                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 95-4123
                                 ___________

Rubin R. Weeks,                       *
                                      *
           Appellant,                 *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Mike Bowersox,                        *
                                      *
           Appellee.                  *
                                 ___________

                           Submitted: April 15, 1997
                               Filed: July 24, 1997
                                ___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, MAGILL,
      McMILLIAN, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN,
      MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.
                          ___________

MAGILL, Circuit Judge.

    Robin Weeks pled guilty in Missouri state court to
charges of kidnaping and rape and was sentenced to
concurrent terms of thirty years and life imprisonment.
Although Weeks defaulted his postconviction relief and
was denied collateral relief in the Missouri state court,
Weeks petitioned for federal habeas relief in the
district court.1




   1
   The Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern
District of Missouri, sitting by consent of the parties pursuant to 28 U.S.C. § 636(c)
(1994).

                                         -2-
The district court denied relief to Weeks without an
evidentiary hearing, holding that Weeks defaulted on his
federal habeas claims by failing to make a timely
petition to the Missouri state court for postconviction
relief.   The district court also held that Weeks had
shown neither cause and prejudice for his default nor
actual innocence of the kidnaping and rape charge. Weeks
appeals, arguing that his actual innocence entitles him
to an evidentiary hearing.    Weeks asserts that he has
made the requisite showing for a hearing on his defaulted
federal claims. First, Weeks maintains that he has shown
evidence of his actual innocence. Second, Weeks asserts
that, in the absence of evidence, his allegation that he
is actually innocent, coupled with his unsupported claim
that he could produce evidence of his innocence, is
sufficient. Third, Weeks argues that, even if he has not
established his actual innocence, his assertions that
exculpatory evidence exists are sufficient to entitle him
to a hearing at which he could develop evidence of his
actual innocence. We affirm.2

                                        I.

    Shortly after midnight on October 13, 1991, Ms.
Jolynn Alicia [Doe], a young woman who was then twenty-
one years of age, was driving home through Cape
Girardeau, Missouri, from her place of work. Weeks, an
illiterate thirty-year-old ex-convict,
    had seen [Ms. Doe] at her place of employment


    2
     A panel of this Court reversed the decision of the district court and remanded.
Weeks v. Bowersox, 106 F.3d 248, 251-52 (8th Cir. 1997) (opinion vacated upon
rehearing en banc).

                                        -3-
and had followed her as she was driving home . .
. . As [Weeks] was driving behind her, he
flashed his lights seven or eight times which
caused her to pull over.      She had her doors
locked and her windows rolled up. He came up to
the side of the car and had indicated to her
that there was some trouble with a back
taillight or some part of the back of her car.
She rolled down her




                       -4-
    window enough to hear what he was saying, and
    the next thing she knew a hand with a butcher-
    type knife had come in and was slashing at her
    hands, which were on top of the steering wheel
    and cut her hands. [Weeks] then was able to get
    the door open; [he] took her out of the car;
    took her to his car, and started driving with
    her towards Bollinger County. While they were
    still in Cape [Girardeau] County, [Weeks]
    ordered her to take off her clothes, which she
    removed from the lower part of her body.
    [Weeks] then performed an act of sodomy by
    putting his finger in her vagina while they were
    still in Cape Girardeau County and while he had
    the knife there under his leg as he was driving
    the car.   She saw [Weeks] cross the Bollinger
    County line into Bollinger County, and in
    Bollinger County they continued to a farm, where
    he took her near a barn and raped her on a
    blanket and also performed various types of
    sodomy at that time too. . . .      [Weeks then]
    went and took his belt and stood over her with
    his belt in his hands.      [Ms. Doe] felt that
    [Weeks] was considering strangling her.     [Ms.
    Doe] felt that she was about to die. Instead
    [Weeks] went to his car and got duct tape by
    which he used to tie her ankles and her knees
    and her hands, and he left her tied there in
    Bollinger County and [then Weeks] drove off.
    [Ms. Doe] was able to get free and ultimately
    got to the authorities.

Tr. of Plea of Guilty & Sentence (Feb. 13, 1992) at 23-
25, reprinted in Resp't's Ex. F at 23-25 (description of
crimes by prosecutor).

    Weeks was subsequently arrested in Mississippi and
extradited to Missouri.    After returning to Missouri,
Weeks was charged with the kidnaping and rape of Ms. Doe.

                           -5-
On February 13, 1992, Weeks pled guilty in Missouri state
court to the charges. Weeks's counsel explained to the
state trial court that, pursuant to a plea agreement and
in response to Weeks's guilty plea,

    the State has agreed to dismiss . . . all the
    charges except the two to which we have pled,
    the kidnaping and the rape.        [The state
    prosecutors] have also agreed that whatever
    sentence you impose on those two charges shall
    run concurrently.   They have also agreed and
    they have produced records




                           -6-
    which support their position that if they would
    file as a Class X offender, it would increase
    the further time before he could be considered
    for parole to eighty percent.        They have
    declined to do that upon a valid plea to our
    charges. So you have the discretion to sentence
    him from five years to thirty in one case, from
    ten to life on another case, but you are to run
    them concurrently as a prior and persistent
    offender.

Id. at 16, reprinted in Resp't's Ex. F at 16 (statement
by defense counsel). When asked by the trial court if he
understood the plea agreement, Weeks responded, "Yes."
Id. at 17.

    Weeks's   attorney   also     explained   that   Weeks   pled
guilty

    because I have advised him concerning the law,
    that [the plea agreement] gives him some
    opportunity for parole at some date in the
    future, albeit it could be a far date.        My
    advice to him was we didn't think by going to
    trial the other way, that he has the realistic
    opportunity that he would be able to receive
    probation in light of the amount of charges that
    were B and A felonies.        So he has never
    maintained--he has given confessions to the
    charges and he has admitted his involvement, and
    he feels this is the best of the choices he has.

Id. at 20-21, reprinted in Resp't's Ex. F at 20-21
(statement of defense counsel). Weeks agreed that his
counsel's statement was accurate. See id.

    At the plea hearing, Weeks admitted that he kidnaped


                                -7-
and raped Ms. Doe:

    Q.   [by The Court] Mr. Weeks, I'll ask you a
         number of questions this afternoon about
         your desire to enter pleas of guilty. If at
         any time you do not understand my questions,
         interrupt me and let me know that, and I'll
         explain the questions further. Okay?

    A.   [by the defendant] Yes, sir.




                           -8-
Q.   First of all, will all of your answers to my
     questions be truthful?

A.   Yes, sir.

Q.   Has anyone told you not to tell the truth?

A.   No, sir.

     . . . .

Q.   Did Mr. Robbins [Weeks's defense counsel]
     read the Petitions to you?

A.   Yes, sir.

Q.   And did he go over the Petitions with you?

A.   Yes, sir.

Q. Did he explain the contents of the Petitions
to you?

A.   Yes, sir.

Q.   Do you understand the contents of the Petitions?

A.   Yes, sir.

Q.   Is there anything in here that you do not
     understand?

A.   No, sir.

Q.   Let me ask you about these charges. First,
     from the Cape Girardeau County case.

     MR. SWINGLE [the prosecutor]: Your Honor, in
     the Cape Girardeau County case, he is
     pleading to Count I, which is


                       -9-
     kidnaping, and in the Bollinger County case,
     he is pleading to Count II, which is rape.

