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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

RODRICK D. CANNON,

Petitioner,

JEFF NINES, Warden, et al.,

Respondents.

Civil Action No.: JRR-23-722

MEMORANDUM OPINION
Rodrick D. Cannon brings this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, collaterally attacking his 2010 state conviction for attempted second- degree murder and
related offenses. ECF 1. Respondents contend that Cannon’s claims are noncognizable and without
merit. ECF 23.1 Cannon filed a reply in support of his Petition. ECF 24. The Petition is ready for
resolution, and no hearing is necessary. Loc. R. 105.6 (D. Md. 2025); Rule 8(a), Rules Governing
Section 2254 Cases in the United States District Courts; Fisher v. Lee, 215 F.3d 438, 455 (4th Cir.
2000). For the following reasons, the Court denies the Petition and declines to issue a certificate
of appealability.
I. Background
A. The Trial
On February 16, 2010, Cannon was indicted on charges of (1) attempted murder; (2) first-
degree assault; (3) second -degree assault; (4) use of a handgun in the commission of a crime of
violence; (5) carrying a handgun; (6) reckless endangerment; (7) possession of a regulated firearm

1 Respondents initially filed a Limited Response arguing that Cannon’s claims were procedurally defaulted. ECF 9.
The Court directed Respondents to respond to the merits of Cannon’s claims (ECF 13) and they have now done so.

after conviction of a disqualifying crime; and (8) possession of a regulated firearm after conviction
of a crime of violence. ECF 9-1 at 30-31.
A jury trial was held from September 9 through September 14, 2010. ECF 9-1 at 15. The
Appellate Court of Maryland summarized the facts adduced at trial as follows:
On January 14, 2010, at approximately 9:30 p.m., Charles Kirby began his shift as
a tow truck driver for Laurel Adjustment Bureau. Part of his job was to perform
vehicle repossessions. At the beginning of each shift, he would receive paperwork
detailing all the jobs that he needed to perform during that shift. The repossession
paperwork, which was provided by banks or financial institutions, typically
included a description of the car to be repossessed and the owner’s information,
among other information.

That night, Mr. Kirby was instructed to go to an apartment complex in Prince
George’s County and repossess a black 2007 Chevy Tahoe that was owned by
[Cannon]. At approximately 11:00 p.m., he went to the apartment complex and
spotted the vehicle, but he di d not tow it at that time because there were people
around, and he did not want anyone interfering. He explained that people often
would “heckle” him or try to “intervene, get in the way, or just anything that may
conflict with what [he was] doing.”

Mr. Kirby returned to the apartment complex shortly before 4:00 a.m. on the
morning of January 15, 2010. The black Tahoe was still there. As he was backing
his tow truck up to the black Tahoe, he observed “a figure coming down the steps .
. . . with a firearm.” The person came out of the front door of an apartment building,
ran behind the Tahoe, and then up to the front door of the Tahoe. Although the
person appeared to be “trying to stay concealed in the dark,” Mr. Kirby could still
see him in his truck mirror because the area was brightly lit at the time.

At that point, Mr. Kirby, who was still sitting in his tow truck, called out the Tahoe
owner’s name, stating: “Roger,
[2[ I see you popping out, I see your firearm.” The
person asked: “[W]hat you doing with the truck.” Mr. Kirby turned around, looked
at the person “dead in his face” and observed that he was standing no more than 10
or 11 feet away. In an attempt to defuse the situation, Mr. Kirby stated: “[K]eep
your truck, . . . I don’t want it.” The person then stated: “Tell me what you doing to
my truck.” Mr. Kirby told the person to relax and that he was on the phone with the
police, hoping that, by referencing the police, “[w]hatever he’s going to do, maybe
he won’t do.”

At that point, Mr. Kirby turned back around and “hit the gas.” As he attempted to
drive away, he “started hearing the gun go off,” and he was struck with a bullet in

2 Petitioner’s name is Roderick, nevertheless he was repeatedly referred to as Roger throughout the trial, without
complaint from the defense, or explanation from any of the parties.

his lower back. He attempted to duck down, but he was shot a second time in his
right shoulder. He recalled that the shooter fired “[q]uite a few times.”

Mr. Kirby drove to the entrance of the apartment complex and stopped when he no
longer heard gunshots and believed that he was at a safe distance. He looked over
his shoulder and observed the shooter get into the Tahoe and turn on the headlights.
As the police arrived, Mr. Kirby observed the shooter exit the Tahoe and walk
toward one of the apartment buildings.

Detective Latasha Young, the lead detective on the case, received a call about the
shooting shortly after 4:00 a.m. She recalled receiving a broadcast on her radio
while on her way to the apartment complex, which provided the following
description: “B, slash, M, six, dash, 02, 240, gold teeth, light sweater, black
[slacks].” [Cannon] was arrested at approximately 8:45 a.m. After receiving
permission from [Cannon]’s wife to search their apartment, Detective Young
recovered a pair of size 42 black pants in their bathtub with 28 rounds of 9mm
ammunition in one of the pockets. The police also recovered approximately eleven
9mm shell casings from the parking lot around the black Tahoe. No gun was ever
recovered.

Upon returning to the police station, Detective Young ran the license plate number
from the black Tahoe through the Maryland Vehicle Administration database and
confirmed that the vehicle was registered to “Roger Cannon” and “Shannon Denise
Cannon.” Various parts of the Tahoe’s interior were swabbed, but none of the swabs
tested positive for gunshot residue.

