Court delves back into the complicated world of habeas

The court will re-enter the complex world of habeas on Tuesday, Oct. 14, in the case of Bowe v. United States.

In 2008, Michael Bowe conspired with three other men to rob an armored car in Palm Beach County, Florida. After driving around in a van looking for a suitable target, the group pulled alongside a Loomis armored car parked at a Wachovia Bank ATM, carrying $560,000 in cash. Bowe got out of the van with a semiautomatic rifle and shot the armored car’s driver and the security guard. Failing to get any cash, Bowe’s coconspirators fled in the van, while Bowe ran away on foot.

After he and his co-conspirators were arrested, Bowe pleaded guilty in federal court to three counts – conspiracy to commit Hobbs Act robbery (robbery affecting interstate commerce), attempted Hobbs Act robbery, and a firearm offense, a violation of 18 U.S.C. § 924(c). The Section 924(c) count, which carries a minimum sentence of 10 years because Bowe fired the rifle, required the government to prove that a firearm advanced a crime of violence. The indictment alleged that both robbery charges – conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery – qualified as an underlying crime of violence.

Bowe was sentenced to 24 years in prison. Starting in 2016, he began filing numerous petitions challenging his Section 924(c) conviction under 28 U.S.C. § 2255, the habeas statute that applies to federal inmates. In these petitions, Bowe sought to use an evolving line of Supreme Court rulings that narrowed the definition of a crime of violence. By 2019, the Supreme Court in United States v. Davis invalidated as unconstitutionally vague the portion of Section 924(c) that captured conspiracy to commit Hobbs Act robbery as a crime of violence, and then in 2022 in United States v. Taylor, the court rejected an effort to classify attempted Hobbs Act robbery as a crime of violence. Thus, under federal criminal law, Bowe did not commit a crime of violence (even if shooting two people during a robbery would seem to meet any ordinary understanding of a crime of violence).

When Bowe filed his first habeas petition in 2016, he lost his constitutional challenge because precedent of the U.S. Court of Appeals for the 11th Circuit at that time still treated attempted Hobbs Act robbery as a crime of violence. When Bowe later sought relief under Davis, that had not changed (as Taylor had not yet been decided).   

Bowe then filed further habeas petitions after Taylor was decided, arguing that, because neither of his robbery convictions now constituted a crime of violence, his Section 924(c) conviction should be vacated.

Under Section 2255, a federal inmate can only file a “second or successive” petition seeking habeas relief if he can make a sufficient preliminary showing that he satisfies one of two limited grounds: his petition contains new factual evidence establishing innocence, which the holdings in Davis and Taylor do not satisfy, or new retroactive constitutional claims (a complicated area of law unto itself), which Taylor does not satisfy because it turned on statutory interpretation.

Before the Supreme Court now, Bowe is seeking to clear two hurdles to try to benefit from the combination of Taylor and Davis.

The Supreme Court’s authority to review

Bowe’s first argument addresses 28 U.S.C. § 2244(b)(3), which creates gatekeeping provisions that an inmate must meet before filing a successive habeas petition. Bowe’s problem is that Section 2244(b)(3)(E) bars inmates and the government from seeking Supreme Court review of a ruling granting or denying permission to file a successive habeas petition. Bowe contends that subsection (E) applies only to state inmates seeking federal habeas review, not federal inmates like himself. But the government responds that Bowe acknowledges that subsections (A) through (D) do apply to federal inmates and that 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,” language that the government says incorporates all of Section 2244(b)(3).

Bowe also contends that applying subsection (E) to federal inmates would raise a constitutional question by denying the court the ability to hear Bowe’s petition. This issue attracted a number of “friend of the court” briefs and addresses Congress’s power to control what comes before the Supreme Court. The portion of the Constitution that speaks most directly to this subject is the exceptions clause, which provides that in cases in which the Supreme Court lacks original jurisdiction, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations, as the Congress shall make.” Thus, the exceptions clause speaks to Congress’s power to control the court’s appellate jurisdiction.

Not long after Section 2244(b)(3)(E) was enacted, the Supreme Court rejected an exceptions clause challenge to Section 2244(b)(3) by a state inmate, noting that the court’s original habeas jurisdiction remained available. So Bowe must argue that federal inmates are different because of the avenues to review available to them. (Notably, Bowe’s earlier habeas filings included a petition that he filed with the Supreme Court seeking to invoke its original habeas jurisdiction, but the court denied that petition without explanation, although Justice Sonia Sotomayor wrote separately and outlined the issues now back before the court.)

Federal habeas limitations on bringing the same claim more than once

If Bowe can overcome Section 2244(b)(3)(E), then Bowe must also overcome the 11th Circuit’s interpretation of 18 U.S.C. § 2244(b)(1), which provides 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.”

The government agrees with Bowe that this provision applies only to state inmates seeking federal habeas review because the provision refers to “Section 2254,” a statute that governs solely state inmates seeking federal habeas review. The government does add a caveat, however, to its concession. The government maintains that background court-made rules governing federal habeas petitions could constrain a federal inmate from relitigating the same claim, including through a doctrine known as “abuse of the writ.” That doctrine predates the enactment of Section 2244(b)(1) and was aimed at limiting repetitive filings by inmates. But because the court of appeals did not apply that doctrine, its application to Bowe’s case is undeveloped. The government also adds the additional caveat that the error by the court of appeals in applying Section 2244(b)(1) made no difference in Bowe’s case because he could not satisfy Section 2255(h).

Because the government conceded that the court of appeals erred in interpreting Section 2241(b)(1), which is an issue on which the courts of appeals are divided, the court appointed Kasdin Mitchell, a former clerk to Justice Clarence Thomas, to defend the 11th Circuit’s position. In arguing that Section 2244(b)(1) does apply to federal inmates, Mitchell relies on the fact that Section 2255(h) expressly refers generally to Section 2244. Mitchell also buttresses that argument by pointing to the broader structure of limits on federal habeas review.