                                   ___________

                                   No. 94-3902
                                   ___________

Alan Jeffrey Bannister,                *
                                       *
           Appellant,                  *
                                       *
     v.                                *   Appeal from the United States
                                       *   District Court for the
Paul K. Delo,                          *   Western District of Missouri.
                                       *
           Appellee.                   *
                                       *
-----------------------------          *
Lyon (France) Bar Association          *
Commission, for the Defense of         *
the Human Rights; Lawyer's             *
(Sweden) Association for the           *
Defence of Human Rights;               *
International Centre of                *
Criminal Law & Human Rights;           *
Maastricht Centre for Human            *
Rights of the Faculty of Law           *
of the University of Maastricht,*
                                       *
           Amici Curiae                *
           on Behalf of                *
           Appellant.                  *


                                   ___________

                   Submitted:      November 15, 1995

                          Filed:   November 14, 1996
                                   ___________

Before WOLLMAN, BRIGHT and HENLEY, Circuit Judges.*

                                   ___________

HENLEY, Circuit Judge.




     *Circuit Judges Bright and Henley are Circuit Judges on
     senior status.
      Alan J. Bannister, a Missouri death-row inmate, appeals from a
judgment of the district court1 dismissing a successive petition for a writ
of habeas corpus filed pursuant to 28 U.S.C § 2254.            We affirm.2


I.   Background
      In 1983 a jury convicted Bannister of the capital murder of Darrell
Reustman and he was sentenced to death.        His conviction and sentence were
affirmed on direct appeal, State v. Bannister, 680 S.W.2d 141 (Mo. 1984)
(en banc), cert. denied, 471 U.S. 1009 (1985).        His motions for state post-
conviction relief were denied, e.g., Bannister v. State, 726 S.W.2d 821
(Mo. Ct. App.), cert. denied, 483 U.S. 1010 (1987), as was a section 2254
petition for a writ of habeas corpus, Bannister v. Armontrout, 807 F. Supp.
516 (W.D. Mo. 1991).    We affirmed the denial of habeas relief.          Bannister
v. Delo, 4 F.3d 1434 (8th Cir. 1993), cert. denied, 115 S. Ct. 418 (1994)
(Bannister I).


      Bannister thereafter filed a subsequent petition.         The district court
dismissed that petition, holding that the claims in it were either
successive    or   abusive   and   Bannister   had   not   demonstrated   cause   and
prejudice under Wainwright v. Sykes, 433 U.S. 72 (1977), or produced clear
and convincing evidence of his actual innocence under Sawyer v. Whitley,
505 U.S. 333 (1992), so




      1
     The Honorable D. Brook Bartlett, United States District Judge
for the Western District of Missouri.
          2
        After oral argument in this case, on April 24, 1996,
President Clinton signed the Anti-Terrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, "which
works substantial [and restrictive] changes to" section 2254.
Felker v. Turpin, 116 S. Ct. 2333, 2335 (1996). Because we hold
that Bannister is not entitled to relief under the prior more
lenient habeas law, we do not address the state's contention that
the Act is applicable to this appeal and precludes relief.

                                        -2-
as to permit habeas review.3       Bannister v. Delo, No. 94-1141-CV-W-9 (W.D.
Mo. Dec. 5, 1994) (order).         While    Bannister's appeal was pending, the
Supreme Court decided Schlup v. Delo, 115 S. Ct. 851 (1995).                   In Schlup,
as to guilt-phase actual innocence claims, the Court rejected the "clear
and convincing" Sawyer standard and adopted the more lenient "more likely
than not" standard of Murray v. Carrier, 477 U.S. 478, 496 (1986).                 Id. at
867.    On the state's motion, we remanded the case to the district court
"for consideration of appellant's guilt-phase claims in light of Schlup v.
Delo, and for reconsideration of such other of the District Court's
previous rulings challenged by appellant's appeal, as the District Court
determines is necessary and proper."             (citation omitted).         We noted that
the    "District    Court   may   take   additional       evidence    and    conduct   such
evidentiary hearings as it deems necessary."


       On remand, Bannister filed a motion to disqualify Judge Bartlett
under 28 U.S.C. §§ 144 and 455(a), alleging that the judge was biased
against successive habeas petitions.             Judge Bartlett denied the motion.
The judge also denied Bannister's request for an evidentiary hearing to
establish cause and prejudice or actual innocence and, reaffirming much of
its previous order, dismissed his petition.                Bannister v. Delo, 904 F.
Supp. 998 (W.D. Mo. 1995).        This appeal follows.


II.    Disqualification
       Before addressing Bannister's arguments concerning the district
court's dismissal of the habeas petition, as an initial matter we address
his    contention    that   the    court    erred    in     denying    his    motion    for
disqualification under 28 U.S.C. §§ 144 and 455(a).
Section 144 provides that "whenever a party . . . files a timely




          3
         Bannister filed the instant petition shortly before a
scheduled execution date. This court entered a stay of execution,
which was upheld by the Supreme Court.

                                           -3-
and sufficient affidavit that the judge before whom the matter is pending
has a personal bias against him or in favor of any adverse party, such
judge shall proceed no further . . . ."          Section 455(a) provides that a
judge "shall disqualify himself in any proceeding in which his impartiality
might be reasonably questioned."


      In   support    of   the   disqualification    motion,   Bannister   filed   an
affidavit in which he stated that he had learned that Judge Bartlett had
recused himself from ruling on a successive habeas petition of another
death-row inmate, Doyle Williams, and that the judge's comments at the
recusal hearing demonstrated he was biased against successive habeas
petitions.   At the hearing, Judge Bartlett stated:


      I am persuaded that I cannot be fair. As I told counsel, I
      worked very hard on the first round of this habeas, believing
      that I had done what I could do to bring into one lawsuit the
      federal claims, and believing that was consistent with the
      rational, fair criminal justice system.

      I now find that we are embarked on another round of litigation
      which promises to be more time-consuming than the first. I do
      not think that's consistent with a rational criminal justice
      system. I don't think it's consistent with any principles that
      the Supreme Court has enunciated should govern this litigation.

                                          ***

      I have concluded that in this case it is not personal views
      about the merits of the argument being raised, it is not my
      personal views about the state's right to determine to decide
      what penalty will be assessed for certain crimes, . . . . I
      have a strong and abiding faith in the rational system. My
      personal belief is causing impatience in the belief that this
      proceeding has gone beyond the limits of rationality. And it
      is, I am afraid of coloring my views on resolving the issues.


Trancript of Recusal Proceedings in Williams v. Delo, No. 91-0230-CV-W-9,
in   Bannister's     Supplemental    Appendix   at   3.   Judge   Bartlett   denied
Bannister's motion to disqualify, explaining his




                                         -4-
"frustrations" in the Williams case "were related solely to my work on
th[at] case."      Order of April 13, 1995 at 2.


     "In    this   circuit,   whether   disqualification    is   required   in   a
particular case is committed to the sound discretion of the            district
judge, and we review only for an abuse of discretion."       In re Kansas Pub.
Employees Retirement Sys., 85 F.3d 1353, 1358 (8th Cir. 1996) (In re
KPERS).    "This is so because '[t]he judge presiding over a case is in the
best position to appreciate the implications of those matters alleged in
a recusal motion.'"    Id. (quoting In re Drexel Burnham Lambert, Inc., 861
F.2d 1307, 1312 (2d Cir. 1988), cert denied, 490 U.S. 1102 (1989)).
"Accordingly, we presume Judge Bartlett is impartial, and [Bannister] bears
'the substantial burden of proving otherwise.'"          Id. (quoting Pope v.
Federal Express Corp., 974 F.2d 982, 985 (8th Cir. 1992)).


     Moreover, we must keep in mind that in Liteky v. United States, 510
U.S. 540, 55O (1994), the Supreme Court made clear that "[n]ot all
unfavorable disposition towards an individual (or his case) is properly
described by th[e] terms" bias or prejudice.     Rather, "[t]he words connote
a favorable or unfavorable disposition or opinion that is somehow wrongful
or inappropriate, either because it is undeserved, or because it rests upon
knowledge that the subject ought not to possess . . ., or because it is
excessive in degree . . . ."      Id.    Thus, bias can be shown if a judge's
remarks or opinions "reveal such a high degree of favoritism or antagonism
as to make fair judgment impossible."         Id. at 555.   However, "judicial
remarks during the course of a trial that are critical or disapproving of,
or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge."        Id.   Also "[n]ot establishing
bias or partiality . . . are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect men
and women, even after having been confirmed as federal judges, sometimes
display."    Id. at 555-56.




                                        -5-
      On appeal, Bannister does not argue that Judge Bartlett demonstrated
actual bias, but argues he should have disqualified himself under section
455(a) because his comments at the Williams recusal hearing created an
appearance of bias against successive habeas petitions.   "Under § 445(a),
we consider whether the judge's impartiality might reasonably be questioned
by the average person on the street who knew all the relevant facts of a
case."    In re KPERS, 85 F.3d at 1358.    We agree with the state that a
reasonable person who knew all the circumstances--including the reasons why
Judge Bartlett recused himself in the Williams case--would not question the
judge's impartiality in this case.


      Following the above-quoted comments, Judge Bartlett explained that
he was recusing himself because he had become frustrated with the manner
in which the Williams case had been proceeding.    The judge noted that he
had   expressed frustration with the case the previous week during a
telephone conference, which had been convened because in papers filed
shortly before a scheduled evidentiary hearing, Williams appeared to be
waiving the hearing.   During the conference, Judge Bartlett expressed his
frustration not only at Williams' apparent change in tactics, but also at
the timing and the length of the papers.     Judge Bartlett told Williams'
counsel, "it looks to me like, you're trying to figure out how to drown
everybody in paper and make this thing absolutely as complex, drawn out and
as difficult as possible."     Supp. App. at 29.   The judge further told
counsel, "what happens next week I don't know frankly. . . .   [I]f there's
this much stuff that has been raised I need to look at it over the weekend
and Monday I'll be informed and we'll sit down and decide what to be
doing."   Id. at 34.


      On Monday the judge recused himself.     He explained that over the
weekend he had struggled to distinguish between what he believed was
appropriate institutional impatience with successive habeas petitions and
inappropriate personal impatience with a particular case, and believed
recusal was appropriate because




                                     -6-
"there [wa]s a possibility that the appropriate institutional impatience
ha[d] crossed over and will inappropriately affect my approach to the
issues in this case."        Id. at 47.        The judge emphasized that his
"impatience was a development for this case only."         Id. at 51.


