                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 95-2906
                                   ___________

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

                             Submitted: September 9, 1997

                                  Filed: December 17, 1997
                                   ___________

Before RICHARD S. ARNOLD, Chief Judge, and LAY, McMILLIAN, FAGG,
      BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD
      ARNOLD, and MURPHY, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Almost twenty years ago, William J.R. Embrey and an accomplice, both armed,
forced a banker to withdraw $11,000 from his bank, and then fled across a state line
taking the banker along as a hostage. As a consequence, Mr. Embrey was convicted
of armed bank robbery, in violation of the Federal Bank Robbery Act (FBRA), see 18
U.S.C. § 2113(a), § 2113(d), and of kidnapping, in violation of the Federal Kidnapping
Act, see 18 U.S.C. § 1201(a)(1). He was sentenced to two consecutive twenty-year
terms, one for each conviction.

        In his petition to the district court,1 brought under 28 U.S.C. § 2255, Mr. Embrey
maintained that his conviction under the Federal Kidnapping Act was illegal because
all of his unlawful activities were violations of FBRA, which, he maintains, Congress
intended to be a comprehensive statute that provided punishment for what he did to the
exclusion of all other possibly applicable federal statutes. Cf. United States v. Gardner,
579 F.2d 474, 476 (8th Cir. 1978) (per curiam). The district court rejected the petition
on the merits, and on appeal a panel of our court reversed that judgment. See Embrey
v. Hershberger, 106 F.3d 805 (8th Cir. 1997), vacated, 116 F.3d 826 (8th Cir. 1997).
Our court voted to take the case en banc and vacated the judgment of the panel. See
Embrey v. Hershberger, 116 F.3d 826 (8th Cir. 1997). We now affirm the judgment
of the district court.

                                             I.
       We decline to express a view on the merits of Mr. Embrey's underlying legal
theory, for, whatever its merits, we think that his petition must inevitably fail for other
reasons. In the first place, it is not at all clear that, even if Mr. Embrey's theory is
correct, he would be entitled to relief under 28 U.S.C. § 2255. That statute, it is true,
provides for relief if "the sentence imposed was not authorized by law," but the
Supreme Court has held that "an error of law does not provide a basis for collateral
attack unless the claimed error constituted 'a fundamental defect which inherently
results in a complete miscarriage of justice.' " United States v. Addonizio, 442 U.S.
178, 185 (1979), quoting Hill v. United States, 368 U.S. 424, 428 (1962). It is true that
on direct appeal a court ought to correct a plain forfeited error that causes the
conviction or sentencing of a defendant who is actually innocent, see, e.g., United


      1
        The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.

                                           -2-
States v. McKinney, 120 F.3d 132, 134 (8th Cir. 1997), but such cases usually, if not
always, involve defendants who were innocent in the sense that they did not commit
the acts with which they were charged. That is not our case, and, besides, what is a
miscarriage of justice on appeal may or may not be one when the same matter is raised
as a ground for post-conviction relief.

        However that may be, Mr. Embrey has raised the very claim that he raises now
on at least three or four other occasions in the appropriate district court, and we have
decided it against him on the merits, in addition to having several times previously
dismissed his petitions as successive. See the history recounted in Embrey, 106 F.3d
at 806-07. Mr. Embrey argues, however, that because he was not eligible for the
sentence under the Federal Kidnapping Act, he is "actually innocent" of it, and
therefore we should reach the merits of his claim under the doctrine laid down in
Sawyer v. Whitley, 505 U.S. 333 (1992). In Sawyer, a capital case, the Court held that
a post-conviction court could reach the merits of a petitioner's constitutional claim, even
though the petition was successive, if the petitioner could show that he was "innocent
of the death penalty," id. at 349, in the sense that new evidence had become available
that was sufficiently strong that, in the light of it, it was probable that no reasonable
juror would have imposed the death penalty on him. Id. at 336, 348, 350.

       But Mr. Embrey's case is unlike Sawyer in a number of significant ways that are
fatal to his argument. In the first place, Mr. Embrey's quarrel is not really with his
sentence, it is with the fact that he was convicted. There is no legal error in the
sentence, because, if he was correctly convicted, the sentence was a perfectly proper
one, and Mr. Embrey does not maintain that it was not. More fundamentally, we think
that Sawyer, in terms, applies only to the sentencing phase of death cases. The Court
noted, for instance, that while the notion of actual innocence " 'does not translate easily
into the context of an alleged error at the sentencing phase of a trial on a capital
offense,' " id. at 340, quoting Smith v. Murray, 477 U.S. 527, 537 (1986), "[i]n the
context of a noncapital case, the concept of 'actual innocence' is easy to grasp."

