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

___________ Bef ore 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, forceda banker to withdraw $11,000 from his bank, and then fled across a state line t a king the banker along as a hostage. As a consequence, Mr. Embrey was convicted of armed bank robbery, in v iolation of the Federal Bank Robbery Act (FBRA), see 18 U.S.C. § 2113(a), § 2113(d), and of kidnapping, in viola tion of the Federal KidnappingThe Honora ble Russell G. Clark, United States District Judge for the Western 1 District of Missouri.
-2- 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. § 225 5, 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 p unishment 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 declin e to express a view on the merits of Mr. Embrey's underlying lega l 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 i s 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 th e Supre meCourt has held that "an error of law does not provide a basis for collatera l attack unless the claimed error constituted 'a fundamental defect which inherentl y
re sults 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 app eal a court ought to correct a plain forfeited error that causes th e conviction or sentencing of a defendant who is actually innocent, see , e.g. , United-3-

States v. Mc Kinney , 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 commi t 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, M r. Embrey has raised the very claim that he raises now on at l east three or four other occasions in the appropriate district court, and we have decide d it against him on the merits, in addition to having several times previousl y 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 th e sentence un der the Federal Kidnapping Act, he is "actually innocent" of it, an d therefore we should reach the merits of his claim under the doctrine laid down i n 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 constitutio nal claim, even though the petiti on was successive, if the petitioner could show that he was "innocent of the death penalt

y," id. at 349, in the sense that new evidence had become available that was su fficiently strong that, in the light of it, it was probable that no reasonabl e juror would have imposed the death penalty on him. Id. at 336, 348, 350.
But Mr. Embrey's case is unlike Sawyer in a nu mber of significant ways that are fatal to his argument. In the first place, Mr. Embrey's quarrel is not really with hi s
sen tence, it is with the fact that he was convicted. There is no legal error in th e
sen tence, 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 ter

ms, applies only to the sentencing phase of death cases. The Court noted, for instance, that while the notion of actual in nocence " 'does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capita l of fense,' " id. at 340, quoting Smith v. Murray , 477 U.S. 527, 537 (1986), "[i]n th e context of a noncapital case, the concept of 'actual innocence' is easy to grasp."-4-

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 noncapita l defendant." Id. We b elieve, with the Tenth Circuit, that the most natural inference to draw from these observations on the Court's part is th at 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).

Evenif 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 f or relief under it. Mr. Sawyer's claim was that he had new evidence that had not been previously available to him be cause, he said, of the unconstitutional activities of the government and the constitutionally deficient perf ormance of his defense lawyer. See Sawyer , 505 U.S. at 347-48. In our case, by contrast, Mr. Embrey produces n o 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 observe d that substantial claims of actual in nocence would be "extremely rare," because to "be credible, such a claim require s petitioner to support his allegations of constitutional erro r [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 b e "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 availa bility but as a way of constricting it. See Henry J. Friendly, Is Innocenc e 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 o f actions. The Supreme Court, moreover, has specifically embraced Judge Friendly' s def initionof actual innocence, see Kuhlmann v. Wilson , 477 U.S. 436, 454-55 n.1 7 (1986) (plurality opinion), a definition that presupposed that newly available evidence-5-

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 th e Supreme Court has "emphasized that th e miscarriage of justice exception is concerned with actual as compared to l egal 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 unso phisticated play on words, always be converted into a complaint that the relevant facts did not support a conviction and that therefore the defendant wa s "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 a n assertion t hat the trial court got it wrong in convicting and sentencing him under th e Federal Kid napping Act. We are not disposed to hold that in Sawyer the Suprem e Court intended to allow petitioners successive collateral attacks on convictions an d sentences by resorting to the simple expedient of reasserting an alleged legal error that

resu lted in a conviction that would not have otherwise occurred, or in a sentence that would n ot 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 ult imate legal claim: He has recharacterized his legal claim that he was wrongl y convicted and sentenced as an a ssertion that he is "actually innocent," in an attempt to resuscitate t

