US v. Shane Cowley

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:99-cr-00170-1. [999763985]. [15-6067]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6067

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANE COWLEY,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
John T. Copenhaver,
Jr., District Judge. (2:99-cr-00170-1)

Argued:

December 8, 2015

Decided:

February 29, 2016

Before TRAXLER, Chief Judge, SHEDD, Circuit Judge, and Elizabeth
K. DILLON, United States District Judge for the Western District
of Virginia, sitting by designation.

Affirmed by published opinion. Judge Dillon wrote the opinion, in
which Chief Judge Traxler and Judge Shedd joined.

ARGUED: James Yash Moore, THE LAW OFFICE OF JAMES Y. MOORE, Ludlow,
Kentucky, for Appellant. Erik S. Goes, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: R.
Booth Goodwin II, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee.

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DILLON, District Judge:
Shane Cowley was convicted by a jury in August 2000 of various
crimes stemming from the attempted robbery and murder of Jeff
Stone.

On June 6, 2014, almost five years outside the window to

file a timely motion, Cowley filed a motion seeking post-conviction
DNA testing pursuant to the Innocence Protection Act (IPA), 18
U.S.C. §§ 3600–3600A. The district court concluded that the motion
was untimely and refused to grant a certificate of appealability
(COA).

Cowley argues here -- as he did before the district court

-- that he can rebut the presumption against timeliness under
either or both of two exceptions.

First, he claims that he has

shown “good cause” for the late filing; and second, he contends
that denial of his motion would result in “manifest injustice.”
(Appellant’s

Br.

17

(citing

18

U.S.C.

§ 3600(a)(10)(B)(iii)–

(iv)).)
For the reasons stated below, we conclude that a certificate
of appealability is not required to appeal the denial of an IPA
motion and thus that Cowley’s appeal is properly before this court.
We also affirm the district court’s ruling that Cowley’s motion
was untimely.
I.
A.
In the early morning hours of July 30, 1998, drug dealer Jeff
Stone, along with his twelve-year-old son, was accosted by two
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masked men with guns. 1

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Stone was shot and killed, and the two men

searched for -- but apparently did not find --methamphetamine and
cash that were in a bag in Stone’s truck.

Stone’s son described

the masked men, and the descriptions matched the general physical
descriptions of Shane Cowley and Ron Moore.
Cowley was charged in a four-count indictment with possession
of a stolen firearm (Count 1), attempted possession with intent to
distribute methamphetamine (Count 2), the use and carrying of a
firearm in relation to a drug trafficking crime (Count 3), and
tampering with a witness (Count 4).

The first three counts arose

from the attempted robbery of Stone. 2

The fourth was based on

subsequent threats that Cowley made to a witness.

A jury found

Cowley guilty of all four counts, and the district court sentenced
him to a total term of 45 years’ imprisonment.
At trial, 3 the government presented testimony from numerous
witnesses, including the eyewitness testimony of Stone’s son.
Other witnesses testified that they had heard Cowley speaking about
wanting to rob Stone for drugs and money in the weeks and days

1

Neither party contends that the district court made any
factual errors, so we take the facts from the district court’s
opinion.
2

To date, no one has been charged with Stone’s murder.

3

All references to the trial in this opinion are to Cowley’s
March 2000 trial, which followed an initial mistrial.
3

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leading up to the robbery.

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Additionally, witnesses testified that

in the days following Stone’s death, Cowley admitted that he had
killed Stone, failed to deny it, or denied it only jokingly.
Witnesses also linked Cowley to at least two guns.

Beverly

Oldham testified to seeing Cowley, a few weeks before the murder,
with a gun that matched the description of one of the guns at the
scene.

There was also testimony that, on the evening of July 29,

Cowley and Moore had received and possessed a firearm stolen by
Chris Martin.
Cowley testified in his own defense, offering an alibi.

He

claimed that he and Ron Moore were stealing a blue pick-up truck
approximately one mile from the murder scene at the time of the
murder.

