Amicus Curiae Brief — Michael Bowe, Petitioner v. United States

No. 24-5438

IN THE

Supreme Court of the United States

________________

MICHAEL BOWE,

v.

UNITED STATES OF AMERICA,

________________

Petitioner,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

MOTION FOR LEAVE TO FILE AND BRIEF OF

STEPHANIE N. O’BANION AS AMICUS

CURIAE IN SUPPORT OF THE COURT’S

CERTIORARI JURISDICTION AND IN

SUPPORT OF VACATUR

STEPHANIE N. O’BANION

Counsel of Record

O’BANION LAW LLC

201 E. Fifth St.

Suite 1900

Cincinnati, Ohio 45202

stephanie@obanionlawllc.com

513-520-2626

Counsel for Amicus Curiae

Stephanie N. O’Banion

MOTION FOR LEAVE TO FILE

Movant Stephanie N. O’Banion seeks leave to file

the accompanying brief as amicus curiae in support of

the Court’s certiorari jurisdiction and in support of

vacatur. Movant has notified all parties and the courtappointed amicus curiae of her intent to file this

motion and the accompanying brief. Both Mr. Bowe

and the court-appointed amicus consent to the relief

requested. The Government has not responded to

Movant’s request for its position. For the following

reasons, there is good cause to grant Movant leave to

file the accompanying brief.

Mr. Bowe petitioned for a writ of certiorari to the

Eleventh Circuit on two questions. In response, the

Government conceded error in the judgment below as

to the first question presented. The Government

nevertheless opposed Mr. Bowe’s petition, arguing

instead that, as to the second question presented, this

Court lacks certiorari jurisdiction to correct the

judgment below. This Court granted a writ of

certiorari on both questions presented and appointed

an amicus curiae to defend the judgment below as to

the first question.

At the request of the parties and court-appointed

amicus, the Court then modified the briefing schedule.

As modified, the schedule extended the time for Mr.

Bowe’s merits brief to April 7, 2025; extended the time

for the Government’s brief to June 11, 2025; and set

the time for court-appointed amicus’s brief as August

22, 2025. As it pertained to other amicus briefs, the

modified schedule provided that “[b]riefs of amicus

curiae in support of the petitioner on either question

presented” were to be filed by April 14, and that “[a]ny

other briefs of amicus curiae” are due by August 29.

Regrettably, Movant submitted the accompanying

amicus brief on July 2, under the mistaken impression

that the brief was subject to the August 29 deadline

for “any other briefs of amicus curiae.” This was

because Movant believed the brief was most fittingly

characterized as supporting neither party on the

second question presented and supporting both

parties on the first question. 1 The Clerk has since

notified Movant that the accompanying amicus brief

was due by the April 14 deadline for briefs in support

of petitioner on either question presented, as it

supports Mr. Bowe on the first question, supports

neither party on the second question, 2 and argues for

vacatur of the judgment below. The Clerk has also

instructed Movant to file this Motion for Leave to File.

Movant respectfully urges the Court to exercise its

discretion and accept the accompanying amicus brief

for filing. 3 First, Movant’s diligence in preparing the

brief is apparent from the record. Movant submitted

the accompanying brief shortly after the Government

filed its brief, 4 several weeks before the deadline for

1 Cf. Memorandum to Those Intending to File an Amicus Curiae

Brief in the Supreme Court of the United States, available at

www.supremecourt.gov/casehad/AmicusGuide2023.pdf, at 2

(advising that, at the merits stage, an amicus brief in support of

multiple parties is generally due 7 days after the last timely-filed

brief of a party supported).

2 See Supreme Court Rule 37.3 (under the Court’s standard

briefing schedule, amicus briefs in support of neither party are

due at the same time as amicus briefs in support of petitioner).

3 Supreme Court Rule 21.2(b); Bowles v. Russell, 551 U.S. 205,

212 (2007).

4 See Supreme Court Rule 37.1 (cautioning that amicus briefs

that duplicate arguments made by the parties are disfavored).

court-appointed amicus’s brief, 5 and nearly two

months before Movant thought the brief was due.

Second, the delay in filing should not prejudice the

parties, the court-appointed amicus, or the Court.

Both Mr. Bowe and the court-appointed amicus have

consented to the relief requested, and the government

has been notified of Movant’s intent to file this motion

and accompanying brief. Oral argument is not

scheduled until October 2025, and the proposed brief

is intended only to aid the Court in its consideration

of the questions presented.

