NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0220n.06
No. 08-2269
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BEN J AMI

N MCCOY, Petitioner-Appellant,

v. KURT J ONES, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) On Appea l from the United States Di strict Court for the Easter n District of Michig an

Be fore : GI BB ONS and SUTTON, Circ uit J udg es; and AD AMS, District J udg e. *

ADAMS, District J udg e. Petitioner-Appellant Be njamin McCoy appea ls the denial of his habea s corpus pe tition. Beca use the district cour

t made no er

ror in its review , we a ffirm.
I On J une 4, 2000, Martel Wil son was shot an d k i l l ed o u t s ide a Detroit club known as the
Danc e Fa ctory

. At the time, W i l s o n was with two acqua intances, Hombre Foster and Quentin
L eaphe art. Foster was also shot during the incident, but he survived. As a re s u l t of the incident, McCoy wa s charg ed with one count of first-deg ree murder, two counts of assault with intent to commit murder, and one count of possessing a fire arm during the commission of a fe lony

. I n evalua ting McCoy ’s direc t appea l, the Michig an Court of Appea ls analy zed McCoy ’s trial
proce eding s as follows:

The Honor able John R. Adams, United St ates District J udg e for the Northern District of * Ohio, sitti ng by

desig nation.No. 08-2269

Benjamin Mc Coy v. Kurt Jones I n his opening statement, defe nse counsel admitted that defe ndant, twenty -one y ear s of age at t he ti me of the offenses, shot the decedent, but indicated th at he did so in self-de fense

. At trial, Hombre Foster , the survi v i n g victim, testified that he was upset with defe n d an t , wh om he persona lly did not know, beca use a few wee ks befor e the shooting he was at the Danc e Fa ctory when defe ndant, without provocation, punched him. Def endant ran out of the club chase d by Foster , Wil son, and Quentin L eaphe art. Foster testified that on the night of the murder, he was ag ain at the Danc e Fa ctory when he saw defe ndant. A short co n frontation occur red, and defe ndant and his associate s left the club. Thirty minutes later, Foster and Wil son went outside to meet L eaphe art, who was driving them home. They g ot into L eaphe art’s car and waited for another friend. At this tim e, Foster saw defe ndant in a car which left and returne d fiftee n minutes later. One of defe ndant’s friends approa ched L eaphe art’s car ; he turned and went back toward defe ndant. Def endant then left his car , ran t o wa rd Foster and his friends and beg an shooting. Foster and L ea p h eart ran from the car : L eaphe art esca

ped i n j u ry , Fo ster was struck by g unfire and Wil son was not so fortunate -he die d as the re sult of five g unshot wounds. Quentin L eaphe art g ave a simil ar acc ount of the events on the night in question. He acknow ledg ed that the dece dent had a .25 ca liber handg un in his jacket pocke t, but left it in the car when he enter ed the Danc e Fa ctory

. He testified that no one in his car fired a wea pon at def

endant. Keny a Carter , a cousin of one of defe ndant’s friends, testified that when she left the club on the night of the shooting, she saw defe ndant walk toward her in the direc tion of the victims’ car , car

ry ing a long black g un. After her cousin advised her to g o back inside, Carter turned around and heade d toward a building. Acc o rdi ng to Carter , defe ndant stated “You talking ____” to the individuals in the car befo re s h e h ea rd g unshots. Carter did not see a ny one else shooting or w ith a g un. The subsequent police investigation turned up ten fired car tridg es at the crime scene ; nine wer e fired from defe ndant’s rifle and the tenth casing was fired from a differ ent wea pon. A police off

icer testified that when he repor ted to the cr ime scene , he saw a toy pistol on the back seat of the victims’ car . The office r did not see a .25 caliber handg un in the car

. A Detroit Police Depa

rtment investigator testified that defe ndant gav e a custodial statement to her on Aug u s t 3 , 2000. I n his statement, which was admitted into evidenc e at trial, defe ndant stated that a few wee ks befor e the shooting he “g ot into it with some g uy s” while at the Danc e Fa ct o ry . On t h e night of J une 3, 2000, - 2 -No. 08-2269

