United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-2906

___________

William J.R. Embrey, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Western

Greg Hershberger, Warden, * District of Missouri.

United States Medical Center for *

Federal Prisoners, *

*

Appellee. *

___________

Submitted: September 9, 1997

Filed: December 17, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, and LAY, McMILLIAN, FAGG,

BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD

ARNOLD, and MURPHY, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Almost twenty years ago, William J.R. Embrey and an accomplice, both armed,

forced a banker to withdraw $11,000 from his bank, and then fled across a state line

taking the banker along as a hostage. As a consequence, Mr. Embrey was convicted

of armed bank robbery, in violation of the Federal Bank Robbery Act (FBRA), see 18

U.S.C. § 2113(a), § 2113(d), and of kidnapping, in violation of the Federal Kidnapping
The Honorable Russell G. Clark, United States District Judge for the Western 1

District of Missouri.

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Act, see 18 U.S.C. § 1201(a)(1). He was sentenced to two consecutive twenty-year

terms, one for each conviction. 

In his petition to the district court, brought under 28 U.S.C. § 2255, Mr. Embrey 1

maintained that his conviction under the Federal Kidnapping Act was illegal because

all of his unlawful activities were violations of FBRA, which, he maintains, Congress

intended to be a comprehensive statute that provided punishment for what he did to the

exclusion of all other possibly applicable federal statutes. Cf. United States v. Gardner,

579 F.2d 474, 476 (8th Cir. 1978) (per curiam). The district court rejected the petition

on the merits, and on appeal a panel of our court reversed that judgment. See Embrey

v. Hershberger, 106 F.3d 805 (8th Cir. 1997), vacated, 116 F.3d 826 (8th Cir. 1997).

Our court voted to take the case en banc and vacated the judgment of the panel. See

Embrey v. Hershberger, 116 F.3d 826 (8th Cir. 1997). We now affirm the judgment

of the district court.

I.

We decline to express a view on the merits of Mr. Embrey's underlying legal

theory, for, whatever its merits, we think that his petition must inevitably fail for other

reasons. In the first place, it is not at all clear that, even if Mr. Embrey's theory is

correct, he would be entitled to relief under 28 U.S.C. § 2255. That statute, it is true,

provides for relief if "the sentence imposed was not authorized by law," but the

Supreme Court has held that "an error of law does not provide a basis for collateral

attack unless the claimed error constituted 'a fundamental defect which inherently

results in a complete miscarriage of justice.' " United States v. Addonizio, 442 U.S.

178, 185 (1979), quoting Hill v. United States, 368 U.S. 424, 428 (1962). It is true that

on direct appeal a court ought to correct a plain forfeited error that causes the

conviction or sentencing of a defendant who is actually innocent, see, e.g., United
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States v. McKinney, 120 F.3d 132, 134 (8th Cir. 1997), but such cases usually, if not

always, involve defendants who were innocent in the sense that they did not commit

the acts with which they were charged. That is not our case, and, besides, what is a

miscarriage of justice on appeal may or may not be one when the same matter is raised

as a ground for post-conviction relief. 

However that may be, Mr. Embrey has raised the very claim that he raises now

on at least three or four other occasions in the appropriate district court, and we have

decided it against him on the merits, in addition to having several times previously

dismissed his petitions as successive. See the history recounted in Embrey, 106 F.3d

at 806-07. Mr. Embrey argues, however, that because he was not eligible for the

sentence under the Federal Kidnapping Act, he is "actually innocent" of it, and

therefore we should reach the merits of his claim under the doctrine laid down in

Sawyer v. Whitley, 505 U.S. 333 (1992). In Sawyer, a capital case, the Court held that

a post-conviction court could reach the merits of a petitioner's constitutional claim, even

though the petition was successive, if the petitioner could show that he was "innocent

of the death penalty," id. at 349, in the sense that new evidence had become available

that was sufficiently strong that, in the light of it, it was probable that no reasonable

juror would have imposed the death penalty on him. Id. at 336, 348, 350.

But Mr. Embrey's case is unlike Sawyer in a number of significant ways that are

fatal to his argument. In the first place, Mr. Embrey's quarrel is not really with his

sentence, it is with the fact that he was convicted. There is no legal error in the

sentence, because, if he was correctly convicted, the sentence was a perfectly proper

one, and Mr. Embrey does not maintain that it was not. More fundamentally, we think

that Sawyer, in terms, applies only to the sentencing phase of death cases. The Court

noted, for instance, that while the notion of actual innocence " 'does not translate easily

into the context of an alleged error at the sentencing phase of a trial on a capital

offense,' " id. at 340, quoting Smith v. Murray, 477 U.S. 527, 537 (1986), "[i]n the

context of a noncapital case, the concept of 'actual innocence' is easy to grasp." 
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Sawyer, 505 U.S. at 341. The Court, moreover, characterized its task as "striv[ing] to

construct an analog to the simpler situation represented by the case of a noncapital

defendant." Id. We believe, with the Tenth Circuit, that the most natural inference to

draw from these observations on the Court's part is that in noncapital cases the concept

of actual innocence is "easy to grasp," id., because "it simply means the person didn't

commit the crime," United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993).

