Scott Frizzell v. Frank X. Hopkins ( 1996 )


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  •                                       ____________
    No. 95-2734
    ____________
    Scott Frizzell,                            *
    *
    Appellant,          *
    * Appeal from the United States
    v.                             * District Court for the
    * District of Nebraska
    Frank X. Hopkins,                          *
    *
    Appellee.           *
    ____________
    Submitted:    December 14, 1995
    Filed:     July 3, 1996
    ____________
    Before McMILLIAN and BEAM, Circuit Judges, and PERRY,* District
    Judge.
    ____________
    McMILLIAN, Circuit Judge.
    Scott Frizzell appeals from a final order entered in the District
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    Court        for the District of Nebraska denying his petition for writ
    of habeas corpus.          Frizzell v. Hopkins, No. 4:CV93-3331 (D. Neb.
    June 16, 1995).         The district court found that procedural default
    barred habeas review of Frizzell’s claim that he had been denied
    jail time credit on the basis of indigence in violation of the
    equal protection clause.            For reversal Frizzell argues the
    *The Honorable Catherine D. Perry, United States
    District Judge for the Eastern District of
    Missouri, sitting by designation.
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    The Honorable Richard G. Kopf, United States District Judge
    for   the  District   of  Nebraska,   adopting  the  report and
    recommendation of the Honorable David L. Piester, United States
    Magistrate Judge for the District of Nebraska.
    district court erred in finding that (1) the claim was not so novel
    that it constituted cause to excuse procedural default and (2) a
    fundamental miscarriage of justice would not result if his claim
    were not considered.        On the merits Frizzell argues he is entitled
    to jail time credit.         For the reasons discussed below, we affirm
    the order of the district court.
    In August 1986 Frizzell pleaded guilty to one count of second
    degree murder and one count of second degree arson in Nebraska
    state     court.      The   state   trial      court   sentenced   Frizzell   to
    concurrent terms of 25 years on the murder count and not less than
    6 years nor more than 20 years on the arson count and granted him
    credit for jail time served between his guilty plea and sentencing,
    a total of 34 days.          Frizzell did not file a direct appeal.           In
    September 1989 Frizzell filed a motion for an order nunc pro tunc
    seeking credit for the 260 days of jail time served between the
    time of his arrest and his guilty plea.                 The state trial court
    denied the motion.          In June 1990 Frizzell filed a “petition for
    jail time credit” for the 260 days and for 84 days of good time
    credit.    The state trial court treated the petition as a motion for
    post-conviction relief and denied the motion.             Frizzell appealed to
    the state supreme court, which affirmed the denial on the grounds
    that the issue of jail time credit should have been raised on
    direct appeal and thus was not a proper claim for post-conviction
    relief.    State v. Frizzell, 
    243 Neb. 103
    , 105, 
    497 N.W.2d 391
    , 392
    (1993).    The state supreme court also noted that even if the motion
    was not     treated    as   a   motion   for    post-conviction    relief,    his
    argument was without merit in light of the state statute in force
    at the time the state trial court denied him jail time credit.                
    Id. (noting change
    from discretionary to mandatory language took place
    after Frizzell was sentenced and does not apply retrospectively).
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    Frizzell then filed the present petition for habeas relief.
    The magistrate judge initially recommended dismissal.   Frizzell
    objected and expressly referred to his argument that he had been
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    unable to post bond because of indigence.        The district court
    recommitted the matter to the magistrate judge for clarification in
    light of Frizzell’s now-express claim that the state’s failure to
    grant him jail time credit penalized him on the basis of indigence
    in violation of the equal protection clause because wealthier
    suspects would have been able to post bail and avoid pre-trial
    detention.     The magistrate judge concluded that although all
    available state remedies had been exhausted, the claim was subject
    to procedural default because it had not been properly presented in
    the state courts.   Slip op. at 3-7 (Oct. 17, 1994).    However, the
    magistrate judge decided that habeas review was not barred because
    the state supreme court had considered the claim on the merits.
    
    Id. at 7-9.
      The magistrate judge decided that Frizzell had a valid
    equal protection claim and recommended granting habeas relief.    
    Id. at 9-11.
