Cole v. Branker

CORRECTED OPINION
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-20
WADE LARRY COLE,
Petitioner - Appellant,
v.
GERALD J. BRANKER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:05-hc-00461-D)
Argued: September 25, 2008 Decided: November 3, 2008
Corrected Opinion Filed: December 11, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.
ARGUED: Marilyn G. Ozer, William F. W. Massengale, MASSENGALE &
OZER, Chapel Hill, North Carolina, for Appellant. Alana
Danielle Marquis Elder, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Cooper,
Attorney General of North Carolina, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
MICHAEL, Circuit Judge:
Wade Larry Cole was convicted in North Carolina of
first degree murder and involuntary manslaughter. He was
sentenced to death on the murder charge. The convictions and
sentence arise out of his 1988 killing of his girlfriend and
his related assault of his girlfriend’s mother, who died shortly
after sustaining injuries in the assault. The North Carolina
courts rejected Cole’s direct appeals and denied him post-
conviction relief. Cole filed a petition for a writ of habeas
corpus in U.S. district court, asserting a number of claims.
The district court dismissed Cole’s petition, and, pursuant to
certificates of appealability, we consider three of his claims:
(1) that he is mentally retarded and thus cannot be executed
under the Eighth Amendment; (2) that he was sentenced to death
on the basis of an aggravating circumstance that the jury was
precluded from finding under the double jeopardy clause; and (3)
that he was deprived of the effective assistance of appellate
counsel. For the reasons that follow, we affirm the district
court’s denial of the writ.
I.
In 1988 Cole lived in Camden, North Carolina, with his
girlfriend, Theresa Graham, and their two children, Rod and
Assunta Graham. They lived with Theresa Graham’s mother, Hattie
3
Graham, in a home owned by the latter. The events that led to
Cole’s convictions for the murder of Theresa Graham and the
involuntary manslaughter of Hattie Graham occurred on June 22
and 23, 1988. The events of both days are described as follows
by the North Carolina Supreme Court.
Defendant [Cole] came home from work at around 5:30
p.m. on that evening [June 22]. Upon entering the
house, he asked where dinner was and then hit Theresa
[Graham] with his fist. Defendant then went outside,
and Theresa followed him asking why he had hit her.
Once outside, defendant began hitting Theresa again.
Her mother [Hattie Graham] followed and attempted to
stop defendant from striking her daughter. Defendant
then struck [Hattie] Graham, who fell and hit her head
against the door of defendant’s automobile. Rod and
[Theresa’s twelve-year old cousin, William] Bowser[,]
helped [Hattie] Graham into the house, and she called
the police.
When Deputies Lilly and Vick of the Camden County
Sheriff’s Department arrived at the Graham residence,
defendant and Theresa were arguing. Theresa had a
black eye and a bruised face. Theresa remained with
the children while the deputies transported defendant
and [Hattie] Graham in separate vehicles to the
magistrate’s office. At the magistrate’s office, a
warrant was issued for defendant’s arrest for the
assault of [Hattie] Graham. Defendant posted bond and
was released with instructions that he not return to
the Graham residence except to retrieve his
automobile. Police officers accompanied defendant
back to the residence to retrieve his automobile and
stayed until defendant left shortly before midnight.
State v. Cole, 471 S.E.2d 362, 365-66 (N.C. 1996) (opinion on
direct review). Despite the instructions that he not return to
the Graham residence, Cole returned early the next morning (June
23). Thus,
4
Bowser stated that he was asleep on the couch when he
heard a loud crash and saw defendant break through the
back door. According to Bowser, defendant, armed with
a .22-caliber rifle, snatched the telephone cord out
of the wall, went to Theresa’s bedroom, pulled Theresa
from the bed, and shot her. Defendant kept beating
Theresa as he dragged her into the dining room.
Defendant then went into the kitchen, grabbed a knife,
returned to the dining room, and began stabbing
Theresa. At some point, [Hattie] Graham tried to
intervene, and the defendant stabbed her. Defendant
then took Theresa onto the porch and resumed stabbing
her. He eventually stopped; yelled, “I told you I was
going to kill you”; then left the Graham residence.
After defendant left, Bowser reconnected the phone,
and [Hattie] Graham called the Sheriff. After talking
to Deputy Vick on the telephone, [Hattie] Graham
stopped breathing [and soon died].
Id. at 366.
