                                    ___________

                                    No. 95-3921
                                    ___________

Harold E. Meadows,                       *
                                         *
              Appellant,                 *    Appeal from the United States
                                         *    District Court for the
     v.                                  *    Eastern District of Missouri.
                                         *
Paul K. Delo,                            *
                                         *
              Appellee.                  *
                                    ___________

                     Submitted:     September 9, 1996

                           Filed:   November 1, 1996
                                    ___________

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
      HANSEN, Circuit Judge.
                               ___________


WOLLMAN, Circuit Judge.


     Harold Meadows appeals the judgment of the district court1 denying
his 28 U.S.C. § 2254 petition.       We affirm.


                                        I.


     In the early morning hours of August 16, 1986, Mark McClure, Bradley
Vollmer, and Patricia Abram went to a drug dealer's house to purchase
cocaine.   When the dealer took their money without giving them any drugs,
the three stole what they believed was his car.        Later that morning, Harold
Meadows met McClure and Vollmer, and the three arranged for a buyer for the
stolen car.




      1
       The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri, adopting the Report and
Recommendation of the Honorable Terry I. Adelman, United States
Magistrate Judge for the Eastern District of Missouri.
     That evening, Meadows, Vollmer, McClure, and Abram all met at James
Drees's home.   While McClure was asleep in the house, Meadows and Vollmer
were overheard discussing "getting rid of Mark McClure" because they feared
he was going to report the car theft to the police.       Vollmer then asked
Drees for a knife, and Drees complied.    Meadows and Vollmer told Drees they
were going to kill McClure and throw his body in the river.


     Drees and Abram left Drees's residence for about an hour.     When they
returned, Meadows, Vollmer, and McClure were no longer there.          Drees
discovered a hole in the basement wall, and blood was found in the
basement, along with a knife, a bucket of bloody water, and Vollmer's belt.
 A few days later, McClure's body was found near a canal on the Missouri
River.


     Both Meadows and Vollmer were charged with first degree murder in
connection with McClure's death.   Vollmer pleaded guilty and was sentenced
to thirty years of incarceration.        Meadows pleaded not guilty and was
tried.   At Meadows's trial, Drees testified that he heard Meadows and
Vollmer discussing their plan to murder McClure and that Meadows told him
the damage to his basement occurred when Meadows and Vollmer were trying
to kill McClure.   Drees also stated that Meadows told him that Meadows and
Vollmer took McClure's body to a canal on the Missouri River, where they
weighted it down and dragged it into the river.     Abram likewise testified
to hearing a conversation in which Meadows and Vollmer were talking about
McClure, although she could not hear the specifics of that conversation.
Another witness also testified that Meadows said he had choked McClure.
Meadows maintained throughout his trial that he had no part in murdering
McClure, but admitted to helping to dispose of McClure's body.


     Meadows was convicted and sentenced to life imprisonment without the
possibility of parole.   His motion for post-conviction relief was denied.
Meadows appealed the denial, along with his




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conviction and sentence, in a consolidated appeal.   The Missouri Court of
Appeals affirmed in all respects.   State v. Meadows, 785 S.W.2d 635 (Mo.
Ct. App. 1990).   Meadows then filed this section 2254 petition.2


                                    II.


     Meadows contends that his conviction is not supported by sufficient
evidence.


     The standard for determining whether sufficient evidence exists to
sustain Meadows's conviction is "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Meadows contends that the only incriminating evidence against him was the
testimony of "junkies offered deals with the State."   Whether or not this
characterization is accurate, it is without consequence.       It was for the
jury to judge the witnesses' credibility.   Cf. United States v. E.R.B., 86
F.3d 129, 130 (8th Cir. 1996) (the court should not "substitute [its own]
inclinations" regarding the credibility of witnesses).       We conclude that
the evidence, when viewed in the light most favorable to the prosecution,
is sufficient to sustain Meadows's conviction.


     Meadows's second contention on appeal is that an affidavit by Vollmer
constitutes newly discovered evidence that supports his claim of innocence.
The test for newly discovered evidence is "whether the evidence could have
been discovered earlier in the exercise of due diligence."    Cornell v. Nix,
976 F.2d 376, 380 (8th




      2
      The State has conceded that Meadows's motion to strike the
State's addendum to its brief should be granted, and it is so
ordered.

                                    -3-
Cir. 1992).      Although the affidavit itself was not available until after
Meadows's trial, the factual basis for it existed long before this appeal.
Cf. Pickens v. Lockhart, 4 F.3d 1446, 1450 (8th Cir. 1993).                In addition,
we   have held that "when a defendant who has chosen not to testify
subsequently comes forward to offer testimony exculpating a codefendant,
the evidence is not `newly discovered.'"          United States v. Rogers, 982 F.2d
1241, 1245 (8th Cir. 1993) (quoting United States v. Offutt, 736 F.2d 1199,
1202 (8th Cir. 1984)).      Thus, Vollmer's affidavit is not newly discovered
evidence.


      Even assuming, arguendo, that this affidavit is newly discovered
evidence, Meadows's claim fails.          Meadows contends that his imprisonment
violates the Eighth and Fourteenth Amendments because he is actually
innocent.     Although Meadows cites Schlup v. Delo, 115 S. Ct. 851 (1995),
his reliance on Schlup is misplaced.         This is not a case in which Meadows
is attempting to use a claim of actual innocence to avoid a procedural bar
in order to present other constitutional claims, as was the case in Schlup.
Rather, this claim is analogous to the claim presented in Herrera v.
Collins, 113 S. Ct. 853 (1993).       The Herrera Court rejected free-standing
claims of actual innocence as a basis for habeas review, stating, "[c]laims
of actual innocence based on newly discovered evidence have never been held
to   state   a   ground   for   federal   habeas    relief   absent   an   independent
constitutional     violation     occurring   in    the   underlying   state   criminal
proceeding." Id. at 860.        Accordingly, Meadows's claim of innocence based
on newly discovered evidence is not cognizable on habeas review.


      Meadows next asserts two claims of evidentiary error, contending that
the trial court erred in admitting evidence of other crimes and hearsay
statements.


      Our review of alleged evidentiary errors is limited to determining
whether such errors were so apparent that they "fatally




                                          -4-
infected the trial and rendered it fundamentally unfair."            Troupe v.
Groose, 72 F.3d 75, 76 (8th Cir. 1995).       To obtain habeas relief based on
evidentiary error, Meadows must show "a reasonable probability that the
error[s] affected the trial's outcome."         Id.   Our review of the record
satisfies us that both the hearsay statements and evidence of other crimes
were properly admitted and thus did not render Meadows's trial unfair.


     Meadows's final claim is that he received ineffective assistance of
counsel because of trial counsel's alleged concession that Meadows was
involved in selling the stolen car.         During closing argument, Meadows's
attorney stated, "Mr. Meadows did nothing, even by the State's own
witnesses, his only involvement with the car was to make a phone call that
didn't turn out to sell the car."


     We conclude that trial counsel's decision to attempt to downplay
Meadows's involvement in any of the events surrounding McClure's death
reflected an exercise of "sound trial strategy" falling well within the
"wide-range    of   reasonable   professional   assistance."    Strickland   v.
Washington, 466 U.S. 668, 689 (1984).


     The judgment is affirmed.


     A true copy.


              Attest:


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




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