he claim that he was wrongly convicted and sentenced. If he can do that, the n every sentence would be subject to an endless number of successive reviews, a
re sult that we are naturally reluctant to attribute to the holding in Sawyer , and unable to locate in any statute or equitable princ iple, 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 Fift h 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 Suprem e 3 Cour t equated the “ends of justice” inquiry with the “fundamental miscarriage o f justice” exception.
-6- 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 m y colleagues, the result reached by the majority represents a gross injust ice. The question pre sented is whether the imposition of a twenty-year illegal sentence is immune from collateral attac k under 28 U.S.C. § 2244(a) by reason of the petitioner’s unsuccessful filing of successive habeas corpus petitions. The majority concludes the illega l sentence is immune from collateral attack because it finds the exception relating to the funda mental miscarriage of justice (ends of justice) is not applicable to evaluate a n 3 illegal non-capital sentence. In doing so, the majority opinion contradicts the law o f 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 o f armed bank robbery in violation o f the Federal Bank Robbery Act (FBRA), 18 U.S.C. §§ 2113(a), (d), and kidnap ping in violation of the Federal Kidnapping Act (FKA), 18 U.S.C. § 1201. On September 19, 1980, the district court sentenced Embrey to twoThis rule is now Eighth Circuit Rule 47 (a). 4
-7- consecutive twenty-year prison terms. Embrey appealed his conviction but did no t arg ue his sentence was illegal. This court affirmed Embrey’s conviction in a n unpublished opinion. See United States v. Embrey , 657 F.2d 273 (8th Cir. 1981 ) (Table).

In 1983, Emb rey, 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 un der § 1201 for kidnapping

wa s illegal. The district court rejected Embrey’s petition on the merits, and Embre y 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, i t was never frivolous.

On J une 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 judi cial ear. This court’s records show that Judge Morris Arnold appointed counsel for Embr ey and set up a full briefing schedule. Follo wing oral argument, a divided panel of this court (Judge Morris Arnold , dissenting) noted the government expressly waived any procedural default claimDuring oral argument before the court en banc, the gover nment explained it was 5 not raising procedural default because “cause” could be shown by the failure o f Embrey’s trial counsel to object to the defe ndant’s consecutive sentence in his original trial. The amend ments to 28 U.S.C. §§ 2244(a) and 2255 resulting from the 199 6

6 Antiterrorism and Effective Death Penalty Act (AEDPA) a re 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 n o bearing on this court’s treatment of Embrey’s pre-AEDPA habeas petition. The majority alleges that Embrey’s c urrent habeas petition is successive. “The 7 terms < successive petition’ and <

abuseof 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 gro unds identical to those heard and rejected on the merits in a prior petition. I d. (citing Sanders v. United States , 373 U.S. 1, 15-17 (1963)). An abusive petition i s one in which a prisoner raises grounds that were available but not relie d upon in a prior petition, or otherwise engages in conduct that disentitles the prisone r to the relief sought. Kuhlmann , 477 U.S. at 444 n.6 (citing Sanders , 373 U.S. at 17-
-8- regarding Embrey’s failure to object to his illegal sentence befor e the sentencing court. 5 Embr ey v. Hershberger , 106 F.3d 805, 807 (8th Cir.), vacated and reh’g en ban c granted , 116 F.3d 826, 826-27 (8th Cir. 1997 ). The majority of the original panel held that although Embrey had filed successi ve 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 tw enty-year

consecutive sentence under § 1201 since the FBRA fully encompasse d 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 diminis h the effect of the court’s prior judgments. Thus, Embrey’s current § 225 5 petition is successive. Even so, this court can reach the merits of Embrey’s 719). “Theconcept 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 groun ds it was imposed in violation of the laws of the United States. Embrey makes the sam e argument in this petit

