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`UNITED STATES COURT OF APPEALS
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`FOR THE TENTH CIRCUIT
`_________________________________
`JOHNNY WILLIAM BURNETT,
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` Petitioner - Appellant,
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`v.
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`RANDY HARDING, Warden,
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` Respondent - Appellee.
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`
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`No. 24-6260
`(D.C. No. 5:22-CV-00993-D)
`(W.D. Okla.)
`_________________________________
`ORDER DENYING CERTIFICATE OF APPEALABILITY*
`_________________________________
`Before TYMKOVICH, BALDOCK, and FEDERICO, Circuit Judges.
`_________________________________
`Johnny William Burnett, pro se, requests a certificate of appealability to challenge
`the district court’s denial of his 28 U.S.C. § 2254 writ of habeas corpus. We agree with
`the district court that Burnett’s habeas petition is procedurally barred, so we DENY the
`application for COA and DISMISS this matter.
`I. Background
`Burnett was tried by a jury in the District Court of Cleveland County, Oklahoma
`and convicted of two counts of lewd molestation or indecent acts of a child under 16 and
`two counts of forcible oral sodomy. He appealed his conviction to the Oklahoma Court
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`* This order is not binding precedent except under the doctrines of law of the case,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
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`July 11, 2025
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`Christopher M. Wolpert
`Clerk of Court
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`of Criminal Appeals, arguing that the trial court erroneously admitted testimony about
`child accommodation syndrome and victim impact evidence. The OCCA affirmed
`Burnett’s conviction and sentence.
`Burnett first applied for post-conviction relief in Cleveland County District Court
`on June 12, 2019. The state district court denied his motion on November 10, 2021. On
`June 22, 2022, Burnett petitioned the OCCA for a writ of mandamus to direct the district
`court to rule on his 2019 application. The OCCA ordered the state district court to
`respond, and the state district court responded by referencing and attaching the November
`2021 order denying Burnett’s application.
`Burnett moved to appeal out-of-time, arguing that he did not receive a copy of the
`November 2021 order until July 2022. Before the state district court could rule on his
`motion, he preemptively filed the same motion with the OCCA and filed a petition-in-
`error challenging the denial of post-conviction relief. Eventually, the state district court
`granted Burnett’s out-of-time appeal because the deadline was missed through no fault of
`his own.
`Still, the OCCA declined jurisdiction and dismissed his petition on October 14,
`2022. The OCCA held that Burnett’s pleading did not contain a copy of the trial court
`order or records sufficient to prove he sought relief in the state district court.
`On November 14, 2022, Burnett filed a petition for habeas corpus, 28 U.S.C.
`§ 2254, in federal district court. He raised eight grounds for relief:
`One: the admission of evidence pe rtaining to child sexual
`abuse accommodation syndrome.
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`Two: victim impact evidence ‘cau sed the jury to impose
`excessive sentencing’.
`Three: ineffective assistance of appellate counsel.
`Four: ineffective assistance of trial counsel.
`Five: judicial misconduct through the suppression of evidence
`and witness testimony.
`Six: prosecutorial misconduct th rough the admission of
`fraudulent testimony and false evidence.
`Seven: lack of jurisdiction ‘because all of Oklahoma is Indian
`Country’.
`Eight: actual and factual innocence
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`The magistrate judge’s report and recommendation denied Burnett relief on all grounds.
`First, the magistrate judge recommended denying habeas relief on ground two on
`the merits. The OCCA rejected Burnett’s prosecutorial conduct claim when he presented
`it on direct appeal. The magistrate judge found that the prosecutor’s victim impact
`statements were brief and were supported by admitted evidence of the victim’s long-term
`suffering, and so did not violate Burnett’s due process rights.
