Full opinion text
JOHN R. GIBSON, Circuit Judge. James Dean Walker, convicted of murder arising out of an incident in 1963, again files a petition for habeas corpus. The district court denied the writ, hearing evidence on only a portion of Walker’s claims and refusing to hear additional evidence on claims earlier asserted. Walker contends that, under the guidelines established in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068,10 L.Ed.2d 148 (1963), for successive habeas petitions, the district court erred in denying reconsideration of his claim of bias of the state trial judge. We affirm the orders of the district court denying the writ of habeas corpus. On the night of April 15, 1963, defendant Walker and a companion, Russell Freeman Kumpe, were in the company of Mary Louise Roberts and Linda Ford at the South Main Business Men’s Club.. Following an altercation in which another patron was accidentally shot, Walker and Kumpe fled the scene as did the two women. Ford accompanied the two men in their Oldsmobile, while Roberts followed in a cab. Alderman, the cab driver, upon inquiry of Roberts, verified that the men were involved in the shooting at the club. He notified his dispatcher who instructed him to follow the Oldsmobile until the police arrived. Alderman, however, was unable to keep pace with the Oldsmobile as it proceeded into North Little Rock, Arkansas, but another cab driven by Thomas Short took up the pursuit with the Alderman cab continuing to follow. North Little Rock, Arkansas Police Officers Barentine and Vaughan were ordered to give pursuit, which they did in separate cars. Officer Barentine overtook and stopped the Oldsmobile, and parked his car behind it. Officer Vaughan arrived immediately thereafter and parked his car more in the center of the road. The cabs driven by Short and Alderman arrived, parking on the opposite side of the highway. Officer Barentine stepped to the front of his police car and ordered Kumpe to get out of the car and come back to his police car, and then proceeded to search him. Officer Vaughan approached the Oldsmobile on the passenger side of the car. There was an exchange of gunfire, as a result of which Walker was shot five times and Officer Vaughan was shot one time. Linda Ford was seated in the middle of the front seat next to Walker, who was sitting by the right door. Ford later testified that Walker fired the first shot. She heard the gunshot and could see the Vaughan gun when it fired. Officer Vaughan was found lying near the front door of the Oldsmobile, and died within a short time before he could make a statement. Walker was also found lying outside the Oldsmobile, holding a fully loaded snub-nosed pistol in his hand. Underneath him or right beside him was a second gun, a .38 caliber Smith & Wesson, which was later identified by ballistics experts as being the gun from which the bullet was fired that caused Officer Vaughan’s death. In the first trial, Walker was convicted of first degree murder and was sentenced to death. This conviction was reversed by the Supreme Court of Arkansas, and the case remanded for new trial. Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965). Upon retrial, Walker was again convicted of first degree murder but was sentenced to life imprisonment. This conviction was affirmed by the Supreme Court of Arkansas. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966), cert, denied, 386 U.S. 682, 87 S.Ct. 1325, 18 L.Ed.2d 403 reh’g denied, 387 U.S. 926, 87 S.Ct. 2027, 18 L.Ed.2d 987 (1967). Walker filed apetition for habeas corpus, and a three-day hearing before the United States District Court resulted in dismissal of his, petition. Walker v. Bishop, 295 F.Supp. 767 (E.D.Ark.1967). He then appealed to this court, and a unanimous panel affirmed the judgment of the district court. Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969). Walker escaped from the penitentiary in Arkansas in 1975. Litigation concerning his extradition was finally determined by the United States Supreme Court. Walker then filed a second petition for writ of habeas corpus together with a civil rights claim based on 42 U.S.C. § 1983. On June 2, 1981, the district court entered a written order finding that four of the grounds in plaintiff’s petition were identical to those asserted in the earlier petition for writ of habeas corpus determined in 1967, and should not be relitigated. Walker v. Lockhart, 514 F.Supp. 1347, 1352 (E.D.Ark.1981). These were: (1) that the presiding judge in the murder trial was biased against plaintiff, (2) that there was official misconduct in the state court trial by the North Little Rock Police Department in allegedly withholding exculpatory evidence and witnesses from plaintiff, (3) that prejudicial pretrial publicity made a fair trial impossible, and (4) that the sum total of the claimed defects in the state trial were so serious as to violate his constitutional right to a fair trial. The court ruled that other issues not earlier presented should be further considered. It conducted a hearing on these new issues and denied Walker’s petition. In the order denying Walker the right to relitigate those grounds previously determined, the district court carefully considered the guidelines for successive applications set down in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). The court found that the same grounds presented in the application before it were previously determined adversely to petitioner on the prior application. The prior determination was on the merits, and there was no new evidence and no intervening change in the law which would “serve the ends of justice by reconsidering the merits of the plaintiffs subsequent habeas application.” Walker v. Lockhart, 514 F.Supp. at 1350-51. This appeal then followed, with arguments heard before a panel of this court. By order dated June 2, 1982, the case was referred to the court en banc for rehearing, and the parties were requested to rebrief the following issues: 1) What factors disclosed by the records in this case indicate that this court should or should' not consider a successive petition for habeas corpus by appellant Walker. 