Bowe v. United States

LII note: The U.S Supreme Court has now decided Bowe v. United States

    Issues

    Does 28 U.S.C. § 2255 incorporate the bar on second or successive applications in 28 U.S.C. § 2244(b)(1), thereby preventing federal prisoners from filing repeat motions to vacate? When a court of appeals denies authorization for a successive § 2255 motion, does 28 U.S.C. § 2244(b)(3)(E) bar Supreme Court review, making the courts of appeals the court of last resort for such prisoners?

    Oral argument:
    October 14, 2025
    Court below:
    United States Court of Appeals for the Eleventh Circuit

     

    This case asks the Supreme Court to decide two questions about the interpretation of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). First, does 28 U.S.C. § 2255 incorporate 28 U.S.C. § 2244(b)(1)’s restrictions on second or successive motions to federal prisoners? Second, are the courts of appeals the final forum for federal prisoners seeking authorization to file such motions under 28 U.S.C. § 2244(b)(3)(e), or can the Supreme Court review these gatekeeping decisions? The Petitioner, Michael Bowe, argues that extending both the restrictions on second or successive motions and the bar on Supreme Court review to federal prisoners goes against congressional intent and creates an unnecessary roadblock to federal prisoner’s claims to be fairly adjudicated by the courts. Kasdin Mitchell, whom the Supreme Court appointed to defend the judgment below because the United States declined to do so, argues that allowing for second or successive motions will burden the courts with unnecessarily and largely erroneous filings. For its part, the United States argues that the bar on Supreme Court review in 28 U.S.C. § 2244(b)(3)(e) should extend to federal prisoners because they have other avenues, beyond AEDPA, to appeal their convictions. The Supreme Court’s decision in this case will impact the fairness of habeas procedures and judicial economy.

    Questions as Framed for the Court by the Parties

    (1) Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; and (2) whether § 2244 (b)(3)(E) deprives this court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under § 2255.

    Facts

    Habeas corpus proceedings allow prisoners to challenge the legality of their detention, but habeas procedures differ for state and federal prisoners. Specifically, 28 U.S.C. § 2254 sets forth procedures for applications for a writ of habeas corpus filed by state prisoners, and § 2255 sets forth procedures for motions to vacate filed by federal prisoners. The Antiterrorism and Effective Death Penalty Act (“AEDPA”), passed in 1996, imposes procedural limits on “second or successive” habeas petitions. Specifically, § 2244(b)(1) requires dismissal of any “claim presented in a second or successive habeas corpus application under section 2254.” Additionally, § 2244(b)(3) requires state and federal prisoners to obtain permission from a court of appeals before they can bring a successive habeas petition, and also provides that the grant or denial of such permission cannot be reviewed by the Supreme Court. 

    Michael Bowe, the Petitioner, is a federal prisoner. After participating in a failed armored car robbery, he pleaded guilty to conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. On that basis, Bowe also received a 120-month sentence enhancement under 18 U.S.C. § 924(c), which specifically criminalizes using or carrying a firearm “during and in relation to” a “crime of violence.”  In turn, § 924(c) defines a “crime of violence” in two ways:  Under the “elements clause,” § 924(c)(3)(A), a crime is a crime of violence if it inherently involves the use of violence; under the “residual clause,” § 924(c)(3)(B), a crime is a crime of violence if it involves a substantial risk of violence.

    Following Bowe’s conviction, a series of Supreme Court decisions reshaped the scope of § 924(c). In 2015, in Johnson v. United States, the Court invalidated a similar residual clause found in the Armed Career Criminal Act as unconstitutionally vague. Thereafter, Bowe moved for the first time to vacate his conviction § 2255. The district court denied that motion because § 924(c)’s elements clause still supported Bowe’s § 924(c) conviction. Then, in 2019, the Court struck down § 924(c)’s own residual clause as unconstitutionally vague in United States v. Davis. Bowe applied for permission to file a successive § 2255 motion, but the Eleventh Circuit denied permission because, as before, Hobbs Act robbery was still considered a “crime of violence” under § 924(c)’s elements clause.Finally, in 2022, in United States v. Taylor, the Court held that attempted Hobbs Act robbery does not qualify as a “crime of violence” either. Later that year, Bowe filed his second application for permission to bring a successive § 2255 motion, arguing that after Davis and Taylor his § 924(c) sentence enhancement was now unsupported. Yet again, the Eleventh Circuit denied him permission, in part because Bowe had already raised his Davis claim.

    Two years later, in 2024, Bowe’s third attempt at obtaining authorization from the Eleventh Circuit had failed, as had an attempt at obtaining relief directly from the Supreme Court. Nevertheless, Bowe for the fourth time asked the Eleventh Circuit to grant him permission to bring a successive § 2255 motion. For the fourth time, the Eleventh Circuit denied him permission, noting, as before, that under its own precedents § 2244(b)(1) prevented Bowe from bringing his already-raised Davis claim.

