FILED

United States Court of Appeals

Tenth Circuit

October 16, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

WADE COLE,
Petitioner,
v.

No. 09-1293
(D. of Colo.)

ARI ZAVARAS, Director of the

Colorado Department of Corrections,

(D.C. No. 07-cv-1197-WDM-KMT)

Respondent.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **

Wade Cole was convicted by a Colorado jury of enticement of a child,

Colo. Rev. Stat. 18-3-305. He is currently serving an indeterminate sentence of
ten years to life. Proceeding pro se, 1 Cole seeks a certificate of appealability
(COA) to challenge the district courts denial of his habeas corpus petition under
*

This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1

Because Cole proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Brown v. Perrill,
21 F.3d 1008, 1009 (10th Cir. 1994).

28 U.S.C. 2254. Cole seeks relief under a litany of legal theories, including
ineffective assistance of counsel, and violation of his First, Fourth, Fifth and
Fourteenth Amendment rights.
After carefully reviewing the record, we conclude Cole is not entitled to
relief on any claim. Exercising jurisdiction under 28 U.S.C. 2253, we therefore
DENY his COA request and DISMISS his appeal.
I. Background
During the period of February 2001 to July 2001, Cole was engaged in
internet correspondence with a police officer who, as part of a sting operation,
was posing as a 14-year-old girl. Their correspondence was often sexual in nature
and Cole repeatedly discussed the sexual acts that would take place when he and
the girl spent time at his house. In July 2001, Cole arranged for a meeting with
this girl at a local mall, and was arrested when he arrived at the appointed
meeting place.
Cole was charged with enticement of a child and attempted sexual assault
on a child. After a jury trial of three days, the jury returned a guilty verdict on
the enticement count, but was unable to reach a verdict on the attempted assault
count. Cole subsequently agreed to admit to a previous sex offense, and in
exchange, the prosecution dismissed the attempted assault count. On July 15,
2002, Cole was sentenced to an indeterminate sentence of ten years to life.

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Cole timely appealed his conviction to the Colorado Court of Appeals,

raising six issues regarding alleged errors in the district court. A divided panel
affirmed his conviction. People v. Cole, No. 02CA1693, 2004 WL 914989 (Colo.
Ct. App. April 29, 2004). Cole filed a petition for a writ of certiorari with the
Colorado Supreme Court, which was denied. He then pursued state postconviction relief pursuant to Colorado Rule of Criminal Procedure 35(c), raising
twenty-seven claims of error. The trial court denied relief, and the Colorado
Court of Appeals affirmed.
Cole then sought federal habeas review of his conviction under 28 U.S.C.
2254, raising thirty-three claims of error. After a thorough analysis of each of
Coles numerous claims, the district court found that two of his claims failed to
present a cognizable federal claim, and thirteen of his claims were procedurally
defaulted through a failure to exhaust state remedies. 2 The district court
2

The district court found the following claims failed to state a cognizable
federal claim: that the trial court should have granted a hearing on Coles
Colorado Rule 35(c) motion, and that the Colorado Court of Appeals violated
Coles rights when it denied Coles requests for documents. The district court
found that the following claims were unexhausted and therefore procedurally
barred: the judge was biased; the trial court misinterpreted the relevant statute;
enticement of a child over the Internet was not a crime at the time of Coles
actions; admission of evidence obtained after a search of Coles apartment
violated his Fourth Amendment rights; destruction of evidence; insufficient
evidence; Coles conviction was actually for an attempt to attempt a crime;
improper jury instructions; a speedy trial violation; impermissible constructive
amendment of the enticement charge; police criminal violations in the operation
of the sting; cumulative errors at trial resulting in a structural error; and a flawed
felony complaint. Cole v. Zavaris [sic], No. 07cv1197, 2009 WL 1600556, at *2
(continued...)
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addressed the remaining eighteen claims on the merits and found that none
presented grounds for relief. The district court therefore denied Coles habeas
petition, Cole v. Zavaris [sic], No. 07cv1197, 2009 WL 1600556, at *25 (D. Colo.
June 4, 2009), and denied Coles request for a certificate of appealability.
Cole then petitioned this court for a COA.
II. Discussion
To obtain a COA, Cole must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). This standard is satisfied by demonstrating that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529
U.S. 473, 484 (2000) (internal quotation marks omitted). To be entitled to a
COA, Cole need not establish that he will succeed on appeal, but he must prove
more than the absence of frivolity or the existence of mere good faith. MillerEl, 537 U.S. at 338 (internal quotation marks omitted). Our role is to conduct an
overview of the claims in the habeas petition and a general assessment of their
merits. Id. at 336.