Cowley also offered testimony from another witness who

had seen him near the time of the murder at a location other than
the murder scene.

In response to Cowley’s defense, the United

States countered that, given the proximity of the locations, there
was enough time that evening for Cowley to both steal the truck
and attack Stone.
The defense wanted to call Moore as a witness to bolster
Cowley’s alibi, but Moore invoked his Fifth Amendment right not to
testify.

Moore’s recorded statements, proffered by Cowley, were

excluded. Cowley’s conviction and sentence were affirmed on direct
appeal, and this court’s opinion addressed Moore’s statements,
finding no abuse of discretion in their exclusion.
4

United States

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v. Cowley, 11 F. App’x 207, 208 (4th Cir. 2001) (per curiam).
Cowley did not file a petition for a writ of certiorari.
B.
Cowley subsequently filed a motion to vacate pursuant to 28
U.S.C. § 2255, collaterally attacking his conviction and sentence
on a number of grounds.
allegations here.

Some of those grounds relate to his

For example, he argued that his counsel was

ineffective for choosing to pursue an alibi defense because that
defense was not airtight.

He also claimed that counsel failed to

call witnesses at trial who would have allegedly testified that
Overton Wayne Pauley admitted to participating, with three others,
in Stone’s robbery and killing. At his evidentiary hearing, Cowley
also offered the same basic testimony from Betty Harder he now
offers here, i.e., that her daughter, Beverly Oldham, had testified
falsely about seeing Cowley with a gun that matched the weapon
described by Stone’s son.
After
recommended

the

evidentiary

denying

Cowley’s

hearing,
§

2255

the

magistrate

motion.

Cowley

judge
filed

objections, but the district court overruled them, adopted the
proposed findings and recommendation, and denied the motion.

This

court denied Cowley a certificate of appealability and dismissed
the appeal.

United States v. Cowley, 186 F. App’x 408 (4th Cir.

2006).
C.
5

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In 2004, while Cowley’s § 2255 motion was pending before the
district court, the IPA became law.

As relevant here, the IPA

“allows federal prisoners to move for court-ordered DNA testing
under certain specified conditions.”

Dist. Attorney’s Office for

the Third Judicial Dist. v. Osborne, 557 U.S. 52, 63 (2009).
Although his § 2255 proceedings were complete in 2006, Cowley did
not file his IPA motion for post-conviction DNA testing until June
6, 2014.

After initially failing to list the specific items from

the Stone murder scene that he wanted tested, Cowley clarified
that he wanted testing done on spent casings (from both a 9 mm gun
and a .40 caliber gun); beer cans, bottles, and a beer carton near
the crime scene; three items of clothing found in a ditch near
Stone’s body; a blood stain from the exterior of the driver’s side
door of Stone’s truck; and numerous latent print lifts from various
locations at or near the crime scene.
In support of his motion, Cowley provided affidavits from
eight people.

They were aptly described by the district court in

its opinion, and we will not restate all of the testimony here.
Summarized, the affidavits, if believed, support both the alibi
defense Cowley pursued at trial and his claim that four other
persons (Nort Hudson, Wayne Pauley, Robert Parsons, and Suwin

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Satsuary) were responsible for the Stone robbery and murder, not
him. 4
Perhaps the most significant are the affidavits from Ron
Moore, who has now given sworn testimony that completely supports
Cowley’s alibi, and from Wanda Pittman and Tammy Via Pauley (Wayne
Pauley’s

wife),

both

of

whom

aver

that

Pauley

admitted

his

participation in the Stone robbery and murder to them by telephone
and detailed how the crime occurred. 5

Cowley also included the

affidavit of Suzanne McComas, a private investigator employed by
Cowley, who avers that she began investigating this matter in
January 2014.

She also identifies Marvin Garrett as an individual

to whom Hudson confessed concerning the killing of Stone.
Cowley argues that the testimony in all the affidavits, taken
together, provides grounds to believe that he is innocent of his
crimes and that others actually committed them.

