Wade Cole v. Gerald Branker
Filing
920081211
Opinion
CORRECTED OPINION UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 Corrected Opinion Filed:
Decided:
November 3, 2008
December 11, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Michael wrote opinion, in which Judge Wilkinson and Judge Shedd joined.
the
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Unpublished opinions are not binding precedent in this circuit.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. courts rejected Cole's direct appeals and The North Carolina 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. Cole's convictions for the murder of
The events that led to 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 medical police arrested Cole later that morning. had The
examiner
determined
that
Theresa
Graham
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 He was
symptoms of depression and exhibited suicidal thoughts.
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 See
is the threshold score associated with mental retardation. 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 6 the second degree. The jury
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 (1) two aggravating the factors of for Theresa the jury's was
consideration:
whether
murder
Graham
especially heinous, atrocious, or cruel, N.C. Gen. Stat. § 15A2000(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. 7
Id. at 718.
Cole was retried and was again convicted of the first degree murder of Theresa Graham and the involuntary manslaughter of Hattie Graham. the (1) jury that At Cole's found the second the murder same of capital two sentencing aggravating Graham was
proceeding, circumstances,
Theresa
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. ten mitigating circumstances death, and that on The jury also found nine of were June submitted. 13, 1994, The the jury court
again
recommended
sentenced Cole to death for the murder and to a concurrent twoyear sentence of imprisonment for the involuntary manslaughter. For the second time Cole appealed his convictions and sentences to the North Carolina Supreme Court. 471 S.E.2d 362 (N.C. 1996). State v. Cole,
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 person. that included a crime of violence against another
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. also argued that the trial judge 8 gave unduly Id. He jury
vague
instructions on the course of conduct aggravating circumstance. Id. at 373. estopped from Cole did not argue that the jury was collaterally finding the Court 376, the course of conduct clause. aggravating The North and Court
circumstance Carolina sentences,
under
double
jeopardy
Supreme id. at
affirmed and the
Cole's
convictions Supreme
United
States
denied certiorari, Cole v. North Carolina, 519 U.S. 1064 (1997). Cole filing a pursued for collateral appropriate relief relief in (MAR) state in court the by
motion
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. 9 N.C. Gen. Stat. § 15A-
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 The
individuals.
See Atkins v. Virginia, 536 U.S. 304 (2002).
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. hearing in May 2003.
The court held an evidentiary
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 Dr.
other intelligence tests in which Cole had higher scores: 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 An expert witness testified
the two higher I.Q. test scores.
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. 10 Moreover, the expert
indicated
that
he
would
not
consider
the
1989
WAIS-R
test
results valid because only nine of eleven relevant subtests were administered. of a number In addition, the court considered the testimony 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 State v.
Supreme Court denied Cole's petition for certiorari. 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. 05-HC-461-D (E.D.N.C. Sept. 20,
Cole v. Branker, No. 5Certificates of
2007).
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 precluded proceedings the jury through from the double the jeopardy course of clause, conduct
finding
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. v. Virginia, 536 U.S. 304, 321 (2002). expressly left to the states the task Atkins
The Court, however, 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. § 15A-2005(a)(1). functioning" are "Significant deemed to exist limitations when a in person Id.
adaptive suffers
significant limitations in two or more of the following skill areas: communications, use, self-care, home living, and social skills,
community academics,
self-direction, skills,
health work
safety,
functional Id. § 15A-
leisure
and
skills.
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. separate North Carolina statute, N.C. Gen. Stat.
A
§ 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. made relief from the death penalty available for It those
defendants who proved mental retardation, as defined in § 15A2005. 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 death sentence applied in the under Camden § 15A-2006 County for relief from and his on
Superior
Court,
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: significant of mental
significantly limitations in
subaverage adaptive
intellectual function, or
functioning, manifestation
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, and 453 F.3d 567, Death 591 (4th Cir. Act 2006). prescribes The "a
Antiterrorism
Effective
Penalty
highly deferential standard for evaluating statecourt 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. § issues are 2254(d). entitled only by Moreover, state determinations of factual to a presumption and of correctness evidence. that is Id.
rebuttable
clear
convincing
§ 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 While "a
conclusions do not change our legal analysis, however.
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. correctly determined that Cole (the lacks
If the state court subaverage then its
significantly element),
intellectual
functioning
first
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." 290, 299 (4th for Cir. the 2008). following Cole Green v. Johnson, 515 F.3d fails in this the effort. state We
conclude,
reasons,
that
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). evidence does not render the
J.A. 380-81, 726-27. state court's
This
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. 16 Moreover, Cole
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 Accordingly, we that Cole
Cole did not prove he is mentally retarded. need not review the state court's
determinations
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 See 28 U.S.C. are the Id.
determination of the facts, as Cole contends. § 2254(d)(2). presumed A state unless clear court's the and factual
determinations rebuts
correct with
habeas
petitioner
presumption
convincing
evidence.
§ 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." 157 (quoting Hennon v. Cooper, 109 F.3d Wright, 151 F.3d at 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. invokes the doctrine of collateral estoppel Specifically, he 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." U.S. 436, 443 (1970). Ashe v. Swenson, 397
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. Cole, his (second) 1994 jury was
Thus, according to estopped from
collaterally
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 The
jeopardy clause in state MAR court on collateral review.
