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Cannon v. Phelps

United States District Court, Third Circuit

June 21, 2013

ALLEN CANNON, Petitioner,

Allen Cannon. Pro se petitioner.

Elizabeth R. McFarlan, Delaware Department of Justice, Wilmington, Delaware. Counsel for Respondents.


GREGORY M. SLEET, District Judge.

Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Allen Cannon ("Cannon"). (D.I. 2) For the reasons discussed, the court will deny the petition.


On July 31, 2006, someone fired at least four shots at Terrence Dendy. State v. Cannon, Cr. ID No. 0607025498, Rep. & Rec., Parker, Cmm'r., at 1 (Del. Super. Ct. Aug 11, 2009). The target's father, Richard Dendy, witnessed the shooting. Both Terrence and his father Richard made the following contemporaneous statements to the police on the evening of the shooting. The day before the shooting, Terrence had a fight with the family of a girl who had used his car without permission. Terrence went to the girl's house to complain to her mother. Some type of altercation involving Cannon ensued following Terrence's complaint to the girl's mother. The next evening, Terrence drove his mother's car to a convenience store operated by his family on 10th Street in Wilmington. Terrence went to his car to retrieve a phone charger. Richard accompanied his son outside. While Terrence was crossing the street towards his car, Cannon came up and asked Terrence to return his chain, believing that Terrence had taken it the night before during the altercation following the complaint to the girl's mother about the car. Terrence told Cannon he did not have any chain, and then Cannon took out his gun and started firing shots at Terrence. Terrence ducked down behind the car for cover. Richard was standing close to Cannon and told him to stop firing the gun at his son and attempted to take the gun away from him. After firing the shots, Cannon ran away. Id. at 2-3.

That evening, Detective Looney from the Wilmington Police Department went to investigate the shooting incident. Richard went up to Detective Looney and advised him that "Messy shot my son." Messy was Cannon's nickname. Id. at 3. That same evening, at about 10 p.m., both Richard and Terrence Dendy voluntarily went to the police station to provide statements. These statements were videotaped. At the police station, Richard again unequivocally identified Cannon as the shooter, referring to Cannon by his nickname "Messy." Richard told the police that earlier that evening "Messy" walked up and said hello "Mr. Richie" and then asked Terrence if Terrence had his chain. Messy then pulled out a gun and started shooting at Terrence. Richard was standing right next to Messy and was grabbing at him trying to get the gun away but Messy kept stepping away. After firing five to six shots, four of which hit the car, Messy ran away. Id.

On the evening of the shooting, Terrence was reluctant to identify the shooter, and advised the police that under no circumstances was he going to testify in court. He did not want his name associated in any way with his statement to the police. He then stated that earlier that evening Cannon had accused him of having taken a chain during the altercation the night before. Terrence told the police his father stepped between the shooter and him to attempt to stop the shooting. Although he did not know Cannon's name or nickname, Terrence unequivocally identified Cannon as the shooter from a photo lineup in a matter of seconds. Id.

Richard and Terrence Dendy, however, changed their stories by the time of the trial in February 2007. Although neither denied making the prior statements, they alleged that they were not telling the truth on the night of the shooting when they identified Cannon as the shooter. Terrence testified that, sometime after the shooting, he told Cannon's attorney that Cannon was not the shooter, but did not contact the police or the prosecutor to give them that information. Terrence also testified that, while crossing the street towards the car to retrieve a phone charger, Terrence heard someone yell "watch out." He turned around, "saw the gun, " and ducked behind the car. When the shooting stopped, he got up and started running after the shooter, but did not catch him. Terrence testified that he did not get a good look at the shooter and did not know his identity. Id. at 4.

In turn, Richard testified that while his son was crossing the street towards the car, he stood in front of the store and Cannon passed by, greeted him, and started crossing the street. Richard then heard two shots. According to Richard, Cannon ran back toward him, after which someone fired three more shots. Richard then went over to the shooter and told him to stop firing the gun at this son. The shooter then ran away. Richard did not know the identity of the shooter. Id.

Because their testimony was factually incompatible with their previous statements to the police identifying Cannon as the shooter, Terrence and Richard explained to the jury why they had changed their testimony. Richard testified that he only got a brief glimpse of the shooter because he was focused on his son. Richard testified that he identified Cannon as the shooter because "people" told him that it was "Messy" (Cannon's nickname). He therefore took it for granted that Messy was the shooter but found out later that it was not Messy. Id.

Terrence also testified that he did not get a good look at the shooter and did not know his identity. He also explained that his statements to the police were based on "people" or "somebody" telling him that Cannon was the person who shot at him. Id.

On February 2, 2007, a Superior Court jury found Cannon guilty of first degree reckless endangering, possession of a deadly weapon during the commission of a felony ("PDWDCF"), and criminal mischief Cannon had previously waived his right to a jury trial on the charge of possession of a deadly weapon by a person prohibited ("PDWPP"), and the trial judge found him guilty of that charge after the jury entered its verdict. The Delaware Supreme Court affirmed Cannon's convictions and sentences on direct appeal. Cannon v. State, 2008 WL 1960131 (Del. May 6, 2008).

In February 2009, Cannon filed a motion for post-conviction relief under Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied. The Delaware Supreme Court affirmed that decision. Cannon v. State, 992 A.2d 1236 (Table), 2010 WL 1267751 (Del. Apr. 1, 2010).


A. The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "to reduce delays in the execution of state and federal criminal sentences... and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003). Pursuant to AEDPA, a federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards for analyzing the merits of a habeas petition in order to "prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).

B. Exhaustion and Procedural Default

Absent exceptional circumstances, a federal court cannot grant habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). AEDPA states, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

The exhaustion requirement is based on principles of comity, requiring a petitioner to give "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan , 526 U.S. at 844-45; Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the state's highest court, either on direct appeal or in a post-conviction proceeding, in a procedural manner permitting the court to consider the claims on their merits, Bell, 543 U.S. at 451 n.3; Castille v. Peoples, 489 U.S. 346, 351 (1989).

A petitioner's failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically exhausted, such claims are nonetheless procedurally defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state's highest court, but that court "clearly and expressly" refuses to review the merits of the claim due to an independent and ...

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