The police arrested Cole later that morning. The
medical examiner determined that Theresa Graham had received
more than one hundred stab wounds to her body, many of which
were fatal. Hattie Graham had a single stab wound, scrapes, and
bruises; the medical examiner determined that the cause of her
death was a cardiac arrhythmia, or abnormal heart rhythm
precipitated by stress. Cole was indicted on June 27, 1988, for
the first degree murder of Theresa Graham and on October 17,
1988, for the second degree murder of Hattie Graham. The state
sought the death sentence for the murder of Theresa Graham.
While waiting to stand trial, Cole demonstrated
symptoms of depression and exhibited suicidal thoughts. He was
admitted to Dorothea Dix Hospital on October 21, 1988, for an
5
evaluation of his competency to stand trial. A forensic
psychiatrist at Dorthea Dix opined that Cole was competent to
stand trial, and the hospital discharged him on November 11,
1988. While at Dorthea Dix, a psychologist administered the
Wechsler Adult Intelligence Scale-Revised (WAIS-R) test to Cole.
Cole scored a full scale I.Q. of 68, a verbal score of 71, and a
performance score of 67 on the test. A full scale score of 70
is the threshold score associated with mental retardation. See
N.C. Gen. Stat. § 15A-2005(a).
Cole’s trial on both murder charges began on July 17,
1989, in the Superior Court of Camden County, North Carolina.
At the close of the evidence, the trial court instructed the
jury on first degree murder in connection with the killing of
Theresa Graham. The court instructed the jury on second degree
murder and involuntary manslaughter with respect to the death of
Hattie Graham. Specifically, the court instructed the jury that
it could not find Cole guilty of the second degree murder of
Hattie Graham unless it found that Cole intentionally injured
Hattie Graham and that Cole had exhibited malice, which the
court further defined. According to the instructions, if the
jury found that Cole acted unlawfully by committing misdemeanor
assault and battery upon Hattie Graham, it could find Cole
guilty only of involuntary manslaughter; it could not find that
Hattie Graham was murdered in the second degree. The jury
6
returned verdicts on July 26, 1989, convicting Cole of the first
degree murder of Theresa Graham and the involuntary manslaughter
of Hattie Graham.
At the capital sentencing phase of Cole’s trial, the
court submitted two aggravating factors for the jury’s
consideration: (1) whether the murder of Theresa Graham was
especially heinous, atrocious, or cruel, N.C. Gen. Stat. § 15A-
2000(e)(9), and (2) whether the murder was part of a course of
conduct in which Cole committed other crimes of violence against
other persons, id. § 15A-2000(e)(11). Although the jury found
ten of twelve mitigating circumstances that were submitted, it
found both aggravating circumstances and recommended a sentence
of death. Thereafter, court sentenced Cole to death for the
first degree murder conviction and to ten years’ imprisonment
for the involuntary manslaughter conviction.
Cole appealed his convictions to the North Carolina
Supreme Court, arguing among other things that the trial court
had violated his unwaivable right to be present at unrecorded
bench conferences during which the court had excused potential
jurors. State v. Cole, 415 S.E.2d 716, 717 (N.C. 1992).
Agreeing that Cole’s right to be present at these conferences
had been violated and that the error was not harmless beyond a
reasonable doubt, the North Carolina Supreme Court reversed
Cole’s convictions and ordered a new trial. Id. at 718.
7
Cole was retried and was again convicted of the first
degree murder of Theresa Graham and the involuntary manslaughter
of Hattie Graham. At Cole’s second capital sentencing
proceeding, the jury found the same two aggravating
circumstances, (1) that the murder of Theresa Graham was
especially heinous, atrocious, or cruel, and (2) that it was
part of a course of conduct in which Cole committed other crimes
of violence against other persons. The jury also found nine of
ten mitigating circumstances that were submitted. The jury
again recommended death, and on June 13, 1994, the court
sentenced Cole to death for the murder and to a concurrent two-
year sentence of imprisonment for the involuntary manslaughter.
For the second time Cole appealed his convictions and
sentences to the North Carolina Supreme Court. State v. Cole,
471 S.E.2d 362 (N.C. 1996). Cole made sixteen arguments on
appeal, including the argument that the trial court erred by
submitting for jury consideration the aggravating circumstance
that the Theresa Graham murder was part of a violent course of
conduct that included a crime of violence against another
person. Id. at 372-73. Cole argued that there was insufficient
evidence to establish a predicate crime of violence and that,
moreover, Cole’s assault on Hattie Graham was not part of a
single course of conduct involving the capital murder. Id. He
also argued that the trial judge gave unduly vague jury
8
instructions on the course of conduct aggravating circumstance.