ion. Thus, Embrey’s petition is not abusive because Embrey did not raise grounds in this pe tition that were available to him before, but not relied upon by him in his first petition.
-9- succes sive claim if the “ends of justice” will be served by such an inquiry. See 2 8 U.S.C. § 2244(a). It is my strong belief that the ends of just ice will and must be served by such an in quiry. It is difficult to comprehend how the majority can determin e 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 a n inquiry by concluding the “actual innocence” exception will not allow the co urt to reach Embrey’s claim of an illegal sentence.
The majority bases its conclusion on the Supreme Court’s decision in Sawyer v. Wh itley , 505 U.S. 333 (1992). In Sawyer , the Court recognized the difficulty i n translating and applying th e 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, 53 7 (1986)). In applying the exception in that sentencing case, the Court adopted a n “eligibility” test. See Schlupv. Delo , 513 U.S. 298, 323 (1995). The majority refuses to apply this eligibility test to Embrey’s case, contending the actual innocenc e 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 t o cases involving challenges to non-capital sentences. While it is true Sawyer involved a challenge to a capital sentence, Sawy er’s analysis is not expressly restricted to cases involving capital sentences.-10-

Moreover, there exists no valid reason to restrict the Sawyer analysis to case s challenging capital sentences. As th e Sawyer Court demonstrated, the eligibility test is

a usefu l solution to a difficult problem. The eligibility test is a more communicativ e metho d for determining whether the ends of justice require a court to reach a petitioner’s procedurally-barred challenge to a sentenc e. An individual is either eligible or not eligible to receive a particular sentence. If an individual receives a sentence for whichhe or she is not eligible, the eligibility test allows a court to reach the sentence and to correct or vacate that sentence.

In i ts opinion, the majority also fails to recognize that we are interpreting a congressional enactment under § 224 4(a). Although the Supreme Court has developed its own guide as to the meaning of the “ends of justice” te st, Congress has never limited the ends of justice test to capital cases. Case law governing § 2244 demonstrates that § 2244 app lies to both capital and non-capital cases. See, e.g. , Schlup v. Delo , 51 3 U.S. at 324-30 (discussing the miscarriage of justice exception and applying it to th e successive petitions of prisoner c onvicted of capital murder); Sanders v. United States , 373 U.S. at

15-20 (applying ends of justice test to successive petition of prisoner who chal lengedhis non-capital sentence pursuant to § 2255); McCoy v. Norris , No. 97

- 1068, 1997 WL 600040, at *4 (8th Cir. Oct. 1, 1 997) (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

re quiredcourt to review successive petitions of prisoner convicted of non-capita l offense); Shaw v. Delo , 971 F.2d 181, 185-87 (8th Cir. 1992) (applying miscarriage of justice e xception to death row prisoner’s successive habeas petition and determinin g whethe r refusal to review petition would result in miscarriage of justice); Poyner v

. United States Parole Comm’n , 878 F.2d 275, 277 (9th Cir. 1 989) (prisoner serving time for aggravated assaul t did not make showing that the ends of justice required the court to examine arguments made in a successive petition); McDonald v. Blac kburn , 806 F.2d 613, 621-23 (5th Cir. 1986) (applying ends of justice test to successive petition-11-

of prisoner convicte d 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 th e execution of his non-capital sentence and declining to reach specific issue of whether p e tition was successive or abusive because prisoner failed to make showing of cause, pre judice, 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 late r sentenced to life imprisonment , and conditionally granting writ of habeas corpus based

on ev idence that trial judge was biased and state failed to produce exculpator y transcript).
Justice Rutledge observed over 50 years ago:

The wr it should be available whenever there clearly has been a fundamental miscarriage of justice for which no other adequate remedy is pre sently available. Beside executing its great object, which is th e pres ervation of personal liberty and assurance against its wrongfu l depri vation, 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 o n liber ty is more important than mechanical and unrealistic administration of the federal courts.” In Sanders v. United States , 373 U.S. at 8, th e Court observed “[c]onventional notions of fi nality of litigation have no place where life or liberty is at stake an d inf ringement of constitutional rights is alleged.” (emphasis added). Justice Harlan , althoughdissenting 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 relevanc e 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-12-

judicata are not to be applied where a fundamental miscarriage of justice has take n place. See, e.g. , Sanders , 373 U.S. at 8.

