Appendix — Arthur v. Allen, 127 S. Ct. 2033 (2007) (No. 06-954)
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Al
United States District Court
Northern District of Alabama
Southern Division
Thomas D. Arthur, ]
Petitioner, |
VS. J
]
Michael Haley, ] CV-01-N-0983-S
Commissioner, ]
Alabama Department of ]
Corrections, ]
Respondent. |
FILED
02 DEC-4 PM 3:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
ENTERED
DEC 04 2002
Memorandum of Opinion
This is an action for habeas corpus relief under 28 U.S.C.
§ 2254 by an Alabama state prisoner under a sentence of death.
With the assistance of counsel, Thomas D. Arthur (“Arthur’’)
filed his petition on April 20, 2001, challenging his December
5, 1991, state court murder conviction. The cause is presently
before the court to determine if there is sufficient reason to
excuse Arthur’s failure to file his petition within the one-year
period imposed by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA’”), 28 U.S.C. § 2244(d)(1). The
AEDPA statute of limitations was raised in the Respondent’s
April 23, 2001, Motion to Dismiss, and the issue has been fully
briefed by the parties. For the reasons set out below, the court
finds no lawful ground to excuse the untimeliness of the
petition. Accordingly, the petition for the writ of habeas corpus
is due to be, and will be, dismissed.
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BACKGROUND
1. Arthur’s first conviction and sentence of death for the
murder of Troy Wicker was reversed by the Alabama Supreme
Court on May 10, 1985. Ex parte Arthur, 472 So. 2d 665 (Ala.
1985) (details of a prior murder were improperly admitted at
trial under the identity exception to general exclusionary rule).
2. Arthur was convicted and sentenced to death a second
time for the Troy Wicker murder, but his second conviction and
sentence were reversed by the Alabama Court of Criminal
Appeals. Arthur v. State, 575 So. 2d 1165 (Ala. Crim. App.
1990) (trial court improperly admitted a statement made by the
defendant to a police officer in the absence of counsel two
weeks after he had asserted his right to remain silent), cet.
denied, Ex parte State of Alabama [Re Arthur v. State], 575 So.
2d 1191 (Ala. 1991).
a Arthur was tried a third time for the murder of Troy
Wicker and convicted on December 5, 1991. (CR. 11, R.
1150).' The trial court, following the jury’s recommendation,
sentenced Arthur to death on January 24, 1992. (CR. 12, 14-27;
R. 1237, 1291-1300).
' The record in this case consists of eleven numbered volumes comprising
the proceedings at Arthur's capital murder trial, one volume comprising a
supplemental record on appeal, and various loose documents
memorializing the state collateral proceedings which have been attached
to various pleadings filed in this court. The eleven numbered volumes
include 880 numbered pages comprising the clerk's record, followed by
the separately numbered transcript of the proceedings before Judge Hard.
For citation purposes, the court will follow the state’s example and refer
to the initial 880 pages of the eleven numbered volumes as the “Clerk’s
Record” (“CR.") to distinguish them from the separately numbered
transcript “Record” (“R.”). Similarly, the initial pages in the single
Supplemental Volume will be referred to as “Supplemental Clerk’s
Record” (“SCR.”) and the following transcript pages will be referred to as
the “Supplemental Record” (“SR.”). Documents flied in this court will be
referenced, as is this court's usual practice, by the docket number and
exhibit reference, if any.
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4. The Alabama Court of Criminal Appeals affirmed
Arthur’s conviction and death sentence on March 8, 1996.
Arthur v. State, 711 So. 2d 1031 (Ala. Crim. App. 1996).
5. The Aijabarmna Supreme Court affirmed the decision of
the Court of Criminal Appeals on November 21, 1997. Ex parte
Arthur, 711 So. 2d 1097 (Ala. 1997). Arthur’s application for
rehearing was denied on March 20, 1998. (State’s Answer and
Motion to Dismiss, Doc. 6, Ex. A).
6. Arthur did not petition for the writ of certiorari to the
Supreme Court of the United States, nor did he seek state or
federal collateral review at any time before January 25, 2001.
7. On September 15, 2000, the State filed an “Amended
Motion to Set Execution Date” in the Supreme Court of
Alabama, (Doc. 46, Ex. 1).
8. On January 25, 2001, Arthur, proceeding through
counsel, filed his Rule 32 Petition in the Tenth Judicial Circuit
Court of Jefferson County, Alabama. (Doc. 47, Ex. 1, 2). The
Rule 32 Petition was dismissed as untimely on March 5, 2001.
(Doc. 47, Ex. 4).
9. On March 23, 2001, the Alabama Supreme Court
entered its order setting Friday, April 27, 2001, as Arthur’s
execution date. (Doc. 46, Ex. 3).
10. On March 28, 2001, Arthur filed a motion to
reconsider the dismissal of his Rule 32 petition in the Tenth
Judicial Circuit Court of Jefferson County Alabama. (Doc. 47,
Ex. 5), and on April 4, 2001, Arthur filed a “Motion for Stay of
Execution” in the Alabama Supreme Court. (Doc. 47, Ex. 6).
li. On April 11, 2001, the Alabama Supreme Court
denied Arthur’s motion to stay his execution. (Doc. 47, Ex. 8).
12. On April 20, 2001, Arthur filed his “Petition for Writ
of Habeas Corpus” and his “Motion for Stay of Execution” in
this court. (Doc. 1, 3). After consideration of written and oral
arguments, this court entered its order granting Arthur’s motion
for stay on April 25, 2001. (Doc. 11). The Eleventh Circuit
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Court of Appeals denied Respondent’s motion to vacate or
dissolve the stay on April 26, 2001. (Doc. 16).
13. Because Arthur’s March 28, 2001, motion to
reconsider was pending in the Tenth Judicial Circuit Court of
Jefferson County Alabama, (Doc. 47, Ex. 5), this court stayed
consideration of the present habeas corpus petition until the
conclusion of the state court proceedings initiated by Arthur’s
Rule 32 petition. (Doc. 11).
14. The Alabama Court of Criminal Appeals affirmed the
denial and dismissal of the state post-conviction petition on
April 25, 2001. Arthur v. State, 820 So. 2d 886 (Ala. Crim.
App. 2001). State court review of Arthur’s Rule 32 petition
concluded when the Alabama Supreme Court denied Arthur's
petition for the writ of certiorari on November 2, 2001. (Doc.
49).
15. On May 13, 2002, the United States Supreme Court
denied Arthur’s petition for writ of certiorari from his state
court Rule 32 proceedings. (Doc. 32).
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year period of limitations for writs
of habeas corpus. 28 U.S.C. § 2244(d)(1).* Unless the
exceptions set out in § 2244(d)(1)(B), (C), or (D) apply, the
* The one-year limitations period does not include the time during which
a “properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim” is pending in the
State court. 28 U.S.C. § 2244(d)(2). Artuz v. Bennett, 531 U.S. 4 (2000).
Arthur did not seck post-conviction or collateral review in the Alabama
courts prior to the expiration of the one-year AEDPA limitations period
and he does not claim here that the limitations period was tolled at any
time pursuant to 28 U.S.C. § 2244(d)(2). See Webster v. Moore, 199 F.3d
1256, 1259 (11th Cir. 2000) (state court petition filed after the expiration
of the AEDPA limitations pcriod does not toll the period because there is
no period remaining to be tolled).
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limitation period runs from the latest of “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 U.S.C. §
2244(d)(1)(A). In Arthur’s case, direct review concluded when
the Alabama Supreme Court denied the motion for
reconsideration on March 20, 1998, and, therefore, the time for
seeking review in the United States Supreme Court expired on
June 18, 1998. S. Ct. R. 13 (“... a petition for writ of certiorari
to review a judgment in any case, civil or criminal, entered by a
state court of last resort, ... is timely when it is filed with the
Clerk of this Court within 90 days after entry of judgment).”
Arthur did not file his current habeas petition until April 20,
2001, approximately 21 months after AEDPA’s one year
limitation period expired.
Arthur claims this court should excuse his dilatory filing and
reach the merits of his claim because he is actually innocent of
the crime for which he was thrice convicted. Arthur further
claims he is entitled to statutory or equitable tolling of the one-
year limitations period. Arthur has also filed a “Motion for
Leave to Conduct Discovery” (Doc. 33), seeking access to
physical evidence and documents he claims are applicable to his
threshold claims.
I. Discovery
Arthur seeks access to physical evidence, including Judy
Wicker’s clothing, a rape kit created the day of the murder, a
wig and hair samples collected from Judy Wicker’s car, vacuum
Sweepings and a hair sample from the Wicker residence, a
bullet, spent cartridge casings, and a pillowcase. He also seeks
documents covering the period 1998 through 2000 concerning
the death row law library at Holman Prison, showing which
* The United States Court of Appeals has recently held that AEDPA’s one
year limitations period begins to run when the time for filing a petition
for the writ of certiorari with the United States Supreme Court has
expired. Bond v. Moore; 309 F.3d 770, (11th Cir. 2002) (No.00-16544,
October 10, 2002).
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books and materials were carried, how they were organized, the
library’s budget, availability of materials, other activities in the
vicinity, and access to the library. Arthur claims he has shown
the “good cause” required by Rule 6(a) of the Rules Governing
Section 2254 Cases because the discovery requests are “directly
relevant” to his claim that the AEDPA statute of limitations
should not bar review of his petition.
A habeas petitioner is not entitled to discovery as a matter of
course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a)
of the Rules Governing § 2254 Cases permits discovery upon a
showing of good cause, which requires “specific allegations”
showing reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is entitled to
habeas relief. /d. at 908-09. “In passing AEDPA . .. Congress
modified the discretion afforded to the district court and erected
additional barriers limiting a habeas petitioner’s right to
discovery or an evidentiary hearing.” /saacs v. Head, 300 F.3d
1232, 1248-49 (11th Cir. 2002) (applying the diligence standard
of 28 U.S.C. § 2254(e) (2) to petitioner’s request for discovery
and evidentiary hearing). When a habeas petitioner has failed to
develop the factual basis for his claims in State court
proceedings he must satisfy the stringent conditions of 28
U.S.C. § 2254(e)(2). See Williams v. Taylor, 529 U.S. 420
(2000).
Arthur theorizes that tests of the rape kit and other evidence
might place another malefactor at the scene and thereby
undermine Judy Wicker’s testimony that she hired Arthur to kill
her husband. He points to Wicker’s prior testimony that an
African American man forced his way into her home, beat her,
raped her, and killed her husband,’ and he speculates that the
* In his June 3, 2002, brief, petitioner argued that he need not satisfy the
more stringent AEDPA standard to obtain discovery because he is not
requesting an evidentiary hearing. The Eleventh Circuit’s subsequent
decision in /saacs indicates otherwise. In any event, Arthur has failed to
establish the “good cause” required for obtaining Rule 6 discovery under
Bracy.
* In response to questioning at Arthur's last trial, Wicker testified that
Arthur concocied the earlier story.
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test results might support this alternate version of events.
Arthur’s conjectures fall far short of the specific allegations
required by Bracy to establish good cause for discovery.°
Moreover, discovery must be aimed at obtaining evidence to
support a constitutional claim. Bracy, 520 U.S. at 905-06. At
® Although Arthur generally claims that a new examination of the
evidence might obtain results contrary to Wicker’s version of events, his
specific allegations do not support his claim. He has a notion that blood
typing or DNA testing of Judy Wicker’s bloody clothing might show
someone else assaulted her, but there is no basis in the record for his
belief that the blood on her clothing belonged to her assailant. Rather, the
evidence was that Wicker was assaulted from behind, did not struggle,
and was bleeding due to extensive head and face injuries. Arthur contends
examination of the rape kit and vacuum sweepings could support
Wicker’s prior testimony about being assaulted and raped by someone
else, but merely showing another person was with Judy Wicker or in her
home at some unspecified time does little to support her prior testimony
or further impeach her testimony about Arthur’s involvement. At best, it
would provide some additional inference about Judy Wicker’s veracity, a
subject which was amply covered during the trial. Arthur also speculates
that DNA tests of the wig and hair samples from the car could show
Wicker fabricated her testimony that Arthur wore a wig and dark face
makeup to disguise himself as a “black man.” However, expert testimony
at the trial indicated the hair samples were of African American origin.
