                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 01-2535
                                     ___________

Gary Barfield,                            *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Western District of Arkansas.
Morse U. Gist, Jr.,                       *
                                          *     [UNPUBLISHED]
             Appellee.                    *
                                     ___________

                           Submitted: November 7, 2001
                               Filed: November 15, 2001
                                    ___________

Before HANSEN, FAGG, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

      Gary Barfield, an Arkansas inmate, appeals the district court’s1 dismissal of his
42 U.S.C. § 1983 action for failure to state a claim. Barfield was tried for first-degree
murder as an habitual offender; in the instant action, he alleged that his appointed trial
counsel conspired with the state court judge, and with unidentified state officials, to
secure his conviction on a lesser included offense. On appeal, he reiterates his


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas, adopting the report and recommendations of the
Honorable Bobby E. Shepherd, United States Magistrate Judge for the Western
District of Arkansas.
arguments below, and further argues that the district court should have construed his
complaint as an application for a writ of habeas corpus. Following de novo review,
we conclude that the district court did not err in dismissing Barfield’s claims. The
court also did not err in refusing to construe Barfield’s complaint as a habeas petition
under 28 U.S.C. § 2254, as Barfield already had filed an unsuccessful § 2254 petition,
see Gary Barfield v. Larry Norris, No. 01-1287 (8th Cir. Mar. 5, 2001), and did not
obtain permission from this court to file a second petition, see 28 U.S.C.
§ 2244(b)(3)(A).

      Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
We also deny Barfield’s pending motion.

      A true copy.

             Attest:

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




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