I am well aware that sin ce 1963, restrictive rules have been placed upon the use of the Great Writ. These rul es 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); Teagu e v. Lane , 489 U.S. 288, 316 (1989) (habeas corpus cannot be used to create new rules of constitu tional 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 habea s corpus only upon showing of cause and prejudice); Stone v. Po well , 428 U.S. 465, 494- 95 (1976) (Fourth Amendment exclusionary rule claims are not cognizable on habeas corpus if the state court provided defen dant opportunity to fully and fairly litigate those claims). Despite these restrictions, both Congress and the Supreme Court hav e recogni zed that there should be availability of the writ, despite procedural default o r successive petitions, in order to correct a fundamental miscarriage of justice. See 2 8 U.S .C. § 2244(a); see, e.g. , Schlup , 513 U.S. at 320-21 (noting existence an d importance of the exception for fundamental miscarriages of just ice). Surely no one can claim that requiring an individual to serve a twenty-year illegal sentence is not a miscarriage o f 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 fle xible enough to be used to attack an illegal non-capital sentence. This makes little sense to me.

The maj ority also urges that the essence of petitioner’s claim is that of “lega l in nocence” 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 treate d Embrey’s petition as one brought pursuant to § 2255 to correct hi s sentence . (emphasis added). Any challenge to a sentence is a legal one; this is-13-

especially true where a court sentences an individual without the authorityto do so. The lega lchallenge, however, is not based on any substantive defect in proof o r constitutional rule of procedure. The attack simply focuses on th e court’s lack of power to impose a sentence.

To urge Embrey is raising a claim of “legal innocence” supports the Suprem e Court’s observation that

the actual innocence test is one that does not easily lend itself to a challen ge involving the legality of a sentence. See Sawyer , 505 U.S. at 339-4 0 (citing Smith v. Murray , 477 U.S. at 537). Despite the difficulty in applying the actual innocence exception to chal lenges involving sentences, this circuit, at least until today,

rec ognizedan exception allowing a habeas petitioner to challenge an illegal sentenc e 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 th e 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 78 3 (1982), situation th an 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 ma y have been sufficient to convict her of drug conspiracy. More to the point in the application of the Murrayexception, however, is t hat Pilchak, in this case, w as not the proper subject for a sentence of a lifetime o f incarceration. (footnote omitted). In this regard, we again point out that the principal conspirator, McCaw, was sentenced to a term of ye ars, which sentence has resulted in his already having gained his freedom.

Pilchak , 935 F.2d at 148.-14-

At least three other circuits tha t 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 U nited States v. Maybeck , 23 F.3d 888, 893 (4th Cir. 1994) (finding no rat ionale for limiting the actual innocence exception to death cases and holding th e 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 innocenc e 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 no t limited to cases involving capital senten cing); see also Hope v. United States , 108 F.3d 119, 120 (7th Cir. 1997) (noting that prior to the AEDPA amendme nts 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 no t apply in cases involving challenges to non-capital sentences); Uni ted 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 upo n procedural default (waived by the government), abuse of the writ, or successiv e petitions, is very surprising in light of the good fai th position of the United States in this

case. At oral argument, the United States Attorney expressed a view that Embre y shoul d not be barred from raising his claim of an illegal sentence. He said Embrey’ s attorney should have raised the illegal sentence argume nt 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 statu te, 18 U.S.C. § 2113, entitled “Bank robbery and incidental crimes,” 8 provides in relevant part: (a) Wh oever, by force and violence, or by intimidation, takes, or attempts to take, fro m the person or presence of another any property or money or any other thing o f 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 a

nd loan association, with intent to commit in such bank, credit union, or in such saving s and loan association, or building, or part thereof, so used, any felon y affecting such bank, credit union, or su ch 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 i n subsections (a) and (b) of

this section, assaults any person, or puts in jeopardy the life

-15- Th e majority, for whatever reason, has refused to accept the government’ s concessio n

made at oral argument. It is true this court is not legally bound to accep t 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 cour t should examine with great scrutiny the reasons it has rejected th e government’s good faith concession.

