# CANNON v. GARMAN

> District Court, E.D. Pennsylvania · March 29, 2022

URL: https://www.frixlaw.com/law-library/cases/10403096

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 29, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONTE CANNON, :
Petitioner : CIVIL ACTION
y.
SUPERINTENDENT GARMAN ef al, : No. 19-09
Respondents :
MEMORANDUM LY
PRATTER, J. Marc , 2022
Donte Cannon seeks habeas relief in federal court after his conviction for second-degree
murder in state court. He raises six challenges, four of which he previously raised in state court,
He did not raise the other two in the state court first, which makes them procedurally defaulted.
way, all six challenges have no merit. Thus, after a full review the Court will adopt the
Report and Recommendation of Magistrate Judge David R. Strawbridge and deny Mr. Cannon’s
petition.
BACKGROUND
A. The Conviction
On the night of January 23, 2010, Donte Cannon was at Shandee Stewart’s house, where
the two discussed a plan to rob Philippe Koukoui, who had previously sold Ms, Stewart marijuana. !
Mr. Cannon called Aaron McCallum, who came to Ms. Stewart’s house, and the three of them
discussed a plan to rob Mr. Koukoui. The plan was that Ms. Stewart would call Mr. Koukoui to
buy marijuana; Mr. Cannon and Mr. McCallum would wait in the basement of the house until Mr.
Koukoui left; and they would then rob him on the street. Enacting this plan, Ms. Stewart called

| Unless otherwise noted, the facts recounted here are a summary of those set forth in the Pennsylvania
Superior Court opinion, Commonwealth v. Cannon, No, 1342 EDA 2012, 2014 WL 10575196 (Pa. Super.
Ct. Sept. 8, 2014),

Mr. Koukoui, who arrived with a friend named James Henderson. Mr. Koukoui and Mr.
Henderson stayed for 10 minutes and then left.
After Mr. Koukoui and Mr. Henderson left, Ms. Stewart saw Mr. McCallum and Mr.
Cannon, each holding a gun, approach the other two on the street. Mr. McCallum grabbed Mr.
Henderson by his shirt while Mr. Cannon grabbed Mr. Koukoui by his shirt. Mr. Henderson began
running and Mr. McCallum shot at him. Ms. Stewart then heard more gunshots. The police later
found Mr. Koukoui dead, lying face down with gunshot wounds to the back of his head and neck.
The police took Mr. Cannon to the Homicide Division office to take his statement. In his
signed statement, Mr. Cannon admitted that he and Mr. McCallum followed the two men outside
to rob them and fought with them. He stated that he knew Mr. McCallum likely had a gun and
that he heard four to five gunshots. He also stated that Mr. McCallum called him afterwards to
ask him if anyone was shot and that Mr. Cannon told Mr. McCallum that someone was dead.
Ms, Stewart, Mr. Cannon, and Mr. McCallum were charged with various crimes including
robbery and murder. Ms. Stewart pled guilty to two counts of robbery and conspiracy, and the
prosecutor nolle prossed the murder charge. Her plea agreement required her to testify at Mr.
Cannon and Mr. McCallum’s trial, and provided that the agreement would become null and void
if she provided false testimony. Doc. No. 18, at 78.
Mr, Cannon and Mr. McCallum were tried jointly before ajury in 2012. At trial, a witness
for the Commonwealth named Cory Williams testified that he had been with Mr. McCallum on
the night of Mr. Koukoui’s death and that Mr. McCallum had left for around 20 minutes, but later
returned and said that a man was dead. The Commonwealth also introduced Mr. Cannon’s
confession. When the confession was read to the jury, specific references to Mr. McCallum were
redacted and read as “the other guy.” Cannon, 2014 WL 10575196, at *13 n.1.

