                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3995
                                   ___________

Melvin Leroy Tyler,                    *
                                       *
            Appellant,                 *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
James Purkett, Superintendent at FCC; * Western District of Missouri.
Al Luebbers; Jeremiah (Jay) W. Nixon; *
Dave Dormire,                          *
                                       *
            Appellees.                 *
                                  ___________

                             Submitted: April 12, 2005
                                Filed: July 5, 2005
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN and BEAM, Circuit Judges.
                             ___________

WOLLMAN, Circuit Judge.

       Melvin Leroy Tyler appeals from the district court’s1 decision finding that no
testable physical evidence in his case currently exists and that the evidence was lost
under negligent or otherwise inadvertent circumstances. We affirm.




      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
                                             I.
                                             A.
       In 1977, Tyler was convicted of one count each of robbery in the first degree,
rape, kidnaping, and armed criminal action for a December 27, 1976, attack on a
housewife in Columbia, Missouri. After denying a motion for new trial, the state
court judge presiding at Tyler’s trial sentenced him to a total of 185 years’
imprisonment. Tyler promptly appealed, and his conviction was upheld by the
Missouri Court of Appeals. State v. Tyler, 587 S.W.2d 918 (Mo. Ct. App. 1979).
Tyler then filed his first petition for federal habeas corpus relief, which we dismissed
for failure to exhaust certain claims. Tyler v. Wyrick, 730 F.2d 1209 (8th Cir. 1984).

       In 1989, Tyler filed his first motion for state postconviction relief. Following
a lengthy evidentiary hearing, the state court denied Tyler’s motion, and its decision
was affirmed on appeal. Tyler v. State, 794 S.W.2d 252 (Mo. Ct. App. 1990). Tyler
subsequently filed two more motions for state postconviction relief, but both were
denied as untimely or successive. Tyler v. State, 941 S.W.2d 856 (Mo. Ct. App.
1997) (untimely); Tyler v. State, 994 S.W.2d 50 (Mo. Ct. App. 1999) (untimely and
successive).

      After failing to secure postconviction relief in Missouri state court, Tyler filed
a second petition for federal habeas corpus relief in 1990. The district court denied
Tyler’s petition, and we denied his subsequent motion for a certificate of probable
cause. Tyler v. Purkett, No. 93-2757 (8th Cir. Sept. 7, 1993), cert. denied, 511 U.S.
1008 (1993).2 Tyler next filed a third petition in federal court, which was again




      2
        Tyler later made a Fed. R. Civ. P. 60(b) motion to vacate the district court’s
denial of his second petition. The district court denied the motion. We declined to
grant a certificate of probable cause and dismissed Tyler’s appeal. Tyler v. Purkett,
No. 96-1016 (8th Cir. Jan. 18, 1996), cert. denied, 522 U.S. 1031 (1997).

                                          -2-
denied by the district court.3 We denied Tyler’s motion for a certificate of
appealability. Tyler v. Purkett, No. 97-1327 (8th Cir. Mar. 17, 1997).

        In 1998, Tyler sought to reopen both his 1990 (second) and 1994 (third)
petitions by making another Fed. R. Civ. P. 60(b) motion to the district court. In
substance, the Rule 60(b) motion contended that various physical
evidence—including the victim’s undergarments and semen and hair samples taken
therefrom—was currently possessed by the State; that the State had misled and
defrauded both the Missouri state courts and the federal courts in representing that
it no longer had such evidence or that such evidence never existed; that such evidence
should be tested immediately in order to prove Tyler’s innocence; and that newly
discovered evidence existed mandating the reopening of his case. The district court
treated the motion as a second or successive habeas petition, and thus held that it
could not consider the motion absent authorization from this court. See, e.g., 28
U.S.C. § 2244(b)(3). The motion was therefore denied, as was Tyler’s subsequent
motion for reconsideration.
        On appeal, a panel of this court initially denied Tyler’s motion for a certificate
of appealability. After Tyler petitioned for rehearing, however, the en banc court
granted a certificate of appealability “on the question whether there exists evidence,
such as semen, hair, items of clothing, and related materials, that could be subjected
to DNA testing.” Tyler v. Purkett, No. 00-1432 (8th Cir. June 20, 2000). The en
banc court’s order further instructed the district court to conduct an evidentiary
hearing on Tyler’s argument that testable evidence existed, to order the evidence
tested if the district court found that such evidence did exist, and to enter findings
regarding the circumstances of the evidence’s destruction or loss if the district court
found that the evidence existed at one time but could no longer be found. Id.

