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

___________ Be foreRICHARD 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 t o charges of kidnaping and rape and was sentenced t o conc urrent terms of thirty years and life imprisonment

. Although Weeks defaulted his postconviction relief an d was denied collateral relief in the Missouri state court, Week s petitioned for federal habeas relief in th eThe Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern 1 Distr ict of Missouri, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c ) (1994). -2- district court. 1A panel of this Court reversed the decision of the district court and remanded

. 2 Week s v. Bowersox , 106 F.3d 248, 251-52 (8th Cir. 1997) (opinion vacated upo n rehearing en banc). -3- Th e district court denied relief to Weeks without a n evidentiar y hearing, holding that Weeks defaulted on his fed eral habeas claims by failing to make a timel y peti tion to the Missouri state court for postconvictio n reli ef. The district court also held that Weeks ha d shown n either cause and prejudice for his default no r actual innocence of the kidnaping and rape ch arge. Weeks appe als, arguing that his actual innocence entitles hi m to an evidentiary hearing. Weeks asserts that he ha s made the requisite showing for a hearing on h is defaulted federal claims. First, Weeks maintains that he has shown evidence o f his actual innocence. Second, Weeks asserts that, in t he absence of evidence, his allegation that he is actuall y innocent, coupled with his unsupported claim that he could produce evidence of his innocence, i s sufficient. Third, Weeks argues that, even i f he has not estab lished his actual innocence, his assertions tha t exculpatory evidence exists are sufficient to entitle him to a hearing at which he could develop evidence of hi s actual innocence. We affirm. 2

I.
Shortly after midnight on October 13, 1991, Ms

. Jolynn Alicia [Doe], a young woman who was then twenty

one years of age, was driving home through Cap e Girarde au, Missouri, from her place of work. Weeks, a n illiterate thirty-year-old ex-convict, had seen [Ms. Doe] at her place of employmen t-4-

and had followed her as she wa s driving home . .

. . As [Weeks] was driving behind her, h e flash ed his lights seven or eight times whic h caused her to pull over. She had her door s locked and her windows rolled up. He came up to th e side of the car and had indicated to he r that there was some trouble with a bac k tail light or some part of the back of her car

. She rolled down her-5-

win dow enough to hear what he was saying, an d the next thing she knew a hand with a butcher

type knife had come in and was slashing at he r hands, which were on top of the steering whee l and cut her hands. [Weeks] th en was able to get the d oor open; [he] took her out of the car ; too k her to his car, and started driving wit h her t owards Bollinger County. While they wer e still in Cape [Girardeau] County, [Weeks ] ordered her to take off her clothes, which sh e remov ed from the lower part of her body

. [Week s] then performed an act of sodomy b y putting his finger in her vagi na 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 Bollinge r Count yline into Bollinger County, and i n Bollinger County they continue d to a farm, where he took her near a barn and raped her on a blanket and also performed various types o f sodomyat that time too. . . . [Weeks then ] went and took his belt and stood over her wit h his belt in his hands. [Ms. Doe] felt tha t [We eks] was considering strangling her. [Ms

. Doe ] felt that she was about to die. Instea d [W eeks] went to his car and got duct tape b y whi ch he used to tie her ankles and her knee s an d her hands, and he left her tied there i n Bo llinger County and [then Weeks] drove off

. [Ms

. Doe] was able to get free and ultimatel y got to the authorities.

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

- 25, reprinted inResp't's Ex. F at 23-25 (de scription of crimes by prosecutor).

We eks was subsequently arrested in Mississippi an d extr adited 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 Mi ssouri state court t o the charges. Weeks's counsel explained to th e state tria l court that, pursuant to a plea agreement and in response to Weeks's guilty plea,

the S tate has agreed to dismiss . . . all th e cha rges except the two to which we have pled , the k idnaping and the rape. [The stat e prosecutors] have also agreed that whateve r sente nce you impose on those two charges shal l run c oncurrently. They have also agreed an d they have produced records-7-

which support their position that if they would fil e as a Class X offender, it would increas e the f urther time before he could be considere d for p arole to eighty percent. They hav e de clined to do that upon a valid plea to ou r charges. So you have the disc retion to sentence himfrom 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 persisten t offender.

Id. a t 16, reprinted in Resp't's Ex. F at 16 (statemen t 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 ple d guilty

becau se I have advised him concerning the law , that [the plea agreement] gives him som e oppor tunityfor parole at some date in th e future, albeit it could be a far date. M y adv ice to him was we didn't think by going t o trial the other way, that he has the realisti c oppor tunitythat he would be able to receiv e probation in light of the amou nt of charges that were B and A felonies. So he has neve r maintained--he has given confessions to th e charges and he has admitted hi s involvement, and he feels this is the best of t he choices he has.
Id

. at 20-21, reprinted in Resp't's Ex. F at 20-2 1 (sta tement of defense counsel). Weeks agreed that hi s 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 abou t your desire to enter pleas of guilty. I f at any time you do not understand my questi ons, inter rupt 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 t o 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 Petit ions 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 no t understand?
A. No, sir. Q. Let m e 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 i s pleading to Count I, which is-10- kidnaping, and in the Bollinger County c ase, he is pleading to Count II, which is rape. Q. Oka y, in Count I, did you on October 13 o f last year unlawfully remove Jolynn Alici a [Doe] , without her consent, from her car on CountyRoad 350, which was abou t approximately150 yards from th e inter section of County Road 350 and Highway 72?
A. Yes.

