No. 5:18-CV-00413-F (W.D. Okla.)
PHILLIPS, MCKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
TERRENCE L. O'BRIEN, UNITED STATES CIRCUIT JUDGE
February 1995, Michael DeAngelo Lowery fatally shot Charles
Edward Johnson. He was convicted by an Oklahoma jury of first
degree manslaughter and possession of a firearm after a
felony conviction. He was sentenced to consecutive terms of
75 years and 25 years in prison, respectively. On February
28, 1997, the Oklahoma Court of Criminal Appeals (OCCA)
affirmed his convictions and sentences on direct appeal.
Almost 20 years later, in October 2016, Lowery filed his
first state petition for post-conviction relief. The state
trial court denied relief in June 2017 and the OCCA affirmed
the denial in September 2017. On April 27, 2018, he filed a
pro se 28 U.S.C. § 2254 habeas petition (his
first) raising four claims: (1) excessive sentence; (2)
insufficiency of the evidence supporting the first degree
manslaughter conviction; (3) violation of double jeopardy;
and (4) ineffective assistance of appellate counsel. The
State moved to dismiss the petition as untimely. The district
concluded Lowery's convictions became final on May 29,
1997, when the time to seek certiorari review in the United
States Supreme Court expired. See 28 U.S.C. §
2244(d)(1)(A) (stating one-year statute of limitations runs
from "the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review"); see also Rule 13.1,
Rules of the United States Supreme Court (requiring
certiorari petitions to be filed within 90 days after entry
of judgment); Locke v. Saffle, 237 F.3d 1269, 1273
(10th Cir. 2001) ("[A] petitioner's conviction is
not final and the one-year limitation period for filing a
federal habeas petition does not begin to run until-following
a decision by the state court of last resort-after the United
States Supreme Court has denied review, or, if no petition
for certiorari is filed, after the time for filing a petition
for certiorari with the Supreme Court has passed."
(quotation marks omitted)). The one-year statute of
limitations began running the next day, May 30, 1997, and
expired on May 30, 1998. Because May 30, 1998, was a
Saturday, he had until June 1, 1998, in which to file his
§ 2254 petition. See Harris v. Dinwiddie, 642
F.3d 902, 906 n.6 (10th Cir. 2011); United States v.
Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003). He
eventually filed it, but 20 years too late.
nevertheless claimed his petition was timely for two reasons.
First, he argued the limitations period did not begin to run
until November 2016, when the Pardon and Parole Board's
investigator rated him a low public safety risk. According to
him, he could not have raised his excessive sentence claim
challenging the sentencing court's calculation of his
future dangerousness until he received this rating.
See 28 U.S.C. § 2244(d)(1)(D) (stating the
statute of limitations runs from "the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence").
Once he received it, he filed his state petition for
post-conviction relief, which, according to him, tolled the
limitations period until September 2017, when the OCCA
affirmed the denial of his petition. See 28 U.S.C.
§ 2244(d)(2) ("The time during which a properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection."). The judge saw it
differently. He concluded § 2244(d)(1)(D) was not
applicable because the factual predicate of his sentencing
claim was known at the time of sentencing in 1995. He also
decided statutory tolling under § 2244(d)(2) was
unavailable because Lowery filed his state petition for
post-conviction relief after the federal limitations period
had already expired. See Clark v. Oklahoma, 468 F.3d
711, 714 (10th Cir. 2006) ("Only state petitions for
post-conviction relief filed within the one year [limitations
period] will toll the statute of limitations.").
Lowery claimed to be entitled to equitable tolling of the
limitations period based on actual innocence. See
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)
("[A]ctual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is
a procedural bar . . . or . . . expiration of the statute of
limitations."). According to him, because the shooting
was accidental, the evidence was insufficient to support a
first degree manslaughter conviction; as he would
have it, the evidence supported only a second degree
manslaughter conviction. Not only that, he claimed the
Oklahoma courts were without jurisdiction because double
jeopardy prevented him from being charged with both first
degree manslaughter and felon in possession of a firearm as
the former charge completely encompasses the latter and both
offenses occurred simultaneously. The judge decided Lowery
was not entitled to equitable tolling. To serve as a basis
for equitable tolling of the limitations period, "actual
innocence means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523
U.S. 614, 623 (1998) (quotation marks omitted). Lowery's
claims fell within the latter category, the judge reasoned,
because Lowery did not dispute he shot Edwards; he merely
disagreed with the jury's verdict.
judge denied a certificate of appealability (COA) so Lowery
renews his request here. A COA is a jurisdictional
prerequisite to our review of a petition for a writ of habeas
corpus. 28 U.S.C. § 2253(c)(1); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). To obtain one,
Lowery must make "a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
Because the judge's ruling rests on procedural grounds,
he must show both 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, 529 U.S. 473, 484 (2000). Lowery has not met
insists his petition is timely but merely repeats the
arguments he raised below. We have thoroughly reviewed the
record, Lowery's COA application, and the judge's
dismissal order. The judge's untimeliness decision is
thorough and legally sound. Lowery also claims the judge
never considered his actual innocence claim based on a double
jeopardy violation. He is correct. But, like his actual
innocence claim based on insufficiency of the evidence (which
the judge did address), even a successful double jeopardy
claim would show only legal innocence, not the factual
innocence required to excuse the untimeliness of his
petition. See Steele v. Young, 11 F.3d 1518, 1522
n.8 (10th Cir. 1993).
the result reached by the judge is not reasonably debatable,
we DENY a COA and DISMISS
 We have liberally construed
Lowery's pro se pleadings, stopping short, however, of
serving as his advocate. See United States v.
Pinson, 584 ...