Arthur provides no support for his speculation that different tests could
impeach Wicker’s testimony. Experts testified the cartridge casings and
bullets were consistent with the type of ammunition Patricia Green
obtained for Arthur on the day prior to the murder. Arthur hopes that his
tests might now show an inconsistency, but does not explain the reasons
for his expectation. Finally, Arthur secks to resolve a discrepancy he
perceives in the evidence. He points to expert testimony indicating
gunpowder residue on the pillowcase found beneath Troy Wicker’s head
show the murder weapon was not discharged at close range. This, he
argues, conflicts with Wicker’s testimony that her husband was shot
while sleeping and the autopsy report that Troy Wicker died of a gunshot
wound to the right eyelid “fired at a close range.” He seeks to examine
the pillowcase and crime scene photographs to resolve this discrepancy.
Judy Wicker did not testify about the distance between the killer and her
husband so the discrepancy is not relevant to her testimony. Any
discrepancy between the expert witnesses was heard and resolved by the
jury and no further investigation is warranted.
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best, Arthur proposes to impeach Judy Wicker’s testimony, and
none of his speculations, if proven, would establish he is
actually innocent under either the “more likely than not”
standard or the “clear and convincing” standard. Compare
Schlup v. Delo, 513 U.S. 298 (1995) (gateway claim that
petitioner is actually innocent of crime is established by
evidence that petitioner is “more likely than not” innocent) and
28 U.S.C. § 2254(e)(2) (evidentiary hearing warranted if, inter
alia, the facts underlying 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).’ See Sawyer v. Whitley, 505
U.S. 333, 349 (1992) (“... latter-day evidence brought forward
to impeach a prosecution witness will seldom, if ever, make a
clear and convincing showing that no reasonable juror would
have believed the heart of [the witness’s] account... .”).
Discovery is not warranted unless there is reason to believe the
results would demonstrate entitlement to habeas relief. Bracy,
520 U.S. at 908-09.
Arthur’s request for discovery regarding the death row law
library is similarly deficient. The request relates solely to his
tolling claims, and the results would not bear any relation to his
guilt or innocence of the crime or otherwise support a
constitutional claim entitling him to habeas relief. Bracy, 520
U.S. at 905-06 (court must identify the essential elements of
constitutional claim in order to determine whether discovery
would establish claim); Harris v. Nelson, 394 U.S. 286, 300
(1969) (court should facilitate discovery where full
development of specifically alleged facts would demonstrate
petitioner is confined illegally and is thus entitled to habeas
relief); 28 U.S.C. § 2254(e)(2)(B) (evidentiary hearing is
warranted where underlying facts could not be previously
discovered through exercise of due diligence and would be
” Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002), further indicates that
Arthur’s request for release of the physical evidence is due to be denied
because he failed to exercise “due diligence” in pursuing the facts during
the state proceedings.
AY
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have
found applicant guilty of underlying offense).
For the foregoing reasons, Arthur’s request for discovery
will be denied.
II. Actual Innocence
Like others before him, Arthur claims an “actual innocence”
exception to the AEDPA limitation period is necessary to avoid
an unconstitutional suspension of the writ. See Wyzkowski v.
Dep’t of Corrections, 226 F.3d 1213 (11th Cir. 2000). The
Eleventh Circuit has yet to decide whether there is such an
exception to the AEDPA limitations period, but has left the
door open for consideration of the constitutional question in a
case in which the petitioner is able to make a showing of actual
innocence. Wyzkowski, 226 F.3d at /d. at 1217-18 (the
constitutional question need not be addressed unless and until
an untimely petitioner is able to make a sufficient showing of
actual innocence). This court, then, has the initial task of
determining if Arthur has made a showing of actual innocence
sufficient to trigger the duty to evaluate the constitutional
question. Upon examination of the evidence Arthur has
proffered, the court is satisfied Arthur cannot meet that high
standard.
Although the federal courts have long recognized that an
otherwise barred petition should be reviewed to avoid a
miscarriage of justice when the petitioner presents sufficient
evidence of his actual innocence, different standards have been
used to determine whether the petitioner has made the threshold
showing sufficient to permit review. Calderon v. Thompson,
523 U.S. 538, 559 (1998) (“Although demanding in all cases,
the precise scope of the miscarriage of justice exception
depends on the nature of the challenge brought by the habeas
petitioner”). See 28 U.S.C. § 2244(b)(2) (except for claims
based on new constitutional law made retroactive by the United
States Supreme Court, consideration of any new claim in a
second or successive petition is permitted when the petitioner
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shows, inter alia, the facts underlying the claim establish his
innocence by clear and convincing evidence); Schlup v. Delo,
513 U.S. 298, 322 (1995) (petitioner claiming actual innocence
of the underlying crime must show it is “more likely than not”
that no reasonable juror would have convicted him in light of
new evidence); Sawyer v. Whitley, 505 U.S. 333 (1995)
(petitioner challenging death sentence must show by clear and
convincing evidence that no reasonable juror would have found
him eligible for the death penalty in light of new evidence);
Herrera v. Collins, 506 U.S. 390 (1993) (where petitioner has
no claim of constitutional error at trial, he must show actual
innocence of the crime by clear and convincing evidence to
proceed with successive or abusive writ). This court need not
linger over esoteric questions regarding the appropriate standard
in this case, however, because the proffered evidence is
insufficient to meet the “actual innocence” threshold even upon
application of the more lenient “more likely than not” test. See
Calderon, 523 U.S. at 558 (tension between Sawyer and Schlup
standards need not detain court where claims fail under either
standard).
The miscarriage of justice standard is concerned with actual
as compared to legal innocence. Sawyer, 505 U.S. at 339. To
demonstrate actual innocence the petitioner must present “new
reliable evidence that was not presented at trial” and show, in
light of all the evidence, “it is more likely than not that no
reasonable juror would have found [him] guilty beyond a
reasonable doubt.” Schlup, 513 U.S. at 299, 327-28.
The evidence at Arthur’s third trial established that Troy
Wicker was fatally shot on February |, 1982, while he lay in
bed at his home in Muscle Shoals, Alabama. The prosecution
presented the testimony of Mary Jewel (Judy) Wicker, the wife
of the victim, who testified that she had a sexual relationship
with Arthur and that she paid Arthur $10,000 to murder her
husband.
Talmadge Sterling, an employee of the Decatur Work
Release Center at the time of the murder, testified that Arthur
was an inmate of the center, but was signed out for work
between 6:00 a.m. and 7:50 p.m. on the day of the murder.
All
Arthur was assigned to work at Reagan Mobile Homes but the
operator of the business, Joel Reagan, testified he was an old
acquaintance of Arthur’s and, because Arthur’s day to day
activities at the business were not closely supervised, he did not
know Arthur’s whereabouts on the day of the murder. Patricia
Yarborough Green testified that Arthur frequented Cher’s
Lounge, where she worked. He came in four to five days a
week, sometimes in the company of Joel Reagan. Debra Lynn
Phillips, the operator of Cher’s Lounge and Arthur’s paramour,
also testified Arthur came to the bar four to five times per week,
usually in the afternoon. Pat Halliday, a shift supervisor at
Decatur Work Release Center in 1982, testified there was a
discrepancy between the number of hours Arthur was away
from the center and the number of hours he was actually paid
for working in February and March of 1982.
Patricia Yarborough Green further testified that, on the day
before the murder, she helped Arthur obtain .22 caliber mini
mag long rifle bullets and that Arthur told her the bullets would
be used to kill someone. Brent Wheeler, director of the
Huntsville Forensic Lab in 1982, testified that the bullet
removed from Troy Wicker’s body was a .22 long rifle caliber
consistent with a CCI brand mini mag. The four shell casings
found near the body were CCI brand .22 long or long rifle
casings. /
in addition to the evidence tending to show Arthur had the
opportunity and means to kill Troy Wicker, other evidence
substantiated Judy Wicker’s testimony. Joel Reagan testified he
saw Judy Wicker and Arthur together at the mobile home
business. Judy Wicker stated that, on the morning of the
murder, she dropped her sons at school, drove back and forth on
Avalon Avenue a couple of times and then picked Arthur up
near the airport. This testimony was consistent with the
testimony of Charles Eddie Lang, a Muscle Shoals Police
officer who was serving as a school crossing guard on Avalon
Avenue that morning, and observed Ms. Wicker twice pass by
the crossing prior to 8:00 a.m., when he left his post. Ms.
Wicker also testified that Arthur wore an “afro” wig and
makeup to disguise himself as a black man, and this was
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consistent with the testimony of John Kilbourne of the Alabama
Department of Forensic Science at Huntsville, who stated that
hair gathered by Joseph Gary Wallace from Ms. Wicker’s car
was negroid head hair. Wicker testified Arthur was carrying a
gun and a garbage bag. Phillips testified Arthur was supposed to
meet her for lunch on the day of the murder, but he was late
and, instead of going to lunch, they rode to a bridge over the
Tennessee River where Arthur stopped the car and threw a
partially filled garbage bag wrapped in a sheet into the river.
Moreover, Arthur had a large amount of money in his
possession after the murder, consistent with Wicker’s testimony
that she paid him for the murder out of the insurance on Troy
Wicker’s life. Pat Halliday testified that Arthur was transferred
to the Morgan County Jail after the discovery of the discrepancy
between the number of hours he was away from the center and
the number of hours he was actually paid for working. Upon
routine inspection of his effects prior to the transfer, twenty one
hundred dollar bills were discovered in an envelope in Arthur’s
overcoat pocket.*
Arthur’s claim of actual innocence rests on affidavits from
Alphonso High, Ray Melson, and Billy Peebles. Doc. 36;
Exhibits to Doc. 41. Mr. High attested that Arthur visited him
“around 9 a.m.” the morning of February 1, 1982, at his Decatur
place of business, Copper Mobile Homes.’ He stated that he
believed Arthur was driving his Ford LTD and that they had a
30 minute conversation about setting up a trailer in
Birmingham. Mr. High further stated that he heard about the
* At trial, Arthur presented testimony from Bruce Carroll, who said he
lost $6500 to Arthur in a poker game, and testimony from Gene Moon,
who said that Hillard Murray gave him money to put in Arthur's coat
pocket. Arthur also presented the testimony of Ronald Spears, who said
Patricia Green lied in her testimony about procuring bullets for Arthur
because she was threatened.
° Arthur submitted the affidavit of Stephen J. Gustat, a licensed private
investigator from Tampa, Florida, who attested that, on Sunday, June 9,
2002, he drove the distance between the address of the Wicker home and
the former location of the Copper Mobile Homes and ascertained that the
drive took approximately 60 minutes.
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murder of Troy Wicker on the following day and, when he
heard Arthur was arrested for the murder about two months
later, he recalled he had spoken with Arthur on the morning of
the murder. Mr. Melson also stated he saw Arthur at Copper
Mobile Homes between 8:00 a.m. and 9:06 a.m. that day.'° Mr.
Peebles stated that it was Arthur’s habit to arrive at work at
Reagan Mobile Homes at 7:30 a.m. and take a bubble bath until
8:00 a.m.
In response to Arthur’s submission, the state procured
additional statements from the affiants. Doc. 39, 53. In his
second statement, Mr. High stated that he was not sure if he saw
Arthur on February |, 1982, or on another day in late January or
early February of that same year. In his second statement, Mr.
Peebles clarified that he could only state that Arthur’s habit was
to take a bubble bath between 7:30 and 8:00 a.m. but that he
could not state that Arthur bathed every morning or that he was
bathing on the morning of February 1, 1982. Finally, Mr.
