Actual Innocence as a Gateway Around § 2254 Procedural Bars:
Commentary on Julien v. Stancil (10th Cir. 2025)

I. Introduction

Julien v. Stancil, No. 25-1302 (10th Cir. Nov. 26, 2025), is a non‑precedential order of the Tenth Circuit denying a certificate of appealability (COA) to a pro se Colorado state prisoner challenging his convictions by way of a 28 U.S.C. § 2254 habeas petition.

Although designated as an order “not binding precedent” (except for ordinary doctrines such as law of the case, res judicata, and collateral estoppel), the decision is significant as persuasive authority on:

How an “actual innocence” claim functions as a gateway to overcome procedural bars, particularly where state remedies were not exhausted.
The level of rigor required of district courts when a petitioner invokes actual innocence to avoid dismissal on procedural grounds.
The demanding evidentiary standard under Schlup v. Delo and its application in a sexual-assault case involving disputed consent.
The interaction between COA denials and motions to proceed in forma pauperis (IFP), especially where the district court has certified that any appeal would not be taken in good faith.

The Tenth Circuit grants Julien’s motions to supplement the record and to proceed IFP but denies a COA and dismisses the appeal, while expressly acknowledging a district court error: failure to address Julien’s actual-innocence argument. The court then cures that error at the COA stage by directly analyzing whether Julien satisfies the Schlup standard.

II. Background of the Case

A. State Conviction and Direct Appeal

On March 9, 2021, a Colorado jury convicted Dywand Daytron Julien of:

One count of sexual assault; and
One count of possession of a weapon by a previous offender.

He received a sentence of twenty-three years to life. Julien pursued a direct appeal through the Colorado courts but was unsuccessful. Importantly, he did not seek any state postconviction relief (for example, under Colorado Rule of Criminal Procedure 35(c)), leaving state remedies plainly unexhausted as to his later federal habeas claims.

B. Federal Habeas Petition Under § 2254

On April 4, 2025, Julien filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court (D. Colo.).

He raised six grounds, all framed as Fourteenth Amendment violations arising from alleged trial defects, including:

Improper exclusion and concealment of evidence;
Fair-trial violations tied to purported prosecutorial perjury;
The trial court’s alleged failure to procure certain witnesses; and
Violations of his asserted right to represent himself.

A magistrate judge recommended dismissal under § 2254(b)(1) on the ground that Julien had not exhausted his state-court remedies. Because Julien’s new evidence had not been presented to the Colorado courts, the magistrate concluded that federal review was premature and barred.

Julien objected, but the district court adopted the recommendation, dismissed the petition on procedural grounds, denied a COA, denied leave to proceed IFP on appeal, and certified that any appeal would not be taken in good faith.

C. Appeal to the Tenth Circuit

Before the Tenth Circuit, Julien sought:

A certificate of appealability (COA);
Permission to supplement the appellate record with additional evidence;
Leave to proceed IFP.

Julien specifically argued that the district court erred by failing to address his actual-innocence argument, which he advanced as a gateway exception to procedural default and non-exhaustion.

III. Summary of the Tenth Circuit’s Opinion

The Tenth Circuit (Judges Matheson, Phillips, and McHugh) issues an order with four principal holdings:

COA Denied: The court denies Julien’s COA request. Because the district court dismissed the petition on procedural grounds, Julien had to satisfy the COA standard in Slack v. McDaniel, showing that:
- Reasonable jurists could debate whether he stated a valid constitutional claim; and
- Reasonable jurists could debate whether the procedural dismissal was correct.
The panel focuses on the procedural prong, analyzing whether Julien’s actual-innocence showing excused the procedural bar. It concludes that no reasonable jurist would find his actual-innocence showing sufficient under Schlup v. Delo.
Actual-Innocence Argument Recognized but Rejected: The court expressly acknowledges that the district court erred by failing to address Julien’s gateway actual-innocence argument. Nonetheless, relying on Davis v. Roberts, it holds that this omission does not itself warrant a COA, because an appellate court may deny a COA on any ground supported by the record. The Tenth Circuit corrects the error by engaging the actual-innocence analysis itself and finds Julien’s evidence inadequate.
Motion to Supplement the Record Granted: The court grants Julien’s motion to supplement the record because the new materials he seeks to include were already before the district court, making supplementation appropriate under Fed. R. App. P. 10(e) and United States v. Kennedy.
IFP Status Granted Despite District Court’s Bad-Faith Certification: Applying Watkins v. Leyba and Rolland v. Primesource Staffing, the Tenth Circuit grants Julien’s motion to proceed IFP, finding:
- He is financially unable to pay the filing fee; and
- His appeal, while unsuccessful, rests on a non-frivolous and reasoned legal argument (namely, the actual-innocence gateway), thus negating the district court’s bad-faith certification.

