ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on Jeffrey MacDonald's Motion Pursuant to the Innocence Protection Act of 2004, 18 U.S.C. § 3600, for New Trial Based on DNA Testing Results and Other Relief [DE-176] ("the IPA motion"). For the reasons set forth below, the motion is DENIED.

RELEVANT PROCEDURAL HISTORY1

In 1997, MacDonald filed a motion, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, to reopen the proceedings on his second post-conviction motion which was filed in 1990. In the motion, MacDonald alleged fraud by the Government concerning his 1990 motion, and sought an order permitting new DNA testing of certain evidence that had been collected from the crime scene. Specifically, MacDonald proffered an affidavit from one of his then-attorneys, Philip G. Cormier, through which he sought "access to all of the physical evidence that has been examined by [Special] Agent [Michael] Malone for the purpose of ascertaining whether or not Malone's examinations were properly conducted and his conclusions were reliable, accurate and truthful." Aff. of Cormier No. 2 [DE-49] ¶ 6. MacDonald also sought "other unsourced hairs, skin and blood . . . found in critical locations at the crime scene" for examination and DNA testing. Id. This court denied the motion insofar as it sought to reopen the 1990 motion, and transferred the remaining matters to the Fourth Circuit Court of Appeals for consideration as a petition for leave to file a successive § 2255 motion. See United States v. MacDonald, 979 F.Supp. 1057, 1059 (E.D.N.C.1997).

In one of his appeals from this court's 1997 order, MacDonald sought authorization to file a successive § 2255 motion. He specifically stated the following:

Mem. in Supp. of Jeffrey MacDonald's Motion for an Order Authorizing the District Court for the Eastern District of North Carolina to Consider a Successive Application for Relief Under 28 U.S.C. § 2255, at 6-7 (Sept. 17, 1997) (emphasis in original). The Fourth Circuit denied MacDonald authorization to file a successive § 2255 motion, but remanded the matter to this court to oversee DNA testing. See In re MacDonald, No. 97-713 (4th Cir. Oct. 17, 1997) (unpublished). The full text of the Fourth Circuit's order provided:

Id.

On remand, MacDonald filed his Motion for an Order to Compel the Government to Provide Access to the [sic] All Biological Evidence for Examination and DNA Testing by his Experts [DE-73]. Therein, MacDonald contended that the Fourth Circuit Court of Appeals' mandate entitled him to the "full universe of exhibits that contain biological evidence—hairs, bloodstains, tissue and body fluids—collected from the crime scene to which the government has full access." Mem. in Supp. of MacDonald's Motion for an Order to Compel the Government to Provide Access to All Biological Evidence [DE-74] at 2. He attached three spreadsheets detailing the various items to which he sought access, and clarified in a footnote:

Id. at 2 n. 1. The Government opposed MacDonald's motion, arguing that the Fourth Circuit's mandate limited MacDonald's access to only those items of biological evidence specifically identified in his motions papers before that court.

In response to the parties' dispute, the court ordered the following:

December 11, 1998 Order [DE-86] at 3.

The court issued additional orders setting the parameters for DNA testing, and it commenced. On May 17, 1999, the FBI delivered almost 200 items (AFDIL Specimens 1-188) to the Armed Forces DNA Identification Laboratory ("AFDIL") for evaluation of DNA Testing. This transfer included many items in addition to the items specifically identified in Cormier Affidavit No. 2. Compare Cormier Affidavit No. 2 ¶¶ 21-62 with AFDIL Report [DE-123-2] at 10-14.

While the testing was in progress, the Innocence Protection Act of 2004 ("the IPA") came into effect on October 30, 2004. The IPA "allows federal prisoners to move for court-ordered DNA testing under certain specified conditions." District Attorney's Office for Third Judicial District v. Osborne, 557 U.S. 52, 63, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). In correspondence between MacDonald's then-defense attorney and prosecutors in late 2004 and early 2005, the parties agreed to the following:

January 14, 2005 Letter [DE-212-1] at 13 (strikethrough and italics in original).

The DNA report from the Department of Defense Armed Forces Institute of Pathology was issued on March 10, 2006. As the court already has exhaustively detailed in its July 24, 2014 Order [DE-354], just prior to the DNA report being issued, MacDonald filed a proposed successive § 2255 motion. On March 22, 2006, he filed a motion to add an additional predicate to his § 2255 motion, namely a "DNA claim" or "unsourced hairs" claim. The court eventually denied MacDonald's various motions. See United States v. MacDonald, Nos. 75-CR-26-3, 5:06-CV-24-F, 2008 WL 4809869 (E.D.N.C. Nov. 4, 2008). On appeal, the Fourth Circuit vacated this court's order, and remanded the case for further consideration of MacDonald's proposed § 2255 claims. See United States v. MacDonald, 641 F.3d 596 (4th Cir.2011).

