201 F.3d 866 (7th Cir. 2000)
Anthony J. Gray-Bey,    Petitioner,v.United States of America,    Respondent.
No. 99-4131
In the  United States Court of Appeals  For the Seventh Circuit
January 7, 2000*

Application for a Certificate of Appealability  for an Order Authorizing the District Court  to Entertain a Second and Successive  Petition for Collateral Review Before COFFEY, EASTERBROOK, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
Anthony Gray-Bey  filed a petition for a writ of habeas corpus in  the United States District Court for the Eastern  District of Arkansas. The district court  construed the petition as a successive petition  filed without proper authorization from the court  of appeals and transferred the motion to this  court to be considered as an application for  leave to file a successive motion under 28 U.S.C.  sec. 2255. In an Order dated October 7, 1999,  this court dismissed the application without  prejudice under Circuit Rule 22.2. Gray-Bey has  filed another application with additional  supplemental materials.


2
The governing statute calls for this court to  act on Gray-Bey's application within 30 days of  its filing, in this case January 7, 2000. See 28  U.S.C. sec. 2244(b)(3). The initial question  before us is whether this court has the power  under any circumstances to extend the time for  final disposition of the application. We agree  with our sister circuits that such power exists,  and that the 30-day period may be extended for  those few cases which require reasoned  adjudication and cannot be resolved within the  statutory period. See, e.g., United States v.  Barrett, 178 F.3d 34, 42 n.2 (1st Cir. 1999)  (stating 30-day time limit for court of appeals  granting or denying authorization to file second  or successive habeas corpus petition is  "precatory, not mandatory"), quoting Rodriguez v.  Superintendent, Bay State Correctional Ctr., 139  F.3d 270, 272 (1st Cir. 1998); In re Siggers, 132  F.3d 333, 336 (6th Cir. 1997) (reading the  language of sec. 2244(b)(3) as "hortatory or  advisory rather than mandatory"); Galtieri v.  United States, 128 F.3d 33, 36-37 (2d Cir. 1997)  (ruling that sec. 2244(b)(3) must be applied with  "flexibility" and concluding that courts should  not forego "reasoned adjudication" in the small  number of cases that cannot be resolved within 30  days); In re Vial, 115 F.3d 1192, 1194 n.3 (4th  Cir. 1997) (noting that the court exceeded the  30-day limit but concluding that the importance  of the issue justified the delay).** In a  small number of extraordinary cases, the courts  cannot perform their assigned judicial function  under the Constitution without a more thorough  exploration of the legal arguments than is  possible in the statutory period. The  alternative--uninformed and arbitrary grants or  denials of applications--is unacceptable in a  system that strives always to operate under the  rule of law.


3
Our dissenting colleague believes that such  arbitrariness has been commanded by Congress,  because it used the word "shall" in 28 U.S.C.  sec. 2244(b)(3). With all due respect, we believe  that this reading fails to take into account the  inherent equitable powers of the federal courts--  powers that have been recognized by our sister  circuits in their own acknowledgments both that  the 30-day rule applies in the overwhelming  majority of cases, but that the court retains the  power to override it when compelling  circumstances demand that action. This is not the  extraordinary and lawless conclusion that our  colleague claims it is. To the contrary, it  reflects a reconciliation between the commands of  legislation and the exigencies of judicial  decisionmaking that is well grounded in the law.  For example, the Supreme Court has consistently  taken the approach we and our sister circuits  have adopted for sec. 2244(b)(3) in the cases  establishing the abstention doctrine. As is the  case with sec. 2244(b)(3), the statute in which  Congress confers general federal jurisdiction on  the lower federal courts is worded in mandatory  language. See 28 U.S.C. sec. 1331 ("The district  courts shall have original jurisdiction of all  civil actions arising under the Constitution,  laws, or treaties of the United States.")  (emphasis added). That phrasing might seem to  leave the federal courts no choice but to decide  questions within their jurisdiction.  Nevertheless, the Court has recognized that in  certain cases it is wiser to decline deciding the  merits of the case, either for a period of time  or altogether. See Railroad Comm'n v. Pullman  Co., 312 U.S. 496, 500 (1941) ("The resources of  equity are equal to an adjustment that will avoid  the waste of a tentative decision as well as the  friction of a premature constitutional  adjudication."); Burford v. Sun Oil Co., 319 U.S.  315, 318 (1943) (considering abstention to be "a  matter of equitable discretion"); Younger v.  Harris, 401 U.S. 37, 44 (1971) (invoking comity  as a reason to restrain federal courts acting in  equity from enjoining most pending state criminal  proceedings); Pennzoil Co. v. Texaco Inc., 481  U.S. 1, 10 (1987) (requiring federal court  abstention in civil proceedings to avoid  intrusion into the Texas judicial system).  Moreover, the use of "shall" in the Constitution  is not always or necessarily understood to be  mandatory. For example, Article III, sec. 2  states that "[t]he judicial Power shall extend"  to various things, including federal questions  and controversies between citizens of different  states (emphasis added). However, federal  jurisdiction does not extend to the full limits  of the grant in Article III, despite the  potential mandate of the word "shall." Instead,  Congress has imposed an amount in controversy  requirement which limits the number of cases that  can be heard in diversity jurisdiction, see 28  U.S.C. sec. 1332. And federal question  jurisdiction as we know it today was not granted  until 1875 with the passage of the Judiciary Act.  See Act of March 3, 1875, 18 Stat. 470.


