Bowe-v-U.S. – What Supreme Court Ruling Could Mean For Federal Prisoners
On Oct. 14, the U.S. Supreme Court will hear oral arguments in Bowe v. U.S., a case that presents two consequential questions about the Anti-Terrorism and Effective Death Penalty Act's successive-petition regime that will have an immediate impact on federal postconviction practice.
As practitioners in this space know well, the AEDPA was passed in 1996 after the Oklahoma City bombing, and ushered in a rigid federal habeas regime, significantly curtailing access to federal habeas for state and federal inmates.
The AEDPA imposes a one-year statute of limitations once a conviction becomes final, and restricts the bases upon which inmates can seek review after the initial adjudication of their petitions.
The first question this case raises is whether Title 28 of the U.S. Code, Section 2244(b)(1) — which commands dismissal of a claim "presented in a second or successive habeas corpus application under section 2254" if the claim was previously presented — applies to federal prisoners proceeding under Section 2255.
The second question is whether Section 2244(b)(3)(E)'s bar on certiorari from "the grant or denial of an authorization by a court of appeals" extends to Section 2255 authorization orders, thereby depriving the Supreme Court of jurisdiction to review the U.S. Court of Appeals for the Eleventh Circuit's ruling here.
Petitioner Michael Bowe argues the Eleventh Circuit erred by importing Section 2244(b)(1) into the Section 2255 context, contrary to the statute's plain text and structure, and that the Supreme Court has jurisdiction because Section 2244(b)(3)(E) does not extend to Section 2255 — or, at a minimum, does not bar review of the threshold legal ruling that misapplied Section 2244(b)(1) to federal prisoners.
The U.S. agrees on the merits — that Section 2244(b)(1) does not govern Section 2255 — but maintains the high court lacks certiorari jurisdiction because Section 2255(h) incorporates Section 2244(b)(3)(A)–(E), including the certiorari bar, and because the Eleventh Circuit's order is functionally a denial of authorization within the meaning of Section 2244(b)(3)(E).
How the Supreme Court handles these issues in Bowe will affect whether federal prisoners can reraise Section 2255 claims previously presented at the authorization stage, how circuits police repetitive requests, and whether the high court can resolve entrenched circuit conflicts about successive Section 2255 practice when courts of appeals invoke Section 2244(b)(1).
Background and Posture
Bowe pleaded guilty in 2008 to conspiracy, attempted Hobbs Act robbery and discharging a firearm under Title 18 of the U.S. Code, Section 924(c).
Subsequently, in 2015, the Supreme Court held in Johnson v. U.S. that the Armed Career Criminal Act's residual clause is unconstitutionally vague.[1] In 2019, in U.S. v. Davis, the high court likewise held that the residual clause of Title 18, Section 924(c), is unconstitutionally vague.[2]
And in 2022, in U.S. v. Taylor, the court held that attempted Hobbs Act robbery is not a Section 924(c)(3 (A) "crime of violence."[3] In light of these rulings, Bowe pursued successive relief.
Each of these earlier U.S. Supreme Court opinions had offered, or so Bowe argued, some basis to reduce his sentence, given the nature of his conviction and his status as an armed career offender.
Prior to the high court's Taylor decision, the Eleventh Circuit first denied Bowe authorization on the ground that attempted Hobbs armed robbery remained a "crime of violence" under the elements clause of Section 924(c).
After Taylor, Bowe again sought Section 2255 authorization under Davis. The Eleventh Circuit dismissed for lack of jurisdiction by invoking Section 2244(b)(1)'s "previously presented claim" bar, as extended to Section 2255 by circuit precedent.[4]
The Eleventh Circuit also declined en banc review, and refused to certify the question to the Supreme Court.
The government now concedes Section 2244(b)(1) does not apply to Section 2255, but argues Bowe's petition must nonetheless be dismissed for want of certiorari jurisdiction under Section 2244(b)(3)(E), and because his successive motion would fail on independent grounds — i.e., Taylor is statutory, not constitutional, so Section 2255(h)(2) is not satisfied.
Does Section 2244(b)(1) Apply to Section 2255?
The petitioner and the government agree on the above question: It does not, based on the plain language of the statute.
Section 2244(b)(1) is expressly limited to "a second or successive habeas corpus application under section 2254." Section 2254, in turn, authorizes federal habeas for persons "in custody pursuant to the judgment of a State court."
Federal prisoners proceed via Section 2255. This is a distinct vehicle Congress created in 1948 as a substitute for federal habeas attacks on federal judgments.
The parties agree that where Congress has wanted AEDPA rules to apply to both state litigants (under Section 2254) and federal litigants (under Section 2255), it has said so.[5] But Section 2244(b)(1) and (b) (2) repeatedly and exclusively speak in Section 2254 terms.
