United States District Court, E.D. Virginia, Alexandria Division
ANTHONY J. TRER.GA JUDGE.
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.
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.
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
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
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.
about October 28, 2016, Cannon filed a petition for a state
writ of habeas corpus in the trial court, raising the
I. The trial court abused its discretion by denying his
motion to strike at the close of the Commonwealth's
II. The evidence was insufficient to sustain the verdicts.
III. He received ineffective assistance of trial counsel
a. failed to object to the Commonwealth's statements;
b. failed to object to the standard of review at the motion
c. failed to make an appropriate argument to the jury;
d. failed to submit a "correction of facts" on
e. failed to establish that the Commonwealth had
misrepresented facts at the Motion to Set Aside the Verdict;
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.
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.
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.
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,
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
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