UNITED STATES COURT 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 state prisoner proceeding pro se, seeks a 

certificate of appealability (COA) to appeal from the district 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. 

BACKGROUND

 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 This order is not binding precedent, except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 5, 2013

Elisabeth A. Shumaker 

Clerk of Court
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“for his violent and sadistic actions against 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 Green 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 quotation omitted). 

 Skinner was sentenced to life plus ninety years’ imprisonment. 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 petition and declined to issue a COA. 

DISCUSSION

 “A COA is a prerequisite to appellate 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 devotes argument to only seven grounds. 

Consequently, the grounds unaccompanied by argument are waived. See

Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990) (holding that 

failure to argue issue waives the issue). 
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applicant has made a substantial showing of the denial of a constitutional right,” 

28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that . . . includes 

showing that reasonable jurists 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 (2000) (quotation omitted). 

 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides 

that when a claim has been adjudicated on the merits in a state court, a federal court 

can grant habeas relief only if the applicant establishes that the state-court decision 

was “contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States,” or “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)(1), (2). “AEDPA’s deferential 

treatment of state court decisions 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 prosecution violated an immunity agreement he 

had with the federal government in an unrelated narcotics and money-laundering 

case. The OCCA determined that Skinner’s immunity claim, brought under Kastigar 
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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 immunized 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 OCCA’s resolution of the immunity claim, 

stating, “[c]learly, the grant of federal immunity in the drug and money laundering 

case did not provide a free pass to [Skinner] 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 immunity contract”; and (2) failed “to competently show the 

fact that [Skinner] met with DEA agents after the alleged kidnapping and assault, but 

prior to Tulsa Police investigation and prior 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 argument, reiterating that 

Skinner had not “connect[ed] the crimes he committed [against 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 sources.” 406 U.S. at 461-62. 
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information he provided during the drug and money laundering case or to the 

‘subsequent meetings,’ as relevant to the prior criminal case.” Id. at 4314. Thus, the 

district court concluded that Skinner had “not demonstrated that the result of his 

appeal would have been different had appellate counsel raised this [ground].” Id. 

We agree with the district court’s resolution of this argument. 

 Skinner next claims that his appellate counsel was ineffective because he “was 

dishonest, deceitful, uncommunicative and unresponsive, and thoroughly 

incompetent.” Id. at 130. He notes that the Oklahoma 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 cases involving other clients. 

 The OCCA found the suspension “troubling,” but observed that Skinner failed 

to “establish that his appellate counsel committed unprofessional errors that affected 

the outcome of his appeal.” Id. at 1721. Specifically, the OCCA concluded that 

[Skinner’s] jury convicted him based upon ample, detailed, compelling 

and consistent testimony given by multiple witnesses. [Skinner’s] 

appellate counsel raised cogent and complicated issues in his direct 

appeal. Lack of success is not the proper measure for determining the 

adequacy of legal representation, especially in light of the facts of this 

case. In this post-conviction proceeding, [Skinner] merely gestures at 

propositions of error, but does not explain or establish how any of the 

alleged errors could have 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 failed to satisfy the prejudice prong of” Strickland v. 
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Washington, 466 U.S. 668 (1984).3

 R. at 4314. Because Skinner has failed to 

identify any debatable point in regard to the 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 sentence 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) (providing 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 controlled substance, and that his “sentence was 

fully discharged on July 17, 1993.” Skinner, 210 P.3d at 854. Skinner’s crimes 

against Green occurred between July 4, 2003, and July 11, 2003. Thus, the OCCA 

concluded that “[a]lthough the[ ] crimes [against Green] were committed close to the 

end of the ten-year enhancement window, they were clearly within this window.” Id.

 In postconviction proceedings, Skinner argued that an order for the early 

termination of his probation in the New Jersey case placed his crimes against Green 

beyond the ten-year window. The OCCA declined 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 ineffectiveness of appellate counsel.” McGee v. 

Higgins, 568 F.3d 832, 838 (10th Cir. 2009) (brackets and quotation omitted). 
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the postconviction record with a copy of the order because he had not provided the 

order to the state district court. And the OCCA commented that the order did not 

indicate that the execution of Skinner’s sentence, rather 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 report that he had attached to his postconviction application 

in the state district court showed that his probation had been terminated early. The 

federal district court emphasized that the early termination of probation did not 

necessarily demonstrate early sentence termination, and the court concluded that it 

could not consider the New Jersey order because 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 alternative 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 warranted on this issue. As explained by the 

district court, Skinner failed to include in the state 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 against Skinner at trial, committed perjury. The OCCA did 

not specifically address this ground. The district court rejected it, however, stating 
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that (1) Skinner failed to specify the portions of Hauck’s testimony that constituted 

perjury; and (2) Hauck’s inconsistent statements to police were revealed on 

cross-examination and did not rise to the level of perjury. We agree with the district 

court’s resolution of this issue. 

CONCLUSION

 For substantially the same reasons given by the district court, we deny a COA 

and dismiss this appeal. 

 Entered for the Court 

 Monroe G. McKay 

 Circuit Judge