Following the Fourth Circuit's issuance of the mandate in this case, the court scheduled a status conference, which was later continued at MacDonald's request, to September 21, 2011. On the eve of the status conference, MacDonald through separate counsel, Christine Mumma, Director of the North Carolina Center on Actual Innocence, filed the IPA motion. Therein, MacDonald sought an order authorizing his "inspection (including microscopic inspection) of the physical evidence to identify biological evidence, and to conduct further and expeditious DNA testing of additional biological evidence that the defendant will identify after inspection of the physical evidence." IPA Mot. [DE-176] ¶ 9.2 MacDonald's request for additional DNA testing was premised on "recent advances in DNA testing [that] have resulted in new methods and/or technology." Id. ¶ 8. MacDonald's counsel, Mumma, submitted an affidavit discussing "Y-STR" testing and "Touch" DNA. See Aff. of Christina Mumma [DE-176-1] ¶ 8 ("Provided the evidence in the Jeffrey MacDonald case has been properly preserved and a chain of custody has been maintained, DNA testing such as Y-STR testing and Touch DNA testing of evidence collected from the investigation of the murders could be very probative."). Mumma submitted that "[i]tems collected into evidence which would be significant for testing include the weapons used to commit the MacDonald murders . . .; fingernail scrapings taken from the victims; pieces of a surgical glove presumably worn by the perpetrator; and blood drops and smears taken from areas where it appears the perpetrator touched things or may have bled while moving through the home." Id. ¶ 9.

At the previously-scheduled status conference the next day, the court directed MacDonald to provide the Government within 14 days with a list of exhibits he wished to subject to additional DNA testing. See 2011 Hearing Transcript [DE-193] at 40. On October 10, 2011, MacDonald filed his List of Trial Exhibits for Additional DNA Testing Pursuant to the IPA [DE-189], and attached a list captioned "MacDonald-Recommendations for Additional DNA testing-miniSTR and/or Y-STR testing" [DE-189] containing at least 79 items. As the caption indicates, MacDonald for the first time raised the issue of miniSTR testing, but did not mention "Touch" DNA. The list does not mention "Touch" DNA.

TYPES OF DNA TESTING

With respect to the evidence previously tested by the AFDIL, "DNA was extracted, amplified, and analyzed for autosomal Short Tandem Repeats (STRs) and mitochondrial DNA [mtDNA]." [DE-119-2] at 1. "Generally speaking, every cell contains two types of DNA: nuclear DNA, which is found in the nucleus of the cell, and mitochondrial DNA, which is found on the outside of the nucleus in the mitochondrion." United States v. Beverly, 369 F.3d 516, 528 (6th Cir.2004). "mtDNA . . . is inherited only from the mother and thus all maternal relatives will share the same mtDNA profile, unless a mutation has occurred." Id. at 529. With nuclear DNA, however, "half is inherited from the mother and half from the father, and each individual, with the exception of identical twins, almost certainly has a unique profile." Id. Accordingly, mtDNA has been said to be a test of exclusion, as opposed to nuclear DNA testing, which is one of identification. Id. That being said, mtDNA "has some advantages over nuclear DNA analysis in certain situations." Id. Because there are a vast number of mitochondria in each cell, as opposed to just one nucleus, a significantly greater amount of mtDNA usually can be extracted by a lab technician as opposed to nuclear DNA; accordingly, mtDNA testing is "very useful for minute samples or ancient and degraded samples." Id. Additionally, mitochondrial DNA can be extracted from sources that do not have a nucleus, like bone samples or a hair without a root segment. United States v. Coleman, 202 F.Supp.2d 962, 965 (E.D.Mo. 2002).

Both STR testing (or nuclear) and mtDNA testing follow the same four-step process:

Id. at 966; see also Aff. of Terry Melton [DE-75] ¶¶ 6-8 (describing mtDNA testing); Aff. of Tina Delgado [DE-228] ¶ 4 (describing STR testing).