2) Have the constitutional violations alleged (including prejudice of the trial judge and suppression of evidence by police and prosecutors, or either of them, or other violations) grossly flawed or not flawed the guilt determination in this case. 3) If necessary, should this court remand the habeas corpus action to the district court fór a determination on the merits, of can this court properly rule on the merits of the habeas corpus petition in the present appeal. After argument, the first submission was vacated, and the ease was heard for a second time by the court en banc. Walker now argues, as he did before the district court, that there has been a change in the law, primarily from the Fifth Circuit’s decision in United States v. Brown, 539 F.2d 467 (5th Cir.1976) (per curiam). He contends that the district court should have considered the claim of bias of the trial judge arising from the tone of voice and courtroom demeanor, which essentially is a factual issue recognized in Brown. He further argues that the appearance of justice consideration articulated in Brown brought about an objective, as opposed to a subjective, review, of claims of trial court bias. He argues this is sufficient to authorize reconsidering the merits of his claim of bias. Walker also argues that the ends of justice would be served by reexamining the bias issue because he is innocent. He points to the weakness of the evidence giving rise to his conviction. He stresses various claims of suppressed evidence and conflicting evidence which admittedly were discussed in the decision of the Arkansas Supreme Court and the two decisions relating to the prior petition for habeas corpus. I. The Trial Court’s Asserted Bias A. Criteria for Considering Successive Habeas Petitions Res judicata does not apply to petitions for writ of habeas corpus. See Allen v. McCurry, 449 U.S. 90, 98 n. 12, 101 S.Ct. 411, 416 n. 12, 66 L.Ed.2d 308 (1980). The question of what consideration a federal court should give to a successive habeas petition was discussed by the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 15-19, 83 S.Ct. 1068, 1077-79, 10 L.Ed.2d 148 (1963). In Sanders the Supreme Court ■ established several guidelines for regulating successive applications on grounds previously heard and determined. These guidelines were summarized by the Court as follows: Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application. Sanders v. United States, 373 U.S. at 15, 83 S.Ct. at 1077 (footnote omitted). Following the Sanders decision, Congress enacted a new statute dealing with successive habeas petitions, 28 U.S.C. § 2244 (1976). Section 2244(b) applies to state prisoners. Similar provisions are contained in rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, which became effective February 1, 1977. The general effect of rule 9(b) and section 2244(b) is to codify the criteria outlined in Sanders. Although both rule 9(b) and section 2244(b) do not specifically refer to the “ends of justice” test, the parties here apparently agree that the test has been implicitly, incorporated. We assume, without deciding, the correctness of this position. B. Is the Claim of Bias the “Same Ground” Raised and Determined in the Prior Habeas Petition? With respect to the first consideration set forth in Sanders, we must' consider whether Walker’s claim of bias of the trial judge is the same ground as that presented in the earlier application. Walker argues that the tone of voice and demeanor of the trial judge were not considered by either the district court or this court in ruling upon the earlier habeas petition. Sanders states: By “ground,” we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different “ground” than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments ... or be couched in different language ... or vary in immaterial respects ____ Should doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant. Sanders v. United States, 373 U.S. at 16, 83 S.Ct. at 1077. So tested, Walker’s claim of bias of the trial judge in his present petition is the same “ground” as raised and determined in the prior application. The district court in the first habeas hearing considered whether the trial judge’s allegedly prejudicial remarks during the course of the trial and in the presence of the jury constituted a denial of due process. Walker v. Bishop, 295 F.Supp. at 773. On appeal this court carefully reviewed this claim and determined as follows: The Supreme Court of Arkansas, which we highly respect, concluded that the trial court acted properly and even generously towards Walker in the course of the second trial, and that the judge exhibited no personal bias or prejudice to the jury. That court, among other things, noted that defendant was given seven months to prepare for the second trial, that his motion to be placed in the county jail during that time for the convenience of his counsel was granted as was what the Arkansas court characterized as defendant’s “sweeping motion for production and private examination of all the tangible objects which were to be introduced by the State in evidence.” Walker v. Bishop, 408 F.2d at 1382. This court also specifically considered the statements made by the state trial judge some months before trial to a minister and two companions who sought his permission to take Walker to church for baptism. Although granting the request, the trial judge had warned the deputy sheriff to see that Walker was heavily guarded and to shoot him if he attempted to escape. [R. II, 83.] The trial judge also had said that he intended to “burn the S.O.B. anyway.” [R. II, 83.] In considering these statements, this court concluded as follows: [A]ny such innermost thoughts on the part of the judge constituted no cause for his disqualification. The judge said that he could give defendant a fair trial. The Supreme Court of Arkansas held that there was no showing of bias or prejudice and the defendant was accorded a fair trial. Chief Judge Henley, the United States district judge, made the same finding in the habeas proceeding, and our canvass of the entire record of the second trial in addition to the voluminous habeas record compels the same conclusion on our part. Walker v. Bishop, 408 F.2d at 1382. In asserting that the tone of voice and demeanor of the trial judge were not considered, Walker is simply making a different factual allegation to prove the identical ground of bias or prejudice of the trial judge. Although the decisions of the district court and of this court do not specifically refer to the tone of voice or demean- or of the trial judge, nor does the decision of the Supreme Court of Arkansas, Walker’s counsel at the second trial raised this objection out of the presence of the jury. [R. II, 294-95.] Walker’s counsel apparently did not follow up and further urge the error asserted in this objection. It is clear from the rulings of the Supreme Court of Arkansas, the district court, and this court that the entire record was carefully reviewed and that bias and prejudice were not found. Because the same ground was presented in the prior application and was determined on the merits, the district court properly refused to consider once again the claim of bias or prejudice of the trial judge. C. Will the “Ends of Justice” Be Served By Redetermining the Same Ground? The next question under Sanders is whether the “ends of justice” would be served by redetermining Walker’s claim of bias of the state trial judge. Sanders gives instruction as to the considerations to be weighed: Even if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground. If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a-full and fair evidentiary hearing recently in Townsend v. Sain, [372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ], and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is “the ends of justice” and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground. Sanders v. United States, 373 U.S. at 16-17, 83 S.Ct. at 1077-78 (emphasis in original). Walker does not contend that the evidentiary hearing on the first habeas corpus was not full and fair. Rather, Walker contends that the ends of justice test is satisfied because of an intervening change of law, or alternatively because of an insufficiency of evidence upon which to.rest his conviction. The first strand of Walker's ends of justice argument — an intervening change of law — is a consideration specifically enumerated in Sanders. The second strand of his argument — insufficiency of the evidence — is asserted under the catchall language in Sanders that the ends of justice “cannot be too finely particularized.” We consider each of these contentions in turn. Intervening Change of Law. Walker argues that the intervening change in the law regarding judicial bias springs primarily from United States v. Brown, 539 F.2d 467 (5th Cir.1976) (per curiam). In the habeas hearing in Brown, a lawyer reported that some time before Brown’s trial, at a state bar association meeting, the trial judge, while sitting around a swimming pool on motel grounds, said that he was going to preside at Brown’s trial and that he was “going to get that nigger.” Id. at 468. A different district judge, in the ha-beas hearing, concluded that the remark had been made and that it cast a serious shadow on the case as far as the appearance of justice was concerned. He reviewed the record,' however, and found that Brown had received a fair trial. The United States Court of Appeals for the Fifth Circuit reversed. The court observed that the record would not reflect the tone of voice of the judge, his facial expressions, or his unspoken attitudes and mannerisms, all of which might have affected the jury and its verdict. The court further observed the language of the United States Supreme Court in In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), that “justice must satisfy the appearance of justice.” From this Walker argues that the appearance of justice standard, which is objective in nature, is a change in the law satisfying the ends of justice consideration in Sanders. Walker’s further argument, that a review of the trial record under such circumstances is not required, is answered by the court’s conclusion in Brown: “The judge’s statement did not comport with the appearance of justice, and it cannot be said from the record alone that appellant received a fair trial.” 539 F.2d at 470. It is apparent that the record was reviewed in Brown. In our case we have a complete review of the trial record by the Supreme Court of Arkansas and by both the district court and this court in the earlier habeas petition, and affirmative conclusions by these courts that there was no showing of bias or prejudice or that defendant was denied a fair trial. The Brown court could not reach such a conclusion. We agree with the district court that Brown is “unique to its own set of facts” and that it involves a first rather than a successive application for writ of habeas corpus. Walker v. Lockhart, 514 F.Supp. at 1350-51. Walker argues that other decisions have adopted the appearance of justice standard as a new rule of law which is constitutionally recognized. The cases cited, Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), Johnson v. Mississippi, 403 U.S. 212, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971), Peters v. Kiff 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), and Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), deal with criminal contempt charges or jury selection procedures, and do not establish'an intervening change in the law as Walker argues. The appearance of justice as a consideration in both criminal contempt and other settings goes back at least as far as In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), in which the United States Supreme Court stated: A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness____ Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11. We do not read the Brown per curiam, or the contempt and jury selection cases on which it relies, as establishing an intervening change in the law as it relates to the claim of bias or prejudice of the trial judge. This court has cited Brown only once in United States v. Dean, 647 F.2d 779, 783 (8th Cir.1981), vacated, 667 F.2d 729 (8th Cir.) (en banc), cert, denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). The panel decision in Dean reversed because of juror bias, but this court en banc affirmed on a different ground and made no reference to Brown. Dean cannot be said to recognize Brown as an intervening change of law. Sufficiency of the Evidence. Walker alternatively argues that the ends of justice would be served by reexamining the bias issue, based on the weakness, or insufficiency, of the evidence giving rise to his conviction. Walker argues that sufficiency of the evidence falls within the Supreme Court’s broad definition in Sanders that the ends of justice “cannot be too finely particularized.” He launches upon an extensive factual argument, the essence of which is that because of various conflicts in the evidence and various claims of suppressed evidence, there is no factual basis to support the jury’s verdict. Although he does not specifically refer to the sufficiency of the evidence rule as established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in his briefs, his counsel stated at oral arguments that he would rely or stand on it. Sufficiency of the evidence was not raised in the original application for writ of habeas corpus considered by the district court in 1967 and by this court in 1969, nor was it raised in the second petition considered by the district court in 1981. Thus, we do not consider sufficiency of the evidence as a distinct ground raised by Walker. Nonetheless, we are persuaded to consider this argument because of the Supreme Court’s broad definition of the “ends of justice” in Sanders and because of appellant’s counsel’s enthusiastic adoption of sufficiency of the evidence as an additional ends of justice consideration. At least two further reasons support this action. Appellant unequivocally states that this court can properly rule on the habeas corpus petition on the record before us, which he says is adequate for this court to determine the questions of law. We also believe that finality of decision in this case further justifies our review of this argument. In