IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30090

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

November 6, 2014

Lyle W. Cayce

Clerk

 

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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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