Benjamin Mc Coy v. Kurt Jones defe ndant went to the club with two friends. The re he saw the y oung man who was involved in the previous al t er cation. Def endant went out the back door and waited in the parking lot. Def

endant then saw the y oung man with whom he had previously foug ht standing with hi s friends next to a car . Def endant stated that he hear d som eo n e say , “He g ot a g un.” Def endant then returne d to his own car , retrie ved a rifle and ran back to “whe re th e gu y s we re .” Defenda nt started shooti ng at t he car. After firing five shots, defe ndant hear d g unfire and started shooting ag ain befor e he ran back to his car and drove awa y . Def endant estimated that he fired a total of seven to ni n e s h o t s . Def

endant claimed t hat he fired at the y oung men because his friend said “He g ot a g un.” Def endant “g ot mad” an d re t u rned to his car to g et his rifle. Acc ording to defe ndant, “I started s h o oting at them beca use I didn’t want them to start shooting at us.”
At trial, no witnesses wer e called o n b eh al f of the defe nse and the jury found defe ndant g uilty as char g ed. Subsequently , following a hear ing, the trial court denied defe ndant’s motions for a new trial and an evidentiar y hear ing reg arding his c laims of ineff ective a ssistance of c ounsel. People v. McCoy , 2003 WL 21995222, at *1-2 (Mich. Ct. App. Aug

. 21, 2003). The Michig an Court of Appea ls went on to rema nd the matter for an evidentiar y hear ing on McCoy ’s claims of ineffe ctive assistance of trial counsel. The appea ls court also reve rsed McCoy ’s first-deg ree murder conviction, finding err or in the trial cour t’s jury instructions. The S tate of Michig an then soug ht discretionar y revie w b y t h e Mi chig an S upreme Court. The Mi ch i gan S u p reme Court acc epted review, and on J anuar y 9, 2004, that court overturned the appellate decision and reinstated McCoy ’s murder conviction. There afte r, McCoy pursued fede ral habea s relief

under 28 U .S.C. § 2254.
I n order to fully resolve the petition , t h e d i s t ri ct court held a leng thy evidentiar y hear ing. Following that hear ing, the district court found no s u pport for McCoy ’s claimed err ors. McCoy timely appea led and the ma tter now a ppear s befor e this Court.

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Benjamin Mc Coy v. Kurt Jones II Gene rally , McCoy ’s petition is subject to revie w under the un d er the Antiterror ism and Effe ctive Dea th Penalty Act of 1996 (AEDPA) , Pub. L

. No. 104-132, 110 Stat. 1214 (1996), under which a fede ral court may not g rant a writ of habea s corpus unless the state court adjudication on the merits either: (1 ) re sulted in a decision that was contra ry to, or involved an unrea so n ab l e application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a d ec i s i o n t h at was based on an unrea sonable deter mination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

. 28 U.S.C. § 2254(d). The United States Supreme Court in W illiams v. Taylor , 529 U.S. 362, 412-13 (2000), e x plained this standard a s follows: Under the “contr ary to” clause , a fede ral habea s court may g rant the writ if the state court arr ives at a conclusion opposite to tha t r eac hed by this Court on a question of law or if the state court d ec i d es a case differ ently than this Court has on a set of material l y i n distinguishable fac ts. Under the “unre asonable application” clause , a fede ral habea s court m ay g rant the writ if the state court identifies the corr ect g overning leg al principle f rom this Court’s decisions but unreasona bly applies that principle to the fa cts of the pr isoner’s c ase. Moreove r, when evalua ting the “u n re as onable application” prong , a habea s court does not focus

mere ly upon whether the state court decision was err oneous or incorre ct; rathe r, a fede ral court may issue a wr it of habea s corpus only if the state court’s application of clea rly -established fede ral law

was objectively unrea sonable. See id. at 409-11. Finally , “[t] his court revie ws a district court’s leg al conclusions in a habea s proce eding de novo and its fac tual finding s for clea r error.” Gree r v.

