United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-8201

___________

Samuel Lee McDonald, *

*

Petitioner, *

* On Motion for an Order

v. * Authorizing a Second

Petition

* for Writ of Habeas Corpus.

Michael Bowersox, *

* [PUBLISHED]

Respondent. *

___________

Submitted: September 19, 1997

 Filed: September 22,

1997

___________

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

___________

PER CURIAM.

Samuel Lee McDonald was convicted by a jury in

Missouri state court of capital murder and sentenced to

death. McDonald's execution is currently scheduled for

September 24, 1997, at 12:01 a.m. The district court for

the Eastern District of Missouri denied McDonald's

initial federal habeas petition, see McDonald v. Delo,

897 F. Supp. 1224 (E.D. Mo. 1995) (McDonald I), and this

Court affirmed. See McDonald v. Bowersox, 101 F.3d 588

(8th Cir. 1996) (McDonald II), cert. denied, 117 S. Ct.
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2527 (1997). McDonald now moves this Court for

permission to file a successive 
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federal habeas petition. See 28 U.S.C.A. § 2244(b)(3)(A)

(West Supp. 1997). We deny this motion.

I.

On May 16, 1981, McDonald robbed and murdered offduty police officer Robert Jordan while Officer Jordan's

eleven-year-old daughter Rochelle watched. McDonald was

convicted of capital murder and sentenced to death on

February 24, 1982.

During the ensuing decade-and-a-half, McDonald

pursued post-conviction and collateral relief in federal

and Missouri state courts, seeking to overturn his

conviction and sentence. See McDonald II, 101 F.3d at

591-92 (describing history of litigation). In 1989,

McDonald filed his first federal habeas petition pursuant

to 28 U.S.C. § 2254 (1988). McDonald raised over fifty

claims in his first federal habeas petition, including a

claim that his trial attorney rendered ineffective

assistance of counsel by failing to notify the trial

court that McDonald intended to rely on a defense of

mental disease or defect.

To support his claim of ineffective assistance of

counsel, McDonald relied on the 1986 post-trial testimony

of Dr. John Waite. Dr. Waite testified that McDonald

suffered from Post-Vietnam Syndrome, a form of posttraumatic stress disorder experienced by veterans of the

war in Vietnam. As McDonald stated, "Dr. Waite concluded

that [McDonald's] loss of control and 'trained' hyperarousal due to Post-Vietnam Stress Disorder, caused

[McDonald] to act in an impulsive manner, impaired or
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extinguished his ability to deliberate, and rendered him

incapable of reflection." Appellant's Br. in Case No. 95-

3863 at 9. The district court rejected McDonald's claim

of ineffective assistance of counsel, see McDonald I, 898

F. Supp. at 1249-50, and this Court affirmed. See

McDonald II, 101 F.3d at 595. In affirming, we noted

that McDonald had failed to demonstrate prejudice arising

from his counsel's alleged 
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ineffectiveness because "there was minimal evidence

tending to prove that McDonald had a mental disease or

defect." Id.

In his instant motion for permission to file a

successive habeas petition, McDonald states that his

proposed petition 

raises one ground of constitutional error:

whether Mr. McDonald would be deprived of due

process of law and subjected to cruel and

unusual punishment, in violation of his rights

under the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution, if

his execution was permitted to proceed without

reconsideration of the issue concerning the

jury's failure to learn of the genesis,

existence, and effect of Mr. McDonald's

psychiatric illness prior to its recommendation

that he be put to death. The passage of time

and evolution of diagnostic techniques and

capabilities have rendered it constitutionally

and morally incomprehensible in 1997 that a

decorated Vietnam veteran actively suffering

from service-related post-traumatic stress

disorder might be executed after a trial in

which no mention was made of his mental illness

and diminished capacities. These claims are

successive, in that they were not presented in

petitioner's prior application for habeas corpus

relief pursuant to 28 U.S.C. § 2254. This

successive petition should not be dismissed,

however, because the factual predicate for the

claims could not have been discovered previously

through the exercise of due diligence . . . .

Mot. to Authorize the Filing of a Successive Habeas Pet.

and for Stay of Execution of His Sentence of Death at 2
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(Sept. 19, 1997) (Motion). While the body of McDonald's

instant motion makes extensive references to Dr. Waite's

testimony, see, e.g., id. at 6-7, nn. 5-6, it does not

refer to any evidence not presented during the

adjudication of McDonald's first federal habeas petition.

Rather, McDonald merely asserts that "[t]his Court should

grant Petitioner Permission to file a Successive Habeas

Corpus Petition so that the federal courts can determine

the appropriateness and the constitutionality of

permitting an individual to be executed when the trial

was originally reviewed for 
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constitutional error in both state and federal courts

based on notions about science which are no longer

valid." Id. at 9.

II.