Congress also set different successive-motion standards for state prisoners in Section 2244(b)(2)(B)[6] than for federal prisoners in Section 2255(h)(1).[7] That asymmetry suggests a deliberate choice to treat state and federal collateral regimes differently.
Circuit Split and Policy
Several circuits have extended Section 2244(b)(1) to Section 2255 largely by implication or policy, often reasoning that it would be odd to permit federal prisoners to relitigate claims previously presented when state prisoners cannot.
The petitioner's brief catalogs the split and the thin textual analysis supporting extension, with counterarguments grounded in the AEDPA's federalism and comity concerns that uniquely justify stricter limits on federal relitigation of state convictions, but not federal court rereview of federal convictions.
Even the government here acknowledges that Section 2255(h) suffices as an adequate limitation on federal inmates filing repetitive motions, with its requirement of a "prima facie showing" of either newly discovered evidence of factual innocence or a new retroactive rule of constitutional law.[8]
Practitioner Takeaway
A merits ruling clarifying that Section 2244(b)(1) does not apply to Section 2255 would eliminate the "previously presented claim" jurisdictional bar at the Section 2255 authorization stage that some circuits have applied to federal prisoners.
It would leave intact other filters: Section 2255(h)'s two narrow gateways, Section 2244(b)(3)(C)'s prima facie showing requirement as incorporated, Section 2244(b)(4)'s postauthorization merits pruning, and pre-AEDPA abuse-of-writ and law-of-the-case tools to address repetitious filings in federal cases.
Such a ruling would also clarify that denial of authorization must turn on Section 2255(h)(1)-(2), not on a cross-statute bar drafted for Section 2254.
Does Section 2244(b)(3)(E)’s Cretiorari Bar Block the Supreme Court’s Jurisdiction Here?
Here, the petitioner and the government take different positions.
Bowe argues that Section 2255(h) incorporates only the manner of certification in Section 2244(b)(3)(A)-(D). Subparagraph (E) — which forecloses appeals, rehearing and certiorari — does not regulate the manner of certification, and thus is not incorporated.
In any event, even if Subparagraph (E) applied to Section 2255, it does not bar review of the Eleventh Circuit's threshold legal error — misapplying Section 2244(b)(1) — because the panel dismissed for lack of jurisdiction, rather than denied authorization under the applicable Section 2255(h) standard.
And limitations on Supreme Court review must be narrowly construed. A contrary reading would raise exceptions clause concerns, by allowing circuit conflicts on the threshold applicability of gatekeeping rules to evade review entirely.
The government argues that Section 2255(h) directs that successive Section 2255 motions "be certified as provided in section 2244 by a panel of the appropriate court of appeals," and courts, including the Supreme Court, have treated Section 2244(b)(3) as a whole — Subparagraphs (A) through (E) — as the certification scheme.
Subparagraph (E)'s no-rehearing, no-certiorari rule is part of that scheme, ensuring final, expedited panel decisions consistent with the 30-day deadline in Subparagraph (D). The Eleventh Circuit's disposition is a denial in a literal sense, even if styled as a dismissal.
And the Supreme Court's 2003 decision in Castro v. U.S.,[9] and its 1998 decision in Stewart v. Martinez-Villareal,[10] do not help, because those cases addressed threshold determinations about whether filings were "second or successive" at all, not review of authorization denials themselves.
If the court lacks jurisdiction, it should dismiss. If it has jurisdiction, it may vacate, because Section 2244(b)(1) does not apply. But any remand would be inconsequential, given Section 2255(h)(2)'s constitutional rule requirement and Section 2255(h)(1)'s demanding innocence standard.
Likely Outcomes and Practical Implications
The Supreme Court could agree it has jurisdiction over the case, and that Section 2244(b)(1) is inapplicable to Section 2255, and then vacate and remand the Eleventh Circuit's order.
This path would allow the high court to resolve the core circuit conflict: Section 2244(b)(1) does not govern Section 2255.
The court could either hold that Subparagraph (E) does not extend to Section 2255 at all, or adopt a narrower ground that Subparagraph (E) does not bar review of threshold legal errors outside the authorization merits — e.g., a dismissal premised on the wrong statute. The case would return to the Eleventh Circuit to decide authorization under Section 2255(h).
If so, for Bowe, specifically, the government is likely to argue on remand that authorization fails under Section 2255(h)(2) because Taylor is statutory, not a new retroactive constitutional rule, and under Section 2255(h)(1) because the facts do not meet the clear-and-convincing actual innocence portal for the Section 924(c) count as charged and admitted in the plea.
The court could find it lacks jurisdiction over the case because rehearing and certiorari are barred by Section 2244(b)(3)(E), and then the petition is dismissed.