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Benjamin Mc Coy v. Kurt Jones Mitchell , 264 F.3 d 6 6 3 , 6 7 1 (6t h Cir. 2001) (citing Lucas v. O’De a , 179 F.3d 412, 416 (6th Cir. 1999)). McCoy has asser

ted that AEDPA’s defe rential standard of revie w is inapplicable beca use the

state cour t did not have befor e it c ritical evidenc e that was later de veloped in a f eder al evidentiar

y h ea ring

. McCoy is corr ect that his ineffe ctive-a ssistance claims larg ely rely on evidenc e that was
not in the state-c ourt record. The Michig an Supreme Court denied McCoy ’s reque st for a postconviction evidentiar

y hear ing and dispatched his claims with one sentenc e: “De fenda nt... has failed

to meet his burden of proving that defe nse counsel’s actions wer e ineffe ctive and wer e not a matter of trial strateg y .” People v. McCoy , 672 N.W.2d 853, 853 (Mich. 2004). B eca use the state courts did not g ive him a

n opportunity to introduce new evidenc e supporting his claims, the district court
g rante d McCoy a fede ral evidentiar y hear ing, which was held in J anuar y 2008. McCoy arg ues that, b ec au s e the M ichig an S upreme Court reje cted his claims without the benefit of t he new eviden ce i n t ro d u ce d i n the fede ral hear ing, it did not adjudicate his claims on the merits and there for e AEDPA’s defe rential s t an d ar d o f revie w, 28 U.S.C § 2254(d), does not apply

. We previously

acc epted this very arg ument in Brown v. Smith , 551 F.3d 424 (6th Cir. 2008), where we reviewed the petitioner’s ineffe ctive-a ssistance claim under the pre- AEDPA standard of revie w: “ de novo for questions of law (including mix ed questions of law and fac t), and clea r err or for questions of fac t” beca use the Michig an courts had ref used his reque st for an evidentiar y hear ing. Id. at 429-30. The Supreme Court’s de cision in Cullen v. Pinholster , 131 S.Ct . 1388 (2011), r aises ser ious questions about Brown ’s continuing vitality

. I n Pinholster , the Court held that habea s revie w of claims that

are adjudicate d on the merits by a state court “is limit ed to the rec ord that was befor e the state court.” - 5 -No. 08-2269

Benjamin Mc Coy v. Kurt Jones Id. at 1398. “[E] vidence introduced in fede ral court,” the Court held, “has no bear ing on ... revie w” of such claims. Id. at 1400. W hether Brown survives Pinholster need not detain us here , though, beca use McCoy ’s claims fail even if we consider the new evidenc e introduced in the fede ral hear ing under the less defe rential pre- AEDPA standard of revie w. See W elsh v. Lafler , 445 Fe d. App’x 844, 849 (6th Cir. 2011).
III McCoy prese nts four questions for revie w. Eac h question, howeve r, contai n s a co m mon
arg ument – that McCoy ’s counsel was ineffe ctive. McCoy raises three claims that his trial counsel

was ineffe ctive and one additional claim that appellate counsel was ineffe ctive. As the district court committed no error

in resolving these issues, we aff irm.
IV This Court has time and ag ain explained the standard appli cable for revie wing claims of ineffe ctive assistance of counsel. I n addre ssing these claims of ineffe ctive assistance of counsel, we follow the two-par

t test laid out by Strickland v. W ashington , 466 U.S. 668 (1984). As require d by that analy tical fra mework: First , the defe ndant must show that counsel’s perf ormanc e was defic ient. This require s showing that counsel made err ors so serious that counsel was not functioning as the “counse l” g uara nteed the defe ndant by the Six th Amendment. Second, the defe ndant must show that the defic ient p erf ormanc e prejudice d the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable. Id. at 687.

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Benjamin Mc Coy v. Kurt Jones I n Groseclose v. Bell , 130 F.3d 1161, 1167 (6th Cir. 1997), discussing the first prong of the Strickland

analy sis, this Court held that: The [S upreme ] Court cautioned that in underta king an ineffe ctive-a ssistance revie w, “[j] udicial scrutiny of counsel’s perf ormanc e must be highly defe rential,” and must avoid the “sec ond-g uess[ing o f] counsel' s assistance ..., [as] it is all too easy for a court, examining counsel' s defe nse afte r it has proved unsucce ssful, to conclude that a part i cular act or omission of counsel was unrea sonable.” Strickland , 466 U.S. at 689.

