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

                       FOR THE TENTH CIRCUIT                      May 5, 2017

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 WALTER DOUGLAS LOWE,

      Petitioner - Appellant,                     No. 16-6247
 v.                                        (D.C. No. 5:13-CV-00791-M)
                                                  (W.D. Okla.)
 JOE ALLBAUGH, Interim Director
 Department of Corrections,

      Respondent - Appellee.



                                  ORDER


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.


      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.

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§ 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
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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 Morales-Fernandez, 418 F.3d at 1119. Consequently, Mr. Lowe has

waived an appeal point on eight of his habeas claims:

      1.    improper time limits for voir dire

1
      Mr. Lowe did not clearly raise the jury-instruction issue in his
objections to the magistrate judge’s report and recommendation, but he did
refer to the “lesser included” offense that would have applied if the jury
had found that he acted in self-defense. R. vol. 1, at 511. For the sake of
argument, we may assume that this objection is sufficiently specific to
avoid application of the firm-waiver rule.
                                       4
      2.    discriminatory use of peremptory challenges

      3.    failure to the State to comply with the Oklahoma 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

      In the habeas petition, Mr. Lowe also alleged ineffective assistance

of trial counsel based on three theories: (1) counsel had told the jury that

Mr. Lowe was a “drugy” [sic], (2) counsel had failed to request a particular

jury instruction, and (3) counsel had failed to call or investigate any

witnesses. R. vol. 1, at 26. These theories were waived by their omission in

Mr. Lowe’s objections to the magistrate judge’s report and

recommendation. See Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir.

2009) (holding that the petitioner’s ineffective-assistance claim had been

waived with respect to counsel’s failure to investigate the petitioner’s

mental health because in his objection to the report and recommendation,

the petitioner had addressed only counsel’s failure to investigate the

murder weapon).

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      These waivers would leave only three habeas claims:

      1.   ineffective assistance of counsel based on a failure to present
           evidence of 911 calls

      2.   ineffective assistance of appellate counsel 2

      3.   inadequate jury instructions on the “Stand Your Ground” law

Nonetheless, these claims are otherwise subject to waiver and procedural

default.

4.    Waiver through Omission in the Habeas Petition: Claim of
      Ineffective-Assistance Based on a Failure to Present Evidence of
      911 Calls

      Mr. Lowe claims in part that his trial counsel should have presented

evidence of 911 calls. This claim was presented for the first time in Mr.

Lowe’s objection to the magistrate judge’s report and recommendation.

That was too late, creating a waiver. See United States v. Garfinkle, 261

F.3d 1030, 1031 (10th Cir. 2009) (“[T]heories raised for the first time in

objections to the magistrate judge’s report are deemed waived.”).

5.    Procedural Default: Claims of Ineffective Assistance of Appellate
      Counsel and Inadequate Jury Instructions on the “Stand Your
      Ground” Law




2
      In district court, Mr. Lowe also objected to the magistrate judge’s
disposition of a hearsay claim. But he has not included this claim in his
application for a certificate of appealability.
                                       6
         These rulings would leave only two habeas claims: (1) ineffective

assistance of appellate counsel and (2) inadequate jury instructions on the

“Stand Your Ground” law. But these claims are procedurally barred.

         A.   Ineffective Assistance of Appellate Counsel

         We first address the claim of ineffective assistance of appellate

counsel. In the habeas petition, the district court ruled that this claim had

been procedurally defaulted. We agree.

         The general rule is that federal habeas review is barred when “a state

prisoner has defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule . . . .” Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Mr. Lowe’s claim of ineffective

assistance of appellate counsel was considered untimely under OCCA Rule

5.2(C)(2), which is an independent and adequate state rule. Duvall v.

Reynolds, 139 F.3d 768, 797 (10th Cir. 1998). The resulting issue is

whether the issue fell within an exception to the general rule.

         Two exceptions exist: (1) cause and prejudice and (2) a fundamental

miscarriage of justice based on actual innocence. Coleman, 501 U.S. at

750. 3



3
      The Supreme Court recognized a limited third exception in Martinez
v. Ryan, 566 U.S. 1 (2012). That exception applies when a collateral
                                     7
      The second exception does not apply. Mr. Lowe claims actual

innocence based on self-defense under Oklahoma’s “Stand-Your Ground”

law. But this exception requires “new reliable evidence” of innocence.

Schlup v. Delo, 513 U.S. 298, 324 (1995). And Mr. Lowe has not presented

any new evidence. Instead, he argues that he was “legally innocent” rather

than “actually innocent.” See Ellis v. Hargett, 302 F.3d 1182, 1186 n.1

(10th Cir. 2002) (holding the miscarriage-of-justice exception does not

apply to the petitioner’s arguments on self-defense and heat of passion).

      Likewise, the “cause and prejudice” exception to the procedural

default doctrine does not apply. “Cause” refers to “something external to

the petitioner, something that cannot fairly be attributed to him.” Coleman,

501 U.S. at 753 (emphasis omitted). Though the magistrate judge stated

that ineffective assistance of appellate counsel “could be considered

‘cause’ for [the] failure to raise the preceding five claims on direct

appeal,” Mr. Lowe had procedurally defaulted on the appellate counsel

claim by filing an untimely post-conviction appeal. R. vol. 1, at 507.

      In this appeal, Mr. Lowe attributes the delay to the individuals

responsible for the prison library. But Mr. Lowe forfeited this argument by

failing to present it in district court. See Hancock v. Trammell, 798 F.3d

proceeding is the “first occasion to raise a claim of inadequate assistance
at trial.” 566 U.S. at 8. That exception does not apply here.
                                       8
1002, 1011 (10th Cir. 2015). And because Mr. Lowe has not requested

plain-error review, such review is unavailable. Id.

     As a result, Mr. Lowe procedurally defaulted his claim of ineffective

assistance of appellate counsel.

     B.    Inadequate Jury Instructions on the “Stand Your Ground”
           Law

     In the habeas petition, Mr. Lowe also claimed inadequate jury

instructions on the “Stand Your Ground” law. This claim was procedurally

defaulted through omission in the direct appeal. See Smith v. Workman,

550 F.3d 1258, 1267 (10th Cir. 2008). And, as discussed above, Mr. Lowe

cannot satisfy either exception to the procedural-default doctrine. Thus,

Mr. Lowe cannot obtain habeas relief on this claim.

     Appeal dismissed.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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