Several hours after the shooting, Mr. Kirby identified [Cannon] as the shooter from
a photo array. The detective [Mason] who conducted the photo line-up testified that
he attempted to lay out six photographs for Mr. Kirby to view. Mr. Kirby, however,
identified [Cannon]’s photograph while it was still in the detective’s hand, before
the detective had the opportunity to place it onto the table. Mr. Kirby also identified
[Cannon] as the shooter at trial.

During cross -examination of Mr. Kirby, defense counsel asked him about the
written statement that he gave to the police. Mr. Kirby acknowledged that he failed
to mention in his statement that he had called out the Tahoe owner’s name when
the shooter ran up to the Tahoe. He also agreed that he wrote in his statement that
the shooter was approximately 20 feet away during the incident, stating: “Yeah, I
might have said that having two bullets in me. I might not have been real -- .”
Additionally, Mr. Kirby confirmed that he described the shooter in his statement as
being approximately 6 feet, 2 or 3 inches tall, lighted skinned, and weighing about
220 pounds.

During cross-examination of Detective Young, defense counsel had [Cannon] show
his teeth to the detective. Detective Young stated that she did not see any gold in
his mouth. She also testified that she did not see any gold teeth in [Cannon]’s mouth

on the day of the shooting. She noted, however, that there are “pop- up” gold teeth
“that you can buy at the store and take out and put in.” Defense counsel asked her
if she found any gold teeth in [Cannon]’s apartment during her search, and she
replied tha t she had not. Detective Young also stated that she had recorded in
[Cannon]’s arrest record that he was 6 foot 4 inches tall and weighed 240 pounds.

ECF 9-1 at 211-215 (footnotes omitted).

The jury found Cannon guilty of attempted second- degree murder, first- degree assault,
second-degree assault, and reckless endangerment. ECF 9- 1 at 32. Cannon was sentenced on
December 17, 2010, to 30 years of incarceration, 25 years without the possibility of parole, for the
attempted second-degree murder conviction, and a 5- year consecutive sentence for the reckless
endangerment conviction. The assault convictions merged for sentencing purposes. Id. at 33.
B. Direct Appeal
Cannon noted a timely direct appeal to the Appellate Court of Maryland. ECF 9 -1 at 34.
On December 2, 2011, Cannon’s counsel filed a line voluntarily dismissing the appeal. Id . at 36.
The court’s mandate issued on December 5, 2011. Id. Subsequently, in 2016, after filing a petition
for post -conviction relief, Cannon was granted leave to file a belated appeal on grounds that
Cannon had not authorized his attorney to dismiss his appeal; the Appellate Court’s mandate was
recalled. Id. at 23.
Thereafter, Cannon filed a n appeal raising one question: “Does the invited response
doctrine permit a prosecutor to rebut and refute defense counsel’s statement to the jury that a plea
of not guilty is an assertion of innocence?” ECF 9- 1 at 139. This claim concerned the fact that
during opening statements, defense counsel stated that Cannon’s not guilty plea indicated he
denied shooting the victim. Counsel told the jury that pleading not guilty, Cannon was saying “I
didn’t do this[.] I didn’t shoot anyone.” Id. at 140. Cannon did not testify or offer any evidence
at trial. Id. at 140. During closing arguments, the prosecutor asserted that the defense had offered

no evidence, that defense counsel’s statement was hearsay and not evidence, and stated: “What we
lawyers says is not evidence. U nless you heard it from the mouth of someone else, that is not
true.” Id. The court overruled defense counsel’s objection. Id. On appeal, Cannon argued the
trial court abused its discretion in permitting the prosecutor to comment on Cannon’s innocence.
Id. at 156.
On April 17, 2017, the Appellate Court of Maryland affirmed the judgment of the trial
court. ECF 9-1 at 210-25. The Appellate Court agreed that the prosecutor’s comments were not
proper and exceeded the scope of the “open door” doctrine , as the prosecutor’s statements were
“not a reasonable response to counsel’s opening statement”; nevertheless, the Appellate Court
held that given the positive identification of Cannon as the shooter and the other evidence adduced
against him, the error was harmless because it had not influenced the verdict. The court’s mandate
issued on May 17, 2017. Id. at 226.
Cannon filed a petition for writ of certiorari in the Supreme Court of Maryland. ECF 9 -1
at 227-37. The sole question presented was whether “the prosecutor’s repeated characterization
of [Cannon’s] purported assertion of innocence as ‘not true’” was mere harmless error. Id. at 228.
Cannon argued that the Appellate Court of Maryland failed to conduct a meaningful harmful error
analysis. Id. at 234-35. The Supreme Court of Maryland denied review on August 25, 2017 (id. at
269); Cannon did not seek review in the United States Supreme Court.
C. Postconviction Proceedings
Cannon filed a pro se petition for postconviction relief asserting that he was denied his
right to a direct appeal due to ineffective assistance of counsel, and that several other errors were
“not ripe” because he had not been provided an opportunity to litigate a direct appeal. ECF 9-1 at

38-49. As noted, Cannon was granted leave to file a belated appeal, after which the judgment of
the circuit court was affirmed.
After conclusion of his direct appeal, on March 23, 2018, Cannon filed a pro se amended
petition for post -conviction relief (ECF 9 -1 at 270- 309), which he later amended. Id. at 310- 49;
355-68; 380-405. Cannon asserted the following claims:
(1) Ineffective assistance of counsel because counsel failed to require a showing of
probable cause in a preliminary hearing before the district court.

