John Bradley Lowery v. Mike Parris

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 15, 2023
• Docket: 21-5577
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0375n.06

No. 21-5577 FILED UNITED STATES COURT OF APPEALS Aug 15, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

) JOHN LOWERY, ) Petitioner-Appellant, ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN MIKE PARRIS, Warden, ) DISTRICT OF TENNESSEE Respondent-Appellee. ) ) OPINION

Before: KETHLEDGE, STRANCH, and MATHIS, Circuit Judges.

KETHLEDGE, Circuit Judge. The State of Tennessee convicted John Lowery of murder

and attempted murder on the basis of testimony from three eyewitnesses. A decade later, two of

those witnesses recanted their trial testimony. Lowery sought a writ of coram nobis in state court,

and both witnesses testified on his behalf. The court found the recantations unreliable and denied

relief, and the Tennessee Court of Criminal Appeals affirmed. Lowery then filed this federal

habeas petition. His petition came years after the close of the one-year statute of limitations, so

the district court could consider it only if Lowery established that no reasonable juror would

convict him today in light of the evidence as a whole. The district court held that Lowery did not

meet this demanding standard, and we affirm.

I.

A.

In the early morning hours of October 8, 1996, John B. Lowery called the Knoxville police

to report that three masked men had robbed him and stolen his car. Officer Gerald George No. 21-5577, Lowery v. Parris

responded to the call and met Lowery at Lowery’s uncle’s house. There, Lowery told George that

he could not identify the men, but that they had been armed with “various types of weapons” and

had taken everything he had on him. George promptly created a police report detailing the

incident.

Several hours later, at around 6:10 a.m., William Boatwright and his cousin Vincent

Hartsell drove to Kirk’s Market—a convenience store a few blocks away from where Lowery filed

his police report—to buy drinks and snacks. When they got to Kirk’s, they met up with their

friend, Malik Hardin.

At around 6:30 a.m., an armed man arrived and shot Hartsell in the neck. Hardin had been

in his car listening to music, and rushed to help Hartsell and tried to stop the bleeding. Meanwhile,

Boatwright fled back into the store—but the gunman ran after him and shot him in the back.

Boatwright survived the attack, but Hartsell died shortly afterwards.

In the hospital, Boatwright told Detective David Ridenour that “J.B.” had shot him.

Ridenour checked the police records for recent incidents involving those initials, and found

Lowery’s robbery report. That same evening, he showed Boatwright and Hardin a six-photo lineup

which included Lowery—both identified Lowery as the shooter. Tennessee thereafter charged

Lowery with Hartsell’s murder and Boatwright’s attempted murder. Lowery pled not guilty, and

his case proceeded to trial in May 1998.

B.

At trial, Officer George testified to the robbery report made by Lowery. The prosecution

then called William Boatwright, who explained that, on the morning of the shootings, he had been

at Kirk’s Market with Hartsell. He said that, while in the store:

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There was a guy that came in that kind of looked familiar. It was Mr. Lowery right there. And I looked at him, and I asked him what was he staring at. He didn’t ever say nothing. He walked back out.

As Boatwright paid for their purchases, Hartsell went outside to wait by their car. Boatwright

heard a shot, looked around, and saw “John Lowery runnin’ towards” him, “holdin’ a gun, a black

gun.” Boatwright continued:

A: I tried to run back in the store after I heard a shot. Then [Lowery] shot me as I was goin’ in the store. Q: Where did he shoot you? A: Right here in the chest. Q: Then what happened? A: Then I ran and crawled in the store and crawled around a counter, and he was about to come in the store. But the lady at the cash register, she was screamin’. So he took off . . . .

Boatwright said that after he had exited the store, he found Hartsell bleeding from his neck and

tried to stop the bleeding. Eventually, though, he panicked and drove to his aunt’s house, where

he collapsed on the doorstep. Boatwright confirmed that he had picked Lowery from a

photo-lineup that evening at the hospital.

On cross-examination, the defense asked Boatwright about the car he had used to drive to

Kirk’s:

Q: Now, as I understood your testimony on direct examination, you said you were—had went there with the victim Hartsell? … In a—in a gray car that you got that was a rental car; is that correct? A: Yes. Q: Okay. Did you rent that car? A: No, sir. Q: Who rented it? A: I got it from a friend. Q: Pardon me? A: I got it from a friend. […] Q: Okay. How much did you rent it for?

