     Case: 14-30090       Document: 00512828488         Page: 1     Date Filed: 11/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 14-30090                                 FILED
                                   Summary Calendar                        November 6, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
JAMES KOON,

                                                  Plaintiff - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Defendant - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-2538


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       James Koon, Louisiana prisoner #305523, proceeding pro se, contests the
dismissal of his August 2013, 28 U.S.C. § 2254 petition, in which he challenges
his 1996 conviction and life sentence, pursuant to La. Rev. Stat. § 14:30.1
(second-degree murder), for murdering an infant. Koon based his petition on
evidence allegedly not discoverable prior to 2011. The evidence shows the
witness for Louisiana, Dr. Steven Hayne, a now-discredited Mississippi


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                 No. 14-30090

coroner, lied about his qualifications as an expert and thus gave unreliable
testimony about the cause of death. The district court concluded the petition
was untimely because the factual predicate of Koon’s claim was known to him,
or could have been discovered through due diligence, more than a year before
his filing a state habeas petition in July 2012 that otherwise would have tolled
the limitation period for filing his federal habeas petition.        28 U.S.C.
§ 2244(d)(1)(D) & (d)(2).
      The district court granted a certificate of appealability on the issue of
when the one-year limitation period of § 2244(d)(1) began. That period began
no later than “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). If that date was earlier than July 2011, the § 2254
petition was untimely.
      The district court’s legal conclusions are reviewed de novo; its factual
findings concerning timeliness, for clear error. E.g., Wilson v. Cain, 564 F.3d
702, 704 (5th Cir. 2009). A factual finding is not clearly erroneous if it is
plausible in the light of the record read as a whole.      Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573-74 (1985).
      The factual predicate of a claim is discovered when the petitioner has
knowledge of the legal and factual basis for it. E.g., Flanagan v. Johnson, 154
F.3d 196, 199 (5th Cir. 1998). The start of the limitation period is not delayed
further while petitioner gathers all the evidence that might support the claim.
Id. at 198-99. A petitioner’s diligence in discovering the facts needed to state
a claim “must merely be due or reasonable under the circumstances”. Starns
v. Andrews, 524 F.3d 612, 619 (5th Cir. 2008) (citation omitted).
      Koon’s claim is imprecise, but he states generally that Dr. Hayne was
not properly certified or qualified to testify as an expert, and that he



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                                  No. 14-30090

misrepresented certification in forensic pathology. Koon asserts he could not
have known Dr. Hayne was unreliable until he received a report from the
National Inmate Advocacy Program (NIAP) in September 2011.
        The district court adopted the Magistrate Judge’s report and
recommendation, which recommended that correspondence to Koon from the
NIAP, its predecessor Review Case Research, and Koon’s trial counsel showed
Koon had knowledge of Dr. Hayne’s unreliability and untruthfulness at least
as early as June 2010.       That adopted recommendation was not clearly
erroneous. E.g., Wilson, 564 F.3d at 704.
        For example, the news media also severely criticized Dr. Hayne between
2006 and 2008; he filed a defamation action in 2009 against the Innocence
Project, based on its criticisms of him; and a Mississippi Supreme Court Justice
criticized Dr. Hayne as unqualified in 2007. Edmonds v. State, 955 So. 2d 787,
802-03 (Miss. 2007) (Diaz, P.J., concurring). Koon’s assertion that he could not
have learned of Edmonds from information in the Louisiana State Penitentiary
law library is both implausible and immaterial in the light of the public
information about Dr. Hayne that was available for several years prior to July
2011.
        Koon discovered, or should have discovered, the factual predicate of his
claim about Dr. Hayne more than a year before he filed the state habeas
petition that would have tolled the limitation period. Because the limitation
period expired before it was tolled, Koon’s petition is untimely.
        AFFIRMED.




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