Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 26, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DYWAND DAYTRON JULIEN,
Petitioner - Appellant,
v. No. 25-1302 (D.C. No. 1:25-CV-01066-LTB-RTG) ANDRE MOSES STANCIL, Executive (D. Colo.) Director of CDOC; GUY BOSCH, Warden at Crowley County Correctional Center,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Dywand Daytron Julien, a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s order dismissing
his 28 U.S.C. § 2254 petition. 1 He also requests to supplement the record on
appeal and proceed in forma pauperis (IFP). Exercising jurisdiction under 28
This order is not binding precedent except under the doctrines of law of *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. Because Julien proceeds pro se, we liberally construe his arguments, but 1
we do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 2
U.S.C. §§ 1291 and 2253, we grant Julien leave to supplement the record and to
proceed IFP, but we deny a COA and dismiss this matter.
BACKGROUND
On March 9, 2021, a Colorado jury convicted Julien of one count of
sexual assault and one count of weapons possession by a previous offender. The
state court sentenced Julien to twenty-three years to life in prison. He
unsuccessfully appealed through the Colorado state court system. He did not
seek any postconviction relief in state court.
On April 4, 2025, Julien filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254. In his petition, he raised six grounds for relief arising from
alleged Fourteenth Amendment violations at his trial. He alleged issues with
excluding and concealing evidence, fair-trial violations relating to the
prosecution’s perjury and the court’s failure to procure witnesses, and
violations of his right to represent himself.
A magistrate judge recommended that the district court deny Julien’s
petition and dismiss it under 28 U.S.C. § 2254(b)(1) because he did not exhaust
his remedies in state court. According to the magistrate judge, Julien should
have presented his new evidence in Colorado state court before seeking federal
habeas relief.
Julien timely objected to the magistrate judge’s recommendations. The
district court adopted the recommendations and dismissed Julien’s petition. The
2 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 3
court also denied Julien leave to proceed IFP on appeal, denied a COA, and
certified that any appeal would not be taken in good faith.
Julien now seeks a COA to appeal the district court’s denial of habeas
relief. He also seeks leave to proceed IFP and to supplement the record on
appeal with additional evidence.
DISCUSSION
Julien must obtain a COA to appeal the district court’s denial of habeas
relief from state detention. 28 U.S.C. § 2253(c)(1). We will not grant a COA
unless Julien makes “a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Because the district court denied Julien’s petition on
procedural grounds, he must show both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). We can address either requirement and, if one is not met,
we need not address the other. Id. at 485.
The district court denied Julien’s § 2254 petition on procedural grounds. 2
He doesn’t challenge that reasoning. Instead, he argues that the district court
2 The district court did not address Julien’s actual-innocence argument. That was error. Wolfe v. Johnson, 656 F.3d 140, 165 (4th Cir. 2009); see Bousley v. U.S., 523 U.S. 614, 612 (1998). Because an actual-innocence showing can excuse procedural default, the district court should have addressed it. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[A] credible showing (footnote continued) 3 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 4
erred by not addressing his actual-innocence argument. Julien’s petition relies
on a narrow exception to procedural default. Julien argues that he is actually
innocent and that it would be a fundamental miscarriage of justice not to grant
him relief.
It is true that “[a] proper showing of actual innocence by a habeas
petitioner enables the petitioner to pursue a claim that would otherwise be
barred on grounds other than the merits.” Pacheco v. Habti, 62 F.4th 1233,
1241 (10th Cir. 2023). And when used to overcome procedural issues, an
actual-innocence claim “is not itself a constitutional claim, but a gateway
through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Fontenot v. Crow, 4 F.4th 982,
1030 (10th Cir. 2021) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual-innocence exception applies “when a petitioner can demonstrate that
he is actually innocent of the crime of conviction.” Pacheco, 62 F.4th at 1241
(citation omitted). In this context, “actual innocence” means “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S.
614, 623 (1998).
of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.”). But a district court’s failure to address an argument does not alone warrant a COA. That is because we can deny a COA for any reason supported by the record, even if the district court did not rely on that reason. Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). So, because we must ask whether jurists of reason would find it debatable whether the district court’s procedural ruling was correct, we address Julien’s actual-innocence arguments here. 4 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 5
To qualify for the exception, Julien must show that “it is more likely than
not that no reasonable juror would have convicted him in the light of the new
evidence.” Schlup v.
