Bowe v. United States | Case No. 24-5438 | Oral Argument Date: 10/14/25 | Docket Link: Here

Questions Presented:

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.
2. 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

Welcome back to SCOTUS oral arguments and opinions.

Today we're diving into Beau versus United States, a case that presents what I'd call a perfect storm of statutory complexity, jurisdictional puzzles, and a government that switched sides mid litigation.

Set for oral arguments on October 14, this case is another example of the government switching position after a change in presidential administration.

The Trump administration now concedes that the lower court got it wrong, but then argues the Supreme Court has no power to fix the error.

It's like acknowledging someone's trapped in a burning building, but saying the fire department can't respond because of jurisdictional restrictions.

And at the heart of this case is Michael Bowe, a federal prisoner who's shuffled for years to challenge his conviction based on a Supreme Court decision that came down after his trial.

But he keeps getting blocked by a procedural rule that may not even apply to him.

This case raises fundamental questions about how federal prisoners access the courts, whether Supreme Court review is available when circuit courts make mistakes, and the limits of Congress's power to restrict the Supreme Court's jurisdiction.

The implications reach far beyond one prisoner's claim.

Fair warning.

There's a few different statutes at play here.

We'll do our best to try to follow the bouncing ball.

Now, here's the constitutional backdrop that makes this case so compelling.

Bo's conviction was based on crimes, conspiracy and attempted Hobbs act robbery that the Supreme Court later said don't actually qualify as crimes of violence.

So his conviction rests on conduct that, under current Supreme Court precedent, shouldn't support that conviction at all.

And here's something important for our listeners to understand.

This isn't about someone trying to game the system.

When the Supreme Court announces a new rule of constitutional law, the Constitution's ex post facto clause generally requires applying that rule retroactively to people whose convictions became final before the decision came down.

The ex post facto clause prevents the government from punishing someone for conduct that wasn't criminal when they did it or from increasing the punishment after the fact.

That courts have interpreted this to mean that when the Supreme Court narrows the scope of a criminal statute on constitutional grounds, people convicted under the broader interpretation should get the benefit of that narrowing.

In this case, Beau asks for the benefit of Supreme Court decisions that came down after his conviction, but that should apply retroactively.

The problem is he's stuck in this procedural maze trying to get those decisions applied to his case.

Which brings us to the questions the Supreme Court must decide.

So let's start with the questions the court agreed to decide.

This case presents two Questions.

Both questions are jurisdictional, meaning they're about whether courts have the power to hear the case at all.

Okay, that's a mouthful.

Let's unpack this piece by piece.

Think of it this way.

After you're convicted in federal court and your direct appeal is over, you might discover new evidence or a new legal development that shows your conviction was wrong.

Now here's the wrinkle.

Congress doesn't want prisoners filing these challenges over and over forever.

You can't just file it directly with the trial court.

And one specific provision.

The do over bar says if you already presented a claim in a prior petition, you can't present that same claim again.

Now, here's the key detail that makes this whole case interesting.

Notice the language.

So the million dollar question is, does this do over bar apply to federal prisoners?

That's question one.

Notice the language there.

So the question is, does this do over bar apply to federal prisoners, even though the statute specifically references state prisoner habeas petitions?

This is the jurisdiction stripping provision.

So that provision says, when a court of appeals decides whether to authorize a second petition, that decision cannot be appealed and cannot be reviewed by the Supreme Court through certiorary.

What makes this case so compelling is that both questions involve the same core interpretive issue.

Let's tell Michael Bow's story, because understanding the facts helps explain why this matters so much.

That firearm conviction, the section 924C count is the focus of this case now.

Section 924C requires that the underlying offense be a crime of violence.

There are two ways an offense can qualify through the elements clause, which looks at what the crime requires you to prove, or through the residual clause, which covered offenses that involve a substantial risk of physical force.

But the 11th Circuit denied authorization because at that time, Circuit precedent held that attempted Hobbs act robbery was still a crime of violence under the Elements Clause.

This abrogated meaning wiped out the 11th Circuit's precedent that had been used to deny Beau's first authorization request.

