     Case: 11-30978     Document: 00511886145         Page: 1     Date Filed: 06/13/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 13, 2012
                                     No. 11-30978
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TONY HUNTER,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:11-CV-343


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        In 2004, Tony L. Hunter, Louisiana prisoner # 333814, was convicted by
a jury of three counts of second-degree murder and one count of attempted
armed robbery.         He was sentenced to three consecutive life terms of
imprisonment at hard labor without the benefit of probation, parole or
suspension of sentence for the murders, to be followed by a 49-year term of
imprisonment at hard labor for the attempted armed robbery. He appeals from
the district court’s dismissal of his 28 U.S.C. § 2254 application as time barred.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30978    Document: 00511886145     Page: 2   Date Filed: 06/13/2012

                                  No. 11-30978

      On appeal from the denial of a § 2254 application, we review the district
court’s findings of facts for clear error and its conclusions of law de novo. Rabe
v. Thaler, 649 F.3d 305, 308 (5th Cir. 2011). We review the denial of a § 2254
application on procedural grounds de novo. Matthis v. Cain, 627 F.3d 1001, 1003
(5th Cir. 2010), cert. denied, 131 S. Ct. 3040 (2011).
      At Hunter’s trial, Corey Smith testified that he had been the owner of the
firearm that was determined to be the murder weapon, but that it had been
stolen prior to the murders. Within the District Attorney’s (DA) case file was a
handwritten police report which noted that Smith had reported the theft and
believed that his friend Keith Norman had stolen the firearm from his truck and
had traded it for drugs. In his § 2254 application, Hunter asserted that the
prosecution’s failure to disclose that report violated Kyles v. Whitley, 514 U.S.
419 (1995), and Brady v. Maryland, 373 U.S. 83 (1963). The district court held
that Hunter’s § 2254 application was untimely because the limitations period
commenced under 28 U.S.C. § 2244(d)(1)(D), on March 12, 2008, when the file
containing the report was provided to Hunter’s then attorney Kenota Pulliam.
      Hunter argues that the district court mischaracterized the factual
predicate of his claim as pertaining to the potential involvement of Norman
rather than as the existence of the report. However, examination of the record
contradicts his assertion. He further argues, pursuant to § 2244(d)(1)(D), that
the limitations period should have commenced on February 17, 2009, when he
received the DA’s case file after his attorney-client relationship with Pulliam
ended. Section 2244(d)(1)(D) states that the limitations period begins to run as
of “the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.” Hunter has not
shown why he could not have discovered the report through the exercise of due
diligence once it was disclosed to Pulliam. See Starns v. Andrews, 524 F.3d 612,
620-21 & n.5 (5th Cir. 2008) (holding that the relevant date under
§ 2244(d)(1)(D) is the date that the habeas petitioner or his criminal attorney

                                        2
  Case: 11-30978   Document: 00511886145     Page: 3   Date Filed: 06/13/2012

                                No. 11-30978

received the information in question). The district court correctly determined
that Hunter’s § 2254 application was untimely.
      The judgment of the district court is AFFIRMED.




                                      3
