UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GORDON TODD SKINNER, Petitioner-Appellant,

v. MIKE ADDISON, Warden, Respondent-Appellee. No. 12-5152 (D.C. No. 4:11-CV-00382-CVE-TLW) (N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , Chief Judge, McKAY and O’BRIEN , Circuit Judges.

Gordon Todd Skinner, an Oklahoma stat e prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal from the dist rict court’s order denying his 28 U.S.C. § 2254 petition for habeas relief. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we deny a COA for substantially the same reasons identified by the district court in its order denying habeas relief.
B ACKGROUND Skinner was convicted of kidnapping, conspiracy to commit kidnapping, and assault and battery with a dangerous weapon, all after a former felony conviction,

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 5, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - “for his violent and sadistic actions ag ainst Brandon Green in July of 2003.” Skinner
v. State , 210 P.3d 840, 851 (Okla. Crim. App. 2009). The evidence at trial established that Skinner repeatedly injected various substances “into Green’s penis, testicles, buttocks, and other parts of his body, with the apparent dual purpose of permanently disabling and disfiguring Gr een sexually and of keeping him in a prolonged state of unconsciousness.” Id. at 843. In addition, Skinner “brutally punched and kicked Green in the genitals , lifted Green’s unconscious body up off the bed by grabbing him at the base of his genitals, and wrapped a phone cord about Green’s penis, put his foot on Green’s stomach, and jerked until he heard the cartilage snap.” Id. (footnote and q uotation omitted). Skinner was sentenced to life plus nine ty years’ imprisonmen t. The Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions and sentences on direct appeal, and it affirmed the trial court’s subsequent denial of postconviction relief. In federal court, Skinner filed a § 2254 habeas petition raising twenty-three grounds of error. 1 The district court denied the pe tition and declined to issue a COA.
D ISCUSSION “A COA is a prerequisite to appella te jurisdiction in a habeas action,” Lockett v. Trammel , 711 F.3d 1218, 1230 (10th Cir. 2013) , and is available “only if the

1 In his request for a COA, Skinner de votes argument to onl y seven grounds. Consequently, the grounds unaccomp anied by argument are waived. See Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990) (holding that failure to argue issu e waives the issue).- 3 - applicant has made a substan tial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). This standard re quires “a demonstration that . . . includes showing that reasonable jurist s could debate whether (or, for that matter, agree that) the [application] 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 (200 0) (quotation omitted). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that when a claim has been ad judicated on the merits in a state court, a federal court can grant habeas relief only if the applican t establishes that th e state-court decision was “contrary to, or involved an unreasona ble application of, clearly established Federal law, as determined by the Suprem e Court of the United States,” or “was based on an unreasonable determination of th e facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). “AEDPA’s deferential treatment of state court deci sions must be incorporated into our consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Skinner first claims that his prosecuti on violated an immunity agreement he had with the federal government in an unrelated narcotic s and money-laundering case. The OCCA determined that Sk inner’s immunity claim, brought under Kastigar- 4 - v. United States , 406 U.S. 441 (1972), 2 was not applicable “to a prosecution for offenses that are alleged to have been committed by the immuni zed witness entirely after the grant of immunity, when the alleged offenses are also totally unrelated to the topic(s) of the immunized testimony.” Skinner , 210 P.3d at 851. The district court agreed with the O CCA’s resolution of th e immunity claim, stating, “[c]learly, the gr ant of federal immunity in the drug and money laundering case did not provide a free pass to [Skinne r] to commit future unrelated crimes without fear of prosecution.” R. at 4310. We conclude that the district court’s determination is not debatable. Skinner also argues that his appellate counsel was ineffective because he (1) failed “in drafting [the ] [appellate] reply brief to articulate the ‘subsequent meetings’ clause of the imm unity contract”; and (2) faile d “to competently show the fact that [Skinner] met with DEA agents after the allege d kidnapping and assault, but prior to Tulsa Police investigation and pr ior to Tulsa District Attorney filing charges.” Id. at 145. Neither the Oklahoma postconviction court nor the OCCA directly addressed this argument. The federal district court expressly rejected the argumen t, reiterating that Skinner had not “connect[ed] the crimes he committed [again st Green] to the