But the 11th Circuit dismissed his request.

So even though we denied it based on precedent that the Supreme Court later abrogated, the do over bar prevents you from presenting it again.

Dismissed bow then did something unusual.

He filed an original habeas petition directly in the Supreme Court.

He asked for three things.

Authorization to file his Davis claim, an initial en banc hearing to reconsider Baptiste, and alternatively, certification of the do over bar question to the Supreme Court.

The 11th Circuit said no to all three.

It again dismissed his request based on Baptiste and the do over bar denied the en banc petition and declined to certify the question.

So Beau petitioned the Supreme Court for certiorari, and the court granted review on both questions.

And and here's where it gets really interesting.

The government filed a brief on the merits, conceding that the 11th Circuit erred on question one, the do over bar does not apply to federal prisoners.

So we have an acknowledged legal error that the government says cannot be corrected.

It's a remarkable posture for a case.

And this grant is significant because it creates an opportunity for the court to clarify important questions about how AEDPA's complex provisions include interact, resolve, a circuit split that's been deepening over the years and potentially address constitutional questions about the limits of Congress's power to restrict the court's jurisdiction.

Let's dive into how each side makes its case.

We'll start with the petitioner's arguments.

That's Michael Bowe.

Bowe's first major argument is textual and straightforward.

And as Bose Brief emphasizes, the text could not be plainer.

And here's Bo's killer argument.

Bao's second major argument is based on federalism.

AEDPA repeatedly subjects state prisoners to stricter requirements than federal prisoners because when state prisoners challenge their convictions in federal court, that creates tension with state sovereignty.

Federal courts are second guessing state courts.

But when federal prisoners challenge federal convictions in federal court, no state sovereignty is implicated.

It's federal courts reviewing federal courts.

That's why Congress subjected state prisoners to the do over bar but not federal prisoners.

Federalism concerns justify different treatment.

On the jurisdictional question, Beau makes two alternative arguments.

For the same textual reasons, the do over bar doesn't apply.

Courts must narrowly construe limitations on Supreme Court jurisdiction, and Congress must provide a clear statement to strip jurisdiction.

Second, even if the certiorary bar generally applies, this particular case falls outside its scope.

The 11th Circuit dismissed Beau's request rather than denied it on the merits.

The the statute distinguishes between dismissals and denials.

The certiorari bar only covers denials of authorization, not jurisdictional dismissals.

It just applied the do over bar as a threshold matter.

And the subject of Beau's petition isn't the denial of authorization.

It's the threshold legal question of whether the do over bar applies at all.

Cases like Castro and Stewart show that threshold questions fall outside the certiorari bar's scope.

Finally, BO invokes constitutional avoidance.

If the certiorari bar applies here, it raises serious exceptions clause the Supreme Court must retain jurisdiction over essential matters, like resolving circuit splits.

Six circuits say the do over bar applies to federal prisoners three say it doesn't without certiorari review.

Fifth, there's no way to ensure uniformity of federal law.

Now the government's position remember, they concede the 11th Circuit erred on the do over bar question but argue the court lacks jurisdiction to correct it.

On jurisdiction.

All five subparagraphs work together as an integrated whole governing authorization procedures and review.

The government emphasizes that these subparagraphs use authorization language and the unadorned word application.

On whether the 11th Circuit's dismissal constitutes a denial, the government takes a functional approach.

Congress's use of denial covers all rejections of authorization requests.

There's no third category of dismissals that escape review.

The government warns the that accepting bo's distinction could substantially undermine the certiorary bar.

Anytime a court applies an arguably incorrect legal standard, parties could claim it wasn't a real authorization decision and seek Supreme Court review.

On constitutional avoidance, the government argues, there's no serious constitutional question at common law orders denying habeas relief couldn't be appealed at all and Felker vs Turpin unanimously rejected an exceptions clause challenge to this exact provision for state prisoners.

Plus, alternative review mechanisms exist, certification by courts of appeals, the All Writs act, and potential review if authorization is granted and the case proceeds through district court.

