United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-4123

___________

Rubin R. Weeks, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Mike Bowersox, *

*

Appellee. *

___________

Submitted: April 15, 1997

 Filed: July 24, 1997

___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, MAGILL,

McMILLIAN, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN,

MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.

___________

MAGILL, Circuit Judge.

Robin Weeks pled guilty in Missouri state court to

charges of kidnaping and rape and was sentenced to

concurrent terms of thirty years and life imprisonment.

Although Weeks defaulted his postconviction relief and

was denied collateral relief in the Missouri state court,

Weeks petitioned for federal habeas relief in the
 The Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern 1

District of Missouri, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c)

(1994). 

-2-

district court. 

1
 A panel of this Court reversed the decision of the district court and remanded.

2

Weeks v. Bowersox, 106 F.3d 248, 251-52 (8th Cir. 1997) (opinion vacated upon

rehearing en banc).

-3-

The district court denied relief to Weeks without an

evidentiary hearing, holding that Weeks defaulted on his

federal habeas claims by failing to make a timely

petition to the Missouri state court for postconviction

relief. The district court also held that Weeks had

shown neither cause and prejudice for his default nor

actual innocence of the kidnaping and rape charge. Weeks

appeals, arguing that his actual innocence entitles him

to an evidentiary hearing. Weeks asserts that he has

made the requisite showing for a hearing on his defaulted

federal claims. First, Weeks maintains that he has shown

evidence of his actual innocence. Second, Weeks asserts

that, in the absence of evidence, his allegation that he

is actually innocent, coupled with his unsupported claim

that he could produce evidence of his innocence, is

sufficient. Third, Weeks argues that, even if he has not

established his actual innocence, his assertions that

exculpatory evidence exists are sufficient to entitle him

to a hearing at which he could develop evidence of his

actual innocence. We affirm.2

I.

Shortly after midnight on October 13, 1991, Ms.

Jolynn Alicia [Doe], a young woman who was then twentyone years of age, was driving home through Cape

Girardeau, Missouri, from her place of work. Weeks, an

illiterate thirty-year-old ex-convict,

had seen [Ms. Doe] at her place of employment
-4-

and had followed her as she was driving home . .

. . As [Weeks] was driving behind her, he

flashed his lights seven or eight times which

caused her to pull over. She had her doors

locked and her windows rolled up. He came up to

the side of the car and had indicated to her

that there was some trouble with a back

taillight or some part of the back of her car.

She rolled down her 
-5-

window enough to hear what he was saying, and

the next thing she knew a hand with a butchertype knife had come in and was slashing at her

hands, which were on top of the steering wheel

and cut her hands. [Weeks] then was able to get

the door open; [he] took her out of the car;

took her to his car, and started driving with

her towards Bollinger County. While they were

still in Cape [Girardeau] County, [Weeks]

ordered her to take off her clothes, which she

removed from the lower part of her body.

[Weeks] then performed an act of sodomy by

putting his finger in her vagina while they were

still in Cape Girardeau County and while he had

the knife there under his leg as he was driving

the car. She saw [Weeks] cross the Bollinger

County line into Bollinger County, and in

Bollinger County they continued to a farm, where

he took her near a barn and raped her on a

blanket and also performed various types of

sodomy at that time too. . . . [Weeks then]

went and took his belt and stood over her with

his belt in his hands. [Ms. Doe] felt that

[Weeks] was considering strangling her. [Ms.

Doe] felt that she was about to die. Instead

[Weeks] went to his car and got duct tape by

which he used to tie her ankles and her knees

and her hands, and he left her tied there in

Bollinger County and [then Weeks] drove off.

[Ms. Doe] was able to get free and ultimately

got to the authorities.

Tr. of Plea of Guilty & Sentence (Feb. 13, 1992) at 23-

25, reprinted in Resp't's Ex. F at 23-25 (description of

crimes by prosecutor).

Weeks was subsequently arrested in Mississippi and

extradited to Missouri. After returning to Missouri,

Weeks was charged with the kidnaping and rape of Ms. Doe.
-6-

On February 13, 1992, Weeks pled guilty in Missouri state

court to the charges. Weeks's counsel explained to the

state trial court that, pursuant to a plea agreement and

in response to Weeks's guilty plea, 

the State has agreed to dismiss . . . all the

charges except the two to which we have pled,

the kidnaping and the rape. [The state

prosecutors] have also agreed that whatever

sentence you impose on those two charges shall

run concurrently. They have also agreed and

they have produced records 
-7-

which support their position that if they would

file as a Class X offender, it would increase

the further time before he could be considered

for parole to eighty percent. They have

declined to do that upon a valid plea to our

charges. So you have the discretion to sentence

him from five years to thirty in one case, from

ten to life on another case, but you are to run

them concurrently as a prior and persistent

offender.

Id. at 16, reprinted in Resp't's Ex. F at 16 (statement

by defense counsel). When asked by the trial court if he

understood the plea agreement, Weeks responded, "Yes."

Id. at 17.

Weeks's attorney also explained that Weeks pled

guilty 

because I have advised him concerning the law,

that [the plea agreement] gives him some

opportunity for parole at some date in the

future, albeit it could be a far date. My

advice to him was we didn't think by going to

trial the other way, that he has the realistic

opportunity that he would be able to receive

probation in light of the amount of charges that

were B and A felonies. So he has never

maintained--he has given confessions to the

charges and he has admitted his involvement, and

he feels this is the best of the choices he has.

Id. at 20-21, reprinted in Resp't's Ex. F at 20-21

(statement of defense counsel). Weeks agreed that his

counsel's statement was accurate. See id.

At the plea hearing, Weeks admitted that he kidnaped
-8-

and raped Ms. Doe:

Q. [by The Court] Mr. Weeks, I'll ask you a

number of questions this afternoon about

your desire to enter pleas of guilty. If at

any time you do not understand my questions,

interrupt me and let me know that, and I'll

explain the questions further. Okay?

A. [by the defendant] Yes, sir.
-9-

Q. First of all, will all of your answers to my

questions be truthful?

A. Yes, sir.

Q. Has anyone told you not to tell the truth?

A. No, sir.

. . . .

Q. Did Mr. Robbins [Weeks's defense counsel]

read the Petitions to you?

A. Yes, sir.

Q. And did he go over the Petitions with you?

A. Yes, sir.

Q. Did he explain the contents of the Petitions

to you?

A. Yes, sir.

Q. Do you understand the contents of the Petitions?

A. Yes, sir.

Q. Is there anything in here that you do not

understand?

A. No, sir.

Q. Let me ask you about these charges. First,

from the Cape Girardeau County case.

MR. SWINGLE [the prosecutor]: Your Honor, in

the Cape Girardeau County case, he is

pleading to Count I, which is 
-10-

kidnaping, and in the Bollinger County case,

he is pleading to Count II, which is rape.