                                           -3-
Sawyer, 505 U.S. at 341. The Court, moreover, characterized its task as "striv[ing] to
construct an analog to the simpler situation represented by the case of a noncapital
defendant." Id. We believe, with the Tenth Circuit, that the most natural inference to
draw from these observations on the Court's part is that in noncapital cases the concept
of actual innocence is "easy to grasp," id., because "it simply means the person didn't
commit the crime," United States v. Richards, 5 F.3d 1369, 1371 (10th Cir. 1993).

       Even if the basic Sawyer principle were available to undermine the validity of
convictions in noncapital cases, when one attempts to construct an analog to Sawyer
for such cases it becomes perfectly apparent that Mr. Embrey's petition cannot possibly
qualify for relief under it. Mr. Sawyer's claim was that he had new evidence that had
not been previously available to him because, he said, of the unconstitutional activities
of the government and the constitutionally deficient performance of his defense lawyer.
See Sawyer, 505 U.S. at 347-48. In our case, by contrast, Mr. Embrey produces no
new evidence at all of his "actual innocence," nor does he allege that the error that he
wants corrected resulted in that evidence not being introduced at his trial. In Schlup
v. Delo, 513 U.S. 298, 324 (1995), the Court observed that substantial claims of actual
innocence would be "extremely rare," because to "be credible, such a claim requires
petitioner to support his allegations of constitutional error [in our case, legal error] with
new reliable evidence ... that was not presented at trial."

       If Mr. Embrey's argument succeeds, these kinds of claims will cease to be
"extremely rare," id. Judge Friendly originally proposed that actual innocence ought
to be relevant to the law of post-conviction remedies not as a way of expanding their
availability but as a way of constricting it. See Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).
It would be ironic indeed if that proposal were transformed into a fertile mother of
actions. The Supreme Court, moreover, has specifically embraced Judge Friendly's
definition of actual innocence, see Kuhlmann v. Wilson, 477 U.S. 436, 454-55 n.17
(1986) (plurality opinion), a definition that presupposed that newly available evidence

                                            -4-
was to be added to evidence originally presented at a petitioner's trial in order to test
its probable effects on a fact-finder's conclusion.

       Mr. Embrey's claim, at bottom, is simply a legal not a factual one, and 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. A legal claim
that a substantive criminal statute has been wrongly applied to facts can, by resort to
a rather unsophisticated play on words, always be converted into a complaint that the
relevant facts did not support a conviction and that therefore the defendant was
"actually innocent." But that proves too much, for then any such claim can be said to
be one of actual innocence, effectively undermining the barrier to post-conviction relief
that the principle of actual innocence was meant to erect.

       There is, in fact, no new evidence, and Mr. Embrey's complaint reduces to an
assertion that the trial court got it wrong in convicting and sentencing him under the
Federal Kidnapping Act. We are not disposed to hold that in Sawyer the Supreme
Court intended to allow petitioners successive collateral attacks on convictions and
sentences by resorting to the simple expedient of reasserting an alleged legal error that
resulted in a conviction that would not have otherwise occurred, or in a sentence that
would not have otherwise been imposed. Sawyer held that actual innocence was a
gateway through which a petitioner had to pass before his claims could be considered.
Id. But here, Mr. Embrey's argument is circular and he has conflated his gateway and
his ultimate legal claim: He has recharacterized his legal claim that he was wrongly
convicted and sentenced as an assertion that he is "actually innocent," in an attempt to
resuscitate the claim that he was wrongly convicted and sentenced. If he can do that,
then every sentence would be subject to an endless number of successive reviews, a
result that we are naturally reluctant to attribute to the holding in Sawyer, and unable
to locate in any statute or equitable principle, or, indeed, in any consideration of sound
common-law policy, to which our attention has been directed.


                                           -5-
                                       II.
       For the foregoing reasons, we affirm the district court's judgment dismissing
Mr. Embrey's petition.2


LAY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins dissenting.

