                              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.
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

                                     2
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.

                                   3
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

                                   4
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.

                                   5
     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




                                 6
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.

                                         7
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
                                   8
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.

                                     9
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
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.

                                        11
        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).



                                        12
      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

                                          13
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.

                                14
       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

                                              15
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

                                       16
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

                                          17
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.

                                    18
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

                                         19
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

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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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