(2) Trial Court error in responding to two notes from the jury without Cannon present,
violating his right to be present at all stages of trial.

(3) Trial Court error in instructing the jury on both modalities of assault, causing an
ambiguous verdict.
(4) The Trial Court lacked subject matter jurisdiction due to defective charging
documents and failure to properly arraign Cannon.
On June 3, 2021, the State filed an opposition to the Petition. ECF 9-1 at 485-97. On August 13,
2019, Counsel from the Office of the Public Defender entered an appearance on Cannon’s behalf.
Id. at 369. Cannon, through counsel, on March 8, 2022, filed a supplemental petition for post -
conviction relief, incorporating the allegations previously raised and asserting the following
additional allegations of errors:
(5) Ineffective assistance of counsel in failing to file a motion for modification of sentence
and application for review of sentence by a panel.

(6) Cannon’s conviction for reckless endangerment should merge into his conviction for
attempted second-degree murder.
(7) Ineffective assistance of counsel for failing to object when the name of a potential
witness was not read to the prospective jurors during the jury selection process, or
failing to object when that witness testified.
(8) Ineffective assistance of counsel for failing to object to the jury instruction regarding
first-degree assault and the specific element of use of a firearm.

(9) Ineffective assistance of counsel for withdrawing the motion to suppress without
Cannon’s consent.
(10) Ineffective assistance of counsel for failing to object to the reasonable doubt jury
instruction.
ECF 9-1 at 470-83.
The State responded to the supplemental petition ( id. at 485- 97), and a postconviction
hearing was held on April 6, 2022. Id. at 27-28; ECF 23-3. On May 13, 2022, the post-conviction
court issued a memorandum opinion and order which granted Cannon permission to file a belated
motion for modification of sentence and application for review of sentence by a panel, and ordered
that Cannon’s reckless endangerment conviction merge with his attempted second-degree murder
conviction. Id. at 498-509. Relief was denied as to all other claims. Id.
On July 18, 2022, Cannon filed an application for leave to appeal the denial of post -
conviction relief. ECF 9 -1 at 512- 27. This Court previously recounted the following regarding
Cannon’s efforts in this regard:
The parties agree that Cannon raised the claims presented in his federal petition in his
state post-conviction proceedings. ECF 1 at 5- 11; ECF 9 at 27. Respondents argue,
however:

To be sure, Cannon attempted to file an application for leave to appeal the denial
of his UPPA petition, however, he failed to remit the requisite filing fee or timely
request a waiver of the fee. The Circuit Court for Prince George’s County ordered
Cannon to show cause why his application should not be stricken within fifteen
days, and Cannon failed to timely respond. The court therefore struck Cannon’s
application for leave to appeal.

ECF 9 at 27. But Cannon explains that on July 26, 2022, he wrote to the state court
requesting a fee waiver, but he did not then have access to the court approved forms.
ECF 12 -1 at 5. Thereafter he received forms from the state circuit court clerk and
submitted the motion for fee waiver. He then followed up by writing to the court clerk
to inquire whether the fee waiver had been received. ECF 12-2.

When the intermediate appellate court later administratively closed Cannon’s appeal,
the court noted that the Circuit Court had directed Cannon to show cause why the fee
had not been paid or a fee waiver requested. The appellate court also noted that, despite

receiving Cannon’s fee waiver request on August 1, 2022, within the time for
responding to the circuit court’s directive to show cause, the Circuit Court Clerk
nevertheless struck the notice of appeal on August 14, 2022. ECF 12-3.

***

Here, it appears that Cannon timely responded to the circuit court’s directive to show
cause why he had not paid the filing fee or requested a fee waiver by filing a request for
fee waiver. Nevertheless the circuit court failed to rule on, or otherwise ack nowledge
the request for fee waiver before dismissing the case. In light of the foregoing
Respondents are directed to supplement their response to the Petition by addressing the
merits of Petitioner’s claims.

ECF 13 at 1-2, 3.
F. Additional Post-Trial Proceedings
On November 7, 2014, Cannon filed a motion to correct an illegal sentence asserting that
he was denied his right to a preliminary hearing and that because there was no proof that the
weapon used in the crime was a handgun, he should not have been charged with weapon offenses.
ECF 9-1 at 50-67. The motion was denied on December 12, 2014. Id . at 68. The court held that
because Cannon was indicted by a grand jury, a preliminary hearing was not required, and because
he “was not convicted of any weapons offenses, [] no prejudice of any kind could possibly exist.”
Id. Cannon appealed the ruling asserting the same claims and added a claim that the trial court
should not have denied the motion without a hearing. ECF 9- 1 at 75- 110. The Appellate Court
affirmed the denial of the motion, with the Court’s mandate issuing on June 20, 2016. Id. at 128-
33. Cannon did not seek further review.
On March 22, 2016, Cannon filed a petition for writ of habeas corpus, which was
summarily denied by the circuit court on February 7, 2019. ECF 9- 1 at 22, 350. Cannon filed an
application for leave to appeal the denial of his state habeas petition on February 19, 2019. Id . at
351-54. Cannon asserted that his “conviction [was] illegal” and his “petition should be granted as
the lower court’s decision [was] clearly erroneous.” Id . at 351- 53. On August 30, 2019, the