Id. at 373. Cole did not argue that the jury was collaterally
estopped from finding the course of conduct aggravating
circumstance under the double jeopardy clause. The North
Carolina Supreme Court affirmed Cole’s convictions and
sentences, id. at 376, and the United States Supreme Court
denied certiorari, Cole v. North Carolina, 519 U.S. 1064 (1997).
Cole pursued collateral relief in state court by
filing a motion for appropriate relief (MAR) in the Camden
County Superior Court on December 2, 1997. The MAR court held a
hearing on Cole’s claims of ineffective assistance of counsel
and ultimately denied all of his claims. In particular, the MAR
court denied Cole’s claim that principles of collateral estoppel
embodied in the double jeopardy clause barred the jury’s
consideration of the course of conduct aggravating circumstance.
The MAR court also denied Cole’s claim that he had received
ineffective assistance of appellate counsel because counsel
failed to raise the double jeopardy claim. The North Carolina
Supreme Court denied his petition for certiorari review of the
MAR court’s decision. State v. Cole, 577 S.E.2d 900 (2003).
Several years after Cole’s retrial and sentence, the
North Carolina legislature enacted legislation (effective
October 1, 2001) that prevents any defendant who is mentally
retarded from being sentenced to death. N.C. Gen. Stat. § 15A-
9
2005. The legislation made post-conviction relief available to
capital defendants already convicted of first degree murder who
could establish mental retardation, as defined in N.C. Gen.
Stat. § 15A-2005. Id. § 15A-2006. This legislation was enacted
nearly a year before the Supreme Court held that the Eighth
Amendment prohibits the execution of mentally retarded
individuals. See Atkins v. Virginia, 536 U.S. 304 (2002). The
new North Carolina legislation prompted Cole to file, on January
18, 2002, a motion in the Camden County Superior Court for
imposition of a life sentence. The court held an evidentiary
hearing in May 2003. Cole introduced his full scale score of 68
on the WAIS-R intelligence test administered October 31, 1988,
at Dorthea Dix Hospital. The state introduced evidence of two
other intelligence tests in which Cole had higher scores: Dr.
Margaret Sells Emmanuelson had administered the WAIS-R to Cole
on July 25, 1989, and she reported a full scale I.Q. of 79, a
verbal I.Q. of 82, and a performance I.Q. of 77. Dr. Brian
Grover had administered the WAIS-R to Cole in 1993, and Dr.
Grover reported a full scale I.Q. of 81, a verbal I.Q. of 79,
and a performance I.Q. of 83. Cole offered evidence to impeach
the two higher I.Q. test scores. An expert witness testified
that Cole’s scores in 1989 and 1993 were suspect because of the
“practice effect,” that is, repeated administration of the same
test inflated his scores. J.A. 379, 281. Moreover, the expert
10
indicated that he would not consider the 1989 WAIS-R test
results valid because only nine of eleven relevant subtests were
administered. In addition, the court considered the testimony
of a number of witnesses who testified to Cole’s scholastic
abilities, his ability to communicate and interact in social
settings, his personality, and his employment history. After
considering the evidence, the court determined that Cole did not
satisfy his burden of establishing mental retardation, as
defined in N.C. Gen. Stat. § 15A-2005. Accordingly, the court
denied his motion to impose a life sentence. The North Carolina
Supreme Court denied Cole’s petition for certiorari. State v.
Cole, 601 S.E.2d 866 (N.C. 2004).
On July 5, 2005, Cole filed a petition for a writ of
habeas corpus in U.S. district court, raising twenty-six claims.
The district court denied the petition, holding that Cole had
procedurally defaulted a number of his claims and that his
remaining claims failed on the merits. Cole v. Branker, No. 5-
05-HC-461-D (E.D.N.C. Sept. 20, 2007). Certificates of
appealability were granted on three issues: (1) whether Cole is
mentally retarded and therefore cannot be executed under the
Eighth Amendment; (2) whether collateral estoppel, applicable in
criminal proceedings through the double jeopardy clause,
precluded the jury from finding the course of conduct
11
aggravating circumstance; and (3) whether Cole received
constitutionally ineffective assistance of appellate counsel.
II.