       In context, it is clear that Judge Bartlett recused himself in
Williams because of his frustration with the course of that litigation, and
not because of any "wrongful or inappropriate" disposition as to successive
petitions.    Litkey, 510 U.S. at 550.        His remarks during the Williams
proceedings   about    successive    habeas   petitions   are   "not   subject    to
characterization as bias or prejudice."         In re Larson, 43 F.3d 410, 413
(8th Cir. 1994).      They are not so excessive in degree "as to make fair
judgment impossible."       Liteky, 510 U.S. at 555.        Indeed, during the
Williams case, Judge Bartlett did exactly what Liteky demands.            We thus
hold that the district court did not abuse its discretion in denying
Bannister's motion for disqualification.


III.   Guilt Phase Claims
       As previously noted, in 1983 a jury convicted Bannister of the August
21, 1982 capital murder of Darrell Reustman in Joplin, Missouri.                 The
state's evidence included an August 23, 1982 statement in which Bannister
gave "an account of the crime from its inception to [his] arrest" in the
early morning hours of August 22, 1982 at a bus station.                 State v.
Bannister, 680 S.W.2d at 147.       In brief, the evidence established that in
1982, while Bannister was living in Peoria, Illinois, he agreed to be the
"hit" man in a contract killing of Reustman, which had been arranged by
Rick "Indian" Wooten for Richard McCormick, who wanted Reustman killed
because he was living with McCormick's wife, Linda McCormick.


A.   Actual Innocence
       We first address Bannister's arguments concerning his Schlup v. Delo
guilt-phase actual innocence claim.       "This narrow exception




                                        -7-
in the procedural bar analysis is concerned with actual as compared to
legal innocence."      Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir.), cert.
denied, 115 S. Ct. 462 (1994) (internal quotation omitted).         In Schlup, the
Supreme Court explained that the petitioner's "'claim of innocence is []
not itself a constitutional claim, but instead a gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits.'"         115 S. Ct. at 861 (quoting Herrera v.
Collins, 506 U.S. 390, 404 (1993)).        To satisfy Schlup, a petitioner must
first "support his allegations of constitutional error with new reliable
evidence--whether    it     be   exculpatory   scientific   evidence,   trustworthy
eyewitness accounts, or critical physical evidence--that was not presented
at trial."    Id. at 865.    The petitioner must then demonstrate that "it is
more likely than not that no reasonable juror would have convicted him in
light of the new evidence."        Id. at 867.


        Although at trial Bannister presented a reasonable doubt defense and
suggested that Linda McCormick had murdered Reustman, Bannister now admits
that he shot and killed Reustman.       He, however, asserts that he is actually
innocent of capital murder because he did not intend to shoot Reustman.
According to Bannister's present theory of the case, the shooting occurred
accidently during a struggle after Bannister confronted Reustman in a
mistaken belief that Reustman was responsible for a stabbing Bannister had
received in Arizona.      Bannister claims that although he initially believed
that Wooten was responsible for the stabbing because he had owed Wooten
money    for a drug deal, Wooten had convinced him that Reustman was
responsible for the stabbing and, giving him a gun, money for a bus ticket,
and a piece of paper with Reustman's name and address, enabled Bannister
to travel to Joplin to confront Reustman.          Bannister asserts that he did
not intend to kill Reustman, but only wanted to "make him feel some of the
pain that I felt."     Opening Br. at 7.       He argues that although he may be
guilty of second-degree murder or manslaughter, he is innocent of




                                         -8-
capital   murder,     which   under   Missouri   law   requires   an   element   of
                 4
premeditation.       See Mo. Rev. Stat. § 565.001 (1978).


     In support of his claim, Bannister submitted the affidavits of
Wooten, Beverly Taylor, an investigator who had interviewed Wooten, and
Steven Trombley, a film maker who wrote a biography of Bannister and
directed a documentary film entitled "Rasing Hell: Stories of A. J.
Bannister."


     In his November 22, 1994 affidavit, Wooten, who was incarcerated for
murder, states that he "had no contact with any of the persons allegedly
involved" with Reustman's murder, but knew "for a fact this murder was not
a murder for hire."     In her November 28, 1994 affidavit, Taylor states that



      4
      For purposes of this appeal, we assume, but do not decide,
that Bannister has at least alleged an actual innocence claim.
Although Bannister does not raise a "prototypical" claim of actual
innocence, in Jones v. Delo, 56 F.3d 878, 883 (8th Cir. 1995),
cert. denied, 116 S. Ct. 1330 (1996), we explained that even though
a petitioner was "responsible for the victim's death in the sense
that he was the causative agent that inflicted the mortal wounds,"
he had alleged actual innocence where he claimed that new evidence
showed that he was incapable of forming "the predicate deliberative
intent, without which he could not have been found guilty of
capital murder." We reasoned that "negation of an element of the
offense accord[ed] with the strictest definition of actual
innocence." Id. (internal quotation omitted).
     In this case, Bannister does not allege that he was incapable
of possessing the requisite intent, as did petitioner in Jones, but
only alleges that he did not possess the intent.       In Pitts v.
Norris, 85 F.3d 348, 350 (8th Cir.), cert. denied, 1996 WL 557496
(U.S. Nov. 4, 1996) (No. 96-6084), petitioner, who had been
convicted of capital felony murder arising from a kidnapping,
raised an argument somewhat similar to the one Bannister now
raises. In Pitts, the petitioner conceded that he had murdered his
kidnap victim, but argued that he was innocent of capital felony
murder because he intended to murder the victim from the beginning
and thus lacked an independent intent to commit the underlying
kidnapping, as the state statute required.       We held that his
argument was as one of legal not factual innocence and observed
that even if petitioner were "right, convicting him is not a
fundamental miscarriage of justice by any stretch of the
imagination." Id. at 351.

                                        -9-
Wooten told her he




                     -10-
was not involved in Reustman's murder, claiming he "would never have had
an amateur perform a 'hit'" and that Bannister was not "the kind of boy to
get involved in a violent crime such as murder."


        In his November 7, 1994 affidavit, Trombley states that based on his
two-year investigation of Reustman's killing, he concluded that "while
Bannister did shoot and kill Darrell Reustman, the complete story is that
Richard McCormick hired Indian to kill" Reustman, but that because Indian
wanted to "pocket" the "hit" money, he "provid[ed] Bannister with a motive
for the crime," by "duping" Bannister into believing that Reustman was
responsible for the Arizona stabbing.         Affidavit at Paragraphs 29 and 35.



        The district court held that the affidavits did not come close to
meeting the Schlup actual innocence standard and thus did not warrant an
evidentiary hearing.       See Barrington v. Norris, 49 F.3d 440, 442 (8th Cir.
1995) (per curiam) (petitioner did not make "a sufficient showing of actual
innocence to warrant a hearing on the issue").          The district court found
that Taylor's affidavit merely summarized Wooten's claims and that Wooten's
affidavit was not only internally inconsistent, "conclusory, incredible,
and unpersuasive," but also conflicted with Trombley's affidavit.              904 F.
Supp.    at   1004.   As    to   Trombley's   affidavit,   the   court    found   that
essentially it was based on unreliable hearsay and "hopeful speculation to
come up with a theory about how the killing happened."            Id.


        On appeal Bannister argues that the district court erred in failing
to hold an evidentiary hearing, asserting that the court could not assess
credibility on the basis of the affidavits.          We disagree.        In Battle v.
Delo, 64 F.3d 347, 352 (8th Cir. 1995), cert. denied, 116 S. Ct. 1881
(1996), we recognized that "[if] new evidence calls the credibility of
certain witnesses into question, and their credibility figures reasonably
in our assessment, remand




                                        -11-
for an evidentiary hearing may be appropriate.    However, the mere fact that
affidavits are presented does not automatically require such a remand."
Id. (footnote omitted).      Indeed, in Schlup, the Court held that in
determining whether an evidentiary hearing is necessary, a district court
"must assess the probative force of the newly presented evidence in
connection with the evidence of guilt adduced at trial."         115 S. Ct. at
869.   In making this assessment, the district court "may consider how the
timing of the submission and the likely credibility of the affiants bear
on the reliability of that evidence."      Id.


       Bannister also incorrectly asserts that an evidentiary hearing was
required so that he could develop evidence in support of his claim of
actual innocence.   In Battle, 64 F.3d at 353, we rejected the argument that
an evidentiary hearing was necessary to enable the petitioner to develop
evidence "which, he claim[ed], w[ould] exonerate him."     Noting that "[i]n
essence, [petitioner] [wa]s asking us to excuse his evidentiary default as
to his claim of actual innocence, . . . in order that he may develop
sufficient evidence of his actual innocence[,]" we found "[t]his circular
argument [wa]s without merit."    Id. at 354.    We explained:


       a remand is inappropriate because the actual innocence gateway
       through a procedural bar is not intended to provide a
       petitioner with a new trial, with all the attendant development
       of evidence, in hopes of a different result. Rather, it is an
       opportunity for a petitioner, aggrieved by an allegedly
       defective trial and having inexcusably defaulted the available
       remedies, to raise such a strong doubt to his guilt that, in
       hindsight, we cannot have confidence in the trial's outcome
       unless it was indeed free of harmless error. To avail himself
       of that opportunity, it is the petitioner's, not the court's,
       burden to support his allegations of actual innocence by
       presenting new reliable evidence of his innocence.


Id. (internal citations and quotation omitted).         Moreover, before an
evidentiary hearing in federal court is required a petitioner




                                    -12-
"must allege facts which, if proved, would entitle him to relief[.]"
Bowman v. Gammon, 85 F.3d 1339, 1343 (8th Cir. 1996) (internal quotation
omitted).    Thus, an evidentiary hearing is not required on a claim of
actual innocence if development of the claim would not establish actual
innocence.   Id.


