Roger G. Flittie v. Herman Solem, Warden, South Dakota State Penitentiary Mark Meierhenry, Attorney General, State of South Dakota

ORDER

Before LAY, Chief Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, MAGILL and BEAM, Circuit Judges.

Roger G. Flittie appeals the denial of his application for writ of habeas corpus. Flit-tie is presently incarcerated having been sentenced under a habitual criminal statute SDCL 22-7-8. At this time Flittie essentially attacks a prior conviction which he alleges was used to illegally enhance his habitual criminal conviction. This court denied this same claim in 751 F.2d 967 (8th Cir.1985), and affirmed en banc in 775 F.2d 933 (8th Cir.1985). Assuming, but without deciding this…