1The Honorable William R. Wilson, Jr., United States District Judge for the

Eastern District of Arkansas, adopting the report and recommendations of the

Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3269

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Rickey Hale Daffron, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Larry Norris, Director, Arkansas *

Department of Correction, * [UNPUBLISHED]

*

Appellee. *

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 Submitted: May 30, 2000

 Filed: August 7, 2000

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Before McMILLIAN, BRIGHT, and MURPHY, Circuit Judges.

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PER CURIAM.

Rickey Daffron was convicted of raping his nine-year-old stepdaughter, raping

his ten-year-old stepdaughter, and attempting to rape his twelve-year-old daughter.

After his convictions were affirmed in appellate and postconviction proceedings in

Arkansas state court, Daffron sought relief in federal court pursuant to 28 U.S.C.

§ 2254. He appeals the district court’s1 dismissal with prejudice of his habeas petition.
of Arkansas.

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We granted a certificate of appealability on two issues: whether Daffron’s assertion

of actual innocence excuses his procedural default of certain claims in state court, and

whether Daffron’s trial counsel was ineffective for failing to discuss fully the terms of

an offered plea bargain. For the reasons discussed below, we affirm.

When a habeas petitioner raises actual innocence to excuse his procedural

default, he must support his allegations with new, reliable evidence that was not

presented at trial. See Schlup v. Delo, 513 U.S. 298, 324 (1995). Daffron points to

four pieces of evidence that he claims would show his actual innocence: sealed divorce

court records, juvenile court testimony, Department of Human Services reports, and

school transfer paperwork. We conclude that none of these items are “new,” however.

Prior to trial, Daffron told his counsel about the existence of the first three items.

This evidence is therefore not new because Daffron or his counsel, through the exercise

of due diligence, could have obtained it for use at trial. See Amrine v. Bowersox, 128

F.3d 1222, 1230 (8th Cir. 1997) (en banc) (“evidence is new only if it was not available

at trial and could not have been discovered earlier through the exercise of due

diligence”), cert. denied, 523 U.S. 1123 (1998). Even if Daffron was unaware of the

existence of the school transfer paperwork at the time of trial, he knew the information

which he claims it would show: the address where he, his ex-wife, and the children

were residing. See Johnson v. Norris, 170 F.3d 816, 819 (8th Cir. 1999) (facts of

which defendant was aware at trial, and to which defendant could have testified, are

not new evidence); Bannister v. Delo, 100 F.3d 610, 618 (8th Cir. 1996) (document is

not new evidence if defendant was aware at trial of facts contained in document, even

if defendant was not aware of document itself), cert. denied, 521 U.S. 1126 (1997).

Next, Daffron claims that his trial counsel was ineffective for failing to discuss

fully a plea offer. According to Daffron, his counsel told him that the State had offered
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a plea bargain under which Daffron would receive a three-year sentence, and predicted

that Daffron would not be convicted of any of the charges. If Daffron had known how

counsel was going to perform at trial, he claims, he would have accepted the plea offer.

This claim fails for two reasons. First, both Daffron’s trial counsel and counsel

for the State deny that there was ever such a plea offer. See Kingsberry v. United

States, 202 F.3d 1030, 1032-33 (8th Cir. 2000) (to establish prejudice, petitioner must

prove that government in fact formally offered plea agreement; petitioner’s statement

that such offer existed fails to demonstrate its existence when his trial counsel and

government both agree that there was no such offer), petition for cert. filed, No. 99-

9048 (Apr. 12, 2000). Second, Daffron has continuously maintained his innocence.

See United States v. Stevens, 149 F.3d 747, 748 (8th Cir.) (rejecting claim that trial

counsel was ineffective for failing to advise defendant of advantages of pleading guilty,

where defendant maintained his innocence at post-trial motion hearing; defendant failed

to establish reasonable probability that he would have pleaded guilty if properly

advised, and thus failed to show prejudice), cert. denied, 525 U.S. 1009 (1998);

Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995) (rejecting claim that trial

counsel was ineffective for failing to advise defendant of advantages of accepting

offered plea agreement where defendant, inter alia, maintained his innocence at trial

and continued to assert his innocence after trial).

Accordingly, we affirm the judgment of the district court. We also deny

Daffron’s motion for appointment of new counsel.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.