COA Denied for Rule 2(c) Pleading Defects and Waiver of Any Challenge to a Procedural Dismissal in § 2254 Appeals

Introduction

In Welch v. Attorney General of the State of Colorado (10th Cir. Apr. 24, 2026), petitioner-appellant Merceir Cardan Welch, proceeding pro se, sought a certificate of appealability (“COA”) to challenge the district court’s dismissal—without prejudice—of his 28 U.S.C. § 2254 habeas application. Mr. Welch alleged constitutional and jurisdictional defects in Colorado convictions and sentences, including claims framed as cruel and unusual punishment, ineffective assistance of counsel, lack of jurisdiction, and an illegal sentence.

The central issues on appeal were procedural rather than merits-based: (1) whether the district court correctly dismissed the petition for failure to comply with the heightened pleading requirements of Habeas Rule 2(c); (2) whether, under COA standards, reasonable jurists could debate that procedural ruling; and (3) whether Mr. Welch’s failure to address the pleading-based dismissal in his opening appellate filing constituted waiver.

Summary of the Opinion

The Tenth Circuit denied a COA and dismissed the appeal. The court held that Mr. Welch did not make the showing required by 28 U.S.C. § 2253(c)(2) because reasonable jurists would not debate the district court’s procedural ruling dismissing the petition for noncompliance with Habeas Rule 2(c)’s specificity requirements. The panel additionally concluded that Mr. Welch waived any challenge to the dispositive procedural ground by failing to address it in his combined COA application and opening brief.

The court also denied: (i) leave to proceed without prepayment of fees for lack of a “reasoned, nonfrivolous argument”; (ii) as moot, a motion that effectively attempted to raise a new conditions-of-confinement claim (properly brought, if at all, under § 1983); (iii) a motion to alter the caption based on an unsupported alleged name change; (iv) a request to supplement the record with materials not presented below; and (v) assorted additional requests for relief against non-parties.

Analysis

Precedents Cited

  • Slack v. McDaniel, 529 U.S. 473 (2000)
    The court relied on Slack for the COA framework. Critically, when a district court denies relief on procedural grounds without reaching the constitutional merits, the applicant must show that reasonable jurists could debate both: (1) whether the petition states a valid constitutional claim, and (2) whether the procedural ruling is correct. This “double showing” drove the outcome because the dismissal was for pleading defects.
  • Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008)
    Cited for two complementary principles: courts liberally construe pro se filings, but they may not act as the litigant’s advocate. This underpinned the panel’s refusal to supply arguments Mr. Welch did not make (particularly, an argument attacking the Rule 2(c) dismissal).
  • Mayle v. Felix, 545 U.S. 644 (2005)
    Used to emphasize that Habeas Rule 2(c) is “more demanding” than ordinary civil pleading rules. Mayle also explains the functional purpose of particularized pleading: enabling the court to decide whether to order the state to “show cause” under 28 U.S.C. § 2243. The Tenth Circuit invoked this to justify dismissal where claims were vague, conclusory, or nonsensical.
  • Ruark v. Gunter, 958 F.2d 318 (10th Cir. 1992)
    Cited for the rule that “naked allegations” of constitutional violations are not cognizable in habeas. This reinforced that generalized assertions (without coherent facts tied to specific grounds for relief) do not satisfy Rule 2(c).
  • Sawyers v. Norton, 962 F.3d 1270 (10th Cir. 2020)
    Provided the waiver principle: issues not raised in the opening brief are deemed abandoned or waived. The panel used Sawyers to conclude Mr. Welch’s failure to address the basis of dismissal independently foreclosed COA relief.
  • Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
    Cited (via the magistrate judge’s analysis) to distinguish habeas claims from conditions-of-confinement claims. If a petitioner challenges conditions (e.g., alleged poisoning), the proper vehicle is generally § 1983 (state actors) or Bivens (federal actors), not § 2254.
  • Buchheit v. Green, 705 F.3d 1157 (10th Cir. 2012)
    Used to deny in forma pauperis status on appeal because Mr. Welch failed to present a “reasoned, nonfrivolous argument.” The court treated the appeal as lacking the minimal substantive showing required for fee waivers.
  • Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008)
    Cited for the record-on-appeal limitation: appellate review is generally confined to the record before the district court. This supported denial of Mr. Welch’s motion to supplement with new documents.
  • Colorado v. Welch, No. 20CA984, 2021 WL 12344513 (Colo. App. Apr. 29, 2021)
    Referenced as part of the procedural background (state postconviction litigation), situating the federal petition within Mr. Welch’s broader postconviction efforts. While not analyzed for substantive holdings, its mention signals that state review occurred and that the federal petition still had to meet federal pleading and procedural requirements.