Appellate Court dismissed Cannon’s appeal. Cannon’s September 12, 2019 Motion for
Reconsideration was denied on October 21, 2019. Id at 370-73. In denying that motion, the court
found it was untimely (id. at 372), and that the motion was disallowed as a matter of law because
Cannon’s petition only challenged the legality of his conviction which was not permissible in a
state habeas proceeding. Id . at 372- 73. The court’s mandate issued on October 21, 2019. Id . at
374.
On Ap ril 1, 2020, Cannon filed another state habeas petition in the Circuit Court for
Allegany County raising the following three claims: (1) the circuit court lacked subject matter
jurisdiction; (2) the indictment was defective; and (3) he was illegally incarcerated. Id. at 406, 414-
28. The petition was transferred to the Circuit Court for Prince George’s County because Cannon
sought relief from proceedings conducted in that court. Id. at 408. The petition was denied on
April 29, 2020, with the court finding Cannon’s claims did not entitle him to relief. Id. at 444-45.
Specifically, the court found it had subject matter jurisdiction to hear the case because Cannon was
charged with a felony and the crimes were alleged to have occurred in Prince George’s County ,
Maryland. Id. Additionally, the court found that Cannon’s claims regarding a defective indictment
were “mistaken” because the indictment was signed by the Assistant State’s Attorney and the True
Bill by the foreperson: therefore, contrary to his cla ims, the appropriate signatures were present.
Id.
On June 10, 2022, Cannon filed an application for review of sentence, which was denied
without prejudice on July 19, 2022; Cannon was given 30 days to file an amended application.
ECF 9-1 at 28, 529. On August 4, 2020, through counsel, Cannon filed an amended application
for review of sentence and request for hearing. Id. at 532-35. Cannon requested the court “consider
either reducing his sentence or modifying the without parole of his sentence so that he can at least

avail himself of all rehabilitative programs and opportunities.” Id. at 534. On March 9, 2023, the
panel ordered Cannon’s sentence remain as imposed. Id. at 547.
G. The Federal Petition
Cannon filed his federal petition on March 15, 2023. ECF 1. The following claims are
before the Court:
1. Jury note: Cannon and his counsel were not present when the court responded to
notes from the jury.

2. Subject matter jurisdiction: Cannon was deprived of a preliminary hearing,
improperly arraigned, and the indictment was invalid divesting the trial court of
jurisdiction.

3. Jury instructions: Improper jury instructions regarding assault caused an ambiguous
verdict by the jury on the assault charge.

4. Witness: A witness’ name was not read during voir dire but the witness was
nevertheless allowed to testify.

5. Ineffective assistance of counsel: Trial counsel withdrew a motion to suppress
evidence without Cannon’s consent.
ECF 1 at 5-11.

II. STANDARD OF REVIEW
A. AEDPA Deferential Review
An application for writ of habeas corpus may be granted only for violations of the Constitution
or laws of the United States. 28 U.S.C. § 2254(a). The federal habeas statute at 28 U.S.C. § 2254
sets forth a “highly deferential standard for evaluating state-court rulings.” Lindh v. Murphy, 521
U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447 (2005). The standard is “difficult to
meet,” and requires courts to give state- court decisions the benefit of the doubt. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted); see also

White v Woodall, 572 U.S.415, 419- 20 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011) (state prisoner must show state court ruling on claim presented in federal court was “so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fair minded disagreement”)).
A federal court may not grant a writ of habeas corpus unless the state’s adjudication on the
merits: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Suprem e Court of the United States;” or (2)
“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). A state adjudication is
contrary to clearly established federal law under § 2254(d)(1) where the state court (1) “arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or (2)
“confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [the Supreme Court].” Williams v. Taylor, 529 U.S. 362, 405 (2000).
Under the “unreasonable application” analysis under § 2254(d)(1), a “state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.” Harrington, 562 U.S. at 101
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, “an unreasonable application
of federal law is different from an incorrect application of federal law.” Id . at 785 (internal
quotation marks omitted).
Further, under § 2254(d)(2), “a state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010). “[E]ven if reasonable minds reviewing the record might
disagree about the finding in question,” a federal habeas court may not conclude that the state court

decision was based on an unreasonable determination of the facts. Id. “[A] federal habeas court
may not issue the writ simply because [it] concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.” Renico v.
Lett, 559 U.S 766, 773 (2010).
The habeas statute provides that “a determination of a factual issue made by a State court
shall be presumed to be correct,” and the petitioner bears “the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “Where the state court
conducted an evidentiary hearing and explained its reasoning with some care, it should be
particularly difficult to establish clear and convincing evidence of error on the state court’s part.”
Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010). This is especially true where state courts have
“resolved issues like witness credibility, which are ‘factual determinations’ for purposes of Section
2254(e)(1).” Id. at 379.
B. Ineffective Assistance of Counsel
The Sixth Amendment to the Constitution guarantees a criminal defendant effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Buck v. Davis,
580 U.S. 100 (2017). To mount a successful challenge based on a Sixth Amendment claim of
ineffective assistance of counsel, a petitioner must satisfy the two -pronged test set forth in
Strickland, 466 U.S. at 687-88. See Williams, 529 U.S. at 390. First, the petitioner must show that
counsel’s performance was deficient. Second, the petitioner must show that he was prejudiced by
the deficient performance. Strickland, 466 U.S. at 687; see Buck, 580 U.S. 100.
With regard to the first prong, the petitioner must demonstrate that his attorney’s
performance fell “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688;
Harrington, 562 U.S. at 104. The central question is whether “an attorney’s representation

amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from
best practices or most common custom.” Harrington, 562 U.S. at 88 (quoting Strickland, 466 U.S.
at 690). The Supreme Court recently reiterated that the “first prong sets a high bar.” Buck , 580
U.S. 100. Notably, a “lawyer has discharged his constitutional responsibility so long as his
decisions fall within the ‘wide range of professionally competent assistance.’” Id. (citation
omitted). The standard for assessing such competence is “highly deferential” and carries with it a
“strong presumption that counsel’s conduct falls within a wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 669. Judicial scrutiny of counsel’s performance must be
“’highly deferential’” and not based on hindsight. Stokes v. Stirling, 10 F.4th 236, 246 (4th Cir.
2021) (citing Strickland, 466 U.S. at 689).
Second, the petitioner must show that his attorney’s deficient performance “prejudiced
[his] defense.” Id. at 687. To satisfy the “prejudice prong,” a petitioner must show that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694; see also Buck, 580 U.S. 100. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome” of the proceedings. Strickland,
466 U.S. at 687. A strong presumption of adequacy attaches to counsel’s conduct— so strong in
fact that a petitioner alleging ineffective assistance of counsel must show that the proceeding was
rendered fundamentally unfair by counsel’s affirmative omissions or errors. Id. at 696. Thus, “[a]
fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. A petitioner is not
entitled to post -conviction relief based on prejudice where the record establishes that it is “not

reasonably likely that [the alleged error] would have made any difference in light of all the other
evidence of guilt.” Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
In evaluating whether the petitioner has satisfied the two -pronged test set forth in
Strickland, a court “need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. Further, a court need not reach or address both components if one is
dispositive. Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). This is because failure to satisfy
either prong is fatal to a petitioner’s claim. As a result, “there is no reason for a court . . . to address
both components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697.
III. ANALYSIS
A. Claim One:
Cannon asserts that neither he nor his defense counsel w as present when the trial court
received and responded to two notes from the jury. ECF 1 at 5, 6. The record reflects that during
deliberations, the jury requested to review the victim’s written statement and a 911 tape recording
played during the trial. ECF 9-3 at 112; ECF 24- 2 at 1. As to the victim’s written statement, the
court instructed the jury: “That is not in evidence. So you must rely on the evidence that has been
presented at trial in reaching a verdict.” Id. at 113. As to the 911 tape, the trial court played it back
for the jury “exactly” as it had been played during the trial. ECF 9-3 at 112-13. Defense counsel
signed this note from the jury. ECF 24-2 at 1; ECF 9-1 at 495, 508.
The second note from the jury was in response to a question from the court regarding
whether the jury wished to continue deliberating that evening or to return the following day. ECF
9-3 at 114. The jury responded, via a note, indicating that they would return the next day to

continue deliberations. Id. Before excusing the jury, the court instructed the jury to refrain from
discussing the case and from performing outside research. Id. Immediately after excusing the jury
for the night, the court directed counsel to approach the bench. Id. at 115.
The trial transcript (in its entirety) does not affirmatively indicate whether counsel and/ or
Cannon was present in the courtroom; instead, the transcript specifies when parties were not
present. See, e.g., ECF 9 -3 at 112 (“Mr. Church left briefly and returned.”) ; ECF 9 -2 at 5
(indicating Cannon was not present in the courtroom).
Cannon raised this issue in his post -conviction proceedings, asserting that neither he nor
his defense counsel was present when the trial court responded to these notes from the jury. ECF
9-1 at 486; ECF 23- 2 at 5. After reviewing Cannon’s claims regarding the jury notes, the post -
conviction court denied the claim finding that the allegation of trial court error was not cognizable
in a post-conviction proceeding and further finding that Cannon’s assertion that his counsel was
not present for the notes was unsubstantiated. Id . at 508. The post -conviction court noted that
throughout the trial transcript there was no special notation as to whether Cannon or counsel was
present, trial proceedings are presumed to be correct, and the burden to demonstrate otherwise
rested with Cannon, which he had not met. Id . Additionally, the post -conviction court observed
that trial counsel testified during the proceedings that he would have made a record if Cannon was
not present during any part of the trial. Id. at 509.
This Court finds that the post -conviction court's factual determinations regarding the trial
court’s handling of the jury notes is supported by the record and not unreasonable. As explained,
a thorough review of the trial transcripts demonstrates the absence of any indication when counsel
or Cannon was present in the courtroom, only when they left and returned.
3 Additionally, as to