4
This is not the only situation in which a  reading of a statute in isolation from the rest  of the law might lead one to think, erroneously,  that either the statute or the Constitution  itself has been violated. To take but two  examples, Atchison, Topeka & Santa Fe Ry. Co. v.  Wichita Bd. of Trade, 412 U.S. 800, 819-20 (1973)  (plurality opinion), recognized a limited power  in the courts to suspend rates pending review of  a final order of the Interstate Commerce  Commission, in part because there was no  "provision in the relevant statutes depriving  federal courts of their general equitable power  to preserve the status quo to avoid irreparable  harm pending review." Similarly, in the Regional  Rail Reorganization Act Cases, 419 U.S. 102, 128-  29 (1974), and Dames & Moore v. Regan, 453 U.S.  654, 689 (1981), the Court saved the  constitutionality of statutes (the International  Emergency Economic Powers Act, 91 Stat. 1626, 50  U.S.C. sec.sec. 1701-06 (1976 ed. Supp. III) in  Dames & Moore and the Regional Rail  Reorganization Act, 45 U.S.C sec. 701 et seq.  (1970 ed. Supp. III)) against takings challenges  by noting that Congress had not taken the  independent step of repealing the Tucker Act, 28  U.S.C. sec. 1491. The Court felt free to do so  even though the laws in question made no mention  of the Tucker Act. Just so here: Congress imposed  the 30-day time limit in sec. 2244(b)(3), but it  did not repeal the All Writs Act, 28 U.S.C. sec.  1651; Congress thus recognized that the courts  retain the power to take extraordinary steps when  they are needed. We note too that well  established canons of statutory construction  support this position. Repeals by implication are  disfavored, see TVA v. Hill, 437 U.S. 153, 190  (1978); see also Argentine Republic v. Amerada  Hess Shipping Corp., 488 U.S. 428, 429 (1989),  and so there is every reason to assume that the  background laws conferring powers on the federal  courts remain in full force. Furthermore, courts  must if they can interpret statutes to avoid  constitutional problems. See, e.g., NLRB v.  Catholic Bishop of Chicago, 440 U.S. 490, 506-07  (1979) ("[I]n the absence of a clear expression  of Congress' intent to bring teachers in church-  operated schools within the jurisdiction of the  Board, we decline to construe the [National Labor  Relations Act] in a manner that could in turn  call upon the Court to resolve difficult and  sensitive questions arising out of the guarantees  of the First Amendment religion clauses.").  While, as the dissent points out, this court  concluded that such a saving interpretation was  not possible in French v. Duckworth, 178 F.3d 437  (7th Cir.), cert. granted, 120 S.Ct. 578 (1999),  the administrative time limit at issue here is  quite different from the substantive command to  terminate injunctions that we considered in  French. We see no reason to deviate from the  unanimous conclusion of our sister circuits and  assume a rigidity in the 30-day time period that  Congress may not have intended.


5
Indeed, there is good reason to conclude that  Congress affirmatively recognized that  extraordinary action may be necessaryin certain  cases, which can be found in another of the  statutes governing habeas corpus. Our dissenting  colleague is correct that sec. 2244(b)(3) is  seemingly clear in its mandate; however, he does  not adequately take into account the implications  of sec. 2266, which also provides for limitations  periods for the federal courts to make decisions  on applications and motions for relief in capital  cases. 28 U.S.C. sec. 2266. Section 2266 provides  that a court may consider several factors in  deciding whether to delay the disposition of an  application for a writ of habeas corpus,  including, "Whether the case is so unusual or so  complex, due to the number of defendants, the  nature of the prosecution, or the existence of  novel questions of fact or law, that it is  unreasonable to expect adequate briefing within  the time limitations established by subparagraph  (A)." 28 U.S.C. sec. 2266(a)(1)(C)(ii)(II). Here,  our decision to extend the 30-day time limitation  is based precisely on these considerations. Our  dissenting colleague correctly points out that  the regime for capital cases is spelled out in  greater detail than is the procedure for  successive petitions. We, however, draw no  negative inference from the lack of symmetry  between the two statutes regarding the question  of permissible delays. What sec. 2266  demonstrates is that Congress was not willing to  risk a miscarriage of justice in order to achieve  timeliness at all costs. Congress inserted the  time limitations to avoid delays due to perceived  judicial foot dragging and "general congestion of  the court's calendar," 28 U.S.C. sec.  2266(a)(1)(C)(iii), not to mandate hasty and  unreasoned judicial decisionmaking. The fact that  Congress omitted detailed language regarding  permissible delays in sec. 2244(b)(3) does not  indicate that it threw all caution to the wind in  every set of circumstances falling outside sec. 2266