      3
       Both Tyler’s second and third federal habeas petitions were adjudicated by the
Honorable Joseph E. Stevens, Jr., United States District Judge for the Western
District of Missouri. After Judge Stevens’s death, Tyler’s cases were transferred to
Judge Gaitan.

                                           -3-
       Following the evidentiary hearing, the district court ultimately found that the
evidence cited by Tyler (semen, hair, items of clothing, and related materials) no
longer existed and could not be found, and thus could not be subjected to DNA
testing. D. Ct. Order of September 5, 2003, at 6. The district court further found that,
although such evidence had existed at one time, the evidence was accidentally,
negligently, or otherwise unintentionally lost or destroyed at some time after Tyler’s
1977 trial but before his first state postconviction motion in 1989.4 Id. at 7.

                                            B.
       Tyler’s claims on appeal center on the fate of three items collected from the
victim of his crimes: her panties, pantaloons, and a piece of tissue paper taken from
the panties. It is undisputed that the items were collected from the victim shortly after
the commission of the crimes. Other items collected in connection with the Columbia
Police Department’s investigation included a pubic hair from the couch on which the
rape took place, a blood-covered shirt, and pubic hairs from both the victim and
Tyler. Additionally, Dr. William See, the victim’s gynecologist, collected a specimen
of fluid from the victim’s vagina, observed a number of active sperm when observing
the specimen under a microscope, and discarded the specimen.5

      4
       In addition, prior to his hearing in the district court, Tyler filed a motion for
DNA testing in Missouri state court. See Mo. Rev. Stat. § 547.035. After an
evidentiary hearing, the state court similarly found that the victim’s undergarments,
as well as any hair and semen samples, were lost between 1977 and 1989.
Furthermore, the state court found that the circumstances of the evidence’s loss did
not constitute bad faith resulting in a denial of due process. See Arizona v.
Youngblood, 488 U.S. 51, 57 (1988). The state court accordingly denied Tyler’s
motion, and the Missouri Court of Appeals affirmed. State v. Tyler, 142 S.W.3d 785
(Mo. Ct. App. 2004).
      5
       Tyler apparently does not dispute that the semen discarded by Dr. See no
longer exists or that the hair samples taken from himself, the victim’s couch, and the
victim were destroyed in a neutron activation test, the results of which were
inconclusive. See Tyler D. Ct. Exhibit A at items 6-8.

                                          -4-
       Prior to trial, Tyler and his appointed counsel each made a motion for
appointment of experts. Tyler’s counsel requested an order appointing an expert “to
analyze certain fingerprints and hair and blood samples taken and collected at the
scene” of the crime. Trial Tr. at 50-51. Tyler himself (acting pro se) requested that
experts be appointed “because of the fact that the State of Missouri [would] introduce
certain evidence of fingerprints, sperm, and possibly hair,” “because the failure of the
state to provide a neutron activation test on the sperm and hair” necessitated the
appointment of an expert to conduct such tests, and because “any traces of sperm,
hair, blood, etc., [could not] be used wherein defendant cannot show the same does
not belong to him.” Id. at 142-44. In denying both motions, the trial court found that
no evidence involving fingerprints, hair, blood, or seminal fluid existed, had been
collected, would be offered at trial, or was in the possession of anyone.6 Id. at 412.
The state prosecutor noted that Dr. See had found some seminal fluid during his
examination of the victim, but that it had not been collected. Id. Tyler later asserted
in his motion for new trial that the state had “failed to disclose the blood typing of the
sperm found on panties, tissue, and pantaloons” taken from the victim, id. at 1156,
but the trial court either refused to consider the issue—raised in a pro se amended
pleading—or rejected the argument without comment.

