*The Honorable Catherine D. Perry, United States

District Judge for the Eastern District of

Missouri, sitting by designation.

 The Honorable Richard G. Kopf, United States District Judge 1

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.

____________

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

Court for the District of Nebraska denying his petition for writ

1

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
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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.