                                                                FILED
                                                    United States Court of Appeals
                       UNITED STATES COURT OF APPEALS       Tenth Circuit

                             FOR THE TENTH CIRCUIT                            July 25, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
CHRISTOPHER WAYNE WEBB,                                                      Clerk of Court

      Petitioner - Appellant,

v.                                                            No. 16-7072
                                                 (D.C. No. 6:13-CV-00265-RAW-KEW)
JOE ALLBAUGH,                                                 (E.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
                  _________________________________

       Christopher Webb, an Oklahoma prisoner proceeding pro se,1 seeks a certificate of

appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

application and his subsequent Fed. R. Civ. P. 60(b) motion. To obtain a COA, Webb

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Because he hasn’t made this showing, we deny his COA application and

dismiss this matter.




       *
          This order isn’t binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See
Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
        1
          We liberally construe pro se pleadings. But we do not act as an advocate for pro
se litigants. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005).
                                              I

       In July 2009, the State of Oklahoma charged Webb with one count of second-

degree rape by instrumentation. See Okla. Stat. tit. 21, § 1111.1 (2008) (defining rape by

instrumentation); id. § 1114(B) (classifying rape by instrumentation as second-degree

rape unless (1) bodily harm occurs or (2) victim is under 14 years of age). To prove this

offense, the state had to establish, beyond a reasonable doubt, that Webb penetrated the

anus or vagina of the victim who was under the age of 16 years, that he did so with an

inanimate object or body part other than his penis, and that he did so without the victim’s

consent. See Okla. Unif. Jury Instr. CR 4-127 (listing elements of second-degree rape by

instrumentation).

       At Webb’s November 2009 preliminary hearing, A.S. testified that she was 14

years old; that in the summer of 2009 she was with Webb—her mother’s then-

boyfriend—at Shannon Billey’s house; that she fell asleep after several days of being

high on “dope”; and that when she woke up, Webb’s fingers were inside her vagina. R.

vol. 2, 15. The state court found probable cause to bind Webb over for trial and Webb’s

case was tried to a jury in January 2012.

       At trial, A.S. testified that during the summer of 2009, when she was 14, she

would “hang out and do drugs” with Webb. Id. at 132. But A.S. responded, “No,” when

the prosecutor asked her if Webb ever touched her at Shannon Billey’s house. Id. at 134.

And A.S. replied, “Nope,” when the prosecutor asked her if she ever woke up in bed with

Webb. Id. A.S. also claimed not to remember whether she gave contrary testimony at the

preliminary hearing, explaining that she was “high that day that [she] testified.” Id. A.S.

                                             2
further denied telling a forensic interviewer that she woke up with Webb’s fingers in her

vagina.

       After the prosecutor recited A.S.’ preliminary hearing testimony concerning the

incident with Webb, A.S. testified that she recalled providing her preliminary hearing

testimony. But when the prosecutor asked if her preliminary hearing testimony was true,

A.S. inquired, “Do I have to answer that?” Id. at 136. Finally, the prosecutor directly

asked A.S. if A.S. woke up with Webb’s fingers in her vagina. A.S. refused to answer.

       Following a brief recess, A.S. testified that her preliminary hearing testimony was

true, and that she told an investigator with the District Attorney’s Office, David Cathey,

and a forensic interviewer, Ange Edwards, about the incident. When defense counsel

asked A.S. what she told Edwards, A.S. replied, “I’m not repeating myself”; punctuated

her refusal with profanity; and testified that she only showed up for trial because Cathey

threatened her with “jail” or “very bad consequences” if she refused. Id. at 149-50.

Cathey also testified at trial, but he denied threatening A.S.

       A.S.’ mother testified for the State that she would allow A.S. to go to Shannon

Billey’s house and that she was “pretty sure” that A.S. was using drugs at the time. Id. at

165. The state also presented testimony from C.O. and her cousin, A.A. Both witnesses

claimed that when they were between the ages of 10 and 12, they lived with Webb—who

was then the live-in boyfriend of C.O.’s mother—and that Webb molested them.

       After the state rested, Webb moved for a directed verdict. He argued that A.S.’

testimony wasn’t “strong enough to support a conviction.” Id. at 229. In denying the

motion, the trial court stated, “Certainly if the jury were to believe her testimony beyond

                                              3
a reasonable doubt it wouldn’t support a conviction. And it hasn’t been corroborated by

other evidence, so the Motion for Directed Verdict and/or a Motion of Acquittal is

denied, exception allowed.” Id. at 229.