`Next, the magistrate judge found that claims one, three, four, five, six, and seven
`were procedurally defaulted. These claims were raised for the first time in Burnett’s state
`application for post-conviction relief. Because the OCCA declined jurisdiction over
`these claims because of a state procedural deficiency, the magistrate judge concluded it
`could not consider the defaulted claims. For the same reasons, the claims within grounds
`one, two, five, and seven that were unexhausted were denied pursuant to anticipatory
`procedural bar.
`Finally, the magistrate judge concluded that ground eight, actual innocence, is not
`an independent ground to grant habeas relief.
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`Burnett objected to the magistrate judge’s report and recommendation, but the
`district court adopted the report and recommendation in its entirety. The district court’s
`reasoning largely mirrored the magistrate judge’s with two exceptions. First, the district
`court ruled that Burnett did not specifically object as to ground two, so any review is
`waived. Second, it agreed with the magistrate judge that the remaining claims in grounds
`1–7 were procedurally defaulted or subject to anticipatory procedural bar. But the district
`court concluded in more detail that Burnett did not cite any new evidence to support that
`there was a fundamental miscarriage of justice and should be excepted from procedural
`default.
`The district court denied Burnett’s petition and declined to issue a certificate of
`appealability (COA).
`II. Discussion
`Burnett submitted to us an application for COA. He again raises eight grounds for
`relief:
`One: the admission of evidence pe rtaining to child sexual
`abuse accommodation syndrome.
`Two: victim impact evidence ‘cau sed the jury to impose
`excessive sentencing’.
`Three: ineffective assistance of appellate counsel.
`Four: ineffective assistance of trial counsel.
`Five: judicial misconduct through the suppression of evidence
`and witness testimony.
`Six: prosecutorial misconduct th rough the admission of
`fraudulent testimony and false evidence.
`Seven: lack of jurisdiction ‘because all of Oklahoma is Indian
`Country’.
`Eight: actual and factual innocence
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`Aplt. Br. at 4.
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`We grant a COA “only if the applicant has made a substantial showing of the
`denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies
`habeas relief on procedural grounds, the petitioner must satisfy the two-part test from
`Slack v. McDaniel. 529 U.S. 473 (2000). The petitioner must show both “[1] that jurists
`of reason would find it debatable whether the petition states a valid claim of the denial of
`a constitutional right and [2] that jurists of reason would find it debatable whether the
`district court was correct in its procedural ruling.” Id. at 484. We can address these
`requirements in either order and if one is found lacking, we need not address the other.
`Id. at 485 (“the Court will not pass upon a constitutional question although properly
`presented by the record, if there is also present some other ground upon which the case
`may be disposed of” (internal quotations omitted). Burnett appears pro se, so we
`construe his filings liberally but do not act as his advocate. See Yang v. Archuleta ,
`525 F.3d 925, 927 n. 1 (10th Cir. 2008).
`We review each of th e claims in turn.
`A. Ground 2
`We begin where the district court began. The district court held that Burnett
`waived review when he failed to make a specific objection about victim impact
`statements or the magistrate judge’s review of the OCCA’s decision. We agree.
`A party who “fails to ma ke a timely objection to the magistrate judge’s
`findings and recommendations wa ives appellate review.” Morales-Fernandez v.
`I.N.S., 418 F.3d 1116, 1119 (10th Ci r. 2005) (internal quot ations omitted). But
`litigants cannot just claim a bl anket objection for the magistra te judge’s entire report.
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`We recognize only “an objection that is sufficiently speci fic to focus the district
`court’s attention on the factual and legal issues that are truly in dispute.” United
`States v. One Par cel of Real Prop ., 73 F.3d 1057, 1060 ( 10th Cir. 1996). Firm
`waiver is a procedural bar to review. Id.
`The magistrate judge specifically noted that the prosecutor’s comments were
`brief and were fully supporte d by the evidence produced at trial. Burnett’s objection
`not only does not address why this rati onale is incorrect, he makes no specific
`reference to the victim impact statements or the OCCA’s d ecision. Thus, the district
`court’s procedural decision wa s reasonable, and we need not address the merits of
`ground 2, see Slack , 529 U.S. at 485.