Q.   Okay, in Count I, did you on October 13 of
     last year unlawfully remove Jolynn Alicia
     [Doe], without her consent, from her car on
     County   Road   350,    which   was   about
     approximately    150    yards   from    the
     intersection of County Road 350 and Highway
     72?

A.   Yes.

     . . . .

Q.   Let me ask you, on Count II, on the
     Bollinger County case, did you also on
     October 13th of last year, and that would be
     in Bollinger County, whereas the other was
     in Cape [Girardeau] County, in Bollinger
     County did you have sexual intercourse with
     Jolynn Alicia [Doe]?

A.   Yes.

Q.   And was that without her consent?

A.   Yes.

Q.   Did you use force?

A.   Yes.

Q.   And did you also display a deadly weapon in
     a threatening manner?

A.   Yes.

Q.   What was that weapon?

A.    A knife.

                       -10-
-11-
        Q.   A knife, okay. Well, what did you do? Tell
             me in your own words what happened about
             these two crimes, one in Cape Girardeau
             County and one in Bollinger County, that
             makes you think you are guilty?

        A.   Because I am guilty.

        Q.   I understand, but tell me in your own words
             what happened on these two charges that
             makes you think that you are guilty of the
             crime?

        A.   Because I did what they said I did.

        Q.   So everything in those charges is true and
             correct?

        A.   Yes.

        Q.   No question about that?

        A.   No, sir.

Id. at 2-6, reprinted in Resp't's Ex. F at 2-6 (emphasis
added).3

        Weeks also agreed that his plea was voluntary:

        Q.   [By the Court] Now, have any other promises


    3
     Ms. Doe also spoke at Weeks's plea hearing, stating that "[e]ver since this man
[Weeks] kidnapped me and raped me, I haven't been able to live my life--(crying, not
audible). I'm afraid every day of my life. I can't drive my vehicle without constantly
looking at my rear-view mirror. I'm afraid that this is going to happen again. I can't
trust anybody, and I'm afraid to be by myself. It has just affected my life so much."
Tr. of Plea of Guilty & Sentence (Feb. 13, 1992) at 25, reprinted in Resp't's Ex. F at 25.


                                          -12-
been made by anyone to get you to plead
guilty?




                -13-
       A.   [By the defendant] No, sir.

       Q.   Has anyone forced you or threatened you in
            any way to get you to plead guilty?

       A.   No, sir.

       Q.   Is your mind clear today?

       A.   Yes.

Id. at 17-18, reprinted in Resp't's Ex. F at 17-18.4


   4
     The Missouri state court ascertained that, although Weeks received prescription
medications for various health problems, these medications did not effect Weeks's
ability to understand and to voluntarily enter his guilty plea:

       Q.   [by the Court] Have you had any drugs or alcohol in the last four
            days other than your insulin medication?

       A.   [by the defendant] Yes.

       Q.   What other drugs have you been taking?

            MR. ROBBINS [defense counsel]: Judge, I can give you a report, if I can
            find it.

            ....

            MR. ROBBINS: Judge, we have--I have received a copy of a report from
            Fulton State Hospital, and according to this, dated January 28th, he was
            placed on Prozac, which is for depression. He was also placed on
            something called Mevacor. He was also placed on Diphenhydramine,
            according to the report I received. I don't know if he is getting those, but
            he was placed on those.

       Q.   Are you getting all of those drugs now?

                                        -14-
A.   I was under the Sheriff's care over her at Cape.

     MR. ROBBINS: And he gets insulin injections.

Q.   I know you have insulin too.

     MR. ROBBINS: Judge, some of those are for triglycerides, which is
     cholesterol things, one for depression; the Diphenhydramine is a
     medication for sleep; the Mevacor had to do with blood triglycerides.

Q.   You've got a number of health conditions, don't you?

A.   Yes.

Q.   Well, let me ask you this, are any of those medications affecting your
     willingness to plead guilty today?

A.   No, sir.

Q.   Is there any effect on you at all other than to help you feel better?

A.   No, sir.

     THE COURT: Do you agree with that, Mr. Robbins? To your
     knowledge, are any of those drugs causing any adverse effects that might
     cause him to be entering a plea against his will?

     MR. ROBBINS: Judge, I don't know what the medications exactly do, but
     I have talked to him on several, several, several occasions about this.
     While he may not be pleased with the situation, he seems to comprehend,
     has no question about what could happen. We have been over this
     multiple times. I think he understands. He is not happy about it, but I
     think he understands.

Q.   I just want to make sure, Mr. Weeks, because you are taking these

                                 -15-
     medications, that for some reason they cause you to be pleading guilty
     even though you don't want to be pleading guilty, even though you don't
     want to; so are you telling me they don't have any effect on you about
     your willingness to plead guilty?

A.   No, sir.

Q.   They don't have any effect at all then?

A.   No, sir.

     MR. SWINGLE [the prosecutor]: May I ask a couple additional question,
     Your Honor?

     THE COURT: Yes.

     MR. SWINGLE: Do you feel clear-headed today?

     THE DEFENDANT: Drowsy, but I'm clear-headed.

     MR. SWINGLE: Do you feel you are able to hear and understand what
     is being said here?

     THE DEFENDANT: Yes.

     THE COURT: And you know what you're doing?

     THE DEFENDANT: Yes.

     THE COURT: No question about that?

     THE DEFENDANT: No.

     THE COURT: You are sure this is what you want to do, Mr. Weeks?


                                -16-
            THE DEFENDANT: Yes.


Tr. of Plea of Guilty & Sentence at 18-20, reprinted in Resp't's Ex. F at 18-20
(emphasis added).

                                     -17-
    At the sentencing phase of Weeks's hearing, Weeks's
attorney argued strongly that Weeks should receive a
sentence of a determinate number of years, rather than a
life sentence. Weeks's counsel stated:

    I'm not trying in any way to diminish the fact
    that the young lady was assaulted, and I'm sure
    it has affected her, and I don't want it to do
    that; however, my obligation is to Mr. Weeks.
    His life is also, maybe not ended, but certainly
    has been changed. Judge, we are going to ask
    that you impose a sentence, not a life sentence
    but a term of years. . . . [I]f you choose the
    thirty year period, sixty percent of thirty
    years is eighteen years before he is even
    eligible to be released. Judge, this has been a
    difficult situation for everybody concerned.
    [Weeks] also because he has health problems.
    The problems are obvious.        There is some
    speculation that his life expectancy is not that
    long.    He has a wife and he has children
    himself.    I believe that the reason he is
    choosing this, he has hopes if he beats the
    odds, so to speak, that he at least will have
    the opportunity to see them, to be with them
    some portion of his life. . . . This is not a
    murder case. . . . The lady was harmed but she
    is alive. She is here today; she is testifying.
    . . . [Weeks's pleading guilty] has saved this
    young lady a lot of trauma; he has saved the
    State the burden of going through the trial
    procedures . . . .