. . . . Q. Let me ask you, on Count II, on th e Bo llinger County case, did you also o n October 13th of last year, and that woul d be in Bollinger County, whereas the other wa s in Cape [Girardeau] County, in Bollinge r Count y 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 d id 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] ki dnapped 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 lo oking at my rear-view mirror. I'm afraid that this is going to happen again. I can' t trustanybod y, 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 R esp't's Ex. F at 25.

-12- Q. A knife, okay. Well, what did you do? Tell me in your own words what happened abou t the se two crimes, one in Cape Girardea u Coun tyand one in Bollinger County, tha t makes you think you are guilty?
A. Because I am guilty. Q. I und erstand, but tell me in your own words wha t happened on these two charges tha t makes you think that you are guilty of th e crime?
A. Because I did what they said I did. Q. So everything in those charges is true an d 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 t he Court] Now, have any other promises-13- been ma de by anyone to get you to plea d guilty?The Missouri state court ascertained that, although Weeks received prescriptio n 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 gi ve you a report, if I can find it.

. . . . MR. ROBBINS: Judge, we have--I have received a copy of a report from Fult on State Hospital, and according to this, dated January 28th, he was place don Prozac, which is for depression. He was also placed o n something called Mevacor. He was also placed on Diphenhydramine , according to the report I receive d. 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. Ha s anyone forced you or threatened you i n 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. 4A. 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. RO BBINS: Judge, some of those are for triglycerides, which i s 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, l et me ask you this, are any of those medications affecting you r 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 you r 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 hav e talked to him on several, several, several occasions about this

. While he may not be pleased with the situa tion, he seems to comprehend, has no question about what could happen. We have been over thi s multipl e 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 thes e -15-medication s, 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 wantt o; so are you telling me they don't have any effect on you abou t 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 ad ditional 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 inResp't's Ex. F at 18-2 0 (emphasis added). -17--18-

At the sentencing phase of Weeks's hearing, Weeks' s atto rneyargued strongly that Weeks should receive a sentence o f a determinate number of years, rather than a life sentence. Weeks's counsel stated:

I'm not trying in any way to diminish the fac t that the young lady was assaulted, and I'm sure it has affected her, and I don't want it to d o that; however, my obligation is to Mr. Weeks

. His life is also, maybe not en ded, but certainly has been changed. Judge, we are going to as k that you impose a sentence, not a life sentence but a t erm of years. . . . [I]f you choose th e thirty year period, sixty percent of thirt y years is eighteen years before he is eve n eligible to be released. Judg e, this has been a di fficult situation for everybody concerned

. [W eeks] also because he has health problems

. The p roblems are obvious. There is som e speculation that his life expe ctancy is not that long. He has a wife and he has childre n himself

. I believe that the reason he i s choosing this, he has hopes if he beats th e odd s, so to speak, that he at least will hav e the op portunity to see them, to be with the m some port ion 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 thi s yo ung lady a lot of trauma; he has saved th e State the burden of going through the tria l procedures . . . .

Id. at 27-28, reprinted in Resp't's Ex. F at 27-28.
Noting the emotional and physical trauma suffered by Week s's victim, and the brutality and premeditation o f Weeks's crimes, the Missouri state prosecutor s asked that-19-

Weeks be given a life sentence. The Missouri state court entered a judgment ofIn pertinent part, Rule 24.035(a) provides: 5
A person c onvicted of a felony on a plea of guilty and delivered to th e custody of the department of corrections who claims that the conviction or sentence imposed violates th e constitution and laws of this state or the constitutionof the United States . . . may seek relief in the sentencin g courtpur suant to the provisions of this Rule 24.035. This Rule 24.03 5 provides the exclusive procedure by which such person may seek relie f 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 vac ate, 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 appellat e court is issued. If no appeal of such judgment was ta ken, the motion shall be filed wi thin ninety days of the date the person is delivered to th e 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 righ

t to proceed under this Rule 24.035 and a complete waiver of anyclaim that could be raised in a motion filed pursuant to this Rul e 24.035. Mo. S. Ct. R. 24.035(b) (emphasis added). -20- guil tyagainst Weeks and sentenced him to thirty year s imprisonment for kidnaping Ms. Doe, and a con current term of life imprisonment for raping Ms. Doe.
Following sentencing, the state court told Week s about the availability of postconviction relief unde r Missouri Supreme Court Rule 24.035. This rule requires 5 a prisoner seeking postconviction relief to f ile a motion requ esting the court to vacate the guilty plea. Th e-21-

court presented Weeks with the standard form for makin g suc h a motion, read the form to him, and instructe d Weeks's lawyer to explain it to him. The-22-

cour t did not, however, specifically inform Weeks tha t the rule requires the form to be filed withinninety days after the entry of his plea.

Weeks did not appeal his sentence. In addition , Week s, who was not represented by counsel after trial , neve r filed a Rule 24.035 postconviction motion to se t aside h is conviction and sentence. In Missouri, such a mo tion is the exclusive remedy to challenge a guilt y plea. See Mo. S. Ct. R. 23.035(a). Having f orfeited his postconviction relief and direct appeal, Weeks pursue d stat e collateral review. The Missouri state cour t dism issed Weeks's state habeas petition because he ha d not f iled a Rule 24.035 motion. See Order (Oct. 6 , 1994), reprinted in Resp't's Ex. K.