Melson stated that he signed the first affidavit while he was
under the influence of strong prescription medication, and he
revised his statement to say that he saw Arthur between 7:30 or
10:00 in the morning but he could not be sure that the date was
February 1, 1982."
In view of the witnesses’ tendencies to change their
statements and Arthur’s long delay in presenting this evidence
'® Arthur submitted the Melson affidavit with his reply brief, triggering an
unsolicited response from the State to which Arthur responded as
discussed above. These dueling affidavits serve only to demonstrate the
unreliability of the affiants. Moreover, submitting them, as he has, many
years after the events in question, Arthur can hardly expect the necessary
finding of duc diligence that would entitle him to an evidentiary hearing
to resolve discrepancics in the witnesses” stories. 28 U.S.C. § 2254(e)(2).
'' Arthur claims, with a supporting affidavit from one of his attorneys, the
State coerced the revised statements because one of the State
representatives was visibly carrying a weapon. The State responded with
additional evidence tending to show the statements were not coerced.
This court need not resolve the issue since the change in the statements
alone strengthens the conclusion that the statements are unreliable and
Arthur has not shown he was diligent in pursuing this alibi evidence, so
that he is not entitled to an evidentiary hearing.
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the affidavits Arthur submitted are not sufficiently reliable to
cast doubt on the jury’s verdict. A claim of actual innocence
must be supported with “new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented
at trial.” Schlup, 513 U.S. at 324; cf. Herrera, 506 U.S. at 423-
24 (O’Connor, J., concurring) (observing that affidavits
produced at the 11th hour with no reasonable explanation for
long delay were suspect).
Furthermore, pretermitting questions of credibility, Arthur’s
lately acquired affidavits do not raise “sufficient doubt about
[his] guilt to undermine confidence in the result of the trial . . .”
Schlup, 513 U.S. at 317. The jury heard direct evidence of
Arthur’s involvement in the murder in the form of Judy
Wicker’s testimony. Other evidence was introduced that
corroborated significant portions of Wicker’s testimony. Actual
innocence “does not merely require a showing that a reasonable
doubt exists in the light of the new evidence, but rather that no
reasonable juror would have found the defendant guilty.”
Schlup, 513 U.S. at 329. In view of the significant evidence of
guilt presented at Arthur’s trial, this is not that “extraordinary
case” in which this court could say a constitutional error
“probably” resulted in the conviction of one who was actually
innocent. /d. at 322, 327.
Finally, Arthur has requested a hearing to take testimony
from High, Peebles and Melson, but has made no attempt to
show he diligently pursued the factual predicate of his alibi
claim in state court. 28 U.S.C. § 2254(e)(2). Isaacs, 300 F.3d at
1248-49. Arthur claims his attorneys failed to conduct an
adequate investigation, but Arthur himself was equally
responsible for making “a reasonable attempt, in light of the
information available at the time, to investigate and pursue
claims in state court... .” Williams v. Taylor, 529 U.S. 420, 436
(2000) (interpreting 28 U.S.C. § 2254(e)(2)). His whereabouts
at the time of Troy Wicker’s murder was singularly within
Arthur's knowledge, and yet he never made this claim or
presented this evidence to any state court. In this circumstance,
he did not act with due diligence.
III. Statutory Tolling
The AEDPA statute of limitations can be tolled until “the
date on which [an] impediment to making a motion created by
governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action.” 28 U.S.C.
§ 2244(d)(1)(B). “[I]n the event of illegal state action
preventing the petitioner from filing, the limitation period does
not begin until after the state impediment is removed.”
Wyzkowski, 226 F.3d at 1216. Arthur claims the state
unconstitutionally prevented him from filing his petition for
collateral relief by failing to provide him with post-conviction
counsel or any form of legal assistance and by failing to provide
access to adequate law library facilities. He contends that
Alabama is the only death penalty jurisdiction which does not
provide capital prisoners with post-conviction counsel, and the
failure contravenes evolving standards of decency in violation
of the Eighth Amendment.
Neither the Eighth Amendment nor the due process clause
requires that an indigent defendant be provided with counsel
when seeking state post-conviction relief, even in a capital case.
Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v.
Finley, 481 U.S. 551 (1987). Pointing to Justice Kennedy’s
concurrence, Arthur argues that Giarratano does not apply to
Alabama’s capital prisoners because Virginia’s death row
prisoners had otherwise obtained counsel and Virginia’s prison
system was staffed with institutional lawyers to assist in
preparing for post-conviction relief.'* 492 U.S. at 14-15. Arthur
'* Arthur contends the concurring opinion operates as the holding of the
Court because Giarratano was a plurality opinion, citing Marks v. United
States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a
case and no single rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the narrowest
grounds....”’) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976)).
Al6
contends that, unlike the Virginia petitioner in Giarratano, he
suffered actuai injury because he was unable to obtain counsel
to represent him and he had no legal assistance. The State
correctly points out that the Supreme Court has subsequently
applied Giarratano without apparent limitation.’ Moreover,
Arthur’s evidence that he failed to obtain private counsel does
not satisfy his burden of showing he was actually injured by the
State’s procedures.
In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court
held that the fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance of
counsel. See Lewis v. Casey, 518 U.S. 343, 346 (1996)
(discussing Bounds). However, Bounds did not create an
abstract, free standing right to a law library or legal assistance.
Casey, 518 U.S. at 351. An inmate alleging a Bounds violation
must show actual injury. /d. at 349. Alabama provides counsel
for inmates pursuing state post-conviction relief whose petitions
survive a summary review and Arthur has not presented any
evidence that he, or any other Alabama death row prisoner who
sought post-conviction counsel from the State, were denied
such relief. Rule 32.7(c) of the Alabama Rules of Criminal
Procedure provides:
If the court does not summarily dismiss the petition, and
if it appears that the petitioner is indigent or otherwise
unable to obtain the assistance of counsel, and it further
appears that counsel is necessary to assert or protect the
rights of petitioner, the court shall appoint counsel.
'’ The State cites Smith v. Robbins, 528 U.S. 259, 275 (2000); Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272, 281 (1998); and Coleman v.
Thompson, 501 U.S. 722, 752 (1991) (disallowing claim of ineffective
assistance of post-conviction counsel because there is no constitutional
right to such counsel).
Al?
Id. Summary disposition is an alternative to leave to amend, and
leave to amend “shall be freely granted.” Rule 32.7(d).
Alabama’s scheme is similar to the Virginia scheme considered
and approved by the Supreme Court plurality in Giarratano.
492 U.S. at 5-6 and n.3. Arthur did not avail himself of the
Alabama procedures for obtaining post-conviction counsel and
thus cannot show he would not have obtained representation if
he had made a request under Rule 32.7. His failure to obtain
counsel cannot be laid at the State’s door in _ these
circumstances."
Arthur further contends that Coleman v. Thompson, 501 U.S.
722, 755-56 (1991) requires appointment of post-conviction
counsel when, as in his case, the post-conviction proceedings
are the first opportunity to raise claims of ineffective assistance
of trial and appellate counsel. In Hill v. Jones, 81 F.3d 1015,
1024-26 (11th Cir. 1996), the Eleventh Circuit declined to find
that such an exception to Finley and Giarratano. Arthur
contends Hill and the other cases'” rejecting the argument that
Coleman created an exception to the Finley and Giarratano
holdings are inapposite, because none involved a petitioner
under sentence of death “entirely deprived” of any counsel in
post conviction proceedings. However, Arthur’s circumstances
are similar to the capital petitioner in Hill, who had
procedurally defaulted his ineffective assistance claims and was
barred from any review of those claims. Furthermore, as stated
'* Moreover, nothing the State did prevented Arthur from obtaining
counsel to proceed with his federal habeas petition in a timely manner
under AEDPA because he could have requested counsel from the federal
court. 21 U.S.C. § 848(q)(4)(B); McFarland v. Scott, 512 U.S. 849
(1994).
'S Arthur concedes that a number of circuits in addition to the Eleventh
Circuit have considered and rejected his argument that Coleman created
an exception to Giarratano when the post-conviction proceedings are the
first Opportunity to raise an ineffective assistance claim. Mackall v.
Angelone, 131 F.3d 442 (4th Cir. 1997) (en banc); Martinez v. Johnson,
255 F.3d 229, 240-41 (Sth Cir. 2001); Nolan v. Armontrout, 973 F.2d
615, 617 (8th Cir. 1992); Bonin v. Calderon, 77 F.3d 1155 (9th Cir.
1996); Parkhurst v. Shillinger, 128 F.3d 1366 (10th Cir. 1997). Doc. 35,
p. 19-20, n. 4.
Al8
above, Arthur has not shown that any state action “deprived”
him of counsel for pursuit of post-conviction proceedings.
Arthur contends that it is of no consequence that post-
conviction counsel is made available to Alabama petitioners
who survive summary review because the main concern is to
protect the ability of an inmate to prepare a petition or
complaint. Bounds v. Smith, 430 U.S. 817 (1977). However, the
Giarratano court rejected the notion that Bounds required
appointment of post-conviction counsel before the filing of a
petition. 492 U.S. at 10, n. 5. Again, there is no evidence that
Arthur or any other Alabama death row inmate requested
counsel from the State court and was refused or suffered a
summary disposition of his claims.
Arthur further argues that the State deprived him of his
constitutional right of access to the courts because the death row
law library at Holman Prison is inadequate in that volumes are
missing and books are scattered about the room. He claims the
poor library coupled with the lack of counsel prevented him
from having the tools he needed to attack his sentence. Lewis,
518 U.S. at 345, citing Bounds, 430 U.S. 817 (1977).
In a June 21, 2002, affidavit, Naomi Lyons, a correctional
officer at Holman State Prison whose duties include oversight
of the prison law library, stated that there is one general library
in Holman Prison which contains the current United States
Code. Doc. 40, Ex. G. She attested that the death row law
library has not been kept current and is used primarily as a day
room but death row inmates may request books from the prison
law library. /d.’° Arthur does not dispute Ms. Lyon’s statement
that he had access to the materials from the general prison
library, but restricts his argument to the inadequacies of the
'© Arthur “reserves the right to dispute the State’s factual assertions about
the library system” because he was unable to interview Ms. Lyons. Doc.
41, p. 10, n. 2. He further argues that the State did not show that death
row inmates were notified they no longer had a library, when and how the
death row library was changed to a day room, what procedures exist for
requesting a book from the general population library or how many books
may be requested and how long they might be kept. As discussed above,
Arthur did not disclaim access to the general population library.
Al9
death row library. See Arthur’s Affidavit, attached to Doc. 36.
He, therefore, has failed to allege or show any actual injury
resulting from the Holman Prison library facilities. Lewis, 518
U.S. at 343 (to establish a Bounds violation, the “actual injury”
that an inmate must demonstrate is that the alleged
shortcomings in the prison library have hindered his efforts to
pursue a nonfrivolous legal claim). Again, Bounds did not
create an abstract, free standing right to a law library and an
inmate claiming a Bounds violation must show actual injury.
Lewis, 518 U.S. at 351, 355.’
Arthur contends that merely providing a law library, without
counsel, failed to ensure that he would be able to avail himself
of the state or federal court process in any meaningful way.
However, the Bounds court specifically concluded that states
must supply a law library or counsel. 430 U.S. 817 (1977). The
Giarratano court specifically concluded that the Bounds
“meaningful access” language did not abrogate the subsequent
conclusion in Finley that states were not required to provide
counsel for inmates in post conviction proceedings. Giarratano,
492 US. at 11-12.
In summary, Arthur has not established that he was actually
injured by Alabama’s scheme for providing inmate access to the
courts. Lewis, 518 U.S. at 351. He did not avail himself of the
procedure for obtaining an attorney under Rule 32.7 and he
cannot now show that he would have been denied counsel had
he pursued that avenue of relief. Furthermore, he has provided
no support for any claim that the death row inmates at Holman
Prison have inadequate access to library facilities. In short, the
State did not place any unconstitutional impediment to Arthur’s
filing of his federal habeas petition sufficient to statutorily toll
the AEDPA limitations period.