Even if the basic Sawyer principle were available to undermine the validity of

convictions in noncapital cases, when one attempts to construct an analog to Sawyer

for such cases it becomes perfectly apparent that Mr. Embrey's petition cannot possibly

qualify for relief under it. Mr. Sawyer's claim was that he had new evidence that had

not been previously available to him because, he said, of the unconstitutional activities

of the government and the constitutionally deficient performance of his defense lawyer.

See Sawyer, 505 U.S. at 347-48. In our case, by contrast, Mr. Embrey produces no

new evidence at all of his "actual innocence," nor does he allege that the error that he

wants corrected resulted in that evidence not being introduced at his trial. In Schlup

v. Delo, 513 U.S. 298, 324 (1995), the Court observed that substantial claims of actual

innocence would be "extremely rare," because to "be credible, such a claim requires

petitioner to support his allegations of constitutional error [in our case, legal error] with

new reliable evidence ... that was not presented at trial." 

If Mr. Embrey's argument succeeds, these kinds of claims will cease to be

"extremely rare," id. Judge Friendly originally proposed that actual innocence ought

to be relevant to the law of post-conviction remedies not as a way of expanding their

availability but as a way of constricting it. See Henry J. Friendly, Is Innocence

Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).

It would be ironic indeed if that proposal were transformed into a fertile mother of

actions. The Supreme Court, moreover, has specifically embraced Judge Friendly's

definition of actual innocence, see Kuhlmann v. Wilson, 477 U.S. 436, 454-55 n.17

(1986) (plurality opinion), a definition that presupposed that newly available evidence
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was to be added to evidence originally presented at a petitioner's trial in order to test

its probable effects on a fact-finder's conclusion. 

Mr. Embrey's claim, at bottom, is simply a legal not a factual one, and the

Supreme Court has "emphasized that the miscarriage of justice exception is concerned

with actual as compared to legal innocence." Sawyer, 505 U.S. at 339. A legal claim

that a substantive criminal statute has been wrongly applied to facts can, by resort to

a rather unsophisticated play on words, always be converted into a complaint that the

relevant facts did not support a conviction and that therefore the defendant was

"actually innocent." But that proves too much, for then any such claim can be said to

be one of actual innocence, effectively undermining the barrier to post-conviction relief

that the principle of actual innocence was meant to erect.

There is, in fact, no new evidence, and Mr. Embrey's complaint reduces to an

assertion that the trial court got it wrong in convicting and sentencing him under the

Federal Kidnapping Act. We are not disposed to hold that in Sawyer the Supreme

Court intended to allow petitioners successive collateral attacks on convictions and

sentences by resorting to the simple expedient of reasserting an alleged legal error that

resulted in a conviction that would not have otherwise occurred, or in a sentence that

would not have otherwise been imposed. Sawyer held that actual innocence was a

gateway through which a petitioner had to pass before his claims could be considered.

Id. But here, Mr. Embrey's argument is circular and he has conflated his gateway and

his ultimate legal claim: He has recharacterized his legal claim that he was wrongly

convicted and sentenced as an assertion that he is "actually innocent," in an attempt to

resuscitate the claim that he was wrongly convicted and sentenced. If he can do that,

then every sentence would be subject to an endless number of successive reviews, a

result that we are naturally reluctant to attribute to the holding in Sawyer, and unable

to locate in any statute or equitable principle, or, indeed, in any consideration of sound

common-law policy, to which our attention has been directed.
Mr. Embrey also makes an argument that his convictions violated his Fifth

2

Amendment right not to be put in jeopardy twice for the same offense, but this claim

must fail for the same reasons that his other claim fails.

In McCleskey v. Zant, 499 U.S. 467, 495 (1991), the United States Supreme

3

Court equated the “ends of justice” inquiry with the “fundamental miscarriage of

justice” exception.

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II.

For the foregoing reasons, we affirm the district court's judgment dismissing

Mr. Embrey's petition.2

LAY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins dissenting.

Today’s opinion is, to say the least, highly unusual. In all due respect to my

colleagues, the result reached by the majority represents a gross injustice. The question

presented is whether the imposition of a twenty-year illegal sentence is immune from

collateral attack under 28 U.S.C. § 2244(a) by reason of the petitioner’s unsuccessful

filing of successive habeas corpus petitions. The majority concludes the illegal

sentence is immune from collateral attack because it finds the exception relating to the

fundamental miscarriage of justice (ends of justice) is not applicable to evaluate an

3

illegal non-capital sentence. In doing so, the majority opinion contradicts the law of

other courts of appeal as well as our own, overrides the adversarial concession of the

United States Attorney, and exalts form over substance. 

I.

This case has a peculiar history. In September, 1980, Embrey was convicted in

the United States District Court for the Western District of Missouri on charges of

armed bank robbery in violation of the Federal Bank Robbery Act (FBRA), 18 U.S.C.

