No. 5:13-CV-00791-M) (W.D. Okla.)
LUCERO, MATHESON, and BACHARACH, Circuit Judges.
E. Bacharach Circuit Judge
Walter Douglas Lowe unsuccessfully sought habeas relief in
district court. He wants to appeal but needs a certificate of
appealability to do so. 28 U.S.C. § 2253(c)(1)(A). We
decline to issue the certificate and dismiss the appeal.
Lowe was convicted of first-degree manslaughter in Oklahoma
and sentenced to life in prison. On direct appeal, Mr. Lowe
unsuccessfully asserted six grounds for relief. Mr. Lowe then
applied for post-conviction relief, asserting six additional
grounds for relief. The state district court denied this
application on the ground that Mr. Lowe could have presented
the claims on direct appeal.
Oklahoma Court of Criminal Appeals declined jurisdiction in
the post-conviction appeal, holding that the petition in
error had been filed out of time. Mr. Lowe then filed a
second application for post-conviction relief, seeking an
appeal out-of-time. The state district court denied this
application, and the Oklahoma Court of Criminal Appeals
Lowe then filed a habeas petition under 28 U.S.C. §
2254, asserting twelve grounds for relief. Six had first
appeared in the direct appeal, and the other six had first
appeared in the initial application for post-conviction
relief. The magistrate judge recommended denial of habeas
relief, reasoning that the claims raised on direct appeal
lacked merit and that the claims raised in the
post-conviction proceedings were procedurally barred. Mr.
Lowe objected to the magistrate judge's report and
recommendation, but the district judge overruled the
objections and denied habeas relief.
2. Standard for a Certificate of
obtain a certificate of appealability, Mr. Lowe must make
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). We can issue the
certificate only if reasonable jurists could debate the
correctness of the district court's ruling. Laurson
v. Leyba, 507 F.3d 1230, 1231-32 (10th Cir. 2007). When
the ruling denies habeas relief on procedural grounds, the
petitioner must show "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, 592 U.S. 473, 484 (2000).
3. Firm-Waiver Rule: Habeas Claims Involving (1) Time Limits
for Voir Dire, (2) Discriminatory Use of Peremptory
Challenges, (3) Failure of the State to Comply with the
Oklahoma Criminal Discovery Code, (4) Admission of Gruesome
Photographs, (5) Cumulative Error, (6) Actual Innocence, (7)
Denial of the Right to Self-Representation, (8) Denial of the
Right to Substitute Counsel, and (9) Ineffective Assistance
of Counsel Based on a Pejorative Characterization of Mr. Lowe
("Druggy"), Failure to Request a Jury Instruction,
and Failure to Call or Investigate Witnesses
Lowe has waived most of his habeas claims under the
firm-waiver rule. Under this rule, "a party who fails to
make a timely objection to the magistrate judge's
findings and recommendations waives appellate review . . .
." Morales-Fernandez v. I.N.S., 418 F.3d 1116,
1119 (10th Cir. 2005).
objections to the magistrate judge's report and
recommendation, Mr. Lowe failed to address the habeas claims
addressed in his application for a certificate of
appealability. Of the claims addressed in this application,
Mr. Lowe objected only to the magistrate judge's handling
of the claims involving ineffective assistance of trial
counsel for failure to present evidence of the 911 calls,
ineffective assistance of appellate counsel, and failure to
instruct the jury on Oklahoma's "Stand Your
Ground" law. The remainder of the claims would
ordinarily be waived.
there are two exceptions to the firm-waiver rule: "(1) a
pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, "
and (2) "the 'interests of justice' require
review." Id. These exceptions do not apply. In
the report and recommendation, the magistrate judge informed
Mr. Lowe of the consequences of failing to object. R. vol. 1,
at 508. Mr. Lowe filed a timely objection, but he failed to
address eight of his twelve habeas claims. See