     Case: 17-60321   Document: 00515073043     Page: 1   Date Filed: 08/12/2019




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

                                 No. 17-60321                        FILED
                                                               August 12, 2019
                                                                Lyle W. Cayce
JOSEPH EUGENE OSBORNE,                                               Clerk

             Petitioner – Appellant,

v.

PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS,

             Respondent – Appellee.



                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before SMITH, WIENER, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Joseph Eugene Osborne appeals the dismissal of his federal habeas
petition. Because the district court did not err in its determination that the
petition was time-barred, we AFFIRM.
                                       I.
      In 2004, Osborne was tried in Mississippi state court for the murder of
his girlfriend’s five-year-old son. During the trial, Dr. Steven Hayne testified
as a forensic pathologist on behalf of the State, using autopsy data and a
plaster cast of the child’s face to explain that a large hand, probably a male’s,
had suffocated the child. Osborne was convicted and sentenced to life in prison.
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His conviction was affirmed on direct review. Osborne v. State, 942 So. 2d 193
(Miss. Ct. App. 2006), cert. denied, 942 So. 2d 164 (Miss. 2006).
      In the years following Osborne’s conviction, Dr. Hayne became the
subject of public criticism for his work as an expert witness.         Multiple
newspaper and magazine articles published from 2006 to 2008 detailed Dr.
Hayne’s lack of qualifications, the large number of autopsies he performed, his
potentially unethical business relationship with the State, and his
scientifically questionable testimony. In 2007, a justice on the Supreme Court
of Mississippi expressed concerns about Dr. Hayne’s qualifications in a
published opinion. See Edmonds v. State, 955 So. 2d 787, 802–03 (Miss. 2007)
(Diaz, J., concurring). In 2008, the Innocence Project wrote a letter to the
Mississippi State Board of Medical Licensure, complaining that Dr. Hayne was
unqualified and had provided false autopsy reports and testimony in a variety
of cases. Around that time, the Innocence Project also issued multiple press
releases discussing Dr. Hayne’s business relationship with the State, his lack
of qualifications, and other alleged misconduct.
      In response to the 2008 letter, Dr. Hayne filed a defamation lawsuit
against the Innocence Project. The Innocence Project conducted extensive
discovery, culminating in a deposition of Dr. Hayne in which more evidence
came to light supporting the earlier allegations that were made in the media
coverage, the Innocence Project’s letter, and the other publicly available
documents. According to Osborne, the deposition transcript was confidential
until May 25, 2012, when it became available to the public.
      Osborne filed a state habeas application on November 14, 2012,
challenging his murder conviction based on the information that was in Dr.
Hayne’s deposition. The Supreme Court of Mississippi denied relief on May
29, 2013, in part because Osborne’s application was time-barred. Osborne filed


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a motion for reconsideration, which the Supreme Court of Mississippi denied
on June 21, 2013.
      Osborne then filed a federal habeas petition in the Southern District of
Mississippi on December 17, 2013. His federal petition raised three claims: (1)
that the State violated Napue v. Illinois, 360 U.S. 264 (1959), by relying on
false evidence provided by Dr. Hayne; (2) that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by withholding material evidence regarding Dr.
Hayne; and (3) that Osborne was denied his Sixth Amendment right to
confrontation. The State filed a motion to dismiss, contending that Osborne
had not alleged a constitutional violation and that his petition was time-
barred. The district court agreed that the factual predicate for the claim could
have been discovered through the exercise of due diligence more than a year
before he filed his petition, and the petition was therefore dismissed as
untimely. Osborne appealed, and this court granted him a certificate of
appealability on the issue of whether “the factual predicate for his claims could
not have been discovered earlier through the exercise of due diligence.”
                                                 II.
      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 1
imposes a one-year limitations period on federal habeas petitions filed by state
prisoners.     28 U.S.C. § 2244(d)(1). Relevant here, that limitations period
begins running from the later of “the date on which the [state court] judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review” or “the date on which the factual predicate of the claim
or claims presented could have been discovered through the exercise of due
diligence.” Id. §§ 2244(d)(1)(A), (D). The one-year period is tolled for “[t]he



