William J.R. EMBREY, Appellant, v. Greg HERSHBERGER, Warden, United States Medical Center for Federal Prisoners, Appellee, 131 F.3d 739

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. § 2118(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, brought under 28 U.S.C. § 2255, Mr. Em-brey maintained that his conviction under the Federal Kidnapping Act was illegal because all of his unlawful activities were violations of the 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, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979), quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (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 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 that we should reach the merits of his claim under the doctrine laid down in Sawyer v.

Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (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, 112 S.Ct. at 2523, 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, 112 S.Ct. at 2517, 2523, 2524. 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, 112 S.Ct. at 2519, quoting Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986), “[i]n the context of a noncapital case, the concept of ‘actual innocence’ is easy to grasp.” Sawyer, 505 U.S. at 341, 112 S.Ct. at 2519. 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 eases, 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, 112 S.Ct. at 2522-23. 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, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (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, 106 S.Ct. 2616, 2627-28 n. 17, 91 L.Ed.2d 364 (1986) (plurality opinion), a definition that presupposed that newly available evidence 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, 112 S.Ct. at 2518.

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. II. For the foregoing reasons, we affirm the district court’s judgment dismissing Mr. Em-brey’s petition. . The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri. . 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.,