William J.R. Embrey v. Greg Hershberger, Warden, United States Medical Center for Federal Prisoners

EMBREY, Petitioner- J.R. William

Appellant, Warden, HERSHBERGER,

Greg Federal Medical Center

Prisoners, Respondent-Appellee. 95-2906.

No. Appeals,

Eighth Circuit. Sept.

Submitted 31, 1997.

Decided Jan. Harlan, Christopher Assistant appeal Federal and on by the case was dismissed an Defender, MO, City, argued, Kansas panel Public administrative of this court. Our court, petitioner-appellant. upon based record made in the the: court, concluded, unpublished an Jones, Christopher David Assistant U.S. order, appeal was “without merit” MO, Attorney, Springfield, argued, for re- and appeal dismissed the under the then spondent-appellee. 12(a).2 existing Eighth Circuit Rule Since 1989, Embrey has filed numerous other McMILLIAJNT,LAY, Before and MORRIS § petitions asserting various claims ARNOLD, Judges. SHEPPARD Circuit challenging his conviction and sentence. As LAY, Judge. out, Circuit points in at least three or four of petitions Embrey repeated 11, 1979, Embrey On March William J.R. his claim that his conviction and sentence White, man, armed, Luie both § under 1201 was unlawful. On each occa- approached Spillers family Darrell and his sion after his petition first this court has Missouri, City, their home in. Southwest administrative appeal order dismissed his on money. Spillers, a demanded local bank offi- grounds that it constituted successive cial, $11,000 over obtained from his bank petition. family hostage. while the men held his two Embrey and White fled into Oklahoma in 23, 1994, Embrey On June filed this ear, Spillers’ taking Spillers with them as corpus tion for writ of habeas which was Spillers “insurance” in case had alerted the construed the district court aas police they while he was the bank. When pursuant filed to 28 Embrey U.S.C. 2255. car, “getaway” Embrey at a arrived argued that at the robbery time of his Spillers, ear, White released and his un- kidnapping conviction the district court erred harmed. imposing consecutive sentences for his kid- napping robbery and armed convictions. He Embrey was later convicted in the United basically urged that the district court lacked States District Court for the Western Dis- authority to convict and sentence him for charges trict of Missouri on of armed bank kidnapping 1201 and at the same robbery, in violation of the Federal Bank time convict him for bank under 18 (“FBRA”), 2113(a) Robbery Act 18 U.S.C. U.S.C. Embrey 2113. asserted that Con- kidnapping, in violation of the gress to limit intended federal bank Act, Kidnapping Federal prosecutions single charging count 19, 1980, September On Embrey was sen- and, so, level of in doing twenty-year tenced to two consecutive terms Congress precluded charges imprisonment.1 conduct within coverage of 2113 under Embrey’s conviction affirmed other statutes outside the FBRA. The dis- unpublished court in opinion. See United trict again Embrey’s once dismissed Embrey, petition as petition. a successive Petitioner (Table). appeal, Embrey his direct On did again appealed. has appeal, petition- In this challenge separate his conviction or sen- successfully er appoint lawyer, moved to tence kidnapping parties fully and the briefed the case and U.S.C. Embrey filed a claim orally argued the issues to this court. Missouri, the Western District of challeng- kidnapping his conviction and his sen- In light of the historical treatment rejected tence. The district court that claim given petitions, unsuccessful day, Embrey 1. That same was also sentenced replaced by 2. Rule has been our fifteen-year two Rule terms for two which allows the court on additional armed its own appeal motion to appeal dismiss an if the fifteen-year bank robberies. The two entirely peti “frivolous and without merit.” The concurrently ran with each other and with the tioner did file a brief nor did this court file received in and kid- opinion written other than the order men napping sentences at issue here. tioned above. (8th Cir.1989) (Table) (No. 89-1786). 833, 339, 112 S.Ct. Whitley, 505 U.S. readily understandable The Court Em- to dismiss again moved once has translating difficulty recognized the has ground that he on the breas capital actual innocence test to applying the petition should that his the writ abused 339-40, 112 at 2518-19 sentence. govern- be dismissed successive.3 527, 537, Murray, 477 (citing v. U.S. bypass Smith procedural urged the has not 2661, 2667-68, L.Ed.2d 434 91 106 S.Ct. deem appeal we rule, purposes of and for (1986)). test, in applying the the Court Embrey urges that response, it waived.4 adopted “eligibility” test. See Sawyer of a' successive allows review at -, at 865. 115 S.Ct. Schlup, 513 U.S. of the may said that “ends tion if it analyze whether requires courts This test it. justice” require “eligible” for petitioner would have been the full a Embrey urges he has never had that constitu received the claimed the sentence issue he now in this court review violation had not occurred.5 tional af- prior appeals he was never raises. On full appointment of counsel or the forded “emphasized that Supreme Court has The Embrey has raised. briefing of the issues justice exception is con miscarriage of the bank rob- under the completed his sentence legal inno compared cerned with actual convictions, time serving and is now bery at at Sawyer, 505 U.S. S.Ct. cence.” the of his conviction under solely on the basis However, eligibili the adoption the of 1201 urges -that He kidnapping statute. innocence ex ty applying the actual test the applicable to him under circum- not given sentencing phase of a ception to the attempting charges made. stance of the necessarily inquiry on focuses case charge appeals, of successive to avoid the 347, 112 S.Ct. at “objective factors.” Id. at language of Embrey Justice relies on Delo, 2523; 757 Waring v. see Murray in v. Carrier: O’Connor Sawyer (stating ap that after of principles appropriate exception eases” “[i]n “actual innocence plication con- finality that inform the comity and defined sentencing case must be noncapital a yield standard”). “must prejudice cepts narrow, objective of cause and Under aby correcting a circumstances, fundamen- imperative question of actual ... unjust Accord- tally sentencing incarceration.” more akin becomes extraordinary in an In the ingly, we think law. question of fact and ato mixed case, actually has a case, Embrey where constitutional he is claims present conviction of one of some probably resulted not the sentence because innocent of innocent, violation, actually a federal habeas but be procedural who is constitutional legal ab- may grant the writ even been could have cause the sentence proce- (i.e. showing ineligible). of cause for objectively of a sence he was ly imposed dural default. the ends 2689, 2649, 495-96, Section 91

