                                         ___________

                                         No. 94-3712
                                         ___________


James Edward Bowman,                           *
                                               *
            Appellant,                         *
                                               *
     v.                                        *    Appeal from the United States
                                               *    District Court for the
James Anthony (Tony) Gammon,                   *    Western District of Missouri.
Superintendent of the Moberly                  *
Correctional Center; Jeremiah                  *
W. (Jay) Nixon, Attorney                       *
General of the State of                        *
Missouri,                                      *
                                               *
            Appellees.                         *

                                         ___________

                         Submitted:      January 10, 1996

                             Filed:      June 7, 1996
                                         ___________

Before WOLLMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Following his conviction in Missouri state court for felony murder,
stealing   without       consent,   armed      criminal   action,   and   second   degree
burglary, James Edward Bowman was sentenced to two consecutive life
sentences, plus seven years.             After exhausting his state court remedies,
he brought this action pursuant to 28 U.S.C. § 2254.                       Following the
                     1
district   court's       denial     of   his   petition,   we   remanded    for    further
proceedings on the basis of newly discovered evidence.              The district court
again denied the petition, and we now affirm.




     1
     The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.
                                    I.


     To analyze Bowman's contentions in this appeal, we begin by setting
forth the facts underlying his conviction.   The Missouri Supreme Court, in
Bowman's direct appeal, summarized the record as follows:


           The only witness to implicate the defendant was Anthony
     Lytle, who testified that during the late evening of November
     26, 1983 he and two other young men were riding in southeast
     Kansas City in a car driven by [Bowman]. About 11:00 or 11:30
     PM they decided to do some "stealing," and headed for the home
     of Earl and Pauline Chambers, an elderly white couple, at 5801
     Paseo. [Bowman] and his companions were black. They heard
     voices, apparently of black people, in the home. The shotgun
     was placed in the back seat but there is no evidence that it
     was taken into the house. When they returned, one of their
     companions indicated that he had reached accord with the people
     inside, apparently another party of burglars. Lytle remained
     as lookout while the others entered and carried property out of
     the house. Lytle then went into the house and saw a body. One
     of the burglars who had been in the house, said, "Don't worry
     about it. We took care of him." Lytle and his companions then
     drove away.     This is the essence of Lytle's eyewitness
     testimony.

           The state then introduced the text of a videotaped
     statement Lytle had given to the police, over appropriate
     objection. Lytle told the police that he heard conversation
     with "old people," and then "I hear, `no, no, no,' and then
     sounds of pain." The statement continued,

                I ran back to see what was going on and Eddie
           [Bowman] was standing there over this man I saw one
           stab, I saw him do the last one. . . .

     He said that the person [Bowman] was standing over was wearing
     longjohns.

           Lytle at trial admitted having made these statements, but
     said that they were not true.         He testified on cross-
     examination that each of the statements just quoted was a
     "lie."     He also testified that Detective Glynn, the
     interrogating officer,




                                   -2-
     mistreated him and told him that [Bowman] had already made a
     statement implicating him.

           The bodies of Earl and Pauline Chambers were found the
     next morning, dead of multiple stab wounds.      Pauline was
     wearing longjohns. The medical examiner testified that Earl
     might have lived for as much as an hour, and Pauline for at
     least half an hour, after the wounding.


State v. Bowman, 741 S.W.2d 10, 11-12 (Mo. 1987) (en banc) (footnotes
omitted).     After the Missouri Supreme Court affirmed his conviction, see
id. at 16, Bowman sought post-conviction relief pursuant to Missouri
Supreme Court Rule 27.26.2          The motion court denied his motion for post-
conviction relief and the Missouri Court of Appeals affirmed the denial.
Bowman v. State, 787 S.W.2d 822 (Mo. Ct. App. 1990).                   In October 1990,
Bowman filed a habeas corpus petition, asserting four claims for relief.
The district court issued an order denying Bowman relief, Bowman v.
Armontrout, No. 90-0969, Opinion and Order Denying Petition for a Writ of
Habeas Corpus, (June 29, 1992), and Bowman appealed.               In February 1993,
before filing an appellate brief, Bowman filed a motion to remand on the
basis of newly discovered evidence.             We granted the motion on March 5,
1993, and instructed the district court to conduct further proceedings on
this issue.       Without conducting an evidentiary hearing, the district court
again denied relief, Bowman v. Armontrout, 859 F. Supp. 369 (W.D. Mo.
1994), and Bowman appeals.