His counsel

explained during oral argument that if the items Cowley wants
tested from the crime scene contain the DNA from two or more of

4

The identities of the four alleged perpetrators
slightly from those Cowley identified during his
proceedings, in which he alleged that Pauley admitted the
present were himself, Hudson, Satsuary, and Jason Vickers
than Parsons).
5

changed
§ 2255
persons
(rather

According to the account purportedly conveyed by Pauley,
he was down the road in a running car, Hudson and Satsuary were
the two masked men who shot at Stone’s truck (and also fit the
general physical descriptions given by Stone’s son), and Parsons
was across the road serving as a lookout.
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the participants supposedly identified by Pauley, and there is no
DNA found from Cowley or Moore, then it would be highly unlikely
that Cowley was involved in the attempted robbery or murder of
Stone. 6
In a 19-page opinion, the district court first set forth the
background of Cowley’s case and described the evidence Cowley
presented in support of his motion.

It then described the ten

stringent requirements for relief under the IPA and denied the
motion because it did not satisfy the last requirement -- that the
motion be made in a “timely fashion.”

The district court also

denied a COA.
II.
Before turning to the merits of the district court’s ruling,
we first address the government’s argument that this appeal is not
properly before us because the district court denied a COA and
this court has not issued one.

Notably, the government provides

no authority for the proposition that the IPA requires a COA. 7

6

Cowley does not explain how the evidence would exonerate
him of count four (witness tampering).
The conduct underlying
that count occurred after Stone’s murder and is not dependent on
Cowley’s presence at the murder scene. It is also unlikely that
any DNA evidence would clear him of count one (possession of a
stolen weapon) given the ample evidence that he possessed a gun
stolen by Chris Martin.
7

Neither party
addressing the issue.
COA, that fact does not
courts sometimes do, it

has cited to any circuit court decision
Further, while the district court denied a
alter our conclusion. Instead, as district
appears that the court here may have denied
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Instead, the government argues that a COA should be required here
because

the

content

of

Cowley’s

motion

successive habeas petition . . . .”

“reveals

itself

as

a

(Appellee’s Br. 9.)

We disagree. Although there is certainly some overlap between
the evidentiary bases for the innocence claim asserted in Cowley’s
IPA motion and his earlier § 2255 claims, his motion, which was
filed by counsel, invoked only the IPA.

Further, the district

court treated it only as an IPA motion, and the government has not
asserted that it was error to do so.

Thus, the issue before us is

whether a COA is required to appeal from an order addressing only
a motion under the IPA. 8
Having determined that the order being appealed addresses
only a motion under the IPA, we must determine whether Cowley needs
a COA to appeal from the district court’s ruling.

This court has

not previously addressed whether a COA is required in this context.
Cf. United States v. MacDonald, 641 F.3d 596, 616 n.13 (4th Cir.
2011) (finding it unnecessary to address the petitioner’s argument

a COA out of an abundance of caution. See, e.g., United States v.
Pugh, No. 3:99cr18/RV, 2009 WL 3157682, at *1 (N.D. Fl. Sept. 28,
2009) (denying request for issuance of COA to appeal denial of IPA
motion, but noting that “[i]t is not entirely clear” whether one
is required).
8

In light of the procedural posture of this case, we need
not decide: (1) the circumstances, if any, that would allow a
district court to determine that a motion seeking relief under the
IPA is, in fact, a motion under § 2255; or (2) whether a COA would
be required to appeal a ruling in such a case.
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that his request for DNA testing was “properly asserted under the
[IPA], rendering it free from the strictures of AEDPA”).

In at

least one instance, though, we affirmed an order denying DNA
testing under the IPA without the issuance of a COA and thus
implicitly recognized that no COA is required.

United States v.

