Torrez, Bowe v. United States
In 2008, Michael Bowe was charged, and convicted, with conspiracy to commit a Hobbs Act (18 U.S.C. § 1951) robbery, attempted Hobbs Act robbery, and use of a firearm in a violent crime. In 2009, Bowe pleaded guilty to all charges and received a 288-month sentence, 120 of which are associated with the conviction under 18 U.S.C. § 924(c), a federal mandate law for a minimum time served for carrying a firearm during a violent crime. In 2015, the Supreme Court ruled in Johnson v. United States that the Armed Career Criminal Act (ACCA)—mandating a minimum of 15 years for convictions of those committing a violent crime with 3 or more prior convictions for violent felonies—had an unconstitutionally vague residual clause. The residual clause, defined in 18 U.S.C. § 924(e)(2)(B)(ii), defined a “violent felony” as one involving “conduct that presents a serious potential risk of physical injury to another” which was determined to be too vague to give notice to what constitutes a violent felony and thus 18 U.S.C. § 924(e)(2)(B)(ii) was struck down. Spurred by the growing question of what qualifies as a violent crime or felony, Bowe began his appeal process in 2016, arguing that Johnson v. United States serves as precedent to which his crimes are no longer classified as “crimes of violence” necessary for his firearm conviction under 18 U.S.C. § 924(c).
Bowe appealed, filing a 28 U.S.C. § 2255 motion, a motion petition filed by or on the behalf of a federal prisoner for federal habeas corpus relief. A §2255 motion can vacate the sentence if (1) the sentence imposed is unconstitutional or unlawful, (2) the Court lacked jurisdiction, (3) the sentence was excess to the maximum prescribed by law, or (4) the sentence is subject to collateral attack. Bowe’s initial §2255 motion was denied by the district court.
In 2019, the Supreme Court struck down 18 U.S.C. § 924(c)(3)(B), the residual clause of a federal mandate for penalties for “crimes of violence” involving firearms in Davis v. United States. The residual clause contained language that provided enhanced sentences to criminal defendants who used firearms when committing a “crime of violence,” using a definition one provided in 18 U.S.C. §924(c): “(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and— (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Justices decided that the definition of “crime of violence” was vague primarily by the (B) prong, arguing that it provides no explanation as to whether an ordinary criminal offense always carried “substantial risk” of force. As Bowe’s original conviction carried 120 months under 18 U.S.C. § 924(c), Bowe then filed a second 28 U.S.C. §2255 motion to vacate; however, Bowe had to navigate the restrictions of the “second-and-successive” motion clause of 28 U.S.C. §2255(h). The second-and-successive motion clause restricts new motions to vacate for federal prisoners, requiring motions demonstrate either (1) new evidence affirms the defendant’s innocence under 28 U.S.C. §2255(h)(1) or (2) a new rule of constitutional law has arisen under 28 U.S.C. §2255(h)(2). Motivated by the unconstitutionality of 18 U.S.C. § 924 residual clause in Davis, Bowe sought to demonstrate that Davis is a “new rule of constitutional law” that would affect his conviction, and thus his prison sentence. Upon the submission of his motion, the motion to certify was denied by the Eleventh Circuit Court as his conviction still fulfilled the “elements clause” of 18 U.S.C. § 924(c)’s definition of a “crime of violence.” However, in 2022 in United States v. Taylor, the Supreme Court invalidated the “elements clause” in the Eleventh Circuit’s precedent, holding that convictions like Bowe’s were not considered under the “elements clause,” thus eliminating any chance of a “crime of violence” for Bowe. Bowe returned with his claim under Davis to the Eleventh Circuit and was again denied—however, this time on the grounds of a habeas corpus procedure.
The key distinction in Bowe is whether under certain statutes are state and federal prisoners subjected to the same motion requirements and jurisdictions. 28 U.S.C. § 2254 holds that for state prisoners filing a habeas corpus application, under the Antiterrorism and Effective Death Penalty Act (AEDPA), “any claim presented in prior application” must automatically be rejected under 28 U.S.C. § 2244. Bowe has now appealed this rejection to the Supreme Court, which heard oral argument on the primary questions of (1) whether 28 U.S.C. § 2244(b)(1) applies also to federal prisoners and (2) whether the Supreme Court has certiorari jurisdiction over a court of appeals petition, whether granted or denied, of successive claims under 28 U.S.C. § 2255.
Oral Arguments
In oral arguments, Bowe’s representation, quite simply, asserted that §2244(b)(1) only applies to habeas corpus applications under Section 2254, and thus not Section 2255 which has its “own gatekeeping requirements.” They further asserted that the theory being argued by the respondent was “an elaborate theory that no court in the country has adopted,” and that there is no evidence that the restrictions under 2244(b)(1) apply to federal prisoners.
The majority of the oral arguments focused on addressing the primary questions of the case (1) whether §2244(b)(1) applies to federal prisoners and (2) whether the Supreme Court has jurisdiction to review grants or denials of successive claims under 28 U.S.C. § 2255. Amicus for the Ninth Circuit Court presented a brief which the respondent relied upon, arguing that the Supreme Court does not have jurisdiction as under 28 U.S.C. § 2244(b)(3)(E), “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.” Bowe’s representation, however, argued that the appeal petition submitted by Bowe was on the “antecedent question” of whether Bowe had to prove (b)(1) gatekeeping requirements at all and was not an appeal based on the denial of authorization from the appeals court.
Regarding the question of the application of §2244(b)(1), Bowe’s representation argued that by a cross-reference to §2244 in § 2255(h), only the “certification” requirement of §2244(b)(3)(E) not the restrictions of second and success motions found under §2244(b)(1) apply to federal prisoners.
Additionally, Bowe’s representation narrowed in on §2244(b)(3)(E), arguing that since Bowe’s request was dismissed by §2244(b)(1) and the court of appeals never stated that Bowe failed to meet the preliminary showing of Section §2244(b)(3)(C). Therefore, the dismissal of the petition was never “a grant or denial of authorization” under §2244(b)(3)(E), while citing Castro v. United States (2003) as the Supreme Court’s jurisdiction in the case.
The respondent representing the federal government, interestingly, agrees with Bowe that the application of §2244(b)(1) was incorrect. However, the respondent argues that the structure of AEDPA is such that §2244 restrictions apply to federal prisoners, even if language is specified for state prisoners, and that even if AEDPA did not apply that pre-AEDPA considerations like “abuse of the writ” would restrict Bowe’s second and successive motions. When pressed by some of the Justices about the application of the clear statement rule, the respondent claimed that the context of §2244(b)(3) including a 30-day time limit makes it sufficiently clear that the jurisdiction remains in the lower courts. Additionally, the petitioner held that Bowe’s petition was denied as court dismissals count as denials, so Bowe cannot escape §2244(b)(3)(E) by claiming it was never approved or denied.
**Predictions from Oral Arguments **
The Justices seemed largely concerned with the jurisdictional question at hand. Yet, given that a writ of certiorari was granted, a majority of the Justices must believe the Supreme Court has jurisdiction. If the Justices were to establish jurisdiction in Bowe, it may call into question parts of §2244(b)(3), such as the 30-day time limit, which could not coincide with the time it takes to be granted writ of certiorari.
Additionally, it does not appear that a majority would rule that §2244(b)(1) applied to federal prisoners.
