                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                    No. 99-1574
                                   _____________

Roy Roberts,                      *
                                  *
                Petitioner,       * On Motion for an Order
                                  * Authorizing a Second Petition
     v.                           * for Writ of Habeas Corpus.
                                  *
Michael Bowersox,                 *      [PUBLISHED]
                                  *
                Respondent.       *
                            _____________

                            Submitted: March 9, 1999
                                Filed: March 9, 1999
                                 _____________

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          _____________


PER CURIAM.

       Missouri inmate Roy Roberts is on death row for the capital murder of a prison
guard. After exhausting state-court remedies, Roberts filed a federal habeas petition
in March 1990. Roberts asserted, among other things, that his Sixth, Eighth, and
Fourteenth Amendment rights were violated by prosecutorial misconduct and by
ineffective assistance of counsel because his attorney did not object to the
prosecutor's characterizations of accomplice liability. The district court denied relief,
and we affirmed, see Roberts v. Bowersox, 137 F.3d 1062 (8th Cir. 1998),
cert.denied, 119 S. Ct. 808 (1999). With his planned execution just a few hours away,
Roberts has now filed a motion seeking our permission to file a second federal habeas
petition. See 28 U.S.C. § 2244(b)(3)(A) (Supp. II 1996).

       Roberts wants to raise a claim of actual innocence in a second federal habeas
proceeding. Roberts contends he cannot be executed consistent with the Eighth and
Fourteenth Amendments because he is an innocent man who was erroneously
convicted. See Herrera v. Collins, 506 U.S. 390 (1993). Roberts challenges the
reliability of trial testimony by eyewitnesses who said Roberts held the guard while
another man stabbed him. Roberts points out that the eyewitnesses did not describe
or mention Roberts in their initial statements to officials, and Roberts’s trial attorney
only cross-examined one of the eyewitnesses about this fact at trial. Roberts also says
no physical evidence ties him to the guard’s death, and Roberts passed a February
1999 polygraph test when denying his involvement in the murder.

       A court of appeals may authorize a second federal habeas application only if
the application makes a prima facie showing that the application satisfies the
requirements of 28 U.S.C. § 2244(b). See id. § 2244(b)(3)(C). According to § 2244
(b), “[a] claim presented in a second . . . habeas corpus application . . . that was
presented in a prior application shall be dismissed.” Id. § 2244(b)(1). Claims that
were not presented in an applicant’s first habeas petition must also be dismissed
unless the applicant makes one of two showings. First, leave to file a second habeas
petition may be granted if the applicant shows his new “claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” Id. § 2244(b)(2)(A). Second, an applicant
can obtain leave to file a second habeas petition if he shows “the factual predicate for
the [new] claim could not have been discovered previously through the exercise of
due diligence,” id. § 2244(b)(2)(B)(i), and “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



                                          -2-
factfinder would have found the applicant guilty of the underlying offense,” id. §
2244(b)(2)(B)(ii).

      Roberts’s application does not show it satisfies the requirements of 28 U.S.C.
§ 2244(b). To the extent Roberts’s application reasserts constitutional violations
already raised in his first habeas proceeding, § 2244(b)(1) prevents their
reconsideration in a second habeas action. Roberts argues this absolute bar is an
unconstitutional suspension of the writ of habeas corpus, and he disagrees with the
Eighth Circuit’s rejection of this argument in Denton v. Norris, 104 F.3d 166, 167
(8th Cir. 1997), and later cases. We cannot as a panel overturn other panels’
decisions, however. To the extent Roberts may not have raised his claim of actual
innocence before, he cannot satisfy the requirements of § 2244(b)(2), and does not
attempt to do so. Roberts does not rely on a new rule of constitutional law, and he
has not shown he could not have discovered the factual basis for the claim before
through the exercise of due diligence, or that the facts underlying the claim would be
enough to establish by clear and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found him guilty of capital murder.

      Because Roberts’s application for permission to file a second habeas petition
does not meet the requirements of § 2244(b), we deny his application. We also deny
his accompanying request to stay his execution “‘because there are no substantial
grounds on which relief might be granted by this court.’” McDonald v. Bowersox,
125 F.3d 1183, 1186 (8th Cir. 1997) (quoting Wainwright v. Norris, 121 F.3d 339,
341 (8th Cir. 1997)).

      A true copy.

             Attest:

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

                                          -3-
