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

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…