Anthony J. Gray-Bey v. United States

of peremptory challenges; (the unlike in Osig- insider) CHA were fellow participants bade, attorneys specifically told the in a Konex Summit Meeting. Oesterman court that the error resulted in the seating also used Lauer aas reference (playing jurors to whom they have object- would the role of a investor”) “satisfied to facili- ed. These are important differences. tate his sales. This justifies evidence When, under these circumstances, district court's finding that Oesterman par- court commits the legal error of failing to ticipated in the scheme as a whole and that apply the principle of implied bias in its its activities were reasonably foreseeable administration of challenges cause, to him. In the absence of clear error with structure of the jury selection process it- respect to the relevant calculation, conduct is compromised self and the Underwood there is no reason to disturb Oesterman’s n applies. sentence.

We therefore conclude that the convic- V tions of Polichemi, defendants Neal, Olson, and Padilla must be reversed and the case For the stated, reasons we therefore must be remanded for a new trial. Reveese the convictions of Joseph Poliche- mi, Lyle Neal, E. Olson, Oscar W.

IY Charles Padilla and Remand for further proceedings consistent with opinion. The only remaining issue we need con- We AffiRm the sentence imposed sider, on Larry light of our disposition of those P. Oesterman. four appeals, is Oesterman’s challenge to his sentence. Oesterman pleaded guilty to

one count fraud, of wire without any plea

agreement. Although he was personally

responsible for only $450,000,which he had

obtained from investors, victim the district

court relied on the relevant conduct provi-

sions of the Sentencing Guidelines to hold him accountable for the entire mil- $10-20 Anthony J. GRAY-BEY, Petitioner, lion loss. It found joined that he had conspiracy and increased his offense level following 2Fl.l(b). U.S.S.G. UNITED STATES of America, Respondent.

We review the district court’s assess- ment of relevant conduct for error, clear No. 99-4131. including its determination ques- tions States Court Appeals, whether the defendant participated Seventh jointly Circuit. undertaken criminal activity and whether the actions of the others were Jan. 2000* reasonably foreseeable to him. See Unit- ed v. Edwards, (7th Cir.1997); see also U.S.S.G. § 1B1.3(1)(B). The record showed that

Oesterman was a salesman of fraudulent

securities Konex. Neal solicited the investment,

CHA and that investment was

foreseeable Oesterman according to evi-

dence showing that Oesterman and Lauer

* This decision originally issued as published an un- opinion in accordance with published order. It being is now reissued as C.R.53(c)(l)(i) (ii). Levenstam, Jenner

Barry Federal Gray-Bey, Anthony J. IL, & Block, Chicago, AR, City, Institution, Forrest Correctional for Petitioner. of the Unit- Office Lipscomb, J. William WI, Milwaukee, for Attorney, States