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A: Twenty dollars. Q: That wasn’t a stolen car? A: I don’t know.

Malik Hardin testified next. He said he had returned to his car after seeing Boatwright arguing

with someone inside Kirk’s Market. Then, he saw somebody fire a gun, turn around, and flee the

scene. Hardin identified Lowery in the courtroom as the man he had seen.

The prosecution then called James Bowman. Bowman said he and his daughter had gone

to Kirk’s so that she could buy herself a drink for school. While his daughter was inside Kirk’s,

Lowery walked up to Bowman’s car and told him that he had just been robbed. Then, Boatwright

and Hartsell pulled up, and Lowery told Bowman “Don’t look over there because that is one of the

guys”—implying it had been Boatwright or Hartsell who robbed Lowery. But Bowman was a

reluctant witness, and he kept interjecting “it’s been so long” and “I don’t know” before answering

the prosecutor’s questions. When asked to confirm that John Lowery had been at Kirk’s, Bowman

responded: “It could have been; it could have not been. There’s another one out here that look just

like him, his brother [Fred].”

A former girlfriend of Lowery’s uncle Walter—Mary Santos—testified next. She said

Walter had employed both John Lowery and Vincent Hartsell as drug dealers. According to

Santos, Hartsell had stolen a shipment of drugs from Walter. When John Lowery found out, Santos

said, Lowery promised that “I won’t let him get away with this” and that “he would put a bullet

right there.” On cross-examination, Santos admitted she was locked in a bitter custody battle with

Walter Lowery over their two young children.

In the defense’s case, Walter Lowery testified that Santos was a liar and denied ever dealing

drugs. The defense then called Fred Lowery, Jay Harris, and Greg Moore, who each testified that

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they had been at Kirk’s Market at the time of the shooting and that they had not seen John Lowery.

On cross-examination, however, all three denied having seen the actual shooter.

Lowery’s neighbor, Tamara McMillan, was the defense’s final witness. She testified that

she had seen Lowery at 6:30 a.m. on the morning of the shootings. According to McMillan,

Lowery had been scared and upset when he arrived at her house, because he had just been robbed:

And I asked—I said, “Well, what’s wrong, you know?” And he said, “I just got robbed.” . . . And I said, “Well”—I said, “Are you all right”? He said, “Yeah.” He said “I’m fine.” He said, “But I’m scared to death.” He said, “They took everything. They made me strip.” He said, “I don’t know if these people know where I live at or what.” […] So he kind of sit (sic) there like he was about to cry. He was in tears. He was lookin’ like—in a way that I had never seen him before.

In closing, the prosecution argued that Lowery shot Boatwright because of the robbery and

Hartsell because he stole Walter Lowery’s drugs. After 51 minutes’ deliberation, the jury returned

a guilty verdict. Lowery received a life sentence.

C.

In September 2010, more than a decade after Lowery’s conviction, Malik Hardin signed

an affidavit in which he recanted his trial testimony and swore that he had not seen Lowery at

Kirk’s Market on the day of the shootings. A year later, the store clerk—Loretta Turner—came

forward to say that she, too, had not seen Lowery that day, and that she had informed the police of

that fact during her interviews after the shooting. Lowery thereafter filed a writ of error coram

nobis in Tennessee state court, arguing that this newly discovered evidence entitled him to a new

trial. The state court summarily dismissed Lowery’s petition, but the Tennessee Court of Criminal

Appeals reversed and remanded the case for an evidentiary hearing. Lowery v. State, 2013 WL

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44767188 (Tenn. Crim. App., Sept. 4, 2014). Shortly before that hearing, William Boatwright

submitted an affidavit also recanting his trial testimony.

The trial court held its evidentiary hearing in October 2014. William Boatwright testified

first, contradicting the version of events to which he testified at trial:

Q: Did you—were you inside or actually outside the store when you were shot? A: Outside. Q: Okay. Did you see who shot Mr. Hartsell? Hartsell, yes. A: No sir. Q: Did you see who shot you that morning? A: No, sir.

