UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

RANDALL DUANE THRONEBERRY, 

 Petitioner - Appellant,

v.

SCOTT NUNN, Warden, 

 Respondent - Appellee.

No. 23-6165

(D.C. No. 5:22-CV-00145-R)

(W.D. Okla.)

_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________

Before TYMKOVICH, BACHARACH, and CARSON, Circuit Judges.

_________________________________

Petitioner Randall Duane Throneberry, an Oklahoma prisoner, was convicted of 

committing lewd acts with a child under 16 after a former conviction of lewd acts with a 

child. He was given a mandatory life sentence pursuant to Okla. Stat. tit. 21, § 51.1a. 

After his conviction was affirmed, it came to light that the judge who presided at 

his trial, Timothy Henderson, had engaged in extramarital sexual relationships with two 

attorneys from the Oklahoma County District Attorney’s office. Although neither of 

those attorneys prosecuted Mr. Throneberry’s case, he applied for post-conviction relief, 

asserting a due process violation based on judicial bias. The state district court denied 

* This order is not binding precedent except under the doctrines of law of the case, 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

May 29, 2024

Christopher M. Wolpert

Clerk of Court

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 1
2

relief, concluding the claim was procedurally barred because it was not raised on direct 

appeal. The Oklahoma Court of Criminal Appeals (OCCA) affirmed for the same reason.

Mr. Throneberry then applied for federal habeas corpus relief under 28 U.S.C. 

§ 2254, arguing Judge Henderson’s conduct showed judicial bias in violation of his 

constitutional right to due process.1

 The district court declined to enforce the procedural 

bar because Judge Henderson’s relationships with the prosecutors had only been revealed 

after Mr. Throneberry’s direct appeal. The court therefore considered and denied his 

judicial bias claim on the merits. It also denied a certificate of appealability (COA). 

Mr. Throneberry now asks this court for a COA, which is a jurisdictional 

prerequisite to appeal the denial of a § 2254 application. See 28 U.S.C. § 2253(c)(1)(A); 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To obtain a COA, he must make “a 

substantial showing of the denial of a constitutional right.” § 2253(c)(2). That means he 

must show “that reasonable jurists could debate whether (or, for that matter, agree that) 

[his § 2254 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) (internal quotation marks omitted). 

Our COA decision “does not require full consideration of the factual or legal 

bases” raised, but we undertake “an overview of the claims” and give “a general 

assessment of their merits.” Miller-El, 537 U.S. at 336. The OCCA did not adjudicate 

the merits of Mr. Throneberry’s claim, but the federal district court did. We therefore 

1 Mr. Throneberry’s § 2254 application raised several other claims but he only 

seeks a COA on his claim of judicial bias.

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 2
3

“exercise our independent judgment and review the federal district court’s conclusions of 

law de novo,” while reviewing its factual determinations “for clear error.” Hooks v. 

Workman, 689 F.3d 1148, 1163–64 (10th Cir. 2012) (internal quotation marks omitted). 

Because Mr. Throneberry proceeds pro se, “we liberally construe his filings, but we will 

not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 

Due process “requires a fair trial in a fair tribunal, before a judge with no actual 

bias against the defendant or interest in the outcome of his particular case.” Bracy v. 

Gramley, 520 U.S. 899, 904–05 (1997) (citation and internal quotation marks omitted). 

However, “the Due Process Clause . . . establishes a constitutional floor, not a uniform 

standard.” Id. at 904. “[M]ost questions concerning a judge’s qualifications to hear a 

case are not constitutional,” but are “answered by common law, statute, or the 

professional standards of the bench and bar.” Id. Thus, claims of bias based on “matters 

of kinship” or “personal bias” generally do not rise to a constitutional level. See Fero v. 

Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994) (internal quotation marks omitted). 

A party can support a due process claim by showing actual bias, or by showing 

“that circumstances were such that an appearance of bias created a conclusive 

presumption of actual bias.” Id. at 1478. In addressing a claim based on appearance of 

bias, we ask, “not whether a judge harbors an actual, subjective bias, but instead whether, 

as an objective matter, the average judge in his position is likely to be neutral, or whether 

there is an unconstitutional potential for bias.” Williams v. Pennsylvania, 579 U.S. 1, 8 

(2016) (internal quotation marks omitted). Put another way, we must evaluate “whether, 

considering all the circumstances alleged, the risk of bias was too high to be 

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 3
4

constitutionally tolerable.” Rippo v. Baker, 580 U.S. 285, 287 (2017) (per curiam). “Our 

task is to determine whether the circumstances surrounding [Mr. Throneberry’s] trial 

were such that the incentive to be biased was sufficiently strong to overcome the 

presumption of judicial integrity.” Fero, 39 F.3d at 1479.

Mr. Throneberry has not shown actual bias. Judge Henderson had no direct or 

pecuniary interest in the outcome; there is no indication he was biased against 

Mr. Throneberry; and there is no showing of bias in the trial court proceedings. 

Significantly, the attorneys with whom Judge Henderson had undisclosed sexual 

relationships were not involved in Mr. Throneberry’s case, and he has not shown that 

Judge Henderson had improper relationships with any individual who was.2

 The facts 

are thus readily distinguished from cases in which defendants were granted relief 

because one of the attorneys with whom Judge Henderson had an undisclosed sexual 

relationship appeared in the proceedings before him. See Fort v. State, 516 P.3d 690, 694 

(Okla. Crim. App. 2022) (holding “the sexual relationship between [Judge Henderson] 

and the prosecuting attorney violated [the defendant’s] due process right to an impartial 

2 Mr. Throneberry asserts Judge Henderson might also have had an improper 

relationship with one of the prosecutors in his case because the two were “witnessed 

together.” Aplt. Br. at 5. But “ex parte contact does not, in itself, evidence any kind of 

bias.” Getsy v. Mitchell, 495 F.3d 295, 311 (6th Cir. 2007) (internal quotation marks 

omitted). Mr. Throneberry also argues that although both denied having a relationship, 

they had “sufficient motive to lie.” Aplt. Br. at 5. His argument is speculative, especially 

given that Judge Henderson has acknowledged his affairs with the other prosecutors. 

