46 F.3d 1135
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Joseph Edward FULTS, Appellant,v.James D. PURKETT, Appellee.
No. 94-1826.
United States Court of Appeals,Eighth Circuit.
Submitted:  Dec. 12, 1994.Filed:  Jan. 31, 1995.

Before MAGILL, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.
PER CURIAM.


1
Joseph Edward Fults, a Missouri inmate, appeals from the district court's1 denial of his 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus as an abuse of the writ.  This petition for a writ of habeas corpus raises one issue:  a due process deprivation because the trial court did not exercise its discretion to determine whether Fults's sentence on each count would run consecutively or concurrently.  We affirm.


2
Fults was convicted, after a jury trial in Missouri state court, of rape, two counts of sodomy and incest.  He was sentenced consecutively on all counts for a total of forty years imprisonment.  Fults exhausted his Missouri postconviction remedies and filed his first federal habeas petition alleging ten separate grounds for relief.  This first petition did not include the ground for relief raised in this petition.  Fults's first habeas petition was denied and we affirmed.


3
Following the denial of his first petition for a writ of habeas corpus, Fults filed this second petition.  The district court, adopting the report and recommendation of the magistrate judge, dismissed this petition as an abuse of the writ.  The district court determined that Fults had not shown cause for his failure to include this ground for relief in his first habeas petition.  The district court concluded that Fults had knowledge of this potential ground for relief at the time of his first habeas petition because the Eastern and Western Districts of the Missouri Court of Appeals were split regarding a trial court's discretion to order concurrent sentences in sex offense cases.  Having carefully reviewed the record and the parties' briefs, we agree with the well-reasoned opinion of the district court and affirm.  See 8th Cir.  R. 47B.


4
Accordingly, the judgment of the district court is affirmed.



1
 The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of the Honorable David D. Noce, United States Magistrate Judge for the Eastern District of Missouri


