Cole v. Secretary, Department of Corrections et al
Filing
15
OPINION AND ORDER. 1. Cole's petition for writ of habeas corpus 1 is DENIED. 2. The Clerk is directed to enter judgment against Cole and to close this case. 3. Cole is not entitled to a certificate of appealability ("COA" ). A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A COA must first issue. Id. "A [COA] may issue... only if the applicant has made a subst antial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Cole "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Cole has not made this showing. Because Cole is not entitled to a COA, he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 6/25/2018. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ARMISTAR COLE,
Petitioner,
v.
Case No. 8:15-cv-1910-T-36JSS
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________/
ORDER
Armistar Cole, a Florida inmate, timely filed a petition for writ of habeas corpus under 28
U.S.C. § 2254 challenging his Hillsborough County convictions (Dkt. 1). Respondent filed a response
(Dkt. 8), and Cole filed a reply (Dkt. 13). Upon consideration, the petition will be DENIED.
Procedural History
Cole was convicted after a jury trial of armed robbery and armed kidnapping. (Dkt. 10, Ex.
1, Vol. I, pp. 90-91). The trial court sentenced him to life in prison on both charges. (Dkt. 10, Ex. 1,
Vol. II, p. 250). The state appellate court affirmed Cole’s conviction and sentence for armed robbery,
but reversed his conviction for armed kidnapping and directed the trial court to enter a judgment for
the lesser offense of false imprisonment with a firearm. Cole v. State, 942 So.2d 1010 (Fla. 2d DCA
2006). The trial court did so and sentenced Cole to five years in prison for that charge. (Dkt. 10, Ex.
7). Cole did not appeal.
Cole filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.
(Dkt. 10, Ex. 16). Following two remands from the state appellate court, the state postconviction court
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denied relief on the claim that Cole raises in his federal habeas petition. (Dkt. 10, Exs. 31, 39, 40);
Cole v. State, 89 So.3d 993 (Fla. 2d DCA 2012) and Cole v. State, 146 So.3d 1259 (Fla. 2d DCA
2014). The state appellate court per curiam affirmed this denial of relief. (Dkt. 10, Ex. 42).
Facts1
Theresa Zioerjen and her husband owned a Dollar Store. While Zioerjen was working there
on the morning of July 8, 2003, Cole came in and purchased a bag of candy. Cole returned to the store
a second time and bought a drink. When he entered the store a third time to buy candy, he placed
money on the counter. As Zioerjen looked down to get change, Cole jumped over the counter and
grabbed her by the neck. After a struggle, Cole pulled out a gun and took Zioerjen’s purse. Cole also
took a DVD player from behind the counter. He demanded that Zioerjen open a file cabinet,
apparently believing it might contain money. After seeing that the file cabinet held only supplies, he
pointed the gun at Zioerjen and told her to get in the bathroom and stay there.
A short time later, Zioerjen heard a chime indicating that Cole had exited. She left the
bathroom and called 911. Police obtained videos from the store’s security system that showed the
robbery, Cole’s two entrances into the store prior to the robbery, and the exterior area. A video from
the parking lot showed a white pickup truck with several distinctive features, such as striping along
the side and a toolbox in the bed.
Several months later, police developed Cole as a suspect when he was pulled over driving
a truck similar to the one seen in the surveillance video. Detective Jimmy Hinkle made a photopack
containing Cole’s photo and showed it to Zioerjen. She identified Cole as the perpetrator. After
police arrested Cole, he called his wife from jail and requested that she remove a DVD player from
1
The factual summary is based on the trial transcript and appellate briefs.
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their home. Police later recovered the DVD player from an acquaintance of the Coles. The DVD
player was the same model as the DVD player taken from the store, and a remote control provided by
Zioerjen worked on it.
Standard Of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. See
Penry v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can only be granted if a petitioner is in
custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the
merits in state court unless the state court’s 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.
A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application” of clearly
established federal law “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”
Id. at 413.
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693
(2002). Accordingly, “[t]he focus . . . is on whether the state court’s application of clearly established
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federal law is objectively unreasonable, and . . . an unreasonable application is different from an
incorrect one.” Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s
ruling on the claim being 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 fairminded
disagreement.”).
