Robert Earl O'NEAL, II, Appellant, v. Michael BOWERSOX, Appellee, 73 F.3d 169

PER CURIAM. On November 29,1995, the District Court 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 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. AMENDED ORDER Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS S. ARNOLD and MURPHY, Circuit Judges. Appellant O’Neal’s petition for rehearing by panel is denied. Appellant O’Neal’s suggestion for rehearing en banc is also denied.

Appellant O’Neal’s motion for stay of execution of a sentence of death is denied. IT IS SO ORDERED. RICHARD S. ARNOLD, C.J., and McMILLIAN, J., would grant the suggestion for rehearing and would grant a stay of execution. RICHARD S. ARNOLD, C.J. separately dissents, with which McMILLIAN, J., joins. LOKEN, J., took no

part in the vote on the suggestion for rehearing en banc and the motion for stay of execution. . The HONORABLE GEORGE F. GUNN, JR., United States District Judge for the Eastern District of Missouri.