The Supreme Court has held that the Eighth Amendment
prohibits the execution of mentally retarded defendants. Atkins
v. Virginia, 536 U.S. 304, 321 (2002). The Court, however,
expressly left to the states the task of defining mental
retardation. Id. at 317. In North Carolina mental retardation
is defined as “[s]ignificantly subaverage general intellectual
functioning, existing concurrently with significant limitations
in adaptive functioning, both of which were manifested before
the age of 18.” N.C. Gen. Stat. § 15A-2005(a)(1).
“Significantly subaverage general intellectual functioning” is
further defined as an intelligence quotient of 70 or below. Id.
§ 15A-2005(a)(1). “Significant limitations in adaptive
functioning” are deemed to exist when a person suffers
significant limitations in two or more of the following skill
areas: communications, self-care, home living, social skills,
community use, self-direction, health and safety, functional
academics, leisure skills, and work skills. Id. § 15A-
2005(a)(1).
North Carolina enacted its definition of mental
retardation prior to the Atkins decision but after Cole had been
12
convicted of first degree murder and sentenced to death. A
separate North Carolina statute, N.C. Gen. Stat. § 15A-2006,
authorized defendants such as Cole, already sentenced to death
and in custody awaiting imposition of the death penalty, to seek
appropriate relief on the grounds of mental retardation. It
made relief from the death penalty available for those
defendants who proved mental retardation, as defined in § 15A-
2005. A defendant seeking relief under § 15A-2006 has the
burden of proving mental retardation by a preponderance of the
evidence. N.C. Gen. Stat. § 15A-2006; § 15A-1420(c); see also
2001 N.C. Sess. Laws 346, § 3 (providing text of N.C. Gen. Stat.
§ 15A-2006, which expired on October 1, 2002).
Cole applied under § 15A-2006 for relief from his
death sentence in the Camden County Superior Court, and on
August 19, 2003, the court determined that Cole failed to prove
mental retardation by a preponderance of the evidence.
Specifically, the court concluded that Cole failed to prove any
of the three statutory elements of mental retardation:
significantly subaverage intellectual functioning, significant
limitations in adaptive function, or manifestation of mental
retardation before the age of 18. See id. § 15A-2005(a).
Cole argues that the state court erred in failing to
find him retarded under North Carolina law and Atkins. “[T]o
prevail on the Atkins claim, [the petitioner] must show that he
13
should be deemed mentally retarded under North Carolina law.”
Conaway v. Polk, 453 F.3d 567, 591 (4th Cir. 2006). The
Antiterrorism and Effective Death Penalty Act prescribes “a
highly deferential standard for evaluating state–court rulings.”
Lenz v. Washington, 444 F.3d 295, 299 (4th Cir. 2006) (internal
quotations omitted). Habeas relief is not available for claims
adjudicated on the merits in state court proceedings unless the
state adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
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). Moreover, state determinations of factual
issues are entitled to a presumption of correctness that is
rebuttable only by clear and convincing evidence. Id.§ 2254(e)(1).
Cole contends that the state court order adjudicating
the mental retardation issue was cursory. While the state court
did make extensive factual findings, Cole is accurate in one
respect. The state court’s conclusions were perfunctory, and
the court did not explain in its conclusions why it discredited
petitioner’s evidence of mental retardation. The perfunctory
conclusions do not change our legal analysis, however. While “a
14
detailed state court order is more likely to withstand federal
judicial scrutiny,” a conclusory state court order is still
reviewed under 28 U.S.C. § 2254(d), and such an order is still
entitled to deference. Wright v. Angelone, 151 F.3d 151, 156-57
(4th Cir. 1998); see also Fisher v. Lee, 215 F.3d 438, 446 (4th
Cir. 2000); Bell v. Jarvis, 236 F.3d 149, 159 (4th Cir. 2000).
Cole had the burden to prove all three elements
necessary to establish mental retardation. If the state court
correctly determined that Cole lacks significantly subaverage
intellectual functioning (the first element), then its
conclusion that Cole is not mentally retarded withstands review.
As described above, “significantly subaverage general
intellectual function,” is defined as “an intelligence quotient
of 70 or below.” N.C. Gen. Stat. § 15A-2005.
Cole argues that the state court’s decision involved
an unreasonable application of clearly established Supreme Court
law –- in this case the Atkins rule that a mentally retarded
person may not be executed. To establish an “unreasonable
application” of clearly established law, Cole must show that the
state court applied Supreme Court precedent to the facts in an
“objectively unreasonable manner.” Green v. Johnson, 515 F.3d
290, 299 (4th Cir. 2008). Cole fails in this effort. We
conclude, for the following reasons, that the state court’s
15
conclusion that Cole did not prove significantly subaverage
intellectual function was not objectively unreasonable.