evaluating the sufficiency of the evidence, we are satisfied that the only standard that we can use is that expressed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789 (emphasis in original); see, e.g., Gipson v. Lockhart, 692 F.2d 66, 68 (8th Cir,1982) (per curiam); Fowler v. Parratt, 682 F.2d 746, 751 (8th Cir.1982); Lenza v. Wyrick, 665 F.2d 804, 812 (8th Cir.1981). Walker and his counsel are convinced that there is no evidence to establish Walker’s guilt. The brief boldly states, “Certainly, there is nothing which would be called a fact which explains the jury verdict.” Walker’s argument, which is accepted by the dissent, is essentially based on considering all of the conflicting evidence and conclusions drawn most favorable to Walker. His argument totally ignores the following evidence: First, Linda Ford, the passenger in the middle seat of the Oldsmobile driven by Kumpe, testified that after she was pushed into the car Walker sat to her right with a gun on her. [R. II, 605.] When the car stopped at _ the scene, Ford saw Officer Vaughan approach the passenger side of the car and saw that Walker still had the pistol out. [R. II, 607-08.] When the door opened, Walker started firing. [R. II, 608.] She then heard several shots. [R. II, 608.] She knew that Walker had fired first because she could see the fire from Officer Vaughan's gun when he fired. [R. II, 609.] Second, Thomas Short, the cab driver who arrived on the scene almost contemporaneously with Officer Vaughan, saw Vaughan approach the passenger side of the Oldsmobile and bend over looking into the window to talk to someone. [R. II, 518; H. I, 293-94.] After a few seconds, the car door suddenly opened. [R. II, 518.] Officer Vaughan jumped backwards, pulling his gun as he did so. [R. II, 518; H. I, 295.] While Vaughan was dancing backwards, Short heard a shot and saw Vaughan’s feet fly out from under him. [R. II, 518.] Further shots rang out. [R. II, 519.] Altogether, Short heard one shot- and a pause and then four or five more shots fired in succession, “real rapid like.” [H. I, 295.] After the shooting was over, Short walked around and saw one of the police officers kick a gun out of Walker’s hand. [H. I, 298.] When Walker was turned over, Short saw another gun underneath him. [H. I, 299.] Finally, Captain Paul McDonald, a qualified ballistics expert, testified that the bullet removed from Officer Vaughan’s body matched the four-inch barrel .38 caliber Smith & Wesson, [R. II, 767], which was identified as the weapon found under Walker. Walker v. Bishop, 295 F.Supp. at 771. In making that determination, Captain McDonald examined two other revolvers. [R. II, 737-38.] One was a fully-loaded two-inch barrel .38 caliber Smith & Wesson, which was observed being kicked away from Walker after the shooting. 295 F.Supp. at 771. The other was a four-inch barrel Colt .38, which was found under the front seat of the Oldsmobile. Id. at 772. Because of the differences in class characteristics, it was readily ascertained that the bullet which killed Officer Vaughan did not come from the Colt .38. [R. II, 768.] A microscopic study of samples obtained from the two Smith & Wessons led to a positive identification that the fatal bullet came from the four-inch Smith & Wesson. [R. II, 768-69.] Captain McDonald testified that he had no doubt about the identification. [R. II, 769.] After viewing this evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. Walker points to a number of inconsistencies. He argues vigorously that “It is absolutely transparent that [he] could not have shot Vaughan after he sustained [five shots to his body]____ [N]o one at any time ... has ever suggested that the riddled and unconscious Walker could have shot Vaughan.” However, “[i]f Walker shot Vaughan, he had to do it before Vaughan shot him, but this means a man (Vaughan) who took a shot at the heart ... was able to ... fire five bullets into his assailant.” In asserting the “inherent improbability” of this theory, Walker relies principally on a statement in the autopsy report that “Death was presumably almost immediate.” [R. II, 734 (Defendant’s Exhibit “B”).] In doing so, however, Walker ignores the testimony of the pathologist who prepared that report. Dr. Davenport, the pathologist, testified that Officer Vaughan’s death was not instantaneous and that “immediate” meant to him “anything from a minute to a few minutes.” [R. II, 759, ] During that length of time, Officer Vaughan could have fired shots. [R. II, 760. ] Walker also argues that the only gun that he had was in his right hand fully loaded. He argues that when Vaughan first approached the car he held the gun in his hand above his head to show that he was submitting to the law. There is no evidence in the record that Walker ever placed his hands above his head. An offer of proof in this respect was rejected by the district court in the 1981 habeas hearing. [H. II, 311-12.] Walker in the second trial simply denied that he had shot Vaughan or that he had ever fired a shot at the scene of the shooting. [R. II, 854-55.] He did not testify to raising his hands above his head. He also gave no such testimony in the first habeas hearing. Other issues that Walker raises have been treated extensively in earlier opinions. These issues include: the sawed-off Baren-tine gun; the allegation that Barentine gave perjured testimony; the alleged suppression of the Alderman testimony; the failure to conduct a paraffin or fingerprint test on the weapon found under Walker; the unavailability of Linda Ford and Mary Roberts to testify at the second trial; the recantation of Mary Roberts’ testimony; and the report of defendant’s absent ballistics expert. In reviewing the record available to us, we conclude that the determinations made by the district court at the first habeas hearing, this court on appeal from its decision, and the decision of the Arkansas Supreme Court following the second conviction, were conclusions fully supported not only by the record before those courts but also by the record before us. This makes appropriate the comments of the district judge in the first habeas hearing that conflicts in the testimony were to be resolved by the jury: This case involved the death of a police officer in line of duty; witnesses in the case included fellow officers of the deceased; two prostitutes and one cab driver. The fatal events occupied only a few seconds at most and took place during hours of darkness; all of the survivors were obviously frightened and excited. In such a situation serious credibility problems inevitably arise____ The two juries which tried Walker were certainly aware that they were faced with problems of credibility. Both juries were satisfied beyond a reasonable doubt from all of the evidence that petitioner was guilty of first degree murder. The ultimate judgment in