       Webb’s cousins Shannon Billey and Brandy Billey testified as defense witnesses.

Shannon testified that Webb would frequently visit her home during spring and summer

2009, and that Webb was present when A.S. spent the night on one occasion during that

time period. She also testified that she never saw Webb touch A.S. inappropriately and

that A.S. never told her that Webb touched her inappropriately.

       Brandy—who is also A.S.’ former stepmother—testified that A.S. never told her

during spring and summer 2009 that Webb touched her inappropriately. Brandy also

testified that about a year before the trial, A.S. told Brandy that Webb never touched A.S.

       The state presented one rebuttal witness over Webb’s objection. Salomon Pedraza

testified that he lived with Shannon Billey during spring and summer 2009 and that A.S.

spent the night on one occasion when Webb was there. He recalled that A.S. and Webb

“were carrying on and talking real loud” in the living room when he was trying to sleep

and that he asked them to quiet down. Id. at 252. The next morning, Pedraza saw Webb

and A.S. talking in the bedroom by the kitchen. Pedraza testified that he didn’t see Webb

and A.S. doing anything inappropriate at that time.

       Webb didn’t renew his motion for a directed verdict at the close of all evidence,

nor did he object to the court’s proposed jury instructions.




                                             4
       The jury found Webb guilty and recommended a 30-year prison sentence. Webb

waived his right to a presentence report and the trial court immediately imposed a 30-year

prison sentence.

       Webb filed a direct appeal, arguing that (1) the trial court violated his

constitutional right to a speedy trial, (2) the state presented insufficient evidence to

support his conviction, and (3) the trial court imposed an excessive sentence. Regarding

his sufficiency-of-the-evidence claim, Webb primarily attacked the strength and

credibility of A.S.’ testimony. He also cited the trial court’s statements in denying his

motion for directed verdict as a strong indication that the evidence was insufficient to

support his conviction. Additionally, he asserted that the jury’s verdict could only be

explained by the admission of other-crimes evidence.

       In affirming Webb’s conviction and sentence, the Oklahoma Court of Criminal

Appeals (OCCA) first applied Barker v. Wingo’s four-factor balancing test to Webb’s

speedy-trial claim. See 407 U.S. 514, 530 (1972). The court determined that three of the

four factors—the reasons for the delay, Webb’s assertion of his speedy trial right, and

prejudice—weighed against Webb, whereas only one factor—the length of the delay—

weighed against the state. Next, the OCCA applied Jackson v. Virginia, 443 U.S. 307

(1979), and found that while the trial evidence “was not overwhelming, it was sufficient

for a reasonable trier of fact to find beyond a reasonable doubt that Webb committed the

crime of rape by instrumentation.” R. vol. 1, 25 (citing Spuehler v. State, 709 P.2d 202,

203-04 (Okla. Crim. App. 1985), which relied on Jackson). Finally, the OCCA reasoned



                                               5
that Webb’s sentence wasn’t excessive because it fell within the statutory range and

didn’t shock the conscience.

                                             II

       Webb then sought federal habeas relief. He ultimately filed an amended § 2254

habeas application, generally reasserting the same three claims he raised on direct appeal:

(1) the state violated his Fifth and Fourteenth Amendment due process rights by

convicting him without sufficient evidence, (2) the trial court violated his Sixth

Amendment right to a speedy trial, and (3) the trial court violated the Eighth Amendment

by imposing an excessive sentence.2 Because the OCCA adjudicated each of Webb’s

claims on the merits, Webb had to demonstrate to the district court that the OCCA’s

adjudication of his claims “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established [Supreme Court precedent]; or . . . that

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” § 2254(d)(1)-(2).

       After thoroughly reviewing the trial evidence, the district court determined that the

OCCA’s decision on the sufficiency-of-the-evidence claim (1) was neither contrary to,

nor an unreasonable application of, Jackson3 and (2) wasn’t based on an unreasonable


       2
          Webb first filed a habeas application asserting four grounds for relief—i.e., the
same three claims he asserted on direct appeal plus an ineffective-assistance-of-counsel
claim. He later moved to add four additional grounds for relief. The magistrate judge
construed his motion as a motion to file an amended habeas application and granted him
leave to amend. Webb then filed the amended application, in which he generally asserted
the same three grounds for relief that he raised in his direct appeal.
        3
          As noted, the OCCA didn’t directly cite Jackson. But it did cite OCCA precedent
that relied on Jackson. Thus, the district court correctly applied § 2254(d)(1) in reviewing
                                             6
determination of the facts. Then, after carefully detailing the events leading up to Webb’s

trial, the court concluded the OCCA’s analysis of the constitutional speedy trial claim

“was consistent with Supreme Court law, and . . . was not based on an unreasonable

determination of the facts.” R. vol. 1, 353-54. The court noted that most of the delay was

attributable to Webb’s own actions. The court also rejected Webb’s assertions that the

delay was prejudicial, reasoning that Webb failed to cite any specific testimony that he

claimed was lost through the death of witnesses.

