                  United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT

                         ___________

                         No. 97-8201
                         ___________

Samuel Lee McDonald,            *
                                *
           Petitioner,          *
                                * On Motion for an Order
    v.                          * Authorizing    a    Second
Petition
                              * for Writ of Habeas Corpus.
Michael Bowersox,             *
                              *    [PUBLISHED]
           Respondent.        *
                         ___________

               Submitted:    September 19, 1997
                                        Filed: September 22,
1997
                         ___________

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.
                      ___________

PER CURIAM.

    Samuel Lee McDonald was convicted by a jury in
Missouri state court of capital murder and sentenced to
death. McDonald's execution is currently scheduled for
September 24, 1997, at 12:01 a.m. The district court for
the Eastern District of Missouri denied McDonald's
initial federal habeas petition, see McDonald v. Delo,
897 F. Supp. 1224 (E.D. Mo. 1995) (McDonald I), and this
Court affirmed. See McDonald v. Bowersox, 101 F.3d 588
(8th Cir. 1996) (McDonald II), cert. denied, 117 S. Ct.
2527 (1997).     McDonald now moves   this   Court   for
permission to file a successive




                         -2-
federal habeas petition. See 28 U.S.C.A. § 2244(b)(3)(A)
(West Supp. 1997). We deny this motion.

                           I.

    On May 16, 1981, McDonald robbed and murdered off-
duty police officer Robert Jordan while Officer Jordan's
eleven-year-old daughter Rochelle watched. McDonald was
convicted of capital murder and sentenced to death on
February 24, 1982.

    During the ensuing decade-and-a-half, McDonald
pursued post-conviction and collateral relief in federal
and Missouri state courts, seeking to overturn his
conviction and sentence. See McDonald II, 101 F.3d at
591-92 (describing history of litigation).      In 1989,
McDonald filed his first federal habeas petition pursuant
to 28 U.S.C. § 2254 (1988). McDonald raised over fifty
claims in his first federal habeas petition, including a
claim that his trial attorney rendered ineffective
assistance of counsel by failing to notify the trial
court that McDonald intended to rely on a defense of
mental disease or defect.

    To support his claim of ineffective assistance of
counsel, McDonald relied on the 1986 post-trial testimony
of Dr. John Waite.    Dr. Waite testified that McDonald
suffered from Post-Vietnam Syndrome, a form of post-
traumatic stress disorder experienced by veterans of the
war in Vietnam. As McDonald stated, "Dr. Waite concluded
that [McDonald's] loss of control and 'trained' hyper-
arousal due to Post-Vietnam Stress Disorder, caused
[McDonald] to act in an impulsive manner, impaired or

                           -3-
extinguished his ability to deliberate, and rendered him
incapable of reflection." Appellant's Br. in Case No. 95-
3863 at 9. The district court rejected McDonald's claim
of ineffective assistance of counsel, see McDonald I, 898
F. Supp. at 1249-50, and this Court affirmed.         See
McDonald II, 101 F.3d at 595.     In affirming, we noted
that McDonald had failed to demonstrate prejudice arising
from his counsel's alleged




                           -4-
ineffectiveness because "there was minimal evidence
tending to prove that McDonald had a mental disease or
defect." Id.

    In his instant motion for permission to file a
successive habeas petition, McDonald states that his
proposed petition

    raises one ground of constitutional error:
    whether Mr. McDonald would be deprived of due
    process of law and subjected to cruel and
    unusual punishment, in violation of his rights
    under   the   Fifth,   Eighth    and   Fourteenth
    Amendments to the United States Constitution, if
    his execution was permitted to proceed without
    reconsideration of the issue concerning the
    jury's failure to learn of the genesis,
    existence,   and   effect   of   Mr.   McDonald's
    psychiatric illness prior to its recommendation
    that he be put to death. The passage of time
    and evolution of diagnostic techniques and
    capabilities have rendered it constitutionally
    and morally incomprehensible in 1997 that a
    decorated Vietnam veteran actively suffering
    from   service-related    post-traumatic   stress
    disorder might be executed after a trial in
    which no mention was made of his mental illness
    and diminished capacities.      These claims are
    successive, in that they were not presented in
    petitioner's prior application for habeas corpus
    relief pursuant to 28 U.S.C. § 2254.         This
    successive petition should not be dismissed,
    however, because the factual predicate for the
    claims could not have been discovered previously
    through the exercise of due diligence . . . .

Mot. to Authorize the Filing of a Successive Habeas Pet.
and for Stay of Execution of His Sentence of Death at 2


                           -5-
(Sept. 19, 1997) (Motion). While the body of McDonald's
instant motion makes extensive references to Dr. Waite's
testimony, see, e.g., id. at 6-7, nn. 5-6, it does not
refer to any evidence not presented during the
adjudication of McDonald's first federal habeas petition.
Rather, McDonald merely asserts that "[t]his Court should
grant Petitioner Permission to file a Successive Habeas
Corpus Petition so that the federal courts can determine
the   appropriateness   and  the   constitutionality   of
permitting an individual to be executed when the trial
was originally reviewed for




                           -6-
constitutional error in both state and federal courts
based on notions about science which are no longer
valid." Id. at 9.

                          II.