On September 13, 1994, Weeks, proceeding in form a pauperis, filed a federal habeas petition in the Unite d Stat es District Court for the Eastern District o f Misso uri. Weeks raised the following claims in hi s peti tion: (1) that Weeks was unlawfully arrested i n Mi ssissippi and transported to Missouri without a n extr adition hearing; (2) that Weeks's guilty plea i n state c ourt was involuntary; (3) that Weeks was neve r arraig ned on the rape charge; (4) that Weeks wa s im properlycharged as a prior offender; and (5) tha t Weeks was denied the right to present evidence and t o presen t a defense. The State of Missouri responded b y arguing that Weeks had failed to exhaust state remedie s and, in a subsequent supplementary response, that Week s had proced urally 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 o f motio ns with the district court. On October 7, 1994 , Weeks filed a motion to appear before the court for a n immedia te hearing, a motion to compel, and a motion fo r the appointment of counsel. Weeks made a number o f allegations within his filings, including tha t he had not pled guilt y in state court; that while in Missouri state custody prior to the state court plea hearing Weeks wa s beat en by prison officers, denied medical attention fo r a head inj ury, and given a shot that had him "out of his head"; that Weeks had a romance with a prison-24-

nurs e; and that there are seven eyewitnesses who woul d testify th at Weeks was not in the State of Missouri when Ms. Doe was kidnaped and raped.

On October 17, 1994, Weeks filed a traverse title d "Motion to Reply to Show Why an Evidentiary Hearing an d Appointment of Counsel and Writ of Habeas Corpus Shoul d be Gr anted." In this filing, Weeks listed the names o f twenty-seven witnesses that Weeks asserted he could call. Week s also challenged Ms. Doe's identification of Week s as the kidnapper and rapist, and Weeks revealed that h e had numerous civil actions pending against the officer s who allegedly beat Weeks.
On April 12, 1995, t he district court denied Weeks's motion to compel, noting that Weeks did not i dentify what he wanted compelled. The district court also denie d Weeks's mo tions for a hearing and for the appointment of counsel. On May 30, 1995, Weeks filed a motion to order the distri ct court clerk to provide Weeks with copies of the files and exhibits filed by the government. Th e dist rict court denied this motion because Weeks coul d obtain the records from the state court. On May 30 , 1995, Weeks also filed a request for limited discovery , argui ng that the government must disclose exculpator y evide nce in its possession. Weeks claimed that th e gove rnment possessed samples of blood and saliva, seme n sampl es taken from the victim, eyewitness statements , jail records, and medical records (including x-rays ) which e stablish that Weeks was beaten. This motion wa s deni ed. On June 12, 1995, the district court denie d another of Weeks's motions to produce records because the
reco rds were available without cost from the stat e-25-

custodian.

Weeks also filed another motion for the appointmen t of counsel, which the district court dismissed as moot

. Attache d to this motion was the only affidavit filed b y We eks. The affidavit purportedly described event s surr ounding his state court plea hearing, and asserte d that:-26-

On th e 10th of February 1992 the affian t 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 a ttorney and was thrown down in th e courtroomfloor, handcuffed the affiant an d dragged him out of the courtroom. The affian t was t aken to the County Jail and immediatel y 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 pleadin g gui lty. . . . [T]he affiant was given anothe r shot (drug that caused the affiant to withdra w from his position of not plead ing guilty). That evening affiant was taken to the courtroo m wherein he pleaded guilty. The plea of guilt y was ag ainst his will and not knowingly. Th e she riff and sheriff (of Cape Girardeau Count y and Bollinger County), threatened the affian t right before he went in to plead guilty.

Aff. of Ro bin Weeks (May 30, 1995), reprinted in J.A. at 59.

OnJune 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 cert ificate of probable cause. These motions were al l denie d and Weeks then moved to vacate the orders. I n response, on August 4, 1995, the district court withheld rulin g for thirty days and ordered that Weeks coul d prese nt affidavits to support either Weeks's origina l moti on to disqualify the magistrate judge or Weeks' s present mo tion to reassign the case to a district judge. The district court went on to order that "upo n either (1)-27-

failure to present additional facts by affidavit; or (2) fail ure to show cause under the statute fo r disqu alification or extraordinary circumstance s justifying reassignment, the petitioner's mot ions will be denied and this Court will proceed to rule on th e petition f or habeas corpus." Clerk's Docket Sheet at 4, repri nted in J.A. at 88. Weeks did not respond to th e district court's order.

On October 27, 1995, the district court denie d Weeks's habeas petition. The district court held that , because Weeks had failed to file a Rule 24.03 5 motion, he hadPrior 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 o f Missouri against various defendants. During the pendency of the instant appeal, a unan imous 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 gove rnment, we do not reach the question of whether claim and issue preclusion ar e available in federal habeas corpus proceedi ngs. 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 als o found that Weeks had not made the requisite showing of cause an d prej udice or actual innocence necessary to overcome hi s stat e procedural default. Weeks then appealed to thi s Court. 6

On ap peal, Weeks asserts that his guilty plea wa s coerced and that he is actually innocent of k idnaping and raping Ms. Doe. Weeks argues that, because o f his actual inno cence, the district court's failure to consider hi s clai ms results in a fundamental miscarriage of justice

. To p revent this miscarriage of justice, Weeks argues , this Court must excuse Weeks's procedural default an d address the merits of his constitutional claims.
Weeks's argument res ts upon his ability to establish that he is actually innocent. In this regard, Week s makes thre e assertions. First, Weeks claims that he has show n evidence of his actual innocence. Second, Week s asserts that, in the absence of evidence, his allegations of evidence are sufficient. Third, Weeks cla ims that, at the very l east, his assertions that exculpatory evidence exis ts are sufficient to entitle him to a hearing a tWeeks 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 post

conviction relief in Missouri. A panel of this Court has already con sidered and rejected these arguments. See W eeks , 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 th e opinion as to these issues. Id. -29- which he could develop evidenc e of his actual innocence. 7-30- II.