Finally, the accompanying amicus brief would

significantly assist the Court in resolving this case.

Importantly, the brief draws into question whether

the Eleventh Circuit had jurisdiction over Mr. Bowe’s

request for authorization – an issue that this Court

has an independent obligation to consider, that the

parties have not yet addressed, and that the courtappointed amicus is unlikely to contest in defending

the judgment below on the first question presented.

CONCLUSION

Movant respectfully asks that the Court grant

leave to file the accompanying brief of amicus curiae

in support of the Court’s certiorari jurisdiction and in

support of vacatur. Movant apologizes for any

inconvenience the delay in filing the brief has caused.

5 Despite the confusion as to when the proposed brief was due,

Movant nevertheless recognized the importance of affording the

court-appointed amicus an opportunity to consider Movant’s

views before the brief in support of the judgment below was filed.

For that reason, Movant endeavored to complete and submit the

proposed brief well in advance of the deadline for court-appointed

amicus’s brief.

Respectfully submitted,

STEPHANIE N. O’BANION

Counsel of Record

O’BANION LAW LLC

201 E. Fifth St.

Suite 1900

Cincinnati, Ohio 45202

stephanie@obanionlawllc.com

513-520-2626

Counsel for Amicus Curiae

August 4, 2025

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

INTRODUCTION ..................................................... 2

SUMMARY OF ARGUMENT .................................. 4

ARGUMENT ............................................................ 5

I.

This Court should leave the second

question presented for another day

because, no matter how it might resolve

that question, this Court has certiorari

jurisdiction to review the Eleventh

Circuit’s dismissal of Mr. Bowe’s request

for authorization to file a second or

successive motion to vacate under 28

U.S.C. § 2255. .................................................. 5

II. The Eleventh Circuit had jurisdiction

over—and an obligation to either grant or

deny—Mr. Bowe’s authorization request;

its judgment dismissing his request for

lack of jurisdiction should be vacated. ........... 7

III. By its own terms and for myriad other

reasons, 28 U.S.C. § 2244(b)(1) does not

apply to claims presented in a second or

successive § 2255 motion. ............................. 18

IV. Mr. Bowe’s proposed second or successive

§ 2255 motion satisfies the requirements

for authorization. .......................................... 26

CONCLUSION ....................................................... 26

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bousley v. United States,

523 U.S. 614 (1998) .......................................... 22

Burton v. Stewart,

549 U.S. 147 (2007) (per curiam) .................... 10

Castro v. United States,

540 U.S. 375 (2003) .............................. 5, 6, 7, 15

Day v. McDonough,

547 U.S. 198 (2006) .......................................... 25

Felker v. Turpin,

518 U.S. 651 (1996) ........ 8, 12, 13, 15, 17, 22, 23

Gonzalez v. Crosby,

545 U.S. 524 (2005) .......................................... 11

Gonzalez v. Thaler,

565 U.S. 134 (2012) .......................................... 16

In re Baptiste,

828 F.3d 1337 (11th Cir. 2016) (per curiam) ......

................................................................ 3, 17, 18

In re Bradford,

830 F.3d 1273 (11th Cir. 2016) (per curiam) ......

................................................................ 3, 17, 18

In re Graham,

61 F.4th 433 (4th Cir. 2023) ............................ 19

In re Hammoud,

931 F.3d 1032 (11th Cir. 2019) ........................ 26

In re Jones,

830 F.3d 1295 (11th Cir. 2016) (per curiam) ..........

.................................................................. 11, 14, 17

iii

Page(s)

In re Williams,

364 F.3d 235 (4th Cir. 2004) ................................ 14

Jones v. Hendrix,

599 U.S. 465 (2023) .............................................. 22

Koons Buick Pontiac GMC, Inc. v. Nigh,

543 U.S. 50 (2004) ................................................ 23

Kuhlmann v. Wilson,

477 U.S. 436 (1986) ........................................ 21, 22

Lindh v. Murphy,

521 U.S. 320 (1997) ........................................ 24, 25

Magwood v. Patterson,

561 U.S. 320 (2010) ............................ 10, 11, 14, 18

McCleskey v. Zant,

499 U.S. 467 (1991) .............................................. 22

Stewart v. Martinez-Villareal,

523 U.S. 637 (1998) .................................... 8, 10, 11

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) .................................. 13, 17, 18