IV. Detailed Legal Analysis

A. The COA Framework and Slack v. McDaniel

Under 28 U.S.C. § 2253(c)(1), a state prisoner must obtain a COA to appeal a federal district court’s denial of habeas relief. Section 2253(c)(2) limits COAs to cases in which the petitioner makes “a substantial showing of the denial of a constitutional right.”

In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court refined what this means when a habeas petition is denied on procedural grounds:

“When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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.”

The Tenth Circuit applies this exact standard. Because it chooses to resolve the case on the procedural prong—Julien’s failure to surmount the procedural bar through actual innocence—it does not have to analyze whether his underlying constitutional claims are themselves debatable on the merits.

B. Exhaustion, Procedural Default, and the “Actual Innocence” Gateway

Julien’s petition was dismissed because he had not exhausted state remedies as required by § 2254(b)(1). Technically, failure to exhaust and procedural default are distinct doctrines:

Exhaustion requires a petitioner to present his federal constitutional claims to the state courts before seeking federal habeas relief, giving state courts a fair opportunity to correct constitutional errors.
Procedural default refers to the situation in which a state prisoner has failed to comply with a state procedural rule (e.g., time bars, waiver rules), and those failures bar state-court review.

In practice, federal courts often analyze these together when a petitioner either:

Did not raise claims in state court at all; or
Can no longer raise them there because state procedural rules now bar them.

An “actual innocence” showing is one of the narrow exceptions that can permit a federal court to reach the merits of otherwise barred claims. The Tenth Circuit cites Pacheco v. Habti, 62 F.4th 1233 (10th Cir. 2023), and Fontenot v. Crow, 4 F.4th 982 (10th Cir. 2021), to reaffirm that:

Actual innocence is not itself a freestanding constitutional claim (as clarified in Herrera v. Collins, 506 U.S. 390 (1993));
It is a gateway doctrine that, if satisfied, permits a petitioner to obtain merits review of otherwise defaulted constitutional claims.

The court also references McQuiggin v. Perkins, 569 U.S. 383 (2013), which recognized that a credible actual-innocence showing can overcome the federal habeas statute of limitations as well. Collectively, these cases establish that actual innocence can pierce a variety of procedural bars: limitations, default, and, by logical extension, certain exhaustion problems, because the same policy concerns—finality and comity—are sometimes subordinated to the risk of incarcerating an innocent person.

C. The Schlup Standard and “New Reliable Evidence”

The controlling standard for gateway actual-innocence claims comes from Schlup v. Delo, 513 U.S. 298 (1995). There, the Supreme Court held that to open the gateway, a petitioner must:

“show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

And importantly:

“[S]upport 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.”

Key points about the Schlup standard, reaffirmed in Julien:

The benchmark is factual, not legal, innocence (citing Bousley v. United States, 523 U.S. 614, 623 (1998)). It is not enough that trial errors might have produced a legally insufficient conviction; the question is whether the new evidence shows the petitioner did not commit the crime.
The new evidence must be “reliable,” in the sense that a reasonable juror could accept it as trustworthy.
The court assesses the likely effect of the new evidence in the context of the trial evidence as a whole, applying a “more likely than not” standard regarding the hypothetical verdict of a reasonable juror.

The Tenth Circuit in Julien applies this standard to five pieces of purportedly new evidence, concluding they do not satisfy the gateway test.