ed Respondent. EASTERBROOK, COFFEY,

Before WOOD, Judges. Circuit P. DIANE Judge. WOOD, Circuit P. DIANE for petition filed Gray-Bey Anthony States the United corpus of habeas writ District Eastern for the District construed court The district Arkansas. filed petition aas successive petition from- authorization proper without the mo- and transferred appeals court an as considered to be court to this a successive file for leave application In § 2255. 28 U.S.C. under motion court this October dated Order prejudice without application dismissed has 22.2. Rule Circuit additional with application another filed materials. supplemental this for calls governing Gray-Bey’s act court in this case filing, its within See January before initial 2244(b)(3). The power court is whether us extend any circumstances application. disposition final that such circuits sister agree We 30-day period exists, cases few those be extended cannot adjudication reasoned require statutory period. within resolved Barrett, 178 See, e.g., Cir.1999) (stating 30- (1st 42 n. F.3d grant appeals limit day time to file authorization denying ing corpus habeas Rod quoting mandatory”), “precatory, Cor Bay State Superintendent, riguez (1st Cir. Ctr., F.3d rectional Siggers, 1998); re In language Cir.1997) (reading the 2244(b)(3) as “hortatory or advisory grounded well in the law. For rather than mandatory”); Galtieri v. Unit example, the Supreme Court has consis- ed (2d 128 F.3d Cir.1997) tently taken approach we and our sis- (ruling § 2244(b)(3) must be applied ter circuits have adopted 2244(b)(3) with “flexibility” and concluding that in the cases establishing the abstention courts should not forego adjudi “reasoned doctrine. As is the case 2244(b)(3), cation” in the small number of cases that the statute in which Congress confers gen- cannot be resolved within days); In re eral jurisdiction federal on the lower feder- Vial, 115 F.3d 1194 n. 3 Cir. al courts is worded in mandatory language. 1997) (noting that the court the exceeded See 28 (“The U.S.C. district courts 30-day limit concluding but im the shall have original jurisdiction of all civil portance of justified the issue the delay).** actions arising under Constitution, the In a small number of extraordinary cases, laws, treaties of the the courts perform cannot their assigned States.”)(emphasis added). That phrasing judicial function under the Constitution might seem to leave the federal no courts without a more thorough exploration of the choice but to decide questions within legal their arguments possible than is in the jurisdiction. Nevertheless, the statutory Court period. The alternative —un recognized that in certain informed cases it arbitrary wiser grants or denials of to decline deciding applications case, merits of unacceptable in system —is either for period strives always time operate or altogether. under the See rule law. Railroad Co., Comm’n Pullman 496, 500, U.S. 61 S.Ct. 85 L.Ed. 971 Our dissenting colleague believes that (1941) (“The resources of equity are equal such arbitrariness has been by commanded adjustment that will avoid the waste Congress, because it used the word “shall” of a tentative decision as well as in fric- 2244(b)(3). U.S.C. § With ah due tion of a premature constitutional adjudica- respect, we believe that this reading fails tion.”); Co., Sun take into Oil account U.S. Burford inherent 315, 318, 63 powers S.Ct. 1098, of the 87 L.Ed. federal powers that courts — (1943) (considering been recognized abstention by to be “a sister circuits in matter of equitable their own discretion”); acknowledgments Younger both that Harris, the 30-day applies overwhelm- ing majority (1971) cases, L.Ed.2d 669 but (invoking that the comity as a retains power reason to override it restrain when com- courts acting pelling inequity circumstances demand enjoining action. most pending state This is not the extraordinary criminal proceedings); lawless Pennzoil Co. v. conclusion that our colleague Inc., claims it Texaco is. 1, 10, To the contrary, it reflects a reconciliation (1987) L.Ed.2d 1 (requiring federal between the commands of legislation and court abstention in civil proceedings to the exigencies judicial decisionmaking avoid intrusion into the Texas sys- ** procedural The mechanism the court uses 2244(b)(3). §with important The more point secure time for briefing and full consideration decision, however, any proceed- may vary. In Triestman v. United ings at all could occur after expiration (2d Cir.1997), the Second the 30-day period. Whether such consider- Circuit denied the motion for relief within 30 ation is done through the steps formal fol- days, thereby complying with statutory lowed in Triestman or the straight more for- period, then, but recognizing the need for ward one of simply extending the time limit further briefing consideration, sua sponte (the approach taken the Second Circuit in stayed its mandate and ordered briefing re- garding whether the court should reconsider Galtieri and the one we today), take the out- come is the same. We therefore see no obsta- its Triestman, decision. In the Second Circuit cle to the Triestman approach, but equally do position took the that the formal deny- order not believe the compels it. ing compliance sufficed for § 1491. Act, 28 U.S.C. Tucker “shall” use of Moreover, the tem). though even so do free to felt necessarily always Constitution mention no made laws For exam- mandatory. to be understood im Congress here: so Act. Just Tucker judi- III, “[t]he 2§ states Article ple, limit 30-day posed things, to various extend” Power cial All repeal 2244(b)(3), it did controver- questions including federal 1651; Congress Act, Writs states different citizens between sies retain courts that the recognized thus juris- However, federal added). (emphasis when steps extraordinary take limits full extend diction well too noteWe needed. they are poten- III, despite in Article construc canons established Instead, “shall.” word tial mandate by im Repeals position. this support in con- amount imposed Congress Hill, v. disfavored, TVA see are plication limits which requirement troversy 2279, 57 190, 98 S.Ct. 153, in heard can that cases of number Argentine (1978); also see 117 L.Ed.2d § 1332. see jurisdiction, diversity Shipping Hess Amerad v. Republic we as jurisdiction