      1   Pub. L. No. 104-132, 110 Stat. 1214.

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time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.”
Id. § 2244(d)(2).
      We review the dismissal of a habeas petition as time-barred under
AEDPA de novo. Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).
                                       III.
      In this case, Osborne’s state court judgment became final in 2006, when
his murder conviction was upheld on direct review and the Supreme Court of
Mississippi denied review. There is no dispute that Osborne’s habeas claims
in this case would be untimely if the one-year clock was based on when the
convictions became final. Osborne contends that his petition is nonetheless
timely because the factual predicate for his claim was not discoverable prior to
May 25, 2012—when Dr. Hayne’s deposition became available to the public.
Going forward from that date, Osborne also contends that his one-year clock
was tolled while his state habeas petition was pending consideration and then
reconsideration. Given both those contentions, Osborne argues that his federal
habeas petition, filed on December 17, 2013, was filed 351 non-tolled days after
the factual predicate became discoverable, which would be under the one-year
limitation and therefore timely.
      The State offers two arguments as to why Osborne’s petition was
untimely, arguing that: (1) Osborne’s one-year clock was not tolled while his
motion for reconsideration was pending before the Supreme Court of
Mississippi; and (2) even if his clock was tolled during that time, the factual
predicate of his claim was discoverable by the exercise of due diligence more
than a year before his claim was filed. We address each argument in turn.
                                        A.
      First, we address whether Osborne’s one-year AEDPA clock was tolled
while his motion for reconsideration was pending before the Supreme Court of
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Mississippi. The State contends that Osborne’s motion for reconsideration was
not “properly filed” under 28 U.S.C. § 2244(d)(2) because Mississippi Rule of
Appellate Procedure 27(h) (“Reconsideration on Motions”) does not expressly
list the denial of habeas relief as a basis to move for reconsideration.
We disagree with the State.
      As Osborne points out, the list does include a catch-all exception under
which a motion for reconsideration is permitted “in extraordinary cases . . . for
good cause shown.”      Miss. R. App. P. 27(h)(8).     The Supreme Court of
Mississippi’s order denying Osborne’s motion for reconsideration included a
holding that Rule 27(h)(8) did not apply, indicating that it understood
Osborne’s motion to rely on that rule.       Moreover, the Supreme Court of
Mississippi has stated that a motion for reconsideration under Rule 27(h) is a
proper mechanism to challenge its otherwise unappealable decisions. See
Foster v. State, 961 So. 2d 670, 671–72 (Miss. 2007), abrogated on other grounds
by Bell v. State, 160 So. 3d 188 (Miss. 2015).
      We have not yet directly addressed the question of whether a Mississippi
Rule 27(h) motion for reconsideration tolls the AEDPA limitations period
under 28 U.S.C. § 2244(d)(2). But we have addressed the question under
analogous Texas law and concluded that motions for reconsideration in that
context do permit tolling. See Emerson v. Johnson, 243 F.3d 931, 934–935 (5th
Cir. 2001). Emerson involved a very similar context: the applicable Texas
procedural rule did not expressly permit state habeas petitioners to file
motions for reconsideration, but the Texas Court of Criminal Appeals had
nonetheless “entertained” those motions. Id. The United States District Court
for the Southern District of Mississippi has already applied Emerson’s
reasoning to conclude that a Rule 27(h) motion for reconsideration filed in the
Supreme Court of Mississippi also tolls AEDPA’s one-year limitations period.
See Duckworth v. Goff, No. 1:11-CV-1-HSO-JMR, 2011 WL 4529608, at *3 (S.D.
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Miss. June 13, 2011), report and recommendation adopted, 2011 WL 4529601
(S.D. Miss. Sept. 28, 2011).
      We agree with that reasoning and hold that Osborne’s motion for
reconsideration before the Supreme Court of Mississippi was “properly filed”
under 28 U.S.C. § 2244(d)(2), and that his one-year limitations period under
AEDPA would have been tolled while that motion was pending decision.
                                       B.
      We next address whether Osborne’s habeas claim is nonetheless time-
barred because the factual predicate could have been discovered through the
exercise of due diligence more than a year before the petition was filed.
Osborne asserts that the factual predicate for his claim was not discoverable
until May 25, 2012—when Dr. Hayne’s deposition allegedly became available
to the public. However, the State contends that the factual predicate for
Osborne’s claims was discoverable well before 2012. We agree with the State.
      A habeas petitioner’s AEDPA limitations period begins running from
“the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.”          28 U.S.C.
§ 2244(d)(1)(D). “[T]his means the date a petitioner is on notice of the facts
which would support a claim, not the date on which the petitioner has in his
possession evidence to support his claim.” In re Davila, 888 F.3d 179, 189 (5th
Cir. 2018) (quoting In re Young, 789 F.3d 518, 528 (5th Cir. 2015)). Section
2244(d)(1)(D) does not “convey a statutory right to an extended delay . . . while
a habeas petitioner gathers every possible scrap of evidence that might . . .
support his claim.” Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998).
      Osborne offers two contentions for why the district court erred when it
determined that the factual predicate for his claim was discoverable well before
2012. First, he contends that the information noted by the district court was
insufficient to provide the factual predicate for his claims. Second, he contends
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that he could not have discovered the information to provide the factual
predicate through due diligence because he was incarcerated.
       This is not the first time that we have examined whether a habeas
petitioner acted with due diligence to discover the factual predicate for claims
related to Dr. Hayne’s qualifications as an expert witness. In Koon v. Cain,
another Mississippi prisoner filed a habeas petition—in July 2012—
challenging Dr. Hayne’s qualifications as a witness against him during his
prior state murder trial.         No. 14-30090, at *1–3 (5th Cir. Nov. 6, 2014)
(unpublished). We affirmed the district court’s dismissal of that claim as time-
barred under § 2244(d)(1)(D), holding that the factual predicate for the claim
would have been discoverable through the exercise of due diligence prior to
July 2011. Id. at *3. And in In re Flaggs, we denied authorization to file a
successive habeas application—based on § 2244(b)(2)(B)’s analogous due
diligence requirement—because Dr. Hayne’s qualifications “had been widely
and publicly criticized for several years before the 2012 deposition[.]” No. 13-
60896, at *2 (5th Cir. Jan. 31, 2014) (unpublished).
       Osborne first contends that the information available prior to May 25,
2012, was insufficient to provide the factual predicate for his claims. We
disagree. Among the other sources noted by the district court, that information
included: a Supreme Court of Mississippi concurrence (2007); 2 an article in the
Jackson Free Press (2008); an article in the Clarion Ledger (2008); three press
releases from the Innocence Project (2008), and two articles in Reason
magazine (2006 and 2007), all raising serious concerns about Dr. Hayne’s
qualifications as a forensic pathologist and as an expert witness. As we held
in Koon, that information was sufficient to provide notice of the factual