       Today’s opinion is, to say the least, highly unusual. In all due respect to my
colleagues, the result reached by the majority represents a gross injustice. The question
presented is whether the imposition of a twenty-year illegal sentence is immune from
collateral attack under 28 U.S.C. § 2244(a) by reason of the petitioner’s unsuccessful
filing of successive habeas corpus petitions. The majority concludes the illegal
sentence is immune from collateral attack because it finds the exception relating to the
fundamental miscarriage of justice (ends of justice)3 is not applicable to evaluate an
illegal non-capital sentence. In doing so, the majority opinion contradicts the law of
other courts of appeal as well as our own, overrides the adversarial concession of the
United States Attorney, and exalts form over substance.

                                           I.
      This case has a peculiar history. In September, 1980, Embrey was 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), (d), and kidnapping in violation of the Federal Kidnapping Act (FKA), 18
U.S.C. § 1201. On September 19, 1980, the district court sentenced Embrey to two


      2
       Mr. Embrey also makes an argument that his convictions violated his Fifth
Amendment right not to be put in jeopardy twice for the same offense, but this claim
must fail for the same reasons that his other claim fails.
      3
        In McCleskey v. Zant, 499 U.S. 467, 495 (1991), the United States Supreme
Court equated the “ends of justice” inquiry with the “fundamental miscarriage of
justice” exception.

                                          -6-
consecutive twenty-year prison terms. Embrey appealed his conviction but did not
argue his sentence was illegal. This court affirmed Embrey’s conviction in an
unpublished opinion. See United States v. Embrey, 657 F.2d 273 (8th Cir. 1981)
(Table).

       In 1983, Embrey, acting pro se, filed his first habeas petition in district court.
Embrey challenged his sentence pursuant to 28 U.S.C. § 2255. In that initial petition,
Embrey argued that his separate and consecutive sentence under § 1201 for kidnapping
was illegal. The district court rejected Embrey’s petition on the merits, and Embrey
appealed. This court dismissed Embrey’s appeal as frivolous pursuant to Eighth Circuit
Rule 12(a).4 Thereafter, Embrey filed several other habeas petitions, many of which
this court dismissed as frivolous. The Supreme Court has stated an appeal on a matter
of law is frivolous where “[none] of the legal points [are] arguable on their merits.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989) (quoting Anders v. California, 386 U.S.
738, 744 (1967)). However one may characterize Embrey’s sentencing argument, it
was never frivolous.

       On June 23, 1994, while still facing the second consecutive twenty-year
sentence, Embrey filed this petition for writ of habeas corpus. The district court
construed Embrey’s petition as a motion to correct his sentence pursuant to 28 U.S.C.
§ 2255 ; it later dismissed Embrey’s petition. Embrey appealed to this court.

      This time, Embrey found a friendly judicial ear. This court’s records show that
Judge Morris Arnold appointed counsel for Embrey and set up a full briefing schedule.
Following oral argument, a divided panel of this court (Judge Morris Arnold,
dissenting) noted the government expressly waived any procedural default claim




      4
       This rule is now Eighth Circuit Rule 47 (a).
                                          -7-
regarding Embrey’s failure to object to his illegal sentence before the sentencing court.5
Embrey v. Hershberger, 106 F.3d 805, 807 (8th Cir.), vacated and reh’g en banc
granted, 116 F.3d 826, 826-27 (8th Cir. 1997). The majority of the original panel held
that although Embrey had filed successive appeals, this court could reach the merits of
Embrey’s claim because Embrey had met the “ends of justice” test under § 2244(a).6
See Embrey, 106 F.3d at 808. The panel concluded Embrey was not “eligible” for the
twenty-year consecutive sentence under § 1201 since the FBRA fully encompassed
Embrey’s integrated conduct of kidnapping and bank robbery. Id. at 811.

                                          II.
       Embrey has raised his sentencing argument in prior habeas petitions. The fact
that this court deemed Embrey’s earlier attacks on his sentence as frivolous does not
diminish the effect of the court’s prior judgments. Thus, Embrey’s current § 2255
petition is successive.7 Even so, this court can reach the merits of Embrey’s

