Brief filed: 04/14/2025
Documents
Bowe v. United States
United States Supreme Court; Case No. 24-5438
Argument(s)
This brief focuses first on whether 28 U.S.C. § 2244(b)(1), which bars habeas applications by state prisoners brought under 28 U.S.C. § 2254 if the same claim was raised in a prior application, also applies to claims in second or successive motions to vacate by federal prisoners brought under 28 U.S.C. § 2255. Although six circuits have held that it does (in a mix of precedential and non-precedential decisions), that rule developed in large part due to rushed procedures and other “structural barriers,” In re Bowe, 144 S.Ct. 1170, 1170 (2024) (Sotomayor, J., respecting denial of petition for writ of habeas corpus). As the history chronicled herein demonstrates, the first couple of circuits that interpreted section 2244(b)(1) as incorporated into section 2255 mentioned the rule only in passing, essentially without any substantive analysis. Moreover, many of those early cases involved prisoners proceeding pro se, who understandably had difficulty parsing the interconnected habeas provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Tellingly, once courts began looking more closely at the first question presented, they began reaching the opposite conclusion: The plain text of section 2244(b)(1) applies only to habeas applications by state prisoners and is not incorporated by section 2255(h) for motions to vacate filed by federal prisoners. The government quickly agreed and has maintained that agreement through three presidential administrations. The development of the rule was especially skewed in the Eleventh Circuit. Unlike other courts of appeals, the Eleventh Circuit imposes procedural hurdles for second or successive motions beyond the ones Congress enacted, such as the required use of a standardized form, lack of briefing or oral argument, and strict deadlines for court decisions. Those hurdles have created a process in which mistakes are not just possible, but inevitable. Rather than entrench the Eleventh Circuit's flawed process, this Court should hold that section 2244(b) (3)(E) does not deprive it of jurisdiction and that sections 2244(b)(1) and 2255(h) mean precisely what they say.
Author(s)
Gianna Maio, Federal Defender and Conrad Kahn, Assistant Federal Defender, Federal Defender Services of Eastern Tennessee, Knoxville, TN; David Oscar Markus, Co-Chair, Amicus Committee, National Association of Criminal Defense Lawyers, Miami, FL; Daniel S. Volchok, Gary M. Fox, and Megan O. Gardner, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.
