* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41364

Summary Calendar

JAMES BRUCE MULLINS

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:06-CV-257

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

This court granted a certificate of appealability to James Bruce Mullins,

Texas prisoner # 1160045, to determine whether the district court correctly

determined that Mullins’s 28 U.S.C. § 2254 application was time barred. In

Mullins’s § 2254 application he challenged his guilty-plea convictions of

possession of a firearm by a felon and aggravated assault against a public

servant and the resulting concurrent sentences of 10 and 20 years of

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 06-41364

2

imprisonment. Mullins contends that the district court erred by applying 28

U.S.C. § 2244(d)(1)(A), the date on which Mullins’s conviction became final, as

the limitation period commencement date, rather than § 2244(d)(1)(D), the date

on which the factual predicate of the claim could have been discovered through

due diligence. He argues that pursuant to § 2244(d)(1)(D), the limitation period

commencement date should be the date that he received an order of the Texas

State Board of Examining Psychologists (TSBEP), which reprimanded the

psychologist who examined Mullins in his criminal case for his work in Mullins’s

criminal proceeding. Mullins insists that the TSBEP order of reprimand forms

the factual predicate for his constitutional claims and that, if the date that he

received the order is used as the limitation commencement date, his § 2254

application would be timely.

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). Mullins

asserted in the instant § 2254 application that he was denied due process

because the psychologist’s conclusions were faulty, the faulty report was used as

a basis for his guilty plea, and the trial court and his counsel should have

investigated the issue. Because Mullins’s claims are essentially a challenge to

his guilty plea, the TSBEP order of reprimand is not the basis for Mullins’s §

2254 claims. Rather, that order provides support for Mullins’s claims. This

conclusion is also supported by review of Mullins’s allegations in his initial state

habeas application, which he filed prior to receiving the TSBEP order of

reprimand. Initially, Mullins challenged his guilty plea based upon ineffective

assistance of counsel, contending that (1) his attorney was ineffective for failing

to investigate the issue of his sanity, (2) his attorney coerced him into pleading

guilty by telling him that he did not have an insanity defense, and (3) he was

mentally incompetent when he entered the guilty plea. Mullins attached

diagnostic reports to his state habeas application to contradict the conclusions

set forth in the psychologist’s report that was used in Mullins’s criminal
No. 06-41364

3

proceeding. As the TSBEP order of reprimand is merely support for Mullins’s

repeated attempts to challenge his guilty plea, the order does not form the

factual predicate for his claims, as contemplated by § 2244(b)(2)(D). See

Flanagan v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998). As such, Mullins’s

contention that § 2244(d)(1)(D) should apply and the statue of limitations did not

begin to run until he received the TSBEP order is without merit. Rather, the

“general rule” of § 2244(d)(1)(A), which the district court applied, governs this

case. See Flanagan v. Johnson, 154 F.3d at 199.

Mullins does not address the district court’s analysis and conclusion under

§ 2244(d)(1)(A) that his § 2254 application is time barred. He also does not

address the district court’s conclusion that equitable tolling was not warranted.

He has therefore abandoned these issues. See Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987); FED. R. APP. P. 28(a)(9).

For the foregoing reasons, the judgement of the district court is

AFFIRMED.