In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4131

Anthony J. Gray-Bey,

Petitioner,

v.

United States of America,

Respondent.



On Application for an Order Authorizing
a Second or Successive Petition for Collateral Review


Argued March 1, 2000--Decided April 13, 2000




  Before Coffey, Easterbrook, and Diane P. Wood, Circuit
Judges.

  Per Curiam. Ten years ago, a jury found Anthony
Gray-Bey guilty of drug offenses, plus using or
carrying a firearm during and in relation to his
drug trafficking. See 18 U.S.C. (1994 ed.)
sec.924(c). The firearm conviction added 60
months’ imprisonment to Gray-Bey’s term. We
affirmed his conviction and sentence on direct
appeal, 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
appeal from the denial of relief under sec.2255,
Gray-Bey contended among other things that he had
not used the firearm "actively," so that Bailey
v. United States, 516 U.S. 137 (1995), required
his sec.924(c) conviction to be vacated. We held,
however, that Gray-Bey had forfeited that
contention by not raising it earlier. 156 F.3d at
742-43.

  Next Gray-Bey asked the United States District
Court for the Eastern District of Arkansas (where
his prison is located) to issue a writ of habeas
corpus under 28 U.S.C. sec.2241. That court
transferred the petition to us after concluding
that Gray-Bey is attempting to evade the
limitations on second or successive collateral
attacks under sec.2255, which may be pursued only
after approval by the court of appeals that has
jurisdiction over the district court that imposed
the sentence. 28 U.S.C. sec.sec. 2244(b), 2255
para.8. We dismissed Gray-Bey’s request without
prejudice because he had not provided the
information required by Circuit Rule 22.2(a).
Gray-Bey filed anew, this time calling his papers
an application for leave to commence a second
collateral attack under sec.2255. We appointed
counsel, identified some questions that require
attention, and set the matter for oral argument.
Gray-Bey v. United States, 201 F.3d 866 (7th Cir.
2000).

  Counsel sought to enlarge Gray-Bey’s options by
asking us to recall the mandate in order to
redecide the first collateral attack, rather than
to decide whether to authorize a second. By
recalling the mandate in the prior case, counsel
contended, we could address the merits of Gray-
Bey’s Bailey argument without regard to sec.sec.
2244(b) and 2255 para.8. Given Calderon v.
Thompson, 523 U.S. 538, 554-59 (1998), however,
recalling a mandate more than a year after its
issuance just to apply the benefit of hindsight
would be an abuse of discretion. What is more,
Gray-Bey’s motion to recall the mandate is
effectively an application for leave to pursue
another collateral attack. In Calderon the court
of appeals recalled its mandate sua sponte in
order to hear the case en banc, curing procedural
glitches that stymied consideration of an earlier
request for that step. By contrast, Gray-Bey has
filed a motion to recall the mandate on
substantive grounds. As the Court remarked in
Calderon, "a prisoner’s motion to recall the
mandate on the basis of the merits of the
underlying decision can be regarded as a second
or successive application for purposes of
sec.2244(b). Otherwise, petitioners could evade
the bar against relitigation of claims presented
in a prior application, sec.2244(b)(1), or the
bar against litigation of claims not presented in
a prior application, sec.2244(b)(2). If the court
grants such a motion, its action is subject to
[the] AEDPA". 532 U.S. at 553. See also, e.g.,
Johnson v. United States, 196 F.3d 802, 805 (7th
Cir. 1999); Banks v. United States, 167 F.3d
1082, 1084 (7th Cir. 1999); Burris v. Parke, 130
F.3d 782, 784 (7th Cir. 1997). Because it would
be proper to recall the mandate only if it is
proper to authorize a second or successive
collateral attack, the motion is pointless. We
deny it and move to the questions posed by
sec.2244(b) and sec.2255 para.8.

