United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-8201

___________ Samuel Lee McDonald, *
* Petitioner, *
* On Motion for an Order
v. * Authorizing a Secon d Petition
* for Writ o f 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 i n Missouri state court of capital murder and sentenced t o deat h. McDonald's execution is currently scheduled fo r September 24, 1997, at 12:01 a.m. The distri ct court for th e Eastern District of Missouri denied McDonald' s init ial federal habeas petition, see McDonald v. Delo , 897 F. Sup p. 1224 (E.D. Mo. 1995) ( McDonald I), and this Court a ffirmed. See McDonald v. Bowersox , 101 F.3d 58 8 (8th Ci r. 1996) ( McDonald II), cert. denied , 117 S. Ct

.-2-

2527 (1997). McDonald now moves this Court fo r permission to file a successive-3-

federal habeas petition. See 28 U.S.C.A. § 2 244(b)(3)(A) (West Supp. 1997). We deny this motion.

I.

On May 16, 1981, McDonald robbed and murdered off

duty polic e officer Robert Jordan while Officer Jordan's eleven-yea r-old daughter Rochelle watched. McDonald was convict ed of capital murder and sentenced to death o n February 24, 1982.

Du ring the ensuing decade-and-a-half, McDonal d pursued po st-conviction and collateral relief in federal and Missouri state courts, seeking to overturn hi s convic tionand sentence. See McDonald II, 101 F.3d a t 591- 92 (describing history of litigation). In 1989 , McDonald filed his first federal habeas petit ion pursuant to 28 U.S.C. § 2254 (1988). McDonald raised over fift y claims in his first federal habeas petition, including a cl aimthat his trial attorney rendered ineffectiv e
as sistance of counsel by failing to notify the tria l
cour t that McDonald intended to rely on a defense o f mental disease or defect.

To support his claim of ineffective assistance o f counsel, McDonald relied on the 1986 post-tri al testimony of Dr . John Waite. Dr. Waite testified that McDonal d suff ered from Post-Vietnam Syndrome, a form of post

traumatic stress disorder experienced by veterans of the war in Vietnam. As McDonald stated, "Dr. Wai te concluded that [McDonald's] loss of control and 'trained' hyper

aro usal due to Post-Vietnam Stress Disorder, cause d [McDona ld] to act in an impulsive manner, impaired o r-4-

extinguish ed 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 McD onald I, 898 F. Supp. at 1249-50, and this Court affirmed. Se e McDon ald II, 101 F.3d at 595. In affirming, we note d that McDonald had failed to demonstrate preju dice arising from his counsel's alleged-5-

ineffectiveness because "there was minimal evidenc e tendin g to prove that McDonald had a mental disease o r defect." Id.

In his instant motion for permission to file a
succ essive habeas petition, McDonald states that hi s proposed petition

raises one ground of constitutional error : wheth er Mr. McDonald would be deprived of du e proce ss of law and subjected to cruel an d unus ual punishment, in violation of his right s under the Fifth, Eighth and Fourteent h Amendments to the United State s Constitution, if his execution was permitted to proceed withou t reconsideration of the issue concerning th e jur y's failure to learn of the genesis , existence, and effect of Mr. McDonald' s psychiatric illness prior to its recommendatio n that he be put to death. The passage of tim e and evolution of diagnostic techniques an d capabilities have rendered it constitutionall y and morally incomprehensible in 1997 that a de corated Vietnam veteran actively sufferin g fromservice-related post-traumatic stres s disor der might be executed after a trial i n whichno mention was made of his mental illness an d diminished capacities. These claims ar e succe ssive, in that they were not presented i n petitioner's prior applicationfor habeas corpus reli ef pursuant to 28 U.S.C. § 2254. Thi s successive petition should not be dismissed , howe ver, because the factual predicate for th e claims could not have been dis covered previously through the exercise of due diligence . . . .

Mot. to Au thorize the Filing of a Successive Habeas Pet. and for Stay of Execution of His Sentence of Death at 2-6-

(Sept. 19, 1997) (Motion). While the body of McDonald's instant mo tion makes extensive references to Dr. Waite's testimony, see, e.g. , id. at 6-7, nn. 5-6, it does no t refe r to any evidence not presented during th e adjudication of McDonald's first federal habe as petition. Rather, McDonald merely asserts that "[t]his Court should gran t Petitioner Permission to file a Successive Habea s Corpus Pet ition so that the federal courts can determine the appropriateness and the constitutionality o f perm itting an individual to be executed when the tria l was originally reviewed for-7-

cons titutional error in both state and federal court s based on notions about science which are no longe r valid." Id. at 9.

II.

