                                   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:   September 10, 1996

                          Filed:   February 3, 1997


Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
     Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

        Rubin R. Weeks appeals the dismissal of his petition for writ of
habeas corpus.    We reverse and remand for further proceedings.


                                        I.
        Mr. Weeks pleaded guilty in Missouri state court to kidnapping and
rape.    At his plea hearing, he admitted committing the offenses and denied
that anyone had threatened or forced him to plead guilty.         Based on his
plea, the court entered a judgment of guilty against him and sentenced him
to concurrent sentences of thirty years imprisonment and life imprisonment.
The court also told Weeks about the availability of post-conviction relief
under Mo. R. Crim. P. 24.035.      That rule provides the sole means of relief
from




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a guilty plea that is entered in a Missouri court, and it requires a
prisoner to file a form asking the court to vacate his plea.             The court
gave Weeks a copy of that form, read the entire form to him, and told his
lawyer to explain it to him further.       The court did not, however, mention
the fact that the rule requires the form to be filed within ninety days
after a plea is entered.


     Weeks asserts that at the time of the hearing, he was illiterate.
Sometime after the hearing, Weeks contends, he learned to read and write,
but he never filed the required Rule 24.035 motion.       Instead, more than two
years after he entered his plea, he filed a state habeas petition alleging
his innocence.   The state court dismissed that petition because Weeks had
never filed a Rule 24.035 motion.


     Weeks then filed a federal habeas petition, claiming that his guilty
plea was coerced and that he had evidence proving his innocence.                 A
magistrate judge denied the petition, holding that Weeks's failure to file
a Rule 24.035 motion defaulted his claims, and that Weeks had not shown
either cause and prejudice or actual innocence to lift the procedural bar.



     On appeal, Weeks contends that the magistrate judge should not have
dismissed his habeas petition because no state court has found him guilty
of a procedural default, because he can demonstrate cause and prejudice for
any default that he may have committed, and because he can demonstrate his
actual innocence.    We address each of these contentions in turn.


                                       II.
     Weeks   first   argues   that   the   magistrate   judge   should   not   have
dismissed his petition because no state court has found him to be in
procedural default.    This contention is meritless.        A state procedural
default bars federal habeas review when the last state




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court to consider a claim clearly and expressly rests its judgment on that
default.   Harris v. Reed, 489 U.S. 255, 263 (1989).   The last state court
to consider Weeks's claim clearly and expressly stated that it was denying
relief to Weeks because he had failed to file a Rule 24.035 motion.     The
court's further statement that it found Weeks's allegations meritless does
not undo Weeks's procedural default.      See id.; Pollard v. Delo, 28 F.3d
887, 889 (8th Cir. 1994), cert. denied, 115 S. Ct. 518 (1994).


     Weeks next contends that the state court's inadequate explanation of
Rule 24.035, coupled with his illiteracy, excuses his procedural default.
While we sympathize with Weeks's plight, we must reject that contention.
State prisoners may obtain federal habeas review of claims that they have
procedurally defaulted in state court if they show cause for that default
and prejudice from it.    Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Only an impediment external to the defense that prevents a petitioner from
complying with the state rule constitutes cause for procedural default.
McCleskey v. Zant, 499 U.S. 467, 497 (1991).


     Weeks has not asserted the existence of an external impediment
constituting cause for his procedural default.   A prisoner's illiteracy and
pro se status are not cause. See Stanley v. Lockhart, 941 F.2d 707, 710
(8th Cir. 1991); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988),
cert. denied, 490 U.S. 1100 (1989).        Nor does a judge's failure to
delineate every feature of a state's post-conviction relief constitute
cause.   See Hart v. Purkett, 95 F.3d 638, 639 (8th Cir. 1996) (per curiam);
Vaughan v. Groose, 884 F. Supp. 339, 343    (W.D. Mo. 1995), aff'd, 89 F.3d
842 (8th Cir. 1996), cert. denied, 65 U.S.L.W. 3341 (1996).   While we think
that the state court might well have felt moved to explain Missouri's rules
with extra care due to Weeks's illiteracy, it neither misled Weeks nor
prevented him from learning about the relevant time limit.        The court
sufficiently alerted Weeks to the




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rule's existence; and it gave him the relevant form, read it to him, and
told his lawyer to explain it to him further.     Although the form does not
itself mention a time limit, it does cite Rule 24.035, and that rule's
language states the ninety-day time limit with clarity.     By simply asking
either his trial attorney or a literate fellow inmate about the form and
the rule, Weeks could easily have discovered their contents.