       Finally, the court determined that Webb failed to identify a federal constitutional

violation based on the length of his sentence—30 years—that fell within the state

statutory range of punishment for his offense—20 years to life. See Dennis v. Poppel, 222

F.3d 1245, 1258 (10th Cir. 2000) (explaining that challenges to state sentencing decisions

generally aren’t cognizable on federal habeas review “unless . . . the sentence imposed is

outside the statutory limits or unauthorized by law”). For these reasons, the district court

denied habeas relief and declined to issue a COA.

       A few weeks later, Webb filed a Rule 60(b) motion. As relevant to his COA

application, Webb asserted that the district court (1) failed to review the sufficiency of

the evidence de novo, and (2) overlooked his argument that A.S.’ testimony wasn’t clear

and convincing as required for uncorroborated testimony. Webb further asserted that the

court failed to address his claims that the trial court (1) erroneously denied his motion for

a directed verdict after expressly finding the trial evidence insufficient to support a


the sufficiency-of-the-evidence claim. See Turrentine v. Mullin, 390 F.3d 1181, 1203
(10th Cir. 2004).
                                              7
conviction and (2) should have sua sponte instructed the jury that it could acquit him

based on insufficient evidence.4

       The district court ultimately denied Webb’s Rule 60(b) motion. First, the court

noted that it properly considered the sufficiency of the evidence by applying the Jackson

standard. And the court once again reviewed the trial evidence under that standard,

particularly A.S.’ testimony, and affirmed its prior determination as to the sufficiency of

the evidence.

       Next, the court addressed Webb’s directed-verdict and jury-instruction arguments.

In doing so, the court noted that although Webb mentioned the denial of his motion for a

directed verdict in his direct appeal brief as further support for his challenge to the

sufficiency of the evidence, Webb didn’t raise either argument as a separate issue on

direct appeal. The court nevertheless considered both of Webb’s unexhausted claims de

novo. See § 2254(b)(2) (providing that federal habeas court can deny habeas application

on merits notwithstanding applicant’s failure to exhaust state remedies); Williams v.

Jones, 571 F.3d 1086, 1090 (10th Cir. 2009) (noting that when state court has not

adjudicated claim on the merits federal habeas court reviews claim de novo).

       The court expressly referenced the trial court’s oral ruling on the motion for

directed verdict, wherein the trial court stated that A.S.’ testimony, if believed, “wouldn’t

support a conviction” and “ha[d]n’t been corroborated by other evidence,” immediately


       4
          While his Rule 60(b) motion was pending, Webb initiated an appeal from the
district court’s order denying his habeas application. This court abated the appeal pending
the district court’s decision on the Rule 60(b) motion.

                                              8
before the trial court denied the motion. Id. at 408 (quoting R. vol. 2, 228-29). And the

court acknowledged “the apparent inconsistency between the trial court’s statement that

the victim’s uncorroborated testimony wouldn’t support a conviction, even if the jury

believed her beyond a reasonable doubt, and that court’s denial of the motion for a

directed verdict.” Id. But the court rejected Webb’s directed-verdict and jury-instruction

arguments for three reasons.

       First, the court rejected Webb’s assertion that state law required the trial court to

direct a verdict or instruct the jury on acquittal. The court reasoned that, contrary to

Webb’s reading of state law, a trial court’s decision to direct a verdict is discretionary.

See Okla. Stat. tit. 22, § 850 (“If, at any time after the evidence on either side is closed,

the court deem[s the evidence] insufficient to warrant a conviction, it may advise the jury

to acquit the defendant.”).

       Second, the court determined that even if the trial court abused its discretion under

state law by failing to direct a verdict and instruct the jury on acquittal, those state-law

violations wouldn’t necessarily give rise to a cognizable habeas claim. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions. In conducting habeas

review, a federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.”).

