     Case: 12-10149       Document: 00512307651           Page: 1    Date Filed: 07/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                              FILED
                                                                             July 15, 2013
                                     No. 12-10149
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICKY LYNN COLE,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:09-CV-186


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Ricky Lynn Cole, federal prisoner # 31788-177, was
convicted of 107 counts of interstate transportation of child pornography,
distribution of child obscenity, transportation of obscene matter, and aiding
and abetting and was sentenced to a total 365-month term of imprisonment.
On direct appeal, this court vacated and remanded for clarification of the
sentence, and on remand, the district court reimposed the original 365-month

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-10149

sentence, amending the judgment by removing the double terms of
imprisonment originally imposed on count 98. This court affirmed. United
States v. Cole, 281 F. App’x 277, 278 (5th Cir. 2008). Cole then filed a motion
under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence on various
grounds, including ineffective assistance of counsel. The district court denied
the motion and denied a certificate of appealability (COA). A judge of this
court granted Cole a COA only on the issue whether the district court abused
its discretion by denying, without conducting an evidentiary hearing, Cole’s
claim that trial counsel rendered ineffective assistance in failing to object in the
trial court to substantial government interference with defense witness Tina
Cox-Cole.
      In addition to arguing the issue upon which COA was granted, Cole
asserts in his appellate brief that the Government engaged in misconduct with
respect to other witnesses and that his trial counsel was ineffective in failing
to object in the trial court to government interference with witnesses besides
Cox-Cole. We have jurisdiction to address only the issue specified in the order
granting Cole a COA. See United States v. Daniels, 588 F.3d 835, 836 n.1 (5th
Cir. 2009). Thus, to the extent that Cole raises other issues, we do not address
them. See id.
      In an appeal from the denial of a § 2255 motion, we review a district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We review the district
court’s decision not to grant an evidentiary hearing for abuse of discretion. Id.;
see also United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998). The
district court should conduct an evidentiary hearing only if the defendant
produces “independent indicia of the likely merit of [his] allegations.” United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (internal quotation marks


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                                  No. 12-10149

and citation omitted). “Once such independent evidence is presented, ‘[a]
motion brought under . . . § 2255 can be denied without a hearing only if the
motion, files, and records of the case conclusively show that the prisoner is
entitled to no relief.’” Cavitt, 550 F.3d at 442 (quoting United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)); see § 2255(b).
      The district court denied Cole’s claim that trial counsel was ineffective
in failing to object to prosecutorial misconduct on the ground that Cole had
failed to demonstrate any misconduct by the Government warranting an
objection by trial counsel. Speculative allegations or conclusional assertions do
not entitle a defendant to an evidentiary hearing. See, e.g., Edwards, 442 F.3d
at 264; United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980). By contrast,
Cole’s allegations are not speculative or unsupported by evidence but are
supported by the affidavits of Cox-Cole and Lesley Androes. See, e.g., United
States v. Whittington, 783 F.2d 1210, 1219 (5th Cir. 1986); United States v.
Hammond, 598 F.2d 1008, 1012-13 (5th Cir. 1979). The record does not contain
any “sworn record testimony from counsel explaining the strategy behind his
decision” not to raise the issue of substantial interference with Cox-Cole in the
trial court or addressing whether counsel considered raising the issue. Cavitt,
550 F.3d at 441; see Strickland v. Washington, 466 U.S. 668, 687 (1984). Based
on the information known to counsel at the time of trial, the decision not to
raise the issue of substantial government interference with Cox-Cole may well
have been a reasonable one, but without additional evidence, we cannot say
that “the motion and the files and records of the case conclusively show that
[Cole] is entitled to no relief.” § 2255(b); see also Cavitt, 550 F.3d at 442.
      Accordingly, we VACATE the district court’s order dismissing Cole’s
§ 2255 motion only with respect to Cole’s claim that counsel was ineffective in
failing to object in the trial court to substantial government interference with


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                                 No. 12-10149

Tina Cox-Cole and REMAND the case to the district court for further
proceedings, to include an evidentiary hearing. We express no view on the
merits of Cole’s claim.
      VACATED        IN   PART    AND     REMANDED          FOR     FURTHER
PROCEEDINGS.




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