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Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 26, 2025 _________________________________ Christopher M. Wolpert Clerk of Court DYWAND DAYTRON JULIEN,
Petitioner - Appellant,
v. No. 25-1302 (D.C. No. 1:25-CV-01066-LTB-RTG) ANDRE MOSES STANCIL, Executive (D. Colo.) Director of CDOC; GUY BOSCH, Warden at Crowley County Correctional Center,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Dywand Daytron Julien, a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s order dismissing
his 28 U.S.C. § 2254 petition. 1 He also requests to supplement the record on
appeal and proceed in forma pauperis (IFP). Exercising jurisdiction under 28
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. Because Julien proceeds pro se, we liberally construe his arguments, but 1
we do not act as his advocate. See Greer v. Moon, 83 F.4th 1283, 1292 (10th Cir. 2023). Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 2
U.S.C. §§ 1291 and 2253, we grant Julien leave to supplement the record and to
proceed IFP, but we deny a COA and dismiss this matter.
BACKGROUND
On March 9, 2021, a Colorado jury convicted Julien of one count of
sexual assault and one count of weapons possession by a previous offender. The
state court sentenced Julien to twenty-three years to life in prison. He
unsuccessfully appealed through the Colorado state court system. He did not
seek any postconviction relief in state court.
On April 4, 2025, Julien filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254. In his petition, he raised six grounds for relief arising from
alleged Fourteenth Amendment violations at his trial. He alleged issues with
excluding and concealing evidence, fair-trial violations relating to the
prosecution’s perjury and the court’s failure to procure witnesses, and
violations of his right to represent himself.
A magistrate judge recommended that the district court deny Julien’s
petition and dismiss it under 28 U.S.C. § 2254(b)(1) because he did not exhaust
his remedies in state court. According to the magistrate judge, Julien should
have presented his new evidence in Colorado state court before seeking federal
habeas relief.
Julien timely objected to the magistrate judge’s recommendations. The
district court adopted the recommendations and dismissed Julien’s petition. The
2 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 3
court also denied Julien leave to proceed IFP on appeal, denied a COA, and
certified that any appeal would not be taken in good faith.
Julien now seeks a COA to appeal the district court’s denial of habeas
relief. He also seeks leave to proceed IFP and to supplement the record on
appeal with additional evidence.
DISCUSSION
Julien must obtain a COA to appeal the district court’s denial of habeas
relief from state detention. 28 U.S.C. § 2253(c)(1). We will not grant a COA
unless Julien makes “a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). Because the district court denied Julien’s petition on
procedural grounds, he must show both that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). We can address either requirement and, if one is not met,
we need not address the other. Id. at 485.
The district court denied Julien’s § 2254 petition on procedural grounds. 2
He doesn’t challenge that reasoning. Instead, he argues that the district court
2 The district court did not address Julien’s actual-innocence argument. That was error. Wolfe v. Johnson, 656 F.3d 140, 165 (4th Cir. 2009); see Bousley v. U.S., 523 U.S. 614, 612 (1998). Because an actual-innocence showing can excuse procedural default, the district court should have addressed it. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“[A] credible showing (footnote continued) 3 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 4
erred by not addressing his actual-innocence argument. Julien’s petition relies
on a narrow exception to procedural default. Julien argues that he is actually
innocent and that it would be a fundamental miscarriage of justice not to grant
him relief.
It is true that “[a] proper showing of actual innocence by a habeas
petitioner enables the petitioner to pursue a claim that would otherwise be
barred on grounds other than the merits.” Pacheco v. Habti, 62 F.4th 1233,
1241 (10th Cir. 2023). And when used to overcome procedural issues, an
actual-innocence claim “is not itself a constitutional claim, but a gateway
through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” Fontenot v. Crow, 4 F.4th 982,
1030 (10th Cir. 2021) (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
The actual-innocence exception applies “when a petitioner can demonstrate that
he is actually innocent of the crime of conviction.” Pacheco, 62 F.4th at 1241
(citation omitted). In this context, “actual innocence” means “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S.
