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No. 95-3986 No. 95-3987 ___________

Robert Earl O'Neal, II, * * Appellant, * Appeal from the United States * District Court for the Eastern v. * District of Missouri. * Michael Bowersox, * [PUBLISHED] * Appellee. * ___________

Submitted: November 30, 1995

Filed: December 1, 1995 ___________

Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.

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PER CURIAM.

On November 29, 1995, the District Court1 denied O'Neal's second petition for a writ of habeas corpus. This is a death penalty case and execution is set for 12:01 a.m. on December 6, 1995. On November 30, 1995, the District Court granted O'Neal's application for a certificate of probable cause and his motion for a stay of execution pending disposition of his appeal, which we now have before us. The state appeals the stay order entered by the District Court.

O'Neal's present habeas petition presents only one ground for relief not raised in his first petition: an alleged Brady

1 The HONORABLE GEORGE F. GUNN, JR., United States District Judge for the Eastern District of Missouri. violation. The District Court thoroughly considered this claim and concluded that it constitutes an abuse of the writ because O'Neal has failed to show why he could not have obtained the factual basis of the claim prior to filing his first petition. The Court further concluded that even if O'Neal could show that his new claim was not an abuse of the writ, the claim in any event lacks merit because there is no reasonable probability that the result of O'Neal's criminal trial would have been different had the evidence been disclosed.

Having reviewed the materials that have been submitted to the Court by the parties, we are satisfied that the District Court ruled correctly in denying O'Neal's second habeas petition. The order of the District Court is affirmed on the basis of that court's well-reasoned opinion and the stay of execution is vacated.

A true copy.

Attest:

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

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