Thomas D. Arthur v. Richard F. Allen

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 21, 2006
No. 03-14304
THOMAS K. KAHN
________________________
CLERK

D.C. Docket No. 01-00983-CV-N-S

THOMAS D. ARTHUR,

Petitioner-Appellant,

versus

RICHARD F. ALLEN,

Respondent-Appellee.
__________________________

Appeal from the United States District Court for the
Northern District of Alabama
_________________________
(June 21, 2006)

BEFORE: BIRCH, BLACK and BARKETT, Circuit Judges.

BIRCH, Circuit Judge:

An Alabama jury found petitioner Thomas D. Arthur (“Arthur”) guilty of

capital murder and recommended that he be sentenced to death. After exhausting

his state court remedies, Arthur filed a federal habeas corpus petition pursuant to
28 U.S.C. § 2254. The district court denied Arthur’s habeas petition, but granted a

certificate of appealability (“COA”) on four issues. After a thorough review of the

record, and having the benefit of oral argument and the parties’ briefs, we

AFFIRM the district court’s judgment denying Arthur habeas relief.

I. BACKGROUND

A. Facts1

On 1 February 1982, at 9:12 A.M., police officers were called to the

residence of Mary Jewel “Judy” Wicker (“Wicker”) and Troy Wicker (“Troy”) in

Muscle Shoals, Alabama. The officers found Troy murdered in his bed; his wife,

Wicker, lying on the floor with traces of blood on her face; and her sister, Teresa

Rowland (“Rowland”), kneeling beside her. R1-22, Exh. Vol. 6 at 315-16. The

investigators found four .22 caliber expended cartridge cases on the bed. An

autopsy revealed that Troy’s death was caused by a close range wound through his

right eye from a .22 caliber long rifle bullet which severed his brain stem.

Wicker told the investigators that, after she had dropped her children off at

school, she had returned to find an African American man in her home. She said

1
Except as otherwise cited, the facts are taken from opinions of the Alabama Court of
Criminal Appeals. See Arthur v. State, 711 So. 2d 1031, 1043 n.1 (Ala. Crim. App. 1996) (“Arthur
VI”) (referencing the “earlier rendition of the facts found at Arthur v. State, 575 So. 2d 1165, 1167-
70 (Ala. Crim. App. 1990) [(“Arthur IV”)] for an overall picture of the evolution of this case”).

2
that the man raped her, knocked her unconscious, and shot Troy. Wicker was

subsequently charged and convicted of murdering Troy to collect insurance

proceeds, and was sentenced to life imprisonment. See Wicker v. State, 433 So.

2d 1190 (Ala. Crim. App. 1983). Some time after Wicker’s conviction, the

prosecuting district attorney appeared before the parole board to inquire about the

possibility of an early release in exchange for Wicker’s testimony against Arthur.

Wicker’s daughter, Tina Jenkins, retained attorney Gary Alverson to appear at this

meeting on her behalf. Alverson was later hired as a state prosecutor.

In 1991, during Arthur’s trial for Troy’s murder, Alverson represented the

state and Wicker testified as the prosecution’s main witness. She explained that

she had known Arthur since they were both young and worked at Tidwell Homes.

She revealed that she, Rowland, and Rowland’s boyfriend, Theron McKinney

(“McKinney”) had discussed killing Troy beginning in early 1981. R1-22, Exh.

Vol. 9 at 747-48. Wicker explained that Troy was physically violent with her, and

that Rowland and Troy often argued when Troy threatened to turn Rowland in to

the police for the arson on her home which he had committed for her. Wicker

recalled that she received a telephone call from Arthur in November 1981 in which

he told her that he had been “hired to do the job . . . [to] kill [her] husband.” Id. at

748-51. She saw him the next week and began a sexual relationship with him. At

3
that time, Arthur was residing at the Decatur Work Release Center and was

assigned to work at Reagin Mobile Homes.

Wicker testified that she knew that the murder was to take place on 1

February 1982, and that she had agreed to tell the police that her home was

burglarized and that her husband was murdered by an African American man. She

explained that, on the day of the murder, she met Rowland and Arthur at the

airport. She stated that Arthur, who had been drinking and was carrying a gun and

a garbage bag, had painted his face black and put on an Afro wig and black

gloves. She testified that Arthur got into her car and, while driving him to her

house, she urged him not to kill Troy. She stated that, after they arrived at her

house, she heard a shot and that Arthur then struck her, knocked out several of her

teeth, and lacerated her lip. Wicker admitted that, after she collected $90,000 in

insurance proceeds from Troy’s death, she paid Arthur $10,000, paid Rowland

$6,000, and gave McKinney jewelry and a car for their assistance in the murder.

She also admitted that she continued her relationship with Arthur after the murder.

Wicker’s testimony was corroborated by other witnesses and evidence.

Muscle Shoals Police Sergeant Eddie Lang testified that, while he was working at

a school crossing about 7:40 A.M. on 1 February, he observed Wicker driving east

toward the airport and, about 10 minutes later, returning toward her house. He did

4
not see anyone in the car with her during either trip. The work release facility’s

records for the day of the murder showed that Arthur had signed out of work

release at 6:00 A.M. and had not returned until 7:50 P.M. Joel Reagin, the owner

of Reagin Mobile Homes, was unable to say whether Arthur was at work on the

day of the murder. He remembered, however, having seen Wicker and Arthur

together at Reagin Mobile Homes while Arthur was working there.

Patricia Yarborough Green, a waitress at Cher’s Lounge, testified that, on

31 January 1981, the day before the murder, Arthur asked her to send a friend to

purchase .22 caliber Mini-Mag long rifle bullets for him and gave her $10 for the

purchase. She said that, while they were waiting for the friend to return with the

bullets, Arthur told her that they would be used to kill someone. She gave the

bullets to Arthur when she received them. Debra Lynn Phillips Tynes, the

manager of Cher’s, went to lunch with Arthur on the day of the murder. While

they were out, Arthur drove to a bridge over the Tennessee River, stopped the car,

and dropped a black garbage bag into the river. She said that he explained to her

that he wanted to get rid of some old memories. On the day of the murder,

Wicker’s automobile was found in the parking lot at Northwest Junior College in

Tuscumbia, Alabama. Inside the car, officers found Wicker’s purse and an Afro

wig; the inside of the wig contained no human hairs.

