John Lowery v. Mike Parris

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 1, 2020
• Docket: 19-5809
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0511n.06

Case No. 19-5809

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Sep 01, 2020 JOHN BRADLEY LOWERY, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF MIKE PARRIS, ) TENNESSEE Respondent-Appellee. )

BEFORE: BOGGS, DONALD, and THAPAR, Circuit Judges.

PER CURIAM. A jury convicted John Lowery of murder and attempted murder after

finding that he shot two people in Knoxville, Tennessee. Many years later, the two eyewitnesses

who provided crucial evidence for the prosecution recanted their trial testimony. Another witness

also came forward and swore that she didn’t see Lowery during the shooting. Based on these

revelations, Lowery sought relief in state court (unsuccessfully) and then in federal district court

(also unsuccessfully). As relevant here, the district court denied relief after concluding that

Lowery’s claims were barred by the statute of limitations.1 Because the district court erred in

reaching that conclusion, we vacate and remand for further proceedings.

1 The district court also noted that it could grant the government’s motion to dismiss because the petitioner failed to file a timely response to the government’s motion. But the petitioner did ultimately respond, and the district court considered that response when considering Lowery’s motion for relief from judgment. In any event, on appeal, the government doesn’t argue that we should affirm on this alternative ground, so we need not consider it. Fed. R. App. P. 28(a)(8), (b); United States v. Ford, 184 F.3d 566, 578 n.3 (6th Cir. 1999). Case No. 19-5809, Lowery v. Parris

Habeas petitioners like Lowery generally must raise their claims before the one-year statute

of limitations expires. See 28 U.S.C. § 2244(d)(1). Lowery admits that he did not comply with

the statute of limitations because he filed his habeas petition more than sixteen years after the one-

year period elapsed.

But that’s not the end of the matter. That’s because prisoners who allege that they are

actually innocent may sometimes bypass the statute of limitations and receive a merits adjudication

of their habeas petition. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Schlup v. Delo, 513 U.S.

298, 329 (1995). Under the actual-innocence exception, the petitioner must present “new reliable

evidence”—such as “trustworthy eyewitness accounts”—“that was not presented at trial.” Schlup,

513 U.S. at 324.

Lowery tried to get around the statute of limitations by raising an actual-innocence claim

and pointing to the three new affidavits. But as the district court saw it, the actual-innocence

exception was unavailable because those affidavits didn’t qualify as “new evidence.” Those

affidavits weren’t new, the district court reasoned, because Lowery presented them in state court

during his recent coram nobis proceedings. So the district court held that the petition was barred

by the statute of limitations and thus denied relief.

That was an error. Admittedly, courts have struggled to define what qualifies as

new evidence. Some courts treat all evidence as new so long as it was not presented at trial. See,

e.g., Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Other courts maintain that evidence is

new only if it was unavailable at the time of the trial. See, e.g., Moore v. Quarterman, 534 F.3d

454, 465 (5th Cir. 2008). But whatever new evidence means, the district court erred by concluding

that evidence presented to state courts categorically does not qualify. After all, federal law

requires habeas petitioners to exhaust their claims in state court before seeking relief in federal

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court. 28 U.S.C. § 2254(b)(1)(A). So it makes little sense to define “new evidence” in a way that

precludes habeas petitioners who follow exhaustion requirements from obtaining relief.

That’s not to say that the three affidavits do qualify as new evidence. Maybe they do,

maybe they don’t. We leave that to the district court to decide in the first instance. All we decide

today is that the district court erred by finding that the evidence wasn’t new simply because it was

originally presented in state court during the coram nobis proceedings.

For these reasons, we vacate and remand.

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