by Richard Resch

The Supreme Court of the United States held that 28 U.S.C. § 2244(b)(3)(E), which prohibits certiorari review of authorization decisions regarding second or successive filings, does not bar the Court’s review of a federal prisoner’s request to file a second or successive motion under § 2255. The Court further held that § 2244(b)(1), which requires dismissal of claims previously presented in a prior application, applies only to state prisoners filing under § 2254 and does not govern federal prisoners seeking to file successive motions under § 2255(h). In reaching these conclusions, the Court reasoned that § 2255(h)’s cross-reference to § 2244 incorporates only the procedures by which a three-judge appellate panel certifies a second or successive filing, not the certiorari bar or the old-claim prohibition. The decision resolves a Circuit split, with six Circuits having applied § 2244(b)(1) to federal prisoners and three Circuits having declined to do so.

Background

Michael S. Bowe pleaded guilty in 2008 to three federal offenses: (1) conspiracy to commit Hobbs Act robbery, (2) attempted Hobbs Act robbery, and (3) using a firearm in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A). He received a 24-year prison sentence, with 10 years imposed consecutively under § 924(c). To sustain Bowe’s § 924(c) conviction, at least one of his predicate offenses had to qualify as a “crime of violence” under either the statute’s elements clause or residual clause. See 18 U.S.C. § 924(c)(3)(A)-(B).

Subsequent Supreme Court decisions undermined the validity of Bowe’s § 924(c) conviction. In United States v. Davis, 588 U.S. 445 (2019), the Supreme Court invalidated the residual clause as unconstitutionally vague. In United States v. Taylor, 596 U.S. 845 (2022), the Supreme Court held that attempted Hobbs Act robbery does not qualify as a crime of violence under the elements clause. Eleventh Circuit precedent additionally established that conspiracy to commit Hobbs Act robbery fails to satisfy the elements clause. See Brown v. United States, 942 F.3d 1069 (11th Cir. 2019) (per curiam).

Bowe’s efforts to obtain postconviction relief produced significant procedural complications. In 2016, before Davis was decided, Bowe filed his first § 2255 motion challenging the residual clause’s constitutionality. The U.S. District Court for the Southern District of Florida denied relief, reasoning that attempted Hobbs Act robbery qualified as a crime of violence under the elements clause regardless of the residual clause’s validity.

Following Davis in 2019, Bowe sought authorization from the Eleventh Circuit to file a second or successive motion. A three-judge panel declined to authorize the filing, acknowledging that Davis announced a new retroactive constitutional rule but concluding that Bowe could not make a prima facie showing that his conviction was unconstitutional because then-binding Circuit precedent still classified attempted Hobbs Act robbery as a crime of violence under the elements clause.

After Taylor was decided in 2022, Bowe again sought authorization, arguing that Davis and Taylor together eliminated any valid predicate for his § 924(c) conviction. A panel dismissed the portion of Bowe’s request relying on Davis, reasoning that this claim had been “presented in a prior application” and was therefore barred under § 2244(b)(1). The panel denied the Taylor-based portion, concluding that Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Bowe returned to the Eleventh Circuit multiple times thereafter, seeking authorization, initial hearing en banc, and certification of the question whether § 2244(b)(1) applies to federal prisoners. Each request was denied. After filing an unsuccessful original habeas petition in the Supreme Court, Bowe petitioned for certiorari, highlighting the Circuit split on § 2244(b)(1)’s applicability to federal prisoners. The Court granted review.

Analysis

Jurisdiction

The Government argued that § 2244(b)(3)(E) deprived the Court of jurisdiction because that provision states that “the grant or denial of an authorization by a court of appeals to file a second or successive application … shall not be the subject of a petition for … a writ of certiorari.” While acknowledging this bar would apply if Bowe were a state prisoner, the Court concluded it does not extend to federal prisoners through § 2255(h)’s cross-reference.

The Court observed that § 2244 imposes requirements specifically applicable to state prisoners, and § 2244(b)(3)(E) speaks only to “second or successive applications,” whereas federal prisoners file “motions” under § 2255(e). Whether the Court had jurisdiction therefore turned on whether § 2255(h)’s cross-reference to § 2244 clearly incorporated the certiorari bar.