§§ 2113(a), (d), and kidnapping in violation of the Federal Kidnapping Act (FKA), 18

U.S.C. § 1201. On September 19, 1980, the district court sentenced Embrey to two
This rule is now Eighth Circuit Rule 47 (a). 4

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consecutive twenty-year prison terms. Embrey appealed his conviction but did not

argue his sentence was illegal. This court affirmed Embrey’s conviction in an

unpublished opinion. See United States v. Embrey, 657 F.2d 273 (8th Cir. 1981)

(Table).

In 1983, Embrey, acting pro se, filed his first habeas petition in district court.

Embrey challenged his sentence pursuant to 28 U.S.C. § 2255. In that initial petition,

Embrey argued that his separate and consecutive sentence under § 1201 for kidnapping

was illegal. The district court rejected Embrey’s petition on the merits, and Embrey

appealed. This court dismissed Embrey’s appeal as frivolous pursuant to Eighth Circuit

Rule 12(a). Thereafter, Embrey filed several other habeas petitions, many of which 4

this court dismissed as frivolous. The Supreme Court has stated an appeal on a matter

of law is frivolous where “[none] of the legal points [are] arguable on their merits.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989) (quoting Anders v. California, 386 U.S.

738, 744 (1967)). However one may characterize Embrey’s sentencing argument, it

was never frivolous. 

On June 23, 1994, while still facing the second consecutive twenty-year

sentence, Embrey filed this petition for writ of habeas corpus. The district court

construed Embrey’s petition as a motion to correct his sentence pursuant to 28 U.S.C.

§ 2255 ; it later dismissed Embrey’s petition. Embrey appealed to this court. 

This time, Embrey found a friendly judicial ear. This court’s records show that

Judge Morris Arnold appointed counsel for Embrey and set up a full briefing schedule.

Following oral argument, a divided panel of this court (Judge Morris Arnold,

dissenting) noted the government expressly waived any procedural default claim
During oral argument before the court en banc, the government explained it was 5

not raising procedural default because “cause” could be shown by the failure of

Embrey’s trial counsel to object to the defendant’s consecutive sentence in his original

trial.

The amendments to 28 U.S.C. §§ 2244(a) and 2255 resulting from the 1996

6

Antiterrorism and Effective Death Penalty Act (AEDPA) are not retroactive and do not

apply to Embrey’s claim. See Lindh v. Murphy, ___ U.S. ___, 117 S. Ct. 2059, 2063

(1997). Further, Congress’ more restrictive view toward successive habeas petitions,

as reflected in certain AEDPA amendments to the habeas statutes, should have no

bearing on this court’s treatment of Embrey’s pre-AEDPA habeas petition. 

The majority alleges that Embrey’s current habeas petition is successive. “The 7

terms <successive petition’ and <abuse of the writ’ have distinct meanings.” Kuhlmann

v. Wilson, 477 U.S. 436, 444 n.6 (1986) (plurality opinion). A successive petition is

one which raises grounds identical to those heard and rejected on the merits in a prior

petition. Id. (citing Sanders v. United States, 373 U.S. 1, 15-17 (1963)). An abusive

petition is one in which a prisoner raises grounds that were available but not relied

upon in a prior petition, or otherwise engages in conduct that disentitles the prisoner

to the relief sought. Kuhlmann, 477 U.S. at 444 n.6 (citing Sanders, 373 U.S. at 17-

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regarding Embrey’s failure to object to his illegal sentence before the sentencing court.5

Embrey v. Hershberger, 106 F.3d 805, 807 (8th Cir.), vacated and reh’g en banc

granted, 116 F.3d 826, 826-27 (8th Cir. 1997). The majority of the original panel held

that although Embrey had filed successive appeals, this court could reach the merits of

Embrey’s claim because Embrey had met the “ends of justice” test under § 2244(a).6

See Embrey, 106 F.3d at 808. The panel concluded Embrey was not “eligible” for the

twenty-year consecutive sentence under § 1201 since the FBRA fully encompassed

Embrey’s integrated conduct of kidnapping and bank robbery. Id. at 811.

II.

Embrey has raised his sentencing argument in prior habeas petitions. The fact

that this court deemed Embrey’s earlier attacks on his sentence as frivolous does not

diminish the effect of the court’s prior judgments. Thus, Embrey’s current § 2255

petition is successive. Even so, this court can reach the merits of Embrey’s 7
19). “The concept of <abuse of the writ’ is founded on the equitable nature of habeas

corpus.” Id. 

Embrey’s very first habeas petition challenged his sentence on the grounds it was

imposed in violation of the laws of the United States. Embrey makes the same

argument in this petition. Thus, Embrey’s petition is not abusive because Embrey did

not raise grounds in this petition that were available to him before, but not relied upon

by him in his first petition.

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successive claim if the “ends of justice” will be served by such an inquiry. See 28

U.S.C. § 2244(a). It is my strong belief that the ends of justice will and must be served

by such an inquiry. It is difficult to comprehend how the majority can determine

whether the ends of justice will be served in this case without making an inquiry into

the merits of Embrey’s illegal sentencing argument. The majority avoids such an

inquiry by concluding the “actual innocence” exception will not allow the court to reach

Embrey’s claim of an illegal sentence. 