Rivers v. Guerrero,

145 S. Ct. 1634 (2025) ............................ 8, 9, 11, 16

Sanders v. United States,

373 U.S. 1 (1963) ...................................... 20, 21, 22

Sawyer v. Whitley,

505 U.S. 333 (1992) .............................................. 22

Schlup v. Delo,

513 U.S. 298 (1995) .............................................. 22

Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998) ................................................ 15

Tyler v. Cain,

533 U.S. 656 (2001) ................................................ 7

iv

Page(s)

United States v. Davis,

588 U.S. 445 (2019) ...................................... 2, 3, 26

United States v. Hayman,

342 U.S. 205 (1952) .............................................. 12

United States v. St. Hubert,

918 F.3d 1174 (11th Cir. 2019) (en banc) ...... 12, 15

United States v. Taylor,

596 U.S. 845 (2022) ...................................... 2, 3, 26

Williams v. United States,

927 F.3d 427 (6th Cir. 2019) .......................... 19, 20

Woodford v. Garceau,

538 U.S. 202 (2003) ........................................ 11, 17

Statutes

18 U.S.C. § 924(c) .............................................2, 3, 26

28 U.S.C. § 1915(e)(2)(B) ..........................................16

28 U.S.C. § 1915A.....................................................16

28 U.S.C. § 1997e(c) .................................................16

28 U.S.C. § 2241(a) ...................................................12

28 U.S.C. § 2241(d) .............................................11, 15

28 U.S.C. § 2244 ..................................... 14, 21, 23, 24

28 U.S.C. § 2244(a) ...................................................23

28 U.S.C. § 2244(b) ....................... 9, 14, 18, 23, 24, 25

28 U.S.C. § 2244(b)(1) ...... 3, 4, 7, 9, 10, 12, 13, 14, 16

......................................... 17, 18, 19, 20, 21, 23, 24, 25

28 U.S.C. § 2244(b)(2) ..................................................

..................................... 9, 10, 13, 14, 16, 19, 23, 24, 25

28 U.S.C. § 2244(b)(3) ..................................................

................................. 4, 8, 11, 13, 17, 18, 23, 24, 25, 26

28 U.S.C. § 2244(b)(3)(A) .................... 8, 10, 24, 25, 26

28 U.S.C. § 2244(b)(3)(B) ............................................ 8

v

Page(s)

28 U.S.C. § 2244(b)(3)(C) ................ 8, 9, 15, 17, 24, 26

28 U.S.C. § 2244(b)(3)(D) ............................ 8, 9, 15, 17

28 U.S.C. § 2244(b)(3)(E) .............................. 5, 6, 7, 15

28 U.S.C. § 2244(b)(4) ................... 9, 10, 13, 14, 16, 23

28 U.S.C. § 2244(d) .............................................. 24, 25

28 U.S.C. § 2244(d)(1) ............................................... 20

28 U.S.C. § 2244(d)(2) ............................................... 24

28 U.S.C. § 2253(a) .................................................... 20

28 U.S.C. § 2254 ............. 4, 5, 7, 8, 9, 10, 11,12, 13, 14

.............................. 15, 16, 17, 18, 19, 20, 21, 23, 24, 25

28 U.S.C. § 2255 .......... 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13

........................ 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26

28 U.S.C. § 2255(a) ........................................ 12, 15, 26

28 U.S.C. § 2255(b) .............................................. 12, 15

28 U.S.C. § 2255(f)............................................... 20, 25

28 U.S.C. § 2255(h).................. 8, 10, 13, 19, 20, 25, 26

28 U.S.C. § 2255(h)(1) ............................................... 22

28 U.S.C. § 2255(h)(2) ............................................... 22

28 U.S.C. § 2255, ¶ 5 (1948) ...................................... 20

Legislation

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1214 ..............................