                                          II.


     In his motion for remand to the district court, Bowman alleged that
"newly discovered evidence" made a remand necessary in order to fully
develop     the    record.    Our    remand     order   states,   in    relevant   part:
"Appellant's motion for remand to the district court for




     2
     Rule 27.26 was repealed January 1, 1988, and was replaced by
Rule 27.15.

                                          -3-
evidentiary hearing on newly discovered evidence is granted.               The case is
remanded     to   the    district   court   with   directions   to     conduct   further
proceedings on the issue of newly discovered evidence."                 As a threshold
matter, Bowman claims that the district court erred in failing to follow
our order.


       The   district     court,    in   interpreting   our   remand    order,   allowed
substantial briefing on the issue and held a status conference.                  It did
not, however, hold an evidentiary hearing.          The district court believed our
directive required it to "consider whether claims of newly discovered
evidence may be brought and if so, to take evidence on those claims.               There
is no indication from the Eighth Circuit that these claims of newly
discovered evidence should be treated any differently than other such
claims similarly situated."          Bowman, 859 F. Supp. at 371.


       Claims of newly discovered evidence that relate only to the guilt or
innocence of a state prisoner do not warrant federal habeas corpus relief.
Herrera v. Collins, 506 U.S. 390, 400 (1993) (citing Townsend v. Sain, 372
U.S. 293, 317 (1963)).       To constitute a basis for relief, such claims must
establish an independent constitutional violation.              Herrera, 506 U.S. at
400.   "This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of the
constitution - not to correct errors of fact."            Id.


       Before a petitioner is entitled to an evidentiary hearing in federal
court, he must "`allege[] facts which, if proved, would entitle him to
relief[.]'"       Church v. Sullivan, 942 F.2d 1501, 1510 (10th Cir. 1991)
(alteration in original) (quoting Townsend, 372 U.S. at 312); see also Ruiz
v. Norris, 71 F.3d 1404, 1406 (8th Cir. 1995).                Based on its thorough
opinion, it is apparent that the district court carefully considered
Bowman's claims.        In light of the record, we hold that the district court
did not abuse its discretion in concluding that no evidentiary hearing was
necessary.




                                            -4-
See Ruiz, 71 F.3d at 1406 (standard of review).      We agree that none of
Bowman's "newly discovered" evidence claims, even if further developed in
an evidentiary hearing, would have entitled him to relief for the reasons
discussed below.


                                    III.


      Bowman raises numerous claims in this appeal, some of which he
alleges are newly discovered and others which appear to emanate from his
initial petition.   The essence of Bowman's claims are as follows:   (1) the
prosecution made a secret deal with Anthony Lytle, a testifying co-
defendant; (2) the autopsy report of Pauline Chambers was falsified; (3)
trial counsel was ineffective in failing to protect his speedy trial
rights; and (4) Missouri Revised Statute § 491.0743 was applied against him
ex post facto.
A.   Evidence of Secret Deal


      Bowman first alleges that the prosecution made a secret deal with
Lytle for his testimony, that the deal was not disclosed, and that the
prosecution elicited false testimony from Lytle about the deal, thus
violating Bowman's due process rights.       At Bowman's trial, both the
prosecutor and Lytle denied having any type of deal.   However, at Lytle's
29.15 hearing for post-conviction relief held in January 1990, the state
did not oppose Lytle's motion to vacate his sentence based upon a prior
agreement.   At that hearing, the assistant prosecutor explained:




      3
       The statute reads as follows:

             Notwithstanding any other provisions of law to
             the contrary, a prior inconsistent statement
             of any witness testifying in the trial of an
             offense under chapter 565, 566 or 568, RSMo,
             shall be received as substantive evidence, and
             the party offering the prior inconsistent
             statement may argue the truth of such
             statement.

                                    -5-
     [Anthony Lytle] did not cooperate with us in the sense of doing
     anything unusual. In fact he was arguing against our case, but
     we believe he knew that by arguing against our case, it allowed
     us to put the video [of his confession] on, which resulted in
     the conviction of the three other, we believe, more culpable
     people . . .