5
 In March 1982, officials at the work release center discovered a discrepancy

between the amount of time that Arthur had logged as being at work and the

amount of money that he had been paid for that work, and transferred him to the

county jail pending investigation. After he left the work release center, his

personal belongings at the work release center were inventoried and a Reagin

Mobile Homes envelope containing $2000 was discovered.

In April 1982, Arthur was interviewed by a Muscle Shoals Police

Department detective and denied knowing anything about Troy’s homicide or

knowing Wicker or Rowland. When the officer confronted Arthur with contrary

information, Arthur asked to see an attorney and refused to make any further

comments.

B. Procedural History

Arthur was indicted and charged with intentionally murdering Troy by

shooting him with a pistol after having been convicted of second degree murder in

violation of Ala. Code § 13A-5-40(a)(13) (1975). He was convicted and

sentenced to death in 1982. Arthur v. State, 472 So. 2d 650, 654 (Ala. Crim. App.

1984) (“Arthur I”). The Alabama Supreme Court reversed this conviction, holding

that the details of Arthur’s prior second-degree murder conviction were

improperly admitted at trial under the identity exception to the general

6
exclusionary rule, In re Arthur, 472 So. 2d 665, 668-70 (Ala. 1985) (“Arthur II”),

and the Alabama Court of Criminal Appeals remanded the case for a new trial,

Arthur v. State, 472 So. 2d 670 (Ala. Crim. App. 1985) (“Arthur III”).

Arthur’s second trial occurred in 1987. He was again convicted, and

sentenced to death. On appeal, the Alabama Court of Criminal Appeals reversed

this conviction, holding that the admission of Arthur’s statement to a police officer

roughly two weeks after he had asserted his right to remain silent constituted plain

error because Arthur did not initiate the conversation and there was no evidence

that he had been given access to an attorney following his assertion of his right to

remain silent. Arthur v. State, 575 So. 2d 1165, 1171-75 (Ala. Crim. App. 1990)

(“Arthur IV”). The State of Alabama’s petition for writ of certiorari was denied.

In re Arthur, 575 So. 2d 1191 (Ala. 1991) (per curiam) (“Arthur V”).

In December 1991, Arthur was tried again. Before the trial began, Arthur

advised the court that he was concerned about the attorneys who had been

appointed to represent him. R1-22, Exh. Vol. 5 at Trial Transcript 15-24. He

explained that, after the reversal of his second trial in 1990, he did not hear from

his appointed counsel, William Del Grosso (“Del Grosso”) or any other attorney

until July 1991. In July 1991, he received visits at the prison from both attorney

Harold Walden and from Del Grosso. Walden indicated that Del Grosso would be

7
serving as lead counsel. During his meetings with Walden and Del Grosso, Arthur

requested that they move for the appointment of an investigator because there

were “many aspects of this case” that had never been investigated. Id. at 16-18.

Arthur explained that he attempted to communicate with Del Grosso through at

least thirteen letters and at least forty telephone calls, but did not receive a

response. Finally, in November 1991, less than one month before the trial was to

begin, Arthur was contacted by an investigator. The investigator told Arthur that

it was physically impossible to conduct the investigation that he had requested

before the trial was scheduled to begin.

Because of his concerns about Del Grosso’s representation of him, Arthur

requested leave to participate as counsel during the trial. The trial court permitted

Arthur to act as “co-counsel” with his appointed attorneys, Harold Walden and his

son, Joseph Walden, and Del Grosso, as “stand-by counsel.” R1-22, Exh. Vol. 1 at

5, 66; id., Exh. Vol. 5 at Trial Transcript 24-27. Arthur actively conducted much

of the voir dire, examinations and arguments. He cross-examined all of the

prosecution witnesses and presented four defense witnesses; he did not testify on

his own behalf. The defense witnesses testified about the crime scene, the source

of the money in Arthur’s possession, and the pressure that Green had received

from the police for testimony about the bullets. In an attempt to provide an alibi

8
defense, Arthur asked Reagin whether he remembered one of his employees, Larry

Whitman, saying that he had seen Arthur on the morning of the murder. Arthur

did not, however, either reference or call potential alibi witnesses Alphonso High

or Ray Melson. The jury returned a verdict of guilty as charged at 5:05 P.M. on 5

December 1991. Id. at Exh. Vol. 11 at 1149-50.

At 5:33 P.M. on 5 December, the sentencing phase began. Id. at 1165.

Walden argued for mitigation based on (1) Arthur’s good conduct while in prison

and his participation in a program to deter crimes as a speaker in high schools; and

(2) the disproportionate punishment Arthur was facing as compared to the other

persons involved in the crime. Arthur followed Walden and argued that he should

be sentenced to death. He explained that he did not have a death wish and did not

believe that he would be executed. He elaborated that he had previously been

convicted and sentenced to death twice for Troy’s murder and both of those

convictions had been reversed on appeal. He claimed that a death sentence would

allow him to spend more time with his children during their visits while he was in

prison, provide him with a more private cell, and give him more control over his

appeal.

The jury began deliberations at 6:28 P.M. and returned an advisory verdict

of death at 7:25 P.M. Id. at 1233, 1236-37. The trial court found that the

9
aggravating factor, Arthur’s conviction for second-degree murder, outweighed the

mitigating factor, the culpability of the un-prosecuted accomplices, Rowland and

McKinney, and sentenced Arthur to death.

Following this trial, court-appointed counsel Harold Walden and Joseph

Walden were permitted to withdraw, and attorney Michael Sanderson was

appointed to represent Arthur on appeal. Kevin M. Doyle and Barry J. Fisher

were later substituted in Sanderson’s place as Arthur’s counsel for his appeals and

petitions for postconviction relief. Arthur’s third conviction was affirmed. Arthur

v. State), 711 So. 2d 1031 (Ala. Crim. App. 1996) (“Arthur VI”). While his case

was on appeal, attorney Fisher was permitted to withdraw as counsel. Arthur

appealed to the Supreme Court of Alabama. In re Arthur, 711 So. 2d 1097 (Ala.

1997) (“Arthur VII”). He was initially represented by attorney John P. Rall and,

upon his withdrawal, by attorney Lajuana Davis. Id. at 1098. The judgment of the

Alabama Court of Criminal Appeals was affirmed and the certificate of judgment

issued on 7 April 1998. Id. at 1098, 1101. Arthur did not file a petition for writ of

certiorari to the United States Supreme Court.