       On direct appeal, Tyler apparently did not argue that experts should have been
appointed for him or that the State had failed to disclose certain evidence or test
results. Instead, he argued that Dr. See’s testimony should not have been admitted
because Dr. See had not attempted to determine the blood type of the sperm’s source.
In his first motion for state postconviction relief, Tyler renewed this claim. In
addition, Tyler asserted that the State had failed to conduct the proper tests on the
semen found by Dr. See and had failed to disclose that testing had been done on the
victim’s clothing and the results of such tests. He further alleged that he was denied
due process through the erroneous denial of his motion to appoint experts. Shortly


      6
       The evidence in question was not offered at trial.

                                           -5-
after Tyler filed interrogatories in connection with his postconviction motion, the
State asserted that the evidence Tyler referenced—the victim’s panties and
pantaloons, as well as the tissue—could no longer be found and thus could no longer
be tested. Tyler subsequently argued that, as a result of the loss, he was entitled to
an immediate vacation of his sentence and a discharge from incarceration.

      Tyler’s postconviction arguments focused on a report compiled by Susan Land,
who in 1977 was a forensic chemist at the Missouri State Highway Patrol Laboratory.
The report, which Tyler utilized in his postconviction pleadings, showed that Land
had examined the items of clothing in question. The report stated that tests conducted
on the clothing had detected the presence of acid phosphatase—a component of
seminal fluid—on the panties, pantaloons, and tissue and had indicated the presence
of sperm on the panties. The report further showed that certain hairs had been
separated from the panties. Tyler claimed that the report clearly proved that the
evidence was, at the very least, available to be tested at the time of his trial.

       Although the state court agreed that the evidence had once been available, it
disagreed that the fact that the evidence was no longer available mandated Tyler’s
release. Specifically, the state court held that the circumstances surrounding the loss
of the evidence demonstrated a lack of intent to destroy or dispose of the evidence
and that Tyler had thus failed to show the requisite bad faith to make out a denial of
due process under Arizona v. Youngblood, 488 U.S. 51, 57 (1988). See Tyler Exhibit
F-4 at 766-67.

       In his subsequent second and third federal habeas petitions, Tyler again
asserted error in the denial of his motion for appointment of experts. In his federal
petitions, however, Tyler specifically attributed the error to the State’s failure to
disclose that Land had collected semen, hair, and phosphates from the victim’s
undergarments and that such evidence was available to test. After both petitions were
denied, Tyler brought the instant Rule 60(b) motion.

                                         -6-
                                          II.
       As an initial matter, we must determine the framework under which we will
consider Tyler’s claims on appeal. The Rule 60(b) motion on which we granted a
certificate of appealability arose from habeas petitions filed in 1990 and 1994.
Because the Rule 60(b) motion “sought ultimately to resurrect the denial” of Tyler’s
earlier habeas petitions by asserting new claims of error in his state conviction and
reasserting prior claims, however, it was properly construed as second or successive.7


      7
        In the district court, Tyler attempted to avoid the treatment of his Rule 60(b)
motion as a second or successive habeas petition in two ways. Neither is availing in
this case. First, Tyler claimed that the Ninth Circuit’s decision in Thompson v.
Calderon, 151 F.3d 918 (9th Cir. 1998), differentiates his motion from a second or
successive habeas petition. In Thompson, the Ninth Circuit stated in dicta that, “if
the State’s misconduct prevented the defendant from testing potentially exculpatory
evidence which might provide the information necessary to assert a factual predicate
for a successive petition, an independent Rule 60(b)(3) motion might be appropriate.”
Id. at 921 n.3 (emphasis added). We decline to utilize this dictum as a basis for
modifying our settled practice of construing Rule 60(b) motions to reopen habeas
cases as second or successive petitions when such motions “effectively or ultimately”
seek habeas relief. See United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir.
2005) (per curiam). Accord Gonzalez v. Crosby, No. 04-6432, slip op. at 13 (U.S.
June 23, 2005). Furthermore, it is notable that the Ninth Circuit opined that its
distinction was justified by the fact that, in such a case, an application for
authorization to file a successive habeas corpus petition would provide no relief
because a state might have an incentive to conceal evidence. Thompson, 151 F.3d
at 921 n.3. In this case, however, the State of Missouri has no such incentive because
it is undisputed that the evidence complained of was lost prior to Tyler’s second
habeas petition.

