Upcoming Case Preview | Bowe v. United States | The Do-Over Dilemma: Federal Prisoners and the Jurisdiction Trap

Bowe v. United States | Case No. 24-5438 | Oral Argument Date: 10/14/25 | Docket Link: Here Questions Presented: 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. Whether 28 U.S.C. § 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 28 U.S.C. § 2255. Overview This episode examines Bowe v. United States , where the government concedes error but argues the Supreme Court lacks jurisdiction to correct it. The case explores whether the "do-over bar" in AEDPA applies to federal prisoners and whether an acknowledged legal error will go unremedied due to jurisdictional barriers. Episode Roadmap Opening: An Acknowledged Error Without a Remedy Government's unusual position: conceding error but claiming the Court can't fix it Michael Bowe's years-long struggle to challenge his conviction Constitutional context: Ex Post Facto Clause and retroactive application of Davis and Taylor The Two Questions Presented Question One: Does the do-over bar (§ 2244(b)(1)) apply to federal prisoners even though it references only state prisoner applications under § 2254? Question Two: Does § 2244(b)(3)(E) bar Supreme Court certiorari review of authorization decisions for federal prisoners? Background: Michael Bowe's Journey 2008 : Pled guilty including Section 924(c) conviction (using firearm during crime of violence) 2019 : Davis strikes down residual clause; Bowe seeks authorization but Eleventh Circuit denies based on circuit precedent 2022 : Taylor abrogates that precedent; Bowe seeks authorization again 2022 : Eleventh Circuit dismisses under do-over bar in In re Baptiste 2024 : Third authorization request denied; all alternatives rejected 2025 : Supreme Court grants certiorari; government switches position Legal Framework Section 2255 : Federal prisoner post-conviction relief vehicle Section 2244 : Originally for state prisoners; contains: (b)(1) : Do-over bar—bars claims "presented in a second or successive habeas corpus application under section 2254" (b)(3) : Authorization procedures, including (b)(3)(E)'s certiorari bar Section 2255(h) : "Second or successive motion must be certified as provided in section 2244"—key question is what this incorporates Circuit Split : Six circuits apply do-over bar to federal prisoners; three reject it Petitioner's Main Arguments Argument One: Plain Text Excludes Federal Prisoners Do-over bar explicitly references "section 2254" (state prisoners only) Federal prisoners use § 2255 motions, not § 2254 applications Section 2255(h) incorporates certification procedures only, not substantive bars Even Eleventh Circuit admits § 2255(h) doesn't incorporate § 2244(b)(2)—can't incorporate (b)(1) either since both use identical "section 2254" language Argument Two: Federalism Explains Differential Treatment AEDPA repeatedly subjects state prisoners to stricter requirements State prisoner habeas implicates federalism and comity concerns Federal prisoners challenging federal convictions raise no federalism issues Do-over bar fits pattern of protecting state sovereignty, not restricting federal prisoner access Argument Three: Court Has Jurisdiction No clear statement stripping jurisdiction for federal prisoners Eleventh Circuit "dismissed" rather than "denied"—certiorari bar covers only "grant or denial" No actual authorization determination made; court applied wrong legal standard Constitutional avoidance: barring all review raises Exceptions Clause concerns Circuit split needs resolution; federal prisoners lack alternative Supreme Court access unlike state prisoners Respondent's Main Arguments Argument One: Certiorari Bar Applies Section 2255(h) comprehensively incorporates § 2244(b)(3) as integrated whole All five subparagraphs use "authorization" language Castro implicitly recognized incorporation Cannot separate certiorari bar from rehearing bar Argument Two: "Dismissal" Is "Denial" Plain meaning: "deny" means "refuse to grant" Binary framework: must "grant or deny" within 30 days—no third category Courts frequently style identical dispositions as "denials" Accepting distinction would create arbitrary geographic lottery Court acted on authorization request; applying wrong standard doesn't remove it from "authorization" category Argument Three: No Constitutional Problem Common law provided no right to habeas appeal or successive attacks Felker rejected Exceptions Clause challenge for state prisoners Alternative mechanisms exist: certification, All Writs Act, potential district court review Bowe's claim is statutory (not constitutional), so doesn't satisfy § 2255(h)(2) anyway Preexisting doctrines ( Sanders , law of case) prevent abuse without statutory bar Key Points for Oral Arguments Justice reactions to government conceding error but claiming no remedy Practical consequences if do-over bar doesn't apply—floodgates or manageable? Whether ensuring circuit uniformity is "essential" Supreme Court jurisdiction Formalism of "dismissal" versus "denial" distinction Federalism pattern throughout AEDPA's structure What happens to thousands of potentially affected prisoners in six circuits? Broader Implications Immediate impact on hundreds or thousands of federal prisoners Geographic lottery based on circuit precedent Statutory interpretation of AEDPA's cross-references and incorporation provisions Jurisdictional doctrine: clear statement rule and constitutional limits on jurisdiction-stripping Access to justice: when procedural barriers prevent meritorious claims Separation of powers: congressional authority to limit Supreme Court review