In “mid to late October 2000,” attorney Arnold J. Levine agreed to represent

Arthur in his state and federal postconviction relief proceedings. R1-1 at 149. In

January 2001, Arthur’s state petition for postconviction relief pursuant to Alabama

10
Rule of Criminal Procedure 32 was filed challenging his 1996 conviction and

sentence, and he moved for leave to file the postconviction petition out of time.2

On 14 March 2001, the trial court’s dismissal of the postconviction petition as

untimely was affirmed on appeal because of the “mandatory and jurisdictional”

two-year limitations period required by Alabama Rule of Criminal Procedure

32.2(c). Arthur v. State, 820 So. 2d 886, 888-90 (Ala. Crim. App. 2001) (per

curiam) (“Arthur VIII”).3 On 23 March 2001, the Supreme Court of Alabama set

Arthur’s execution date for 27 April 2001. In re Arthur, 821 So. 2d 251 (Ala.

2001) (“Arthur IX”); R1-11 at 1. His motion for rehearing of the Alabama Court

of Appeals’ affirmance of the trial court’s dismissal of his petition was denied.

Arthur VIII at 886. His petition for writ of certiorari was also denied. Arthur v.

Alabama, 535 U.S. 1053, 122 S. Ct. 1909 (2002) (“Arthur X”).4

On 20 April 2001, Arthur, represented by attorneys Levine and E. Niki

Warin, filed a federal petition for writ of habeas corpus.5 The district court stayed

2
Attorney Levine represented Arthur in these filings.
3
Levine again represented Arthur in this proceeding.
4
Levine represented Arthur in these filings.
5
In his federal habeas petition, Arthur alleged numerous claims of ineffective assistance of
trial and appellate counsel. He also maintained that the trial court erred by allowing him to act as
his own “co-counsel;” failing to determine Arthur’s competence to stand trial; failing to grant Arthur
a continuance for investigation and for his attorney to prepare an adequate defense; admitting
inadmissable evidence, hearsay, and the testimony of a perjured witness during the guilt-phase;

11
the federal petition for writ of habeas corpus pending the Alabama courts’

disposition of his state petition for postconviction relief and granted a stay of

execution. On appeal, we denied the motion to vacate the stay.6 Arthur v. Haley,

248 F.3d 1302, 1303 (11th Cir. 2001) (per curiam) (“Arthur XI”).

Following the dismissal of Arthur’s state postconviction petition, Arthur

filed a memorandum in support of his federal habeas petition.7 In the

memorandum, Arthur argued that his untimely claims should be considered

because he was actually innocent and because Alabama created an

removing several prospective jurors who did not indicate their views on capital punishment;
impermissibly failing to sequester the selected jurors; permitting the jury to engage in impermissible
conduct; failing to require the state to comply with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194
(1963); and failing to provide him with the basic tools to present a defense.
Arthur also raised other issues, arguing that the trial court erred by questioning the jurors
about their views on the death penalty but not on their views regarding a life sentence; that he was
impermissibly transferred to a county outside the county where the murder occurred; that he was
unconstitutionally indicted because he was charged twice, within the same indictment, for the same
offense and because his 1977 offense was used as an element of the offense; that he was denied
discovery and the ability to present crucial evidence; that the prosecutor improperly extracted
promises from the jurors to rely on certain evidence; that the trial court’s guilt-phase instructions
were fundamentally flawed; and that his third retrial constituted double jeopardy. He also argued
that his right to a reliable sentencing was violated when: the verdict form given to the jury only
recommended death; he was permitted to argue for death; there was no consideration of non-
statutory mitigating evidence; and the prosecutor made improper, highly prejudicial comments
during closing arguments. He also contended that the death penalty, as applied in Alabama,
constituted cruel and unusual punishment. R1-1.
6
In the appeal from the order granting a stay of execution, Arthur was represented by
attorneys Levine and Bryan A. Stevenson. Arthur XI, 248 F.3d at 1302.
7
The district court granted attorneys Suhana S. Han and Theresa Marie Trzaskoma admission
pro hac vice, and they joined Levine in the representation of Arthur. Han, Levine, and Trzaskoma
continue to represent Arthur on appeal.

12
unconstitutional impediment to his timely filing and extraordinary circumstances.

He also argued that his trial and sentencing were constitutionally defective

because the prosecutor had an irreconcilable conflict of interest, his trial and

appellate counsel were ineffective, and the trial court failed to ensure that Arthur’s

decisions to represent himself and to request the death penalty were knowing and

voluntary.

The district court dismissed Arthur’s habeas petition finding “no lawful

ground to excuse the untimeliness of the petition,” R3-55 at 1, and denied Arthur’s

motion to alter or amend judgment. The district court granted a certificate of

appealability on the claims requested by Arthur and deemed Arthur’s motion for a

certificate of appealability as his notice of appeal.

II. ISSUES

1. Whether Arthur was entitled to consideration of the merits of his habeas

petition claiming actual innocence.

2. Whether Arthur was entitled to discovery and a hearing to further

develop his actual innocence claim.

3. Whether statutory tolling should be applied to the statute of limitations

governing Arthur’s claims and whether he is entitled to discovery on this issue.

13
 4. Whether equitable tolling should be applied to the statute of limitations

governing Arthur’s claims and whether he is entitled to discovery on this issue.

III. STANDARD OF REVIEW

We review de novo the district court’s dismissal of a state prisoner’s

petition for writ of habeas corpus. See Drew v. Department of Corr., 297 F.3d

1278, 1283 (11th Cir. 2002). This review includes the determination that the

petition was time-barred under the Antiterrorism and Effective Death Penalty

Act’s (“AEDPA”) limitation period. Moore v. Crosby, 321 F.3d 1377, 1379 (11th

Cir. 2003). We also review de novo the district court’s resolutions of legal

questions and mixed questions of law and fact. Mincey v. Head, 206 F.3d 1106,

1131 (11th Cir. 2000). Because the question of a party’s diligence is a question of

fact, we review it, and other factual findings, for clear error, and will affirm

“unless the record lacks substantial evidence to support that determination.”

Drew, 297 F.3d at 1283 (internal quotations and citation omitted). We review for

abuse of discretion the district court’s denial of discovery, Bracy v. Gramley, 520

U.S. 899, 909, 117 S. Ct. 1793, 1799 (1997), and of an evidentiary hearing

regarding equitable tolling. Drew, 297 F.3d at 1283. Under the abuse-of-

discretion standard, we consider whether the district court’s decision was based on

an erroneous legal conclusion because “[a] district court by definition abuses its

14
discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81,

100, 116 S. Ct. 2035, 2047-48 (1996). Finally, our review in a case that

challenges a state conviction under 28 U.S.C. § 2254, as amended by the AEDPA,

“is greatly circumscribed and is highly deferential to the state courts.” Crawford

v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).