III. Because I believe the “ends of justice” exception applies to Embrey, I woul d reach the mer

its of his illegal sentence argument. Embrey argues the offenses of bank robb ery and associated kidnapping are fully encompassed within the FBRA, an d Congress has directed he should be sentenced only under the FBRA. The United 8of any person by the use of a dangerous weapon or device, sh all 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 o r attem pting to avoid apprehension for the commission of such offense, or in freein g himself or attempting to f

ree 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.
-16- Stat es argues it is lawful to go outside the FBRA and obtain an additional convictio n 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 punis hments are permissible if each crime requires proof of a fact that the other does not. (Appellee’s Brief at 5, citing Unite d 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)). Th e government, applying the Blockburger test, urges Embrey’s c onsecutive 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 control ling only where there is no clear indication of contrary legislative intent

. Albernaz , 45 0 U.S. at 336-38. Here, for the reasons discussed infra , it is patent tha t Congress intended the FBRA to be the comprehensive and excl usive 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 sche meprecluding additional charges under outside statutes for conduct within th e FBRA’s coverage. United States v. Phillips , 522 F.2d 388, 392 (8th Cir. 1975).The version of § 924(c) at issue in Simpsonimposed a sentence of one to ten 9 y e ars 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.
-17- The United States also asserts that the district court could impose consecutiv e sentences f

or the two convictions, citing cases it maintains are analogous. First, th e Unit ed States cites United States v. Dotson , 546 F.2d 1151, 1153 (5th Cir. 1977), the only repor ted 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 , 35 2 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 th e
concur rent

sentences imposed in that case. Dotson , 546 F.2d at 1153. Second, th e Unite d States cites three cases from other circuits to support the imposition o f

consec utive sentences for federal bank robbery and other offenses. However, thes e
cases do not discuss the issue Embrey raises, and more importantly, all impose th e second sentence f

or 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 distin guishing Simpson v. United States ); United States v. Davis , 573 F.2d 1177, 1181-82 (10th Cir. 1978) (bank rob bery 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 contentio n in Simpson v. United States , 435 U.S. 6 (1978). In Simpson , the defe ndants 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 und er the Blockburger test. Id. at 10-11. The Supreme Court held it was not necessary to reachDurin g oral argument, in an attempt to distinguish Simpsonand to support its 10 argum ent that Embrey’s consecutive sentence under § 1201 is not illegal, th e gover nment

cited United States v. Culbert , 435 U.S. 371 (1978). In Culbert , th e Supreme Court upheld a single conviction for bank robbery under the Hobbs Act, 18 U.S.C. § 1951. The defendant and his acco mplice attempted to extort money from the pr esident of a federally insured bank. The Court upheld the Hobbs Act charge an d 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 singl e 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 obvio us differences between Culbert and this case, Culbert

does not support the government’s position. Moreover, th e committee report accompanying the 1 986 amendment to § 2113 of the FBRA, which amends § 2113(a) to expressl y cover crimes of extortion directed at federally insured banks, undercuts the Culbert holding. In that report, the commit tee 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. 211 3(a) apply, in order to make 18 U.S.C. 2113(a) the exclusive provision for prosecuting bank extortion.” Crimi nal 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, 615 6 (citations omitted).
While t hese principles of statutory construction may be important in deciding 11 the merits of Embrey’s appeal, there is o ne important difference between Simpsonand this case. In Simpson , the government charged the defendant twice, under § 2113(d) and § 924(c), for committing the bank robber y 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 t he present case, while it may have been improper for the district court to convic t
-18- the constitutional issue, because Congress had not “authorized the imposition of th e additional penalty of § 924(c) for commission of bank robbery with firearms alread y subject to enh anced punishment under § 2113(d).” Id. at 12-13. In addition to th e 10 legislati ve history of § 924(c), the Court relied upon two rules of statutor y construction. First, where there is ambiguity concerning the scope of criminal

11Embrey under a statute outside the FBRA for conduct within its coverage, the rationale

is slightly different than th at in Simpson . In charging Embrey, the government did not use the FBRA and an outside statute to c harge him twice for the same act. Rather, the governmen t

fragmented the act to obtain convictions and consecutive sentences fo r armed bank robbery in violation o f §§ 2113(a) and (d), and kidnapping in violation of § 1201.
In1984, Congress expressly overruled Simpsonand Busic v. United States ,