3 This makes sense from a practical and logical perspective, as counsel and defendant are generally required to be
present during proceedings; thus, the event worthy of transcript notation by a court reporter is departure from the

the first note, the record evidence is clear that counsel was aware of the note given that his signature
appears on the note. Moreover, counsel testified during the hearing that if Cannon had not been
present, he would have requested his presence. ECF 23- 2 at 59. Regarding the second note, the
record makes plain that counsel for the State and defense were present when the court responded
to the note because immediately after the trial judge dismissed the jury for the evening, he asked
counsel to approach the bench. ECF 9-3 at 115.
Even if the state court’s determination that there was no constitutional error was “contrary
to,” or “an unreasonable application of ,” Supreme Court precedent, Cannon is not entitled
to relief unless he can demonstrate that the error had a “substantial and injurious effect or influence
in determining the jury ’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted). Cannon has failed to demonstrate that the trial judge erred in how he
responded to the notes. The post-conviction court’s findings of facts surrounding the jury notes are
entitled to a presumption of correctness. See Johnson v. State of Md., 915 F.2d 892, 896 (4th Cir.
1990); see also 28 U.S.C. § 2254(e)(1).
Further, construed as an ineffective assistance of counsel claim, Cannon is unable to
demonstrate prejudice as the trial court’s decision not to provide the jury with a copy of the
victim’s statement, as it had not been entered into evidence ; and the court replayed the 911 tape
that had been admitted precisely as it had been offered in evidence during the trial. Even if Cannon

courtroom, not presence in the courtroom . Thus, the court construes the transcript to communicate to a reader that
counsel and a defendant are present unless noted to the contrary.

was not present as he asserts, he fails to show any resultant prejudice. United States v. Tipton, 90
F. 3d 861, 875 (4th Cir. 1996).
In sum, Cannon is not entitled to relief on this claim, and he has not presented clear and
convincing evidence that the post -conviction court’s factual findings were erroneous pursuant to
28 U.S.C. §2254 (e)(1) The findings of the post-conviction court will not be disturbed here.
B. Claim Two:
In his second claim, Cannon asserts that the trial court lacked subject matter jurisdiction
because he was improperly denied a preliminary hearing. He also asserts that his arraignment was
improper because of defects in the indictment. ECF 1 at 5, 7-8.
A federal petition for a writ of habeas corpus may be granted only for violations of the
Constitution or laws of the United States. 28 U.S.C. § 2254(a). For a claim of relief presented
under § 2254 to be cognizable for review, the petitioner must assert a violation of federal law. See
Wilson v. Corcoran, 562 U.S.1, 1 (2010) (“Federal courts may not issue writs of habeas corpus to
state prisoners whose confinement does not violate federal law.”); see also Young v. Warden, Md.
Penitentiary, 383 F. Supp. 986, 1009 (D. Md. 1974) (“It is axiomatic that only the violation or
denial of some federal constitutional right, and not alleged errors in the interpretation or application
of state law, can be the basis for federal habeas corpus relief.”), aff’d, 532 F.2d 753 (4th Cir. 1976).
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67- 68
(1991) (citations omitted); see also Torrence v. Lewis, 60 F.4th 209, 214 (4th Cir. 2023) (federal
habeas petitioner “cannot receive federal habeas relief solely for an error of state law, even if one
exists.”). Cannon’s claims regarding his preliminary hearing, arraignment, and indictment concern

the interpretation of Maryland law, not a constitutional violation, and therefore this claim is not
cognizable.
Moreover, even if Cannon had s omehow stated a constitutional claim on this issue, his
claim is without merit on a habeas petition. The record demonstrates that the indictment was
signed by an assistant state’s attorney and the jury foreman as required by Maryland Rule 4 -
202(b)(1). See ECF 9-1 at 439-40. Additionally, Cannon is mistaken in his belief that he was
denied a required preliminary hearing. Because he was indicted , a preliminary hearing was not
required under Maryland law. MD. CODE ANN., CRIM. PROC. §4-103(c). Finally, any “defects in
an indictment do not deprive a court of its power to adjudicate a case.” United States v. Cotton,
535, U.S. 625, 630 (2002). Cannon is not entitled to relief on this claim.
C. Claim Three
Cannon’s third claim concerns the trial court’s jury instruction regarding assault under
Maryland law. ECF 1 at 5, 8-9. Cannon claims the trial court erred in instructing the jury on two
modalities of second-degree assault: (1) the intent to frighten; and (2) battery. Id. at 8-9. The jury
was instructed:
The defendant is charged with the crime of second degree assault. And there are two
types of second degree assault for you to consider. The first assault is intentionally
frightening another person with the threat of immediate offensive physical contact or
physical harm. In order to convict the defendant of assault, the State must prove, first,
that the defendant committed an act with the intent to place the victim in fear of
immediate offensive physical contact or physical harm; two, that the defendant had the
apparent ability at that time to bring about the offensive physical contact or physical
harm; three, that the victim reasonably feared immediate offensive physical contact or
physical harm; and four, that the defendant’s actions were not legally justified.

The second type of second degree assault is battery. Assault is causing offensive
physical contact to another person. In order to convict the defendant of assault, the State
must prove, first, that the defendant caused offensive physical contact or physical harm
to the victim; two, that the contact was the result of an intention reckless act of the
defendant and was not accidental; and three, that the contact was not consented to by

the victim or not legally justified, and the State is required to prove one type of second
degree assault.

The defendant is also charged with the crime of first degree assault. In order to
convict the defendant of fist degree assault, the State must prove all of the elements of
the second degree assault, which I just read, and must also prove, that first, the defendant
used a firearm to commit assault, or the defendant intended to cause serious physical
injury in the commission of the assault.

A firearm is a weapon that propels a bullet or shotgun pellets or missile or projectile
by gunpowder of a similar explosive.

Serious physical injury means an injury that creates a substantial risk of death or
causes serious and permanent or serious and protracted disfigurement or loss of
impairment of the function of any bodily member or organ.

