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No. 96-8089

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Richard Dennis Oxford, *

*

Petitioner, * Petitioner's Motion to Authorize

* the Filing of a Successive

v. * Habeas Petition and for

* Stay of Execution of His

Michael Bowersox, * Sentence of Death

*

Respondent. *

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 Submitted: June 10, 1996

 Filed: June 11, 1996

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Before BOWMAN, HEANEY, and FAGG, Circuit Judges.

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BOWMAN, Circuit Judge.

Petitioner Richard Dennis Oxford's execution is scheduled for 12:01

a.m. CDT on June 12, 1996.

On June 7, 1996, the district court ruled on the merits of Oxford's

second habeas petition and denied it. That ruling, in which the district

court found Oxford competent to be executed, has not been appealed.

On June 10, 1996, Oxford filed with this Court a motion for an order

authorizing him to file a third habeas petition in the district court

pursuant to the Terrorism Prevention Act of 1996, Pub. L. No. 104-132,

§ 106, 1996 U.S.C.C.A.N. (110 Stat.) 1214, 1220-21 (to be codified at 28

U.S.C. § 2244). In response, the state has suggested, for what clearly are

purely tactical reasons, that this Court should grant Oxford's motion. The

state candidly acknowledges that Oxford's motion does not fulfill the legal

standard established by § 2244(b)(3), which governs our authority
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to authorize the filing of a second or successive habeas petition under 28

U.S.C. § 2254 (1994).

We agree with the state's assessment of our proper authority in

matters of this kind. Oxford's motion does not meet the applicable legal

standard. Accordingly, the motion is denied.

We hold not only that Oxford's motion must be denied under 28 U.S.C.

§ 2244(b)(3). We also hold that, under the law antedating the new statute,

the proposed third habeas petition would be an abuse of the writ, because

the change in the law (Missouri's repeal on January 1, 1996, of its former

Rule 29.15) that, according to Oxford, is the basis for overturning the

procedural bar to Oxford's claims found by this Court in Oxford v. Delo,

59 F.3d 741, 744-45 (8th Cir. 1995), cert. denied, 116 S. Ct. 1361 (1996),

could have been raised in Oxford's recently concluded second habeas

petition. Thus, the proposed third petition, if filed, would be subject

to dismissal as an abusive petition. See McCleskey v. Zant, 499 U.S. 467,

489 (1991).

Oxford's motion to authorize the filing of his third habeas petition

is denied. His motion for a stay of execution is denied.

Heaney, Circuit Judge, dissenting.

The government joined Richard Oxford in his request that we authorize

the district court to consider his third petition for writ of habeas

corpus. In light of the government's position, I would grant Oxford leave

to file his petition in the district court. The majority, however, has

decided to deny Oxford's application. Because Oxford raises valid claims

of ineffective assistance of trial counsel that have never been addressed

on the merits by any court, I dissent.
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As I expressed in my original dissent in this case, Oxford's counsel

was ineffective at the sentencing proceedings because he failed to present

mitigating evidence as to why Oxford should not be sentenced to death.

Oxford v. Delo, 59 F.3d 741, 749 (8th Cir. 1995), cert. denied, 116 S.Ct.

1361 (1996). The record contains overwhelming mitigating evidence of

Oxford's troubled social, mental, and emotional history. At the sentencing

phase, however, his trial counsel presented virtually no mitigating

evidence to the jury. As I previously stated:

"The jury is entitled to receive as much information as

possible in order to make an informed decision as to

punishment." State v. Leisure, 749 S.W.2d 366, 379 (Mo. 1988)

(citations omitted), cert. denied, 113 S.Ct. 343 (1992). The

concept of individualized sentencing in capital cases requires

that the sentencer possess "the fullest information possible

concerning the defendant's life and characteristics" as well as

the circumstances of the particular offense. Lockett v. Ohio,

438 U.S. 586, 602-04 (1978) (internal quotations and citations

omitted).

Id. Had Oxford's trial counsel presented the available mitigating

evidence, I am convinced that no reasonable jury would have sentenced him

to death.

The majority declined to consider the merits of Oxford's ineffective

assistance claims because of a state procedural bar. Specifically, Oxford

failed to verify his amended motion for post-conviction relief, as

previously required under Rule 29.15 of the Missouri Rules of Criminal

Procedure. Recent amendments to Rule 29.15, eliminate the verification

requirement, thereby removing the only impediment to our review of Oxford's

claims on their merits. Neither the law nor my conscience permits me to

sign onto the majority's opinion. We should undertake this review

promptly.

A true copy.

Attest:

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