Upcoming Case Preview | Bowe v. United States | The Do-Over Dilemma: Federal Prisoners and the Jurisdiction Trap

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 RoadmapOpening: 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...