Gray-Bey v. U.S.

• Decision Date: 13 April 2000
• Docket Number: No. 99-4131,99-4131
• Citation: 209 F.3d 986
• Parties: (7th Cir. 2000) Anthony J. Gray-Bey, Petitioner, v. United States of America, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 986

209 F.3d 986 (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

Argued March 1, 2000

Decided April 13, 2000

Barry Levenstam, Michelle L. Patail (argued), Jenner & Block, Chicago, IL, for petitioner.

William J. Lipscomb (argued), Office of the U.S. Attorney, Milwaukee, WI, for respondent.

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...