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No. 96-2370EA

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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. *

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 Submitted: January 17, 1997

 Filed: January 27, 1997

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

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RICHARD S. ARNOLD, Chief Judge.

This is a petition for writ of habeas corpus filed by a prisoner in

state custody. The prisoner, Jesse Jackson, has filed three previous

unsuccessful petitions. He argues that the claim he now asserts is

"novel," see Reed v. Ross, 468 U.S. 1 (1984), and that, therefore, he has

demonstrated cause for 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 District Judge for the 1

Eastern District of Arkansas, acting on the recommendation of the

Hon. John F. Forster, Jr., United States Magistrate Judge.

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The District Court held that the claim presently urged is not

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,

were essentially part of proceedings on direct appeal, post-trial

proceedings, as opposed to postconviction proceedings. Id. at 474 n.5.

Jackson argues that the statement in the Dawan opinion was merely dictum.

This Court held to the contrary in Robinson v. Norris, 60 F.3d 457 (8th

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 had

not been decided, and the Dawan statement looked like dictum before

Robinson came down.

Even if the statement in question in Dawan were only dictum, this

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

petition for federal habeas corpus relief at the time Jackson's first

petition was filed would have included a Sixth Amendment claim based on

Dawan. The tools necessary to make the claim were 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 the

situation, came down later does not excuse the omission of this claim from

Jackson's prior petitions.
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Jackson argues further that another judge in the same District Court

from which this appeal comes has granted relief on a Dawan claim alleged

in a successive petition, holding that such a claim is novel for cause-andprejudice 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 different

ways on a legal question does not create a constitutional deprivation. The

claim is either novel or it's not, and we have held that it is not. If

another prisoner or prisoners have secured relief based on a district court

holding at variance with this opinion, that is his 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 have

gotten more.

Affirmed.

A true copy.

Attest:

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