United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 95-2906
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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. *
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Submitted: September 9, 1997
Filed: December 17, 1997
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Before RICHARD S. ARNOLD, Chief Judge, and LAY, McMILLIAN, FAGG,
BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD
ARNOLD, and MURPHY, Circuit Judges.
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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.
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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."
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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
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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.
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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.
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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).
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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