  Our order setting the matter for argument asked
the parties to brief multiple issues, but the
answer to one of them is dispositive. Section
2255 permits the court to authorize a second
petition under that section only if the motion
identifies newly discovered evidence establishing
his innocence (which Gray-Bey does not contend)
or "a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable."
28 U.S.C. sec.2255 para.8(2). (Section
2244(b)(2)(A) creates a functionally identical
requirement.) Bailey has been made retroactive to
cases on collateral attack, see Bousley v. United
States, 523 U.S. 614 (1998), and its rule was
unavailable to Gray-Bey at the time of his trial,
direct appeal, and the beginning of his
collateral attack, for Bailey was not decided
until December 6, 1995, and announced a principle
that departed from the rule previously applied in
this circuit. By the time Bailey came down, Gray-
Bey’s initial collateral attack was on appeal. He
had neglected to raise the issue in the district
court, although there was a conflict among the
circuits on the subject, and the Supreme Court
granted certiorari in Bailey on April 17, 1995,
while Gray-Bey’s collateral attack was pending.
But for purposes of sec.2255 para.8(2) a rule is
"unavailable" until the Supreme Court renders its
decision, for it is the high court’s decision
that must be held retroactive (as Bailey was held
retroactive by Bousley). What stymies Gray-Bey’s
application, however, is the opening clause of
para.8(2): that the Supreme Court must have
announced a "new rule of constitutional law".
Bailey is not a rule of constitutional law; and
although Bailey sets up constitutional claims,
none of these is "new."

  All Bailey does is construe the meaning of
"use" in sec.924(c) to entail "active" rather
than "passive" employment of a gun. Bailey does
not purport to be anything other than a statutory
decision; no one doubts that the Constitution
permits Congress to penalize possession of a
firearm during and in relationship to a drug
offense. Cf. Muscarello v. United States, 524
U.S. 125 (1998). Bailey held that the version of
sec.924(c) applicable to Gray-Bey did not
proscribe simple possession. (Section 924(c) was
amended in November 1998 to prohibit possessing
a firearm "in furtherance of" a drug offense or
crime of violence. Pub. L. 105-386, 112 Stat.
3469.) A statutory decision may have
constitutional fallout, but such consequences do
not make Bailey itself a "new rule of
constitutional law". Young v. United States, 124
F.3d 794, 798-99 (7th Cir. 1997); In re
Davenport, 147 F.3d 605, 610-11 (7th Cir. 1998).
See also, e.g., Gilmore v. Taylor, 508 U.S. 333,
342 (1993) (error in stating the elements of the
offense in jury instructions is not a
constitutional flaw). Bailey did not change
sec.924(c), or even the Supreme Court’s
understanding of that statute. It just determined
what sec.924(c) meant from its enactment through
1998. Rivers v. Roadway Express, Inc., 511 U.S.
298 (1994); cf. Harper v. Virginia Department of
Taxation, 509 U.S. 86 (1993).

  Bousley considered one of the constitutional
consequences of this statutory decision:
misunderstanding the elements of an offense when
pleading guilty may render the plea
unintelligent. Similarly, a trial record that
lacks evidence adequate to establish all elements
of the offense (as correctly understood) could
support collateral relief to avoid imprisoning an
innocent person. But these constitutional effects
of a statutory decision were not created by
Bailey and are not "new" by any measure. 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 defective 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).

  Nothing in Hohn v. United States, 524 U.S. 236
(1998), implies that Bailey created a new
constitutional rule, or that any of the
constitutional consequences of statutory
interpretation is a "new rule of constitutional
law". 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 v. United States,
153 F.3d 439, 443-45 (7th Cir. 1998). See also
id. at 443-44 n.4.

  Because Bailey is not a constitutional rule,
and because none of the constitutional
consequences of Bailey’s interpretation of
sec.924(c) is a "new rule of constitutional law"-
-as opposed to an application of old
constitutional rules to new situations--Gray-
Bey’s application for permission to commence a
second collateral attack must be denied. It does
not meet the substantive standards of sec.sec.
2244(b)(2)(A) and 2255 para.8.

