                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 99-6864
WAYNE ANDERSON, a/k/a Goldie,
a/k/a G,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
              Terrence W. Boyle, Chief District Judge.
                (CR-93-159-BO, CA-98-749-5-BO)

                       Submitted: May 31, 2000

                      Decided: December 5, 2000

       Before WILKINS, MOTZ, and KING, Circuit Judges.



Dismissed in part and vacated and remanded in part by unpublished
per curiam opinion.


                             COUNSEL

Milton Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant.
Robert Edward Skiver, Assistant United State Attorney, Raleigh,
North Carolina; David Paul Folmar, Jr., Assistant United States Attor-
ney, Greensboro, North Carolina, for Appellee.
2                     UNITED STATES v. ANDERSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Wayne Anderson appeals the district court orders dismissing his
petition filed under 28 U.S.C.A. § 2255 (West Supp. 2000) as
untimely and denying his application for a certificate of appealability.
While we deny a certificate of appealability and dismiss the appeal as
to most of Anderson’s claims, we grant a certificate of appealability,
vacate the district court’s orders, and remand as to Anderson’s claims
that the Government violated Brady v. Maryland, 373 U.S. 83 (1963),
and that the prosecution knowingly presented false testimony.

   Anderson is serving a 300-month sentence for robbery, use of a
firearm during a crime of violence, and aiding and abetting those
crimes. Anderson’s first jury trial resulted in a mistrial because the
jury could not reach a verdict. Anderson was then convicted after a
second trial. His convictions became final on April 20, 1995. On Sep-
tember 22, 1998, Anderson filed a pro se 28 U.S.C.A. § 2255 motion
in which he alleged a Brady violation, ineffective assistance of coun-
sel claims, that the Government failed to correct perjured testimony
of one of its witnesses, and that the Government violated 18 U.S.C.A.
§ 201(c)(2) (West Supp. 2000).1 Anderson acknowledged his motion
was filed beyond § 2255’s one year limitations period, but argued that
the time period for filing should be equitably tolled. He asserted that
because of his transfer among several correctional facilities, he was
denied access to his legal materials until August 28, 1998. Because
we conclude that Anderson’s transfer among various penal institu-
tions does not present the "rare instance" when "it would be uncon-
scionable to enforce the limitation period against the party and gross
injustice would result," Harris v. Hutchinson, 209 F.3d 325, 330 (4th
    1
   This court has explicitly held that § 201 does not apply to the Govern-
ment. See United States v. Richardson, 195 F.3d 192, 194 (4th Cir.
1999), cert. denied, 120 S. Ct. 837 (2000).
                       UNITED STATES v. ANDERSON                            3
Cir. 2000), the district court did not err in declining to toll the one-
year limitations period on that basis. We therefore deny a certificate
of appealability and dismiss the appeal because Anderson’s § 2255
motion was untimely as to all of his claims except his claims that the
Government violated Brady and knowingly presented false testimony.

   As to those claims, Anderson asserted that under the statute, the
one year time period should run from "the date on which the facts
supporting the claim or claims presented could have been discovered
through the exercise of due diligence." 28 U.S.C.A. § 2255 (West
Supp. 2000). Anderson avers that under this provision of the statute,
the limitations period should run from the date upon which the facts
surrounding his Brady and perjured testimony claims could have been
discovered through due diligence. Anderson alleges that after trial, he
discovered the Government withheld information that its own wit-
ness, Frankie Anderson (Frankie),2 Anderson’s nephew, received a
variety of favors, including financial compensation, for his testimony.3
Frankie had denied any favors or compensation from the Government
on cross-examination at trial. Anderson asserts that he did not dis-
cover information relevant to his Brady and false testimony claims
until April 8, 1998, when a friend obtained a copy of a "motion to dis-
miss" that Frankie filed in another court in another state. In that
motion, Frankie apparently sought to withdraw a "motion to vacate"
his conviction because "the Government has agreed to help me finan-
cially because of my situation in cooperating." Anderson states that
after he discovered the motion, a private investigator disclosed to him
that the Government withheld favorable, impeaching evidence during
his trial. The investigator obtained sworn statements from Frankie and
his girlfriend detailing favors Frankie received from the Government
  2
     Frankie did not testify at Anderson’s first trial that resulted in a mis-
trial due to a hung jury. At the second trial, the Government called its
previous witnesses and Frankie, who provided evidence of Anderson’s
participation in the robbery. Frankie examined a picture taken during the
robbery and identified Anderson as the person in the picture and testified
that Anderson instructed him to drive two participants in the robbery
from Florida to North Carolina for the robbery.
   3
     It is unclear exactly how Anderson discovered this information. In his
§ 2255 motion, he alleges he discovered the information pursuant to a
Freedom of Information Act request.
4                     UNITED STATES v. ANDERSON
in exchange for his testimony.4 Anderson attached these documents to
his application for a certificate of appealability and his § 2255 motion
in the district court. Anderson argues that his September 28, 1998
motion was timely because it was filed within one year from when he
discovered Frankie committed perjury, April 8, 1998.