federal And 429, 428, S.Ct. 109 U.S. 488 Corp., 1875 until granted today was know every is there (1989), and so 818 L.Ed.2d See Judiciary Act. of the passage background that to assume reason 3,1875, 18 Stat. of March Act federal on the conferring powers laws Furthermore, in only situation full force. in is not remain courts This statutes interpret isolation they in can if aof statute reading courts which See, e.g., problems. one might lead constitutional law of the avoid rest from the 440 Chicago, Bishop Catholic either NLRB erroneously, that think, 1313, L.Ed.2d 59 506-07, S.Ct. 99 violated. has been U.S. itself the Constitution clear of a absence (“[I]n the Atchison, (1979) Tope 533 examples, two take To bring intent Congress’ Bd. expression v. Wichita Co. Ry. Fe Santa ka & within schools church-operated in 819-20, teachers S.Ct. 93 Trade, 412 U.S. Board, decline we jurisdiction opinion), (1973) (plurality 350 L.Ed.2d Relations Labor [National construe courts in power a limited recognized call turn in that a manner in Act] a final review pending rates suspend difficult to resolve Court upon Com Commerce Interstate of the order guar out of arising questions sensitive “pro nowas there mission, because part in religion Amendment First antees depriving statutes relevant in the vision point's dissent While, clauses.”). as general of their courts saving such concluded out, to avoid quo status preserve in French possible interpretation Simi review.” pending harm irreparable Cir.), cert. Duckworth, 178 F.3d Reorganization Rail Regional larly, — U.S.-, 120 S.Ct. granted, 128-29, Cases, Act administrative (1999), the L.Ed.2d & (1974), Dames L.Ed.2d different quite here issue limit at time Regan, 453 Moore termi command substantive from (1981), the considered injunctions nate constitutionality stat saved to deviate reason no seeWe French. Eco Emergency (the International utes cir sister conclusion unanimous 1626, U.S.C. Act, Stat. Powers nomic 30-day rigidity and assume cuits Ill) Dames (1976 Supp. ed. §§ may not Congress period Reorgani Rail Regional Moore & intended. seq. et § 701 Cases, Act zation conclude good reason Indeed, there takings chal Ill)) against Supp. (1970 ed. recognized affirmatively Congress had Congress noting that lenges neces- extraordinary action repealing step independent taken sary in cases, certain which can be found have concluded that the issues presented in another of the statutes governing habe- in this case should not be decided without as corpus. Our dissenting colleague is cor- the benefit of full briefing and adversarial 2244(b)(3) rect that is seemingly clear in presentation. recognize We that Congress its mandate; however, he does not ade- reformed corpus habeas in order to ensure quately take into account the implications that cases swiftly moved toward resolution § 2266, provides also for limita- without unnecessary delay. However, to periods tions for the federal courts to meet Congress’s goal, it is imperative that make decisions on applications and mo- the courts develop procedures clear tions for relief in capital cases. 28 U.S.C. apply will all of these cases. To sodo § 2266. Section provides that a court takes time. Briefly delaying Gray-Bey’s may consider several factors in deciding case—and the few others presenting simi- whether to delay the disposition of an ap- larly complicated and knotty questions— plication for a writ habeas corpus, in- will allow tous ensure that the rules gov- cluding, “Whether the case so unusual erning habeas develop properly and will or so complex, due to the number of defen- facilitate future expeditious treatment of dants, the nature of the prosecution, or the these cases. Taking the extra time to existence of novel questions law, of fact or allow for presentation full of the issues will that it is unreasonable expect adequate make the eventual decision more helpful to briefing within the time limitations estab- future litigants, courts, district lished by subparagraph(A).” 28 U.S.C. future panels of this court. Handling all of §' 2266(a)(l)(C)(ii)(II). Here, our decision these cases on an expedited basis risks to extend the 30-day time limitation is leaving everyone involved in the dark. based precisely on these considerations. As for the merits of the petition, while Our dissenting colleague correctly points we certainly respect the views that our out that the regime for capital cases is dissenting colleague offered, the depth spelled out in greater detail than is the of discussion his treatment required sim- procedure for petitions. successive We, ply underscores the fact that these are however, draw no negative inference from points serious that deserve an open, adver- the lack of symmetry between the two sary presentation. We therefore decline statutes regarding of permis- the implicit invitation either to agree or sible delays. §What 2266 demonstrates disagree with his or conclusions the route is that Congress was not willing to risk a he uses to reach them until after both miscarriage justice in order to achieve sides have been provided the opportunity timeliness at all costs. Congress inserted to brief their positions fully and present the time limitations to avoid delays due to them panel to this at oral argument. We perceived judicial foot dragging and “gen- hereby order the Clerk of the Court to eral congestion of the court’s calendar,” 28 appoint counsel to represent petitioner 2266(a)(l)(C)(iii), not to mandate Gray-Bey and instruct counsel to address hasty and unreasoned decision the following issues in briefs, their in addi- making. The fact that Congress omitted any tion to other points that require atten- detailed language regarding permissible professional counsel’s judgment: delays 2244(b)(3) §in does not indicate 1. Given that Gray-Bey raised his it threw all caution to the wind in claim under Bailey v. every set of circumstances falling outside 116 S.Ct. § 2266. L.Ed.2d (1995), in his prior In view, our Gray-Bey’s application § 2255 motion before this court but presents several legal issues which have not before the court, district has his yet to be resolved by this circuit. As these Bailey claim already been “present- issues are important and recurring, we ed” for purposes 2244(b)(1)? §of not do colleagues my But 7, 2000. uary 924(c) prohibit