'7 In Helton v. Sec’y for the Dep't of Corrections, the Eleventh Circuit
found that equitable tolling was not warranted vased on allegations that
prison library facilities lacked the latest amendments to the habeas statute
where the inmate made no specific allegations about his attempts to
otherwise obtain the statute. Helton, 259 F.3d 1310 (11th Cir. 2001).
IV. Equitable Tolling
AEDPA’s statute of limitations can be equitably tolled
“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); Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999). Equitable tolling is an extraordinary remedy which
is typically applied sparingly. Steed, 219 F.3d at 1300.
To obtain the benefit of equitable tolling, the petitioner bears
the burden of showing (1) “extraordinary circumstances; (2)
which prevented him from timely filing his petition; and (3) due
diligence. Helton v. Sec’y for the Dep’t of Corrections, 259 F.3d
1310 (11th Cir. 2001).'* The “extraordinary circumstances”
standard applied by the Eleventh Circuit focuses on the
circumstances surrounding the late filing, rather than the
circumstances surrounding the underlying conviction. Jd. at
1314-15. The petitioner bears the burden of proving entitlement
to equitable tolling. Jones v. United States, 304 F.3d 1035, 1040
(11th Cir. 2002). Arthur argues that his failure to file a timely
petition is due to the State’s failure to provide him with notice,
legal assistance, visits from investigators who wanted to help
him, or adequate law library facilities.
First, Arthur argues that he did not receive the certificate of
judgment triggering the limitations period and he was not
represented by counsel when it was issued on April 7, 1998.'°
'S Arthur contends that, because there is a particular need for collateral
review of capital cases, the threshold at which a court is willing to find
the “extraordinary circumstances” to warrant tolling must be lower, citing
Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001). But see Cantu-Tzin v.
Johnson, 162 F.3d 295 (Sth Cir. 1998) (denying stay of execution where
petitioner filed a time-barred habeas petition and no facts warranted
equitable tolling). The Eleventh Circuit has not indicated that the standard
for equitable tolling of the AEDPA statute of limitations should be
different in capital and non-capital cases.
' The State presented evidence tending to show that Arthur was aware
that his initial appeal through the state courts was complete and that the
Alabama Supreme Court had issued a final ruling on March 20, 1998,
A21
The Eleventh Circuit considered a similar argument in Drew v.
Dep’t of Corrections, 297 F.3d 1278, 1287 (11th Cir. 2002).
Drew claimed equitable tolling applied to his delay in filing
because he did not receive a court order until almost a year after
it was issued. Jd. The Eleventh Circuit rejected this argument
because Drew “made virtually no effort to ascertain the status”
of his claim and his lack of diligence ultimately prevented him
from filing his habeas petition until long after the AEDPA
limitations period had expired. Jd. The court said,
A lengthy delay between the issuance of a necessary
order and an inmate’s receipt of it might provide a basis
for equitable tolling if the petitioner has diligently
attempted to ascertain the status of that order and if the
delay prevented the inmate from filing a timely federal
habeas corpus petition.
Id. at 1288, citing Knight v. Schofield, 292 F.3d 709 (11th Cir.
2002). Arthur has made no attempt to show he diligently
attempted to ascertain the status of his case in the state court. In
view of the long period of time in which Arthur did nothing to
pursue his claims, his failure to show that the lack of notice
prevented him from making a timely filing, and his failure to
show he attempted to ascertain the status of his case, this court
will not say he acted with diligence with regard to the notice.
Second, Arthur contends the statute should be equitably
tolled because he was unable to obtain legal assistance. He
claims Holman Prison inmates have no access to paralegal or
attorney assistance. Arthur Affidavit, Doc. 36. However, Arthur
is not entitled to counsel on collateral review and his failure to
procure outside counsel is not an extraordinary circumstance
warranting equitable tolling. Even if his failure to obtain private
counsel were extraordinary, Arthur has not shown he acted with
due diligence. His extensive mail and internet campaign to
even though no certificate of judgment was filed 18 days thereafter as
required by Ala. R. App. P. 41(a).
A22
obtain private counsel did not satisfy his obligation to pursue
his habeas claims with diligence.”°
Third, Arthur contends the State hampered his efforts to
obtain outside counsel by placing restrictions on his ability to
communicate with anyone who might have been able to help
him. He presents evidence showing that the warden of Holman
Prison refused to permit visits from investigators who were
interested in his case.”' In this regard, the court notes that the
record includes copies of numerous letters Arthur sent in his
attempt to find private counsel. See, e.g. Doc. 36, Ex. A and B.
The voluminous correspondence belies his claim that he was
unduly restricted in his search for private representation.
Moreover, restrictions on visitors for prison inmates is not an
extraordinary circumstance and Arthur’s evidence that he tried
to meet with private investigators does not show that he
diligently pursued his claims.
Finally, Arthur contends his efforts to obtain post-conviction
relief were hampered by the State’s failure to provide adequate
law library facilities. As discussed above, Arthur limited his
contentions to the death row library and did not acknowledge
the existence of the general prison library. There is no evidence
the general prison library was inaccessible or otherwise
inadequate. Furthermore, like the petitioner in Helton, Arthur
makes no showing that he asked for the amendments to the
habeas corpus statute or otherwise made an independent effort
2° Arthur’s claim that he failed to file a timely petition because he lacked
counsel is peculiarly lacking in force in view of the evidence that Arthur
insisted on acting as his own counsel during his trial. Particularly in this
case, this court is unwilling to say that a quest for counsel, without more,
showed diligence in pursuing habeas claims.
*! Arthur does not claim the warden's action was uncoestitutional. The
Constitution does not require that prisoners be able to conduct
generalized research, but only that they be able to present their grievances
to the courts. Lewis v. Casey, 518 U.S. at 360. As the Lewis court noted,
even as to constitutional rights, certain restrictions are permissible if they
are related to legitimate penological interests.
A23
to determine the limitations period. 259 F.3d at 1314.” Again,
the evidence fails to show an extraordinary circumstance
beyond the petitioners control. And, like the petitioner in
Helton, Arthur has not shown he was diligent in ascertaining the
applicable limitations period.
Arthur finally argues that even if these factors did not
separately amount to extraordinary circumstances, combined
together they satisfy his burden. To the contrary, nothing is
extraordinary about an inmate who is subject to limitations on
visitors and who must follow procedures to obtain counsel and
library materials. Only Arthur’s failure to avail himself of those
procedures is extraordinary, but that failure was not outside his
control. Other circuits have concluded that a lack of legal
knowledge is not an extraordinary circumstance warranting
equitable tolling. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th
Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171-72 (Sth Cir.
2000); and see Tower v. Phillips, 7 F.3d 206, 211 (11th Cir.
1993) (ignorance of post-conviction remedies does not excuse a
procedural default). Moreover, Arthur has not shown he
exercised due diligence in pursuing his claims within the
limitations period. Sandvik, 177 F.3d at 1271-72. “Employment
of equitable tolling in [these circumstances! would cause the
precise abuse that the AEDPA was enacted to prevent by
creating Opportunities for convicted prisoners to delay filing
motions for post-conviction relief... .” Jones, F.3d at 1044.
V. Conclusion
Arthur’s petition for habeas corpus relief is barred by the
AED?PA limitations period. The court has examined Arthur's
claims of actual innocence, statutory tolling and equitable
tolling and finds them without merit. Accordingly, the petition
2 The District Court found Helton received misinformation from his
counsel regarding the applicable statute of limitations, but the Eleventh
Circuit concluded the attorney's miscalculation or mistake was not an
extraordinary circumstance. See Steed v. Head, 219 F.3d 1298 (11th Cir.
2000).
A24
will be DISMISSED with prejudice. The “Motion for Leave to
Conduct Discovery,” Doc. 33 will be DENIED. A separate
order in conformity with this opinion will be entered.
Done, this 4th of December, 2002.
s/ Edwin Nelson
Edwin Nelson
United States District Judge
A25
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Petitioner,
VS.
]
J
]
]
MICHAEL BALES, | CV-01-N-0983-S
Commissioner, ]
Alabama Department of ]
Corrections,, ]
]
J
Respondent.
FILED
03 JUN-5 AM 9:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
ENTERED
JUN 05 2003
Memorandum of Opinion
This is an action for habeas corpus relief under 28 U.S.C.
§ 2254 by an Alabama state prisoner under a sentence of death.
On December 4, 2002, this court entered its opinion and order
denying Arthur’s petition, concluding that his failure to file his
petition within the one-year period imposed by The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) could not be excused because he did not show he
was actually innocent of the crime for which he was convicted!
and he otherwise failed to establish he was entitled to statutory
or equitable tolling of the one-year limitations period. This
' Arthur was tried, convicted and sentenced to death for the murder of
Troy Wicker.
A26
court also denied Arthur’s “Motion for Leave to Conduct
Discovery.” (Doc. 33.) The cause is presently before the court
for consideration of Arthur’s “Motion to Alter or Amend
Judgment,” filed December 18, 2003. (Doc. 57.) Arthur claims
the court erred in failing to permit discovery on the threshold
questions of actual innocence and equitable and statutory
tolling. The motion has been fully briefed by the parties and is
ready for submission. Upon due consideration, the motion will
be DENIED.
Arthur seeks discovery of certain physical evidence and an
evidentiary hearing to get testimony from lately-proffered
witnesses who claim knowledge of his whereabouts on the date
of Troy Wicker’s murder. He claims the evidence may support —
his gateway claim of actual innocence. This court has
previously denied his requests. (Doc. 55, pp. 5-8, 15.)
A habeas petitioner is not entitled to discovery as a matter of
course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a)
of the Rules Governing § 2254 Cases provides:
A party shall be entitled to invoke processes of discovery
available under Federal Rules of Civil Procedure if, and
to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do
so, but not otherwise.
A demonstration of “good cause” requires “specific
allegations” showing reason to believe that the petitioner may,
if the facts are fully developed, be able to demonstrate that he is
entitled to habeas relief. /d. at 908-09. Furthermore, “[i]n
passing AEDPA . .. Congress modified the discretion afforded
to the district court and erected additional barriers limiting a
habeas petitioner's right to discovery or an evidentiary
hearing.” /saacs v. Head, 300 F.3d 1232, 1248-49 (lith Cir.
2002) (applying the diligence standard of 28 U.S.C.
§ 2254(e)(2) to petitioner's request for discovery and
evidentiary hearing). See Williams v. Taylor, 529 U.S. 420
(2000). Section 2254(e)(2), which governs hearings under
AEDPA, provides, in pertinent part:
A27
If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the applicant
shows that
(A) the claim relies on—
(i) A new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable;
or
(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).
Section 2254(e)(2) applies only when “the applicant has
failed to develop the factual basis of a claim in State court
proceedings.” /d. Thus, a prisoner can avoid application of
§ 2254(e)(2) by showing he was diligent in his efforts to
discover the facts. Williams, 529 U.S. at 434-35. Arthur cannot
satisfy this threshold inquiry.
The physical evidence Arthur seeks to test includes Judy
Wicker’s bloody clothing, a rape kit created the day of the
murder, a wig and hair samples from the Wicker residence, the
bullet removed from the victim’s body, spent cartridge casings
found at the murder scene, and a pillowcase found beneath the
victim’s head. None of this evidence is new or was unknown to
Arthur during the state court proceedings. Arthur belatedly
claims he diligently sought to test this evidence during the state
court proceedings, and points to a motion made by counsel at
his third trial, seeking “[a]ll clothing taken as evidence from. . .
any person,” and “[a}ll other physical evidence taken by the
State from the scene of the alleged crime or from any victim as
part of its investigation in this case, including but not limited to,
A28
seminal fluid, spent bullets, bullet casings, and so forth.”