Id. at 27-28, reprinted in Resp't's Ex. F at 27-28.

    Noting the emotional and physical trauma suffered by
Weeks's victim, and the brutality and premeditation of
Weeks's crimes, the Missouri state prosecutors asked that


                           -18-
Weeks be given a life sentence.   The Missouri state court
entered a judgment of




                           -19-
guilty against Weeks and sentenced him to thirty years
imprisonment for kidnaping Ms. Doe, and a concurrent term
of life imprisonment for raping Ms. Doe.

    Following sentencing, the state court told Weeks
about the availability of postconviction relief under
Missouri Supreme Court Rule 24.035.5 This rule requires
a prisoner seeking postconviction relief to file a motion
requesting the court to vacate the guilty plea.       The

   5
    In pertinent part, Rule 24.035(a) provides:

       A person convicted of a felony on a plea of guilty and delivered to the
       custody of the department of corrections who claims that the conviction
       or sentence imposed violates the constitution and laws of this state or the
       constitution of the United States . . . may seek relief in the sentencing
       court pursuant to the provisions of this Rule 24.035. This Rule 24.035
       provides the exclusive procedure by which such person may seek relief
       in the sentencing court for the claims enumerated. . . .

Mo. S. Ct. R. 24.035(a) (emphasis added). Rule 24.035(b) provides:

       A person seeking relief pursuant to this Rule 24.035 shall file a motion to
       vacate, set aside or correct the judgment or sentence substantially in the
       form of Criminal Procedure Form No. 40. . . . If an appeal of the judgment
       sought to be vacated, set aside or corrected was taken, the motion shall
       be filed within ninety days after the date the mandate of the appellate
       court is issued. If no appeal of such judgment was taken, the motion shall
       be filed within ninety days of the date the person is delivered to the
       custody of the department of corrections. Failure to file a motion within
       the time provided by this Rule 24.035 shall constitute a complete waiver
       of any right to proceed under this Rule 24.035 and a complete waiver of
       any claim that could be raised in a motion filed pursuant to this Rule
       24.035.

Mo. S. Ct. R. 24.035(b) (emphasis added).

                                          -20-
court presented Weeks with the standard form for making
such a motion, read the form to him, and instructed
Weeks's lawyer to explain it to him. The




                          -21-
court did not, however, specifically inform Weeks that
the rule requires the form to be filed within ninety days
after the entry of his plea.

    Weeks did not appeal his sentence.     In addition,
Weeks, who was not represented by counsel after trial,
never filed a Rule 24.035 postconviction motion to set
aside his conviction and sentence. In Missouri, such a
motion is the exclusive remedy to challenge a guilty
plea. See Mo. S. Ct. R. 23.035(a). Having forfeited his
postconviction relief and direct appeal, Weeks pursued
state collateral review.     The Missouri state court
dismissed Weeks's state habeas petition because he had
not filed a Rule 24.035 motion.     See Order (Oct. 6,
1994), reprinted in Resp't's Ex. K.

    On September 13, 1994, Weeks, proceeding in forma
pauperis, filed a federal habeas petition in the United
States District Court for the Eastern District of
Missouri.    Weeks raised the following claims in his
petition: (1) that Weeks was unlawfully arrested in
Mississippi and transported to Missouri without an
extradition hearing; (2) that Weeks's guilty plea in
state court was involuntary; (3) that Weeks was never
arraigned on the rape charge; (4) that Weeks was
improperly charged as a prior offender; and (5) that
Weeks was denied the right to present evidence and to
present a defense. The State of Missouri responded by
arguing that Weeks had failed to exhaust state remedies
and, in a subsequent supplementary response, that Weeks
had procedurally defaulted his claims by failing to file
a Rule 24.035 motion in Missouri state court.



                           -22-
    In the following months, Weeks filed a flurry of
motions with the district court.     On October 7, 1994,
Weeks filed a motion to appear before the court for an
immediate hearing, a motion to compel, and a motion for
the appointment of counsel.      Weeks made a number of
allegations within his filings, including that he had not
pled guilty in state court; that while in Missouri state
custody prior to the state court plea hearing Weeks was
beaten by prison officers, denied medical attention for
a head injury, and given a shot that had him "out of his
head"; that Weeks had a romance with a prison




                           -23-
nurse; and that there are seven eyewitnesses who would
testify that Weeks was not in the State of Missouri when
Ms. Doe was kidnaped and raped.

    On October 17, 1994, Weeks filed a traverse titled
"Motion to Reply to Show Why an Evidentiary Hearing and
Appointment of Counsel and Writ of Habeas Corpus Should
be Granted." In this filing, Weeks listed the names of
twenty-seven witnesses that Weeks asserted he could call.
Weeks also challenged Ms. Doe's identification of Weeks
as the kidnapper and rapist, and Weeks revealed that he
had numerous civil actions pending against the officers
who allegedly beat Weeks.

    On April 12, 1995, the district court denied Weeks's
motion to compel, noting that Weeks did not identify what
he wanted compelled.     The district court also denied
Weeks's motions for a hearing and for the appointment of
counsel. On May 30, 1995, Weeks filed a motion to order
the district court clerk to provide Weeks with copies of
the files and exhibits filed by the government.       The
district court denied this motion because Weeks could
obtain the records from the state court.      On May 30,
1995, Weeks also filed a request for limited discovery,
arguing that the government must disclose exculpatory
evidence in its possession.      Weeks claimed that the
government possessed samples of blood and saliva, semen
samples taken from the victim, eyewitness statements,
jail records, and medical records (including x-rays)
which establish that Weeks was beaten. This motion was
denied.   On June 12, 1995, the district court denied
another of Weeks's motions to produce records because the
records were available without cost from the state

                           -24-
custodian.

    Weeks also filed another motion for the appointment
of counsel, which the district court dismissed as moot.
Attached to this motion was the only affidavit filed by
Weeks.    The affidavit purportedly described events
surrounding his state court plea hearing, and asserted
that:




                          -25-
    On the 10th of February 1992 the affiant
    appeared before the judge . . . and informed the
    judge that he was not going to plead guilty,
    that he would rather pplead [sic] guilty to the
    death penalty rather than plead guilty to those
    charges. The affiant cursed the prosecutor and
    his attorney and was thrown down in the
    courtroom floor, handcuffed the affiant and
    dragged him out of the courtroom. The affiant
    was taken to the County Jail and immediately
    taken to Bollinger County Jail. The Sheriff and
    deputies then beat the affiant half to death and
    that he was going to pay for not pleading
    guilty. . . . [T]he affiant was given another
    shot (drug that caused the affiant to withdraw
    from his position of not pleading guilty). That
    evening affiant was taken to the courtroom
    wherein he pleaded guilty. The plea of guilty
    was against his will and not knowingly.      The
    sheriff and sheriff (of Cape Girardeau County
    and Bollinger County), threatened the affiant
    right before he went in to plead guilty.