       Second, Tyler suggests that the State’s failure to disclose the existence of the
evidence tested by Land constituted fraud on both the state and federal courts
sufficient to bypass the procedural bar established by 28 U.S.C. § 2244. See
generally Fierro v. Johnson, 197 F.3d 147, 153-54 (5th Cir. 1999). Claims that a
party did not disclose to a court certain facts allegedly pertinent to the matter before
it, however, do not normally constitute fraud on the court. Id. at 154. Furthermore,

                                          -7-
Gonzalez v. Crosby, No. 04-6432, slip op. at 6, 7 n.4, 13 (U.S. June 23, 2005); United
States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (per curiam). Furthermore,
because the Rule 60(b) motion was filed after April 26, 1996—the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)—and because
Tyler’s prior petitions for habeas corpus relief were no longer pending on their merits
at the time that the motion was filed, the motion is subject to AEDPA’s strictures.
See, e.g., Woodford v. Garceau, 538 U.S. 202, 204, 206-07 (2003).

       When addressing habeas corpus petitions subject to AEDPA, we review the
district court’s findings of fact for clear error and its conclusions of law de novo.
Evans v. Luebbers, 371 F.3d 438, 441 (8th Cir. 2004). In addition, we accord a
presumption of correctness to state court determinations of factual issues. 28 U.S.C.
§ 2254(e). Furthermore, we may grant habeas relief with respect to a claim that was
adjudicated on the merits in a state court proceeding only if the state court decision
(1) was contrary to, or an unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States, or (2) was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. 28 U.S.C. § 2254(d); Ryan v. Clarke, 387 F.3d 785, 790-91 (8th
Cir. 2004), cert. denied, 73 U.S.L.W. 3694 (May 31, 2005).

                                          A.
      Tyler first argues that because the State cannot show exactly how or when the
disputed evidence was lost, and because the State allegedly failed to disclose the
existence of the evidence, the district court’s factual findings that the loss was
accidental, negligent, or otherwise unintentional were clearly erroneous. We
disagree.



for reasons stated below, we do not believe that the actions complained of in this case
are sufficiently egregious to establish the “corrupt conduct” required to avoid § 2244.
Id. at 155.

                                          -8-
        Pursuant to our 2000 order, the district court received live testimony and
deposition transcripts from a variety of individuals involved in the retention and
movement of evidence in this case, as well as various exhibits. Evidence routing slips
show that a bag containing the victim’s undergarments was originally taken to the
Missouri State Highway Patrol Laboratory on January 21, 1977. Tyler’s D. Ct.
Exhibit A at item 5. After examination by Land, the items were returned to the
Columbia Police Department on March 3, 1977, id. at item 21, and were forwarded
to the Boone County prosecutor’s office on March 16, 1977.8 Id. at item 1. Milt
Harper, the prosecutor in Tyler’s case, testified that trial evidence in a specific case
would normally stay in the prosecutor’s office until the appellate process was
complete, that he instructed his employees to be “very careful” in handling the
evidence in Tyler’s case, that his policy of directing employees not to destroy
evidence in Tyler’s case applied regardless of whether the evidence was actually
utilized at trial, and that the evidence in Tyler’s case was still in the prosecutor’s
office when he stepped down in 1978. Tyler D. Ct. Exhibit E at 28, 30, 47-52, 66.
Joe Moseley, who succeeded Harper and held the office until 1992, similarly testified
that the prosecutor’s office could not destroy evidence without a court order, that he
did not instruct anyone to destroy evidence, and that nobody on his staff would have
destroyed evidence. Tyler D. Ct. Exhibit D at 12, 16-17. Moseley further stated that
some of the evidence was moved out of the prosecutor’s office due to remodeling.
Id. at 13-14.

