cannon only alleged that “Each [witness] had their
own reasons for not providing affidavits to Mr. Cannon.” R., Vol. I, Doc. 216 at
16.

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 As noted above, Cannon raised both of his ineffective assistance claims

concerning improper juror contacts on state collateral review. Although the

OCCA found Cannon’s trial-assistance claim was procedurally barred, it

considered Cannon’s appellate-assistance claim on the merits. Ultimately, it

rejected the appellate claim because Cannon failed to demonstrate that the juror-

contact issue was any more meritorious than the claims his appellate counsel did

raise.

Cannon also petitioned the OCCA for an evidentiary hearing relating to his

juror-contact claims. Because not all of Cannon’s claims were procedurally

barred, the court considered this request on the merits but rejected it because

Cannon’s personal affidavit did not establish by clear and convincing evidence

that the testimony he sought to introduce was likely to be relevant. Oklahoma

argues that Cannon could have submitted the contested affidavits as part of his

application for an evidentiary hearing on his appellate-assistance claim.

Given this contention, it is necessary to take a brief detour into Oklahoma

post-conviction procedure. Under Oklahoma law, a petitioner in a capital case

who wishes to supplement the record may file “an application for an evidentiary

hearing, together with affidavits setting out those items alleged to be necessary

for disposition of the issue petitioner is advancing.” R. Okla. Crim. App.

9.7(D)(5) (1997). Affidavits from third-party witnesses may be submitted and

considered under this rule and become part of the post-conviction record. See,

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e.g., Slaughter v. State, 105 P.3d 832, 834–37 (Okla. Crim. App. 2005). The

OCCA will only grant an evidentiary hearing when “[t]he application for

evidentiary hearing and affidavits . . . ‘contain sufficient information to show . . .

by clear and convincing evidence the materials sought to be introduced have or

are likely to have support in law and fact to be relevant to an allegation raised in

the application for post-conviction relief.’” Id. at 835 (quoting R. Okla. Crim.

App. 9.7(D)(6)). 5

And the record demonstrates that Cannon took advantage of these

procedures. Acting pro se with standby counsel, he submitted a personal affidavit

in support of his post-conviction application and requested an evidentiary hearing

to further develop his claims. He also asked trial counsel to substantiate his

juror-contact allegations but she refused, stating “I have no recollection of anyone

talking with me about witnesses or anyone else making improper contact with

jurors.” R., Vol. I, Doc. 218, Ex. 4. Nothing in the Oklahoma rules prevented

him from attempting to obtain additional affidavits in support of his cause from

family members, yet he failed to do so. After reviewing Cannon’s application and

personal affidavit, the OCCA concluded he had not met his burden of showing by

5
Cannon argues he is entitled to an evidentiary hearing because
Oklahoma’s Rule 9.7(D)’s “clear and convincing” standard is unconstitutionally
strict. But whatever the statute’s shortcomings, it did not prevent Cannon from
submitting the contested affidavits as part of his application to the OCCA. As we
conclude, Cannon’s failure to submit these affidavits demonstrates his lack of
diligence and thus precludes us from granting him an evidentiary hearing.

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clear and convincing evidence that an evidentiary hearing would result in

testimony likely to be relevant to his claims.

We thus must agree with the district court that a diligent applicant would

have submitted witness affidavits as part of his application for an evidentiary

hearing. Cannon bore the burden before the OCCA of showing by clear and

convincing evidence that the materials he wanted to add to the record were likely

to support his claim that appellate counsel was ineffective. The affidavits could

have established that appellate counsel never contacted the prospective witnesses.

They also could have provided direct evidence that improper juror contacts

actually occurred, bolstering the strength of both the ineffective trial assistance

and appellate-ineffectiveness claims. This function is key, as the OCCA

ultimately rejected Cannon’s appellate-assistance claim after finding that the

claims appellate counsel did raise “were at least equally meritorious” to the

omitted ineffective assistance of trial counsel claim. Id. Doc. 216, Ex. 20 at 6.

Finally, assuming that Cannon had been able to prove ineffective assistance of

appellate counsel, he would have been given the opportunity to show the merits of

his ineffective assistance of trial counsel claim. See Banks v. Reynolds, 54 F.3d

1508, 1516 (10th Cir. 1995) (applying Strickland v. Washington, 466 U.S. 668

(1984)). 6 Evidence establishing that the improper contacts occurred would be

6
At the time of these post-conviction proceedings, the OCCA did not use
the Strickland test for ineffective assistance claims, preferring its own standard
(continued...)