Q. Okay, in Count I, did you on October 13 of

last year unlawfully remove Jolynn Alicia

[Doe], without her consent, from her car on

County Road 350, which was about

approximately 150 yards from the

intersection of County Road 350 and Highway

72?

A. Yes.

. . . .

Q. Let me ask you, on Count II, on the

Bollinger County case, did you also on

October 13th of last year, and that would be

in Bollinger County, whereas the other was

in Cape [Girardeau] County, in Bollinger

County did you have sexual intercourse with

Jolynn Alicia [Doe]?

A. Yes.

Q. And was that without her consent?

A. Yes.

Q. Did you use force?

A. Yes.

Q. And did you also display a deadly weapon in

a threatening manner?

A. Yes.

Q. What was that weapon?

A. A knife.
-11-
 Ms. Doe also spoke at Weeks's plea hearing, stating that "[e]ver since this man

3

[Weeks] kidnapped me and raped me, I haven't been able to live my life--(crying, not

audible). I'm afraid every day of my life. I can't drive my vehicle without constantly

looking at my rear-view mirror. I'm afraid that this is going to happen again. I can't

trust anybody, and I'm afraid to be by myself. It has just affected my life so much."

Tr. of Plea of Guilty & Sentence (Feb. 13, 1992) at 25, reprinted in Resp't's Ex. F at 25.

-12-

Q. A knife, okay. Well, what did you do? Tell

me in your own words what happened about

these two crimes, one in Cape Girardeau

County and one in Bollinger County, that

makes you think you are guilty?

A. Because I am guilty.

Q. I understand, but tell me in your own words

what happened on these two charges that

makes you think that you are guilty of the

crime?

A. Because I did what they said I did.

Q. So everything in those charges is true and

correct?

A. Yes.

Q. No question about that?

A. No, sir.

Id. at 2-6, reprinted in Resp't's Ex. F at 2-6 (emphasis

added).3

Weeks also agreed that his plea was voluntary:

Q. [By the Court] Now, have any other promises
-13-

been made by anyone to get you to plead

guilty?
 The Missouri state court ascertained that, although Weeks received prescription

4

medications for various health problems, these medications did not effect Weeks's

ability to understand and to voluntarily enter his guilty plea:

Q. [by the Court] Have you had any drugs or alcohol in the last four

days other than your insulin medication?

A. [by the defendant] Yes.

Q. What other drugs have you been taking?

MR. ROBBINS [defense counsel]: Judge, I can give you a report, if I can

find it. 

. . . .

MR. ROBBINS: Judge, we have--I have received a copy of a report from

Fulton State Hospital, and according to this, dated January 28th, he was

placed on Prozac, which is for depression. He was also placed on

something called Mevacor. He was also placed on Diphenhydramine,

according to the report I received. I don't know if he is getting those, but

he was placed on those.

Q. Are you getting all of those drugs now?

-14-

A. [By the defendant] No, sir.

Q. Has anyone forced you or threatened you in

any way to get you to plead guilty?

A. No, sir.

Q. Is your mind clear today?

A. Yes.

Id. at 17-18, reprinted in Resp't's Ex. F at 17-18.4
A. I was under the Sheriff's care over her at Cape. 

MR. ROBBINS: And he gets insulin injections.

Q. I know you have insulin too.

MR. ROBBINS: Judge, some of those are for triglycerides, which is

cholesterol things, one for depression; the Diphenhydramine is a

medication for sleep; the Mevacor had to do with blood triglycerides.

Q. You've got a number of health conditions, don't you?

A. Yes.

Q. Well, let me ask you this, are any of those medications affecting your

willingness to plead guilty today?

A. No, sir.

Q. Is there any effect on you at all other than to help you feel better?

A. No, sir.

THE COURT: Do you agree with that, Mr. Robbins? To your

knowledge, are any of those drugs causing any adverse effects that might

cause him to be entering a plea against his will?

MR. ROBBINS: Judge, I don't know what the medications exactly do, but

I have talked to him on several, several, several occasions about this.

While he may not be pleased with the situation, he seems to comprehend,

has no question about what could happen. We have been over this

multiple times. I think he understands. He is not happy about it, but I

think he understands.

Q. I just want to make sure, Mr. Weeks, because you are taking these

-15-
medications, that for some reason they cause you to be pleading guilty

even though you don't want to be pleading guilty, even though you don't

want to; so are you telling me they don't have any effect on you about

your willingness to plead guilty?

A. No, sir.

Q. They don't have any effect at all then?

A. No, sir.

MR. SWINGLE [the prosecutor]: May I ask a couple additional question,

Your Honor?

THE COURT: Yes.

MR. SWINGLE: Do you feel clear-headed today?

THE DEFENDANT: Drowsy, but I'm clear-headed.

MR. SWINGLE: Do you feel you are able to hear and understand what

is being said here?

THE DEFENDANT: Yes.

THE COURT: And you know what you're doing?

THE DEFENDANT: Yes.

THE COURT: No question about that?

THE DEFENDANT: No.

THE COURT: You are sure this is what you want to do, Mr. Weeks?

-16-
THE DEFENDANT: Yes.

Tr. of Plea of Guilty & Sentence at 18-20, reprinted in Resp't's Ex. F at 18-20

(emphasis added). 

-17-
-18-

At the sentencing phase of Weeks's hearing, Weeks's

attorney argued strongly that Weeks should receive a

sentence of a determinate number of years, rather than a

life sentence. Weeks's counsel stated:

I'm not trying in any way to diminish the fact

that the young lady was assaulted, and I'm sure

it has affected her, and I don't want it to do

that; however, my obligation is to Mr. Weeks.

His life is also, maybe not ended, but certainly

has been changed. Judge, we are going to ask

that you impose a sentence, not a life sentence

but a term of years. . . . [I]f you choose the

thirty year period, sixty percent of thirty

years is eighteen years before he is even

eligible to be released. Judge, this has been a

difficult situation for everybody concerned.

[Weeks] also because he has health problems.

The problems are obvious. There is some

speculation that his life expectancy is not that

long. He has a wife and he has children

himself. I believe that the reason he is

choosing this, he has hopes if he beats the

odds, so to speak, that he at least will have

the opportunity to see them, to be with them

some portion of his life. . . . This is not a

murder case. . . . The lady was harmed but she

is alive. She is here today; she is testifying.

. . . [Weeks's pleading guilty] has saved this

young lady a lot of trauma; he has saved the

State the burden of going through the trial

procedures . . . . 

Id. at 27-28, reprinted in Resp't's Ex. F at 27-28.

Noting the emotional and physical trauma suffered by

Weeks's victim, and the brutality and premeditation of

Weeks's crimes, the Missouri state prosecutors asked that
-19-

Weeks be given a life sentence. The Missouri state court

entered a judgment of 
 In pertinent part, Rule 24.035(a) provides: 5

A person convicted of a felony on a plea of guilty and delivered to the

custody of the department of corrections who claims that the conviction

or sentence imposed violates the constitution and laws of this state or the

constitution of the United States . . . may seek relief in the sentencing

court pursuant to the provisions of this Rule 24.035. This Rule 24.035

provides the exclusive procedure by which such person may seek relief

in the sentencing court for the claims enumerated. . . .

