                                   ___________

                                   No. 95-2906
                                   ___________

William J.R. Embrey,                   *
                                       *
            Petitioner-Appellant,      *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   Western District of Missouri.
Greg Hershberger, Warden,              *
United States Medical Center           *
for Federal Prisoners,                 *
                                       *
            Respondent-Appellee.       *

                                   ___________

                      Submitted:   September 12, 1996

                          Filed:   January 31, 1997
                                   ___________

Before McMILLIAN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                   ___________

LAY, Circuit Judge.


     On March 11, 1979, William J.R. Embrey and another man, Luie White,
both armed, approached Darrell Spillers and his family at their home in
Southwest City, Missouri, and demanded money.           Spillers, a local bank
official, obtained over $11,000 from his bank while the two men held his
family hostage.   Embrey and White fled into Oklahoma in Spillers' car,
taking Spillers with them as "insurance" in case Spillers had alerted the
police while he was at the bank.       When they arrived at a "getaway" car,
Embrey and White released Spillers, and his car, unharmed.


     Embrey was later convicted in the United States District Court for
the Western District of Missouri on charges of armed bank robbery, in
violation of the Federal Bank Robbery Act ("FBRA"), 18 U.S.C. § 2113(a) and
(d), and kidnapping, in violation of the Federal Kidnapping Act, 18 U.S.C.
§ 1201.   On September 19, 1980,
Embrey was sentenced to two consecutive twenty-year terms of imprisonment.1


     Embrey's conviction was affirmed by this court in an unpublished
opinion.     See United States v. Embrey, 657 F.2d 273 (8th Cir. 1981)
(Table).     On his direct appeal, Embrey did not challenge his separate
conviction or sentence under the kidnapping statute, 18 U.S.C. § 1201.            In
1989 Embrey filed a claim in the Western District of Missouri, challenging
his kidnapping conviction and his sentence.          The district court rejected
that claim and on appeal the case was dismissed by an administrative panel
of this court.     Our court, based upon the record made in the district
court, concluded, in an unpublished order, that the appeal was "without
merit" and dismissed the appeal under the then existing Eighth Circuit Rule
12(a).2     Since 1989, Embrey has filed numerous other § 2255 petitions
asserting various claims challenging his conviction and sentence.           As the
government points out, in at least three or four of these petitions Embrey
repeated his claim that his conviction and sentence under § 1201 was
unlawful.    On each occasion after his first petition this court has by
administrative    order   dismissed   his   appeal    on   the   grounds   that   it
constituted a successive petition.


     On June 23, 1994, Embrey filed this petition for writ of habeas
corpus which was construed by the district court as a




     1
     That same day, Embrey was also sentenced to two fifteen-year
terms for two additional armed bank robberies. The two fifteen-
year sentences ran concurrently with each other and with the
sentence received in the bank robbery and kidnapping sentences at
issue here.
     2
      Rule 12(a) has been replaced by our present Rule 47(a) which
allows the court on its own motion to dismiss an appeal if the
appeal is "frivolous and entirely without merit." The petitioner
did not file a brief nor did this court file any written opinion
other than the order mentioned above. Embrey v. United States, 889
F.2d 1092 (8th Cir. 1989) (Table) (No. 89-1786).

                                      -2-
petition filed pursuant to 28 U.S.C. § 2255.    Embrey argued that at the
time of his robbery and kidnapping conviction the district court erred in
imposing consecutive sentences for his kidnapping and armed robbery
convictions.   He basically urged that the district court lacked authority
to convict and sentence him for kidnapping under § 1201 and at the same
time convict him for bank robbery under 18 U.S.C. § 2113.     Embrey asserted
that Congress intended to limit federal bank robbery prosecutions to a
single count charging the appropriate level of crime and, in doing so,
Congress precluded additional charges for conduct within the coverage of
§ 2113 under other statutes outside the FBRA.     The district court once
again dismissed Embrey's petition as a successive petition.    Petitioner has
again appealed.   In this appeal, petitioner successfully moved to appoint
a lawyer, and the parties fully briefed the case and orally argued the
issues to this court.


     In light of the historical treatment given to Embrey's unsuccessful
petitions, it is readily understandable that the United States has once
again moved to dismiss Embrey's appeal on the ground that he has abused the
writ and that his petition should be dismissed as successive.3           The
government has not urged the procedural bypass rule, and for purposes of
this appeal we deem it waived.4   In response, Embrey urges that § 2244(a)
allows review of a successive petition if it may be said that the "ends of
justice" require it.