the case is not lightly to be set aside in a collateral proceeding such as this by a mere reiteration of arguments already addressed unsuccessfully to the jury or by a mere assertion that the State’s witnesses perjured themselves and that the State knew it. Walker v. Bishop, 295 F.Supp. at 776-77. We conclude, even considering these inconsistencies, some of which were not in evidence before the jury, that any rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560. Thus, the insufficiency of the evidence argument of Walker does not, under the ends of justice, justify reexamination of the issues raised again in the second habeas petition. D. Conclusion The district court in its June 2, 1981 order cites and relies on two decisions of other courts of appeals that have rejected successive applications for writ of habeas corpus. In United States ex rel. Townsend v. Twomey, 452 F.2d 350 (7th Cir.), cert, denied, 409 U.S. 854, 93 S.Ct. 190, 34 L.Ed.2d 98 (1972), the Seventh Circuit held that the district court abused its discretion in reconsidering grounds in a habeas application that were previously determined, stating that “[wjhile the writ should never be denied in the proper case, judicial economy dictates restrictive limitations on reruns.” Id. at 357. Similarly, the Second Circuit in United States ex rel. Schnitzler v. Follette, 406 F.2d 319 (2d Cir.), cert, denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969), held that the district court was bound to follow the court of appeals’ prior decision on a habeas corpus application, rendered upon a factual and legal background identical to that before the district court. Chief Judge Lumbard observed that federal habeas corpus jurisdiction over state prisoners is “a branch of criminal jurisprudence which is badly in need of some principles of finality.” Id. at 322. The tests of Sanders were applied in both Twomey and Follette as they were by the district court in this case. A final word from Sanders is appropriate: The principles governing ... denial of a hearing on a successive [habeas] application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power — and, if the ends of justice demand, the duty — to reach the merits____ We are confident that this power will be soundly applied. Sanders v. United States, 373 U.S. at 18-19, 83 S.Ct. at 1078-79. We conclude that the district court properly ruled that the several grounds should not be reconsidered, and properly refused to hear additional testimony on these grounds. This case presents a classic example of an effort to have a second consideration of issues once painstakingly decided. There is no reason to believe that what the district court decided in 1967 and what this court decided in 1969 can be decided better today. What we have is a persistent effort to present the same arguments in the hopes that at some point another judge or group of judges will consider the case in a more sympathetic light. In his concurring opinion in Jackson v. Virginia, 443 U.S. 307, 337 n. 12, 99 S.Ct. 2781, 2798 n. 12, 61 L.Ed.2d 560 (1979), Justice Stevens quotes at length from Professor Bator’s article, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 451 (1963), as follows: The presumption must be, it seems to me, that if a job can be well done once, it should not be done twice. If one set of institutions is as capable of performing the task at hand as another, we should not ask both to do it. The challenge really runs the other way: if a proceeding is held to determine the facts and law in a case, and the processes used in that proceeding are fitted to the task in a manner not inferior to those which would be used in a second proceeding, so that one cannot demonstrate that relitigation would not merely consist of repetition and second-guessing, why should not the first proceeding “count”? Why should we duplicate effort? After all, it is the very purpose of the first go-around to decide the case. Neither it nor any subsequent go-around can assure ultimate truth. If, then, the previous determination is to be ignored, we must have some reasoned institutional justification why this should be so. ... What seems so objectionable is second-guessing merely for the sake of second-guessing, in the service of the illusory notion that if we only try hard enough we will find the “truth.” There is every reason to reject Walker’s efforts to have the initial determination of the district court and of this court be second-guessed. As Justice Harlan once observed: Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community. Sanders v. United States, 373 U.S. at 24-25, 83 S.Ct. at 1081-82 (Harlan, J., with Clark, J., dissenting). Consideration of the ends of justice involves not only the interest of the accused in. justice but the interest of the public in justice. The incident that gave rise to Walker’s conviction occurred nearly twenty years ago. Retrial would in all likelihood be an impossibility. These considerations, as well as the Sanders analysis, support the refusal of the district court to retry the issues so carefully decided. II. Additional Grounds Asserted In its June 2, 1981 order, the district court granted an evidentiary hearing on the new or additional grounds asserted in Walker’s second petition for writ of habeas corpus. See Walker v. Lockhart, 514 F.Supp. at 1353. These were: (1) newly discovered evidence that would exonerate Walker; (2) a denial of due process because of an alleged inducement by state authorities not to apply for a writ of certiorari following this court’s ruling in 1969; and (3) a denial of effective assistance of counsel because of alleged intimidation of Walker’s counsel by the trial judge and by police officers and other officials. The district court heard evidence on only two of the three grounds since the claim of newly discovered evidence was candidly abandoned at the outset of the hearing. [H. II, 173-74.] The district court considered Walker’s due process claim and found it to be without merit. Although Walker’s counsel decided to abandon this claim following presentation of the evidence, the district court found there was no credible evidence in the record to report it. [H. II, 365, 499.] Finally, the district court ruled that Walker’s claim of ineffective assistance of counsel was unsustainable. At the habeas hearing Walker’s former counsel who had assisted in representing him at trial clearly testified that he was not intimidated. [H. II, 369, 500.] The district court found that Walker had received an excellent defense by two experienced attorneys, that there was no intimidation by the trial judge or by the North Little Rock Police Department, and that Walker’s defense had been praised in glowing terms by this court. [H. II, 499-500.] Walker does not seriously urge error in these findings. After carefully reviewing the record, we conclude that these findings of the trial court were not clearly erroneous. Fed.R.Civ.P. 52(a); see Weiland v. Parratt, 530 F.2d 1284, 1289 (8th Cir.), cert, denied, 429 U.S. 847, 97 S.Ct. 130, 50 L.Ed.2d 118 (1976). The orders of the district court denying the writ of habeas corpus are affirmed. . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas. . We note that the names of Officers Barentine and Vaughan have multiple spellings in prior opinions. The spellings that we adopt here are those that appear in the record of Walker’s second trial. . References to the récord of Walker’s second trial will be designated throughout this opinion as R. II, —; references to Walker’s first habeas corpus proceeding will be designated as H. I, -; references to Walker’s second habeas corpus proceeding will be designated as H. II, —. . The Honorable J. Smith Henley, then Chief Judge of the United States District Court for the Eastern District of Arkansas, and later a member of this court, conducted this hearing. . Following his escape, Walker remained at large until he was apprehended in California in 1979. In February 1980, the Governor of California honored a request that was made by the Governor of Arkansas for Walker’s arrest and rendition. Walker challenged the Governor's issuance of the warrant in both state and federal courts. He was unsuccessful until he reached the Supreme Court of California, which, on April 9, 1980, issued a writ of habeas corpus , directing the superior court to conduct hearings to determine if the penitentiary in which Arkansas sought to confine Walker was operating in conformance with the eighth amendment to the United States Constitution. Granting certiorari, the United States Supreme Court reversed and remanded. Pacileo v. Walker, 449 U.S. 86, 101 S.Ct. 308, 66 L.Ed.2d 304 (1980). In a per curiam decision, the Supreme Court held that once the Governor of California had issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. Id. at 88, 101 S.Ct. at 309. . Walker’s civil rights claim is severable in nature from his habeas claim and is the subject of separate disposition by the original panel. For administrative purposes, the court has designated Walker’s appeal from the denial of habeas relief as No. 81-1700 (habeas) and his appeal from the dismissal of his section 1983 claim as No. 81-1700 (civil rights). . Although Sanders involved a motion by a federal prisoner under 28 U.S.C. § 2255, rather than an application for habeas corpus, the Court could find no practical or logical basis for treating successive applications differently under ha-beas corpus than under the motion procedure. Sanders v. United States, 373 U.S. at 14, 83 S.Ct. at 1076. Thus, the guidelines established in Sanders are fully applicable to habeas applications by state prisoners. C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4267, at 684 (1978). . Section 2244(b) provides: When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ. . Rule 9(b) provides: A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the mérits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. . The effect of omitting reference to the "ends of justice” is unclear. See S.Rep. 1797, 89th Cong., 2d Sess., reprinted in 1966 U.S.Code Cong. & Ad.News 3663, 3664 (newly discovered evidence a consideration in applying section 2244(b); no reference to Sanders or “ends of justice”). Compare 28 U.S.C. § 2244(a) (1976) (statute, applicable to federal prisoners, incorporates “ends of justice”) with id. § 2244(b) (statute, applicable to state prisoners, omits "ends of justice"). See generally 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4267, at 691 (1978) (rule 9 does not require dismissal if ends of justice dictate new determination); R. Popper, Post-Conviction Remedies in a Nutshell 185 (1978) (rule 9 fails to go as far as Sanders). Despite the omission, substantial discretion remains in the federal courts. Section 2244(b) provides that a new application "need not be entertained." Further, the Advisory Committee Note to rule 9(b) states: “Sanders, 18 U.S.C. § 2244 [sic], and subdivision (b) make it clear that the court has discretion to entertain a successive application____ The bar set up by subdivision (b) is not one of rigid application, but rather is within the discretion of the courts on a case-by-case basis.” . Brown has been cited in at least fourteen courts of appeals decisions, none of which recognizes Brown as an intervening change, of law. . The district court in the first habeas proceeding observed as follows: The evidence produced at both trials was ample to justify the findings of both juries that Walker killed Vaughan willfully, maliciously, and with premeditation and deliberation, although the question of his guilt or innocence was for the jury, and the second jury might well have come to a different conclusion. Walker v. Bishop, 295 F.Supp. at 771. Whether this finding is a clear determination of sufficiency of the evidence that would bar reconsideration of this issue, we need not determine. Our analysis would be essentially the same as it is when we examine the evidence to determine whether the "ends of justice” test has been met, and our conclusion would be the same under whichever justification we used to approach the question. . Jackson v. Virginia overruled the "no-evidence” test of Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), which allowed relief only upon a showing that the state court conviction was totally devoid of evidentiary support. . Walker v. Bishop, 295 F.Supp. 767, 774 (E.D. Ark.1967). . Walker v. Bishop, 408 F.2d 1378, 1387-88 (8th Cir.1969); 295 F.Supp. at 777. . 408 F.2d at 1387; 295 F.Supp. at 777-80. The dissent finds prejudice in the alleged suppression of Alderman's testimony. In the first habeas corpus proceeding, however, the district court expressly found that the State was not guilty of suppression or nondisclosure as far as Alderman was concerned. 295 F.Supp. at 780. The district court was not able to conclude that Alderman had made a formal statement, and found that his testimony was at variance with that of all the other eyewitnesses who testified at trial. Id. at 779. Interestingly, the dissent stresses Alderman’s testimony that when the shooting began, Kumpe went under the Oldsmobile. The other witnesses. Short and Barentine, stated that Kumpe fled from the scene when the shooting commenced and ran into some bushes or a ditch some distance away. [R. II, 519-21, 660-61.] . 295 F.Supp. at 780. . 408 F.2d at 1384-87; 295 F.Supp. at 775-76; Walker v. State, 241 Ark. 663, 665-69, 408 S.W.2d 905, 918-20 (1966) (McFadden, J., with Bland, J., dissenting in part). The dissent finds prejudice in Judge Kirby’s refusal to grant a thirty-minute recess so that defense counsel could attempt to locate the two women. In the first habeas corpus proceeding,. the district court found that the State had subpoenas issued for both women well in advance of the second trial, that the State had made good faith and reasonable efforts to locate both women, and that the State had nothing to do with the fact that the women were not present at the second trial. 