6
In our view, Gray-Bey's application presents  several legal issues which have yet to be  resolved by this circuit. As these issues are  important and recurring, we have concluded that  the issues presented in this case should not be  decided without the benefit of full briefing and  adversarial presentation. We recognize that  Congress reformed habeas corpus in order to  ensure that cases moved swiftly toward resolution  without unnecessary delay. However, to meet  Congress's goal, it is imperative that the courts  develop clear procedures that will apply to all  of these cases. To do so takes time. Briefly  delaying Gray-Bey's case--and the few others  presenting similarly complicated and knotty  questions--will allow us to ensure that the rules  governing habeas develop properly and will  facilitate future expeditious treatment of these  cases. Taking the extra time to allow for full  presentation of the issues will make the eventual  decision more helpful to future litigants, the  district courts, and future panels of this court.  Handling all of these cases on an expedited basis  risks leaving everyone involved in the dark.


7
As for the merits of the petition, while we  certainly respect the views that our dissenting  colleague has offered, the depth of discussion  his treatment required simply underscores the  fact that these are serious points that deserve  an open, adversary presentation. We therefore  decline the implicit invitation either to agree  or disagree with his conclusions or the route he  uses to reach them until after both sides have  been provided the opportunity to brief their  positions fully and present them to this panel at  oral argument. We hereby order the Clerk of the  Court to appoint counsel to represent petitioner  Gray-Bey and instruct counsel to address the  following issues in their briefs, in addition to  any other points that require attention in  counsel's professional judgment:


8
1. Given that Gray-Bey raised his claim under  Bailey v. United States, 516 U.S. 137 (1995), in  his prior sec. 2255 motion before this court but  not before the district court, has his Bailey  claim already been "presented" for purposes of  sec. 2244(b)(1)? 2. Does 18 U.S.C. sec. 924(c) prohibit the  conduct for which Gray-Bey was convicted? If so,  does Gray-Bey's Bailey claim rest on a new rule  of constitutional law, thereby qualifying Gray-  Bey for relief under sec. 2244(b)(2)?


9
3. What is the effect of the Arkansas District  Court's decision refusing to consider Grey-Bey's  petition for relief under sec. 2241?


10
4. Does this court's decision in In re  Davenport, 147 F.3d 605 (7th Cir. 1998), require  Gray-Bey to file his petition under sec. 2241,  and would such a sec. 2241 petition be properly  construed as nonsuccessive?


11
Recognizing our duty to respect the statutory  command for speed, we also instruct the Clerk's  office to expedite this case as follows. Oral  argument shall be set for the week of February  21, 2000. Petitioner's brief shall be due on  January 25, 2000, and respondent's answer on  February 11, 2000. Petitioner's reply shall be  due one week later, on February 18, 2000.



Notes:


*
 This decision was originally issued as an  unpublished order. It is now being reissued as a  published opinion in accordance with C.R.  53(c)(1)(i) and (ii).


**
 The procedural mechanism the court uses to secure  time for briefing and full consideration may  vary. In Triestman v. United States, 124 F.3d  361, 366-67 (2d Cir. 1997), the Second Circuit  denied the motion for relief within 30 days,  thereby complying with the statutory period, but  then, recognizing the need for further briefing  and consideration, sua sponte stayed its mandate  and ordered briefing regarding whether the court  should reconsider its decision. In Triestman, the  Second Circuit took the position that the formal  order denying the application sufficed for  compliance with sec. 2244(b)(3). The more  important point of the decision, however, is that  any proceedings at all could occur after the  expiration of the 30-day period. Whether such  consideration is done through the formal steps  followed in Triestman or the more straightforward  one of simply extending the time limit (the  approach taken by the Second Circuit in Galtieri  and the one we take today), the outcome is the  same. We therefore see no obstacle to the  Triestman approach, but equally do not believe  the statute compels it.