2. Does authoriza- requested deny” or “grant Gray-Bey for conduct direct- order they issue an tion. Instead Gray-Bey’s so,does If convicted? Gray- counsel appoint Clerk ing aon new rest Bailey claim that briefs four issues specifying Bey law, thereby qualify- constitutional de- authority to lackWe address. under should Gray-Bey ing I record Congress, so ofAct part 2244(b)(2)? disagreement. my Arkansas effect isWhat refusing “The 2244(b)(3)(D) explicit: decision District Court’s Section re- petition deny Grey-Bey’s or grant shall consider appeals court § 2241? or lief file a authorization re in In after than 30 decision later court’s this application 4. Does “Shall,” Cir. motion.” Davenport, filing his prog- to file or “make to” 1998), require “endeavor “should” leave would toward”; this petition ress properly shall § 2241 such room. wriggle In days. within as nonsuccessive? construed deny “must”. means “shall” construction the statu- this respect duty Recognizing “shall” a particular show instruct also Context for speed, tory command Gutierrez “may,” see with as case synonymous expedite office Clerk’s Lamagno, set Martinez de shall argument Oral follows. n.9, Petition- 21, 2000. February week “may” in “shall” (1995), replacing January be due brief er’s vapid. passage February 2244(b)(3)(D) makes answer respondent’s “shall” context, one due be its reply shall In Petitioner’s 2000. not judges, to 2244(b)(3)(D) 18, is a mandate 2000. later, February § week ex- first-party aor permission grant Judge, EASTERBROOK, Circuit (“I to go futurity pression dissenting. to altera- subject tonight”) opera a sentence serving Gray-Bey Anthony been Congress could How tion. conspiring incarceration 256 months’ ... not deny or grant If “shall clearer? cocaine cocaine, possessing distribute to what mandatory, days” is than 30 later distribute, telephone using a to intent it Would mandatory? language using business, and drug his facilitate used had “must” word if help drug in relation and during firearm senses, see has fewer word That instead? sentences and convictions trafficking. His Modem Dictionary Garner, A A. Bryan States affirmed, United see have been ed.1995), it is (2d 939-42 Usage Legal Cir.1993), (7th Goines, F.2d 750 988 undergirds ambiguity 2255 § 28 attack collateral disposition. majority’s v. United unsuccessful. ma- circuits, decisions whose Cir.1998). Other (7th On 733 States, F.3d shadings about fret cites, don’t jority appli- filed 1999, Gray-Bey 8, December “should.” “shall,” “must,” among commence leave cation Vial, In re at deadlines. balk simply They Congress relief. for collateral proceeding banc), Cir.1997) (en F.3d court “The for action: a deadline set disregard decisions first authoriza- deny the or appeals shall defense, which 2244(b)(3)(D), offers applica- successive file a second tion 30-day exceeded “[W]e full: I filing quote after days than not later by 28 U.S.C. established limitation 2244(b)(3)(D), motion.” requests 2244(b)(3)(D) for decisions by 28 U.S.C. prisoners applied a second institute permission Jan- today, ¶ expires That time § 2255 proceeding. We are sequence is attached disobedience, convinced, however, that the importance of if this is so then the indeed the issue presented justified the delay.” exceeded—for the meaning of all legal 115 F.3d at 1194 n. 3. This “explanation” is depends texts on a background of interpre shocking; the ignores text tive principles. Congress could have said asserts a right to violate a statute. The something like “if 30 days pass without Constitution adopts a different hierarchy; action, then the application is denied auto statutes superior are to judges’ views matically.” Because it this, did do about policy. wise See Bank Nova Sco Siggers holds, a court may exceed the time tia States, v. United 108 limit with impunity. The first circuit S.Ct. 2369,101 L.Ed.2d (1988); United agrees with Siggers, see Rodriguez v. Su v. Payner, 736-37,100 perintendent, (1st F.3d Cir. (1980). L.Ed.2d 468 1998), reiterated in dictum in United second circuit takes the general same ap Barrett, States v. (1st F.3d 42 n. 2 proach fourth, as the with a more extended Cir.1999), not, but I do because I do not effort to justify elevating judicial views think that “no stated consequence means over legislative ones. Galtieri non-mandatory” is a background norm of (2d Cir.1997). 36-37 interpretation in federal law. Like the circuit, fourth Galtieri confesses Siggers’ it is not approach interpreting implements 2244(b)(3)(D); Holmes’s the court bad-man theory instead claims a that law’s meaning common-law lies in power to penalties disregard pursuit of noncompliance. better Holmes’s adjudication. Yet approach whether is a lengthier heuristic, useful adju but much of dication is “better” is the law very question is based on a contrary premise: § 2244(b)(3)(D) speaks. that rules effective, Like are many and must be imple recent decisions of the Supreme mented in Court, good faith, even if there is no § 2244(b)(3)(D) instantiates the stated principle penalty. See Kurowski Krajew that dispatch has value. Both Congress 848 F.2d (7th Cir.1988). ski and the Justices want to reduce the period The first amendment says “Congress shall during which the validity aof conviction is make no law ... abridging the freedom of open to question. Galtieri (there’s observes speech” that word again), and Art. more time leads to fewer substantive er I, 2,§ cl. 3 specifies that a census “shall b’e rors, which may well true; but how to made within three Years after the first reconcile quest the for accuracy with other Meeting of the Congress of the United competing objectives is a legislative task, States, and within every subsequent Term traditionally implemented through devices (a of ten Years” plus “shall” deadline); a such as statutes of limitations and outer no one believes that the Constitution’s fail periods for action. Congress has conclud ure to spell out what happens if Congress that, ed once a prisoner has a had direct contravenes these rules means that Con appeal and one full attack, collateral fur gress is entitled to contravene them! The ther proceedings must be abbreviated. United States publish “shall” “from time to That decision is entitled to our respect and time” a statement of I, accounts. Art. § obedience, whether we approve it or not. cl. 7. When holding that no one has stand Only the sixth circuit has offered ing a to judicial rea- obtain review aof claim that son compatible with legislative the supremacy United States has violated rule, under the Constitution. In re Siggers, Supreme 132 the Court emphasized that politi (6th F.3d 336 Cir.1997), holds that cal actors nonetheless are obliged to follow § 2244(b)(3)(D) . is unenforceable because it it. United States Richardson, v does not specify the consequence of delay. 41 L.Ed.2d 678 The court believed that statutes (1974). are direc- Claims under the Guaranty tory rather than mandatory when no con- Clause, 4, § Art. IV are not justiciable, but

