UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

______________________ _________________ TIMOTHY BRIAN BUSSELL,
Pe titioner - Appellant

v. STEVEN HARPE, Director, Oklahoma Depa rtment of Corrections,
Re spondent - Appellee, No. 23-5104 (D.C. No. 4:20-CV -0417-TCK-JFJ) (N.D. Okla.)

______________________ _________________ ORDER DENYING A CERTIFICATE OF APPEALABILITY AND DISMISSING THE APPEAL

______________________ _________________ Before MATHESON , BACHARACH , and McHUGH , Circuit Judges

.

______________________ _________________ This appeal involves a habeas proceeding growing out of a rape conviction. A man had sex with a woman who was unconscious, and a second man watched. Our appeal involves a third man, Mr. Timothy Brian Bussell, who videotaped the sexual encounter. The State of Oklahoma prosecuted Mr. Bussell for first-degree rape, alleging that he had aided and abetted the first man as he had sex with the unconscious woman. Okla. Stat. tit. 21, § 1114(A)(4). The jury found Mr. Bussell guilty, and he unsuccessfully appeal ed in state court and pursued habeas relief in district cour t. He wants to app eal the denial of FILED United States Court of Appeals Tenth Circuit 

### March 15, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 12 habeas relief. To do so, however, he needs a certifi cate of appealability. 28 U.S.C. § 2253(c)(1)(A). We dec line to issue this certificate.
1. We can grant the certificate only if the district co urt’s denial of relief is reasonably debatable. We can grant a certificat e only if reasonable jurists “would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 ( 2000). To determine whether the district cour t’s assessment is reasonab ly debatable, we must consider the standard that applied there. The district court could consider gr anting relie f only if Mr. Bussell had satisfied his threshold burden under the Antiterrorism and Effective Death Penalty Act. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). To apply this statute, we consider whet her the state appellate court decided the underlying constitutional claims on the merits. Here the state appeals court did so. So the federal district court could consider granting habeas relief only if the state appellate court had contradicted or unreasonably applied a Supreme Court precedent or unreasonably determined the facts. 28 U.S.C. § 2254(d)(1)–(2).
2. The district court’s constitution al rulings aren’t reasonably debatable. Mr. Bussell seeks a certificate of a ppealability so that he can appeal the district court’s rejection of thr ee habeas claims: (1 ) insufficiency of evidence on guilt, (2) denial of due process from the refusal to sever Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 23 Mr. Bussell’s trial, and (3) denial of due process from prosecutorial misconduct during closing argument. The state appeals court rejected each claim on the merits. Given these rulings, Mr . Bussell argues that the state appeals court unreasonably applied Su preme Court precedent. We not only reject these arguments but conclude that no reasonable jurist could find them debatable.

a. The state appeals court didn’t act unreasonably when it found enough evidence to convict. Mr. Bussell doesn’t deny that he videotaped another man having sex with an unconscious woman. But Mr . Bussell argues th at he didn’t participate in the sexual act itself. The State counters that Mr. Bussell aided and abetted the ot her man as he committed rape. The resulting question is whether the jury had enough evidence to find that Mr. Bussell had aided and abetted the commission of rape. The underlying standard required the district court to view the evidence favorably to th e prosecution a nd ask whether any rational jury could have found guilt beyond a r easonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). This inquiry requires us to consider the elements of first-degree rape under state law. Coleman v. Johnson , 566 U.S. 650, 655 (2012). Under state law, the prosecution need ed to prove that Mr. Bussell had

 aided, promoted, or encouraged another individual to commit first-degree rape and Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 34  acted with criminal intent or knowledge of the other individual’s intent to commit the rape. Okla. Unif. Jury Instr. CR 2-6. We apply these elements based on the prosecution’s evidence, which included video showing that the videographer had