     Numerous times people from our office would go down to the pen
     to visit with him. . . . What we did tell him is that at the
     first available opportunity we would not oppose an early
     release, and at the time our thought was if he came up for
     parole, we certainly wouldn't stand in the way of parole . . .
     .


In addition, just prior to the start of Bowman's trial, the prosecutor
stated:


     Anthony Lytle sent a letter to his attorney and to me stating
     that he wanted to come back to court and also filed a motion
     with Judge Lombardo in which he wanted to come back as a
     witness for the Court in these cases. At that time, officers
     of the Kansas City, Missouri Police Department were sent to the
     Jefferson City Penitentiary, talked to Mr. Lytle, and he agreed
     to testify against Mr. Bowman. He never made that agreement
     before.


     Based on these events, the district court found that, at some point,
the prosecution made a "deal" with Lytle not to oppose early parole.   The
court also concluded that this did amount to new evidence because it was
not available at the time Bowman presented his claims to the state court.
Although the court found it was unclear whether the "deal" was made before
or after Lytle testified, it held that, even assuming the existence of the
deal before Lytle testified, Bowman's due process rights were not violated.
Under United States v. Agurs, 427 U.S. 97, 103 (1976), due process is
violated if the prosecution fails to disclose any agreement with a witness
or fails to correct any false statement by a witness, and "there is any
reasonable likelihood that the false testimony could have affected the
judgment of the jury."   We agree with the district court that "[b]ecause
of the peculiar nature of Mr. Lytle's testimony and the way in which the
jury must have




                                   -6-
considered it, . . . the additional evidence could not have affected the
judgment of the jury."       Bowman, 859 F. Supp. at 377.


     Normally, evidence that a witness had a deal with the prosecution
would cause the jury to question the credibility of the witness.     However,
evidence of a deal would only have affected the credibility of Lytle's live
testimony - not his prior confession.        In light of the fact that Lytle's
live testimony favored Bowman, evidence of a deal was more likely to have
undermined the live testimony rather than to have strengthened it.     We find
it difficult to fathom a situation where the jury would give more credence
to a testifying witness who had a deal with the prosecution.     In any event,
the jury chose to believe Lytle's prior confession and disbelieve his live
testimony.     It is unlikely that evidence of a deal would have changed the
jury's evaluation.


     In addition, we find persuasive the fact that during Lytle's cross-
examination, he acknowledged that he was hoping to receive favorable
treatment from the state in exchange for his cooperation.        In effect, he
                                       4
admitted to everything but a deal.         Because the


          4
         The following exchange occurred during Lytle's cross-
examination:

     Q. And isn't it true that [your attorney] was hired for the
     very specific purpose of trying to make a deal with [the
     prosecutor] in return for your testimony here today?

     A.       Something to that extent.

     Q. That's the only reason he's representing you is to
     try to get you a deal with [the prosecutor], trying to
     get you a lighter sentence; is that right?

     A.       Something to that extent, yes, sir.

     Q. And you know [your attorney] has spoken with [the
     prosecutor] an awful lot about you testifying in this
     case, hasn't he?

     A.       Yes, he has.

     . . .

                                       -7-
Q. It's true Mr. Lytle, that you're not getting anything
out of this testimony, is that right?

A.   That's right.

Q. And you say the only reason you're here today is because
you want to be; isn't that right?

A.   That's right.

Q. But isn't it true, Mr. Lytle, that you're really hoping
that you win that appeal and after you win that appeal if you
cooperated with [the prosecutor] he is going to not prosecute
you for murder anymore?

A.   I anticipate something.   I don't know--

Q.   You're going to get something out of this, aren't you?

A.   Hoping for something.

Q. You're hoping that all that money spent on [your attorney]
doesn't go to waste, isn't that right?

A.   Yes, I am.

Q. And [your attorney] knows that no deal has been made for
your testimony, right?

A.   As far as to my knowledge, yes.

Q. And you know that you couldn't be forced to testify here
if you didn't want to, don't you?

A.   Right.

Q. But even knowing all that, your lawyer has told you that
it's okay for you to go ahead and testify; isn't that right?

A.   Right.

Q. And that's because you know that if you don't testify you
can't even hope to get a deal out of [the prosecutor] later;
isn't that right?