ECF 9-3 at 72-74.
Cannon asserts that the notes accompanying the Maryland Pattern Jury Instructions
indicate that it is unlikely that both versions of second- degree assault are applicable. T herefore,
in his view, the trial court’s instruction on two forms of second -degree assault was erroneous.
Ordinarily, jury instructions are matters of state law and therefore generally not the proper subject
of habeas review. See Nickerson v. Lee, 971 F. 2d 1125, 11 27 (4th Cir. 1992) (“Ordinarily,
‘instructions to the jury in state trials are matters of state law and procedure not involving federal
constitutional issues,’ Grundler v. State of N.C., 283 F.2d 798, 802 (4th Cir. 1960), and are
therefore not reviewa ble in a federal habeas proceeding.’”). Where the correctness of the
instruction is challenged only under state law, the claim is not cognizable under 28 U.S.C. § 2254.
Engle v. Isaac, 456 U.S. 107, 119 (1982). In any event, to the court’s knowledge, Maryland Courts
have not determined that instructing on both modalities of second- degree assault is an error.
Lawson v. Morgan, No. CIV.A. PJM-09-1705, 2011 WL 1135895, at *16 (D. Md. Mar. 25, 2011).
Further, Cannon does not explain how his right to due process was injured by the jury instruction
regarding assault.

To be entitled to federal habeas relief based on an error in jury instructions , Cannon must
demonstrate that the instruction alone so infected the trial that the resulting conviction violates due
process. Cannon faces an additional hurdle where, as here, he alleges a trial court error that the
State court subjected to harmless error review. Under such circumstances, a federal court cannot
grant habeas relief without applying both the test outlined in Brecht , 507 U.S. 619, and the
deferential review required by AEDPA. Brown v. Davenport, 596 U.S. 118 (2002).
Brecht re quires a state prisoner seeking to challenge his conviction in collateral federal
proceedings to show that the error had a “substantial and injurious effect or influence” on the
outcome of his trial. Brecht , 507 U.S. at 637 (quoting Kotteakos v. United States , 328 U.S. 750,
776 (1946)). A “‘substantial or injurious effect or influence’” means “actual prejudice.” See
Brecht, 507 U.S. at 637–38. “[A] federal court must deny relief to a state habeas petitioner who
fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petitioner
has cleared both tests.” Brown, 596 U.S. at 134 (emphasis in Brown ). In sum, to succeed on this
claim, Cannon must convince this federal habeas court that there is “‘grave doubt’” about “whether
the trial error affected the verdict’s outcome,” id. at 135 -36, and demonstrate that every
“fairminded jurist would agree that an error was prejudicial.” Id. at 136. Cannon fails to do so.
Under Maryland law, the court is required to instruct the jury on the applicable law upon a
party’s request where “ “(1) the instruction is a correct statement of law; (2) the instruction is
applicable to the facts of the case; and (3) the content of the instruction was not fairly covered
elsewhere in instructions actually given.” Dickey v. State, 404 Md. 187, 197–98 (2008). A jury
instruction is proper “if the evidence is sufficient to permit a jury to find its factual predicate.”
Bazzle v. State, 426 Md. 541, 550 (2012). This standard merely requires “some evidence”
supporting the requested instruction. Dykes v. State, 319 Md. 206, 216–17 (1990).

Independent review of the trial transcript demonstrates there was sufficient evidence to
instruct the jury on both modalities of second-degree assault. The intent to frighten modality is
demonstrated where: (1) “the defendant commits an act with the intent to place a victim in fear of
immediate physical harm”; (2) “the defendant has the apparent ability, at the time, to bring about
the physical harm”; and (3) “the victim is aware of the impending” physical harm. Jones v. State,
440 Md. 450, 455 (2014) (clea ned up). During Cannon’s trial, the victim testified that he saw
Cannon come out of his apartment building holding a gun. ECF 9- 2 at 122. Thus, there was
“some evidence” to support the instruction for second-degree assault based on intent to frighten.
Second-degree assault under the battery modality is demonstrated where: “(1) the
defendant caused offensive physical contact with, or harm to, the victim; (2) the contact was the
result of an intentional or reckless act of the defendant and was not accidental; and (3) the contact
was not consented to by the victim or was not legally justified.” Nicolas v. State , 426 Md. 385,
403–04 (2012). At trial, the victim testified that, as he attempted to drive away from the scene, he
heard gunshots and was struck in his lower back and right shoulder. ECF9-2 at 124-25. Thus, the
instruction concerning second-degree assault under the battery modality was also proper.
Lastly, throughout Cannon’s state proceedings , he also asserted trial court error in
instructing the jury on the firearm theory of first- degree assault. He seemingly makes this
argument because after the state rested its case, his motion for judgment of acquittal was granted
as to charges regarding use of a regulated firearm or handgun. The trial court found there was
insufficient evidence generated to demonstrate that the firearm used was either a regulated firearm
or a handgun under Maryland law. Nevertheless, under Maryland law, assault with any firearm,
including a non-regulated firearm, constitutes first-degree assault. Brown v. State, 182 Md. App.
138, 179 (2008). Evidence that a firearm was used during the incident was amply demonstrated

