## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 13 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEMAINE MONTEIL CANNON,

Petitioner - Appellant,

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

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. NO. 99-CV-297-H(M))

Stephen J. Greubel, Tulsa, Oklahoma (Jemaine Montei l Cannon, with him on the briefs), for Petitioner - Appellant. Brant M. Elmore, Assistant Attorney General, Crimin al Division (W. A. Drew Edmondson, Attorney General, and David M. Brockman, Assistant Attorney General, Criminal Division, on the brief), OklahomaCity, Oklahoma, for Respondent - Appellee.

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

HARTZ , Circuit Judge.-2-

Jemaine Monteil Cannon was convicted in Oklahoma st ate court of first degree murder and sentenced to death. After the Ok lahoma Court of Criminal Appeals (OCCA) denied his direct appeal and his pro se state petition for postconviction relief, Mr. Cannon timely filed an appli cation for relief under 28 U.S.C. § 2254. The United States District Court fo r the Northern District of Oklahoma rejected Mr. Cannon’s request for an evide ntiary hearing and denied all relief. On appeal Mr. Cannon raises numerous claims of inef fective assistance of trial counsel; three claims of trial counsel miscon duct, which we recharacterize as additional claims of ineffective assistance of coun sel; and a claim of ineffective assistance of appellate counsel for failure to purs ue on appeal the claims of ineffectiveness of trial counsel. We have jurisdic tion under 28 U.S.C. § 2253 and 28 U.S.C. §1291. We affirm on all claims except th ree. There are factual issues regarding the merits and procedural bar with respec t to Mr. Cannon’s allegations that (1) his trial counsel failed to notify the cou rt of improper contacts between prosecution witnesses and jurors during trial reces ses, and (2) his trial counsel prevented him from testifying in his own defense attrial. We therefore reverse and remand to the district court for further procee dings on those two claims. We also remand for further consideration Mr. Cannon’s claim of ineffective assistance of appellate counsel.-3-

I. FACTUAL BACKGROUND Because Mr. Cannon filed his habeas petition after the April 24, 1996, effective date of the Antiterrorism and Effective D eath Penalty Act of 1996 (AEDPA), that statute governs our review. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). Under AEDPA factual det erminations made by state courts are presumed to be correct. See 28 U.S.C. § 2254(e)(1). Thus, we adopt the OCCA’s recitation of facts.

On February 3, 1995, [Mr. Cannon] stabbed to death his girlfriend, Sharonda Clark [also referred to as Sharonda White] . The contested issue at trial was whether [Mr. Cannon] stabbed Clark wit h malice aforethought or in self-defense. Tulsa police found Clark's body in her apartment after Jacque Pepper contacted police when she could not l ocate Clark who had been missing for over twenty-four hours. Clark had been stabbed several times in the neck and chest. She also had incise w ounds on her hands commonly characterized as defensive wounds. SheenaElliott testified that she saw [Mr. Cannon] and Clark around noon on the t hird and that she sensed they were having an argument. Elliott tried to telephone Clark later in the afternoon to check on her, but [Mr. Cannon] told her that Clark was not there even though Elliott could hear Clark in t he background. No one, except [Mr. Cannon], had contact with Clark after n oon on the third. On February 4, 1995, [Mr. Cannon] borrowed money, b ought a bus ticket and went to Flint, Michigan to stay with an uncle. From Michigan, [Mr. Cannon] telephoned his mother who told him Cla rk was dead and to turn himself in and tell police his side of the sto ry. After convincing [Mr. Cannon] to turn himself in, [Mr. Cannon]'s mot her told Tulsa police detective Tom Fultz [Mr. Cannon]'s location. Short ly thereafter, [Mr. Cannon] telephoned Detective Fultz and told hi m that he killed Clark in self-defense. [Mr. Cannon] was arrested shortlyafter his conversation with Fultz and he was returned to Oklahoma. Althou gh [Mr. Cannon] claimed he killed Clark in self-defense and that th ey had a violent fight,-4-

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

Cannon v. State , 961 P.2d 838, 843 (Okla. Crim. App. 1998). Otherfacts will be set forth as necessary to the discussion.
II. PROCEDURAL HISTORY A jury in the District Court of Tulsa County, Oklah oma, convicted Mr. Cannon of murder in the first degree. The jury found four aggravating circumstances and recommended a sentence of death. The trial court sentenced him accordingly. Mr. Cannon was represented at tri al by attorneys Sid Conway and Julie O’Connell from the Tulsa Public Defender’ s office. A different attorney from the Tulsa Public Defender’s office, B arry Derryberry, represented Mr. Cannon on direct appeal to the OCCA, which affi rmed his conviction. See
Cannon v. State , 961 P.2d 838. Mr. Cannon later pursued post-conviction remedies i n the OCCA. Although he was originally represented by the Oklah oma Indigent Defense System (OIDS), an entity distinct from the Public Defender ’s office, he later elected to represent himself, with OIDS serving as standby cou nsel. He raised a number of claims of ineffective assistance of counsel and sou ght an evidentiary hearing. The OCCA denied relief and denied his request for a n evidentiary hearing.-5-

On August 16, 1999, Mr. Cannon filed an application for relief under 28 U.S.C. § 2254 with the United States District Courtfor the Northern District of Oklahoma. The district court denied the applicatio n on December 9, 2002. Mr. Cannon obtained a certificate of appealability (COA) from the district court on the ineffective-assistance-of-counsel and trial- counsel-misconduct issues. See 28 U.S.C. § 2253(c). He filed an opening brief and a reply brief with this court; standby counsel filed a supplemental brief addressi ng only procedural bar and appeared at oral argument on behalf of Mr. Cannon. We now address the issues authorized by the COA.
III. DISCUSSION All Mr. Cannon’s claims on appeal amount to allegat ions of ineffective assistance of counsel. We will address the claim o f ineffective assistance of appellate counsel after concluding our discussion o f the claims of ineffective assistance of trial counsel. To prevail on a trial-counsel-ineffectiveness claim , a defendant must satisfy the two-pronged test articulated by the United Stat es Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984). First, he must show that co unsel’s performance was deficient. Id. at 687. Second, he must show that counsel’s deficient performance prejudiced his defense. Id. To show that counsel’s performance was deficient, the defendant must demon strate that counsel’s-6-

performance “fell below an objective standard of re asonableness.” id. at 688—that is, was not “within the range of competenc e demanded of attorneys in criminal cases.” Id. at 687 (internal quotation marks omitted). To sho w prejudice, a defendant “must show that there is a r easonable probability that, but for counsel’s unprofessional errors, . . . the [jury] would have had a reasonable doubt respecting guilt.” Id. at 694-95. “A reasonable probability is a probabi lity sufficient to undermine confidence in the outcome.” Id. at 694. None of Mr. Cannon’s current ineffective-assistance claims was raised on direct appeal to the OCCA. Oklahoma, unlike most j urisdictions, generally requires a criminal defendant to raise such claims on direct appeal or forfeit them.
See 22 Okla. Stat. §§ 1086, 1089; Walker v. State , 933 P.2d 327, 332 (Okla. Cr. App. 1997). As a result, the State argues that Mr. Cannon’s claims are procedurally barred. When questions of procedural bar are problematic, h owever, and the substantive claim can be disposed of readily, a fed eral court may exercise its discretion to bypass the procedural issues and reje ct a habeas claim on the merits.
See Romero v. Furlong , 215 F.3d 1107, 1111 (10th Cir. 2000). All but tw o of Mr. Cannon’s claims of ineffective trial counsel ar e clearly without merit, so we will dispose of them without regard to procedural b ar. We will then address the remaining two claims; after determining that these claims have potential merit, we-7-

will proceed to consider whether they are procedura lly barred and whether Mr. Cannon should have the opportunity to develop t he pertinent facts at an evidentiary hearing.
A. Meritless Claims Under AEDPA we may not grant Mr. Cannon’s applicati on for relief: with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim— (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). If, however, the state court did not adjudicate a claim on the merits, this court defers to any state-court fa ctual determinations, see 28 U.S.C. § 2254 (e)(1) ( “In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to th e judgment of a State court, a determination of a factual issue made by a State co urt shall be presumed to be correct.”), and addresses issues of law de novo , while reviewing the district court’s findings of fact for clear error. See LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). Because Mr. Cannon proceeds pro se, we construe his appellate brief liberally. See Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998).-8- 1. Detective’s testimony At trial the prosecution played a tape of a convers ation between Mr. Cannon and Detective Fultz, who had investigate d the crime scene. On the tape Mr. Cannon admitted killing the victim, but cl aimed that he had killed her in self-defense. After the tape was played, the prose cutor asked Detective Fultz, “Based on what the defendant was telling you and ba sed upon what you were seeing from the scene, what opinions did you form a bout what the defendant was telling you?” Tr. 764. Defense counsel objected t o this question as irrelevant. The court overruled the objection. Detective Fultz then answered, “I did not believe Mr. Cannon’s version of what had occurred.” Tr. 765. Mr. Cannon now argues that his trial attorney was i neffective for not objecting to the question on the ground that it cal led for improper opinion testimony. We reject this claim because we are bou nd by the OCCA’s determination on the merits that any error in admitting Fultz’s opinion was harmless. In resolving Mr. Cannon’s direct appeal, the OCCA wrote:

Even if we construed Fultz’ statement as an imprope r opinion telling the jury what to find, defense counsel atta cked Fultz on crossexamination because he could not produce any eviden ce of who started the fight, who had the knife first or any s tatements of the victim to disprove [Mr. Cannon’s] self defense clai m. Defense counsel’s attempts to expose the basis of Fultz’ co nclusion on crossexamination cured any error which could have result ed.”
Cannon , 961 P.2d at 846.-9-

Because the OCCA neither adjudicated the claim in amanner that was “contrary to, or . . . an unreasonable application of, clearly established Federal law” nor made its decision “based on an unreasonabl e determination of the facts,” we must deny relief. See 28 U.S.C. § 2254(d).