      5
       During oral argument before the court en banc, the government explained it was
not raising procedural default because “cause” could be shown by the failure of
Embrey’s trial counsel to object to the defendant’s consecutive sentence in his original
trial.
      6
        The amendments to 28 U.S.C. §§ 2244(a) and 2255 resulting from the 1996
Antiterrorism and Effective Death Penalty Act (AEDPA) are not retroactive and do not
apply to Embrey’s claim. See Lindh v. Murphy, ___ U.S. ___, 117 S. Ct. 2059, 2063
(1997). Further, Congress’ more restrictive view toward successive habeas petitions,
as reflected in certain AEDPA amendments to the habeas statutes, should have no
bearing on this court’s treatment of Embrey’s pre-AEDPA habeas petition.
      7
        The majority alleges that Embrey’s current habeas petition is successive. “The
terms <successive petition’ and <abuse of the writ’ have distinct meanings.” Kuhlmann
v. Wilson, 477 U.S. 436, 444 n.6 (1986) (plurality opinion). A successive petition is
one which raises grounds identical to those heard and rejected on the merits in a prior
petition. Id. (citing Sanders v. United States, 373 U.S. 1, 15-17 (1963)). An abusive
petition is one in which a prisoner raises grounds that were available but not relied
upon in a prior petition, or otherwise engages in conduct that disentitles the prisoner
to the relief sought. Kuhlmann, 477 U.S. at 444 n.6 (citing Sanders, 373 U.S. at 17-

                                           -8-
successive claim if the “ends of justice” will be served by such an inquiry. See 28
U.S.C. § 2244(a). It is my strong belief that the ends of justice will and must be served
by such an inquiry. It is difficult to comprehend how the majority can determine
whether the ends of justice will be served in this case without making an inquiry into
the merits of Embrey’s illegal sentencing argument. The majority avoids such an
inquiry by concluding the “actual innocence” exception will not allow the court to reach
Embrey’s claim of an illegal sentence.

       The majority bases its conclusion on the Supreme Court’s decision in Sawyer v.
Whitley, 505 U.S. 333 (1992). In Sawyer, the Court recognized the difficulty in
translating and applying the actual innocence exception to a case challenging a capital
sentence. Sawyer, 505 U.S. at 339-40 (citing Smith v. Murray, 477 U.S. 527, 537
(1986)). In applying the exception in that sentencing case, the Court adopted an
“eligibility” test. See Schlup v. Delo, 513 U.S. 298, 323 (1995). The majority refuses
to apply this eligibility test to Embrey’s case, contending the actual innocence
exception does not extend to a case involving a challenge to a non-capital sentence.

       The majority misreads Sawyer. The Supreme Court has never ruled the actual
innocence exception, articulated as an eligibility test in Sawyer, does not extend to
cases involving challenges to non-capital sentences. While it is true Sawyer involved
a challenge to a capital sentence, Sawyer’s analysis is not expressly restricted to cases
involving capital sentences.


19). “The concept of <abuse of the writ’ is founded on the equitable nature of habeas
corpus.” Id.

       Embrey’s very first habeas petition challenged his sentence on the grounds it was
imposed in violation of the laws of the United States. Embrey makes the same
argument in this petition. Thus, Embrey’s petition is not abusive because Embrey did
not raise grounds in this petition that were available to him before, but not relied upon
by him in his first petition.

                                          -9-
       Moreover, there exists no valid reason to restrict the Sawyer analysis to cases
challenging capital sentences. As the Sawyer Court demonstrated, the eligibility test is
a useful solution to a difficult problem. The eligibility test is a more communicative
method for determining whether the ends of justice require a court to reach a
petitioner’s procedurally-barred challenge to a sentence. An individual is either eligible
or not eligible to receive a particular sentence. If an individual receives a sentence for
which he or she is not eligible, the eligibility test allows a court to reach the sentence
and to correct or vacate that sentence.

       In its opinion, the majority also fails to recognize that we are interpreting a
congressional enactment under § 2244(a). Although the Supreme Court has developed
its own guide as to the meaning of the “ends of justice” test, Congress has never limited
the ends of justice test to capital cases. Case law governing § 2244 demonstrates that
§ 2244 applies to both capital and non-capital cases. See, e.g., Schlup v. Delo, 513
U.S. at 324-30 (discussing the miscarriage of justice exception and applying it to the
successive petitions of prisoner convicted of capital murder); Sanders v. United States,
373 U.S. at 15-20 (applying ends of justice test to successive petition of prisoner who
challenged his non-capital sentence pursuant to § 2255); McCoy v. Norris, No. 97-
1068, 1997 WL 600040, at *4 (8th Cir. Oct. 1, 1997) (considering whether miscarriage
of justice exception required court to reach merits of claim in non-capital offender’s
successive habeas corpus petition); Washington v. Delo, 51 F.3d 756, 760-62 (8th Cir.
1995) (discussing the miscarriage of justice exception and analyzing whether exception
required court to review successive petitions of prisoner convicted of non-capital
offense); Shaw v. Delo, 971 F.2d 181, 185-87 (8th Cir. 1992) (applying miscarriage of
justice exception to death row prisoner’s successive habeas petition and determining
whether refusal to review petition would result in miscarriage of justice); Poyner v.
United States Parole Comm’n, 878 F.2d 275, 277 (9th Cir. 1989) (prisoner serving time
for aggravated assault did not make showing that the ends of justice required the court
to examine arguments made in a successive petition); McDonald v. Blackburn, 806 F.2d
613, 621-23 (5th Cir. 1986) (applying ends of justice test to successive petition