       2 See Edmonds, 955 So. 2d at 802–03 (Diaz, J., concurring) (noting that “[t]here are
serious concerns over Dr. Hayne’s qualifications to provide expert testimony[,]” before listing
and discussing many of those concerns).
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predicate for claims based on challenges to Dr. Hayne’s qualifications. See also
In re Young, 789 F.3d at 528–29 (favorably citing an opinion where the “28
U.S.C. § 2244(d)(1)(D) clock started when newspaper reports about [the] DEA
chemist surfaced” (citing Sierra v. Evans, 162 F.3d 1174, at *2 (10th Cir. 1998)
(unpublished))); Rivas v. Fischer, 687 F.3d 514, 536 (2d Cir. 2012) (holding that
press coverage was sufficient to put the petitioner on notice of the factual
predicate for his claim); McDonald v. Warden, Lebanon Corr. Inst., 482 F.
App’x 22, 29 (6th Cir. 2012) (unpublished) (same).
      Second, Osborne contends that the information sufficient to provide a
factual predicate for his claim could not have been discovered by him through
the exercise of due diligence. We again disagree. Osborne bases his argument
primarily on a Seventh Circuit opinion which stated that “a due diligence
inquiry should take into account that prisoners are limited by their physical
confinement.” Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004); see also
Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (“[A] case is
discoverable by ‘due diligence’ on the date the opinion became accessible in the
prison law library, not the date the opinion was issued.”). We have observed
that “[t]he essential question is not whether the relevant information was
known by a large number of people, but whether the petitioner should be
expected to take actions which would lead him to the information.” Starns,
524 F.3d at 618 (quoting Wilson v. Beard, 426 F.3d 653, 662 (3d Cir. 2005)).
      Contrary to his contention, this is not a case where Osborne would have
had to “scour the court records” to find the information. Nor is this case like
what the Third Circuit confronted in Wilson, where the information was
broadcast in only a few days of local television reporting. 426 F.3d at 660. In
this case, the information was published over the span of several years in
national and local news media, in a state supreme court decision, and in the
press releases of a national nonprofit organization dedicated to exonerating
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people who were wrongfully convicted. Osborne has not offered any evidence
that his incarceration would have prevented him from learning of that
information had he exercised due diligence. See Moore v. Dretke, 369 F.3d 844,
845 n.1 (5th Cir. 2004) (“The applicant bears the burden of demonstrating that
the petition does in fact comply with [AEDPA], and the district court shall
dismiss the petition unless that showing is made.”).
      Osborne offers declarations from two criminal defense lawyers stating
that they could not have discovered the “vital facts” underlying his claim prior
to Dr. Hayne’s deposition on May 25, 2012. Osborne contends that if those
lawyers could not have discovered such facts before then, he could not have
done so while incarcerated. But Osborne’s argument is unavailing. As we
previously explained, the AEDPA clock starts running from “the date a
petitioner is on notice of the facts which would support a claim, not the date on
which the petitioner has in his possession evidence to support his claim.” In re
Davila, 888 F.3d at 189 (quoting In re Young, 789 F.3d at 528). And as we held
in Koon, the information casting doubt on Dr. Hayne’s qualifications was
publicly available by 2008 at the latest. Statements from two lawyers that
they would have been unable to uncover specific aspects about Dr. Hayne’s
background do not establish that Osborne would not have been able to discover
the general factual predicate for his claim.
      Accordingly, even accounting for the time that Osborne’s AEDPA clock
was tolled while his state habeas petition was pending both consideration and
reconsideration, we hold that the factual predicate for his claim would have
been discoverable through the exercise of due diligence more than a year prior
to the filing of his federal habeas petition in December 2013. His petition is
therefore time-barred under 28 U.S.C. § 2244(d).
                                  *   *       *   *
      The dismissal of Osborne’s habeas petition is AFFIRMED.
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