However, he has not shown that he pursued this request any
further.’ A similar one-time request was found to be insufficient
evidence of diligence in Williams v. Taylor, 529 U.S. at 439-40.
Arthur has not pointed to any record of an attempt in state
court to show that Alphonso High, Ray Melson, or Billy
Peebles had information about his whereabouts on the morning
of Troy Wicker’s murder.* He does not contend that he was
previously unaware that these men might have knowledge of his
whereabouts on the day of the murder, and to do so would be
incredible since the testimony now proffered would be that he
was in their company on that day. Again, this claim was known
to Arthur, but not diligently pursued in state court.”
* “Motion to Inspect, Examine, and Test Physical Evidence,” dated
July 5, 1991, cited at n.1, “Thomas D. Arthur’s Motion to Alter or
Amend Judgment,” Doc. 57.
* Testimony about the bullet, casings, wig and hair samples was received
at Arthur’s third trial. See Memo. Opinion, Doc. 55, pp. 10-12. There is
no indication that the defense pursued any claim regarding testing of the
[sic] these or other materials during the subsequent state cour
proceedings. Arthur v. State, 711 So. 2d 1031, 1047, 1065, 1068-69 (Ala.
Cr. App. 1996). DNA testing was available in Alabama before Arthur’s
third trial in 1991. See, e.g., Dubose v. State, 662 So. 2d 1156 (Ala. Cr.
App. 1993).
* The court notes that, in conjunction with a request for continuance,
Arthur made a non-specific claim that other witnesses needed to be
examined. He did not specifically name any witness. Arthur, 711 So. 2d
at 1068-69. Arthur has not pointed to any place in the state court record
that would evidence a previous attempt to obtain testimony from these
affiants.
* The court has considered Arthur's renewed arguments that the affidavits
are sufficient to support his gateway claim of actual innocence, and finds
no reason to change its initial conclusion that the affidavits were not the
“new, reliable evidence” required by Schlup v. Delo, 513 U.S. 298
(1995). Arthur offers no explanation for his long delay in submitting this
evidence. Although he claims his counsel was constitutionally deficient,
he has not pointed to any single instance in any of his three trials or in
any of his appeals in which he informed a state court of the existence of
these witnesses. Specifically, the court notes that Arthur substantially
participated in the presentation of his defense at the third trial and he had
A29
When a habeas petitioner fails to “make a reasonable
attempt, in light of information available at the time, to
investigate and pursue claims in state court,” he may not obtain
discovery or an evidentiary hearing unless he satisfies the
requirements in the balance of § 2254(e)(2). Williams, 529 U.S.
at 440. Arthur has not attempted to show that he can satisfy the
requirements of Subparagraph (A), and there is no evidence that
the discovery he is seeking relates to a “new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable
or a factual predicate that could not have been previously
discovered through the exercise of due diligence.” Neither has
he met the additional requirements of Subparagraph (B), ©
showing that “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.”
many exchanges with the trial court, but he did not tell the court that he
knew of relevant alibi witnesses his attorneys failed to investigate.
° Relying on O'Neal v. Lampert, 199 F. Supp. 2d 1064 (D. Oregon 2002),
Arthur argues that the Schlup v. Delo “more likely than not” standard
should apply to his discovery requests because he is secking discovery to
establish his “gateway” claim of actual innocence. Although the O’Neal
court made a distinction, for discovery purposes, between claims on the
merits and claims brought to toll the statute of limitations, it did not offer
any explanation for doing so. The Eleventh Circuit has recognized that
discovery in habeas cases, previously pursued under Bracy and Rule 6(a)
of the Rules Governing § 2254 Cases, was further limited by AEDPA.
Isaacs v. Head, 300 F.3d 1232, 1248-49 (11th Cir. 2002) (discussing
Bracy and Rule 6(a) and adding, “[iJn passing AEDPA, however,
Congress modified the discretion afforded to the district court and erected
additional barriers limiting a habeas petitioner’s right to discovery or an
evidentiary hearing.”) See also Crawford v. Head, 311 F.3d 1288 (11th
Cir. 2002) (same). Nothing in § 2254(e)(2), /saacs, or Crawford supports
Arthur's claim that § 2254(e)(2) does not apply to his discovery for
“gateway” claims. Indeed, such an interpretation would appear to be
contrary to the purposes of AEDPA. Moreover, this court is satisfied that
the proposed discovery would not yield evidence showing Arthur's
factual innocence even under the more lenicnt “more likely than not”
A30
Furthermore, if Rule 6(a) applies rather than Section
2254(e)(2), Arthur’s conjectures about the relevance of the
evidence to his claim of actual innocence fall far short of
“specific allegations showing reason to believe” that the fully
developed facts might entitle him to relief. Bracy, 520 U.S. at
908-09. Arthur seeks DNA testing of the blood on Judy
Wicker’s clothing, stating that he wants to show her assailant
was someone other than him, but he offers no “reason to
believe” that the blood on Judy Wicker’s clothing came from
anyone other than Judy Wicker. Arthur seeks to examine the
“afro” wig and Negroid hair samples taken from Judy Wicker’s
car, contending testimony that the hair was forcibly removed
and the inside of the wig was free of hair was inconsistent with
Wicker’s testimony that Arthur wore a black wig to disguise
himself. While there has been no explanation for the hair found
in the car and the lack of hair in the wig, the findings are not
inconsistent with Wicker’s testimony. Further, Arthur offers no
“reason to believe” his examination would reveal anything other
than what is already established, and therefore, there is no
“reason to believe” his examination could show he is “more
than likely” innocent.
Arthur seeks access to the bullet recovered from Troy
Wicker’s body and four spent cartridge casings found at the
scene, claiming Patricia Green's testimony that she sent a third
party to purchase .22 mini magnum long rifle bullets for Arthur
on the day before the murder was insufficiently corroborated by
the ballistic expert’S testimony that the recovered bullet was a
.22 long rifle caliber consistent with a CCI brand mini mag and
the four shell casings were CCI brand .22 long or long rifle
casings. But, Green's testimony was consistent with the
testimony of the ballistic expert and does not require
corroboration. Moreover, Arthur does not offer “reason to
believe” that his’examination of the bullet and casings will
reveal any different information from that already discovered by
the experts.
standard. Accordingly, this court concludes O'Neal v. Lampert is not
persuasive.
A3l
Arthur seeks access to a gunpowder-tainted pillowcase and
crime scene photographs arguing he must resolve an
inconsistency between the ballistic expert's testimony and the
autopsy report regarding the “critical issue” of whether the gun
was fired at close or far range. However, he offers no
explanation for his conclusory claim that this discrepancy is
“critical” to his claim of actual innocence. He implies that he
might be able to impeach Judy Wicker’s testimony that her
husband was sleeping when he was shot, but Wicker did not
testify about the distance from which Troy Wicker was shot.
Arthur seeks to test Judy Wicker’s rape kit. He alleged in his
initial motion and in his present motion that Judy Wicker
previously testified a “black man” forced his way into her
home, beat her, raped her, and killed her husband, but he did not
point to any evidence of record that supports his assertion.
(Doc. 33, 57.) This court’s review of the published opinions and
the transcript of Arthur’s last trial did not uncover any
testimony that Judy Wicker was raped or that she had sexual
intercourse on the morning of her husband’s murder. Arthur has
not offered any reason to believe that testing the rape kit would
help show he was “more likely than not” actually innocent of
Troy Wicker’s murder. Similarly, Arthur has not explained how
examination of vacuum sweepings of the Wicker home cou:d
show he is “more tikely than not” actually innocent.
Finally, none of the physical evidence can help Arthur
establish his gateway claim of actual innocence because such a
claim must rest on “new reliable evidence” which was “not
presented at trial.” Schiup v. Delo, 513 U.S. 298, 324 (1995).
Although Arthur clair:s some of the items were not tested, he
does not claim or shew that the items or proposed tests were
unavailable at the time of ‘his trial. Many of the items were
admitted at trial. Thus, this evidence is not “new” as required by
Schlup.
Arthur also seeks discovery of material regarding the
availability of law library facilities at Holman Prison,
contending that the AEDPA statute of limitations should be
equitably tolled because the death row law library did not have
a copy of the new statute. The AEDPA statute of limitations can
A32
be tolled until “the date on which [an] impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action.” 28 U.S.C. § 2244(d)(1)(B). As discussed
in the initial opinion, Arthur did not show he suffered any
“actual injury” resulting from the Holman Prison library
facilities.’ (Doc. 55, pp. 19-20.) Lewis v. Casey, 518 U.S. 343,
351, 355 (1996) (inmate does not have abstract, free-standing
right to a law library and must show “actual injury” in that the
alleged shortcomings hindered his efforts to pursue a
nonfrivolous legal claim). Like the petitioner in Helton v.
Secretary for the Department of Corrections, 259 F.3d 1310
(11th Cir. 2001), Arthur claims only that the Holman death row
library is deficient and makes no specific allegations about his
attempts to otherwise ascertain the applicable statute of
limitations. (Arthur Affidavit, Doc. 36.) The discovery he
seeks® may or may not reveal shortcomings in the Holman
’ The State provided evidence that the “death row” library no longer
existed and that death row inmates had access to a general population
library containing a current United States Code. The court previously
noted that Arthur did not dispute this evidence but limited his argument
to a claim that the death row library was inadequate. Arthur now contends
that he failed to rebut the evidence because his affidavit was submitted
before the State’s submission of evidence. (Doc. 57, p. 8.) However,
Arthur had an opportunity to reply to the State’s submission and this
court accepted other evidence Arthur offered in connection with his reply.
He offers no explanation for his failure to submit a responsive affidavit or
to otherwise dispute the State’s cvidence about the library at Holman
Prison. Arthur has never stated that he was unaware of the availability of
the general library.
* Arthur seeks to discover “documents covering the period from 1988
through 2000 and concerning (1) books and other written materials
carried by the (death row) library, including their titles, volumes,
versions, copyright dates, and number of copies; (2) the organization and
categorization of books and written materials carried by the library; (3)
federal habeas corpus statutes carried by the library, including
amendments, volumes, titles, and sections; (4) the budget of the death
row library, including itemizations of funds earmarked for books,
staffing, repairs to the premiscs, and other expenses; (5) the number of
A33
library system, but it wil! not lead to information about the
efforts Arthur made to ascertain his rights, which is an essential
element lacking in his constitutional claim. There is no “good
cause” for discovery when the proposed discovery is not aimed
at obtaining evidence to support a constitutional claim. Bracy v.
Gramley, 520 U.S. 898, 905-06 (1997).
Upon reconsideration, the court finds no reason to alter its
previous decision in this matter. Accordingly, Arthur’s “Motion
to Alter or Amend Judgment,” filed December 18, 2003, will be
denied by separate order.
Done, this 4th of June, 2003.
s/ L. SCOTT COOGLER
L. SCOTT COOGLER
UNITED STATES DiSTRICT JUDGE
typewriters, photocopying machines, stamps, paper and pens available to
death row inmates, including their costs and complaints about
malfunctions, and the schedule of maii pickup and delivery; (6) any
activities or services located in or available at the death row library not
directly related to reading, writing, and research; (7) the schedule and
hours during which the library can be accessed, and the number of death
row inmates who have accessed the library, including any unsuccessful
attempts; and (8) document retention or destruction policies of Holman in
effect from January |, 1998 to the present.” Doc. 33, attached memo., pp.
12-13.
A34
Thomas D. ARTHUR, Petitioner—Appellant,
v.
Richard F. ALLEN, Respondent—Appellee.
No. 03-14304.
United States Court of Appeals, Eleventh Circuit.
June 21, 2006.
Suhana S. Han, Sullivan & Cromwell, LLP, Theresa Marie
Trzaskoma, Brune & Richard, LLP, New York City, for Arthur.
