The Honorable Richard G. Kopf, United States District Judge 1

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.

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No. 95-3293

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Charles L. Dillon, *

 *

Appellant, * Appeal from the United States

 * District Court for the

v. * District of Nebraska.

 *

Frank X. Hopkins, * [UNPUBLISHED]

 *

Appellee. *

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 Submitted: July 17, 1996

 Filed: August 2, 1996

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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Charles L. Dillon, a Nebraska inmate, appeals from the district

court's denial of his 28 U.S.C. § 2254 habeas petition. Dillon pleaded

1

no contest to one count of first degree sexual assault and was sentenced

to a term of sixteen to forty-nine years in prison. The district court

denied Dillon's first federal habeas petition filed in 1992, in which

Dillon challenged his sentence on due process grounds, alleging an

affidavit used in his pre-sentence report was later recanted. In this

habeas petition, Dillon claimed his conviction was based on a void

judgment, he was arrested without probable cause, and he was subjected to

malicious prosecution.
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The district court concluded Dillon may have abused the writ by not

raising his claims in his first habeas petition, and allowed him to submit

additional pleadings explaining why his petition should not be dismissed.

In response, Dillon stated that in June 1994, he had obtained "newly

discovered evidence" showing the state court lacked jurisdiction to bind

him over for a preliminary hearing. Dillon alleged generally that material

records were withheld. Dillon further argued he could not previously raise

his claims of unconstitutional arrest, detention, search, and conviction

because the pertinent events were not documented in the state court record.

The district court concluded Dillon failed to show cause and prejudice to

excuse his abuse of the writ, and denied Dillon's petition. 

Reviewing for abuse of discretion, we find dismissal of Dillon's

petition was proper because he failed to show cause excusing his failure

to include his new claims in his first petition. See Nachtigall v. Class,

48 F.3d 1076, 1079 (8th Cir. 1995) (standard of review); Williams v.

Groose, 979 F.2d 1335, 1337 (8th Cir. 1992) (per curiam). Dillon's claims-

-that his conviction is invalid because he was subjected to unauthorized

arrest, detention, search, and conviction--are such that the discovery of

any documents withheld by officials, even if true, would not provide Dillon

with otherwise unavailable information giving rise to new claims; rather,

at best it would enhance his ability to prove his claims. See McCleskey

v. Zant, 499 U.S. 467, 498 (1991) ("[i]f what petitioner knows or could

discover upon reasonable investigation supports a claim for relief in a

federal habeas petition, what he does not know is irrelevant").

Furthermore, we agree with the district court that a finding of cause is

precluded by Dillon's failure to plead any facts in support of his claims

that officials withheld documents. See id. at 497 (cause requires showing

of external impediment preventing petitioner from raising claim). 
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Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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