       In this case, it is clear that the district court did not err in
failing to conduct an evidentiary hearing.   On appeal, Bannister apparently
no longer relies on Wooten's and Taylor's affidavits, but argues that
Trombley's affidavit satisfies the Schlup standard and that the district
court improperly discredited Trombley because of his alleged commercial
interest in the case.   Although the district court believed that Trombley
tended to exaggerate because of his commercial interest in Bannister's
life, the district court correctly concluded--credibility issues aside--
Trombley's affidavit was not evidence of actual innocence.    See Battle, 64
F.3d   at 352 (evidentiary hearing unnecessary because even crediting
affiants they did not establish actual innocence).5          Although in his
affidavit Trombley set forth Bannister's allegations that he travelled to
Joplin only "to carve [his] initials on [Reustman's] ass" and that the
shooting was accidental,   Affidavit at Paragraphs 29-30, it is clear that
Trombley does not believe Bannister.       Trombley's theory is that Wooten
"devised a way to keep all of the




        5
       In an attempt to bolster Trombley's credibility, in this
appeal Bannister presents a second affidavit by Trombley, which was
not submitted to the district court. In the affidavit, Trombley
disputes the district court's belief that his commercial interest
in Bannister influenced his views, contending that he would make
more money on a commercial venture about Bannister if he were
executed. The state has filed a motion to strike the affidavit and
an attached exhibit. "In the interest of full information, and
despite [the] untimely submission," Washington v. Delo, 51 F.3d
756, 759 (8th Cir.), cert. denied, 116 S. Ct. 205 (1995), we deny
the motion and have reviewed the affidavit.       However, because
Trombley's credibility does not "figure[] reasonably in our
assessment" of Bannister's actual innocence claim, his second
affidavit is irrelevant. Battle, 64 F.3d at 352. All subsequent
references in this opinion to Trombley's "affidavit" will be to his
first affidavit.

                                    -13-
money for the job"--that is, Reustman's murder--"and insulate himself from
the law by using Bannister as his dupe."   Bannister's Opening Br. at 4-5.
Trombley's theory "simply does not work to exonerate" Bannister.   Battle,
64 F.3d at 352.   Indeed, Trombley's theory is that Bannister knowingly and
with premeditation murdered Reustman and is thus consistent with the
capital murder statute in effect at the relevant time, which provided that
"[a]ny person who unlawfully, willfully, knowingly, deliberately, and with
premeditation kills or causes the killing of another human being is guilty
of capital murder."   Mo. Rev. Stat. § 565.001 (1978)6


     Moreover, as the district court found, the "evidence" in Trombley's
affidavit supporting Bannister's theory of an accidental shooting comes
from Bannister and thus cannot be considered "new" evidence.    In Pickens
v. Lockhart, 4 F.3d 1446 (8th Cir. 1993), cert. denied, 114 S. Ct. 1206
(1994), we held that a prosecutor's affidavit stating that a police officer
had admitted making a threatening remark to the petitioner was not new
evidence.   We explained that although petitioner did not know of the
existence of the affidavit, "petitioner knew of the basis for the claim the
day it arose because he was the person to whom the [threatening] remark




        6
        In his affidavit, Trombley also suggests that the law
enforcement officers had lied about Bannister's statement.
Trombley noted that the statement was not written or recorded and
was in the third person. He also asserts that before the statement
Reustman's brother had informed the police that his brother's death
might have been a contract killing. However, as the district court
noted, these issues were presented to the jury as the trier of
fact.   For example, on direct examination, Bannister's counsel
called officer Marshall Matthews, an investigating officer.
Matthews testified that after the murder and before the arrest,
Reustman's brother, who was a deputy sheriff in Illinois,
telephoned him "about the possibility of a contract killing."
Trial Tr. at V,194. In any event, those portions of Trombley's
affidavit that question the weight of the statement and the
officers' credibility support a claim of legal, not factual,
innocence. See Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.
1992) (claim that confession was involuntary was one of legal, not
factual, innocence).

                                   -14-
by the interrogating officer was made."      Id. at 1450 (internal quotation
omitted).    Likewise, in this case Bannister knew what Wooten had told him
and what his intent was when he confronted Reustman.   As the district court
observed, "[p]utting a different spin on evidence that was presented to the
jury does not satisfy the requirements set forth in Schlup." 904 F. Supp.
at 1004.    See Bowman v. Gammon, 85 F.3d at 1344 ("only thing 'new' at this
time is that petitioner's counsel has read the testimony in a new light")
(internal quotation omitted).7


     In addition, contrary to his assertion on appeal and as the district
court noted, Bannister is nothing like the petitioner in Schlup, who had
asserted his innocence from the beginning.    See Schlup, 115 S. Ct. at 855.
In contrast, Bannister's theory of the case has changed over time.        At
trial,     Bannister relied on a reasonable doubt defense.       In closing
argument, Bannister's counsel suggested that Linda McCormick, conspiring
with her husband, "did




     7
      Bannister also argues that the physical evidence supports his
claim that the shooting occurred during a struggle.         In his
affidavit, Trombley notes that the autopsy report showed that the
bullet entered Reustman's chest at a sixty degree downward angle
and theorizes that because Bannister and Reustman were the same
height, "if there had been no struggle, Bannister would have to
have been standing one or two feet above Reustman (as on a step
ladder) to make the state's argument to be plausible." Affidavit
at Paragraph 30.      However, the autopsy evidence is not new
evidence. See Bowman, 85 F.3d at 1345 (factual basis of claim that
autopsy evidence was inconsistent with state's theory of stabbing
was reasonably available to petitioner at the time of trial).
Indeed, at trial a pathologist testified that the path of the
bullet which pierced Reustman's heart "was very sharply downward."
Trial Tr. at IV,9. In closing argument, the state explained that
the downward path of the bullet could have occurred because
Reustman "ducked" when he saw Bannister with a gun. Supp. Tr. at 7.
"We [] remind [Bannister] that our role is not to repeat what has
been done at trial . . . ." Washington v. Delo, 51 F.3d at 761-
762.
     However, at this time, we want to point out an error in our
previous opinion.       In that opinion, 4 F.3d at 1436, we
inadvertently and incorrectly stated that Bannister shot Reustman
in his head, instead of his heart.

                                    -15-
away" with Reustman.    Supplemental Tr. at 44.         Because eyewitnesses had
placed Bannister at the scene of the crime, counsel hypothesized that
Bannister was "set up to come down here just in time to be the patsy."             Id.
at 45.   Counsel told the jury that under that scenario "Linda McCormick is
not even suspected.    She's home free.       Richard [McCormick] is home free,
and Alan Bannister is here charged with capital murder."        Id.    In his brief
on direct appeal, Bannister argued he was acting under the domination of
Wooten, asserting that the "evidence showed that Indian was the go-between
and carefully monitored all [Bannister's] actions including seeing that
[he] made arrangements to travel from Illinois to Missouri."               Br. in No.
64896 at 23.   Bannister also argued that "Indian was a very mean person and
that [he] was afraid of him."     Id. at 23.         In his first post-conviction
motion, Bannister advanced a mental disease or defect defense.                In his
brief on appeal of the denial of the motion, he asserted that "in light of
his "bizarre and incriminating statements to officers, a mental defense was
essentially his sole defense."     Br. in No. 14640 at 37.


B.   Cause and Prejudice


      Bannister   generally   argues   that    his    "allegations    of   cause   and
prejudice in pleadings before the district court and his willingness to
present evidence in such a hearing indicate that the district court erred
in summarily denying relief on procedural grounds without a hearing."
Supplemental Opening Br. at 11.   Because Bannister's attempt to incorporate
by reference arguments made in the district court "is prohibited under 8th
Cir. R. 28A(j)[,]" Sidebottom v. Delo, 46 F.3d 744, 750 n.3 (8th Cir.),
cert. denied, 116 S. Ct. 144 (1995), we will not address those arguments
raised in the district court.    However, we address hereinafter any specific
arguments as to cause and prejudice Bannister does raise on appeal.


C.   Michigan v. Jackson Claim
      In the present petition, Bannister alleged that admission of




                                       -16-
his statement given to Sheriff Joe Abramowitz and other law enforcement
officers at the Newton County Jail at 10:30 a.m. on August 23, 1982 and
evidence obtained therefrom violated his sixth amendment rights under
Michigan v. Jackson, 475 U.S. 625 (1986).   The district court held that the
claim was successive because in Bannister I this court found that the claim
was procedurally barred and that Bannister had not alleged sufficient cause
and prejudice or actual innocence to permit relitigation of the claim.8
904   F.   Supp. at 1002.   In particular, the district court rejected
Bannister's allegation of cause based on his assertion that in Bannister
I this court improperly raised a procedural default sua sponte.   The court
noted that Bannister had raised his allegation of error in his petition for
rehearing to this court and in his petition for certiorari to the Supreme
Court, and that both petitions had been denied.    Id.


      In this appeal, Bannister again asserts cause based on our alleged
erroneous application of a procedural default.     Alternatively, he argues
even if he has not established cause or prejudice or actual innocence to
permit review of the successive claim, we should review his sixth amendment
Jackson claim under the Sanders v. United States, 373 U.S. 1 (1963), "ends
of justice" test.    Although this court has indicated that the "ends of
justice" test is confined to a showing of actual innocence, Ruiz v. Norris,
71 F.3d 1404, 1409 (8th Cir. 1995), cert. denied, 1996 WL 294907 (U.S. Nov.
4, 1996) (No. 95-9119), because Bannister contends that but for error of
this court in Bannister I he would be entitled to habeas relief under
Michigan v. Jackson, we address but reject his contention.


      In his first appeal, Bannister raised both fifth and sixth




       8
      "A determination of an unexcused . . . procedural bar is a
final determination on the merits for purposes of" a successive
claim.   Caton v. Clarke, 70 F.3d 64, 65 (8th Cir. 1995) (per
curiam), cert. denied, 116 S. Ct. 1579 (1996).