MiniSTR analysis, which was mentioned by MacDonald for the first time in his list of recommendations for additional testing, "is a methodology that may be used on degraded DNA samples to help recover information lost during conventional STR analysis." Aff. of Tina Delgado [DE-228] ¶ 12. As Tina Delgado, the Biometrics Analysis Section DNA Technical Leader of the FBI, explains:

Id. ¶¶ 12-13. Although the use of miniSTR methodology apparently began in 1994, a commercial kit,3 called MiniFiler, first became available in March 2007. See Aff. of Meghan E. Clement [DE-238-21] ¶ 5; Timeline of Events Surrounding Development and Use of miniSTR Loci for Forensic DNA Typing, http://www.cstl. nist.gov/biotech/strbase/miniSTR/timeline.htm (last visited Aug. 8, 2014) (also available at [DE-265-9]).

The second type of testing referenced by MacDonald in his list of recommendations is Y-STR analysis. According to Delgado, "Y-STR analysis is a methodology that amplifies DNA from the male Y chromosome." Aff. of Tina Delgado [DE-228] ¶ 14; see also Aff. of Christine Mumma [DE-176-1] ¶ 5 ("Y-STR testing allows for the specific identification of Y-chromosome (male) markers."). Because the Y chromosome is passed down from father to son with little or no change, "all individuals within a male lineage will have the same Y-STR profile, thus limiting its discriminatory power." Id.4 Y-STR analysis is useful where there is potential for a mixture of male and female DNA in a sample. Aff. of Christine Mumma [DE-176-1] ¶ 5. For example, it is extremely useful in cases of sexual assault, where typically "the overwhelming amounts of female DNA prevent the detection of male DNA in lower concentration." Aff. of Tina Delgado [DE-228] ¶ 14. It also may be useful in excluding a known suspect. JUSTICE MING W. CHIN, ET AL. FORENSIC DNA EVIDENCE: SCIENCE AND THE LAW § 1:2 ("[A] Y-STR match means that neither the suspect who supplied the tested sample nor any of his paternally related male relatives may be excluded as the potential source of the male DNA collected from the victim or the crime scene."). Y-STR kits have been available since at least 2003. J.M. BUTLER, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, RECENT DEVELOPMENTS IN Y-SHORT TANDEM REPEAT AND Y-SINGLE NUCLEOTIDE POLYMORPHISM ANALYSIS 100 (2003).

"Touch" DNA also was referenced in Mumma's affidavit filed in support of MacDonald's IPA motion. Mumma asserts that while testing previously was typically only conducted on visible stains, now testing can be conducted even if a stain is not visible, because "[t]he transfer of just a few skin cells can now result in a detectable profile." Aff. of Christine Mumma [DE-176-1] ¶ 7. The Government contends that any testing for "Touch DNA" would necessarily involve Low Copy Number ("LCN") analysis. According to Delgado, LCN analysis "is an enhancement strategy used for items of evidence potentially containing `touch DNA.'" Aff. of Delgado [DE-228] ¶ 8. She explains:

Id. She explains other weaknesses with LCN testing, including that "results typically exhibit a combination of various individuals who have handled an item, not exclusively those involved in a criminal act." Id. ¶ 10. Because of the various issues with LCN analysis, including the lack of national guidelines or technical standards governing it, the FBI Laboratory does not conduct that type of testing. Id. ¶ 11.

MacDonald proffers the affidavit of Meghan E. Clement, the Technical Director in the Forensic Identity Laboratory at Laboratory Corporation of America, Holdings (LabCorp), who does not take issue with most of Ms. Delgado's assertions. She submits, however, that because newer kits like MiniFiler and Y-Filer have become available, the ability to develop a profile from old or degraded material has greatly increased, and it may not be necessary to use LCN analysis. Aff. of Meghan Clement [DE-238-21] ¶ 5.

ANALYSIS

Under the Innocence Protection Act, a person imprisoned under a federal criminal judgment is entitled to DNA testing of specific evidence related to that conviction if ten prerequisites are met. 18 U.S.C. § 3600(a).5 As to almost every prerequisite, the parties dispute whether MacDonald has met his burden. The court, for its part, finds that MacDonald's IPA motion is untimely under the statute, and it is therefore DENIED.