II. DISCUSSION

We begin by our treatment of Arthur’s claims by reviewing the statute under

which his application was held to be time-barred, and then consider whether his

claims are appropriate for any of the exceptions to that bar.

A. The Statute of Limitations

An application for writ of habeas corpus, filed by a person in custody

subject to a state court judgment, is due to be filed within one year, in relevant

part,

from the latest of–
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action;
....

15
28 U.S.C. § 2244(d)(1). We have held that, in a situation as that presented here,

where the § 2244(d)(1) limitation period has expired and the petitioner is claiming

actual innocence, we must first consider whether the petitioner can show actual

innocence before we address whether an exception to the limitation period is

required by the Suspension Clause of the United States Constitution, U.S. Const.

art. I, § 9, cl. 2. Wyzykowski v. Department of Corr., 226 F.3d 1213, 1218 (11th

Cir. 2000). In Wyzykowski, we left open the question of whether the § 2244

limitation period to the filing of a first federal habeas petition constituted an

unconstitutional suspension of the writ because we found the record inadequate

for our review of the actual innocence claim. Id. at 1218-19; see also Sibley v.

Culliver, 377 F.3d 1196, 1205 (11th Cir. 2004) (“Following Wyzykowski,” we

declined to reach the merits of whether the Suspension Clause requires an

exception to the § 2244 limitations period because the petitioner failed to make a

sufficient showing of actual innocence).

B. Arthur’s Claims of Exception to the Statute of Limitations

1. Actual innocence

16
 In 2002, Arthur submitted affidavits in support of his claim of actual

innocence.8 He maintained that these witnesses could corroborate that he was not

at the Wicker residence on the morning of the murder.

Alphonso High, the owner of Copper Mobile Homes in 1982, said that,

“[o]n the morning February 1, 1982 around 9 a.m., Tommy Arthur stopped by [his]

place of business” and they “talked for approximately 30 minutes.” R2-36, Exh.

High Aff. at 1. High commented that he did not “notice anything unusual about

[Arthur]. He acted like he always did, and he did not appear to be nervous or

agitated.” Id. at 2. He said that, “about two months” after the murder, he “recalled

that he had spoken to [Arthur] the morning of the murder” but never told “anybody

about [the] conversation” and was “never . . . approached by the police or

[Arthur’s] trial or appellate attorneys.” Id.

High’s testimony was corroborated by Ray Melson, who had worked for

High at Copper Mobile Homes in 1982. Melson stated that Arthur visited Copper

Mobile Homes “[o]ne morning in 1982" “between 8 a.m. and 9 a.m.” and that they

visited for about 20 to 30 minutes. R2-41, Exh. B at 1. The following day,

Melson heard the news that Troy was murdered on the same day as Arthur’s visit.

8
Although, in the district court, Arthur submitted affidavits of Alphonso High, Billy Peebles
and Ray Melson, he relies on only those of High and Melson on appeal.

17
Id. at 2. He explained that, after he realized that he had seen Arthur on the

morning of the murder, he and High had discussed Arthur’s visit and commented

that they “would have expected [Arthur] to be nervous or agitated, but he wasn’t.”

Id. He said that he did not tell anyone about his visit with Arthur on the morning

of the murder and was not approached by Arthur’s trial or appellate attorneys. Id.

at 2.

In response to Arthur’s affidavits, the state submitted their own affidavits

from High and Melson. In High’s second affidavit, High stated that, “[u]pon

further consideration,” he could not “say for sure whether” he had seen Arthur on

1 February 1982 or another day in late January or early February of that year, and

was “not sure” whether the time when he saw Arthur was at 8:30 or 9:00 A.M.

R2-39, Exh. A, High Aff. Melson provided a second affidavit to “clarify some

things,” specifically that, although it was “true and correct” that Arthur had visited

Copper Mobile Homes on a day when High and Melson were leaving to deliver a

mobile home to Birmingham, he was unable to “say exactly” the day or month the

visit occurred. R3-53, Exh. D at 1.

Arthur responded with affidavits to clarify or discount the second affidavits

obtained from High and Melson. Arthur’s attorney, Suhana Han, stated that she

was told by High’s assistant that one of the representatives from the Alabama

18
Attorney General’s office appeared in their office “carrying a gun in his holster.”

R2-41, Exh. A at 2, ¶ 5. After Han asked High for an affidavit clarifying his first

affidavit, High said no and expressed concern that he had “a family to support and

a business to run,” and did not want to be arrested for perjury. Id. at 3, ¶ 6. When

Arthur’s investigator attempted to meet with Melson after his second affidavit,

Melson “refused to speak” to them, “ordered [them] off his property,” and, during

a second visit, announced to them that he was “answerable” only to an Assistant

Attorney General. R3-54, Exh. A, Gustat Aff. at 7-8, ¶¶ 19-20.

A habeas petitioner asserting actual innocence to avoid a procedural bar

must show that his conviction “probably resulted” from “a constitutional

violation.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867 (1995)

(quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986)).

The petitioner meets the “probably resulted” standard by demonstrating that, based

on the new evidence, “that it is more likely than not that no reasonable juror would

have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327,

329, 115 S. Ct. at 867-68. The “reasonable doubt” standard is not to be

determined on the basis of the district court’s independent judgment, but should be

based on the district court’s “probabilistic determination about what reasonable,

properly instructed jurors would do.” Id. at 329, 115 S. Ct. at 868. The petitioner

19
must support the actual innocence claim “with new reliable evidence–whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence–that was not presented at trial.” Id. at 324, 115 S. Ct. at 865.

A petitioner meets the “threshold showing of innocence” justifying “a review of

the merits of the constitutional claims” if the new evidence raises “sufficient doubt

about [the petitioner’s] guilt to undermine confidence in the result of the trial.” Id.

at 317, 115 S. Ct. at 862.