      In that regard, Ruby Marsden, an investigator with the Boone County
prosecutor’s office, testified that in 1980 she moved a box of evidence marked with
Tyler’s name and case number to the Columbia Police Department in anticipation of
a remodeling project at the prosecutor’s office. D. Ct. Hr’g Tr. at 8-10. Although she


      8
       The items listed as received by the prosecutor’s office included one
miscellaneous lot of underclothes and one hair sample. Tyler D. Ct. Exhibit A at item
1. This is consistent with the evidence listed in Land’s report. Id. at item 5.

                                          -9-
stated that she physically transferred the box to Lester Wright, the evidence
technician at the Columbia Police Department, id. at 11-14, no evidence routing
forms were signed by Wright or by any other employee of the Columbia Police
Department. Id. at 21-23. Wright testified that he remembered receiving a large
amount of evidence from the prosecutor’s office in 1980, but that he had no specific
recollection of receiving any evidence in Tyler’s case. Id. at 36-37. He further stated
that, to the best of his knowledge, he had never received instructions to destroy or
dispose of evidence he received from Marsden in 1980, including any evidence from
Tyler’s case. Id. at 37. Yvonne Dittmer, Wright’s successor until 1992, testified that
she had no recollection of the presence of evidence in Tyler’s case during her tenure
and that she would not have destroyed it without permission from the prosecutor’s
office. Id. at 49-51. Searches of both the prosecutor’s office and the Columbia Police
Department conducted since prior to 1989 have failed to uncover any of the evidence
that Tyler asserts exists. Id. at 5-8, 57-58.

       Although the discrepancy between Marsden’s records and her recollection may
signal the presence of negligence or lax record keeping, the testimony considered by
the district court contains no facts that even hint at the intentional destruction of the
disputed evidence in this case. Furthermore, we do not believe that Tyler’s allegation
regarding the state’s failure to disclose the disputed evidence has any bearing on the
issue of whether the evidence was intentionally lost or destroyed. Finally, the mere
fact that a set of fingerprints connected to the crime were analyzed in 1988, see id. at
77-78, sheds no light on the whereabouts of the specific evidence at issue here:
semen, hair, items of clothing, and related materials. Accordingly, the district court’s
factual findings are not clearly erroneous.

                                          B.
      Tyler next claims that the actions of the state in first failing to disclose the
existence of the disputed evidence and then “mysteriously” losing or destroying such
evidence constituted bad faith sufficient to deprive him of due process. The district

                                          -10-
court did not make specific conclusions of law on this issue (nor can it be faulted for
doing so, given the direction in our June 20, 2000, order to enter factual findings
only), but our review of the legal ramifications of the loss of the disputed evidence
flows from the terms of that order. Although Tyler does not identify a specific legal
framework for his argument, his claim is most properly viewed under the Supreme
Court’s decision in Arizona v. Youngblood. 488 U.S. at 57-58 (bad faith analysis is
appropriate where the Court considered “the failure of the State to preserve
evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant”).
Furthermore, because two Missouri state courts have previously considered the
Youngblood issue in this case and found an absence of bad faith, see Tyler Exhibit
F-4 at 766-67 (denial of first state postconviction motion), aff’d, 794 S.W.2d 252;
Appellee’s App. at 64-69 (denial of state motion for DNA testing), aff’d, 142 S.W.3d
785, we must give those decisions the deference mandated by AEDPA. See 28
U.S.C. § 2254(d).

      Considering the record and the legal arguments raised by Tyler, we do not
believe that the state courts’ findings of an absence of bad faith resulted in decisions
that were contrary to, or an unreasonable application of, clearly established federal
law. 28 U.S.C. § 2254(d)(1). Similarly, we do not believe that such decisions were
based upon unreasonable determinations of facts in light of the evidence before each
court. 28 U.S.C. § 2254(d)(2).