       Third, the court concluded that neither the denial of the motion for a directed

verdict nor the failure to sua sponte instruct the jury it could acquit him violated Webb’s

due process rights because he failed to demonstrate that the evidence was insufficient to

                                               9
support his conviction. See Tiger v. Workman, 445 F.3d 1265, 1267 (10th Cir. 2006)

(explaining that absent constitutional mandate requiring particular jury instruction, “a

habeas petitioner must show that, in the context of the entire trial, the error in the

instruction was so fundamentally unfair as to deny the petitioner due process”); United

States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000) (explaining that Jackson standard

applies “[i]n reviewing both the sufficiency of the evidence to support a conviction and a

denial of a motion for judgment of acquittal”).

                                              III

       Webb now seeks a COA to appeal the district court’s denial of his habeas

application and his Rule 60(b) motion.5 See 28 U.S.C. § 2253(c)(1)(A) (requiring state

prisoner appealing denial of § 2254 application to obtain COA); Spitznas v. Boone, 464

F.3d 1213, 1218 (10th Cir. 2006) (holding that prisoner appealing denial of Rule 60(b)

motion in habeas case generally must obtain COA). Because the district court rejected

Webb’s constitutional claims on the merits, we will issue a COA only if Webb shows

“that 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).

       Our task in determining whether to grant a COA isn’t to consider the merits of

Webb’s constitutional claims de novo. Rather, our review is limited to “an overview of

the claims in the habeas petition and a general assessment of their merits.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). And because the Antiterrorism and Effective Death


       5
         We grant Webb’s motions to supplement his combined opening brief and COA
application.
                                              10
Penalty Act of 1996 (AEDPA), applies here, “we keep in mind that when a state court

previously adjudicated the merits of a claim, a federal court may grant habeas relief only

if that 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,’” Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015) (quoting

§ 2254(d)(1)), “or ‘was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,’” id. (quoting § 2254(d)(2)). But

AEDPA deference only applies to those claims that the state court “adjudicated on the

merits.” § 2254(d).

       Thus, in deciding whether to grant a COA, we make a “threshold inquiry [that]

does not require full consideration of the factual or legal bases adduced in support of the

claims,” Miller-El, 537 U.S. at 336, and to the extent the state court adjudicated any of

the claims on the merits, we “incorporate ‘AEDPA’s deferential treatment of state court

decisions . . . into our consideration of [Webb’s] request for [a] COA,’” Davis, 798 F.3d

at 1319 (quoting Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004)).

                                               A

       Webb first asserts that the district court failed to consider his claim that the trial

court’s denial of his motion for a directed verdict violated his Fifth Amendment right to

be free from double jeopardy. And according to Webb, he therefore shouldn’t be required

to obtain a COA before we can consider the merits of his claim. We agree that the district

court didn’t address this particular claim. But the reason is simple. Webb didn’t present



                                              11
this claim to the district court—either in his habeas application or in his Rule 60(b)

motion.

        Instead, in his habeas application, Webb asserted an undeveloped double-jeopardy

claim arising from the trial court’s admission of other-crimes evidence. The district court

denied habeas relief on this claim because it was cursory, unexhausted, and subject to an

anticipatory procedural bar, and because Webb failed to allege any excuse for failing to

challenge the admission of other-crimes evidence on direct appeal. See O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the

State’s established appellate review process.”); Woodruff v. State, 910 P.2d 348, 350

(Okla. Crim. App. 1996) (“Issues which were not raised on direct appeal, but could have

been raised are waived.”); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991)

(explaining cause-and-prejudice showing necessary to overcome anticipatory procedural

bar).

        Likewise, in his Rule 60(b) motion, Webb suggested only that the OCCA and the

district court violated his due process rights and “attached jeopardy” by determining the

evidence was sufficient to support his conviction after the trial court stated that same

evidence was insufficient. R. vol. 1, 364.

        But Webb now argues something different: he asserts that the trial court violated

his right to be free from double jeopardy when it suggested the evidence was insufficient

but then denied his motion for a directed verdict and permitted the jury to convict him.

According to Webb, the trial court’s inconsistent ruling—i.e., its statement regarding the

                                             12
insufficiency of the evidence followed by its denial of his motion for a directed verdict—

constitutes an acquittal.

