United States Court of Appeals,

Eleventh Circuit.

No. 95-4876.

Bernard BOLENDER, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Secretary, Florida Department of

Corrections, Respondent-Appellee.

July 17, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 95-1484-CIV), Federico A. Moreno, Judge.

Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

BY THE COURT:

Petitioner Bernard Bolender is a Florida death row inmate;

his execution is scheduled for tomorrow morning, Tuesday, July 18,

1995, at 7 o'clock. Earlier today the district court denied

Bolender's second petition for habeas corpus relief and his

application for a certificate of probable cause to appeal. The

district court also denied Bolender's application for a stay of his

execution.

 Petitioner has now applied to this court for a certificate of

probable cause to appeal and for a stay of his execution. We deny

the certificate. Because we anticipate that the petitioner will

apply to the Supreme Court for a writ of certiorari, we stay

petitioner's execution until 10:00 a.m. tomorrow, July 18, 1995, to

give the Court an opportunity to consider petitioner's application.

Any stay beyond that shall issue from the Supreme Court.

The claims the district court has dismissed were first

included (in their present form) in a motion petitioner filed
pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure

in the Circuit Court of Dade County on June 8, 1995. That court

rejected the claims because they were procedurally barred;

accordingly, the court did not reach any of petitioner's claims on

the merits. The Supreme Court of Florida affirmed, Bolender v.

Florida, No. 86,020, --- So.2d ---- (Fla. July 11, 1995), agreeing

that Bolender's claims were procedurally barred. Claims 1 through

6 were barred because "[t]he facts upon which Bolender relies could

have been obtained through the use of due diligence more than two

years prior to the filing of this motion." Claim 7, seeking an

evidentiary hearing on all claims, was rejected because the record

demonstrated conclusively that all of Bolender's claims were

procedurally barred. Claim 8, claiming ineffective assistance of

counsel, was barred as a successive claim (having been raised in a

prior Rule 3.850 motion). Claim 9, a Brady claim that Bolender had

pursued and effectively abandoned in a prior Rule 3.850 petition,

was barred because it constituted a "successive" petition and,

further, was untimely. Claim 10, asserting the sentencing judge's

predisposition to impose the death penalty, was procedurally barred

as not cognizable in Rule 3.850 proceeding; the claim was disposed

of on direct appeal. Id. slip op. at 8-10, --- So.2d at ----.

 The district court properly concluded that all of the claims

presented in Bolender's petition are procedurally barred under

Florida law. The district court also properly concluded that,

aside from the state procedural bars, the claims constitute a

"successive petition" or an abuse of the writ under Rule 9(b) of

the Rules Governing Section 2254 Cases in the United States
District Courts. Petitioner's claims are successive to the extent

that they replicate claims brought in his 1990 federal petition,

and they constitute an abuse of the writ because petitioner has

shown no cause for not asserting his claims in his first federal

habeas petition.

 Finally, we agree with the district court that petitioner has

not demonstrated his "actual innocence" of the murders involved in

this case.

For the foregoing reasons, petitioner's application for a

certificate of probable cause is DENIED. His execution is stayed

until 10:00 a.m., Tuesday, July 18, 1995.

Our mandate shall issue at 5:00 p.m. EDT today. The filing of

a petition for rehearing or rehearing en banc shall not stay the

issuance of the mandate.

IT IS SO ORDERED.