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UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

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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

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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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