Anthony J. GRAY-BEY, Petitioner, v. UNITED STATES of America, Respondent, 201 F.3d 866

DIANE P. WOOD, Circuit Judge. 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. § 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. 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. § 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 § 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 § 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. Our dissenting colleague believes that such arbitrariness has been commanded by Congress, because it used the word “shall” in 28 U.S.C. § 2244(b)(3).

With ah 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 § 2244(b)(3) in the cases establishing the abstention doctrine. As is the case with § 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. § 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, 61 S.Ct. 643, 85 L.Ed. 971 (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, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (considering abstention to be “a matter of equitable discretion”); Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (invoking comity as a reason to restrain federal courts acting inequity from enjoining most pending state criminal proceedings); Pennzoil Co. v.

Texaco Inc., 481 U.S. 1, 10, 107 S.Ct. 1519, 95 L.Ed.2d 1 (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, § 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. § 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. 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, 93 S.Ct. 2367, 37 L.Ed.2d 350 (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, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), and Dames & Moore v.

Regan, 453 U.S. 654, 689, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981), the Court saved the constitutionality of statutes (the International Emergency Economic Powers Act, 91 Stat. 1626, 50 U.S.C. §§ 1701-06 (1976 ed. Supp. Ill) in Dames & Moore and the Regional Rail Reorganization Act Cases, 45 U.S.C. § 701 et seq. (1970 ed. Supp. Ill)) against takings challenges by noting that Congress had not taken the independent step of repealing the Tucker Act, 28 U.S.C. § 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 § 2244(b)(3), but it did not repeal the All Writs Act, 28 U.S.C. § 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); see also Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 429, 109 S.Ct. 683, 102 L.Ed.2d 818 (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, 99 S.Ct. 1313, 59 L.Ed.2d 533 (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 point's out, this court concluded that such a saving

interpretation was not possible in French v. Duckworth, 178 F.3d 437 (7th Cir.), cert. granted, — U.S.-, 120 S.Ct. 578, 145 L.Ed.2d 481 (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.

Indeed, there is good reason to conclude that Congress affirmatively recognized that extraordinary action may be necessary in certain cases, which can be found in another of the statutes governing habe-as corpus. Our dissenting colleague is correct that § 2244(b)(3) is seemingly clear in its mandate; however, he does not adequately take into account the implications of § 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. §

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. §' 2266(a)(l)(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 § 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. § 2266(a)(l)(C)(iii), not to mandate hasty and unreasoned judicial decision making. The fact that Congress omitted detailed language regarding permissible delays in § 2244(b)(3) does not indicate that it threw all caution to the wind in every set of circumstances falling outside § 2266. 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.

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: 1. Given that Gray-Bey raised his claim under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in his prior § 2255 motion before this court but not before the district court, has his Bailey claim already been “presented” for purposes of § 2244(b)(1)? 2. Does 18 U.S.C. § 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 § 2244(b)(2)? 3. What is the effect of the Arkansas District Court’s decision refusing to consider Grey-Bey’s petition for relief under § 2241? 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 § 2241, and would such a § 2241 petition be properly construed as nonsuccessive?

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. 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 § 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 straight forward 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.