Mo. S. Ct. R. 24.035(a) (emphasis added). Rule 24.035(b) provides:

A person seeking relief pursuant to this Rule 24.035 shall file a motion to

vacate, set aside or correct the judgment or sentence substantially in the

form of Criminal Procedure Form No. 40. . . . If an appeal of the judgment

sought to be vacated, set aside or corrected was taken, the motion shall

be filed within ninety days after the date the mandate of the appellate

court is issued. If no appeal of such judgment was taken, the motion shall

be filed within ninety days of the date the person is delivered to the

custody of the department of corrections. Failure to file a motion within

the time provided by this Rule 24.035 shall constitute a complete waiver

of any right to proceed under this Rule 24.035 and a complete waiver of

any claim that could be raised in a motion filed pursuant to this Rule

24.035.

Mo. S. Ct. R. 24.035(b) (emphasis added).

-20-

guilty against Weeks and sentenced him to thirty years

imprisonment for kidnaping Ms. Doe, and a concurrent term

of life imprisonment for raping Ms. Doe.

Following sentencing, the state court told Weeks

about the availability of postconviction relief under

Missouri Supreme Court Rule 24.035. This rule requires 5

a prisoner seeking postconviction relief to file a motion

requesting the court to vacate the guilty plea. The
-21-

court presented Weeks with the standard form for making

such a motion, read the form to him, and instructed

Weeks's lawyer to explain it to him. The 
-22-

court did not, however, specifically inform Weeks that

the rule requires the form to be filed within ninety days

after the entry of his plea.

Weeks did not appeal his sentence. In addition,

Weeks, who was not represented by counsel after trial,

never filed a Rule 24.035 postconviction motion to set

aside his conviction and sentence. In Missouri, such a

motion is the exclusive remedy to challenge a guilty

plea. See Mo. S. Ct. R. 23.035(a). Having forfeited his

postconviction relief and direct appeal, Weeks pursued

state collateral review. The Missouri state court

dismissed Weeks's state habeas petition because he had

not filed a Rule 24.035 motion. See Order (Oct. 6,

1994), reprinted in Resp't's Ex. K.

On September 13, 1994, Weeks, proceeding in forma

pauperis, filed a federal habeas petition in the United

States District Court for the Eastern District of

Missouri. Weeks raised the following claims in his

petition: (1) that Weeks was unlawfully arrested in

Mississippi and transported to Missouri without an

extradition hearing; (2) that Weeks's guilty plea in

state court was involuntary; (3) that Weeks was never

arraigned on the rape charge; (4) that Weeks was

improperly charged as a prior offender; and (5) that

Weeks was denied the right to present evidence and to

present a defense. The State of Missouri responded by

arguing that Weeks had failed to exhaust state remedies

and, in a subsequent supplementary response, that Weeks

had procedurally defaulted his claims by failing to file

a Rule 24.035 motion in Missouri state court.
-23-

In the following months, Weeks filed a flurry of

motions with the district court. On October 7, 1994,

Weeks filed a motion to appear before the court for an

immediate hearing, a motion to compel, and a motion for

the appointment of counsel. Weeks made a number of

allegations within his filings, including that he had not

pled guilty in state court; that while in Missouri state

custody prior to the state court plea hearing Weeks was

beaten by prison officers, denied medical attention for

a head injury, and given a shot that had him "out of his

head"; that Weeks had a romance with a prison 
-24-

nurse; and that there are seven eyewitnesses who would

testify that Weeks was not in the State of Missouri when

Ms. Doe was kidnaped and raped.

On October 17, 1994, Weeks filed a traverse titled

"Motion to Reply to Show Why an Evidentiary Hearing and

Appointment of Counsel and Writ of Habeas Corpus Should

be Granted." In this filing, Weeks listed the names of

twenty-seven witnesses that Weeks asserted he could call.

Weeks also challenged Ms. Doe's identification of Weeks

as the kidnapper and rapist, and Weeks revealed that he

had numerous civil actions pending against the officers

who allegedly beat Weeks.

On April 12, 1995, the district court denied Weeks's

motion to compel, noting that Weeks did not identify what

he wanted compelled. The district court also denied

Weeks's motions for a hearing and for the appointment of

counsel. On May 30, 1995, Weeks filed a motion to order

the district court clerk to provide Weeks with copies of

the files and exhibits filed by the government. The

district court denied this motion because Weeks could

obtain the records from the state court. On May 30,

1995, Weeks also filed a request for limited discovery,

arguing that the government must disclose exculpatory

evidence in its possession. Weeks claimed that the

government possessed samples of blood and saliva, semen

samples taken from the victim, eyewitness statements,

jail records, and medical records (including x-rays)

which establish that Weeks was beaten. This motion was

denied. On June 12, 1995, the district court denied

another of Weeks's motions to produce records because the

records were available without cost from the state
-25-

custodian.

Weeks also filed another motion for the appointment

of counsel, which the district court dismissed as moot.

Attached to this motion was the only affidavit filed by

Weeks. The affidavit purportedly described events

surrounding his state court plea hearing, and asserted

that:
-26-

On the 10th of February 1992 the affiant

appeared before the judge . . . and informed the

judge that he was not going to plead guilty,

that he would rather pplead [sic] guilty to the

death penalty rather than plead guilty to those

charges. The affiant cursed the prosecutor and

his attorney and was thrown down in the

courtroom floor, handcuffed the affiant and

dragged him out of the courtroom. The affiant

was taken to the County Jail and immediately

taken to Bollinger County Jail. The Sheriff and

deputies then beat the affiant half to death and

that he was going to pay for not pleading

guilty. . . . [T]he affiant was given another

shot (drug that caused the affiant to withdraw

from his position of not pleading guilty). That

evening affiant was taken to the courtroom

wherein he pleaded guilty. The plea of guilty

was against his will and not knowingly. The

sheriff and sheriff (of Cape Girardeau County

and Bollinger County), threatened the affiant

right before he went in to plead guilty.

Aff. of Robin Weeks (May 30, 1995), reprinted in J.A. at

59.

On June 29, 1995, Weeks filed another set of motions,

asking for an order to disqualify the magistrate judge,

for leave to appeal in forma pauperis, and for a

certificate of probable cause. These motions were all

denied and Weeks then moved to vacate the orders. In

response, on August 4, 1995, the district court withheld

ruling for thirty days and ordered that Weeks could

present affidavits to support either Weeks's original

motion to disqualify the magistrate judge or Weeks's

present motion to reassign the case to a district judge.

The district court went on to order that "upon either (1)
-27-

failure to present additional facts by affidavit; or (2)

failure to show cause under the statute for

disqualification or extraordinary circumstances

justifying reassignment, the petitioner's motions will be

denied and this Court will proceed to rule on the

petition for habeas corpus." Clerk's Docket Sheet at 4,

reprinted in J.A. at 88. Weeks did not respond to the

district court's order.