The Anti-Terrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1217 (1996) (AEDPA),

"changed the conditions under which second or successive

applications [for federal habeas relief] may be

considered and decided on their merits." Ruiz v. Norris,

104 F.3d 163, 164 (8th Cir. 1997), petition for cert.

filed, (U.S. Jan. 7, 1997) (No. 96-7352). Pursuant to

the relevant sections of the AEDPA, codified at 28 U.S.C.

§ 2244(b), 

(1) A claim presented in a second or successive

habeas corpus application under [28 U.S.C.]

section 2254 that was presented in a prior

application shall be dismissed.

(2) A claim presented in a second or successive

habeas corpus application under [28 U.S.C.]

section 2254 that was not presented in a prior

application shall be dismissed unless--

(A) the applicant shows that the claim

relies on a new rule of constitutional

law, made retroactive to cases on

collateral review by the Supreme Court,

that was previously unavailable; or

(B)(i) the factual predicate for the

claim could not have been discovered

previously through the exercise of due

diligence; and 
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(ii) the facts underlying the claim, if

proven and viewed in light of the

evidence as a whole, would be sufficient

to establish by clear and convincing

evidence that, but for constitutional

error, no reasonable factfinder would

have found the applicant guilty of the

underlying offense.
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28 U.S.C.A. § 2244(b)(1) & (2) (West Supp. 1997).

The claim that McDonald wishes to raise in a

successive habeas petition--that because of McDonald's

mental illness it is a violation of the United States

Constitution to execute him--shares the same factual

predicate as his prior claim of ineffective assistance of

counsel based on counsel's failure to pursue a mental

disease or defect defense. It is therefore likely that

this proposed claim would be barred by 28 U.S.C.A. §

2244(b)(1) as a claim already raised in an initial habeas

petition. Cf. Wainwright v. Norris, 1997 WL 469583, at

*2 (8th Cir. Jan. 2, 1997) (interpreting § 2244(b)(1));

Zeitvogel v. Bowersox, 103 F.3d 54, 55-56 (8th Cir. 1996)

(same). Even assuming, however, that this is a "new

claim" for purposes of § 2244(b), it is apparent that

McDonald has failed to satisfy the conditions of either

§ 2244(b)(2)(A) or (B).

McDonald does not contend that his successive habeas

claim relies on a new rule of constitutional law made

retroactive by the United States Supreme Court to cases

on collateral review, and § 2244(b)(2)(A) therefore does

not apply. See Ruiz, 104 F.3d at 165 (interpreting §

2244(b)(2)(A)). Despite McDonald's assertions to the

contrary, it is apparent that § 2244(b)(2)(B) also does

not apply. 

To support his claim of a constitutional error,

McDonald points only to psychiatric evidence that was

available in 1986. McDonald filed his initial federal

habeas petition in 1988. McDonald does not attempt to

explain in what manner this evidence "could not have been
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discovered previously" so that he could not have raised

his proposed successive habeas claim in his initial

federal habeas petition. Given that McDonald explicitly

relied on Dr. Waite's testimony during the adjudication

of his initial federal habeas petition, it is obvious

that this evidence was previously available to him.

In his motion, McDonald asserts that "[t]he

scientific ability to diagnose and treat [his] mental

affliction has progressed over the past ten years."

Motion at 11. 
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McDonald has neither supported this assertion, nor has he

explained how such improvement, if it can be assumed to

exist, constitutes new evidence. Accordingly, we

conclude that McDonald has failed to meet the

requirements of § 2244(b)(2)(B). Because McDonald has

failed to meet these requirements, we must deny his

motion for authorization to file a successive habeas

petition. See 28 U.S.C.A. § 2244(b)(3)(C) (West Supp.

1997) ("The court of appeals may authorize the filing of

a second or successive application only if it determines

that the application makes a prima facie showing that the

application satisfies the requirements of this

subsection.").

Finally, McDonald argues that, even if he has not met

the requirements of § 2244(b)(2)(B), his "[a]pplication

cannot be denied because Petitioner is a death row

prisoner who offers persuasive evidence of his innocence

of first degree murder, and the dismissal of this

application would lead to the execution of a person

innocent of a capital crime . . . ." Motion at 2-3. We

disagree. There is no doubt whatsoever that McDonald is

the person who brutally ended the life of Officer Robert

Jordan, and we have previously rejected McDonald's

argument that there exists persuasive evidence that

McDonald should not be held culpable for his conduct.

See McDonald II, 101 F.3d at 595. Accordingly, we need

not decide whether, and in what circumstances, a claim of

actual innocence can allow us to waive § 2244(b)(2)'s

requirements for our approval of a successive habeas

petition.
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For the foregoing reasons, McDonald's motion for

approval to file a successive federal habeas petition is

denied. We also deny McDonald's motion for a stay of

execution "because there are no substantial grounds on

which relief might be granted by this court."

Wainwright, 1997 WL 469583, at *3 (citing Delo v. Stokes,

495 U.S. 320, 321 (1990) (per curiam)).
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A true copy.

Attest:

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