12
Easterbrook, Circuit Judge, dissenting.


13
Anthony  Gray-Bey is serving a sentence of 256 months'  incarceration for conspiring to distribute  cocaine, possessing cocaine with intent to  distribute, using a telephone to facilitate his  drug business, and using a firearm during and in  relation to drug trafficking. His convictions and  sentences have been affirmed, see United States  v. Goines, 988 F.2d 750 (7th Cir. 1993), and a  collateral attack under 28 U.S.C. sec. 2255 was  unsuccessful. Gray-Bey v. United States, 156 F.3d  733 (7th Cir. 1998). On December 8, 1999, Gray-  Bey filed an application for leave to commence a  second proceeding for collateral relief. Congress  has set a deadline for action: "The court of  appeals shall grant or deny the authorization to  file a second or successive application not later  than 30 days after the filing of the motion." 28  U.S.C. sec. 2244(b)(3)(D), applied to federal  prisoners by 28 U.S.C. sec. 2255 para. 8. That time  expires today, January 7, 2000. But my colleagues  do not "grant or deny" the requested  authorization. Instead they issue an order  directing the Clerk to appoint counsel for Gray-  Bey and specifying four issues that briefs should  address. We lack authority to depart from an Act  of Congress, so I record my disagreement.


14
Section 2244(b)(3)(D) is explicit: "The court of  appeals shall grant or deny the authorization to  file a second or successive application not later  than 30 days after the filing of the motion."  "Shall," not "should" or "endeavor to" or "make  progress toward"; this statute does not leave  wriggle room. The court shall grant or deny the  application within 30 days. In this construction  "shall" means "must". Context may show that a  particular "shall" is synonymous with "may," see  Gutierrez de Martinez v. Lamagno, 515 U.S. 417,  432 n.9 (1995), but replacing "shall" with "may"  in sec. 2244(b)(3)(D) makes the passage vapid. In  its context, the "shall" of sec. 2244(b)(3)(D) is  a mandate to judges, not a grant of permission or  a first-party expression of futurity ("I shall go  to the opera tonight") that is subject to  alteration. How could Congress have been clearer?  If "shall grant or deny . . . not later than 30  days" is not mandatory, what language could be  mandatory? Would it help if the word "must" had  been used instead? That word has fewer senses,  see Bryan A. Garner, A Dictionary of Modern Legal  Usage 939-42 (2d ed. 1995), but it is not  statutory ambiguity that undergirds the  majority's disposition.


15
Other circuits, whose decisions the majority  cites, don't fret about shadings among "must,"  "shall," and "should." They simply balk at  deadlines. In re Vial, 115 F.3d 1192 (4th Cir.  1997) (en banc), the first of the decisions to  disregard sec. 2244(b)(3)(D), offers this defense,  which I quote in full: "[W]e exceeded the 30-day  time limitation established by 28 U.S.C.  sec. 2244(b)(3)(D) for decisions on requests for  permission to institute a second or successive  sec. 2255 proceeding. We are convinced, however,  that the importance of the issue presented  justified the delay." 115 F.3d at 1194 n.3. This  "explanation" is shocking; the court ignores the  text and asserts a right to violate a statute.  The Constitution adopts a different hierarchy;  statutes are superior to judges' views about wise  policy. See Bank of Nova Scotia v. United States,  487 U.S. 250, 255 (1988); United States v.  Payner, 447 U.S. 727, 736-37 (1980). The second  circuit takes the same general approach as the  fourth, with a more extended effort to justify  elevating judicial views over legislative ones.  Galtieri v. United States, 128 F.3d 33, 36-37 (2d  Cir. 1997). Like the fourth circuit, Galtieri  confesses that it is not interpreting  sec. 2244(b)(3)(D); the court instead claims a  common-law power to disregard it in pursuit of  better adjudication. Yet whether lengthier  adjudication is "better" is the very question to  which sec. 2244(b)(3)(D) speaks. Like many recent  decisions of the Supreme Court, sec. 2244(b)(3)(D)  instantiates the principle that dispatch has  value. Both Congress and the Justices want to  reduce the period during which the validity of a  conviction is open to question. Galtieri observes  that more time leads to fewer substantive errors,  which may well be true; but how to reconcile the  quest for accuracy with other competing  objectives is a legislative task, traditionally  implemented through devices such as statutes of  limitations and outer periods for action.  Congress has concluded that, once a prisoner has  had a direct appeal and one full collateral  attack, further proceedings must be abbreviated.  That decision is entitled to our respect and  obedience, whether we approve it or not.


16
Only the sixth circuit has offered a reason  compatible with legislative supremacy under the  Constitution. In re Siggers, 132 F.3d 333, 336  (6th Cir. 1997), holds that sec. 2244(b)(3)(D) is  unenforceable because it does not specify the  consequence of delay. The court believed that  statutes are directory rather than mandatory when  no consequence is attached to disobedience, and  if this is so then the 30 days indeed may be  exceeded--for the meaning of all legal texts  depends on a background of interpretive  principles. Congress could have said something  like "if 30 days pass without action, then the  application is denied automatically." Because it  did not do this, Siggers holds, a court may  exceed the time limit with impunity. The first  circuit agrees with Siggers, see Rodriguez v.  Superintendent, 139 F.3d 270, 272 (1st Cir.  1998), reiterated in dictum in United States v.  Barrett, 178 F.3d 34, 42 n.2 (1st Cir. 1999), but  I do not, because I do not think that "no stated  consequence means non-mandatory" is a background  norm of interpretation in federal law.


