                          _________________________

                          Nos. 94-3402EA, 94-3403EA
                          _________________________


     _____________                     *
                                       *
     No. 94-3402EA                     *
     _____________                     *
                                       *
Paul Ruiz, *
                                       *
           Appellant,                  *
                                       *
     v.                                *
                                       *
                                       *
Larry Norris, Director,                *
Arkansas Department of                 *
Correction,                            *
                                       *   On Appeal from the United
           Appellee.                   *   States District Court
                                       *   for the Eastern District
                                       *   of Arkansas.
     _____________                     *
                                       *
     No. 94-3403EA                     *
     _____________                     *
                                       *
Earl Van Denton,                       *
                                       *
           Appellant,                  *
                                       *
     v.                                *
                                       *
                                       *
Larry Norris, Director,                *
Arkansas Department of                 *
Correction,                            *
                                       *
           Appellee.                   *

                                   ___________

                     Submitted:    September 14, 1995

                          Filed:   December 11, 1995
                                   ___________
Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and WOLLMAN, Circuit
      Judges.
                                ___________

RICHARD S. ARNOLD, Chief Judge.


        The habeas corpus petitions of Paul Ruiz and Earl Van Denton, both
of whom are under sentence of death, are once again before us.      Ruiz and
Denton have been convicted of capital murder and sentenced to die for the
killing of Marvin Ritchie, Town Marshal of the Town of Magazine, Arkansas,
and Opal James, an employee of the Corps of Engineers of the United States
Army.    The killings took place in 1977.    Ruiz and Denton have been tried
three times, and a brief account of the prior proceedings in these cases
is necessary to put in context the issues presented on the present appeal.


        The first trial took place in Logan County, Arkansas, and resulted
in the conviction of both defendants and the imposition of sentences of
death.    These first convictions occurred in 1978.    They were reversed by
the Supreme Court of Arkansas on the ground of error in denying a motion
for change of venue based on pervasive pretrial publicity.    Ruiz v. State,
265 Ark. 875, 582 S.W.2d 915 (1979).       After a change of venue to Conway
County, Arkansas, the appellants were again tried, convicted, and sentenced
to death.     After proceedings in the state courts, the nature of which is
summarized in prior opinions of this Court, we upheld the convictions but
set aside the sentence because one of the aggravating circumstances found
by the jury with respect to both appellants - that the murder was committed
for pecuniary gain - duplicated one of the elements of the underlying
capital felony murders, murder committed in the course of a robbery.    Ruiz
                                              1
v. Lockhart, 806 F.2d 158 (8th Cir. 1986).


          1
        In Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert.
denied, 474 U.S. 1013 (1985), we held that the aggravating
circumstance of murder for pecuniary gain was, by hypothesis,
duplicative of one of the elements of the offense of murder
committed in the course of a
robbery.   This aggravating factor, in the view of the Collins
court, thus failed to perform its function, essential under the
Eighth Amendment, of narrowing the class of murderers eligible for
the death penalty. Our later decision in Ruiz was based on the
authority of Collins. Later, in Perry v. Lockhart, 871 F.2d 1384

                                     -2-
     Thereafter, in response to our decision in Ruiz, the State of
Arkansas undertook proceedings to retry the question of the penalty to be
imposed on Ruiz and Denton.    This retrial again resulted in sentences of
death, which were affirmed by the Supreme Court of Arkansas.        Ruiz v.
State, 299 Ark. 144, 772 S.W.2d 297 (1989).       The petitions for habeas
corpus now before us on appeal followed.


     The District Court,2 for reasons given in a comprehensive opinion,
dismissed the petitions.    Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark.
1994).    Ruiz and Denton now appeal, raising a number of grounds for
attacking their sentences, as well as one ground of attack on the
underlying convictions.    Having considered all of the arguments with the
care appropriate to a case of this gravity, we now affirm.         We shall
discuss each of the grounds in turn.


                                     I.