The majority bases its conclusion on the Supreme Court’s decision in Sawyer v.

Whitley, 505 U.S. 333 (1992). In Sawyer, the Court recognized the difficulty in

translating and applying the actual innocence exception to a case challenging a capital

sentence. Sawyer, 505 U.S. at 339-40 (citing Smith v. Murray, 477 U.S. 527, 537

(1986)). In applying the exception in that sentencing case, the Court adopted an

“eligibility” test. See Schlup v. Delo, 513 U.S. 298, 323 (1995). The majority refuses

to apply this eligibility test to Embrey’s case, contending the actual innocence

exception does not extend to a case involving a challenge to a non-capital sentence. 

The majority misreads Sawyer. The Supreme Court has never ruled the actual

innocence exception, articulated as an eligibility test in Sawyer, does not extend to

cases involving challenges to non-capital sentences. While it is true Sawyer involved

a challenge to a capital sentence, Sawyer’s analysis is not expressly restricted to cases

involving capital sentences.
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Moreover, there exists no valid reason to restrict the Sawyer analysis to cases

challenging capital sentences. As the Sawyer Court demonstrated, the eligibility test is

a useful solution to a difficult problem. The eligibility test is a more communicative

method for determining whether the ends of justice require a court to reach a

petitioner’s procedurally-barred challenge to a sentence. An individual is either eligible

or not eligible to receive a particular sentence. If an individual receives a sentence for

which he or she is not eligible, the eligibility test allows a court to reach the sentence

and to correct or vacate that sentence. 

In its opinion, the majority also fails to recognize that we are interpreting a

congressional enactment under § 2244(a). Although the Supreme Court has developed

its own guide as to the meaning of the “ends of justice” test, Congress has never limited

the ends of justice test to capital cases. Case law governing § 2244 demonstrates that

§ 2244 applies to both capital and non-capital cases. See, e.g., Schlup v. Delo, 513

U.S. at 324-30 (discussing the miscarriage of justice exception and applying it to the

successive petitions of prisoner convicted of capital murder); Sanders v. United States,

373 U.S. at 15-20 (applying ends of justice test to successive petition of prisoner who

challenged his non-capital sentence pursuant to § 2255); McCoy v. Norris, No. 97-

1068, 1997 WL 600040, at *4 (8th Cir. Oct. 1, 1997) (considering whether miscarriage

of justice exception required court to reach merits of claim in non-capital offender’s

successive habeas corpus petition); Washington v. Delo, 51 F.3d 756, 760-62 (8th Cir.

1995) (discussing the miscarriage of justice exception and analyzing whether exception

required court to review successive petitions of prisoner convicted of non-capital

offense); Shaw v. Delo, 971 F.2d 181, 185-87 (8th Cir. 1992) (applying miscarriage of

justice exception to death row prisoner’s successive habeas petition and determining

whether refusal to review petition would result in miscarriage of justice); Poyner v.

United States Parole Comm’n, 878 F.2d 275, 277 (9th Cir. 1989) (prisoner serving time

for aggravated assault did not make showing that the ends of justice required the court

to examine arguments made in a successive petition); McDonald v. Blackburn, 806 F.2d

613, 621-23 (5th Cir. 1986) (applying ends of justice test to successive petition
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of prisoner convicted of non-capital offense). Cf. George v. Perrill, 62 F.3d 333, 334-

35 (10th Cir. 1995) (applying § 2244(a) to prisoner’s repetitive challenge to the

execution of his non-capital sentence and declining to reach specific issue of whether

petition was successive or abusive because prisoner failed to make showing of cause,

prejudice, or fundamental miscarriage of justice); Walker v. Lockhart, 763 F.2d 942,

949-60 (8th Cir. 1985) (en banc) (applying ends of justice test to successive petitions

of prisoner convicted of murder who was initially sentenced to death, and later

sentenced to life imprisonment, and conditionally granting writ of habeas corpus based

on evidence that trial judge was biased and state failed to produce exculpatory

transcript). 

Justice Rutledge observed over 50 years ago:

The writ should be available whenever there clearly has been a

fundamental miscarriage of justice for which no other adequate remedy is

presently available. Beside executing its great object, which is the

preservation of personal liberty and assurance against its wrongful

deprivation, considerations of economy of judicial time and procedures,

important as they undoubtedly are, become comparatively insignificant.

Sunal v. Large, 332 U.S. 174, 189 (1947). A year later, the Supreme Court observed

in Wade v. Mayo, 334 U.S. 672, 681 (1948), that “prevention of undue restraints on

liberty is more important than mechanical and unrealistic administration of the federal

courts.” In Sanders v. United States, 373 U.S. at 8, the Court observed “[c]onventional

notions of finality of litigation have no place where life or liberty is at stake and

infringement of constitutional rights is alleged.” (emphasis added). Justice Harlan,

although dissenting in Sanders, agreed that “loss of liberty and sometimes loss of life

. . . are far too great to permit the automatic application of an entire body of technical

rules whose primary relevance lies in the area of civil litigation.” Sanders, 373 U.S. at

24 (Harlan, J., dissenting). Thus, it has long been recognized that principles of res
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judicata are not to be applied where a fundamental miscarriage of justice has taken

place. See, e.g., Sanders, 373 U.S. at 8.