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necessary for Cannon to show that he was prejudiced by trial counsel’s

performance.

Given the obvious relevance of eyewitness testimony to Cannon’s claims,

the hurdle he had to overcome to obtain an OCCA evidentiary hearing was

establishing that he would actually be able to introduce such testimony at a

hearing. As we said in Cannon I, a reasonably diligent person would not do as

Cannon did and submit only a general hearsay affidavit claiming that such

contacts occurred and that actual witnesses were willing to testify as to those

contacts. This is especially true because the OCCA could easily interpret

Cannon’s failure to submit additional information from his family and friends as

evidence that no improper contacts actually occurred. Because Cannon should

have submitted the disputed affidavits alongside his request for an OCCA

evidentiary hearing on his appellate-assistance claim, the fact that he did not do

so constitutes a failure of diligence that precluded the district court from granting

6
(...continued)
from Walker v. State, 933 P.2d 327 (Okla. Crim. App. 1997). This fact does not
impact our analysis. Although Strickland and Walker differ in the showing
required to prove ineffective assistance of appellate counsel, both end up in the
same place if that showing is made: a full review of the omitted claim on the
merits. Compare Banks, 54 F.3d at 1516 (explaining that, under Strickland,
“[a]ssuming [a petitioner] demonstrates ineffective appellate assistance, his
procedural default will be excused and we may then review the merits of his
claims”), with Cargle v. Mullin, 317 F.3d 1196, 1203 (10th Cir. 2003) (explaining
that, under Walker, “[i]f ineffective assistance of appellate counsel is found in
step two, the OCCA then proceeds to step three, where the omitted claim of trial
error is fully reviewed on the merits”).

-23-
an evidentiary hearing. And to the extent he claims witnesses would not or could

not submit affidavits during collateral review, he should have explained to the

OCCA that these obstacles existed but that an evidentiary hearing would allow

him to obtain the required evidence.

The OCCA’s finding that Cannon’s ineffective assistance of trial counsel

claim was procedurally barred does not undermine our conclusion. First, as we

have already discussed and Cannon admits, both of his ineffective assistance

claims—that is, his trial counsel and his appellate counsel claims—were

dependent on the same underlying facts. See Aplt. Br. at 6–7.

Second, the central purpose of the diligence requirement is to give state

courts their initial “rightful opportunity to adjudicate federal rights.” Williams v.

Taylor, 529 U.S. 420, 437 (2000). By failing to seize the opportunity to submit

the juror-contact affidavits in support of his appellate counsel claim, Cannon

denied the OCCA its rightful opportunity to consider and resolve both his

appellate-assistance and his trial-assistance claims. This is because, had Cannon

succeeded in showing ineffective assistance of appellate counsel, the OCCA then

would have given his ineffective assistance of trial counsel claim a full merits

review despite its earlier finding that the claim was procedurally barred. See

Cargle v. Mullin, 317 F.3d 1196, 1203 (10th Cir. 2003). In other words, the

procedural bar would not have prevented review of the trial-assistance claim had

Cannon demonstrated ineffective appellate assistance. Therefore, it does not

-24-
matter that his ineffective trial and appellate counsel claims are distinct: a diligent

petitioner would have presented facts demonstrating ineffective trial assistance as

part of his ineffective appellate assistance claim.

In sum, we agree with the district court that there were no impediments

excusing Cannon’s failure to develop the record during his post-conviction

proceedings. Because Williams requires that a petitioner show he diligently

developed the record in state court in order to obtain an evidentiary hearing, see

529 U.S. at 432, the district court did not err in denying Cannon’s request for a

hearing.

2. Merits

Despite the lack of any reliable evidence of improper contacts in the state

court record, Cannon argues that we can grant him relief on the merits even

without granting an evidentiary hearing. After our remand in Cannon I, Cannon

submitted to the district court affidavits from three family members asserting that

improper juror contacts had, in fact, occurred. He argues that, although he was

denied an evidentiary hearing, those affidavits are now part of the record and, as a

result, we can consider them as evidence proving that improper contacts occurred.

This argument, however, is foreclosed by Cargle v. Mullin, 317 F.3d at

1209. There, we found that 28 U.S.C. § 2254(e)(2) bars any documentary

expansion of the record when the petitioner was not diligent in state court. See

id. Because we conclude Cannon was not diligent in state court, we cannot

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consider additional evidence outside the state court record. As we have already

discussed, there is no reliable evidence in the record showing that improper

contacts occurred. The district court was thus correct in dismissing both the trial

and appellate juror-contact claims.