Oral arguments are slated for October 14th, the same day as Ellingberg versus United States.

Here are some key points we'll be listening for.

First, I'll be fascinated to see how the Justices react to the government's position.

It's unusual for the government to concede error but argue the Court can't correct it.

Some Justices might find that deeply troubling from a rule of law perspective, right?

Justice Kagan, in particular has been skeptical of arguments that amount to yes, we made a mistake, but you can't fix it.

She might press the government on whether Congress really intended this kind of unreviewable error.

I'll also be watching for questions about the practical consequences of each side's interpretation.

If Beau wins on question one and the do over bar doesn't apply to federal prisoners, does that open the floodgates to repetitive claims?

Or are there other doctrines like law of the case or abuse of the writ that prevent abuse?

The government argues those pre existing doctrines exist, citing Sanders versus United States.

But the Justices might want to probe how well those alternatives actually work in practice.

On the jurisdictional question, I'm curious whether any justice will raise Marbury vs Madison concerns.

If Congress can bar Supreme Court review of circuit court decisions that create splits in federal law, what happens to the Court's essential function of ensuring uniformity?

That's particularly interesting given this Court's emphasis on major questions doctrine and structural constitutional limits on agency power.

Several Justices have been skeptical of Congress delegating too much power to agencies.

Might they be similarly skeptical of Congress limiting the Court's own power?

The distinction between dismissal and denial could generate interesting exchanges, too.

Some Justices might find that distinction overly formalistic, while others might see it as a meaningful textual difference that Congress deliberately created.

And watch for questions about Castro and Stuart.

Those precedents are critical to both sides arguments.

Circuit's acknowledgment that it's bound by Baptiste unless overruled?

The the Justices might also explore what happens if the Court rules for beau.

Does that mean all the circuits applying the do over bar to federal prisoners have been wrong for years?

What about finality concerns for prisoners whose cases are already closed?

One more thing to watch.

How do the justices view the federalism arguments?

Bo makes a compelling point that AEDPA's structure shows Congress intended to treat state and federal prisoners differently based on comedy concerns.

But some Justices might be skeptical of reading too much into that pattern.

So why does Beau vs United States matter beyond just Michael Bowe?

First, there's the immediate impact on federal prisoners.

Six circuits have been applying the do over bar to federal prisoners.

If the Court holds that provision doesn't apply, it could reopen cases for prisoners who were denied relief.

Based on this reasoning, potentially hundreds or thousands of people.

Second, there's the broader question of statutory interpretation and AEDPA's structure.

This case forces the Court to grapple with how to interpret aedpa's complex cross references and whether federalism principles should inform that interpretation.

Third, there are the jurisdictional implications.

And finally, there's the constitutional dimension.

If the Court reaches the Exceptions Clause question, it could clarify what appellate jurisdiction is truly essential and indispensable to the Court's constitutional role.

That would have indicated implications far beyond habeas cases.

This is one of those cases that operates on multiple levels technical statutory interpretation, federalism theory, separation of powers, and fundamental questions about access to justice and error correction in our judicial system.

What's striking to me is how bo's case illustrates the sometimes Kafkaesque quality of post conviction litigation.

Here he has a potentially meritorious claim based on two Supreme Court decisions, Davis and Taylor, that came down after his conviction.

But procedural barriers may prevent him from ever getting that claim heard on the merits.

And whether you think those procedural barriers are justified by finality concerns or unjustified as traps for the unwary, this case will shape how federal prisoners navigate post conviction review for years to come.

We'll definitely be covering the oral arguments when they're scheduled and the decision when it comes down.

This is the kind of case that could produce surprising alignments among the Justices depending on whether they focus on text, structure, purpose, or constitutional concerns.

Thanks for joining us for this deep dive into BO versus United States.

It's a perfect example of how procedural questions can have profound substantive consequences.

As always, if you found this helpful, please rate and share the podcast.

Please.

And if you're a federal practitioner dealing with post conviction issues, we'd love to hear your thoughts on how this case might affect your practice.

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