I am well aware that since 1963, restrictive rules have been placed upon the use

of the Great Writ. These rules seek to avoid abuse of the writ and to further principles

of finality. See Sawyer v. Whitley, 505 U.S. at 339 (overcoming procedural bar

requires proof of actual innocence); Teague v. Lane, 489 U.S. 288, 316 (1989) (habeas

corpus cannot be used to create new rules of constitutional procedure unless those rules

would apply prospectively to all defendants on collateral review); Wainwright v. Sykes,

433 U.S. 72, 87 (1977) (claims not raised in state courts may be raised on habeas

corpus only upon showing of cause and prejudice); Stone v. Powell, 428 U.S. 465, 494-

95 (1976) (Fourth Amendment exclusionary rule claims are not cognizable on habeas

corpus if the state court provided defendant opportunity to fully and fairly litigate those

claims). Despite these restrictions, both Congress and the Supreme Court have

recognized that there should be availability of the writ, despite procedural default or

successive petitions, in order to correct a fundamental miscarriage of justice. See 28

U.S.C. § 2244(a); see, e.g., Schlup, 513 U.S. at 320-21 (noting existence and

importance of the exception for fundamental miscarriages of justice). Surely no one can

claim that requiring an individual to serve a twenty-year illegal sentence is not a

miscarriage of justice. The majority does not dispute otherwise. It simply argues that

the actual innocence test articulated by the Court in Murray v. Carrier, 477 U.S. 478,

495-96 (1986), and Sawyer, 505 U.S. at 348, is not flexible enough to be used to attack

an illegal non-capital sentence. This makes little sense to me.

The majority also urges that the essence of petitioner’s claim is that of “legal

innocence” since Embrey challenges his conviction under § 1201. Yet, it is obvious

that in charging Embrey, the government sought to enhance Embrey’s bank robbery

sentence by adding a separate charge of kidnapping under § 1201. Further, the district

court treated Embrey’s petition as one brought pursuant to § 2255 to correct his

sentence. (emphasis added). Any challenge to a sentence is a legal one; this is
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especially true where a court sentences an individual without the authority to do so. The

legal challenge, however, is not based on any substantive defect in proof or

constitutional rule of procedure. The attack simply focuses on the court’s lack of power

to impose a sentence.

To urge Embrey is raising a claim of “legal innocence” supports the Supreme

Court’s observation that the actual innocence test is one that does not easily lend itself

to a challenge involving the legality of a sentence. See Sawyer, 505 U.S. at 339-40

(citing Smith v. Murray, 477 U.S. at 537). Despite the difficulty in applying the actual

innocence exception to challenges involving sentences, this circuit, at least until today,

recognized an exception allowing a habeas petitioner to challenge an illegal sentence

even where there had been a procedural default. See Pilchak v. Camper, 935 F.2d 145,

148 (8th Cir. 1991). In Pilchak, Judge Beam, writing for this court, applied the actual

innocence exception to a non-capital defendant who, although factually guilty of the

crime at hand, was “not the proper subject for a sentence of a lifetime of incarceration.”

Id. at 148. Judge Beam observed:

It is difficult to conceive of a more “fundamentally unjust,” Engle

v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 1558, 1576, 71 L. Ed. 2d 783

(1982), situation than we have in this case. Pilchak was entitled to a trial

before an unbiased jury while being represented by a competent lawyer,

even if we concede that the evidence available to the prosecution may

have been sufficient to convict her of drug conspiracy. More to the point

in the application of the Murray exception, however, is that Pilchak, in this

case, was not the proper subject for a sentence of a lifetime of

incarceration. (footnote omitted). In this regard, we again point out that

the principal conspirator, McCaw, was sentenced to a term of years, which

sentence has resulted in his already having gained his freedom.

Pilchak, 935 F.2d at 148.
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At least three other circuits that have considered this question have also held the

actual innocence exception is applicable in the context of a challenge to a non-capital

sentence. See United States v. Maybeck, 23 F.3d 888, 893 (4th Cir. 1994) (finding no

rationale for limiting the actual innocence exception to death cases and holding the

exception applies in non-capital sentencing enhancement cases); Mills v. Jordan, 979

F.2d 1273, 1278-79 (7th Cir. 1992) (concluding application of the actual innocence

exception to non-capital habitual offender proceedings is consistent with Sawyer v.

Whitley); Mobley v. United States, No. Civ. A. 97-650-AM, 1997 WL 440928, at *3

(E.D. Va. Aug. 1, 1997) (holding application of actual innocence exception is not

limited to cases involving capital sentencing); see also Hope v. United States, 108 F.3d

119, 120 (7th Cir. 1997) (noting that prior to the AEDPA amendments to § 2255, courts

extended the actual innocence exception to sentencing issues in both capital and noncapital cases); Sones v. Hargett, 61 F.3d 410, 418-19 & n.16 (5th Cir. 1995) (assuming

arguendo that the actual innocence exception applies to non-capital sentencing cases);

Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992) (same). But see Reid v. Oklahoma,

101 F.3d 628, 630 (10th Cir. 1996) (holding the actual innocence exception does not

apply in cases involving challenges to non-capital sentences); United States v. Richards,

5 F.3d 1369, 1371 (10th Cir. 1993) (same); Estrada v. Witkowski, 816 F. Supp. 408,

415 (D.S.C. 1993) (stating that actual innocence exception will not be applied because

petitioner was convicted of a non-capital offense).

