___________ No. 96-8089

___________ 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. *

___________ Submitted: June 10, 1996 Filed: June 11, 1996

___________ Before BOWMAN, HEANEY, and FAGG, Circuit Judges.

___________ BOWMAN, Circuit Judge.
Petitione r 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 petitio n 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 authorizin ghim to file a third habeas petition in the district cour t pursu ant 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 ar e purely tactical reasons, that this Court should grant Oxford's motion. Th e state candidly acknowledges that Oxford's motion does not fulfill the lega l standard established by § 2244(b)(3), which governs our authority

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to authorize the filing of a second or successiv e habeas petition under 28 U.S.C. § 2254 (1994).

We agree with the state's assessment of our proper authority i n 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 motio n 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 ha beas petition would be an abuse of the writ, because the change in the law (Missouri's repeal on Janu ary 1, 1996, of its former Rule 29.15) that, according to Oxford, is the basis for overturning th e procedural bar to Oxford's claims found by this Court in Oxford v. Delo , 59 F.3d 741, 744-45 (8th Cir. 1995), cert. denie d , 116 S. Ct. 1361 (1996), could have been raised in Oxford's recently concluded second habea s petition. Thus, the proposed third petition, if filed, would be subject to dismissal as an abusive petition. See McCles key v. Zant , 499 U.S. 467, 489 (1991).
Oxford's motion to authorize the fil ing 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 aut horize the district court to consider his third petition for writ of habea s corpus. In light of the government's position, I would grant Oxford leave to file h is petition in the district court. The majority, however, ha s decided to deny Oxfor d's application. Because Oxford raises valid claims of ineffective assist ance of trial counsel that have never been addressed on the merits by any court, I dissent.

### -3- As I expressed in my original dissen t in this case, Oxford's counsel was ineffective at the sentencing proceedings be cause he failed to present mitig atingevidence 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 o f Oxford's troubled social, mental, and emotional history. At the sentencin g phase , however, his trial counsel presented virtually no mitigatin g evidence to the jury. As I previously stated:
"Th e jury is entitled to receive as much information a s pos sible in order to make an informed decision as t o punishment." State v. L eisure , 749 S.W.2d 366, 379 (Mo. 1988) (citations omitted), cert. denied , 113 S.Ct. 343 (1992). The concept of individualize d sentencing in capital cases requires th at the sentencer possess "the fullest information possibl e concerning the defendant's life and characteristics " as well as the circumstances of theparticular offense. Lockett v. Ohio , 438 U.S. 586, 602-04 (19 78) (internal quotations and citations omitted).
Id
. H ad Oxford's trial counsel presented the available mitigatin g evidence, I am convin ced that no reasonable jury would have sentenced him to death. The majority declined to consider th e 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, a s previouslyrequired under Rule 29.15 of the Missouri Rules of Crimina l Proced ure. Recent amendments to Rule 29.15, eliminate the verificatio n 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 ont o the majority's opinion. We should undertake this revie w promptly.
A true copy.

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