dissenting.
I respectfully dissent. As the majority concedes, Weeks’s failure to file a Rule 24.035 motion in the Missouri state court defaulted his claim for habeas relief. The majority also agrees that Weeks has failed to show cause and prejudice to excuse this default. The majority, however, concludes that because Weeks has made bare allegations of actual innocence that this case falls “within the ‘narrow class of cases ... implicating a fundamental miscarriage of justice,’ ” Schlup v. Delo, 513 U.S. 298, —, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991)), Weeks is thereby allowed to pursue federal habeas relief despite his procedural default.
With respect, my view is that the law created by the Supreme Court and adhered to by this Circuit is clear: to warrant an evidentiary hearing on a claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence ... that was not presented at trial....” Schlup, 513 U.S. at —, 115 S.Ct. at 865. In applying this rule to circumstances virtually identical to those in the instant case, we stated that the petitioner
incorrectly asserts that an evidentiary hearing was required so that he could develop evidence in support of his claim of actual innocence. In [Battle v. Delo, 64 F.3d 347, 353 (8th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996) ], we rejected the argument that an evidentiary hearing was necessary to enable the petitioner to develop evidence “which, he claim[ed], w[ould] exonerate him.” Noting that “[i]n essence, [petitioner] [wa]s asking us to excuse his evidentiary default as to his claim of actual innocence, ... in order that he may develop sufficient evidence of his actual innocence[,]” we found “[t]his circular argument [wa]s without merit.” Id. at 354.
Bannister v. Delo, 100 F.3d 610, 616-17 (8th Cir.1996).
In this case, the majority recites the evidence that Weeks has merely alleged to exist, and then states:
This evidence, if produced and credited, would establish that it is more likely than not that no reasonable juror would have convicted Weeks. We accordingly remand for a hearing to determine whether Weeks can prove what he asserts.
If he can, the district court may then consider Weeks’s underlying constitutional claim that his guilty plea was coerced.
Maj. Op. at 251 (emphasis added). The majority has granted Weeks an evidentiary hearing to .allow Weeks to make the showing that entitles Weeks to an evidentiary hearing. This is directly contrary to Bannister.
Weeks has given only his word that he is innocent and assures us that, somewhere, there is evidence to prove it. This is simply insufficient to warrant the application of the actual innocence exception. See Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996) (‘Were protestation of innocence the only prerequisite to application of this exception, we fear that actual innocence would become a gateway forever open to habeas petitioners’ defaulted claims.”).
Weeks’s procedural default bars further consideration of his claim. However, I must note that, in considering the merits of Weeks’s claim, the majority fails to give proper deference to the state court’s finding that Weeks’s plea was voluntary. The majority states that “the statutory presumption of correctness does not apply to á state court finding that his guilty plea was voluntary.” Maj. Op. at 251. I disagree.1
It is axiomatic that, in a federal habeas action, a state court’s factual findings are presumed correct. See Antiterrorism and *253Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996) (amending 28 U.S.C. § 2254(d) (1994)) (to be codified at 28 U.S.C. § 2254(e)) (“a determination of a factual issue made by a State court shall be presumed to be correct”).2 This rule is fully applicable to the question of whether a petitioner’s plea of guilty in a state court was voluntary. See Ford v. Lockhart, 904 F.2d 458, 461 (8th Cir.1990) (“The district court correctly held that the state court factual determinations were entitled to a presumption of correctness under Sumner v. Mata, 449 U.S. 539, 544-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722 (1981), because it found that none of the circumstances enumerated in 28 U.S.C. § 2254(d) were shown to exist.”). The majority’s decision to disregard the state court’s factual findings in this habeas matter thus ignores both statutory language and contradicts our own settled precedent.3
. The majority bases this construction of law on language in Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), and Pennington v. Housewright, 666 F.2d 329 (8th Cir.1981). In Blackledge, the Court held that:
[T]he federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty *253plea a constitutionally inadequate basis for imprisonment.
431 U.S. at 75, 97 S.Ct. at 1629-30. Similarly, this Court in Pennington rejected “an absolute rule as to whether a plea hearing can be a full and fair hearing." 666 F.2d at 333. There is a fundamental difference, however, between the proper rejection of a per se rule that a state court’s finding of voluntariness is conclusive and the majority's assertion that a state court's fact finding is entitled to no deference whatsoever.
. This Court has not yet determined if the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, should be applied retroactively to cases such as this, or if the earlier version of 28 U.S.C. § 2254 should apply. See Oliver v. Wood, 96 F.3d 1106, 1108 n. 2 (8th Cir.1996), petition for cert. filed, (U.S. Dec. 23, 1996) (No. 96-7182); Rehbein v. Clarke, 94 F.3d 478, 481 n. 4 (8th Cir.1996). Under either version of the statute, however, a strong presumption of correctness is afforded state court findings of fact. The unamended version of § 2254 provided that a state court’s "determination after a hearing on the merits of a factual issue ... shall be presumed to be correct, unless [there exits one of a listed set of circumstances].” 28 U.S.C. § 2254(d) (1994). Weeks did not contend, and the majority has not held, that any of the enumerated circumstances exist in this case. The amended version of § 2254 provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence..” Antiterrorism and Effective Death Penalty Act § 104, 110 Stat. at 1219. Under either version of the statute, therefore, a strong—-and unrebutted—pre-sumption of correctness of the state court's factual finding exists.
. I must also note that the majority’s rule ignores the fundamental elements of federalism that must inform our habeas jurisprudence. See, e.g., Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 515-16, 102 S.Ct. 3231, 3239-40, 73 L.Ed.2d 928 (1982) (noting that "[t]he federal writ of habeas corpus, representing as it does a profound interference with state judicial systems and the finality of state decisions, should be reserved for those instances in which the federal interest in individual liberty is so strong that it outweighs federalism and finality concerns” (declining to extend habeas jurisdiction to child custody disputes)). In addition, I fear that the rule propounded by the majority can only ensure continued frivolous litigation by state prisoners challenging entirely proper guilty pleas. See, e.g., Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1628, 52 L.Ed.2d 136 (1977) ("More often than not a prisoner has everything to, gain and nothing to lose from filing a collateral attack upon his guilty plea.”).