17
Siggers' approach implements Holmes's bad-man  theory that law's meaning lies in the penalties  for noncompliance. Holmes's approach is a useful  heuristic, but much of our law is based on a  contrary premise: that rules are effective, and  must be implemented in good faith, even if there  is no stated penalty. See Kurowski v. Krajewski,  848 F.2d 767, 774-75 (7th Cir. 1988). The first  amendment says "Congress shall make no law . . .  abridging the freedom of speech" (there's that  word again), and Art. I sec. 2 cl. 3 specifies  that a census "shall be made within three Years  after the first Meeting of the Congress of the  United States, and within every subsequent Term  of ten Years" (a "shall" plus a deadline); no one  believes that the Constitution's failure to spell  out what happens if Congress contravenes these  rules means that Congress is entitled to  contravene them! The United States "shall"  publish "from time to time" a statement of  accounts. Art. I sec. 9 cl. 7. When holding that  no one has standing to obtain judicial review of  a claim that the United States has violated this  rule, the Supreme Court emphasized that political  actors nonetheless are obliged to follow it.  United States v. Richardson, 418 U.S. 166, 179  (1974). Claims under the Guaranty Clause, Art. IV  sec. 4, are not justiciable, butthe lack of  enforcement does not imply that the political  branches may ignore their obligations. Surely  courts would not say that, because no statute  attaches a penalty to judges' failure to apply  correct rules of law on collateral review, judges  are free to disregard the entire Antiterrorism  and Effective Death Penalty Act (of which  sec. 2244 is a part). Yet that proposition is  logically identical to Siggers' treatment of  sec. 2244(b)(3)(D).


18
The omission of a consequence from  sec. 2244(b)(3)(D) means only that the courts must  select a consequence in common-law fashion.  Perhaps the right remedy is mandamus by a higher  court. Perhaps it is the dismissal of the  application, after the fashion of Carlisle v.  United States, 517 U.S. 416 (1996); United States  v. Addonizio, 442 U.S. 178 (1979); United States  v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985); and  Gaertner v. United States, 763 F.2d 787 (7th Cir.  1985)--though I could understand a holding that  delay does not deprive the court of authority to  grant the application eventually. Cf. Brock v.  Pierce County, 476 U.S. 253 (1986) (observing  that the remedy for delay in administrative law  need not be the elimination of the agency's power  to act, but not questioning the proposition that  a statutory deadline is nonetheless binding).  Perhaps the best response to the short time for  action is a generous attitude toward the  uncertainty that abbreviated decisionmaking  produces (applications should be granted in close  cases). Perhaps, to the contrary, courts should  take a stingy attitude: a request for leave to  conduct a third round of litigation could be  denied unless within 30 days the court comes to  believe that it has fair chance of success. All  of these are possible, and judges reasonably  could disagree about which to choose. But a  deadline without an explicit penalty for delay is  still a deadline, which must be followed, however  difficult it may be to decide how to proceed.


19
Last year we encountered another statute,  effective two days after sec. 2244, specifying a  time limit. One part of the Prison Litigation  Reform Act provides that prospective relief  concerning the operation of prisons is  automatically stayed 30 days after a party moves  to modify the decree. 18 U.S.C. sec. 3626(e)(2).  The sixth circuit held in Hadix v. Johnson, 144  F.3d 925, 944-46 (6th Cir. 1998), that sec. 3626  (e)(2) is subject to equitable alteration by  federal courts. Addressing the same issue, we  disagreed with Hadix, concluding instead that the  language of sec. 3626(e)(2) is too clear to permit  common-law modifications. French v. Duckworth,  178 F.3d 437, 441-43 (7th Cir. 1999), cert.  granted, 120 S. Ct. 578 (1999). That seems to me  equally true of sec. 2244(b)(3)(D). The panel in  French went on to hold that sec. 3626(e)(2) is  unconstitutional, a conclusion with which I  disagreed, see 178 F.3d at 448-53 (dissenting  from the denial of rehearing en banc). Right or  wrong substantively, French shows the proper way  to reason about a time limit for judicial action.  We took sec. 3626(e)(2) seriously, even though  that meant its doom.