The court might dismiss for want of jurisdiction, while noting, as the government concedes, that Section 2244(b)(1) does not apply to Section 2255, leaving lower courts to correct course through en banc proceedings or future cases that reach the court via other channels — e.g., cases where authorization is granted and issues later percolate on appeal.
This would maintain rigid finality of authorization decisions — no rehearing or certiorari — and push practitioners to frame issues so that they can reach the court through merits appeals postauthorization.
The Court Could Issue Something In Between.
The court could hold that Section 2244(b)(3)(E) applies to Section 2255 authorization orders generally, but does not bar certiorari where the court of appeals disposes of a request on an inapplicable statutory ground, and thereby never conducts the Section 2255(h) screen — treating such rulings as outside the "grant or denial" covered by Subparagraph (E).
That preserves the expeditiousness and finality for ordinary authorization decisions, while ensuring the court can police threshold statutory misapplications that create entrenched, unreviewable conflicts.
Practice Pointers For Federal Postconviction Counsel
Regardless of how the Supreme Court decides Bowe, federal postconviction counsel should keep the following in mind if handling one of these cases.
Gatekeeping Framing Matters.
In circuits that have applied Section 2244(b)(1) to Section 2255, preserve arguments that authorization must be decided strictly under Section 2255(h) and Section 2244(b)(3)(C), not Section 2244(b)(1).
If the panel invokes Section 2244(b)(1), consider positioning any Supreme Court petition as directed at a threshold legal error outside Section 2244(b)(3)(E)'s grant or denial bar, consistent with Castro/Stewart logic.
The Path to Substantive Relief Is Narrow.
Independent of Bowe, successive Section 2255 relief still requires either newly discovered facts establishing factual innocence by clear and convincing evidence, as under Section 2255(h)(1), or a new constitutional rule made retroactive by the Supreme Court, as under Section 2255(h)(2).
Decisions like Taylor that rest on statutory interpretation are not cognizable gateways under Section 2255(h)(2). Counsel should weigh whether any Davis-based claim truly depends on a new retroactive constitutional rule, and whether the record supports innocence under Section 2255(h)(1).
Preserve Alternative Tools.
Even without Section 2244(b)(1), courts retain power to manage repetitive filings through Section 2244(b)(4) claim screening postauthorization, the abuse-of-the-writ doctrine, law of the case, and claim preclusion concepts referenced in pre-AEDPA and AEDPA practice.
Consider Certification and Petition for Rehearing En Banc.
Where circuit law extends Section 2244(b)(1) to Section 2255, pair authorization requests with targeted en banc petitions. Certification to the Supreme Court is rare, but Bowe's history demonstrates it can be part of a comprehensive strategy to surface entrenched splits when access to certiorari is uncertain.
Conclusion
Bowe gives the Supreme Court a clean vehicle to clarify that Section 2244(b)(1)'s "previously presented claim" bar — drafted for state prisoners' Section 2254 applications — does not govern federal prisoners' Section 2255 authorization requests.
The harder question is jurisdictional. If the court holds that Section 2244(b)(3)(E) does not bar review of threshold legal errors that prevent a Section 2255(h) screening, it can both restore the statutory design Congress wrote for federal prisoners and preserve the fast, final authorization process the AEDPA envisioned for the run of cases.
For practitioners, the bottom line is that the true gate to successive federal relief remains Section 2255(h) — and it is narrow.
Elizabeth Franklin-Best is the founder and principal of Elizabeth Franklin-Best PC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Johnson v. U.S., 576 U.S. 591 (2015) (holding the ACCA's residual clause is unconstitutionally vague).
[2] U.S. v. Davis, 588 U.S. 445 (2019) (holding the residual clause of 18 U.S.C. § 924(c) is unconstitutionally vague).
[3] U.S. v. Taylor, 596 U.S. 845 (2022) (attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause of the statutory definition of crime of violence).
[4] In re: Baptiste, 828 F. 3d 1337 (11th Cir. 2016).
[5] For example, the certificate-of-appealability statute expressly covers "a proceeding under section 2255," and the capital-case priority statute expressly covers both Section 2254 and Section 2255.
[6] Including due diligence and constitutional-error elements.
[7] Actual innocence via new facts without those extra elements.
[8] 28 U.S.C. 2244(b)(3)(C).
[9] Castro v. U.S., 540 U.S. 375 (2003) (holding the Supreme Court had jurisdiction to review the claim where pro se defendant sought to appeal the lower court's characterization of his first motion as a Section 2255 motion, and not that he was denied a successor petition).
[10] Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (concluding a death row inmate's petition that he was incompetent to be executed was not a successive petition when the first one was dismissed as being premature).