                                    III.
     Lastly, Weeks averred in his pleadings that he is actually innocent
of the charges.     This averment, he argues, lifts the procedural bar
resulting from his failure to file a Rule 24.035 motion.        If Weeks can
prove what he asserts, he is correct.


     Prisoners who cannot show cause and prejudice excusing a procedural
default   may   nevertheless   obtain   federal   habeas   review   of   their
constitutional claims by presenting a gateway claim of actual innocence.
Schlup v. Delo, --- U.S. ---, 115 S. Ct. 851, 861 (1995).    To pass through
this gateway, a petitioner must present new, reliable evidence that
establishes "that it is more likely than not that no reasonable juror would
have convicted him in light of the new evidence."    Id. at ---, 115 S. Ct.
at 867.    Examples of evidence sufficient to establish actual innocence
include trustworthy witnesses and exculpatory scientific evidence.        See
Pitts v. Norris, 85 F.3d 348, 350-51 (8th Cir. 1996), cert. denied, 65
U.S.L.W. 3341 (1996).


     When a judgment is entered on a guilty plea instead of a verdict,
courts assess a prisoner's Schlup claim by examining and weighing the
evidence each side has asserted that it could produce at trial.      Brownlow
v. Groose, 66 F.3d 997, 999 (8th Cir. 1995), cert. denied, 116 S. Ct. 1049
(1996).   We must therefore compare what the state alleged at Weeks's plea
hearing that it could prove with the evidence that Weeks has asserted in
his pleadings that he




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could produce.    At the plea hearing, the state implied that its evidence
would prove that Weeks committed the crimes in question.                   Although the
state did not say what types of evidence it could proffer, the victim spoke
and implied that she could identify Weeks.         She was not under oath.       In his
pleadings, Weeks has alleged with specificity that he has evidence not
presented at his plea hearing that would prove his innocence.                   He has
listed by name several witnesses who he claims can exonerate him; and he
has averred the existence of DNA, blood, saliva, and semen tests that would
show that he did not commit the rape and kidnapping.            Weeks further asserts
that the victim's statements are inconsistent with her medical records,
that she would not immediately identify Weeks as the rapist, and that she
had once stated that Weeks did not rape her.              This evidence, if produced
and credited, would establish that it is more likely than not that no
reasonable juror would have convicted Weeks.             We accordingly remand for a
hearing to determine whether Weeks can prove what he asserts.


        If he can, the district court may then consider Weeks's underlying
constitutional    claim     that   his   guilty   plea    was   coerced.      Any   such
consideration would be futile, however, if the federal court is bound by
the state court's finding at Weeks's plea hearing that his guilty plea was
not coerced.    We must therefore decide what level of deference, if any, we
owe to that finding.      We believe that the principles outlined in Blackledge
v. Allison, 431 U.S. 63 (1977), govern this question.


        In Blackledge, a state prisoner who had pleaded guilty later asserted
in a habeas petition that his guilty plea had been illegally induced, and
the district court dismissed his petition without an evidentiary hearing.
The Court reversed, holding that claims of involuntary guilty pleas that
contain credible and specific factual allegations should not be summarily
dismissed.     Id. at 76.     Although the petition in Blackledge was brought
under




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                                           5
28 U.S.C. § 2254, the Court did not directly address the requirement
contained in what is now § 2254(e)(1) that federal courts presume state
court factual findings to be correct.     It did, however, counsel federal
courts not to adopt a per se rule excluding the possibility that a
defendant's statements at his plea hearing were the product of duress and
misrepresentation.    Id. at 75.   This advice, coupled with the Court's
failure to refer to what is now § 2254(e)(1), indicates that when a
petitioner presents specific factual allegations of coercion or inducement,
the statutory   presumption of correctness does not apply to a state court
finding that his guilty plea was voluntary.   See Pennington v. Housewright,
666 F.2d 329, 333 (8th Cir. 1981), cert. denied, 456 U.S. 918 (1982)
(holding that the presumption does not affect Blackledge analysis).