     We begin with one of the six issues which Ruiz and Denton raise
jointly -- that the District Court abused its discretion by refusing to
hold an evidentiary hearing on their ineffective-assistance-of-counsel
claim.   According to the petitioners, the District Court rushed to judgment
on their ineffective-assistance




(8th Cir. 1989), we held that the intervening decision of the
Supreme Court of the United States in Lowenfield v. Phelps, 484
U.S. 231 (1988), had effectively overruled our decision in Collins.
Our decision in Ruiz, however, had long since become final and
required that Ruiz and Denton be given a new sentencing hearing,
notwithstanding the fact that Collins was no longer the law of this
Circuit.
     2
     The Hon. Garnett Thomas Eisele, United States District Judge
for the Eastern District of Arkansas.

                                    -3-
claim.   They argue that during the habeas process below, the Court
indicated that an evidentiary hearing would be held on this issue, and then
refused to hold the hearing.      They also argue that they were not given a
sufficient amount of time to develop the evidence necessary to demonstrate
ineffective assistance of counsel.


     Our review of the District Court's choice to decide the petitioners'
ineffective-assistance claim without a hearing is for abuse of discretion.
Nachtigall v. Class, 48 F.3d 1076, 1079 (8th Cir. 1995).         We give de novo
review, however, to the Court's holding that the petitioners' ineffective-
assistance claim lacked merit.    Sloan v. Delo, 54 F.3d 1371, 1383 (8th Cir.
1995).


     Generally, a district court should hold an evidentiary hearing "if
the facts are in dispute or if a fair evidentiary hearing was not conducted
in state court."     Ferguson v. Jones, 905 F.2d 211, 214 (1990).     This is not
true in all cases.     For example, an evidentiary hearing is unnecessary and
not required in cases "where the petitioner's allegations, even if true,
fail to state a claim upon which habeas relief can be granted."            Amos v.
State, 849 F.2d 1070, 1072 (8th Cir.), cert. denied, 488 U.S. 861 (1988).
We think that this is just such a case for the reasons discussed below.


     The petitioners cite an array of alleged trial errors attributed to
counsel, including:     (1) failure to persist in a request for a severance;
(2) failure to raise a Batson-like objection to co-counsel's use of
peremptory challenges to strike black jurors; (3) reliance on the same
psychologist to evaluate both petitioners; (4) failure to challenge the sua
sponte excusals of a large number of petit jurors; (5) failure to strike
juror Elmer Guinn;      (6) failure to present mitigation testimony at the
sentencing   stage    from   Ruiz's   family;   and   (7)   failure   to   present
psychological testimony at the sentencing stage.             The District Court
considered each of the alleged errors in its opinion and found them to be
without merit or procedurally barred:




                                       -4-
                    Petitioners have presented this Court with no
              specific examples of incidents at trial where trial
              counsel failed to exercise the customary skill and
              diligence that a competent attorney would have
              exercised under similar conditions.     Petitioners
              have presented this Court with no specific
              arguments    that,   but    for   trial   counsel's
              ineffectiveness, the outcome of their trial would
              have been different.


868   F.   Supp.   at   1557.   After   a   careful    review   of   the   record   and
consideration of each of the alleged trial errors, we agree with the
District Court's conclusion for the reasons so ably given in its opinion.


      We cannot agree with the petitioners' assertion that the District
Court rushed to judgment by dismissing their ineffective-assistance claim
without holding an evidentiary hearing.             A chronological sketch of the
habeas proceeding is helpful in putting the Court's August 22, 1994, order
dismissing the claim into perspective.            This petition for habeas relief,
the second for these petitioners, had been under consideration by the
District Court since its filing on August 17, 1989.         As amended, it raised
twenty-one points of error.         Three years of investigation, briefing, and
supplemental briefing followed.        On May 14, 1994, Ruiz's counsel from the
beginning was replaced by his current counsel, and additional investigation
and briefing followed.      The District Court set July 22, 1994, as the final
date for filing pleadings.      The petitioners filed no additional pleadings
setting forth evidence and legal arguments relating to their ineffective-
assistance claim.       App. 712.


      On August 3, 1994, the District Court filed an 87-page Memorandum
Opinion and Order dismissing the habeas petition and concluding that the
petitioners' claims of ineffective assistance were unsubstantiated and
conclusory.    868 F. Supp. at 1557.        The




                                         -5-
petitioners filed a Motion for Re-Hearing and requested an evidentiary
hearing on August 12.         App. 658.     The District Court then granted the
petitioners an opportunity to present their claims in appropriate form by
August 22, 1994.    In response to the Court's order, the petitioners filed
a pleading captioned "Statement of Fact Issues, Witnesses And Expected
Testimony Requiring An Evidentiary Hearing."           App. 694.      On the basis of
the supplemented record before it, the District Court concluded that the
petitioners "fail[ed] to allege factual issues which would require an
evidentiary hearing."     App. 721.        We agree.       The latest filing did not
contain a clear offer of proof on any factual issue material to the claim
of ineffective assistance of counsel.


