                                   _____________

                                   No. 96-2370EA
                                   _____________


Jesse Jackson,                          *
                                        *
           Appellant,                   *
                                        *
     v.                                 *   On Appeal from the United
                                        *   States District Court
                                        *   for the Eastern District
Larry Norris, Director,                 *   of Arkansas.
Arkansas Department of                  *
Correction,                             *
                                        *
           Appellee.                    *

                                   ___________

                    Submitted:      January 17, 1997

                          Filed:   January 27, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.
                               ___________

RICHARD S. ARNOLD, Chief Judge.


     This is a petition for writ of habeas corpus filed by a prisoner in
state custody.     The prisoner, Jesse Jackson, has filed three previous
unsuccessful petitions.      He argues that the claim he now asserts is
"novel," see Reed v. Ross, 468 U.S. 1 (1984), and that, therefore, he has
demonstrated cause for the claim's not having been included in any of his
prior petitions.    It follows, Jackson argues, that he is entitled to a
decision on the merits of the claim.
       The District Court1 held that the claim presently urged is not
"novel" for purposes of the cause-and-prejudice doctrine.          Jackson's claim
is that he was denied counsel on his motion for a new trial under Ark. R.
Crim. P. 36.4, a rule that existed briefly in Arkansas criminal cases,
between July 1, 1989, and January 1, 1991.            The District Court disagreed
with the proposition that this claim was novel for a number of reasons,
including the fact that in Dawan v. Lockhart, 980 F.2d 470 (8th Cir. 1992),
we said that there was indeed a right to counsel under the Sixth Amendment
in connection with Rule 36.4 motions for new trial.         Such motions, we said,
were     essentially   part   of   proceedings   on    direct   appeal,   post-trial
proceedings, as opposed to postconviction proceedings.             Id. at 474 n.5.
Jackson argues that the statement in the Dawan opinion was merely dictum.
This Court held to the contrary in Robinson v. Norris, 60 F.3d 457 (8th
Cir. 1995), cert. denied, 116 S. Ct. 1344 (1996).            Jackson responds that
at the time of the filing of his first three habeas petitions, Robinson had
not been decided, and the Dawan statement looked like dictum before
Robinson came down.


       Even if the statement in question in Dawan were only dictum, this
would not be a novel claim.        The statement in Dawan was in the books.       It
was available to Jackson, and a reasonably prudent person drafting a
petition for federal habeas corpus relief at the time Jackson's first
petition was filed would have included a Sixth Amendment claim based on
Dawan.     The tools necessary to make the claim were available to Jackson at
the time of his first habeas petition, and certainly at the times of his
second and third petitions.           The fact that Robinson, clarifying the
situation, came down later does not excuse the omission of this claim from
Jackson's prior petitions.




       1
     The Hon. James M. Moody, United States District Judge for the
Eastern District of Arkansas, acting on the recommendation of the
Hon. John F. Forster, Jr., United States Magistrate Judge.

                                         -2-
     Jackson argues further that another judge in the same District Court
from which this appeal comes has granted relief on a Dawan claim alleged
in a successive petition, holding that such a claim is novel for cause-and-
prejudice purposes.   To deny him relief, Jackson argues, would violate the
Due Process and Equal Protection Clauses of the Fourteenth Amendment.    We
disagree.   The fact that different members of a district court go different
ways on a legal question does not create a constitutional deprivation.   The
claim is either novel or it's not, and we have held that it is not.      If
another prisoner or prisoners have secured relief based on a district court
holding at variance with this opinion, that is his or their good luck.   It
does not deprive Jackson of any constitutional right.     He is entitled to
receive only what the law allows, notwithstanding that others may have
gotten more.


     Affirmed.


     A true copy.


            Attest:


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




                                    -3-