    Bowe petitioned the Supreme Court for a writ of certiorari, which the Court granted on January 17, 2025.

    Analysis

    WHETHER 28 U.S.C. § 2244(b)(1) APPLIES TO FEDERAL PRISONERS

    Bowe argues that applying § 2244(b)(1)’s bar against re-raising claims on habeas to motions to vacate made by federal prisoners under § 2255 would effectively rewrite the statute and remove Congress’s deliberate distinction between federal and state prisoners.  That is so, Bowe stresses, because § 2244(b)(1) by its text applies only to a claim presented by a state prisoner in a “habeas corpus application under section 2254.” Although Bowe concedes that § 2255, which governs claims by federal prisoners, incorporates some provisions contained in § 2244, he argues that courts should not read in all of § 2244 into § 2255, especially § 2244(b)(1). Specifically, Bowe notes that that § 2255(h)’s reference to § 2244 simply cannot incorporate all of § 2244 because § 2255(h)(1) and § 2244(b)(2) use different standards for determining when a successive petition can be brought due to newly discovered evidence.  Bowe further contends that, because § 2255(h)(1) does not incorporate § 2244(b)(2) in full, § 2255(h)(1) should not be read to incorporate § 2244(b)(1) in full because § 2244(b)(1) and (b)(2) both work “in tandem” and use the same language concerning “applications under § 2254.” Finally, Bowe notes that Congress could easily have drafted § 2244(b)(1) to cover both state and federal prisoners but chose not to. Instead, Bowe emphasizes, Congress enacted § 2255(h), which contains its own gatekeeping requirements tailored to the context of federal convictions.

    Kasdin Mitchell, whom the Court appointed as an amicus curiae to defend the 11th Circuit’s ruling after the United States declined to do so, argues that AEDPA’s text applies § 2244(b)(1) to § 2255. Mitchell claims that Bowe, by choosing to avoid § 2244(b)(1)’s requirements but acknowledging other portions of § 2244(b), violates principles of statutory construction.Mitchell argues that Congress writes statutes in a hierarchical form, so Congress would have explicitly stated whether it wanted to refer only to a particular portion of the statute.Mitchell disputes Bowe’s claim that interpreting the phrase “this subsection” only to § 2244(b)(3) makes sense. Mitchell highlights that this approach would be inconsistent with other subsections of § 2244, including § 2244(b)(4).In addition, Mitchell points out that many other provisions of AEDPA contain hierarchical terms explicitly set out by Congress, including references to specific paragraphs, sections, and subsections. Thus, Mitchell claims that Congress understands how to deliberately reference specific subsections but chose not to do so in § 2244. Finally, Mitchell claims that Bowe recognizes that § 2244(b)(3)(C) triggers the use of § 2244(b)(1), which makes his arguments inconsistent and suggests “cherry pick[ing]” of the statute.

    WHETHER § 2244(b)(3)(E) APPLIES TO FEDERAL PRISONERS

    ​​Bowe argues that § 2244(b)(3)(E) does not strip the Supreme Court of jurisdiction to review denials of successive § 2255 motions because §2255(h) contains no mention of the Court’s jurisdiction. Bowe highlights that, by its terms, § 2244(b)(3)(E) applies to the denial of authorization “to file a second or successive application” under § 2254, not § 2255. Bowe also notes that Congress drafted § 2255(h) separately and did not directly incorporate § 2244(b)(3)(E) into this provision. Bowe notes the rule of statutory interpretation that, when Congress uses certain language in one section of the statute yet does not include this language in another section of the same Act, one can assume that Congress acted with purpose. Thus, because Congress drafted § 2255 and § 2244(b)(3)(E) at the same time as AEDPA and used varying language, extending the provision to § 2255 would disregard the plain language of the statute and Congress’ intent. Bowe recognizes that § 2255 incorporates some of the provisions in § 2244(b)(3). However, Bowe argues that the only provisions that should be incorporated are the provisions that directly relate to the “panel of the appropriate court of appeals.” Therefore, the provision of § 2244(b)(3) that lay out how a motion is “certified” by a “panel of the appropriate court of appeals” are rightly incorporated into § 2255. But Bowe argues that § 22449(b)(3)(E)’s bar against Supreme Court review is different because it does not relate to the previous four provisions nor to the process of certifying a second or successive motion. Instead, Bowe argues that this provision addresses the ability to seek review of the panel's certification determination by the Supreme Court. Bowe claims that since this issue arises only after a certification has been conducted, the provision is starkly different from the previous four provisions.