Nance, 186 F. App’x 363 (4th Cir. 2006) (per curiam), aff’g United
States v. Nance, No. 7:92cr135, 2006 WL 5845641 (W.D. Va. Jan. 10,
2006).
Several other circuits have followed this same approach.
E.g., United States v. Pugh, 426 F. App’x 876, 877 (11th Cir. 2011)
(reviewing refusal to order DNA testing without addressing whether
a COA was required); United States v. Jordan, 594 F.3d 1265, 1269
(10th Cir. 2010) (same); United States v. Fasano, 577 F.3d 572,
578 (5th Cir. 2009) (same).

As the Tenth Circuit has recognized,

this practice of reviewing a district court’s IPA decision without
addressing whether the appellate court had jurisdiction to do so
absent a COA is effectively treating an IPA motion “as its own
motion -- not under § 2255 -- and therefore not subject to the COA
requirement.”

United States v. Crosby, 515 F. App’x 771, 771 n.2

(10th Cir. 2013).
We

now

explicitly

hold

that

which

we

have

implicitly

recognized: an appeal from the denial of an IPA motion is not
subject to a COA requirement.

This ruling is consistent with the

plain language of the IPA, which -- as the government concedes -10

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contain

a

COA

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requirement.

(Appellee’s

Br.

8

(acknowledging that “[t]he IPA is silent on whether a certificate
of appealability is necessary to appeal the denial of a motion for
DNA testing”).)

The IPA thus stands in stark contrast to the

statute limiting appeals from the denial of a habeas petition or
a § 2255 motion, which expressly requires a COA.
§ 2253(c)(1)

(“Unless

a

circuit

justice

or

See 28 U.S.C.

judge

issues

a

certificate of appealability, an appeal may not be taken to the
court of appeals from -- (A) the final order in a habeas corpus
proceeding in which the detention complained of arises out of
process issued by a State court; or (B) the final order in a
proceeding under section 2255.”).
Also, the text of the IPA itself reflects that it is intended
to provide a different avenue for relief from the current habeas
remedies.

18 U.S.C. § 3600(h).

Specifically, the IPA directs

that it does not “affect the circumstances under which a person
may obtain DNA testing or post-conviction relief under any other
law,” that it does not “provide a basis for relief in any Federal
habeas corpus proceeding,” and that a motion under it is not “a
motion under § 2255 for purposes of determining whether [it] or any
other motion is a second or successive” § 2255 motion.
fact

that

the

IPA

distances

itself

from

Id.

traditional

The

habeas

proceedings further supports our determination that the IPA does
not incorporate the COA requirement for habeas appeals.
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For all of these reasons, we conclude that Cowley was not
required to obtain a COA to appeal the denial of his motion for
post-conviction DNA testing under the IPA.

Cowley’s appeal is

therefore properly before us.
III.
The IPA contains ten specific requirements that a movant must
satisfy before a district court can order DNA testing.

18 U.S.C.

§ 3600(a)(1)–(10); United States v. Pitera, 675 F.3d 122, 127–28
(2d Cir. 2012).
“made

in

a

One of them is a requirement that the motion be

timely

presumptions.

fashion,

subject

to”

18 U.S.C. § 3600(a)(10).

certain

rebuttable

As noted, the district

court denied Cowley’s motion based on its finding that Cowley
failed to satisfy this requirement.
The IPA confers a rebuttable presumption of timeliness on
motions “made within 60 months of enactment of the Justice For All
Act of 2004 or within 36 months of conviction, whichever comes
later.”

Id. § 3600(a)(10)(A).

Cowley’s conviction became final

in 2001, and the Act was enacted on October 30, 2004, so the 60month period expired on October 30, 2009.

Cowley did not file his

IPA motion until June 6, 2014, almost five years outside the window
set forth in the Act.
“rebuttable

presumption

Cowley’s motion is thus subject to a
against

3600(a)(10)(B).

12

timeliness.”

Id.

§

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This “presumption may be rebutted upon the court’s finding”
that any one of four exceptions applies.
(iv).