477 U.S. § 2255 claims under to all (1986). stat- standard This test has been 397 confining the express limitation Sawyer v. no test. “actual innocence” ed as the Cir.1991), applied innocence” the "actual which raises which 3. A successive a ha- rejected sentenced on grounds those defendant identical to heard apply to him. previous petition; an abusive did in a statute that the merits petition bitual offender prisoner claims rely upon Jones v. opinion is one in majority does not case, upon in a were not relied were available but but a state habeas Arkansas. That engages in prior petition, or conduct otherwise prisoner under a federal ais claim Schlup relief he disentitles to the seeks. him Whitley, Sawyer urges The dissent Delo, 298, - n. 513 U.S. (1992) 120 L.Ed.2d S.Ct. (1995). 863 n. 130 L.Ed.2d Sawyer, ruling. agree. changed We time, clar- “eligibility” test which applies an first Netherland, - U.S. -, -, Gray v. 4. See confusing "actual inno- nomenclature ifies the (1996). 2074, 2082, L.Ed.2d 457 cence," illegal sentence. applied to an when However, Sawyer nothing which limits there majority adopts The dissent Arkansas, justice” cases. test to death “ends of of Jones rationale only capital Additionally, 'Cases. test erred in him under Smith, rejected the Court the contention that kidnapping charge, Embrey was not application default for a sentence under that statute.7 depend penalty” should “on the nature of the prisoner. is a federal Under imposed. 477 U.S. 106 S.Ct. at 2668. petitioner seek release from consistently The Court has reiterated that custody if his “imposed sentence was in viola- Writ, guided the Great tion of the Constitution or laws the United limitations, judicial is the mecha added); (emphasis States.” 28 U.S.C. “correcting fundamentally unjust nism for see Davis v. United 417 U.S. Isaac, Engle incarceration.” 2298, 2303-04, 41 L.Ed.2d 1558, 1576, case, In the we (1982); -, review Schlup, see 513 U.S. at Carrier, 864; issue terms of intent and S.Ct. U.S. at 106 Requiring unnecessary at find it 5.Ct. individual to to review claim twenty years serve of a sentence he was not grounds. on constitutional eligible epitomizes fundamentally to receive Kidnapping Sentence Under the Statute unjust incarceration.6 Embrey was convicted and sentenced argument Embrey The now under the FBRA and Kidnap the Federal he was not to be convicted under ping Act. He that his sentence under § 1201 twenty- and to receive a consecutive illegal the dual conviction is because the of year addition to his sentence for fenses of bank and associated robbery. the bank kid We are satisfied that if merits, napping fully encompassed is correct on the he has within met the the ends of interpreted by test as FBRA and has directed that he Supreme Court the district should be sentenced under the FBRA.8 actually 6. The dissent applies cases); that the claimant is noncapital sentencing to Smith v. attacking kidnapping Collins, his conviction for 951, (5th Cir.1992) (same). 977 F.2d petitioner's This his sentence. lenge misreads chal Kaiser, 1029, But see Selsor v. 22 F.3d 1035-36 opinion. and this court's There is no (10th Cir.1994) (holding excep- actual innocence petitioner doubt the record demonstrates that only applies sentencing tion to cases where guilty violating kidnapping of the federal tioner can show factual innocence of a sentenc- question statute under 1201. The basic ing required element that proof was not of given whether the defendant be consecutive conviction); underlying the ards, United States v. Rich- both sentences under and the bank statute 1369, (10th Cir.1993) 5 F.3d (holding kidnapping Adopting the federal act. exception actual innocence cannot be extend- States, language Simpson of case); noncapital in a Estrada v. (1978), applied 55 L.Ed.2d 70 to Witkowski, F.Supp. (D.S.C.1993) case, Congress had not "authorized the im (stating exception actual innocence will not position penalty of of [§ 1201 for applied petitioner