     Embrey urges that he has never had a full review in this court




     3
      A successive petition is one which raises grounds identical
to those heard and rejected on the merits in a previous petition;
an abusive petition is one in which a prisoner makes claims that
were available but were not relied upon in a prior petition, or
otherwise engages in conduct that disentitles him to the relief he
seeks. Schlup v. Delo, 115 S. Ct. 851, 863 n.34 (1995).
     4
         See Gray v. Netherland, 116 S. Ct. 2074, 2082 (1996).

                                    -3-
of the issue he now raises.         On prior appeals he was never afforded the
appointment of counsel or full briefing of the issues raised.          Embrey has
now completed his sentence under the bank robbery convictions, and is now
serving time solely on the basis of his conviction under the kidnapping
statute.      He urges that § 1201 was not applicable to him under the
circumstance of the charges made.            In attempting to avoid the charge of
successive appeals, Embrey relies on the language of Justice O'Connor in
Murray v. Carrier:


     "[i]n appropriate cases" the principles of comity and finality
     that inform the concepts of cause and prejudice "must yield to
     the   imperative   of   correcting   a   fundamentally   unjust
     incarceration." . . .      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.


477 U.S. 478, 495-96 (1986).         This test has been stated as the "actual
innocence" test.    Sawyer v. Whitley, 505 U.S. 333, 339 (1992).           The Court
has recognized the difficulty translating and applying the actual innocence
test to a capital sentence.         Id. at 339-40 (citing Smith v. Murray, 477
U.S. 527, 537 (1986)).       In applying the test, the Court in Sawyer adopted
an "eligibility" test.       See Schlup, 115 S. Ct. at 865.    This test requires
courts to analyze whether the petitioner would have been "eligible" for the
sentence     received   if   the   claimed    constitutional   violation    had   not
occurred.5




     5
      The dissent urges that the majority adopts the rationale of
Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991), which applied the
"actual innocence" exception to a defendant sentenced under a
habitual offender statute that did not apply to him. The majority
opinion does not rely upon Jones v. Arkansas. That was a state
habeas case, but this is a claim by a federal prisoner under
§ 2255. The dissent urges that Sawyer v. Whitley, 505 U.S. 333
(1992) changed that ruling. We agree. Sawyer, for the first time,
applies an "eligibility" test which clarifies the confusing
nomenclature of "actual innocence," when applied to an illegal
sentence. However, there is nothing in Sawyer which limits the
"ends of justice" test to death cases.

                                        -4-
     The Supreme Court has "emphasized that the miscarriage of justice
exception is concerned with actual as compared to legal innocence."
Sawyer, 505 U.S. at 339.   However, the adoption of the eligibility test for
applying the actual innocence exception to the sentencing phase of a given
case necessarily focuses the inquiry on more "objective factors."    Id. at
347; see Waring v. Delo, 7 F.3d 753, 757 (8th Cir. 1993) (stating that
after Sawyer application of the "actual innocence exception in a noncapital
sentencing case must be defined by a narrow, objective standard").    Under
these circumstances, the question of actual innocence in sentencing becomes
more akin to a mixed question of fact and law.   In the present case, Embrey
claims he is actually innocent of the sentence not because of some
constitutional procedural violation, but because the sentence could not
have been legally imposed (i.e. he was objectively ineligible).


     Section 2244(a) applies the ends of justice standard to all claims
under § 2255 and has no express limitation confining the test to only
capital cases.   Additionally, in Smith, the Court rejected the contention
that application of procedural default principles should depend "on the
nature of the penalty" imposed.        477 U.S. at 538.      The Court has
consistently reiterated that the Great Writ, guided by its statutory and
judicial limitations, is the appropriate mechanism for "correcting a
fundamentally unjust incarceration."      Engle v. Isaac, 456 U.S. 107, 135
(1982); see Schlup, 115 S. Ct. at 864; Carrier, 477 U.S. at 495.   Requiring
an individual to serve twenty years of a sentence he was not eligible to
receive epitomizes a fundamentally unjust incarceration.6




     6
      The dissent urges that the claimant is actually attacking his
conviction for kidnapping and not his sentence.       This misreads
petitioner's challenge and this court's opinion. There is no doubt
the record demonstrates that petitioner was guilty of violating the
federal kidnapping statute under § 1201. The basic question is
whether the defendant may be given consecutive sentences under both
the bank robbery statute and the federal kidnapping act. Adopting
the language of Simpson v. United States, 435 U.S. 6 (1978), as
applied to this case, Congress had not "authorized the imposition
of the additional penalty of [§ 1201 for federal kidnapping]
already subject to enhanced punishment under [§ 2113(e)]." Id. at
13.