         The state objected, and, upon de novo review, the
    district court adopted in part and rejected in part the magistrate
    judge’s recommendation.   The district court concluded that habeas
    review of the equal protection claim was barred because the state
    supreme court had addressed the merits of the equal protection
    claim in an alternative holding.    Slip op. at 6-10 (Jan. 25, 1995).
    The district court recommitted the matter to the magistrate judge
    for supplemental findings on whether cause and prejudice excused
    the procedural default or whether failure to consider the claim
    would result in a fundamental miscarriage of justice.         
    Id. at 10-11.
    The magistrate judge concluded that Frizzell had failed to
    show cause because his equal protection claim was not so novel that
    its legal basis was not reasonably available to counsel at the time
    for filing his direct appeal.   Slip op. at 3-5 (May 17, 1995).   The
    magistrate judge also concluded that Frizzell had failed to show
    that failure to consider the claim would result in a fundamental
    miscarriage of justice because he had made no claim of factual
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    innocence.   
    Id. at 8-9.
      The magistrate judge recommended that the
    habeas petition be denied.    The district court adopted the
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    magistrate judge’s recommendation and denied habeas relief.                This
    appeal followed.
    For reversal, Frizzell argues the district court erred in
    finding that his equal protection claim was not novel within the
    meaning of Reed v. Ross, 
    468 U.S. 1
    , 14 (1984), which held that
    cause may exist when the claim raised is so novel that there was no
    reasonable basis to have asserted it at the time of the procedural
    default.    Frizzell argues that at the time for filing his direct
    appeal,    in   November   1986,   the       legal   basis   for   his   federal
    constitutional    claim    was   not   reasonably      available    to   counsel
    because it was supported only indirectly by a handful of reported
    cases in this circuit and none in Nebraska.             We disagree.
    “If the ‘tools were available’ for a petitioner to construct
    the legal argument at the time of the state appeals process, then
    the claim cannot be said to be so novel as to constitute cause for
    failing to raise it earlier.”      McKinnon v. Lockhart, 
    921 F.2d 830
    ,
    833 (8th Cir. 1990) (per curiam) (citing Leggins v. Lockhart, 
    822 F.2d 764
    , 766 (8th Cir. 1987), cert. denied, 
    485 U.S. 907
    (1988)),
    cert. denied, 
    501 U.S. 1208
    (1991).           “The standard for determining
    novelty is not whether subsequent legal decisions make recognizing
    the issue easier, but whether at the time of the procedural default
    the claim was available at all.”         Leggins v. 
    Lockhart, 822 F.2d at 767
    .   Here, the legal tools needed to construct Frizzell’s equal
    protection claim to jail time credit were “reasonably available” at
    the time for filing his direct appeal in 1986.                As noted by the
    magistrate judge, this court recognized the legal basis for his
    equal protection claim to jail time credit in King v. Wyrick, 
    516 F.2d 321
    (8th Cir. 1975), more than 10 years before the procedural
    default occurred in the present case.           In that case the petitioner
    had been unable to post bail due to indigence and had spent 403
    days in jail between his arrest and sentencing.              The state courts
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    and the federal district court denied the petitioner’s claim for
    jail time credit.   This court reversed, holding that it is a denial
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    of equal protection not to grant an indigent prisoner credit for
    jail time served after he or she is unable to meet bail due to
    indigence, even on a prison term less than the allowable maximum
    prescribed by statute, because the prisoner “still must serve a
    longer term in connection with the offense than would a wealthier
    prisoner who is sentenced to the same term but who is able to meet
    bail to avoid incarceration before trial and sentencing.”            
    Id. at 323-24.
    Frizzell also argues that the district court erred in finding
    that failure to consider his equal protection claim to jail time
    credit would not result in a fundamental miscarriage of justice.
    We   disagree.    Assuming    for    purposes   of   analysis    that   the
    fundamental miscarriage of justice exception applies to non-capital
    sentences, Frizzell made no claim of factual innocence.          See, e.g.,
    Schlup v. Delo, 
    115 S. Ct. 851
    , 864 (1995) (holding factual
    innocence    is   “gateway”     to     consideration    of      independent
    constitutional violation otherwise barred by procedural default).
    Accordingly, we affirm the order of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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