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COA Not Required for Innocence Protection Act Appeals

The Fourth Circuit Court of Appeals held last year that a Certificate of Appealability is not required to appeal the denial of a motion for DNA testing pursuant to the Innocence Protection Act (IPA), though the Court affirmed the denial of the motion as untimely.

Before the appellate court was the appeal of Shane Cowley, who was convicted of various crimes in August 2000 stemming from an armed robbery and murder. His conviction was affirmed on appeal in 2001 and the denial of his habeas petition became final in 2006.

Cowley moved for DNA testing under the IPA, 18 U.S.C. §§ 3600-3600A, on June 6, 2014, but his motion was dismissed by a West Virginia federal district court as untimely. The court also denied a Certificate of Appealability (COA).

On appeal, the government argued the case was not properly before the appellate court because the district court had denied a COA and the Fourth Circuit had not issued one.

The Court of Appeals explicitly held what it had implicitly recognized in other cases: that “an appeal from the denial of an IPA motion is not subject to a COA requirement.”

“The IPA stands in stark contrast to the statute limiting appeals from the denial of a habeas petition or a 28 U.S.C.S. § 2255 motion, which expressly requires a COA,” the Fourth Circuit wrote. “Also, the text of the IPA itself reflects that it is intended to provide a different avenue from the current habeas remedies.”

The appellate court then turned to the timeliness issue. “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.”

The IPA was enacted on October 30, 2014, so Cowley’s 60-month period to file his IPA motion expired on October 30, 2009. However, he argued that he overcame the presumption for “good cause shown” and the circumstances of his case reflected a manifest injustice.

Cowley had good cause for the delay, he contended, because he was imprisoned and could not “look for investigators and attorneys to take on his case.” That rationale was rejected by the Court of Appeals, which wrote, “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.”

As to the manifest injustice exception, not all evidence that may be uncovered after a conviction is considered new. Moreover, the Court said it was not clear the DNA testing that Cowley sought would “raise a reasonable probability” that he did not commit the crimes for which he was convicted. Accordingly, the district court’s order denying his IPA motion was affirmed. See: United States v. Cowley, 814 F.3d 691 (4th Cir. 2016).