In re Johnson, 814 F.3d 1259

Anthony Johnson filed a pro se application for authorization to file a second or successive 28 U.S.C. § 2255 motion based in part on Johnson v. United States (2015).
Under 28 U.S.C. § 2244(b)(3)(C) he must make a prima facie showing that his application meets § 2255(h)’s gatekeeping standards (new evidence or new retroactive constitutional rule).
Section 2244(b)(3)(D) directs courts of appeals to grant or deny such authorization "not later than 30 days" after filing; the panel considered whether that timeframe is mandatory.
The Supreme Court granted certiorari in Welch v. United States to decide whether Johnson announced a new substantive rule that is retroactive on collateral review; Welch’s resolution could control Johnson-related successive petitions.
The Eleventh Circuit concluded the 30-day limit is hortatory, not absolute, and may be extended in extraordinary circumstances; it held Johnson’s application in abeyance pending the Supreme Court’s decision in Welch.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 2244(b)(3)(D)’s 30‑day rule is mandatory	Johnson: court should follow statute and decide within 30 days	Government: (implicitly) timing need not override ability to decide properly; other circuits treat 30 days as non‑mandatory	30‑day requirement is hortatory; courts may exceed it in extraordinary circumstances
Whether extraordinary circumstances justify abeyance pending Welch	Johnson: needs time for Supreme Court retroactivity ruling to avoid losing benefit of Johnson	Government argued retroactivity favoring petitioners (enhancing need for coordinated resolution)	Convergence of factors here is extraordinary; abeyance is appropriate
Whether equitable/All Writs Act authority permits schedule beyond 30 days	Johnson: equitable concerns and judicial economy support delay	(Respondent) argued need for prompt disposition but did not show prejudice from abeyance	Court may use All Writs Act and inherent equitable powers to hold applications in abeyance
Whether prior Eleventh Circuit dicta (In re Henry) requires strict 30‑day compliance	Johnson: Henry not controlling because it was dicta and involved exigent, expedited relief	Government: relied on precedent but acknowledged procedural differences	Henry’s remarks were dicta; not binding on the timing issue

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) ("shall" may sometimes be hortatory rather than mandatory)
Nken v. Holder, 556 U.S. 418 (2009) (appellate courts have inherent authority to manage jurisdiction, including abeyance)
Holland v. Florida, 560 U.S. 631 (2010) (equitable principles govern habeas corpus and limit statutory displacement of equitable authority)
Panetti v. Quarterman, 551 U.S. 930 (2007) (AEDPA should be interpreted consistent with habeas principles to avoid foreclosing review)
Gray‑Bey v. United States, 201 F.3d 866 (7th Cir. 2000) (30‑day period may be extended in cases requiring reasoned adjudication)
In re Davis, 565 F.3d 810 (11th Cir. 2009) (Eleventh Circuit previously scheduled briefing and argument beyond 30 days)
In re Lambrix, 776 F.3d 789 (11th Cir. 2015) (recognizing rehearing procedures that may extend resolution beyond 30 days)
Clark v. Martinez, 543 U.S. 371 (2005) (choose statutory construction avoiding serious constitutional problems)
R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) (equitable powers permit postponing constitutional adjudication to avoid waste)
Felker v. Turpin, 518 U.S. 651 (1996) (procedures for certifying questions and interplay between courts when resolving successive petitions)