The state appellate court affirmed the denial of Cole’s postconviction relief in per curiam
decisions. These decisions warrant deference under § 2254(d)(1) because “the summary nature of a
state court’s decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented
to a state court and the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to the
contrary.”). When a state appellate court issues a silent affirmance, “the federal court should ‘look
through’ the unexplained decision to the last related state-court decision that does provide a relevant
rationale” and “presume that the unexplained decision adopted the same reasoning.” Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
Ineffective Assistance Of Counsel
Cole claims ineffective assistance of trial counsel. His claims are analyzed under Strickland
v. Washington, 466 U.S. 668 (1984). Cole must demonstrate that his counsel performed deficiently
in that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88.
However, “counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “[A] court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged
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conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id.
Cole must also show that he suffered prejudice by demonstrating “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal
habeas review is “doubly” deferential to counsel’s performance and the state court’s decision.
Richter, 562 U.S. at 105.
Discussion
Ground One
Cole alleges that trial counsel was ineffective in failing to adequately cross-examine Detective
Hinkle and Theresa Zioerjen. He identifies three topics about which he believes counsel should have
further cross-examined Detective Hinkle: 1) Detective Hinkle’s alleged failure to identify Cole as the
suspect seen in the video; 2) Detective Hinkle’s alleged failure to investigate another suspect; and 3)
Detective Hinkle’s failure to identify a gun in the video of the robbery. He also claims that counsel
was ineffective in not asking Zioerjen to identify a gun in the video.
On remand from the state appellate court, the state postconviction court denied Cole’s claims,
finding that he could not demonstrate prejudice as a result of counsel’s performance:
Afer reviewing the allegations, the Cole opinion, the court file, and the record, the
Court finds based on the overwhelming evidence of Defendant’s guilt presented at
trial, including the victim’s identification of Defendant as the perpetrator of the crime,
the brutal surveillance video of the robbery, and the recorded jail calls from
Defendant to his wife advising her to get rid of a DVD player, which was an item
stolen during the robbery, Defendant cannot demonstrate that if his counsel would have
impeached or cross-examined Detective Hinkle or the victim as alleged, there is a
reasonable probability that the outcome of the trial proceedings would have been
different. As such, no relief is warranted.
(Dkt. 10, Ex. 39, p. 4) (court’s record citations omitted).
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1.
Detective Hinkle’s Alleged Failure To Identify Cole
The State presented significant evidence of Cole’s identity. Zioerjen testified that Cole came
into the store three times the morning of the robbery, and that nothing disguised or covered his face.
(Dkt. 10, Ex. 1, Supp. III, pp. 201-03). She also testified that she was in close proximity to Cole. (Id.,
pp. 203-06, 227). Zioerjen recalled giving police a description of Cole, and testified that she was
certain in her photo pack identification of Cole. (Id., pp. 211-13). She stated that she knew “from the
minute [she] looked at the pictures who it was.” (Id., p. 213). When she identified Cole in the
courtroom, she said that she was sure he was the person who robbed her. (Id., pp. 222-23).
Additionally, after Cole told his wife to dispose of a DVD player, police recovered from the Coles’
acquaintance a DVD player of the same model taken from the store, which worked with a remote
control provided by Zioerjen. (Dkt. 10, Ex. 1, Supp. II, pp. 139-46).
Cole identifies four matters that he believes are relevant to identity and should have been
addressed during counsel’s cross-examination of Detective Hinkle. Each is discussed below.
However, as the state court found, Cole cannot show prejudice under Strickland.2
A.
Whether Detective Hinkle Spoke To Zioerjen At The Scene
Detective Hinkle testified at trial that he did not believe he spoke to Zioerjen when he
2
Cole also states, as he did in his postconviction motion, that counsel failed to cross-examine Zioerjen about
her prior statement that she had viewed the video several times before identifying Cole from the photo pack and that
she showed the video to her family. It appears that Cole raises this information only to show “a consistent pattern in
trial counsel’s deficiency during cross-examination.” (Dkt. 1, p. 9). However, the state court appeared to construe
his assertion as a claim for relief and, as addressed, denied all of Cole’s claims on Strickland’s prejudice prong. To
the extent Cole intends to argue that counsel was ineffective in failing to cross-examine Zioerjen concerning this
information, he has not shown entitlement to relief. Counsel elicited Zioerjen’s testimony that she had seen the video
six or seven times. (Dkt. 10, Ex. 1, Supp. III, p. 226). But she also stated that her testimony was based on her memory
of the events and not on the video. (Id., p. 227). In light of the entirety of Zioerjen’s testimony and the other evidence
of identity, Cole does not show prejudice as a result of counsel’s failure to clarify how many times she saw the video
prior to viewing the photo pack. Nor does he establish the significance of her showing the video to her family. Cole
does not demonstrate that the state court unreasonably applied Strickland or unreasonably determined the facts in
denying this claim.
