*The Honorable Catherine D. Perry, United State s

District Judge for the Eastern District o f Missouri, sitting by designation. The Honorable Richard G. Kopf, United States District Judge 1 for the District of Nebraska, adopting the report an d reco mmendationof the Honorable David L. Piester, United State s 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.

Sco tt Frizzell appeals from a final order entered in the Distric t Court f or the District of Nebraska denying his petition for wri t

1 of habeas corpus. Frizzell v. Hopkins , No. 4:CV93-3331 (D. Neb
. June 16, 1995). The district court found that procedural default barredhabeas review of Frizzell’s claim that he had been denie d ja il time credit on the basis of indigence in violation of th e equal protection clause. For reversal Frizzell argues the-2-

district court erred in finding that (1) the claim was not s o novel that it constituted cause to excuse procedural default and (2) a fun damental miscarriage of justice would not result if his clai m were not considered. On the m erits Frizzell argues he is entitled to jail time credit. For the reasons discussed below, we affir m 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 Nebrask a state court. The state trial court sentenced Frizzell t o concurrent terms of 25 years o n 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 sent encing,
a to tal of 34 days. Frizzell did not file a direct appeal. I n September 1989 Frizzell filed a motion for an order nunc pro tunc seeki ngcredit for the 260 days of jail time served between th e time o f his arrest and his guilty plea. The state trial cour t denie dthe motion. In June 1990 Frizzell filed a “petition fo r jail tim e credit” for the 260 days and for 84 days of good tim e credit. The state trial court treated the petition as a mot ion for post-conviction relief and denied the motion. Frizzell appe aled to the state supreme court, which affirmed the denial on the grounds that the i ssue of jail time credit should have been raised o n direct appeal and thus was not a proper claim for post-conviction relief. State v. Frizzell , 24 3 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, hi s argument was without merit in light of the state statute in force at the time the state trial court denied him jail time credi t. Id. (noting change from discretion ary to mandatory language took place after Frizzell was sentenced and does not apply retrospectively).-3-

Fr izzell then filed the present petition for habeas relief

. The magistrate judge initially recommended dismissal. Frizzel l objected and expressly referred to his argument that he had been-4-

unable to post bond because of indigence. The district cour t recommitted the matter to the magistrate judge for clarifica tion in light of Frizzell’s now-express claim that the state’s failure to grant him jail time credit pen alized him on the basis of indigence inviolation of the equal protection clause because wealthie r suspects would have been able to post bail and avoid pre-tria l detent ion. The magistrate judge concluded that although al l available state remedies had b een exhausted, the claim was subject to procedural default because it had not been properly prese nted 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 relie f. Id. at 9 -11. The state objected, and, upon de novo review, th e 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 protectio n claim in an alternative holding. Slip op. at 6-10 (Jan. 25, 1995). The district court recommitted the matter to the magistrate judge for su pplemental findings on whether cause and prejudice excuse d the pr ocedural default or whether failure to consider the clai m wouldresult in a fundamental miscarriage of justice. Id. a t 10-11.

The magistrate judge concluded that Frizzell had failed t o show cause because his equal protection claim was not so nov el that its legal basis was not reasonably available to counsel at t he time for filing his direct appeal. Slip op. at 3-5 (May 17, 1995 ). The mag istrate judge also concluded that Frizzell had failed to sho w that failure to consider the claim would result in a fundamenta l miscarriage of justice because he had made no claim of factua l-5-

innocence. Id. at 8-9. The magistrate judge recommended that the habeas petition be denied. The district court adopted the-6-

magistrate judge’s recommendation and denied habeas relief. This appeal followed.

For re versal, Frizzell argues the district court erred i n findingthat his equal protection claim was not novel within th e meaningof Reed v. Ross , 468 U.S. 1, 14 (1984), which held tha t cause may exist when the claim raised is so novel that there was no reasonable basis to have asser ted it at the time of the procedural default. Frizzell argues that at the time for filing his direc t appeal , in November 1986, the legal basis for his federa l
con stitutional claim was not reasonably available to counse l because it was supported only indirectly by a handful of reported cases in this circuit and none in Nebraska. We disagree.

“If the ‘to ols 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 (1 991). “The standard for determining novelty is not whether subsequ ent 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 equa l protection claim to jail time credit were “reasonably availa ble” at the time for filing his direct appeal in 1986. As noted by th e magist rate judge, this court recognized the legal basis for hi s 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 presen t case. In that case the petitioner hadbeen unable to post bail due to indigence and had spent 40 3 days in jail between his arrest and sentencing. The state courts-7-

and the federal district court denied the petitioner’s claim fo r jail time credit. This court reversed, holding that it is adenial-8-

of equal protection not to grant an indigent prisoner credit fo r jail time se rved after he or she is unable to meet bail due t o indigence, even on a prison term less than the allowable maximum prescr ibedby statute, because the prisoner “still must serve a longer term in connection with the offense than would a wealthier prisoner who is sentenced to t he 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 co urt erred in finding that failure to consider his equal protection claim to jail tim e
cre dit would not result in a fundamental miscarriage of justice

. We disagree. Assuming for purposes of analysis that th e 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 factua l innocence is “gateway” to consideration of independen t 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.