[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 14, 2006
No. 03-14304
THOMAS K. KAHN
________________________
CLERK
THOMAS D. ARTHUR,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner, Alabama Department of Corrections,
Respondent-Appellee.
__________________________
On Appeal from the United States District Court for the
Northern District of Alabama
_________________________
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion June 21, 2006, 11 th Cir., 2006, _____ F.3d_____)
BEFORE: BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Upon consideration of the petitioner-appellant’s petition for rehearing, the
opinion, Arthur v. Allen, F.3d , 2006 WL 1687574 (11 th Cir. Jun 21, 2006), we make
the following modifications.
The discussion and analysis that follows the second paragraph under IV.
DISCUSSION, B. Arthur’s Claims of Exception to the Statute of Limitations, 2.
Entitlement to a Hearing and Discovery, F.3d at , 2006 WL 167574, at *10, is
deleted, and the following is substituted in its place:
Generally, “[a] habeas petitioner . . . is not entitled to discovery as a
matter of ordinary course,” but may be obtained upon showing “good
cause,” Bracy, 520 U.S. at 904, 117 S. Ct. at 1796-97, to believe that the
evidence sought would “raise[] sufficient doubt about [his] guilt to
undermine confidence in the result of the trial.” 1 Schlup, 517 U.S. at 317,
115 S. Ct. at 862. 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)). Thus, good cause for discovery
cannot arise from mere speculation. It is not enough, for example, to allege
that “DNA testing could demonstrate that the same person who raped Judy
Wicker also physically assaulted her, that this person’s blood was on her
blouse, that his hair was found in the Wicker residence, that he was in Judy
Wicker’s 1981 Buick Riveria, and that this person was not Mr. Arthur.”
Arthur’s Petition for Rehearing at 14.
Recognizing that discovery cannot be ordered on the basis of pure
hypothesis, Arthur’s request relies heavily on the affidavits of High and
Melson. But the credibility of those documents is fundamentally wounded
by the affiants’ own substantial retraction of the very content advanced to
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We recognize that the provisions of 18 U.S.C. § 2254(e)(2) for obtaining an evidentiary
hearing are not applicable to a petitioner’s first federal habeas petition seeking review of a defaulted
claim based on an allegation of actual innocence. House v. Bell, U.S. , 126 S. Ct. 2064 (Jun.
12, 2006); Sibley v. Culliver, 377 F.3d 1196, 1207 (11th Cir. 2004).
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support Arthur’s new alibi. For this reason, the affidavits do not furnish
good cause to believe that the facts, if “fully developed” through the
discovery sought, would be any different from those found at trial. See
Bracy, 520 U.S. at 909, 117 S. Ct. at 1799. The district court did not abuse
its discretion in denying Arthur’s request for discovery and an evidentiary
hearing.
In all other respects, the petition for rehearing and rehearing en banc is DENIED.
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