B. Right to Testify

Cannon also argues the district court erred in rejecting his claim that he

was denied his Sixth Amendment right to testify. Unlike the juror-contact claim,

the district court held an evidentiary hearing to resolve disputed facts.

Every criminal defendant has the constitutional right to testify at trial and

the ultimate decision of whether or not to testify belongs solely to the defendant.

See Jones v. Barnes, 463 U.S. 745, 751 (1983). Defense counsel should inform

the defendant of his right and that only he can decide whether or not to testify.

United States v. Teague, 953 F.2d 1525, 1533–34 (11th Cir. 1992) (en banc).

Counsel should also explain the strategic implications of testifying and whether or

not they recommend that the defendant do so. Cannon I, 383 F.3d at 1171.

Citing these principles, Cannon argues that his trial counsel failed to inform him

of his right to testify and then prevented him from testifying when he expressed a

desire to do so. He also argues they wrongly told him that certain damaging

evidence would be admitted for impeachment purposes if—and only if—he were

to testify. He thus argues his Sixth Amendment rights were violated because he

did not make a knowing and voluntary waiver of his right to testify.

-26-
 Demonstrating ineffective assistance of counsel requires a petitioner prove

both that counsel’s performance was deficient and that he was prejudiced as a

result. Strickland, 466 U.S. at 687. For deficient performance, the petitioner

must show that counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. “For counsel’s performance to be constitutionally

ineffective, it must have been completely unreasonable, not merely wrong.” Boyd

v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Prejudice requires a showing that

there is a “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

“A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. This requires that “[t]he likelihood of a different result must

be substantial, not just conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792

(2011). 7

After our remand in Cannon I, the district court held an evidentiary hearing

on the Sixth-Amendment claims to resolve disputed facts. The court made a

number of factual findings, including that trial counsel had informed Cannon of

7
Cannon argues that, although he has the burden of proof initially, he need
only make a prima facie showing of ineffective assistance to shift the burden to
the State, which then must rebut the inference that counsel was ineffective. In
support of this theory, Cannon cites several cases dealing with race-based
discrimination. See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977). Although a
prima facie scheme makes sense for claims based on allegations of discrimination,
where motive must be proved, it is not applicable to ineffective assistance claims.

-27-
his right to testify and had offered constitutionally adequate explanations of the

implications of testifying. The court also found that counsel did not prevent him

from testifying and, in any event, Cannon was not prejudiced by his failure to

testify because he would not have offered credible testimony in his defense.

Although our review of the district court’s legal analysis is de novo, Fairchild v.

Workman, 579 F.3d 1134, 1140 (10th Cir. 2009), we must acknowledge the

background principle that “counsel is strongly presumed to have rendered

adequate assistance.” Strickland, 466 U.S. at 690. We review factual findings for

clear error when they are the result of an evidentiary hearing. Douglas v.

Workman, 560 F.3d 1156, 1170 (10th Cir. 2009).

1. Strickland Deficient Performance

Cannon contends that counsel’s performance was deficient because they

failed to inform him of his right to testify, prevented him from testifying when he

attempted to do so, and wrongly told him that certain damaging evidence would

be admitted for impeachment purposes if he were to testify. The district court

found that Cannon failed to establish the factual predicate of his first two

contentions, and that counsel’s advice concerning the impeachment evidence was

legally correct.

Our independent review of the record finds no reason to supplant either the

district court’s factual or legal findings.

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 a. Right to Testify

At the evidentiary hearing, Cannon testified that trial counsel did not

inform him of his right to testify and that they prevented him from testifying at

trial when he attempted to do so. Although neither of Cannon’s counsel could

explicitly remember telling Cannon about his right to testify, both testified that

they did recall discussing the pros and cons of testifying with Cannon and both

stated they always and without exception inform clients of the right to testify.

Both also denied preventing Cannon from testifying.

The district court found that Cannon’s testimony was not credible for a

number of reasons. The court found that Cannon’s testimony contradicted other

evidence and his own earlier statements, and that he was evasive on cross-

examination and had an overly selective memory when it came to helpful and

harmful facts. Given his extensive involvement in his defense, the court also

found it unlikely that Cannon would have passively accepted any attempt to

prevent him from testifying. “Credibility, of course, is a matter for the district

court, not this court.” United States v. Draper, 24 F.3d 83, 85 (10th Cir. 1994).