20
Our failure to act on Gray-Bey's application is  more regrettable than the declaration of  unconstitutionality in French, for the Supreme  Court will have the last word on sec. 3626(e)(2).  But "[t]he grant or denial of an authorization by  a court of appeals to file a second or successive  application shall not be appealable and shall not  be the subject of a petition for rehearing or for  a writ of certiorari." 28 U.S.C.  sec. 2244(b)(3)(E). Perhaps this language, unlike  sec. 2244(b)(3)(D), does leave wriggle room: the  "grant or denial" is not reviewable, but a  refusal to issue a timely decision may be  reviewed by mandamus or a petition for certiorari  before judgment. Perhaps, even though the "grant  or denial of an authorization" is not reviewable,  any relief provided by the district court  ultimately is subject to review of antecedent  issues, including the question whether  authorization should have been granted. Perhaps,  too, the Supreme Court's decision in French may  cast light on the propriety of my colleagues'  action. As a practical matter, however, a court's  failure to implement sec. 2244(b) (3)(D) in a  given case is conclusive: the time it would take  the Solicitor General or comparable state  official to file a petition for mandamus, and the  Supreme Court to issue a writ, may exceed the  additional time before the court issues a  decision.


21
Although the majority cites Vial, Siggers,  Galtieri, and Rodriguez, it does not endorse  their reasoning (as opposed to their results).  Instead it offers a broader proposition, which  amounts to the conclusion that Congress just  can't set deadlines for litigation--not because  the Constitution liberates judges from time  limits (the conclusion of French) but because  judges frequently exercise equitable powers  concerning many statutes that include the word  "shall." I grant that occasionally the word  "shall" is non-mandatory when read in context,  but I do not think that cases such as Younger v.  Harris, 401 U.S. 37 (1971), and Buford v. Sun Oil  Co., 319 U.S. 315 (1943), which deal with comity  among judicial systems, offer much help on the  question whether a statute saying that a court  "shall" do something "not later than 30 days"  permits the court to take more than 30 days. Time  limits traditionally have been strictly enforced  in federal law. E.g., Browder v. Director,  Department of Corrections, 434 U.S. 257 (1978);  United States v. Locke, 471 U.S. 84 (1985); Lampf  Pleva Lipkind Prupis & Petigrow v. Gilbertson,  501 U.S. 350 (1991); Carlisle; Addonizio.


22
Congress did not repeal the All Writs Act, 28  U.S.C. sec. 1651, when enacting sec. 2244(b)(3)(D),  a fact that my colleagues deem significant, but  no one thinks that sec. 1651 is a license to  ignore statutory rules. Pennsylvania Bureau of  Correction v. United States Marshals Service, 474  U.S. 34 (1985), holds that sec. 1651 does not  permit a court to disregard 28 U.S.C. sec. 2243.  I cannot imagine why judges would have more power  to modify sec. 2244 than they do to modify  sec. 2243. Section 2266, another part of the AEDPA,  also is illuminating: that statute allows judges  to extend deadlines when certain conditions are  satisfied; sec. 2244(b) (3)(D) does not. Ordinary  principles of interpretation lead to the  conclusion that the circumstances justifying an  extension under sec. 2266 do not justify extra  time under sec. 2244(b). Otherwise what's the  point of the differences between the two  statutes?


23
In the end, the majority's approach rests on  the proposition that federal judges have  discretion to depart from federal statutes for  good reasons--and that judges, rather than the  political branches, define which reasons are  "good." Few propositions could be more subversive  of the rule of law. Pennsylvania Bureau of  Corrections is one among many cases denying that  federal courts have any such power. The  equitable-discretion approach taken in Hadix (and  by the Solicitor General in French) is far more  circumscribed and cannot be reworked to fit  sec. 2244(b)(3) (D). It is that courts may issue  injunctions preserving the status quo unless  Congress cancels that authority expressly.  Although sec. 3626(e)(2) says that the existing  injunction is automatically stayed once 30 days  have run, it does not preclude judges from  issuing another, identical injunction under their  general equitable powers pending further  litigation. That seems to me too much an evasion  of sec. 3626(e)(2) to be sound. (Likewise, the  maneuver in Triestman v. United States, 124 F.3d  361, 366-67 (2d Cir. 1997), of denying the  application pro forma and immediately granting  rehearing in order to afford more time for  decision is a transparent evasion of  sec. 2244(b)(3)(D) because the court's order does  not reflect an actual decision as opposed to a  bookkeeping entry. Galtierihas the virtue of  candor, and the second circuit apparently ceased  using Triestman's approach after deciding  Galtieri.)


24
Right or wrong, reliance on equitable discretion  to preserve the status quo offers no support for  my colleagues' action today. There is no  longstanding "general equitable power" to  authorize applications for second or successive  collateral attacks--the norm is that one is  sufficient--and there is no status quo to  "preserve" by equitable relief; sec. 2244(b) is a  novelty that must be understood on its own terms.  Moreover, the Solicitor General has stressed in  French that equitable discretion to extend the  30-day period depends on a strong substantive  claim for ongoing relief. My colleagues do not  conclude that Gray-Bey has a strong claim that is  likely to prevail on further consideration. His  claim is weak and readily may be decided now.