Our court has held that it was not objectively
unreasonable under Atkins for a state court to discredit a low
I.Q. test score when three of four available I.Q. test scores
exceeded the threshold score of 70. Green, 515 F.3d at 300. In
this case Cole’s score exceeded 70 on two of three individually
administered intelligence tests. Cole received a full scale
I.Q. test score of 79 on the 1989 WAIS-R test administered by
Dr. Emmanuelson and a full scale I.Q. test score of 81 on the
1994 WAIS-R test administered by Dr. Grover.
Cole attempted to impeach the credibility of the two
individually administered intelligence tests on which his score
exceeded 70 by offering evidence that those scores could be
inflated by a “practice effect” (the benefit of having taken a
test more than once) or the “Flynn effect” (the benefit of
gaining intelligence over time). J.A. 380-81, 726-27. This
evidence does not render the state court’s conclusion
objectively unreasonable, however. The I.Q. test score on which
Cole scored below the statutory threshold of 70 was barely below
it; he scored 68 on the test administered in 1988. In
comparison, Cole scored nearly ten points above the threshold of
70 on his two later tests; he scored 79 and 81 on the tests
administered in 1989 and 1993, respectively. Moreover, Cole
16
offered no evidence to show that the practice effect of taking
one prior I.Q. test could have accounted for an increase in his
score nine months later by as much as eleven points, or sixteen
percent. For these reasons, we conclude that it was not
objectively unreasonable for the state court to determine that
Cole failed to prove an I.Q. below 70, which meant that he did
not have significantly subaverage general intellectual
functioning. This determination is sufficient to establish that
Cole did not prove he is mentally retarded. Accordingly, we
need not review the state court’s determinations that Cole
failed to establish the other two elements necessary for mental
retardation: significant limitations in adaptive functioning and
manifestation of this limitation and an I.Q. of 70 or below
before age 18. The determination that Cole failed to establish
the elements of mental retardation is not contrary to, or an
unreasonable application of, clearly established law, as
determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
Nor was the state court’s conclusion that Cole failed
to establish mental retardation based on an unreasonable
determination of the facts, as Cole contends. See 28 U.S.C.
§ 2254(d)(2). A state court’s factual determinations are
presumed correct unless the habeas petitioner rebuts the
presumption with clear and convincing evidence. Id.§ 2254(e)(1); Green, 515 F.3d at 299; Lenz, 444 F.3d at 300.
17
The “criterion of a reasonable determination [of the facts] is
[not] whether [the state opinion] is well reasoned. . . . It is
whether the determination is at least minimally consistent with
the facts and circumstances of the case.” Wright, 151 F.3d at
157 (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.
1997)). The facts and circumstances in the record, as discussed
above, are more than minimally consistent with a determination
that Cole had an I.Q. greater than 70. Thus, the state court’s
determination that Cole did not prove mental retardation was not
based on an unreasonable determination of the facts. In sum,
Cole is not entitled to habeas relief under the standards of
§ 2254(d).
III.
Cole argues that his rights under the double jeopardy
clause of the Fifth Amendment were violated. Specifically, he
invokes the doctrine of collateral estoppel embodied in the
double jeopardy clause. The Supreme Court has held that “when
an issue of ultimate fact has once been determined by a valid
and final judgment, that issue cannot again be litigated between
the same parties in any future lawsuit.” Ashe v. Swenson, 397
U.S. 436, 443 (1970). Cole argues that he is entitled to habeas
relief because an issue of ultimate fact determined in his favor
by a valid and final judgment in 1989 -– the issue of whether he
18
intended to injure Hattie Graham –- was relitigated to his
disadvantage in 1994.
Cole argues that the jury in his 1989 trial acquitted
him of any intent to inflict harm with respect to the death of
Hattie Graham when it found him guilty of involuntary
manslaughter, but not second degree murder. Thus, according to
Cole, his (second) 1994 jury was collaterally estopped from
finding that he acted with intent to injure Hattie Graham in
either the guilt or sentencing phases of the trial. Yet the
capital sentencing jury in his second trial was permitted to
find (and did find), as an aggravating circumstance, that
Theresa Graham’s murder was “part of a course of conduct in
which [Cole committed] other crimes of violence against another
person or persons.” N.C. Gen. Stat. § 15A-2000(e)(11). Cole
argues that this course of conduct aggravating circumstance was
necessarily predicated on the jury finding a fact -– his intent
to injure Hattie Graham –- that his first jury did not find when
it acquitted him of the second degree murder of Hattie Graham.