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. F.3d 700, 714 (4th Cir. 2008). Cole attempts to show cause and prejudice sufficient to excuse his procedural default. argues that he received To demonstrate cause, Cole assistance of appellate Lawrence v. Branker, 517
ineffective
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. 451. Edwards, 529 U.S. at
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. 451. In this case, It Cole was did not default on his state Id. at
ineffective collateral
assistance
claim.
timely
raised
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). defective assistance has two components. must show that showing was not counsel's that performance made the Constitutionally
"First, the defendant was deficient. so serious guaranteed This that the
requires counsel
counsel as
errors
functioning
`counsel'
defendant by the Sixth Amendment. show that the deficient
Second, the defendant must prejudiced the defense."
performance
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" Id. at 688. judged There by is "prevailing a "strong
professional
norms."
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 Jones
counsel need not raise every colorable claim on appeal. 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. involuntary manslaughter conviction Counsel argued that Cole's was not supported by the
evidence, yet may have provided the basis for the course of conduct reversal aggravating of Cole's circumstance death found was by the jury. The
sentence
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. 362, 373 (N.C. 1996). arguments on appeal. rule that counsel Jones, State v. Cole, 471 S.E.2d
In total, appellate counsel made sixteen Id. at 365. not U.S. raise at Especially in light of the every 754, colorable appellate claim on
need 463
appeal,
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. raises every colorable issue runs the risk of
"A brief that burying good
arguments." counsel
Jones, 463 U.S. at 753. "within the See
We conclude that appellate range 466 of reasonable at 689;
performed
wide
professional
assistance."
Strickland,
U.S.
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. argument simply "did not occur to [counsel]." Rather, the "[T]he
J.A. 911.
relevant question," however, "is not whether counsel's choices were strategic, but 528 whether U.S. they were reasonable." It Roe was v. not
Flores-Ortega,
470,
481
(2000).
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." 23 See Strickland, 466 U.S. at
689.
Because Cole received the effective assistance of counsel In sum,
on appeal, we need not consider the prejudice element.
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 actually innocent miscarriage of death of justice; death he claims "To that be he is
innocent of the
the
penalty. the
actually prove by
penalty,
petitioner
must
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. § 15A2000(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 A
reasonable jury would have recommended a sentence of death. 24
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 Thus, of found Cole [petitioner] fails to eligible for a his the death
penalty"). miscarriage default.
demonstrate to excuse
fundamental procedural
justice
sufficient
We are satisfied that Cole's double jeopardy claim was procedurally barred under North Carolina law. proceed to discuss the merits of the issue. We nevertheless
B. We conclude that Cole also fails to qualify for relief on the merits of his double jeopardy claim. has recognized that the Fifth Amendment's The Supreme Court 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. 436, 443 (1970). Ashe v. Swenson, 397 U.S.
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 but estoppel it has in the guilt phase of
criminal collateral
proceedings, estoppel
never a jury
addressed from
whether an a
might
preclude in the
finding of
aggravating proceeding.
circumstance In fact, the
sentencing Court
phase
Supreme
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 estoppel. the factual predicate that for
applying
collateral
Even
assuming
collateral
estoppel does apply in this context, Cole has not established that an "`issue of ultimate fact has once been determined' in his favor." 443). Schiro, 510 U.S. at 232 (quoting Ashe, 397 U.S. at
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 Cole fails to meet
v. United States, 493 U.S. 342, 350 (1990)). this burden.
He does not show that he was acquitted of any Cole
intent to harm Hattie Graham in his first trial in 1989. 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." Greene, 336 S.E.2d 87, 88 (N.C. 1985). The 1989 State v. jury was
instructed that it could only find Cole guilty of the second degree murder had of Hattie Graham if it determined beyond a that the
government doubt.
proved
several
elements
reasonable
The jury had to find that Hattie Graham received a fatal The jury also had to
injury that proximately caused her death.
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. 352. Here, the instructions for reveal Dowling, 493 U.S. at that there are several on the The
potential
explanations
Cole's
acquittal
verdict
second degree murder charge with respect to Hattie Graham. jury may have found Or, that it Cole did not intentionally instead that
injure he did
Hattie
Graham.
may
have
found
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 upon by intentionally Graham which committing caused an assault injury and to
battery
Hattie
physical
Hattie Graham." law involuntary
J.A. 27.
Cole argues that under North Carolina cannot encompass an intent to
manslaughter
injure.
This may be a correct statement of North Carolina law, That jury was
but it was never communicated to the 1989 jury.
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 assistance him to of finally appellate relief. the claims that he received ineffective entitles counsel's him of
counsel, He
which
independently appellate
habeas to
argues
that
failure
raise
double
jeopardy
issue
deprived
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 29 habeas relief. No relief is
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. As we conclude in part III.A,
28 U.S.C. § 2254(d)(1),(2). 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. engage in an unreasonable claim of
The MAR court therefore did not of Strickland of when it
application ineffective
rejected counsel.
Cole's
assistant
appellate
V. The district court's order dismissing Cole's petition for writ of habeas corpus is AFFIRMED.
30
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