                                    -5-
     The argument Embrey now makes is that he was not eligible to be
convicted under § 1201 and to receive a consecutive twenty-year sentence
in addition to his sentence for the bank robbery.   We are satisfied that
if Embrey is correct on the merits, he has met the ends of justice test as
interpreted by the Supreme Court in that if the district court erred in
sentencing him under the § 1201 kidnapping charge, Embrey was not eligible
for a sentence under that statute.7


     Embrey is a federal prisoner.    Under § 2255, a petitioner may seek
release from custody if his sentence was "imposed in violation of the
Constitution or laws of the United States."   28 U.S.C.




     7
      Applying the eligibility test to a noncapital case appears to
be in accord with at least three courts of appeals, including this
court. United States v. Maybeck, 23 F.3d 888, 893 (4th Cir. 1994)
(finding no rationale for limiting the actual innocence exception
to death cases and holding the exception applies in noncapital
sentencing enhancement cases); Mills v. Jordan, 979 F.2d 1273, 1279
(7th Cir. 1992) (concluding that application of the actual
innocence exception to noncapital habitual offender proceedings is
consistent with Sawyer v. Whitley); Pilchak v. Camper, 935 F.2d
145, 148 (8th Cir. 1991) (applying the actual innocence exception
to a defendant who was "not the proper subject for a sentence of a
lifetime of incarceration"); see also Sones v. Hargett, 61 F.3d
410, 418-19 & n.16 (5th Cir. 1995) (assuming arguendo that the
actual innocence exception applies to noncapital sentencing cases);
Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992) (same). But
see Selsor v. Kaiser, 22 F.3d 1029, 1035-36 (10th Cir. 1994)
(holding actual innocence exception only applies to sentencing
cases where petitioner can show factual innocence of a sentencing
element that was not required for proof of the underlying
conviction); United States v. Richards, 5 F.3d 1369, 1371 (10th
Cir. 1993) (holding the actual innocence exception cannot be
extended in a noncapital sentencing case); Estrada v. Witkowski,
816 F. Supp. 408, 415 (D.S.C. 1993) (stating that actual innocence
exception will not be applied because petitioner was convicted of
a noncapital offense).

                                   -6-
§ 2255 (emphasis added); see Davis v. United States, 417 U.S. 333, 342-45
(1974).    In the present case, we review the issue in terms of congressional
intent and find it unnecessary to review Embrey's claim on constitutional
grounds.


Sentence Under the Kidnapping Statute


     Embrey was convicted and sentenced under the FBRA and the Federal
Kidnapping Act.    He argues that his sentence under the dual conviction is
illegal because the offenses of bank robbery and associated kidnapping are
fully encompassed within the FBRA and Congress has directed that he should
be sentenced only under the FBRA.8


     8
      The statute, entitled "Bank robbery and incidental crimes,"
provides in relevant part:

          (a) Whoever, by force and violence, or by
     intimidation, takes, or attempts to take, from the person
     or presence of another any property or money or any other
     thing of value belonging to, or in the care, custody,
     control, management, or possession of, any bank, credit
     union, or any savings and loan association; or

          Whoever enters or attempts to enter any bank, credit
     union, or any savings and loan association, or any
     building used in whole or in part as a bank, credit
     union, or as a savings and loan association, with intent
     to commit in such bank, credit union, or in such savings
     and loan association, or building, or part thereof, so
     used, any felony affecting such bank, credit union, or
     such savings and loan association and in violation of any
     statute of the United States, or any larceny--

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

                                    . . .

          (d) Whoever, in committing, or in attempting to
     commit, any offense defined in subsections (a) and (b) of
     this section, assaults any person, or puts in jeopardy
     the life of any person by the use of a dangerous weapon
     or device, shall be fined not more than $10,000 or
     imprisoned not more than twenty-five years, or both.