                                   -17-
amendment challenges to the admission of his August 23 statement.        The
district court had held that the admission of the statement did not violate
Bannister's fifth amendment rights under Edwards v. Arizona, 451 U.S. 477
(1981).    In Edwards, the Supreme Court held that after an accused
"expressed his desire to deal with the police only through counsel, [he]
is not subject to further interrogation . . . unless the accused himself
initiates further communication, exchanges, and conversations with the
police."   Id. at 484.   In addition, under Edwards, the prosecution must
"show that subsequent events indicated a waiver of the Fifth Amendment
right to have counsel present during the interrogation."          Oregon v.
Bradshaw, 462 U.S. 1039, 1044 (1983) (plurality opinion).      The district
court, applying the 28 U.S.C. § 2254(d) presumption of correctness to the
state court findings, held that "Bannister had voluntarily initiated
conversations with the police after Bannister had requested a lawyer."   807
F.Supp. at 552.   The state court had found that Bannister requested counsel
at on August 22 at 5:40 a.m. and thereafter initiated conversations with
the police, by, among other things, telling officers that he had used an
alias when registering at the motel, inquiring about the penalties for
capital murder, and on his 6:30 a.m. arrival at the county jail asking to
speak to the person in charge.9   680 S.W.2d at 147.   The district



     9
      In more detail, as to initiation, the state court found:

     Arresting officers twice advised [Bannister] of his
     Miranda rights and made no attempt to question him. At
     5:40 a.m. on August 22, at the Joplin City Jail,
     [Bannister] again received Miranda warnings.      At that
     time, he refused to sign a waiver form, indicating his
     desire to wait for an attorney. The questioning ceased.
     Later, [Bannister] volunteered certain information to
     officers, including the alias he used at the motel. En
     route to the Newton County jail, [Bannister] inquired as
     to the possible punishment for capital murder, expressed
     regret that he left 'his own profession' of 'robbing
     banks at which he never got caught,' and speculated about
     FBI involvement in the current investigation. At 6:30
     a.m., following his arrival at the jail, [Bannister]
     asked to speak to the person in charge. Officers took
[Bannister] to the sheriff [Joe Abramowitz], who declined to talk
with [Bannister], but invited him to make a telephone call and
advised him to tell the truth. [Bannister] initiated each of these

                                    -18-
court also applied the presumption of correctness to the state court
findings of fact surrounding the August 23 statement and based on de novo
review held that Bannister had knowingly and voluntarily waived his rights.
807 F. Supp. at 552.   See Williams v. Clarke, 40 F.3d 1529, 1543 (8th Cir.
1994) (voluntariness of confession subject to de novo review; historical
facts subject to presumption of correctness), cert. denied, 115 S. Ct. 1397
(1995).   In particular, the district court noted that the officers had
repeatedly advised Bannister of his Miranda rights, that he had signed a
waiver of those rights, and had expressed his desire to talk to the police.
Moreover, the district court noted that the "atmosphere of the questioning
(e.g., allowing Bannister to make telephone calls during the time he was
cooperating with the sheriff




contacts without prompting by the police officers.

State v. Bannister, 680 S.W.2d at 147.

     In Bannister I, 4 F.3d at 1439, we indicated that a state
court determination of initiation was subject to a section 2254(d)
presumption of correctness.     However, in light of Thompson v.
Keohane, 116 S. Ct. 457 (1996), that statement may no longer be
valid. In Thompson, id. at 465, the Supreme Court noted that the
courts of appeal were split on whether a state court determination
that a defendant was "in custody" for Miranda purposes was subject
to a presumption of correctness. The Court held that although the
presumption applied to state court findings on the "scene- and
action-setting questions[,]" de novo review was required for the
"ultimate inquiry" of whether a person was in custody for Miranda
purposes. Id. at 465. See Feltrop v. Bowersox, 91 F.3d 1178, 1180
(8th Cir. 1996). Because Bannister has never contested that his
statements on August 22 constituted initiation, in this appeal, we
need not resolve the correct standard of review of a state court
initiation determination.    However, assuming de novo review is
required, applying the presumption to the "scene- and action-
setting" findings, Thompson, 116 S. Ct. at 465, it is clear that
Bannister's statements on August 22 "evince[d] a willingness and a
desire for generalized discussion about the investigation" and thus
constituted initiation. Oregon v. Bradshaw, 462 U.S. at 1045-46
(plurality opinion).

                                   -19-
plus no evidence of physical or psychological coercion), show[ed] that
scrupulous attention was given to Bannister's rights."       807 F. Supp. at
    10
552.


         In the previous appeal to this court, Bannister did not contest that
he initiated conversations with the law enforcement officers on August 22,
but argued that the state and district courts had "ignored" the "fact" that
he had requested and been appointed counsel at his arraignment, which he
claimed occurred at 9:00 a.m. on August 23, 1982.     He further argued that
because he did not thereafter initiate the conversations with the officers,
admission of his post-arraignment statement violated Michigan v. Jackson.
In Jackson, 475 U.S. at 636, the Supreme Court held that under the sixth
amendment "if police initiate interrogation after



          10
        In more detail, as to the circumstances surrounding the
statement, the state court found:

         At 10:30 a.m. on August 23, [Bannister] met with the
         sheriff and two officers at which time they advised him
         of his Miranda rights. [Bannister] stated he understood
         his rights and wanted to talk, and signed a written
         waiver.   During conversations that followed Bannister
         recounted   numerous   details   of   the  crime.      At
         [Bannister's] suggestion, he accompanied officers to the
         scene of the murder, where he continued his commentary on
         the events prior to and immediately following the
         shooting.      During  this   time,   officers   reminded
         [Bannister] that he did not have to cooperate, but he
         responded that he wanted to talk. Upon their return to
         the sheriff's office, officers permitted [Bannister]
         telephone calls and again read him his Miranda rights.
         [Bannister] then gave officers an account of the crime
         from its inception to [his] arrest. Although [Bannister]
         initially used the third person in describing events and
         never stated he shot Reustman, the extent and detail of
         the information he provided leaves little doubt of his
         guilt. Other than the occasional mention of pain from a
         past injury, [Bannister] did not appear to be in pain
         during the questioning, did not request immediate medical
         care or move to halt the interview, and there is no
         evidence of physical or psychological coercion.

State v. Bannister, 680 S.W.2d at 147.

                                     -20-
a defendant's assertion, at an arraignment or similar proceeding, of his
right to counsel, any waiver of the defendant's right to counsel for that
police-initiated interrogation is invalid."


        In Bannister I, 4 F.3d at 1440, we found that it was not surprising
that    the courts had ignored Bannister's assertion that he had been
arraigned and appointed counsel at 9:00 a.m. on August 23 and that his
post-arraignment    confession    violated   Jackson   because   the   first   time
Bannister had raised the claim in any court was in a Rule 59(e) motion in
the district court.     Because a motion under Rule 59(e) is a motion for
reconsideration, not initial consideration, we stated that "a Rule 59(e)
motion cannot be used to raise arguments which could, and should, have been
made before the trial court entered final judgment."              Id. (internal
quotation omitted); see also Guinan v. Delo, 5 F.3d 313, 316 (8th Cir.
1993) (post-judgment motion cannot be used to "raise claims that either
could have been raised in [the original] habeas petition or were raised
therein and adjudicated").


        We also noted that the state had cited Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992), in its brief, and our review of the record indicated an
evidentiary default because there was no record support for Bannister's
claim that he had been arraigned and appointed counsel at 9:00 a.m. on
August 23.   4 F.3d at 1439-40.    In his appellate brief, as support for this
claim    Bannister cited the state court docket sheet and his undated
affidavit in the addendum to his brief.      However, we noted that the docket
sheet did not show the time of the arraignment and that his undated
affidavit apparently was presented to the district court for the first time
as an exhibit to his Rule 59(e) motion.       Id. at 1440.


        In this appeal, Bannister does not contest that he first raised the
claim in the Rule 59(e) motion, or that he failed to make a record in the
state court that he had been arraigned and




                                      -21-
appointed counsel at 9:00 a.m. on August 23, 1982.11      Rather, he argues
that this court should have addressed the merits of his Jackson claim
because the state waived any evidentiary default.   See Miller V. Lockhart,
65 F.3d 676, 680 (8th Cir. 1995).     He asserts that we read the state's
citation of Keeney too broadly and, in any event, at oral argument the
state conceded the factual basis of the claim by stating "then the next day
there was the court proceeding and then at 10:30 a.m. the statement began."
Appendix at 65.   Alternatively, Bannister argues that we unfairly raised
the evidentiary default sua sponte, without affording him the opportunity
to establish cause and prejudice.    See United States v. Fallon, 992 F.2d
212, 213 (8th Cir. 1993) (court can raise abuse of writ sua sponte "so long
as the petitioner is given adequate opportunity to respond").     Bannister
argues if given the opportunity at an evidentiary hearing he could prove
cause, asserting that counsel was ineffective for failing to develop the
claim in the state courts.   As to prejudice, he claims that if his August
23 statement and evidence obtained therefrom had been excluded, he would
be acquitted.


     The state responds that it did not waive the default, that Bannister
has taken its statement at oral argument out of context, and, in any event,
the statement cannot be considered as a binding judicial admission to
create a record where no factual record exists.12   Alternatively, the state


     11
      Bannister argues that he raised the claim in his Rule 59(e)
motion because the "timing of the arraignment was not an issue
until the district court failed to note the critical fact when it
denied the claim in the first habeas proceeding." Reply Br. at 8.
However, because there is no record support that Bannister was
arraigned at 9:00 a.m. on August 23, the district court cannot be
faulted for failing to note this non-existent "fact."
      12
       In certain circumstances, a court may rely on a counsel's
statement at oral argument as a judicial admission, Carson v.
Pierce, 726 F.2d 411, 412 (8th Cir. 1984) (order). However, in the
circumstances of this case, we agree with the state that its
comments at oral argument do not have "sufficient formality or
conclusiveness to be considered a judicial admission." Rowe Int'l,
Inc. v. J-B Enterp. Inc., 647 F.2d 830, 836 (8th Cir. 1981);
Peltier v. Henman, 997 F.2d 461, 469 (8th Cir. 1993) (counsel's
ambiguous statement at oral argument could not be considered
concession).

                                    -22-
asserts that this court can




                              -23-
raise a procedural default sua sponte, citing Prewitt v. Goeke, 978 F.2d
1073, 1077-78 (8th Cir. 1992), and in this case, as a matter of law under
Murray v. Carrier, 477 U.S. 478, 489 (1986), Bannister cannot rely on
ineffective assistance of trial or appellate counsel as cause for the
default because he failed to raise such a claim as an independent claim in
the state court.


       In any event, the state asserts that we need not address Bannister's
arguments concerning the default in the state courts, because, aside from
the evidentiary default in state court and his failure to timely raise the
claim in the district court in his first petition,13 he is not entitled to
relief under Jackson by the nonretroactivity principles of Teague v. Lane,
489 U.S. 288 (1989).    In Bannister I, we noted that Bannister could not
rely on Jackson in his direct appeal because the case had been decided
after Bannister's conviction became final.   We acknowledged that the state
had not raised a Teague objection and that the Supreme Court had indicated
that the Teague bar was not jurisdictional, but noted that courts had held
that Jackson established a "new rule" for Teague purposes.   4 F.3d at 1440
n.7.