     We have outlined the history of this habeas petition to underscore
the level of attention and patience afforded these petitioners by the
District Court.      We acknowledge that a potential conflict of interest
existed in that Mr. Cambiano had served as trial counsel and habeas counsel
for Ruiz, and that this conflict contributed to the petitioners' delay in
raising this claim.      But we are convinced that petitioners had ample
opportunity to suggest issues of fact going to the question of ineffective
assistance that would require an evidentiary hearing.                 This crime was
committed in 1977.    The present habeas petition was filed in 1989.              There
has hardly been a rush to judgment.


                                          II.


     Next,    we   consider    Ruiz's     and   Denton's    claim   that   one   of   the
aggravating circumstances presented to the jury duplicates an element of
the death-eligible homicides presented to the jury -- murder committed in
the course of a kidnapping, and murder committed in the course of a
robbery.     During the sentencing phase the jury was asked to consider
several aggravating circumstances, including that "the murder was committed
for the purpose of avoiding or preventing an arrest."            The petitioners now
claim that




                                          -6-
it was error for the court to submit this circumstance to the jury because
it duplicates an element of the underlying offenses of kidnapping3 and
robbery.4       They maintain that the statute as thus applied fails to perform
the constitutionally required narrowing function.                  See Zant v. Stephens,
462 U.S. 862 (1983).


      This        argument   is     simply    a   revised    version     of   the     argument
successfully        advanced   by    the     petitioners    in   their   preceding      habeas
petition, based on our holding in Collins v. Lockhart, 754 F.2d 258 (8th
Cir.), cert. denied, 474 U.S. 1013 (1985).                 See supra note 1.        Since that
time, the law has changed in response to the Supreme Court's holding in
Lowenfield v. Phelps, 484 U.S. 231 (1988).                 Today, Perry v. Lockhart, 871
F.2d 1384 (8th Cir.), cert. denied, 493 U.S. 959 (1989), which was
instructed by Lowenfield, is the law of this Circuit, see Lockhart v.
Fretwell, 113 S. Ct. 838, 843-44 (1993) (assuming but not holding that
Perry was correctly decided), and Perry controls this claim.                  See Fretwell,
113 S. Ct. at 844

       3
       The kidnapping instruction submitted to the jury read as
follows:

                      You are further instructed that the
                 Arkansas Statutes further provide that a
                 person commits the offense of kidnapping if
                 without consent, he restrains another person
                 so as to interfere substantially with his
                 liberty with the purpose of using such person
                 as a shield or hostage or to facilitate the
                 commission of any felony or flight thereafter.

App. 464-65.
            4
                The robbery instruction submitted to the jury read as
follows:

                      You are instructed that the Arkansas
                 Statutes provide that a person commits robbery
                 if with the purpose of committing a theft or
                 resisting apprehension immediately thereafter
                 he employs or threatens to immediately employ
                 physical force upon another.

App. 464.

                                               -7-
(discussing the retroactive application of Perry).         In Perry, we held that
Arkansas's capital-murder statute had sufficiently narrowed the "class of
death eligible murderers from all other murderers" by "defin[ing] a
specific group of crimes as capital murder eligible for the death penalty."
871 F.2d at 1393.      Thus, the fact that one or more of the aggravating
circumstances considered by the jury may duplicate an element of the
robbery or kidnapping homicides eligible for the death penalty, does not
render Arkansas's death-penalty scheme unconstitutional or violate the
petitioners' rights.


     The petitioners urge us to reconsider Perry.          We may not do so.     See
Snell v. Lockhart, 14 F.3d 1289, 1305 (8th Cir.), cert. denied, 115 S. Ct.
419 (1994).    This panel is "not at liberty to overrule the established law
of the circuit."     Ibid.


                                       III.


