with whom GRUENDER, Circuit Judge, joins, concurring in the judgment.
I conclude that James Niederstadt’s due process claim was procedurally defaulted in the Missouri courts, and that he is barred from pursuing it in this federal habeas corpus proceeding. I therefore concur in the judgment reversing the decision of the district court.
Under Missouri law, a constitutional claim must be raised at the earliest opportunity, State v. Galazin, 58 S.W.3d 500, 505 (Mo.2001), and a state prisoner who fails to present his claim in accordance with state procedure is barred from raising the claim in a federal habeas corpus proceeding. Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir.1997). Whether or not Niederstadt was required to raise his due process claim in the trial court, he had an adequate opportunity to present the claim to the Supreme Court of Missouri after that court accepted transfer of the case from the Missouri Court of Appeals. The trial court had entered a judgment that Niederstadt violated § 566.060(1) of the Missouri Revised Statutes. Two alternative arguments were available to Niederstadt on appeal: (1) as a matter of Missouri law, the trial court erred in concluding that the statute encompassed his conduct, and (2) if the trial court’s conclusion that the statute did reach his conduct was correct as a matter of state law, then the result was so unexpected and indefensible as to violate the Due Process Clause of the Fourteenth Amendment. See Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). As the State points out, this is the very course followed by the defendant in Rogers, see State v. Rogers, 992 S.W.2d 393, 401-02 (Tenn.1999), and an opportunity to raise the constitutional claim likewise was readily available to Niederstadt.
The state supreme court’s summary denial of Niederstadt’s motion for rehearing, in which he raised a federal due process claim for the first time, should not be construed as opening up the merits of a previously defaulted federal issue. The purpose of a motion for rehearing under Missouri law is “to call attention to material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion or order of dismissal.” Mo. Sup.Ct. R. 84.17 (2002); Diamond v. Wyrick, 757 F.2d 192, 193 (8th Cir.1985) (per curiam). The Supreme Court of Missouri has firmly established and regularly followed a rule in appeals that it will not consider new issues raised for the first time in a motion for rehearing. Allen v. Globe-Democrat Publishing Co., 368 S.W.2d 460, 467 (Mo.1963) (per curiam); see Graf v. Wire Rope Corp. of America, 861 S.W.2d 588, 592 (Mo.App.1993).
There is no cause to conclude that the State failed to preserve or present the issue of procedural default in the state court proceedings. The State was forbidden by the rules of court to file a response to Niederstadt’s motion for rehearing unless the state supreme court requested one, Mo. Sup.Ct. R. 84.17 (2002); Beach v. State, 220 S.W.3d 360, 366 n. 1 (Mo.App.2007) (per curiam), and the docket reflects that the court denied Niederstadt’s motion for rehearing without seeking a response. (Appellee’s App. 16). Niederstadt cites no appeal in which the Supreme Court of Missouri has considered the merits of a claim raised for the first time in a motion *840for rehearing. Nothing in the court’s summary denial of Niederstadt’s motion suggests that the decision “rest[ed] primarily on federal law” or was “interwoven with the federal law.” See Coleman v. Thompson, 501 U.S. 722, 733, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The natural inference from the summary order — particularly given that it was entered without seeking an opposing brief on Niederstadt’s new constitutional claim — is that the court did not depart from its longstanding refusal to consider new issues on rehearing. See Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir.1991). Consistent with this view, our precedent holds that raising a claim for the first time in a motion for rehearing before the Supreme Court of Missouri does not avoid a procedural bar. Tokar v. Bowersox, 198 F.3d 1039, 1046 n. 7 (8th Cir.1999).3
For these reasons, Niederstadt defaulted his due process claim in state court pursuant to an independent and adequate procedural rule in Missouri. Therefore, review of the federal claim is barred in this proceeding unless Niederstadt shows cause for the default and actual prejudice as a result of the alleged constitutional violation, or demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Niederstadt does not argue “cause” and “prejudice,” but the district court thought the claim should be considered, even assuming a procedural default, under the miscarriage of justice or “actual innocence” exception to procedural default. Rejecting the recommendation of a magistrate judge that the claim was procedurally barred, the district court reasoned that Nieder-stadt has produced “clear and convincing evidence that, absent the supreme court’s unlawful broadening of the forcible sodomy statute, no reasonable court would have found [him] guilty of the crime under existing facts.” Niederstadt v. Burkett, No. 4:02CV00847, slip op. at 7 n. 7 (E.D.Mo. Sept. 27, 2005) (citing Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)).
I disagree with Niederstadt’s contention that he may avoid the procedural default by showing a “miscarriage of justice” under the circumstances of this case. This exception to default “is concerned with actual as compared to legal innocence,” Sawyer, 505 U.S. at 339, 112 S.Ct. 2514, and the term “actual innocence” means “factual innocence.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); McNeal v. United States, 249 F.3d 747, 749 (8th Cir.2001). Niederstadt presents no new evidence of factual innocence, cf. Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), and he does not deny any of the factual allegations advanced during his prosecution. There is no dispute that he was factually guilty of violating § 566.060(1) as the statute was interpreted by the Supreme Court of Missouri. *841Niederstadt’s argument that federal law prohibited the Missouri courts from interpreting the state statute to encompass his conduct is purely legal.
Niederstadt’s reliance on the “miscarriage of justice” exception, moreover, implies that a defendant never could default a due process claim based on Rogers or Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), for if the claim had merit, then the defendant would always be “actually innocent.” And because the defaulted due process claim would not be adjudicated on the merits by the state courts, see 28 U.S.C. § 2254(d), a habeas corpus applicant would always be entitled to de novo review of his constitutional claim raised for the first time in federal court, while applicants who present the due process claim in state court must proceed under the deferential review standards of AEDPA. This is an unlikely construct, and it finds no support in federal decisions enforcing state procedural bars with respect to similar constitutional claims based on Rogers or Bouie. See Chambers v. McCaughtry, 264 F.3d 732, 739 (7th Cir.2001); Coley v. Belleque, No. 03-569-HO, 2006 WL 1007248, at *1 (D.Or. April 13, 2006).
For these reasons, I conclude that Nied-erstadt is not entitled to relief. I therefore concur in the judgment reversing the decision of the district court and remanding with instructions to deny the petition for writ of habeas corpus.
. The court’s alternative suggestion, ante at 835, that the State has failed to show that the Supreme Court of Missouri relied on a procedural rule that is “firmly established and regularly followed” presumably is dictum, for resolution of the default question on that basis would be inconsistent with the court's conclusion that Niederstadt's constitutional claim should be reviewed under the deferential standard of 28 U.S.C. § 2254(d). If the state court purported to rely on a procedural ground in rejecting the federal constitutional claim, but that ground is later deemed inadequate to bar federal habeas review, then the federal claim was not adjudicated on the merits by the state court, see Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.2004) (en banc), and the pre-AEDPA standard of review likely would apply. See Silverman v. Edwards, 69 Fed.Appx. 489, 491 (2d Cir.2003); cf. Clemons v. Luebbers, 381 F.3d 744, 755 (8th Cir.2004).