United States v. Lowe

Opinion

Appellate Case: 25-3119 Document: 12-1 Date Filed: 04/21/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 21, 2026 ____________________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-3119 (D.C. Nos. 6:24-CV-01225-JWB & GARY A. LOWE, JR., 6:20-CR-10066-JWB-2) (D. Kan.) Defendant - Appellant. _____________________________________________

ORDER _____________________________________________

Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. ______________________________________________

Mr. Gary A. Lowe, Jr. was convicted after pleading guilty to

possessing

• a controlled substance with intent to distribute and

• a firearm after a felony conviction.

See 21 U.S.C. § 841(a); 18 U.S.C. § 922(g)(1). He unsuccessfully appealed

and moved in district court to vacate the sentence. The district court denied

this motion, and Mr. Lowe wants to appeal. To do so, however, he seeks a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).

In considering Mr. Lowe’s request for the certificate, we ask only

whether reasonable jurists could find the district court’s ruling “debatable Appellate Case: 25-3119 Document: 12-1 Date Filed: 04/21/2026 Page: 2

or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We apply this

standard to the arguments that Mr. Lowe wants to present on appeal.

Judicial Bias. His first proposed argument is that the district judge

should have recused for bias. We rejected the same argument when Mr.

Lowe appealed his conviction. United States v. Lowe, No. 22-3209, 2023

WL 8271989, at *6–7 (10th Cir. Nov. 30, 2023). Given our prior decision,

we would generally decline to revisit the issue of judicial bias. See United

States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (“Absent an

intervening change in the law of a circuit, issues disposed of on direct

appeal generally will not be considered on a collateral attack by a motion

pursuant to § 2255.”).

Mr. Lowe attributes our prior decision to his attorney’s failure to

adequately address the issue of judicial bias. Given the alleged deficiency

of the earlier representation, Mr. Lowe contends that he deserves fresh

consideration of judicial bias based on the district court’s expressions of

bias, refusal to conduct an omnibus hearing, and disregard of exhibits.

The alleged expressions of bias consists of purported statements by

the district judge that (1) Mr. Lowe would never win a motion and (2) the

judge hoped to satisfy the prosecution by striking Mr. Lowe’s evidence.

But the transcript doesn’t reflect either statement.

This contention arises from the judge’s remarks about the filing of

motions by both Mr. Lowe and his attorney. Because Mr. Lowe was

2 Appellate Case: 25-3119 Document: 12-1 Date Filed: 04/21/2026 Page: 3

represented, the district judge explained that (1) he would consider only

the motions filed by his attorney, (2) his attorney could refile the motions

if he thought they had merit, and (3) the pro se motions filed thus far had

lacked merit. This explanation doesn’t provide a reasonable basis to infer

judicial bias.

Mr. Lowe also says that the district judge refused to conduct an

omnibus hearing even though it was required under a local rule. He’s

mistaken because the local rules didn’t require an omnibus hearing. To the

contrary, they said only that a magistrate judge could conduct “omnibus

hearings as are necessary.” D. Kan. Rule 72.1.2(a)(2) (2022). (Mr. Lowe

purports to quote nonexistent language in D. Kan. Rule 72.1.2. See COA

Appl. at 10.) So the refusal to conduct an omnibus hearing doesn’t provide

a reasonable basis to infer judicial bias.

Finally, Mr. Lowe asserts that the district judge refused to take

judicial notice of exhibits attached to one of Mr. Lowe’s motions. But

there was no reason to judicially notice the exhibits. The judge struck the

motion because Mr. Lowe was presenting it pro se and he was represented

at the time. Mr. Lowe’s attorney refiled the motion, but omitted the

exhibits. So the judge had no reason to consider the exhibits, and the

attorney had no reason to request judicial notice. Disregard of the exhibits

doesn’t provide a reasonable basis to infer judicial bias.

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Ineffective Assistance of Counsel in Challenging the Conviction.

Mr. Lowe also claims that his appellate attorney should have challenged a

search and refusal to take judicial notice. But Mr. Lowe waived these

claims by pleading guilty. United States v. Cockerham, 237 F.3d 1179,

1186–87 (10th Cir. 2001). Granted, he could avoid the waiver if the plea

had been invalid. Id. But he doesn’t question the plea itself. So no jurist

could reasonably credit a claim of ineffective assistance of counsel for

failing to challenge the search or refusal to take judicial notice.

Motions for Release. Mr. Lowe also argues that the district court

should have granted his motions for release because he wasn’t a flight risk,

he didn’t get a chance to be heard in a timely manner, and he didn’t have a

fair hearing. But these arguments hinge on the validity of his underlying

challenges involving judicial bias and ineffective assistance of counsel.

And we have concluded that no jurist could reasonably credit those

challenges. So the district court didn’t err in denying the motions for

release.

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** *

We deny the request for a certificate of appealability. Given this

denial, we dismiss the appeal.

Entered for the Court

Robert E. Bacharach Circuit Judge