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

    On June 29, 1995, Weeks filed another set of motions,
asking for an order to disqualify the magistrate judge,
for leave to appeal in forma pauperis, and for a
certificate of probable cause. These motions were all
denied and Weeks then moved to vacate the orders.      In
response, on August 4, 1995, the district court withheld
ruling for thirty days and ordered that Weeks could
present affidavits to support either Weeks's original
motion to disqualify the magistrate judge or Weeks's
present motion to reassign the case to a district judge.
The district court went on to order that "upon either (1)


                           -26-
failure to present additional facts by affidavit; or (2)
failure   to   show    cause  under   the   statute   for
disqualification     or    extraordinary    circumstances
justifying reassignment, the petitioner's motions will be
denied and this Court will proceed to rule on the
petition for habeas corpus." Clerk's Docket Sheet at 4,
reprinted in J.A. at 88. Weeks did not respond to the
district court's order.

    On October 27, 1995, the district court denied
Weeks's habeas petition. The district court held that,
because Weeks had failed to file a Rule 24.035 motion, he
had




                           -27-
defaulted his claims. The district court also found that
Weeks had not made the requisite showing of cause and
prejudice or actual innocence necessary to overcome his
state procedural default. Weeks then appealed to this
Court.6

    On appeal, Weeks asserts that his guilty plea was
coerced and that he is actually innocent of kidnaping and
raping Ms. Doe. Weeks argues that, because of his actual
innocence, the district court's failure to consider his
claims results in a fundamental miscarriage of justice.
To prevent this miscarriage of justice, Weeks argues,
this Court must excuse Weeks's procedural default and
address the merits of his constitutional claims.

    Weeks's argument rests upon his ability to establish
that he is actually innocent.     In this regard, Weeks
makes three assertions. First, Weeks claims that he has
shown evidence of his actual innocence. Second, Weeks
asserts that, in the absence of evidence, his allegations
of evidence are sufficient. Third, Weeks claims that, at
the very least, his assertions that exculpatory evidence
exists are sufficient to entitle him to a hearing at

   6
    Prior to this appeal, Weeks, alleging that his guilty plea had been coerced through
physical violence in violation of the Fourteenth Amendment, had filed a 42 U.S.C.
§ 1983 (1994) action in the United States District Court for the Eastern District of
Missouri against various defendants. During the pendency of the instant appeal, a
unanimous jury reached a verdict for the defendants. See Weeks v. Copeland, No.
1:94CV00028LMB (E.D. Mo. Feb. 5, 1997). As preclusion was not asserted by the
government, we do not reach the question of whether claim and issue preclusion are
available in federal habeas corpus proceedings. See Hawkins v. Risley, 984 F.2d 321,
323 n.4 (9th Cir. 1993) (longstanding rule that preclusion is not available in federal
habeas corpus proceedings).

                                         -28-
which he could develop evidence of his actual innocence.7




   7
    Weeks also argues that no state court has found him to be in procedural default and
that, if he has defaulted, then his procedural default is excused by his illiteracy and the
state court's allegedly inadequate explanation of the procedure for obtaining post-
conviction relief in Missouri. A panel of this Court has already considered and rejected
these arguments. See Weeks, 106 F.3d at 249-50 (opinion vacated upon rehearing en
banc). We adopt the holding and reasoning of the panel set forth in section II of the
opinion as to these issues. Id.

                                           -29-
                          II.

    Weeks argues that he has presented sufficient
evidence to show that he is actually innocent. We
disagree.

    The federal writ of habeas corpus is available to
state prisoners who are in custody in violation of the
laws or constitution of the United States. See 28 U.S.C.
§ 2254(a) (1994).    A state prisoner wishing to raise
claims in a federal petition for habeas corpus ordinarily
must first present those claims to the state court and
must exhaust state remedies.    See 28 U.S.C. § 2254(b)
(1994); see also Ex parte Royall, 117 U.S. 241, 251
(1886) (requiring exhaustion because "of the relations
existing, under our system of government, between the
judicial tribunals of the Union and of the States, and in
recognition of the fact that the public good requires
that those relations be not disturbed by unnecessary
conflict between courts equally bound to guard and
protect rights secured by the Constitution"). Requiring
the exhaustion of state remedies both allows the states
to correct any possible constitutional violations without
unnecessary intrusion by the federal courts and allows
the state courts to create a factual record should the
matter proceed to federal court.      Furthermore, while
federal courts will consider all federal legal issues de
novo, see Townsend v. Sain, 372 U.S. 293, 318 (1963),
overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992), we are generally bound by state court
findings of fact. See 28 U.S.C. § 2254(d) (1994).

    A state prisoner who attempts to exhaust his state

                           -30-
remedies may run afoul of state procedural requirements.
A state prisoner who fails to adhere to state-defined




                          -31-
procedures   or   fails   to  meet   state-imposed   time
requirements in the state courts may default on his
claims in the state courts. Weeks's failure to file a
timely Rule 24.035 postconviction motion constitutes just
such a default.     Generally, federal courts will not
consider a state prisoner's federal habeas claim if the
state court found the claim to have been defaulted. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      The basis for the procedural default rule is the
independent   and   adequate  state   grounds   doctrine.
Coleman, 501 U.S. at 729-30 ("The [independent and
adequate state grounds] doctrine applies to bar federal
habeas when a state court declined to address a
prisoner's federal claims because the prisoner had failed
to meet a state procedural requirement."). The Supreme
Court has clearly enunciated the rationale behind this
rule:

    In the habeas context, the application of the
    independent and adequate state ground doctrine
    is   grounded   in   concerns   of  comity   and
    federalism.     Without the rule, a federal
    district court would be able to do in habeas
    what [the Supreme] Court could not do on direct
    review;    habeas would offer state prisoners
    whose custody was supported by independent and
    adequate state grounds an end run around the
    limits of [the Supreme] Court's jurisdiction and
    a means to undermine the State's interest in
    enforcing its laws.

Id. at 730-31.

    Although this jurisdictional bar is not absolute, and


                           -32-
although the Supreme Court has crafted limited exceptions
to the general rule, the Court has consistently
recognized "the important interest in finality served by
state procedural rules, and the significant harm to the
States that results from the failure of federal courts to
respect them." Id. at 750. Furthermore, when a prisoner
defaults pursuant to a state procedural rule, "[a]ll of
the State's interests--in channeling the resolution of
claims to the most appropriate




                           -33-
forum, in finality, and in having an opportunity to
correct its own errors--are implicated. . . ." Id.

    The United States Supreme Court has articulated two
circumstances in which a federal habeas petitioner can
overcome a state procedural default:

    In all cases in which a state prisoner has
    defaulted his federal claims in state court
    pursuant to an independent and adequate state
    procedural rule, federal habeas review of the
    claims is barred unless the prisoner can
    demonstrate cause for the default and actual
    prejudice as a result of the alleged violation
    of federal law, or demonstrate that failure to
    consider the claims will result in a fundamental
    miscarriage of justice.

Id. at 750.