Wee ks argues that he has presented sufficien t ev idence to show that he is actually innocent. W e disagree.

The f ederal writ of habeas corpus is available t o state prisoners who are in custody in violation of th e laws or constitution of the United States. S ee 28 U.S.C. § 22 54(a) (1994). A state prisoner wishing to rais e claims in a federal petition for habeas corpu s ordinarily must f irst present those claims to the state court an d must exhaust state remedies. See 28 U.S.C. § 2254(b ) (19 94); see also Ex parte Royall , 117 U.S. 241, 25 1 (1886) (requiring exhaustion because "of the relation s exis ting, under our system of government, between th e judicial tribunals of the Union and of the St ates, and in recogni tion of the fact that the public good require s that those relations be not disturbed by unnecessar y conf lict between courts equally bound to guard an d protect ri ghts secured by the Constitution"). Requiring the exhaustion of state remedies both allows the state s to correct any possible constitutional violat ions without
unne cessaryintrusion by the federal courts and allow s the st ate courts to create a factual record should th e matt er proceed to federal court. Furthermore, whil e federal co urts 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. Tamay o-Reyes , 504 U.S. 1 (1992), we are generally bound by state cour t findings of fact. See 28 U.S.C. § 2254(d) (1994).

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

remedies m ay run afoul of state procedural requirements. A state prisoner who fails to adhere to state-defined-32-

proc edures or fails to meet state-imposed tim e requi rements in the state courts may default on hi s claims in the state courts. Weeks's failure to file a timely Rule 24.035 postconviction motion cons titutes just such a default. Generally, federal courts will no t consider a state prisoner's federal habeas claim if th e state cour t 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 th e independent and adequate state grounds doctrine

. Cole man , 501 U.S. at 729-30 ("The [independent an d adeq uate state grounds] doctrine applies to bar federa l habeas when a state court declined to address a prisoner's federal claims because the prisone r had failed to meet a state procedural requirement."). The Suprem e Cour t has clearly enunciated the rationale behind thi s rule:

In th e habeas context, the application of th e independent and adequate state ground doctrin e is grounded in concerns of comity an d fede ralism. Without the rule, a federa l distri ct court would be able to do in habea s what [the Supreme] Court could not do on direct review; habeas would offer state prisoner s whos e custody was supported by independent an d adequ ate state grounds an end run around th e limits of [the Supreme] Court' s jurisdiction and a mea ns to undermine the State's interest i n enforcing its laws.

Id. at 730-31.
Althoughthis jurisdictional bar is not absolute, an d-33-

although the Supreme Court has crafted limite d exceptions to t he general rule, the Court has consistentl y recognized"the important interest in finality served by state procedural rules, and the significant harm to th e States that results from the failure of feder al courts to respect them." Id. at 750. Furthermore, whe n a prisoner defaults pursuant to a state procedural rule, "[a]ll o f the State's interests--in channeling the resolution o f claims to the most appropriate-34-

forum , in finality, and in having an opportunity t o correct its own errors--are implicated. . . ." Id.

The United States Supreme Court has articulated tw o circ umstances in which a federal habeas petitioner ca n overcome a state procedural default:

In a ll cases in which a state prisoner ha s defaulted his federal claims in state cour t pur suant to an independent and adequate stat e pro cedural rule, federal habeas review of th e clai ms is barred unless the prisoner ca n de monstrate cause for the default and actua l preju dice as a result of the alleged violatio n of fe deral law, or demonstrate that failure t o consider the claims will resul t in a fundamental miscarriage of justice.

Id. at 750.Weeks a lleges 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 actua l prejudice. Because we adopt the prior panel's ruling on this issue, we only addres s Weeks's claim of actual innocence in this opinion. As the Supreme Court explained 9
To ens ure that the fundamental miscarriage of justice exception woul d rema in "rare" and would only be applied in the "extraordinary case, " while at the same ti me ensuring that the exception would extend relief to th ose who were truly deserving, [the Supreme] Court explicitly tied th e miscarriage of justice exception to the petitioner's innocence. . . . [The miscarriage of justice exception] r ests 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 overridin g 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 fu ndamental miscarriage of justice excepti on, a petitioner must make a showing of actua l innocence. Schlup v. Delo , 513 U.S. 298, 321 (1995). 8 9 With respect to the requisite showing of actua l innocence, we have held that:
[A] p etitioner who raises a gateway claim o f actu al innocence must satisfy a two-part test

. First, the petitioner's allegations o f constitutional error must be supported with new reliable evidence that was not presented a t tri al. Second, the petitioner must establis h that it is more likely than not that n o reasonable juror would have co nvicted him in the-36-

light of the new evidence. Th e actual innocence exc eption requires review of procedurall y bar red, abusive, or successive claims only i n the narrowest type of case--when a fundamenta l miscarriage of justice would otherwise result.-37-

Bowm an 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, th e actual inn ocence gateway is very limited. Few petitions are "withi n the 'narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Schl up , 513 U.S. at 3 15 (quoting McCleskey v. Zant , 499 U.S. 467, 49 4 (1 991)). Few petitions require the exercise of "th e 'equ itable discretion' of habeas courts to see tha t fede ral constitutional errors do not result in th e incarcerat ion of innocent persons." Herrera v. Collins , 506 U .S. 390, 404 (1993). See also McCleskey , 499 U.S