“[O]nly the trial judge can be aware of the variations in demeanor and tone of

voice that bear so heavily on the listener’s understanding of and belief in what is

said.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). As a result, a trial

judge’s “decision to credit the testimony of one of two or more witnesses, each of

whom has told a coherent and facially plausible story that is not contradicted by

-29-
extrinsic evidence, . . . can virtually never be clear error.” Id. Having

determined that Cannon was not credible, the district court considered the

testimony of trial counsel and concluded Cannon had not met his burden of

proving that counsel provided ineffective assistance concerning his right to

testify.

In resisting the district court’s conclusions, Cannon first argues that

because neither of his lawyers could specifically remember informing him of his

right to testify, the district court necessarily erred by refusing to accept his

uncontroverted testimony to the contrary. We disagree. Both of Cannon’s

lawyers testified that they always and without exception informed defendants of

their right to testify and we find no error in the district court’s decision to credit

trial counsel’s testimony on this point. In response, Cannon argues that counsel’s

testimony concerning their standard practices should not have been assigned

significant weight because, in normal circumstances, the testimony would not

have been admissible under Federal Rule of Evidence 406. 8 Rule 406 allows the

admission of evidence concerning habits or routine practices, provided that

sufficient foundation has been laid to establish their consistent application. More

specifically, Cannon objects that neither of his attorneys testified as to how many

8
Because he elicited the testimony, Cannon does not challenge its
admission, only its weight.

-30-
trials she had participated in, thus depriving the court of the ability to determine

whether the claimed habit should be given any weight.

Again, we cannot find that the district court clearly erred in its decision to

credit trial counsel’s testimony over Cannon’s. Both attorneys were experienced

public defenders, one of whom is the head of capital litigation with the Tulsa

County Public Defenders Office and has been with that office since 1987.

Cannon’s other attorney worked with that same office for over ten years. Given

(1) their backgrounds and experience, (2) the presumption that counsel rendered

adequate assistance, Strickland, 466 U.S. at 690, and (3) the district court’s

finding on credibility, Cannon has not established that counsel failed to inform

him of his right to testify.

We likewise reject Cannon’s challenge to the district court’s finding that he

failed to prove trial counsel thwarted his attempts to testify. Both of Cannon’s

trial counsel unequivocally denied telling him that he could not testify and denied

preventing him from doing so. One even confirmed this point in a letter she sent

to Cannon during the post-trial appeal in which she stated, “I cannot swear out an

affidavit claiming I would not let you testify, because I never told you that you

couldn’t testify and I don’t recall you informing me you wanted to testify.” R.,

Vol. I, Doc. 218, Ex. 4. The district court also reasonably found Cannon was

engaged in his defense and would not have passively accepted a refusal to allow

him to testify had it occurred. In short, we see no reason to overturn the district

-31-
court’s decision to credit counsel’s testimony that Cannon knowingly and

voluntarily declined to testify, 9 and reject Cannon’s testimony to the contrary.

b. Advice of Counsel

Cannon’s second example of deficient performance is his claim that counsel

incorrectly told him that if he testified he would be impeached with evidence

showing a prior conviction for assault and with details of his recent escape from

lawful custody. More specifically, Cannon had been convicted of assault and

battery with intent to kill in 1991; a conviction which earned him a fifteen-year

prison sentence. While serving that sentence, and shortly before his arrest in this

case, Cannon escaped from Oklahoma Department of Corrections custody while

participating in a work program. Cannon claims counsel incorrectly told him

these facts would be admissible if he testified.

In addition, Cannon claims counsel entered an agreement with the

prosecutor in which the state agreed it would not introduce evidence of the prior

conviction or escape unless Cannon testified. He contends he was never informed

of this agreement and that this prevented him from knowingly and voluntarily

waiving his right to testify.

9
Cannon also tangentially argues a waiver of the right to testify is
ineffective unless made on the record. Nothing in this circuit, or any other,
however, requires defendants to waive their right to testify on the record and we
decline to adopt such a rule now. To the contrary, requiring judges to question
each non-testifying defendant about his decision not to testify may result in
defendants feeling pressured to give up their right not to testify. See United
States v. Pennycooke, 65 F.3d 9, 13 (3d Cir. 1995).

-32-
 The district court found that counsel provided effective assistance when

they told Cannon that his prior conviction would be admissible. Under Oklahoma

law, a prior felony conviction is admissible for its impeachment value if its

“probative value of the evidence outweighs its prejudicial effect.” Cline v. State,

782 P.2d 399, 400 (Okla. Crim. App. 1989). In making this evaluation, the court

considers: “1. The impeachment value of the prior crime; 2. The point in time of

the conviction and the witness’ [sic] subsequent history; 3. The similarity

between the past crime and the charged crime; 4. The importance of the

defendant’s testimony; and 5. The centrality of the credibility issue.” Id. The

district court concluded the prior conviction would have been admissible for

impeachment.