... I n order to avoid “the distorting eff ects of hindsight,” a revie wing “cour t must i ndulge a st rong presumption that counsel’s conduct falls within the wide range o f rea sonable profe ssional assistance ; t h at i s, the defe ndant must overc ome the presumption that

... the challeng ed action ‘mig ht be considere d sound trial strateg y .’” Id

. (citation omitted). Fur thermore , in evalua tin g the prejudice prong , “[i] t is not enoug h for the defe ndant to show that the er rors ha d some conc eivable e ffe ct on the outcome of the proc eeding .” Strickland , 466 U.S. at 693. I ndeed, “[v] irtually ever y act or omission of counsel would meet that test, and not ever

y err or that conce ivably could have influence d the outcome u n d er m ines the reliability of the result of the proce eding .” Id. (citation omitted). Rather, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional err ors, t he result of t he
proce eding would have been differ ent. A rea sonable probability is a probability sufficie nt to undermine c onfidenc e in the outcome.” Id . at 694.
V 1. TRIAL COUNSEL
A. Me anin gfu l Investigation McCoy first claims that the district c ourt err ed when it f ailed to f ind me rit in his c laim tha t his trial counsel did not conduct a meaning ful investigation. W e disag ree .

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Benjamin Mc Coy v. Kurt Jones McCoy ’s first arg ument focuse s upon a claim that his counsel failed to investigate afte r being informed that Robert and Roberto Carter would testify favor ably on his behalf

. I n support, McCoy relies upon the Carter brothers’ testimony at the evidentiar y hear ing. Reliance on this testimony is misplaced for

sever al re asons. First, ther e does not a

ppear to be any dispute that counsel wa s told that the Carter brothers would provide favor able testimony

. Howeve r, as ear ly as Aug ust 30, 2000, counsel was also awa re of the numerous unsucce ssful attempts made by law enfor ceme nt officia ls to interview the brothers. During the hear ing conducte d t hat day , counsel was informed that neither Carter brother would
appea r. Additionally , counsel was awa re that both Carter s wer e on the prosec ution witness list and that both had g iven statements to police that inculpa ted McCoy

. I n essenc e, McCoy asser

ts that s i m ply beca

use he told his counsel that the Carter s would offe r favor able testimony , his counsel was obliga ted to investigate. The district court found no merit in this contention, nor does this Court.
I n support of his claim, McCoy relies upon Ramonez v. B er g h u i s , 490 F.3d 482 (6th Cir. 2007). Ramonez notes “that the investiga tion leading to the choice of a so-ca lled trial strateg y must itself have been rea sonably conducte d lest the ‘strate g ic’ choice ere cted u p on it rest on a rotten foundation.” Id. at 488 (citing Towns v. Smith , 395 F.3d 251, 258 (6th Cir. 2005)). This matter, howeve r, is easily distinguishable from Ramonez

. I n finding merit to the claim in Ramonez , the Court analy

zed the specific fac ts known to defense counsel a s follows:
But that arg ument is at odds with other cruc ial parts of the rec ord. Months befor e trial Ramonez beg an insisti ng to Moore that the three witnesses wer e prese nt at the time and could tell h i m wh at re ally happene d at Fox’s house. At the same preliminary - 8 -No. 08-2269

Benjamin Mc Coy v. Kurt Jones hear ing on w hich B erg huis relies, F ox testified that Ramonez kic ked in he r door to g ain entry to the house. S uch asse rted a ction was c lear ly not inside the house, such as t o rende r t he observers outsi de the hou se unable to verify or di spute the parties’ diverg ent versions. Moreove r, Fox also testified at that same hear ing that three men witnessed the assault continue outside on her front porch (eve n stating that on e of them assisted Ramonez by cover ing her mout h to keep he r fr om y elling)

. I f Moore was seeking to show that Fox was em b ellishing her story of the alterc ation with Ram o n ez , why would he not also have found it useful to look into this part of her tale? Wit h such information available to him, how could he ratio n al l y have conclude d that neither Charles no r R ene nor Hac kett could pos sibly have any thing to add to Ramonez’s case ?
Ramonez , 490 F.3d a

t 488. Unlike counsel i n R amonez , McCoy ’s counsel had more than s ufficie nt fac ts to deter mine that it would be fruitless to pursue inves t i gat i n g the Carter brothers’ testimony