The affidavits of High and Melson contradict the testimony that Judy

Wicker gave at trial that Arthur was with her, and would show that Arthur was

about an hour away on the morning of the murder. See R2-36, Exh. Gustat Aff. at

2, ¶ 10; R3-54, Exh. A, Gustat Aff. at 4, ¶ 9. Arthur contends that both High and

Melson were credible. He maintains that, during High’s first meeting with the

investigator, High stated that his long-term memory was better than his short-term

memory, recalled the make and model of the vehicle that Arthur was driving,

pounded his fist on the table for emphasis, and was not provided with any

information about the murder, including the date, before he gave his recollection

of his visit with Arthur. See R2-36, Exh. High Aff. at 1, ¶ 3; R3-54, Exh. Gustat

Aff. at 4, ¶ 9; 8-9, ¶¶ 21-22. Melson corrected the details in a draft of his initial

affidavit, and spent time and energy to have his affidavit notarized. See R3-54,

20
Exh. Gustat Aff. at 5-6, ¶¶ 13-15. During Melson’s four separate meetings with

Arthur’s investigator, Melson never expressed any doubt about his statement and

the investigator did not observe any indication that Melson was under the

influence of pain medication. Id. at 2-8, ¶¶ 5-20.

Arthur argues that any inconsistencies between High’s first and second

affidavits can be explained by the Attorney General’s threatening tactics. He

maintains that the delay in presenting the evidence was caused by the

constitutionally deficient performance of Arthur’s counsel and the state of

Alabama’s failure to provide Arthur with postconviction legal assistance. The

state responds that the contents of the affidavits are not “new” because Arthur has

known both his whereabouts at the time of the murder and the names of the people

with whom he was with at the time of the murder for over twenty years. It

contends that Arthur could have presented such evidence during his third trial,

when he acted as his own counsel. It also maintains that the affidavits are suspect

because Arthur, High, or Melson did not come forward with the information

during Arthur’s three trials, did not come forward with the information until after

the district court had granted a stay of execution, and because High and Melson

had recanted their statements as to the exact date on which they saw Arthur.

21
 The new affidavits of High and Melson are insufficient to satisfy this

threshold showing under Schlup; what little doubt they raise as to Arthur’s guilt in

no way undermines confidence in the result of his trial. To begin with, we observe

that exclupatory affidavits “produced . . . at the 11th hour with no reasonable

explanation for the nearly decade-long delay” are “suspect.” Herrera v. Collins,

506 U.S. 390, 423, 113 S. Ct. 853, 872 (1993) (O’Connor, J., concurring). Such

suspicion is especially warranted when, as here, certain important details of the

affidavits were subsequently disavowed by the affiants themselves. The

documents are substantively unimpressive as well. High and Melson’s revised

testimony would, at best, attack the credibility of Wicker, whose own statements

were corroborated by other witnesses and evidence submitted at trial. The district

court did not clearly err in finding that Arthur was unable to meet the standard

necessary to avoid a procedural bar, and to show that his conviction probably

resulted from a constitutional violation.

2. Entitlement to a Hearing and Discovery

Arthur argues that he was entitled to develop his claim of actual innocence

and that a hearing is necessary to assess the reliability of High and Melson’s

affidavits. He maintains that the district court erred by applying the due diligence

requirement of 28 U.S.C. § 2254(e)(2) because he was seeking to establish a

22
“gateway claim” of actual innocence to excuse his untimeliness and not a review

of the merits of the claim. He also contends that he should not be held responsible

for his counsel’s failure to investigate or develop the record. He maintains that,

because of the advancements in DNA technology since his trial, tests on the

physical trial evidence could produce new evidence that could not have been

developed at trial.

While his habeas petition was pending, Arthur moved for leave to conduct

discovery related to his claim of actual innocence and good cause for his failure to

raise the actual innocence claim in state proceedings. Specifically, he sought

physical evidence from the murder9 and documents concerning the Holman Prison

death row library.10 The district court denied the request for the physical crime

evidence finding that the evidence regarding his actual innocence claim would

“[a]t best . . . impeach Judy Wicker’s testimony” and would not establish his actual

9
Arthur sought: the clothing that Wicker was wearing on the day of the murder, the rape kit
created on the day of the murder, the hair samples and the wig that were recovered from Wicker’s
car, the hair sample and vacuum sweepings recovered from Wicker’s residence, the spent cartridge
casings and pillowcase found near Troy’s body, the bullet recovered from Troy, and the photographs
of the crime scene. R2-33, Memorandum at 8.
10
Arthur sought a detailed list and categorization of the books, federal habeas corpus
statutes, and other written materials carried by the library; the budget of the library; information
concerning the typewriters, photocopying machines and writing materials available to the inmates;
activities and services located in or available at the library that were unrelated to reading, writing,
and research; information regarding the inmates’ access to the library; and the prison’s document
retention and destruction policy. R2-33, Memorandum at 13.

23
innocence claim.11 R3-55 at 7. The court denied the request for the Holman

prison library evidence because it bore no relation to a constitutional claim. The

district court held that Arthur was not entitled to an evidentiary hearing to

question High and Melson because he had “made no attempt to show he diligently

pursued the factual predicate of his alibi claim in [any] state court.” Id. at 15.

Generally, “[a] habeas petitioner . . . is not entitled to discovery as a matter

of ordinary course,” but may obtain leave of court to conduct discovery pursuant

to “Rules Governing Section 2254 Cases” upon showing “good cause,” Bracy,

520 U.S. at 904, 117 S. Ct. at 1796-97, and diligence in pursuing the claim for

which discovery is sought, consistent with 28 U.S.C. § 2254(e)(2), Isaacs v. Head,

300 F.3d 1232, 1249 (11th Cir. 2002). Good cause is demonstrated “‘where

specific allegations . . . show reason to believe that the petitioner may, if the facts

are fully developed, be able to demonstrate that he . . . is entitled to relief.’”

Bracy, 520 U.S. at 908-09, 117 S. Ct. at 1799 (quoting Harris v. Nelson, 394 U.S.

286, 300, 89 S. Ct. 1082, 1091 (1969). A petitioner claiming actual, and not legal,

11
The district court examined each individual discovery request. R3-55 at 5-8. Arthur
sought the rape kit, Wicker’s clothing, the hair samples, the wig, and the vacuum sweepings to
discredit Wicker’s testimony during his third trial. Id. at 6-7, n. 6. He sought the cartridge casings
and bullet to show inconsistencies with the trial testimony that the type of bullets that he purchased
and the cartridges and bullet found at the crime scene. He sought the pillowcase and crime scene
photographs to dispute expert testimony that Troy was shot at a close range. Similar evidence was,
however, presented during the trial and weighed by the jury in their consideration during the guilt
phase.

24
innocence will typically show that the wrong person was convicted of the crime.