Both Mr. Cannon and Mr. McCallum were convicted of second-degree murder, criminal
conspiracy, two counts of robbery, and related firearms crimes. They both were sentenced to life
without the possibility of parole. /d. at *1.
B. State Appeals
Mr. Cannon filed a direct appeal with the Pennsylvania Superior Court, challenging the
weight and sufficiency of the evidence, as well as the decision not to sever the trials for the two
defendants, the admission of his co-defendant’s confession to Mr. Williams over his objection,
opinion statements in the prosecutor’s closing argument, the prosecutor’s use of an autopsy
photograph during closing argument, the admission of forensic reports of phone records, and denial
of courtroom entry of his friends and family members during two of the closing speeches. Cannon,
2014 WL 10575196, at *10. The Superior Court affirmed the judgment, and the Pennsylvania
Supreme Court denied allowance of appeal.
Mr. Cannon filed a timely pro se PCRA petition, which he subsequently amended through
counsel. In his pro se PCRA petition, he alleged that his trial counsel was ineffective on various
grounds: failing to accurately describe reasonable doubt to the jury; failing to object to the
introduction of his marijuana conviction; failing to object to testimony that his co-defendant often
carried a gun; failing to challenge a witness’s false testimony about Ms. Stewart’s plea deal;
eliciting impermissible opinion testimony from a police detective; failing to secure a bench warrant
to compel the presence and testimony of an alibi witness; failing to challenge the erroneous denial
of trial severance; and failing to object to the expression of an opinion in closing argument, PCRA
Pet. {10 (Jan. 19, 2016). In his counseled amended petition, Mr. Cannon narrowed his claims and
added a claim for failure to introduce Ms. Stewart’s mental health evaluation.

The PCRA court dismissed the PCRA petition on the merits. Mr. Cannon appealed based
on the reasonable doubt description; false testimony about Ms. Stewart’s plea deal; Ms. Stewart’s
mental health evaluation; introduction of his marijuana conviction; and a “cumulative prejudice
argument.” Commonwealth v. Cannon, No. 1809 EDA 2017, 2018 WL 2978381, at *1-2 (Pa.
Super. Ct. June 14, 2018). The Superior Court affirmed the dismissal. /d. at *1. The Pennsylvania
Supreme Court denied allowance of appeal on November 20, 2018. Commonwealth v. Cannon,
197 A.3d 1176 (Table) (2018).
C. Federal Habeas
Mr. Cannon then filed this federal habeas petition pursuant to 28 U.S.C. § 2254. He asserts
the following grounds: (1) trial counsel was ineffective for failing to properly explain the
“reasonable doubt” standard to the jury; (2) appellate counsel was ineffective for failing to
challenge the admission of “false statements” by both Ms. Stewart’s counsel and the trial court
regarding the terms of Ms. Stewart’s plea agreement; (3) trial counsel was ineffective for failing
to introduce Ms. Stewart’s mental health evaluation as evidence of her mental impairment; (4) Mr.
Cannon’s Sixth Amendment rights were violated when the trial court admitted evidence of his co-
defendant’s confession over his express objection, as set out in Bruton v. United States, 391 US.
123 (1968); (5) trial counsel was ineffective for failing to object more thoroughly to the admission
of the co-defendant’s confession; and (6) trial counsel was ineffective for failing to request that
the trial court give a “corrupt source” instruction to the jury regarding Ms. Stewart’s testimony.’
In his Report and Recommendation, the Magistrate Judge ruled that Mr. Cannon had
procedurally defaulted his fifth and six claims and that all six were meritless. Doc. No. 36.

2 In his objections to the Report & Recommendation, Mr, Cannon also mentions an argument that a police
detective did not provide written proof of Miranda warnings and that “his inculpatory statement to police
was involuntary and the product of a prolonged and exhausting interrogation.”’ Doc. No. 44, at 1.
However, Mr. Cannon did not raise this issue in his habeas petition or at either round of direct or collateral