2. Doctor’s testimony Mr. Cannon claims that his trial counsel was ineffe ctive for failure to raise several objections to testimony by Dr. Hemphill, wh o examined the victim’s body. He contends that Dr. Hemphill (1) offered objection able testimony on the element of intent by declaring that the cause of death was “homicide”; (2) improperly testified that certain wounds on the victim were “d efense wounds”; (3) improperly testified that a necklace found at the scene could have caused some of the victim’s injuries; (4) lacked sufficient knowledge to testify; and (5) should have been cross-examined regarding the time of death. M r. Cannon also contends that counsel was ineffective for failing to object to th e prosecution’s mischaracterization of Dr. Hemphill’s testimony dur ing closing argument.

a. “Homicide” testimony Mr. Cannon complains that Dr. Hemphill was permitte d to testify that the cause of the victim’s death was homicide. The foll owing exchange occurred during direct examination of Dr. Hemphill: Q : And based on viewing what you viewed, did you f ormulate an opinion as to the manner of death?-10-

A: Yes. Q: And in your expert opinion, what was the manner o f death? A: Homicide.
Tr. at 881. On cross-examination the defense attorney followed up on this line of questioning: Q: Dr. Hemphill, you, uh, said that you have formulated the opinion that this was a homicide, right?
A: Yes. Q: Would you please define for me what you mean when you say homicide? A: Yes. Part of the Medical Examiner’s responsibili ty in investigating a case is to give an opinion as to the appropriate ma nner into which the death should be classified. Our report is incomple te without it. It’s only an opinion. It’s not a ruling. Nobody has to do anything based on it, but homicide, the way we use it, means that the death, in our opinion, the death was caused by the action of another person and that action was intended to cause harm and that’s all it means. Id. at 884-85 (emphasis added). On re-direct examination, the prosecutor asked, “An d is there anything that you thought about on cross examination that changes your opinion regarding your classification of [the victim’s] death as a homicid e, that being intended to cause harm?” The witness answered, “No, there isn’t.” I d. at 890.-11-

On recross-examination, the defense attorney asked, “Your definition of homicide includes the intent to cause harm?” The w itness answered “Yes.” Id. Whatever the basis of Mr. Cannon’s concerns about t his testimony, he has failed to show any possibility of prejudice. Dr. H emphill’s description of the cause of death as “homicide” was completely consist ent with Mr. Cannon’s theories of the case. There was no issue regarding Mr. Cannon’s intent to harm the victim. The only issues were whether he acted in self-defense and, if not, whether his culpability was only for manslaughter. See 21 Okla. Stat. § 711 (defining manslaughter as “homicide” “[w]hen perpet rated without a design to effect death, and in a heat of passion, but in a cr uel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide” or “[ w]hen perpetrated unnecessarily either while resisting an attempt by the person kil led to commit a crime, or after such attempt shall have failed”). Neither defense theory excludes an intent to cause harm. b. “Defense-wound” testimony Mr. Cannon argues that his trial counsel should hav e objected to Dr. Hemphill’s testimony that certain wounds on the victim were “defense wounds.” First, he asserts that the testimony cons tituted “unfair surprise,” because Dr. Hemphill’s expert report did not so cla ssify the wounds. Aplt. Br. at-12-

6. To the extent that Mr. Cannon is contending that his counsel should have raised a constitutional objection to the testimony on the ground that he was not warned of the testimony in advance, he does not exp lain, nor do we perceive, how his contention survives the proposition that “[t]he re is no general constitutional right to discovery in a criminal case . . . .” Weatherford v. Bursey , 429 U.S. 545, 559 (1977). There was also no meritorious state-law objection available to his counsel. Oklahoma law requires the State, upon req uest by the defense, to disclose expert reports “including results of physi cal or mental examinations and of scientific tests, experiments, or comparisons.” 22 Okla. Stat. § 2002(A)(1)(d). But it does not require that everything to which an expert testifies be contained in the expert’s report. Cf. Fed. R. Civ. P. 26(a)(2)(B) (requiring retained experts to prepare a report “contain[ing] a complete statementof all opinions to be expressed and the basis and reasons therefor”); Fed . R. Crim. P. 16(a)(1)(G) (at defendant’s request, the government must provide a written summary of expert testimony to be used during its case-in-chief at tr ial). In particular, the expert’s report need not contain all the expert’s ultimate c onclusions. See, e.g. , Pierce v.
State , 786 P.2d 1255, 1262-63 (Okla. Crim. App. 1990). Mr. Cannon’s trial counsel was not ineffective for failing to object t o the testimony as “unfair surprise.”-13-

Second, Mr. Cannon contends that Dr. Hemphill’s re ference to certain wounds as “defense wounds” was improper ultimate-op inion testimony. Under Oklahoma law, “opinion testimony which merely tells a jury what result to reach is inadmissible.” Romano v. State , 909 P.2d 92, 109 (Okla. Crim. App. 1995). But “expert witnesses can suggest the inference whi ch jurors should draw from the application of specialized knowledge to the fac ts,” id. , and “[t]estimony in the form of an opinion or inference otherwise admissibl e is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” 12 Okla. Stat. § 2704. Here, Dr. Hemphill explained why he inferr ed that certain wounds likely resulted from trying to ward off an attack. Such t estimony is not barred by
Romano . Failure to object to this testimony as an “ultim ate opinion” did not constitute ineffective assistance of trial counsel.

c. Necklace testimony Mr. Cannon contends that trial counsel was ineffect ive because she failed to object to Dr. Hemphill’s testimony that some of the victim’s wounds could have been caused by a necklace. Mr. Cannon argues that because the necklace was never taken into custody by the police and beca use Dr. Hemphill saw only photographs of the necklace, his testimony was beyo nd the scope of his personal knowledge.-14-

Dr. Hemphill was asked to explain what could have c aused some injuries to the victim’s neck. He answered:

These are a type of blunt injury, so by definition, they’re caused by a blunt or semi-sharp object being dragged across the skin. As to what could have done this, fingernails could do this. There w as a small necklace found at the scene, which I was shown pictures of and tol d about, that could have conceivably caused some of these. The necklace was broken. If the assailant grabbed it, for example, and pulled or tw isted it in anyway [sic], slipping around could have caused some of this. Tr. at 874. We see no ground for proper objection to this testimony. Mr. Cannon does not dispute that a necklace had been found at the scene of the crime. Nor does he explain why the depiction of the necklace i n the photograph provided an inadequate foundation for Dr. Hemphill to infer that it could have caused the injury. An expert may express an opinion based on factual evidence provided by others. See 12 Okla. Stat. § 2703.

d. Knowledge of the victim’s body Mr. Cannon argues that Dr. Hemphill lacked the pers onal knowledge necessary to testify in the case. On recross-exami nation Mr. Cannon’s trial counsel asked Dr. Hemphill, “When this case was bro ught to you, what all did you know? Anything you haven’t testified to?” Tr. at 891. Dr. Hemphill responded, “Well, I don’t have an independent recollection. I can only tell you what my investigator had written out by the time I saw the body for the first time. . . .” Id. Mr. Cannon contends that this testimony demonstrate s that Dr. Hemphill lacked-15-

sufficient personal knowledge to form his opinion o f the cause of death. We disagree. The quoted testimony related only to what Dr. Hemphill knew before examining the victim’s body. It is clear from the record that Dr. Hemphill actually performed a medical examination that provi ded the basis for his testimony.
e. Time of death Mr. Cannon argues that Dr. Hemphill’s estimate of t he period during which death occurred was inconsistent with the testimony of prosecution witnesses who placed him away from the murder scene during that p eriod. Apparently he is contending that his counsel should have cross-exami ned Dr. Hemphill on this point. But the time of death was not a critical is sue in the case (Mr. Cannon did not have an alibi defense) and the cross-examinatio n of Dr. Hemphill was successful in several other respects. Decisions on how to question a witness are generally committed to counsel’s discretion. See United States v. Snyder , 787 F.2d 1429, 1432 (10th Cir. 1986) (“Counsel’s select ion of questions is a matter of ‘strategic choice,’ as to which [s]he has broad lat itude.”). We hold that counsel’s failure to cross-examine Dr. Hemphill regarding the time of death did not constitute ineffective assistance of counsel.