A.   Yes.


                             -8-
newly discovered evidence of a deal between Lytle and the prosecution would
not likely have affected the jury's verdict, the district court correctly
denied this claim.5


B.   Falsification of Autopsy


      Bowman next asserts that his due process rights were violated because
the prosecution suppressed, destroyed, and falsified evidence pertaining
to the Pauline Chambers' autopsy.     The crux of Bowman's claim is that the
autopsy report is inconsistent with the description of the stabbing given
by Lytle in his confession.       The district court found that all of the
evidence that Bowman referred to was available to him at the time of trial.
Bowman, 859 F. Supp. at 379 ("The only thing `new' at this time is that
petitioner's counsel has read the testimony in a new light, with a medical
dictionary at his side.").      We agree.


      A petitioner's failure to develop a material fact in state court
proceedings will be excused if he can show cause for and prejudice from his
failure to raise the claim.      See Keeney v. Tamayo-Reyes, 501 U.S. 1, 11
(1992).    "`[C]ause . . . ordinarily requires a showing of some external
impediment preventing counsel from constructing or raising the claim.'"
Cornell v. Nix, 976 F.2d 376, 380 (8th Cir. 1992) (en banc) (quoting
McCleskey v. Zant, 111 S. Ct. 1454, 1472 (1991), cert. denied, 507 U.S.
1020 (1993)).    Also relevant is whether the newly discovered evidence
"could have



      Q.   And that's why you're here, isn't it?

      A.   I'm here because I want to be here.

      Q. You're here because you have to be here because if you
      don't testify [the prosecutor] isn't going to help you, isn't
      [sic] he?

      A.   I don't think so.       I don't think he would, no, sir.
      5
      It is axiomatic that no evidentiary hearing is warranted on
this issue, for there is nothing further that could be developed on
the existence of a deal.

                                      -9-
been discovered earlier in the exercise of due diligence."               Cornell, 976
F.2d at 380 (citing United States v. Bednar, 776 F.2d 236, 238 (8th Cir.
1985)).


       We find that the factual basis of Bowman's claim concerning the
autopsy evidence was reasonably available to him at the time of his trial.
Thus, Bowman should have presented this claim to the state court.              Because
he has failed to demonstrate cause for his failure to do so, we need not
discuss whether he was prejudiced by the default.                    Accordingly, the
district court was correct in denying this claim.


C.    Ineffective Assistance


       Bowman next claims that his trial attorney was ineffective for
failing to protect his speedy trial rights.               The district court had
previously rejected this claim in Bowman's initial habeas petition.                   It
declined to address this issue on remand because Bowman did not show any
"newly discovered evidence" relating to his claim.             A district court may
decline    to   address   a   successive    claim   decided    adversely    against   a
petitioner in an earlier petition.         Ruiz, 71 F.3d at 1409.      "The motion to
remand is the functional equivalent of a second or successive petition for
habeas corpus."     Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir. 1989).
Because Bowman raised this claim in his first petition, however, and
because we have not previously addressed it, we believe it warrants
discussion in this appeal.


       Bowman first raised an ineffective assistance claim in his Rule 27.26
motion for post-conviction relief.         After holding an evidentiary hearing,
the motion court denied relief and the Missouri Court of Appeals affirmed.
To prevail on this claim, Bowman must establish that his attorney's conduct
was    professionally     unreasonable     and   that,   but   for    his   attorney's
performance, the outcome of the proceeding would have likely been




                                         -10-
different.   Griffin v. Delo, 33 F.3d 895, 900 (8th Cir. 1994) (citing
Strickland v. Washington, 466 U.S. 668, 694 (1984)).       Bowman bears the
burden in showing that his attorney's conduct "fell below an objective
standard of reasonableness."   See Griffin, 33 F.3d at 900 (citing Wing v.
Sargent, 940 F.2d 1189, 1191 (8th Cir. 1991)).    He must also prove that he
was prejudiced by his attorney's performance.       Griffin, 33 F.3d at 900
(citing Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)).


      In Bowman's post-conviction proceeding, the Missouri Court of Appeals
rejected his ineffective assistance claim regarding the Speedy Trial Act
issue for the following reasons:


      [P]rior to the start of the trial, [counsel] did make a motion
      for dismissal of the case on the ground that appellant had been
      denied his right to a speedy trial. [Further], according to
      [counsel's] testimony at the Rule 27.26 hearing, it was to
      [petitioner's] advantage to delay the start of the trial, as
      [counsel] was using the time to try to arrange a favorable deal
      with the prosecutor.        Thus, [counsel's] requests for
      continuances were a reasonable trial strategy . . . .