Boatwright then explained that police had pressured him to identify Lowery and threatened to

charge him with robbery and murder if he refused:

Q: During that time, did you implicate John Lowery, also known as J.B., as the person who shot you that day? A: Yeah. But it was only because they told—this was said to me, well, we know you committed an aggravated robbery, you know, so . . . I’m like, I didn’t commit no robbery. They’re like, well, you committed the robbery, murder. You did the murder. I’m like, I didn’t do no murder. So they like, well, is this the person that did it? So I—yeah, he the one that did it. Just to keep them, you know what I’m saying, from, I guess, charging me for the murder charge.

Boatwright added that he came forward with his recantation because his false testimony had been

weighing on his conscience.

On cross-examination, the state asked Boatwright—who had been sentenced to 49 years’

imprisonment on an unrelated charge—about “the feeling towards snitches in prison.” Boatwright

responded:

A: I don’t know. I ain’t never had no problem. I don’t bother nobody. I don’t know. I don’t know about that. Q: You don’t know what the attitude is in prison towards snitches? A: No. Q: Never heard anything about that?

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A: See, I done heard, but I heard people get stuff done to them or, you know, they don’t talk to them or—I don’t know, just different things. Q: What kind of stuff gets done to them? A: I don’t know. They just say stuff get done to them. I don’t know. The state also elicited testimony that revealed Boatwright was serving his sentence in the same

facility as Lowery.

Hardin testified next. He too said that police had threatened to charge him with robbery or

murder if he did not identify Lowery as the perpetrator. But Hardin added that he had gotten “a

good look at the shooter” and that the shooter “resembled Mr. Lowery,” although he was now “100

percent certain that it wasn’t Mr. Lowery.” On cross-examination, Hardin admitted that Lowery

had asked a jailhouse lawyer to draft Hardin’s affidavit. Hardin said he had corrected several

factual errors in the affidavit before submitting it to the court.

Turner testified last. She explained that, at the time of the shooting, she had been familiar

with Lowery because he had dated her niece and attended a family cookout. Turner said that she

had not seen Lowery at all on the morning of the shooting. But on cross-examination, she

acknowledged that she had crouched behind a wooden counter for part of the incident, which

would have blocked her view of the store.

The court again denied Lowery’s motion, primarily because it found Boatwright and

Hardin not credible. The Court of Criminal Appeals affirmed. State v. Lowery, 2017 WL 3078313

(Tenn. Crim. App., June 19, 2017). Lowery thereafter filed this pro se habeas petition in federal

court, arguing (among other things) that his trial counsel had been ineffective, that the state

suppressed Turner’s testimony in violation of Brady v. Maryland, and that he was actually

innocent.

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The district court dismissed Lowery’s petition as untimely, reasoning that because Lowery

presented his affidavits in state court first, they did not constitute “new evidence” for purposes of

the miscarriage-of-justice exception to the statute of limitations. This court reversed. Lowery v.

Parris, 819 F. App’x 420 (6th Cir. 2020). On remand, the district court held that Lowery could

not show that “no reasonable juror would have convicted him in the light of the new evidence.”

Schlup v. Delo, 513 U.S. 298, 327 (1995). Thus, the district court held, the statute of limitations

barred Lowery’s petition. This appeal followed.

II.

We review de novo the district court’s denial of Lowery’s habeas petition. Cleveland v.

Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012).

A one-year statute of limitations governs federal habeas petitions. 28 U.S.C. § 2244(d)(1).

Under the miscarriage-of-justice exception, however, federal courts may nonetheless consider the

merits of an untimely petition if the petitioner can establish, by a preponderance of the evidence,

that no reasonable juror would convict him in light of “all the evidence” now available. House v.

Bell, 547 U.S. 518, 537 (2006) (cleaned up); see also McQuiggin v. Perkins, 569 U.S. 383, 401

(2013). The issue in this appeal is whether Lowery can satisfy that standard.

As an initial matter, the parties dispute the degree of deference we owe to the state court’s

factual determinations. The Supreme Court has explained that in “reviewing a federal habeas

petition” we must “presume the state court findings correct unless we determine that the findings

result in a decision which is unreasonable in light of the evidence presented.” Miller-El v.

