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                                       No. 95-2734
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Scott Frizzell,                            *
                                           *
                       Appellant,          *
                                           * Appeal from the United States
            v.                             * District Court for the
                                           * District of Nebraska
Frank X. Hopkins,                          *
                                           *
                       Appellee.           *

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                         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
        1
Court        for the District of Nebraska denying his petition for writ
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



            *The Honorable Catherine D. Perry, United States
            District Judge for the Eastern District of
            Missouri, sitting by designation.
        1
      The Honorable Richard G. Kopf, United States District Judge
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.
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.




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