     Ruiz     and   Denton   also   allege    that   the   trial   court   committed
constitutional error at the guilt phase of their second trial by submitting
multiple theories of guilt to the jury without instructing the jurors that
they must reach a unanimous verdict on at least one of the various theories
advanced by the State.5      They


     5
      The jury was instructed as follows:

          Paul Ruiz and Earl Van Denton are charged with
          the offense of capital murder.      To sustain
          this charge, the State must prove the
          following things beyond a reasonable doubt:
          Count one, first. That Paul Ruiz and Earl Van
          Denton committed or attempted to commit the
          crimes of robbery or kidnapping or both. Two,
          that in the course of it and in fervor of that
          crime or crimes or an immediate flight
          therefrom Paul Ruiz and Earl Van Denton caused
          the death of Marvin Ritchie or Opal James
          under circumstances manifesting an extreme
          indifference to the value of human life or
          count two, first, that with the premeditated
and deliberate purpose of causing the death of any person, Paul
Ruiz and Earl Van Denton caused the death of Marvin Ritchie and

                                        -8-
maintain that the trial court's failure to give the unanimity instruction
is particularly egregious in this case because it involved two defendants,
multiple victims, multiple crimes, and the use of a general verdict form.
The District Court refused to grant relief, stating that the claim had not
been properly raised in




Opal James. Second, that those deaths were caused in the course of
the same criminal episode.

                                  . . .

           As a part of count one of the charge of
           capital murder, the State contends that the
           death of Marvin Ritchie and Opal James
           occurred during the commission or attempted
           commission   of   the  crimes   of   robbery,
           kidnapping, or both by Paul Ruiz and Earl Van
           Denton, or in immediate flight from the
           commission of either one or both of these
           crimes.

           To prove robbery, the State must prove beyond
           a reasonable doubt that, with the purpose of
           committing a theft, Paul Ruiz and Earl Van
           Denton employed or threatened to employ
           physical force upon another.

                                  . . .

           To prove kidnapping, the State must prove
           beyond a reasonable doubt first, that Paul
           Ruiz and Earl Van Denton did without consent
           of Marvin Ritchie, Opal James, and David
           Small, or any of them restrain all or any of
           them so as to interfere substantially with his
           liberty. And second, that Paul Ruiz and Earl
           Van Denton restrained Marvin Ritchie and Opal
           James and David Small or any of them with the
           purpose of A., using either of them as a
           shield or hostage; B., facilitating the
           commission of robbery or flight therefrom --
           thereafter; C., inflicting physical injury on
           any of them; D., terrorizing any of them.

App. 524-26.

                                   -9-
state court, and, in the alternative, that the claim had been raised in the
first    federal   habeas   proceeding,   rejected   at   the   trial   level,   and,
apparently, not pursued at the appellate level.           868 F. Supp. at 1504.


        Ruiz and Denton failed to raise this claim on the direct appeal from
their second trial, or during their state postconviction proceedings.
Thus, the claim is procedurally defaulted.           A district court need not
consider the merits of a procedurally defaulted claim.                  Dandridge v.
Lockhart, 36 F.3d 773, 774 (8th Cir. 1994), cert. denied, 115 S. Ct. 1257
(1995).


        In an effort to avoid the procedural bar, Ruiz and Denton contend
that the general-verdict/unanimity issue is in effect the equivalent of
their severance claim, which was advanced on direct appeal, in state
postconviction proceedings, and in their first habeas.           Even if we agreed
with Ruiz's and Denton's characterization of this issue, which we do not,
it would still fail as a successive claim.      The District Court considering
the petitioners' first habeas petition addressed the severance claim on the
merits and decided it against Ruiz and Denton.            Then, on appeal to this
Court, the argument was not raised.


        It is axiomatic that a district court may dismiss a successive habeas
petition "asserting identical grounds for relief raised and decided
adversely on the merits in an earlier petition."          Olds v. Armontrout, 919
F.2d 1331, 1332 (8th Cir. 1990), cert. denied, 500 U.S. 908 (1991).
Because the severance issue was raised in the petitioners' first habeas
petition and rejected by the District Court at that time, the District
Court did not abuse its discretion by dismissing the instant claim as
successive.