873 stat another encountered year Last imply not does enforcement lack the 2244, speci § after days ute, two effective may ignore branches political that Prison of the part One limit. a time fying not would Surely courts obligations. their pro that provides Act Reform Litigation a attaches no that, because say concerning operation spective correct apply to failure judges’ to penalty stayed 30 automatically is review, prisons judges collateral on lawof rules modify decree. to moves party a after Antiterror- entire disregard free to are circuit 3626(e)(2). sixth The § (of 18 U.S.C. Penalty Act Death Effective ism Johnson, F.3d 144 v. in Hadix held proposi- that Yet part). a § is 3626(e)(2) is Cir.1998), § (6th that treat- Siggers’ identical logically is tion alteration subject 2244(b)(3)(D). §of ment issue, we same Addressing courts. from consequence a omission The instead Hadix, concluding disagreed the courts only 2244(b)(3)(D)means 3626(e)(2) too is language of in common-law consequence select modifications. common-law permit clear is remedy right Perhaps fashion. 437, 441-43 Duckworth, F.3d v. French Perhaps higher court. aby mandamus — U.S. Cir.1999), granted, (7th cert. after application, the dismissal L.Ed.2d -, States, 517 v. United Carlisle fashion of true equally to me (1999). seems That L.Ed.2d 416, 116 S.Ct. U.S. in French panel 2244(b)(3)(D). Addonizio, 442 (1996); States United 3626(e)(2) uncon hold on went L.Ed.2d 178, 99 S.Ct. I disa with which stitutional, a conclusion Kimberlin, 776 (1979); United (dissenting at 448-53 F.3d greed, see Cir.1985); and Gaertner F.2d banc). en rehearing denial (7th Cir. French substantively, wrong or Right hold- understand I could 1985) though— about reason toway proper shows the court deprive delay ing tookWe action. limit time even- application grant authority though 3626(e)(2) seriously, even County, Pierce Brock v. Cf. tually. doom. meant its 253, 106 S.Ct. applica- Gray-Bey’s act failure Our de- remedy for (1986) (observing that declara- than regrettable more tion need law in administrative lay French, for unconstitutionality act, agency’s elimination word last will Supreme Court proposition questioning denial 3626(e)(2). “[t]he But § binding). is nonetheless deadline appeals by a court an authorization short response the best Perhaps shall a second file to- attitude generous is a action not be appealable be de- abbreviated uncertainty that ward for a rehearing or for a subject of should (applications cisionmaking produces U.S.C. certiorari.” writ to cases). Perhaps, close granted be language, Perhaps this 2244(b)(3)(E). § stingy a take should contrary, courts wriggle leave 2244(b)(3)(D), does § unlike a to conduct for leave request a attitude: reviewa- is not denial” “grant room: be denied litigation round third timely decision a issue to ble, refusal comes court unless within peti- or a mandamus by reviewed may be success. chance fair it believe that Per- judgment. before certiorari rea- judges possible, these are ofAll denial “grant though haps, even which about disagree sonably could reviewable, any authorization” an explicit an without deadline But a choose. ulti- district provided deadline, delay still penalty antecedent review subject mately is it difficult followed, however au- whether question including issues, proceed. how to decide thorization should have granted. tion v. United States Service, Marshals too, Perhaps, Supreme Court’s decision 34, 355, 106 S.Ct. 88 L.Ed.2d 189 in French may light cast on the propriety (1985),holds § 1651 does not permit a my colleagues’ action. As a practical court to disregard 28 § 2243. I matter, however, a court’s failure imple- cannot imagine why judges would have 2244(b)(3)(D) § ment given case is more modify § 2244 than they do conclusive: the time would take the So- modify § 2266, Section another licitor General or comparable state official part also is illuminating: that aedpa, to file a petition mandamus, and the statute allows judges to extend deadlines Supreme Court writ, to issue a may exceed when certain conditions are satisfied; the additional time before the court issues 2244(b)(3)(D)does not. princi Ordinary a decision. ples of interpretation lead to the conclu sion that the circumstances