   We must first determine whether a certificate of appealability
should issue as to Anderson’s remaining claims. Under 28 U.S.C.A.
§ 2253(c)(2), a certificate of appealability is granted "only if the
applicant has made a substantial showing of the denial of a constitu-
tional right." When the district court denies a habeas petition on pro-
cedural grounds without reaching the prisoner’s underlying
constitutional claims, as the district court did in Anderson’s case, a
certificate of appealability permitting appeal of the district court’s
order should issue when the petitioner demonstrates "that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000).
After obtaining supplemental briefing from the parties on this issue,
we find both criteria exist in this case.

   Anderson asserts that his due process rights were violated when the
Government did not disclose to him prior to trial "favorable evidence
that was material to guilt or punishment" in relation to Frankie’s testi-
mony and when the Government permitted Frankie to deny on cross-
examination that he had not received any favors from the Government
in exchange for his testimony. Anderson notes that Frankie was a cru-
cial government witness and that he could have impeached his testi-
mony had the Government disclosed this information about Frankie
prior to trial. The Government counters that Frankie’s testimony was
not critical to the prosecution because other testimony linked Ander-
son to the robbery for which he was convicted.

  A government prosecutor’s duty to disclose under Brady has three
components: "(1) the evidence at issue must be favorable to the defen-
    4
    These favors allegedly included $5000, conjugal visits with his girl-
friend in the prosecutor’s office, a promise of early release, and tele-
phone privileges at government expense.
                     UNITED STATES v. ANDERSON                        5
dant, whether directly exculpatory or of impeachment value; (2) it
must have been suppressed by the state, whether willfully or inadver-
tently; and (3) it must be material." Spicer v. Roxbury Correctional
Inst., 194 F.3d 547, 555 (4th Cir. 1999) (citations omitted). In addi-
tion, knowing use of perjured testimony violates due process when
there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury. Kyles v. Whitley, 514 U.S. 419, 433
n.7 (1995) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976));
United States v. Ellis, 121 F.3d 908, 915 n.5 (4th Cir. 1997). We con-
clude on the record before us that reasonable jurists would find it
debatable whether the Government’s failure to disclose impeachment
evidence concerning the favors Frankie received from the Govern-
ment meets all three components of a viable Brady claim. We also
conclude that reasonable jurists would find it debatable whether the
Government’s failure to correct Frankie’s denial on cross-
examination deprived Anderson of due process because it amounted
to the knowing use of perjured testimony by the prosecution. There-
fore, under the first prong of Slack, we find Anderson has made a suf-
ficient showing to obtain a certificate of appealability as to those
issues.

   We next assess under Slack whether "jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling." Anderson alleges that he did not discover information rele-
vant to Frankie’s testimony until April 8, 1998, when he obtained a
copy of Frankie’s own "motion to dismiss" filed in a different court
in which Frankie stated he received money from the Government and
expected an early release date. Anderson also alleges that after receiv-
ing this information, a private investigator obtained sworn statements
from Frankie and his girlfriend detailing favors he received from the
Government in exchange for his testimony. Anderson continues that
he filed his September 28, 1998 motion within one year of his April
8, 1998 discovery of evidence concerning the Government’s dealings
with Frankie. The Government counters that Anderson did not exer-
cise "due diligence" in pursuing his claims concerning Frankie’s testi-
mony and that Anderson’s pleadings are conflicting as to when and
how he discovered Frankie’s motion. We conclude from the record
that reasonable jurists would find it debatable whether the district
court was correct in its procedural ruling that this claim was barred
by the one-year limitations period.
6                    UNITED STATES v. ANDERSON
   For these reasons, we grant a certificate of appealability as to
Anderson’s Brady claim and his claim that the Government know-
ingly presented false testimony, vacate the district court’s dismissal
of those claims, and remand for further proceedings as to those
claims. We express no opinion as to their ultimate resolution by the
district court. We deny a certificate of appealability and dismiss the
appeal as to all of Anderson’s other claims. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                  DISMISSED IN PART; VACATED
                                      AND REMANDED IN PART