Magistrate Judge Strawbridge recommended denying Mr. Cannon’s petition without issuing a
cettificate of appealability. Mr. Cannon filed objections after obtaining an extension of time and
of the page limit. Doc. Nos. 38, 42. He also filed a motion for appointment of counsel. Doc, No.
45. The Commonwealth did not respond to Mr. Cannon’s objections.
LEGAL STANDARDS
Federal courts can receive habeas petitions from state court prisoners, but only in limited
circumstances. The prisoner must first have “exhausted the remedies available in” state court. 28
U.S.C. § 2254(b)(1)(A). If a prisoner misses an important procedural step in state court, and the
state court refuses to hear the petition on its merits because of it, the prisoner has procedurally
defaulted his claims. Davila v. Davis, 137 S, Ct. 2058, 2064 (2017). If the prisoner “failed to
mect the State’s procedural requirements,” he “has deprived the state courts of an opportunity to
address the merits of those claims in the first instance.” /d (internal quotation marks omitted).
Thus, the state court’s denial “based on an adequate and independent state procedural rule”
precludes federal review. /d.
To overcome this procedural default, the prisoner must show that he had good “cause” for
his failure to follow state procedures and that he experienced “prejudice” from the underlying
constitutional violation, Coleman v. Thompson, 501 U.S. 722, 750 (1991). Otherwise, the prisoner
must show that it would be a “fundamental miscarriage of justice” for the federal court not to hear
his petition because he is “probably” “innocent.” Jd. at 748 (internal quotation marks omitted).
If the claim was adjudicated on the merits in state court, habeas relief can issue only if
adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable

review in state court. To the extent he intended to assert a new habeas claim in his objections based on
introduction of his self-incriminating statements, he has procedurally defaulted such a claim. He has not
overcome the procedural default for the reasons set forth in Section V, infra.

application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d).
DISCUSSION
In his petition, Mr. Cannon raised six constitutional claims, all based on the Sixth
Amendment. The Magistrate Judge’s Report and Recommendation found each meritless, In his
objections, Mr. Cannon continues to claim the same violations, The Court conducts “de novo”
review of the Magistrate Judge’s ruling. 28 U.S.C. § 636(b)(1)(C).
The Court begins with Mr. Cannon’s Confrontation Clause claims and then addresses his
various ineffective assistance of counsel claims.
I. Confrontation Clause Claims
Mr. Cannon argues that the trial court violated the right established by the Supreme Court
in Bruton v. United States, 391 U.S. 123 (1968), by allowing testimony about his co-defendant’s
confession. Mr. Cannon properly exhausted this claim, so the Court will address it on the merits.
In Bruton, the Supreme Court held that a defendant’s constitutional rights are violated
when a co-defendant’s confession implicates the defendant, even if a limiting instruction is given
by the trial court to consider the confession only against the co-defendant. 391 U.S. at 126. ‘Then,
in Richardson v. Marsh, 481 U.S. 200, 208 (1987), the Supreme Court recognized a “narrow
exception” to Bruton, where it held that “the Confrontation Clause is not violated by the admission
of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant's name, but any reference to his or her
existence.” In recognizing this exception, the Supreme Court distinguished between confessions

that name the defendant and those that become incriminating only when linked with evidence
properly introduced at trial. Jd.
Here, Mr. Cannon’s name was not mentioned at any point during Mr. Williams’s
testimony. Mr. Williams testified, in relevant part, as follows:
[Mr. McCallum] was on Beaumont. He was waiting for the guy to come, The
guys came, He hopped out on the guys. One guy took off. Shots got fired. The
other guy, he got grabbed, he got threw to the ground. Shots got fired. He
ended up dead. That’s the story.
The Superior Court found that this recitation of Mr. McCallum’s confession was redacted
to exclude any reference to another perpetrator, and the jury was instructed to consider Mr.
Williams’s statement as only against Mr. McCallum. Cannon, 2014 WL 10575196, at *9-10.
Review of the trial transcript confirms that Mr. Williams made no reference to Mr, Cannon, aside
from Mt. Williams stating at the beginning of his testimony that he did not know Mr. Cannon.
Mar. 26, 2012 Trial Tr. at 74:5-104:3.
Pointing to the redacted confession’s use of the phrase “the other guy,” Mr. Cannon argues
that Mr. Williams’s testimony could suggest that Mr. Cannon was the shooter, analogizing to
Vasquez v. Wilson, 550 F.3d 270 (3d Cir. 2008). In Vasquez, the Court of Appeals held that a use
of “the other guy” in a redacted reference to the defendant was too obvious to qualify as a proper
redaction under Bruton. Id. at 279-81. Mr. Cannon argues that the prosecutors in his case made
the same mistake and substituted his name with “the other guy.” Doc. No. 4, at 3-4. But, as the
R&R explains, “the other guy” referred to the person who died (Mr. Koukouri), not Mr. Cannon.
Doc. No. 36, at 24 & n.15.
Even if the confession does not directly identify another shooter, Mr. Cannon argues, Mr.
Williams’s statement “interlocked” with the other facts presented, necessarily implicating him and
prejudicing the jury, Cannon, 2014 WL 10575196, at *10. However, the Supreme Court has