............................ 7, 8, 12, 16, 20, 21, 22, 23, 24, 25

AEDPA § 101 ....................................................... 20, 24

AEDPA § 102 ............................................................. 20

AEDPA § 103 ....................................................... 12, 15

AEDPA § 104 ............................................................. 23

AEDPA § 105 ................................................. 20, 21, 23

vi

Page(s)

AEDPA § 106 ............................................................. 23

AEDPA § 106(a)................................................... 21, 23

AEDPA § 106(b)................................................... 23, 24

Prison Litigation Reform Act of 1995,

Pub. L. 104-134, 110 Stat. 1321 .......................... 16

Rules

U.S. Sup. Ct. R. 20.4.................................................. 15

Fed. R. App. P. 22(a) ................................................. 12

Rule 4 of the Rules Governing

Section 2254 Proceedings for the

United States District Courts........................ 13, 16

Rule 9 of the Rules Governing

Section 2254 Proceedings for the

United States District Courts.............................. 15

Rule 9 of the Rules Governing

Section 2255 Proceedings in the

United States District Courts.............................. 15

1

INTEREST OF AMICUS CURIAE 1

Amicus curiae is a member of this Court’s bar who

has a particular expertise and keen interest in the

subject matter of this litigation. Amicus has extensive

experience working for the federal courts, having

served as the chief deputy clerk of court and as a staff

attorney for a federal court of appeals, and also as a

law clerk for a federal administrative law judge, a

district judge, and a circuit judge. Now in private

practice with a primary focus on federal appellate

litigation, amicus has a compelling professional

interest in ensuring that prisoners retain full access

to all the rights and remedies afforded them by the

United States Constitution and other federal laws.

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, nor did any person

or entity, other than amicus, make a monetary contribution to

the preparation or submission of this brief.

2

INTRODUCTION

Michael Bowe is a federal prisoner who wants to

file a motion under 28 U.S.C. § 2255 asserting one

claim: that his conviction under 18 U.S.C. § 924(c) is

invalid because neither of the offenses on which it is

predicated—conspiracy to commit Hobbs Act robbery

and attempted Hobbs Act robbery—qualifies as a

“crime of violence.” In support of this claim, he seeks

to rely on United States v. Davis, 588 U.S. 445 (2019)

and United States v. Taylor, 596 U.S. 845 (2022).

Because Mr. Bowe’s § 2255 motion is “second or

successive,” however, he must first get authorization

from the Eleventh Circuit Court of Appeals before he

can file it in the district court. Mr. Bowe has—on four

occasions—asked the Eleventh Circuit for permission

to file a § 2255 motion challenging the validity of his

§ 924(c) conviction. The Eleventh Circuit denied his

first request because, under then-binding Eleventh

Circuit precedent, attempted Hobbs Act robbery still

counted as a “crime of violence,” even though, under

this Court’s then-recent decision in Davis, conspiracy

to commit Hobbs Act robbery did not.

Then, this Court held, in Taylor, that attempted

Hobbs Act robbery does not qualify as a “crime of

violence” either. In fact, in Taylor, this Court

concluded that a different federal prisoner was

entitled to relief on his second or successive § 2255

motion challenging the validity of his § 924(c)

conviction, which—just like Mr. Bowe’s—was

predicated on conspiracy to commit Hobbs Act robbery

and attempted Hobbs Act robbery. 596 U.S. at 849-50;

id. at 862-63 (Thomas, J., dissenting).

3

Mr. Bowe promptly filed two more requests for

authorization to a second or successive § 2255 motion

in the district court, but the Eleventh Circuit rejected

both requests in short order. Specifically, the

Eleventh Circuit dismissed the requests to the extent

Mr. Bowe was trying to rely on Davis because he had

already requested, and been denied, authorization to

bring such a claim. In reaching this conclusion, the

Eleventh Circuit relied on two of its own binding

circuit precedents, In re Baptiste and In re Bradford.

Between those two decisions, the Eleventh Circuit

had concluded that, under 28 U.S.C. § 2244(b)(1), it

lacks jurisdiction to even consider an authorization

request that relies exclusively on a claim the prisoner

has already proposed in a prior unsuccessful request.

See In re Baptiste 828 F.3d 1337 (11th Cir. 2016) (per

curiam); In re Bradford, 830 F.3d 1273 (11th Cir.

2016) (per curiam). The Eleventh Circuit denied Mr.

Bowe authorization to the extent he sought to rely on

Taylor because a claim based only on Taylor does not

satisfy the requirements for authorization.

After unsuccessfully seeking a writ of habeas

corpus from this Court, Mr. Bowe again asked the

Eleventh Circuit for authorization to file a second or

successive § 2255 motion challenging the validity of

his § 924(c) conviction based on Davis and Taylor.

That court responded by dismissing the request, in its

entirety, for lack of jurisdiction based on § 2244(b)(1),

In re Baptiste, and In re Bradford. This Court has

granted a writ of certiorari on two questions.

