Gary A. Lowe, Jr. was convicted after pleading guilty to possessing a controlled substance with intent to distribute and possessing a firearm after a felony conviction. Following his unsuccessful direct appeal, Lowe filed a motion under 28 U.S.C. § 2255 to vacate his sentence in the District Court for the District of Kansas. The district court denied this motion. To proceed with an appeal of that denial, Lowe was required to obtain a certificate of appealability (COA). He sought this certificate from the Tenth Circuit, arguing that the district court erred in denying his § 2255 motion based on judicial bias, ineffective assistance of counsel, and improper denial of release motions.
The court applied the standard set forth in Slack v. McDaniel, which asks whether reasonable jurists could find the district court's ruling debatable or wrong. The court addressed three primary arguments. First, regarding judicial bias, the court noted that it had previously rejected this argument on direct appeal. Lowe argued that his prior counsel was ineffective for not addressing the issue, citing alleged statements by the judge and a refusal to conduct an omnibus hearing. The court found no merit in these claims because the transcript did not reflect the alleged biased statements. Furthermore, the court clarified that local rules did not mandate an omnibus hearing but rather allowed a magistrate judge to conduct one as necessary. The court also found no basis for a bias inference regarding the refusal to take judicial notice of exhibits, as the motion was filed pro se by a represented defendant and the exhibits were omitted when the attorney refiled the motion. Second, regarding ineffective assistance of counsel, the court held that Lowe waived claims challenging the search and refusal to take judicial notice by pleading guilty. Since he did not challenge the validity of the plea itself, no jurist could reasonably credit an ineffective assistance claim based on those waived issues. Finally, the court found that the motions for release were dependent on the validity of the underlying bias and ineffective assistance claims, which had already been rejected.
Lowe is barred from proceeding with his § 2255 collateral attack on his sentence. The denial of the certificate of appealability effectively dismisses the appeal, leaving the district court's denial of the § 2255 motion in place. The decision reinforces the high bar for obtaining a COA and clarifies that local rules regarding omnibus hearings are discretionary rather than mandatory.
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