                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-3269
                                     ___________

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Department of Correction,                 * [UNPUBLISHED]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.                    *
                                     ___________

                           Submitted: May 30, 2000
                               Filed: August 7, 2000
                                   ___________

Before McMILLIAN, BRIGHT, and MURPHY, Circuit Judges.
                            ___________

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.

      1
       The 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
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


of Arkansas.
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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.


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