. at 4 94 ("narrow class of cases" and "extraordinar y instances when a constitutional violation probably ha s caused the conviction of one innocent of the crime"). As the Supreme Court has stated:

We re main confident that, for the most part , victims of a fundamental miscarriage of justice will meet the cause-and-prejud ice standard. But we do not pretend that this wi ll always be true. Acco rdingly, we think that in an extraordinar y case , where a constitutional violation ha s proba blyresulted in the conviction of one wh o is actually innocent, a federa l 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 standar d of proof t hat governs review of actual innocence claims.-38-

See Schlup , 513 U.S. at 322-24. In addressing this issue, th e Court cons idered the threat to scarce judicial resources and the principles of finality and comity. See id. a t 324. The Schlup court stated:
To be credible, such a claim r equires petitioner to support his allegations of constitutiona l error with new reliable evidence --whether it beThe Missouri state trial court went to great lengths to determine, as a factua l 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 an d stating, "I find that your pleas of guilty are made and entered into b y you freely, knowingly, and voluntarily, and not as a result of duress o r coerci on"). This factual finding must be accorded due deference by federal habea s courts. See Ford v. Lockhart , 904 F.2d 458, 461 (8th Cir. 1990). While the stat e court's finding of voluntariness is not per se binding on a federal habeas court, se e Blackledge v. Allison , 431 U.S. 63, 75 (1977), 28 U.S.C. § 2254's mandated deference to such a findi ng is particularly proper in light of the state trial court’s ability to judge the def endant’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- ex culpatoryscientific evidence, trustworth y eyewitness accounts, or critical physica l evidence--that was not presented at trial

. Because such evidence is obviously unavailabl e 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 t o su pport his claim with new reliable evidence. Week s al leged the existence of a wide-ranging conspirac y involving the state court, state prosecutors, and various pris on officers, all focused upon drugging and coercin g Weeks to plead guilty to a crime he did not commit. To 10
su pport this theory, Weeks submitted precisely on e affidavit- -his own. Beyond his own affidavit, Weeks has
no t presented a scintilla of evidence to support hi s clai ms of coercion or conspiracy. Moreover, evidenc e which s upports Weeks's claim that he was coerced int o pl eading guilty is only indirect evidence that he i s-40-

actually innocent.

To be sure, Weeks alleges that a staggering amount o f evidence exists that proves his actual innocence. Thi s evidence allegedly includes dozens of eyewitnesses , numerous written records, and substantial physica l evidence. In claiming the existenceWeeks rel ies on a number of cases to support this expansive description of th e 11 actual innocence a

nalysis. 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 faile d to pr oduce one iota of substance. Indeed, not only ha s Weeks failed to submit affidavits from any of his twentyse ven purported witnesses, but he has also failed t o spec ifyas to what facts individual witnesses woul d testify

. See Petitioner's Motions to Reply to Show Wh y an E videntiary Hearing, and Appointment of Counsel, an d Writ of Habeas Corpus Should be Granted (Oct. 17, 1994 ) at 4, r eprinted in J.A. at 43. Because Weeks has no t pres ented new reliable evidence that he is actuall y inno cent, he can not pass through the actual innocenc e gateway. Therefore, the district court properl y concl uded that Weeks's state court procedural defaul t bars consideration of his federal habeas claims.

III.
Anticipating this Court's holding that he has no t presented sufficient credible evidence of actua l innoc ence to allow for the waiver of his procedura l defa ult, Weeks argues that actual evidence is no t required t o show actual innocence. Rather, Weeks argues that to overcome a procedural default, a habea s "pet itioner’s burden is to make specific and particula r alle gations of the evidence which he contends wil l support a claim of actual innocence . . . ." Resp. t o Su ggestion for Reh’g En Banc at 5 (emphasis in th e original). We disagree. 11evi dence he has a colorable claim of factual innocence." (emphasis added)) ;

Blackledge , 431 U.S. at 76 (discussing the summary dismissal standard; the Court did no t discuss actual innocence as there was no procedural default of a constitutiona l claim); F ontaine v. United States , 411 U.S. 213, 214 (1973) (noting that detaile d factualallegations 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 1 246 (8th Cir. 1993) (en banc) (granted hearing based on ineffectiv e assist ance of counsel, not a showing of actual innocence); Amos v. Minnesota , 84 9 F.2d 1 070 (8th Cir. 1988) (no actual innocence analysis); Wallace v. Lockhart , 70 1 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- Adopt ion of a rule that would allow a waiver of a stat e procedural default based on mere allegations o f
ac tual innocence is not only contrary to the expres s language of Schlup , 513 U.S. at 324 ("new reliabl e evide nce"), but also runs counter to the spirit an d pu rpose of the actual innocence gateway. Allowing a cr eative prisoner to overcome his state procedura l defa ult with well drafted allegations of evidence woul d mak e a mockery of the Supreme Court's concern fo r finality, comity, and judicial economy that u nderlies the limited scope of the actual innocence exception.

At bottom, Weeks only gives his word that he i s innoce nt and that he can produce evidence to prove it

. Week s's bare, conclusory assertion that he is actuall y inno cent is not sufficient to invoke the exception

. "Were prot estation of innocence the only prerequisite to appl ication of this exception, we fear that actua l innocence would become a gateway forever open to habea s peti tioners' defaulted claims." Wyldes v. Hundley , 6 9 F.3d 247, 254 (8th Cir. 1995), cert. denied , 116 S. Ct

. 1578 (1996).-43- IV.