J. Clayton Crenshaw, Montgomery, AL, for Allen.
Appeal from the United States District Court for the
Northern District of Alabama.
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. Facts'
Except as otherwise cited, the facts are taken from opinions of the
Alabama Court of Criminal Appeals. See Arthur v. State, 711 So.2d
A35
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 that the man raped her,
knocked her unconscious, and shot Troy. Wicker was
subsequentiy charged and convicted of murdering Troy to
collect smsurance proceeds, and was sentenced to life
imprisonrnent. 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. R1I-22, Exh. Vol. 9 at 747-48. Wicker
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 1V’) for an overall picture of the
evolution of this case’’).
A36
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.” Jd. at 748-51. She saw him the next week and
began a sexual relationship with him. At 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 | 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 | February, he observed Wicker driving east toward the
airport and, about 10 minutes later, returning toward her house.
He did 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
A37
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.
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
A38
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 exclusionary rule, /n re Arthur, 472 So.2d 665, 668-70
(Ala.1985) (“Arthur IT’), 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 IIT’).
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. /n re Arthur v. State,
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 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. /d. at 16-18. Arthur
explained that he attempted to communicate with Del Grosso
through at least thirteen letters and at least forty telephone calls,
A39
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. | 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
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. Jd. 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
A40
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. /d. at 1233, 1236-37.
The trial court found that the 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 VIT’). He was
initially represented by attorney John P. Rall and, upon his
withdrawal, by attorney Lajuana Davis. /d. 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. RI-1 at 149. In January
2001, Arthur’s state petition for postconviction relief pursuant
to Alabama 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.? 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
* Attorney Levine represented Arthur in these filings.
A4l
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 VIIT’).’ 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, 152 L.Ed.2d 819 (2002) (“Arthur X”).*
On 20 April 2001, Arthur, represented by attorneys Levine
and E. Niki Warin, filed a federal petition for writ of habeas
corpus.” The district court stayed the federal petition for writ of
* Levine again represented Arthur in this proceeding.
* Levine represented Arthur in these filings.
> 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; 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,
10 L.Ed.2d 215 (1963); and failing to provide him with the basic tools to
present a defense.
Arthur also raised other issucs, 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 Mawed;
and that his third retrial constituted double jeopardy. He also argued that
his right to a reliable sentencing was violated when: the verdict form
A42
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.°
Arthur v. Haley, 248 F.3d 1302, 1303 (11th Cir.2001) (per
curiam) (“Arthur XT’).
Following the dismissal of Arthur’s state postconviction
petition, Arthur filed a memorandum in support of his federal
habeas petition.’ In the memorandum, Arthur argued that his
untimely claims should be considered because he was actually
innocent and because Alabama created an 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.
ll. ISSUES
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.
° In the appeal from the order granting a stay of execution, Arthur was
represented by attorneys Levine and Bryan A. Stevenson. Arthur X/, 248
F.3d at 1302.
’ 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.
A43
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.
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.
Ill. 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 vy.
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 (1ith 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, 138 L.Ed.2d 97 (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
discretion when it makes an error of law.” Koon v. United
A44
States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d
392 (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).
IV. DISCUSSION
We begin 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;
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
A45
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. Jd. at 1218-19; see also Sibley v. Culliver,
377 F.3d 1196, 1205 (1 1th Cir.2004) (“Following Wyzykowski,”
we declined to reach the merits of whether the Suspension
Clause requires an exception to the § 2244 limitations period
because ihe petitioner failed to make a sufficient showing of
actual innocence).
B. Arthur’s Claims of Exception to the Statute of Limitations
1. Actual innocence
In 2002, Arthur submitted affidavits in support of his claim
of actual innocence.* 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.” Jd. 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
* 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.
A46
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. /d. 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.” /d. 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. /d. 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 |
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 |.
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
Attorney General’s office appeared in their office “carrying a
gun in his holster.” R2-41, Exh. A at 2,45. 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 waat to be arrested for perjury. /d.
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,
qq 19-20.
A47
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, 130 L.Ed.2d 808 (1995)
(quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639,
2649, 91 L.Ed.2d 397 (1986)). The petitioner meets the
“probably resulted”’ standard by demonstrating, 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.” /d. at
329, 115 S.Ct. at 868. The petitioner 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.” Jd. 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.” /d. 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, 4 10;
R3-—54, Exh. A, Gustat Aff. at 4,99. 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, 9 3; R3-54, Exh. Gustat Aff. at
4,4 9; 8-9, 94] 21-22. Melson corrected the details in a draft of
A48
his initial affidavit, and spent time and energy to have his
affidavit notarized. See R3-54, Exh. Gustat Aff. at 5-6, 9 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. /d. at
2-8, TF 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
neither Arthur, High, nor Melson came forward with the
information during Arthur’s three trials or 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.
The new affidavits of High and Melson are insufficient to
satisfy the 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, 122 L.Ed.2d 203 (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
A49
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 “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 murder’ and documents concerning
the Holman Prison death row library.'° The district court
® 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.
'° Arthur sought a detailed list and categorization of the books, federal
habeas corpus statutes, and other written matcrials carried by the library;
the budget of the library; information concerning the typewriters,
photocopying machines and writing materials available to the inmates;
ASO
denied the request for the physical crime evidence finding that
the evidence regarding his actual innocence claim would “{aJt
best . . . impeach Judy Wicker’s testimony” and would not
establish his actual innocence claim.'' 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.” /d. 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 (1I]th
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, 22 L.Ed.2d 281 (1969)). A petitioner claiming
actual, and not legal, innocence will typically show that the
wrong person was convicted of the crime. Sawyer, 505 U.S. at
activities and services located in cr 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.
'' 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. /d. 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 cuilt phase.
ASI
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(citation omitted).
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, 146 L.Ed.2d 435 (2000). “[A] failure to develop the
factual basis of a claim is not established unless there is lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel.” /d. 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
AS2
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).'? 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. /saacs, 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 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
'2 & 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.” McDonaid v. Johnson, 139 F.3d 1056, 1059 (Sth
Cir.1998).
A53
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 of 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 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
shal] 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;
A54
(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, 106 L.Ed.2d | (1989) (holding
that Pennsylvania v. Finley, 481 U.S. 551, 555-57, 107 S.Ct.
1990, 1993-94, 95 L.Ed.2d 539 (1987) applied to death penalty
cases).'> 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 of
counsel if the petitioner’s postconviction relief petition is not
summarily dismissed. Ala. R.Crim. P. 32.7(c).'4 Similarly, an
'3 See also Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546,
2566, 115 L.Ed.2d 640 (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, 140 L.Ed.2d 387 (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).
'* Although Alabama suggests 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.
A5S5
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 vy. Scott, 512 U.S. 849, 858-59, 114 S.Ct. 2568,
2573-74, 129 L.Ed.2d 666 (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, 52 L.Ed.2d 72 (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
v. Casey, 518 U.S. 343, 355-56, 116 S.Ct. 2174, 2182, 135
L.Ed.2d 606 (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.” /d., 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
> 66
R.Crim. P. 32, App., Petition for Relief from Conviction or Sentence at In
Forma Pauperis Declaration.
AS6
Justice Initiative of Alabama, in Montgomery, Alabama.'* 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 maintained nor
updated. Jd. If a death row inmate needs specific materials, the
inmate can request the materials from the maintained and
current library. /d. 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
'S 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.” /d. at 2.
AS7
until after the filing of a petition containing the grounds with
“full 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 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
1] 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 |. He explained that
he had spent time “trying to get exact-correct mailing address”
AS8
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. Jd. 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. /d. 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.'® Arthur did
not subsequently file a petition for writ of certiorari to the
Supreme Court.
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.” Jd. 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. /d. at 3. The next day, the warden responded that
Curenton would be accommodated “[{wjhen 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. /d. 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 believed that he had
‘© The record does not contain a response from the Supreme Court to this
letter.
AS9
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 extracidinary remedy, equitable tolling “is
typically applied sparingly.” Jd. 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 establish
both. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807,
1815, 161 L.Ed.2d 669 (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.2005),
cert. granted on other grounds, U.S. ——, 126 S.Ct.
1625, 164 L.Ed.2d 332 (2006).””
'’ 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, — US.
—, 126 S.Ct. 1625, 164 L.Ed.2d 332 (2006).
A60
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, 17 !4—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.'®
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.” /d.
Absent such evidence, the connection between the petitioner’s
untimely filing and any alleged inadequacies in the library is
insufficient. fd.
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
'8 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.20°?) (no
equitable tolling where petitioner failed to show that the respu: dents
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 (Sth 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.”)
A6]
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 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.
V. CONCLUSION
Arthur has not shown that he 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.
A62
Thomas D. ARTHUR, Petitioner—A ppellant,
v.
Richard F, ALLEN, Commissioner, Alabama Department
of Corrections, Respondent—A ppellee.
No. 03-14304.
United States Court of Appeals, Eleventh Circuit.
Aug. 14, 2006.
Suhana S. Han, Sullivan & Cromwell, LLP, Theresa Marie
Trzaskoma, Brune & Richard, LLP, New York City, for Arthur.
J. Clayton Crenshaw, Montgomery, AL, for Allen
On Appeal from the United States District Court for the
Middle District of Alabama (No. 01-00983-CV-N-S); L. Scott
Coogler, Judge.
ON PETITION FOR REHEARING AND PETITION FOR
REHEARING EN BANC
(Opinion June 2!, 2006, 11th Cir., 2006, 452 F.3d 1234)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Upon consideration of the petitioner-appellant’s petition for
rehearing, the opinion, Arthur v. Allen, 452 F.3d 1234 (11th
Cir.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, 452 F.3d 1234 at 1247-48, is deleted,
and the following is substituted in its place:
A63
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-£7, to believe that the evidence
sought would “raise[] sufficient doubt about [his] guilt to
undermine confidence in the result of the trial.”' Schlup,
513 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, 22 L.Ed.2d 281 (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 198]
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 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
' 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 revicw of a defaulted claim based on an
allegation of actual innocence. House v. Bell, — U.S. — , 126 S.Ct.
2064, 165 L.Ed.2d 1 (2006); Sibley v. Culliver, 377 F.3d 1196, 1207
(11th Cir.2004).
! A64
Bracy, 520 U.S. at 909, 117 S.Ct. at 1799. The district
court did » abuse its discretion in denying Arthur’s
request for avery and an evidentiary hearing.
In all other respects, the petition for rehearing and rehearing
en banc is DENIED.
A65
DEPARTMENT OF FORENSIC SCIENCES
HUNTSVILLE DIVISION
P.O. BOX 120
HUNTSVILLE, ALABAMA 35804
CARLOS L. RABREN AUBURN
DIRECTOR
March 16, 1982
Re: Case 02-82-15167
Judy Wicker, subject
Ref: 82-20615 HV
MEMORANDUM |_| To File 7
BY Roger Morrison, Criminalist
SUBJECT Examination of Physical Evidence
February 3, 1982, at 1700 hours, the following evidence
was received from Criminalist J.G. Wallace for analysis:
¢ One sealed MARKIT Rape Kit labeled in part with the
subject’s name and containing:
a. one red-stoppered vial of blood identified as from Judy
Wicker.
s
fingernail scrapings.
head hair sample.
€.
d.
e. pubic hair combings.
3
g. vaginal swabs and slides.
saliva sample.
pubic hair sample.
A66
RESULTS:
The blood sample from Judy Wicker reacted in a manner
consistent with ABO group A blood.
No debris was observed in the fingernail scrapings.
The saliva sample was bloody, however, it reacted in a manner
consistent with having come from a group A secretor.
No hairs were found in the pubic hair combings.
A small number of spermatozoa were identified in the vaginal
swabs and slides. A and H antigens were detected in the
vaginal swab.
