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Larry GRIFFIN, Appellant, v. Paul DELO, Appellee.

No. 90-2377.

United States Court of Appeals, Eighth Circuit.

Submitted June 13, 1991.

Decided Feb. 24, 1994.

Counsel who represents the appellant is Kent E. Gipson of Kansas City, Missouri.

Counsel who represent the appellee are Stephen David Hawke and Frank A. Jung, Assistant Attorneys General, Jefferson City, Missouri.

Before BEAM, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and URBOM,* Senior District Judge.

URBOM, Senior District Judge.

On April 14,1992, we remanded this federal habeas corpus action to the district court for further proceedings consistent with our opinion. 961 F.2d 793. We retained jurisdiction over the action and directed the district court to certify its final consideration of the matter. Upon remand, the petitioner filed a second amended petition and later filed a motion to amend to assert a claim based on newly discovered evidence of actual innocence. In July 1993, the district court dismissed the second amended petition with prejudice and granted petitioner leave to file a third amended petition to assert the claim of actual innocence. On September 16,1993, the district court granted the petitioner’s motion to file a fourth amended petition to assert a claim that his due process rights were violated by suggestive photo identification procedures employed by the St. Louis Police Department.

On October 25, 1993, the district court certified its final consideration of this habeas action and entered judgment denying the petitioner’s claim of actual innocence without prejudice and his due process claim with prejudice. Relying upon the Eighth Circuit opinion in Schlup v. Delo, No. 93-3272, slip op., 1993 WL 409815 (8th Cir. Oct. 15, 1993), the district court denied the third amended petition without addressing the evidence and merits of the actual innocence claim, although it was prepared to do so. On November 15, the Eighth Circuit vacated that opinion and issued a superseding opinion. Schlup v. Delo, 11 F.3d 738 (8th Cir.1993).

In light of the superseding opinion in Schlup we vacate the judgment of the district court entered on October 25,1993, and direct the district court to complete factual findings on the evidence and merits of petitioner’s claim of actual innocence within 60 days after the date of this order.

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