4

SUMMARY OF THE ARGUMENT

This Court need not answer the second question

presented. No matter how it might resolve that

question, this Court has certiorari jurisdiction to

review the Eleventh Circuit’s dismissal of Mr. Bowe’s

authorization request for lack of jurisdiction. Any

comment on the merits of the second question

presented would be dictum, and the Court should thus

leave that question for another day.

The Eleventh Circuit had jurisdiction, under 28

U.S.C. § 2244(b)(3), over Mr. Bowe’s authorization

request, and 28 U.S.C. § 2244(b)(1) did not divest it of

that jurisdiction. That court thus had an obligation to

exercise its jurisdiction and either grant or deny Mr.

Bowe’s request.

By its own terms and for myriad other reasons,

§ 2244(b)(1) applies only to claims presented by a

state prisoner in a “habeas corpus application under

section 2254.” It does not apply to claims presented by

a federal prisoner in a § 2255 motion to vacate, and it

does not apply to claims a prisoner has only proposed

in an earlier, unsuccessful authorization request.

Mr. Bowe’s proposed second or successive § 2255

motion satisfies the requirements for authorization.

This Court should find certiorari jurisdiction, vacate

the judgment dismissing his authorization request for

lack of jurisdiction, and remand this matter to the

Eleventh Circuit with instructions to grant Mr. Bowe

authorization to file his proposed § 2255 motion in the

district court.

5

ARGUMENT

I.

This Court should leave the second

question presented for another day

because, no matter how it might resolve

that question, this Court has certiorari

jurisdiction to review the Eleventh

Circuit’s dismissal of Mr. Bowe’s request for

authorization to file a second or successive

motion to vacate under 28 U.S.C. § 2255.

Under 28 U.S.C. § 2244(b)(3)(E), “[t]he grant or

denial of authorization by a court of appeals [of a

prisoner’s request for authorization] to file a second or

successive application shall not be the subject of a

petition . . . for writ of certiorari.” By its express terms,

§ 2244(b)(3)(E) deprives this Court of certiorari

jurisdiction over a circuit court’s order granting or

denying a state prisoner’s request for authorization to

file a second or successive application for a writ of

habeas corpus under 28 U.S.C. § 2254. The second

question presented in this case asks whether

§ 2244(b)(3)(E) also deprives this Court of certiorari

jurisdiction over a circuit court’s grant or denial of a

federal prisoner’s request for authorization to file a

second or successive motion to vacate under § 2255.

This Court need not answer that question because the

Eleventh Circuit dismissed Mr. Bowe’s authorization

request for lack of jurisdiction and a “grant or denial”

of authorization is therefore not “the subject of” his

petition for writ of certiorari.

By its terms, § 2244(b)(3)(E) operates to divest this

Court of certiorari jurisdiction only when a circuit

court has exercised its jurisdiction and either granted

or denied authorization. See Castro v. United States,

540 U.S. 375, 379-81 (2003). In Castro, the district

6

court determined that a federal prisoner’s § 2255

motion was “second or successive” and dismissed it

because the prisoner had not obtained authorization

from the circuit court. The circuit court affirmed,

agreeing with the district court that the prisoner’s

motion was “second or successive” and thus subject to

dismissal for lack of authorization. In its opinion,

however, the circuit court also noted that the

prisoner’s § 2255 motion did not meet the

requirements for authorization. See id. at 378-79.

This Court held that § 2244(b)(3)(E) did not divest

it of certiorari jurisdiction because the prisoner had

not requested the circuit court’s authorization to file

his § 2255 motion, nor had the circuit court granted or

denied him authorization. Notably, the government

argued to this Court that the circuit court’s opinion

had the “effect” of denying authorization, given its

comment that the prisoner’s § 2255 motion did not

meet the requirements for authorization. In rejecting

that argument, this Court explained that treating the

circuit court’s comment as a “statutorily relevant

denial of a request that was not made” would have

stretched the text of § 2244(b)(3)(E) “too far.” This

Court also held that § 2244(b)(3)(E) did not apply, and

that it thus had certiorari jurisdiction, for a second

reason. That is, “the subject” of the appeal was not a

grant or denial of authorization. Rather, the subject of

the appeal in this Court was the lower courts’

determination that the prisoner’s § 2255 motion was

second or successive. See id. at 379-81.

Here, as in Castro, § 2244(b)(3)(E) does not apply

to divest this Court of certiorari jurisdiction because a

“grant or denial” of authorization is not the “subject

of” Mr. Bowe’s appeal. The Eleventh Circuit neither

7

granted nor denied Mr. Bowe’s authorization request.