       Tyler contends that the State failed to disclose the existence of the disputed
evidence prior to his state postconviction motion. His contention is belied, however,
by numerous instances in the record. In a second supplemental motion for new trial,
filed in the trial court shortly after his conviction, Tyler claimed as error the State’s
failure to disclose the “blood typing of the sperm found on panties, tissue and
pantaloons taken from the alleged victim.” Trial Tr. at 1156. It is difficult to imagine
how Tyler could have known of the presence of sperm on any of the victim’s

                                          -11-
clothing, let alone used the specific names of the items of clothing identified in
Land’s report, see Tyler D. Ct. Exhibit A at item 5, if such information had not been
disclosed to him. In addition, Tyler repeatedly stated in his pro se pleadings in his
first state postconviction motion that the State had disclosed Land’s report, but had
not disclosed the results of her tests for semen and acid phosphatase or the manner
in which she conducted the tests.9 See Tyler Exhibit F-2 at 204-05 (while February
28, 1977, report of Land was tendered, State did not offer to test Tyler and did not
disclose whether secreter testing was done on seminal fluid sample from victim’s
undergarments), 220 (State did not disclose results of tests performed by State
Highway Patrol concerning, inter alia, sperm and acid phosphatase), 237 (State
disclosed that acid phosphatase was found on victim’s clothing, but did not disclose
the type and manner of test done), 314 (State made report of Susan Land available
following the February 28, 1977, finding that semen, phosphatase, and hair were
found, but did not make such items available for testing). Furthermore, Tyler’s
assisting counsel at the trial testified in Tyler’s first state postconviction motion that,
in his view, everything had been disclosed to Tyler prior to the commencement of the
trial. Tyler Exhibit E-2 at 216 (“I think we got everything there was to get”), 261
(assisting counsel examined some clothing of victim). Although Tyler may not have
received Land’s laboratory notes until some later date, such notes provided no
information that was not disclosed by the report. See Tyler D. Ct. Exhibit A at item
24.

        Given these facts, we believe that Tyler’s case is controlled by our recent
decision in Ferguson v. Roper, 400 F.3d 635 (8th Cir. 2005), in which we held that
Youngblood does not apply to claims that evidence was lost or destroyed after trial.
Id. at 638. Notably, we held in Ferguson that Youngblood is inapplicable even in the


      9
        Such a claim, even if made in the alternative in this case, would similarly be
insufficient to show bad faith because “the police do not have a constitutional duty
to perform any particular tests.” Youngblood, 488 U.S. at 59.

                                           -12-
face of an allegation that the prosecutor may not have disclosed the evidence prior to
trial. Id. If Youngblood is inapplicable in such a case, it is equally inapplicable in
a case—like Tyler’s—in which the existence of the evidence was disclosed prior to
trial. Although we find it puzzling that the State persisted in claiming that no samples
other than that discarded by Dr. See and those destroyed by neutron activation testing
had been “collected,” we do not believe that such conduct places this case outside of
Ferguson’s holding, especially in light of the fact that Tyler—who was, according to
the record, in possession of Land’s report—could have brought the report and its
findings to the attention of the trial court. Accordingly, we hold that Tyler’s
Youngblood claim is without merit.

                                             C.
       Tyler makes two additional arguments in favor of reversal. First, he contends
that the district court failed to follow the en banc court’s mandate by failing to order
the State to produce the results of tests conducted on the hairs recovered from the
victim’s undergarments. This claim fails, however, because there is no evidence in
the record tending to show that any tests were conducted on those hairs.

       Two groups of hairs were collected in the course of the police investigation.
The first group, consisting of hairs taken from the victim’s couch, the victim herself,
and Tyler, were consumed in neutron activation testing as stated ante, note 4. The
second group were separated from the victim’s undergarments by Land and placed
in a small box. D. Ct. Hr’g Tr. at 72. Neither Land nor anyone else at the Missouri
State Highway Patrol Laboratory tested the hairs, as the laboratory did not have the
capability to do such testing. Tyler D. Ct. Exhibit A at item 27. The hairs were then
transferred to the Columbia Police Department, and eventually to the Boone County
prosecutor’s office, where their trail ends. In short, there is no indication in the
record that the second group of hairs was tested.