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responded to the store because she had been taken to the hospital. (Dkt. 10, Ex. 1, Supp. II, pp. 10809). Cole claims that counsel failed to impeach Detective Hinkle with his inconsistent deposition
testimony that he did talk to Zioerjen at the store. However, Cole does not explain the significance
of the alleged inconsistency between Detective Hinkle’s deposition and trial testimonies. Given the
inconsequential nature of the alleged discrepancy, and in light of the significant evidence of Cole’s
identity, Cole cannot show that he suffered prejudice as a result of counsel’s performance.
B.
The Brand Of The White Truck
The evidence presented at trial shows that Detective Hinkle initially believed that the white
pickup truck seen in the surveillance video may have been a Toyota, but that it was later determined
to be a Nissan. On cross-examination, Detective Hinkle testified that when he and other officers
watched the video, he could not tell the truck’s brand but “would have said Toyota because [he] had
owned one.” (Id., p. 150). He stated that even after another officer identified the truck as a Nissan
Frontier based on the video, he was not positive of the truck’s brand. (Id., pp. 150-51). Cole claims
that counsel was ineffective in not asking Detective Hinkle how, specifically, police concluded the
truck was a Nissan. But Cole does not explain what information Detective Hinkle would have
testified to or how it would have benefitted the defense. Considering the vagueness of Cole’s claim
and the evidence of identity described above, Cole does not establish a reasonable probability that
the outcome would have been different had counsel inquired further about how police determined the
truck’s brand.
C.
Comparison Of T-Shirts From Cole’s House To The Perpetrator’s T-Shirt
Detective Hinkle testified that he believed that two T-shirts found in Cole’s home matched the
T-shirt worn by the perpetrator in the video. Counsel made three objections to this testimony:
Q. Were you able to locate any evidence inside of the defendant’s home?
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A. Yes.
Q. And what did you find?
A. Two T-shirts that matched the T-shirts worn by the suspect in the video during the
robbery and the time that the suspect was in the store prior to the robbery.
Q. On the second - [COUNSEL]: Again, I object to the comment that they matched. I think that’s
for the jury to decide.
THE COURT: Overruled.
...
Q. Detective, if you could step down and briefly show why you thought these two
particular T-shirts were of evidentiary value when you first collected them.
[COUNSEL]: I object. They’re in evidence already. The jury can summarize
whatever benefit or value they are worth.
THE COURT: No. You can address it on cross-examination.
[COUNSEL]: Yes, sir.
...
Q. In addition to the one video there, there was an additional photo where he was in
the store prior to that, too?
A. Yes. Again, I could actually see the temple that’s in the center of this T-shirt
which to me was a unique T-shirt that I had never seen before. Also in this video I
could see the temple in the center of that. Even [in] the still photograph I could see the
temple and when I looked at the video, it was clear to me it was the same image.
[COUNSEL]: Again, I object to the officer giving us his opinion.
THE COURT: Well, overruled.
(Dkt. 10, Ex. 1, Supp. II, pp. 124, 128, 129).
Cole claims that counsel was ineffective in failing to more specifically object that Detective
Hinkle was improperly providing lay opinion testimony. Under § 90.701(2), Fla. Stat., a lay witness
may give opinion testimony if his opinion “do[es] not require a special knowledge, skill, experience,
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or training.” Cole claims that Detective Hinkle’s opinion about the T-shirt comparison did require
such qualifications, and that counsel therefore also should have asked Detective Hinkle whether he
had such knowledge, skill, experience, and training as to render him an expert. Cole also contends
that counsel was ineffective in failing to question Detective Hinkle about the T-shirts on crossexamination. However, even if counsel had successfully excluded Detective Hinkle’s opinion
testimony, or had cross-examined him about the T-shirts, Cole does not show a reasonable probability
that the outcome of trial would have been different considering the State’s evidence of identity.3
D.
Still Photograph Taken From Surveillance Video
Detective Hinkle testified that a still photograph taken from the surveillance video was
lightened to enhance its quality. (Dkt. 10, Ex. 1, Supp. II, p. 127). Cole contends that counsel should
have asked Detective Hinkle if he could positively identify Cole in the photograph after it was altered,
and why he did not send the video to the Florida Department of Law Enforcement “for clarity.” (Dkt.
