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Lowe v. Allbaugh

United States Court of Appeals, Tenth Circuit

May 5, 2017

WALTER DOUGLAS LOWE, Petitioner - Appellant,
v.
JOE ALLBAUGH, Interim Director Department of Corrections, Respondent - Appellee.

          (D.C. No. 5:13-CV-00791-M) (W.D. Okla.)

          Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

          ORDER

          Robert E. Bacharach Circuit Judge

         Mr. 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.

          1. Background

         Mr. 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.

         The 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 affirmed.

         Mr. 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 Appealability

         To 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

         Mr. 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).

         In his 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.[1] The remainder of the claims would ordinarily be waived.

         But 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 ...


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