(...continued)
(D. Colo. June 4, 2009).
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A.

Procedurally Barred Claims

When a petitioners claims are denied on procedural grounds, the reviewing

court undertakes a two-part analysis in determining whether a COA is warranted.
The petitioner must show not only a substantial denial of a constitutional right,
but that the procedural bar applied by the district court was at least debatably
incorrect. Slack, 529 U.S. at 484. Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further. In such a circumstance,
no appeal would be warranted. Id.
1.

Failure to State Cognizable Federal Claim

The district court found that claims four and thirty did not state a federal
claim since they only challenge the states treatment of his post-conviction
motion. Because the constitutional error [Cole] raises focuses only on the
States post-conviction remedy and not the judgment which provides the basis for
his incarceration, it states no cognizable federal habeas claim. Sellers v. Ward,
135 F.3d 1333, 1339 (10th Cir. 1998) (citations omitted). We agree with the
district courts determination and accordingly deny Cole a COA on these issues.
2.

Failure to Exhaust

A writ of habeas corpus may not be granted unless the applicant has
exhausted his available state court remedies, with an exception for circumstances
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in which the existing remedies are not sufficient to protect the applicants rights.
28 U.S.C. 2254(b)(1). Exhaustion requires that the federal issue has been
properly presented to the highest state court, either by direct review of the
conviction or in a postconviction attack. Dever v. Kan. State Penitentiary, 36
F.3d 1531, 1534 (10th Cir. 1994). After comparing Coles federal habeas petition
with his post-conviction appeal and his Colorado Rule 35(c) motion, the district
court found that thirteen of his claims were not fairly presented as federal
constitutional claims during his state proceedings and therefore were
unexhausted.
Our review of the record confirms that these claims were not presented to
the state courts as federal constitutional claims. In some instances, Cole states in
a conclusory fashion that the alleged error violated his federal constitutional
rights, but he cites no federal case law to support those claims and does little to
connect the claim with the rights he alleged were violated. [I]t is not enough to
make a general appeal to a constitutional guarantee as broad as due process to
present the substance of such a claim to a state court. Gray v. Netherland, 518
U.S. 152, 163 (1996). For this reason, we agree with the district courts
determination that these claims were unexhausted.
Furthermore, these claims cannot now be presented in a state court.
Colorado law prevents prisoners from bringing claims previously raised in a prior
appeal or post-conviction proceeding, or claims that could have been
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presentedbut were notin a prior appeal or post-conviction proceeding. Colo.

R. Crim. P. 35(c)(3). Therefore these claims are procedurally defaulted, and we
will not address them unless the petitioner can demonstrate cause and prejudice
or a fundamental miscarriage of justice. English v. Cody, 146 F.3d 1257, 1259
(10th Cir. 1998) (citations omitted). Cause requires a showing that some
objective factor external to the defense impeded the ability of the petitioner to
comply with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488
(1986). A fundamental miscarriage of justice occurs when a constitutional
violation has probably resulted in the conviction of one who is actually innocent.
Id. at 496. Cole has presented no evidence or argument to show either cause or a
fundamental miscarriage of justice.
The district court was therefore correct in applying a procedural bar to
these claims, and reasonable jurists would not find this decision debatable.
B.