On October 27, 1995, the district court denied

Weeks's habeas petition. The district court held that,

because Weeks had failed to file a Rule 24.035 motion, he

had 
 Prior to this appeal, Weeks, alleging that his guilty plea had been coerced through 6

physical violence in violation of the Fourteenth Amendment, had filed a 42 U.S.C.

§ 1983 (1994) action in the United States District Court for the Eastern District of

Missouri against various defendants. During the pendency of the instant appeal, a

unanimous jury reached a verdict for the defendants. See Weeks v. Copeland, No.

1:94CV00028LMB (E.D. Mo. Feb. 5, 1997). As preclusion was not asserted by the

government, we do not reach the question of whether claim and issue preclusion are

available in federal habeas corpus proceedings. See Hawkins v. Risley, 984 F.2d 321,

323 n.4 (9th Cir. 1993) (longstanding rule that preclusion is not available in federal

habeas corpus proceedings).

-28-

defaulted his claims. The district court also found that

Weeks had not made the requisite showing of cause and

prejudice or actual innocence necessary to overcome his

state procedural default. Weeks then appealed to this

Court.6

On appeal, Weeks asserts that his guilty plea was

coerced and that he is actually innocent of kidnaping and

raping Ms. Doe. Weeks argues that, because of his actual

innocence, the district court's failure to consider his

claims results in a fundamental miscarriage of justice.

To prevent this miscarriage of justice, Weeks argues,

this Court must excuse Weeks's procedural default and

address the merits of his constitutional claims. 

Weeks's argument rests upon his ability to establish

that he is actually innocent. In this regard, Weeks

makes three assertions. First, Weeks claims that he has

shown evidence of his actual innocence. Second, Weeks

asserts that, in the absence of evidence, his allegations

of evidence are sufficient. Third, Weeks claims that, at

the very least, his assertions that exculpatory evidence

exists are sufficient to entitle him to a hearing at
 Weeks also argues that no state court has found him to be in procedural default and 7

that, if he has defaulted, then his procedural default is excused by his illiteracy and the

state court's allegedly inadequate explanation of the procedure for obtaining postconviction relief in Missouri. A panel of this Court has already considered and rejected

these arguments. See Weeks, 106 F.3d at 249-50 (opinion vacated upon rehearing en

banc). We adopt the holding and reasoning of the panel set forth in section II of the

opinion as to these issues. Id.

-29-

which he could develop evidence of his actual innocence.7
-30-

II.

Weeks argues that he has presented sufficient

evidence to show that he is actually innocent. We

disagree.

The federal writ of habeas corpus is available to

state prisoners who are in custody in violation of the

laws or constitution of the United States. See 28 U.S.C.

§ 2254(a) (1994). A state prisoner wishing to raise

claims in a federal petition for habeas corpus ordinarily

must first present those claims to the state court and

must exhaust state remedies. See 28 U.S.C. § 2254(b)

(1994); see also Ex parte Royall, 117 U.S. 241, 251

(1886) (requiring exhaustion because "of the relations

existing, under our system of government, between the

judicial tribunals of the Union and of the States, and in

recognition of the fact that the public good requires

that those relations be not disturbed by unnecessary

conflict between courts equally bound to guard and

protect rights secured by the Constitution"). Requiring

the exhaustion of state remedies both allows the states

to correct any possible constitutional violations without

unnecessary intrusion by the federal courts and allows

the state courts to create a factual record should the

matter proceed to federal court. Furthermore, while

federal courts will consider all federal legal issues de

novo, see Townsend v. Sain, 372 U.S. 293, 318 (1963),

overruled on other grounds by Keeney v. Tamayo-Reyes, 504

U.S. 1 (1992), we are generally bound by state court

findings of fact. See 28 U.S.C. § 2254(d) (1994). 

A state prisoner who attempts to exhaust his state
-31-

remedies may run afoul of state procedural requirements.

A state prisoner who fails to adhere to state-defined 
-32-

procedures or fails to meet state-imposed time

requirements in the state courts may default on his

claims in the state courts. Weeks's failure to file a

timely Rule 24.035 postconviction motion constitutes just

such a default. Generally, federal courts will not

consider a state prisoner's federal habeas claim if the

state court found the claim to have been defaulted. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

 The basis for the procedural default rule is the

independent and adequate state grounds doctrine.

Coleman, 501 U.S. at 729-30 ("The [independent and

adequate state grounds] doctrine applies to bar federal

habeas when a state court declined to address a

prisoner's federal claims because the prisoner had failed

to meet a state procedural requirement."). The Supreme

Court has clearly enunciated the rationale behind this

rule:

In the habeas context, the application of the

independent and adequate state ground doctrine

is grounded in concerns of comity and

federalism. Without the rule, a federal

district court would be able to do in habeas

what [the Supreme] Court could not do on direct

review; habeas would offer state prisoners

whose custody was supported by independent and

adequate state grounds an end run around the

limits of [the Supreme] Court's jurisdiction and

a means to undermine the State's interest in

enforcing its laws. 

Id. at 730-31. 

Although this jurisdictional bar is not absolute, and
-33-

although the Supreme Court has crafted limited exceptions

to the general rule, the Court has consistently

recognized "the important interest in finality served by

state procedural rules, and the significant harm to the

States that results from the failure of federal courts to

respect them." Id. at 750. Furthermore, when a prisoner

defaults pursuant to a state procedural rule, "[a]ll of

the State's interests--in channeling the resolution of

claims to the most appropriate 
-34-

forum, in finality, and in having an opportunity to

correct its own errors--are implicated. . . ." Id.

The United States Supreme Court has articulated two

circumstances in which a federal habeas petitioner can

overcome a state procedural default:

In all cases in which a state prisoner has

defaulted his federal claims in state court

pursuant to an independent and adequate state

procedural rule, federal habeas review of the

claims is barred unless the prisoner can

demonstrate cause for the default and actual

prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to

consider the claims will result in a fundamental

miscarriage of justice.

Id. at 750.
 Weeks alleges both cause and prejudice and actual innocence. In Weeks v.

8

Bowersox, 106 F.3d 248 (8th Cir. 1997) (opinion vacated upon rehearing en banc), we

rejected Weeks's argument that he can demonstrate cause for the default and actual

prejudice. Because we adopt the prior panel's ruling on this issue, we only address

Weeks's claim of actual innocence in this opinion.

 As the Supreme Court explained 9

To ensure that the fundamental miscarriage of justice exception would

remain "rare" and would only be applied in the "extraordinary case,"

while at the same time ensuring that the exception would extend relief to

those who were truly deserving, [the Supreme] Court explicitly tied the

miscarriage of justice exception to the petitioner's innocence. . . . 