because was convicted of a kidnapping] already subject federal punishment to enhanced offense). noncapital 2113(e)]." under [§ S.Ct. at 913. robbeiy 8.The entitled “Bank and inci- Applying eligibility noncapital test to a case crimes,” provides dental part: in relevant appears to be in accord with at least three courts . (a) Whoever, violence, force and or appeals, including this court. United States v. intimidation, takes, take, attempts or to from Maybeck, Cir.1994) (find 23 F.3d presence any or property limiting no rationale for the actual innocence money any thing or or other belonging of value exception to death cases excep to, care, control, custody, or in the manage- noncapital sentencing enhance ment, of, bank, possession union, any or cases); Jordan, credit Mills any association; savings or and loan or (concluding application attempts Whoever enters or to enter exception the actual noncapital bank, union, any savings credit or proceedings habitual and loan offender is consistent with association, ); any building Sawyer Whitley or used in Camper, Pilchak v. whole or bank, union, part as a (applying savings credit or as a the actual in association, exception nocence to a loan defendant who was with intent to commit "not bank, union, proper subject savings for a such sentence of a credit or in such lifetime of incarceration”); association, thereof, Hargett, see also building, part Sones v. loan or (5th Cir.1995) (assum used, bank, 418-19 & n. any felony affecting so union, such credit ing arguendo that the actual innocence savings or such and loan association 2113(d).” Id. at at 913. an analo- addressed Supreme Court The 924(c), legislative history of Simpson addition to gous contention 55 L.Ed.2d two rules of relied on the Court were Simpson, defendants First, ambigu- there is where construction.10 and of statutes, of two robberies guilty scope found of criminal ity concerning the robberies, to commit the using firearms against turning a be resolved “doubt will 2113(a), and 18 U.S.C. multiple offenses.” into single transaction sen- 924(c),9 given consecutive were omitted). (citations Id. at at 914 counts. robbery and firearms on the tences Second, holding with supported its the Court convictions government argued theory, that where two statutes parallel justified as were specific may apply, the terms Blockburger test. offenses under distinct Id. 98 S.Ct. at 914.11 control. statute Su- at 911-13. The Leek, necessary held that was preme guilty (D.C.Cir.1981), pled the defendant issue, because reach that constitutional 2113(a), penal- violating the imposition Congress had not “authorized robbery, and entry with intent commit 924(c) izes com- penalty of the additional penalizing of Columbia District al- firearms with of bank mission dangerous weapon, which assault with punishment subject to ready enhanced the FBRA and an outside government did not use any of the United statute and in violation act, States, charge the same but larceny— him twice for any statute to or $5,000 or im- convictions fragmented not more than act to obtain be fined Shall rather twenty years, or both. prisoned more than viola- for armed bank and sentences kidnapping in and §of tion Whoever, (d) committing, attempt- or in §of 1201. violation commit, any defined in offense subsec- section, (a) (b) any assaults tions expressly Congress overruled 11.In any jeopardy person, puts the life or States, 446 U.S. Simpson and Busic dangerous weapon or person use of a (1980), $10,000 device, or more than be fined not shall 924(c) pro- § concluding should that 18 U.S.C. twenty-five years, or imprisoned than not more mandatory persons com- all sentence for vide both. firearm, "including those mitting with a felonies Whoever, (e) committing any de- offense provide already in statutes crimes set forth which section, avoiding attempt- or in this or in fined ing commission for their for enhanced apprehension for the commission to avoid S.Rep. weapon.” No. 98-225 