f. Closing argument-16-

Mr. Cannon contends that counsel was ineffective fo r failing to object to statements made by the prosecution during closing a rgument as mischaracterizing Dr. Hemphill’s testimony. As set forth earlier, Dr . Hemphill testified that cuts on the victim’s hands were defensive wounds. On cross -examination, Mr. Cannon’s attorney elicited that there could be other explanations for the cuts—that they could be consistent with Mr. Cannon’s claim that he acted in self-defense. On redirect examination the prosecution asked: “[Defe nse] [c]ounsel asked you about possible causes of injuries. After you liste ned to her questions and you thought about your answers, is it still your best e xplanation within your training and experience, that it’s still consistent, in youropinion, to classify the major wounds to her hands as defensive wounds?” Tr. 889- 90. The doctor responded that he would still classify the wounds as “defensi ve wounds.” Id. at 890. During closing the prosecutor recounted this testim ony. He stated: “[F]inally I had to stand up on redirect and say, w ell, [did] all those questions [the defense counsel asked] change your opinion one iota ? [And the doctor answered] No.” Id. at 928. Mr. Cannon seems to argue that this descr iption mischaracterized the doctor’s testimony. Although we agree that the prosecutor did not describe the testimony verbatim, his description was not cau se for objection.

3. Cross-examination of Sheena Elliott-17-

Mr. Cannon argues that counsel rendered ineffective assistance by failing to cross-examine Sheena Elliott adequately. He points to inconsistencies between her preliminary hearing testimony and her trial tes timony. We agree that several statements she made at the preliminary hearing were inconsistent with statements made at trial. Most notably, Ms. Elliott testified at the preliminary hearing that the last time she saw Ms. Clark alive was on Thursd ay, February 2, 1995; but at trial she testified that this occurred on Friday, F ebruary 3—the day of the homicide. It is not, however, always the best trial strategy to exploit every inconsistency in the statements of a witness, even a witness called by opposing counsel. To some extent, Ms. Elliott’s testimony w as consistent with Mr. Cannon’s defense and was referred to favorably in his counsel’s final argument. Mr. Cannon has not shown that defense co unsel’s strategy with respect to cross-examining Ms. Elliott was so unreasonable as to constitute ineffective assistance of counsel.

4. Failure to impeach other prosecution witnesses an d call a witness Mr. Cannon argues that he received ineffective assi stance of counsel because his trial counsel failed to impeach three o ther prosecution witnesses: Detective Fultz, Adrian Collins, and Betty Scott. He also suggests that trial counsel should have called the victim’s mother to t estify.-18-

With respect to Detective Fultz, Mr. Cannon contend s that the officer’s conduct belied his trial testimony that he did not believe Mr. Cannon when Mr. Cannon gave his version of events in their tele phone conversation. On February 16, over a week after he spoke with Mr. Ca nnon on the telephone and examined the homicide scene, Detective Fultz reques ted lab work to determine whether Mr. Cannon’s blood was found at the scene. Mr. Cannon asserts that this request demonstrates that Detective Fultz was not a s “solidly grounded in his opinion as he portrayed himself to be on February 7 th.” Aplt. Br. at 14. The contention is frivolous. An investigator’s decisio n to pursue important evidence is hardly inconsistent with the investigator’s beli ef in the strength of the evidence already obtained. There was nothing inadequate abo ut trial counsel’s failure to cross-examine on this matter. Adrian Collins, a friend of Mr. Cannon’s, testified that he drove Mr. Cannon to the bus station, and he identified a pair of bloody sneakers found in the victim’s apartment as belonging to Mr. Canno n. Mr. Cannon asserts that trial counsel should have impeached Mr. Collins usi ng his “extensive criminal record.” But Mr. Cannon fails to provide sufficien t information about that criminal record to determine whether impeachment would have been po ssible under the applicable Oklahoma rule of evidence, 12 Okla. Stat. § 2609 (allowing-19-

impeachment by use of criminal convictions in certa in situations). Furthermore, it appears that Mr. Collins did not testify to anythin g worth impeaching. Betty Scott, Mr. Cannon’s mother, testified on vari ous matters, including the telephone call from her son in Michigan after h e had killed the victim. Mr. Cannon asserts that trial counsel should have i mpeached her by eliciting that she was in possession of a stolen cell phone. We d isagree. Such a gratuitous attack on a client’s mother is unlikely to be helpf ul. Mr. Cannon also argues that “trial counsel should h ave called Sharonda Clark’s mother, Phyllis Lacy[,] to testify as to a recent phone call she received from Sharonda in which Sharonda told her mother how happy she was in her relationship with Mr. Cannon.” Aplt. Br. at 14. W e observe, however, that such testimony may have undermined his theory that the v ictim was the aggressor. Moreover, expecting a mother to testify favorably f or the defendant who admittedly killed her daughter would surely be risky trial strategy. We reject Mr. Cannon’s claim that his counsel was i neffective because of failure to cross-examine or call these witnesses fo r the purposes he suggests.

5. Failure to introduce evidence For his fifth claim of ineffective assistance, Mr. Cannon states only, “Trial counsel’s failure to introduce evidence or reveal e xistence of evidence was-20-

ineffective assistance of counsel in capital murderprosecution.” Aplt. Br. at 15. In the absence of any further explanation of the cl aim, we must reject it.

6. Failure to consult (call) necessary experts Mr. Cannon contends that trial counsel improperly f ailed to consult or call experts to assist at his trial. Stating that the only expe rt called by trial counsel was a doctor who testified during sentencing regard ing future dangerousness, he argues that “[t]rial counsel should have sought the assistance of a neuropsychiatrist, blood-spatter expert, medical-ex aminer expert, and self-defense expert in order to present [his] defense.” Id. The doctor called by the defense to testify during sentencing was a neuropsychologist. It is not apparent to us, nor h as Mr. Cannon indicated, what helpful testimony would, or even could, have been e licited by any of the additional experts he suggests. On this record we cannot say that trial counsel was ineffective for failing to engage additional experts. (Nor has Mr. Cannon provided any basis for ordering an evidentiary hear ing on the matter.)

7. Failure to elicit and argue facts relevant to sel f-defense Mr. Cannon states that “[e]vidence of Sharonda Clar k’s violent and aggressive tendencies, particularly towards men, th ough available was not presented.” Id. at 16. Under 12 Okla. Stat. § 2404(a)(2), an accu sed may offer evidence of a pertinent character trait of the vict im.-21-

Nevertheless, Mr. Cannon has failed to show that any additional helpful testimony was available. In an affidavit he states : “Tamoura Cannon[] lived with Sharonda Clark and her husband, Kelly Clark[,] for a period of time. Ms. Cannon had personal knowledge of Sharonda Clark’s violent tendencies toward her husband. This would have supported brief testimonyof Agnes Clark to the same effect .” Pro Se Application for Post Conviction Relief, Exh. 1 at 3 (emphasis added). It is therefore worth reviewing Agnes Clark’s testi mony on the matter: Q: Okay. Was she [the victim] ever violent with you ?
A.: No. Q: Did you ever see her get into fights or arguments or be aggressive? A: Yes, once. Q: Okay. Describe that for us. A. Well, she was angry like anyone else, you know, a ngry, and had an argument, and that was it. Q: Did you ever see her anger draw her to come to bl ows with anyone or aggressively attack anyone because of her anger? A: Well, yes, I’ve seen her get mad. Yes, I’ve see n her get mad. Q: At who? A.: At her husband. Q: Would you characterize it as anything out of the ordinary?-22-

A: No. Tr. at 710-11. Additional testimony “to the same e ffect” would not have helped Mr. Cannon. We therefore reject this argument. Mr. Cannon also asserts that trial counsel was inef fective for not offering evidence that bruises on the victim’s wrists were c onsistent with “[Mr. Cannon’s] grabbing her wrist while she possessed the knife in her hand.” Aplt. Br. at 16. This evidence, he argues, would have been consisten t with the victim’s being the aggressor and would have supported his claim of sel f-defense. The record, however, reveals no failure by defense counsel in t his respect. Trial counsel vigorously cross-examined the medical examiner in a n effort to get him to admit that many of the victim’s wounds were consistent wi th Mr. Cannon’s theory of self-defense. In particular, trial counsel questio ned the medical examiner about whether bruises on the victim’s forearm were consis tent with Mr. Cannon’s grabbing her forearm. During closing argument coun sel said, “The external circumstances that I see are a bruise right here, c onsistent with grabbing and stopping Sharonda from attacking with a knife.” Tr . at 915. Counsel appears to have done exactly what Mr. Cannon claims she did no t do. Additionally, Mr. Cannon argues that trial counsel should have offered evidence of cuts on Mr. Cannon’s hands, which were consistent with defending himself against someone with a knife. But the offi cer who arrested Mr. Cannon-23-

in Michigan testified that he did not see any injur ies on Mr. Cannon’s hands or anywhere on Mr. Cannon’s body at the time of arrest . In an attempt to impeach the officer, trial counsel elicited testimony that the lights were dim during the arrest and that the officer’s attention was focused elsewhere. She also made this point during closing argument. Mr. Cannon does notindicate what more his trial counsel could have done.

