Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.melvin Leroy Tyler, Appellant, v. James Purkett, Appellee, 26 F.3d 127 (8th Cir. 1994)

This is a petition for habeas corpus under 28 U.S.C. § 2254 filed by Melvin Leroy Tyler, a prisoner in the custody of the State of Missouri. Mr. Tyler is challenging the validity under the federal Constitution of his convictions on two counts of robbery in the first degree by means of a dangerous and deadly weapon and two counts of assault with intent to commit rape without malice aforethought.

This is not the first habeas petition filed by Mr. Tyler for the purpose of challenging these convictions. It is either the fifth or sixth such petition. The District Court,¹  acting on the recommendation of a United States Magistrate Judge,²  dismissed the petition on the ground of abuse of the writ. Mr. Tyler contends that he is actually innocent and is therefore not subject to an abuse-of-the-writ defense.

In fact, the issue of actual innocence was itself litigated in one of the previous habeas proceedings. The facts of the case were thoroughly discussed by the District Court at that time, and the Court held that no sufficient demonstration of innocence had been made. Tyler v. Armontrout, No. 88-1386-C(3) (E.D. Mo., order filed July 12, 1989) (Hungate, J., acting on the recommendation of Jackson, J.). This Court affirmed. Tyler v. Armontrout, 917 F.2d 1138 (8th Cir. 1990). In the present case, the District Court has again carefully considered Mr. Tyler's arguments of actual innocence, as well as certain other points contained in his petition. We have nothing to add to the thorough and well-reasoned Report and Recommendation filed by Judge Perry, and we affirm for the reasons given by her. See 8th Cir. R. 47B.

Affirmed.