25
His initial problem--one that does not make my  colleagues' list of four issues to be briefed--is  time. Section 2255 para. 6 provides:


26
A 1-year period of limitation shall apply to a  motion under this section. The limitation period  shall run from the latest of--


27
(1) the date on which the judgment of conviction  becomes final;


28
(2) the date on which the impediment to making  a motion created by governmental action in  violation of the Constitution or laws of the  United States is removed, if the movant was  prevented from making a motion by such  governmental action;


29
(3) the date on which the right asserted was  initially recognized by the Supreme Court, if  that right has been newly recognized by the  Supreme Court and made retroactively applicable  to cases on collateral review; or


30
(4) the date on which the facts supporting the  claim or claims presented could have been  discovered through the exercise of due diligence.


31
Only subsection (3) might authorize Gray-Bey's  application in December 1999, more than six years  after his conviction was affirmed (and more than  three years after Congress added the one-year  period of limitations to the law of collateral  attack). But the "right" that Gray-Bey wants to  assert "was initially recognized by the Supreme  Court" on December 6, 1995, in Bailey v. United  States, 516 U.S. 137 (1995), more than four years  before Gray-Bey filed his application. Far from  being unavailable to Gray-Bey until now, Bailey  came in time for Gray-Bey to present it on his  first collateral attack. Gray-Bey lost not  because Bailey is prospective only, but because  he neglected to make the argument in the district  court even though certiorari had been granted in  Bailey on April 17, 1995, and the issue had been  percolating for years. 156 F.3d at 742-43.


32
Gray-Bey now points to Bousley v. United  States, 523 U.S. 614 (1998), which held that  implementation of 18 U.S.C. sec. 924(c)(1) (the  statute construed in Bailey) can lead to  constitutional problems cognizable on collateral  attack. Improper advice to a defendant pleading  guilty could make the plea unintelligent, Bousley  held; similarly, a trial record that lacks  evidence adequate to establish all elements of  the offense (as Bailey defines them) could  support collateral relief to avoid imprisoning an  innocent person. But these are not new principles  of constitutional law. Davis v. United States,  417 U.S. 333 (1974), establishes that actual  innocence justifies collateral relief under  sec. 2255, cf. Jackson v. Virginia, 443 U.S. 307  (1979), and the rule that involuntary guilty  pleas may be set aside is even older. More than  a year before Bousley, we applied these  principles in collateral attacks based on Bailey.  E.g., Stanback v. United States, 113 F.3d 651  (7th Cir. 1997). Gray-Bey's first collateral  attack failed solely because he should have raised the issue sooner; that conclusion is  incompatible with his current submission that  1997 or 1998 was too soon to invoke Bailey.  Nothing that happened in 1998 restarts the time  for a collateral attack. The initial principle of  Bailey, which is the crucial time under sec. 2255  para. 6, dates from 1995, and the retroactivity  rules predate Bousley.


33
The questions that my colleagues flag for  counsel's attention also have straightforward  answers. Logically the initial question (though  it is No. 4 in the majority's list) is whether a  sec. 2255 petition is necessary, or whether  instead Gray-Bey may use 28 U.S.C. sec. 2241, to  which the time limits and prior-authorization  rules do not apply. The answer must be that  sec. 2255 is the required route. Section 2241 is  unavailable "unless it also appears that the  remedy by motion is inadequate or ineffective to  test the legality of his detention." 28 U.S.C.  sec. 2255 para. 5. Judicial emphasis must be on  "test": a sec. 2255 motion is not "inadequate or  ineffective" merely because the petitioner loses.  Nor do the changes made by the AEDPA, which limit  the number of sec. 2255 motions (and the time to  file them) render sec. 2255 inadequate or  ineffective to test the lawfulness of detention.  No one is entitled to more than one collateral  attack.


34
In re Davenport, 147 F.3d 605, 609 (7th Cir.  1998), requires us to ask whether Gray-Bey's  initial sec. 2255 motion gave him "a reasonable  opportunity to obtain a reliable judicial  determination of the fundamental legality of his  conviction and sentence." In Davenport this court  held that when the basis of the claim has not  been legally established at the time of the first  petition, the prisoner has not received a  reasonable opportunity. The first petition filed  by Sherman Nichols (one of two petitioners in  Davenport) was resolved before the Supreme Court  issued Bailey, and the law in this circuit was  contrary to the way Bailey interpreted the word  "use" in sec. 924(c)(1). Nichols therefore could  not have obtained relief by a sec. 2255 petition.  Gray-Bey, however, is differently situated.