8. Failure to invoke the rule of sequestration Mr. Cannon claims that trial counsel was ineffectiv e because she failed to invoke the rule of sequestration, which prevents wi tnesses from being in the courtroom while other witnesses are testifying. Th is, he argues, “allowed the prosecution witnesses to sit and listen to each oth er testify and specifically craft their own testimony to prejudice [him].” Aplt. Br. at 21. Yet Mr. Cannon fails to allege which witnesses were present during other wi tnesses’ testimony, making it impossible to determine whether there was good caus e for the witnesses to be present (for example, the principal case agent is o ften permitted to be present at the counsel table to assist throughout the trial, s ee 12 Okla. Stat. § 2615 (providing rule of sequestration and listing except ions); Dyke v. State , 716 P.2d 693, 697-98 (Okla. Cr. App. 1986) (construing statute to include case agent as exception to rule of sequestration)), or whether any prejudice could have resulted. There is no support for a claim of ineffective assi stance on this ground.-24- 9. Presentation of manslaughter defense Mr. Cannon claims that trial counsel violated his c onstitutional rights by arguing a defense of manslaughter in addition to se lf-defense. Mr. Cannon asserts that he wished to argue only self-defense at trial but “[t]rial counsel, over repeated objections by Mr. Cannon[,] presented and argued a manslaughter defense against Mr. Cannon’s will.” Aplt. Br. at 2 4. He contends that inclusion of a manslaughter defense undermined his self-defen se claim because the two are logically inconsistent. We disagree. In his affidavit of January 27, 1999, Mr. Cannon st ated: 4. In closing arguments trial counsel presented and argued a theory of manslaughter over the objections of the p etitioner. Petitioner did not desire or wish that a theory of manslaughter be presented on his own behalf. Trial counsel was aware of Petitioner’s desire and ignored it. Petitioner onl y desired that a theory of self-defense be argued on his own behal f. Trial counsel also included manslaughter in it[s] jury in structions over the objection of the petitioner. Petitioner w as prejudiced by this act of counsel because the prosecution used it against the petitioner in closing arguments. This option w ouldn’t have been available if trial counsel hadn’t presented itover petitioner[’]s objections. There is such a thing a s not guilty by reason of self-defense but there is no such thing a s not guilty by reason of manslaughter. 5. By arguing a theory of manslaughter, trial counse l made an admission of guilt on petitioner’s behalf. Trial c ounsel has no due authority to make any admission of guilt on behalf of the petitioner without petitioner[’]s consent. . . . Pro Se Application for Post Conviction Relief, Exh. 1 at 6.-25-

Although self-defense is a complete defense to firs t-degree murder, justifying an acquittal, whereas manslaughter is on ly a lesser offense, the two theories are not contradictory or logically inconsi stent. On the contrary, they are complementary. “It is the general rule that passio n resulting from fright or terror may be sufficient to reduce a homicide from murder to manslaughter and such a killing may be closely akin to a killing in self-de fense.” See Wood v. State , 486 P.2d 750, 752 (Okla. Crim. App. 1971). A homicide may be found to be manslaughter when the killing was motivated by the defendant’s belief that he was in great danger, “even if he was not warranted in such belief or where the slayer although acting in self-defense was not hims elf free from blame.” Id. Thus, some courts and commentators refer to manslau ghter as an “imperfect” selfdefense—that is, although the defendant cannot sati sfy all the elements of selfdefense, he is less culpable because he can satisfy some of the elements. See 2 Wayne R. LaFave, Subst. Crim. L. § 10.4(i) (2d ed. 2003). Trial counsel, by arguing both theories, essentiall y asked the jury to find self-defense, but if the jury could not do so, to f ind manslaughter. The argument did not concede Mr. Cannon’s guilt in any fashion. Whether to argue a lesserincluded offense is a matter to be decided by couns el after consultation with the defendant. See ABA Standards for Criminal Justice 4-5.2 Cmt. at 2 02 (3d ed. 1993) (omitting statement appearing in 1980 second edition that client decides-26-

whether to seek submission to jury of lesser-includ ed-offense instruction). We reject this claim of ineffective assistance.

10. Right to proceed pro se Mr. Cannon claims that trial counsel denied him the right to proceed pro se on direct appeal. A defendant has a constitutional right to represent himself, even if doing so would be detrimental to his defense. S ee Faretta v. California , 422 U.S. 806, 834 (1975). Mr. Cannon asserts that tria l counsel was aware of his desire to proceed pro se on appeal but failed to in form the judge. The record reveals, however, that any failure by trial counsel in this regard did not cause him any prejudice. He had the opportunity to inform bo th the judge and appellate counsel of his desire to represent himself on appea l. The following exchange occurred at sentencing on Ma rch 26, 1996: The Court: Are you ready for sentencing, Mr. Cannon?
Mr. Cannon: Yes. The Court: Do you have anything to say before senten cing?
Mr Cannon: No. The Court: Mrs. Conway, do you have anything to say before

sentencing? Mrs. Conway: No, sir. The Court: All right. It will be the judgment of th e Court that the

defendant be sentenced to die by administration of intravenous injection and I will set the time for-27- sentencing, which is merely a formality, on the 23r d day of May, 1996, at midnight. The public defender’s office is hereby appointed to represent the defendant for purposes of appeal. Mr. Cannon, do you have any funds with which to hir e your own attorney? Mr. Cannon: Not at the moment. The Court: Well, do you have any relatives or anyone that plans on

hiring your own attorney? Mr. Cannon: I haven’t got to talk to them yet. The Court: You haven’t got to talk to them yet. Wel l in the

meantime, I will appoint the Public Defender’s Offi ce here in Tulsa to represent you. If you get money o r if your family can get the money and can hire another attorney, so be it, but up until that time the Publ ic Defender’s Office is responsible for representing y ou for purposes of appeal. Mr. Cannon, what is your birth date? Tr. at 1240-41. Mr. Cannon fails to explain why he could not have informed the judge of his desire to proceed pro se during the ex change regarding who would represent him on appeal. Moreover, Mr. Cannon has not alleged that he informed appellate counsel of his desire to proceed pro se, yet almost two years elapsed between the date he was sentenced and the date his appeal was argued before the
OCCA. Mr. Cannon also contends that he filed timely appli cations to proceed pro

se on direct appeal but he was denied the right to do so because the court clerk-28-

mishandled his applications. The record belies thi s assertion. Whether the clerk mishandled his applications was of no consequence. Mr. Cannon’s letters to the OCCA clerk were dated March 5, 1998, and March 11, 1998—approximately one month after his direct appeal had been heard at ora l argument on February 10, 1998. Thus, his applications to proceed pro se on direct appeal were too late for any action by the OCCA. Although Mr. Cannon asserts that he had previously sent a letter requesting to proceed pro se, he offers no specifics about that letter, such as when he sent it. Furthermore, other than an affidavit attached to hi s reply brief to this court, the record contains no reference to such a letter. The refore, we can properly ignore this assertion.
B. Claims with Possible Merit We now turn to two claims that may be meritorious. Mr. Cannon claims that trial counsel was ineffective for failing to n otify the court of improper contact between prosecution witnesses and jurors du ring trial recesses, and for usurping his decision whether to testify in his own defense. The OCCA has never addressed the merits of either claim. Mr. Cannon d id not raise the claims on direct appeal to the OCCA; and when he raised them in post-conviction proceedings, the OCCA held them to be procedurally barred because they had not been raised on direct appeal. As we proceed to exp lain, however, (1) each claim-29-

has merit if Mr. Cannon’s factual allegations turn out to be supported by persuasive evidence; (2) whether the claims are pro cedurally barred depends on findings that the district court must make on reman d; and (3) if there is no procedural bar, Mr. Cannon is entitled to a hearin g at which he can further develop evidence supporting his failure-to-testify claim and may be entitled to such a hearing on his improper-contact claim. We b egin by discussing the merits of each claim, then procedural bar, and finally the propriety of an evidentiary hearing with respect to each claim.