     This conclusion comports with common sense.      We believe that it is
unrealistic to expect an inmate who has been coerced into pleading guilty
to allege coercion at the time that he pleads guilty.        Since the very
nature of a coerced guilty plea will frequently keep relevant facts from
the judge conducting the plea hearing, he or she may not have all the facts
with which to make the credibility and demeanor determinations that would
require our deference.     The fact that a prisoner asserts at his plea
hearing that he is not being coerced into making the plea is not entirely
without its relevance, but to give it controlling weight offends logic and
common sense.


     Our last task is therefore to determine whether Weeks has supported
his claims of coercion with specific factual allegations sufficient to
satisfy the Blackledge criteria, and we conclude that he has.     Weeks has
done more than allege conclusorily that he was coerced into pleading
guilty.   He has specifically asserted that after he initially refused to
plead guilty, officers beat him "half to death," told him that "he was
going to pay for not pleading




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guilty," and threatened him immediately before he pleaded guilty.       These
specific assertions are a far cry from the conclusory allegations, bare
contradictions, and wholly incredible allegations that do not satisfy the
requirements of Blackledge.    See, e.g., Tran v. Lockhart, 849 F.2d 1064,
1068 (8th Cir. 1988), cert. denied, 489 U.S. 1091 (1989); Voytik v. United
States, 778 F.2d 1306, 1309 (8th Cir. 1985).


                                     IV.
     Because Weeks has asserted that he can produce evidence of his actual
innocence that, if credited, would lift the procedural bar, the magistrate
judge erred by denying Weeks's petition without a hearing on his actual
innocence   claim.     Because     consideration   of    Weeks's   underlying
constitutional claim of coercion would not be futile, we remand for further
proceedings.


MAGILL, Circuit Judge, dissenting.


     I respectfully dissent.     As the majority concedes, Weeks's failure
to file a Rule 24.035 motion in the Missouri state court defaulted his
claim for habeas relief.   The majority also agrees that Weeks has failed
to show cause and prejudice to excuse this default.     The majority, however,
concludes that because Weeks has made bare allegations of actual innocence
that this case falls "within the 'narrow class of cases . . . implicating
a fundamental miscarriage of justice,'" Schlup v. Delo, 115 S. Ct. 851, 861
(1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)), Weeks is
thereby allowed to pursue federal habeas relief despite his procedural
default.


     With respect, my view is that the law created by the Supreme Court
and adhered to by this Circuit is clear: to warrant an evidentiary hearing
on a claim of actual innocence, a petitioner must "support his allegations
of constitutional error with new




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reliable evidence . . . that was not presented at trial . . . ."   Schlup,
115 S. Ct. at 865.    In applying this rule to circumstances virtually
identical to those in the instant case, we stated that the petitioner


     incorrectly asserts that an evidentiary hearing was required so
     that he could develop evidence in support of his claim of
     actual innocence. In [Battle v. Delo, 64 F.3d 347, 353 (8th
     Cir. 1995), cert. denied, 116 S. Ct. 1881 (1996)], we rejected
     the argument that an evidentiary hearing was necessary to
     enable the petitioner to develop evidence "which, he claim[ed],
     w[ould] exonerate him."         Noting that "[i]n essence,
     [petitioner] [wa]s asking us to excuse his evidentiary default
     as to his claim of actual innocence, . . . in order that he may
     develop sufficient evidence of his actual innocence[,]" we
     found "[t]his circular argument [wa]s without merit." Id. at
     354.

Bannister v. Delo, 100 F.3d 610, 616-17 (8th Cir. 1996).


     In this case, the majority recites the evidence that Weeks         has
merely alleged to exist, and then states:


     This evidence, if produced and credited, would establish that
     it is more likely than not that no reasonable juror would have
     convicted Weeks.     We accordingly remand for a hearing to
     determine whether Weeks can prove what he asserts.

           If he can, the district court may then consider Weeks’s
     underlying constitutional claim that his guilty plea was
     coerced.

Maj. Op. at 5 (emphasis added).      The majority has granted Weeks an
evidentiary hearing to allow Weeks to make the showing that entitles Weeks
to an evidentiary hearing.   This is directly contrary to Bannister.


     Weeks has given only his word that he is innocent and assures us
that, somewhere, there is evidence to prove it.   This is simply




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insufficient to warrant the application of the actual innocence exception.
See Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir. 1995), cert. denied, 116
S. Ct. 1578 (1996) ("Were protestation of innocence the only prerequisite
to application of this exception, we fear that actual innocence would
become a gateway forever open to habeas petitioners' defaulted claims.").