                          -34-
    To fit within the fundamental miscarriage of justice
exception, a petitioner must make a showing of actual
innocence.8 Schlup v. Delo, 513 U.S. 298, 321 (1995).9
With respect to the requisite showing of actual
innocence, we have held that:

           [A] petitioner who raises a gateway claim of
           actual innocence must satisfy a two-part test.
           First,    the   petitioner's    allegations   of
           constitutional error must be supported with new
           reliable evidence that was not presented at
           trial.   Second, the petitioner must establish
           that it is more likely than not that no
           reasonable juror would have convicted him in the

       8
      Weeks alleges both cause and prejudice and actual innocence. In Weeks v.
Bowersox, 106 F.3d 248 (8th Cir. 1997) (opinion vacated upon rehearing en banc), we
rejected Weeks's argument that he can demonstrate cause for the default and actual
prejudice. Because we adopt the prior panel's ruling on this issue, we only address
Weeks's claim of actual innocence in this opinion.
   9
    As the Supreme Court explained

           To ensure that the fundamental miscarriage of justice exception would
           remain "rare" and would only be applied in the "extraordinary case,"
           while at the same time ensuring that the exception would extend relief to
           those who were truly deserving, [the Supreme] Court explicitly tied the
           miscarriage of justice exception to the petitioner's innocence. . . .

           [The miscarriage of justice exception] rests in part on the fact that habeas
           corpus petitions that advance a substantial claim of actual innocence are
           extremely rare. . . . Explicitly tying the miscarriage of justice exception
           to innocence thus accommodates both the systemic interests in finality,
           comity, and conservation of judicial resources, and the overriding
           individual interest in doing justice in the extraordinary case.

Schlup, 513 U.S. at 321-22 (quotations, citation, and note omitted).

                                              -35-
light of the new evidence. The actual innocence
exception   requires   review  of  procedurally
barred, abusive, or successive claims only in
the narrowest type of case--when a fundamental
miscarriage of justice would otherwise result.




                      -36-
Bowman v. Gammon, 85 F.3d 1339, 1346 (8th Cir. 1996)
(quotations, citations, and alteration omitted), cert.
denied, 117 S. Ct. 1273 (1997).

    Due to important comity and finality interests, the
actual innocence gateway is very limited. Few petitions
are "within the 'narrow class of cases . . . implicating
a fundamental miscarriage of justice.'" Schlup, 513 U.S.
at 315 (quoting McCleskey v. Zant, 499 U.S. 467, 494
(1991)).   Few petitions require the exercise of "the
'equitable discretion' of habeas courts to see that
federal constitutional errors do not result in the
incarceration of innocent persons." Herrera v. Collins,
506 U.S. 390, 404 (1993). See also McCleskey, 499 U.S.
at 494 ("narrow class of cases" and "extraordinary
instances when a constitutional violation probably has
caused the conviction of one innocent of the crime"). As
the Supreme Court has stated:

    We remain confident that, for the most part,
    victims of a fundamental miscarriage of justice
    will meet the cause-and-prejudice standard. But
    we do not pretend that this will always be true.
    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.

Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (emphasis
added) (quotations and citation omitted).

    In Schlup, the Supreme Court addressed the standard
of proof that governs review of actual innocence claims.

                          -37-
See Schlup, 513 U.S. at 322-24. In addressing this issue, the
Court considered the threat to scarce judicial resources
and the principles of finality and comity. See id. at
324. The Schlup court stated:

    To be credible, such a claim requires petitioner
    to support his allegations of constitutional
    error with new reliable evidence--whether it be




                             -38-
         exculpatory scientific evidence, trustworthy
         eyewitness accounts, or      critical physical
         evidence--that was not presented at trial.
         Because such evidence is obviously unavailable
         in the vast majority of cases, claims of actual
         innocence are rarely successful.

Id. at 324 (emphasis added).

    We agree with the district court that Weeks failed to
support his claim with new reliable evidence.       Weeks
alleged the existence of a wide-ranging conspiracy
involving the state court, state prosecutors, and various
prison officers, all focused upon drugging and coercing
Weeks to plead guilty to a crime he did not commit.10 To
support this theory, Weeks submitted precisely one
affidavit--his own. Beyond his own affidavit, Weeks has
not presented a scintilla of evidence to support his
claims of coercion or conspiracy.     Moreover, evidence
which supports Weeks's claim that he was coerced into
pleading guilty is only indirect evidence that he is


    10
      The Missouri state trial court went to great lengths to determine, as a factual
matter, if Weeks entered his guilty plea voluntarily. See Tr. of Plea of Guilty &
Sentence at 22, reprinted in Resp't's Ex. F at 22 (finding Weeks guilty as charged after
an extensive inquiry and stating, "I find that your pleas of guilty are made and entered
into by you freely, knowingly, and voluntarily, and not as a result of duress or
coercion"). This factual finding must be accorded due deference by federal habeas
courts. See Ford v. Lockhart, 904 F.2d 458, 461 (8th Cir. 1990). While the state
court's finding of voluntariness is not per se binding on a federal habeas court, see
Blackledge v. Allison, 431 U.S. 63, 75 (1977), 28 U.S.C. § 2254's mandated deference
to such a finding is particularly proper in light of the state trial court’s ability to judge
the defendant’s credibility and demeanor at the plea hearing and the fact that "[m]ore
often than not a prisoner has everything to gain and nothing to lose from filing a
collateral attack upon his guilty plea." Blackledge, 431 U.S. at 71.

                                            -39-
actually innocent.

    To be sure, Weeks alleges that a staggering amount of
evidence exists that proves his actual innocence. This
evidence allegedly includes dozens of eyewitnesses,
numerous written records, and substantial physical
evidence. In claiming the existence




                           -40-
of this mountain of evidence, however, Weeks has failed
to produce one iota of substance. Indeed, not only has
Weeks failed to submit affidavits from any of his twenty-
seven purported witnesses, but he has also failed to
specify as to what facts individual witnesses would
testify. See Petitioner's Motions to Reply to Show Why
an Evidentiary Hearing, and Appointment of Counsel, and
Writ of Habeas Corpus Should be Granted (Oct. 17, 1994)
at 4, reprinted in J.A. at 43. Because Weeks has not
presented new reliable evidence that he is actually
innocent, he can not pass through the actual innocence
gateway.     Therefore, the district court properly
concluded that Weeks's state court procedural default
bars consideration of his federal habeas claims.

                                       III.

    Anticipating this Court's holding that he has not
presented   sufficient  credible  evidence   of  actual
innocence to allow for the waiver of his procedural
default, Weeks argues that actual evidence is not
required to show actual innocence. Rather, Weeks argues
that to overcome a procedural default, a habeas
"petitioner’s burden is to make specific and particular
allegations of the evidence which he contends will
support a claim of actual innocence . . . ." Resp. to
Suggestion for Reh’g En Banc at 5 (emphasis in the
original).11 We disagree.


   11
     Weeks relies on a number of cases to support this expansive description of the
actual innocence analysis. After examining these cases, we conclude that they do not
support Weeks's interpretation. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)
("The prisoner may make the requisite showing by establishing that under the probative

                                        -41-
    Adoption of a rule that would allow a waiver of a
state procedural default based on mere allegations of
actual innocence is not only contrary to the express
language of Schlup, 513 U.S. at 324 ("new reliable
evidence"), but also runs counter to the spirit and
purpose of the actual innocence gateway.       Allowing a
creative prisoner to overcome his state procedural
default with well drafted allegations of evidence would
make a mockery of the Supreme Court's concern for
finality, comity, and judicial economy that underlies the
limited scope of the actual innocence exception.