1. Merits of the claims a. Improper juror contact Mr. Cannon alleges that counsel was ineffective forfailure to inform the court of improper contact between prosecution witne sses and jurors during trial recesses. His affidavit of January 27, 1999, submi tted to the OCCA as part of his post-conviction collateral attack, states:

1. Trial counsel failed to take action or request a hearing concerning improper outside influences on the jury. Petitioner became aware that Larry Salzman, father of State witness Pam Salzman and himself an endorsed State witness, had improper contact with trial juro rs during the trial. Petitioner believes in good fait h that the following persons have actual knowledge that su ch contact did occur, that trial counsel was made awar e of this improper contact, and failed to take proper st eps to alert the court or remedy prejudicial influences up on the jury at trial.-30- 2 Hamon Sallis, Lee Sallis, Betty Cannon, Tamoura Cannon, and Wade Johnson all witnessed improper contact between Larry Salzman and one or more of th e trial jurors. These witnesses were also present wh en trial counsel was advised of the contact between Mr. Salzman and the trial jurors and would further corroborate Petitioner’s testimony that trial couns el was aware of the improper contacts and did nothing. An evidentiary hearing is the only means necessary to discover the actual content of communications betwe en Mr. Salzman and the jury and determine the extent o f prejudice to petitioner. 3. These same witnesses also saw State witness Awann a Simpkins communicate verbally with jurors during a recess, at which time Ms. Simpkins made a statement that Petitioner had raped her. These witnesses wou ld also testify that trial counsel was aware of this i mproper contact between the witness and the trial jurors bu t failed to make a record of the incident before the court or take other measures to determine the impact of t he communication on members of the jury. An evidentia ry hearing is necessary to present this evidence and summon witnesses to testify concerning the prejudic ial impact of these errors. Pro Se Application for Post Conviction Relief, Exh. 1 at 4. Mr. Salzman was listed by the prosecution as a potential witness, a lthough he did not testify. Ms. Simpkins testified during the trial’s sentencin g phase. In a pleading entitled “Request for Appointment of an Investigator” filed simultaneously with and referenced by his § 2254 application, Plaintiff sup plemented the affidavit by stating that Ms. Simpkins’ rape accusation occurred during the guilt phase of the-31-

trial. See Bryan v. Mullin , 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc) (evidentiary hearing justified in part by allegatio ns in habeas application). If the allegations in Mr. Cannon’s affidavit are tr ue, he was likely rendered ineffective assistance of counsel, because of the p robability that proof of such juror contact would have entitled him to relief fro m the trial court. If trial counsel was in fact informed about improper juror c ommunications and did nothing, such inaction would appear to satisfy Stri ckland ’s first prong. As for Strickland ’s prejudice prong, in Remmer v. United States , 347 U.S. 227, 229 (1954), the Supreme Court held:

In a criminal case, any private communication, cont act, or tampering directly or indirectly, with a juror duri ng a trial about the matter pending before the jury is, for obvious reas ons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the partie s. The presumption is not conclusive, but the burden rests heavily upo n the Government to establish, after notice to and hearing of the de fendant, that such contact with the juror was harmless to the defendan t. See United States v. Scull , 321 F.3d 1270, 1280 n.5 (10th Cir. 2003). Althou gh this court has declined to apply Remmerin a § 2254 proceeding to determine whether jury contact was prejudicial, see Crease v. McKune , 189 F.3d 1188, 1193 (10th Cir. 1999), that is not the issue before us. The question here is not whether we would find that the contact was prejudicial but whether the state court would have found prejudice had trial counsel raised the i ssue. If the state court had-32-

applied Remmerto the facts alleged by Mr. Cannon, it very likely would have found prejudice. Unfortunately, there is no defini tive Oklahoma decision adopting or rejecting Remmer . The only reference in reported Oklahoma cases to the Supreme Court decision is a case distinguishing , but not criticizing, Remmer

. See Silver v. State , 737 P.2d 1221, 1224 (Okla. Crim. App. 1987). In this circumstance we believe the proper course is to ass ume that the Oklahoma court would have found Supreme Court authority to be pers uasive, or, in any event, would have presumed prejudice here from an inflammatory allegation of rape and the other alleged improper communications. Accordingly, if Mr. Cannon’s assertions are true, h e was likely prejudiced by his counsel’s inaction. Whether Mr. Cannon has a meritorious claim will depend, however, on whether he is entitled to an ev identiary hearing on this claim and whether such a hearing elicits persuasive evide nce supporting his assertions.

b. Right to testify Mr. Cannon alleges that trial counsel would not all ow him to take the stand in his own defense, despite his unequivocal express ion of the desire to do so. The district court construed Mr. Cannon’s allegations t hat he was denied the right to testify as an ineffective-assistance claim. Other courts also treat such claims as ineffective-assistance claims. See, e.g. , United States v. Teague , 953 F.2d 1525, 1534 (11th Cir. 1992) (en banc) (“the appropriate v ehicle for claims that the-33-

defendant’s right to testify was violated by defens e counsel is a claim of ineffective assistance of counsel”). We agree thatMr. Cannon’s claim is best treated as an ineffective-assistance-of-counsel cla im and analyze it as such. Mr. Cannon’s affidavit to the OCCA states in releva nt part:

1. In more than one pre-trial conference petitioner informed trial counsel that the petitioner wished t o testify on petitioner’s own behalf. Trial counsel was against this decision. Through the course of sever al pretrial discussions concerning this issue petitioner would never relent or change his position and desire to t estify on his own behalf. Trial counsel also refused to r elent or change the position of being against petitioner’ s desire to testify on his own behalf. At the beginn ing of trial petitioner reiterated to trial counsel his de sire to testify on his own behalf. 2. Upon petitioner[’]s request to trial counsel to t estify on his own behalf, trial counsel became enraged and abandoned [her] previous finesse technique and wentto an aggressive bulldog approach and responded to petitioner, “Judge Hopper assigned me to represent this case and I am the captain of the ship and I make al l decisions concerning this case and I say you’re notgoing to testify, besides our witness list is already in and you are not on it so you couldn’t testify anyway.” Pet itioner still maintained his wish to testify. 3. When the State rested it[ ]s case and the Judge c alled for the defense to present it[ ]s side, Petitioner started to fix his jacket to get ready to take the witness stand t o testify on his own behalf. Trial counsel was well aware of the petitioner[’]s wish to testify. In order to purpos ely sabotage and subvert petitioner’s right to testify on his own behalf when the Judge called for the defense, t rial counsel quickly sprang out of the chair and said th at the defense rests in order to cut the petitioner off[,] full well-34- knowing the petitioner couldn’t afford an[] inciden t in front of the jury. Petitioner’s grandparents, Hamo n Sallis, Lee Sallis; sister Tamoura Cannon, Mother B etty Scott (note: State Witness) and friend Wade Johnson all had prior knowledge of Petitioner’s wish to testifyon his own behalf and would testify to such knowledge if called to do so by the court. Pro Se Application for Post Conviction Relief, Exh. 1 at 5-6. A criminal defendant has a constitutional right to testify in his own behalf at trial. Rock v. Arkansas , 483 U.S. 44, 49-52 (1987). The decision whether to testify lies squarely with the defendant; it is notcounsel’s decision. Jones v.
Barnes , 463 U.S. 745, 751 (1983). Defense counsel should inform the defendant that he has the right to testify and that the decis ion whether to testify belongs solely to him. See Teague , 953 F.2d at 1533-34. Counsel should also discuss with the defendant the strategic implications of ch oosing whether to testify, and should make a recommendation to the defendant. See id. Yet counsel lacks authority to prevent a defendant from testifying in his own defense, even when doing so is suicidal trial strategy. See United States v. Janoe , 720 F.2d 1156, 1161 & n.10 (10th Cir. 1983). If Mr. Cannon’s affidavit is true, then counsel dep rived him of the constitutional right to testify in his own defense. Such a dereliction of duty by counsel would satisfy the first prong of Strickland

.-35-

As discussed above, Strickland ’s second prong—prejudice—is established if there is a reasonable probability that defendant ’s testimony would have raised in a juror’s mind a reasonable doubt concerning his guilt. Strickland , 466 U.S. at 694-95. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. We recognize that the jury had already heard a recording of Mr. Cannon’s account of Sharon da Clark’s death in his telephone conversation with Detective Fultz. In li ght of the physical evidence and other testimony, the jury rejected Mr. Cannon’s account. We can be skeptical that the jury’s view would have been changed by hea ring Mr. Cannon’s live testimony, particularly in light of what could have been elicited on crossexamination. Nevertheless, the recorded account was hardly seaml ess. The recording contains long periods of silence (perhaps from edit ing the tape) and the 22-page transcript contains 64 “inaudibles.” Such interrup tions in the narrative could impact its persuasiveness. We are also cognizant o f the power of a face-to-face appeal. Most importantly, however, Mr. Cannon’s te stimony would be of particular relevance to the claim presented by his trial attorney that his acts constituted only manslaughter. Even when the objec tive evidence appears to preclude a self-defense claim, the jury might still harbor a reasonable doubt whether Mr. Cannon actually believed that he was in danger, see Wood v. State ,-36-

486 P.2d 750, 752 (Okla. Crim. App. 1971) (homicide may be found to be manslaughter where killing was motivated by defenda nt’s “belie[f] that he was in great danger, even if he was not warranted in such belief or where the slayer although acting in self-defense was not himself fre e from blame”), or was aroused by passion, see Cipriano v. State , 32 P.3d 869, 874 (Okla. Crim. App. 2001) (listing elements of heat-of-passion manslaughter). Mr. Cannon’s testimony, and his demeanor while testifying, could have special s ignificance to the jury on this

matter. We conclude that the issue of prejudice is of suffi cient doubt that it should not be resolved in the first instance by this court . On remand, resolution of the merits of the claim (which, of course, would not be necessary if the claim is procedurally barred) will require the district court to resolve factual disputes regarding whether Mr. Cannon’s attorney actually pr evented him from testifying and, if so, whether Mr. Cannon suffered the requisi te prejudice. (Although the question is very close, we do not treat footnote 10 in the district court’s opinion as dispositive on this point. The footnote recites the harm to Mr. Cannon that would have resulted from his testifying. The footn ote does not, however, address whether his testimony would have been helpful on th e manslaughter issue; nor does it state that absence of prejudice from not te stifying is an alternative ground for the court’s ruling. We note that the state’s appellate brief makes no reference-37-

to the footnote. In the circumstances, we think itprudent that our remand for further consideration include this issue as well as the jury-contact issue.)