Sawyer, 505 U.S. at 339-41,112 S. Ct. at 2519-20. A district court’s denial of

discovery is reviewed for abuse of discretion where the petitioner has shown

“‘good cause’ for the discovery.’” Bracy, 520 U.S. at 909, 117 S. Ct. at 1799.

In reviewing a state writ of habeas corpus in which the petitioner failed to

develop the factual basis for a claim in the state court proceedings, the district

court

shall not hold an evidentiary hearing on the claim unless the applicant
shows that–
(A) the claim relies on–
....
(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). In this statute, “Congress has given prisoners who fall

within § 2254(e)(2)’s opening clause an opportunity to obtain an evidentiary

hearing where the legal or factual basis of the claims did not exist at the time of

state-court proceedings.” Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479,

1490 (2000). “[A] failure to develop the factual basis of a claim is not established

25
unless there is lack of diligence, or some greater fault, attributable to the prisoner

or the prisoner’s counsel.” Id. at 432, 120 S. Ct. at 1488.

The question is not whether the facts could have been discovered but
instead whether the prisoner was diligent in his efforts . . . .
Diligence for purposes of the opening clause depends upon whether
the prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in state court; it
does not depend . . . upon whether those efforts could have been
successful. Though lack of diligence will not bar an evidentiary
hearing if efforts to discover the facts would have been in vain, and
there is a convincing claim of innocence, only a prisoner who has
neglected his rights in state court need satisfy these conditions.

Id. at 435, 120 S. Ct. at 1490 (citations omitted).12 Although a defendant

represented by constitutionally ineffective counsel will not be held responsible for

attorney error, the claim of ineffective assistance of counsel must have first been

presented to the state court before it can be used to establish cause for the default.

Murray, 477 U.S. at 488-89, 106 S. Ct. at 2645-46. A district court properly

applies § 2254(e)(2)’s diligence requirement in determining whether to conduct an

evidentiary hearing. Isaacs, 300 F.3d at 1248-49.

Arthur failed to satisfy the diligence requirement of § 2254 both as to the

requested discovery and as to the evidentiary hearing. He failed to pursue the

12
A claim is not precluded under § 2254(e)(2) “unless the undeveloped record [on the factual
basis of a petitioner’s claim] is a result of his own decision or omission.” McDonald v. Johnson, 139
F.3d 1056, 1059 (5th Cir. 1989).

26
testing of the requested crime-related physical evidence during his three trials or

through a state postconviction relief petition. See id. at 1249-50 (affirming the

denial of an evidentiary hearing where the petitioner knew of the factual basis at

the time of his state appeal, and had multiple opportunities to raise the issue

during state court proceedings over a period of ten years). He failed to show that

his claim of actual innocence was unavailable to him before the statute of

limitation expired. He also failed to demonstrate “good cause” for his failure to

seek the requested crime-related discovery. Accordingly, the district court did not

abuse its discretion in denying Arthur’s request for discovery and an evidentiary

hearing.

3. Statutory Tolling

Arthur argues that statutory tolling should apply because Alabama

unconstitutionally failed to provide him with state postconviction counsel, any

other form of legal assistance, or access to an adequate law library. He contends

that he suffered actual harm as a result not having counsel because he has received

no state or federal postconviction review of the merits of his claims. He maintains

that his habeas petition is timely because, since he was unable to locate pro bono

counsel until October 2000, the federal period of limitations did not end until

October 2001. He claims that he suffered an actual injury from the inadequacies

27
in the prison law library because he was unable to timely prepare and file a state

postconviction petition and a federal petition for writ of habeas corpus. He asserts

that this injury resulted from Alabama’s failure to provide him with the procedures

for requesting materials and history of providing the requested materials only after

an adequate habeas corpus petition was filed.

The district court denied Arthur’s claim of statutory tolling, holding that the

state did not unconstitutionally impede the timely filing of Arthur’s federal habeas

petition. It found that, because Arthur “did not avail himself of the [Alabama]

procedure for obtaining [postconviction] counsel,” he could not show that he

would have been denied counsel if he had pursued such relief, and that Arthur had

“provided no support” for his claim that Holman Prison death row inmates were

provided inadequate access to the library. R3-55 at 20. It also found that Arthur’s

evidence that he was unable to obtain private counsel did not satisfy his burden of

showing that he suffered an actual injury from the Alabama procedure for

obtaining postconviction counsel.

A person in state custody filing a petition for writ of habeas corpus is

subject to a one-year statute of limitation which

shall run from the latest of–
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review;

28
 (B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of the
United States is removed, if the applicant was prevented from filing
by such State action.

28 U.S.C. § 2244(d)(1). Thus, if the petitioner was prevented from filing his

habeas corpus petition as a result of “illegal state action,” the limitation period will

not begin until the state impediment is removed. Wyzykowski, 226 F.3d at 1216.

Prisoners, including those under a sentence of death, have no constitutional

right to the appointment of counsel for postconviction proceedings. Murray v.

Giarratano, 492 U.S. 1, 10, 12, 109 S. Ct. 2765, 2771-72 (1989) (holding that

Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S. Ct. 1990, 1993-94 (1987)

applied to death penalty cases).13 We have declined to find an exception even

“when the state collateral proceeding was the petitioner’s first opportunity to raise

the claim.” Hill v. Jones, 81 F.3d 1015, 1025-26 (11th Cir. 1996).

Such an exception is unnecessary, however, because Alabama provides for

the appointment of counsel for a petitioner seeking postconviction relief. An

indigent petitioner, who desires the assistance of counsel, may seek appointment

13
See also Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 2566 (1991) (“[A]
petitioner cannot claim constitutionally ineffective assistance of counsel” “in state post-conviction
proceedings” because “[t]here is no constitutional right to an attorney” in such proceedings); Ohio
Adult Parole Auth. v. Woodard, 523 U.S. 272, 281, 118 S. Ct. 1244, 1250 (1998) (recognizing that
the Supreme Court had “generally rejected attempts to expand” distinctions accorded capital inmates
including a constitutional right to counsel in postconviction proceedings).

29
of counsel if the petitioner’s postconviction relief petition is not summarily

dismissed. Ala. R. Crim. P. 32.7(c).14 Similarly, an indigent federal habeas corpus

petitioner, seeking relief from a judgment punishable by death, has a mandatory

statutory right to appointed counsel from the district court upon filing a motion

requesting such appointment. 21 U.S.C. 848(q)(4)(B), 28 U.S.C. §§ 2254(h) and

2261; 18 U.S.C. § 3006A(a)(2)(B); McFarland v. Scott, 512 U.S. 849, 858-59, 114

S. Ct. 2568, 2573-74 (1994).

To guarantee prisoners their constitutional right of access to the courts,

prison authorities are required to provide prisoners with adequate law libraries or

legally trained assistance to prepare and file meaningful legal papers. Bounds v.

Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498 (1977). The primary focus is to

“protect[] the ability of an inmate to prepare a petition or complaint, [and] it is

irrelevant” that the state provides for the appointment of counsel in some

proceedings. Id. at 828 n.17, 97 S. Ct. at 1498 n.17 (internal quotations and

citation omitted). The required prison law library must supply the tools and, thus,

“a capability” “that the inmates need in order to attack their sentences, directly or

collaterally, and in order to challenge the conditions of their confinement.” Lewis

14
Although Alabama suggestions that a post-conviction petitioner “need only fill in the form
Rule 32 petition” to obtain appointed counsel, Appellee’s Brief at 39 n.10, that form does not
provide any information or questions regarding the need for appointment of counsel. See Ala. R.
Crim. P. 32, App., Petition for Relief from Conviction or Sentence at In Forma Pauperis Declaration.

30
v. Casey, 518 U.S. 343, 355-56, 116 S. Ct. 2174, 2182 (1996). An inmate who

shows that a desired actionable challenge to his sentence was “lost or rejected . . .

because th[e] capability of filing suit [w]as not . . . provided, . . . demonstrates that

the State has failed to furnish adequate law libraries or adequate assistance from

persons trained in the law.” Id., 116 S. Ct. at 2182 (internal punctuation and

citation omitted).

Arthur did not seek appointment of counsel under Alabama Rule of

Criminal Procedure 32.7(c) or 28 U.S.C. § 2254(h), but instead sought counsel

through letters to various organizations and postings on the internet. In the letters

and internet postings, he asked that the case not be referred to either the Southern

Center for Human Rights in Atlanta, Georgia, or to the Equal Justice Initiative of

Alabama, in Montgomery, Alabama.15 The statute of limitation expired during his

search. Arthur provided no reasons in his petition for not filing a pro se petition

while seeking counsel. The Holman Prison law library has one room reserved for

death row inmates. R2-40, Exh. G. The death row room is “used more as a day

room” instead of a library and contains legal materials which are neither

15
Arthur stated that his past experiences with these organizations were “unpleasant and non-
productive” and that they did “not have the proper funding or staff to handle” their cases. R2-40,
Exh. D at 1. He commented that “Alabama’s court-appointed attorneys don’t get paid enough to
care.” Id. at 2.

31
maintained nor updated. Id. If a death row inmate needs specific materials, the

inmate can request the materials from the maintained and current library. Id. The

materials were, therefore, available to Arthur upon his request. Further, Arthur

was aware of time limits for filing his petition and the consequences for missing

those times. In an internet posting seeking counsel, Arthur asked for “help . . .

now I’m running out of time for appeals.” R2-40, Exh. E (also stating “the time

for appeal on my case is critical to me.”) Based on the record, we cannot say that

the district court clearly erred in finding that Arthur failed to avail himself of the

Alabama procedures for obtaining postconviction counsel or to show that he was

provided inadequate access to the prison law library, or abused its discretion in

denying Arthur statutory tolling relief.

4. Equitable Tolling

Arthur argues that equitable tolling is warranted and that we should apply a

more lax standard in capital cases because of the heightened importance of the

potential punishment. He contends that he never received notice of the judgment

which triggered the limitations period, and was unable to file a timely petition as

he was not represented by counsel. He maintains that extraordinary circumstances

are presented because Alabama cannot appoint counsel for postconviction

proceedings until after the filing of a petition containing the grounds with “full

32
disclosure of the factual basis for those grounds.” Ala. R. Crim. P. 32.6(b),

32.7(c). He maintains that he was unable to obtain the alibi evidence which he

seeks to present until after his current counsel performed an extensive factual

investigation. He claims that he was placed in a “Catch-22" situation when he was

prevented from meeting with an investigator without obtaining counsel, and was

unable to obtain counsel until he had set forth the factual basis for his claim or met

with an investigator.

In the district court, Arthur argued that his failure to file a timely petition

was due to Alabama’s failure to provide him with notice of judgment, legal

assistance, visits with investigators, or an adequate law library. The district court

noted that Alabama’s evidence tended to show that Arthur was aware of the

Alabama Supreme Court’s final ruling, even though no certificate of judgment

issued on 7 April 1998. It found that, in light of the long period of time in which

Arthur did nothing, Arthur had not demonstrated diligence in obtaining the status

of his Alabama Supreme Court appeal. It also found that Arthur had not

demonstrated that the lack of notice prevented him from timely filing a petition. It

found that Arthur’s efforts to obtain private counsel and to meet with private

investigators did not show diligence in pursuing his habeas claims. It found that,

because Arthur had not shown that he was denied materials from the general

33
prison library or had made any independent efforts to learn of the limitations

period, he failed to show that the circumstances were outside of his control and

that he was diligent. It concluded that, even in combination, the factors did not

show extraordinary circumstances or that Arthur had exercised due diligence to

warrant equitable tolling. R3-55 at 21-25.

In a letter received by the United States Supreme Court on 11 June 1998,

Arthur stated that he had been informed that he had 90 days from the Alabama

Supreme Court’s “final ruling” of 20 March 1998 “to file some sort of document”

in the United States Supreme Court. R2-40, Exh. C at 1. He explained that he had

spent time “trying to get exact–correct mailing address” for the Supreme Court,

had received the address on 2 June 1998, and had been unable to mail the letter at

that time because he had used his weekly mail allowance. Id. He said that he did

not have an attorney but was “trying desperately to get one using every mailing

allowance” writing to organizations requesting representation. Id. at 2. He

requested an extension of six months to one year to allow for him to obtain

counsel and for the attorney to become familiar with Arthur’s case, or 30 days to

allow him to submit something on his own.16 Arthur did not subsequently file a

petition for writ of certiorari to the Supreme Court.

