THOMAS D. ARTHUR, PETITIONER-APPELLANT,
v.
RICHARD F. ALLEN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE

11th Cir. | 2006-08-14
No. 03-14304
Before BIRCH, BLACK and BARKETT, Circuit Judges.
459 F.3d 1310 Court of Appeals for the Eleventh Circuit (2006) Positive Treatment
Cited by 26 cases
Opinion of the Court
PER CURIAM:

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 at 1247-48, is deleted, and the following is substituted in its place: Generally, “[a] habeas petitioner ... is not entitled to discovery as a matter of ordinary course,” but may be obtained upon showing “good cause,” Bracy, 520 U.S. at 904, 117 S.Ct. at 1796-97, to believe that the evidence sought would “raise[ ] sufficient doubt about [his] guilt to undermine confidence in the result of the trial.” 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 1981 Buick Riveria, and that this person was not Mr. Arthur.” Arthur’s Petition for Rehearing at 14. Recognizing that discovery cannot be ordered on the basis of pure hypothesis, Arthur’s request relies heavily on the affidavits of High and Melson. But the credibility of those documents is fundamentally wounded by the affiants’ own substantial retraction of the very content advanced to support Arthur’s new alibi. For this reason, the affidavits do not furnish good cause to believe that the facts, if “fully developed” through the discovery sought, would be any different from those found at trial. See Bracy, 520 U.S. at 909, 117 S.Ct. at 1799.

The district court did not abuse its discretion in denying Arthur’s request for discovery and an evidentiary hearing. In all other respects, the petition for rehearing and rehearing en banc is DENIED. . We recognize that the provisions of 18 U.S.C. § 2254(e)(2) for obtaining an eviden-tiary hearing are not applicable to a petitioner’s first federal habeas petition seeking . review of a defaulted claim based on an allegation of actual innocence. House v. Bell, - U.S. -, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Sibley v. Culliver, 377 F. 3d 1196, 1207 (11th Cir.2004).

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Cited By (16 total)

  • Arthur v. King, 500 F.3d 1335 (11th Cir. 2007)
    …eal as moot. I. BACKGROUND The details of Arthur’s offense are set forth in our opinion affirming the district court’s judgment denying Arthur federal habeas relief. See Arthur v. Allen, 452 F. 3d 1234 (11th Cir.) (“Arthur XV”), modified on reh’g, 459 F. 3d 1310 (11th Cir.2006) (“Arthur XVI”), cert. denied, — U.S. -, 127 S.Ct. 2033, 167 L.Ed.2d 763 (2007) (“Arthur XVII”). Briefly, in 1982, Arthur, while serving a sentence for murder in the second degree and assigned to a work release center, murdered Troy…
  • Rozzelle v. Sec'y, Fla. Dep't OF Corr., 672 F.3d 1000 (11th Cir. 2012)
    …petition and appeal are governed by AEDPA. See Payne v. Allen, 539 F. 3d 1297, 1312 (11th Cir. 2008). This Court reviews de novo the district court’s dismissal of a § 2254 habeas petition. Arthur v. Allen, 452 F. 3d 1234, 1243 (11th Cir.), modified, 459 F. 3d 1310 (2006). The district court issued a certificate of appealability as to “whether there is an ‘actual innocence’ exception that will equitably toll the AEDPA statute of limitations period, and, if so, whether that exception should be available to a p…
  • Dewayne S. Cunningham v. Dist. Attorney's Off. FOR Escambia Cnty., 592 F.3d 1237 (11th Cir. 2010)
    …or DNA testing could be brought under the State’s general postconviction relief statute. . The underlying facts and earlier procedural history of the case are summarized in Arthur v. Allen, 452 F. 3d 1234, 1238-43 (11th Cir.2006), modified on reh’g, 459 F. 3d 1310 (11th Cir.2006). Arthur’s identification as the perpetrator had not been in much doubt at his trial, given that the victim’s wife had confessed to hiring Arthur to kill her husband. Even so, the state trial court ordered the Alabama Department of…

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