2 In Kastigar , the Supreme Court held that when a witness is compelled to give incriminating testimony under a grant of statutory immunity and is thereafter prosecuted for any matter related to the compelled testimony, the government bears the “heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent so urces.” 406 U.S. at 461-62.- 5 - information he provided during the dr ug and money laundering case or to the ‘subsequent meetings,’ as relevant to the prior cr iminal case.” Id. at 4314. Thus, the district court concluded that Skinner had “not demonstrat ed that the result of his appeal would have been different had appe llate counsel raised this [ground].” Id. We agree with the district cour t’s resolution of this argument. Skinner next claims that his appellate counsel was in effective because he “was dishonest, deceitful, uncommunicativ e and unresponsive, and thoroughly incompetent.” Id. at 130. He notes that the Ok lahoma Supreme Court had suspended counsel from the practice of law in 2010 for two years and a day due to multiple instances of misconduct in cas es involving other clients. The OCCA found the suspension “troubli ng,” but observed that Skinner failed to “establish that his appella te counsel committed unprofess ional errors that affected the outcome of his appeal.” Id. at 1721. Specifically, th e OCCA concluded that [Skinner’s] jury convicted him base d upon ample, deta iled, compelling and consistent testimo ny given by multiple w itnesses. [Skinner’s] appellate counsel raised cogent and complicated issues in his direct appeal. Lack of succe ss is not the proper meas ure for determining the adequacy of legal representation, especi ally in light of the facts of this case. In this post-conviction proceed ing, [Skinner] merely gestures at propositions of error, but does not e xplain or establish how any of the alleged errors could ha ve changed the outcome of [Skinner’s] appeal. Id. (citations omitted). The district court agreed, stating that “[ i]n light of the facts of this case, the Court finds that [Skinner] has faile d to satisfy the prejudice prong of” Strickland v.- 6 - Washington , 466 U.S. 668 (1984). 3 R. at 4314. Because Skinner has failed to identify any debatable point in regard to th e district court’s handling of this ground, he is not entitled to a COA. Skinner further argues that his appellate counsel was ineffective in challenging the enhancement of his senten ce with the prior felony conviction from New Jersey. According to Skinner, the prior conviction was outside the ten-year window allowed for enhancement. See 21 Okla. Stat. Ann. § 51.1(A) (p roviding enhanced punishment for “any crime after [a prior] conviction[ ] within ten (10) years of the date following the completion of the execution of the [prior] sentence”). The OCCA on direct appeal observed that Skinner’s New Jersey conviction was for conspiracy to distribute a controlle d substance, and that his “sentence was fully discharged on July 17, 1993.” Skinner , 210 P.3d at 854. Skinner’s crimes against Green occurred betw een July 4, 2003, and July 11, 2003. Thus, the OCCA concluded that “[a]lthou gh the[ ] crimes [against Green] were committed close to the end of the ten-year enhancement window, th ey were clearly within this window.” Id. In postconviction proceed ings, Skinner argued that an order for the early termination of his probation in the New Jers ey case placed his cr imes against Green beyond the ten-year window. The OCCA d eclined to allow Skinner to supplement

3 In Strickland , the Supreme Court held that in order to prevail on an ineffective assistance claim, the defendant must show that counsel’s performance was deficient and that prejudice resulted. 466 U.S. at 692. Strickland provides “the proper standard for assessing a claim of ine ffectiveness of appellate counsel.” McGee v. Higgins , 568 F.3d 832, 838 (10th Cir. 2009) (brackets and quotation omitted).- 7 - the postconviction record with a copy of th e order because he had not provided the order to the state district court. And the OCCA comment ed that the order did not indicate that the execution of Skinner’s sentence, rath er than his probation, was terminated early. In his federal habeas petition, Skinner again argued that the New Jersey order rendered his crimes against Green outside the ten-year window, and he added that a presentence investigation repor t that he had attached to his postconviction application in the state district court showed that hi s probation had been terminated early. The federal district court emphasized that th e early termination of probation did not necessarily demonstrate early sentence termination, and th e court concluded that it could not consider the New Jersey order becau se it was not part of the postconviction appeal record. See Cullen v. Pinholster , 131 S. Ct. 1388, 1401 (2011) (stating that “[f]ederal courts sitting in habeas are not an alternat ive forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings” (quotation omitted)). We conclude that a COA is not warrant ed on this issue. As explained by the district court, Skinner fa iled to include in the st ate postconviction record any document indicating that the execution of his sentence was terminated early. Finally, Skinner maintains that appellate counsel failed to argue that William Hauck, who had testified agai nst Skinner at trial, commit ted perjury. The OCCA did not specifically address this ground. The district court rejected it, however, stating- 8 - that (1) Skinner failed to specify the por tions of Hauck’s testimony that constituted perjury; and (2) Hauck’s in consistent statements to police were revealed on cross-examination and did not rise to the leve l of perjury. We agree with the district court’s resolution of this issue. C ONCLUSION For substantially the same reasons given by the dist rict court, we deny a COA and dismiss this appeal. Entered for the Court
Monroe G. McKay Circuit Judge