    At bottom, Weeks only gives his word that he is
innocent and that he can produce evidence to prove it.
Weeks's bare, conclusory assertion that he is actually
innocent is not sufficient to invoke the exception.
"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." Wyldes v. Hundley, 69
F.3d 247, 254 (8th Cir. 1995), cert. denied, 116 S. Ct.
1578 (1996).


evidence he has a colorable claim of factual innocence." (emphasis added));
Blackledge, 431 U.S. at 76 (discussing the summary dismissal standard; the Court did
not discuss actual innocence as there was no procedural default of a constitutional
claim); Fontaine v. United States, 411 U.S. 213, 214 (1973) (noting that detailed
factual allegations that plea was coerced are in part documented by records); East v.
Scott, 55 F.3d 996 (5th Cir. 1995) (no actual innocence analysis); Houston v. Lockhart,
982 F.2d 1246 (8th Cir. 1993) (en banc) (granted hearing based on ineffective
assistance of counsel, not a showing of actual innocence); Amos v. Minnesota, 849
F.2d 1070 (8th Cir. 1988) (no actual innocence analysis); Wallace v. Lockhart, 701
F.2d 719 (8th Cir. 1983) (no actual innocence analysis); United States v. Goodman,
590 F.2d 705 (8th Cir. 1979) (no actual innocence analysis).

                                         -42-
                          IV.

    Weeks's final argument for an evidentiary hearing
implicitly concedes arguendo that he has not yet passed
through the actual innocence gateway.     Rather, Weeks
claims that his assertions that exculpatory evidence
exists are sufficient to entitle him to a hearing at
which he could develop the evidence needed to proceed
through the actual innocence gateway. We disagree.

    The failure to develop evidence of his actual
innocence in the state trial court is attributable to
Weeks. By entering a guilty plea in the state court, and
then failing to seek postconviction relief, Weeks
defaulted on his right to challenge his guilty plea in




                          -43-
state court.   Without properly pursuing this issue in
state court, Weeks put himself in the position of having
to establish either cause and prejudice or actual
innocence in order to proceed with a federal habeas
petition.

    Faced with this predicament, Weeks concocts a novel
solution. Because his confinement makes it difficult for
him to present evidence that he is actually innocent and
because it is therefore difficult for Weeks to fit within
the actual innocence gateway, Weeks argues that he is
entitled to an evidentiary hearing prior to any hearing
on his federal habeas claims. According to Weeks, his
many assertions that exculpatory evidence exists--
assertions being much easier to make--should entitle him
to a prehearing hearing. Weeks claims he is entitled to
this prehearing hearing in order to give him a fair
opportunity to make the requisite showing of evidence of
actual innocence.     In essence, Weeks is seeking to
relitigate the factual basis of his conviction after
failing to present any exculpatory evidence in the state
trial court.

    We reject Weeks's argument that he is entitled to an
evidentiary hearing in order to allow him to make the
showing that entitles him to the evidentiary hearing
contemplated by Schlup.    We can find no statutory or
judicial authority for Weeks's proposed prehearing
hearing. Because such an entitlement has support neither
in the law nor in common sense, we decline to fashion
such an entitlement out of thin air. Rather, we choose
to follow the holdings of this Court in Bannister v.
Delo, 100 F.3d 610 (8th Cir. 1996), and Battle v. Delo,

                           -44-
64 F.3d 347 (8th Cir. 1995), cert. denied, 116 S. Ct.
1881 (1996).

    In Bannister, the petitioner sought to overcome the
procedural bar to the hearing of his successive habeas
claims with a claim of actual innocence. The Bannister
court explained that the petitioner




                          -45-
    incorrectly asserts that an evidentiary hearing
    was required so that he could develop evidence
    in support of his claim of actual innocence. In
    Battle, 64 F.3d at 353, we rejected the argument
    that an evidentiary hearing was necessary to
    enable the petitioner to develop evidence which,
    he claimed, would exonerate him. Noting that in
    essence, petitioner was 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 this circular argument was without merit.

Bannister, 100 F.3d at 617 (quotations, citations, and
alterations omitted).

    In Battle, this Court held that "[t]o avail himself
of   [the   actual   innocence   gateway],     it    is   the
petitioner's, not the court's, burden to support his
allegations of actual innocence by presenting new
reliable evidence of his innocence." 64 F.3d at 354 (emphasis
in original) (quotations omitted).      The Battle court
further explained that:

        Even if an evidentiary hearing was necessary
    for Battle to develop and present the serology
    evidence, he has not shown the cause and
    prejudice,   or   fundamental   miscarriage   of
    justice, necessary to excuse his failure to
    develop this evidence in state court. . . .

        More     fundamentally,    a    remand    is
    inappropriate because the "actual innocence"
    gateway through a procedural bar is not intended
    to provide a petitioner with a new trial, with
    all the attendant development of evidence, in
    hopes of a different result. Rather it is an
    opportunity for a petitioner, aggrieved by an

                             -46-
    allegedly defective trial and having inexcusably
    defaulted the available remedies, to raise such
    a strong doubt to his guilt that, in hindsight,
    we cannot have confidence in the trial's
    outcome. . . .

Id. (citations omitted).




                           -47-
    In Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), the
Supreme Court established the requirement that, if a
petitioner failed to develop the factual basis of a claim
in the state trial court, the petitioner must show cause
and prejudice or a fundamental miscarriage of justice
before relitigating the facts. Id. at 11-12.12 The Court
explained the rationale for this rule as follows:

      As in cases of state procedural default,
      application of the cause-and-prejudice standard

       12
         Building on the requirement of Tamayo-Reyes, Congress adopted the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214, which added an evidentiary hearing provision to the habeas corpus statute.
Section 2254(e)(2), as amended by the Antiterrorism and Effective Death Penalty Act,
provides that:

      (2) If the applicant has failed to develop the factual basis of a claim in
      State court proceedings, the court shall not hold an evidentiary hearing on
      the claim unless the applicant shows that--
             (A) the claim relies on--
                     (i) a new rule of constitutional law, made retroactive to
                     cases on collateral review by the Supreme Court, that was
                     previously unavailable; or
                     (ii) a factual predicate that could not have been previously
                     discovered through the exercise of due diligence; and
      (B) the facts underlying the claim would be sufficient to establish by clear
      and convincing evidence that but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying offense.

§ 104, 110 Stat. at 1219.

       Where omission of material facts from the state court record is attributable to the
petitioner, the new Act both codifies and narrows the Tamayo-Reyes standard.
Accordingly, whether we apply the Tamayo-Reyes standard or the § 2254(e)(2)
standard which superseded Tamayo-Reyes, the result is the same.

                                          -48-
to excuse a state prisoner's failure to develop
material facts in state court will appropriately
accommodate concerns of finality,




                      -49-
    comity, judicial economy, and channeling the
    resolution of claims into the most appropriate
    forum.