The procedural bar the majority now employs, whether it be based upon

procedural default (waived by the government), abuse of the writ, or successive

petitions, is very surprising in light of the good faith position of the United States in this

case. At oral argument, the United States Attorney expressed a view that Embrey

should not be barred from raising his claim of an illegal sentence. He said Embrey’s

attorney should have raised the illegal sentence argument in Embrey’s direct appeal and

failed to do so. Further, he indicated Embrey never received a complete review of his

claim in this court.
The statute, 18 U.S.C. § 2113, entitled “Bank robbery and incidental crimes,” 8

provides in relevant part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take,

from the person or presence of another any property or money or any other thing of

value belonging to, or in the care, custody, control, management, or possession of, any

bank, credit union, or any savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any savings and

loan association, or any building used in whole or in part as a bank, credit union, or as

a savings and loan association, with intent to commit in such bank, credit union, or in

such savings and loan association, or building, or part thereof, so used, any felony

affecting such bank, credit union, or such savings and loan association and in violation

of any statute of the United States, or any larceny--

Shall be fined not more than $5,000 or imprisoned not more than twenty years,

or both.

. . . 

(d) Whoever, in committing, or in attempting to commit, any offense defined in

subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life

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The majority, for whatever reason, has refused to accept the government’s

concession made at oral argument. It is true this court is not legally bound to accept

such a concession. See Jones v. Hildebrant, 432 U.S. 183, 195-96 (1977) (observing

the Court “is not bound by concessions of counsel in oral argument as to whether a legal

issue is open in this Court”). However, where a claim of an illegal sentence is at issue,

the court should examine with great scrutiny the reasons it has rejected the

government’s good faith concession.

III.

Because I believe the “ends of justice” exception applies to Embrey, I would

reach the merits of his illegal sentence argument. Embrey argues the offenses of bank

robbery and associated kidnapping are fully encompassed within the FBRA, and

Congress has directed he should be sentenced only under the FBRA. The United 8
of any person by the use of a dangerous weapon or device, shall be fined not more than

$10,000 or imprisoned not more than twenty-five years, or both.

(e) Whoever, in committing any offense defined in this section, or in avoiding or

attempting to avoid apprehension for the commission of such offense, or in freeing

himself or attempting to free himself from arrest or confinement for such offense, kills

any person, or forces any person to accompany him without the consent of such person,

shall be imprisoned not less than ten years, or punished by death if the verdict of the

jury shall so direct.

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States argues it is lawful to go outside the FBRA and obtain an additional conviction

and sentence for behavior covered within the FBRA. I reject this argument. 

The United States contends that where an offense constitutes a violation of two

statutes, separate convictions and cumulative punishments are permissible if each crime

requires proof of a fact that the other does not. (Appellee’s Brief at 5, citing United

States v. Woodward, 469 U.S. 105 (1985) (per curiam), Albernaz v. United States, 450

U.S. 333 (1981), and Blockburger v. United States, 284 U.S. 299 (1932)). The

government, applying the Blockburger test, urges Embrey’s consecutive sentences were

permissible because the convictions were for separate offenses with distinct elements

of proof.

In Albernaz, however, the Supreme Court explained that the Blockburger analysis

is controlling only where there is no clear indication of contrary legislative intent.

Albernaz, 450 U.S. at 336-38. Here, for the reasons discussed infra, it is patent that

Congress intended the FBRA to be the comprehensive and exclusive remedial provision

for federal bank robbery prosecutions. See United States v. Leek, 665 F.2d 383, 387

(D.C. Cir. 1981). Further, this court has recognized that the FBRA is a comprehensive

scheme precluding additional charges under outside statutes for conduct within the

FBRA’s coverage. United States v. Phillips, 522 F.2d 388, 392 (8th Cir. 1975).
The version of § 924(c) at issue in Simpson imposed a sentence of one to ten 9

years upon persons who used or carried a firearm during the commission of a felony.

This sentence was in addition to any penalty imposed for the commission of the felony.

See Simpson, 435 U.S. at 8 n.2.

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The United States also asserts that the district court could impose consecutive

sentences for the two convictions, citing cases it maintains are analogous. First, the

United States cites United States v. Dotson, 546 F.2d 1151, 1153 (5th Cir. 1977), the

only reported case with similar facts and convictions, for the proposition that separate

convictions and sentences for violation of the FBRA and § 1201 are valid. However,

the cursory discussion in Dotson merely points out that Prince v. United States, 352

U.S. 322 (1957), whereby the Supreme Court prohibited the pyramiding of sentences

under the FBRA, is not directly controlling; the Dotson court therefore affirmed the

concurrent sentences imposed in that case. Dotson, 546 F.2d at 1153. Second, the

United States cites three cases from other circuits to support the imposition of

consecutive sentences for federal bank robbery and other offenses. However, these

cases do not discuss the issue Embrey raises, and more importantly, all impose the

second sentence for illegal conduct not then covered by the FBRA. See United States

v. Allen, 797 F.2d 1395, 1401-02 (7th Cir. 1986) (bank robbery and possession of a

firearm by a felon, explicitly distinguishing Simpson v. United States); United States v.

