UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ THORSTEN GUNTER RUSHING, Petitioner - Appellant,

v. KAMERON HAVERNEK, Respondent - Appellee. No. 22-6072 (D.C. No. 5:21- CV-00394-D) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before McHUGH , MORITZ , and CARSON , Circuit Judges.

________________ _________________ Thorsten Gunter Rushing is an Oklahom a prisoner. He filed a habeas petition under 28 U.S.C. § 2254, and the district c ourt denied it. He seeks a certificate of appealability to appeal the district court’s decision. 1 We deny him a certificate of appealability and dismiss this matter. I. Background An Oklahoma jury convicted Rushing of conspiracy to commit first-degree murder and two counts of first-degree murder. After an unsuccessful direct appeal, he sought

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1 We construe Rushing’s notice of appeal and opening brief as a request for a certificate of appealability. See Fed. R. App. P. 22(b)(2). FILED United States Court of Appeals Tenth Circuit 

### November 30, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 12 postconviction relief in state court. The st ate district court denied relief, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed. Rushing then filed his habeas petition in fe deral court, raising the following four claims:
1. The trial court violated his due-proce ss rights by admitting a co-conspirator’s coerced pretrial statement.
2. Rushing’s trial counsel provided ineffec tive assistance by failing to present a complete defense.
3. The trial court violated his due-p rocess rights by admitting gruesome photographs.
4. Rushing’s appellate counsel provided ine ffective assistance by failing to raise on direct appeal the issues underlyi ng his first three habeas claims. The district court concluded that Rushing’s fi rst three claims were procedurally barred, and it denied his fourth claim on the merits. 2 Rushing now seeks to appeal.
II. Discussion To appeal the district court’s judg ment, Rushing needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We may issue a certificate of appealability only if he “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This standard requires him to “show that reasonable jurists could debate whether (or, for that matter, ag ree that) the petition should have been resolved in a

2 The district court concluded that parts of Rushing’s third and fourth claims were unexhausted, and it denied those parts under th e doctrine of anticipatory procedural bar. Rushing presents no argument against that analys is, so he has waived any challenge to it. See United States v. Springfield , 337 F.3d 1175, 1178 (10th Cir. 2003). For that reason, we do not discuss the unexhausted parts of Rushing’s claims. When we refer to his claims in this order, we mean those parts that the district court conc luded were exhausted. Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 23 different manner or that the issues presented were adequate to dese rve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (brackets and internal quotation marks omitted). If a state court prev iously adjudicated a habeas claim on the merits, then our analysis incorporates the de ferential treatment of state-court decisions required under the Antiterrorism and Effe ctive Death Penalty Act of 1996. Dockins v.
Hines , 374 F.3d 935, 938 (10th Cir. 2004). Th e deference owed to a state court’s adjudication on the merits permits a federa l court to grant habeas relief only if the state-court decision “was contrary to, or invo lved an unreasonable a pplication of, clearly established Federal law, as determined by the Supreme Cour t of the United States” or “was based on an unreasonable determin ation of the facts.” § 2254(d). When a district court denies a habeas claim on procedural grounds, the petitioner cannot obtain a certificate of appealability unless reasonable ju rists could deba te not only whether the petition states a valid constitutional claim but also whether the district court’s procedural ruling is correct. See Slack v. McDaniel , 529 U.S. 473, 484 (2000).
A. Claim Four: ineffective a ssistance of appellate counsel. We start with Rushing’s fourth clai m—ineffective assistance of appellate counsel—because the disposition of that claim affects our analysis of the others. To prevail on an ineffective-assi stance claim, a petitioner must show that counsel performed deficiently, and that the deficient pe rformance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). The OCCA concluded that Rushing faile d to present sufficient factual and evidentiary support for his arguments alleging in effective assistance of appellate counsel. Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 34 He “apparently did not provide the” state district court “with any evidence” supporting his postconviction claims, Aplt. App. at 214, so the record before the OCCA did not contain trial transcripts, the challenged statement of his co-conspirator, or the photographs he labels too gruesome to admit at trial. And although he argued that his appellate counsel should have challenged th e performance of his trial counsel for failing to call witnesses or present a defense, he did not say what the witnesses would have testified about or what defense his counsel should have presented. Given the record before it, the OCCA did not unr easonably apply Strickland or unreasonably determine the facts when it de nied relief on Rushing’s claim that his appellate counsel provided ineffective assist ance. Reasonable jurists could not debate this conclusion, even though Rushing insist s the OCCA “ignored the factual claims” he made about his co-conspirator’s statement. Appl. for Certificate of Appealability at 10. On that point, the OCCA did not fault Rushing for failing to make factual claims; it faulted him for failing to support them by developing th e postconviction record. B. Claims One through Three: the procedurally barred claims. “Claims that are defaulted in state court on adequate and independent state procedural grounds wi ll not be considered by a habeas court, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Smith v. Workman , 550 F.3d 1258, 1274 (10th Cir. 2008). Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 45 The state district court denied Rushing’s first three habeas claims because he could have raised them on direct appeal. The OCCA did not directly address the claims. 3 Faced with those circumstances, th e federal district court looked back to the state district court’s decision and concluded it im posed a procedural default. See Ylst v. Nunnemaker , 501 U.S. 797, 803 ( 1991) (When “the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that ba r and consider the merits.”). Rushing argues that he can overcome th e default by showing both (1) cause and prejudice and (2) a fundamental miscarriage of justice. He asserts his appellate counsel’s ineffective assistance amounts to cause for hi s procedural default. But this argument cannot succeed because he failed to show that he received in effective assistance from his appellate counsel. See Sherrill v. Hargett , 184 F.3d 1172, 1176 (10th Cir. 1999). And although he invokes the miscarriage-o f-justice exception, he identifies nothing suggesting, as the exception requires, “that he is actually innocent of the crime of conviction.” Pacheco v. El Habti , 48 F.4th 1179, 1186 (10th Cir. 2022) (internal quotation marks omitted). In short, reasonable jurists could not debate the district court’s ruling that Rushing’s first three cl aims were procedurally barred.

3 The OCCA addressed the claims only “under the rubric of ineffective assistance of appellate counsel.” Aplt. App. at 213. Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 56 III. Conclusion We deny Rushing a certificate of a ppealability and dismiss this matter.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 22-6072 Document: 010110775522 Date Filed: 11/30/2022 Page: 6