                                          -10-
of prisoner convicted of non-capital offense). Cf. George v. Perrill, 62 F.3d 333, 334-
35 (10th Cir. 1995) (applying § 2244(a) to prisoner’s repetitive challenge to the
execution of his non-capital sentence and declining to reach specific issue of whether
petition was successive or abusive because prisoner failed to make showing of cause,
prejudice, or fundamental miscarriage of justice); Walker v. Lockhart, 763 F.2d 942,
949-60 (8th Cir. 1985) (en banc) (applying ends of justice test to successive petitions
of prisoner convicted of murder who was initially sentenced to death, and later
sentenced to life imprisonment, and conditionally granting writ of habeas corpus based
on evidence that trial judge was biased and state failed to produce exculpatory
transcript).

      Justice Rutledge observed over 50 years ago:

      The writ should be available whenever there clearly has been a
      fundamental miscarriage of justice for which no other adequate remedy is
      presently available. Beside executing its great object, which is the
      preservation of personal liberty and assurance against its wrongful
      deprivation, considerations of economy of judicial time and procedures,
      important as they undoubtedly are, become comparatively insignificant.


Sunal v. Large, 332 U.S. 174, 189 (1947). A year later, the Supreme Court observed
in Wade v. Mayo, 334 U.S. 672, 681 (1948), that “prevention of undue restraints on
liberty is more important than mechanical and unrealistic administration of the federal
courts.” In Sanders v. United States, 373 U.S. at 8, the Court observed “[c]onventional
notions of finality of litigation have no place where life or liberty is at stake and
infringement of constitutional rights is alleged.” (emphasis added). Justice Harlan,
although dissenting in Sanders, agreed that “loss of liberty and sometimes loss of life
. . . are far too great to permit the automatic application of an entire body of technical
rules whose primary relevance lies in the area of civil litigation.” Sanders, 373 U.S. at
24 (Harlan, J., dissenting). Thus, it has long been recognized that principles of res


                                          -11-
judicata are not to be applied where a fundamental miscarriage of justice has taken
place. See, e.g., Sanders, 373 U.S. at 8.

       I am well aware that since 1963, restrictive rules have been placed upon the use
of the Great Writ. These rules seek to avoid abuse of the writ and to further principles
of finality. See Sawyer v. Whitley, 505 U.S. at 339 (overcoming procedural bar
requires proof of actual innocence); Teague v. Lane, 489 U.S. 288, 316 (1989) (habeas
corpus cannot be used to create new rules of constitutional procedure unless those rules
would apply prospectively to all defendants on collateral review); Wainwright v. Sykes,
433 U.S. 72, 87 (1977) (claims not raised in state courts may be raised on habeas
corpus only upon showing of cause and prejudice); Stone v. Powell, 428 U.S. 465, 494-
95 (1976) (Fourth Amendment exclusionary rule claims are not cognizable on habeas
corpus if the state court provided defendant opportunity to fully and fairly litigate those
claims). Despite these restrictions, both Congress and the Supreme Court have
recognized that there should be availability of the writ, despite procedural default or
successive petitions, in order to correct a fundamental miscarriage of justice. See 28
U.S.C. § 2244(a); see, e.g., Schlup, 513 U.S. at 320-21 (noting existence and
importance of the exception for fundamental miscarriages of justice). Surely no one can
claim that requiring an individual to serve a twenty-year illegal sentence is not a
miscarriage of justice. The majority does not dispute otherwise. It simply argues that
the actual innocence test articulated by the Court in Murray v. Carrier, 477 U.S. 478,
495-96 (1986), and Sawyer, 505 U.S. at 348, is not flexible enough to be used to attack
an illegal non-capital sentence. This makes little sense to me.

