Court mulls tricky issues raised in habeas case

On Tuesday, the justices heard argument in Bowe v. United States, involving a complex (and confusing) area of law: habeas, which allows people confined by the government to challenge the grounds for their detention.

Michael Bowe, a federal criminal defendant, seeks to challenge his firearm conviction through a successive habeas petition that relies on 28 U.S.C. § 2255. Section 2255(h) says that a “second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals.” In keeping with Section 2255(h), Bowe began in the court of appeals with a request to file a successive Section 2255 motion, and, after the court of appeals dismissed his request, Bowe sought review in the Supreme Court, raising two questions of habeas procedure.

First, the threshold issue is whether the Supreme Court has jurisdiction to hear Bowe’s challenge at all. A prohibition in 28 U.S.C. § 2244(b)(3)(E) appears to stand in the way. Specifically, Section 2244(b)(3)(E) provides, “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”

Second, if Bowe can clear the jurisdictional hurdle in Section 2244(b)(3)(E), he contends that the court of appeals erred in dismissing his claim under 28 U.S.C. § 2241(b)(1). Section 2244(b)(1) states, “A claim presented in a second or successive habeas corpus application under Section 2254 that was presented in a prior application shall be dismissed.” Both Bowe and the federal government emphasize that Section 2241(b)(1) expressly refers to “Section 2254,” which governs only state inmates; in other words, since Bowe is a federal inmate, he and the government argue that this provision should not have applied to him.

Bowe’s lawyer, Andrew Adler, began his oral argument on Tuesday by emphasizing one of his narrower points about the jurisdictional bar in Section 2244(b)(3)(E). According to Adler, because the court of appeals dismissed Bowe’s request relying on the bar in Section 2244(b)(1), that procedural dismissal should not be deemed under Section 2244(b)(3)(E) a “grant or denial of an authorization by a court of appeals to file a second or successive application” for federal petitioners like Bowe.

This is because, usually, when a federal prisoner seeks permission from the court of appeals to file a successive motion under Section 2255, the court of appeals determines whether the prisoner made the necessary preliminary showing of satisfying Section 2255(h), as required by Section 2244(b)(3)(C). But here, the court of appeals invoked Section 2244(b)(1). To elaborate on why he thinks that a dismissal under Section 2244(b)(1) should not be deemed to fall within Section 2244(b)(3)(E), Adler invoked a case, Castro v. United States, in which the Supreme Court concluded that Section 2244(b)(3)(E) did not govern a threshold question about whether to apply the procedures for successive habeas petition.

In Castro, the prisoner, Hernan O’Ryan Castro, had previously filed a pleading that he did not label as a Section 2255 motion, but the district court recharacterized it as such. When Castro later filed what he viewed as his first Section 2255 motion, the district court reclassified it as a successive Section 2255 motion, and the Supreme Court ultimately held that, notwithstanding Section 2244(b)(3)(E), it could review the validity of the recharacterization of Castro’s prior pleading as a Section 2255 motion. This was because, according to the court, it was not reviewing the “denial” of an application for a successive habeas petition. Similarly, Adler argued, because the court of appeals never said that Bowe failed to make the preliminary showing required by Section 2244(b)(3)(C), and did not “deny” his petition, the dismissal under Section 2244(b)(1) was not a “grant or denial of an authorization” under Section 2244(b)(3)(E).

Adler explained to the justices that, if the court adopts his narrowing interpretation of Section 2244(b)(3)(E), it would have jurisdiction to reach Bowe’s argument that Section 2241(b)(1) does not apply to federal inmates. Bowe’s narrower position would also avoid the need for him to establish that, while Sections 2244(b)(3)(A) through (D) do apply to federal inmates, as Bowe concedes, Section 2244(b)(3)(E) does not. Put differently, the court could say that Section 2244(b)(3)(E) ordinarily applies to federal inmates, but not when the court of appeals relies on Section 2241(b)(1) to “dismiss” the request for permission to file a successive petition.

Adler further invoked his narrowing interpretation of Section 2244(b)(3)(E) to respond to Justice Samuel Alito’s question about how his broader argument creates an anomalous structure for applications to file successive petitions. As Alito pointed out, Section 2244(b)(3)(D) tells the court of appeals to grant or deny the successive application “not later than 30 days after the filing of the motion.” But if Section 2244(b)(3)(E) does not apply, a prisoner could spend many months litigating a petition for rehearing en banc and a petition for a writ of certiorari. Adler explained that, under his narrower theory, this more extended review would be available for federal inmates only when the court of appeals relied on Section 2241(b)(1).

Justice Neil Gorsuch asked Adler why, under his approach, both state prisoners and detainees who are seeking to challenge pre-conviction detention through habeas would be barred from pursuing petitions with a full court of appeals and petitions for a writ of certiorari to challenge the denial of an application to file a successive petition, but federal inmates would not. Isn’t that result odd, Gorsuch asked. Adler responded that detainees who are seeking to challenge pre-conviction detention seldom file successive habeas petitions, and the statutory text mandates the line he has identified, regardless of how one views the policies behind that line.

Pursuing Bowe’s broader argument that Section 2244(b)(3)(E) never applies to federal prisoners, Justice Elena Kagan asked Adler why Section 2244(b)(3)(A) through (D) would apply but not Section 2244(b)(3)(E) when what it “tells you is when the certification process generally stops.” Adler argued that only the provisions in Section 2244(b)(3) that address what a panel of the court of appeals must do apply to federal inmates, and Section 2244(b)(3)(E) goes beyond regulating what the panel does.

Anthony Yang, arguing for the federal government, was pressed by the court about whether a limitation on the Supreme Court’s jurisdiction must be clearly stated and whether Section 2244(b)(3)(E) satisfies that for federal prisoners. Kagan, in particular, seemed skeptical of Yang’s point that the structure of Section 2244(b)(3) sufficed, but Yang responded that the so-called clear-statement rule turns on statutory interpretation, and relying on statutory structure of related statutory provisions, such as the 30-day time limit in Section 2244(b)(3)(D), is a normal part of statutory interpretation and informs whether the limit on the court’s jurisdiction is sufficiently clear. And in response to a question from Justice Ketanji Brown Jackson that followed up on Bowe’s arguments, Yang stressed that a dismissal counts as a denial, so Bowe cannot escape Section 2244(b)(3)(E) by contending that his request to file a successive Section 2255 motion was never “denied.”

Arguing as a “friend of the court,” who was appointed to defend the ruling by the court of appeals that Section 2244(b)(1) applies to federal prisoners, Kasdin Mitchell began with the broad point that Section 2244 principally addresses habeas petitions by state prisoners and that a cross-reference makes it applicable to federal prisoners as well. “That structure means that there is going to be language in 2244 that is specific to state prisoners,” and that language must be interpreted “in light of a cross-reference that makes language about state prisoners apply to federal prisoners.”

Much of the court’s questioning focused on the jurisdictional issue, and although the justices appeared to give little indication of how they would answer that question, there did not appear to be five votes for holding that Section 2244(b)(1) applies to federal inmates, assuming the court reaches that question.