       Because we agree with the state that Bannister is not entitled to
habeas relief under Teague v. Lane, we do not address his arguments
concerning the evidentiary default.   See Spaziano v. Singletarry, 36 F.3d
1028, 1041 (11th Cir. 1994) ("We need not address the procedural default
issue or the merits, because we conclude that the claim is Teague-
barred."), cert. denied, 115 S.




       13
      In Bannister I, 4 F.3d at 1445, we stated that a claim raised
for the first time in a post-judgment motion can be considered
abusive.

                                   -24-
Ct. 911 (1995).       However, as he does with his default argument, Bannister
argues that because the state did not raise a Teague issue this court
should not have raised the issue sua sponte.               We disagree.      Since our
decision in Bannister I, the Supreme Court has made "clear that [a federal]
court ha[s] discretion to address the Teague issue even in the presence of
a waiver."       Jones v. Page, 76 F.3d 831, 850 (7th Cir.), cert. denied, 1996
WL 395965 (U.S. Oct. 21, 1996) (No. 96-5064).               In other words, even if
"[t]he state does not cite Teague, [] we are free to apply it anyway."
Bracy v. Gramley, 81 F.3d 684, 689 (7th Cir.), petition for cert. filed,
(U.S. Sept. 23, 1996) (No. 96-6114).               Accord Spaziano, 36 F.3d at 1041
("The Supreme Court has made clear that even where the State does not argue
the Teague bar at all, a federal court has discretion to decide whether the
bar should be applied.)14


     In Caspari v. Bohlen, 510 U.S. 383, 389 (1994), the Supreme Court
stated        that   even   though   "the    nonretroactivity    principle    is   not
jurisdictional in the sense that federal courts . . . must raise . . . the
issue sua sponte . . . a federal court may, but need not, decline to apply
Teague if the State does not argue it."                  (Emphasis added; internal
quotation omitted).         See also Schiro v. Farley, 510 U.S. 222, 229 (1994)
(Court "undoubtedly" had discretion to reach Teague issue even though state
had failed to argue it in its brief in opposition to certiorari petition).
In Caspari, the court explained:




         14
       In an analogous context, this court has made clear that a
federal court need not accept the state's express waiver of the
exhaustion defense. Victor v. Hopkins, 90 F.3d 276, 278 (8th Cir.
1996) (citing Duvall v. Purkett, 15 F.3d 745, 747 n.4 (8th Cir.),
cert. denied, 114 S. Ct. 2753 (1994)). In Duvall, we explained
that "'[t]he purpose of exhaustion is not to create a procedural
hurdle on the path to federal habeas court, but to channel claims
into an appropriate forum, where meritorious claims may be
vindicated and unfounded litigation obviated before resort to a
federal court.'" 15 F.3d at 746 n.4 (quoting Keeney v. Tamayo, 504
U.S. at 10). We stated: "We should no more tolerate disregard for
this principle by the State than by the habeas petitioner." Id.

                                            -25-
        The nonretroactivity principle prevents a federal court from
        granting habeas corpus relief to a state prisoner based on a
        rule announced after his conviction and sentence became final.
        A threshold question in every habeas case, therefore, is
        whether the court is obligated to apply the Teague rule to the
        defendant's claim.


510 U.S. at 389 (internal citation omitted).


        In this appeal, Bannister concedes that Jackson was decided after his
conviction became final in 1985 when certiorari was denied on his direct
appeal, but argues that Jackson did not create a new rule for Teague
purposes.      We disagree.        "[A] case announces a new rule if the result was
not dictated by precedent existing at the time the defendant's conviction
became final."       Teague, 489 U.S. at 301.         Bannister argues that Jackson was
not a new rule because it was dictated by Massiah v. United States, 377
U.S. 201 (1964), and Brewer v. Williams, 430 U.S. 387 (1977).                    Again, we
disagree.       In Massiah, 377 U.S. at 206, the Supreme Court held that a
defendant's fifth and sixth amendment rights to counsel were violated when
government agents had surreptitiously elicited incriminating statements
from the defendant after he had been indicted.             In Brewer, 430 U.S. at 400,
the Court also held that a defendant had not waived his sixth amendment
right    to    counsel      when   government    agents   had     elicited   incriminating
statements from him.         However, in Brewer, the Court emphasized that it was
not holding that the defendant "could not, without notice to counsel, have
waived"       his   sixth   amendment    right   to    counsel,    only   that   under    the
circumstances of the case, "he did not."               Id. at 405-06.


        Indeed, the Supreme Court has "explicitly described its holding in
Jackson as 'establish[ing] . . . a new Sixth Amendment rule.'"                   Jones, 76
F.3d at 853 (quoting McNeil v. Wisconsin, 501 U.S. 171, 179 (1991)).                     "Not
surprisingly, at least five other circuits have determined that the holding
in Jackson represents a 'new rule' for purposes of Teague analysis."                     Id.
(citing Flamer v.




                                            -26-
Delaware, 68 F.3d 710, 720-21 (3d Cir. 1995), cert. denied, 116 S. Ct. 807
(1996); Self v. Collins, 973 F.2d 1198, 1207 (5th Cir. 1992), cert. denied,
507 U.S. 996 (1993); Greenwalt v. Rickets, 943 F.2d 1020, 1026 (9th Cir.
1991), cert. denied, 506 U.S. 888 (1992); 952 F.2d 1567, Collins v. Zant,
892 F.2d 1502, 1510-12 (11th Cir.), cert. denied, 498 U.S. 881 (1990)).


       Bannister argues that even if Jackson is a new rule it falls within
the Teague exception for "watershed rules of criminal procedure implicating
the fundamental fairness and accuracy of the criminal proceeding."             Gray
v. Netherland, 116 S. Ct. 2074, 2084 (1996).        However, "[t]he Supreme Court
has interpreted this category very narrowly and we do not believe that the
[Jackson] rule . . . falls within the 'small core of rules requiring . . .
procedures that are implicit in the concept of ordered liberty[,]'" Jones,
76 F.3d at 853-54 (quoting Graham v. Collins, 506 U.S. 461, 478 (1993)),
and "without which the likelihood of an accurate conviction is seriously
diminished."      Teague, 489 U.S. at 313.     Rather, "Jackson involves [a]
prophylactic rule providing [a] second layer of protection."         Collins, 892
F.2d at 1511 (internal quotation omitted); accord Flamer, 68 F.3d at 723-24
(Jackson not a "watershed" rule but a "prophylactic rule that provides one
means of protecting a constitutional right"); cf. Greenwalt, 943 F.2d at
1025   ("watershed"    exception   inapplicable     because   new    rule   was    "a
prophylactic rule which results in exclusion of probative trial evidence").


       Therefore, we hold that, evidentiary defaults aside, Bannister would
not be entitled to relief under Jackson.


D.   Ineffective Assistance of Counsel
       In   the   present   petition,   Bannister    argues   that   counsel      was
ineffective during the guilt phase for failing to investigate and present
evidence that Bannister was not a hired killer.          The district court held
that this claim was successive because




                                        -27-
Bannister had raised the claim in his previous petition, and the court
found that it was procedurally defaulted and Bannister had not alleged
sufficient cause and prejudice or actual innocence to excuse the default.
904 F. Supp. at 1005.       On appeal, Bannister argues that he has alleged
sufficient cause to permit review of the successive claim because the
district court was "simply incorrect" in holding that he did not establish
cause to excuse the default.    This is an insufficient allegation of cause.
"In general to show cause, petitioner must show that 'some objective factor
external to the defense impeded counsel's efforts' in raising the claims
earlier." Nachtigall v. Class, 48 F.3d 1076, 1079 (8th Cir. 1995) (quoting
Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992)).      "To show cause
in the context of successive or abusive claims, petitioner must show that
the claims are 'based on facts or legal theories of which he had no
knowledge when prosecuting his prior habeas petition.'"      Id. (quoting Cook
v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989)).


      Moreover, as the state points out, in his previous appeal Bannister
did not challenge the district court's holding that his guilt-phase
ineffective assistance claim was procedurally defaulted.             Therefore,
"[b]ecause [Bannister] did not appeal the federal district court's ruling
of   state   procedural   default,"   he   cannot   "collaterally   attack   that
unappealed [holding] in this proceeding by arguing that he had cause to
excuse the state procedural default."       Hawkins v. Evans, 64 F.3d 543, 546
n.2 (10th Cir. 1995).


      Nonetheless we have reviewed Bannister's arguments and conclude that
the district court did not err in holding that his ineffective assistance
claim was defaulted.      Contrary to his assertions, the summary denials of
a second Rule 27.26 motion and a belatedly filed Rule 91 motion do not
"open[] up the merits" of the claim.       Charron v. Gammon, 69 F.3d 851, 857
(8th Cir. 1995), cert. denied, 116 S. Ct. 2533 (1996).              Nor did the
district court




                                      -28-
err in holding that Bannister had failed to demonstrate cause for the
default.     Bannister argues that the refusal of the first Rule 27.26 court
to   grant   him   a   continuance   was    state   interference,   which   "actually
prevented post-conviction counsel from raising the claims and presenting
the evidence in state court."         Zeitvogel v. Delo, 84 F.3d 276, 279 (8th
Cir.), cert. denied, 1996 WL 514188 (U.S. Oct. 21, 1996) (No. 96-5765).
He is mistaken.        We first note that Bannister's counsel requested the
continuance to obtain psychological information and information from an
investigating officer.      In addition, although the court denied the request
for a continuance, it allowed counsel additional time to submit "something
that in good faith [he] fe[lt] [wa]s significant."            Tr. of 27.26 Hearing
at 51.    However, counsel did not submit any additional information or ask
for additional time.      We also reject Bannister's assertion that Missouri's
"insufficient funding of [post-conviction] counsel prevented counsel from
investigating and raising the claim."         Kennedy v. Herring, 54 F.3d 678, 684
(11th Cir. 1995).         "[F]inding cause in a lack of resources would be
inconsistent with the settled principle that a state need not provide
counsel in collateral proceedings, even for petitioners under sentence of
death."    Id.   Also not establishing cause is post-conviction counsel's case
load, which allegedly was heavy and prevented him from devoting more time
to this case.      See LaRette v. Delo, 44 F.3d 681, 687 (8th Cir.) (counsel's
alleged lack of time did not establish cause), cert. denied, 116 S. Ct. 246
(1995).


