The Honorable George F. Gunn, Jr., United States District

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Judge for the Eastern District of Missouri, adopting the Report and

Recommendation of the Honorable Terry I. Adelman, United States

Magistrate Judge for the Eastern District of Missouri.

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No. 95-3921

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Harold E. Meadows, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Paul K. Delo, *

*

Appellee. *

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 Submitted: September 9, 1996

 Filed: November 1, 1996

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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and

HANSEN, Circuit Judge.

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WOLLMAN, Circuit Judge.

Harold Meadows appeals the judgment of the district court denying

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his 28 U.S.C. § 2254 petition. We affirm.

I.

In the early morning hours of August 16, 1986, Mark McClure, Bradley

Vollmer, and Patricia Abram went to a drug dealer's house to purchase

cocaine. When the dealer took their money without giving them any drugs,

the three stole what they believed was his car. Later that morning, Harold

Meadows met McClure and Vollmer, and the three arranged for a buyer for the

stolen car. 
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That evening, Meadows, Vollmer, McClure, and Abram all met at James

Drees's home. While McClure was asleep in the house, Meadows and Vollmer

were overheard discussing "getting rid of Mark McClure" because they feared

he was going to report the car theft to the police. Vollmer then asked

Drees for a knife, and Drees complied. Meadows and Vollmer told Drees they

were going to kill McClure and throw his body in the river.

Drees and Abram left Drees's residence for about an hour. When they

returned, Meadows, Vollmer, and McClure were no longer there. Drees

discovered a hole in the basement wall, and blood was found in the

basement, along with a knife, a bucket of bloody water, and Vollmer's belt.

 A few days later, McClure's body was found near a canal on the Missouri

River.

Both Meadows and Vollmer were charged with first degree murder in

connection with McClure's death. Vollmer pleaded guilty and was sentenced

to thirty years of incarceration. Meadows pleaded not guilty and was

tried. At Meadows's trial, Drees testified that he heard Meadows and

Vollmer discussing their plan to murder McClure and that Meadows told him

the damage to his basement occurred when Meadows and Vollmer were trying

to kill McClure. Drees also stated that Meadows told him that Meadows and

Vollmer took McClure's body to a canal on the Missouri River, where they

weighted it down and dragged it into the river. Abram likewise testified

to hearing a conversation in which Meadows and Vollmer were talking about

McClure, although she could not hear the specifics of that conversation.

Another witness also testified that Meadows said he had choked McClure.

Meadows maintained throughout his trial that he had no part in murdering

McClure, but admitted to helping to dispose of McClure's body.

Meadows was convicted and sentenced to life imprisonment without the

possibility of parole. His motion for post-conviction relief was denied.

Meadows appealed the denial, along with his
 The State has conceded that Meadows's motion to strike the

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State's addendum to its brief should be granted, and it is so

ordered.

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conviction and sentence, in a consolidated appeal. The Missouri Court of

Appeals affirmed in all respects. State v. Meadows, 785 S.W.2d 635 (Mo.

Ct. App. 1990). Meadows then filed this section 2254 petition.2

II.

Meadows contends that his conviction is not supported by sufficient

evidence. 

The standard for determining whether sufficient evidence exists to

sustain Meadows's conviction is "whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

Meadows contends that the only incriminating evidence against him was the

testimony of "junkies offered deals with the State." Whether or not this

characterization is accurate, it is without consequence. It was for the

jury to judge the witnesses' credibility. Cf. United States v. E.R.B., 86

F.3d 129, 130 (8th Cir. 1996) (the court should not "substitute [its own]

inclinations" regarding the credibility of witnesses). We conclude that

the evidence, when viewed in the light most favorable to the prosecution,

is sufficient to sustain Meadows's conviction. 

Meadows's second contention on appeal is that an affidavit by Vollmer

constitutes newly discovered evidence that supports his claim of innocence.

The test for newly discovered evidence is "whether the evidence could have

been discovered earlier in the exercise of due diligence." Cornell v. Nix,

976 F.2d 376, 380 (8th
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Cir. 1992). Although the affidavit itself was not available until after

Meadows's trial, the factual basis for it existed long before this appeal.

Cf. Pickens v. Lockhart, 4 F.3d 1446, 1450 (8th Cir. 1993). In addition,

we have held that "when a defendant who has chosen not to testify

subsequently comes forward to offer testimony exculpating a codefendant,

the evidence is not `newly discovered.'" United States v. Rogers, 982 F.2d

1241, 1245 (8th Cir. 1993) (quoting United States v. Offutt, 736 F.2d 1199,

1202 (8th Cir. 1984)). Thus, Vollmer's affidavit is not newly discovered

evidence.

Even assuming, arguendo, that this affidavit is newly discovered

evidence, Meadows's claim fails. Meadows contends that his imprisonment

violates the Eighth and Fourteenth Amendments because he is actually

innocent. Although Meadows cites Schlup v. Delo, 115 S. Ct. 851 (1995),

his reliance on Schlup is misplaced. This is not a case in which Meadows

is attempting to use a claim of actual innocence to avoid a procedural bar

in order to present other constitutional claims, as was the case in Schlup.

Rather, this claim is analogous to the claim presented in Herrera v.

Collins, 113 S. Ct. 853 (1993). The Herrera Court rejected free-standing

claims of actual innocence as a basis for habeas review, stating, "[c]laims

of actual innocence based on newly discovered evidence have never been held

to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal

proceeding." Id. at 860. Accordingly, Meadows's claim of innocence based

on newly discovered evidence is not cognizable on habeas review. 

Meadows next asserts two claims of evidentiary error, contending that

the trial court erred in admitting evidence of other crimes and hearsay

statements. 

Our review of alleged evidentiary errors is limited to determining

whether such errors were so apparent that they "fatally
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infected the trial and rendered it fundamentally unfair." Troupe v.

Groose, 72 F.3d 75, 76 (8th Cir. 1995). To obtain habeas relief based on

evidentiary error, Meadows must show "a reasonable probability that the

error[s] affected the trial's outcome." Id. Our review of the record

satisfies us that both the hearsay statements and evidence of other crimes

were properly admitted and thus did not render Meadows's trial unfair.

Meadows's final claim is that he received ineffective assistance of

counsel because of trial counsel's alleged concession that Meadows was

involved in selling the stolen car. During closing argument, Meadows's

attorney stated, "Mr. Meadows did nothing, even by the State's own

witnesses, his only involvement with the car was to make a phone call that

didn't turn out to sell the car."

We conclude that trial counsel's decision to attempt to downplay

Meadows's involvement in any of the events surrounding McClure's death

reflected an exercise of "sound trial strategy" falling well within the

"wide-range of reasonable professional assistance." Strickland v.

Washington, 466 U.S. 668, 689 (1984).

The judgment is affirmed.

A true copy.

Attest:

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