Weeks's final argument for an evidentiary hearin g implicitly concedes arguendo that he has not yet passe d thro ugh the actual innocence gateway. Rather, Week s clai ms that his assertions that exculpatory evidenc e exis ts are sufficient to entitle him to a hearing a t which h e could develop the evidence needed to procee d through the actual innocence gateway. We disagree.

The failure to develop evidence of his actua l innocen ce in the state trial court is attributable t o Weeks. By entering a guilty plea in the stat e court, and then failing to seek postconviction relief, Week s defaulted on his right to challenge his guilty plea in-44-

state c ourt. Without properly pursuing this issue i n state cour t, Weeks put himself in the position of having to e stablish either cause and prejudice or actua l innoc ence in order to proceed with a federal habea s petition.

Faced with this predicament, Weeks concocts a nove l solution. Because his confinement makes it d ifficult for him to pre sent evidence that he is actually innocent and because it is therefore difficult for Weeks t o fit within the ac tual innocence gateway, Weeks argues that he i s entitled to an evidentiary hearing prior to any hearin g on his federal habeas claims. According to Weeks, hi s manyassertions that exculpatory evidence exists-

- assertions being much easier to make--should entitle him to a prehe aring hearing. Weeks claims he is entitled to thi s prehearing hearing in order to give him a fai r opportunit y to make the requisite showing of evidence of actual innocence. In essence, Weeks is seeking t o reli tigate the factual basis of his conviction afte r failing to present any exculpatory evidence in the state trial court.
We reject Weeks's ar gument that he is entitled to an evide ntiaryhearing in order to allow him to make th e show ing that entitles him to the evidentiary hearin g cont emplated by Schlup . We can find no statutory o r judicial authority for Weeks's proposed prehearin g hearing. Because such an entitlement has sup port neither in th e law nor in common sense, we decline to fashio n such an entitlement out of thin air. Rather, we choos e to f ollow 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 th e proc edural bar to the hearing of his successive habea s claims with a claim of actual innocence. The Banniste r court explained that the petitioner-46-

incorrectlyasserts that an evidentiary hearin g was r equired so that he could develop evidenc e in support of his claim of act ual innocence. In Battle , 64 F.3d at 353, we rej ected the argument th at an evidentiary hearing was necessary t o enable the petitioner to devel op evidence which, he claimed, would exonerate hi m. Noting that in essence, petitioner was asking us to excuse his evide ntiarydefault as to his claim of actua l inn ocence, in order that he may develo p sufficient evidence of his actual innocence, we found this circular argument was without merit.

Bann ister , 100 F.3d at 617 (quotations, citations, an d alterations omitted).

In Batt le , this Court held that "[t]o avail himsel f of [ the actual innocence gateway], it is th e peti tioner's, not the court's, burden to support hi s allegations of actual innocence by presenting ne w reliable evidence of his innocence." 64 F.3d at 354 (emphasis in o riginal) (quotations omitted). The Battle cour t further explained that:

Even if an evidentiary hearing was neces sary for B attle to develop and present the serolog y evide nce, he has not shown the cause an d pr ejudice, or fundamental miscarriage o f justice, necessary to excuse his failure t o develop this evidence in state court. . . .
More fundamenta lly, a remand i s in appropriate because the "actual innocence " gateway through a procedural b ar is not intended to provide a petitioner with a new trial, wit h all the attendant development of evidence, i n hop es of a different result. Rather it is a n opp ortunityfor a petitioner, aggrieved by a n-47-

allegedly defective trial and having inexcusably defaulted the available remedies, to raise such a strong doubt to his guilt that, in hindsight, we c annot have confidence in the trial' s outcome. . . .

Id. (citations omitted).Bu ilding on the requirement of Tamayo-Reyes , Congress adopted th e 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 ap plicant has failed to develop the factual basis of a claim i n State court proceedings, the court shall not hol d 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 t o cas es on collateral review by the Supreme Court, that wa s previously unavailable; or (i i) a factual predicate that could not have been previousl y discovered through the exercise of due diligence; and (B) the facts underlying the claim would be suffic ient to establish by clear an dconvincing evidence that but for constitutional error, no reasonabl e factfinder would have found the applicant guilty of the un derlying offense. § 104, 110 Stat. at 1219.
Where omission of material facts from the state court record i s attributable to the petiti oner, the new Act both codifies and narrows the Tamayo-Reyes standard

. Acc ordingly, whether we apply the Tamayo-Reyes standard or the § 2254(e)(2 ) standard which superseded Tamayo-Reyes , the result is the same. -48- In Ke eney v. Tamayo-Reyes , 504 U.S. 1 (1992), th e Supr eme Court established the requirement that, if a petitioner failed to develop the factual basi s of a claim in the sta te trial court, the petitioner must show cause and prejudice or a fundamental miscarriage of justic e before relitigating the facts. Id. at 11-12. The Court 12 explained the rationale for this rule as follows:

As i n cases of state procedural default , application of the cause-and-prejudice standar d-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 th e reso lution of claims into the most appropriat e forum.

Tama yo-Reyes , 504 U.S. at 8. Weeks's argument for a prehearing hearing runs counter to this reasoning.