dangerous awith offense, freeing at- himself or of such or (1983), reprinted in U.S.C.C.A.N. at 313 3182, or confine- tempting from arrest to free himself Judiciary Committee offense, The Senate any person, or such kills ment for bank rob- armed accompany Report specifically directed that him any without forces 2113(a), (d), impris- § person, prosecuted bery shall be under of such be the consent should punished duplicate years, 924(c), authorizing expressly ten § not less than oned jury shall so direct. of the venturing death if the verdict FBRA to punishment and outside 924(c). § U.S.C. 2113. under a consecutive obtain deliberate "[t]his asserts that 924(c) illegal to use a it firearm 9. Section language the all-inclusive pointed indicates felony. in the commission of intact robbery punishment scheme as it did explicitly overridden unless construc- 10. While these weapons enhance- deciding particularity in the 1984 may important the merits with Reply 17- important (Appellant’s Brief at provision.” differ- Embrey’s appeal, is one there Simpson 18). and this case. ence between charged government Simpson, the defendant to ex- Congress amended In 1986 2113(d) 924(c), twice, com- for under federally in- pressly extortion directed cover mitting with firearm. the bank provision and make it the "exclusive sured banks sought separate convictions H.R.Rep. No. prosecuting bank extortion.” robbing with a a bank sentences for (1986), 99-797, reprinted in 1986 at 33 2113(d), firearm, using a firearm under Re- Committee 6156. The U.S.C.C.A.N. 924(c). felony, under of a the commission been conduct had port that extortionate stated case, improp- have been while or the FBRA either the prosecutable under Embrey under to convict the district court er for Act, “clarification and concluded that Hobbs FBRA for conduct within outside the a statute coverage, applicable is desir- be the should slightly must be different the rationale charging Embrey, able." Id. Simpson. than that in 2113(d). chargeable Applying Unit ered reject within the FBRA. argu- We (D.C.Cir. Canty, States ment. The same principles that allow 1972) curiam), (per the court held that it was violation of the pro- several “fragment reversible error to visions FBRA suggest that additional and venture the federal outside for a sentences based on scheme outside statutes for activ- peg ity hang aggravated compo on which to covered under the illegal. FBRA are In- Leek, 387; deed, nent of the offense.” 665 F.2d at it would be with inconsistent the Su- Snell, preme see United interpretation States Court’s of the FBRA (9th Cir.1977) (holding legislative “pro and its history, prohibiting FBRA multi- ple vides punishments itself, exclusive federal remedies for offensive under the FBRA fully ”); conduct ‘coverage’ imposition within its allow punishments United Beck, Cir. the FBRA and an illegal outside statute for 1975) (citing Canty, activity clearly covered under the FBRA exclusively proscribe “was intended to absent direction to the con- ‘coverage’”). trary. conduct within its The court emphasized Blockburger analysis The United that where an irrelevant, Leek, 665 F.2d at statutes, offense constitutes a of two because the second conviction was not autho separate convictions and punish cumulative by Congress, rized and therefore “illegal permissible ments are if each requires judicial and in excess of authority.” proof aof fact that the other does not. (Ap 390.12 pellee’s 5, citing Brief at United States v. Woodward, found, As the Leek court Prince v. (1985) curiam), L.Ed.2d 518 (per Albernaz v. States, United 352 U.S. States, 450 U.S. (1957), and its progeny, also (1981), 67 L.Ed.2d 275 and Blockburger v. support argument that an additional sen tence, based on an outside for con (1932)). L.Ed. 306 Applying the Blockburger duct coverage within the of the FBRA is test, the United States that the consec Leek, illegal. See 665 F.2d at n. 36. In utive permissible sentences were because the

