                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1775
                                    ___________

Dwight L. Laughlin,                     *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Dora B. Schriro, Director, MO           *
Department of Corrections; Jeremiah     *     [UNPUBLISHED]
Nixon, Attorney General of the State of *
Missouri,                               *
                                        *
                   Appellees.           *
                                  ___________

                              Submitted: November 15, 1999

                                   Filed: November 23, 1999

                                    ___________

Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       Dwight L. Laughlin was caught in the act of burglarizing a post office in
Missouri. A Missouri jury convicted him of first-degree burglary and first-degree
property damage, and the court sentenced Laughlin as a persistent offender to forty
years in prison. In a single opinion, the Missouri Court of Appeals affirmed Laughlin's
conviction and denied him postconviction relief. See State v. Laughlin, 900 S.W.2d
662 (Mo. Ct. App. 1995). Turning to federal court, Laughlin filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254. The district court denied Laughlin habeas
relief, finding his claims procedurally defaulted. We granted a certificate of probable
cause on one issue: whether the district court properly found Laughlin procedurally
defaulted a claim that he was actually innocent of first-degree burglary because the
state's evidence failed to show an essential element of the offense, namely, that a
nonparticipant in the crime was in the post office while Laughlin was inside.

         Section 569.160.1 of the Missouri Revised Statutes states, "A person commits
the crime of burglary in the first degree if he knowingly enters unlawfully . . . a building
. . . for the purpose of committing a crime therein, and . . . while in the building . . . :
. . . (2) Causes or threatens immediate physical injury to any person who is not a
participant in the crime; or (3) There is present in the structure another person who is
not a participant in the crime." In Laughlin's case, the jury found that while Laughlin
was in the building, Mike Smith, a nonparticipant in the robbery, was present.

       Laughlin contends Smith does not qualify as a nonparticipant under §
569.160.1(3) because Smith was a police officer investigating the burglary. Laughlin
cites no support for his contention, and we find none. Indeed, the Missouri Court of
Appeals has held the nonparticipant need not be in the building when the intruder
enters, see State v. Seddens, 770 S.W.2d 381, 382 (Mo. Ct. App. 1989), and has
rejected the argument that a police officer is not a nonparticipant in the crime under §
569.160.1(2), see State v. Gifford, 749 S.W.2d 702, 706 (Mo. Ct. App. 1988).

      Because Laughlin has not shown that, in light of all the evidence, it is more likely
than not that no reasonable juror would have found him guilty of first-degree burglary
beyond a reasonable doubt, we cannot excuse his procedural default. See Bousley v.
United States, 523 U.S. 614, 623 (1998). We thus affirm the district court's denial of
Laughlin's habeas petition.


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A true copy.

      Attest:

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




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