In addition to nine other prerequisites, the IPA requires that a motion for order of DNA testing of evidence be "made in a timely fashion." 18 U.S.C. § 3600(a)(10). Any motion not made within 60 months of the enactment of the Justice for All Act of 2004 (the IPA) or within 36 months of the defendant's conviction is presumed to be untimely. Id. That presumption can be rebutted if a court finds:

18 U.S.C. § 3600(a)(10)(B).

Here, it is undisputed that MacDonald's motion is presumed to be untimely. He filed the motion on September 20, 2011, which was 82 months after the enactment of the Justice for All Act of 2004.6 Moreover, even though the parties agreed that MacDonald would not file a motion for DNA testing prior to the filing of the AFDIL report with this court, that report was filed on March 10, 2006 [DE-119]—meaning that MacDonald waited 66 months to file the instant IPA motion.

Having conceded that his motion is presumed untimely, MacDonald contends that he has nonetheless rebutted that presumption. Specifically, he argues that (1) he has shown good cause; (2) the evidence he seeks to have tested is newly discovered DNA evidence; and (3) the denial of the motion would result in manifest injustice. The court does not agree.

MacDonald's good cause argument appears to be premised upon the agreement he reached with prosecutors during DNA testing in 2005. To reiterate, correspondence between prosecutors and MacDonald's then-legal counsel shows that the parties agreed to the following:

January 14, 2005 Letter [DE-212-1] at 13 (emphasis in original). Based on this agreement, MacDonald attempts to cast blame for his delay on the Government, and characterizes the Government's position as "disingenuous." See IPA Additional Testing Reply [DE-238] ¶ 50 ("MacDonald's motion should be considered timely because the delay in filing the motion was at the request of the Government. . . . In light of [the January 2005] correspondence, the Government's stance that MacDonald's IPA motion is untimely is disingenuous."). Respectfully, the court finds that MacDonald is the party who has taken the disingenuous stance.

Although MacDonald tries to extrapolate from his agreement that any IPA motion he files should be deemed timely so long as litigation surrounding his § 2255 unsourced hairs claim remains pending, the plain language of the correspondence shows that MacDonald agreed not to file any other motion for DNA testing prior to the filing of the AFDIL report. That report was filed in March 2006; MacDonald's IPA motion was not filed until 66 months later. There is no mention in the correspondence between the Government and MacDonald of the defense refraining from filing a motion for DNA testing while he pursued § 2255 litigation based on the AFDIL report. Indeed, the IPA itself provides that any motion under the statute "shall not be considered to be a motion under section 2255." § 3600(h)(3). Accordingly, MacDonald's attempt to attribute his inaction to the fact that the § 2255 proceeding was still ongoing is misplaced. Moreover, the Government explicitly qualified in the agreement that it was not conceding the merits of any future IPA motion filed by MacDonald. Filing a motion under the statute in a timely fashion is one of the ten prerequisites for securing DNA testing under the IPA. Reserving the right to challenge the merits of any future IPA motion, accordingly, includes the right to contest its timeliness. Consequently, the court cannot find that MacDonald has shown good cause for his delay in filing the IPA motion.

Nor can the court find that MacDonald has rebutted the presumption of untimeliness because he is seeking to test "newly discovered DNA evidence." MacDonald correctly observes that the IPA does not define the phrase "newly discovered DNA evidence." MacDonald argues, however, that when § 3600(a)(10)(b)(ii) is read in conjunction with § 3600(a)(2)—which requires the evidence to be secured in relation to the investigation or prosecution—it is evident that newly discovered DNA evidence "could only logically be describing a newer, more accurate method of DNA testing than was available in the past." IPA Additional Testing Reply [DE-238] ¶ 47. MacDonald then argues that because Minifiler kits were not available until the fall of 2006, and Y-Filer kits were not available until 2006, he is seeking a form of testing not previously available either at the time of his 1979 trial or when the prior testing was conducted. According to MacDonald, this means that the evidence he seeks to have tested is "newly discovered DNA evidence." Id.

Even if the court accepts MacDonald's interpretation that "newly discovered DNA evidence" under the IPA means "a newer, more accurate method of DNA testing than was available in the past, the court still cannot find that MacDonald has rebutted the presumption of untimeliness. First, Y-STR testing has been available since 2003. J.M. BUTLER, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, RECENT DEVELOPMENTS IN Y-SHORT TANDEM REPEAT AND Y-SINGLE NUCLEOTIDE POLYMORPHISM ANALYSIS 100 (2003). Thus, the methodology has been available since the time the 2006 AFDIL report was filed, and MacDonald did not seek to utilize it until 66 months later. MiniSTR testing has been available since March 2007—well before MacDonald filed the instant IPA motion.