D. Application to Julien’s New Evidence

1. Evidence Offered by Julien

Julien relied on five items of “new” evidence:

A statement by a state attorney on direct appeal regarding:
- the date of Julien’s arrest (September 15, 2016); and
- the identity of the arresting officer.
An affidavit by Heshimo Carr, who:
- Corroborated that Carr and the alleged victim, Tia Schafer, went to Julien’s home to take methamphetamine.
An affidavit by John Curtis, who asserted that:
- Schafer agreed to have sex with Julien in exchange for methamphetamine.
An affidavit by Promise Lee, supporting:
- Julien’s claim that he voluntarily surrendered to police on September 20, 2016, rather than being arrested on September 15.
A statement Schafer made in a police interview, where she reportedly said of Julien:
“I love that man to death ... all he wants to do is try and get me high and fuck me too.”

2. Why the Court Finds the Evidence Insufficient

The panel’s analysis proceeds in two broad steps:

Evidence about arrest circumstances (items 1 and 4); and
Evidence about the nature of the relationship and consent (items 2, 3, and 5).

a. Arrest Date and Alleged Officer Perjury

Julien argued that the state attorney’s statement about an arrest on September 15, 2016, contrasted with his claim that he surrendered on September 20, 2016. He linked this to alleged perjury by the arresting officer and offered the Lee affidavit to corroborate his surrender date.

The Tenth Circuit reasons that, even if the officer’s trial testimony were false and the arrest date inaccurate, that discrepancy:

Does not tend to show that Julien did not commit the charged sexual assault or weapons offense; and
Thus does not help him demonstrate factual innocence of the underlying crimes.

At most, this evidence might support an attack on the integrity of the investigation, officer credibility, or potential due process violations (e.g., use of perjured testimony), but it does not meet the Schlup threshold of showing that no reasonable juror would convict in light of it. This is a classic example of the distinction between:

Impeachment or procedural irregularities, and
Affirmative evidence of innocence.

b. Evidence on Consent and Relationship Dynamics

The affidavits from Carr and Curtis, and Schafer’s quoted police statement, are more probative of the nature of the relationship and issues of consent. They suggest:

Schafer went to Julien’s house to do methamphetamine (Carr affidavit);
Schafer agreed to have sex with Julien in exchange for drugs (Curtis affidavit);
Schafer had a relationship of affection/attachment toward Julien and believed he wanted to get her high and have sex (police interview statement).

Nevertheless, the panel holds that such evidence still does not establish actual innocence under Schlup:

“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.”

This passage is particularly important. It underscores that:

Prior consent, or even a pattern of consensual sexual activity, does not preclude the possibility of later non-consensual acts.
Evidence of a transactional sex-for-drugs arrangement is not conclusive of ongoing, unrevoked consent at the time of the alleged offense.
A reasonable juror, even confronted with the new affidavits and statements, could still credit the victim’s account of non-consensual conduct or coercion at the precise time and place of the charged assault.

Consequently, the Tenth Circuit concludes that, even considering all five pieces of new evidence, Julien fails the Schlup gateway:

“[W]e 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.’”

Because his showing of actual innocence is insufficient, he cannot excuse the procedural bar, and reasonable jurists could not disagree with the district court’s decision to dismiss his petition.

E. District Court’s Failure to Address Actual Innocence

A notable aspect of the opinion is the court’s candid recognition that the district court erred by not addressing Julien’s actual-innocence argument. The panel cites:

Wolfe v. Johnson, 656 F.3d 140, 165 (4th Cir. 2011);
Bousley v. United States, 523 U.S. 614 (1998);
McQuiggin v. Perkins, 569 U.S. 383 (2013).

These authorities collectively stand for the principle that:

When a habeas petitioner invokes actual innocence to excuse a procedural bar (such as default or time bar), a federal court must consider that gateway argument before dismissing on procedural grounds.

The Tenth Circuit then invokes Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005), to explain why this procedural flaw does not itself justify a COA:

“[W]e can deny a COA for any reason supported by the record, even if the district court did not rely on that reason.”

Put differently:

The appellate court can “affirm on any ground supported by the record,” and at the COA stage, can deny a COA based on its own assessment of gateway issues, even if the district court never performed that analysis.
The omission is recognized as error—but a harmless one in context, because the panel independently determines that Julien’s actual-innocence showing fails as a matter of law.