2. Procedural bar “On habeas review, this court does not address issu es that have been defaulted in state court on an independent and adeq uate state procedural ground, unless the petitioner can demonstrate cause and pre judice or a fundamental miscarriage of justice.” English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). A procedural ground is “independent” if it is based on state, rather than federal, law. See id. at 1259 & n.2. That is indisputably the case here , where the OCCA refused to hear Mr. Cannon’s ineffective-assistance claims because they had not been raised on direct appeal, as required by Oklaho ma law. For a state rule of procedural default to be “adequ ate,” several conditions must be satisfied. To begin with, it “must be appl ied evenhandedly in the vast majority of cases.” Id. at 1259. That is not an issue on appeal. In addi tion, however, a rule is not “adequate” to bar a claim of ineffective assistance of trial counsel: unless the state procedures comply with the imperat ives set forth in Kimmelman [v. Morrison , 477 U.S. 365 (1986)]: (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) providing a procedural mechanis m [on direct appeal] whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.-38-

English , 146 F.3d at 1263. We now address this two-part t est, beginning with the requirement that “separate” counsel be available on appeal.

a. “Separate” counsel As previously set forth, Mr. Cannon was representedat trial by two attorneys from the Tulsa Public Defender’s office. He was represented on direct appeal by another attorney from the same office. M r. Cannon argues that two attorneys who work in the same Public Defender’s of fice cannot be considered “separate” counsel within the meaning of English . He further alleges that his appellate counsel had a policy of not arguing ineff ective assistance of trial counsel in cases tried by the Public Defender’s off ice. Mr. Cannon’s allegations raise serious concerns und er English . The requirement that trial and appellate counsel differderives from two considerations. First, a defendant, on his own as a layman, will “ordinarily be unable to recognize counsel’s errors and to evaluat e counsel’s professional performance.” Kimmelman , 477 U.S. at 378. Second, a lawyer who renders ineffective assistance at trial will likely be hesi tant to raise his own trial inadequacies on appeal, or even inform the client o f any inadequacies. That second consideration may still have force when distinct lawyers handle the trial and appeal but the two are profess ionally aligned. If a criminal defendant is represented by trial and appellate cou nsel from the same office,-39-

appellate counsel’s assessment of trial counsel’s p erformance may be less than completely objective. An understandable, although inappropriate, regard for collegiality may restrain appellate counsel from id entifying and arguing trialattorney error. We note that two lawyers from the same private law firm are often treated as one for conflict-of-interest purposes. See Restatement (Third) of the Law Governing Lawyers § 123 & cmt. d (iv) (2000) (“ Restatement”) (discussing imputation of conflicts among affiliated lawyers an d noting that the “rules on imputed conflicts and screening . . . apply to a pu blic-defender organization as they do to a law firm in private practice in a simi lar situation”); Martinez v. Sullivan , 881 F.2d 921, 930 (10th Cir. 1989) (assuming thattwo law partners should be considered as one attorney for conflict-o f-interest purposes). When an appellate attorney argues ineffective assistance of trial counsel, he is arguing that the trial attorney—who may have an office down the hall—“was not a reasonably competent attorney,” Strickland , 466 U.S. at 687 (internal quotation marks omitted), and that trial counsel’s representation w as so bad that it was not within “the range of competence demanded of attorneys in c riminal cases.” Id. (internal quotation marks omitted). Arguing ineffective assi stance with respect to a colleague’s performance is saying that the performa nce was not only inferior, but unreasonable. These are indeed bold statements to make about a co-worker. Presenting an ineffective-assistance-of-counsel cla im may well damage the-40-

reputation of the trial attorney and the office forwhich both trial and appellate counsel work. In our view, whether trial and appellate attorneys from the same “office” should be deemed “separate” counsel will turn on th e specific circumstances. A statewide public defender’s office with independentlocal offices, and perhaps even a distinct appellate office, would not raise t he same concerns as when trial and appellate counsel work in adjacent rooms. Cf. Restatement § 123 & cmt. e (for conflict-of-interest purposes, lawyers who share office space may be considered conflicted). The culture of an office c an also make a substantial difference. A history of raising ineffective-assis tance claims could allay

concerns. Of particular importance here is the allegation that appellate counsel had a policy of not claiming ineffective assistance by pu blic defenders at trial. Although Mr. Cannon has presented no sworn affidavi t asserting the policy, the record is strongly suggestive. On direct appeal fr om Mr. Cannon’s conviction, appellate counsel raised 24 issues—including six cl aims of plain error. See
Cannon v. State , 961 P.2d at 846, 848, 849, 850, 854. Under Oklah oma law, plain errors are “errors which counsel failed to preserve through trial objection but which, upon appellate review, are clear from the re cord and affect substantial rights.” Valdez v. State , 900 P.2d 363, 369 n.6 (Okla. Crim. App. 1995). Y et-41-

appellate counsel failed to assert that trial couns el had been ineffective in not objecting to any of these allegedly plain errors. Especially in light of what is at stake in a death- penalty case, and given appellate counsel’s willingness to raise so many (2 4) other alleged errors, we find it striking that appellate counsel never argued that trial counsel had been ineffective for not objecting to a “clear” error th at “affect[ed] substantial rights.” Id. Often, even ordinarily, one would expect a claim of ineffective assistance to accompany a claim of plain error. See State v. Rhodes , 657 N.W.2d 823, 839 n.7 (Minn. 2003) (noting similarities between plain err or and ineffective assistance and analyzing alleged errors under ineffective-assi stance framework); State v. Hansen, 61 P.3d 1062, 1067 n.2 (Utah 2002) (“When a party fails to preserve an issue for appeal, we will nevertheless review the i ssue if the appealing party can demonstrate plain error or exceptional circumstance s. The party may also assert ineffective assistance of counsel in failing to pre serve the issue.” (internal citations omitted)); State v. Crislip , 785 P.2d 262, 269 (N.M. App. 1989) (Hartz, J., concurring) (“Perhaps as a practical matter eve ry reversal predicated on plain error is a consequence of ineffective assistance of counsel.”); Morton Gitelman, The Plain Error Rule in Arkansas—Plainly Time for aChange , 53 Ark. L. Rev. 205, 217 n.66 (2000) (“abrogating the [plain error] doctrine in the criminal area may be even more compelling [than in civil cases] s ince any error that deprives a-42-

defendant of due process can more properly be remed ied by a claim of ineffective assistance of counsel”); 25 Ohio Jur. 3d Crim. Law § 59 (2003) (“The standard of prejudice required to be satisfied to establish ine ffective assistance of trial counsel for failure to object at trial is far more solicitous of a defendant's rights than the plain error standard applicable to conductnot complained of, and it is possible to raise an ineffective assistance claim w hen the plain error standard precludes a direct challenge to such conduct.”); Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure §11.10( d) & n.143 (2d ed. 1999 & Supp. 2004) (“courts have noted that the prejudice element of Stricklandmay be more readily satisfied than the . . . [comparable] component of the plain error standard”; citing cases). On the record before us, we would have to conclude that Mr. Cannon’s trial and appellate counsel were not “separate” within th e meaning of the word in English . On remand, however, the district court may grantthe State an evidentiary hearing that could establish otherwise.

