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Cannon v. Director

United States District Court, E.D. Virginia, Alexandria Division

May 28, 2019

William David Cannon, Petitioner,
v.
Director, Virginia Dep't of Corrections, Respondent.

          MEMORANDUM OPINION

          ANTHONY J. TRER.GA JUDGE.

         William David Cannon, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of numerous offenses following a jury trial in Circuit Court of the City of Virginia Beach. The matter comes before the Court on a Motion to Dismiss the petition filed by the respondent, to which petitioner has filed his opposition. For the reasons which follow, the Motion to Dismiss will be granted, and the petition will be dismissed, with prejudice.

         I. Background

         Following a jury trial in April, 2014, Cannon was found guilty of robbery with the use of a gun or simulated gun, abduction, armed statutory burglary, rape, and four counts of use of a firearm in the commission of a felony. The convictions of abduction, burglary and rape were based on Cannon's participation in those offenses as a principal in the second degree. On September 23, 2014, the trial court sentenced Cannon in accordance with the jury's recommendation to terms of incarceration often years for the robbery, twenty years for the armed statutory burglary, five years each for the rape and the abduction, and an aggregate of eighteen years mandatory minimum for the four unlawful use of a firearm convictions. The court imposed the entire fifty-eight year term of imprisonment as an active sentence. Nos. CR12-189, CR12-1640, Cr14-83; Resp. Ex. 1-2.

         Cannon took a direct appeal of his convictions of abduction, burglary and rape, as well as the three corresponding firearms convictions; he did not challenge the robbery conviction or its related firearms charge. The Court of Appeals of Virginia denied Cannon's appeal by a per curiam order entered May 4, 2015 and again on December 3, 2015 following review by a three-judge panel. The appellate court described the facts underlying Cannon's convictions as follow:

[T]he evidence proved that on September 25, 2011, the victim returned to her apartment near midnight. As she parked her car, she noticed two men walking on the sidewalk. As she walked to her apartment, one of the men was in front of her and the other was behind her. When she reached the door, she heard a man tell her to stop. She turned and saw one of the men pointing a gun at her. She identified the gunman as Rolando Goodman. Goodman instructed the victim to go inside. [Cannon], the other man, stood by the door.
Goodman pulled the victim to a back bedroom and attempted to tie her hands. [Cannon] initially remained at the front door but then came into the bedroom and asked Goodman where the victim's cash was located. The victim testified [Cannon] brought Goodman a roll of tape which Goodman used to bind her hands. Goodman gagged the victim by putting a sock in her mouth, searched her pockets, pulled down her pants, and penetrated her vagina with his penis. The victim could hear appellant opening drawers and closets in other rooms. During the sexual assault, [Cannon] entered the bedroom, laughed, and stated, "hurry up, I'm about to go get the car."
The victim later discovered that jewelry and other items were taken from her residence. The police located some of the victim's property from a residence where [Cannon] had been living. In a statement to the police following his arrest, [Cannon] admitted he was with Goodman during the home invasion. Both [Cannon] and Goodman had pawned some of the victim's property.

Cannon v. Commonwealth, R. No. 1898-14-1 (Va. Ct. App. May 4, 2015); Resp. Ex. 5. The Supreme Court of Virginia refused Cannon's petition for further review on August 3, 2016. Cannon v. Commonwealth, R. No. 151941 (Va. Aug. 3, 2016); Resp. Ex. 7.

         On or about October 28, 2016, Cannon filed a petition for a state writ of habeas corpus in the trial court, raising the following claims:

I. The trial court abused its discretion by denying his motion to strike at the close of the Commonwealth's evidence.
II. The evidence was insufficient to sustain the verdicts.
III. He received ineffective assistance of trial counsel because counsel:
a. failed to object to the Commonwealth's statements;
b. failed to object to the standard of review at the motion to strike;
c. failed to make an appropriate argument to the jury;
d. failed to submit a "correction of facts" on appeal;
e. failed to establish that the Commonwealth had misrepresented facts at the Motion to Set Aside the Verdict; and
f. committed sufficient cumulative error to warrant relief.
IV. He received ineffective assistance of appellate trial counsel because counsel:
a. failed to state that the facts were in dispute;
b. failed to object to the misrepresentation of facts in the Commonwealth's Brief in Opposition;
c. failed to assert that petitioner had the right to have the evidence viewed in his favor on appeal; and
d. failed to argue that the concert-of-action jury instruction was without factual foundation.
V. He was the victim of prosecutorial misconduct.

         Resp. Ex. 8.

         By an Order entered April 17, 2017, the Virginia Beach Circuit Court dismissed Cannon's habeas corpus petition. Specifically, it determined that claims I and V were barred from consideration by the rule announced in Slavton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974) that a non-jurisdictional issue that could have been but was not raised at trial and on direct appeal is not cognizable in a petition for a writ of habeas corpus. Resp. Ex. 10. The court further held that claim II was barred by the rule articulated in Henry v. Warden, 25 Va. 246, 576 S.E.2d 495, 496 (2003) that "a non-jurisdictional issue raised and decided either in the trial [court] or on direct appeal from the criminal conviction will not be considered in a habeas corpus proceeding." The court rejected claims III and IV on the merits. Id. The Supreme Court of Virginia subsequently refused Cannon's petition for further review of that decision. Cannon v. Dir., Dep't of Corr., R. No. 170821 (Va. Mar. 5, 2018); Resp. Ex. 12.

         Cannon filed a petition for a writ of certiorari in the United States Supreme Court on May 25, 2018. Resp. Ex. 13. Respondent filed no opposition, and the petition was denied on October 15, 2018. Resp. Ex. 14.

         Meanwhile, Cannon turned to the federal forum and timely filed this petition for a writ of habeas corpus pursuant to § 2254 on August 27, 2018, raising the following claims:

1. His rights under the 6th and 14th amendments were violated because the evidence was insufficient as a matter of law to sustain the verdicts.
2. His rights under the 5th, 6th and 14th amendments were violated when the prosecution misrepresented evidence and presented false statements to the jury.
3. His 6th and 14th amendment rights were violated when he received ineffective assistance of counsel on direct appeal, because counsel:
a. Did not state that "The Facts are in Dispute" in the appellate brief.
b. Did not object to misrepresentations of material facts in the Commonwealth's brief.
c. Failed to argue that there was no factual basis to support the concert-of-action jury instruction.
4. His 6th and 14th amendment rights were violated when he received ineffective assistance of trial counsel, where counsel:
a. Did not object when the prosecutor told the jury that Cannon had "come to the Mansards Apartments to rob people." b. Did not assert the actual facts and circumstances of the case to the court or the jury at the Motion to Strike or during the defense's case in chief.
c. Did not submit an Objection and a Correction of Facts to be made part of the record for use on direct appeal.
d. Made no attempt during the hearing on the Motion to Set Aside the Verdict to show that the Commonwealth's evidence was established through multiple egregious ...

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