                                   _____________

                                   No. 95-2746EA
                                   _____________


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

                                    ___________

                      Submitted:    April 11, 1996

                          Filed:    June 4, 1996
                                    ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and WOLLMAN, Circuit Judges.
                                ___________

RICHARD S. ARNOLD, Chief Judge.


     Eugene Pitts, who is serving a sentence of life in prison without
parole, appeals the District Court's1 denial of his third petition for a
writ of habeas corpus.    The Court concluded that the claims raised in the
petition were procedurally barred.       We affirm.




       1
       The Hon. Stephen M. Reasoner, Chief Judge, United States
District Court for the Eastern District of Arkansas, acting on the
recommendation of the Hon. Jerry Cavaneau, United States Magistrate
Judge for the Eastern District of Arkansas.
                                          I.


             We begin with a brief overview of the facts leading to Pitts's
conviction and ultimately to this appeal.               In January of 1979, Pitts
abducted Dr. Bernard Jones from his home and shot him once in the side of
the head and three times in the back of the head, killing him.                 That same
year, Pitts was charged with and convicted of capital felony murder,2 with
kidnapping as the predicate felony.             He was sentenced to life in prison
without parole.


        The Arkansas Supreme Court affirmed Pitts's conviction in 1981.
Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981).           Pitts's petition for
state       post-conviction   relief   pursuant    to   Arkansas   Rule   of   Criminal
Procedure 37 was denied as well.                He then filed two habeas corpus
                                            3
petitions, both of which were denied.             In


        2
      The Arkansas capital murder statute, Ark. Code Ann. § 5-10-
101, states that:

        (a) a person commits capital murder if:

                (1) Acting alone or with one (1) or more other
                persons, he commits or attempts to commit rape,
                kidnapping, vehicular piracy, robbery, burglary, a
                felony   violation   of   the  Uniform   Controlled
                Substances Act, §§ 5-64-101 -- 5-64-608, involving
                actual delivery of a controlled substance, or
                escape in the first degree, and in the course of
                and in furtherance of the felony, or in immediate
                flight therefrom, he or an accomplice causes the
                death of any person under circumstances manifesting
                extreme indifference to the value of human life.
        3
      The District Court denied Pitts's first petition for relief.
A panel of this Court affirmed as to all issues with the exception
of the death-qualified jury issue, on which we reversed. Pitts v.
Lockhart, 753 F.2d 689 (8th Cir. 1985), vacated, 476 U.S. 1111
(1986). That reversal was later vacated as a consequence of the
Supreme Court's ruling in Lockhart v. McCree, 476 U.S. 162 (1986).
All claims raised in Pitts's second petition were denied by the
District Court, and the denial was affirmed on appeal. Pitts v.
Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert. denied, 501 U.S.
1253 (1991).

                                          -2-
this, his third habeas petition, he initially raised four claims.4         A
magistrate judge filed a recommendation concluding that the claims were
either abusive or successive, and that habeas relief should be denied.
Following a de novo review of the record, the District Court entered an
order adopting the recommendation and dismissed the petition.


     Pitts now appeals one of the claims which he raised in the District
Court:    that his appellate counsel, who was a public defender, was rendered
ineffective because a member of the public defender's office allegedly had
a personal relationship with the victim and participated in the murder
investigation.5    Pitts admits that this argument is procedurally barred.
To overcome the bar, he advances the actual-innocence exception.   We review
the District Court's decision to dismiss the petition de novo.


                                     II.


          Generally, claims raised or developed for the first time in a
second or subsequent habeas are abusive and may not be considered on the
merits.     There are some exceptions to the rule.       A claim that would
otherwise be abusive may be considered on the merits if the defendant is
able to demonstrate either cause and prejudice, or




     4
      Pitts raised the following claims before the District Court:
(1) appellate counsel was rendered ineffective by a conflict of
interest; (2) appellate counsel was ineffective because he withheld
exculpatory evidence; (3) appellate counsel was ineffective in
presenting the sufficiency of the evidence argument; and (4) denial
of due process, equal protection, and access to the courts due to
erroneous rulings in his prior federal habeas petitions regarding
his sufficiency of the evidence claim.      Pitts appeals only the
denial of the conflict-of-interest claim.
     5
     The State says that the lawyer in question in fact worked for
a completely different office.    Our disposition of this appeal
makes it unnecessary to pursue that question of fact.

                                     -3-
actual innocence.