    The Anti-Terrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1217 (1996) (AEDPA),
"changed the conditions under which second or successive
applications [for federal habeas relief] may be
considered and decided on their merits." Ruiz v. Norris,
104 F.3d 163, 164 (8th Cir. 1997), petition for cert.
filed, (U.S. Jan. 7, 1997) (No. 96-7352). Pursuant to
the relevant sections of the AEDPA, codified at 28 U.S.C.
§ 2244(b),

    (1) A claim presented in a second or successive
    habeas corpus application under [28 U.S.C.]
    section 2254 that was presented in a prior
    application shall be dismissed.

    (2) A claim presented in a second or successive
    habeas corpus application under [28 U.S.C.]
    section 2254 that was not presented in a prior
    application shall be dismissed unless--

        (A) the applicant shows that the claim
        relies on a new rule of constitutional
        law, made retroactive to cases on
        collateral review by the Supreme Court,
        that was previously unavailable; or

        (B)(i) the factual predicate for the
        claim could not have been discovered
        previously through the exercise of due
        diligence; and


                           -7-
(ii) the facts underlying the claim, if
proven and viewed in light of the
evidence as a whole, would be sufficient
to establish by clear and convincing
evidence that, but for constitutional
error, no reasonable factfinder would
have found the applicant guilty of the
underlying offense.




                   -8-
28 U.S.C.A. § 2244(b)(1) & (2) (West Supp. 1997).

    The claim that McDonald wishes to raise in a
successive habeas petition--that because of McDonald's
mental illness it is a violation of the United States
Constitution to execute him--shares the same factual
predicate as his prior claim of ineffective assistance of
counsel based on counsel's failure to pursue a mental
disease or defect defense. It is therefore likely that
this proposed claim would be barred by 28 U.S.C.A. §
2244(b)(1) as a claim already raised in an initial habeas
petition. Cf. Wainwright v. Norris, 1997 WL 469583, at
*2 (8th Cir. Jan. 2, 1997) (interpreting § 2244(b)(1));
Zeitvogel v. Bowersox, 103 F.3d 54, 55-56 (8th Cir. 1996)
(same).   Even assuming, however, that this is a "new
claim" for purposes of § 2244(b), it is apparent that
McDonald has failed to satisfy the conditions of either
§ 2244(b)(2)(A) or (B).

    McDonald does not contend that his successive habeas
claim relies on a new rule of constitutional law made
retroactive by the United States Supreme Court to cases
on collateral review, and § 2244(b)(2)(A) therefore does
not apply.   See Ruiz, 104 F.3d at 165 (interpreting §
2244(b)(2)(A)).   Despite McDonald's assertions to the
contrary, it is apparent that § 2244(b)(2)(B) also does
not apply.

    To support his claim of a constitutional error,
McDonald points only to psychiatric evidence that was
available in 1986. McDonald filed his initial federal
habeas petition in 1988. McDonald does not attempt to
explain in what manner this evidence "could not have been

                           -9-
discovered previously" so that he could not have raised
his proposed successive habeas claim in his initial
federal habeas petition. Given that McDonald explicitly
relied on Dr. Waite's testimony during the adjudication
of his initial federal habeas petition, it is obvious
that this evidence was previously available to him.

    In his motion, McDonald asserts that "[t]he
scientific ability to diagnose and treat [his] mental
affliction has progressed over the past ten years."
Motion at 11.




                          -10-
McDonald has neither supported this assertion, nor has he
explained how such improvement, if it can be assumed to
exist, constitutes new evidence.         Accordingly, we
conclude   that   McDonald   has  failed   to   meet  the
requirements of § 2244(b)(2)(B). Because McDonald has
failed to meet these requirements, we must deny his
motion for authorization to file a successive habeas
petition. See 28 U.S.C.A. § 2244(b)(3)(C) (West Supp.
1997) ("The court of appeals may authorize the filing of
a second or successive application only if it determines
that the application makes a prima facie showing that the
application   satisfies    the   requirements    of  this
subsection.").

    Finally, McDonald argues that, even if he has not met
the requirements of § 2244(b)(2)(B), his "[a]pplication
cannot be denied because Petitioner is a death row
prisoner who offers persuasive evidence of his innocence
of first degree murder, and the dismissal of this
application would lead to the execution of a person
innocent of a capital crime . . . ." Motion at 2-3. We
disagree. There is no doubt whatsoever that McDonald is
the person who brutally ended the life of Officer Robert
Jordan, and we have previously rejected McDonald's
argument that there exists persuasive evidence that
McDonald should not be held culpable for his conduct.
See McDonald II, 101 F.3d at 595. Accordingly, we need
not decide whether, and in what circumstances, a claim of
actual innocence can allow us to waive § 2244(b)(2)'s
requirements for our approval of a successive habeas
petition.




                           -11-
    For the foregoing reasons, McDonald's motion for
approval to file a successive federal habeas petition is
denied.   We also deny McDonald's motion for a stay of
execution "because there are no substantial grounds on
which   relief   might  be   granted   by  this   court."
Wainwright, 1997 WL 469583, at *3 (citing Delo v. Stokes,
495 U.S. 320, 321 (1990) (per curiam)).




                           -12-
A true copy.


    Attest:


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




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