U.S. Supreme Court Arguments This Week — Habeas Corpus

The U.S. Supreme Court has a two-day argument week this week, as today is Columbus Day. Three of the four cases are criminal cases, but none is a blockbuster. We have one case on habeas corpus, one on restitution and retroactivity, and one on the Fourth Amendment and emergency entry to houses. I will discuss the habeas corpus case in this post.

Bowe v. United States, No. 24-5438, on tomorrow’s (Tuesday’s) calendar, relates to a problem interpreting the Antiterrorism and Effective Death Penalty Act (AEDPA) with regard to successive petitions by federal versus state prisoners. An unusual aspect of the case, as far as Supreme Court habeas corpus cases go, is that the petitioner is actually correct, in my opinion. The Solicitors General of both the current and previous administrations think so too on one of the questions, so a special amicus has been appointed to argue in support of the lower court decision.

When Congress enacted AEDPA in 1996, it cracked down hard on repeated petitions (also called applications) by state prisoners. Such petitions were a major source of delay in capital cases, a primary focus of the statute. Under 28 U.S.C. §2244(b)(1), a claim by a state prisoner repeating a claim from a prior petition must be dismissed. Zero exceptions. New claims in state prisoners’ successive petitions have very strict requirements that few prisoners meet, in paragraph (b)(2), but it’s not quite zero. Then, because Congress did not trust individual district judges to decide whether a successive applications had any claim worthy of going forward, it required that the initial determination of whether the prisoner has made a good enough showing at the beginning of the case to go forward by made by a three-judge panel of the court of appeals. This is paragraph (b)(3).

Federal prisoners are shunted to a different track for their collateral review — a motion in the criminal court. This is governed by § 2255. Subsection (h) requires that the court of appeals certify the motion “as provided in section 2244” to meet one of two requirements. These two track the requirements of § 2244(b)(2). So, does the “as provided in section 2244” include the stricter prohibition of repeated claims from (b)(1), or is it intended to refer only to the procedure in (b)(3)? It has always been clear to me that the substantive requirements are in § 2255(h) itself, and only the procedure is adopted from § 2244. If § 2255 were intended to incorporate § 2244’s substantive criteria, there would be no reason for § 2255 to have its own criteria. I’m surprised any court has ruled to the contrary.

There is a very good reason to be less severe on federal prisoners. For those convicted in federal court, § 2255 is their one and only challenge to the judgment permitting evidence outside the appellate record. For those convicted in state courts, the entire federal habeas corpus process is a backstop to the primary remedy in state courts.

Both the previous and current Solicitors General part company with the petitioner, though, on whether the Supreme Court has jurisdiction to review the court of appeals’ decision on this point. Paragraph (b)(3)(E) of section 2244 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.” Does § 2255(h) incorporate this limitation for federal prisoners’ motions? The successive SGs make reasonable arguments that it does, but the Supreme Court tends to interpret jurisdiction-stripping statutes as narrowly as it can, so I wouldn’t bet on it.