Although the majority justifying Vial, Sig- cites extension gers, Galtieñ, under 2266 do not justify Rodñguez, ex it does not tra time 2244(b). endorse their (as reasoning Otherwise opposed to what’s their'results). point of the differences Instead it between offers broader the two statutes? proposition, which amounts to the conclu sion that Congress just can’t set deadlines end, In the the majority’s approach rests for litigation because the Constitution —not on the proposition that judges federal liberates judges (the from time limits con depart discretion to from federal statutes French) clusion of but because judges fre good reasons—and that judges, rather quently exercise powers concern political than the branches, define which ing many statutes that include the word reasons are “good.” Few propositions “shall.” I that occasionally the word could be more subversive of the rule of “shall” is non-mandatory when read in con law. Pennsylvania Bureau Correction text, but I do not think that cases such as is one among many cases denying that Younger Harris, v. 401 U.S. 91 S.Ct. federal any courts have such power. The 746, 27 L.Edüd (1971), Burford equitable-discretion approach taken in Ra- Co., Sun Oil 319 U.S. 63 S.Ct. (and dix by the Solicitor General L.Ed. (1943), which deal with comity French) is far more circumscribed and among systems, offer much help on cannot be reworked 2244(b)(3)(D). fit whether a statute saying that It is that courts may injunctions issue a court “shall” do something “not later preserving the quo status unless Congress than 30 days” permits the court to take cancels that authority expressly. Al- more than days. Time limits tradition though § 3626(e)(2) says that the existing ally have been strictly enforced injunction is automatically stayed once 30 law. E.g., Browder Director, Depart run, days have it does preclude judges Corrections, ment S.Ct. from issuing another, injunction identical (1978); L.Edüd 521 United States their general equitable powers Locke, 85 pending further litigation. That seems to (1985); Pleva, Lampf, Lipkind, me too much an 3626(e)(2) evasion of Prupis & Petigrow Gilbertson, u 501 U.S. be (Likewise, sound. the maneuver in Tri- 115 L.Edüd 321 estman v. (1991); Carlisle; Addonizio. (2d Cir.1997), of denying appli- the Congress did not repeal the All Writs pro cation and immediately granting forma Act, 28 1651, when enacting rehearing in order to afford more time for § 2244(b)(3)(D), a fact that my colleagues decision is a transparent evasion of deem significant, but no one thinks that 2244(b)(3)(D) because the court’s order § 1651 is a license ignore to does not reflect an actual decision as op- rules. Pennsylvania Bureau Correc- posed to bookkeeping entry. Galtieñ