As persuasive authority, this order signals to district courts within the Tenth Circuit that when actual innocence is invoked to bypass procedural bars, it must be explicitly addressed. Still, petitioners cannot obtain a COA merely by pointing to such an omission if the record otherwise conclusively defeats their Schlup showing.

F. In Forma Pauperis and Supplementation of the Record

1. Supplementation of the Record

The court grants Julien’s motion to supplement the record under Fed. R. App. P. 10(e), citing United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000). Rule 10(e) permits supplementation when the record on appeal does not accurately reflect what occurred in the district court.

Here, the materials Julien sought to include had been before the district court, so supplementation was proper. The panel’s approach reinforces a straightforward but sometimes overlooked point: a petitioner may ensure that all materials considered below are available to the appellate court, especially where those materials are integral to an actual-innocence argument.

2. Proceeding In Forma Pauperis on Appeal

The district court had certified, under 28 U.S.C. § 1915(a)(3), that any appeal by Julien would not be taken in good faith and denied IFP status. The Tenth Circuit nevertheless:

Considers Julien’s IFP motion anew; and
Grants it.

Under Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008), a litigant seeking IFP on appeal must show:

“(1) a financial inability to pay the required filing fees and (2) the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

The panel finds both requirements satisfied:

Julien is indigent and cannot afford the filing fee; and
His actual-innocence gateway argument—though ultimately unsuccessful—is sufficiently grounded in law and fact to be considered nonfrivolous.

The court cites Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077 (10th Cir. 2007), for the proposition that an appellate court may independently grant IFP despite a contrary district-court certification of bad faith.

At a broader level, this demonstrates that:

A losing argument is not necessarily a frivolous one;
The COA standard (substantial showing of the denial of a constitutional right) is different from the IFP standard (nonfrivolous, reasoned argument).

V. Discussion of Key Precedents Cited

1. Greer v. Moon, 83 F.4th 1283 (10th Cir. 2023)

Cited for the uncontroversial proposition that courts liberally construe pro se litigants’ arguments but do not act as their advocates. The Tenth Circuit reiterates this at the outset, acknowledging Julien’s pro se status while simultaneously declining to reconstruct or expand his claims beyond what he actually presented.

2. Slack v. McDaniel, 529 U.S. 473 (2000)

Provides the bifurcated COA standard when the district court dismisses on procedural grounds. The Tenth Circuit applies Slack to require Julien to show debatable merit both on the underlying constitutional claims and on the procedural ruling, and then elects to dispose of the case by focusing on the procedural prong (actual innocence).

3. Wolfe v. Johnson, 656 F.3d 140 (4th Cir. 2011)

Used to support the proposition that district courts must consider a petitioner’s actual-innocence argument when it is invoked to excuse procedural default or other bars. Although from another circuit, the Tenth Circuit finds its reasoning persuasive in assessing the district court’s omission here.

4. Bousley v. United States, 523 U.S. 614 (1998)

Cited for two critical points:

Actual innocence means “factual innocence, not mere legal insufficiency”; and
Actual innocence can serve as a gateway to review otherwise defaulted claims in both § 2254 and § 2255 contexts.

This reinforces the court’s insistence that evidence concerning arrest irregularities and prior consensual sexual activity does not suffice unless it affirmatively demonstrates that the petitioner did not commit the crimes.

5. McQuiggin v. Perkins, 569 U.S. 383 (2013)

Invoked to emphasize that a credible actual-innocence showing can overcome procedural obstacles such as statutes of limitations, and, by extension, other procedural bars like default and non-exhaustion. It supports the notion that the district court should have addressed Julien’s actual-innocence claim before dismissing his petition.

6. Herrera v. Collins, 506 U.S. 390 (1993)

Quoted via Fontenot v. Crow for the “gateway” characterization:

“[A]ctual-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.’”

The Tenth Circuit follows Herrera and Schlup in treating Julien’s innocence arguments as a gateway mechanism rather than as a stand-alone claim for relief.

