     Case: 08-60687     Document: 00511003196          Page: 1    Date Filed: 01/13/2010



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

                                                                             FILED
                                                                          January 13, 2010
                                     No. 08-60687
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DAVID ALLEN JONES

                                                   Petitioner-Appellant

v.

RONALD KING, Superintendent, Mississippi Department of Corrections/South
Mississippi Correctional Institution

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 5:07-CV-182


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        This court granted a certificate of appealability to David Allen Jones,
Mississippi prisoner # K8529, to determine whether any or all of the claims
raised in his 28 U.S.C. § 2254 application are timely under the provisions of 28
U.S.C. § 2244(d)(1)(D). In Jones’s § 2254 application, he challenges his murder
conviction and sentence of life imprisonment and asserts that the prosecution
knowingly relied on false evidence, the prosecution failed to disclose evidence


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60687    Document: 00511003196 Page: 2        Date Filed: 01/13/2010
                                 No. 08-60687

favorable to the defense, he was denied the right to confront witnesses, and he
was denied the effective assistance of trial counsel. Jones contends that the
district court erred by applying 28 U.S.C. § 2244(d)(1)(A), the date on which his
conviction became final, as the commencement date of the one-year limitation
period, rather than § 2244(d)(1)(D), the date on which the factual predicate of his
claims could have been discovered through due diligence. He argues that the
limitation period should commence on the date he obtained from a fellow inmate
a letter addressed to an unknown person from the American Board of Pathology
regarding the qualifications of Dr. Steven Hayne, the coroner who performed the
autopsy of the victim. Jones argues that his § 2254 application is timely if the
one-year limitation period commenced on this date.
      An order dismissing a habeas application as time barred is subject to de
novo review.   Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008).           The
Antiterrorism and Effective Death Penalty Act (AEDPA) established a one-year
limitation period during which a person in state custody may file an application
for a federal writ of habeas corpus. § 2244(d). The limitation period runs from
“the latest of” several dates, which are set forth in subsections (A) through (D).
§ 2244(d)(1). Subsection (A) provides that the limitation period runs from “the
date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” § 2244(d)(1)(A). Subsection
(D) provides that the limitation period runs from “the date on which the factual
predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” § 2244(d)(1)(D).
      Jones does not explain how this information serves as the factual predicate
for his claim of ineffective assistance of counsel. With respect to Jones’s claims
of prosecutorial misconduct, Jones has failed to establish that the prosecution
prevented him from discovering the factual basis of his claims during the
limitation period by withholding exculpatory evidence regarding Dr. Hayne’s
qualifications or by relying on Dr. Hayne’s false testimony regarding his

                                        2
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                                No. 08-60687

qualifications. See Hughes v. Johnson, 191 F.3d 607, 629-30 (5th Cir. 1999);
Kutzner v. Johnson, 242 F.3d 605, 609 (5th Cir. 2001).
      Jones has not otherwise established that he could not have previously
discovered the factual predicate for his claims through the exercise of due
diligence. Accordingly, Jones’s argument that § 2244(d)(1)(D) should apply and
that the limitations period did not begin to run until he received the letter is
without merit. Rather, § 2244(d)(1)(A) governs this case, and the district court
correctly determined that Jones’s application was untimely.
      The judgment of the district court is AFFIRMED.




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