The Great Writ

Last week the Supreme Court heard oral arguments in Bowe v. United States.  Bowe is a habeas corpus case – but also a case so complex as to render it almost impenetrable for the kind of brief analysis found in most blogs  The case focuses on the applicability of 28 USC §2244 to federal habeas cases filed pursuant to 28 USC §2255.  §2255 applies to motions filed by prisoners detained for violations of federal law and §2254 applies to petitions challenging detention based on violations of state law.  §2244 – entitled “Finality of determination” imposes a variety of rules limiting the ability of a habeas corpus petitioner to file an original habeas petition (the statute of limitations restrictions found in §2244 (d)(1)) as well as limiting the ability to file “second or successive” habeas corpus petitions.  In Bowe, for legitimate reasons, the petitioner sought to file successive motions under §2255 because Bowe was detained pursuant to a federal court judgment and argued that the limitations on such petitions found in §224 didn’t apply to him.  The Eleventh Circuit Court of Appeals, however, dismissed his most recent motion claiming that it ran afoul of §2244.

The problem is that §2244 – on its face – appears to only deal with habeas corpus petitions filed by individuals detained pursuant to a state court judgment.  As §2244(b)(1) states, “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.”  §2244(b)(2) [a] claim not presented in a second or successive habeas corpus application under section 2254 shall be dismissed unless …”. One would think that, on its face, §2244 would not address a federal habeas corpus claim.  However, the Eleventh Circuit, relying upon circuit precedent in In re Baptiste, claimed that §2244(b)(1) extended to second or successive §2255 motions.  How can that be, you might ask.  It is hard to argue that the language is at all ambiguous.  

The Eleventh Circuit acknowledged that the language of the statute did not expressly apply to §2255 motions but noted, “it would be odd indeed if Congress had intended to allow federal prisoners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners.”  This is hardly penetrating legal reasoning, but the Eleventh Circuit went further to observe that “the Second and Sixth Circuits apparently considered the point so obvious that they applied § 2244(b)(1)’s bar against repetitious filings to motions under § 2255 without feeling compelled to engage in any analysis.”  Perhaps they didn’t engage in any analysis because they couldn’t think of any way to justify this interpretation of the law.  Ulitmately, courts have argued that the clear language of the statute isn’t limiting because §2255(h) solves all the problems.

§2255(h) states that a second or successive motion (pursuant to §2255) must “be certified as provided in §2244 by a panel of the appropriate court of appeals…”  This incorporation argument is the crux of the Government’s argument in Bowe.  By requiring certification, the argument goes, the statute in effect forces a §2255 movant to walk down the entirety of the §2244 path.  But that doesn’t work either.  §2244(b)(1) deals with second or successive applications dealing with issues previously presented and (b)(2) deals with issues that weren’t previously presented.  Those (b)(2) claims are barred unless there were new constitutional laws or new factual predicates.  Similar – but not identical – language for (b)(2) is found in §2255(h).  This suggests that the process for federal claimants drafted by Congress – and governed by §2255(h) – was intentionally different from that found in §2244.  This means that incorporation doesn’t work for this portion of §2244 – Congress did not intend for it to apply to federal movants because the process described in §2255(h) is different from a similar process described in §2244(b)(2).  §2244(b)(1) can’t apply to §2255 claimants either because, according to Bowe, it is incongruous to incorporate (b)(1) but not to incorporate (b)(2).

There is also a lengthy and highly technical question of whether – if §2244 applies to federal movants – it is possible to seek certiorari before the Supreme Court for a dismissed claim.  The Government argued in Bowe that the Supreme Court has no jurisdiction to resolve this conflict regarding the rather clear wording of a statute.  If true, the circuit split on this issue could never be resolved because of the bizarre interpretation of these statutory provisions.  It is this last issue which most intrigued the Supreme Court – arguing that the Court would never have jurisdiction to settle a controversy regarding the interpretation of federal law is bound to get pushback.  Whether this Court – dominated by textualists – is prepared to accept that §2244 doesn’t really mean exactly what it says is hard to know.  But, given that habeas corpus is never a popular topic with this Court, Bowe should likely not get his hopes up.