  What then of sec.2241, which was not amended by
the Antiterrorism and Effective Death Penalty
Act? See Felker v. Turpin, 518 U.S. 651 (1996);
Valona v. United States, 138 F.3d 693 (7th Cir.
1998). Our order asked the parties to brief this
compound question:
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?

Having given this subject some additional
thought, we now conclude that the decision is not
ours to make, and we therefore do not answer
either part of this question. A court of appeals
may authorize (or decline to authorize) the
filing of a successive motion under sec.2255, but
Gray-Bey does not need our authorization to file
a petition under sec.2241. We stressed in Valona
that a district court presented with a petition
for a writ of habeas corpus under sec.2241 should
analyze that petition on its own terms, without
assuming that whatever cannot proceed under
sec.2255 also cannot proceed under sec.2241--
though as Felker observes a court in which a
petition under sec.2241 is filed must treat the
new successive-petition rules as guideposts. Cf.
Cooper v. United States, 199 F.3d 898, 901 (7th
Cir. 1999). Gray-Bey began these proceedings by
filing a sec.2241 petition in the Eastern
District of Arkansas, and we think that he is
entitled to a decision in the regular course--
that is, by a district judge, followed by
appellate review and the opportunity to seek
review by the Supreme Court--under that statute.

  A transfer would be pointless if Gray-Bey’s
request for habeas corpus were doomed by sec.2255
para.5, which blocks a prisoner’s resort to
sec.2241 unless "the remedy by motion [under
sec.2255] is inadequate or ineffective to test
the legality of his detention." One could read
this language, as the opinion dissenting from the
briefing order did, to preclude Gray-Bey’s
challenge, because he had an opportunity to raise
the Bailey challenge earlier. But it is possible
to understand sec.2255 para.5 to permit the
challenge in the light of sec.2255 para.8, which
the AEDPA added. When Congress added the language
that requires prior appellate approval, it may
have overlooked the sort of situation Gray-Bey
presents--the interaction of old constitutional
rules with new statutory interpretations. Bousley
and Davis show that the kind of claim Gray-Bey
presents is one for which sec.2255 provides a
remedy. Indeed, nine of his co-defendants, who
raised Bailey contentions in their initial
collateral attacks, have had their sec.924(c)
convictions vacated. (The status of his remaining
three confederates is unclear.) Until the AEDPA
Gray-Bey, too, would have been entitled to a
disposition on the merits, for his second
sec.2255 application could not have been
dismissed as an abuse of the writ. Whether he
could have obtained relief is more difficult;
perhaps the prosecutor gave in too easily when
Gray-Bey’s partners in crime filed their
petitions. Muscarello, which was released after
the prosecutor consented to other defendants’
requests, may stiffen prosecutorial resolve. At
all events, however, no one doubts that until the
AEDPA Gray-Bey could have had a decision.

  Section 2255 para.8 closes off the old route to
decision, but without modifying sec.2255 para.5,
so perhaps Gray-Bey and similarly situated
prisoners have an escape hatch after all for the
kind of claims that otherwise justify successive
requests for collateral relief and do not smack
of abuse of the writ. But perhaps sec.2255 para.8
means instead that prisoners today are never
entitled to multiple collateral attacks, so that
their inability to obtain another round of
litigation cannot demonstrate that sec.2255 as a
whole is "inadequate or ineffective to test the
legality of . . . detention." We mention these
arguments pro and con not to resolve them--that
is not our function--but simply to show that the
transfer is serious, rather than a source of
busywork for the Eastern District of Arkansas and
the Eighth Circuit, to which Gray-Bey’s appeal
ultimately will lie.

  The request for permission to file a second
motion under sec.2255 is denied. On the authority
of 28 U.S.C. sec.1631 the papers are transferred
to the United States District Court for the
Eastern District of Arkansas for consideration as
a petition for a writ of habeas corpus under
sec.2241.
