Cannon v. Johnson ( 1998 )


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