expressly rejected this theory in Richardson. The fact that Mr. Williams’s testimony about Mr.
McCallum’s confession could be linked to other evidence properly introduced at trial implicating
Mr. Cannon does not render the confession’s admission a violation of the Confrontation Clause.
Richardson, 481 U.S. at 208, Thus, the Confrontation Clause clatm lacks merit, and the Court will
overrule Mr. Cannon’s objection to the R&R on this claim.
Additionally, Mr. Cannon complains that his counsel did not object more thoroughly to the
admission of Mr. McCallum’s confession through Mr. Williams’s testimony. This claim is
procedurally defaulted because Mr. Cannon did not raise it on direct or collateral appeal and, for
the reasons discussed below, he does not overcome this default. Even so, the claim would fail on
the merits because Mr. Williams’s testimony was admissible and Mr. Cannon’s objections under
Bruton lack merit. Trial counsel cannot be found ineffective based on the failure to pursue a
meritless objection. See, e.g., United States v. Sanders, 165 F.3d 248, 253 3d Cir, 1999).
Additionally, the allegation that trial counsel did not sufficiently object to Mr. Williams’s
testimony is belied by the record. Mr. Cannon’s trial counsel objected and requested a sidebar on
this very topic at the beginning of Mr. Williams’s testimony, and then moved for a mistrial
immediately after the testimony based on the alleged violation of Mr. Cannon’s right to
confrontation. Doc. No. 36, at 28; Mar. 26, 2012 Trial Tr. at 78:12-81:13, 104:20—-105:20.
Therefore, the allegation that counsel committed error on this basis fails.
Ik. Reasonable Doubt Instruction
Next, Mr. Cannon calls his counsel ineffective in dealing with several issues. But he has
not shown that his counsel’s tactical decisions were unreasonable or unschooled, Strickland, 466
U.S. at 687-88. Nor has he shown a “reasonable probability” that, had counsel done what Mr.
Cannon now demands, Mr. Cannon would have been acquitted, /d. at 694.

Mr. Cannon asserts that his trial counsel was ineffective by improperly explaining the
“reasonable doubt” standard to the jury in his closing argument. Specifically, he claims that his
trial counsel used the terms “real” and “substantial,” thereby reducing the prosecution’s burden of
proof by requiring a higher degree of doubt than is required for acquittal under the reasonable-
doubt standard, citing Cage v. Louisiana, 498 U.S. 39 (1990). Doc, No. 44, at
Mr. Cannon’s trial counsel did not use the word “substantial” anywhere in his closing
argument, Doc. No. 36, at 11 n.6; Mar. 27, 2012 Trial Tr. 126:12-133:25 (Mar. 27, 2012), but he
did state that “[ilt’s got to be a real doubt .. . something important,” id. at 128:6-7. That
description, in isolation, was not constitutionally ineffective. As the Superior Court explained in
rejecting this argument on the merits at the PCRA stage, Mr. Cannon takes the words out of context
from a seven-page description of reasonable doubt. Cannon, 2018 WL 2978381, at *4~5. Mr.
Cannon does not address this broader context of the closing argument description of reasonable
doubt. In any case, the trial court provided a jury instruction that accurately explained reasonable
doubt. Mar. 28, 2012 Trial Tr. 18:10-19:15. Therefore, Mr. Cannon has not established that his
trial counsel’s closing argument was unreasonable or that it prejudiced him.
Tl. Ms. Stewart’s Plea Agreement
Next, Mr. Cannon asserts that his appellate counsel failed to challenge the admission of
“false statements” by both Ms. Stewart’s counsel and the trial court regarding the terms of Ms.
Stewart’s plea agreement—-specifically, whether the murder charge against Ms. Stewart could be
reinstated if she provided false testimony. Doc. No. 1, at 10. Because the only instance in which
the trial court discussed whether the murder charge could be reinstated was during a sidebar
without the jury present, the R&R properly focused on the allegations regarding statements made
by Ms, Stewart’s counsel. Doc. No. 36, at 14 n.9; Mar. 23, 2012 Trial Tr. at 73:22—76:12.