       The majority also urges that the essence of petitioner’s claim is that of “legal
innocence” since Embrey challenges his conviction under § 1201. Yet, it is obvious
that in charging Embrey, the government sought to enhance Embrey’s bank robbery
sentence by adding a separate charge of kidnapping under § 1201. Further, the district
court treated Embrey’s petition as one brought pursuant to § 2255 to correct his
sentence. (emphasis added). Any challenge to a sentence is a legal one; this is

                                          -12-
especially true where a court sentences an individual without the authority to do so. The
legal challenge, however, is not based on any substantive defect in proof or
constitutional rule of procedure. The attack simply focuses on the court’s lack of power
to impose a sentence.

        To urge Embrey is raising a claim of “legal innocence” supports the Supreme
Court’s observation that the actual innocence test is one that does not easily lend itself
to a challenge involving the legality of a sentence. See Sawyer, 505 U.S. at 339-40
(citing Smith v. Murray, 477 U.S. at 537). Despite the difficulty in applying the actual
innocence exception to challenges involving sentences, this circuit, at least until today,
recognized an exception allowing a habeas petitioner to challenge an illegal sentence
even where there had been a procedural default. See Pilchak v. Camper, 935 F.2d 145,
148 (8th Cir. 1991). In Pilchak, Judge Beam, writing for this court, applied the actual
innocence exception to a non-capital defendant who, although factually guilty of the
crime at hand, was “not the proper subject for a sentence of a lifetime of incarceration.”
 Id. at 148. Judge Beam observed:

              It is difficult to conceive of a more “fundamentally unjust,” Engle
      v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 1558, 1576, 71 L. Ed. 2d 783
      (1982), situation than we have in this case. Pilchak was entitled to a trial
      before an unbiased jury while being represented by a competent lawyer,
      even if we concede that the evidence available to the prosecution may
      have been sufficient to convict her of drug conspiracy. More to the point
      in the application of the Murray exception, however, is that Pilchak, in this
      case, was not the proper subject for a sentence of a lifetime of
      incarceration. (footnote omitted). In this regard, we again point out that
      the principal conspirator, McCaw, was sentenced to a term of years, which
      sentence has resulted in his already having gained his freedom.


Pilchak, 935 F.2d at 148.



                                          -13-
       At least three other circuits that have considered this question have also held the
actual innocence exception is applicable in the context of a challenge to a non-capital
sentence. See 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 non-capital sentencing enhancement cases); Mills v. Jordan, 979
F.2d 1273, 1278-79 (7th Cir. 1992) (concluding application of the actual innocence
exception to non-capital habitual offender proceedings is consistent with Sawyer v.
Whitley); Mobley v. United States, No. Civ. A. 97-650-AM, 1997 WL 440928, at *3
(E.D. Va. Aug. 1, 1997) (holding application of actual innocence exception is not
limited to cases involving capital sentencing); see also Hope v. United States, 108 F.3d
119, 120 (7th Cir. 1997) (noting that prior to the AEDPA amendments to § 2255, courts
extended the actual innocence exception to sentencing issues in both capital and non-
capital cases); Sones v. Hargett, 61 F.3d 410, 418-19 & n.16 (5th Cir. 1995) (assuming
arguendo that the actual innocence exception applies to non-capital sentencing cases);
Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992) (same). But see Reid v. Oklahoma,
101 F.3d 628, 630 (10th Cir. 1996) (holding the actual innocence exception does not
apply in cases involving challenges to non-capital sentences); United States v. Richards,
5 F.3d 1369, 1371 (10th Cir. 1993) (same); 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 non-capital offense).

        The procedural bar the majority now employs, whether it be based upon
procedural default (waived by the government), abuse of the writ, or successive
petitions, is very surprising in light of the good faith position of the United States in this
case. At oral argument, the United States Attorney expressed a view that Embrey
should not be barred from raising his claim of an illegal sentence. He said Embrey’s
attorney should have raised the illegal sentence argument in Embrey’s direct appeal and
failed to do so. Further, he indicated Embrey never received a complete review of his
claim in this court.


                                            -14-
        The majority, for whatever reason, has refused to accept the government’s
concession made at oral argument. It is true this court is not legally bound to accept
such a concession. See Jones v. Hildebrant, 432 U.S. 183, 195-96 (1977) (observing
the Court “is not bound by concessions of counsel in oral argument as to whether a legal
issue is open in this Court”). However, where a claim of an illegal sentence is at issue,
the court should examine with great scrutiny the reasons it has rejected the
government’s good faith concession.