                                         -13-
       Tyler’s second additional argument for reversal is that the district court should
have recused itself from conducting the evidentiary hearing. Specifically, he asserts
that because Judge Gaitan was a member of the Missouri Court of Appeals, Western
District, at the time that Tyler made a motion for rehearing or transfer (to the Supreme
Court of Missouri) of the appeal of his first state postconviction motion, Judge Gaitan
was not permitted to conduct the evidentiary hearing. Because Tyler did not make
a motion for recusal in the district court, his only argument is that Judge Gaitan
should have recused himself sua sponte.

       “Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
28 U.S.C. § 455(a). The test for disqualification or recusal is an objective one and
asks whether, from the perspective of “the average person on the street,” a reasonable
man knowing all of the circumstances “would harbor doubts about the judge’s
impartiality.” United States v. Poludniak, 657 F.2d 948, 954 (8th Cir. 1981) (citation
omitted). Missouri Supreme Court Rule 83.02 states that a case may be transferred
to the Supreme Court of Missouri by order of a majority of the participating judges
of the Missouri Court of Appeals on account of “the general interest or importance
of a question involved in the case or for the purpose of reexamining existing law.”
Even accepting Tyler’s submission that all judges then sitting on the Missouri Court
of Appeals, Western District, ruled on his motion, we do not believe that Judge
Gaitan’s vote on such a motion would lead a reasonable person to harbor doubts
about his impartiality because neither an opinion on the general interest or importance
of an issue in a given case nor an opinion as to whether then-existing Missouri law
should have been reexamined provides any basis to question a jurist’s impartiality as
to the merits of the case. Accordingly, we do not believe that even the “appearance
of impartiality” is threatened in this case, thus requiring disqualification or recusal.
Poludniak, 657 F.2d at 954. Accord Dyas v. Lockhart, 705 F.2d 993, 997-98 (8th Cir.
1983) (remanding to a different district judge where judge who rendered opinion had
participated in a state court ruling on the merits of a case).

                                         -14-
                                               III.
        Finally, we hold that the grounds for relief presented in Tyler’s pro se reply
brief in this action are not subject to review. Tyler claims that, based upon newly
discovered deposition testimony that Land could have tested the disputed evidence
at the time of his trial, he is entitled to relief on his claim that the prosecution violated
its duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose the existence of the
disputed evidence. Because such a claim was presented, at the very least, in his
second federal habeas petition, it must be dismissed. See 28 U.S.C. § 2244(b)(1) (“A
claim presented in a second or successive habeas corpus application under section
2254 that was presented in a prior application shall be dismissed.”). Furthermore,
even if Tyler’s Brady claim was not presented in a prior habeas petition, it must be
dismissed unless he shows that: (1) “the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence”; and (2) “the facts
underlying the claim, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found [him] guilty of the underlying
offense.”10 28 U.S.C. § 2244(b)(2)(B).

      Tyler’s claim is not cognizable on successive habeas review because, even
assuming that the evidence could have been tested, Tyler cannot show that no
reasonable factfinder would have found him guilty, for we simply do not know what
the results of such tests would have been. Even if correctly and successfully
conducted, the tests may have excluded Tyler as the assailant or completely
inculpated him. A resort to speculation regarding what, if anything, the tests would
have shown, however, does not meet the requisite standard for considering claims
presented in a successive habeas petition.


       10
       Tyler does not argue that his claim relies upon any new rule of constitutional
law. See 28 U.S.C. § 2244(b)(2)(A).

                                            -15-
       We affirm the findings entered by the district court pursuant to our June 20,
2000, order as not clearly erroneous. Furthermore, because there exists no basis upon
which to grant habeas relief, we fully and finally dismiss Tyler’s claims to the extent
that they present a habeas petition.11
                        ______________________________




      11
         We express our appreciation to Tyler’s appointed counsel for her zealous
efforts on her client’s behalf.

                                         -16-