Claims Addressed on the Merits

The district court addressed the remainder of Coles claims on the merits,
but likewise found them insufficient to grant habeas relief.
For substantially the same reasons as the district courts order, we conclude
that Cole is not entitled to a COA on any of his claims. Cole has presented
nothing on appeal to suggest that the district courts denial of his habeas petition
was debatable or wrong.

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1.

Subject Matter Jurisdiction

Claims thirty-one through thirty-three attack the subject matter jurisdiction

of the state trial court based on the argument that the statutes under which Cole
was convicted do not constitutionally exist. Though these claims were not
presented to a state court, because they attack subject matter jurisdiction they are
not procedurally barred under Colorado Rule of Criminal Procedure 35(c), and the
district court exercised its discretion under 28 U.S.C. 2254(b)(2) to assess these
claims on the merits. The district court found meritless Coles claims that
Colorado Revised Statutes 18-3-305 was unconstitutional due to a lack of an
enacting clause. This claim does not present a substantial showing of a denial of
a constitutional right, and a COA would be inappropriate.
2.

Existence of a Child

The district court construed claims one, twelve and sixteen as asserting that
Coles conviction was improper because the state never proved the existence of a
child victim. Cole presented this argument during his original trial and in all
subsequent state proceedings, and the state courts rejected his interpretation of the
statute. A state courts interpretation of the state . . . statute is a matter of state
law binding on this court in habeas proceedings. Parker v. Scott, 394 F.3d 1302,
1319 (10th Cir. 2005). Therefore, these claims cannot be grounds for habeas
relief unless the state courts decision was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court or was based on an unreasonable determination of the facts.

28 U.S.C. 2254(d). Cole has pointed to no contrary Supreme Court holdings, as
opposed to mere dicta, Lockyer v. Andrade, 538 U.S. 63, 71 (2003), to indicate
that these state court decisions were contrary to any clearly established federal
law. We therefore decline to issue a COA on these claims.
3.

Miranda Violation

In claim two, Cole asserts that his statements were unconstitutionally

admitted against him in violation of Miranda v. Arizona, 384 U.S. 436, 444
(1966). During his interrogation, Cole was questioned briefly before being given
a Miranda warning, and the trial court admitted only those statements made after
the warning had been given. Furthermore, these statements were never presented
to the jury. Cole has failed to establish a substantial showing of the denial of a
constitutional right, and therefore we decline to issue a COA on this claim.
4.

Fourth Amendment Violations

Claims three, five and twenty-eight involve alleged violations of Coles

Fourth Amendment rights. A state prisoner may not obtain habeas relief based on
a violation of his Fourth Amendment rights unless he was denied the opportunity
for full and fair litigation of those claims in the state courts. Stone v. Powell, 428
U.S. 465, 494 (1976); Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir.
2009). Cole presented all of these claims during his trial, and raised them again
on direct appeal, and in his state post-conviction motions. We find the district
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courts dismissal of these claims applied the proper law in a manner that no
reasonable jurists would find debatable, and therefore we decline to issue a COA
on these claims.
5.

Freedom of Speech

In claim six, Cole argues his conviction violated his First Amendment right
to freedom of speech, since it was based on protected speechi.e., his e-mails.
Cole cites Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). He appears to
equate virtual child pornography with the exchange of e-mails with a person
who was only impersonating a child. This case does not provide support for
Coles assertion that he has a constitutionally protected right to engage in speech
directed at a person believed to be a minor that solicits and encourages unlawful
sexual behavior. He has failed to present any indication of a denial of a
constitutional right, and we decline to grant a COA on this issue.
6.

Entrapment

Cole argues in claim seven that he was entrapped by the officer posing as a
fourteen-year-old, and his constitutional rights were therefore violated. Insofar as
he is relying on the Colorado affirmative defense of entrapment, this is a state law
claim and therefore does not show a denial of a constitutional right. Vega v.
Suthers, 195 F.3d 573, 583 (10th Cir. 1999). If, as construed by the district court,
Cole was attempting to raise the defense of outrageous government conduct, a
defense based on the Due Process clause, this claim also fails. A review of the
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record demonstrates that the sting operation in which Cole was arrested was not a
situation in which the government engineer[ed] and direct[ed] the criminal
enterprise from start to finish and the defendant contribute[d] nothing more than
his presence and enthusiasm. United States v. Sneed, 34 F.3d 1570, 1577 (10th
Cir. 1994). Reasonable jurists would not debate this analysis, and therefore we
decline to grant a COA on this issue.
7.