875 Gray- (3) authorize might subsection Only candor, second the virtue has the 1999, more in December Bey’s Triest- using ceased apparently circuit was conviction his after Galtieri.) years six than deciding after approach man’s after years (and three than more affirmed equitable on wrong, reliance or Right period one-year the added Congress offers quo status the preserve to discretion attack). collateral the law to limitations today. action colleagues’ my for support no to wants Gray-Bey that “right” But equita- “general longstanding is no There the Su- by recognized initially “was assert applications authorize to power” ble in on December Court” preme attacks— collateral or States, 516 U.S. Bailey v. United is sufficient—and one is that norm (1995), more 472 L.Ed.2d S.Ct. by “preserve” to quo status is no there his filed Gray-Bey before years four than that 2244(b) novelty ais relief; § equitable being unavailable from Far application. terms. own its on understood be in time now, Bailey came until Gray-Bey General Moreover, Solicitor his it on present Gray-Bey first discre- that French stressed not be- lost Gray-Bey attack. collateral depends period 30-day to extend but be- only, prospective Bailey is cause ongoing claim strong substantive on a argument make neglected he cause conclude do not colleagues My relief. though certiorari even in the district likely that is strong claim has a Gray-Bey April Bailey on granted had been His consideration. on further prevail percolating been had issue decided may readily is weak claim at 742-MS. F.3d years. now. Bousley v. points now problem His initial —one 614, 118 S.Ct. States, United issues four list of colleagues’ my make held (1998), which L.Ed.2d ¶ pro- Section time. be briefed —is implementation vides: Bai- (the construed 924(c)(1) apply shall limitation 1-year period A problems to constitutional can lead ley) section. motion to a Improper attack. collateral on cognizable lat- from run period limitation could guilty pleading a defendant advice of—est held; Bousley unintelligent, plea make judgment (1) on date which evidence lacks record a trial similarly, final; becomes conviction elements all to establish adequate impediment (2) on which them) date sup- could (as Bailey defines offense gov- by created making a motion imprisoning to avoid relief collateral port in violation action ernmental are not these But person. innocent laws Constitution law. constitutional principles new was removed, if the movant States, 417 U.S. v. United Davis by motion making (1974), prevented estab- 2298, 41 L.Ed.2d S.Ct. action; governmental such collat- justifies innocence actual lishes that 2255, cf. Jackson right assert- (3) on date which eral the Su- by recognized initially Virginia, ed invol- has been (1979), right and the Court, if preme aside is Supreme set pleas recognized untary guilty newly year before retroactively applica- than More made older. even review; or principles these applied collateral on Bousley, cases ble E.g., Bailey. based attacks collateral sup- facts (4) date v. United Stanback presented claims claim porting collateral first Cir.1997). Gray-Bey’s through discovered have he should solely because failed attack diligence. of due exercise sooner; raised the issue that conclusion is have obtained relief by §a petition. incompatible with his current submission Gray-Bey, however, is differently situated. that 1997 or 1998 was too soon to invoke Gray-Bey filed § his first 2255 petition Bailey. Nothing that happened in 1998 before Bailey, but final decision came la- restarts the time for a collateral attack. ter. Had Gray-Bey properly preserved an The initial principle of Bailey, which is the argument about the meaning of “use” in ¶ crucial § dates from § 924(c)(1),it would have been decided by 1995, and the retroactivity predate rules court, under correct principles law, Bousley. on his § first petition. Had we erred, the Supreme Court could have cor- The questions my colleagues flag rected us by certiorari. The reason Gray- for counsel’s attention also straight- Bey did not receive decision was his own forward answers. Logically the initial default. It is impossible to say that “the question (though is it No. 4 in the majori- remedy by [under § motion 2255] is inade- list) ty’s § whether a 2255 petition is quate or ineffective to test the legality of necessary, or whether instead Gray-Bey his detention” when the only shortcoming may use 28 § U.S.C. to which the is the petitioner’s omission issue. time limits prior-authorization rules do That omission is not problem in the not apply. The answer must be that remedy; it a problem in litigation strate- § 2255 is required route. Section 2241 gy. is, indeed, It a fatal problem, for when is unavailable “unless it also appears that Bousley held that Bailey can support col- the remedy by motion is inadequate or review, lateral the Justices stressed that ineffective to test the legality of his deten- the legal arguments must have pre- ¶ tion.” 28 § 2255 5. Judicial em- sented to the district court—and they add- phasis must be “test”: a 2255 motion ed that the-weight of existing precedent