                                     -7-
     The Supreme Court addressed an analogous contention in Simpson v.
United States, 435 U.S. 6 (1978).    In Simpson, the defendants were found
guilty of two bank robberies and of using firearms to commit the robberies,
in violation of § 2113 (a), (d), and 18 U.S.C. § 924 (c),9 and were given
consecutive sentences on the robbery and firearms counts.   The government
argued that the convictions and consecutive sentences were justified as
distinct offenses under the Blockburger test. Id. at 10-11.    The Supreme
Court held that it was not necessary to reach that constitutional issue,
because Congress had not “authorized the imposition of the additional
penalty of § 924(c) for commission of bank robbery with firearms already
subject to enhanced punishment under § 2113(d).” Id. at 13.    In addition
to the legislative history of § 924(c), the Court relied on two rules of
statutory construction.10   First,


          (e) Whoever, in committing any offense defined in
     this section, or in avoiding or attempting to avoid
     apprehension for the commission of such offense, or in
     freeing himself or attempting to free himself from arrest
     or confinement for such offense, kills any person, or
     forces any person to accompany him without the consent of
     such person, shall be imprisoned not less than ten years,
     or punished by death if the verdict of the jury shall so
     direct.

18 U.S.C. § 2113.
       9
       Section 924(c) makes it illegal to use a firearm in the
commission of any felony.
       10
        While these principles of statutory construction may be
important in deciding the merits of Embrey's appeal, there is one
important difference between Simpson and this case. In Simpson,
the government charged the defendant twice, under § 2113(d) and §
924(c), for committing the bank robbery with a firearm.         The
government sought separate convictions and consecutive sentences
for robbing a bank with a firearm, under § 2113(d), and using a
firearm in the commission of a felony, under § 924(c). In the
present case, while it may have been improper for the district
court to convict Embrey under a statute outside the FBRA for
conduct within its coverage, the rationale must be slightly
different than that in Simpson. In charging Embrey, the government
did not use the FBRA and an outside statute to charge him twice for
the same act, but rather fragmented the act to obtain convictions

                                     -8-
where there is ambiguity concerning the scope of criminal statutes, “doubt
will be resolved against turning a single transaction into multiple
offenses.”    Id. at 15 (citations omitted).   Second, the Court supported its
holding with a parallel theory, that where two statutes may apply, the
terms of the more specific statute control.      Id. at 15.11
     In    United States v. Leek, 665 F.2d 383 (D.C. Cir. 1981), the
defendant pled guilty to violating the FBRA, § 2113(a), which penalizes
entry with intent to commit robbery, and to a District of Columbia statute
penalizing assault with a dangerous weapon, which was chargeable under §
2113(d).     Applying United States v. Canty, 469 F.2d 114 (D.C. Cir. 1972)
(per curiam), the court held that it was reversible error to “fragment the
robbery and venture outside the federal scheme for a peg on which to hang
the aggravated




and sentences for armed bank robbery in violation of § 2113(a) and
(d), and kidnapping in violation of § 1201.
      11
       In 1984 Congress expressly overruled Simpson and Busic v.
United States, 446 U.S. 398 (1980), concluding that 18 U.S.C. §
924(c) should provide a mandatory sentence for all persons
committing felonies with a firearm, “including those crimes set
forth in statutes which already provide for enhanced sentences for
their commission with a dangerous weapon.” S. Rep. No. 98-225 at
313 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3491. The Senate
Judiciary Committee Report specifically directed that armed bank
robbery should be prosecuted under § 2113(a), (d), and § 924(c),
expressly authorizing duplicate punishment and venturing outside
the FBRA to obtain a consecutive sentence under § 924(c). Id.
Embrey asserts that “[t]his deliberate and pointed language
indicates that the all-inclusive bank robbery punishment scheme
remains intact unless explicitly overridden by Congress as it did
with particularity in the 1984 weapons enhancement provision.”
(Appellant's Reply Brief at 17-18).

     In 1986 Congress amended § 2113(a) to expressly cover
extortion directed at federally insured banks and make it the
“exclusive provision for prosecuting bank extortion.” H.R. Rep.
No. 99-797, at 33 (1986), reprinted in 1986 U.S.C.C.A.N. 6138,
6156. The Committee Report stated that extortionate conduct had
been prosecutable under either the FBRA or the Hobbs Act, and
concluded that “clarification as to which should be the applicable
statute is desirable.” Id.