A.
We conclude that Cole procedurally defaulted his
double jeopardy claim and is thus barred from obtaining federal
habeas relief on this ground. A state prisoner who has
procedurally defaulted a claim on an adequate and independent
19
state ground is barred from obtaining habeas relief on that
ground unless the prisoner can show cause for the default and
actual prejudice as a result of the violation of federal law, or
prove that the failure to consider the claim will result in a
fundamental miscarriage of justice. Edwards v. Carpenter, 529
U.S. 446, 451 (2000); McCarver v. Lee, 221 F.3d 583, 588 (4th
Cir. 2000). Cole first claimed a violation of the double
jeopardy clause in state MAR court on collateral review. The
MAR court rejected the double jeopardy claim as procedurally
defaulted under N.C. Gen. Stat. § 15A-1419(a)(3)(1997), which we
have held to be an adequate and independent state ground for
purposes of a procedural default. Lawrence v. Branker, 517
F.3d 700, 714 (4th Cir. 2008).
Cole attempts to show cause and prejudice sufficient
to excuse his procedural default. To demonstrate cause, Cole
argues that he received ineffective assistance of appellate
counsel in violation of the Sixth Amendment. Specifically, he
argues that his appellate counsel was constitutionally
inadequate because counsel failed to raise the double jeopardy
argument. The Supreme Court has “acknowledged that in certain
circumstances counsel’s ineffectiveness in failing properly to
preserve [a] claim for review in state court will suffice” to
establish cause for a procedural default. Edwards, 529 U.S. at
451. The circumstances in which counsel’s ineffectiveness can
20
provide cause that excuses a procedural default are limited,
however.
First, the petitioner must not have defaulted on the
independent claim of ineffective assistance of counsel. Id. at
451. In this case, Cole did not default his ineffective
assistance claim. It was timely raised on state collateral
review and dismissed on the merits.
Second, counsel’s assistance must be constitutionally
defective under Strickland v. Washington, 466 U.S. 668 (1984).
Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally
defective assistance has two components. “First, the defendant
must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687.
To establish defective performance, the petitioner
must demonstrate that counsel’s representation “fell below an
objective standard of reasonableness” judged by “prevailing
professional norms.” Id. at 688. There is a “strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689; see
Lawrence v. Branker, 517 F.3d 700, 708 (4th Cir. 2008); Williams
21
v. Ozmint, 494 F.3d 478, 484 (4th Cir. 2007). Cole argues that
appellate counsel’s failure to challenge the course of conduct
aggravating circumstance under the double jeopardy clause was
objectively unreasonable. This argument ignores, however, that
counsel need not raise every colorable claim on appeal. Jones
v. Barnes, 463 U.S. 745, 754 (1983). Rather, counsel has some
latitude to “decide what issues are to be pressed” on appeal.
Id. at 751, 754.
In this case appellate counsel raised a number of
issues on appeal. In particular, counsel mounted a vigorous
challenge to the course of conduct aggravating circumstance on
grounds other than double jeopardy. Counsel argued that Cole’s
involuntary manslaughter conviction was not supported by the
evidence, yet may have provided the basis for the course of
conduct aggravating circumstance found by the jury. The
reversal of Cole’s death sentence was therefore required,
according to counsel. Appellate counsel also argued that the
trial judge gave unduly vague jury instructions on the course of
conduct aggravating circumstance. State v. Cole, 471 S.E.2d
362, 373 (N.C. 1996). In total, appellate counsel made sixteen
arguments on appeal. Id. at 365. Especially in light of the
rule that counsel need not raise every colorable claim on
appeal, Jones, 463 U.S. at 754, appellate counsel’s
thoroughgoing arguments with respect to the course of conduct
22
aggravating circumstance and fifteen other assignments of error
are significant. It was not objectively unreasonable for
appellate counsel to focus his arguments challenging the course
of conduct aggravating circumstance to two, focused legal
grounds rather than pursuing additional grounds. “A brief that
raises every colorable issue runs the risk of burying good
arguments.” Jones, 463 U.S. at 753. We conclude that appellate
counsel performed “within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689;
Jones, 463 U.S. at 754.