 helped prop up the unconscious woman du ring the rape and

 appeared to laugh and tell the rapist to “perk it up.” In addition, the prosecuti on presented a photograph of Mr. Bussell smiling, along with the other two men, next to the uncons cious woman. Beyond the video and photograph, the woman testif ied that Mr. Bussell had videotaped the rape and encouraged the rapist. Th is combination of evidence allowed the state appeals court to reasonably conclude th at the jury had enough evidence to find Mr. Bussell guilty of first-degree rape. Mr. Bussell insists that he was just a bystander, bu t he doesn’t say why it would have been unreasonab le for the jury to credit the prosecution’s evidence that he ha d aided the rapist by propping up the woman, laughing during the rape, and encouraging the rapist to “perk it up.” We thus conclude that no reason able jurist could fi nd satisfaction of Mr. Bussell’s burden to show an unreasonable application of Supreme Court precedent. Given this conc lusion, we deny a certificate of appealability on Mr. Bussell’s claim involving insuffic ient evidence of guilt. Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 45 b. The state appeals court di dn’t act unreasonably in upholding the denial of a severance. Mr. Bussell asked the state court to sever his trial from the trial of the first man (who had actually committed the rape). The trial court refused, and the state appeals court uph eld that ruling. Mr . Bussell argues that the refusal to sever his trial resulted in a denial of due process because his defense had differed from the first man’s, th e evidence of guilt was overwhelming for the ra pist, and joinder created a racial issue. So Mr. Bussell must show th at the state appellate co urt unreasonably applied Supreme Court precedent in rejecting these arguments. Even when codefendants have co nflicting defenses, severance may not be constitutionally required. Instead, the court considers whether joinder would “compromise a specific trial right” or prevent a “reliable judgment about guilt or innocence.” Zafiro v. United States , 506 U.S. 534, 539 (1993). The federal district court conclude d that the state appeals court had reasonably applied Supreme Court precedent because

 Mr. Bussell’s defense was a ligned with the rapist’s,

 Mr. Bussell and the first man sh ared the same legal position because aiding and ab etting the crime coul d show guilt of the underlying offense,

 Mr. Bussell had only sp eculation to support his complaint about the injection of race into his prosecution, and Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 56  the trial judge had inst ructed the jury to separately consider the evidence of guilt fo r each defendant. In our view, this re asoning is not reas onably debatable. The state appeals cour t could reasonably consider Mr. Bussell’s theory of innocence as consistent with the firs t man’s. The first man argued that the sex had been consensual; if it had been consensual, Mr. Bussell wouldn’t ha ve incurred guilt. And the state appeals court could reasonably questi on Mr. Bussell’s complaint about the injection of race into his prosecution. The victim testified that she wouldn ’t have consented to sex with the first man because he was Black. Mr . Bussell compla ins that race th us became an issue in his prosecution. But the state appeals court could have reasoned that race would remain an issue even with severa nce: The prosecution’s theory of guilt wa s that Mr. Bussell had aided and abetted the first man’s commission of rape; if th e victim would have refuse d to have sex with the first man because he was Black, her re fusal would have re mained relevant against Mr. Bussell even if the trials had been severed. We thus conclude that the state appeals co urt reasonably applied Supreme Court precedent in rejecting Mr. Bussell’s claim involving the refusal to sever his trial. Given the reasonableness of th at conclusion, we deny a certificate on the claim involving a refusal to sever the trials. Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 67 c. The state appellate court acte d reasonably in rejecting the claim involving prosecutorial misconduct. Finally, Mr. Bussell cl aims misconduct in the prosecutor’s closing argument based on his refe rences to Mr. Bussell a nd his codefendants as sexual predators, their appearance in a photograph as “big game hunters that [had] bagged a trophy,” and the similarity to a movie ( The Accused ). These references would create a de nial of due process only if they sufficiently tainted the fairness of the trial. Darden v. Wainwright , 477 U.S. 168, 181 (1986). Mr. Bussell argues that the referen ces satisfied that standard because he was just a bystander who had failed to step in to prevent the rape. Of course, the pros ecution countered that characterization with evidence that Mr. Bussell ha d laughed and helped the first man commit the rape. But irresp ective of Mr. Bussell’s u ltimate culpability, the constitutional claim would turn on the impact of the prosecutor’s statements on the fairne ss of the trial itself. See id. And any jurist would have to conclude that the state appeals court had acted reasonably in finding no constitutional taint from the prosecutor ’s characterization of Mr. Bussell and his c odefendants. We thus deny a certificate of appealability on this claim.
* * * Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 78 The district court determined that the state appeals court had acted reasonably in applying Supreme Court precedent. In our view, the district court’s determination is not reas onably debatable. We thus

 decline to issue a certifi cate of appeal ability and

 dismiss the appeal. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 8