___________

                                 No. 96-2312
                                 ___________

William Beeman,                      *
                                     *
     Petitioner - Appellant,         *
                                     *    Appeal from the United States
     v.                              *    District Court for the
                                     *    Southern District of Iowa.
State of Iowa,                       *
                                     *
     Respondent - Appellee.          *


                                 ___________

                    Submitted:   December 10, 1996

                        Filed:   March 6, 1997
                                 ___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

                                 ___________

JOHN R. GIBSON, Circuit Judge.


     William Beeman appeals from the district court's1 denial of his
petition for writ of habeas corpus.      Beeman sought relief from his 1980
conviction for first-degree murder in connection with the killing of
Michiel Winkel.    He makes three claims of ineffective assistance of
counsel.   We affirm the judgment of the district court.


     The body of Michiel Winkel was found at Wild Cat Den State Park in
Muscatine County, Iowa on April 26, 1980.      Winkel had been




      1
      The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
kicked in the head and stabbed to death.       Her body was unclothed, and
Winkel had been subjected to sexual intercourse either shortly before or
shortly after her death.    The medical evidence indicated the date of the
murder was most likely between April 17 and April 24, 1980.


     As part of their investigation, police interviewed people known to
have been in the area from which Winkel disappeared.       Police noticed a
discrepancy in the statement of Beeman and that of his girlfriend, and
called Beeman in for a second interview.   In that interview Beeman said the
policeman told him "that manslaughter was just spur of the moment, reflex-
type thing and manslaughter--or first degree was thought out over a period
of time and everything."   Beeman said the policeman "was acting like--well,
he said that if it was manslaughter, he was going--they could try to help
me; and they would help me all they could."    Beeman then admitted that he
was with Michiel Winkel on the evening of April 21, 1980.     He ultimately
signed a confession saying that he had taken Michiel Winkel to Wild Cat Den
State Park that night.     He said that after the two had been necking and
Winkel had removed her clothes, she refused to have sex with him and kicked
him in the groin.   The statement said:


     [A]s a reflex    I kicked her in the head above the right eye, I
     was wearing my   steel toed boots. She fell to the ground and I
     remember her     trying to get up, and I don't remember what
     happened next.   . . . I don't remember if I had sex with her or
     not. I had my    knife with me but I don't remember stabbing her.


     Beeman's counsel filed a belated motion to suppress the confession
on the ground that the police had coerced Beeman by leading him to believe
they would help him if he confessed.   The trial court overruled the motion
on the merits and because it was




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untimely.   Beeman's trial counsel later testified that the reason he did
not move to suppress the confession earlier was that:


           There was discussion of the defense being diminished
     capacity on the part of Mr. Beeman. Mr. Beeman's information
     to me all the way along until we got into September--this whole
     thing was like a dream, and he couldn't really remember what
     happened or what didn't happen. As the evidence started coming
     out in a certain manner and started to appear as if the
     diminished capacity defense was not really viable, Mr. Beeman
     started to indicate that he recalled more about the statement.



     Beeman's case was tried to a jury.       One of the trial exhibits was
Michiel Winkel's purse.   During deliberations, the jury sent a note to the
court asking if it was permissible to consider a deposit slip and bank book
the jurors had found inside the purse.      The slip and book memorialize a
deposit dated April 22, 1980 at 2:51 p.m. The April 22 date is significant
not just because Beeman's confession fixed the date of the murder at April
21, but also because Beeman had broken his foot the morning of April 22 and
could not have committed the murder after that.


     The trial court called counsel in and asked what to do about the
jury's note.   Counsel for the State asked to reopen the case to put on
evidence explaining that the bank documents were post-dated because it was
an afternoon transaction on April 21. In the alternative, the State
requested a mistrial, which Beeman's counsel opposed.   The court ultimately
decided to instruct the jury to disregard the bank slip and passbook.   The
jury found Beeman guilty of first degree murder.


     After the verdict, a man named Leslie Brown, who had once been a
suspect in the case, contacted the police and stated that he had spoken to
Michiel Winkel after April 21, 1980.      Beeman's counsel




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thereupon moved for a new trial, calling Leslie Brown as a witness.   At the
new trial hearing Brown first said that he had seen Winkel on April 22,
1980, but later said he was not sure of the date.    The trial court denied
the new trial motion on both substantive and timeliness grounds.


     Beeman appealed his conviction, and the Iowa Supreme Court affirmed.
State v. Beeman, 

(Iowa 1982).     He sought state collateral
relief, which was denied.    Beeman v. Nix, No. C2884-783 (Iowa Dist. Ct.
Dec. 26, 1984).


     Beeman filed for habeas relief in the federal district court,
alleging that he had received ineffective assistance of counsel in three
particulars:   first, that his counsel failed to file the new trial motion
in time; second, that his counsel failed to seek a mistrial to permit the
presentation of the bank slip and passbook as evidence; and third, that his
counsel failed to call him as a witness at the suppression hearing and
failed to file a timely suppression motion.


     The State answered that Beeman had committed procedural default
barring review of the first two issues.   In response, Beeman admitted that
those two issues were not raised in his appeal of the state post-conviction
proceeding.    Beeman's brief stated:   "In reviewing recent Eighth Circuit
and U. S. Supreme Court cases, it appears that Petitioner's claims may not
have been procedurally preserved as completely as the current state of the
law requires, barring applicability of an exception to the doctrine of
procedural default."   Beeman argued that he had established the fundamental
fairness exception to the procedural default rule by showing factual
innocence in accord with Schlup v. Delo, 

, 741, 743 (8th Cir.
1993), rev'd, 

(1995).