We agree. Factors two and five point in favor of admissibility. The prior

crime was, at the time of the trial, relatively recent and Cannon’s credibility was

crucial for the jury to assess whether or not it believed his self-defense argument.

Factors one and four cut both ways. Although the relationship between a crime of

violence and truthfulness is somewhat attenuated, the OCCA has repeatedly

upheld the introduction of assault and battery convictions for their impeachment

value. See, e.g., Shipman v. State, 639 P.2d 1248 (Okla. Crim. App. 1982)

(defendant charged with first-degree manslaughter); Campbell v. State, 636 P.2d

352 (Okla. Crim. App. 1981) (defendant charged with first-degree murder). As

for factor four, although Cannon’s testimony was naturally important, he was able

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to introduce his version of events through other witnesses without testifying.

Factor three cautions against admissibility. At bottom, competent counsel could

conclude the evidence would likely be admitted on cross-examination if Cannon

testified. Moreover, the damage the evidence would cause militated toward the

strategy chosen—Cannon would not testify and his theory of self-defense would

come in through the testimony of a police detective who spoke to Cannon before

his arrest.

Counsel’s advice on Cannon’s escape presents an easier question.

Cannon’s own recorded statement indicated that he was afraid that the victim

planned to turn him in to police once he left her apartment. The escape would

have been admissible as evidence of Cannon’s motive to kill Ms. Clark.

Of course, motive evidence could have been introduced even without

Cannon testifying in his defense. But his counsel were able to enter into an

agreement with the prosecution by which the state would not attempt to enter

evidence of the escape or the prior conviction unless Cannon testified. Cannon

asserts that he was never informed of this agreement and argues that counsel’s

failure to tell him about it prevented him from making a knowing and voluntary

waiver of his right to testify. But Cannon was correctly informed that if—and

only if—he chose to testify, the state would seek to admit evidence of his prior

felony and escape, and would likely be successful in doing so. Even if he were

not informed of the details of any agreement, his counsel provided

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constitutionally sufficient advice for him to knowingly evaluate his right to

testify.

In sum, we cannot conclude that counsel’s performance was

constitutionally deficient or that Cannon’s waiver was involuntary. He was

adequately informed of the consequences that would result from testifying.

2. Strickland Prejudice

Even though Strickland requires that Cannon establish both deficient

performance and prejudice to obtain relief, having found no deficient

performance, the district court went on to evaluate whether he was prejudiced by

his failure to testify. For completeness, we review that conclusion.

Prejudice requires a showing that there is a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. This requires that “[t]he

likelihood of a different result must be substantial, not just conceivable.”

Harrington, 131 S. Ct. at 792.

The district court concluded that Cannon was not prejudiced by his failure

to testify at trial because “his [evidentiary hearing] testimony was so

untrustworthy and so inconsistent with other credible evidence that it was not

substantially likely his testimony would have changed the result of the trial.” R.,

Vol. I, Doc. 300, at 34. The court went on to state that “Cannon’s inability to

-35-
handle cross-examination—his evasive and uncooperative demeanor—would have

rendered him a wholly ineffective witness.” Id. The court also found that

Cannon’s account of the murder “strain[ed] credulity beyond reasonable limit.”

Id. Finally, the court noted that, had Cannon testified, his prior conviction and

potentially his escape from custody would have come into evidence, further

harming his defense.

Cannon advances a number of objections to these conclusions. In

summary, he contends the district court erred in finding that his testimony at the

evidentiary hearing was inconsistent with his prior tape-recorded statement to a

police detective. As Cannon explains it, the recorded conversation gives only a

partial version of events. He says his testimony only deviated from the tape

because he was filling in the blanks. He further argues that, where his testimony

was contradicted by other evidence, the inconsistencies were inconsequential.

We have reviewed all of Cannon’s objections to the district court’s

credibility finding and see no error. Suffice it to say, the inconsistences between

the record evidence, including his recorded statement, and his evidentiary hearing

testimony support a conclusion that Cannon would not have advanced his cause

by testifying at trial. Nor do we find any error in the district court’s conclusion

that Cannon was evasive on cross-examination. For the reasons set forth by the

district court, Cannon cannot show he was prejudiced by his failure to testify at

trial.

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 III. Conclusion

The district court’s denial of Cannon’s petition for a writ of habeas corpus

is AFFIRMED.

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