SCOTUS narrows federal bar on ‘successive’ PCR filings

A federal law limiting “second or successive applications” for postconviction relief did not apply to bar a federal prisoner’s most recent effort to obtain postconviction relief from a mandatory consecutive 10-year sentence imposed for using a firearm in the commission of a crime of violence in 2008, a divided U.S. Supreme Court has ruled.

Under the Antiterrorism and Effective Death Penalty Act of 1996, a prisoner must first seek certification from a court of appeals that a filing meets certain conditions before proceeding in federal court with second or subsequent efforts at obtaining postconviction relief.

The case before the Supreme Court involved the claims of Michael S. Bowe, who in 2008 pleaded guilty to conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery and using a firearm in relation to a “crime of violence” under 18 U.S.C. §924(c)(1)(A). Bowe’s §924(c) conviction called for the imposition of a mandatory 10-year sentence to be served consecutively to his sentences for robbery sentences.

Following his conviction, Bowe made several attempts to have his 10-year mandatory sentence overturned based on new decisions by the U.S. Supreme Court interpreting §924(c). The 11th U.S. Circuit Court of Appeals rejected those attempts under 28 U.S. Code §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.”

Bowe filed a petition for certiorari with the Supreme Court, contending a circuit split existed as to whether §2244(b)(1)’s so called “old claim” bar applied to federal prisoners. Six of the nine circuits to have addressed the question have concluded that §2244(b)(1)’s old-claim bar does federal prisoners.

The Supreme Court’s granted review.

However, as a threshold issue, the government contended the court lacked jurisdiction because §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.”

A majority of the court found jurisdiction existed given the fact Bowe is a federal prisoner and therefore his claims were governed by §2255(h), which makes no mention the Supreme Court’s certiorari jurisdiction. In reaching this conclusion, the majority rejected the government’s argument that a cross-reference in §2255(h) to §2244 made §2244(b)(1) applicable to federal prisoners’ successive §2255 motions.

As to the merits, both Bowe and the government agreed that the 11th Circuit erred by applying §2244(b)(1) to deny Bowe’s applications for relief. After hearing the arguments by amicus counsel appointed by the Supreme Court to argue in support of the 11th Circuit’s position, the majority held that §2244(b)(1) does not apply to motions filed by federal prisoners under §2255(h), reversing the lower court.

Click here to read the full text of the Supreme Court’s Jan. 9, 2026, decision in Bowe v. United States.

• “In the narrow cross-reference to the procedures in §2244, Congress has not clearly indicated that it intended to incorporate §2244(b)(3)(E)’s certiorari bar.”
  — majority opinion by Justice Sonia Sotomayor joined by Chief Justice John G. Roberts Jr. and Justices Elena Kagan, Brett M. Kavanaugh and Ketanji Brown Jackson

• “Really, the idea that §2244(b)(3)(E) applies to federal prisoners and bars them from seeking certiorari has been uncontroversial since AEDPA‘s adoption three decades ago. So much so that, until recently, even the author of today’s majority opinion accepted it. In another case involving Mr. Bowe (yes, the same Mr. Bowe), our colleague urged the Court to consider accepting an original habeas petition to resolve the very same do-over circuit split now before us. In re Bowe, 601 U. S. ___ (2024) (SOTOMAYOR, J., statement respecting denial of habeas corpus). Invoking that unusual procedure, our colleague insisted, was necessary precisely because ‘§2244(b)(3)(E)’s bar on petitioning for review’ would preclude Mr. Bowe from invoking our certiorari jurisdiction. That was right then, and it is right still.”
  — Justice Neil M. Gorsuch, joined by Justices Clarence Thomas, Samuel A. Alito Jr. and Amey Coney Barrett, dissenting as to the majority’s holding on the question of the court’s jurisdiction