16
The record does not contain a response from the Supreme Court to this letter.

34
 In April 2000, legal investigators Robert C. Long and Glenn Taylor

requested permission to visit Arthur “to investigate certain aspects of his case and

[for the purpose] of obtaining legal counsel for him.” R2-40, Exh. F at 1. Two

days later, the Holman Correctional Facility warden advised Long that the request

was “not approved” and that “[v]isits for investigators are allowed, but by attorney

request.” Id. at 2. In May 2000, attorney James G. Curenton wrote to the prison,

indicating that he was “contemplating representing” Arthur and requested

permission for his investigators to “visit . . . and interview” Arthur. Id. at 3. The

next day, the warden responded that Curenton would be accommodated “[w]hen

and if you make a decision to become . . . Arthur’s attorney or wish to come see

him yourself” but that he could not “at this time . . . approve investigators” to visit

Arthur. Id. at 4.

After the Alabama Supreme Court’s 20 March 1998 affirmance of the

Alabama Court of Criminal Appeal’s decision affirming Arthur’s conviction, a

“certificate of judgment” was to have issued 18 days later, which was 7 April

1998. See Ala. R. App. P. 41(a). It is unclear when or how Arthur received

information of the Alabama Supreme Court’s decision, but in any event, he was

aware of it when he wrote to the United States Supreme Court on 2 June 1998, and

35
believed that he had until 20 June 1998 to file his petition for writ of certiorari.

He did not, however, timely file such a petition.

The time period specified in 28 U.S.C. § 2244 “is a statute of limitations

[and] not a jurisdictional bar,” which “permits equitable tolling when a movant

untimely files because of extraordinary circumstances that are both beyond his

control and unavoidable even with diligence.” Steed v. Head, 219 F.3d 1298,

1300 (11th Cir. 2000) (internal quotations and citation omitted). As an

extraordinary remedy, equitable tolling “is typically applied sparingly.” Id. It may

be applied if the petitioner demonstrates (1) diligence in his efforts to timely file a

habeas petition and (2) extraordinary and unavoidable circumstances. Sandvik v.

United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam). A petitioner is

not entitled to equitable tolling based on a showing of either extraordinary

circumstances or diligence alone; the petitioner must also establish both. Pace v.

DiGuglielmo, 544 U.S. 408, , 125 S. Ct. 1807, 1815 (2005); Justice v. United

States, 6 F.3d 1474, 1478-79 (11th Cir. 1993). We review the district court’s legal

decision on equitable tolling de novo and factual determinations, including that of

diligence, for clear error. Lawrence v. Florida, 421 F.3d 1221, 1224-25 (11th Cir.

36
2005), petition for cert. granted on other grounds, U.S. , 126 S. Ct. 1625 (U.S.

Mar. 27, 2006).17

A determination as to whether rare and exceptional circumstances are

presented requires the examination of the facts in each case. Knight v. Schofield,

292 F.3d 709, 711 (11th Cir. 2002) (per curiam). The focus of the inquiry

regarding “extraordinary circumstances” is “on the circumstances surrounding the

late filing of the habeas petition” and not on the circumstances of the underlying

conviction, Helton v. Secretary for the Dep’t. of Corr., 259 F.3d 1310, 1314-15

(11th Cir. 2001) (per curiam), and whether the conduct of others prevented the

petitioner from timely filing, see Lawrence, 421 F.3d at 1226.18

17
The questions presented on certiorari are: (1) whether a death penalty defendant’s petition
for writ of certiorari to the Supreme Court to review the validity of the denial of his state petition for
postconviction relief toll the § 2244 statute of limitations; (2) whether the split in the circuits
concerning the tolling of the statute of limitations constitutes an “extraordinary circumstance”
entitling a diligent defendant to equitable tolling while his claim is being considered by the Supreme
Court on certiorari; (3) whether the special circumstance of “registry counsel,” statutorily mandated
to file appropriate motions in a timely manner, advising the defendant about the statute of limitations
constitute an “extraordinary circumstance” beyond the defendant’s control and thus entitle the
defendant to equitable tolling. Lawrence v. Florida, No. 05-8820 (U.S. Mar. 27, 2006).
18
See also Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) (no equitable tolling
where “nothing in the record which suggests the respondent has lulled [petitioner] into inaction” and
a district court order granting an extension was entered two days after the statute of limitations
expired); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002) (no equitable tolling where petitioner
failed to show that the respondents made it impossible or difficult for him to uncover the facts
underlying the actual innocence claim or prevented him from timely filing his habeas petition);
Cantu-Tzin v. Johnson, 162 F.3d 295, 299 (5th Cir. 1998) (no equitable tolling where petitioner
chose “self-representation rather than the choice he was offered by the state” and then, “[o]nce he
was ordered to proceed . . . pro se [petitioner] . . . did nothing.”)

37
 To show diligence, a petitioner claiming deficiencies in the prison law

library must provide details of the specific actions taken toward filing the petition.

Helton, 259 F.3d at 1314. He must show “when he found out about the library’s

alleged deficiency,” must “state any independent efforts he made to determine

when the relevant limitations period began to run,” and must demonstrate how the

prison “thwarted his efforts.” Id. Absent such evidence, the connection between

the petitioner’s untimely filing and any alleged inadequacies in the library is

insufficient. Id.

The record shows that Arthur was aware of the deadline to file his habeas

petition and that, although he continued to seek counsel, he neither timely filed a

pro se petition for postconviction relief nor filed a motion seeking the appointment

of counsel. Although he may have been unable to present the testimony of the

alibi witnesses until an investigation had been performed, he was in a position to

proffer the names of the individuals with whom he spoke on the day of the murder.

The record does not reflect any “repeated” efforts to learn the status of his case or

any acts by others which prevented him from timely filing his petition. In fact, the

record does not reflect any specific actions, other than seeking pro bono counsel

and requesting an extension of time to file a petition for writ of certiorari, that

Arthur took to timely file a petition for postconviction relief, to seek counsel

38
through either the state or federal avenues available to him, to obtain the

information regarding the limitations period (or the options for seeking counsel

through the state or federal systems) from the prison library or to gain the

assistance of others, outside of prison, who had the ability to obtain the

information for him. Absent any such evidence of diligence, the district court did

not clearly err in finding that Arthur was not entitled to equitable relief.

III. CONCLUSION

Arthur has not shown that he is has any legal grounds excusing the

untimeliness of his habeas petition and thus entitling him to consideration of the

merits of it. He has not established that he is actually innocent or that the district

court erred in denying him discovery and an evidentiary hearing on his claim of

actual innocence. He has not established that statutory tolling should be applied to

the statute of limitations governing his claims. He has not established that

equitable tolling should be applied to the statute of limitations governing his

claims or that the district court abused its discretion in denying discovery on his

equitable tolling claim. Accordingly, we affirm the district court’s judgement

denying Arthur habeas relief.

AFFIRMED.

39