Cockrell, 537 U.S. 322 (2013); see 28 U.S.C. § 2254(e)(1) (“a determination of a factual issue

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made by a State court shall be presumed to be correct”). But the miscarriage-of-justice exception

is a “gateway” antecedent to consideration of a habeas claim; it is not itself a habeas claim. See

McQuiggin, 569 U.S. at 392. We have not yet decided the degree of deference appropriate in those

circumstances and need not do so now. Appellate courts always owe significant deference to a

trial judge’s credibility determinations. Miller-El, 537 U.S. at 339-340. And credibility

determinations are the only factual findings that matter here.

The state trial court determined that Boatwright and Hardin’s initial testimony was more

credible than their belated recantations. At the time that Boatwright gave his coram nobis

testimony, he was anticipating another 44 years’ confinement in the facility that also housed

Lowery—an uncomfortable predicament for the star witness in Lowery’s murder trial. A

reasonable factfinder could take Boatwright’s evasive answers to questions about the risks

“snitches” face in prison as evidence that Boatwright had an ulterior motive to recant truthful

testimony. See McCroy v. Vasbinder, 499 F.3d 568, 574 (6th Cir. 2007) (“Reasonable jurors no

doubt could question the credibility of this about face from another inmate and rationally could

discount his testimony as nothing more than an attempt to keep from being ‘pegged as a rat’ for

having originally identified [petitioner] as the gunman”). Moreover, Boatwright’s assertion that

the police threatened to charge him with Hartsell’s murder was implausible. Forensic evidence at

trial showed that Hartsell and Boatwright had been shot in rapid succession by the same firearm.

Boatwright—indisputably a victim of the shooting—would have been an unlikely suspect.

Hardin’s testimony contained similar problems. Although the record does not clearly show

whether Hardin and Lowery ever stayed in the same prison, Hardin agreed to testify only after

another prisoner drafted an affidavit for him—at Lowery’s request. And at the postconviction

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hearing, Hardin confirmed that the shooter had looked a lot like Lowery. Boatwright and Hardin

both denied that Fred Lowery had committed the shooting, and there were no other suspects. A

reasonable factfinder could therefore choose to believe Hardin’s trial testimony over his

recantation. Thus, the trial court’s credibility determinations as to Hardin and Boatwright were

reasonable.

That leaves the store clerk, Loretta Turner. The Warden suggests that her testimony would

have been cumulative because several of Lowery’s friends testified that they had not seen him at

the store on the day of the shooting. But the testimony of an unbiased bystander plainly would

have helped Lowery more than that of his friends, so that argument is meritless. See Stewart v.

Wolfenbarger, 468 F.3d 338, 357-58 (6th Cir. 2006); Washington v. Smith, 219 F.3d 620 (7th Cir

2000). Still, Boatwright testified at trial that Lowery had reached into the store to shoot him

without fully entering it; and Turner admitted at the postconviction hearing that she had crouched

behind the wooden checkout counter during part of the shooting. Thus, even combined with

Hardin and Boatwright’s testimony, Turner’s testimony was not so damaging to the prosecution’s

case as to prevent any reasonable juror from voting to convict Lowery. Lowery therefore cannot

meet the demanding miscarriage-of-justice standard. McQuiggin, 569 U.S. at 401. His habeas

petition is untimely.

Lowery argues in the alternative that the district court should have held an evidentiary

hearing before dismissing his petition. We review the district court’s decision not to hold an

evidentiary hearing for an abuse of discretion. Schriro v. Landrigan, 550 U.S. 465, 468 (2007).

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According to Lowery, the district court should have held an evidentiary hearing because,

when the state court held one, it was “resolving a question of state law”—not a federal

constitutional claim. See Arnold v. Dittmann, 901 F.3d 830, 840-41 (7th Cir. 2018). But to prevail

under the state-law standard, Lowery had to show that “the admissibility of the newly discovered

evidence may have resulted in a different judgment had the evidence been admitted at the previous

trial.” Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004). That is a far more

lenient standard than the federal one we apply here, but it goes to the same issue: the effect of the

new evidence on a reasonable jury. The state trial court had already held an evidentiary hearing

on that topic. And as explained above, its credibility determinations were reasonable. Thus, the

district court did not abuse its discretion when it denied Lowery a new evidentiary hearing.

* * *

The district court’s judgment is affirmed.

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