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Lowe v. Bear

United States District Court, E.D. Oklahoma

April 19, 2019

JACK A. LOWE, Petitioner,
v.
CARL BEAR, Warden, Respondent.

          OPINION AND ORDER

          James H. Payne United States District Judge Eastern District of Oklahoma

         This action is before the Court on Respondent's motion to dismiss Petitioner's petition for a writ of habeas corpus. (Dkt. 7). Petitioner is a pro se prisoner in the custody of the Oklahoma Department of Corrections who is incarcerated at Joseph Harp Correctional Center in Lexington, Oklahoma. He is attacking his convictions and sentences in two Adair County, Oklahoma, District Court Cases:

Case No. CF-97-166: First Degree Rape by Instrumentation, After Former Conviction of Two Felonies, with a sentence of 200 years and one day of imprisonment.
Case No. CF-97-126: First Degree Burglary (Count 1) with sentence of 20 years' imprisonment, and Lewd Molestation (Count 2) with a sentence of life imprisonment.

         Petitioner raises three grounds for relief, however, he fails to explain the claims' connections to his separate convictions:

Ground I: Due process and equal protection rights were violated by procedural bars and refusal to allow hearing.
Ground II: State court proceedings violated mentally incompetent petitioner's rights under the Americans with Disabilities Act.
Ground III: Criminal Appeals Court's orders are contrary to federal law and Supreme Court opinions, and the orders imposed punishment for his frivolous filings without evidence or trial.

         Petitioner's Judgment and Sentence in No. CF-97-166 was affirmed by the Oklahoma Court of Criminal Appeals (OCCA) on October 27, 1999, in No. F-98-998. (Dkt. 8-1). On October 16, 2000, he filed an application for post-conviction relief in the Adair County District Court, which was denied on October 31, 2000. (Dkt. 8-3). He did not appeal the denial.

         On August 25, 2008, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging this conviction and sentence in the Western District of Oklahoma. (Dkt. 8-4). The petition was transferred to this Court which assigned it No. CIV 08-436-RAW-KEW and dismissed the action on January 14, 2010, as barred by the statute of limitations (Dkt. 8-5).[1]

         On October 17, 2014, Petitioner filed in the Adair County District Court another application for post-conviction relief, challenging his conviction and sentence, along with several motions. (Dkts. 8-6, 8-8 at 1). On July 7, 2016, he filed in the Adair County District Court yet another application for post-conviction relief, combining claims that challenged his convictions and sentences in both No. CF-97-166 and No. CF-97-126, and reiterating claims from the 2014 post-conviction application. (Dkt. 8-7). On May 30, 2017, the state district court denied Petitioner's requests for relief. (Dkt. 8-8).

         CASE No. CF-97-126

         Petitioner appealed his Judgment and Sentence in No. CF-97-126. On September 21, 2001, the OCCA affirmed the Judgment and Sentence for Count 1 in No. F-2000-897. (Dkt. 8-2). The Judgment for Count 2 was modified from Rape in the First modified from a 1, 000-year sentence to life imprisonment to run consecutively with his 20-year sentence in Count 1. Id.

         On July 29, 2003, Petitioner filed an application for post-conviction relief in the state district court, alleging ineffective assistance of trial and appellate counsel. The application was denied on October 12, 2004 (Dkt. 8-9), and on December ...


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