b. Claim resolved on trial record Besides requiring “separate” counsel for trial and appeal, Englishalso states that Oklahoma’s procedural bar to ineffectiv e-assistance claims is adequate only if either (1) the claim could have been resolv ed based on the trial record alone, or (2) there existed at the time of direct appeal an adequate procedure to-43-

remand specific claims to the district court for supplementation of the record. English , 146 F.3d at 1263-64. The district court ruled th at Englishwas satisfied with respect to Mr. Cannon’s ineffective-counsel cl aims. Specifically with respect to the claim that Mr. Cannon was denied the right to testify, the court said that the claim“ can be resolved upon the trial record alone. The t rial record reveals that Petitioner did not testify on his own behalf[.] . . . [The] issue[] could have been raised on direct appeal without additiona l fact-finding[.]” R. doc. 81 at 22 (citation omitted). We have a different view. An out-of-courtroom communication to a juror would ordinarily not be reflected in the trial record. Nor would any discu ssion between Mr. Cannon and his attorney about testifying. The record reflects only that Mr. Cannon did not testify. It states nothing about who made the deci sion that he would not testify. Additionally, the state trial judge did not ask Mr. Cannon whether he wished to testify. Certainly, Mr. Cannon knew at the time of direct appeal that he had these claims. But the OCCA could not have resolved the i ssue s based on the trial record alone. Accordingly, Mr. Cannon’s claim s could not be procedurally barred unless Oklahoma had in place at the time of his appeal a p rocedure allowing supplementation of the record. See, e.g. , English , 146 F.3d at 1264-65. To rely on procedural bar, the State must establish on rema nd that Oklahoma law at the-44-

time of Mr. Cannon’s direct appeal would have allow ed him to supplement the trial record with evidence to support his claims th at counsel improperly failed to inform the court of outside juror influence and that he was denied the right to testify. Of course, even if the district court determines on remand that Mr. Cannon’s claims are not procedurally barred, he is not necessarily entitled to relief. A finding of no procedural bar means only that his claims are properly before the court. He must still prove that the cla ims are meritorious. We now consider whether Mr. Cannon is entitled to an evide ntiary hearing to establish the truth of his allegations.

3. Evidentiary hearing The enactment of AEDPA in 1996 restricted the autho rity of federal courts to grant evidentiary hearings in habeas cases. Und er the pre-AEDPA standard, a habeas petitioner was entitled to an evidentiary he aring in federal court if (1) “the facts were not adequately developed in the state co urt, so long as that failure [was] not attributable to the petitioner,” Medina v . Barnes , 71 F.3d 363, 369-70 (10th Cir. 1995), and (2) “his allegations, if true and not contravened by the existing factual record, would entitle him to habea s relief.” Bryan v. Mullin , 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc) (interna l quotation marks omitted). AEDPA changed the standard. It provides:-45-

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold a n evidentiary hearing on the claim unless the applicant shows that-- (A) the claim relies on– (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previ ously discovered through the exercise of due diligence; a nd (B) the facts underlying the claim would be sufficientto establish by clear and convincing evidence that but for constitu tional error, no reasonable factfinder would have found the applican t guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). “Under the opening clause of § 2254(e)(2), a failur e to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor , 529 U.S. 420, 432 (2000). If the prisoner did no t “fail[] to develop the factual basis of [his] claim in State court, § 2254 (e)(2) is not applicable and a federal habeas court should proceed to analyze whet her a[n evidentiary] hearing is appropriate or required under pre-AEDPA standards.” Bryan , 335 F.3d at 1214 (internal citations and quotation marks omitted). We agree with the district court that Mr. Cannon ha s not satisfied the AEDPA requirements set forth in § 2254(e)(2)(A) or (B). To determine whether-46-

pre-AEDPA standards apply, we must review whether M r. Cannon was diligent in trying to develop the factual record in state court

. The Supreme Court stated in Williams that “[d]iligence . . . depends upon whether the prisoner made a reasonable attempt, in light of the information at the time, to investigate and pursue claims in state cou rt.” 529 U.S. at 435. In prior cases in which the issue was raised, we have said t hat requesting an evidentiary hearing was sufficient to constitute diligence. Se e, e.g. , Boyd v. Ward , 179 F.3d 904, 925 & n.10 (10th Cir. 1999); Miller v. Champio n , 161 F.3d 1249, 1253 (10th Cir. 1998). But we have never stated a categorical rule that requesting an evidentiary hearing in state court ipso facto satis fies the diligence requirement. Indeed, the Supreme Court said in Williams , “Diligence will require in the usual case that the prisoner, at a minimum , seek an evidentiary hearing in state court in the manner prescribed by state law.” 529 U.S. at 4 37 (emphasis added). AEDPA speaks of failure “to develop the factual basis of a claim.” An evidentiary hearing is not the only means to accomplish that task. We have not had occasion in our prior opinions to address whether an applicant has demonstrated a lack of diligence in pursuing a claim by failing to utilize a means other than a hearing to develop the facts.-47-

But a sister circuit has. In Dowthitt v. Johnson , 230 F.3d 733, 758 (5th Cir. 2000), the Fifth Circuit held that sometimes dilige nce requires obtaining pertinent affidavits. The court wrote:

Dowthitt argues that he exercised due diligence bec ause he requested evidentiary hearings in state habeas proc eedings, and those requests were denied. Thus, he asserts that his fa ilure to develop his habeas claims are excused under § 2254(e)(2). We d o not agree. Mere requests for evidentiary hearings will not suf fice; the petitioner must be diligent in pursuing the factual developmen t of his claim. As the state habeas court found, Dowthitt did not p resent affidavits from family members and did not show that they "cou ld not be obtained absent an order for discovery or a hearing . " In response, Dowthitt now argues that his "proffers" of what wou ld be presented at a hearing constituted due diligence. We do not find his argument persuasive. Given that the family members were wil ling to testify at a hearing, Dowthitt could have easily obtained thei r affidavits. A reasonable person in Dowthitt's place would have atleast done as much. Dowthitt's arguments that lack of funding pr evented the development of his claims are also without merit. Obtaining affidavits from family members is not cost prohibit ive. Thus, Dowthitt has not rebutted the state habeas finding in this regard.
Id. We share the Fifth Circuit’s view. The federal dis trict court should not be required to conduct an evidentiary hearing on a cla im when the applicant for relief has not presented evidence that would be rea dily available if the claim were true. We now proceed to address whether Mr. Cannon established the necessary diligence.
a. Juror contact-48-

The allegations regarding improper juror contact co ntained in Mr. Cannon’s affidavit are all hearsay. The affidavit reference s no first-hand knowledge of any improper contact between witnesses and jurors. It states that family members and friends of Mr. Cannon have actual knowledge of the underlying events, and that they would testify to that knowledge at an evidenti ary hearing. Yet Mr. Cannon has not included affidavits by any of these family members or friends. A diligent person would have done as much, absent an impedimen t preventing him from doing so. Whether or not there was an impediment, however, wa s not litigated below. The district court did not make an explicit finding of fact regarding Mr. Cannon’s diligence. We therefore remand to the district cou rt the question whether Mr. Cannon was diligent in trying to develop the facts underlying his juror-contact claim. The court may take further evidence and may , in its discretion, conduct a hearing on the matter. If the district court deter mines that Mr. Cannon was diligent, he should be granted an evidentiary heari ng on the merits of his jurorcontact claim (if it is not procedurally barred).

b. Right to testify Mr. Cannon’s affidavit, in which he alleges trial c ounsel usurped his decision whether to testify, provides a first-hand account of events based on his own personal knowledge. The only people who know t he truth of Mr. Cannon’s-49-

allegations are Mr. Cannon and his trial counsel. Mr. Cannon requested an evidentiary hearing on this issue in state court. We cannot see what more he could have done to pursue development of the record . Hence, he satisfies the diligence requirement. Under pre-AEDPA law he is e ntitled to an evidentiary hearing regarding the merits of the issue. In sum, we reverse and remand with respect to Mr. C annon’s claims that he was denied effective assistance of counsel when cou nsel (1) failed to notify the court of improper juror contact and (2) prevented h im from testifying at trial. Whether Mr. Cannon will ultimately prevail on eithe r claim will depend on such matters as whether his claims are procedurally barr ed, whether his evidence in support of the claims is persuasive, and whether he is entitled to an evidentiary hearing to develop further evidence. We leave to t he discretion of the district court the most efficient method of proceeding. C. Alleged Ineffectiveness of Appellate Counsel Finally, Mr. Cannon asserts that his appellate coun sel was ineffective for failing to pursue on appeal the claims he now raise s regarding ineffectiveness of trial counsel. Of course, appellate counsel is har dly ineffective for failure to pursue meritless claims, see Hawkins v. Hannigan , 185 F.3d 1146, 1152 (10th Cir. 1999); so we need address only the failure to pursu e the two ineffective-trialcounsel claims that we have already said may have m erit.-50-

With respect to those two trial-counsel claims, how ever, we are remanding to the district court for further proceedings that may moot the ineffectiveappellate-counsel claims if the district court reso lves the trial-counsel claims on the merits (either denying relief because they do n ot have merit or granting relief because they do). Therefore, we remand the corresp onding two ineffectiveappellate-counsel claims for further consideration by the district court.
IV. CONCLUSION We AFFIRM the district court’s judgment in all resp ects except that we REMAND to that court the issues whether Mr. Cannon is entitled to relief (1) because his trial attorney (a) failed to inform the court of improper juror contact or (b) denied him the right to testify in his own d efense, or (2) because his counsel on direct appeal failed to pursue these two claims of ineffectiveness of trial counsel. The issues before the district court will be procedural bar, Mr. Cannon’s diligence in pursuing the factual deve lopment of his juror-contact claim in state court, the merits of Mr. Cannon’s co ntentions, and whether any violation of Mr. Cannon’s constitutional rights was harmless. Resolution of some issues may moot others, so we leave to the districtcourt’s discretion the manner in which to proceed.No. 03-5008, Jemaine Monteil Cannon v. Mike Mullin

