UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

TIMOTHY BRIAN BUSSELL, 

 Petitioner - Appellant 

v. 

STEVEN HARPE, Director, 

Oklahoma Department of 

Corrections, 

 Respondent - 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 appealed in state court and 

pursued habeas relief in district court. He wants to appeal 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: 1
2 

habeas relief. To do so, however, he needs a certificate of appealability. 28 

U.S.C. § 2253(c)(1)(A). We decline to issue this certificate. 

1. We can grant the certificate only if the district court’s denial of 

relief is reasonably debatable. 

We can grant a certificate 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 court’s assessment is reasonably debatable, we must 

consider the standard that applied there. 

The district court could consider granting relief 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 whether 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 constitutional rulings aren’t reasonably 

debatable. 

Mr. Bussell seeks a certificate of appealability so that he can appeal 

the district court’s rejection of three 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: 2
3 

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 Supreme 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 that he didn’t 

participate in the sexual act itself. The State counters that Mr. Bussell 

aided and abetted the other 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 the prosecution and ask whether any rational jury 

could have found guilt beyond a reasonable 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 needed 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: 3
4 

 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 during the rape and 

 appeared to laugh and tell the rapist to “perk it up.” 

In addition, the prosecution presented a photograph of Mr. Bussell smiling, 

along with the other two men, next to the unconscious woman. Beyond the 

video and photograph, the woman testified that Mr. Bussell had videotaped 

the rape and encouraged the rapist. This combination of evidence allowed 

the state appeals court to reasonably conclude that the jury had enough 

evidence to find Mr. Bussell guilty of first-degree rape. 

Mr. Bussell insists that he was just a bystander, but he doesn’t say 

why it would have been unreasonable for the jury to credit the 

prosecution’s evidence that he had 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 reasonable jurist could find satisfaction of 

Mr. Bussell’s burden to show an unreasonable application of Supreme 

Court precedent. Given this conclusion, we deny a certificate of 

appealability on Mr. Bussell’s claim involving insufficient evidence of 

guilt. 

Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 4
5 

b. The state appeals court didn’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 upheld 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, the evidence of guilt was 

overwhelming for the rapist, and joinder created a racial issue. So 

Mr. Bussell must show that the state appellate court unreasonably applied 

Supreme Court precedent in rejecting these arguments. 

Even when codefendants have conflicting 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 concluded that the state appeals court had 

reasonably applied Supreme Court precedent because 

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

 Mr. Bussell and the first man shared the same legal position 

because aiding and abetting the crime could show guilt of the 

underlying offense, 

 Mr. Bussell had only speculation 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: 5
6 

 the trial judge had instructed the jury to separately consider the 

evidence of guilt for each defendant. 

In our view, this reasoning is not reasonably debatable. 

The state appeals court could reasonably consider Mr. Bussell’s 

theory of innocence as consistent with the first man’s. The first man 

argued that the sex had been consensual; if it had been consensual, 

Mr. Bussell wouldn’t have incurred guilt. 

And the state appeals court could reasonably question 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 complains that race thus became an 

issue in his prosecution. But the state appeals court could have reasoned 

that race would remain an issue even with severance: The prosecution’s 

theory of guilt was that Mr. Bussell had aided and abetted the first man’s 

commission of rape; if the victim would have refused to have sex with the 

first man because he was Black, her refusal would have remained relevant 

against Mr. Bussell even if the trials had been severed. We thus conclude 

that the state appeals court reasonably applied Supreme Court precedent in 

rejecting Mr. Bussell’s claim involving the refusal to sever his trial. Given 

the reasonableness of that 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: 6
7 

c. The state appellate court acted reasonably in rejecting the 

claim involving prosecutorial misconduct. 

Finally, Mr. Bussell claims misconduct in the prosecutor’s closing 

argument based on his references to Mr. Bussell and 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 denial 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 references satisfied that 

standard because he was just a bystander who had failed to step in to 

prevent the rape. Of course, the prosecution countered that characterization 

with evidence that Mr. Bussell had laughed and helped the first man 

commit the rape. But irrespective of Mr. Bussell’s ultimate culpability, the 

constitutional claim would turn on the impact of the prosecutor’s 

statements on the fairness 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 codefendants. We thus deny a certificate of 

appealability on this claim. 

* * * 

Appellate Case: 23-5104 Document: 010111016477 Date Filed: 03/15/2024 Page: 7
8 

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 reasonably debatable. We thus 

 decline to issue a certificate of appealability 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