. First, law enfor ceme nt had been repe atedly unsucce ssful in secur ing an appea ranc e by the brothers. Second,
any statements favor able to McC o y would stand in direc t contra diction of police statements previously g iven by the brothers. Thus, counsel had more than sufficie nt information to deter mine that it would be fruitless to pursue the Carter brothers and attempt to inter view them. As such, the district court proper ly deter mined that McCoy had not satisfied the defic ient-per formanc e prong of Strickland.
Fur thermore , the testimony offe red by the Carter brothers during th e evidentiar y hear ing demonstrated that McCoy also could not satisfy the prejudice prong of a Strickland analy sis. First,

as indicated above, the offe red testimony direc tly contra dicted prior statements made by the brothers to the police. More over, the district court prope rly noted as follows: The Carter s’ testimony was suspect for ad d i t ional rea sons. Roberto Carter ’s testimony that g unshots c ame from the Danc e Fa ctory was contra ry to the evidenc e at trial. R o b er t C arter’s testimony that he hear d g unshots befor e he saw Petitioner - 9 -No. 08-2269

Benjamin Mc Coy v. Kurt Jones with a g un conflicte d with the evidenc e at trial and his own statement to the police. Furthermore , he claimed that he did not rec all signing his aff idavit, which wa s favor able to Petitioner.
Pet i tioner’s testimony was contra ry to the ey ewitness testimony at trial and his statement to I nvestig ator Simon. I f the Court wer e to believe Petitioner, the Carter s, and Ora Parker , the Court would have to conclude that ever y one who testified at trial or during the due dilig ence hear ing c onspired to mischara cter ize the fac ts. R. 63 at 15-16. Be cause the Carter s’ testimony was inconsistent with their prior statements as well

as the testimony of other witnesses, the district court’s conclusion reg arding the cre dibilit y of the
Carter s is not clearly

err oneous. Moreove r, McCoy ’s cur

rent a ssertion that the Carte rs would have suppor ted a c laim that a third person was the shoote r i s l i k ewise unhelpful to his failure -to-investig ate claim. Such a
statement would stand in stark contra st to the evidenc e that 1) McCoy admitted to firing numerous shots at the victims, and 2) that 9 of 10 shells rec overe d had come from McCoy ’s rifle. Thus, it can hardly be said that there is a rea sonable likelihood that the result of the t ri al would have been differ ent i f counsel had investi g ated and offe red any of t he numerous theories of fered for the first time by the Carter s during the fe dera l evidentiary hear ing.
Ba sed upon the above, assuming a r g u en d o t hat counsel was defic ient for failing to investiga te, McCoy cannot demonstrate prejudice stemming from this defic iency

. Acc ording ly , the district court prope rly

found no merit in this gr ound for r elief.
B. Testif ying on his ow n behal f McCoy next arg ues that his counsel was ineffe ctive for discourag ing him from testify ing on his own behalf. T his arg ument suffe rs from a simil arly fata l flaw.

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Benjamin Mc Coy v. Kurt Jones During the evidentiar

y hear ing, McCoy ’s trial counsel explained in detail why he advised his client not to testify on his own behalf

. Counsel believed that self-de fense could be prese nted throug h the testimony of the prosec ution’s own witnesses. Counsel also explained that M cC o y h ad demonstrated a signific ant temper during trial prepa ration that counsel fea

red would appea

r on the stand and do sig nificant damag e to the cla im of self-de fense

. I n support of t he cla i m , M cC o y t estified that he would have told the j ury that he had been fired upon befor e, during , and afte r the proce ss of retrie ving his rifle. Of course , this testimony ag ain direc tly contra dicts McCoy ’s own statement t o the police a nd the phy sical evide nce at trial. Such major discrepa

ncies cast signific ant doubt ove r whether McCoy ever informed his counsel that his testimony would include these fac ts. Howeve r, assuming that M cC o y t o ld his counsel this information, counsel was still left with the decision over whether to encour ag e McCoy to testify knowing that he could be impeache d by his pr ior statement and likely lose his temper unde r toug h

cr o s s -ex amination. Given those fac ts, the district court did not err in finding that counsel’ s perf ormanc e wa s not deficient.
Fur thermore , the trial court adequately protec ted McCoy ’s rig ht to testify

. Counsel did not simply inform the Court that his client would not testify

. Rather, trial counsel eng ag ed in a colloquy direc tly with McCoy on the rec ord to ensure that he was knowing ly and voluntarily waiving his rig ht

to testify on his behalf

. McCoy ’s self-se rving testimony that he simply answe red “Ye s” to all of the questions in the colloquy beca use his counsel told him to is not sufficie nt to find his waiver less than knowing and voluntary

. Acc ording ly , the district court did not err in reje cting this g round for relief

.