Instead, the court dismissed his request for lack of

jurisdiction, concluding that it lacked authority to

even consider whether his proposed § 2255 motion

meets the requirements for authorization. Moreover,

as in Castro, the “subject of” this appeal is not a grant

or denial of authorization. Rather, the subject of Mr.

Bowe’s petition for writ of certiorari is the Eleventh

Circuit’s reliance on § 2244(b)(1), which, by its own

terms, applies only to “habeas corpus application[s]

under section 2254,” to conclude that it lacked

jurisdiction over his request for authorization to file a

second or successive § 2255 motion. See id. at 379-81.

Even if this Court were to answer the second

question presented in the affirmative, it would

nevertheless have certiorari jurisdiction over the

Eleventh Circuit’s judgment. Any comment on the

applicability of § 2244(b)(3)(E) to § 2255 proceedings

would be dictum, and this Court should thus leave

that question for another day. See Tyler v. Cain, 533

U.S. 656, 667-68 (2001).

II.

The Eleventh Circuit had jurisdiction

over—and an obligation to either grant or

deny—Mr. Bowe’s authorization request; its

judgment dismissing his request for lack of

jurisdiction should be vacated.

A. Congress has unequivocally vested the circuit

courts with jurisdiction to grant or deny a prisoner’s

request for authorization to file a second or successive

§ 2254 application or § 2255 motion.

In the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Congress created a new

“gatekeeping” procedure that requires state and

8

federal prisoners to obtain authorization from the

circuit court before they can file a second or successive

§ 2254 application or § 2255 motion in the district

court. See 28 U.S.C. § 2244(b)(3); Felker v. Turpin, 518

U.S. 651, 664 (1996); Rivers v. Guerrero, 145 S. Ct.

1634, 1642 (2025). A prisoner must first file a request

for authorization in the appropriate court of appeals.

See § 2244(b)(3)(A). A three-judge panel must then

(1) determine whether the prisoner’s proposed second

or successive pleading makes a prima facie showing

that it satisfies the authorization requirements, and

(2) “grant or deny” authorization accordingly. See

§ 2244(b)(3)(B)-(D).

In AEDPA, Congress also adopted new

“gatekeeping” standards (or “modified res judicata

rules”) that circuit courts must apply when deciding

whether a prisoner’s proposed second or successive

pleading satisfies the authorization requirements. See

Stewart v. Martinez-Villareal, 523 U.S. 637, 641-62

(1998); Felker, 518 U.S. at 661. Which standard

applies depends on whether a state prisoner or a

federal prisoner has requested authorization. See

§ 2244(b)(3)(A), (C); § 2255(h).

For federal prisoners, the “gatekeeping” standard

is set out in § 2255(h). Under this standard, the circuit

court is tasked with ascertaining whether the

prisoner’s proposed second or successive § 2255

motion contains either (1) newly discovered and

convincing evidence of the prisoner’s innocence, or

(2) a new rule of constitutional law, made retroactive

by this Court, that was previously unavailable. Id. If

so, authorization may be granted; if not, it must be

denied. See § 2244(b)(3)(C)-(D).

9

The “gatekeeping” standard for state prisoners is

found in § 2244(b). This standard directs the circuit

court to undertake a two-step, claim-by-claim review

of the prisoner’s proposed second or successive § 2254

application. First, § 2244(b)(1) mandates that any

claim that has been “presented in a prior application

shall be dismissed.” In turn, § 2244(b)(2) instructs

that any claim that has not been presented in a prior

application must also be dismissed, unless the

prisoner can make a prima facie showing that the

claim meets one of two exceptions. Specifically, any

newly presented claim must be dismissed unless it

(1) relies on a new rule of constitutional law, made

retroactive by this Court, that was previously

unavailable, or (2) is based on newly discovered facts

that, if proven, would convincingly establish that, but

for constitutional error, no jury would have found the

prisoner guilty of the offense. Id.

The standard for state prisoners in § 2244(b)(1)

and (2) must also be read in context with § 2244(b)(4),

which requires a district court to dismiss any claim

presented to that court in an authorized second or

successive § 2254 application, if the prisoner does not

show that the claim satisfies § 2244(b)(1) and (2).