`B. Procedural Default and Anticipatory Procedural Bar
`The district court declined to hear certain arguments raised in grounds one, three,
`four, five, six, and seven. It did so because the OCCA declined jurisdiction over
`Burnett’s post-conviction relief appeal since he failed to attach the state trial court order
`to his petition-in-error. The district court reasoned that “a federal court may not review
`federal claims that were procedurally defaulted in state court—that is, claims that the
`state court denied based on an adequate and independent state procedural rule.” Fontenot
`v. Crow, 4 F.4th 982, 1028 (10th Cir. 2021) (quoting Davila v. Davis, 582 U.S. 521, 527
`(2017)).
`Similarly, the district court ruled that the remaining claims in grounds one, two,
`four, five, and seven were subject to an anticipatory procedural bar. Burnett raised these
`claims for the first time in his habeas petition. Even though Burnett’s state remedies
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`remain unexhausted, we apply an anticipatory procedural bar to “an unexhausted claim
`that would be procedurally barred under state law if the petitioner returned to state court
`to exhaust it.” Moore v. Schoeman, 288 F.3d 1231, 1233 n.3 (10th Cir. 2002). Because
`these claims would be subject to the same procedural bar as the rest of Burnett’s post-
`relief claims, the district court declined to hear them.
`Burnett does not argue that the OCCA’s procedural rule is not independent or
`adequate, nor does he argue that his unexhausted claims are not barred. He seems only to
`argue (1) that he did attach the state trial court order and (2) that he meets the
`fundamental miscarriage of justice exception.
`Burnett presents no evidence that he attached the trial court order, and we find
`none in the record. His petition-in-error submitted to the OCCA includes four attached
`exhibits, none of which are the trial court order. See R., Vol. IV at 72–102. Consistent
`with this, the OCCA order declining jurisdiction states that the pleading did not contain a
`copy of the order or sufficient records to show he sought relief in state district court. See
`R., Vol. IV at 104–06.
`There are two exceptions to procedural default and anticipatory procedural bar.
`One of these exceptions is when “failure to consider the claims will result in a
`fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
`We have further explained that this exception is reserved for cases “where a
`constitutional violation has probably resulted in the conviction of one who is actually
`innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quoting Phillips v.
`Ferguson, 182 F.3d 769, 774 (10th Cir.1999)). Because Burnett claims that his denial
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`resulted in a fundamental miscarriage of justice, and he argues actual innocence, we
`consider whether he meets the exception.
`Burnett points to forensic evidence, juror indecisiveness, and the fact that he was
`acquitted on other charges to support his claim of innocence. It is unclear what forensic
`evidence he is pointing to, because, as he points out, DNA was not collected. Burnett
`claims foul play, but points to no new evidence to support his innocence. This lack of
`new evidence is fatal. “Without any new evidence of innocence, even the existence of a
`concededly meritorious constitutional violation is not in itself sufficient to establish a
`miscarriage of justice that would allow a habeas court to reach the merits of a barred
`claim.” Schlup v. Delo, 513 U.S. 298, 316 (1995). We agree with the district court that
`Burnett failed to show cause sufficient to overcome procedural default and anticipatory
`procedural bar.
`C. Actual Innocence
`To the extent that Burnett relies on actual innocence instead as a standalone
`ground for habeas relief, we agree with the district court that actual innocence is not
`alone sufficient for relief. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of
`actual innocence based on newly discovered evidence have never been held to state a
`ground for federal habeas relief absent an independent constitutional violation occurring
`in the underlying state criminal proceeding.”).
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`III. Conclusion
`For these reasons, Burnett’s application for a COA is denied and this appeal is
`dismissed, but his motion to proceed in forma pauperis is granted.
`Entered for the Court
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`Timothy M. Tymkovich
`Circuit Judge
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