is not “inadequate or ineffective” merely against a position does not justify omis- petitioner because the loses. Nor do the sion. Bousley, 523 at 622-23, 118 changes by made which limit aedpa, S.Ct. 1604. number (and 2255 motions Next in logical sequence, if them) Gray-Bey’s time to file render 2255 inade- application were timely, would quate or be the ineffective test the lawfulness question whether a successive petition detention. No one is entitled to more justified ¶ 8(2) on the than one collateral attack. ground that Bailey is new“a rule of con- In re Davenport, stitutional'law, made retroactive to cases Cir.1998), requires us to ask whether on collateral review the Supreme Court, Gray-Bey’s initial § 2255 gave motion him that was previously unavailable.” Bousley, “a reasonable opportunity to obtain a reli- which was decided while Gráy-Bey’s prior able determination the funda- appeal was pending, holds that Bailey mental legality of his conviction and sen- maybe claims raised on review, collateral tence.” In Davenport this court held that and that Bailey may applied retroac- when the basis of the claim has not been tively to at least some cases (though per- legally established at the time of the first haps Bousley himself was not a beneficia- petition, prisoner received a ry, having claim). forfeited his There reasonable opportunity. The petition first nice question about the scope §of filed by (one Sherman ¶ Nichols 8(2): of two peti- Does the have to tioners in Davenport) was resolved before assert reliance on rule,” a “new or is an old the Supreme Court Bailey, issued and the rule newly made retroactive enough? law in this circuit was contrary to way From Gray-Bey’s perspective, however, Bailey interpreted the word “use” in Bailey is not a rule”, “new as I have 924(c)(1). Nichols therefore could not already observed; argued he it in States, 524 U.S. Holm reject- Had we appeal. his briefing when (1998), con- 1969, 141 L.Ed.2d Bailey S.Ct. that ground the claim ed that this of analysis nothing to the it tributes then would retroactively, apply not does the before only reopens Bousley question. that say tempting a certifi- request a lost was whether Court because But door. the in” a court “case merits, one a appealability the of cate than rather forfeiture purposes; rule new certiorari kind of appeals that of think would the merits must about period nothing a new said to start adequate circuit eighth the law changes retroactively instructed claim that one making in light decision first instance a in forfeiture, than rather them review was “applies.” Bailey position that General’s the Solicitor explicit —which position as functionally the same one not wrestle need We Buggs.) in adopted Bousley does however, because ground, “of consti- rule a new retroactive make not a “new retroactive Bousley make Does issue an resolved Bailey law”. tutional evi- law” that constitutional rule of ob- Bousley interpretation, statutory support b sufficient must dence understanding proper that served been has all; that at Not charge? 924(c)(1) to collateral lead Gray- Jackson. Davis since around rise gives statutory error a that the extent contention, principal Bey’s Bousley itself In flaw. a constitutional not antici- did his case jury instructions involuntary was flaw potential a constitutional even is not Bailey, pate fact by the (made involuntary plea guilty Young given reasons for the argument, ele- know did not defendant that the (7th 794, 798-99 States, 124 F.3d v. United he offense ments Tay- also, Gilmore Cir.1997). e.g., See approach to the is related This pleading). lor, Bailey issues adopted earlier our court (an stating (1993) error prob- statutory a Similarly in Stanback. instructions jury the offense elements one a constitutional rise to give lem defect). I therefore a constitutional not enough evi- not contain did record if the cannot a successive conclude of fact trier rational a permit dence ¶ Gray- 8. § 2255 be authorized As doubt. a reasonable beyond guilt find in his forfeiture live Bey however, defendants observed, Bousley opin- published just as petition, prior possibility advantage of to take trying concludes. ion must show burden, they heavy have a to establish fails the record only that “carry” they did also “use” but to commit way other

weapon, 624, 118 S.Ct. at

crime. States, 524 v. United Muscarello See also 1911, 141 L.Ed.2d actively (a who (1998) drug dealer “car- nonetheless in that crime gun “use” about, even is moved weapon if ries” CRAWFORD, on behalf Lawrence according- car). held We trunk in the simi- others class and a himself v. United Buggs inly Plaintiff-Appellee, situated, larly deficiency of Cir.1998), Bailey convert can evidence one, but constitutional into argument SERVICES, EQUIFAX PAYMENT deficient, and really record if the only Services, Check INC., Equifax properly point only if then Defendants-Appellees. Inc., adds Buggs (Note 4 preserved.

Case Details

Case Name: Anthony J. Gray-Bey v. United States

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 7, 2000

Citation: 201 F.3d 866

Docket Number: 99-4131

Court Abbreviation: 7th Cir.