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     The district court considered and rejected Beeman's actual innocence
claim, concluding that the evidence he offered did not reach the required
level.   Beeman relied on the bank slip dated April 22, as well as the
testimony of Leslie Brown at the new trial and another witness, Darlene
Sandven, who claimed at trial to have seen Winkel on April 22.     The court
considered the date on the bank slip in conjunction with testimony in a
deposition taken in the case, which "explained that the transaction
occurred at a branch office of the bank at approximately 3:00 p.m. on April
21, 1980.     The timing of the transaction caused the bank slip to be
postdated to April 22, 1980."    As for the testimony of Leslie Brown and
Darlene Sandven, the court stated that Sandven testified at trial
that she thought she had seen Winkel on April 22.        The court stated
that "Brown's testimony did nothing to bolster Sandven's claim that
she saw the victim on April 22, 1980."             Therefore, the court
determined that the evidence, taken as a whole, did not meet the
standard for showing Beeman was actually innocent so that the court
should excuse his procedural defaults.


     The parties agreed that the claim of ineffective assistance in
connection with the suppression motion was not procedurally barred.
Beeman claimed that his counsel was ineffective because he failed
to file the suppression motion in time.              The district court
examined this claim in light of Strickland v. Washington, 

, 687 (1984), which allows relief only if there was both
inadequate    representation    and    prejudice   resulting   from      that
inadequacy.      The   court   found   that   Beeman's   counsel   was    not
ineffective in filing the suppression motion late, but rather that
Beeman himself caused the tardiness by failing to inform his
counsel of the facts that supported the motion to suppress.              "The
court finds trial counsel promptly filed the motion to suppress
when he learned information from petitioner that would support the
motion."    Nor was Beeman prejudiced by the late filing, since the




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state trial court considered the merits of the motion despite its
tardiness.


     Beeman also claimed that his counsel was ineffective because
he failed to call Beeman as a witness in the suppression hearing.
The district court found that counsel testified credibly that the
decision not to call Beeman was a matter of strategy.              Moreover,
the district court examined Beeman's testimony at trial concerning
the circumstances of his confession.        The court held that Beeman's
trial testimony did not contradict the accounts the police gave of
the confession, and that there was no showing that Beeman was
prejudiced by his counsel's decision not to call him as a witness
at the suppression hearing.


                                      I.


     Beeman argues that the new evidence of the bank slip and
passbook,    together    with   the   testimony   of   Leslie   Brown,   is   a
sufficient showing of actual innocence to excuse his procedural
default.     The district court correctly articulated the proper
standard, requiring Beeman to show that in light of the newly
available evidence, together with the evidence produced at trial,
see Schlup v. Delo, 

, 867 (1995), "it is more likely
than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt," had the new evidence been
produced at trial.      

not quarrel with the district
court's standard, but argues that the district court erred in
concluding that the facts in his case did not meet the Schlup
standard.


     We review de novo the district court's application of the
Schlup standard to the facts of this case.             See O'Dell v.


                                      -6-
Netherland, 

, 1250 (4th Cir.) (en banc), cert. granted
on other grounds, 

(1996).     The testimony of Leslie
Brown would have added very little to Beeman's case at trial, since
Brown said he was uncertain whether the date on which he had seen
Winkel was Tuesday, April 22, or perhaps April 17.       The bank slip
and passbook are, in themselves, more troubling.         However, the
State offered the explanation that the banking documents were
postdated because they reflected transactions effected after 2:00
p.m.   The district court accepted this explanation.    Beeman has the
burden of establishing actual innocence, 

,
yet he offers no evidence casting doubt on the State's explanation
for the April 22 date on the bank documents.           Accordingly, we
conclude that Beeman has failed to show that "it is more likely
than not that no reasonable juror would have convicted him in the
light of the new evidence."     

Beeman argues that he did not commit procedural
default on his claims for ineffective assistance in connection with
the new trial motion and the failure to move for a mistrial.
Beeman's brief in the district court appears to concede that he
committed procedural default.     At any rate, Beeman's brief before
this court does not contend that he raised his current ineffective
assistance of counsel claims in the state courts.       He only claims
to have raised the issues of whether the trial court should have
instructed the jury to disregard the bank documents and whether the
State failed to disclose exculpatory evidence.    These questions are
significantly different, both factually and legally, from the
ineffective assistance of counsel claims Beeman now raises.        See
Duncan v. Henry, 

, 887-88 (1995).   The district court
did not err in holding these issues were precluded by procedural


                                  -7-
default.


                                III.


     Beeman renews his claim that his counsel was ineffective in
failing to move to suppress his confession in a timely manner and
in failing to call Beeman as a witness at the suppression hearing.
The district court found that the lateness of the motion was not
counsel's fault, but rather that counsel moved to suppress as soon
as he learned of Beeman's allegations.   Therefore, Beeman's counsel
was not ineffective.     Beeman has not shown that the district
court's finding was clearly erroneous.


     Counsel's decision not to call Beeman to testify at the
suppression hearing did not result in prejudice, since Beeman's
testimony at trial did not establish any coercion by the police.
See Colorado v. Connelly, 

, 167 (1986).       Beeman's
assertions about what the police said and did were equivocal--in
one passage Beeman says the policeman said if the crime were
manslaughter, "they could try to help me" (emphasis added), and in
the next phrase Beeman says "they would help me all they could,"
(emphasis added).   But even taking Beeman's strongest formulation,
the alleged representation contained no specifics about what help
was being offered and was phrased as an inchoate possibility.    It
was simply not enough to justify suppression of the confession.


     We affirm the district court's dismissal of Beeman's petition.




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A true copy.


     Attest:


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




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