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

    Weeks's guilty plea "comprehend[ed] all of the
factual and legal elements necessary to sustain a
binding, final judgment of guilt and a lawful sentence."
United States v. Broce, 488 U.S. 563, 569 (1989)
(emphasis added). The failure to further develop facts
in the state trial court is attributable to Weeks.     A
federal court's relitigation of the factual basis for
Weeks's conviction--even in the context of a claim of
actual innocence tied to a state procedural default--
would run afoul of bedrock principles of finality,
comity, and judicial economy.      Review of the facts
sustaining Weeks's conviction is barred unless Weeks
actually makes the requisite showing to excuse his
failure to develop exculpatory evidence in state court.

    We are aware that it would be more convenient for
habeas petitioners to have the opportunities attendant
upon an evidentiary hearing, including court-ordered
discovery and subpoenas for witnesses, to gather evidence
to support actual innocence claims. But this additional
convenience to petitioners does not justify an expansive
interpretation of the actual innocence gateway. Nor do
we believe that our ruling will prevent habeas
petitioners from gathering the evidence required for a
showing of actual innocence. See 28 U.S.C. § 2246 (1994)
(authorizing   submission   of   affidavits   by   habeas


                           -50-
petitioners at the discretion of the judge).      Habeas
petitions are typically decided on the factual record
developed in the state trial court and, therefore, only
in the minority of cases are evidentiary hearings held.
In many ways, habeas petitions are by their nature
similar to summary judgment proceedings.          For a
petitioner to carry his burden, he must submit relevant
evidence to the district court before the court rules on
his petition.




                          -51-
    In   the   instant   case,   Weeks   must    bear  the
responsibility for failing to present the district court
with any evidence upon which the district court could
hold Weeks's procedural default waived. Weeks had more
than a full year to present credible evidence of his
actual innocence to the district court, and yet Weeks
failed   to   submit   anything   more    than    his  own
unsubstantiated affidavit. Indeed, on August 4, 1995,
nearly a year after Weeks filed his habeas petition, the
district court entered an order allowing Weeks to present
affidavits supporting either his original motion to
disqualify the magistrate judge or his present motion to
reassign the case to a district judge.        The district
court went so far as to warn Weeks that, if Weeks did not
respond, the district court would proceed to rule on
Weeks's petition for habeas corpus.          Despite this
explicit opportunity to present evidence, Weeks did
nothing. Weeks did not submit a single affidavit on the
question of the magistrate judge's jurisdiction.

       More importantly, beyond mere assertions, the only
affidavit Weeks submitted to establish his actual
innocence was his own. This is despite the fact that the
district court's order gave Weeks clear notice that the
district court would soon rule on his petition and that the
district court was receptive to the receipt of affidavit
evidence.      While Weeks found the resources to file
endless motions recounting alleged, and somewhat bizarre,
events, Weeks chose to submit almost no evidence to
establish his actual innocence.      Thus, Weeks having
failed to produce evidence of actual innocence, we reject
his argument for a novel prehearing hearing entitlement.


                            -52-
                           V.

    Accordingly, the judgment of the district court is
affirmed.

LOKEN, Circuit Judge, concurring, with whom BEAM, Circuit
Judge, joins.

    For me, the determining factor in this case is the
guilty plea. In every case in which the Supreme Court
has   discussed the actual innocence exception to
procedural




                           -53-
bar, the habeas petitioner had been convicted after a
trial or sentenced to death after a trial-type sentencing
hearing -- Smith v. Murray, Kuhlmann v. Wilson, Murray v.
Carrier, Dugger v. Adams, McCleskey v. Zant, Sawyer v.
Whitley, and Herrera v. Collins, all cited in Schlup v.
Delo, 513 U.S. 298 (1995).     This is reflected in the
Court’s actual innocence standard, which requires the
district court “to assess the probative force of the
newly presented evidence in connection with the evidence
of guilt adduced at trial.”     Schlup, 513 U.S. at 332
(emphasis added).

    In my view, there is an inherent paradox in the
notion that someone who has stood in open court and
declared, “I am guilty,” may turn around years later and
claim that he deserves to pass through the actual
innocence gateway. Because a guilty plea waives the defendant’s right to
prove his actual innocence at trial, see, e.g., McMann v. Richardson, 397 U.S. 759
(1970), a strong argument can be made that a guilty plea should absolutely foreclose
a post-conviction claim of actual innocence, a question we left open in Brownlow v.
Groose, 66 F.3d 997, 999 (8th Cir. 1995), cert. denied, 116 S. Ct. 1049 (1996). The
argument against such an absolute rule is that (i) facts which would invalidate a guilty
plea are typically outside the record and must be developed in a post-conviction
proceeding, and (ii) some circumstances that would invalidate a guilty plea are
consistent with actual innocence, a torture-induced plea being the most obvious
example. But if these concerns justify leaving the actual innocence gateway open for
truly extraordinary guilty plea cases, we must fashion a standard that identifies the truly
extraordinary and is consistent with the principle that a procedurally valid guilty plea
is “a formidable barrier in any subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 74 (1977).



                                           -54-
      Our vacated panel decision held that the actual innocence inquiry is to “compare
what the state alleged at Weeks’s plea hearing that it could prove with the evidence
that Weeks has asserted in his pleadings that he could produce.” Weeks v. Bowersox,
106 F.3d 248, 250 (8th Cir. 1997). In my view, that standard ignores the most
important piece of evidence in the record, Weeks’s guilty plea. “A plea of guilty is




                                        -55-
more than a confession which admits that the accused did various acts; it is itself a
conviction; nothing remains but to give judgment and determine punishment.” Boykin
v. Alabama, 395 U.S. 238, 242 (1969). Because a procedurally valid guilty plea is
itself a sufficient basis to convict, the government does not present or even describe
its evidence at the guilty plea hearing; it must only satisfy the trial court that there is a
sufficient factual basis for the plea. Thus, the panel’s standard posits an unrealistic
evidentiary comparison, skewed to give the habeas petitioner who has pleaded guilty
a relatively easy pass through the actual innocence gateway. And even if the panel’s
standard were modified to permit the State to present its trial evidence at the actual
innocence hearing, the inquiry would still be skewed by the passage of time that
inevitably compromises the government’s ability to prove its case.

       For these reasons, I conclude that the actual innocence inquiry in guilty plea
cases must focus primarily on the guilty plea. Unless the habeas petitioner has newly-
discovered evidence that his guilty plea was a false declaration of guilt, he should not
pass through the actual innocence gateway. This standard may well reduce the actual
innocence gateway to a tiny portal in guilty plea cases. But in my view that is
appropriate, both because the cause and prejudice exception to procedural bar is still
available, and because “the concern with finality served by the limitation on collateral
attack has special force with respect to convictions based on guilty pleas.” United
States v. Timmreck, 441 U.S. 780, 784 (1979).