[The miscarriage of justice exception] rests in part on the fact that habeas

corpus petitions that advance a substantial claim of actual innocence are

extremely rare. . . . Explicitly tying the miscarriage of justice exception

to innocence thus accommodates both the systemic interests in finality,

comity, and conservation of judicial resources, and the overriding

individual interest in doing justice in the extraordinary case.

Schlup, 513 U.S. at 321-22 (quotations, citation, and note omitted).

-35-

To fit within the fundamental miscarriage of justice

exception, a petitioner must make a showing of actual

innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995). 8 9

With respect to the requisite showing of actual

innocence, we have held that:

[A] petitioner who raises a gateway claim of

actual innocence must satisfy a two-part test.

First, the petitioner's allegations of

constitutional error must be supported with new

reliable evidence that was not presented at

trial. Second, the petitioner must establish

that it is more likely than not that no

reasonable juror would have convicted him in the
-36-

light of the new evidence. The actual innocence

exception requires review of procedurally

barred, abusive, or successive claims only in

the narrowest type of case--when a fundamental

miscarriage of justice would otherwise result.
-37-

Bowman v. Gammon, 85 F.3d 1339, 1346 (8th Cir. 1996)

(quotations, citations, and alteration omitted), cert.

denied, 117 S. Ct. 1273 (1997).

Due to important comity and finality interests, the

actual innocence gateway is very limited. Few petitions

are "within the 'narrow class of cases . . . implicating

a fundamental miscarriage of justice.'" Schlup, 513 U.S.

at 315 (quoting McCleskey v. Zant, 499 U.S. 467, 494

(1991)). Few petitions require the exercise of "the

'equitable discretion' of habeas courts to see that

federal constitutional errors do not result in the

incarceration of innocent persons." Herrera v. Collins,

506 U.S. 390, 404 (1993). See also McCleskey, 499 U.S.

at 494 ("narrow class of cases" and "extraordinary

instances when a constitutional violation probably has

caused the conviction of one innocent of the crime"). As

the Supreme Court has stated: 

We remain confident that, for the most part,

victims of a fundamental miscarriage of justice

will meet the cause-and-prejudice standard. But

we do not pretend that this will always be true.

Accordingly, we think that in an extraordinary

case, where a constitutional violation has

probably resulted in the conviction of one who

is actually innocent, a federal habeas court may

grant the writ even in the absence of a showing

of cause for the procedural default. 

Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (emphasis

added) (quotations and citation omitted). 

In Schlup, the Supreme Court addressed the standard

of proof that governs review of actual innocence claims.
-38-

See Schlup, 513 U.S. at 322-24. In addressing this issue, the

Court considered the threat to scarce judicial resources

and the principles of finality and comity. See id. at

324. The Schlup court stated: 

To be credible, such a claim requires petitioner

to support his allegations of constitutional

error with new reliable evidence--whether it be
 The Missouri state trial court went to great lengths to determine, as a factual

10

matter, if Weeks entered his guilty plea voluntarily. See Tr. of Plea of Guilty &

Sentence at 22, reprinted in Resp't's Ex. F at 22 (finding Weeks guilty as charged after

an extensive inquiry and stating, "I find that your pleas of guilty are made and entered

into by you freely, knowingly, and voluntarily, and not as a result of duress or

coercion"). This factual finding must be accorded due deference by federal habeas

courts. See Ford v. Lockhart, 904 F.2d 458, 461 (8th Cir. 1990). While the state

court's finding of voluntariness is not per se binding on a federal habeas court, see

Blackledge v. Allison, 431 U.S. 63, 75 (1977), 28 U.S.C. § 2254's mandated deference

to such a finding is particularly proper in light of the state trial court’s ability to judge

the defendant’s credibility and demeanor at the plea hearing and the fact that "[m]ore

often than not a prisoner has everything to gain and nothing to lose from filing a

collateral attack upon his guilty plea." Blackledge, 431 U.S. at 71.

-39-

exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical

evidence--that was not presented at trial.

Because such evidence is obviously unavailable

in the vast majority of cases, claims of actual

innocence are rarely successful.

Id. at 324 (emphasis added). 

We agree with the district court that Weeks failed to

support his claim with new reliable evidence. Weeks

alleged the existence of a wide-ranging conspiracy

involving the state court, state prosecutors, and various

prison officers, all focused upon drugging and coercing

Weeks to plead guilty to a crime he did not commit. To 10

support this theory, Weeks submitted precisely one

affidavit--his own. Beyond his own affidavit, Weeks has

not presented a scintilla of evidence to support his

claims of coercion or conspiracy. Moreover, evidence

which supports Weeks's claim that he was coerced into

pleading guilty is only indirect evidence that he is
-40-

actually innocent.

To be sure, Weeks alleges that a staggering amount of

evidence exists that proves his actual innocence. This

evidence allegedly includes dozens of eyewitnesses,

numerous written records, and substantial physical

evidence. In claiming the existence 
 Weeks relies on a number of cases to support this expansive description of the

11

actual innocence analysis. After examining these cases, we conclude that they do not

support Weeks's interpretation. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)

("The prisoner may make the requisite showing by establishing that under the probative

-41-

of this mountain of evidence, however, Weeks has failed

to produce one iota of substance. Indeed, not only has

Weeks failed to submit affidavits from any of his twentyseven purported witnesses, but he has also failed to

specify as to what facts individual witnesses would

testify. See Petitioner's Motions to Reply to Show Why

an Evidentiary Hearing, and Appointment of Counsel, and

Writ of Habeas Corpus Should be Granted (Oct. 17, 1994)

at 4, reprinted in J.A. at 43. Because Weeks has not

presented new reliable evidence that he is actually

innocent, he can not pass through the actual innocence

gateway. Therefore, the district court properly

concluded that Weeks's state court procedural default

bars consideration of his federal habeas claims.

III.

Anticipating this Court's holding that he has not

presented sufficient credible evidence of actual

innocence to allow for the waiver of his procedural

default, Weeks argues that actual evidence is not

required to show actual innocence. Rather, Weeks argues

that to overcome a procedural default, a habeas

"petitioner’s burden is to make specific and particular

allegations of the evidence which he contends will

support a claim of actual innocence . . . ." Resp. to

Suggestion for Reh’g En Banc at 5 (emphasis in the

original). We disagree. 11
evidence he has a colorable claim of factual innocence." (emphasis added));

Blackledge, 431 U.S. at 76 (discussing the summary dismissal standard; the Court did

not discuss actual innocence as there was no procedural default of a constitutional

claim); Fontaine v. United States, 411 U.S. 213, 214 (1973) (noting that detailed

factual allegations that plea was coerced are in part documented by records); East v.