Davis, 573 F.2d 1177, 1181-82 (10th Cir. 1978) (bank robbery and conspiracy); United

States v. Welty, 426 F.2d 615, 619 n.15 (3d Cir. 1970) (same).

Moreover, the Supreme Court addressed and rejected an analogous contention

in Simpson v. United States, 435 U.S. 6 (1978). In Simpson, the defendants were found

guilty of two bank robberies, and of using firearms to commit the robberies, in violation

of § 2113 (a), (d), and 18 U.S.C. § 924(c). The sentencing court imposed consecutive 9

sentences on the robbery and firearms counts. The government argued the convictions

and consecutive sentences were justified as distinct offenses under the Blockburger test.

Id. at 10-11. The Supreme Court held it was not necessary to reach
During oral argument, in an attempt to distinguish Simpson and to support its 10

argument that Embrey’s consecutive sentence under § 1201 is not illegal, the

government cited United States v. Culbert, 435 U.S. 371 (1978). In Culbert, the

Supreme Court upheld a single conviction for bank robbery under the Hobbs Act, 18

U.S.C. § 1951. The defendant and his accomplice attempted to extort money from the

president of a federally insured bank. The Court upheld the Hobbs Act charge and

reversed the lower court’s ruling that activity had to be racketeering to be within the

scope of the Hobbs Act. Culbert, 435 U.S. at 379-80. 

The government argues that because the Supreme Court upheld a single

conviction under the Hobbs Act for extortionate conduct involving a bank, this court

should allow the imposition of consecutive sentences for bank robbery under the FBRA

and FKA. Given the obvious differences between Culbert and this case, Culbert does

not support the government’s position. Moreover, the committee report accompanying

the 1986 amendment to § 2113 of the FBRA, which amends § 2113(a) to expressly

cover crimes of extortion directed at federally insured banks, undercuts the Culbert

holding. In that report, the committee states its intent to “overrule those cases holding

that only the Hobbs Act applies, and those cases holding that both the Hobbs Act and

18 U.S.C. 2113(a) apply, in order to make 18 U.S.C. 2113(a) the exclusive provision

for prosecuting bank extortion.” Criminal Law and Proc. Tech. Amends. Act of 1986,

H.R. Rep. No. 99-797, at 33 (1986) reprinted in 1986 U.S.C.C.A.N. 6138, 6156

(citations omitted).

While these principles of statutory construction may be important in deciding 11

the merits of Embrey’s appeal, there is one important difference between Simpson and

this case. In Simpson, the government charged the defendant twice, under § 2113(d)

and § 924(c), for committing the bank robbery with a firearm. The government sought

separate convictions and consecutive sentences for robbing a bank with a firearm,

under § 2113(d), and using a firearm in the commission of a felony, under § 924(c).

In the present case, while it may have been improper for the district court to convict

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the constitutional issue, because Congress had not “authorized the imposition of the

additional penalty of § 924(c) for commission of bank robbery with firearms already

subject to enhanced punishment under § 2113(d).” Id. at 12-13. In addition to the

10

legislative history of § 924(c), the Court relied upon two rules of statutory

construction. First, where there is ambiguity concerning the scope of criminal 11
Embrey under a statute outside the FBRA for conduct within its coverage, the rationale

is slightly different than that in Simpson. In charging Embrey, the government did not

use the FBRA and an outside statute to charge him twice for the same act. Rather, the

government fragmented the act to obtain convictions and consecutive sentences for

armed bank robbery in violation of §§ 2113(a) and (d), and kidnapping in violation of

§ 1201.

In 1984, Congress expressly overruled Simpson and Busic v. United States,

12

446 U.S. 398 (1980). Congress concluded that section § 924(c) should provide a

mandatory sentence for all persons committing felonies with a firearm, “including those

crimes set forth in statutes which already provide for enhanced sentences for their

commission with a dangerous weapon.” S. Rep. No. 98-225, at 313 (1983), reprinted

in 1984 U.S.C.C.A.N. 3182, 3491. The Senate Judiciary Committee Report

specifically directed that armed bank robbery should be prosecuted under §§ 2113(a),

(d), and § 924(c). Id. Embrey asserts that “[t]his deliberate and pointed language

indicates that the all-inclusive bank robbery punishment scheme remains intact unless

explicitly overridden by Congress as it did with particularity in the 1984 weapons

enhancement provision.” (Appellant’s Reply Br. at 17-18). 