    The United States responds that § 2255(h)’s requirement that a second or successive motion be certified “as provided in section 2244” encompasses all of § 2244(b)(3), including § 2244(b)(3)(E)’s bar.  The United States contends that Congress had deliberate intentions when drafting the statute, because when Congress wanted to refer to only state prisoners in § 2244, it did so directly by stating “State court” or referencing § 2254. In addition, the United States asserts that all five subparagraphs under § 2244(b)(3) summarize the “procedure for obtaining authorization,” which in turn would preclude Supreme Court certiorari review. Specifically, the United States reasons that § 2244(b)(3)(E) makes the three-judge panel’s determination conclusive, which would prevent a writ of certiorari. Furthermore, the United States contends that if § 2255 did not encompass § 2244(b)(3), it is unclear what other provisions of § 2244 would be applicable. The United States claims that any textual discrepancies between § 2244 and § 2255, such as the use of the word “application” compared to the word “motion,” are trivial. In addition, the United States argues that Bowe does not provide any logical reasoning for excluding only § 2244(b)(3)(E), and not the other four provisions, from incorporation in § 2255(h). The United States highlights that there is no text in § 2244(b)(3)(E) that accentuates a difference between state and federal prisoners.

    Discussion

    FEDERALISM AND FAIRNESS

    A group of law professors (the “Habeas Scholars”), in support of Petitioner, contend that a goal of § 2244(b)(1)’s bar on second or successive habeas claims was to promote federalism, which is not implicated by federal prisoners.   That is, Congress sought to prevent federal courts from unnecessarily reviewing a state court’s decisions multiple times, potentially disrupting the comity between the two sovereigns.  The Habeas Scholars further explain that a federal prisoner’s second or successive claim does not produce the same potential tension between the federal and state governments because § 2255 only involves review of federal claims by federal courts. Additionally, the Habeas Scholars argue that § 2244(b)(1)’s ban on second or successive claims for state prisoners does not impact their legal rights as much as such a ban would for federal prisoners because state prisoners will have already had the opportunity to seek state habeas review.Conversely, because a federal prisoner will not be afforded these opportunities to present their claims, a ban on their second or successive motion would be more burdensome on their ability to be sufficiently heard by the court.

    Mitchell argues that interpreting § 2244(b)(1)’s bar on second or successive habeas claims more broadly will not lead to unfairness between state and federal prisoners. Mitchell maintains that because state prisoners make up the majority of total prisoners, and they already are barred from making second or successive claims, it would not make sense that federal prisoners would have a different standard.Mitchell also contends that, even if a federal prisoner is barred from making a second or successive motion, they will have already been able to raise their motion two times in federal court, based on the direct proceeding and first appeal. Therefore, preventing second or successive motions for federal prisoners would not punish them unfairly because they already will have multiple opportunities to pursue their claims in federal court.

    JUDICIAL ECONOMY AND FINALITY

    The National Association of Federal Defenders (“NAFD”), in support of Petitioner, contends that there will be no onslaught of new cases even if federal prisoners are allowed to bring successive motions or petition for a writ of certiorari to the Supreme Court. NAFD highlights that in all three circuits that already allow for successive § 2255 motions, where most federal prisoners appealing are pro se, only a small number of federal prisoners actually filed petitions for a rehearing or certiorari. According to NAFD, this supports the view that interpreting the rule in Bowe’s favor would permit federal prisoners to raise legitimate successive claims without unduly burdening the courts. NAFD also presents a similar analysis of petitions in the circuits that have removed the bar on certiorari in § 2244(b)(3)(e), showing that pro se prisoners will not be significantly more likely to seek certiorari for their habeas claims. The University of Virginia School of Law’s Civil Rights Clinic and four other civil rights organizations (the “Clinic et al.”), in support of Petitioner, note that applying § 2244(b)(1) to bar federal prisoners from re-raising arguments on habeas punishes diligent prisoners who immediately seek habeas review once the validity of their conviction has been put into question, rather than waiting. Thus, the Clinic et al. state that placing a bar on second or successive motions will encourage delay in post-conviction proceedings for state and federal prisoners, which will only prolong litigation, at odds with the goals of AEDPA.

    Mitchell contends that § 2244(b)(1)’s prohibition on filing habeas petitions that depend on already-raised claims prevents overburdening the courts with extraneous filings that take up resources and time and away from other matters. Similarly, the United States argues that failing to bar federal prisoners whose successive habeas motion are denied from seeking Supreme Court review will create delays in the execution of federal sentences, which is contrary to one of the purposes of AEDPA, because otherwise those petitioners will have no reason not to seek relief even when their claim is extremely attenuated. In particular, the United States argues that federal prisoners who were convicted of capital crimes may be more likely to pursue these tactics in order to delay their execution, contravening the finality that such sentences should have.

    Conclusion

    Authors

    Written by:   Emma Babashak and Audrey Hager

    Edited by:     Andrew Carpenter

    Additional Resources