35
Gray-Bey filed his first sec. 2255 petition  before Bailey, but final decision came later. Had  Gray-Bey properly preserved an argument about the  meaning of "use" in sec. 924 (c)(1), it would have  been decided by this court, under correct  principles of law, on his first sec. 2255  petition. Had we erred, the Supreme Court could  have corrected us by certiorari. The reason Gray-  Bey did not receive a decision was his own  default. It is impossible to say that "the remedy  by motion [under sec. 2255] is inadequate or  ineffective to test the legality of his  detention" when the only shortcoming is the  petitioner's omission of an issue. That omission  is not a problem in the remedy; it is a problem  in litigation strategy. It is, indeed, a fatal  problem, for when Bousley held that Bailey can  support collateral review, the Justices stressed  that the legal arguments must have been presented  to the district court--and they added that the  weight of existing precedent against a position  does not justify omission. Bousley, 523 U.S. at  622-23.


36
Next in logical sequence, if Gray-Bey's  application were timely, would be the question  whether a successive petition may be justified  under sec. 2255 para. 8(2) on the ground that  Bailey is "a new rule of constitutional law, made  retroactive to cases on collateral review by the  Supreme Court, that was previously unavailable."  Bousley, which was decided while Gray-Bey's prior  appeal was pending, holds that Bailey claims may  be raised on collateral review, and that Bailey  may be applied retroactively to at least some  cases (though perhaps Bousley himself was not a  beneficiary, having forfeited his claim). There  is a nice question about the scope of sec. 2255  para. 8(2): Does the successive petition have to  assert reliance on a "new rule," or is an old  rule newly made retroactive enough? From Gray-  Bey's perspective, however, Bailey is not a "new  rule", as I have already observed; he argued it  in 1997when briefing his appeal. Had we rejected  that claim on the ground that Bailey does not  apply retroactively, then it would be tempting to  say that Bousley reopens the door. But because  Gray-Bey lost on forfeiture rather than the  merits, one would think that the kind of new rule  adequate to start a new period must be one that  retroactively changes the law of forfeiture,  rather than a decision making explicit that  Bailey "applies."


37
We need not wrestle this one to the ground,  however, because Bousley does not make  retroactive a new rule "of constitutional law".  Bailey resolved an issue of statutory  interpretation, and Bousley observed that the  proper understanding of sec. 924(c)(1) may lead to  collateral relief to the extent that a statutory  error gives rise to a constitutional flaw. In  Bousley itself the potential flaw was an  involuntary guilty plea (made involuntary by the  fact that the defendant did not know the elements  of the offense to which he was pleading). This is  related to the approach our court earlier adopted  for Bailey issues in Stanback. Similarly a  statutory problem could give rise to a  constitutional one if the record did not contain  enough evidence to permit a rational trier of  fact to find guilt beyond a reasonable doubt. As  Bousley observed, however, defendants trying to  take advantage of that possibility have a heavy  burden, for they must show not only that the  record fails to establish "use" but also that  they did not "carry" the weapon, the other way to  commit the crime. 523 U.S. at 624. See also  Muscarello v. United States, 524 U.S. 125 (1998)  (a drug dealer who does not actively "use" a gun  in that crime nonetheless "carries" it if the  weapon is moved about, even in the trunk of a  car). We held accordingly in Buggs v. United  States, 153 F.3d 439, 443-45 (7th Cir. 1998),  that deficiency of evidence can convert a  statutory Bailey argument into a constitutional  one, but only if the record really is deficient,  and then only if the point has been properly  preserved. (Note 4 of Buggs adds that Hohn v.  United States, 524 U.S. 236 (1998), contributes  nothing to the analysis of this question. The  only question before the Court was whether a  request for a certificate of appealability is a  "case in" a court of appeals for certiorari  purposes; the Court said nothing about the merits  of the claim and instructed the eighth circuit to  review them in the first instance in light of the  Solicitor General's position--which was  functionally the same as the position we adopted  in Buggs.)


38
Does Bousley make retroactive a "new rule of  constitutional law" that the evidence must be  sufficient to support the charge? Not at all;  that rule has been around since Davis and  Jackson. Gray-Bey's second principal contention,  that the jury instructions in his case did not  anticipate Bailey, is not even a constitutional  argument, for the reasons given in Young v.  United States, 124 F.3d 794, 798-99 (7th Cir.  1997). See also, e.g., Gilmore v. Taylor, 508  U.S. 333, 342 (1993) (an error in stating the  elements of the offense in jury instructions is  not a constitutional defect). I therefore  conclude that a successive petition cannot be  authorized under sec. 2255 para. 8. Gray-Bey must  live with the forfeiture in his prior petition,  just as our published opinion concludes.