     In any event, Bannister cannot establish cause for any procedural bar
because the factual basis of his claim that he was not a hired killer was
reasonably available to counsel since Bannister knew whether or not he was
a hired killer.        See Forrest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995)
(delay in providing transcript of plea hearing was not cause for counsel's
failure to raise claim of judicial coercion of guilty plea since petitioner
"did not need a transcript to know whether . . . he was coerced




                                           -29-
into pleading guilty") (internal quotation omitted).15                   As the Supreme
Court explained in McClesky v. Zant, 499 U.S. 467, 498 (1991), "[i]f what
petitioner knows . . . supports a claim for relief . . . what he does not
know is irrelevant.        Omission of the claim will not be excused merely
because evidence discovered later might also have strengthened the claim."


IV.    Sentencing Phase Claims
       The jury recommended a sentence of death, finding two statutory
aggravating circumstances--that the murder was committed for the purpose
of receiving money, Mo. Rev. Stat. § 565.012.2(4) (1978) and that Bannister
had a substantial history of serious assaultive convictions, Id. at
§ 565.012(1).         At the sentencing phase, the state introduced records
showing that Bannister had convictions for armed robbery, burglary, rape
and deviate sexual assault.       In his direct appeal, the state supreme court
noted that Bannister had conceded that a jury could reasonably find that
several   of    his   prior    convictions    were   "for    offenses    of    a    'serious
assaultive' nature" and found that Bannister's death sentence "was not
excessive or disproportionate to the penalty imposed in similar cases
considering the crime, the defendant, and the strength of the evidence."
680 S.W.2d at 149.


A.    Ineffective Assistance of Counsel
       In the current petition, Bannister alleges ineffective assistance of
counsel at the penalty phase due to counsel's failure to investigate and
present   evidence      that   would   have   cast   doubt    on   the   two       statutory
aggravating circumstances.         He also argues that his fourteenth amendment
due process rights were violated because




           15
          Because the district court correctly found that the
ineffective assistance claim was defaulted and Bannister had not
established cause to excuse the default, the "court properly
refused to conduct an evidentiary hearing [or allow discovery] on
the issue of cause" or on the merits. Zeitvogel, 84 F.3d at 281-
82.

                                         -30-
the Missouri Supreme Court failed to conduct the type of proportionality
review mandated by state statute.     The district court found that the claims
were abusive and that Bannister had failed to demonstrate cause and
prejudice or actual innocence to permit review.       904 F. Supp. at 1005-06.


        On appeal, Bannister argues that he supported the claims with a
showing that he was actually innocent of the death penalty.           Although
Schlup establishes the standard for demonstrating actual innocence in the
guilt phase, "[t]he Sawyer v. Whitley standard remains the benchmark for
actual innocence claims involving eligibility for the death penalty."     Nave
v. Delo, 62 F.3d 1024, 1032 (8th Cir. 1995), cert denied, 116 S. Ct. 1837
(1996). "Under the Sawyer standard, [Bannister] must show that by clear and
convincing evidence that but for the constitutional error, no reasonable
juror would have found him eligible for the death penalty under Missouri
law."        Id.   Bannister can "succeed on his claim only 'by showing no
aggravating circumstance existed, or by showing some other condition of
eligibility was not met.      Additional mitigating evidence does not satisfy
the standard. '"      Id. at 1033 (quoting Shaw v. Delo, 971 F.2d 181, 186 (8th
Cir. 1992), cert. denied, 507 U.S. 927 (1993)).16


        16
       Bannister also argues that he is ineligible for the death
penalty because had counsel investigated and presented mitigating
evidence the jury would have found that the mitigating
circumstances outweighed the aggravating circumstances.         His
argument is predicated on an incorrect assumption. Missouri is not
a weighing state. Indeed, Bannister concedes that this court has
so held, see, e.g., Sidebottom v. Delo, 46 F.3d at 756; LaRette v.
Delo, 44 F.3d at 687 n.4, but argues that these cases are wrongly
decided. However, as a panel of this court, we are not free to
overrule these cases.    Therefore, we do not address in detail
Bannister's ineffective assistance allegations regarding mitigating
factors because they "'do not affect his eligibility for the death
penalty.'" Nave v. Delo, 62 F.3d at 1033 (quoting Shaw, 971 F.2d
at 187). In other words, "[e]ven if the 'new' evidence had been
admitted and the jury had been instructed on statutory mitigating
circumstances, a reasonable juror could still find the aggravating
factors making [Bannister] eligible for the death penalty." Shaw
v. Delo, 971 F.2d at 187. We nonetheless note that in Bannister I,
4 F.3d at 1441-43, we held that his claim that counsel was
ineffective for failing to investigate and present alleged
mitigating evidence from family, acquaintances, and a teacher was
procedurally defaulted.

                                       -31-
     Bannister asserts that the Trombley affidavit demonstrates that he
is actually innocent of the underlying crime and also demonstrates that he
is innocent of the aggravating circumstance that he killed Reustman for the
purpose of receiving money.     For the reasons discussed above, Trombley's
affidavit does not meet the more lenient Schlup standard; it certainly does
not meet the stricter Sawyer standard.         Trombley's affidavit, which is
based primarily on hearsay, speculation, and Bannister's belated claims,
certainly is not "clear and convincing evidence" which would cause a
reasonable juror to have rejected the state's evidence that Bannister had
murdered Reustman for the purpose of receiving money.
     Although we need not address Bannister's argument that he was
innocent of the second aggravating factor of having a substantial history
of serious assaultive convictions, see Sloan v. Delo, 54 F.3d 1371, 1385
(8th Cir. 1995) (under Missouri law finding of at least one aggravating
circumstance makes defendant eligible for death penalty), cert. denied, 116
S. Ct. 728 (1996), we address it but find it is without merit.          Bannister
asserts   had   counsel   investigated   and   presented   the   jury   with   the
circumstances surrounding his convictions for rape, armed robberies and
deviate sexual assault, the jury would not have found his conduct to be of
a serious, assaultive nature.    As "new" evidence in support of his claim,
he relies on Trombley's affidavit and affidavits of family and friends.
For example, in his affidavit Trombley states that his investigation
revealed that Bannister should only have been charged with contributing to
the delinquency of a minor and not rape because Bannister and the sixteen
year old victim had been having consensual intercourse for months, and the
rape charge was




                                     -32-
brought by the victim's aunt after Bannister spurned her sexual advances.
Affidavit at Paragraph 32.          As to the deviate sexual assault and one of the
armed robbery convictions, Trombley believed that counsel should have
explained that all Bannister and a codefendant did was "engage[] two
prostitutes     with   whom    [they]      had   sex"    and    "[a]fter   completing     the
transaction took back the money that had been paid to the prostitutes, and
had further sexual contact with one of the prostitutes."                    Id. at 33.    On
appeal Bannister relies heavily on the affidavit of Steven Maurer, a law
enforcement officer who had been a friend of Bannister for 22 years.
Maurer states that although he could not be "totally objective with regard
to [his] impressions" of Bannister, he believed that "most of [Bannister's]
criminal history and record was apparently misrepresented and exaggerated
at trial."      In particular, Maurer noted his belief that the arresting
officer had deceived Bannister into pleading guilty to rape instead of the
lesser charge of contributing to the delinquency of a minor and that the
medical     evidence   did    not   support      the    rape    victim's   allegation    that
Bannister had forcibly raped and assaulted her.
       We agree with the district court that Bannister's "evidence" does not
come close to meeting the Sawyer standard.                 First, as the district court
noted, none of the alleged circumstances set forth in the affidavits can
be considered new evidence because "certainly Bannister knew what he had
done which led to the convictions long before November 29, 1994, when he
filed the [instant] petition."          Order of Dec. 5, 1994 at 7.          See Sloan, 54
F.3d   at   1381 (petitioner had facts necessary to present failure to
investigate claim since "he would have known that other individuals were
aware of the mitigating circumstances").                       In any event, we have no
hesitation     in   concluding       had   the    jurors       been   presented   with   the
"circumstances" as set forth in the affidavits, no reasonable juror would
have found that the rape, armed robberies and deviate sexual assaults were
not serious, assaultive convictions.




                                            -33-
B.   Proportionality Claim
      Last, we address Bannister's assertion that the Missouri Supreme
Court failed to maintain the data base of death penalty cases as mandated
by state statute, Mo. Rev. Stat. § 565.014 (1978) (repealed and replaced
by Mo. Rev. Stat. § 565.014 (1986)), and thereby deprived him of his due
process rights under the fourteenth amendment.17          In support of his claim
Bannister submitted the affidavits of two assistant state public defenders,
who stated that in 1989 and 1990 they had learned that the Missouri Supreme
Court's data base of death penalty cases was incomplete.            Bannister also
submitted a study commissioned by the public defender's office, which
indicated that as of July 1, 1994, 189 cases of inmates who had been
sentenced to life in prison without the possibility of parole were not in
the data base in violation of the statute.            Bannister also argued that
several of the omitted cases in which               defendants had received life
sentences were more similar to his case than the cases the Missouri Supreme
Court had relied upon in conducting its review.          The district court found
that the claim was abusive and that Bannister had not presented cause and
prejudice or actual innocence to permit review.          Although we are inclined
to agree with the district court, we do not address its abuse analysis.
Even if the claim were not abusive, Bannister would not be entitled to
relief.


      This     court   has   rejected   virtually   identical   challenges   to   the
Missouri Supreme Court's proportionality review.          In Williams v. Delo, 82
F.3d 781, 784 (8th Cir. 1996), the petitioner argued that his due process
rights were violated "because about two hundred Missouri capital murder
cases were not in the files the court used to review the proportionality
of [his] sentence."      We disagreed, holding that "[n]ot only is this claim
abusive, but [petitioner]




          17
        Bannister recognizes that the eighth amendment does not
require proportionality review. See Pulley v. Harris, 465 U.S. 37,
50-51 (1984).

                                         -34-
cannot show a due process violation because the Missouri Supreme Court
conducted a reasoned review of his sentence."       Id. at 784-85.   We explained
that a federal court "cannot look behind the Missouri Supreme Court's
conclusion or consider whether that court misinterpreted the Missouri
statute requiring proportionality review."        Id. at 785 (citing LaRette v.
Delo, 44 F.3d at 688).


