### The Honorable George F. Gunn, Jr., United States Distric t 1 

### Judge for the Eastern District of Missouri, adopting the Rep ort and Reco mmendation of the Honorable Terry I. Adelman, United State s Magistrate Judge for the Eastern District of Missouri. ___________ No. 95-3921

___________ Harold E. Meadows, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Paul K. Delo, * * Appellee. *

___________ Submitted: September 9, 1996 Filed: November 1, 1996

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

___________ WOLLMAN, Circuit Judge.

Ha rold Meadows appeals the judgment of the district court denyin g 1 his 28 U.S.C. § 2254 petition. We affirm.

I. In the early morning hours of August 16, 1986, Mark McClure, Bradley Vollmer, a nd Patricia Abram went to a drug dealer's house to purchas e cocaine. When the de aler took their money without giving them any drugs, the three stole what they believed was his car. Later that morning, Harol d Meadows met McClure and Vollmer, and the three arranged for a buyer for th e stolen car.

### -2- That even ing, 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 feare d he wa s going to report the car theft to the police. Vollmer then aske d Drees for a knife, and Drees complied. Meadows and Vollmer told Drees the y were going to kill McClure and throw his body in the river.
Drees and Abram left Drees's residen ce for about an hour. When they retu rned, Meadows, Vollmer, and McClure were no longer there. Dree s discovered a hole in the basement wall, and blood was found in th e 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 i n connection with McClure's death. Vollmer pleade d guilty and was sentenced to thirty years of incarceration. Meadows pleaded not guilty and wa s tried. At Meadows's trial, Drees testified that he heard Meadows an d Vollmer discussing th eir 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 conversa tion in which Meadows and Vollmer were talking about McClure, although she could not hear the specifics of that conversation. Ano ther 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 th e 2 

### State's ad dendum to its brief should be granted, and it is s o ordered. -3- conviction and senten ce, 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 c ontends that his conviction is not supported by sufficient evidence.

Th e standard for determining whether sufficient evidence exists t o sustain Meadows's conviction is "whether, after viewing the evidence in th e light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime b eyond 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. U nited States v. E.R.B. , 86 F.3d 129, 130 (8th Ci r. 1996) (the court should not "substitute [its own] inclinations" regarding the credibility of witnesses). We conclude that the evidence, when vi ewed 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 V ollmer constitutes newly discovered evidence that supports his claim of innocence
. The test for newly discovered evidence is "wheth er the evidence could have been discovered earlier in the exercise of due diligence." Cornell v. Nix , 976 F.2d 376, 380 (8th

### -4-

Cir. 1992). Although the affidavit itself was not available until after Meadows's trial, the factual basis for it existe d long before this appeal. Cf. Pickens v. Lockha rt , 4 F.3d 1446, 1450 (8th Cir. 1993). In addition, we have held that "when a defendant who has chosen not to testif y subsequentlycomes forward to offer testimony exculpating a codefendant, the evidence is not `newly discovered.'" United States v. Rogers , 982 F.2 d 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 discovere d evidence, Meadows's claim fails. Meadows contends that his imprisonment violat es the Eighth and Fourteenth Amendments because he is actuall y innocent. Although Meadows cites Schlup v. Delo , 115 S. Ct. 851 (1995), his reliance on Schlu p 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
. Rath er, this claim is analogous to the claim presented in Herrera v . Collins , 113 S. Ct. 8 53 (1993). The Herrera Court rejected free-standing claims of actual innocence as a basis for habeas review, stating, "[c]laim s of actual innocence based on newly discovered evidence have never been hel d to st ate a ground for federal habeas relief absent an independen t constitutional violation occurring in the underlying state crimina l proceeding." Id. at 8 60. 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, contendin g that the trial court erred in admitting evidence of other crimes and hearsa y statements.

Our review of alleged evidentiary errors is limited to determinin g whether such errors were so apparent that they "fatally

### -5-

infe cted the trial and rendered it fundamentally unfair." Troupe v . Groose , 72 F.3d 75, 7 6 (8th Cir. 1995). To obtain habeas relief based on eviden tiaryerror, Meadows must show "a reasonable probability that th e error[s] affected the trial's outcome." Id. Our review of the recor d satisfies us that both the hearsay statements an d 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 counse l because of trial counsel's alleged concession that Meadows wa s inv olved in selling the stolen car. During closing argument, Meadows' s attorney stated, "Mr. Meadows did nothing, even by the State's ow n 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 downpla y Meadow s's involvement in any of the events surrounding McClure's deat h ref lected an exercise of "sound trial strategy" falling well within th e "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.