Bowe v. U.S:  Federal prisoners not barred from raising prior claims in successive or second habeas petitions

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

            The provision of Sec. 2244 that prohibits state prisoners from bringing second or successive habeas petitions which raise claims that were previously presented does not apply to federal prisoners seeking habeas review, the U.S. Supreme Court held January 9 in Bowe v. United States.

            The Court also held the provision of Sec. 2244 which prohibits a writ of certiorari after a court of appeals denies authorization to file a second or successive habeas petition does not apply to federal prisoners.

            28 U.S.C. Sec. 2244 governs when state prisoners can file second or successive habeas petitions.  28 U.S.C. Sec. 2255 governs when federal prisoners may do so.

            The two sections have distinct requirements, but Sec. 2255(h) contains a limited cross-reference to Sec. 2244, which is the subject of Bowe.

Facts

            Michael Bowe pleaded guilty in 2008 to an offense involving use of a firearm in relation to a “crime of violence” under Sec. 924(c). 

            Since then, the Supreme Court has issued several decisions that call into question the legal validity Bowe’s Sec. 924(c) conviction. 

            Nevertheless, the timing of the Court’s decisions, coupled with Bowe’s efforts to take advantage of them, prevented him from obtaining habeas relief.

            Bowe originally sought habeas relief in 2016 by challenging the validity of
Sec. 924(c), but was denied.

            After the Supreme Court issued a favorable opinion on the issue, Bowe sought permission from the Eleventh Circuit to file a second or successive petition under Sec. 2255, but a three-judge panel declined to authorize the motion.

            After another favorable high Court opinion in 2022, Bowe again sought permission from the Eleventh Circuit to file a second or successive petition, but a three-judge panel dismissed it.

            Bowe then filed for hearing en banc, and asked the Eleventh Circuit to overturn its precedent holding that Sec. 2244’s “old-claim bar” applies to federal prisoners who file successive Sec. 2255 motions.  Bowe argued Sec. 2244’s “old-claim bar” applies only to state prisoners.  The Eleventh Circuit again denied the claim.

            The Supreme Court granted cert. to resolve a circuit split on whether Sec. 2244’s “old-claim bar” applies to federal prisoners’ claims.

Holding

            The Court reversed, in a 5-4 opinion by Justice Sotomayor.

            Sec. 2244(b)(3)(E) – which applies to second or successive petitions by state prisoners – bars appeals of a three-judge panel’s denial of authorization to file a successive petition, and also bars petitions for writs of certiorari regarding such denials.

            By contrast, Sec. 2255(h) – which applies to federal prisoners – has different requirements for a successive or second petition but also contains a “cross-reference” which states that such a petition “must be certified as provided in Sec. 2244 by a [three-judge] panel of the appropriate court of appeals”. 

            As an initial matter, the Government argued that the Supreme Court lacked jurisdiction to hear Bowe’s case because the “cross-reference” bars the Court from granting writs of certiorari. 

            But “[u]nlike the provisions governing authorization decisions for state prisoners, Sec. 2255(h) does not mention this Court’s certiorari jurisdiction, let alone purport to limit it”, the Court said. 

            “Nor does Sec. 2244(b)(3)(E) readily apply to federal prisoners on its face”, the Court said.  “Section 2244, overall, imposes several strict requirements that apply only to state prisoners with the aim of facilitating finality”.

            The Anti-Terrorism and Effective Death Penalty Act treats state and federal prisoners differently in order to further “principles of comity, finality and federalism”, the Court said.  AEDPA recognizes that “State courts are adequate forums for the vindication of federal rights”, and that federal courts ought not intervene except in rare circumstances.

            “Comity and federalism, however, fall away when a federal court reviews a federal judgment”, the Court said.  “By the time a federal prisoner looks to file a second or successive motion … he will have had fewer bites at the apple, and fewer courts reviewing his case, than most state prisoners in the same position.”

            And while the federal government has an interest in finality, the Court said, allowing further review is “consistent with both AEDPA’s purposes and practical considerations.”

            “Although the Government is correct that the cross-reference incorporates some of the provisions” of Sec. 2244, “the Government is wrong that it also incorporates the certiorari bar”, the Court held.  “That is because the cross-reference, coupled with its context, does not provide the clear indication needed to strip this Court of jurisdiction.”

            The Court will find that Congress has stripped the Court of jurisdiction only when there is “clear indication” that was Congress’ intent, the Court said.

            This “clear indication” requirement is not a “magic words” requirement, the Court said. 

            “It simply asks whether the text and structure support the unambiguous understanding that Congress intended to prevent this Court’s exercise of its certiorari jurisdiction”, the Court said.  “If a provision can reasonably be read multiple ways given its content and context, it is not sufficiently clear.”

            Turning to the merits, the Court held that Sec. 2244’s limits on second or successive claims do not apply to petitions filed by federal prisoners under Sec. 2255.

            The text of the sections do not support such a reading, the Court said.

            “AEDPA is replete with examples of Congress treating state and federal prisoners differently – including in the context of limitations on second or successive filings”, the Court said. 

            “Any concern associated with Congress allowing old-claims repeat litigation for federal prisoners, moreover, is overstated”, the Court said.  “All claims, even the repeat ones, must meet the ‘strictly limited’ threshold requirements of Sec. 2255(h) … and must still conform with the demanding statute of limitations contained in Sec. 2255(f)”, the Court said.

Dissenting opinion

            Justice Gorsuch dissented, joined by Justices Thomas, Alito and Barrett.

            Gorsuch believed AEDPA stripped the Court of jurisdiction to hear Bowe’s claim via a writ of certiorari, but Gorsuch believed Bowe had other remedies.

            “AEDPA not only leaves untouched our power to entertain original habeas petitions filed directly in this Court”, Gorsuch said, but also “leaves untouched” the Court’s power to accept certified questions of law from federal courts and provide them with “binding instructions” on how to answer those questions under Sec. 1254(2), “a provision found right next door to the one governing our certiorari jurisdiction.”

            “Accustomed as we are to proceeding by way of certiorari under Sec. 1254(1), it’s true that we have rarely accepted certified questions under Sec. 1254(2)”, Gorsuch said.  “But rare procedure befits rare circumstances.”

            “And this case involves a rare circumstance indeed – a circuit split that would otherwise stagger on forever.”