       Because Webb raises this particular double-jeopardy claim for the first time in his

combined COA application and appellate brief, we decline to consider it.6 See United

States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (stating general rule against

considering arguments raised for the first time on appeal); see also Patrick v. Patton, 634

F. App’x 220, 222 n.4, 223 (10th Cir. 2015) (unpublished) (applying Viera’s general rule

       6
         Even if we considered Webb’s claim, we would reject it. His claim might have
merit if we focused only on what the trial court said. But what matters is what the trial
court did. As Webb acknowledges in his statement of this issue, the trial court denied his
motion for a directed verdict. Had the trial court granted the motion and then permitted
the jury to convict him, Webb might have a valid habeas claim, presuming he could
overcome his failure to exhaust this claim in state court. See Smith v. Massachusetts, 543
U.S. 462, 465-67 (2005) (concluding that trial court violated double jeopardy clause
when it found evidence supporting essential element of offense insufficient, granted
defendant’s motion for required finding of not guilty under Massachusetts Rule of
Criminal Procedure 25(a), later reconsidered and reversed its ruling, and then permitted
jury to convict defendant). But the trial court denied Webb’s motion for a directed
verdict. And nothing in the record suggests that either the state or Webb asked the trial
court to reconcile its inconsistent statements with its ultimate ruling.
        Moreover, we question whether Webb could have even challenged the denial of
his motion on direct appeal. After the trial court denied his motion, Webb proceeded to
put on his own evidence. Under Oklahoma law, this means he waived his right to
challenge the denial of the motion for directed verdict. See Smith v. State, 509 P.2d 1391,
1397 (Okla. Crim. Ct. App. 1973) (adopting rule that “a defendant by offering evidence
after a denial of a motion for acquittal waives that motion and thereafter the question of
the sufficiency of the evidence to sustain a conviction is to be determined by an
examination of the entire record”). Perhaps this explains why Webb merely referenced
the denial of his motion in his brief to the OCCA, and didn’t frame that denial as a
separate trial error, let alone fairly present it as a federal double-jeopardy claim. See
Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (“[T]he crucial inquiry is
whether the ‘substance’ of the petitioner’s claim has been presented to the state courts in
a manner sufficient to put the courts on notice of the federal constitutional claim.”
(quoting Picard v. Connor, 404 U.S. 270, 278 (1971))). These circumstances bolster our
decision not to consider Webb’s belated attempt to recast his due process claim as a
double-jeopardy claim.
                                            13
and refusing to consider habeas petitioner’s arguments because they were “not presented

in his petition” and were instead raised for first time in his COA application).

                                               B

       Next, Webb asserts that the district court failed to adequately address his directed-

verdict and jury-instruction arguments. In his habeas application, he asserted both

arguments as support for his broader claim that the state violated his due process rights

by convicting him based on insufficient evidence. And he again asserts that because the

district court didn’t rule on these arguments, he shouldn’t be required to obtain a COA to

raise them on appeal. We disagree with both assertions.

       It’s true that the district court didn’t address these particular arguments in its order

denying Webb’s habeas application. But Webb asked the court to remedy this oversight

when he filed his Rule 60(b) motion. And the court did so. In denying Webb’s Rule 60(b)

motion, the court expressly acknowledged that the trial court suggested the evidence was

insufficient before the trial court denied Webb’s motion for a directed verdict. But the

district court nevertheless rejected Webb’s arguments. First, it reasoned that Oklahoma

law doesn’t require a trial court to direct a verdict or instruct the jury on acquittal;

Oklahoma law instead leaves that decision to the trial court’s discretion. See Okla. Stat.

tit. 22, § 850 (providing that trial court “may advise the jury to acquit the defendant” if

court deems evidence insufficient). Second, the district court concluded that even if the

trial court violated state law by failing to direct a verdict or to instruct the jury on

acquittal, any such violations wouldn’t necessarily give rise to a cognizable habeas claim.

See Estelle, 502 U.S. at 67-68. Third, the court reasoned that Webb failed to demonstrate

                                               14
a due process violation arising from the omitted jury instruction because he didn’t show

that the omission infected the entire trial. See Tiger, 445 F.3d at 1267. Finally, the court

determined that Webb didn’t establish a due process violation arising from the denial of

his motion for a directed verdict because he didn’t demonstrate that the evidence was

insufficient to support his conviction. See Wood, 207 F.3d at 1228.