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

I concur in the court’s opinion, with three excepti ons. We recently noted that: District courts are entitled to some latitude with regard to evidentiary hearings, and the standard is higher than notice pl eading. District courts are not required to hold evidentiary hearing s in collateral attacks without a firm idea of what the testimony w ill encompass and how it will support a movant’s claim. United States v. Cervini , – F.3d–, –, No. 03-6144, 2004 WL 1790026, at *5 ( 10th Cir. Aug. 11, 2004). Remanding this case is comple tely inconsistent with these principles–the court remands for an evidentiary hearing on claims that were not presented to the federal district court, or not pre sented and supported adequately. I. Failure to Testify I would reject (on the merits) the ineffectiveness claim based upon Mr. Cannon’s failure to testify. As the district courtheld, Mr. Cannon cannot show prejudice. Mr. Cannon’s theory of self defense was presented to the jury based upon his own account (the recording) and a hearsay account by his mother. Tr. 669-81. As noted by the district court, Although the Court finds this issue is procedurally barred, a review of the record reveals that Petitioner would not hav e benefitted, indeed would have been seriously harmed, by testify ing on his own behalf. Had he testified, the prosecution could have emphasized the deficiencies in Petitioner’s “self defense” story. Cross examination would most likely have exposed the facts that Petit ioner was a prison-2-

escapee at the time of the murder, that he was prev iously convicted of a violent crime against a former girlfriend, that he suffered only minor injuries, if any, during the incident in ques tion while the victim suffered multiple, fatal stab wounds, and th at his victim was only 5’5” tall, 125 pounds while Petitioner is over6’ tall. R. Doc. 81 at 21 n.10. Mr. Cannon never explained how his testimony would have differed from the account presented to the jury and how it would have countered the items mentioned by the district court . Mr. Cannon does not argue that his testimony was necessary for a manslaughterdefense–to the contrary, Mr. Cannon argues that trial counsel was ineffective fo r presenting a manslaughter defense against Mr. Cannon’s will. See Ct. Op. at 24-26. This court remands the prejudice inquiry because ( 1) the quality of the tape and transcript may have affected its persuasiveness , (2) the court is cognizant of the power of a face-to-face appeal, (3) Mr. Cannon’ s testimony would be pertinent to the manslaughter defense that Mr. Cann on does not want, and (4) the district court’s discussion concerning the likely h arm of Mr. Cannon testifying (a) does not address the manslaughter defense, (b) does not explicitly state that the absence of prejudice from not testifying is an alternative ground for its holding, and (c) is not referenced by the state’s appellate brief. None of these reasons are persuasive. First, the court simply has given us no facts that were likely to be adduced by Mr. Cannon’s testimony that were not already bef ore the jury given the-3-

recording and the hearsay testimony of his mother. The court’s statement that the recording and transcript may not have been persuasi ve because of the technical quality of the recording is pure speculation. It i s far more likely that the jury rejected Mr. Cannon’s defenses given the victim’s s evere injuries and the lack of any serious injury to Mr. Cannon. It is not enough to note the power of a face-toface appeal without placing that appeal in the cont ext of the troubling facts and searching cross-examination that would followed Mr. Cannon’s direct testimony. The prejudice inquiry must be made based upon the w hole record, and what has been presented simply does not establish a reasonab le probability that the outcome in this case would have been different. Relying upon the possible benefit of Mr. Cannon’s t estimony to a manslaughter defense, as the court does, is complet ely improper. Mr. Cannon has taken the position in these proceedings that he doe s not want a manslaughter defense. The fact that we hold that counsel was no t ineffective for presenting such a defense cannot undo Mr. Cannon’s insistence, which would surely be urged at any retrial in which he might testify. See Pro Se Aplt. Br. at 22 (“Mr. Cannon would like the court to note that Mr. Cannon firmly asserts a claim of self defense.”), 25 (“There can be a finding of notguilty by reason of selfdefense but there is absolutely no such thing as no t guilty by reason of manslaughter.”).-4-

The district court was hardly required to address w hether Mr. Cannon’s testimony would have been helpful on the manslaught er defense given Mr. Cannon’s disavowal of that defense and his understandable failure to rely on it (both at the district court and this court) in pres enting this claim. The only reasonable reading of the district court’s conclusi on that Mr. Cannon would not have benefitted and indeed would have been harmed b y his own testimony is that Mr. Cannon was not prejudiced. That the district c ourt did not identify its discussion as an alternative holding is hardly surp rising because it is so obvious–after reciting that the claim was procedura lly barred, the district court then explained that it had reviewed the record and what its conclusions were–this is a merits-based holding in the alternative. The fact that the state’s appellate brief does not rely on the district court’s alternative holding is of no moment–the state argues that Mr. Cannon’s arguments on appeal are new and that these claims are procedurally barred. Regardless, we are bound to review the district court’s opinion supporting the judgment, regardless of whet her the parties rely upon it. II. Improper Juror Contact Insofar as the ineffectiveness claim based upon imp roper juror contact, I would reject it as procedurally barred. The claim either was not fairly presented in its entirety to the OCCA or not developed adequately before the OCCA or the federal district court. The district court summari ly rejected this claim based upon-5-

Mr. Cannon’s failure to provide supporting facts, argument and authority. Doc.
81 at 19. Mr. Cannon’s affidavit to the OCCA alleges “imprope r contact” between Larry Salzman, who did not testify, and one or more “trial jurors” and that sentencing phase witness Awanna Simpkins told the j urors at a recess that Mr. Cannon had raped her. The “improper contact” groun d is nothing but a conclusion devoid of specifics about who, where, wh en and what. As to the second ground, Ms. Simpkins did indeed testify “He [Mr. Cannon] raped me,” in the sentencing phase. Only in his federal petition did Mr. Cannon claim that the Simpkins “he raped me” comment came in the guilt ph ase. Thus, Mr. Cannon did not fairly present this claim (with its focus on th e guilt phase) to the state court; it is unexhausted and procedurally defaulted. See Picard v. Connor , 404 U.S. 270, 276 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). Mr. Cannon has not shown cause and prejudice or a fundamental miscarriage of justice that would excuse this default. See Murray v. Carrier , 477 U.S. 478, 485, 495 (1986). Moreover, having named five witnesses to the improp er contacts, I agree with this court that Mr. Cannon should have provide d affidavits to the OCCA on post-conviction. Certainly by the time he filed hi s federal petition, they should have been provided if he expected an evidentiary he aring. Federal courts are not-6-

required to hold hearings (even if a petitioner was diligent) without some idea of why the petitioner would be entitled to relief. Cervini , – F.3d at –, 2004 WL 1790026 at *5. This means a description of the fac ts (even if contested) that would entitle the petitioner to relief. Where the record has not been developed, the burden is on the petitioner to demonstrate thathe (1) was not at fault for failing to develop the state court record or (2) me ets the conditions of 28 U.S.C. § 2254(e)(2); if this burden is not met, the distri ct court should not hold an evidentiary hearing. See Holland v. Jackson , 124 S.Ct. 2736, 2738 (2004). Because Mr. Cannon has not explained how he satisfi es these conditions, I would not remand the diligence issue to the district court. C. Remmer Presumption Finally, the Remmer presumption the court suggests that the OCCA would apply to the improper juror contact claim is a rule of federal criminal procedure, not federal constitutional law, and this court has declined to apply it in the habeas context. Vigil v. Zavaras , 298 F.3d 935, 941 n.6 (10th Cir. 2002); Crease v.
McKune , 189 F.3d 1188, 1193 (10th Cir. 1999). Although t he OCCA rejected the improper juror contact claim on the basis of proced ural bar and we are analyzing the merits for the first time, Mr. Cannon should no t be aided by a presumption that is a matter of federal criminal procedure. Th ough the OCCA once cited
Remmer and then distinguished it, Silver v. State , 737 P.2d 1221, 1224 (Okla. Ct.-7-

Crim. App. 1987), that hardly suggests that the OCC A would adopt such a categorical rule given our treatment of it in the h abeas context and its dilution or abrogation in the federal context. See United States v. Scull , 321 F.3d 1270, 1280 n.5 (10th Cir.) (“We note that this circuit an d others have questioned the appropriate breadth of Remmer’s presumption of prejudice rule, postulating the standard should be significantly narrowed, or replaced altogether.”), cert. denied , 124 S. Ct. 175 (2003); United States v. Sylvester , 143 F.3d 923, 933-34 (5th Cir. 1988) (concluding that Remmer presumption has not survived).