RDM:shs
s/ Roger Morrison
“FORENSIC SCIENCES INVOLVE THE APPLICATION OF
SCIENCE AND MEDICINE TO THE PURPOSES OF
JUSTICE”
A67
STATE OF ALABAMA
DEPARTMENT OF FORENSIC SCIENCES
FLORENCE DIVISION
P.O. BOX 2234
FLORENCE, ALABAMA 35630
April 28, 1982
VAN V. PRUITT, JR., AUBURN
ASSISTANT DIRECTOR
JOHN H. KILBOURN, FLORENCE
LABORATORY SUPERVISOR
(205) 767-0710
Re: Case 01A-82-20615
Troy Wicker, Jr., subject
Case 02-82-15167
Judy Wicker, subject
MEMORANDUM To File
BY J. G. Wallace, Criminalist
SUBJECT Examination of Scene
February 1, 1982, at 1015 hours, the undersigned was
requested to examine a residence located at 301 Highland
Avenue, Muscle Shoals, Alabama by Lieutenant Robert
Hall of the Muscle Shoals Police Department.
Examination of the interior of the house revealed it to be in
complete disarray. Closet, drawer and cabinet contents
were on the floor.
The bed in the rear bedroom contained the body of a white
male identified as Troy Wicker, Jr. The body was
positioned on its back with the bed covers pulled up to chest
level.
A68
Numerous black particles were noted on the bed, along with
four spent cartridge casings. Numerous reddish-brown
stains, appearing to be blood, were located on the wall
behind the head of the body.
The den area of the house contained, along with other
things, one pair of pants, one blouse and a pair of panties.
The house was examined for the presence of latent
fingerprints and the following items were removed and
returned to the laboratory:
1, Four spent cartridge casings removed from bed
“5 One pillow and pillow case removed from under the
head of the body
2 One billfold with numerous pictures and paper
removed from floor in rear bedroom
+ One can of Consort hair spray removed from
bathroom located off rear bedroom
One small wooden box from rear bedroom closet
6. One hand mirror removed from bathroom located
off hall
% One can of Style hair spray removed from bathroom
located off hall
8. Three cups and ten glasses removed from floor
adjacent to kitchen
9. One cookie jar removed from kitchen
10. One Crisco can removed from kitchen
11. One peanut butter jar removed from kitchen
ts One popcorn jar removed from kitchen
13. One vase and top removed from den
14. Sample of carpet fibers from den floor
15.
16.
17.
A69
Clothes (pants, blouse and panties) removed from
den floor
One cigarette butt from den floor
One nail clipping from den floor
The following latent print lifts of value were removed from
the house or from items removed from the house and
transferred to the Identification Unit of the Alabama Bureau
of Investigation in Montgomery, Alabama. The results of
their examination are covered in separate reports to this file.
10.
Nine latent fingerprint lifts from a popcorn jar found in
the kitchen. These prints are identified by ABI as
Lat. #’s 1, 2, 3, 4, 11, 12, 19, 20, 21.
One latent lift from a hand mirror found in the hall
bathroom and identified by ABI as Lat. #5
Three latent lifts from the vase removed from den and
identified by ABI as Lat. #’s 6, 7, 8
One latent lift from the vase top and identified by ABI
as Lat. #9
One latent lift removed from the mirror in the bathroom
located off the rear bedroom and identified by ABI as
Lat. #10
Three latent lifts removed from the Style hair spray can
and identified by ABI as Lat #’s 13, 14, 15
Three latent lifts removed from the Crisco can and
identified by ABI as Lat. #’s 16, 17, 18
One latent lift removed from the peanut butter jar and
identified by ABI as Lat. #22
Two latent lifts removed from cookie jar and identified
by ABI as Lat. #’s 23, 24
One latent lift removed from hall bathroom vanity top
and identified by ABI as Lat. #25
A70
11. One latent lift removed from the top of the clothes dryer
and identified by ABI as Lat. #27
12. One latent lift removed from the top of the dresser
located in the rear bedroom and identified by ABI as
Lat. #28
Examination of the Consort hai spray can, wooden box,
cups and glasses revealed no latent prints of value.
On the same day, Lieutenant Tom Berryman of the Muscle
Shoals Police Department submitted one rape kit bearing
the name Judy Wicker.
February 2, 1982, the undersigned returned to the house
located at 301 Highland Avenue and removed vacuum
sweepings from the den carpet and one hair removed from a
bedroom slipper found in the den.
The following items were transferred to the Huntsville
Laboratory. Their findings are covered tn separate
memoranda to this file.
1. One rape kit bearing the name Judy Wicker and clothing
from den floor
2. Four spent cartridge casings
One pillow case removed from bed under head of the
body
4. Carpet fibers from den floor
Vacuum sweepings from den floor
6. Hair removed from slipper on den floor
JGW:rd
s/ J.G. Wallace
A7\
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Petitioner,
VS.
MICHAEL HALEY,
Commissioner, Alabama
Department of Corrections
Respondent.
)
)
)
)
)
: Case No. CV-01-N-983-S
)
)
)
)
)
AFFIDAVIT OF ALPHONSO HIGH, Il
STATE OF ALABAMA
) ss:
COUNTY OF MADISON
ALPHONSO HIGH, III, being first duly sworn to oath,
deposes and says:
1. I reside at 2317 Powers Avenue, N.W. Huntsville,
Alabama and currently own Copper’s Homes, located at 5710
Highway 53 Harvest, Alabama.
2. In 1982, | owned Copper Mobile Homes, located in
Decatur, Alabama off of Highway 67 (Beltline) in a shopping
mall.
3. On the morning of February 1, 1982 around 9 a.m.,
Tommy Arthur stopped by my business and I believe he was
driving his Ford LTD. We talked for approximately 30 minutes
about the mobile home business and he asked if I had any work
for him. I told him that I didn’t and that I was on my way to
A72
Birmingham, Alabama. He asked what I was going to do in
Birmingham and | told him that ] had a trailer to set up.
4. During our conversation, I didn’t notice anything
unusual about Tommy. He acted like he always did, and he did
not appear to be nervous or agitated.
5. The following day I heard about the murder of Troy
Wicker, either by watching television or talking to someone. |
never gave it any more thought until about two months later
when I heard that Tommy Arthur had been arrested for murder.
I began thinking about Tommy and the date of the murder. It
was then that I recalled that I had spoken to Tommy the
morning of the murder.
6. I did not tell anybody about my conversation with
Tommy on the morning of February |, 1982 with Mr. Arthur. |
had never been approached by the police or Tommy’s trial or
appellate attorneys.
Dated: June 7th, 2002
s/ Alphonso High, II]
Alphonso High, Ill
SWORN TO AND SUBSCRIBED before
me this 7th day of June, 2002.
Notary Public s/ Teresa McDonald
My Commission Expires: 09/28/04
A73
STATE OF ALABAMA )
COUNTY OF MADISON )
AFFIDAVIT OF ALPHONSO HIGH III
Before me, the undersigned authority, this day personally
appeared Alphonso High III, who is known to me and who after
being by me first duly sworn does depose and says as follows:
“My name is Alphonso High III. I have previously provided
an affidavit in a federal habeas proceeding relating to Thomas
D. Arthur.”
“In early May 2002, I was contacted by Stephen J. Gustat. It
was my understanding that Mr. Gustat was an investigator for
Tommy Arthur. Because I have known Tommy Arthur since
1971, I was willing to provide any assistance to Mr. Gustat that
I could. I did agree to provide an affidavit. In early June 2002,
Mr. Gustat arrived at my place of business with a previously
prepared affidavit.”
“It was stated in my previous affidavit that I saw Tommy
Arthur on the morning of February 1, 1982, around 9:00 a.m. at
my place of business. Upon further consideration, I cannot say
for sure whether I saw Tommy Arthur on February |, 1982, or
whether it was another day in late January or early February of
that same year. I am also not sure whether it was 8:30 or 9:00
o’clock in the morning the day that I saw him.”
Further affiant sayeth not.
s/ Alphonso High III
Alphonso High III
STATE OF ALABAMA )
COUNTY OF MADISON )
Sworn to before me on this the 19" day of June, 2002.
s/ Teresa McDonald
NOTARY PUBLIC
My commission expires: Sept. 28, 2004
A75
STATE OF ALABAMA )
)
COUNTY OF ESCAMBIA _ )
AFFIDAVIT OF NAOMI LYONS
Before me, the undersigned authority, this day personally
appeared Naomi Lyons, who is known to me and who after
being by me first duly sworn does depose and says as follows:
“My name is Naomi Lyons. I am a correctional officer with
the Alabama Department of Corrections. I am assigned to the
inmate Control Services (“ICS”) at Holman State Prison. I have
worked in this capacity since 1997. Part of my duties at the
prison is to oversee the prison law library.”
“At Holman State Prison, there is one law library. There is a
room for the death row inmates that also contains legal books,
but this is not a law library that is maintained and kept current.
This room is used more as a day room. The legal books kept in
that room are there only as a convenience to the inmates. If
there is a legal book that is not in the day room, the death row
inmates may request the book from the prison law library. The
prison law library, which contains the United States Code, has
been maintained current and up-to-date.”
Further affiant sayeth not.
s/ Naomi Lyons
Naomi Lyons
STATE OF ALABAMA )
)
COUNTY OF ESCAMBIA )
Sworn to before me on this the 21 day of June, 2002.
s/ C. Williams Jr.
NOTARY PUBLIC
My commission expires: 7/7/04
A76
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Petitioner,
VS.
)
)
)
)
MICHAEL HALEY, )
Commissioner, Alabama __)
Department of Corrections, ) Case No. CV-01-N-983-S
)
)
)
)
)
Respondent.
DECLARATION OF SUHANA S. HAN
I, Suhana S. Han, declare the following under penalty of
perjury:
1. 1am an attorney assisting Arnold J. Levine, counsel of
record for Petitioner Thomas D. Arthur, in this action. I submit
this declaration in further support of Mr. Arthur’s Petition for a
Writ of Habeas Corpus.
2. On May 3, 2002, an investigator assisting Mr. Arthur’s
counsel interviewed Alphonso High in connection with this case
at Mr. High’s home in Huntsville, Alabama. During that
interview, which lasted for about 30 minutes, I understand that
Mr. High informed the investigator that he had seen Mr. Arthur
at Copper Mobile Homes in Decatur around 9 a.m. on the |
morning of Troy Wicker’s murder. I further understand that
Mr. High recalled that, at the time of Mr. Arthur’s arrest,
Mr. High knew that he had seen Mr. Arthur on the morning of
the murder. Even at the time of his interview in 2002, Mr. High
was so sure about his recollection that he pounded his fist on the
A77
kitchen table for emphasis and was able to recall particular
details of his activities of the day in question.
3. On June 7, 2002 during the afternoon, Mr. Arthur’s
investigator met with Mr. High at Copper’s Homes in Harvest,
Alabama. The investigator presented Mr. High with a draft of
an affidavit that counsel had prepared based on the information
Mr. High had given during the interview. I understand that
Mr. High’s assistant, Teresa McDonald, reviewed the draft and
made some changes, that the investigator and Ms. McDonald
read the changes to Mr. High, and Mr. High also reviewed each
page slowly before signing it. I was informed that this process
took about three hours.
4. When I received Mr. High’s second affidavit, dated
June 19, 2002, which had been procured through the efforts of
Respondent’s counsel, I was concerned and believed that a full
inquiry was warranted. In accordance with my ethical
obligations to ensure that the Court receives testimony that is
reliable, accurate and uncoerced, I decided to meet with
Mr. High to determine whether his first affidavit was truthful, or
whether it was untruthful and therefore needed to be withdrawn.
5. On July 16, 2002, I went to Copper’s Homes and met
with Mr. High to discuss his second affidavit. Mr. High’s
assistant, Teresa McDonald, told me that two men from the
Attorney General’s office had stopped by at Copper’s Homes;
one brought a laptop computer and the other was carrying a gun
in his holster. I was also told that one of the men typed up the
affidavit that same day and Mr. High signed it. When | asked
Mr. High about the information he had provided in his first
affidavit, he told me that although he could recall the sequence
of events, that is, that he had spoken with Mr. Arthur one
morning at 8:30 a.m. or 9 a.m. and heard the next day that a
man was murdered while sleeping, he could no longer recall the
exact dates some 20 years ago when those events had occurred.