Scott, 55 F.3d 996 (5th Cir. 1995) (no actual innocence analysis); Houston v. Lockhart,

982 F.2d 1246 (8th Cir. 1993) (en banc) (granted hearing based on ineffective

assistance of counsel, not a showing of actual innocence); Amos v. Minnesota, 849

F.2d 1070 (8th Cir. 1988) (no actual innocence analysis); Wallace v. Lockhart, 701

F.2d 719 (8th Cir. 1983) (no actual innocence analysis); United States v. Goodman,

590 F.2d 705 (8th Cir. 1979) (no actual innocence analysis).

-42-

Adoption of a rule that would allow a waiver of a

state procedural default based on mere allegations of

actual innocence is not only contrary to the express

language of Schlup, 513 U.S. at 324 ("new reliable

evidence"), but also runs counter to the spirit and

purpose of the actual innocence gateway. Allowing a

creative prisoner to overcome his state procedural

default with well drafted allegations of evidence would

make a mockery of the Supreme Court's concern for

finality, comity, and judicial economy that underlies the

limited scope of the actual innocence exception.

At bottom, Weeks only gives his word that he is

innocent and that he can produce evidence to prove it.

Weeks's bare, conclusory assertion that he is actually

innocent is not sufficient to invoke the exception.

"Were protestation of innocence the only prerequisite to

application of this exception, we fear that actual

innocence would become a gateway forever open to habeas

petitioners' defaulted claims." Wyldes v. Hundley, 69

F.3d 247, 254 (8th Cir. 1995), cert. denied, 116 S. Ct.

1578 (1996).
-43-

IV.

Weeks's final argument for an evidentiary hearing

implicitly concedes arguendo that he has not yet passed

through the actual innocence gateway. Rather, Weeks

claims that his assertions that exculpatory evidence

exists are sufficient to entitle him to a hearing at

which he could develop the evidence needed to proceed

through the actual innocence gateway. We disagree. 

The failure to develop evidence of his actual

innocence in the state trial court is attributable to

Weeks. By entering a guilty plea in the state court, and

then failing to seek postconviction relief, Weeks

defaulted on his right to challenge his guilty plea in 
-44-

state court. Without properly pursuing this issue in

state court, Weeks put himself in the position of having

to establish either cause and prejudice or actual

innocence in order to proceed with a federal habeas

petition. 

Faced with this predicament, Weeks concocts a novel

solution. Because his confinement makes it difficult for

him to present evidence that he is actually innocent and

because it is therefore difficult for Weeks to fit within

the actual innocence gateway, Weeks argues that he is

entitled to an evidentiary hearing prior to any hearing

on his federal habeas claims. According to Weeks, his

many assertions that exculpatory evidence exists--

assertions being much easier to make--should entitle him

to a prehearing hearing. Weeks claims he is entitled to

this prehearing hearing in order to give him a fair

opportunity to make the requisite showing of evidence of

actual innocence. In essence, Weeks is seeking to

relitigate the factual basis of his conviction after

failing to present any exculpatory evidence in the state

trial court.

We reject Weeks's argument that he is entitled to an

evidentiary hearing in order to allow him to make the

showing that entitles him to the evidentiary hearing

contemplated by Schlup. We can find no statutory or

judicial authority for Weeks's proposed prehearing

hearing. Because such an entitlement has support neither

in the law nor in common sense, we decline to fashion

such an entitlement out of thin air. Rather, we choose

to follow the holdings of this Court in Bannister v.

Delo, 100 F.3d 610 (8th Cir. 1996), and Battle v. Delo,
-45-

64 F.3d 347 (8th Cir. 1995), cert. denied, 116 S. Ct.

1881 (1996). 

In Bannister, the petitioner sought to overcome the

procedural bar to the hearing of his successive habeas

claims with a claim of actual innocence. The Bannister

court explained that the petitioner
-46-

incorrectly asserts that an evidentiary hearing

was required so that he could develop evidence

in support of his claim of actual innocence. In

Battle, 64 F.3d at 353, we rejected the argument

that an evidentiary hearing was necessary to

enable the petitioner to develop evidence which,

he claimed, would exonerate him. Noting that in

essence, petitioner was asking us to excuse his

evidentiary default as to his claim of actual

innocence, in order that he may develop

sufficient evidence of his actual innocence, we

found this circular argument was without merit.

Bannister, 100 F.3d at 617 (quotations, citations, and

alterations omitted).

In Battle, this Court held that "[t]o avail himself

of [the actual innocence gateway], it is the

petitioner's, not the court's, burden to support his

allegations of actual innocence by presenting new

reliable evidence of his innocence." 64 F.3d at 354 (emphasis

in original) (quotations omitted). The Battle court

further explained that:

Even if an evidentiary hearing was necessary

for Battle to develop and present the serology

evidence, he has not shown the cause and

prejudice, or fundamental miscarriage of

justice, necessary to excuse his failure to

develop this evidence in state court. . . . 

More fundamentally, a remand is

inappropriate because the "actual innocence"

gateway through a procedural bar is not intended

to provide a petitioner with a new trial, with

all the attendant development of evidence, in

hopes of a different result. Rather it is an

opportunity for a petitioner, aggrieved by an
-47-

allegedly defective trial and having inexcusably

defaulted the available remedies, to raise such

a strong doubt to his guilt that, in hindsight,

we cannot have confidence in the trial's

outcome. . . .

Id. (citations omitted). 
 Building on the requirement of Tamayo-Reyes, Congress adopted the

12

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214, which added an evidentiary hearing provision to the habeas corpus statute.

Section 2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act,

provides that:

(2) If the applicant has failed to develop the factual basis of a claim in

State court proceedings, the court shall not hold an evidentiary hearing on

the claim unless the applicant shows that-- 

(A) the claim relies on-- 

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or 

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and 

(B) the facts underlying the claim would be sufficient to establish by clear

and convincing evidence that but for constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying offense.

§ 104, 110 Stat. at 1219.

Where omission of material facts from the state court record is attributable to the

petitioner, the new Act both codifies and narrows the Tamayo-Reyes standard.

Accordingly, whether we apply the Tamayo-Reyes standard or the § 2254(e)(2)

standard which superseded Tamayo-Reyes, the result is the same.

-48-

In Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), the

Supreme Court established the requirement that, if a

petitioner failed to develop the factual basis of a claim

in the state trial court, the petitioner must show cause

and prejudice or a fundamental miscarriage of justice

before relitigating the facts. Id. at 11-12. The Court 12

explained the rationale for this rule as follows:

As in cases of state procedural default,

application of the cause-and-prejudice standard
-49-

to excuse a state prisoner's failure to develop

material facts in state court will appropriately

accommodate concerns of finality, 
-50-

comity, judicial economy, and channeling the

resolution of claims into the most appropriate

forum.

Tamayo-Reyes, 504 U.S. at 8. Weeks's argument for a

prehearing hearing runs counter to this reasoning.

Weeks's guilty plea "comprehend[ed] all of the

factual and legal elements necessary to sustain a

binding, final judgment of guilt and a lawful sentence."