           In Williams, the court also added that petitioner had not
"explain[ed] why the added cases [wer]e pertinent or how they would have
affected the proportionality review."       Id.    However, in Six v. Delo, 94
F.3d 469, 478 (8th Cir. 1996), in addition to arguing that the Missouri
Supreme Court's capital data base was missing "189 cases in which life
sentences were imposed[,]" the petitioner "cite[d] some of the omitted
published cases and argue[d] they [wer]e more similar to [his] case than
the [] capital cases cited by the Missouri Supreme Court in upholding [the]
death sentence."   This court nonetheless rejected his due process argument,
holding that petitioner "was not arbitrarily denied his state-provided
right to proportionality review."   Id.    Citing Williams, we reiterated that
"[t]he Constitution does not require us to look behind" the Missouri
Supreme Court's conclusion that the death sentence was not disproportionate
"to consider the manner in which the court conducted its review or whether
the court misinterpreted the Missouri statute."       Id.18   Thus, Bannister is


     18
      We note that the study upon which Bannister relies in support
of his assertion that the capital data base is incomplete indicates
that it was submitted to the Missouri Supreme Court in State v.
Parker, 886 S.W.2d 908 (Mo. 1994) (en banc), cert. denied, 115 S.
Ct. 1827 (1995).    In Parker, the state court considered three
analytical studies on its proportionality review, but found that
the studies did not appear to aid the court "in conducting a
proportionality review."    Id. at 933.     The court stated that
"[p]roportionality review 'merely provides a backstop against the
freakish and wanton application of the death penalty.'"         Id.
(quoting State v. Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (en banc),
cert. denied, 114 S. Ct. 1664 (1994)).      In addition, the court
responded to the argument that Bannister and Six raised in their
federal habeas cases--that because some of the omitted cases in
which life sentences were imposed were allegedly similar to their
cases, their sentences were disproportionate. The Missouri Supreme
Court pointed out that "[t]he issue in proportionality review is
'not whether any similar case can be found in which the jury

                                    -35-
not entitled to




imposed a life sentence, but rather whether the death sentence is
excessive or disproportionate in light of "similar cases" as a
whole[,]'" considering the crime, the evidence, and the defendant.
Id. at 934 (quoting State v. Shurn, 866 S.W.2d 447, 468 (Mo. 1993)
(en banc), cert. denied, 115 S. Ct. 118 (1994)). See also State v.
Chambers, 891 S.W.2d 93, 113-14 (Mo. 1995) (en banc) (revisiting
Parker data but rejecting proportionality challenge).

                              -36-
relief on his proportionality challenge.


V.   Conclusion
      Accordingly, we affirm the judgment of the district court dismissing
Bannister's successive petition for a writ of habeas corpus.19


BRIGHT, Circuit Judge, dissenting.


      I respectfully dissent.


      Justice Blackmun noted that "the death penalty remains fraught with
arbitrariness" and "cannot be administered consistently and rationally"
even when states follow their procedural safeguards.   Callins v. Collins,
510 U.S. 1141, 1144, 1147 (1994) (Blackmun, J., dissenting) (citations
omitted).   When a state fails to follow its procedural safeguards, the
administration of the death penalty




      19
      We have considered the arguments raised in the briefs of the
amici curiae.    The briefs reiterate Trombley's assertions that
Bannister is actually innocent of capital murder and argue that
execution of an innocent person would violate international law and
human rights. However, for reasons previously discussed, Bannister
has not established his actual innocence under the precedents of
this court and the United States Supreme Court, which we are bound
to follow.    In addition, the Lyon Bar Association argues that
Bannister should not be executed because he has the "potential to
reinsert himself in society," but acknowledges this argument "is
better suited to an appeal for executive clemency from the Governor
of Missouri."

                                  -37-
becomes irrational.    Alan Bannister's death sentence exemplifies such an
arbitrary   and   irrational   outcome   because   the    state   supreme   court's
proportionality review neglected to include life imprisonment cases as
mandated by state law.


     The Missouri Supreme Court relies on a data base to conduct a
proportionality review of all capital punishment sentences.               Bannister
asserts that the Missouri Supreme Court failed to properly maintain this
data base of capital cases as mandated by Missouri law.              Mo. Rev. Stat.
§ 565.014 (1978) (repealed and replaced by Mo. Rev. Stat. § 565.014
(1986)).    Specifically, although the state supreme court considered four
capital punishment cases during Bannister's proportionality review, he
argues that 189 life sentence cases omitted from the State's data base
reveal the disproportionality of his death sentence, and their omission
deprived him of his fourteenth amendment protections.         The district court
regarded the claim as abusive, and found that Bannister failed to show
cause and prejudice for not raising the claim in his earlier habeas
petition.   Appellant's App. at A8-A11 (Dist. Ct. Order, Dec. 5, 1994).             I
disagree.


I. Bannister Demonstrated Cause and Prejudice for Failing to Present Claim
Regarding Proportionality Review in First Habeas Petition.


     The    district   court   found   that   Bannister    failed    to   raise   the
proportionality claim in his earlier habeas petition thereby constituting
an abuse of the writ.     Id. at A9.      Thus, Bannister must show cause and
prejudice for his failure to raise the claim earlier.               See McClesky v.
Zant, 111 S. Ct. 1454, 1470 (1991).            The district court ruled that
Bannister failed to show cause and prejudice.       Appellant's App. at A9-A10
(Dist. Ct. Order, Dec. 5, 1994).       According to the district court, "Since
1984 Bannister has had the argument that he now advances that the . . .
cases cited by the [Missouri] Supreme Court in its proportionality review
are not




                                       -38-
comparable to Bannister's situation."      Id.


     I disagree.      According to Murray v. Carrier, 477 U.S. 478, 488
(1986)(quoting Brown v. Allen, 344 U.S. 443, 486 (1953)), an external
"objective impediment . . . [such as] 'interference by officials' [that]
made compliance impracticable" constitutes cause.      The Missouri Supreme
Court's failure to maintain its data base without disclosing the omission
of life sentence cases to Bannister and others exemplifies interference by
the State.


     Moreover, the interference not only made it impractical for Bannister
to bring the claim, the interference made it impossible for Bannister to
bring the claim.   Bannister could not bring his claim until he learned of
the omission.   Presumably we do not require a defendant to maintain his own
data base.      Furthermore, although Bannister could have contested the
disproportionality of his sentence compared to the cases used by the state
supreme court, he could not have demonstrated the disproportionality until
he learned of the omitted cases.     As the Fourth Circuit acknowledged in
Peterson v. Murray, 904 F.2d 882, 887 (4th Cir. 1990), although the state
court discussed only the most relevant cases in its proportionality review,
its decision survived attack in federal habeas because the state court
reviewed all capital murder cases.    Thus, a state court need not discuss
every case it reviews, but it must review all relevant cases.



     Accordingly, that the Missouri Supreme Court cited and discussed
certain cases does not preclude Bannister from challenging whether the
state court reviewed all relevant cases.     The State's failure to disclose
the omission of life sentence cases from its data bank prevented Bannister
from bringing his claim earlier.     As discussed below, the state court's
failure to consider the omitted cases clearly prejudiced Bannister in his
proportionality review.   As a result, Bannister demonstrated both




                                    -39-
cause and prejudice allowing this court to reach the merits of his claim.


II.   Prior Cases Do Not Dictate the Outcome of Bannister's Proportionality
Review Claim.


      The   majority   relies   on   this   court's   earlier   cases   to    reject
Bannister's claim on its merits.            Slip op. at 32-34.      The majority
interprets these cases as precluding this court from reviewing the State's
proportionality review procedure for fourteenth amendment violations.            Id.
With all due respect, the majority misconstrues this court's earlier cases.


      In Foster v. Delo, 39 F.3d 873, 882-83 (8th Cir. 1994)(citing Pulley
v. Harris, 465 U.S. 37, 50-51 (1984), cert. denied, 115 S. Ct. 1719
(1995)), we recognized that the federal Constitution does not require a
state to conduct a proportionality review of a death sentence.               We also
acknowledged, however, that when state law requires such review "the
Fourteenth Amendment of course entitles [the defendant] to procedures to
ensure that the right is not arbitrarily denied."        Foster, 39 F.3d at 883
(citing Wolff v. McDonald, 418 U.S. 539, 557 (1974)).


      This court's prior cases held that the particular petitioners each
failed to demonstrate an arbitrary denial of their state-created right to
a proportionality review.       See, e.g., Six v. Delo, 94 F.3d 469, 478 (8th
Cir. 1996); Williams v. Delo, 82 F.3d 781, 784-85 (8th Cir. 1996); LaRette
v. Delo, 44 F.3d 681, 688 (8th Cir.), cert. denied, 116 S. Ct. 246 (1995);
Foster, 39 F.3d at 882-83.       Each case concerned particularly brutal and
heinous crimes such that the omission of life sentence cases did not render
the proportionality reviews arbitrary.         See Six, 94 F.3d at 472-73, 478
(describing crime and ruling that defendant was not arbitrarily denied
proportionality review before discussing limits of federal court review of
state's proceedings); Williams, 82 F.3d at 785




                                      -40-
(noting in dicta that prisoner failed to show how omitted cases would
affect outcome of proportionality review); cf. Williams I, 912 F.2d 924,
927 (8th Cir. 1990)(describing crime); LaRette, 44 F.3d at 684; Foster, 39
F.3d at 876-77.     Although this court denied relief in each case, these
rulings have never placed the State's proportionality review completely
outside fourteenth amendment protection.


     The    majority   seems   to   overlook   the   arbitrariness   step   in   its
analysis, but focuses instead on often-quoted language that "[w]e cannot
look behind the Missouri Supreme Court's conclusion or consider whether
that court misinterpreted the Missouri statute requiring proportionality
reviews."     Williams, 82 F.3d at 785 (citing LaRette, 44 F.3d at 688),
quoted in slip op. at 32; see also Six, 94 F.3d at 478.       We must place this
language in proper context.     In Walton v. Arizona, 497 U.S. 639 (1990), the
Supreme Court noted that "the Arizona Supreme Court plainly undertook its
proportionality review in good faith and found that Walton's sentence was
proportional to the sentence imposed in cases similar to his.                    The
Constitution does not require us to look behind that conclusion."           Id. at
656 (emphasis added).     LaRette and subsequent cases quote Walton without
noting that the Supreme Court determined that the state court acted in good
faith before discussing the limitations of constitutional scrutiny.              See
LaRette, 44 F.3d at 688; see also Six, 94 F.3d at 478; Williams, 82 F.3d
at 784.     A careful reading of these cases reveals, however, that before
reiterating the mantra incompletely carved from Walton, this court found
that each defendant "was not arbitrarily denied his state-provided right
to proportionality review."     Six, 94 F.3d at 478 (emphasis added); see also
Williams, 82 F.3d at 785.           Significantly, Six cited Eighth Circuit
precedent recognizing that a state's proportionality review remains subject
to the fourteenth amendment's protections.       See Six, 94 F.3d at 478 (citing
Foster, 39 F.3d at 882).




