                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 16, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 WADE COLE,

                 Petitioner,                              No. 09-1293
          v.                                              (D. of Colo.)
 ARI ZAVARAS, Director of the                 (D.C. No. 07-cv-1197-WDM-KMT)
 Colorado Department of Corrections,

                 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 court’s 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         This order is not binding precedent except under the doctrines of law of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, 520–21 (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.




                                          -2-
      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 post-

conviction 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

Cole’s 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 Cole’s
Colorado Rule 35(c) motion, and that the Colorado Court of Appeals violated
Cole’s rights when it denied Cole’s 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 Cole’s
actions; admission of evidence obtained after a search of Cole’s apartment
violated his Fourth Amendment rights; destruction of evidence; insufficient
evidence; Cole’s 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...)

                                           -3-
addressed the remaining eighteen claims on the merits and found that none

presented grounds for relief. The district court therefore denied Cole’s habeas

petition, Cole v. Zavaris [sic], No. 07cv1197, 2009 WL 1600556, at *25 (D. Colo.

June 4, 2009), and denied Cole’s 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.” Miller-

El, 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.




      2
       (...continued)
(D. Colo. June 4, 2009).

                                         -4-
      A.     Procedurally Barred Claims

      When a petitioner’s 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 state’s treatment of his post-conviction

motion. Because “the constitutional error [Cole] raises focuses only on the

State’s 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 court’s 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

                                          -5-
in which the existing remedies are not sufficient to protect the applicant’s 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 Cole’s 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 court’s

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

                                          -6-
presented—but were not—in 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 Cole’s claims on the merits,

but likewise found them insufficient to grant habeas relief.

      For substantially the same reasons as the district court’s 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 court’s denial of his habeas petition

was debatable or wrong.




                                         -7-
       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 Cole’s 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

Cole’s 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 court’s “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 court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

                                            -8-
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 Cole’s

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

                                          -9-
court’s 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 speech—i.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

Cole’s 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

                                        -10-
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

      Cole’s 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

                                          -11-
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 Cole’s 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 court’s 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.

                                         -12-
      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 Cole’s burden to show that the statute lacks a rational basis. Price-

Cornelison 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

counsel’s 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, 687–88 (1984). Cole’s 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 court’s determination that counsel’s behavior was




                                          -13-
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 Cole’s request for a

certificate of appealability, and DISMISS his appeal.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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