FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 14, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-14304

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THOMAS D. ARTHUR,

Petitioner-Appellant,

versus

RICHARD F. ALLEN,

Commissioner, Alabama Department of Corrections,

Respondent-Appellee.

__________________________

On Appeal from the United States District Court for the

Northern District of Alabama

_________________________

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion June 21, 2006, 11 Cir., 2006, _____ F.3d_____) th

BEFORE: BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM: 
 We recognize that the provisions of 18 U.S.C. § 2254(e)(2) for obtaining an evidentiary

1

hearing are not applicable to a petitioner’s first federal habeas petition seeking review of a defaulted

claim based on an allegation of actual innocence. House v. Bell, U.S. , 126 S. Ct. 2064 (Jun.

12, 2006); Sibley v. Culliver, 377 F.3d 1196, 1207 (11th Cir. 2004). 

2

Upon consideration of the petitioner-appellant’s petition for rehearing, the 

opinion, Arthur v. Allen, F.3d , 2006 WL 1687574 (11 Cir. Jun 21, 2006), we make th

the following modifications. 

The discussion and analysis that follows the second paragraph under IV.

DISCUSSION, B. Arthur’s Claims of Exception to the Statute of Limitations, 2.

Entitlement to a Hearing and Discovery, F.3d at , 2006 WL 167574, at *10, is

deleted, and the following is substituted in its place:

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

matter of ordinary course,” but may be obtained upon showing “good

cause,” Bracy, 520 U.S. at 904, 117 S. Ct. at 1796-97, to believe that the

evidence sought would “raise[] sufficient doubt about [his] guilt to

undermine confidence in the result of the trial.” Schlup, 517 U.S. at 317, 1

115 S. Ct. at 862. Good cause is demonstrated “‘where specific allegations

. . . show reason to believe that the petitioner may, if the facts are fully

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

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

286, 300, 89 S. Ct. 1082, 1091 (1969)). Thus, good cause for discovery

cannot arise from mere speculation. It is not enough, for example, to allege

that “DNA testing could demonstrate that the same person who raped Judy

Wicker also physically assaulted her, that this person’s blood was on her

blouse, that his hair was found in the Wicker residence, that he was in Judy

Wicker’s 1981 Buick Riveria, and that this person was not Mr. Arthur.” 

Arthur’s Petition for Rehearing at 14. 

Recognizing that discovery cannot be ordered on the basis of pure

hypothesis, Arthur’s request relies heavily on the affidavits of High and

Melson. But the credibility of those documents is fundamentally wounded

by the affiants’ own substantial retraction of the very content advanced to
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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.