1, p. 12). Cole suggests that in altering the photograph, Detective Hinkle “was conducting
comparisons that required special knowledge, skill, experience, and training” and was giving opinion
testimony. (Id.). But even assuming that 1) counsel could have excluded the altered photograph or
Cole’s testimony about it, or 2) Detective Hinkle would have said that he could not identify Cole from
the enhanced photograph, Cole cannot show prejudice because the jury still heard of the overwhelming
evidence of his identity unrelated to the photograph.
Cole has not shown prejudice as a result of counsel’s alleged failure to address any of the
3
In his reply, Cole argues that the trial court erred in admitting Detective Hinkle’s testimony about the Tshirts. Cole may not bring a new claim in his reply. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(“[The court does] not address arguments raised for the first time in a pro se litigant’s reply brief. Lovett v. Ray, 327
F.3d 1181, 1183 (11th Cir. 2003). Timson, thus, has abandoned this issue.”). Further, because the claim alleges a
violation of state law, it is not cognizable on federal habeas review. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.
1988).
Page 9 of 14
above matters relevant to establishing Cole’s identity as the perpetrator. He has not shown that the
state court’s denial of his claim involved an unreasonable application of Strickland or was based on
an unreasonable determination of fact.
2.
Detective Hinkle’s Alleged Failure To Investigate Another Suspect
After a local news channel aired video of the robbery, police received a tip that the robber
resembled a man named Ronnie Mata. On cross-examination, Detective Hinkle testified that he
contacted Mata but determined that Mata was not a suspect:
Q. Let me start out with a statement that you had made earlier and give you a chance
to explain your answer, and then I’m gong to ask you about it. You had made a
statement in response to a question from the prosecutor whether there were any leads
developed from the video and you said, no.
A. Yes, sir.
Q. And I say to you that - - that’s not true? That there were some leads? And I would
like for you to have an opportunity to explain that answer.
A. Well, sir, in the context of that question, I meant leads that had any significance to
me in the investigation at this time.
Q. Okay. But there were leads that were developed from the Crime Stopper video,
weren’t there?
A. Yes, sir, tips.
Q. Tips. One was a man named Mata.
A. Yes, sir.
Q. That someone had called and said that Mr. Mata resembles the person in the
video?
A. Yes.
Q. All right. And in canvassing the neighborhood, wasn’t there also information
concerning a man named Eddie Byrd?
A. Yes, sir.
Page 10 of 14
Q. Now, you discounted these. These leads you say didn’t go anywhere?
A. Yes.
(Dkt. 10, Ex. 1, Supp. II, pp. 148-49).
On redirect, Detective Hinkle addressed his conclusion that Mata was not a suspect:
Q. Detective Hinkle, you said that you received a few other tips that the defense
mentioned. Why did you discount these particular tips that you received?
A. One of them was a neighborhood survey conducted by patrol officers at the time
of the robbery. That was the Mr. Byrd that was referred to, had described an
individual leaving the store with a bag of candy who had come outside and sat down
on the bench outside. Well, that immediately - - after knowing what occurred in the
video, I knew the suspect that did the robbery did not go back outside and sit at the
bench, so I discounted that.
The Crime Stoppers tip led me to Mr. Mata and his work address. I went to his work
address. I wasn’t able to talk to him at the work address, but I was able to get him to
contact me. And I spoke with him, pulled up a photograph of him and looked at him
and I did not feel that he could have been the suspect in this robbery.
Q. What were some - - were there any distinct features that would lead you to believe
that he was not, in fact, the person who committed this robbery?
A. There were, but I don’t remember specifically what the physical differences were.
I just remember that after speaking with him and looking at his photograph, that he
wouldn’t be the person that had committed this robbery in the video.
(Id., pp. 155-56).
Cole argues that counsel was ineffective in failing to adequately cross-examine Detective
Hinkle about two matters concerning Mata. However, as the state court found, Cole has not
established prejudice.
A.
