OpenJurist

982 F2d 525 Jensen v. K Delo

982 F.2d 525

Mitchell Allen JENSEN, Appellant,
v.
Paul K. DELO, Appellee.

No. 92-2516.

United States Court of Appeals,
Eighth Circuit.

Submitted: December 7, 1992.
Filed: December 15, 1992.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

Mitchell Allen Jensen appeals from the order of the district court1 dismissing his third 28 U.S.C. § 2254 petition for writ of habeas corpus. We affirm.

2

In 1982, Jensen filed his first federal habeas petition attacking his Missouri conviction for capital murder. Because Jensen had not exhausted his state remedies, the district court dismissed his petition without prejudice. Jensen v. Wyrick, No. 82-4116-CV-C-5 (W.D. Mo. Feb. 2, 1983). After exhausting his state remedies, Jensen filed his second federal habeas petition in which he raised three grounds for relief. The district court2 denied relief on the merits, Jensen v. Armontrout, No. 87-0348-CV-W-5-P (W.D. Mo. Apr. 12, 1989), and we affirmed. Jensen v. Armontrout, No. 89-1968 (8th Cir. Feb. 15, 1990).

3

Jensen then filed this petition, raising one new ground for relief and restating the three grounds he had raised in his second habeas petition. The district court denied relief, holding that the newly raised ground constituted abuse of the writ, and that the three previously raised grounds were successive.

4

On appeal, Jensen abandons the three successive claims. He argues that his failure to raise the new claim in his previous petitions should be excused because he was proceeding pro se.

5

We agree with the district court that Jensen's pro se status when he filed his previous habeas petitions does not excuse his abuse of the writ. See Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992)(requirement that habeas petitioner show cause for failing to raise claims in prior federal habeas petition not lessened by fact that petitioner filed initial petition pro se). Jensen does not allege he is actually innocent of the crime for which he was convicted. See Shaw v. Delo, 971 F.2d 181, 185 (8th Cir. 1992).

6

Accordingly, we affirm.

1

The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri

2

The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri