Tanner v. State of Wyoming

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 26, 2026
• Docket: 25-8007
• Status: Unpublished

Opinion

Appellate Case: 25-8007 Document: 15-1 Date Filed: 06/26/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 26, 2026 _________________________________ Christopher M. Wolpert Clerk of Court RICHARD W. TANNER,

Petitioner - Appellant,

v. No. 25-8007 (D.C. No. 2:25-CV-00001-ABJ) STATE OF WYOMING; WYOMING (D. Wyo.) ATTORNEY GENERAL,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before EID, KELLY, and CARSON, Circuit Judges. _________________________________

Richard W. Tanner, a Wyoming state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his petition for

a COA and dismissal of his 28 U.S.C. § 2254 habeas petition. Tanner also moves to

proceed in forma pauperis (“IFP”). For the following reasons, we deny the COA, deny

the motion to proceed IFP, and dismiss this matter.

I.

Tanner pleaded guilty to one count of sexual abuse of a minor in state court, for

which he received a sentence of six to ten years’ imprisonment with credit for 224 days

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 25-8007 Document: 15-1 Date Filed: 06/26/2026 Page: 2

served. While serving that sentence, Tanner filed a petition under the Wyoming Post-

Conviction Determination of Factual Innocence Act (the “Factual Innocence Act”),

Wyo. Stat. Ann. §§ 7-12-401 to 407. In that petition, he alleged that he only pleaded

guilty because he was poorly advised by his trial counsel, and that he did not understand

the effect of his guilty plea due to a brain injury. A Wyoming district court dismissed

Tanner’s petition without prejudice, finding that it presented frivolous and speculative

issues and that it did not establish that Tanner was factually innocent as is required under

the Act. Tanner appealed to the Wyoming Supreme Court, but the Wyoming Supreme

Court dismissed the appeal for lack of jurisdiction, holding that, under Wyoming law,

“a dismissal of a factual innocence petition without prejudice is not an appealable order.”

Order Dismissing Appeal, Tanner v. State, No. S-24-0250 (Wyo. Nov. 20, 2024); see

also Order Denying Petition to Reinstate Appeal, Tanner v. State, No. S-24-0250

(Wyo. Dec. 11, 2024).

Tanner then filed a habeas petition under 28 U.S.C. § 2254, requesting a federal

district court direct the Wyoming Supreme Court to reinstate his appeal. After

considering Tanner’s petition, the federal district court denied Tanner a COA, finding

that Tanner’s assertions that the Wyoming Supreme Court misapplied Wyoming law and

his bare assertion that he was innocent were insufficient grounds on which to issue a

COA. We agree with the district court and deny Tanner a COA.

II.

We review a pro se litigant’s filings liberally. See Trackwell v. U.S. Gov’t,

472 F.3d 1242, 1243 (10th Cir. 2007). Prisoners held in state custody “in violation of the Appellate Case: 25-8007 Document: 15-1 Date Filed: 06/26/2026 Page: 3

Constitution or laws or treaties of the United States” may petition federal courts for

habeas relief. 28 U.S.C. § 2254(a). For this court to consider a § 2254 petition, we must

first issue a COA. Id. § 2253(c)(1). Under 28 U.S.C. § 2253(c)(2), “[a] certificate of

appealability may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” A petitioner “can make such a showing by

demonstrating that the issues he seeks to raise on appeal are deserving of further

proceedings, subject to a different resolution on appeal, or reasonably debatable among

jurists of reason.” Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000).

A.

Construing Tanner’s petition liberally, we identify two main issues. First, Tanner

alleges that the Wyoming Supreme Court misapplied Wyoming law and, as a result,

improperly dismissed his state law claim. Second, he ostensibly asserts several

constitutional violations but provides no factual support for those claims.

Tanner first asserts that the Wyoming Supreme Court misconstrued Wyoming’s

Factual Innocence Act to find that it lacked jurisdiction to hear his appeal. In particular,

Tanner contends that the Wyoming Supreme Court’s decisions in Woods v. State,

471 P.3d 997 (Wyo. 2020), and Uden v. State, 470 P.3d 560 (Wyo. 2020), were “clearly

against the [Factual Innocence Act statute].” Pet. at 7.

But, as the Supreme Court has “repeatedly held[,] [ ] a state court’s interpretation

of state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v. Richey,

546 U.S. 74, 76 (2005). Thus, Tanner’s allegation that the Wyoming Supreme Court

misinterpreted state law is not a basis for habeas relief. Holding otherwise would require Appellate Case: 25-8007 Document: 15-1 Date Filed: 06/26/2026 Page: 4

us to overturn a state supreme court’s interpretation of its state’s law. We are not at

liberty to do so. 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.”).

Second, Tanner asserts several ways in which the Wyoming court system violated

his constitutional rights: its failure to provide proper counsel, its failure to consider his

mental health issues, and its refusal to consider exculpatory evidence. However, Tanner

provides no factual support for any of these claims. His bare assertion of these violations

falls well short of the “substantial showing of the denial of a constitutional right” that the

habeas statute requires. 28 U.S.C. § 2253(c). Given the dearth of factual allegations

accompanying Tanner’s claims, we have no basis to conclude 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).

B.

Tanner also seeks to proceed IFP. To do so, he must demonstrate “a financial

inability to pay the required fees and the existence of a reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted). Finding no

nonfrivolous argument in our review of the record, we deny Tanner’s motion to

proceed IFP. Appellate Case: 25-8007 Document: 15-1 Date Filed: 06/26/2026 Page: 5

III.

Because Tanner has failed to make a substantial showing that he is in custody in

violation of the Constitution or laws or treaties of the United States, we DENY the COA

and DISMISS this matter. We also DENY Tanner’s motion to proceed IFP.

Entered for the Court

Allison H. Eid Circuit Judge