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                               UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            24
jury    could     have     returned      a     recommendation           of       death     based

exclusively on its conclusion that the murder was “especially

heinous, atrocious, or cruel,” N.C. Gen. Stat. § 15A-2000(e)(9).

See Sawyer v. Whitley, 505 U.S. 333, 348-50 (1992) (determining

that     existence         of     independently              sufficient           aggravating

circumstance prevented court from finding that “no reasonable

juror    would    have     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

                                                   27
Graham.      Finally, the jury was instructed that it had to find

beyond a reasonable doubt that Cole acted with malice.

            To find that the defendant acted with malice you
       need not find that he intended to kill Hattie Graham.
       But you must find beyond a reasonable doubt that his
       acts were so reckless or wantonly done as to indicate
       a total disregard of human life.    If the State fails
       to satisfy you beyond a reasonable doubt that the
       defendant acted with malice in connection with the
       death of Hattie Graham, the defendant can be guilty of
       no more than involuntary manslaughter.

J.A.   26-27.       When      there      are     several       explanations      for   the

acquittal verdict, the defendant fails to satisfy his burden of

proving an issue was actually decided.                         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

                                           28
intent to harm Hattie Graham but not so recklessly or wantonly

as to indicate a total disregard for Hattie Graham’s life.                                  The

trial court instructed the jury that a conviction of involuntary

manslaughter required the state to prove that “the defendant

acted    unlawfully      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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