                                No. 96-2384


United States of America,             *
                                      *
     Appellee,                        *   Appeal from the United States
                                      *   District Court for the
        v.                            *   District of Nebraska.
                                      *
Gary Apker,                           *        [PUBLISHED]
                                      *
      Appellant.                      *




                   Submitted:    September 20, 1996

                       Filed:    December 6, 1996


Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and
     MORRIS SHEPPARD ARNOLD, Circuit Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     A certificate of appealability is not available to the
petitioner in this case because petitioner is not asserting the
denial of a constitutional right. See Hohn v. United States, No.
96-3118, 1996 WL 633268 (8th Cir. Nov. 4, 1996) (per curiam). We
are therefore obligated to deny the certificate.


HENLEY, Senior Circuit Judge, concurring in the result.


     I join in the decision of the panel to deny Apker's request
for a certificate of appealability because I believe we are obliged
to do so under Hohn v. United States, No. 96-3118 (8th Cir., Nov.
4, 1996), which represents the law of this circuit. I disagree,
however, with the reasoning of the Hohn decision and therefore
concur only in the result. Because of the importance of the issue
raised by both Hohn and Apker, the court may wish to take one of
these cases for en banc review.


     There are at least two reasons why Apker's claim that he was
convicted and sentenced in violation of the Supreme Court's
decision in Bailey v. United States, 116 S. Ct. 501 (1995), should
be considered on the merits. First, it is doubtful Congress
intended in its 1996 habeas revisions to bar appeals of claims that
a conviction violates federal law. 18 U.S.C. § 2255 states that
inmates may challenge their confinement on grounds that it violates
either "the Constitution or laws of the United States." Thus, to
me it makes little sense to limit appeals from denials of habeas
relief to violations of the Constitution only and to hold that
claims resting on interpretation of federal law are not appealable.


     Second, even if Congress did intend to so limit appeals from
denials of Section 2255 relief, Apker's appeal states a
constitutional claim. For the reasons set forth in the dissent by
Judge McMillian in Hohn, the unlawful application of the federal
statute here -- convicting and punishing Apker for conduct which
does not fall within the terms of the weapons statute as construed
by the Supreme Court in Bailey -- denies Apker due process of law.
Apker should be allowed to raise this issue on appeal.


     For the stated reasons I respectfully concur in the result.


     A true copy.


          Attest:


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




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