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 GrayBey’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, GrayBey’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--GrayBey’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.