      Under Strickland, there is a strong presumption that an attorney's
performance is professionally reasonable.     466 U.S. at 689.     Moreover,
Strickland holds that decisions related to trial strategy are virtually
unchallengeable.   Id. at 690.     The record establishes that counsel for
Bowman recognized the Speedy Trial Act issue and made tactical trial
decisions in the interests of his client.   Because counsel's trial strategy
decisions were objectively reasonable, Bowman's ineffective assistance
claim is without merit.


D.   Ex Post Facto Claim


      Bowman also alleges that the application of section 491.074 against
him constituted an ex post facto violation.      Bowman raised




                                    -11-
this claim in his initial habeas petition.         The district court denied the
claim, finding that it was procedurally defaulted.       On appeal, Bowman does
not allege any newly discovered evidence relating to this claim.


      Instead of raising the ex post facto claim in his direct appeal,
Bowman challenged the constitutionality of section 491.074 on Confrontation
Clause grounds.   See Bowman, 741 S.W.2d at 12-13.      His failure to properly
present this claim in state court constitutes a procedural default.
Because the claim has been procedurally defaulted, Bowman must establish
cause for the default and show that he was prejudiced by the alleged
violation of his constitutional rights.       See Heffernan v. Norris, 48 F.3d
331, 333 (8th Cir. 1995).      Bowman has failed to advance any cause in this
appeal for his procedural default.       Thus, we need not examine whether he
was prejudiced.    Because this claim has been procedurally defaulted, we
decline to address it.


E.   Actual Innocence


      Despite Bowman's failure to show cause for his default, we can reach
the merits of his claims if he can show that he is probably actually
innocent.     Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir. 1995), cert.
denied, 116 S. Ct. 1578 (1996).        Under Schlup v. Delo, 115 S. Ct. 851
(1995), a petitioner who raises a gateway claim of actual innocence must
satisfy   a   two-part    test.    First,    the   petitioner's    allegations    of
constitutional error must be supported "with new reliable evidence . . .
that was not presented at trial."     Id. at 865.    Second, the petitioner must
establish "that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence."             Id. at 867.    See
also Wyldes, 69 F.3d at 254.         The actual innocence exception requires
"review of procedurally barred, abusive, or successive claims only in the
narrowest type of case--when a fundamental miscarriage of justice would
otherwise result."       Ruiz, 71 F.3d at 1409 (citing Schlup, 115




                                      -12-
S. Ct. at 864).


     The district court found no merit in Bowman's actual innocence claim.
At trial, Bowman defended on the ground that although he participated in
the burglary at the Chambers' home, he was not involved at the time of the
murders.    Under Missouri law, Bowman's conviction for felony murder will
stand if he participated in the   burglary when the murders occurred.    See
Mo. Rev. Stat. § 565.021 (a person commits second-degree murder if he
"commits or attempts to commit any felony, and, in the perpetration or the
attempted perpetration of such felony . . . another person is killed as a
result . . .").   As the district court found, "Even if petitioner did not
wield the murder weapon, as he argues the evidence shows, that does not
prove that he is `actually innocent' of the more broad reaching crime of
felony murder."     Bowman, 859 F. Supp. at 372, n.3.


     The state put on ample evidence of Bowman's participation in the
burglary.   It is true that Lytle's confession was the only evidence that
directly placed Bowman at the scene at the time of the murders.     The jury
chose to believe Lytle's confession and disbelieve his live testimony,
despite evidence that tended to discredit the confession.      In any event,
the jury could reasonably have inferred that the murders occurred during
the course of the burglary regardless of the confession evidence.       Even
Lytle's live testimony did not conclusively show that Bowman was not
present at the time of the murders.    Thus, we agree with the district court
that Bowman has not established a claim of actual innocence.


                                      IV.


     We have considered the remainder of Bowman's claims and find them to
be without merit.   The judgment dismissing the petition for writ of habeas
corpus is affirmed.




                                      -13-
A true copy.


     Attest:


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




                            -14-