On cross-examination of Ms. Stewart, Mr. Cannon’s trial counsel elicited testimony
suggesting that Ms. Stewart was only testifying as the prosecutor’s office wanted her to, out of
fear the murder charge could be reinstated. Mar. 22, 2012 Trial Tr. at 195:4-196:7. To rebut this
testimony, the prosecution called Ms. Stewart’s attorney, who testified that the plea agreement
required Ms. Stewart to testify truthfully and did not give the prosecutor the power to charge Ms.
Stewart “on [his] own” if “she didn’t testify the way [the prosecutor] wanted her to” testify. Mar.
23, 2012 Trial Tr. at 81:14-21, 82:2-12.
Mr. Cannon now argues that this testimony was false because Ms. Stewart’s murder charge
could be reinstated, and that his trial counsel should have objected. According to Mr. Cannon,
“Thjad the jury been unambiguously informed that Stewart could have been recharged with
homicide it may have chosen to disbelieve her testimony which probably would have led to a
different outcome in the proceedings.” Doc. No. 44, at 15 (emphasis added). But the testimony
of Ms. Sanders’s counsel was not inaccurate; the plea agreement shows that it is untruthful
testimony that could result in its rescission, not failure to testify the way the prosecutor wanted.
Doc. No. 18, at 78 912. And Ms. Stewart herself testified that she thought the murder charge
could be reinstated if she violated the agreement. Mar. 22, 2012 Trial Tr. at 195:17-24. Mr.
Cannon’s trial counsel drew out testimony that did in fact call Ms. Stewart’s credibility into
question. Based on these facts, Mr. Cannon’s appellate counsel was not unreasonable in declining
to challenge this particular point by Ms, Stewart’s attorney, and Mr. Cannon shows no prejudice
from counsel’s decision not to do so.
IV. Ineffective Assistance of Counsel Claims
Mr, Cannon also faults his trial counsel for not introducing Ms. Stewart’s mental health
evaluation as impeachment evidence. Ms. Stewart underwent a medical evaluation in April 2010

10

to determine whether she was competent to stand trial. Cannon, 2018 WL 2978381, at *5. The
examination found that her mental function was on the “borderline” or in the “mild” range of a
mental disability, but that “in spite of her intellectual and emotional limitations, [she] is capable
of taking part in legal proceedings.” Jd. at *5 (internal quotation marks omitted). Mr. Cannon
argues that his counsel should have impeached Ms. Stewart as a witness using this mental health
evaluation.
On PCRA review, the Superior Court rejected this claim, explaining that “only mental
health disabilities that impair a witness’s ability to observe, recall, or report events, are relevant
and admissible to impeach a witness’s credibility.” Jd. (quoting Commonwealth v. Davido, 106
A.3d 611, 637 (Pa. 2014)). Ms. Stewart’s evaluation did not reveal any such disability, and Mr.
Cannon has not pointed to one. The Superior Court’s ruling is not an unreasonable interpretation
of the facts or law.
Nonetheless, Mr. Cannon objects that, under his interpretation of Arkins vy, Virginia, 536
U.S. 304 (2002), “‘a person{’]s ‘mental status’ is highly relevant in court proceedings when it comes
to fundamental fairness.” Doc. No. 44, at 6. But Afkins concerned whether execution of mentally
disabled defendants violated the Eighth Amendment prohibition on cruel and unusual punishment.
536 US. at 321. Atkins does not address the issue here, which is that there was no evidence of a
mental disability related to Ms. Stewart’s ability to perceive or report events as a witness. In fact,
the Superior Court explained that the evaluation stated that Ms. Stewart had a “fairly good”
memory. Cannon, 2018 WL 2978381, at #5. Mr. Cannon does not contest this point. Therefore,
trial counsel was not unreasonable for not pursuing this line of questioning with Ms. Stewart.

