SCOTUS Softens Limits on Repeat Petitions by Federal Prisoners (But Not Much)

In the landmark Antiterrorism and Effective Death Penalty Act of 1996, Congress cracked down hard on repeated attacks on criminal judgments by state prisoners. It also cracked down on such attacks by federal prisoners, but whether the rules for federal prisoners are quite as severe as those for state prisoners is not clear from the language of the statute. Today the U.S. Supreme Court decided two lingering questions on the state-federal distinction in Bowe v. United States. The defendant won on both points.

The outcome is not too surprising. The Government agreed with the defendant on one of the points, and the court had to appoint an amicus to argue in support of the lower court decision. It is an honor to receive this kind of appointment, but victory is rare.

The crackdown on state prisoners is found in 28 U.S.C. 2244(b). Subdivision (1) flatly bars any do-over of a claim made in a previous habeas corpus petition. Subdivision (2) allows new claims, not previously made, only under very limited circumstances. Subdivision (3) requires a state prisoner seeking to file a second or successive petition to first get permission from the court of appeals, and paragraph (3)(E) forbids petitions for rehearing (by either the panel or full court of appeals) or certiorari (in the Supreme Court) to review the decision on whether to grant it.

Federal prisoners file under a different statute, 28 U.S.C. 2255. Subdivision (h) is the repeated attack crackdown. It requires a second or successive motion to be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either newly discovered evidence proving innocence or a new, retroactive rule of constitutional law. The distinction between do-overs and new claims in section 2244(b)(1) and (2) is absent. Does the language “as provided in section 2244” incorporate that section’s flat bar on all do-overs? Does it incorporate the bar on Supreme Court review of the certification decision? No and no.

The 2244(b)(1) do-over bar is the easier question and the one in which the Government agreed with the petitioner. Congress set different criteria for successive attacks by federal prisoners in 2255(h), and it would not have done so if it intended to incorporate the 2244(b)(1) and (2) criteria.

How about the ban on certiorari petitions? That is a more difficult question. Section 2255 does unambiguously incorporate section 2244’s certification procedure, which is set out in subdivision (3), which has paragraphs (A) through (E). Did Congress really intend to incorporate (A) through (D) but not (E)? That’s a stretch, but the Supreme Court has a long history of interpreting jurisdiction-stripping statutes narrowly. Just as a baseball tie goes to the runner, so jurisdiction-stripping ambiguity goes in favor of jurisdiction.

Why should the limits on federal prisoners be less strict than the limits on state prisoners? Because for federal prisoners a section 2255 motion is the only remedy for claims that require facts outside the appellate record or depend on post-appeal developments in the law. For state prisoners, a federal habeas corpus petition is a secondary safeguard in case the primary state remedies fail. Limits on federal habeas corpus for state prisoners are less likely to result in actual miscarriages of justice, since most of them will be caught and corrected in state court.

The decision was 5-4 on the jurisdiction point. Justice Sotomayor wrote the opinion of the court, joined by Chief Justice Roberts and Justices Kagan, Kavanaugh, and Jackson. Justice Gorsuch dissented, joined on both points by Justices Thomas and Alito and on the jurisdictional point only by Justice Barrett, who did not express an opinion on the (b)(1) point.

So is Bowe in the clear to attack his Hobbs Act robbery conviction? Is Justice Gorsuch right that he and others like him “are free to file in district court as many do-over claims as they please.” No. Dissenting opinions’ descriptions of the consequences of the majority opinion should be taken with a heaping tablespoon of salt.

Bowe (and others like him) still have to ask the court of appeals to certify that their petitions include one of the two grounds specified in section 2255(h)(1) and (2). The majority correctly notes that very few claims do.

Does Bowe have new evidence showing clearly that he is innocent? No, he has a new legal precedent holding that Hobbs Act robbery is not a “crime of violence” that results in a heavy sentence enhancement under federal law. But this precedent is not evidence, and it is not a rule of constitutional law, so neither criterion is met.

Today’s opinion leaves that question to the court of appeals, but I expect that this robber will stay in prison.

And Congress really needs to fix the definition of “crime of violence.” See this post and this post.