46 F3d 1136 Race v. Stillwater Department of Correction
46 F.3d 1136
Larry Gene RACE, Appellant,
v.
STILLWATER DEPARTMENT OF CORRECTION, Appellee.
No. 94-2303.
United States Court of Appeals,
Eighth Circuit.
Submitted: Jan. 30, 1995.
Filed: Feb. 3, 1995.
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes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.
Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
Larry G. Race appeals the district court's1 denial of his 28 U.S.C. Sec. 2254 petition. We agree with the district court that Race has not raised an independent constitutional violation and, absent one, his claim of actual innocence based on newly discovered evidence cannot form the basis for habeas relief. See Herrera v. Collins, 113 S. Ct. 853, 860 (1993); see also Schlup v. Delo, 63 U.S.L.W. 4089 (U.S. Jan. 23, 1995). Therefore, we affirm without further discussion. See 8th Cir. R. 47B.
The Honorable David S. Doty, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Franklin L. Noel, United States Magistrate Judge for the District of Minnesota