295 F.Supp. at 776. This court accepted these findings and observed that the defense had ample time to produce the witnesses if counsel knew of their whereabouts. 408 F.2d at 1385. It is evident that defense counsel, after informing the trial court that the women could be seen and found, had from December 1 to December 3, 1965 to obtain a subpoena for these witnesses but did not do so. 241 Ark. at 667, 408 S.W.2d at 919. . 241 Ark. at 669-70, 408 S.W.2d at 920-21. . 295 F.Supp. at 773-74; Walker v. State, 241 Ark. 300, 307-08, 408 S.W.2d 905, 910-11 (1966). The trial court had ordered the defendant’s ballistics report to be filed as part of the proceedings, but not to be admitted as evidence. In the first habeas corpus proceeding, Walker argued only that requiring him to furnish a copy of the report violated his privilege against self-incrimination. 295 F.Supp. at 774. The dissent now finds the exclusion of the report to be a "crucial ruling” that exemplifies Judge Kirby’s prejudice. We cannot find bias in this ruling. The unremarkable order to complete the record did not commit Judge Kirby to admitting the report into evidence. The report was no more than answers to a list of questions prepared by defense counsel that covered only selected areas of subject matter. The defense expert was asked about dissimilarities, but not similarities, in the individual characteristics of the bullets, and was not asked whether the “Walker gun” fired the fatal bullet. 295 F.Supp. at 774 n. 5. Moreover, Walker has not demonstrated, and we are unable to discover, any basis for admission of this report, which is clearly hearsay under Arkansas law. See New Empire Insurance Co. v. Taylor, 235 Ark. 758, 760, 763, 362 S.W.2d 4, 6, 8 (1962); Shearman Concrete Pipe Co. v. Wooldridge, 218 Ark. 16, 26, 234 S.W.2d 382, 388 (1950); Roberts v. Roberts, 216 Ark. 453, 459-60, 226 S.W.2d 579, 583-84 (1950). . Although the dissent discusses the first trial at some length, it is the second trial, not the first trial, that is at issue. If there were any inconsistencies in testimony between the first and second trials, particularly with respect to Officer Barentine, we are satisfied that these issues were thoroughly developed on cross-examination at the second trial. Further, we are in full agreement with the conclusions reached by Chief Judge Henley that there is nothing in the record to suggest that evidence was suppressed at the first trial. 295 F.Supp. at 775. The dissent so suggests, and overlooks Chief Judge Henley’s observations that the defense knew or was on notice that Vaughan had shot Walker and knew or should have known that supporting ballistics evidence was available. Id. Chief Judge Henley also observed that the defense on more than one occasion was on the verge of asking the simple question of whether Vaughan was doing any shooting, but did not. Id.
ARNOLD, Circuit Judge, concurring. I join the opinion of the Court in its entirety, and deem it appropriate to add a few words. The trial judge was prejudiced. We know this because of his own statements, which are of record. Ordinarily no further inquiry would be necessary. Nothing else would matter. If due process means anything, it means a trial before an unbiased judge and jury. That is why I made the statement at the oral argument, quoted by my Brother Bright, post, p. 1252, that “if I had been on this court when this case came up before, I would have voted to grant the writ.” In fact, of course, I was not on the Court 15 years ago, when the denial of the first habeas petition was unanimously affirmed. Only one judge who sat on the 1969 Walker panel is still an active Circuit Judge. Only three judges who are active Members of this Court today were on the Court then. The point is this: a judge who is today presented with a fresh issue is asked to solve a far different problem from a judge who is asked to repudiate the opinion of his own Court on the very question now before him. In the latter instance, the question is not simply, “Did James Dean Walker get a fair trial?,” but rather, “Did the United States Court of Appeals for the Eighth Circuit, when it held, on the fullest consideration and after an evidentiary hearing, that James Dean Walker got a fair trial, err so egregiously that the ends of justice require the same Court, 15 years later, to come to the opposite conclusion?” It is not a question, then, of simple agreement or disagreement with this Court’s prior position. (I suspect that, but for the fact that I have other work to do, I could leaf through any volume of the Federal Reporter and find at least one opinion of this Court with which I disagree.) Something more than mere disagreement must be shown to justify a successive habeas petition. What is that something more? Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), gives some examples, but none of them applies here. There is no new evidence, unrevealed at the time of the first habeas proceeding. There is no change in the law. There is of course no claim of taint in the first post-conviction proceeding. There is simply the claim that this Court in 1969 misapplied the law to the facts. I know of no case that grants a successive habeas petition in that situation. (United States v. Brown, 539 F.2d 467 (5th Cir.1976), relied on by the dissenting opinion, post, pp. 1258-59, was a first, not a successive, petition for post-conviction relief.) No doubt there may be such a case some day, but this one should not be it, for several reasons. First, I am not persuaded that the trial judge’s bias did Walker any actual harm that would not have occurred if the case had been tried by another judge. The judge did deny a short recess, desired by defense counsel to enable them to try to show that two witnesses “could be found nightly in Little Rock nightclubs,” post, p. 1256. But this incident occurred near the beginning of the State’s case. If in fact the availability of the witnesses Ford and Roberts could have been shown in such short order, would not defense counsel have gone out that very night, found witnesses who knew Ford and Roberts were in town, and presented them in chambers the next morning in support of a motion to strike or for a mistrial? If in fact Ford was available, and if her testimony in person would have differed from the transcript of the first trial, would counsel not have found her and demolished the prosecution by calling her as a defense witness? Perhaps not, but the likelihood is sufficiently great to persuade me that the denial of the 30-minute continuance was