                                       -41-
       Thus,   we   have    never    abandoned     the   notion   that     the   fourteenth
amendment      requires     the     Missouri      Supreme    Court    to     conduct     its
proportionality review in good faith.                Before mechanically refusing to
"look behind" the Missouri Supreme Court's conclusion, we must first ensure
that Bannister was not arbitrarily denied his state-provided right to
proportionality review.


III.    Cases Omitted from Missouri Supreme Court's Data Base
         Demonstrate Disproportionality of Death Penalty.


       According     to     the     Missouri      Supreme    Court,      "The    issue    in
proportionality review is 'not whether any similar case can be found in
which the jury imposed a life sentence, but rather, whether the death
sentence is excessive or disproportionate in light of similar cases as a
whole.'"    State v. Parker, 886 S.W.2d 908, 934 (Mo. 1994)(en banc)(quoting
State v. Shurn, 866 S.W.2d 447, 468 (Mo. 1993)(emphasis added), cert.
denied, 115 S. Ct. 1827 (1995)).               State law requires a comparison of
Bannister's penalty to those "imposed in similar cases considering the
crime, the defendant, and the strength of the evidence."                          State v.
Bannister, 680 S.W.2d 141, 149 (Mo. 1984)(en banc); see Mo. Rev. Stat. §
565.035.3(3).


       The omission of life sentence cases from the Missouri Supreme Court's
data bank prevented the court from considering similar cases as a whole.
The    state   supreme     court    used   four    capital   punishment     cases   in   its
proportionality review of Bannister's sentence, all of which offer only
superficial similarities to Bannister's case.20               See State v. Bannister,


       20
      In each of the four cases used by the Missouri Supreme Court,
State v. Bannister, 680 S.W.2d 141, 149 (Mo. 1984), the defendant
committed other crimes during the course of the murder. See State
v. Gilmore, 661 S.W.2d 519, 520-22 (Mo. 1983), (burglary, vandalism
and robbery); State v. McDonald, 661 S.W.2d 497, 500 (Mo.
1983)(armed robbery); State v. Stokes, 638 S.W.2d 715, 717 (Mo.
1982)(armed robbery, auto theft and possibly rape); State v. Blair,
638 S.W.2d 739, 743-44, 759 (Mo. 1982)(theft, burglary, armed
robbery, and kidnapping).

       In addition, the defendants in the other cases committed

                                            -42-
680 S.W.2d at 149




several deadly acts to ensure the death of their victims while
increasing their suffering. See Gilmore, 661 S.W.2d at 522 (shot
victim twice to ensure death); McDonald, 661 S.W.2d at 500-01 (shot
wounded victim again to ensure death); Stokes, 638 S.W.2d at 724
(beat victim, repeatedly stabbed her, used apron to strangle, and
strangled her manually causing death); Blair, 638 S.W.2d at 744
(bludgeoned victim with brick and shot her three times).

     Finally, Bannister's crime differed from these cases based on
the victims' characteristics. See Gilmore, 661 S.W.2d at 521-22,
525 (killing 83-year-old woman to prevent her from making
identification); McDonald, 661 S.W.2d at 507 (killing police
officer); Blair, 638 S.W.2d at 759-60 (noting that crime
represented "not just a contract killing, but . . . kill[ing] the
victim of and sole witness to another crime (rape) to prevent her
from testifying.    Such a murder strikes at the heart of the
administration of justice. . . . It is difficult to conceive of a
crime more inimical to our society . . . .").

     Furthermore, the defendants in the cases used in the
proportionality review demonstrated more callousness and brutality
during the commission of their crimes than Bannister. See Gilmore,
661 S.W.2d at 522 (noting victim suffered and pleaded for mercy,
defendant's decision to prey on elderly, defendant's constant
mockery of victim's last words, and defendant's bragging about
murder to relatives, "seemingly deriving an almost sensual joy from
telling of the crime"); Stokes, 638 S.W.2d at 724 (describing
injuries consistent with prolonged struggle by victim); McDonald,
661 S.W.2d at 500 (noting defendant's attack in front of victim's
daughter); Blair, 638 S.W.2d at 758-59 (noting defendant took part
in terror campaign against victim, ignored victim's pleas for mercy
and demonstrated no remorse).      In addition, two of the other
defendants committed previous homicides. See Gilmore, 661 S.W.2d
at 523 (noting defendant's confession to another dual murder);
Stokes, 638 S.W.2d at 724 (noting prior homicide convictions).

     Finally, the evidence against the other defendants carried
more constitutional reliability. The evidence in the four capital
punishment cases included witnesses, recorded confessions following
signed Miranda warnings, and corroborating physical evidence. See
Gilmore, 661 S.W.2d at 522; McDonald, 661 S.W.2d at 500; Stokes,
638 S.W.2d at 718-19; Blair, 638 S.W.2d at 744-46.

                               -43-
(citing State v. Gilmore, 661 S.W.2d 519 (Mo. 1983); State v. McDonald, 661
S.W.2d 497 (Mo. 1983); State v. Stokes, 638 S.W.2d 715 (Mo. 1982); State
v. Blair, 638 S.W.2d 739 (Mo. 1982)).     Most




                                   -44-
significantly, only one of the four cases concerned a contract killing.
See Blair, 638 S.W.2d at 743-46.


      The Missouri Supreme Court's data base omitted at least four life
imprisonment cases strikingly similar to Bannister's.       See State v. White,
621 S.W.2d 287 (Mo. 1981); State v. Chandler, 605 S.W.2d 100 (Mo. 1980);
State v. Garrett, 595 S.W.2d 422 (Mo. 1980); State v. Flowers, 592 S.W.2d
167 (Mo. 1979).    First, these cases are more similar to Bannister's than
the four used by the state supreme court because these omitted cases
concern contract killings.     See White, 621 S.W.2d at 289; Chandler, 605
S.W.2d at 105; Garrett, 595 S.W.2d at 426; Flowers, 592 S.W.2d at 168.       The
state supreme court's failure to consider these similar cases negates any
claim that it considered similar cases "as a whole."         Second, comparison
of   Bannister's   case   to   the   omitted   cases    reveals   the   apparent
                                                       21
disproportionality of Bannister's death sentence.
      Furthermore, when considering all eight cases as a whole, the




      21
      In State v. White, 621 S.W.2d 287 (Mo. 1981), a man hired the
defendant to kill the man's wife. After attempting to kill the
woman by shooting her in the neck and beating her, the defendant
"entered [her] house, went to [her] bedroom, bound and sexually
ravished her and then killed her by cutting her throat from ear to
ear and the back of her neck, nearly severing her head from her
body."    Id. at 289-90.     Evidence included the murder weapon
recovered from the defendant, physical evidence from the crime
scene, co-conspirators' testimony, and the victim's description of
the defendant given to the police after the first attempt on her
life. Id. at 291, 293-95.

     In State v. Chandler, 605 S.W.2d 100 (Mo. 1980), the defendant
stalked the victim for several days eventually confronting the
victim in his office and robbing him. The defendant's videotaped
confession and testimony before the grand jury detailed the
victim's pleas for mercy and the defendant's callousness and
brutality. See id. at 101, 106-07 & n.1.

     In State v. Garrett, 595 S.W.2d 422, 425-26 (Mo. 1980), and
State v. Flowers, 592 S.W.2d 167, 168 (Mo. 1979), the defendants
attacked and struggled with the victim in his home, dragged him to
the road, handcuffed him and shot him in the head three times.
Evidence included recorded and videotaped confessions.

                                     -45-
disproportionality of Bannister's death sentence becomes more troubling.
Thus, if the data base had included these life imprisonment cases, the
state supreme court should have recognized the disproportionality of
Bannister's sentence.    Omission of these cases from the data base rendered
the State's proportionality review an arbitrary exercise and a denial of
Bannister's rights.


IV.   Conclusion


      The eyes of the world are fixed on this case.     The briefs of amici
curiae filed by The Lyon (France) Bar Association Commission for the
Defense of Human Rights, Maastricht Centre for Human Rights and the
International Centre for Criminal Law and Human Rights, as well as Steven
Trombley's documentary file about Bannister attest to the international and
national attention to this case.    Consequently, this case will serve as a
window through which others will judge the merits of the judicial system
in the State of Missouri and federal civil review by petition for writ of
habeas corpus.


      Several of Bannister's allegations go to the heart of our perceptions
of fundamental fairness in the criminal justice system:     the right to be
free from governmental interrogation after receiving appointed counsel,
Michigan v. Jackson, 475 U.S. 625 (1986); the right to a competent attorney
during trial, Strickland v. Washington, 466 U.S. 214 (1988); Powell v.
Alabama, 287 U.S. 45 (1932); and the right to a competent attorney during
sentencing, Mempa v. Rhay, 389 U.S. 128 (1967); Townsend v. Burke, 334 U.S.
736 (1948).   As discussed in the majority's opinion, procedural barriers
prevent this court from addressing several of Bannister's claims.     These
roadblocks, I emphasize, are procedural and in no way reflect on the merits
of Bannister's claims.     If these issues remain unaddressed, Missouri may
execute a man without offering him a fair trial or competent legal
representation.    Because this court cannot address those issues on their
merits, we must rely on other




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authorities--either the United States Supreme Court or, if not, the
Governor   of     Missouri--to     review    the    record   and   address     Bannister's
contentions.


     Notwithstanding bars to federal review by this court of certain
claims by Bannister mentioned in the preceding paragraph, I believe this
federal    court    should    declare    that   any    execution   must    await   a   fair
proportionality of sentence review by Missouri courts.                    Accordingly, I
would remand this case to the district court to grant appropriate relief,
unless    and    until    within   a   reasonable     time   Bannister    is   afforded   a
proportionality review of his sentence by the Missouri Supreme Court using
a full data base.


     A true copy.


                Attest:


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




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