## 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 see ks 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.2

In 1977, when he was only seventeen years old, Cannon emptied

a .22 caliber revolver into Anne C. Walsh at close range, attempted

t o have sex with her dead body, and then drove off in her truck.

As Cannon explained in his confession, he had no re ason to kill

Walsh. She was an attorney, and her brother, Dan Carabin, had been

appointed Cannon’s counsel in a burglary pros ecution. 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

defen se 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 evidenc e unpersuasive,

and it sentenced him to death.

The trial court, however, gra nted 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 conf ession and, after the court

admitted it into evidence, tried to convince the jury that it

should not credit the confession because of i nconsistencies 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 first3

trial. Instead, Cannon’s lawyers presented no mitigating evidence

in the hope that t he 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

viole nce 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 clai m that his counsel was ineffective during the

p unishment 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 S tat. 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 whether4

unadjudicated acts of juvenile misconduct were admissible” and thus

that the defense’s strategy h ad at least caused the state not to

rebut Cannon’s evidence wit h “unadjudicated acts of misconduct

whi ch 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 pur pose of

challenging the district court’s ruling that his appointed

attorneys at his second trial did not violate his right to

effec tive 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 assistan ce . . . [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 L indh v. Murphy

,

___

U.S.

___, 117 S. Ct. 2059,

___ L. Ed. 2d

___ (1997), the Supreme

Court hel d that the AEDPA’s standard for reviewing petitions by

state prisoners, codified at 28 U.S.C. § 2254(d), does not apply1 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 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. B arefoot 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 Ci r. 1996), c ert. 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 appea l need only a certificate of probable cause if they

filed their petition in the district court before enactment of the

AEDPA. U nited 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.6

Cannon’s 14-page motion for a certificate of appealab ility

comes to us along with a 92-p age 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 findin gs of fact for clear error, the

district court’s ultimate conclusion that counsel was not

constitut ionally ineffective is a mixed question of law and fact

that we review de novo. B oyle 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 state7

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 br ing 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, includi ng a manslaughter

charge. All of these acts/offenses contributed to a

quick verdict in the second phase of the trial. By

s taying away from this type of testimony, we sought to

keep out of the record the defendant’s prior criminal

history. This we accomplished completely.

. . .8 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 a n 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

ana lysis 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 o f 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 tea m, however, would have trouble confining the

personal history to these mitigating circumstances. At the first9

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 mitiga ting 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 we10

make no such suggestion, their defense was not ineffectiv e 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 a rguing that

the shooting was not deli berate 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 objectivel y reasonable strategic decision), c ert. 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 reasona b ly by not offering mitigating evidence11

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 w hether to raise an insanity

defense is a matter of trial strategy and does not warrant a

presumption of prejudice).

E ven if Rodriguez and Wilcox performed below the Stri ckland

standard, we cannot grant relief unless counsel’s failings

prejudi ced Cannon. S trickland

, 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 l earning 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.” L ockhart 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 fo r the claim that “[c]ertain sociological psychological

characteristics that reveal themselves at an early age either12

disappear after the age of 15 or become significant for other

purposes after the age of 18.” But this statement is too general

t o 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 Rodr iguez 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.