_____________ No. 96-2370EA

_____________ Jesse Jackson, * * Appellant, * * v. * On Appeal from the United * States District Court * for the Eastern District Larry Norris, Director, * of Arkansas. Arkansas Department of * Correction, * * Appellee. *

___________ Submitted: January 17, 1997 Filed: January 27, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge.
This is a petition for writ of habeas corpus filed by a prisoner in state c ustody. The prisoner, Jesse Jackson, has filed three previou s unsuccess ful petitions. He argues that the claim he now asserts i s "novel," see Reed v. Ross , 468 U.S. 1 (1984), and that, therefore, he has demonstrated cause fo r the claim's not having been included in any of his prior petitions. It follows, Jackson argues, that he is entitled to a decision on the merits of the claim.

### The Hon. James M. Moody, United States Di strict Judge for the 1 

### Eastern District of Arkansas, acting on the recommendation of the Hon. John F. Forster, Jr., United States Magistrate Judge. -2- The Dis trict Court held that the claim presently urged is no t 1 "novel" for purposes of the cause-and-prejudice doctrine. Jackson's claim is that he was denied counsel on his motion for a new trial under Ark. R. Crim. P. 36.4, a rule that existed briefly in Arkansas criminal cases , between July 1, 1989, and January 1, 1991. The District Court disagreed with the proposition that this claim was novel for a number of reasons , including the fact that in Dawan v. Lockhart , 980 F.2d 470 (8th Cir. 1992) , we said that there was indeed a right to counsel under the Sixth Amendment in connection with Rule 36.4 motions for new trial. Such motions, we said , wer e essentially part of proceedings on direct appeal, post-tria l pro ceedings, as opposed to postconviction proceedings. Id. at 474 n.5
. Jackson argues that t he statement in the Dawan opinion was merely dictum. This Co urt held to the contrary in Robinson v. Norris , 60 F.3d 457 (8t h Cir. 1995), cert. denied , 116 S. Ct. 1344 (1996). Jackson responds that at the time of the filing of his first three habeas petitions, Robinson ha d not been decided, and the Dawan statement looked like dictum befor e Robinson came down.

Even if the statement in question in Dawan were only dictum, thi s would not be a novel claim. The statement in Dawan was in the books. It
was available to Jackson, and a reasonably prudent person drafting a petitio n for federal habeas corpus relief at the time Jackson's firs t petition was filed would have included a Sixth Amendment claim based o n Dawan . The tools necessary to make the claim we re available to Jackson at the time of his first habeas petition, and certainly at the times of his second and third petitions. The fact that Robinson , clarifying th e situation, came down later does not excuse the o mission of this claim from Jackson's prior petitions.

### -3- Jackson argues further that another judge in the same District Court fromwhich this appeal comes has granted relief on a Dawan claim alleged in a successive petition, holding that such a claim is novel for cause-and

prejudice purposes. To deny him relief, Jackson argues, would violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. We disagree. The fact that different members of a district court go differen t ways on a legal question does not create a constitutional deprivation. Th e claim is either novel or it's not, and we have held that it is not. I f another prisoner or prisoners have secured relief based on a district cour t holding at variance with this opinion, that is h is or their good luck. It does not deprive Jackson of any constitutional right. He is entitled to receive only what the law allows, notwithstanding that others may hav e gotten more.
Affirmed.
A true copy.

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