COA Denied for Waived § 2254 Evidentiary Claims Raised Outside the Petition or Oitted from the COA Application

Introduction

In Cales v. The State of New Mexico (10th Cir. Aug. 5, 2026), Ivan Dennings Cales, a New Mexico state prisoner proceeding pro se, sought a certificate of appealability (COA) to appeal the federal district court’s denial of his 28 U.S.C. § 2254 habeas petition. His underlying state convictions were for first-degree murder and tampering with evidence, arising from the 2014 disappearance and killing of Roxanne Houston.

On appeal, Cales focused on alleged state evidentiary errors (including testimony about purported “witch” beliefs and drawings, witness credibility based on drug use, and the State’s alleged “witch-killer theory” referencing race/religion). The central federal appellate issues became procedural: whether Cales preserved these arguments for federal habeas review and for COA consideration, and whether any preserved evidentiary issue rose to a federal due process violation.

Summary of the Opinion

The Tenth Circuit denied a COA and dismissed the appeal, holding that Cales had waived all arguments presented in his COA application:

  • His hearsay theory about a witness’s testimony was not raised in the district court as part of the habeas petition (he had argued a different evidentiary basis there).
  • His other evidentiary theories (attacking a witness as a chronic drug user; challenging evidence relating to “race and religion”) were raised for the first time in objections to the magistrate judge’s recommendation (and addendums), which the court treated as waived.
  • He also effectively abandoned other habeas grounds (ineffective assistance, prosecutorial misconduct, right to testify, and insufficiency of the evidence) by failing to include them in the COA application.

The court also denied in forma pauperis (IFP) because Cales did not present a “reasoned, nonfrivolous” basis for appeal, and denied his motion to add a party as moot.

Analysis

Precedents Cited

1) COA standard

  • Slack v. McDaniel, 529 U.S. 473, 484 (2000): Supplies the governing COA test—whether “jurists of reason” would find it debatable that the petition states a valid constitutional claim. The panel used Slack as the threshold gatekeeper and concluded Cales could not satisfy it because his arguments were procedurally waived.

2) Federal habeas limits: state evidentiary issues are not enough

  • Hooker v. Mullin, 293 F.3d 1232, 1238 (10th Cir. 2002): Reinforces that § 2254 review is limited to violations of the Constitution, laws, or treaties of the United States. State-law evidentiary errors warrant relief only if they render the trial “fundamentally unfair,” i.e., “so grossly prejudicial” as to “fatally” infect the trial. This case provided the substantive due process framework that would have governed had Cales preserved his evidentiary theories.
  • Andrew v. White, 604 U.S. 86, 93 n.3 (2025) (per curiam): Cited for the proposition that due process protects against evidence “so prejudicial as to affect the fundamental fairness” of trials—confirming that “fundamental fairness” is the constitutional lens for evidentiary complaints in habeas.

3) Abandonment/waiver by omission from the COA application

  • United States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003): Holds that a habeas petitioner waives a claim by failing to address it in the COA application or appeal brief. The panel relied on Springfield to treat multiple petition claims as abandoned because Cales did not raise them in his COA request.

4) Waiver for arguments not presented to the district court in the habeas petition

  • Harmon v. Sharp, 936 F.3d 1044, 1066 (10th Cir. 2019): The court “generally” does not consider issues not raised before the district court as part of the habeas petition. Harmon supported the conclusion that Cales’s new “hearsay” theory was waived because, in district court, he challenged the same evidence under a different state rule (character evidence).

5) Waiver for issues raised first in objections to a magistrate judge’s recommendation

  • Wahpekeche v. Pettigrew, 169 F.4th 1176, 1183 (10th Cir. 2026): The panel applied this rule directly—issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived. This precedent was dispositive of Cales’s later-raised evidentiary theories (witness drug use; race/religion evidence).

6) IFP standard

  • Rolland v. Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007): IFP may be denied when the appellant fails to show a reasoned, nonfrivolous argument in support of the appeal. The court used Rolland to deny IFP once it determined the appeal lacked preserved, debatable issues.