       A guilty plea is a “grave and solemn act,” not lightly to be set aside. United
States v. Hyde, 117 S. Ct. 1630, 1634 (1997), quoting Brady v. United States, 397 U.S.
742, 748 (1970). In this case, Weeks stood in open court and admitted that he dragged
the victim from her car, threatened her with a knife, and
forcibly raped her.                 When asked why he was pleading
guilty, Weeks answered, “Because I did what they say I
did,” and he further admitted that “everything in the
charge is true and correct.”                       Weeks has presented no

                                            -56-
newly-discovered evidence that would undermine this
legally conclusive admission of guilt.    His affidavit
that he pleaded guilty because the county




                          -57-
sheriff and deputies “beat the affiant half to death” is
uncorroborated, has no inherent credibility, and thus
would not entitle Weeks to an evidentiary hearing on an
involuntary guilty plea claim that was not procedurally
defaulted.   Compare Blackledge, 431 U.S. at 75-76.    I
therefore agree with the court’s decision to affirm.

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting, with
    whom RICHARD S. ARNOLD, Chief Judge, McMILLIAN and
    FLOYD R. GIBSON, Circuit Judges, join.

    Rubin Weeks filed his petition for habeas corpus
under 28 U.S.C. § 2254.        By way of excusing the
procedural default that the state pleaded in bar,
Mr. Weeks alleged that he was actually innocent of the
charges against him, listed by name a number of witnesses
who could exonerate him, and averred the existence of
DNA, blood, saliva, and semen tests that would show that
he did not commit the rape and kidnapping of which he was
convicted.     The court, though it ridicules these
allegations, does not hold that they are delusional, or
otherwise inherently incredible; nor does it deny that,
if he produced the evidence that he claims exists, and it
was believed, Mr. Weeks would have made out a case that
he was actually innocent. Instead, the court holds, as
I understand it, that Mr. Weeks has failed to submit
sufficient evidence of his innocence, and therefore that
his petition was properly dismissed.

    The infirmity in the court's position is that it
confuses pleading with proof.      The Rules Governing
Section 2254 Cases in the United States District Courts,
in keeping with modern trends toward notice pleading,


                           -58-
require a person seeking a writ of habeas corpus merely
to "set forth in summary form the facts supporting each
of the grounds" on which the petitioner relies. See Rule
2(c).   A form appended to the rules and intended for the use of habeas
petitioners, moreover, urges them to summarize "briefly the facts" (emphasis in
original) on the basis of which they are seeking relief, and in at least four other places,
the same form directs petitioners to "tell your story briefly" (emphasis in original).
While the appendix to the rules does not seem to contain a




                                           -59-
recommended form for responsive pleadings from a petitioner when the matter at issue
is a petitioner's procedural default, it does have a form for situations in which the
respondent claims that the petition is a successive one; and, in this latter instance,
petitioners are told merely to explain their position by stating "FACTS" (capitals in
original).

       It is plain from this that all that habeas petitioners are required to do in their
pleadings is to set out facts which, if found to be true, would entitle them to some legal
conclusion of which they are seeking the benefit. There is no requirement that evidence
be pleaded in habeas cases, and, presumably, any such requirement that a court would
impose would be unauthorized because it would be contrary to the rules as they now
stand. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 168-69 (1993), where the court held that federal
courts were not authorized to apply a more stringent pleading requirement in cases
brought under 42 U.S.C. § 1983, because doing so could not be squared with the
Federal Rules of Civil Procedure. Perhaps it would be useful, or even desirable, to
establish heightened pleading standards in habeas corpus cases. But "that is a result
which must be obtained by the process of amending" the Rules Governing Section 2254
Cases in the United States District Courts, "and not by judicial interpretation." Id. at
168.

       There is also no requirement in the rules that habeas petitioners attach to their
petitions or other pleadings affidavits or documentary evidence supporting the factual
allegations that those pleadings contain. No doubt, the judge reviewing the pleadings
in habeas cases may, in imitation of Fed. R. Civ. P. 56(e), require such affidavits, in
order to determine whether there are any material facts in dispute that would require
an evidentiary hearing on a petitioner's claim. See, e.g., Rule 8(a). But even before
a judge can do that, the petitioner may well be entitled to discovery to help marshal the
evidence to support the factual allegations in the petition. See Rule 6(a) and Bracy v.
Gramley, 65 U.S.L.W. 4435, 4436, 4438, 1997 WL 303400 (U.S. June 9, 1997). In

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the present case, the district court never asked Mr. Weeks to support his claim of actual
innocence with affidavits. The court makes much of the fact that Mr. Weeks, when
asked to do so, failed to submit affidavits supporting his motions to disqualify the
magistrate judge from the case and to reassign the case to a district judge. But this fact
has no relevance to the matter at issue, namely, Mr. Weeks's actual innocence.

       It will not be a matter of surprise if petitioner ultimately fails to prevail in this
case. Habeas petitioners hardly ever win. But the court simply short-circuits the rules
established for civil matters in general and essentially decides the case on the merits
without regard to the procedural posture in which it comes before us. Since Mr. Weeks
has pleaded facts that, if proved, would excuse his procedural default, his case should
be allowed to proceed in the district court. If he prevails on his claim of actual
innocence, then, for the reasons that I indicated in Weeks v. Bowersox, 106 F.3d 248
(8th Cir. 1997), the district court would be obligated to proceed to judgment on his
underlying claim, namely, that his plea was coerced, because his original petition
contains facts that, if proved, would allow him to withdraw that plea. See Blackledge
v. Allison, 431 U.S. 63 (1977).

       For the reasons indicated, I respectfully dissent.

FLOYD R. GIBSON, Circuit Judge, dissenting.

      I join in Judge Morris Arnold's dissent. I write separately, however, to express
some concerns I have which are illustrated by this case. Where a habeas petitioner
brings a bona fide gateway claim of actual innocence, accompanied by the proper
pleadings and supporting data, it is advisable and appropriate to allow the defendant
an evidentiary hearing on the issue. I admit that the majority opinion fairly well sets
out that Weeks, in pleading guilty to the crime charged, made some strong statements
connecting him to this case, though he did not personally elucidate any actual details
of his participation. Weeks claims he pleaded guilty because he was beaten and

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tortured but that he is, in fact, actually innocent of the crimes to which he pled. This
poses a difficult dilemma for me. If Weeks is not guilty, a fundamental miscarriage of
justice results if we do not provide him with a hearing to prove his innocence. On the
other hand, if he is guilty, by claiming that he is actually innocent, he causes a great
abuse of the legal process, and possibly his attorney could be involved in this abuse if
he is aware of facts supporting Weeks's guilt. When such an abuse of the legal process
occurs, a habeas petitioner using these tactics should be sanctioned if it is found that
his claim of actual innocence has no merit. An appropriate sanction would limit the
number of illegitimate claims, while allowing those who are actually innocent to seek
redress.

       The record in this case, as expressed in the dissent by Judge Morris Arnold,
presents some doubts as to Weeks's guilt. The panel opinion appropriately remanded
the case for an evidentiary hearing to resolve these doubts, one way or another. See
Weeks v. Bowersox, 106 F.3d 248, 251 (8th Cir. 1997) (opinion vacated upon
rehearing en banc). I therefore adhere to the original panel opinion and join in Judge
Morris Arnold's dissent.

      A true copy.

             Attest:

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




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