Cole submits an affidavit by appellate counsel in
which he states that his failure to raise the double jeopardy
argument was not, in fact, a strategic decision. Rather, the
argument simply “did not occur to [counsel].” J.A. 911. “[T]he
relevant question,” however, “is not whether counsel’s choices
were strategic, but whether they were reasonable.” Roe v.
Flores-Ortega, 528 U.S. 470, 481 (2000). It was not
unreasonable for counsel to focus his arguments challenging the
course of conduct instruction to the two areas mentioned above.
Again, counsel need not raise every colorable issue on appeal,
for “[a] brief that raises every colorable issue runs the risk
of burying good arguments.” Jones, 463 U.S. at 753. In the
circumstances here, appellate counsel performed “within the wide
range of professional assistance.” See Strickland, 466 U.S. at
23
689. Because Cole received the effective assistance of counsel
on appeal, we need not consider the prejudice element. In sum,
Cole’s procedural default of the double jeopardy claim cannot be
excused on grounds of cause and prejudice.
In the alternative, Cole argues that his procedural
default ought to be excused because otherwise there would be a
fundamental miscarriage of justice; he claims that he is
actually innocent of the death penalty. “To be actually
innocent of the death penalty, the petitioner must prove by
clear and convincing evidence that but for the constitutional
error, no reasonable juror would have found the petitioner
eligible for the death penalty.” Matthews v. Evatt, 105 F.3d
907, 916 (4th Cir. 1997) (characterizing standard from Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992)). In this case, the jury
found two aggravating circumstances: that the capital felony was
especially heinous, atrocious, or cruel, N.C. Gen. Stat. § 15A-
2000(e)(9); and that the murder was part of a course of conduct
in which the defendant engaged and which included the commission
by the defendant of other crimes of violence against another
person, N.C. Gen. Stat. § 15A-2000(e)(11). Even if the double
jeopardy clause prevented the jury from considering the latter
circumstance, N.C. Gen. Stat. § 15A-2000(e)(11), petitioner has
still not proved by clear and convincing evidence that no
reasonable jury would have recommended a sentence of death. A
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jury could have returned a recommendation of death based
exclusively on its conclusion that the murder was “especially
heinous, atrocious, or cruel,” N.C. Gen. Stat. § 15A-2000(e)(9).
See Sawyer v. Whitley, 505 U.S. 333, 348-50 (1992) (determining
that existence of independently sufficient aggravating
circumstance prevented court from finding that “no reasonable
juror would have found [petitioner] eligible for the death
penalty”). Thus, Cole fails to demonstrate a fundamental
miscarriage of justice sufficient to excuse his procedural
default.
We are satisfied that Cole’s double jeopardy claim was
procedurally barred under North Carolina law. We nevertheless
proceed to discuss the merits of the issue.
B.
We conclude that Cole also fails to qualify for relief
on the merits of his double jeopardy claim. The Supreme Court
has recognized that the Fifth Amendment’s guarantee against
double jeopardy embraces the doctrine of collateral estoppel.
Collateral estoppel prevents the relitigation of issues of
ultimate fact that have been determined by a valid and final
judgment between the same parties. Ashe v. Swenson, 397 U.S.
436, 443 (1970). As described above, Cole argues that he was
found to lack any intent to injure Hattie Graham when his first
25
jury acquitted him of second degree murder and found him guilty,
instead, of involuntary manslaughter. Cole argues that at his
second, 1994 trial the intent to injure Hattie Graham issue was
impermissibly relitigated when the jury was allowed to find the
course of conduct aggravating circumstance.
Cole submitted his collateral estoppel claim to the
state MAR court, which held that he had procedurally defaulted
the claim, and, in the alternative, rejected the claim on the
merits. Under § 2254(d) habeas relief is not available unless
the state adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States. 28 U.S.C. § 2254(d)(1). The Court has
clearly established that the double jeopardy clause incorporates
the doctrine of collateral estoppel in the guilt phase of
criminal proceedings, but it has never addressed whether
collateral estoppel might preclude a jury from finding an
aggravating circumstance in the sentencing phase of a
proceeding. In fact, the Supreme Court expressly left that
question open in Schiro v. Farley, 510 U.S. 222, 232 (1994) (“We
do not address whether collateral estoppel could bar the use of
the ‘intentional’ murder aggravating circumstance . . . .”).