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Benjamin Mc Coy v. Kurt Jones C. Mot ion to Su ppress Wit h respe ct to his trial counsel, McCoy ’s final arg ument focuse s upon his counsel’s failure

to file a motion to suppress. McCoy ’s claimed err or focuse s upon his asser tions that d u ri ng his custodial interrog ation he was struck by an officer and that his repe ated r equests for counsel were ignor ed by office rs. I n this reg ard, the district court found that McCoy ’s counsel was cre dible when he testified that Mc Coy

had neve r informe d him of these fa cts. The district court’s cre dibilit y deter mination is fully consistent with t h e rec ord and is not clea rly err oneous. There is nothing to support McCoy ’s claim that his counsel simply ignor ed a viable suppression arg

ument. Fur

thermore , g iven McCoy ’s consistently shifting testimony a b o u t h is involvement in the events leading to his conviction, this Court ag ree s that McCoy ’s testimony lacke d

cr ed ibilit y . Acc ording ly , the district court committed no err or in resolving McCoy ’s claims of ineffe ctive assistanc e of tria l counsel.
2. AP P ELL ATE COUNSEL Wit h respe ct to his appellate counsel, McCoy claims ineffe ctiveness based upon the failure of his counsel to file a brief in opposition to the State of Michig an’s reque st for discretionar y revie w. This Court finds no err or in t h e d istrict court’s conclusion that this alleg ed err or was untimely pursued.
T h e AEDPA established a one-y ear limit ations period for habea s petitions broug ht b y prisoners challeng ing state-c ourt convictions. 28 U.S.C. § 2244(d); McCray v. Vasbinder , 499 F.3d 568, 5 7 1 (6th Cir. 2007). The limit ations period beg ins to run from the latest of four enumer ated

events. See 28 U.S.C. § 2244(d)( 1). McCoy relies on the fourth of these events: “the date on which - 12 -No. 08-2269

Benjamin Mc Coy v. Kurt Jones the fac tual predic ate of the claim or claims presen t ed co u ld have been discovere d throug h the exercise of

due dilige nce.” 28 U.S.C. § 2244(d)(1)( D).
I n finding this ground f

or re lief to be time-ba

rre d, the district court noted a s follows: Petitioner contends that evidenc e supporting hi s claim was not avai l ab l e until J uly 14, 2007, when his curr ent attorney s discovere d that his appellate attorney prepa red, but never filed, a response to t h e S tate’s brief in the Michig an Supreme Court. Although Petitioner may not have discovere d his former attorney ’s unfiled response until J uly 14, 2007, he appea rs t o have known long befor e then that his appellate attorney did not file a response in the Michig an Supreme Court. He no t es i n his habea s petition that the State filed an application for leave to appea l in the Michig an Supreme Court and that his appellate attorney filed a motion for rec onsideration afte r the state supreme court reve rsed the Michig an Court of Appea ls. H e also notes that the state supreme court’s docket ref lects his l etter of inquiry about the case . I t is obvious from these alleg ations that Petitioner had ac cess to the Michig an Supreme Court’s docket a

nd knew wha

t was filed a

nd not filed in the ca se. R. 63 at 7. On appea l, McCoy does not appea r to challeng e that he had knowledg e for a signific ant period of time that his appellate counsel had failed to file a brief. I nstead, on appea l, McCoy arg ues that while he “mig ht have been able to find out in 2004 that his appellate attorney did not file a brief, he could not have known why his attorney did not file a brief

.” Appe llant’s Br ief a t 56.
I n making such an arg ument, M cC o y s i m p ly ignor es the lang uag e of 28 U.S.C. §
2 244(d)( 1)(D)

. The AEDPA place s a burden on McCoy to exercise due diligenc e to disco v er t h e fac tual predic ate of his claims. McCoy knew y ear s befor e his petition that no brief had been filed. Hi s o wn co m plete failure to investigate the rea son for that act does not satisfy his require d d u e diligenc e. Acc ording ly , the district court committed no err or in finding that this claim would be time-barr ed by

the AEDPA statute of

limit ations.

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Benjamin Mc Coy v. Kurt Jones VI
For the rea sons descr ibed above, we AF F IRM the dis tr ic t c o u r t’ s d e nial of McCoy ’s petition.

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