Bruce Kilgore, Petitioner, v. Michael Bowersox, Respondent, 181 F.3d 895 (8th Cir. 1999)

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U.S. Court of Appeals for the Eighth Circuit - 181 F.3d 895 (8th Cir. 1999) Submitted: June 15, 1999Filed: June 15, 1999

On Application for Leave to File a Successive Petition for Writ of Habeas Corpus.

Before Wollman, Chief Judge, and Richard S. Arnold and Hansen, Circuit Judges.


This is an application for leave to file a successive petition for writ of habeas corpus. The application is denied.

Petitioner must meet the standards of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. §2244(b). AEDPA applies to this application. It is not relevant that petitioner's first habeas petition, see Kilgore v. Bowersox, 124 F.3d 985 (8th Cir. 1997), cert. denied, 118 S. Ct. 2352 (1998), was initially filed in the District Court before the enactment of AEDPA. The relevant date is the date of the filing of this application, which of course is after the enactment of AEDPA. Nor are the new statute's restrictions on successive petitions unconstitutional. See Felker v. Turpin, 116 S. Ct. 2333 (1996).

Petitioner's application does not meet the standards of the statute. Most of his arguments, e. g., his attack on the "verdict-director" jury instruction, have been considered and rejected before. (We have, nonetheless, in order to satisfy ourselves, considered the argument anew. It is without merit. The Missouri cases petitioner cites do not, in our view, disapprove the instruction.) The other arguments are abusive, in the sense that they have not been made before. We may not consider them, because they do not meet the demanding requirements of 28 U.S.C. §2244(b) (2).

Application denied. The motion for stay of execution is denied.

It is so ordered