The Court stated that given the broad grant of certiorari jurisdiction under § 1254(1), “Congress must speak clearly if it seeks to impose exceptions to that jurisdiction.” The Court explained that reading a statute to bar jurisdiction in cases involving federal prisoners “would close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress’ intent.” Castro v. United States, 540 U.S. 375 (2003). This clear-indication requirement “is not a so-called ‘magic words’ requirement” but rather “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 clarified.

Applying this standard, the Court ruled that § 2255(h)’s cross-reference does not clearly incorporate the certiorari bar. The statutory language provides that a second or successive motion “must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” specified content requirements. The Court reasoned that this language “appears to incorporate only the provisions in § 2244 that ‘provid[e]’ for how a ‘panel of the appropriate court of appeals’ ‘certifie[s]’ a second or successive filing.”

The Court provided several reasons why § 2244(b)(3)(E) falls outside this cross-reference. First, the reference speaks to how a “panel” certifies a filing, but the Supreme Court “is not ‘a panel of the appropriate court of appeals.’” Second, the Supreme Court’s review “is not part of how a panel certifies a second or successive filing.” Subparagraphs (A) through (D) describe procedures the panel must follow in making certification decisions – routing the filing to the Court of Appeals, requiring a three-judge panel determination, prescribing the prima facie standard, and imposing a 30-day timeline. In contrast, the certiorari bar in subparagraph (E) “says nothing about how the § 2255 motion must be certified” but instead “speaks to what happens after a panel has acted on a certification request.” The Court noted that “the certiorari bar addresses an entirely different act (filing a certiorari petition, not certifying a successive motion) by an entirely different actor (the prisoner, not the panel) in an entirely different court (this Court, not the court of appeals).”

The Government advanced several counterarguments, each of which the Court rejected. The Government noted that §§ 2244(b)(3)(A)-(E) all use “second or successive application” rather than referring to § 2254 specifically, suggesting Congress intended the cross-reference to incorporate any provision using that terminology. But the Court observed this reading would also incorporate § 2244(b)(4), which directs District Courts to review authorized filings, a provision plainly outside § 2255(h)’s scope because it has nothing to do with panel certification procedures.

The Government also pointed to § 2244(b)(3)(D)’s 30-day deadline, arguing that permitting certiorari review would undermine Congress’ intent for expeditious resolution. The Court determined that this inference was insufficiently compelling, noting that “Congress intended to require panels to move quickly, while still preserving the prisoner’s ability to seek further review in the rare case that warrants this Court’s attention.”

Finally, the Government argued that barring certiorari for state prisoners but not federal prisoners would produce anomalous results. The Court responded that this argument “carries little weight when the governing standard requires Congress to speak clearly.” Additionally, the Court observed, Congress “treated state and federal prisoners differently across AEDPA, with state prisoners often facing far higher hurdles to relief.” These differential requirements exist because AEDPA sought “to further the principles of comity, finality, and federalism,” which “fall away when a federal court reviews a federal judgment.”

Section 2244(b)(1)’s Old-Claim Bar

Turning to the merits, the Court held that § 2244(b)(1) does not apply to federal prisoners’ second or successive § 2255 motions. The provision states that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” Because state prisoners alone file applications under § 2254, this specific statutory reference was determinative, the Court concluded.

The Court determined that this reference was deliberate, noting that elsewhere in § 2244, Congress expressly acknowledged § 2255. See § 2244(a). Other statutory provisions similarly distinguish state habeas proceedings from § 2255 proceedings. See §§ 2253(c)(1)(A)-(B); § 2266(a). The Court observed that when interpreting statutes, courts “presume that ‘differences in language like this convey differences in meaning.’” Henson v. Santander Consumer U.S.A., Inc., 582 U.S. 79 (2017).

Court-appointed amicus argued that § 2255(h)’s cross-reference incorporates § 2244(b)(1) through § 2244(b)(3)(C), which requires a panel to determine that “the application makes a prima facie showing that [it] satisfies the requirements of this subsection.” Because one “requirement” of subsection (b) is § 2244(b)(1), amicus contended, following this chain leads to the conclusion that the old-claim bar must apply to federal prisoners.

The Court rejected this reasoning for the same reasons supporting its jurisdictional holding. Section 2255(h)’s cross-reference “incorporates the procedures in § 2244 only as they relate to how a panel certifies a second or successive filing” and directs the panel to evaluate whether the filing “contain[s]” the content requirements specified in § 2255(h), not those in § 2244(b). Nothing in § 2255(h) suggests it incorporates § 2244’s content requirements, according to the Court.

