                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                           F I L E D
                             UNITED STATES COURT OF APPEALS
                                                                                             July 22, 2003
                                  FOR THE FIFTH CIRCUIT
                                                                                       Charles R. Fulbruge III
                                   _________________________                                   Clerk
                                          No. 03-30046
                                     SUMMARY CALENDAR
                                   _________________________

LEO PINEYRO

                        Petitioner - Appellant

   v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                        Respondent - Appellee

______________________________________________________________________________

                 On Appeal from the United States District Court for the
                  Eastern District of Louisiana, New Orleans Division
                                     (02-CV-626-H)
______________________________________________________________________________

Before REYNALDO G. GARZA, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:1

        Leo Pineyro, Louisiana state prisoner #167266, appeals the dismissal of his petition for

habeas corpus relief, which stems from his conviction for second-degree murder. For the

following reasons, we affirm the district court’s decision to deny relief.

        The district court determined that the relief sought by Pineyro is procedurally barred. As a

basis for its ruling, the district court pointed to a series of state court decisions which held that


        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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Pineyro’s application for post-conviction relief had not been filed within the three-year limitations

period of former LA. CODE CRIM. PROC. ANN. art. 930.8 (West 1997). According to Pineyro, the

district court’s reliance on the doctrine of procedural default amounted to an abuse of discretion

because the various state courts reviewing his case misapplied Article 930.8. Despite his

assertions, Pineyro has failed to show that the district court’s ruling was erroneous. See Glover v.

Cain, 128 F.3d 900 (5th Cir. 1997). Glover, which is the law of this circuit and is dispositive of

many of the issues raised in this appeal, is never even mentioned by the petitioner. That case

clearly establishes that Article 903.8 provides an independent and adequate state ground for

rejecting a petition for post-conviction relief. Id. at 902.

        Pineyro contends that federal habeas relief should not be barred because the state court of

appeals mislead him, so that he believed he had three years after his sentence became final to

apply for post-conviction relief. Pineyro’s argument lacks merit because the three-year period had

expired long before the appellate court rendered its opinion.

        Alternatively, Pineyro argues that relief should not be barred because he established cause

for the default and that prejudice resulted. He asserts that the cause consisted of his counsel

having been ineffective by failing to learn of a fact which could have been used to impeach a state

witness. As the district court held, however, Pineyro knew the relevant facts when the witness

testified at his trial. He is not entitled to relief because there was no external factor which

prevented him from developing the factual basis for his claim. See Murray v. Carrier, 477 U.S.

478, 488 (1986); Glover, 128 F.3d at 904.

        Pineyro also contends he is entitled to habeas relief because: (1) he was denied due

process and equal protection in the selection of his grand jury foreman; (2) the evidence was


                                                   -2-
insufficient; and (3) he received ineffective assistance of counsel. These three claims are not

properly before this court because they are not included in the district court’s certificate of

appealability and Pineyro has not requested such a certificate from this court. See 28 U.S.C. §

2253(c); Whitehead v. Johnson, 157 F.3d 384, 386-88 (5th Cir. 1988).

       AFFIRMED.




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