                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                          October 28, 2019
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 ALAN DeATLEY TRIBAL MEMBER,

       Petitioner - Appellant,

 v.                                                          No. 19-1322
                                                 (D.C. No. 1:19-CV-01326-LTB-GPG)
 DEAN WILLIAMS, Executive Director                            (D. Colo.)
 CDOC; WARDEN JAQUEZ; PHIL
 WEISER, State of Colorado Attorney
 General,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

      Alan DeAtley, a Colorado state prisoner serving an 83-year sentence for tax

fraud offenses, seeks a certificate of appealability (“COA”) to challenge the district

court’s dismissal of his 28 U.S.C. § 2254 application for a writ of habeas corpus.

See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final order in a

habeas corpus proceeding in which the detention complained of arises out of process

issued by a State court”). He also seeks leave to proceed in forma pauperis (“ifp”).



       * This order is not binding precedent, except under the doctrines of law of the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.
Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests and dismiss

this matter.1

       Mr. DeAtley initiated this proceeding by filing a pro se § 2254 application in

the United States District Court for the District of Columbia. That court transferred

the application to the District of Colorado, where a magistrate judge ordered Mr.

DeAtley to file his application on the proper forms. Mr. DeAtley did so, but the

magistrate judge then found that Mr. DeAtley’s § 2254 application and its attached

45-page statement failed to comply with Federal Rule of Civil Procedure 8(a), which

calls for “a short and plain statement of the claim.” Fed. R. Civ. P. 8(a)(2). The

magistrate judge ordered Mr. DeAtley to file a compliant § 2254 application. In

response, Mr. DeAtley filed an amended application. The magistrate judge, “unable

to decipher what federal constitutional violations Applicant is attempting to

challenge,” ROA at 279, recommended dismissal of the action without prejudice

under Federal Rule of Civil Procedure 41(b). Mr. DeAtley objected to the

recommendation and filed another amended application. The district court, noting

that “neither the Objection nor the Amended Application are intelligible,” id. at 357,

adopted the recommendation, dismissed the action without prejudice for failure to

comply with a court order and failure to prosecute, denied ifp status on appeal, denied

a COA, entered judgment, and denied a motion for reconsideration.




       1
         Because Mr. DeAtley is pro se, we construe his filings liberally, but we do
not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
                                           2
       We must grant a COA to consider Mr. DeAtley’s appeal from the district

court’s dismissal of his § 2254 application. See Miller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). Where, as here, the district court dismissed the application on

procedural grounds, we will grant a COA only if the applicant can demonstrate 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) (emphasis added). We focus here on the district court’s

procedural ruling.

       Mr. DeAtley’s challenge to the dismissal of his § 2254 application under Rule

41(b) for failure to comply with Rule 8(a) would be reviewed in a merits appeal for

abuse of discretion. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,

1161 (10th Cir. 2007). We therefore ask if reasonable jurists could debate whether

the district court’s dismissal of Mr. DeAtley’s amended § 2254 application was an

abuse of discretion. See Buck v. Davis, 137 S. Ct. 759, 777 (2017) (accepting

formulation of “the COA question” as “whether a reasonable jurist could conclude

that the [d]istrict [c]ourt abused its discretion in declining to reopen the judgment”).

       We have reviewed Mr. DeAtley’s extensive and mostly handwritten filings,

including his four applications for habeas relief in the district court and his brief filed

in this court. These materials reflect considerable work on his part and are entitled to

a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

But pro se litigants must comply with the Federal Rules of Civil Procedure, including

                                             3
Rule 8. See United States v. Green, 886 F.3d 1300, 1307-08 (10th Cir. 2018);

Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Mr. DeAtley has not.

      Mr. DeAtley’s fourth (and most recent) § 2254 application alleges the State of

Colorado lacks jurisdiction over him as a tribal member who has been granted habeas

relief by a tribal court. It also mentions “unconstitutional search and seizure,”

“unlawful arrest,” “unconstitutional failure of the illegal prosecution,” “double

jeopardy,” and “First Amendment right to access.” ROA at 282-88. But the only

issue he may challenge here is the district court’s dismissal based on his failure

to comply with its order to satisfy the pleading requirements of the Federal Rules.2

We cannot say the district court abused its discretion in determining that Mr. DeAtley

has failed to set forth a short and plain statement of his claims for relief as required




      2
         Although we limit our review to the procedural issue and do not address the
merits of Mr. DeAtley’s claims, we note that Mr. DeAtley contends that the
“Latgawa Indian Tribal Justice Court” has awarded him habeas relief and that the
federal court must honor this ruling. ROA at 75, 290-91. The tribal judge who
awarded relief and signed the order was Mr. DeAtley. For example, attached to his
first § 2254 application is an “Order” finding that “Alan E. De Atley Tribal Special
Counsel, Tribal Judge appointed for life by Chief Judge Newkirk must be released
within 1 hours [sic] the same day this has been delivered to any State of Colorado
employee.” Id. at 75 (emphasis added). Then it says, Mr. “De Atley must be
released this day within 1 hour of this Tribal Courts Order [sic].” Id. The order was
signed by “Alan E. De Atley Tribal Special Counsel, Tribal Judge.” Id. at 77
(emphasis added). Similar documents from the “Latgawa Indian Tribal Justice
Court” and signed by Mr. DeAtley as the tribal judge were attached to his § 2254
applications in this case. See, e.g., id. at 78-94, 121-37, 139-41.

                                            4
by Rule 8(a) of the Federal Rules of Civil Procedure.3 Nor would reasonable jurists

debate whether the district court abused its discretion.

      We therefore deny a COA.4 We also deny Mr. DeAtley’s request to proceed

ifp.5 This matter is dismissed.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




      3
        “The Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.” Rule 12, Rules Governing § 2254 Cases in the United
States District Courts; see Fed. R. Civ. P. 81(a)(4)(A). To the extent Rule 2 of the
Rules Governing § 2254 Cases addresses what a habeas applicant should include in a
§ 2254 petition, it is “not inconsistent with” Federal Rule of Civil Procedure 8(a)(2)’s
requirement of “a short and plain statement” of the applicant’s claim.
      4
         The dismissal was without prejudice. A habeas petition dismissed without
prejudice has not been decided on the merits and is, therefore, not subject to the
limitations governing second or successive petitions. See Stewart v. Martinez-
Villareal, 523 U.S. 637, 643-44 (1998).
      5
        Mr. DeAtley’s brief on appeal alleges improprieties in the district court’s
handling of this case. These matters may be raised through the judicial conduct
process. See 28 U.S.C. §§ 351-64; 10th Cir. Rules for Judicial-Conduct and Judicial-
Disability Proceedings, https://www.ca10.uscourts.gov/ce/misconduct.
                                           5