United States v. Broce, 488 U.S. 563, 569 (1989)

(emphasis added). The failure to further develop facts

in the state trial court is attributable to Weeks. A

federal court's relitigation of the factual basis for

Weeks's conviction--even in the context of a claim of

actual innocence tied to a state procedural default--

would run afoul of bedrock principles of finality,

comity, and judicial economy. Review of the facts

sustaining Weeks's conviction is barred unless Weeks

actually makes the requisite showing to excuse his

failure to develop exculpatory evidence in state court.

We are aware that it would be more convenient for

habeas petitioners to have the opportunities attendant

upon an evidentiary hearing, including court-ordered

discovery and subpoenas for witnesses, to gather evidence

to support actual innocence claims. But this additional

convenience to petitioners does not justify an expansive

interpretation of the actual innocence gateway. Nor do

we believe that our ruling will prevent habeas

petitioners from gathering the evidence required for a

showing of actual innocence. See 28 U.S.C. § 2246 (1994)

(authorizing submission of affidavits by habeas
-51-

petitioners at the discretion of the judge). Habeas

petitions are typically decided on the factual record

developed in the state trial court and, therefore, only

in the minority of cases are evidentiary hearings held.

In many ways, habeas petitions are by their nature

similar to summary judgment proceedings. For a

petitioner to carry his burden, he must submit relevant

evidence to the district court before the court rules on

his petition.
-52-

In the instant case, Weeks must bear the

responsibility for failing to present the district court

with any evidence upon which the district court could

hold Weeks's procedural default waived. Weeks had more

than a full year to present credible evidence of his

actual innocence to the district court, and yet Weeks

failed to submit anything more than his own

unsubstantiated affidavit. Indeed, on August 4, 1995,

nearly a year after Weeks filed his habeas petition, the

district court entered an order allowing Weeks to present

affidavits supporting either his original motion to

disqualify the magistrate judge or his present motion to

reassign the case to a district judge. The district

court went so far as to warn Weeks that, if Weeks did not

respond, the district court would proceed to rule on

Weeks's petition for habeas corpus. Despite this

explicit opportunity to present evidence, Weeks did

nothing. Weeks did not submit a single affidavit on the

question of the magistrate judge's jurisdiction. 

More importantly, beyond mere assertions, the only

affidavit Weeks submitted to establish his actual

innocence was his own. This is despite the fact that the

district court's order gave Weeks clear notice that the

district court would soon rule on his petition and that the

district court was receptive to the receipt of affidavit

evidence. While Weeks found the resources to file

endless motions recounting alleged, and somewhat bizarre,

events, Weeks chose to submit almost no evidence to

establish his actual innocence. Thus, Weeks having

failed to produce evidence of actual innocence, we reject

his argument for a novel prehearing hearing entitlement.
-53-

V.

Accordingly, the judgment of the district court is

affirmed.

LOKEN, Circuit Judge, concurring, with whom BEAM, Circuit

Judge, joins.

For me, the determining factor in this case is the

guilty plea. In every case in which the Supreme Court

has discussed the actual innocence exception to

procedural 
-54-

bar, the habeas petitioner had been convicted after a

trial or sentenced to death after a trial-type sentencing

hearing -- Smith v. Murray, Kuhlmann v. Wilson, Murray v.

Carrier, Dugger v. Adams, McCleskey v. Zant, Sawyer v.

Whitley, and Herrera v. Collins, all cited in Schlup v.

Delo, 513 U.S. 298 (1995). This is reflected in the

Court’s actual innocence standard, which requires the

district court “to assess the probative force of the

newly presented evidence in connection with the evidence

of guilt adduced at trial.” Schlup, 513 U.S. at 332

(emphasis added). 

In my view, there is an inherent paradox in the

notion that someone who has stood in open court and

declared, “I am guilty,” may turn around years later and

claim that he deserves to pass through the actual

innocence gateway. Because a guilty plea waives the defendant’s right to

prove his actual innocence at trial, see, e.g., McMann v. Richardson, 397 U.S. 759

(1970), a strong argument can be made that a guilty plea should absolutely foreclose

a post-conviction claim of actual innocence, a question we left open in Brownlow v.

Groose, 66 F.3d 997, 999 (8th Cir. 1995), cert. denied, 116 S. Ct. 1049 (1996). The

argument against such an absolute rule is that (i) facts which would invalidate a guilty

plea are typically outside the record and must be developed in a post-conviction

proceeding, and (ii) some circumstances that would invalidate a guilty plea are

consistent with actual innocence, a torture-induced plea being the most obvious

example. But if these concerns justify leaving the actual innocence gateway open for

truly extraordinary guilty plea cases, we must fashion a standard that identifies the truly

extraordinary and is consistent with the principle that a procedurally valid guilty plea

is “a formidable barrier in any subsequent collateral proceedings.” Blackledge v.

Allison, 431 U.S. 63, 74 (1977).
-55-

Our vacated panel decision held that the actual innocence inquiry is to “compare

what the state alleged at Weeks’s plea hearing that it could prove with the evidence

that Weeks has asserted in his pleadings that he could produce.” Weeks v. Bowersox,

106 F.3d 248, 250 (8th Cir. 1997). In my view, that standard ignores the most

important piece of evidence in the record, Weeks’s guilty plea. “A plea of guilty is 
-56-

more than a confession which admits that the accused did various acts; it is itself a

conviction; nothing remains but to give judgment and determine punishment.” Boykin

v. Alabama, 395 U.S. 238, 242 (1969). Because a procedurally valid guilty plea is

itself a sufficient basis to convict, the government does not present or even describe

its evidence at the guilty plea hearing; it must only satisfy the trial court that there is a

sufficient factual basis for the plea. Thus, the panel’s standard posits an unrealistic

evidentiary comparison, skewed to give the habeas petitioner who has pleaded guilty

a relatively easy pass through the actual innocence gateway. And even if the panel’s

standard were modified to permit the State to present its trial evidence at the actual

innocence hearing, the inquiry would still be skewed by the passage of time that

inevitably compromises the government’s ability to prove its case.

For these reasons, I conclude that the actual innocence inquiry in guilty plea

cases must focus primarily on the guilty plea. Unless the habeas petitioner has newlydiscovered evidence that his guilty plea was a false declaration of guilt, he should not

pass through the actual innocence gateway. This standard may well reduce the actual

innocence gateway to a tiny portal in guilty plea cases. But in my view that is

appropriate, both because the cause and prejudice exception to procedural bar is still

available, and because “the concern with finality served by the limitation on collateral

attack has special force with respect to convictions based on guilty pleas.” United

States v. Timmreck, 441 U.S. 780, 784 (1979).

A guilty plea is a “grave and solemn act,” not lightly to be set aside. United

States v. Hyde, 117 S. Ct. 1630, 1634 (1997), quoting Brady v. United States, 397 U.S.

