Lowe v. Allbaugh, 689 F. App'x 882

Walter Douglas Lowe was convicted of first-degree manslaughter in Oklahoma and sentenced to life; direct appeal and state post-conviction attempts failed.
Lowe filed a federal habeas petition under 28 U.S.C. § 2254 asserting 12 claims (6 raised on direct appeal, 6 in state post-conviction).
The magistrate judge recommended denial: claims from the direct appeal lacked merit; claims first raised in state post-conviction were procedurally barred.
Lowe objected to the R&R but addressed only three habeas issues; the district court overruled objections and denied relief.
On appeal, the Tenth Circuit applied the firm-waiver rule to many unpreserved objections, rejected late-raised theories (e.g., 911-call evidence), and found the remaining claims procedurally defaulted.
The court denied a certificate of appealability and dismissed the appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of firm-waiver rule to objections to the magistrate judge's R&R	Lowe argued his objections preserved all habeas claims for appeal	Respondents argued Lowe waived claims he did not specifically address in his objections	Court held Lowe waived eight of twelve claims under the firm-waiver rule; two exceptions did not apply
Ineffective assistance of trial counsel for failing to present 911-call evidence	Lowe argued counsel was ineffective for not presenting 911 recordings	Respondents argued the theory was raised too late (in objections) and thus waived	Held waived because theory was first raised in objections to the R&R and therefore untimely
Ineffective assistance of appellate counsel (untimeliness)	Lowe argued appellate counsel was ineffective and that delay was excused (e.g., prison library delay)	Respondents argued the claim was procedurally defaulted as untimely under state rule OCCA Rule 5.2(C)(2)	Held procedurally defaulted; Lowe failed to prove cause and prejudice or actual innocence sufficient to excuse the default
Inadequate jury instructions regarding Oklahoma "Stand Your Ground" law	Lowe argued jury instructions were inadequate and would have affected verdict	Respondents argued the claim was omitted from direct appeal and thus procedurally defaulted	Held procedurally defaulted; neither Schlup innocence nor cause-and-prejudice exception applied

Laurson v. Leyba, 507 F.3d 1230 (10th Cir. 2007) (standard for certificate of appealability)
Slack v. McDaniel, 529 U.S. 473 (U.S. 2000) (certificate of appealability standard where denial rests on procedural grounds)
Morales-Fernandez v. I.N.S., 418 F.3d 1116 (10th Cir. 2005) (firm-waiver rule for objections to magistrate judge R&R)
Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (procedural default and exceptions)
Martinez v. Ryan, 566 U.S. 1 (U.S. 2012) (limited exception re: ineffective assistance in initial-review collateral proceedings)
Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (standard for actual-innocence gateway)
Garfinkle v. United States, 261 F.3d 1030 (10th Cir. 2001) (theories raised first in objections to R&R are waived)
Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009) (waiver of specific ineffective-assistance theories when omitted from objections)