                                     -9-
component of the offense.”        Leek, 665 F.2d at 387; see United States v.
Snell, 550 F.2d 515, 517 (9th Cir. 1977) (holding that the FBRA "provides
exclusive   federal    remedies    for   offensive    conduct    fully   within   its
'coverage'"); United States v. Beck, 511 F.2d 997, 1000 (6th Cir. 1975)
(citing Canty, and holding that the FBRA "was intended to exclusively
proscribe conduct within its 'coverage'").        The court emphasized that the
Blockburger analysis was irrelevant, Leek, 665 F.2d at 388-89, because the
second conviction was not authorized by Congress, and therefore was
“illegal and in excess of judicial authority.”          Id. at 390.12


      As the Leek court found, Prince v. United States, 352 U.S. 322
(1957), and its progeny, also support the argument that an additional
sentence, based on an outside statute, for conduct within the coverage of
the FBRA is illegal.     See Leek, 665 F.2d at 387 n.36.        In Prince, the Court
prohibited the pyramiding of sentences under the FBRA, based on the
legislative history and the principle that multiple punishments will not
be   imposed   without    clear   congressional      authorization.      Therefore,
defendants can receive only one conviction and sentence for violation of
the several provisions of the FBRA.         United States v. Pietras, 501 F.2d
182, 187-88 (8th Cir. 1974); United States v. Delay, 500 F.2d 1361, 1367
(8th Cir. 1974); Jones v. United States, 396 F.2d 66, 69 (8th




       12
       The Eighth Circuit has never decided the issue before us.
However, this court, at least in dicta, has recognized validity in
Embrey's argument. In United States v. Roundtree, 527 F.2d 16, 19-
20 (8th Cir. 1975), Judge Heaney, writing for the panel, stated
that the FBRA "is a comprehensive statute containing special
provisions for increased punishment for aggravated offenses. It is
intended to cover most of the aggressions that may arise from a
bank robbery and provides additional penalties within a single
conviction for aggravated offenses." Id. (emphasis added). On
another occasion, this court stated that "[i]n drafting § 2113,
Congress intended to limit federal bank robbery prosecutions to a
single count charging the appropriate level of crime and precluding
additional charges for conduct within § 2113's coverage under
statutes outside the scheme." United States v. Phillips, 522 F.2d
388, 392 (8th Cir. 1975) (citing United States v. Canty, supra).

                                         -10-
Cir. 1968).     Here, the United States argues that it is lawful to go outside
the FBRA and obtain an additional conviction and sentence for behavior
covered within the FBRA.           We reject this argument.          The same principles
that allow only one sentence for violation of the several provisions of the
FBRA suggest that additional sentences based on outside statutes for
activity      covered under the FBRA are illegal.                   Indeed, it would be
inconsistent with the Supreme Court's interpretation of the FBRA and its
legislative history, prohibiting multiple punishments under the FBRA
itself, to allow the imposition of punishments under the FBRA and an
outside statute for illegal activity clearly covered under the FBRA, absent
congressional direction to the contrary.


       The    United     States   argues    that    where   an   offense    constitutes         a
violation of two statutes, separate convictions and cumulative punishments
are permissible if each crime requires proof of a fact that the other does
not.    (Appellee's Brief at 5, citing United States v. Woodward, 469 U.S.
105 (1985) (per curiam), Albernaz v. United States, 450 U.S. 333 (1981),
and Blockburger v. United States, 284 U.S. 299 (1932)).                          Applying the
Blockburger test, the United States urges that the consecutive sentences
were permissible because the convictions were for separate offenses with
distinct elements of proof.


       However,     in    Albernaz,    the    Supreme       Court   explained       that     the
Blockburger analysis is controlling only where there is no clear indication
of contrary legislative intent. Albernaz, 450 U.S. at 336-38.                    Here we deem
it patent that Congress intended the FBRA to be the comprehensive and
exclusive remedial provision for federal bank robbery prosecutions.                        Leek,
665    F.2d   at   387.     This    court    has    recognized      that   the    FBRA     is   a
comprehensive scheme precluding additional charges for conduct within its
coverage under outside statutes. United States v. Phillips, 522 F.2d 388,
392 (8th Cir. 1975).