Week s's guilty plea "comprehend[ed] all of th e fact ual and legal elements necessary to sustain a binding, f inal judgment of guilt and a lawful sentence." United States v. Broce , 488 U.S. 563, 569 (1989 ) (emphasis added). The failure to further develop fact s in th e state trial court is attributable to Weeks. A fede ral court's relitigation of the factual basis fo r Weeks's conviction--even in the context of a claim o f actu al innocence tied to a state procedural default-

- woul d run afoul of bedrock principles of finality , comity, and judicial economy. Review of the fact s sust aining Weeks's conviction is barred unless Week s actu allymakes the requisite showing to excuse hi s failure to develop exculpatory evidence in state court.

We a re aware that it would be more convenient fo r habeas petitioners to have the opportunities attendan t upon an evidentiary hearing, including court-ordere d discovery and subpoenas for witnesses, to gat her evidence to support actual innocence claims. But this additional convenienc e to petitioners does not justify an expansive interpretation of the actual innocence gateway. Nor d o we b elieve that our ruling will prevent habea s peti tioners from gathering the evidence required for a showing of actual innocence. See 28 U.S.C. § 2246 (1994) (authorizing submission of affidavits by habea s-51-

pe titioners at the discretion of the judge). Habea s peti tions are typically decided on the factual recor d developed in the state trial court and, therefore, onl y in the minority of cases are evidentiary hearings held

. In many ways, habeas petitions are by their natur e simi lar to summary judgment proceedings. For a petitioner to carry his burden, he must submit relevan t evidence t o the district court before the court rules on his petition.-52-

In the instant case, Weeks must bear th e responsibi lity for failing to present the district court with an y evidence upon which the district court coul d hold Weeks's procedural default waived. Weeks had mor e than a full year to present credible evidence of hi s actual innocence to the district court, and yet Week s fail ed to submit anything more than his ow n unsu bstantiated affidavit. Indeed, on August 4, 1995 , nearly a y ear after Weeks filed his habeas petition, the district court entered an order allowing Week s to present aff idavits supporting either his original motion t o disqualify

the magistrate judge or his present motion to
reas sign the case to a district judge. The distric t court went so far as to warn Weeks that, if W eeks did not
re spond, the district court would proceed to rule o n Week s's petition for habeas corpus. Despite thi s exp licit opportunity to present evidence, Weeks di d nothing. Weeks did not submit a single affidavit on the question of the magistrate judge's jurisdiction.

Mo re importantly, beyond mere assertions, the onl y affidavit Weeks submitted to establish his actua l innocence was his own. This is despite the f act that the district court's order gave Weeks clear notice that th e district court would soon rule on his petition and that the distric t court was receptive to the receipt of affidavi t evidence. While Weeks found the resources to fil e endless motions recounting alleged, and somew hat bizarre, event s, Weeks chose to submit almost no evidence t o esta blish his actual innocence. Thus, Weeks havin g failed to produce evidence of actual innocenc e, we reject his argume nt for a novel prehearing hearing entitlement.-53- V.
Accordingly, the judgment of the district court i s affirmed.
LOKEN, Circuit Judge, concurring, with whom B EAM, Circuit Judge, joins.

For m e, the determining factor in this case is th e guiltyplea. In every case in which the Supreme Cour t has d iscussed the actual innocence exception t o procedural-54-

bar, th e habeas petitioner had been convicted after a trial or sentenced to death after a trial-typ e sentencing hearing -- Smith v. Murray , Kuhlmann v. Wilso n , Murray v. Carr ier , 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 th e Court ’s actual innocence standard, which requires th e di strict court “to assess the probative force of th e newly pres ented evidence in connection with the evidence of guilt adduced at trial .” Schlup , 513 U.S. at 33 2 (emphasis added).

In my view, there is an inherent paradox in th e not ion that someone who has stood in open court an d declared, “I am guilty,” may turn around years later and cla imthat he deserves to pass through the actua l in nocence gateway. Because a guilty plea waives the defendant’s right t o pro vehis actual innocence at trial, see, e.g. , McMann v. Richardson , 397 U.S. 75 9 (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 a

n absolute rule is that (i) facts which would invalidate a guilty ple aare typically outside the record and must be developed in a post-convictio n proceeding , and (ii) some circumstances that would invalidate a guilty plea ar e co nsistent with actual innocence, a torture-induced plea being the most obviou s example. B ut 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 th at he could produce.” Weeks v. Bowersox , 106 F .3d 248, 250 (8th Cir. 1997). In my view, that standard ignores the mos t important piece of evidence in the record, Weeks’s guilty plea. “A plea of guilty is-56-

more th an 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 i s itself a sufficient basis to convict, the government does not present or even describe its evidence at the g uilty plea hearing; it must only satisfy the trial court that there is a sufficientfactual basis for the plea. Thus, the panel’s standard posits an unrealisti c evi dentiary 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 w ere modified to permit the State to present its trial evidence at the actua l inno cence hearing, the inquiry would still be skewed by the passage of time that inevitably compromises the government’s ability to prove its case.

Forthese reasons, I conclude that the actual innocence inquiry in guilty ple a 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 actu al innocence gateway. This standard may well reduce the actual innocence g ateway to a tiny portal in guilty plea cases. But in my view that i s appropriate, both because the cause and prejudice exception to procedural bar is still available, and because “t

he concern with finality served by the limitation on collateral attackhas s pecial force with respect to convictions based on guilty pleas.” Unite d States v. Timmreck , 441 U.S. 780, 784 (1979).