The Court further observed that amicus’ broad reading would place § 2255 “on a collision course with § 2244.” Section 2244(b)(2) prescribes substantive gatekeeping requirements for new claims that differ from those in § 2255(h). For instance, § 2244(b)(2)(B) confines the new-facts exception to scenarios where facts “could not have been discovered previously through the exercise of due diligence” and requires showing constitutional error, limitations absent from § 2255(h)(1). If § 2255(h) incorporated § 2244(b)(2)(B)’s more stringent standard, “then § 2255(h)(1)’s more lenient exception would become a dead letter,” the Court reasoned. Because Congress “presumably does not enact useless laws,” the Court declined to read the cross-reference in this manner.

Additionally, the Court noted that in § 2244(b)(2)(A) and § 2255(h)(2), Congress repeated verbatim the standard for when a successive filing may proceed based on a new retroactive constitutional rule. If § 2244(b)(2)(A) already provided the default rule through the cross-reference, repeating it in § 2255(h)(2) would constitute surplusage. This repetition suggested Congress did not intend the cross-reference to import § 2244(b)’s substantive content requirements wholesale.

The Court summarized that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization, a panel can authorize the filing if it satisfies one of the two grounds in § 2255(h), the ‘two–and only two–conditions in which a second or successive § 2255 motion may proceed.’” Jones v. Hendrix, 599 U.S. 465 (2023).

The Court rejected amicus’ nontextual arguments, including the contention that § 2244(b)(1) was necessary for panels to meet the 30-day deadline. The Court found “speculation as to Congress’ intent” insufficient to override “the actual text” Congress enacted. Furthermore, concerns about repetitive litigation were “overstated” because “all claims, even the repeat ones, must meet the ‘strictly limited’ threshold requirements of § 2255(h)” and must conform to the demanding statute of limitations in § 2255(f). The Court observed that “[v]ery few claims will satisfy either, let alone both.”

Conclusion

The Court vacated the judgment of the Eleventh Circuit and remanded for further proceedings, leaving that court to determine in the first instance whether Bowe should receive authorization to file a second or successive motion under the correct standard. See: Bowe v. United States, 2026 U.S. LEXIS 4 (2026).

Writer’s Note: Before Bowe, the Circuits were divided on whether 28 U.S.C. § 2244(b)(1) – the “old-claim” bar requiring dismissal of a claim “presented in a second or successive habeas corpus application under section 2254” if it was presented in a prior application – also applies to federal prisoners seeking authorization to file a second or successive § 2255(h) motion by virtue of § 2255(h)’s cross-reference to § 2244. The Court described the split this way: six Circuits had applied § 2244(b)(1) to federal prisoners, including decisions such as Winarske v. United States, 913 F.3d 765 (8th Cir. 2019); In re Bourgeois, 902 F.3d 446 (5th Cir. 2018); In re Baptiste, 828 F.3d 1337 (11th Cir. 2016); United States v. Winkelman, 746 F.3d 134 (3d Cir. 2014); Gallagher v. United States, 711 F.3d 315 (2d Cir. 2013) (per curiam); and Brannigan v. United States, 249 F.3d 584 (7th Cir. 2001). Three Circuits had declined to extend § 2244(b)(1) to federal prisoners’ § 2255(h) proceedings, including In re Graham, 61 F.4th 433 (4th Cir. 2023); Jones v. United States, 36 F.4th 974 (9th Cir. 2022); and Williams v. United States, 927 F.3d 427 (6th Cir. 2019).

That split had practical consequences because it determined what gatekeeping rules governed repeat-presented claims at the authorization stage. In Circuits applying § 2244(b)(1) to § 2255(h), Courts of Appeals could treat previously presented claims as categorically barred when a prisoner sought permission to file a second or successive motion. In Circuits rejecting that extension, the authorization inquiry instead turned on § 2255(h)’s two statutory gateways and other applicable constraints. In Bowe itself, the Eleventh Circuit, one of the Circuits applying § 2244(b)(1) to federal prisoners, dismissed the portion of Bowe’s request premised on Davis on the ground that it was a claim “presented in a prior application” and therefore barred under § 2244(b)(1), while separately denying the portion premised on Taylor under § 2255(h)(2)’s “new rule of constitutional law” requirement.

Anyone interested in the Supreme Court’s certiorari jurisdiction over federal prisoners’ second or successive motions and the applicability of the statutory old-claim bar to those filings is encouraged to read the Court’s full opinion.  

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