        It is true that a district court may hear a successive claim, without
a showing of cause and prejudice, "when required to do so by the `ends of
justice.'"    Schlup v. Delo, 115 S. Ct. 851, 863




                                      -10-
(1995) (quoting Sanders v. United States, 373 U.S. 1, 15 (1963)).   But the
"ends of justice" require review of procedurally barred, abusive, or
successive claims only in the narrowest type of case -- when a fundamental
miscarriage of justice would otherwise result.        Id. at 864; see also
McCleskey v. Zant, 499 U.S. 467, 495 (1991) ("the exception to cause for
fundamental miscarriages of justice gives meaningful content to the
otherwise unexplained `ends of justice' inquiry").      The miscarriage-of-
justice exception allows a successive claim to be heard if the petitioner
can "show that 'a constitutional violation has probably resulted in the
conviction of one who is actually innocent.'"     Schlup, 115 S. Ct. at 867
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).


     Ruiz and Denton do not assert that they are actually innocent of the
crime.   Instead they offer an explanation for their failure to advance this
claim, or something close to it, in the appeal of their first habeas
petition.    According to the petitioners, their post-conviction counsel did
not pursue this claim vigorously during the appeal of their first habeas
petition because other issues presented a greater likelihood of success,
and another claim, in fact, resulted in habeas relief.    They contend that
failure to pursue the instant claim at the appellate level should be
excused.


     We are not persuaded that Ruiz and Denton had no incentive to raise
this issue during consideration of their previous habeas petition before
this Court.    After considering Ruiz's and Denton's previous petition, we
initially granted relief from the conviction on the authority of Grigsby
v. Mabry, 758 F.2d 226 (8th Cir. 1985) (en banc), rev'd sub nom. Lockhart
v. McCree, 476 U.S. 162 (1986).    Ruiz v. Lockhart, 754 F.2d 254 (8th Cir.
1985).      The Supreme Court subsequently reversed Grigsby, Lockhart v.
McCree, supra, vacated our holding in Ruiz's and Denton's cases, and
remanded the cases for reconsideration in light of McCree.      Lockhart v.
Ruiz, 476 U.S. 1112 (1986).     Upon reconsideration we affirmed Ruiz's and
Denton's convictions, but reversed their sentences on the authority of our




                                    -11-
holding in Collins, supra.


        Ruiz and Denton were aware at the time of remand from the Supreme
Court    that   the   validity   of    their    convictions   was   once   again   being
considered, and that their reliance on Grigsby had been undermined by the
Supreme Court's decision in McCree.            They do not claim that a motion was
filed with this court for supplemental briefing on this unanimity claim,
and our records indicate that no such motion was made.                 See Pollard v.
Delo, 28 F.3d 887, 889 (8th Cir.) (recognizing that a critical part of
appellate counsel's job is the "`winnowing of the issues to eliminate a
sure loser.'" (quoting Horne v. Trickey, 895 F.2d 497, 500 (8th Cir.
1990))), cert. denied, 115 S. Ct. 518 (1994).            We believe that the remand
to this Court provided Ruiz and Denton with ample opportunity to request
supplemental briefing, and to present the issue they now advance.                  Thus,
the issue may not be considered on its merits now.                  We have considered
Denton's argument that his first habeas counsel was ineffective, but there
is no constitutional right to counsel on collateral review, and appointment
of counsel in death-penalty habeas cases was discretionary when the first
habeas petition was filed.         See Coleman v. Thompson, 501 U.S. 722 (1991)
(ineffectiveness of postconviction counsel cannot be "cause").


                                          IV.


        Ruiz and Denton raise several additional claims in this appeal.            They
argue that the resentencing verdict forms limited the jury's consideration
of mitigating evidence.        See Mills v. Maryland, 486 U.S. 367 (1988).          They
also argue that the District Court erred by refusing to hold an evidentiary
hearing    on the sua sponte dismissal, for failure to meet statutory
qualifications,       of   a   large   number    of   veniremen.       Finally,    Ruiz,
individually, argues that a severance should have been granted at the 1989
sentencing trial due to a Batson v. Kentucky, 476 U.S. 78 (1986),
violation.




                                          -12-
     The District Court addressed each of these arguments comprehensively.
We affirm and adopt the District Court's reasoning.


     The judgment is affirmed.


     A true copy.


           Attest:


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




                                  -13-