                                            III.
       Because I believe the “ends of justice” exception applies to Embrey, I would
reach the merits of his illegal sentence argument. Embrey argues the offenses of bank
robbery and associated kidnapping are fully encompassed within the FBRA, and
Congress has directed he should be sentenced only under the FBRA.8 The United

      8
       The statute, 18 U.S.C. § 2113, 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

                                          -15-
States argues it is lawful to go outside the FBRA and obtain an additional conviction
and sentence for behavior covered within the FBRA. I reject this argument.

       The United States contends 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)). The
government, applying the Blockburger test, urges Embrey’s consecutive sentences were
permissible because the convictions were for separate offenses with distinct elements
of proof.

       In Albernaz, however, 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, for the reasons discussed infra, it is patent that
Congress intended the FBRA to be the comprehensive and exclusive remedial provision
for federal bank robbery prosecutions. See United States v. Leek, 665 F.2d 383, 387
(D.C. Cir. 1981). Further, this court has recognized that the FBRA is a comprehensive
scheme precluding additional charges under outside statutes for conduct within the
FBRA’s coverage. United States v. Phillips, 522 F.2d 388, 392 (8th Cir. 1975).




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.

(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.

                                         -16-
       The United States also asserts that the district court could impose consecutive
sentences for the two convictions, citing cases it maintains are analogous. First, the
United States cites United States v. Dotson, 546 F.2d 1151, 1153 (5th Cir. 1977), the
only reported case with similar facts and convictions, 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 v. United States, 352
U.S. 322 (1957), whereby the Supreme Court prohibited the pyramiding of sentences
under the FBRA, is not directly controlling; the Dotson court therefore affirmed the
concurrent sentences imposed in that case. Dotson, 546 F.2d at 1153. 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 illegal conduct not then covered by the FBRA. See United States
v. Allen, 797 F.2d 1395, 1401-02 (7th Cir. 1986) (bank robbery and possession of a
firearm by a felon, explicitly distinguishing Simpson v. United States); United States v.
Davis, 573 F.2d 1177, 1181-82 (10th Cir. 1978) (bank robbery and conspiracy); United
States v. Welty, 426 F.2d 615, 619 n.15 (3d Cir. 1970) (same).

       Moreover, the Supreme Court addressed and rejected 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 The sentencing court imposed consecutive
sentences on the robbery and firearms counts. The government argued the convictions
and consecutive sentences were justified as distinct offenses under the Blockburger test.
Id. at 10-11. The Supreme Court held it was not necessary to reach


      9
       The version of § 924(c) at issue in Simpson imposed a sentence of one to ten
years upon persons who used or carried a firearm during the commission of a felony.
This sentence was in addition to any penalty imposed for the commission of the felony.
See Simpson, 435 U.S. at 8 n.2.

                                         -17-
the 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 12-13.10 In addition to the
legislative history of § 924(c), the Court relied upon two rules of statutory
construction.11 First, where there is ambiguity concerning the scope of criminal

      10
        During oral argument, in an attempt to distinguish Simpson and to support its
argument that Embrey’s consecutive sentence under § 1201 is not illegal, the
government cited United States v. Culbert, 435 U.S. 371 (1978). In Culbert, the
Supreme Court upheld a single conviction for bank robbery under the Hobbs Act, 18
U.S.C. § 1951. The defendant and his accomplice attempted to extort money from the
president of a federally insured bank. The Court upheld the Hobbs Act charge and
reversed the lower court’s ruling that activity had to be racketeering to be within the
scope of the Hobbs Act. Culbert, 435 U.S. at 379-80.

        The government argues that because the Supreme Court upheld a single
conviction under the Hobbs Act for extortionate conduct involving a bank, this court
should allow the imposition of consecutive sentences for bank robbery under the FBRA
and FKA. Given the obvious differences between Culbert and this case, Culbert does
not support the government’s position. Moreover, the committee report accompanying
the 1986 amendment to § 2113 of the FBRA, which amends § 2113(a) to expressly
cover crimes of extortion directed at federally insured banks, undercuts the Culbert
holding. In that report, the committee states its intent to “overrule those cases holding
that only the Hobbs Act applies, and those cases holding that both the Hobbs Act and
18 U.S.C. 2113(a) apply, in order to make 18 U.S.C. 2113(a) the exclusive provision
for prosecuting bank extortion.” Criminal Law and Proc. Tech. Amends. Act of 1986,
H.R. Rep. No. 99-797, at 33 (1986) reprinted in 1986 U.S.C.C.A.N. 6138, 6156
(citations omitted).
      11
         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

