240 F.3d 738 (8th Cir. 2001)
Stanley D. Lingar, Petitioner,v.Al Luebbers, Respondent.
No. 01-1283.
UNITED STATES COURT OF APPEALS, FOR THE EIGHTH CIRCUIT.
February 2, 2001.

On Motion for Leave to File a Successive Habeas Corpus Petition, Application for Stay of Execution, and Motion for Appointment of Counsel.
Before WOLLMAN, Chief Judge, HEANEY and FAGG, Circuit Judges. HEANEY, Circuit Judge, concurring and writing separately.


1
Prior report: 726 S.W.2d 728.

JUDGMENT

2
Having considered the motions and application filed on behalf of Stanley D. Lingar, the court makes the following rulings. (1) Lingar's motion to authorize the filing of a successive habeas corpus petition is denied. (2) Lingar's application for stay of execution pending application of his motion for leave to file a successive habeas corpus petition is denied. (3) Lingar's motion for appointment of counsel is granted.


3
It is so ordered.


4
HEANEY, Circuit Judge, concurring and writing separately.


5
I have serious doubts as to whether Stanley D. Lingar is entitled to the relief that he seeks in this motion. I continue to believe strongly, however, that Lingar's counsel was ineffective in telling the jury in the sentencing phase of    Lingar's trial that it could only consider statutory mitigating factors. As I stated previously in Lingar v. Bowersox, 176 F.3d 453, 462 (8th Cir. 1999) (Heaney, J., dissenting):


6
The jury could and should have been given the      opportunity [to] consider all mitigating factors,      including a history of sexual abuse, substance abuse,      and blackouts; a mental evaluation revealing borderline      mental retardation, acute paranoid and depressive      disorders; expression of remorse; and indications that      Lingar was a good candidate for rehabilitation. Lingar      was clearly prejudiced by his counsel's failure to      develop and present this evidence. There is no      reasonable probability that a jury advised of these      circumstances would have imposed the death sentence on      this 20-year-old, mentally retarded and mentally      disturbed young man.


7
It is my hope that the United States Supreme Court, who now has this case pending before it on a petition for certiorari, will consider the whole record and give Lingar the relief he seeks, but for the reasons stated in my dissent in Lingar.


8
The mandate shall issue forthwith.