Id. § 3600(a)(10)(B)(i)–

Cowley contends that two of the four are applicable here.

First, he argues that the presumption has been overcome for “good
cause shown.”

Id. § 3600(a)(10)(B)(iv).

Second, he posits that

he has satisfied the exception in subsection (iii): “that the
applicant’s motion is not based solely upon the applicant’s own
assertion of innocence and, after considering all relevant facts
and circumstances surrounding the motion, a denial would result in
a

manifest

injustice

.

.

.

.”

Id.

§

3600(a)(10)(B)(iii).

“Manifest” is defined in the IPA as “that which is unmistakable,
clear, plain, or indisputable and requires that the opposite
conclusion be clearly evident.”

Id. § 3600(a)(10)(C)(ii).

We will review the specific rulings appealed here -- the
district court’s finding under § 3600(a)(10)(B) that Cowley did
not

establish

either

“good

cause”

or

“manifest

injustice”

sufficient to rebut the presumption of untimeliness -- for an abuse
of discretion.

Pierce v. Underwood, 487 U.S. 552, 558-563 (1988)

(explaining the factors that support abuse-of-discretion review).
This is the typical standard of review we apply when addressing
district court determinations involving either “good cause” or
“manifest injustice.”

See, e.g., Colleton Prep. Acad., Inc. v.

Hoover Universal, 616 F.3d 413, 417 (4th Cir. 2010) (reviewing
ruling on motion to set aside default judgment premised on good
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cause); Robinson v. Wix Filtration Corp., 599 F.3d 403, 407 (4th
Cir. 2010) (reviewing ruling on motion to vacate judgment premised
on manifest injustice); Stevens v. Branker, 570 F.3d 198, 207 (4th
Cir. 2009) (reviewing ruling on habeas discovery request premised
on good cause). 9
A district court abuses its discretion
if its decision is guided by erroneous legal
principles or rests upon a clearly erroneous
factual finding.
We do not ask whether we
would have come to the same conclusion as the
district court if we were examining the matter
de novo. Rather, after reviewing the record
and the reasons the district court offered for
its decision, we reverse for abuse of
discretion if we form a definite and firm
conviction that the court below committed a
clear error of judgment in the conclusion it
reached upon a weighing of the relevant
factors.
Morris v. Wachovia Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006)
(internal quotation marks and citations omitted).
Applying this deferential standard here, we conclude that the
district court did not abuse its discretion in finding that neither
of these exceptions is applicable and, consequently, that the
motion was untimely.

We discuss each exception in turn.

9

Although the parties point to a few published out-of-circuit
decisions applying de novo review of legal questions and clear
error review of factual findings under the IPA, none of those
decisions addresses the standard that applies to a district court’s
findings as to the existence of “good cause” or “manifest
injustice.” E.g., Pitera, 675 F.3d at 128; Fasano, 577 F.3d at
575.
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Cowley contends that he has shown “good cause” because he has
been incarcerated for the entire eight years between the passage
of the IPA and the filing of his motion.

He states that he “is

not allowed out of prison to look for investigators and attorneys
to

take

on

his

“happenstance”

case,”

and

and

“random

that

it

chance”

was
of

only

because

Investigator

of

the

McComas’s

seeing and responding to his request for legal help on a prisoner
correspondence website that he was able to obtain her services and
find the evidence he has submitted.

(Appellant’s Reply Br. 4.)

“Good cause” is not defined in the statute, nor is it a term
generally used in habeas, aside from the context of when to allow
discovery.

E.g., United States v. Roane, 378 F.3d 382, 402–03

(4th Cir. 2004) (discussing “good cause” standard in context of
allowing discovery to habeas petitioner).

But the mere fact that

a prisoner is incarcerated and unable to search freely for an
investigator cannot serve as the basis for the “good cause” finding
under § 3600(a)(10)(B)(iv).