614, 623 (1998).
of actual innocence may allow a prisoner to pursue his constitutional claims . . . on the merits notwithstanding the existence of a procedural bar to relief.”). But a district court’s failure to address an argument does not alone warrant a COA. That is because we can deny a COA for any reason supported by the record, even if the district court did not rely on that reason. Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). So, because we must ask whether jurists of reason would find it debatable whether the district court’s procedural ruling was correct, we address Julien’s actual-innocence arguments here. 4 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 5
To qualify for the exception, Julien must show that “it is more likely than
not that no reasonable juror would have convicted him in the light of the new
evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). That requires him to
“support his allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence—that was not presented at trial.” Id. at 324.
Julien relies primarily on four new pieces of evidence not available at
trial: a statement by a state attorney on direct appeal and three recent affidavits
by eyewitnesses. 3
The attorney statement concerns the date of Julien’s arrest and the
arresting officer’s identity. Julien alleges that, on direct appeal, a lawyer for
the state disclosed: “Here, September 15, 2016: Defendant is arrested.” Op. Br.
at 8 (citation modified). But according to Julien, he voluntarily surrendered to
police on September 20, 2016, and so this statement suggests an officer
committed perjury at Julien’s trial. But the attorney statement says nothing
about whether Julien is factually innocent of either of his convictions. So, we
conclude it would not sway a reasonable jury.
The three eyewitness affidavits that Julien presents are more clearly
relevant to the underlying convictions. The first, from Heshimo Carr,
3 We grant Julien’s motion to supplement the record on appeal because the materials he wants to add were before the district court. See Fed. R. App. P. 10(e); United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). 5 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 6
corroborates Julien’s assertion that Carr and the victim of Julien’s sexual
assault, Tia Schafer, went to Julien’s house to take methamphetamine. The
second, from John Curtis, supports Julien’s assertions that Schafer agreed to
have sex with Julien in exchange for methamphetamine. The third, from
Promise Lee, supports Julien’s story that he surrendered to police on September
20, 2016, rather than being arrested on September 15.
But none of these affidavits shows that Julien is factually innocent of
either crime. Even if Tia Schafer agreed to have sex with Julien in exchange for
methamphetamine, a reasonable jury could conclude that she later withdrew her
consent or was made to engage in other acts to which she never consented.
Thus, we are not convinced that no reasonable juror would have convicted
Julien in light of this evidence.
In his application, Julien also relies on a fifth piece of evidence: a
statement Schafer gave in a police interview. Julien argues that state officials
unlawfully withheld that Schafer, referencing Julien, told police: “I love that
man to death . . . all he wants to do is try and get me high and fuck me too.”
Op. Br. at 7. But this statement, too, says nothing about Julien’s factual
innocence.
Thus, we conclude that Julien does not “show that it is more likely than
not that no reasonable juror would have convicted him in the light of this
evidence.” Schlup, 513 U.S. at 327. So reasonable jurists could not disagree
6 Appellate Case: 25-1302 Document: 15-1 Date Filed: 11/26/2025 Page: 7
with the district court’s resolution of his habeas petition. See Pacheco, 62 F.4th
at 1247.
Though we deny Julien a COA and dismiss his appeal, we must address
his request to proceed IFP. See Clark v. Oklahoma, 468 F.3d 711, 714–15 (10th
Cir. 2006) (stating that a petitioner must pay the filing fee even after denial of
a COA). The district court certified under 28 U.S.C. § 1915(a)(3) that an appeal
would not be taken in good faith. But we may consider Julien’s IFP motion
notwithstanding § 1915(a)(3). Rolland v. Primesource Staffing, L.L.C., 497
F.3d 1077, 1078–79 (10th Cir. 2007).
To proceed IFP, Julien must show “a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal.” Watkins v. Leyba,
543 F.3d 624, 627 (10th Cir. 2008) (citation modified). Julien meets both
requirements. He lacks the money to pay the filing fees, and we do not doubt
Julien’s good faith, even if his arguments are not convincing.
CONCLUSION
We grant Julien’s IFP motion and his motion to supplement the record.
But we deny his request for a COA and dismiss this matter.
Entered for the Court
Gregory A. Phillips Circuit Judge