A guilty plea is a “grave and solemn act,” not lightly to be set aside. Unite d States v. Hyde , 117 S. Ct. 1630, 1634 (1997), quoting Brady v. United Sta tes , 397 U.S. 742, 748 (1970). In this case, Weeks stood in open court and admitted that he dragged the vic tim

from her car, threatened her with a knife, an d for ciblyraped her. When asked why he was pleadin g guilty , Weeks answered, “Because I did what they say I did,” a nd he further admitted that “everything in th e char ge is true and correct.” Weeks has presented n o-57-

newly-discovered evidence that would undermine thi s lega llyconclusive admission of guilt. His affidavi t that he pleaded guilty because the county-58-

sheriff an d deputies “beat the affiant half to death” is
uncor roborated, has no inherent credibility, and thu s would n ot entitle Weeks to an evidentiary hearing on a n invo luntaryguilty plea claim that was not procedurall y defau lted. Compare Blackledge , 431 U.S. at 75-76. I therefore agree with the court’s decision to affirm.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting, wit h whom RICHARD S. ARNOLD, Chief Judge, McMILLIAN an d FLOYD R. GIBSON, Circuit Judges, join.

Rubin Weeks filed his petition for habeas corpu s under 28 U.S.C. § 2254. By way of excusing th e proc edural default that the state pleaded in bar , Mr. We eks alleged that he was actually innocent of th e charges against him, listed by name a number of witnesses who cou ld exonerate him, and averred the existence o f DNA, blood , saliva, and semen tests that would show that he did not commit the rape and kidnapping of which he was
conv icted. The court, though it ridicules thes e allegations, does not hold that they are delusional, o r othe rwise inherently incredible; nor does it deny that , if he produced the evidence that he claims ex ists, and it
was b elieved, Mr. Weeks would have made out a case tha t he was actually innocent. Instead, the court holds, a s I un derstand it, that Mr. Weeks has failed to submi t sufficient evidence of his innocence, and therefore that his petition was properly dismissed.

The infirmity in the court's position is that i t conf uses pleading with proof. The Rules Governin g Section 22 54 Cases in the United States District Courts, in k eeping with modern trends toward notice pleading ,-59-

require a person seeking a writ of habeas corpus merel y to "set forth in summary form the facts supporting eac h of the grounds" on which the petitioner relie s. See Rule 2(c). A f orm appended to the rules and intended for the use of habea s petition ers, moreover, urges them to summarize " brieflythe facts " (emphasis i n 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 fro m a petitioner when the matter at issue is a petitioner's procedural default, it does have a form for situations in which th e responde nt

claims that the petition is a successive one; and, in this latter instance , peti tioners are told merely to explain their position by stating "FACTS" (capitals i n original).

Itis plain f

rom this that all that habeas petitioners are required to do in thei r 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, p resumably, any such requirement that a court would imposewould be unauthorized because it would be contrary to the rules as they now stand. See , e.g. , Leatherman v. Tarrant County Narcotics Intelligence an d Coordi nationUnit , 507 U.S. 163, 168-69 (1993), where the court held that federa l courts were not authorized to apply a more stringent pleading requirement in case s br ought under 42 U.S.C. § 1983, because doing so could not be squared with th e Federal Rule s of Civil Procedure. Perhaps it would be useful, or even desirable, t o establishheightened pleading standards in habeas corpus cases. But "that is a resul t which must be obtained by the process of amending" the Rules Governing Sec tion 2254 Cas es 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 ot

her pleadings affidavits or documentary evidence supporting the factual allegations that those pleadings contain. No doubt, the judge reviewing the pleadings inha beas cases may, in imitation of Fed. R. Civ. P. 56(e), require such affidavits, i n order to determine whether there are any material facts in dispute that would require
anevidentiary 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 entit led 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 wi th affidavits. The court makes much of the fact that Mr. Weeks, whe n asked to do so, failed to submit affidavits supporting his motions to disqualify th e 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.

Itw ill not be a matter of surprise if petitioner ultimately fails to prevail in thi s case. Habeas petitioners hardly ever w in. But the court simply short-circuits the rules est ablishedfor civil matters in general and essentially decides the case on the merit s without regard to the procedural posture in which it comes before us. S ince Mr. Weeks has pleaded facts that, if proved, would excuse his procedural default, his case should be allo wed to proceed in the district court. If he prevails on his claim of actua l innocence, then, for the reasons that I indicated in Weeks v. Bowersox , 106 F.3d 248 (8th Cir. 199 7), the district court would be obligated to proceed to judgment on hi s underlyin gclaim, namely, that his plea was coerced, because his original petitio n 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 conc erns I have which are illustrated by this case. Where a habeas petitione r brings a bona fide gateway claim of actual innocence, accompanied by the prope r pleadings and supporting data, it is advisable and appropriate to allow the defendan t
anevidentiary 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-

torturedbut 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 donot provide him with a hearing to prove his innocence. On the otherhand, if he is guilty, by claiming that he is actually innocent, he causes a great abuse of the legal pro cess, and possibly his attorney could be involved in this abuse if he is aware of facts supporting Weeks's guilt. When such a n abuse of the legal process occurs, a habeas petitioner using these tactics should be sanctioned if it is found that his claim o f actual innocence has no merit. An appropriate sanction would limit th e number of illegitimate claims, while allowing those who are actually innocent to seek redress.

Therecord in this case, as expressed in the dissent by Judge Morris Arnold , presents some d oubts as to Weeks's guilt. The panel opinion appropriately remanded thecase 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 upo n 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
.