12 446 U.S. 3 98 (1980). Congress concluded that section § 924(c) should provide a mandatory sentence for all persons committing felonies with a fir earm, “including those crimes s et forth in statutes which already provide for enhanced sentences for thei r commission with a dangerous w eapon.” S. Rep. No. 98-225, at 313 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3491. The Senate Judiciary Committee Repor t specifically directed th at armed bank robbery should be prosecuted under §§ 2113(a), (d), and § 924(c). Id. Embrey asserts that “[t]his deliberate and pointed languag e indicates that t

he all-inclusive bank robbery punishment scheme remains intact unless explicitly overridden by Congress as it did with particularity in the 1984 weapon s enhancement provision.” (Appellant’s Reply Br. at 17-18).
-19- statu tes, “doubt will be resolved against turning a single transaction into multipl e of fenses.” 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 specifi c 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 commi t rob bery, and to violating a District of Columbia statute penalizing assault with a dangerous weapon, which was charg eable 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 Unite d States v. S nell , 550 F.2d 515, 517-18 (9th Cir. 1977) (holding the FBRA “provide s 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 1 6 , 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 tha t may arise from
a bank robbery and provides additional penalties within a single conviction fo r aggravated offenses.” Id. (emphasis added). On another occasion, this court state d that “[i]n drafting § 2113, Congress intended to limit federal ba nk robbery prosecutions to a s ingle count charging the appropriate level of crime and precluding additiona l ch arges for conduct within § 2113’s coverage under statutes outside the scheme. ” Phillips , 522 F.2d at 392 (citing United States v. Canty ).
-20- UnitedStates v. Beck , 511 F.2d 997, 1000 (6th Cir. 1975) (citing Canty , and holding the FBRA “was intended to exclusively proscr ibe conduct within its ‘coverage’”). The court emphasized the Blockburger analysis was irrelevant, Leek , 665 F.2d at 388-89, becau se the second conviction was not authorized by Congress, and therefore wa s “illegal and in excess of judicial authority.” Id. at 390. 13

The legislative history of the 1986 amendment to the FBRA illustrates Congress’ inte nt to make the FBRA comprehensive with respect to conduct proscribed in it s provisions. The Committee Report accompanying the amendment states: There is no gap in federal law. Extortionate conduc t 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 t o which should be the applicable statute is desirable.

The Justice Department believes that the natural and appropriate vehicle for pro secuting extortionate activity involving the obtaining of ban k monies is 1 8 U.S.C. 2113(a), rather than the Hobbs Act, which has th e purpos e of safeguarding the channels of interstate and foreign commerce fromthe adverse effects of robbery and extortion. The Committe e concurs. Accordingly, section 5 1 amends 18 U.S.C. 2113(a) expressly to
cover crimes of extortion directed at federally insured banks. Th e Committee intends to overrule those cases holding that only the Hobbs-21-

Act applies, and those cases holding that both the Hobbs Act an d the 18 U.S.C. 2113(a) apply, in order to make 18 U.S.C. 2113(a) the e xclusive 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 St ates , 352 U.S. at 322, and its progeny als o support the argument that an additional sentence, based on a separat e statute for condu ct within the coverage of the FBRA, is illegal. See Leek , 665 F.2d at 38 7 n.36. As noted above, the Prince Court prohibited the pyramiding of sentence s 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 clea r congressional authorization. Therefore, defendants can re ceive 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 (8 th Cir. 1974); Jones v. United States , 396 F.2d 66, 69 (8th Cir. 1968). Th e 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 activit y covered under the FBRA, are illegal and beyond judicial authority. Indeed, it would be in consistent

with the Supreme Court’s interpretation of the FBRA and its legislativ e history, prohibiting multiple punishments under the FBRA it self, to allow the imposition of punish ments under the FBRA andan outside statute for illegal activity clearl y covered under the FBRA, absent congressional direction to the contrary.

It is un fathomable that a federal court lacks the power to vacate an illega l sentence of twenty years because petiti oner has, in vain, sought by successive petitions to assert hi s liberty interest. I cannot believe this is the law. Societal respect fo r individual liberty requires more. I must, therefore, dissent.-22-

A true copy.

Attest:

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