7) Pro se construction (with limits)

  • Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023): The court liberally construes pro se filings but does not act as the litigant’s advocate. This framed the court’s approach: generous reading, but no reconstruction of waived arguments or creation of claims.

Legal Reasoning

  1. COA is jurisdictional in practice for the appeal’s continuation. Under 28 U.S.C. § 2253(c) and Slack v. McDaniel, the panel asked whether any claim presented a debatable constitutional issue.
  2. Cales narrowed his own case on appeal. By presenting only evidentiary complaints in the COA application, he abandoned other habeas grounds under United States v. Springfield.
  3. His evidentiary arguments were procedurally defaulted at the federal appellate level by waiver.
    • The “hearsay” argument failed because it was not presented in the habeas petition to the district court; he had argued a different state evidentiary theory there. Under Harmon v. Sharp, the panel declined to consider the new theory.
    • The witness-drug-use and race/religion-evidence arguments failed because they were not included in the habeas petition and were raised only in objections/addendums to the magistrate judge’s PFRD. Under Wahpekeche v. Pettigrew, those late-raised issues were waived.
  4. Even on the merits, the constitutional threshold would be high. The court emphasized (and noted in a footnote) that mere violations of state evidence rules rarely justify § 2254 relief; the petitioner must show a due process violation under the “fundamental unfairness” standard of Hooker v. Mullin, consistent with Andrew v. White.
  5. IFP denial followed from the lack of a nonfrivolous appellate issue. With all arguments waived (and in any event not showing debatable constitutional error), the panel denied IFP under Rolland v. Primesource Staffing, LLC.

Impact

Although the order is designated nonprecedential, it crystallizes several practice-critical points for § 2254 litigants in the Tenth Circuit:

  • Preservation is outcome-determinative at the COA stage. A petitioner must (1) raise a claim in the habeas petition before the district court, and (2) raise the claim again in the COA application, or the claim will likely be treated as waived/abandoned.
  • Objections to a magistrate judge’s PFRD are not a vehicle for brand-new habeas claims. Under Wahpekeche v. Pettigrew, new theories introduced only at the objection stage are deemed waived—encouraging complete issue presentation in the initial petition and supporting briefing.
  • State-law evidentiary complaints must be reframed as federal due process violations. The opinion reiterates the narrow path from “evidence admitted contrary to state rules” to “trial rendered fundamentally unfair” under Hooker v. Mullin.
  • IFP on appeal is tethered to arguable merit. Where waiver and lack of a debatable constitutional issue foreclose relief, IFP may be denied under Rolland.

Complex Concepts Simplified

  • Certificate of appealability (COA): A required permission slip to appeal the denial of a § 2254 petition. The applicant must show the appeal raises a debatable constitutional issue (Slack v. McDaniel).
  • § 2254 habeas review: A federal court does not correct ordinary state-law mistakes. It addresses only federal constitutional (or federal statutory/treaty) violations.
  • Fundamental fairness (due process) standard: Even if evidence might violate a state evidence rule, habeas relief generally requires showing the admission was so prejudicial that it made the entire trial unfair (Hooker v. Mullin; Andrew v. White).
  • Waiver/abandonment in appellate habeas practice: If an argument is not raised at the correct stage (in the petition, not just objections; and in the COA application), the appellate court typically will not consider it (Harmon v. Sharp; Wahpekeche v. Pettigrew; United States v. Springfield).
  • PFRD: A magistrate judge’s “Proposed Findings and Recommended Disposition” is a recommendation to the district judge; objections preserve issues already presented, but (as applied here) do not safely introduce new ones.
  • In forma pauperis (IFP): Permission to proceed without paying fees; it can be denied if the appeal lacks a reasoned, nonfrivolous basis (Rolland).

Conclusion

The Tenth Circuit’s disposition in Cales underscores a strict preservation rule in § 2254 appeals: claims must be presented in the habeas petition, and the claims pursued on appeal must be presented in the COA application. Late-breaking theories—particularly those raised for the first time in objections to a magistrate judge’s recommendation—risk categorical waiver under Wahpekeche v. Pettigrew. Substantively, the order reiterates that state evidentiary disputes rarely become federal habeas relief unless they amount to a fundamental unfairness due process violation under Hooker v. Mullin.