More importantly, the record shows that Y-STR and miniSTR testing and analysis are useful mainly where conventional STR testing cannot or does not yield accurate results. See Aff. of Delgado [DE-228] ¶¶ 12-13 (explaining that "MiniSTR analysis should only be used when samples have been subject to degradation or the quality is poor" and that because "[t]he DNA profiles obtained from properly preserved samples from miniSTR and conventional STR analysis will be the same . . . there is no additional benefit in using miniSTR analysis over conventional methodologies"); ¶ 14 ("Y-STR analysis does provide valuable information when the overwhelming amounts of female DNA prevent the detection of male DNA in lower concentration, typically in cases of sexual assault."); ¶ 15 ("[T]he applications of [miniSTR and Y-STR] methodologies are quite specific and don't replace conventional STR typing."). Out of the at least 79 exhibits that MacDonald now seeks to test, approximately only 23 of them were previously examined by AFDIL.7 Compare Recommendations for DNA testing-miniSTR and/or Y-STR testing [DE-189-1] with Government Schedule A [DE-227-5]. The 56 remaining items have never been subjected to conventional STR analysis. Given that neither miniSTR nor Y-STR testing are meant to replace conventional STR analysis, it is difficult to attribute MacDonald's delay in filing his IPA motion to advancements in those methodologies. Indeed, MacDonald himself posits that until samples of DNA are extracted from the various items, "it is not appropriate to determine specifically which kit is most suitable to use in order to develop a DNA profile for any particular item of evidence." Reply [DE-238] ¶ 28. This leads the court to observe that conventional STR testing may prove appropriate for many of the items MacDonald seeks to have tested. The belated nature of MacDonald's IPA motion does not, therefore, appear to be caused by the advancements in DNA testing. The court accordingly concludes that the fact that fact that MacDonald now seeks miniSTR and Y-STR testing does not rebut the presumption of untimeliness, pursuant to § 3600(a)(10)(B)(ii).

Finally, the court does not find that the denial of MacDonald's motion would result in "manifest injustice." The term "manifest" is defined under the IPA to mean "that which is unmistakable, clear, plain or indisputable and requires that the opposite conclusion be clearly evident." § 3600(a)(10)(C)(ii). MacDonald asserts he has shown that a denial of his IPA motion for further testing will result in "manifest injustice—a life sentence for an innocent man who has not been given a chance to conclusively prove his innocence in a court of law." IPA Additional Testing Reply [DE-238] ¶ 48. It is unclear how, in this aspect, MacDonald differs from any other IPA applicant. Presumably any applicant who has untimely filed a motion under the IPA, along with some other evidence other than his own assertion of innocence, would argue the same thing—that the denial of the motion results in his loss of opportunity to prove his innocence conclusively. If that is all that is required to rebut the presumption of untimeliness, however, then the presumption is meaningless. Moreover, after examining all the facts and circumstances, as this court must under the IPA, the court observes that it already has found the bulk of the "exculpatory evidence" relied upon by MacDonald to bolster his assertion of innocence to be not reliable or credible. Compare IPA Additional Testing Reply [DE-238] ¶ 48 ("MacDonald's motion is not based solely upon his own assertion of innocence, but rather, is coupled with an abundance of exculpatory evidence gathered since the time of trial[,] . . . includ[ing] . . . the Britt Claim, the results of the previous round of DNA testing, the affidavit of the elder Helena Stoeckley, the affidavits regarding Greg Mitchell's repeated confessions, and the blond synthetic hair-like fibers found at the crime scene.") with July 24, 2014 Order [DE-354] at 136-48, 154-58 (finding MacDonald's evidence regarding Stoeckley and Mitchell's alleged confessions to be not reliable or credible).

MacDonald has had the benefit of numerous talented and dedicated attorneys over the course of this case. MacDonald and his legal team have repeatedly sought relief from his convictions over the years, often with unreliable and specious evidence. MacDonald, and his team, were aware since at least 2005 of the potential need to file an IPA motion, yet he failed to seek relief under the IPA until 2012. Given the unreliable and equivocal nature of the evidence MacDonald has proffered in the past in assertion of his innocence, the court does not find that he has shown that the denial of his motion will result in manifest injustice.

MacDonald's motion is presumed to be untimely under the IPA, and he has failed to rebut the presumption of untimeliness. The motion, therefore, is DENIED.

CONCLUSION

For the foregoing reasons, MacDonald's Motion Pursuant to the Innocence Protection Act of 2004, 18 U.S.C. § 3600, for New Trial Based on DNA Testing Results and Other Relief [DE-176] is DENIED.

SO ORDERED.