7. Pacheco v. Habti, 62 F.4th 1233 (10th Cir. 2023)

Pacheco is a recent Tenth Circuit case dealing with actual innocence in the context of procedural bars. It is invoked to reaffirm:

The gateway character of actual-innocence claims; and
The requirement that actual innocence means innocence of the crime of conviction.

8. Fontenot v. Crow, 4 F.4th 982 (10th Cir. 2021)

Fontenot is another significant Tenth Circuit habeas decision addressing actual innocence. It is cited to show the court’s adherence to the Herrera/Schlup framework and to reinforce that actual innocence opens the door to review of defaulted claims without itself being a substantive constitutional claim.

9. Schlup v. Delo, 513 U.S. 298 (1995)

Central to the court’s analysis. It provides the “more likely than not that no reasonable juror” standard and the requirement of “new reliable evidence” of factual innocence. The Tenth Circuit applies Schlup to Julien’s five pieces of evidence and finds them inadequate.

10. Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005)

Cited for the principle that an appellate court may deny a COA on any ground supported by the record, even if the district court did not rely on that ground. This case enables the Tenth Circuit to cure the district court’s failure to address actual innocence without remand or granting a COA.

11. Clark v. Oklahoma, 468 F.3d 711 (10th Cir. 2006)

Clarifies that the obligation to pay filing fees persists even if a COA is denied. The Tenth Circuit cites Clark in explaining why Julien’s IFP motion still needs to be considered, despite the COA denial.

12. Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077 (10th Cir. 2007)

Used to confirm that the appellate court can independently evaluate and grant IFP status, notwithstanding a district court’s certification that the appeal is not taken in good faith.

13. Watkins v. Leyba, 543 F.3d 624 (10th Cir. 2008)

Provides the standard for IFP on appeal: indigence plus a reasoned, nonfrivolous argument in law and fact. The Tenth Circuit applies this standard to find Julien’s appeal, although unsuccessful, is not frivolous.

14. United States v. Kennedy, 225 F.3d 1187 (10th Cir. 2000)

Interprets Fed. R. App. P. 10(e) regarding supplementation of the record. This supports the panel’s decision to allow Julien to supplement the record with materials that were before the district court.

VI. Impact and Practical Implications

A. For Habeas Petitioners: The High Bar of Schlup

Julien illustrates that the Schlup gateway remains extremely demanding:

Evidence that merely impeaches witnesses, casts doubt on procedural aspects of the investigation, or shows prior consensual behavior is rarely enough.
Courts will focus on whether the new evidence affirmatively undermines the prosecution’s core factual theory to such a degree that no reasonable juror would convict.
In sexual-assault cases relying on a consent/non-consent divide, evidence of prior consent or romantic/transactional relationships generally will not, by itself, establish factual innocence of a particular charged incident.

The opinion thus reinforces a practical message: petitioners invoking actual innocence must bring forward truly powerful, exculpatory evidence (e.g., DNA, reliable alibi evidence, recantations supported by corroboration) rather than evidence that only softens or complicates the prosecution narrative.

B. For District Courts: Duty to Address Actual Innocence Explicitly

Although the order is non-precedential, its reasoning is clear:

When a petitioner clearly invokes actual innocence as a gateway to overcome procedural default, statutes of limitations, or exhaustion problems, the district court should address that argument head-on.
Failure to do so is identified here as “error,” even if it proves harmless on appellate review.

This encourages district judges and magistrate judges in the Tenth Circuit to structure habeas orders so that:

They first determine whether procedural bars apply; and
If the petitioner raises actual innocence, they next analyze whether the Schlup standard is satisfied before dismissing on procedural grounds.

C. For Appellate Practice: COA vs. IFP

Julien underscores the distinctness of two appellate thresholds:

COA – requires a substantial showing of the denial of a constitutional right (and, in procedural-dismissal cases, debatability of both the procedural ruling and the underlying claim).
IFP – requires indigence and a nonfrivolous, reasoned argument on law and facts.

A petitioner can:

Lose on the COA question (appeal dismissed); yet
Still be allowed to proceed IFP, because his arguments—although not meeting Slack’s stringent COA test—are not frivolous.

Counsel should thus distinguish:

Arguments directed at satisfying Slack (debatability among reasonable jurists);
Arguments directed at satisfying Watkins (nonfrivolous and reasoned).