742, 748 (1970). In this case, Weeks stood in open court and admitted that he dragged

the victim from her car, threatened her with a knife, and

forcibly raped her. When asked why he was pleading

guilty, Weeks answered, “Because I did what they say I

did,” and he further admitted that “everything in the

charge is true and correct.” Weeks has presented no
-57-

newly-discovered evidence that would undermine this

legally conclusive admission of guilt. His affidavit

that he pleaded guilty because the county 
-58-

sheriff and deputies “beat the affiant half to death” is

uncorroborated, has no inherent credibility, and thus

would not entitle Weeks to an evidentiary hearing on an

involuntary guilty plea claim that was not procedurally

defaulted. Compare Blackledge, 431 U.S. at 75-76. I

therefore agree with the court’s decision to affirm. 

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting, with

whom RICHARD S. ARNOLD, Chief Judge, McMILLIAN and

FLOYD R. GIBSON, Circuit Judges, join.

Rubin Weeks filed his petition for habeas corpus

under 28 U.S.C. § 2254. By way of excusing the

procedural default that the state pleaded in bar,

Mr. Weeks alleged that he was actually innocent of the

charges against him, listed by name a number of witnesses

who could exonerate him, and averred the existence of

DNA, blood, saliva, and semen tests that would show that

he did not commit the rape and kidnapping of which he was

convicted. The court, though it ridicules these

allegations, does not hold that they are delusional, or

otherwise inherently incredible; nor does it deny that,

if he produced the evidence that he claims exists, and it

was believed, Mr. Weeks would have made out a case that

he was actually innocent. Instead, the court holds, as

I understand it, that Mr. Weeks has failed to submit

sufficient evidence of his innocence, and therefore that

his petition was properly dismissed.

The infirmity in the court's position is that it

confuses pleading with proof. The Rules Governing

Section 2254 Cases in the United States District Courts,

in keeping with modern trends toward notice pleading,
-59-

require a person seeking a writ of habeas corpus merely

to "set forth in summary form the facts supporting each

of the grounds" on which the petitioner relies. See Rule

2(c). A form appended to the rules and intended for the use of habeas

petitioners, moreover, urges them to summarize "briefly the facts" (emphasis in

original) on the basis of which they are seeking relief, and in at least four other places,

the same form directs petitioners to "tell your story briefly" (emphasis in original).

While the appendix to the rules does not seem to contain a 
-60-

recommended form for responsive pleadings from a petitioner when the matter at issue

is a petitioner's procedural default, it does have a form for situations in which the

respondent claims that the petition is a successive one; and, in this latter instance,

petitioners are told merely to explain their position by stating "FACTS" (capitals in

original). 

It is plain from this that all that habeas petitioners are required to do in their

pleadings is to set out facts which, if found to be true, would entitle them to some legal

conclusion of which they are seeking the benefit. There is no requirement that evidence

be pleaded in habeas cases, and, presumably, any such requirement that a court would

impose would be unauthorized because it would be contrary to the rules as they now

stand. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, 507 U.S. 163, 168-69 (1993), where the court held that federal

courts were not authorized to apply a more stringent pleading requirement in cases

brought under 42 U.S.C. § 1983, because doing so could not be squared with the

Federal Rules of Civil Procedure. Perhaps it would be useful, or even desirable, to

establish heightened pleading standards in habeas corpus cases. But "that is a result

which must be obtained by the process of amending" the Rules Governing Section 2254

Cases in the United States District Courts, "and not by judicial interpretation." Id. at

168.

There is also no requirement in the rules that habeas petitioners attach to their

petitions or other pleadings affidavits or documentary evidence supporting the factual

allegations that those pleadings contain. No doubt, the judge reviewing the pleadings

in habeas cases may, in imitation of Fed. R. Civ. P. 56(e), require such affidavits, in

order to determine whether there are any material facts in dispute that would require

an evidentiary hearing on a petitioner's claim. See, e.g., Rule 8(a). But even before

a judge can do that, the petitioner may well be entitled to discovery to help marshal the

evidence to support the factual allegations in the petition. See Rule 6(a) and Bracy v.

Gramley, 65 U.S.L.W. 4435, 4436, 4438, 1997 WL 303400 (U.S. June 9, 1997). In
-61-

the present case, the district court never asked Mr. Weeks to support his claim of actual

innocence with affidavits. The court makes much of the fact that Mr. Weeks, when

asked to do so, failed to submit affidavits supporting his motions to disqualify the

magistrate judge from the case and to reassign the case to a district judge. But this fact

has no relevance to the matter at issue, namely, Mr. Weeks's actual innocence.

It will not be a matter of surprise if petitioner ultimately fails to prevail in this

case. Habeas petitioners hardly ever win. But the court simply short-circuits the rules

established for civil matters in general and essentially decides the case on the merits

without regard to the procedural posture in which it comes before us. Since Mr. Weeks

has pleaded facts that, if proved, would excuse his procedural default, his case should

be allowed to proceed in the district court. If he prevails on his claim of actual

innocence, then, for the reasons that I indicated in Weeks v. Bowersox, 106 F.3d 248

(8th Cir. 1997), the district court would be obligated to proceed to judgment on his

underlying claim, namely, that his plea was coerced, because his original petition

contains facts that, if proved, would allow him to withdraw that plea. See Blackledge

v. Allison, 431 U.S. 63 (1977).

For the reasons indicated, I respectfully dissent. 

FLOYD R. GIBSON, Circuit Judge, dissenting.

I join in Judge Morris Arnold's dissent. I write separately, however, to express

some concerns I have which are illustrated by this case. Where a habeas petitioner

brings a bona fide gateway claim of actual innocence, accompanied by the proper

pleadings and supporting data, it is advisable and appropriate to allow the defendant

an evidentiary hearing on the issue. I admit that the majority opinion fairly well sets

out that Weeks, in pleading guilty to the crime charged, made some strong statements

connecting him to this case, though he did not personally elucidate any actual details

of his participation. Weeks claims he pleaded guilty because he was beaten and 
-62-

tortured but that he is, in fact, actually innocent of the crimes to which he pled. This

poses a difficult dilemma for me. If Weeks is not guilty, a fundamental miscarriage of

justice results if we do not provide him with a hearing to prove his innocence. On the

other hand, if he is guilty, by claiming that he is actually innocent, he causes a great

abuse of the legal process, and possibly his attorney could be involved in this abuse if

he is aware of facts supporting Weeks's guilt. When such an abuse of the legal process

occurs, a habeas petitioner using these tactics should be sanctioned if it is found that

his claim of actual innocence has no merit. An appropriate sanction would limit the

number of illegitimate claims, while allowing those who are actually innocent to seek

redress. 

The record in this case, as expressed in the dissent by Judge Morris Arnold,

presents some doubts as to Weeks's guilt. The panel opinion appropriately remanded

the case for an evidentiary hearing to resolve these doubts, one way or another. See

Weeks v. Bowersox, 106 F.3d 248, 251 (8th Cir. 1997) (opinion vacated upon

rehearing en banc). I therefore adhere to the original panel opinion and join in Judge

Morris Arnold's dissent.

A true copy.

Attest:

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