6. On July 17, 2002, I returned to Copper’s Homes again
to speak to Mr High. I asked him whether he would be willing
to sign another affidavit describing his recollection of
A78
Mr. Arthur’s visit without mentioning the February 1, 1982
date. Mr. High said that he did not want to sign another
affidavit. He emphasized that he has a family to support and a
business to run, and that he did not want to get involved in any
proceeding that could take him away from his business
indefinitely. Mr. High also said that he did not want to be
“carried away” in handcuffs or go to jail for perjury. At no time
did Mr. High present any information to indicate that he was
being untruthful with respect to the material facts in his initial
affidavit.
7. Based upon this conversation, | believe that Mr. High
fears that testifying on behalf of Mr. Arthur would result in
economic loss, harassment, or even prosecution by the State of
Alabama.
8. Pursuant to 28 U.S.C. § 1746, I declare under penalty
of perjury that the forgoing is true and correct.
Dated: August 14, 2002
s/ Suhana S. Han
Suhana S. Han
125 Broad Street
New York, New York 10004
A79
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Petitioner,
VS.
)
)
)
)
MICHAEL HALEY, )
Commissioner, Alabama __ )
Department of Corrections, )
)
)
)
)
)
Case No. CV-O1-N-983-S
Respondent.
AFFIDAVIT OF RAY MELSON
STATE OF ALABAMA
) ss:
COUNTY OF MORGAN )
RAY MELSON, being first duly sworn to oath, deposes and
Says:
1. In 1982, I worked for Alphonso High, who at the time
owned Copper Mobile Homes in Decatur. One morning in
1982, as we were preparing for a trip to Birmingham to set up a
double-wide trailer, Tommy Arthur visited Copper Mobile
Homes between 8 a.m. and 9a.m. We had just finished our
breakfast of biscuits and coffee.
2. We talked with Tommy for about 20 to 30 minutes.
He did not appear nervous and seemed like his usual self.
Tommy asked us where we were going, and Alphonso told him
that we were on our way to Birmingham to set up a trailer.
Tommy volunteered to go with us but Alphonso said that he did
not need additional help. On our way to Birmingham,
A80
Alphonso joked about how Tommy tried to get himself hired.
After we had set up the trailer, we returned to Decatur and
played a game of Rook.
3. The day after Tommy visited Copper Mobile Homes, I
heard on the television news that a man had been shot while
sleeping and that the murder had occurred the previous day (on
the day of Tommy’s visit). I later learned that the man who had
been shot was Troy Wicker.
4. When I heard that Tommy had been arrested for Troy
Wicker’s murder, I realized that I had seen Tommy on the
morning of the murder. In fact, at the time, Alphonso and I
discussed that we had seen Tommy on the morning of Troy
Wicker’s murder, and that we would have expected Tommy to
be nervous or agitated, but he wasn’t.
5. I have not spoken to anybody in the past 20 years
about my conversation with Tommy Arthur on the morning of
Troy Wicker’s murder.
6. I did not tell Tommy’s trial and appellate lawyers
about my conversation with Tommy on the morning of Troy
Wicker’s murder because they never approached me.
7.. Ihave reviewed this affidavit and its contents are true
to the best of my knowledge.
Dated: August 2, 2002
s/ Ray Melson
Ray Melson
SWORN TO AND SUBSCRIBED before
me this 2nd day of August, 2002.
Notary Public s/ Kelly Dean
My Commission Expires:
A8]
STATE OF ALABAMA )
)
COUNTY OF MORGAN )
AFFIDAVIT OF RAY MELSON
Before me, the undersigned authority, this day personally
appeared Ray Melson, who is known to me and who after being
by me first duly sworn does depose and says as follows:
“My name is Ray Melson. I have previously provided an
affidavit in a federal habeas proceeding relating to Thomas D.
Arthur.” .
“About a month ago or so, I was contacted by Stephen J.
Gustat. Mr. Gustat told me that he was an investigator for
Tommy Arthur. I met with Mr. Gustat a couple of times.
During one of the times that I met with Mr. Gustat, I signed the
affidavit that I referred to above. The affidavit was prepared for
me and provided to me by Mr. Gustat. On the day that I signed
the affidavit, 1 was on some strong medication, pain and
otherwise. The medication was for a nerve block. Because of
the medication, I really do not remember much of what
happened that day. I do remember telling Mr. Gustat about the
medication. I reviewed today the affidavit that I provided
previously. But, until today, I did not really remember what
was in the affidavit, or if I even read it the day that I signed it.”
“On September 20, 2002, an individual from the Alabama
Attorney General’s Office and the Colbert County District
Attorney's Office came to my house. As it turns out, the
gentleman from the Attorney General’s Office was David
Clark. The gentleman from the District Attorney's Office was
Rocky Holden. I spoke to them voluntarily. I understood that I
did not have to speak to them. At no point did I ever feel
pressured or intimidated during my meeting with Mr. Clark and
Mr. Holden.”
“After reading the affidavit that I provided previously, I have
decided to provide this affidavit in an effort to clarify some
things. I am providing this affidavit voluntarily. 1 must also say
that | am not on any medication today that would impair my
A82
ability to understand what I am attesting to in this affidavit.
Essentially, what ! said in the previous affidavit about Tommy
coming over on the day that we delivered the mobile home to
Birmingham was true and correct. I must say, though, that
Tommy came over that day some time between 7:30 or 10:00
that morning. I cannot say exactly what day it was that Tommy
came over (the day we were going to deliver the mobile home
to Birmingham). All I can say is that it was cold that day. I
can’t even say what month it was exactly. But, the information
in paragraphs three and four of my previous affidavit is not
correct. I do not believe that I said those things to Mr. Gustat.
As I stated previously, on the day I signed that affidavit, 1 was
on some strong medication and do not remember much of what
happened that day.”
“I remember hearing about Troy Wicker’s murder. My
memory is that the murder occurred in the beginning part of
1982. I do not remember when it was that I heard about Troy
Wicker’s murder. I know that in my previous affidavit that I
said that I saw Tommy on the morning that Troy Wicker was
murdered, but I cannot say that with any certainty now. I do not
believe that that is what I told Mr. Gustat. I was on the
medication the day I signed that affidavit, and so I really did not
understand what was going on. Certainly, if I can say with any
confidence that I was with Tommy on the morning that Troy
Wicker was murdered, I would be the first to go to court and tell
that to the judge. But, I cannot say that the morning I saw
Tommy - the day we delivered the mobile home to Birmingham
- was the same day that Troy Wicker was murdered. I just don’t
know if I saw Tommy the morning Troy Wicker was murdered.
I really do not believe that I can say anything that would either
hurt or help Tommy.”
Further affiant sayeth not.
s/ Ray Melson
Ray Melson
A83
STATE OF ALABAMA )
COUNTY OF MORGAN )
Sworn to before me on this the 20" day of September, 2002.
s/ Linda D. Crow
NOTARY PUBLIC
My commission expires: 12-20-2003
A84
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS D. ARTHUR,
Petitioner,
v.
MICHAEL HALEY,
Commissioner, Alabama
Department of Corrections
Respondent.
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Case NO. CV-01-N-983-S
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AFFIDAVIT OF STEPHEN J. GUSTAT
STATE OF FLORIDA )
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COUNTY OF HILLSBOROUGH )
STEPHEN J. GUSTAT, being first duly sworn to oath,
deposes and says:
1. I am a licensed private investigator and have been
retained to investigate potential mitigation and exculpation
issues relevant to Mr. Thomas Arthur’s case. I have worked as
an investigator in similar matters for more than twenty years. I
received a Master of Science degree in criminal justice
administration from Troy State University in Alabama, which is
where I also received my Bachelor of Science degree in
criminal justice. In addition, I have received certifications from
the International Association of Chiefs of Police, the Florida
Institute for Law Enforcement, and the National Defender
Investigator Association, as well as training in Florida Police
Standards.
A85
2. lamcurrently an adjunct professor in the Criminology
Department at the University of Tampa in Florida, where I
teach courses in criminal defense investigation, criminal
procedure, and introduction to criminology and juvenile
delinquency. I have written articles in various newsletters,
including the National Defender Investigator Association
Newsletter, the Capital Concerns Newsletter, and the Florida
Public Defender Investigator Association Newsletter.
3. 1 was previously the chief investigator at the State of
Florida’s Capital Collateral Regional Counsel, Middle District,
where I supervised eleven investigators and oversaw all
investigations. Earlier, I worked as an investigator at the
Volunteer Lawyers’ Resource Center in Tallahassee, Florida
and at the Tenth Judicial Circuit Public Defenders’ Office in
Bartow, Florida, where I was recognized as the “Investigator of
the Year’’ by the Florida Public Defenders Association. Prior to
working at the Public Defenders’ Office, 1 was a police officer
at the Sebring Police Department in Florida for five years. I
served with the U.S. Army, including a tour of duty in Vietnam.
4. In my experience in law enforcement and capital
investigations, 1 have interviewed more than one thousand
individuals.
First Meeting with Ray Melson
5. On August 1, 2002, I interviewed Mr. Ray Melson for
approximately an hour and a half at his home. His wife, Ann
Melson, was also present. Mr. Melson mentioned that he was
experiencing some back pain but would wait to take medication
until after we were finished. At all times during the interview,
Mr. Melson was alert and coherent and did not exhibit any signs
of being under the influence of pain medication. In fact,
although Mrs. Melson interrupted us on several occasions,
Mr. Melson had no problem resuming our discussion and
expressing himself clearly; I did not have to repeat any of my
questions.
A8&6
6. During the interview, I explained to Mr. Melson that I
was investigating Thomas Arthur's case. I asked him to
describe the last time he had seen Mr. Arthur. Mr. Melson told
me that he had seen Mr. Arthur one morning in 1982 at Copper
Mobile Homes on a day that he, Alphonso High and others were
preparing to deliver a mobile home to Gardendale, a suburb of
Birmingham. Mr. Melson told me that shortly after they had
started their trip, Mr. High had joked that Mr. Arthur was trying
to get himself hired. Mr. Melson also mentioned that while
they were trying to set up the trailer, its wheels had gotten stuck
in clay. I include these details to illustrate the sorts of facts,
relayed by Mr. Melson, that suggested to me, as a trained and
experienced investigator, that Mr. Melson’s recollections were
coherent, credible and inconsistent with his being on
medication.
7. I asked Mr. Melson whether he could remember the
time of Mr. Arthur’s visit and he told me that it was between 8
a.m. and 9 a.m. Mr. Melson explained that he usually arrived to
work at 7:30 a.m. and ate breakfast with the other workers. On
the day of Mr. Arthur’s visit, it was his turn to buy breakfast.
Mr. Melson told me that he had bought breakfast for the group
and went to Mr. High’s office; they finished breakfast around
8:15 a.m. Mr. Melson also told me that Mr. Arthur arrived after
everyone had finished their breakfast and that he stayed for
about 20 to 30 minutes.
8. I asked Mr. Melson whether he could remember the
date of Mr. Arthur’s visit but he was unable to do so. However,
Mr. Melson did recall that the day after Mr. Arthur’s visit be
had heard on the news that a man was murdered while sleeping
and that the murder had occurred the day before. Mr. Melson
also recalled that after he had learned about Mr. Arthur’s arrest
for Troy Wicker’s murder, at that time he and Mr. High talked
about Mr. Arthur. They discussed the fact that they had seen
Mr. Arthur on the morning of the murder.
9. After Mr. Melson told me that he had seen Mr. Arthur
between 8 a.m. and 9 a.m. on the morning of Troy Wicker’s
murder, he asked me how this information wa
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