                                          -18-
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
the parallel theory that where two statutes may apply, the terms of the more specific
statute control. Id. at 15.12

      In United States v. Leek, 665 F.2d 383, 385 (D.C. Cir. 1981), the defendant pled
guilty to violating the FBRA, § 2113(a), which penalizes entry with intent to commit
robbery, and to violating 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 it was reversible error
to “fragment the robbery and venture outside the federal scheme for a peg on which to
hang the aggravated component of the offense.” Leek, 665 F.2d at 387; see United
States v. Snell, 550 F.2d 515, 517-18 (9th Cir. 1977) (holding the FBRA “provides
exclusive federal remedies for offensive conduct fully within its coverage”);



Embrey under a statute outside the FBRA for conduct within its coverage, the rationale
is 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. Rather, the
government fragmented the act to obtain convictions and consecutive sentences for
armed bank robbery in violation of §§ 2113(a) and (d), and kidnapping in violation of
§ 1201.
      12
         In 1984, Congress expressly overruled Simpson and Busic v. United States,
446 U.S. 398 (1980). Congress concluded that section § 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). 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 Br. at 17-18).

                                         -19-
United States v. Beck, 511 F.2d 997, 1000 (6th Cir. 1975) (citing Canty, and holding
the FBRA “was intended to exclusively proscribe conduct within its ‘coverage’”). The
court emphasized 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 390.13

       The legislative history of the 1986 amendment to the FBRA illustrates Congress’
intent to make the FBRA comprehensive with respect to conduct proscribed in its
provisions. The Committee Report accompanying the amendment states:
       There is no gap in federal law. Extortionate conduct is prosecutable either
       under the bank robbery provision or the Hobbs Act, both of which carry
       the same maximum prison term (20 years). However, clarification as to
       which should be the applicable statute is desirable.

      The Justice Department believes that the natural and appropriate vehicle
      for prosecuting extortionate activity involving the obtaining of bank
      monies is 18 U.S.C. 2113(a), rather than the Hobbs Act, which has the
      purpose of safeguarding the channels of interstate and foreign commerce
      from the adverse effects of robbery and extortion. The Committee
      concurs. Accordingly, section 51 amends 18 U.S.C. 2113(a) expressly to
      cover crimes of extortion directed at federally insured banks. The
      Committee intends to overrule those cases holding that only the Hobbs

      13
          The Eighth Circuit has never decided the issue before us. However, this court,
at least in dicta, has recognized validity in the argument that one cannot be sentenced
for bank robbery under § 2113 and § 1201. 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.”
Phillips, 522 F.2d at 392 (citing United States v. Canty).

                                         -20-
Act applies, and those cases holding that both the Hobbs Act and the 18 U.S.C. 2113(a)
apply, in order to make 18 U.S.C. 2113(a) the exclusive provision for prosecuting bank
extortion.


Criminal Law and Proc. Tech. Amends. Act of 1986, H.R. Rep. No. 99-797, at 32-33
(1986) reprinted in 1986 U.S.C.C.A.N. 6138, 6155-56.

       Finally, as the Leek court found, Prince v. United States, 352 U.S. at 322, and its
progeny also support the argument that an additional sentence, based on a separate
statute for conduct within the coverage of the FBRA, is illegal. See Leek, 665 F.2d at
387 n.36. As noted above, the Prince Court prohibited the pyramiding of sentences
under the FBRA. The Court based this prohibition on the FBRA’s legislative history
and the principle that multiple punishments will not be imposed without clear
congressional authorization. Therefore, defendants can receive only one conviction and
one sentence for violation of the several provisions of the FBRA. See United States v.
Pietras, 501 F.2d 182, 187-88 (8th Cir. 1974); United States v. Delay, 500 F.2d 1360,
1367 (8th Cir. 1974); Jones v. United States, 396 F.2d 66, 69 (8th Cir. 1968). 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 and beyond judicial authority. 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.

       It is unfathomable that a federal court lacks the power to vacate an illegal
sentence of twenty years because petitioner has, in vain, sought by successive petitions
to assert his liberty interest. I cannot believe this is the law. Societal respect for
individual liberty requires more. I must, therefore, dissent.


                                          -21-
A true copy.

      Attest:

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




                          -22-