Legal Reasoning

The opinion’s reasoning is best understood as a layered procedural disposition:

  1. Habeas pleading is not notice pleading.
    Applying Habeas Rule 2(c)(1)-(2) as interpreted in Mayle v. Felix, the court treated particularity as a gatekeeping requirement. A petitioner must identify specific grounds for relief and state supporting facts for each ground. The magistrate judge repeatedly directed Mr. Welch to cure deficiencies; the ultimate petition still contained claims the court characterized as “vague, unclear, conclusory, and in part nonsensical.”
  2. Improper claim-type: conditions of confinement.
    The court accepted the magistrate judge’s conclusion that to the extent Mr. Welch sought relief for alleged poisoning or similar conditions-related harms, § 2254 is not the proper procedural vehicle. Those allegations must be pursued, if at all, in a civil rights action such as 42 U.S.C. § 1983 (or Bivens for federal actors).
  3. COA standard applied to a procedural dismissal.
    Under Slack v. McDaniel, because the district court dismissed on procedural grounds, Mr. Welch had to show reasonable jurists could debate the correctness of the procedural ruling. The panel concluded they could not.
  4. Waiver as an independent barrier.
    The court further held that Mr. Welch’s appellate filing did not engage the district court’s actual reason for dismissal (Rule 2(c) noncompliance). Under Sawyers v. Norton, that failure constituted waiver—meaning the COA request failed not only on the merits of the procedural standard, but also because Mr. Welch did not present an appellate issue for the court to review.
  5. Limits of liberal construction.
    The panel invoked Yang v. Archuleta to clarify that leniency toward pro se litigants does not extend to inventing arguments or reconstructing an intelligible habeas theory where the petition does not supply one.

Impact

Although the order is expressly “not binding precedent” (outside law-of-the-case, res judicata, and collateral estoppel), it is a clear statement of how the Tenth Circuit will handle recurring procedural patterns in habeas litigation:

  • Rule 2(c) will be enforced as a meaningful screening tool, and repeated opportunities to amend will not prevent dismissal if the petitioner still fails to articulate coherent, fact-supported grounds for relief.
  • COA practice will turn on the actual basis of dismissal; appellants must directly contest the procedural ruling that ended the case, or risk waiver and denial under Sawyers v. Norton.
  • Boundary policing between habeas and civil rights actions remains firm: conditions-of-confinement claims (even if serious) generally do not belong in § 2254 and will not be entertained as add-ons through appellate motions.
  • The order also illustrates that courts may treat factually frivolous or delusional allegations as insufficient under Rule 2(c), reinforcing that habeas is reserved for plausibly pleaded constitutional violations tied to custody.

Complex Concepts Simplified

  • Certificate of Appealability (COA): A jurisdictional “permission slip” to appeal the denial of a § 2254 petition. Without it, the appellate court cannot reach the merits.
  • Procedural dismissal: The court ended the case because the petition failed to comply with procedural rules (here, pleading specificity), not because the court decided the underlying constitutional claims were meritless.
  • Habeas Rule 2(c) particularity: A habeas petition must list each ground for relief and the supporting facts. Broad conclusions like “illegal sentence” or “no jurisdiction,” without clear factual allegations showing how federal rights were violated, are typically inadequate.
  • Waiver/abandonment on appeal: If an appellant does not argue an issue in the opening brief—especially the reason the district court dismissed the case—the appellate court treats that issue as forfeited.
  • § 2254 vs. § 1983/Bivens: § 2254 generally challenges the legality of custody (conviction/sentence). § 1983 (and sometimes Bivens) challenges unlawful treatment or conditions while in custody (e.g., medical care, safety, excessive force).
  • Dismissal “without prejudice”: The dismissal does not necessarily bar refiling; it means the court did not reach a final merits determination. (In practice, refiling may still be constrained by limitations periods and other habeas rules not addressed in this order.)

Conclusion

Welch v. Attorney General of the State of Colorado underscores two practical rules for § 2254 litigants in the Tenth Circuit: (1) Habeas petitions must comply with Habeas Rule 2(c)’s heightened fact-and-claim specificity, and conclusory or incoherent allegations invite dismissal; and (2) a COA request is unlikely to succeed—indeed, may be waived outright—if the appellant does not directly challenge the district court’s procedural basis for dismissal under Slack v. McDaniel and Sawyers v. Norton. The decision also reaffirms the structural divide between habeas review of custody and civil rights litigation over conditions of confinement.