Procedural Default
Finally, Mr. Cannon alleges that his trial counsel was ineffective for failing to request that
the trial court give a “corrupt source” instruction to the jury regarding Ms. Stewart’s testimony.
As with the ineffective assistance of counse! claim based on Bruton, Mr. Cannon did not raise this
complaint on either direct appeal or through his PCRA petition. He would now be barred from
raising this claim in state court by both the waiver and time bar provisions of the PCRA. See 42
Pa. C.S. 9543(a)(3), 9544(a)(2), 9545(b). This procedural error bars Mr. Cannon’s claim from
being heard on the merits because this Court cannot “consider claims that a state court refused to
hear based on an adequate and independent state procedural ground.” Davila, 1378. Ct. at 2062.
Mr. Cannon concedes that he procedurally defaulted the corrupt source claim and the Bruton
ineffective assistance of counsel claim, but argues that he can overcome this procedural default.
However, he has not done so.
A. Mr. Cannon has not shown that he is probably innocent
To start, Mr. Cannon asserts that it would be “a fundamental miscarriage of justice” not to
hear his claims on the merits because he is actually innocent of the crimes for which he was
convicted. Coleman, 501 U.S. at 750. In order to show a “miscarriage of justice”, the petitioner
must show his actual innocence with “new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented
at trial.” Schlup v. Delo, 513 U.S, 298, 324 (1995).

3 Although the statute allows tolling of the one-year period while timely petitions are pending, such tolling
would not render a new PCRA petition timely here (even setting aside the waiver provision), Mr, Cannon’s
judgment became final on February 11, 2015 when the Supreme Court denied his petition for allowance of
appeal. Cannon, 2018 WL 2978381, at *1. He then filed a timely PCRA petition on January 19, 2016, □□□
which was 342 days later. After the Pennsylvania Supreme Court’s later denial of allowance of appeal on
November 20, 2018, Commonwealth v, Cannon, 197 A.3d 1176 (Table) (2018), Mr. Cannon did not file
the instant habeas petition until January 2, 2019, which was another 43 days later. As a result, Mr. Cannon
is well over the one-year deadline even with statutory tolling.

12

Instead of offering new evidence, Mr. Cannon merely reasserts his defense at trial that he

was “inside a nearby dwelling when the crime occurred, and [remained] there after the crime and

even when police came to investigate hours later.” Doc. No. 4, at 2. He presents no new evidence
in support of this defense, nor does he address his confession to the police detective that he was
involved in the robbery (which directly contradicts his supposed alibi). Because he has not raised

a colorable claim of factual innocence, the claim remains procedurally defaulted.
B. Mr. Cannon has not shown cause or prejudice
Additionally, the default of a claim alleging ineffective assistance of trial counsel may be
excused by the ineffectiveness of habeas counsel where (1) the habeas counse!’s failure itself met
the standard for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984), and (2) the underlying ineffective assistance of trial counsel claim is “a substantial one,
which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez v.
Ryan, 566 U.S. 1, 14 2012).
Mr, Cannon argues that his collateral review counsel was ineffective and his underlying
claims are “substantial.” But Mr. Cannon has not shown that his defaulted claim has merit, and
therefore, it does not establish a substantial claim of ineffective assistance of counsel to excuse the
procedural default. Even if it was not procedurally defaulted, this claim would fail on the merits.
A corrupt source instruction is one given in a case “in which an accomplice implicates the
defendant,” so the court “instruct[s] the jury that the accomplice is a corrupt and polluted source
whose testimony should be considered with caution.” Commonwealth v. Williams, 732 A.2d 1167,
1181 (Pa. 1999). Mr. Cannon argues that his counsel should have requested such an accomplice
instruction related to Ms. Stewart’s testimony.

