In re Bowe

1 Cite as: 601 U. S. ____ (2024)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
IN RE MICHAEL BOWE
ON PETITION FOR WRIT OF HABEAS CORPUS
No. 22–7871. Decided February 20, 2024
The petition for a writ of habeas corpus is denied.
Statement of J
USTICE SOTOMAYOR, with whom JUSTICE
JACKSON joins, respecting the denial of the petition for a
writ of habeas corpus.
Under §2244(b)(1) of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a federal court must
dismiss a “claim presented in a second or successive habeas
corpus application under section 2254 that was presented
in a prior application.” 28 U. S. C. §2244(b)(1). State pris-
oners seek federal postconviction relief under §2254. Fed-
eral prisoners seek postconviction relief under §2255. This
petition raises the question whether §2244(b)(1)’s bar,
which explicitly references only §2254, also applies to a
claim by a federal prisoner who brings a successive chal-
lenge to his conviction under §2255.
The Government agrees with Bowe that §2244(b)(1)’s
plain language covers only challenges by state prisoners un-
der §2254. Three Circuits now agree with that interpreta-
tion. See Jones v. United States, 36 F. 4th 974, 982 (CA9
2022) (“The plain text of §2244(b)(1) by its terms applies
only to state prisoners’ applications”); In re Graham, 61 F.
4th 433, 438 (CA4 2023); Williams v. United States, 927
F. 3d 427, 434 (CA6 2019). But six Circuits disagree. See
Winarske v. United States, 913 F. 3d 765, 768–769 (CA8
2019); In re Bourgeois, 902 F. 3d 446, 447 (CA5 2018); In re
Baptiste, 828 F. 3d 1337, 1339–1340 (CA11 2016); United
States v. Winkelman, 746 F. 3d 134, 135–136 (CA3 2014);
Gallagher v. United States, 711 F. 3d 315 (CA2 2013); Tay-
lor v. Gilkey, 314 F. 3d 832, 836 (CA7 2002).

2 IN RE BOWE
Statement of S
OTOMAYOR, J.
JUSTICE KAVANAUGH has previously expressed his desire
for this Court to resolve this split. Avery v. United States,
589 U. S. ___, ___ (2020) (statement respecting denial of cer-
tiorari) (slip op., at 2). I now join him. There is a reason,
however, that this is the first case to reach the Court pre-
senting this question since he welcomed petitions on the
split in Avery. There are considerable structural barriers to
this Court’s ordinary review via certiorari petition.
A petition cannot reach this Court from the three Circuits
that read §2244(b)(1) to apply only to state prisoners. Be-
fore a federal prisoner can file a second or successive habeas
§2255 motion, a court of appeals must certify it. See 28
U. S. C. §2255(h). When a federal prisoner files a second or
successive §2255 motion that raises an issue he has raised
previously, neither the court of appeals nor the district
court will apply §2244(b)(1)’s bar. If the court of appeals
certifies the motion, the district court will decide it on the
merits. The Government, because it agrees that §2244(b)(1)
applies only to state prisoners, will not seek certiorari and
the question will be left behind.
A petition cannot reach this Court from the six Circuits
that apply §2244(b)(1) to both state and federal prisoners
either. In those Circuits, the court of appeals will apply
§2244(b)(1)’s bar and deny certification to any second or
successive §2255 motion that raises an issue the prisoner
has previously raised. Neither the Government nor the
prisoner can seek review of that interpretation of
§2244(b)(1) from this Court, however, because AEDPA sep-
arately bars petitions for certiorari stemming from “[t]he
grant or denial of an authorization by a court of appeals to
file a second or successive application.” §2244(b)(3)(E).
Here, the Eleventh Circuit denied Bowe authorization to
file his successive §2255 motion based on §2244(b)(1).
Faced with §2244(b)(3)(E)’s bar on petitioning for review of
that denial in this Court, Bowe instead invokes this Court’s
jurisdiction to entertain original habeas petitions under

3 Cite as: 601 U. S. ____ (2024)
Statement of S
OTOMAYOR, J.
§2241(a). The standard for this Court’s consideration of an
original habeas petition is a demanding one. A petitioner
must show both that “adequate relief cannot be obtained in
any other form or from any other court” and “exceptional
circumstances warrant the exercise of the Court’s discre-
tionary powers.” Rule 20.4(a). Whether Bowe has met that
demanding standard here is questionable, because it is not
clear that, absent §2244(b)(1)’s bar, the Eleventh Circuit
would have certified his §2255 motion.
The Circuit split, however, is still an important issue for
this Court to consider in a more appropriate case. I would
welcome the invocation of this Court’s original habeas ju-
risdiction in a future case where the petitioner may have
meritorious §2255 claims. The Government also suggests
that a court of appeals seeking clarity could certify the
question to this Court. In the meantime, in light of the de-
manding standard for this Court’s jurisdiction over original
habeas petitions, I encourage the courts of appeals to recon-
sider this question en banc, where appropriate.*
——————
*For instance, it may be unnecessary to revisit the question en banc
where statements from prior cases examining §2244(b)(1)’s bar are dicta,
rather than holdings. See, e.g., Williams v. United States, 927 F. 3d 427,
435–436 (CA6 2019) (revisiting the §2244(b)(1) analysis after concluding
that statements from two published prior cases were unreasoned dicta);
King v. Brownback, 601 U. S. ___, ___ (2023) (statement of S
OTOMAYOR,
J., respecting denial of certiorari) (noting different avenues for lower
courts to reconsider the application of a statutory bar).