Prince, prohibited pyramiding Court convictions were for separate offenses with of sentences based on the proof. distinct elements of legislative history and principle that mul tiple punishments will not imposed with However, Albemaz, Supreme out clear authorization. explained Court that Blockburger analy Therefore, can defendants receive controlling only sis is where there is no clear conviction and sentence for violation of the contrary indication of legislative intent. Alb provisions several of the FBRA. United ernaz, 336-38, 101 atU.S. S.Ct. at 1140- Pietras, (8th 501 F.2d 187-88 patent Here we deem it that Congress Cir.1974); Delay, United States v. 500 F.2d intended the FBRA comprehensive to be the (8th Cir.1974); Jones v. United and exclusive remedial provision for federal (8th Cir.1968). Here, 396 F.2d robbery prosecutions. Leek, bank 665 F.2d the United that States it is lawful to This recognized court has go outside the FBRA and obtain addition an comprehensive is a FBRA scheme precluding al conviction for behavior cov- charges additional for conduct within its eov- Eighth 12. The Circuit has aggravated never decided the is added). (emphasis offenses.” Id. On However, court, sue before us. occasion, least in stated "[i]n court that dicta, recognized validity Embrey’s argu drafting § Congress intended to limit fed- Roundtree, ment. In United States v. 527 F.2d robbery prosecutions eral bank single count (8th Cir.1975), Judge 19-20 Heaney, writing charging pre- level of crime and panel, for the that compre stated the FBRA "is a cluding charges additional for conduct within containing special hensive statute provisions for coverage § 2113's under statutes outside the punishment aggravated increased for offenses. Phillips, scheme.” United States v. It is intended to cover aggressions most of the (citing Canty, United States v. that arise from a bank provides supra). penalties single within a conviction for Richards, 5 F.3d v. States death. See United States statutes. erage under outside Cir.1993). (10th Cir.1975). to me unlike- (8th It seems 388, 392 F.2d Phillips, 522 v. to hold intended ly Supreme Court asserts also States hold) (or sentencing errors that federal will sen- impose could court they have when barred from review are not convictions, citing eases the two tences rejected in a collat- already been raised First, United analogous. maintains the merits or be- proceeding, either on eral (5th Dotson, F.2d States procedurally defaulted. they had been cause case with similar Cir.1977), only reported moreover, believe, I no reason see proposi- convictions, for the is cited facts jus- the “ends Supreme will read sentences separate convictions rights for federal language to create tice” § 1201 are FBRA and for violation not have prisoners do that state prisoners cursory However, discussion valid. is not that Prince merely points out Dotson good v. Arkansas Even Jones Dotson controlling, and the directly here. The law, inapplicable principle sentences. the concurrent affirmed therefore is not that complaint in this case petitioner’s three Second, cites States the United imposed on ineligible for the sentence he is im- support circuits other from cases ineligible him; that he was complaint his for federal of consecutive position words, In other he is However, conviction. for the offenses. other asserting that some the issue do not discuss cases assert- wrongly applied, he is guideline was impose the all raises, importantly, law was criminal ing that the substantive then illegality not second him. This is what applied to wrongly See United by the FBRA. covered innocence,” “legal Cir.1978) (bank have to call (10th eases come Davis, F.2d 1177 claims cannot overcome and such United States conspiracy); robbery and inno- Only factual (3d claims. bars to habeas n. 15 F.2d Welty, 426 Délo, Schlup v. can do that. See Allen, cence (same); -, Cir.1986) (bank pos- U.S. robbery and Norris, (1995); Pitts v. felon, explicitly a firearm session Cir.1996). States). Simpson v. United distinguishing decision, moreover, under- The court’s We conclude of this court decisions numerous mines test; that he the ends falls within convicted of others that hold the consecutive to his objections raise must federal since years under twenty and on district fully encompasses robbery statute proceed under he can before kidnapping and bank integrated conduct F.3d Ramey v. United to the remand here. We involved (8th Cir.1993); vacate directions to court with (8th Cir.1993); Wilson, F.2d 1201.13 and sentence conviction Ward, United States ARNOLD, Circuit SHEPPARD MORRIS Cir.1995). case the It true is dissenting. Judge, prisoner’s argued successive, petition- Arkansas, not that that Jones believe do not I had), but the (although he had defaulted good law er F.2d 375 lift the operates to 112 actual Whitley, 505 U.S. Sawyer v. after way in both in the same procedural bar Sawyer, ruling today’s effect contexts. The ex think, the actual innocence holds I actually decid- only that claims therefore hearing claims habeas to the bar ception complaining of a adversely prisoner only if the sentence to sentences paragraph is irrelevant perceives final in its governed the law Embrey’s appeal is 13. was amended cases. future before effect in sense, the dissent most what 1996. In statutory sentencing error a federal court entitled to infinite number of succes- reviews;

sive it means also that a

default is never a bar to an initial collateral alleged

review of an error, federal sentencing

or indeed to number of successive ones

thereafter. This is all the more re- legal

markable because comes ain environ-

ment in which the law of habeas corpus is

tending more and more adopting toward judicata of res that obtain in other proceedings.

kinds of civil

I respectfully therefore dissent. MURRAY,

William K. Appellant,

Michael GROOSE and Jeremiah (Jay) Nixon,

W. Appellees.

No. 96-1321. Appeals, Court of

Eighth Circuit.

Submitted Nov. 1996.

Decided Feb.

Rehearing Suggestion for Rehearing

En Banc April Denied

Case Details

Case Name: William J.R. Embrey v. Greg Hershberger, Warden, United States Medical Center for Federal Prisoners

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 31, 1997

Citation: 106 F.3d 805

Docket Number: 95-2906

Court Abbreviation: 8th Cir.