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.
2

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 
3

masked men with guns.1 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.
4

leading up to the robbery. 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. United States 
5

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. Some of those grounds relate to his 

allegations here. 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 the evidentiary hearing, the magistrate judge 

recommended denying Cowley’s § 2255 motion. Cowley 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.
6

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 
7

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 changed 

slightly from those Cowley identified during his § 2255 

proceedings, in which he alleged that Pauley admitted the persons 

present were himself, Hudson, Satsuary, and Jason Vickers (rather 

than Parsons). 

5 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. 
8

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 has cited to any circuit court decision 

addressing the issue. Further, while the district court denied a 

COA, that fact does not alter our conclusion. Instead, as district 

courts sometimes do, it appears that the court here may have denied 
9

Instead, the government argues that a COA should be required here 

because the content of Cowley’s motion “reveals itself as a 

successive habeas petition . . . .” (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.
10

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 --
11

does not contain a COA 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. See 28 U.S.C. 

§ 2253(c)(1) (“Unless a circuit justice or 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. Id. The 

fact that the IPA distances itself from traditional habeas 

proceedings further supports our determination that the IPA does 

not incorporate the COA requirement for habeas appeals.
12

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). One of them is a requirement that the motion be 

“made in a timely fashion, subject to” certain rebuttable 

presumptions. 18 U.S.C. § 3600(a)(10). 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 60-

month 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. Cowley’s motion is thus subject to a 

“rebuttable presumption against timeliness.” Id. § 

3600(a)(10)(B).
13

This “presumption may be rebutted upon the court’s finding” 

that any one of four exceptions applies. Id. § 3600(a)(10)(B)(i)–

(iv). 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 
14

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.
15

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 case,” and that it was only because of the 

“happenstance” and “random chance” of Investigator 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. Ignorance of the law will not 

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

(4th Cir. 2004) (holding that a habeas limitations period should 

not be equitably tolled on the grounds that a prisoner is 

unrepresented and ignorant of the law). Something more is 
16

required. 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 that the records in Cowley’s criminal case and § 2255 

proceedings show that, even prior to his trial, he was aware of 

the underlying grounds for his claim that DNA testing might 

exonerate him. Indeed, he had discussed with his counsel, Michael 

Cline, and his investigator, Michael Mounts, the exact theory he 
17

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. Instead, both contentions have 

been known to Cowley since before his trial, and he raised 

ineffective assistance claims based on them in his § 2255 

proceedings. 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 eight years after the 

conclusion of his § 2255 proceedings to file an IPA motion. And 
18

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 the “relevant facts and circumstances

surrounding the motion,” as required by 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. 
19

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 bottles, some clothing, a blood stain, and 

fingerprints. We question whether any of these items, other than 

perhaps the 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 to others regarding his 
20

participation. 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). Moreover, Drake’s trial testimony was fairly 

innocuous. 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), so as to rebut the 

presumption of untimeliness. 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 
21

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.