                                             -11-
        The United States also asserts that the district court could impose
consecutive sentences for the two convictions, citing cases it maintains
are analogous.        First, United States v. Dotson, 546 F.2d 1151, 1153 (5th
Cir. 1977), the only reported case with similar facts and convictions, is
cited for the proposition that separate convictions and sentences for
violation of the FBRA and § 1201 are valid.                    However, the cursory
discussion in Dotson merely points out that Prince is not directly
controlling, and the Dotson court therefore affirmed the concurrent
sentences.      Id.    Second, the United States cites three cases from other
circuits to support the imposition of consecutive sentences for federal
bank robbery and other offenses.          However, these cases do not discuss the
issue Embrey raises, and more importantly, all impose the second sentence
for an illegality not then covered by the FBRA. See United States v. Davis,
573 F.2d 1177 (10th Cir. 1978) (bank robbery and conspiracy); United States
v. Welty, 426 F.2d 615, 619 n.15 (3d Cir. 1970) (same); United States v.
Allen, 797 F.2d 1395 (7th Cir. 1986) (bank robbery and possession of a
firearm by a felon, explicitly distinguishing Simpson v. United States).


        We conclude that Embrey's appeal falls within the ends of justice
test; that he was not eligible for the consecutive sentence of twenty years
under    §    1201   since   the   bank   robbery   statute   fully   encompasses   the
integrated conduct of kidnapping and bank robbery involved here.             We remand
to the district court with directions to vacate the conviction and sentence
under § 1201.13


MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.


        I do not believe that Jones v. Arkansas, 929 F.2d 375 (8th Cir. 1991)
remains good law after Sawyer v. Whitley, 505 U.S. 333




         13
        Embrey's appeal is governed by the law in effect before
§ 2254 was amended by Congress in 1996. In this sense, most of
what the dissent perceives in its final paragraph is irrelevant to
future cases.

                                           -12-
(1992).    Sawyer, I think, holds that the actual innocence exception to the
bar to hearing habeas claims applies to sentences only if the sentence is
death.    See United States v. Richards, 5 F.3d 1369 (10th Cir. 1993).              It
seems to me unlikely that the Supreme Court intended to hold (or will hold)
that federal sentencing errors are not barred from review when they have
already been raised and rejected in a collateral proceeding, either on the
merits or because they had been procedurally defaulted.              I see no reason
to believe, moreover, that the Supreme Court will read the "ends of
justice" language to create rights for federal prisoners that state
prisoners do not have under 28 U.S.C. § 2254.


        Even if   Jones   v.   Arkansas   remains   good   law,   its   principle   is
inapplicable here.    The petitioner's complaint in this case is not that he
is ineligible for the sentence imposed on him; his complaint is that he was
ineligible for the conviction.       In other words, he is not asserting that
some sentencing statute or guideline was wrongly applied, he is asserting
that the substantive criminal law was wrongly applied to him.            This is what
the cases have come to call "legal innocence," and such claims cannot
overcome procedural bars to habeas claims.          Only factual innocence can do
that.    See Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 867 (1995); Pitts
v. Norris, 85 F.3d 348, 350 (8th Cir. 1996).


        The court's decision, moreover, undermines numerous decisions of this
court and others that hold that a person convicted of a federal crime must
raise objections to his sentence in the district court and on appeal before
he can proceed under 28 U.S.C. § 2255.           Ramey v. United States, 8 F.3d
1313, 1314 (8th Cir. 1993); United States v. Wilson, 997 F.2d 429, 431 (8th
Cir. 1993); United States v. Ward, 55 F.3d 412 (1995).            It is true that in
this case the government argued only that the prisoner's petition was
successive, not that the petitioner had defaulted (although he had), but
the actual innocence exception operates to lift the procedural bar in the
same way in both contexts.       The effect of today's ruling is




                                          -13-
therefore not only that claims actually decided adversely to a prisoner
complaining of a statutory sentencing error by a federal court are entitled
to   an   infinite number of successive reviews; it means also that a
procedural default is never a bar to an initial collateral review of an
alleged federal sentencing error, or indeed to any number of successive
ones thereafter.   This holding is all the more remarkable because it comes
in a legal environment in which the law of habeas corpus is tending more
and more toward adopting the principles of res judicata that obtain in
other kinds of civil proceedings.


      I therefore respectfully dissent.


      A true copy.


             Attest:


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




                                    -14-