The Anti-Terrorism and Effective Death Penalty Act o f 1996, Pub. L. No. 104-132, 110 Stat. 1217 (19 96) (AEDPA), "changed t he conditions under which second or successive appli cations [for federal habeas relief] may b e considered and decided on their merits." Rui z v. Norris , 104 F .3d 163, 164 (8th Cir. 1997), petition for cert

. filed , (U.S. Jan. 7, 1997) (No. 96-7352). Pursuant t o 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. ] secti on2254 that was presented in a prio r application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under [28 U.S.C. ] section2254 that was not presented in a prio r application shall be dismissed unless--
(A ) the applicant shows that the clai m re lies on a new rule of constitutiona l law, made retroactive to cases o n collateral revi ew by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for th e claimcould not have been discovere d previouslythrough the exercise of du e diligence; and-8- (ii) the facts underlying the claim, if pro venand viewed in light of th e evidence as a whole, would be sufficien t to establish by clear and convincin g evi dence that, but for constitutiona l err or, no reasonable factfinder woul d ha ve found the applicant guilty of th e underlying offense.-9-

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 menta l illness it is a violation of the United State s Cons titutionto execute him--shares the same factua l predicate as his prior claim of ineffective a ssistance of counsel based on counsel's failure to pursue a menta l disease or defect defense. It is therefore likely tha t this proposed claim would be barred by 28 U.S.C.A. § 2244(b)(1) as a claim already raised in an in itial habeas petitio n. Cf. Wainwright v. Norris , 1997 WL 469583, a t *2 (8th Cir. Jan. 2, 1997) (interpreting § 2244(b)(1)) ; Zeitvogel v. Bowersox , 103 F.3d 54, 55-56 (8t h Cir. 1996) (sam e). Even assuming, however, that this is a "ne w claim " for purposes of § 2244(b), it is apparent tha t McDonald has failed to satisfy the conditions of eithe r § 2244(b)(2)(A) or (B).

McDonald does not co ntend that his successive habeas claimrelies on a new rule of constitutional law mad e retroactive by the United States Supreme Court to case s on collate ral review, and § 2244(b)(2)(A) therefore does not a pply. See Ruiz , 104 F.3d at 165 (interpreting § 2244( b)(2)(A)). Despite McDonald's assertions to th e contrary, it is apparent that § 2244(b)(2)(B) also doe s not apply.

To support his claim of a constitutional error , McDo nald points only to psychiatric evidence that wa s avai lable in 1986. McDonald filed his initial federa l habeas petition in 1988. McDonald does not attempt t o explain in what manner this evidence "could n ot have been-10-

discovered previously" so that he could not have raise d his proposed successive habeas claim in his initia l federal ha beas petition. Given that McDonald explicitly reli ed on Dr. Waite's testimony during the adjudicatio n of his initial federal habeas petition, it is obviou s that this evidence was previously available to him.

In his motion, McDonald asserts that "[t]h e scie ntific ability to diagnose and treat [his] menta l affl ictionhas progressed over the past ten years. " Motion at 11.-11-

McDonald has neither supported this assertion , nor has he explain ed how such improvement, if it can be assumed t o exist, constitutes new evidence. Accordingly, w e conc lude that McDonald has failed to meet th e requ irements of § 2244(b)(2)(B). Because McDonald ha s faile d to meet these requirements, we must deny hi s moti onfor authorization to file a successive habea s peti tion. See 28 U.S.C.A. § 2244(b)(3)(C) (West Supp

. 1997) ("Th e court of appeals may authorize the filing of a second o r successive application only if it determines that the application makes a prima facie show ing that the applicationsatisfies the requirements of thi s subsection.").
Finally, McDonald argues that, even if he has not me t the requirements of § 2244(b)(2)(B), his "[a]pplicatio n cannot be denied because Petitioner is a death ro w prisoner who offers persuasive evidence of his innocence of first degree murder, and the dismissal of thi s appli cationwould lead to the execution of a perso n innocent o f a capital crime . . . ." Motion at 2-3. We disagree. There is no doubt whatsoever that McDonald is the personwho brutally ended the life of Officer Robert Jo rdan, and we have previously rejected McDonald' s arg ument that there exists persuasive evidence tha t McDonal d should not be held culpable for his conduct

. See M cDonald II, 101 F.3d at 595. Accordingly, we nee d not decide whether, and in what circumstances , a claim of actual innocence can allow us to waive § 2244(b)(2)' s requ irements for our approval of a successive habea s petition.-12-

For the foregoing reasons, McDonald's motion fo r approval t o file a successive federal habeas petition is denie d. We also deny McDonald's motion for a stay o f
exec ution"because there are no substantial grounds o n whic hrelief might be granted by this court. " Wainwright , 1997 WL 469583, at *3 (citing Del o v. Stokes , 495 U.S. 320, 321 (1990) (per curiam)).-13-

A true copy.

Attest:

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

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