13

But the Pennsylvania Supreme Court has held that trial counsel is not ineffective in
deciding not to seek such an instruction where the defendant is asserting an innocence theory
because the corrupt source accomplice-based instruction would contradict this defense.
Commonwealth v. Karabin, 426 A.2d 91, 93 (1981). Here, Mr. Cannon’s defense was that he was
not involved in the shooting and was instead inside a nearby house. He continues to assert this
defense on an actual innocence theory to overcome his procedural default, “To request the
accomplice instruction could derogate that defense” because “the necessary implication would be
that [the defendant] participated in the criminal activity of which he claims to be innocent.” /d.
Attempting to reconcile his defense with this instruction, Mr. Cannon cites Delroy v.
McCullough, 53 F. App’x 199 (3d Cir. 2002), as a case where, according to Mr. Cannon, counsel

was found ineffective for not requesting a corrupt source instruction when the defendant asserted
that he was innocent. Doc. No. 44, at 8-9. But even in DeFoy, the court noted that “whatever
deficiencies there may have been in counsel’s performance did not affect the outcome of the trial”
because, in part, trial counsel elicited the purported accomplice’s motives for testifying on cross-
examination and the trial court provided instructions on witness credibility. Defoy, 53 F. App’x
at 200. So too here, Even if trial counsel should have requested the instruction (which, as a matter
of strategy, is debatable at most), trial counsel examined Ms. Stewart’s motives and her plea
agreement extensively in cross-examination, and the court instructed the jury on assessing witness
credibility. Mar. 22, 2012 Trial Tr. at 195:2-196:7; Mar. 28, 2012 Trial Tr. at 19:16-23:22.
Therefore, Mr. Cannon’s claim based on a “corrupt source” instruction would fail on the merits,
even if it was not procedurally defaulted.

14

VI. Appointment of Counsel
After filing his objections to the Report & Recommendation, Mr. Cannon also filed a
motion requesting the appointment of counsel. He asserted that he had thus far relied on the legal
assistance of fellow inmate who was about to be released. Doc. No. 45 47. Mr. Cannon’s motion
states that he “only went as far as the 12" grade in high school,” has not “had any formal training
in criminal law or otherwise,” and is unfamiliar with litigation. {J 8-10.
There is no constitutional right to counsel in habeas proceedings. Garza v. Idaho, 139 S.
Ct. 738, 749 (2019). However, counsel may be appointed to an indigent habeas petitioner where
the “interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). “In making this determination
the court should consider the complexity of the factual and legal issues in the case and the
petitioner’s ability to investigate facts and present his claims.” Hill v. Ferguson, 396 F. Supp. 3d
506, 529 (E.D. Pa. 2019). Counsel need not be appointed when the issues are “straightforward
and capable of resolution on the record’ . . . or the petitioner ‘had a good understanding of the
issues and the ability to present forcefully and coherently his conclusions.’” /d. (quoting Reese v.
Fulcomer, 946 F.2d 247, 264 (3d Cir. 1991)). Counsel also should not be appointed if the claim
lacks “arguable merit.” Tabron y. Grace, 6 F.3d 147, 156 (3d Cir. 1993).
Mr. Cannon has ably and fully presented his claims, and requested appointment of counsel
only after successfully obtaining an extension to the page limit for his objections and filing such
objections. Mr. Cannon has presented his claims coherently, including citations to case law, and
the claims are capable of resolution on the record without further need to investigate facts. Despite
Mr. Cannon’s articulate objections, his claims lack arguable merit. Therefore, the Court denies
Mr. Cannon’s late-stage motion to appoint counsel,

15

CONCLUSION
The Court overrules Mr. Cannon’s objections and adopts the R&R in full. The Court also
denies Mr. Cannon’s motion to appoint counsel, Because reasonable jurists would not “find it
debatable” that each of Mr. Cannon’s claims lack merit, the Court will not issue a certificate of
appealability. Slack v. McDaniel, 529 U.S. 473, 478 (2000). An appropriate order follows.

BY TH A,
.K. PRATTER
ITED STATES DISTRICT JUDGE

i6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403096. Public record. Not legal advice.