D. Doctrinal Clarifications: Consent and Actual Innocence

One of the more practically meaningful aspects of the decision is the court’s brief but pointed observation about consent:

“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.”

This statement:

Emphasizes that consent is temporally and contextually specific.
Affirms that a victim’s prior willingness or pattern of consensual sexual conduct (especially in a drug-using context) does not foreclose a finding of sexual assault during a later encounter.
Shows that evidence about a victim’s general disposition or relationship with the defendant is often insufficient to disprove the charged criminal acts.

As persuasive authority, this may influence how future Tenth Circuit panels evaluate actual-innocence claims in consent-based sexual-assault cases, especially where the “new evidence” merely reveals prior consensual acts or a sexual relationship in a broader sense.

VII. Simplifying Key Legal Concepts

1. Certificate of Appealability (COA)

A COA is a jurisdictional prerequisite for an appeal from the denial of habeas relief by a federal district court. It is like a gatekeeper: the appellate court cannot reach the merits unless the petitioner shows that reasonable jurists could debate the correctness of the district court’s ruling (as refined by Slack).

2. 28 U.S.C. § 2254 and Exhaustion

Section 2254 is the federal statute allowing state prisoners to challenge their convictions based on alleged violations of the U.S. Constitution. It incorporates the principle of exhaustion, which requires the prisoner to give state courts a fair chance to correct any constitutional errors before turning to federal court.

3. Procedural Default

Procedural default occurs when a petitioner violates a state procedural rule (e.g., fails to object at trial or misses a filing deadline) and, as a result, state courts decline to review the claim. Federal habeas courts typically respect these state procedural bars unless the petitioner can show:

Cause and prejudice; or
Actual innocence (gateway exception).

4. Actual Innocence as a Gateway

A gateway actual-innocence claim does not argue that “my rights were violated” as a stand-alone constitutional claim. Instead, it argues:

“I am innocent, and there is strong new evidence to show it; therefore, it would be a fundamental miscarriage of justice to let procedural rules prevent review of my otherwise barred constitutional claims.”

If the gateway is opened under Schlup, the federal court then proceeds to analyze the underlying constitutional issues on the merits.

5. Factual vs. Legal Innocence

Factual innocence means the petitioner did not commit the criminal acts at all (or, in some cases, is guilty of a lesser offense only).
Legal innocence means that, due to some legal error, the conviction should be set aside (e.g., flawed jury instructions, defective indictment), even if the petitioner actually committed the acts.

The Schlup gateway concerns factual innocence, which is why evidence of trial irregularities or impeachment alone is often insufficient.

6. In Forma Pauperis (IFP)

Proceeding IFP allows an indigent litigant to pursue an appeal without prepaying filing fees. The litigant must show:

Inability to pay; and
That the appeal is not frivolous (there is a reasoned legal argument).

Losing on the merits does not automatically make an appeal frivolous.

VIII. Conclusion

Julien v. Stancil offers a detailed, if non-precedential, look at how the Tenth Circuit approaches the interplay between procedural bars in § 2254 habeas cases and the actual-innocence gateway doctrine.

Key takeaways include:

The Schlup actual-innocence standard remains exceedingly strict: new evidence must make it more likely than not that no reasonable juror would convict, and it must show factual, not merely legal, innocence.
District courts must address facially valid actual-innocence arguments when they are used to overcome procedural obstacles, though failure to do so can be cured at the COA stage if the record forecloses any credible innocence showing.
Evidence about prior consent or relationships, especially in sexual-assault cases, often falls short of demonstrating factual innocence of the particular alleged offense.
The standards for COA and IFP are distinct; a petitioner may be denied a COA yet still proceed IFP if the appeal raises a nonfrivolous, reasoned argument.

As persuasive authority, Julien reinforces the narrowness of the actual-innocence exception and clarifies procedural expectations for both district courts and habeas practitioners in the Tenth Circuit, especially where unexhausted claims are paired with post‑trial affidavits and partial impeachment evidence.

Actual Innocence as a Gateway Around § 2254 Procedural Bars: Commentary on Julien v. Stancil (10th Cir. 2025)