Federal Indictment Of Mata
Cole claims that Mata was the subject of a federal indictment for armed robbery. He claims
that counsel must have known about the indictment because an investigator from the Public Defender’s
Office obtained a copy of the indictment. Therefore, Cole contends, counsel should have asked
Page 11 of 14
Detective Hinkle about the indictment and brought up Detective Hinkle’s allegedly false deposition
testimony that Mata was not linked to any armed robberies. But because Cole fails to show that
Mata’s indictment in another case was relevant to whether Mata may have been a suspect in this case,
and because of the substantial evidence of Cole’s identity, Cole does not show a reasonable
probability that the outcome of trial would have been different had counsel asked Detective Hinkle
about the indictment. Accordingly, he has not demonstrated prejudice due to counsel’s performance.
B.
Detective Hinkle’s Failure To Meet Mata In Person
Cole claims that counsel should have asked Detective Hinkle how, considering he had never
met Mata in person, he could be sure 1) that the photograph he looked at actually depicted Mata and
2) that Mata’s stature was inconsistent with the person shown in the video. Cole does not establish
prejudice as a result of counsel’s failure to ask these questions. Detective Hinkle did not reference
the stature of the suspect in the video in testifying about his decision not to purse Mata, and Cole only
speculates that the photograph Detective Hinkle obtained might not have actually depicted Mata. See
Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (a federal court may not grant habeas relief “on the basis
of little more than speculation with slight support.”); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th
Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of
counsel claim). Accordingly, as the state court found, Cole cannot show that he was prejudiced by
counsel’s performance. Cole does not show that the state court unreasonably applied Strickland or
unreasonably determined the facts in denying his claims that counsel was ineffective in crossexamining Detective Hinkle about Mata.
3.
Detective Hinkle’s And The Victim’s Failure To Identify A Gun In The Video
Cole argues that counsel was ineffective in not asking either Detective Hinkle or the victim
to identify the gun in the video. He appears to contend that counsel’s failure to do so deprived him
Page 12 of 14
of an argument to support his motion for judgment of acquittal. The state court did not unreasonably
deny this claim on Strickland’s prejudice prong. The State presented significant evidence showing
that Cole used a gun. Zioerjen testified that Cole pulled out a gun during the robbery and pointed it
at her. (Dkt. 10, Ex. 1, Supp. III, p. 204, 207). She described it as a small silver gun about the size
of Cole’s hand. (Id., p. 205). Zioerjen had some familiarity with guns because she had taken a selfdefense course during which she learned to fire a gun, and she testified that the gun appeared real to
her. (Id.). She also testified that she was less than three feet from Cole when she saw the gun. (Id.,
p. 206).
Accordingly, even assuming that neither witness could identify a gun in the video, Cole was
not prejudiced in light of this evidence. First, Cole does not show a reasonable probability that he
would have succeeded on a motion for judgment of acquittal. When considering such a motion, the
court must view the evidence in the light most favorable to the State. See State v. Williams, 742 So.2d
509, 511 (Fla. 1st DCA 1999) (“[A] court should not grant the motion [for judgment of acquittal]
unless, when viewed in a light most favorable to the state, the evidence does not establish the prima
face case of guilt.” (citation omitted)). The evidence, taken in the light most favorable to the State,
establishes that Cole possessed a gun during the offenses. Further, considering Zioerjen’s testimony
about the gun, Cole fails to show a reasonable probability that the jury’s verdict would have been
different even if the witnesses could not specifically identify a gun in the video. Accordingly, Cole
has not demonstrated that the state court unreasonably applied Strickland or unreasonably determined
the facts in denying his claim.4 Cole is not entitled to relief on Ground One.
4
In his reply, Cole alleges that the state postconviction court failed to attach to its order portions of the
record that refuted his claims. Cole may not raise a new claim in his reply. Timson, 518 F.3d at 874. Further, an
allegation of a deficiency in the state postconviction proceedings is not cognizable on federal habeas review because
it does not challenge the validity of the conviction. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009).
(continued...)
Page 13 of 14
Any of Petitioner’s allegations not specifically addressed herein have been found to be without
merit.
It is therefore ORDERED AND ADJUDGED that:
1. Cole’s petition for writ of habeas corpus (Dkt. 1) is DENIED.
2. The Clerk is directed to enter judgment against Cole and to close this case.
3. Cole is not entitled to a certificate of appealability (“COA”). A petitioner does not have
absolute entitlement to appeal a district court’s denial of his habeas petition. 28 U.S.C. § 2253(c)(1).
A COA must first issue. Id. “A [COA] may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a showing, Cole
“must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Cole has not made this showing.
Because Cole is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 25, 2018.
Copies to:
Armistar Cole
Counsel of Record
4
(...continued)
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