       Because the district court clearly ruled on the merits of the directed-verdict and

jury-instruction arguments, Webb needs a COA before we can consider whether the court

properly rejected those arguments. See Spitznas, 464 F.3d at 1218. But we decline to

grant a COA because we conclude that no reasonable jurists would debate the district

court’s determination that these arguments don’t entitle Webb to habeas relief on his due

process claim. Critically, the common thread running through Webb’s directed-verdict

and jury-instruction arguments (and even his newly minted double-jeopardy argument) is

his belief that the evidence is insufficient to support his conviction. And, as we discuss

next, we find no basis for granting Webb’s request for a COA to appeal the district

court’s determination that the OCCA properly evaluated the evidence under the Jackson

standard. See Jackson, 443 U.S. at 319.

                                              C

       As his third issue, Webb argues that “the state’s evidence is insufficient to sustain”

his conviction, Aplt. Br. 21, and asserts that the district court didn’t adequately address

his specific complaints regarding the sufficiency of A.S.’ testimony. There’s no question

that Webb fairly presented his sufficiency-of-the-evidence arguments to the OCCA and

the district court. But Webb has a high hurdle to overcome before he can obtain habeas

                                             15
relief on a challenge to the sufficiency of the evidence. See Coleman v. Johnson, 132 S.

Ct. 2060, 2062 (2012) (explaining that such challenges “face a high bar . . . because they

are subject to two layers of judicial deference”).

       “First, on direct appeal, ‘it is the responsibility of the jury—not the court—to

decide what conclusions should be drawn from evidence admitted at trial,’” and the

appellate court “may set aside the jury’s verdict on the ground of insufficient evidence

only if no rational trier of fact could have agreed with the jury.” Id. (quoting Cavazos v.

Smith, 565 U.S. 1, 2 (2011) (per curiam)). “[S]econd, on habeas review, ‘a federal court

may not overturn a state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The federal court instead

may do so only if the state court decision was “objectively unreasonable.”’” Id. (quoting

Cavazos, 565 U.S. at 2).

       To clarify, the OCCA’s task was to determine whether, “viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. 307, 319.

And to establish the essential elements of rape by instrumentation, the state had to prove

beyond a reasonable doubt that Webb penetrated A.S.’ anus or vagina without her

consent, that she was under 16 at the time, and that he did so with an inanimate object or

body part other than his penis. See Okla. Unif. Jury Instr. CR 4-127 (listing elements of

second-degree rape by instrumentation).

       At trial, A.S. confirmed, albeit reluctantly, the substance of her preliminary

hearing testimony. That testimony established every essential element of the crime—i.e.,

                                             16
that Webb digitally penetrated A.S.’ vagina without her consent when A.S. was 14 years

old. See id.

       The OCCA identified Jackson as the appropriate standard for evaluating the trial

evidence and, applying Jackson, concluded that the evidence was sufficient to support

Webb’s conviction. Thus, the district court’s task was to determine whether the OCCA’s

adjudication of Webb’s sufficiency-of-the-evidence claim “resulted in a decision that was

contrary to, or involved an unreasonable application of” Jackson, or “that was based on

an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” § 2254(d)(1)-(2).

       The district court thoroughly considered the evidence when it denied Webb’s

habeas application and again when it denied his Rule 60(b) motion. Both times, the court

determined that there was nothing unreasonable about either the OCCA’s (or its own)

application of the Jackson standard or the OCCA’s determination of the facts in light of

the evidence presented at trial. Viewing the evidence through AEDPA’s doubly

deferential lens, we conclude that no reasonable jurist would debate the district court’s

assessment or its ultimate denial of habeas relief with respect to Webb’s due process

claim. Thus, we deny his request for a COA on that claim.

                                             D

       Finally, Webb asserts that the district court failed to consider the factual support

for his speedy trial claim. But we have carefully reviewed the appellate record, the

OCCA’s decision, the district court’s assessment of this claim in its order denying habeas

relief, and the applicable law. As the district court concluded, Webb’s own actions

                                             17
contributed to the bulk of the pretrial delay, and Webb failed to demonstrate that the

OCCA’s treatment of his speedy-trial claim “was [in]consistent with Supreme Court

law,” or “based on an unreasonable determination of the facts.” R. vol. 1, 353-54.

Because reasonable jurists wouldn’t debate the district court’s assessment of this claim,

we also decline to issue a COA on this claim.

                                      *      *      *

       In sum, Webb hasn’t shown that reasonable jurists could debate the correctness of

the district court’s denial of his § 2254 habeas application. Slack, 529 U.S. at 484. Thus,

we deny his request for a COA and dismiss this matter. We also deny as moot his

renewed request for appointment of counsel.



                                              Entered for the Court




                                              Nancy L. Moritz
                                              Circuit Judge




                                             18