by the victim’s testimony that he saw a gun, heard gunshots, and was shot in his back and shoulder.
In summart, Cannon’ s claims regarding alleged errors in the jury instruction are not
cognizable; regardless, the jury instructions were appropriate under Maryland law. Cannon is not
entitled to relief on this claim.
D. Count Four:
Next, Cannon asserts he received ineffective assistance of counsel when his trial attorney
did not object to the failure to include Detective Mason’s name in the potential list of witnesses
during voir dire. ECR 1 at 9- 10. During voir dire, prospective jurors were read the names of
potential witnesses, including several detectives and officers, and aske d to indicate if they
recognized any of the names. ECF 9- 2 at 12. Juror 29, a police officer, was the only prospective
juror that responded to indicate that juror was “familiar with names.” Id. That juror was later
struck by defense counsel. Id. at 83. Detective Mason, who showed the victim a photo array that
resulted in the identification of Cannon, was not included in the list of potential witnesses read to
the jury and he testified during trial regarding presentation of the photo array.
The post-conviction court determined that Detective Mason’s name should have been read
during voir dire but there was no prejudice in the oversight. ECF No. 9- 1 at 505. The post -
conviction court found that Cannon had “the burden of establishing a reasonable probability that
the outcome of the trial would have been different” but he had “not met that burden.” Id. “Even
without Detective Mason’s testimony the evidence against the petitioner is substantial. Mr. Kirby
testified that Petitioner Cannon shot him while he attempted to repossess a vehicle. The vehicle
was identified in the State’s Exhibit as a 2007 Black Chevy Tahoe that Rodrick Cannon owned.”
Id. Additionally, the victim identified Cannon during trial proceedings as the man who shot him.
Having independently reviewed the record, this Court finds that the post -conviction court’s

determination was not contrary to clearly established federal law or based on an unreasonable
determination of the facts in light of the evidence presented. Applying the Strickland standard to
this claim, Cannon has not demonstrated the requisite prejudice necessary to secure relief for
ineffective assistance of counsel. The decision of the post-conviction court shall not be disturbed.
28 U.S.C. § 2254(d).
E. Claim Five.
Lastly, Cannon asserts he received ineffective assistance of counsel when his trial attorney
withdrew the motion to suppress the photo array without his consent. ECF 1 at 1. During trial,
Detective Mason testified that he administered the photo array to the victim the day after the
shooting. ECF 9-3 at 39-43. Mason explained that he provided an array of six photographs to the
victim and instructed the victim that the assailant “could” or “could not be in this photo lineup.”
Id. at 42. Mason pulled a table over to the victim’s hospital bed and laid out the photographs but
before he could “even put [the sixth photo] on the table, [the victim] pointed [Cannon] out” stating
“this is the guy who shot me.” Id. Mason clarified that despite the victim being in the hospital, he
understood the victim and the victim “gave [him] a complete detailed statement of everything that
happened that night.” Id. at 49-50.
During the post-conviction hearing, trial counsel testified that after he discussed the case
with the State’s Attorney, he did not believe there was a reason to make an issue of the photo array
and further determined that pursing the motion “might have been counterproductive ”. ECF 23-2
at 60. He explained that he withdrew the motion to suppress after he reviewed the actual photo
array and determined that he did not have a basis to challenge it. Id. at 64. He also explained that
he was “hesitant to have a hearing on a photo spread with the victim being the person that picked

out the picture” and “to preserve the victim’s testimony for trial were he to be unavailable.” Id. at
63-64.
The postconviction court denied Cannon’s ineffective assistance claim on this issue
because he failed to show prejudice under Strickland. The post -conviction court stated that the
“evidence presented in the trial was overwhelming”:
Mr. Kirby the victim in this matter saw and spoke to the Petitioner before he was shot.
Mr. Kirby testified that he looked the shooter in his face. The shooter stated that the
Tahoe was “his truck” and the Tahoe was determined by police [as] owned by the
Petitioner.

ECF 9-1 at 507.
Absent clear and convincing evidence to the contrary, a claim that counsel’s decision was
premised on trial strategy cannot be disturbed. Evans v. Thompson, 881 F.2d 117, 125 (4th Cir.
1989) Having examined the post -conviction court’s ruling as well as having independently
examined the record, this Court is satisfied per Strickland that Cannon has not demonstrated the
prejudice necessary to establish his trial attorney’s ineffectiveness. 28 U.S.C. § 2254(d); see also
Stamper v. Muncie, 944 F.2d 170, 178 (4th Cir. 1991) (challenge to counsel’s trial decisions and/or
tactics amounted to no more than “Monday morning quarter backing”). The postconviction court’s
determination that there was no prejudice was not an unreasonable application of Strickland and
is entitled to deference under § 2254. Its finding will not be disturbed.
CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2254 Cases provides that “the district court
must issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability, a habeas petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) ; Buck, 580 U.S. at 115;
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). When a district court rejects constitutional

claims on the merits, a petitioner satisfies this standard by demonstrating that “jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that juris ts could
conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck,
580 U.S. at 115. (citation omitted). When a petition is denied on procedural grounds, the petitioner
meets the standard by showing that reasonable jurists “would find it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “whether the district cour t was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
Cannon has not made the requisite showing. Accordingly, the Court declines to issue a
certificate of appealability. Cannon may still request that the United States Court of Appeals for the
Fourth C ircuit issue such a certificate. See Lyons v. Lee, 316 F.3d 528, 532 (4th Cir. 2003) .
For the foregoing reasons, the Petition is denied. A separate Order follows.
/S/
_____________________________
Julie R. Rubin
United States District Judge
June 12, 2026

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