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statutes, “doubt will be resolved against turning a single transaction into multiple

offenses.” Id. at 15 (citations omitted). Second, the Court supported its holding with

the parallel theory that where two statutes may apply, the terms of the more specific

statute control. Id. at 15.12

In United States v. Leek, 665 F.2d 383, 385 (D.C. Cir. 1981), the defendant pled

guilty to violating the FBRA, § 2113(a), which penalizes entry with intent to commit

robbery, and to violating a District of Columbia statute penalizing assault with a

dangerous weapon, which was chargeable under § 2113(d). Applying United States v.

Canty, 469 F.2d 114 (D.C. Cir. 1972) (per curiam), the court held it was reversible error

to “fragment the robbery and venture outside the federal scheme for a peg on which to

hang the aggravated component of the offense.” Leek, 665 F.2d at 387; see United

States v. Snell, 550 F.2d 515, 517-18 (9th Cir. 1977) (holding the FBRA “provides

exclusive federal remedies for offensive conduct fully within its coverage”);
The Eighth Circuit has never decided the issue before us. However, this court, 13

at least in dicta, has recognized validity in the argument that one cannot be sentenced

for bank robbery under § 2113 and § 1201. In United States v. Roundtree, 527 F.2d

16, 19-20 (8th Cir. 1975), Judge Heaney, writing for the panel, stated that the FBRA

“is a comprehensive statute containing special provisions for increased punishment for

aggravated offenses. It is intended to cover most of the aggressions that may arise from

a bank robbery and provides additional penalties within a single conviction for

aggravated offenses.” Id. (emphasis added). On another occasion, this court stated

that “[i]n drafting § 2113, Congress intended to limit federal bank robbery prosecutions

to a single count charging the appropriate level of crime and precluding additional

charges for conduct within § 2113’s coverage under statutes outside the scheme.”

Phillips, 522 F.2d at 392 (citing United States v. Canty).

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United States v. Beck, 511 F.2d 997, 1000 (6th Cir. 1975) (citing Canty, and holding

the FBRA “was intended to exclusively proscribe conduct within its ‘coverage’”). The

court emphasized the Blockburger analysis was irrelevant, Leek, 665 F.2d at 388-89,

because the second conviction was not authorized by Congress, and therefore was

“illegal and in excess of judicial authority.” Id. at 390.13

The legislative history of the 1986 amendment to the FBRA illustrates Congress’

intent to make the FBRA comprehensive with respect to conduct proscribed in its

provisions. The Committee Report accompanying the amendment states:

There is no gap in federal law. Extortionate conduct is prosecutable either

under the bank robbery provision or the Hobbs Act, both of which carry

the same maximum prison term (20 years). However, clarification as to

which should be the applicable statute is desirable.

The Justice Department believes that the natural and appropriate vehicle

for prosecuting extortionate activity involving the obtaining of bank

monies is 18 U.S.C. 2113(a), rather than the Hobbs Act, which has the

purpose of safeguarding the channels of interstate and foreign commerce

from the adverse effects of robbery and extortion. The Committee

concurs. Accordingly, section 51 amends 18 U.S.C. 2113(a) expressly to

cover crimes of extortion directed at federally insured banks. The

Committee intends to overrule those cases holding that only the Hobbs
-21-

Act applies, and those cases holding that both the Hobbs Act and the 18 U.S.C. 2113(a)

apply, in order to make 18 U.S.C. 2113(a) the exclusive provision for prosecuting bank

extortion.

Criminal Law and Proc. Tech. Amends. Act of 1986, H.R. Rep. No. 99-797, at 32-33

(1986) reprinted in 1986 U.S.C.C.A.N. 6138, 6155-56.

Finally, as the Leek court found, Prince v. United States, 352 U.S. at 322, and its

progeny also support the argument that an additional sentence, based on a separate

statute for conduct within the coverage of the FBRA, is illegal. See Leek, 665 F.2d at

387 n.36. As noted above, the Prince Court prohibited the pyramiding of sentences

under the FBRA. The Court based this prohibition on the FBRA’s legislative history

and the principle that multiple punishments will not be imposed without clear

congressional authorization. Therefore, defendants can receive only one conviction and

one sentence for violation of the several provisions of the FBRA. See United States v.

Pietras, 501 F.2d 182, 187-88 (8th Cir. 1974); United States v. Delay, 500 F.2d 1360,

1367 (8th Cir. 1974); Jones v. United States, 396 F.2d 66, 69 (8th Cir. 1968). The

same principles that allow only one sentence for violation of the several provisions of

the FBRA suggest that additional sentences based on outside statutes, for activity

covered under the FBRA, are illegal and beyond judicial authority. Indeed, it would be

inconsistent with the Supreme Court’s interpretation of the FBRA and its legislative

history, prohibiting multiple punishments under the FBRA itself, to allow the imposition

of punishments under the FBRA and an outside statute for illegal activity clearly

covered under the FBRA, absent congressional direction to the contrary.

It is unfathomable that a federal court lacks the power to vacate an illegal

sentence of twenty years because petitioner has, in vain, sought by successive petitions

to assert his liberty interest. I cannot believe this is the law. Societal respect for

individual liberty requires more. I must, therefore, dissent.
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A true copy.

Attest:

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