Because of the lack of any clearly established federal law, as
26
determined by the Supreme Court, on this issue, Cole is not
entitled to habeas relief.
Moreover, like the petitioner in Schiro, Cole has not
met his burden of establishing the factual predicate for
applying collateral estoppel. Even assuming that collateral
estoppel does apply in this context, Cole has not established
that an “‘issue of ultimate fact has once been determined’ in
his favor.” Schiro, 510 U.S. at 232 (quoting Ashe, 397 U.S. at
443). The burden is on Cole “to demonstrate that the issue
whose relitigation he seeks to foreclose was actually decided in
the first proceeding.” Schiro, 510 U.S. at 233 (quoting Dowling
v. United States, 493 U.S. 342, 350 (1990)). Cole fails to meet
this burden. He does not show that he was acquitted of any
intent to harm Hattie Graham in his first trial in 1989. Cole
was acquitted of the second degree murder of Hattie Graham,
which is defined as “the unlawful killing of a human being with
malice but without premeditation and deliberation.” State v.
Greene, 336 S.E.2d 87, 88 (N.C. 1985). The 1989 jury was
instructed that it could only find Cole guilty of the second
degree murder of Hattie Graham if it determined that the
government had proved several elements beyond a reasonable
doubt. The jury had to find that Hattie Graham received a fatal
injury that proximately caused her death. The jury also had to
find that Cole intentionally inflicted this injury upon Hattie
27
Graham. Finally, the jury was instructed that it had to find
beyond a reasonable doubt that Cole acted with malice.
To find that the defendant acted with malice you
need not find that he intended to kill Hattie Graham.
But you must find beyond a reasonable doubt that his
acts were so reckless or wantonly done as to indicate
a total disregard of human life. If the State fails
to satisfy you beyond a reasonable doubt that the
defendant acted with malice in connection with the
death of Hattie Graham, the defendant can be guilty of
no more than involuntary manslaughter.
J.A. 26-27. When there are several explanations for the
acquittal verdict, the defendant fails to satisfy his burden of
proving an issue was actually decided. Dowling, 493 U.S. at
352. Here, the instructions reveal that there are several
potential explanations for Cole’s acquittal verdict on the
second degree murder charge with respect to Hattie Graham. The
jury may have found that Cole did not intentionally injure
Hattie Graham. Or, it may have found instead that he did
intentionally injure Hattie Graham, but that he did not do so
with malice. As a result, Cole cannot establish that the issue
of whether he intentionally injured Hattie Graham was actually
decided by his first jury.
The trial court’s instructions to the 1989 jury with
respect to the involuntary manslaughter charge further suggest
that the jury may not have concluded that Cole lacked any intent
to harm Hattie Graham. The theory of involuntary manslaughter
submitted to the jury contemplated that Cole was acting with
28
intent to harm Hattie Graham but not so recklessly or wantonly
as to indicate a total disregard for Hattie Graham’s life. The
trial court instructed the jury that a conviction of involuntary
manslaughter required the state to prove that “the defendant
acted unlawfully by intentionally committing an assault and
battery upon Hattie Graham which caused physical injury to
Hattie Graham.” J.A. 27. Cole argues that under North Carolina
law involuntary manslaughter cannot encompass an intent to
injure. This may be a correct statement of North Carolina law,
but it was never communicated to the 1989 jury. That jury was
expressly instructed that it could find that Cole intentionally
committed an assault and battery upon Hattie Graham and yet
acquit him of second degree murder. Accordingly, the 1994 jury
was not collaterally estopped from finding that Cole acted with
intent to harm Hattie Graham.
IV.
Cole finally claims that he received ineffective
assistance of appellate counsel, which independently entitles
him to habeas relief. He argues that appellate counsel’s
failure to raise the double jeopardy issue deprived him of
effective assistance. We reject this claim. Because his claim
has been adjudicated on the merits in state court (the MAR court
rejected it), § 2254(d) limits habeas relief. No relief is
29
available unless the state adjudication “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States. 28 U.S.C. § 2254(d)(1),(2).
As we conclude in part III.A, supra, appellate counsel’s
representation did not “f[all] below an objective standard of
reasonableness” as judged by “prevailing professional norms.”
Strickland, 466 U.S. at 688. The MAR court therefore did not
engage in an unreasonable application of Strickland when it
rejected Cole’s claim of ineffective assistant of appellate
counsel.
V.
The district court’s order dismissing Cole’s petition
for writ of habeas corpus is
AFFIRMED.
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