Moreover, the district court rejected this argument based on the prosecutor’s testimony in 

another matter. See R., vol. 1 at 243 n.3; R., vol. 3 at 339. Mr. Throneberry submits no 

contradictory evidence. To the extent he is challenging a factual determination by the 

district court, reasonable jurists would not debate whether it was clearly erroneous. 

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 4
5

and disinterested tribunal”); Smith v. Bridges, No. CIV-22-48-HE, 2022 WL 17976797 

(W.D. Okla. Dec. 28, 2022) (granting § 2254 petitioner a new trial based on the sexual 

relationship between Judge Henderson and the prosecuting attorney), appeal dismissed, 

No. 23-6002, 2023 WL 2980318 (10th Cir. Apr. 18, 2023); Shelton v. Nunn, 

No. CIV-21-1082-D, 2022 WL 16708244 (W.D. Okla. Nov. 4, 2022) (same).

Absent actual bias, Mr. Throneberry must demonstrate an unacceptable risk of 

bias to obtain relief. His argument is too attenuated to show a constitutional violation. 

He takes the position that Judge Henderson’s sexual relationships with attorneys from the 

Oklahoma County District Attorney’s office created a “clear potential for bias . . . [in] 

any criminal case over which he presided while carrying out and hiding his illicit 

relationships.” Aplt. Br. at 8. He reasons there was: (1) a “risk that Henderson could 

have been disposed to rule” in favor of other prosecutors who treated his romantic 

partners well; (2) a “risk that Henderson was ill-disposed toward defense attorneys 

who . . . had poor working relationships[] with his lovers;” and, (3) a “risk Henderson 

showed compensatory bias . . . so that his bias toward his sexual partners would not be 

obvious.” Id. at 8–9. These “risks” of bias do not rise above the level of “speculation, 

beliefs, conclusions, innuendo, [or] suspicion[s],” Leatherwood v. Allbaugh, 861 F.3d 

1034, 1050 (10th Cir. 2017); they are “too remote and insubstantial” to amount to a 

denial of due process, see Fero, 39 F.3d at 1478.

3

 

3 Mr. Throneberry claims that after the district court denied his § 2254 application, 

he learned of affidavits submitted in other cases attesting the district attorney’s office 

knew of Judge Henderson’s affairs and intentionally assigned “attractive female 

prosecutors” to cases before him in an effort to sway his rulings. See Aplt. Br. at 3. 

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 5
6

Mr. Throneberry cites no case in which a court found a due process violation in 

analogous circumstances, i.e., based on a judge’s personal relationship with attorneys 

who did not appear in the disputed case but who worked in the same office with attorneys 

who did. To the contrary, this court has previously held that personal connections 

between a judge and trial participants that were more direct than those present here did 

not violate due process. In Fero v. Kerby, on which the district court relied, a § 2254

applicant was convicted of murder before a judge whose son worked as a law clerk for 

the prosecution on the petitioner’s case, whose brother-in-law had filed a wrongful death 

action against the petitioner on behalf of the victim’s family, and whose wife had 

allegedly been supervised by the victim. See id. at 1475–76. Although this court 

observed it would have been “advisable” to avoid such circumstances, id. at 1480 n.27, 

we held there was no due process violation because the judge had no “direct, pecuniary 

interest,” id. at 1479, and “any biasing influence . . . was too remote and insubstantial to 

create a presumption of bias,” id. at 1480. Because we find the potential for bias here 

less than was present in Fero, we also conclude reasonable jurists would not debate the 

correctness of the district court’s denial of Mr. Throneberry’s claim.4

Mr. Throneberry asks us to grant a COA and remand for him to collect these affidavits. 

However, our review is limited to the record that was before the district court. 

Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir. 2008). As Mr. Throneberry 

acknowledges, the affidavits he describes were not presented to the district court.

4 Fero denied relief but granted a certificate of probable cause, a procedural 

predecessor to a COA. See 39 F.3d at 1482. We need not take that course here because 

Fero is precedential and held there was no due process violation even with greater 

potential for bias than raised here. Thus, reasonable jurists would not debate the 

correctness of the district court’s resolution of Mr. Throneberry’s claim. 

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 6
7

Mr. Throneberry emphasizes the impropriety of Judge Henderson’s conduct, 

arguing it shows he was not an “average judge” and defeats any presumption of judicial 

integrity or evenhandedness. See Aplt. Br. at 7. But a COA is available only to address 

an alleged violation of constitutional rights. See § 2253(c)(2). However ill-advised or 

unethical Judge Henderson’s conduct may have been, violations of judicial ethics do not, 

by themselves, establish a constitutional violation warranting habeas relief, and habeas 

corpus review does not give federal courts general supervision over state judges’ conduct. 

See Fero, 39 F.3d at 1479–80 (“[I]f disqualification under the Code of Judicial Conduct 

were deemed to imply impermissible bias under the Due Process Clause, then, in effect, 

the federal courts would be assuming supervisory control over issues of judicial 

disqualification in the state courts.”). 

Because Mr. Throneberry has not shown jurists of reason would debate the 

correctness of the district court’s denial of his § 2254 application, his request for a COA 

is denied. His motion to proceed on appeal without prepayment of costs or fees is 

granted. 

Entered for the Court

Joel M. Carson III

Circuit Judge

Appellate Case: 23-6165 Document: 010111056672 Date Filed: 05/29/2024 Page: 7