United States v. Ricky Cole , 619 F. App'x 381 ( 2015 )

Case: 14-11034 Document: 00513230290 Page: 1 Date Filed: 10/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-11034
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, October 13, 2015
Lyle W. Cayce
Plaintiff-Appellee Clerk
v.
RICKY LYNN COLE,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:09-CV-186
USDC No. 5:05-CR-27-1
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Ricky Lynn Cole, federal prisoner # 31788-177, stands convicted of 107
counts of interstate transportation of child pornography, distribution of child
obscenity, transportation of obscene matter, and aiding and abetting. Cole
seeks a certificate of appealability (COA) to appeal the district court’s denial of
his 28 U.S.C. § 2255 claim that trial counsel was ineffective in failing to object
to substantial government interference with defense witness Tina Cox-Cole.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-11034
After the district court denied his § 2255 claim and while this COA motion was
pending before this court, Cole moved in the district court for leave to take
depositions pursuant to Federal Rule of Civil Procedure 27(b). The district
court denied his motion, and Cole’s notice of appeal from the denial of his
Rule 27(b) motion was docketed under the instant appeal number. Cole moves
to sever the two appeals.
Cole argues that he is actually innocent of the charged crimes and that
his trial counsel was ineffective for failing to raise an objection on the basis of
government interference with Cox-Cole, for failing to introduce evidence
showing his innocence, and for failing to call witnesses that would have
corroborated Cox-Cole’s proposed testimony. Cole also argues that his
appointed federal habeas counsel was ineffective for failing to subpoena certain
witnesses for the evidentiary hearing on his § 2255 motion; for failing to timely
notify him that his evidentiary hearing was continued; for failing to object to
perjured testimony at the evidentiary hearing; for failing to timely file a notice
of appeal from the denial of his § 2255 claim; and for failing to obtain a
transcript of the evidentiary hearing. Finally, he argues that the district court
abused its discretion in denying “post-hearing motions” that preceded his Rule
27(b) motion and that requested leave to take the depositions of witnesses to
the alleged government interference with Cox-Cole.
To obtain a COA, Cole must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). A prisoner “satisfies this
standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
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Notably, we vacated the district court’s dismissal of Cole’s ineffective
assistance claim relating to Cox-Cole and remanded the case to the district
court for further proceedings, including an evidentiary hearing. To the extent
that Cole asserts claims that were not covered by the remand order, reurges
previously rejected claims, or raises claims for the first time in the instant COA
motion to this court, they will not be considered. See United States v. Lee, 358
F.3d 315, 321, 323 (5th Cir. 2004); Henderson v. Cockrell, 333 F.3d 592, 605
(5th Cir. 2003); Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996). In
addition, as Cox fails to address the district court’s finding that, given the other
evidence introduced by the defense at trial, he was not prejudiced by trial
counsel’s alleged ineffective assistance relating to Cox-Cole, he has abandoned
any challenge to that finding. See Hughes v. Johnson, 191 F.3d 607, 613 (5th
Cir. 1999). Cole has therefore not shown that reasonable jurists would debate
the district court’s denial of his ineffective assistance of trial counsel claim, and
Cole’s remaining claims do not deserve encouragement to proceed further. See
Miller-El, 537 U.S. at 327. Cole’s motion for a COA is therefore DENIED.
We review a district court’s ruling on a Rule 27(b) motion for abuse of
discretion. See Shore v. Acands, Inc., 644 F.2d 386, 388 (5th Cir. 1981). Cole’s
Rule 27(b) motion sought to depose witnesses to the alleged government
interference with Cox-Cole. Although the district court erred in finding that it
did not have subject matter jurisdiction over the motion, see FED. R. CIV. P.
27(b), it alternatively denied the motion on the merits. Cole cannot show that
the district court’s alternative denial on the merits was an abuse of discretion.
The issue of government interference need not be developed further because
the district court determined that Cole was not prejudiced by trial counsel’s
failure to object on the ground of government interference, and, as noted above,
Cole has abandoned any challenge to that finding in his COA motion to this
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court. Accordingly, because the disposition of the instant COA motion is also
dispositive of the merits of Cole’s appeal from the denial of his Rule 27(b)
motion, Cole’s motion to sever the two appeals is DENIED and the district
court’s denial of his Rule 27(b) motion is AFFIRMED.
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