Brady Violation

In claim eight, Cole alleges the government withheld exculpatory evidence

during his trial, specifically, that the area in which Cole initially contacted the
police officer was an adult only area of the Internet. The district court analyzed
this claim under Brady v. Maryland, 373 U.S. 83 (1963), and found no violation
had occurred. This information, if true, was already known to Cole at the time of
his trial, and it was not material under Brady, because there was ample evidence
that Cole believed he was corresponding with someone who was not an adult.
This claim does not present a substantial showing of the denial of a constitutional
right, and therefore we decline to issue a COA on this claim.
8.

Double Jeopardy

Coles eleventh claim is that he was charged multipliciously, which the

district court construed as a claim that he was charged twice for the same act in
violation of the Double Jeopardy clause. Applying the test set forth in
Blockburger v. United States, 284 U.S. 299 (1932), to the two statutes with which
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Cole was charged, the court found no violation since each statute requires proof
of an additional fact which the other does not. Id. at 303. Reasonable jurists
would not debate that this was the correct application of the Blockburger test, and
therefore we deny a COA on this issue.
9.

Perjured Testimony

Claim seventeen presents the argument that Coles conviction violated his
due process rights because it was obtained based in part on perjured testimony by
the police officer in charge of the sting operation. A review of the full record
reveals Cole has presented no evidence that his conviction was based on perjured
testimony. Nor has he presented evidence or argument sufficient to show that the
district courts conclusion on this issue was debatable or wrong. We therefore
deny a COA on this issue.
10.

Right to Privacy

In claim nineteen, Cole asserts that his due process right to privacy was
violated when the prosecution used the e-mails he had sent to the police officer
involved in the sting. He presents no legal authority for the proposition that there
is a reasonable expectation of privacy in e-mails sent to a stranger over the
Internet, or that the person to whom the e-mails are directed may not disclose
them. The district court found no legal authority for these propositions, either,
and reasonable jurists would not debate the correctness of this conclusion.
Therefore, we deny a COA on this claim.
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11.

Equal Protection

In claim twenty, Cole asserts his equal protection rights were violated
because the statute under which he was convicted criminalized behavior that
would have been legal between two consenting adults. Because this statute does
not involve a protected classification and does not infringe on a fundamental
right, it is Coles burden to show that the statute lacks a rational basis. PriceCornelison v. Brooks, 524 F.3d 1103, 1110 (10th Cir. 2008). Because he has
failed to do so, he has not established a substantial showing of the denial of a
constitutional right, and we deny a COA on this claim.
12.

Ineffective Assistance of Counsel

In claim twenty-three, Cole alleges he received ineffective assistance of

counsel. In order to demonstrate a constitutional violation, he must show that his
counsels performance fell below an objective standard of reasonableness, and
that this deficient performance resulted in prejudice to Cole. Strickland v.
Washington, 466 U.S. 668, 68788 (1984). Coles allegations together with the
record show that while his counsel did not call any witnesses, interview witnesses
by phone, or retrieve allegedly relevant documents mailed to Cole while he was
incarcerated, counsel successfully moved for suppression of certain evidence,
cross-examined prosecution witnesses, and delivered opening and closing
arguments. The district courts determination that counsels behavior was

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reasonable and did not result in prejudice to Cole is not debatable by reasonable
jurists. For this reason, we decline to grant a COA on this issue.
III. Conclusion
We conclude that reasonable jurists could not debate the resolution of the
constitutional claims presented. Accordingly, we DENY Coles request for a
certificate of appealability, and DISMISS his appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge

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