Because all (or nearly all) persons

bringing IPA motions will be incarcerated, allowing the mere fact
of incarceration to satisfy the “good cause” exception would render
the

presumption

meaningless.

suffice, either.

Ignorance

of

the

law

will

not

Cf. United States v. Sosa, 364 F.3d 507, 512

(4th Cir. 2004) (holding that a habeas limitations period should
not

be

equitably

unrepresented

and

tolled

on

ignorant

the
of

grounds

the
15

law).

that

a

prisoner

Something

more

is
is

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See United States v. Williams, No. 3:93-cr-00010, 2011

WL 611551, at *2 n.2 (W.D. Va. Feb. 11, 2011) (noting that it is
“arguable” that good cause under the IPA could be established if,
for example, more sophisticated types of DNA testing had become
available within the five years preceding an IPA motion).

Thus,

we will not disturb the district court’s ruling that Cowley has
not shown “good cause” for his delay.
More of Cowley’s focus is on the other exception.

He argues

that denial of his motion would result in a manifest injustice.
As the district court correctly noted, this exception requires
consideration of “all relevant facts and circumstances surrounding
the motion . . . .”

18 U.S.C. § 3600(a)(10)(B)(iii).

The parties debate which of the evidence presented by Cowley
is new, and which was available to him either at trial or during
his § 2255 proceedings.

They also devote time to arguments

concerning which evidence is admissible, and the extent to which,
if any, certain evidence would undermine the other evidence of
guilt.

We find it unnecessary, however, to delve into a detailed

factual analysis in order to resolve this appeal.

Instead, we

note

and

that

the

records

in

Cowley’s

criminal

case

§

2255

proceedings show that, even prior to his trial, he was aware of
the underlying
exonerate him.

grounds

for

his

claim

that

DNA

testing

might

Indeed, he had discussed with his counsel, Michael

Cline, and his investigator, Michael Mounts, the exact theory he
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now advances: that Hudson, Pauley, and others committed the robbery
and murder and that Cowley was with Moore all night.

Cline asked

Mounts to investigate that theory and considered pursuing it at
trial. As part of Mounts’s investigation, he met with Tammy Pauley
prior to trial and obtained the same testimony that she now offers.
Cline did not believe that he could offer her testimony, however,
because it was inadmissible hearsay.

Mounts and Cline also had

the recorded statements from Moore detailing his and Cowley’s
whereabouts on the night of the murder and confirming Cowley’s
alibi.

The defense tried unsuccessfully to get those statements

into evidence, and their exclusion was upheld on direct appeal.
McComas may have uncovered some “new” evidence in the form of
additional

corroborating

witnesses,

such

as

Wanda

Pittman’s

recounting of Wayne Pauley’s admission, and a “new” witness to a
purported

jailhouse

confession

by

Hudson.

But

neither

the

contention that Hudson, Pauley, and others committed the robbery
and murder, nor the contention that Moore could fully corroborate
Cowley’s alibi, is a new notion.
been

known

ineffective
proceedings.

to

Cowley

assistance

since

Instead, both contentions have

before

claims

his

based

on

trial,
them

and
in

he

his

raised
§

2255

He also knew at trial that the evidence he now seeks

to have tested existed, and he does not argue otherwise.
Despite

this,

he

waited

nearly

after

the

conclusion of his § 2255 proceedings to file an IPA motion.

And

17

eight

years

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his explanation that he was in prison and unable to hire an
investigator is, quite simply, a grossly inadequate explanation
for his delay. 10

Notably, there is no requirement in the IPA that

there be “new evidence” to support a request for testing.

Hence,

Cowley could have brought this motion at any point after the
passage of the IPA; the motion was not dependent on an investigator
finding new evidence to support Cowley’s defense.
It is also worth noting that Cowley was provided appointed
counsel at the § 2255 hearing and throughout those proceedings,
and that the district court described counsel as “an experienced
criminal defense attorney who . . . vigorously prosecuted this
case since his appointment.”