not in fact so crucial in the second trial as the dissenting opinion argues. As to the defense ballistics report, I simply have no fault to find with the trial judge’s ruling. It was hearsay and not admissible on any theory. The trial court’s order that the report be made “part of the record,” whatever it may mean, simply cannot reasonably be read as a stipulation by the prosecution that the report could be read to the jury. No prosecutor in his right mind would agree that an ex parte examination of an expert hired by the defense be admitted into evidence, at least without some substantial concession in return. Finally, I return to the dispositive standard, “the ends of justice.” Certainly justice to the petitioner is crucial in our system. But he is not the only party to the case. The State also has a right to fairness, and we have to consider as well the effect on the administration of justice as a whole of a decision to grant this successive application. Petitioner has, after all, been convicted by a jury, on evidence that meets the Jackson v. Virginia standard. He does not claim that the jury was biased. It would be difficult, if not impossible, for the State to retry him at this point. An error may be sufficiently grave to cause a reversal on direct appeal, or on the first habeas application, but not sufficiently grave, when weighed in the balance with all the other constituent elements of “justice,” to justify relief on a successive habeas application. In my view, that.is the category in which the error committed here fits. Accordingly, although there is much to admire in the dissenting opinion, denial of the writ seems to me less unjust than granting it. I vote to affirm the judgment of the District Court, and I join Judge John R. Gibson’s cogent opinion for this Court en banc. . My further remark that "there ought to be a reprieve,” also quoted, post, p. 1252, was improvident. Executive clemency is not our business. The Governor has his constitutional responsibilities, just as we have ours. Having said that, I remain of the view that this case does little credit to the State of Arkansas,
LAY, Chief Judge, dissenting. I join in Judge Bright’s dissent but I write separately in rejoinder of Judge Arnold’s concern. I too am reluctant to review a prior holding of this court on the basis of a successive petition raising the same ground. Normally, unless the “ends of justice” require it, we need not and should not do so. However, as Justice Harlan earlier pointed out, federal courts should not have a fetish about finality when life or liberty is at stake and when there are demonstrable reasons to reopen the proceedings. Notwithstanding Judge Arnold’s affirmation of what he says has occurred, Walker’s present petition for a writ of habeas corpus is not now denied by this court because of the successive petition doctrine. Had this been the court’s holding by a short opinion or order, I might have joined it. But notwithstanding whatever rubric the majority has chosen to use, the fact is that Judge Gibson’s opinion has not followed the successive petition rule, but has painstakingly analyzed the entire record concerning both trials and all postconviction proceedings. The successive petition rule is designed to dispose of frivolous litigation, to conserve judicial energies, and to provide some degree of repose and confidence in the pri- or judicial proceedings. It must turn as well on the presumption that a grouping of new judges should not be any more qualified to pass judgment than those who preceded us. But this is not what has happened here. For two years now this entire court (en banc) has been engaged in record analysis: sifting, probing, rescreening, examining, and reexamining hundreds of pages of records. The judicial energies intended to be protected and conserved under the successive petition doctrine have long ago been expended by all of the judges of this court. Why? I think the reasons should be obvious why this court has given plenary review to these proceedings: 1) Our prior judgment, Walker v. Bishop, 408 F.2d 1378 (8th Cir.1969), did not delineate in detail the obvious inconsistencies and deficiencies in the evidence, now so ably discussed by Judge Bright. When these facts were illuminated by present counsel it gave all judges on this court cause for concern as to Walker’s guilt or innocence. 2) The sufficiency of evidence in light of the overall record had never been analyzed as has now been done by the majority and dissenting judges. 3) The obvious error of the Arkansas Supreme Court and of this court relating to the question of bias and prejudice of the trial judge is made apparent when viewed in light of the inconsistent and deficient evidence surrounding Walker’s conviction. 4) Subsequent to our earlier holding, the intervening decisions of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), were decided by the Supreme Court of the United States. As the majority points out, the sufficiency of evidence in the second trial was not raised as an independent ground in the district court or in this court. (I feel the majority errs in attempting to resolve this issue when it has not been presented to the district court nor briefed as an independent ground in this court). However, the relevance of Jackson and Agurs has been the primary cause for the searching study of the record (a first in any postconviction proceeding in this case) as it relates to the judicial bias question and the suppression of material evidence. These issues were not determined and not analyzed.in our prior decision; the overall evidence of the record, in terms of whether a rational trier of fact could hold beyond a reasonable doubt that Walker is guilty, was not taken into account. Prior to Jackson and Agurs, a federal court could only review a state court record in terms of whether there existed any evidence to sustain a conviction. Surely the new standards of review require a much more searching analysis of the record when reviewing collateral issues of judicial bias and suppression of evidence. When this is done, it is difficult for me to say that the “successive petition” doctrine has in any way been offended. BRIGHT, Circuit Judge, dissenting, joined by LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges. We dissent. Walker’s murder conviction rests upon the highly implausible theory that Officer Vaughan, having taken a fatal bullet wound to the heart, could thereafter fire six shots and wound Walker five times. Our examination of the lengthy records of Walker’s two trials and two habeas corpus hearings leads us to the inescapable conclusion that a great injustice has been done and that Walker is entitled to habeas relief. This miscarriage of justice rests primarily upon two substantial grounds: (1) the admitted prejudice of Judge William C. Kirby, the trial ju