     Weeks's procedural default bars further consideration of his claim.
However, I must note that, in considering the merits of Weeks's claim, the
majority fails to give proper deference to the state court's finding that
Weeks's plea was voluntary.     The majority states that "the statutory
presumption of correctness does not apply to a state court finding that his
guilty plea was voluntary."   Maj. Op. at 6.   I disagree.1


     It is axiomatic that, in a federal habeas action, a state court's
factual findings are presumed correct.    See Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219
(1996) (amending 28 U.S.C. § 2254(d)




      1
      The majority bases this construction of law on language in
Blackledge v. Allison, 431 U.S. 63 (1977), and Pennington v.
Housewright, 666 F.2d 329 (8th Cir. 1981).    In Blackledge, the
Court held that:

     [T]he federal courts cannot fairly adopt a per se rule
     excluding    all   possibility    that    a  defendant's
     representations at the time his guilty plea was accepted
     were   so  much   the   product  of    such factors   as
     misunderstanding, duress, or misrepresentation by others
     as to make the guilty plea a constitutionally inadequate
     basis for imprisonment.

431 U.S. at 75. Similarly, this Court in Pennington rejected "an
absolute rule as to whether a plea hearing can be a full and fair
hearing." 666 F.2d at 333. There is a fundamental difference,
however, between the proper rejection of a per se rule that a state
court's finding of voluntariness is conclusive and the majority's
assertion that a state court's fact finding is entitled to no
deference whatsoever.


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(1994)) (to be codified at 28 U.S.C. § 2254(e)) ("a determination of a
factual issue made by a State court shall be presumed to be correct").2
This rule is fully applicable to the question of whether a petitioner's
plea of guilty in a state court was voluntary.   See Ford v. Lockhart, 904
F.2d 458, 461 (8th Cir. 1990) ("The district court correctly held that the
state court factual determinations were entitled to a presumption of
correctness under Sumner v. Mata, 449 U.S. 539, 544-47 (1981), because it
found that none of the circumstances enumerated in 28 U.S.C. § 2254(d) were
shown to exist.").   The majority's decision to disregard the state court's
factual findings in this habeas matter thus ignores both statutory language
and contradicts our own settled precedent.3



      2
      This Court has not yet determined if the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, should be applied retroactively to cases
such as this, or if the earlier version of 28 U.S.C. § 2254 should
apply. See Oliver v. Wood, 96 F.3d 1106, 1108 n.2 (8th Cir. 1996),
petition for cert. filed, (U.S. Dec. 23, 1996) (No. 96-7182);
Rehbein v. Clarke, 94 F.3d 478, 481 n.4 (8th Cir. 1996). Under
either version of the statute, however, a strong presumption of
correctness is afforded state court findings of fact.           The
unamended version of § 2254 provided that a state court's
"determination after a hearing on the merits of a factual issue
. . . shall be presumed to be correct, unless [there exits one of
a listed set of circumstances]."      28 U.S.C. § 2254(d) (1994).
Weeks did not contend, and the majority has not held, that any of
the enumerated circumstances exist in this case.       The amended
version of § 2254 provides that "a determination of a factual issue
made by a State court shall be presumed to be correct.          The
applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence." Antiterrorism and
Effective Death Penalty Act § 104, 110 Stat. at 1219. Under either
version of the statute, therefore, a strong--and unrebutted--
presumption of correctness of the state court's factual finding
exists.
          3
        I must also note that the majority's rule ignores the
fundamental elements of federalism that must inform our habeas
jurisprudence. See, e.g., Lehman v. Lycoming County Children's
Servs. Agency, 458 U.S. 502, 515-16 (1982) (noting that "[t]he
federal writ of habeas corpus, representing as it does a profound
interference with state judicial systems and the finality of state
decisions, should be reserved for those instances in which the


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A true copy.


           Attest:


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




federal interest in individual liberty is so strong that it
outweighs federalism and finality concerns" (declining to extend
habeas jurisdiction to child custody disputes)). In addition, I
fear that the rule propounded by the majority can only ensure
continued frivolous litigation by state prisoners challenging
entirely proper guilty pleas. See, e.g., Blackledge v. Allison,
431 U.S. 63, 71 (1977) ("More often than not a prisoner has
everything to gain and nothing to lose from filing a collateral
attack upon his guilty plea.").


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