Mem. Op. & Order 1, Cowley v. United

States, No. 2:02-cv-0402 (S.D.W. Va. March 20, 2006).

Thus, for

at least some portion of the time after the IPA was enacted, Cowley
had assistance of counsel.
In

considering

surrounding

the

the

“relevant

motion,”

as

facts
required

and
by

circumstances
18

U.S.C.

§ 3600(a)(10)(B)(iii), the district court also examined the IPA’s

10

During oral argument, there was some discussion of whether
the district court erred in stating that there was an “absence of
any explanation concerning why [Cowley’s delay in filing]
occurred.” (App. 43.) The entirety of the opinion shows, however,
that the court considered Cowley’s proffered reason for his delay
and found it insufficient. Indeed, the district court discussed
that Cowley did not know McComas prior to October 2013 and that
she did not commence her investigation until January 2014.
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eighth requirement that the requested DNA testing “may produce new
material evidence that would . . . raise a reasonable probability
that the applicant did not commit the offense,” 18 U.S.C. §
3600(a)(8).

The district court stated that Cowley “made a minimal

showing, at best, that the evidence sought to be tested . . . would
be expected to harbor DNA evidence.”

(App. 43.)

We agree.

As

previously noted, the items Cowley sought to have tested were spent
casings,

beer

fingerprints.
perhaps

the

bottles,

some

clothing,

a

blood

stain,

and

We question whether any of these items, other than
blood

stain,

would

contain

sufficient

biological

material from which a DNA sample could be taken, and Cowley’s
briefs offer nothing on this point.
Finally, as part of considering all the relevant facts and
circumstances, we note an additional weakness of Cowley’s case on
this eighth IPA requirement.

Even assuming DNA was available on

the items identified by Cowley and in sufficient amounts to be
tested, and even if none of it matched Cowley’s DNA, and some of
it in fact matched Hudson, Pauley, or one of the other individuals
Cowley has accused, it is not clear that those results would “raise
a reasonable probability” that Cowley did not commit the offense.
As

other

courts

have

done

in

finding

such

a

“reasonable

probability” lacking, we note that there was significant evidence
tying Cowley to the robbery, including his prior statements of
intent

and

subsequent

admissions
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to

others

regarding

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See Pitera, 675 F.3d at 129 (noting strength of

corroborating evidence in concluding this factor was not met);
Jordan, 594 F.3d at 1268 (same).

And only one of the witnesses

who testified against him, Keary Drake, has provided a direct
recantation (as opposed to a recantation provided only via someone
else’s affidavit).
innocuous.

Moreover, Drake’s trial testimony was fairly

He testified that he had driven with Cowley to Florida

shortly after Stone’s death, and that Cowley told Drake he was
leaving because of the police investigation into Stone’s murder.
Certainly, this testimony was not the heart of the prosecution’s
case.
In any event, even if all the items contained testable DNA
evidence and even if Cowley could satisfy the requirement that
testing of that evidence “may produce new material evidence that
would . . . raise a reasonable probability that the applicant did
not commit the offense,” 18 U.S.C. § 3600(a)(8), we would still
affirm the district court’s rejection of the motion as untimely.
Quite simply, the district court did not abuse its discretion when
it found that Cowley failed to show that the denial of his motion
would result in an injustice that is “unmistakable, clear, plain,
or

indisputable,”

id.

§ 3600(a)(10)(C),

presumption of untimeliness.

so

as

to

rebut

the

See United States v. MacDonald, 37

F. Supp. 3d 782, 793 (E.D.N.C. 2014) (concluding that the IPA’s
presumption of untimeliness was not rebutted by the fact that
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denial causes a “loss of opportunity to prove . . . his innocence
conclusively” because if that were the only requirement, every
applicant who coupled some other evidence with his own assertion
of innocence could satisfy it).
IV.
For the foregoing reasons, the district court’s denial of
Cowley’s motion seeking DNA testing under the Innocence Protection
Act is
AFFIRMED.

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