Lowery v. Bryant

Filing 14

ORDER ADOPTING 12 Report and Recommendation, GRANTING 8 Motion to Dismiss filed by Jason Bryant, DISMISSING 1 Petition for a Writ of Habeas Corpus filed by Michael Deangelo Lowery, DENYING a certificate of appealability. Signed by Honorable Stephen P. Friot on 8/20/2018. (llg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MICHAEL DEANGELO LOWERY,
Petitioner,
-vsJASON BRYANT, Warden,
Respondent.

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Case No. CIV-18-0413-F

ORDER
Petitioner Michael Deangelo Lowery seeks habeas relief under 28 U.S.C.
§ 2254, challenging his criminal convictions by the State of Oklahoma for
manslaughter in the first degree, and possession of a firearm after conviction of a
felony. Petitioner appears pro se and his pleadings are liberally construed.
On July 9, 2018, Magistrate Judge Gary M. Purcell entered a Report and
Recommendation (the Report, doc. no. 12), recommending the court grant the
respondent’s motion to dismiss. The motion to dismiss (doc. no. 8) argued the
petition should be dismissed as untimely.
Petitioner objects to the Report. Doc. no. 13. He objects to the Report’s
overall conclusion that the petition is untimely; to the conclusion that there is no
newly discovered evidence to make the petition timely; to the conclusion that
petitioner has not shown actual (factual) innocence, an issue relevant to equitable
tolling (the Report finds no basis for equitable tolling); and to the Report’s failure to
address petitioner’s double jeopardy argument.
As required by 28 U.S.C. §636(b)(1), the court has reviewed the Report in its
entirety and has reviewed all objected to matters de novo. The Report addresses, in

detail, the reasons for the magistrate judge’s conclusions that the petition should be
dismissed as untimely. After careful consideration of petitioner’s objections, the
court finds that nothing stated there that changes the court’s conclusion, in
agreement with the magistrate judge, that the petition is untimely. The Report’s
analysis is correct and will be adopted. Given the Report’s detailed analysis, there
is no need for further discussion of any issues here.
Petitioner’s objections to the Report are DENIED. The Report and
Recommendation of the Magistrate Judge is ACCEPTED, ADOPTED and
AFFIRMED. In accordance with the Report, respondent’s motion to dismiss the
petition as untimely is GRANTED, and the petition for a writ of habeas corpus is
DISMISSED on that ground.
Movant is entitled to a certificate of appealability only upon making a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
This standard is satisfied by demonstrating that the issues movant seeks to raise are
deserving of further proceedings, debatable among jurists of reasons, or subject to
different resolution on appeal. See, Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(“[W]e give the language found in §2253(c) the meaning ascribed it in [Barefoot v.
Estelle, 463 U.S. 880, 893 (1983)], with due note for the substitution of the word
‘constitutional.’”). “Where a district court has rejected the constitutional claims on
the merits,...[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
When a prisoner’s habeas petition is dismissed on procedural grounds without
reaching the merits of the prisoner’s claims, “a COA should issue when the prisoner
shows, at least, 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

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ruling.” Id. Petitioner has not made the requisite showing and a certificate of
appealability is DENIED.
IT IS SO ORDERED this 20th day of August, 2018.

18-0413p001.docx

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