7 F.3d 111
Frank J. GUINAN, Appellant,v.Paul K. DELO, Superintendent, Potosi Correctional Center, Appellee.
No. 93-3394.
United States Court of Appeals,Eighth Circuit.
Oct. 4, 1993.

William Edward Reeves, Carutherville, MO, for appellant.
Stephen David Hawke, Jefferson City, MO, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, FAGG and BOWMAN, Circuit Judges.

ORDER

1
We have before us the state's motion to vacate the District Court's stay of execution that was imposed in the above-captioned case on October 1, 1993.   Frank J. Guinan has been sentenced to death for the January 1981 stabbing death of John McBroom at the Missouri State Penitentiary.   He is scheduled to be executed on October 6, 1993, at 12:01 a.m.


2
Guinan's motion for a stay of execution was filed with his petition for writ of habeas corpus under 28 U.S.C. § 2254 on September 30, 1993, at 4:00 p.m.   This is Guinan's third federal habeas petition.   See Guinan v. Armontrout, 909 F.2d 1224 (8th Cir.1990), cert. denied, 498 U.S. 1074, 111 S.Ct. 800, 112 L.Ed.2d 861 (1991);  Guinan v. Delo, 5 F.3d 313, 316 (8th Cir.1993) (treating motion under Federal Rule of Civil Procedure 60(b) seeking relief from denial of first habeas petition as second habeas petition).   For the first time, he is raising a claim that he was not in John McBroom's cell when McBroom was stabbed to death and had nothing to do with the murder, except possibly to try and prevent it.   That is, Guinan is now asserting actual innocence of the murder.   He supports this claim with eight affidavits from other prisoners convicted of murder and other violent offenses, and an affidavit from a physician who performed surgery on Guinan's hand.   Although it is not entirely clear, Guinan apparently is claiming that his trial counsel was ineffective for having failed to interview or call some of these witnesses, and for having failed to elicit the appropriate testimony from others who were called as witnesses at the trial.1


3
Since the present claims in the petition for writ of habeas corpus have not been raised earlier, they are abusive claims.   Guinan makes no showing of cause for his abuse of the writ.   Indeed, it appears that the claims have been withheld deliberately until virtually the last minute.2  To show probable actual innocence and obtain relief, therefore, Guinan "must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner" guilty of capital murder under the applicable state law.  Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992) (announcing standard in habeas petitioner's challenge to death sentence);  see also McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir.1992) (holding that Sawyer standard applies to habeas petitioner's challenge to conviction).


4
We have carefully reviewed the late-blooming statements from fellow prisoners that Guinan claims his trial counsel was derelict in not obtaining.   We find them to be often inconsistent with previous sworn testimony of the same witness, in some cases inconsistent with each other, inconsistent with the great bulk of evidence adduced at Guinan's trial, and on occasion inconsistent with defenses Guinan previously has asserted.   Guinan's explanations for the eleven-year delay between Guinan's trial and the discovery of these witnesses and their evidence is nonexistent or unpersuasive.   Some of the contentions are not new at all, but comport with Guinan's defense at trial;  new witnesses do not translate necessarily into new evidence.   Several of the affidavits simply report inadmissible hearsay.   Others repeat statements of Guinan's innocence allegedly overheard by the affiants and supposedly made by the other prisoner accused in the McBroom murder, Richard Zeitvogel, who already had testified at Guinan's trial that he committed the murder without Guinan's assistance.


5
Guinan also submits the affidavit of Dr. Richard Heimburger, a plastic surgeon who performed surgery to repair tendons in Guinan's right hand nearly eight weeks before the murder, examined the hand approximately two and one-half weeks after the murder, and continued to follow-up with Guinan for months after the surgery.   Heimburger states "that it would have been somewhat difficult and painful" for Guinan to have participated in the murder (presuming, we assume, Guinan would have used his right hand).   Heimburger Affidavit p 11.   Concluding it would be "somewhat difficult," however, is a far cry from stating it would not be possible.   Moreover, this is not newly discovered evidence.   Guinan knew of his surgery when it occurred, and in fact introduced hospital records of the injury at his trial.


6
"Applying the prevailing legal standard it is 'particularly egregious' to enter a stay on second or subsequent habeas petitions unless 'there are substantial grounds upon which relief might be granted.' "  Delo v. Blair, --- U.S. ----, ----, 113 S.Ct. 2922, 2923, 125 L.Ed.2d 751 (1993) (per curiam) (vacating stay of execution) (quoting concurring opinion in Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 873, 122 L.Ed.2d 203 (1993)).   We have only recently looked at the record in this case, Guinan v. Delo, 5 F.3d 313 (8th Cir.1993), and again direct attention to the thorough recitation of facts and overwhelming evidence of guilt found in the Missouri Supreme Court's opinion affirming Guinan's conviction on direct appeal, State v. Guinan, 665 S.W.2d 325, 327-29 (Mo.)  (en banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984).   In view of the State's evidence, we conclude that even if Guinan's "newly discovered evidence" had been presented to the jury it cannot be said that no reasonable juror would have found petitioner guilty of capital murder.


7
Accordingly, the claim presented in the present petition is barred from federal court review and the stay of execution must be, and hereby is, vacated.



1
 "Claims 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."  Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993).   We note that even if one reads Herrera as establishing that an exceptionally strong, highly persuasive showing of actual innocence may be an independent ground for federal habeas relief, Guinan's "newly discovered evidence" falls far short of the mark


2
 Seven of the eight prisoner affidavits were attested to before July 3, 1993;  three were signed as early as February and March 1993


