Thomas Cannon v. United States ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 23, 2009∗
Decided May 7, 2009
Before
FRANK H. EASTERBROOK , Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08-3906
Appeal from the United
THOMAS C ANNON, States District Court for the
Petitioner-Appellant, Central District of Illinois.
v. No. 07-CV-2044
Michael P. McCuskey,
UNITED STATES OF AMERICA, Chief Judge.
Respondent-Appellee.
Order
After we affirmed Thomas Cannon’s conviction, the district court on remand
imposed the sentence that we had concluded is the lowest allowed by statute: life
imprisonment. See United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005). He then filed a
motion for collateral relief under 28 U.S.C. §2255, contending that his lawyer had
∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 08-3906 Page 2
furnished ineffective assistance.
The argument that the lawyer had labored under a conflict of interest was serious
enough to require an evidentiary hearing. Thomas Cannon maintains that his brother
Clarence hired the lawyer to deflect suspicion from himself, and that the lawyer
throughout did Clarence’s bidding at the cost of Thomas’s freedom. The district judge
took extensive evidence and found that counsel had served Thomas’s interest rather
than Clarence’s, so that there was no conflict--and that Thomas, who made a written
confession taking full responsibility for the drugs and absolving his brother, is not well
positioned to complain that his brother is to blame for his conviction.
Thomas’s appeal does not take issue with the district court’s resolution of this
question. Instead he contends that his lawyer was ineffective because he did not call
witnesses who, Thomas contends, would have testified that only Clarence could have
known about the drugs. The district court concluded that such testimony would have
been of little moment, given Thomas’s written and voluntary confession, plus other
evidence showing that Thomas was a drug dealer. The judge added that Thomas “has
provided no affidavit from any of the alleged witnesses indicating what testimony they
would actually provide. When a petitioner alleges that counsel’s failure to investigate
resulted in ineffective assistance, that petitioner has the burden of providing the court
with specific information as to what the investigation would have produced.” See
Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003).
In this court, Thomas Cannon blames the lack of evidence on the shortcomings of
the lawyer who prosecuted the collateral attack in the district court. But arguments
about ineffective assistance do not cascade in this fashion. Prisoners do not have a
constitutional right to counsel in prosecuting a collateral attack, and so the
shortcomings of lawyers at this stage fall on the prisoner himself rather than being
imputed to the state. This means that “[t]he ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction proceedings shall not be a ground for
relief”. 28 U.S.C. §2254(i). Although that provision applies directly to §2254 proceedings,
the principle is no less applicable to §2255 proceedings. There is accordingly no basis for
a new hearing, and on the record compiled in the hearing already held the judgment
must be
AFFIRMED.