John Bradley Lowery v. Mike Parris

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0511n.06
Case No. 19-5809
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN BRADLEY LOWERY,
Petitioner-Appellant,
v.
MIKE PARRIS,
Respondent-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
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).

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Case No. 19-5809, Lowery v. Parris
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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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Case No. 19-5809, Lowery v. Parris
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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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