        Pitts relies upon the actual innocence exception.   He claims that the
evidence presented by the State was insufficient to convict him of capital
felony murder predicated upon kidnapping.         Citing the Arkansas Supreme
Court's holding in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1992),
he argues that the State failed to prove that he possessed an independent
intent to commit the predicate felony.      In Parker, the court held that "in
order to constitute capital felony murder, the murder must be in the course
of, and in furtherance of the" predicate felony.         292 Ark. at 427, 731
S.W.2d at 759 (emphasis in original).       Stated another way, the predicate
felony "must have an independent objective which the murder facilitates."
Ibid.       Pitts contends that the only objective of the predicate felony
charged, the kidnapping of Dr. Jones, was the murder, and therefore his
conviction violates Parker.6


        Pitts presented this exact argument as a basis for habeas relief in
his second habeas petition and in the appeal of that petition.         In that
context, he argued, inter alia, that his conviction violated his due
process rights.     See Jackson v. Virginia, 443 U.S. 307 (1979).   We rejected
the argument without addressing its merits, stating that it was not a
constitutional




        6
      In his reply brief, Pitts makes what could be construed as an
attempt to show cause in order to excuse the abuse of the writ. He
argues that the holding in Parker was ambiguous until the court
decided Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992). He
notes that Allen was not available at the time of trial or at the
time of his first and second petitions for writ of habeas corpus.

     It is true that legal unavailability may be cause excusing an
abuse of the writ. Heffernan v. Norris, 48 F.3d 331, 333 (8th Cir.
1995). In such a case, the issue must be so novel as to present a
clear break with the past. Id. at 334. The fact that Allen was
not decided until after Pitts's second habeas is insignificant.
The holding in Allen follows closely the reasoning employed in
Parker, which was decided prior to Pitts's second habeas petition.
We do not consider Allen to be a clear break with past Arkansas
law. There is simply nothing novel about Pitts's claim.

                                      -4-
claim, but purely an issue of state law which did not state a basis for
habeas relief.   Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert.
denied, 501 U.S. 1253 (1991).


     Here, Pitts seeks to advance the argument for a different purpose --
as a gateway to considering the merits of his ineffective-assistance-of-
counsel claim.    See Schlup v. Delo, 115 S. Ct. 851, 867 (1995).                To form
a gateway through the procedural bar, Pitts must show, "based on new
evidence, that `a constitutional violation has probably resulted in the
conviction of one who is actually innocent.'"        Brownlow v. Groose, 66 F.3d
997, 999 (8th Cir. 1995) (quoting in part Schlup, 115 S. Ct. at 867), cert.
denied, 116 S. Ct. 1049 (1996).           The argument must fail.          The actual
innocence    exception   is   concerned    with   claims    of   actual,   not    legal,
innocence.    Anderson v. United States, 25 F.3d 704, 707 (8th Cir. 1994).
It is evidence of factual innocence coupled with a constitutional violation
which triggers the actual innocence exception.             Indeed, a credible claim
of actual innocence "requires [a] petitioner to support his allegation of
constitutional error with new reliable evidence . . .."           Schlup, 115 S. Ct.
at 865.   Examples of evidence which may establish factual innocence include
credible declarations of guilt by another, see Sawyer v. Whitley, 505 U.S.
333, 340 (1992), trustworthy eyewitness accounts, see Schlup, 115 S. Ct.
851, and exculpatory scientific evidence.


     Pitts's argument is one of legal innocence.            He has presented no new
evidence establishing his factual innocence.        For these reasons, he has not
demonstrated that he falls within the actual innocence exception.                Pitts's
argument, in plain terms, is that he may have kidnapped Dr. Jones intending
from the beginning to kill him.       Therefore, he is not guilty of capital
felony murder, which requires that the underlying felony have an objective
independent of the killing.     Even if Pitts is right, convicting him is not
a fundamental miscarriage of justice by any stretch of the imagination.




                                          -5-
                                      III.


     We conclude that the District Court did not err by dismissing Pitts's
petition.    Pitts has failed to make the showing of actual innocence
necessary   to   overcome   the   procedural   bar   to   have       his   ineffective-
                                                                 7
assistance-of-counsel claim considered on the merits.                  Because of the
procedural bar, we do not reach the merits of the ineffective-assistance
claim.   The judgment is affirmed.


     A true copy.


            Attest:


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




     7
      Pitts urges us to remand this case to the District Court for
reconsideration in light of Schlup because the Court applied the
wrong standard when considering his actual innocence claim. The
District Court applied the narrow "clear and convincing" standard
of Sawyer v. Whitley, 505 U.S. 333, 350 (1992), rather than the
less narrow "more likely than not" standard of Schlup, 115 S. Ct.
at 867 (adopting the standard established in Murray v. Carrier, 477
U. S. 478, 496 (1986)). Despite this error, we are not inclined to
remand this case to the District Court for reconsideration, because
Pitts has failed to make even a threshold showing that he is
actually innocent under Schlup. See, e.g., Barrington v. Harris,
49 F.3d 440 (8th Cir. 1995) (per curiam).

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