Rivers, 145 S. Ct. at 1642. Read together, these three

provisions direct the circuit court to determine

whether the prisoner has made a prima facie showing

that his or her proposed § 2254 application includes at

least one claim that, if presented to the district court,

would not be subject to dismissal under § 2244(b)(4)

because it does not satisfy § 2244(b)(1) and (2). If so,

authorization may be granted; otherwise, it must be

denied. See § 2244(b)(3)(C)-(D).

10

When authorization is granted, the circuit court

issues an order authorizing the prisoner to file his or

her second or successive pleading in the district court.

An authorization order from the circuit court is the

prisoner’s “jurisdictional ticket” to the district court.

Burton v. Stewart, 549 U.S. 147, 152-53, 157 (2007)

(per curiam); Stewart, 523 U.S. at 640-42. Once a state

prisoner files an authorized second or successive

§ 2254 application in the district court, that court

must then, under § 2244(b)(4), dismiss any claims

that do not satisfy the “gatekeeping” standard in

§ 2244(b)(1) and (2). 2 Authorized second or successive

§ 2254 applications and § 2255 motions are litigated

in the normal course otherwise.

B. The circuit courts’ “gatekeeping” jurisdiction is

limited to granting or denying authorization requests;

it does not extend to adjudicating any proposed second

or successive pleadings or claims that a prisoner has

submitted with the request.

An authorization request merely seeks the circuit

court’s permission to file a second or successive § 2254

application or § 2255 motion in the district court. See

§ 2244(b)(3)(A). The relief being requested is an order

authorizing the prisoner to file his or her proposed

second or successive pleading in, and thus to present

2 There is no parallel post-authorization dismissal requirement

for second or successive § 2255 motions, as the requirement in

§ 2244(b)(4) applies only to claims in § 2254 “applications.” For

federal prisoners, § 2255(h) requires action by the circuit court

only, i.e., certification of the proposed second or successive § 2255

motion. Unlike § 2244(b)(4), it says nothing about the district

court or dismissing previously presented claims. All new claims

are subject to the procedural-default rules, whether presented to

the district court in an initial or authorized second or successive

pleading. See Magwood v. Patterson, 561 U.S. 320, 340 (2010).

11

his or her proposed claims to, the district court. See

Stewart, 523 U.S. at 641; Rivers, 145 S. Ct. at 164243. An authorization request does not seek the circuit

court’s consideration of the prisoner’s proposed

pleading or claims on the merits and thus is not itself

a § 2254 application or § 2255 motion. See Magwood

v. Patterson, 561 U.S. 320, 332 (2010) (a habeas

applicant seeks invalidation of the judgment

authorizing his confinement); In re Jones, 830 F.3d

1295, 1298-1301 (11th Cir. 2016) (per curiam)

(Rosenbaum and Jill Pryor, J.J., concurring in the

result)

(distinguishing

between

authorization

requests, § 2254 applications, and § 2255 motions).

Because an authorization request does not seek

relief under § 2254 or § 2255, its filing is insufficient

to trigger a court’s jurisdiction over the prisoner’s

proposed second or successive § 2254 petition or

§ 2255 motion. See Woodford v. Garceau, 538 U.S. 202,

208 (2003) (citing § 2241(d) for the proposition that a

court’s power to grant a writ of habeas corpus is not

triggered except by “application for a writ of habeas

corpus”); cf. Gonzalez v. Crosby, 545 U.S. 524, 530-32

(2005) (some filings, while labeled as something else,

seek vindication of a “claim” and are thus in substance

a second or successive § 2254 application). Or, as

Judge Martin of the Eleventh Circuit has put it:

The language of [§ 2244(b)(3)] simply

does not authorize courts of appeals to

make merits decisions about the

correctness of an inmate’s sentence

when he is merely seeking permission

to file a habeas petition in District

Court. A [circuit court] panel presented

with a second or successive application

12

is not empowered by the statute to

decide in the first instance whether an

inmate is entitled to relief.

See United States v. St. Hubert, 918 F.3d 1174, 1203

(11th Cir. 2019) (en banc) (Martin, J., dissenting).

Circuit courts do not have original jurisdiction over

§ 2254 applications or § 2255 motions in any event.

The circuit courts used to have jurisdiction to consider

the merits of applications for a writ of habeas corpus,

but Congress withdrew that jurisdiction in AEDPA.

See 28 U.S.C. § 2241(a); Felker, 518 U.S. at 660-64 &

661 n.3. (noting that, in § 103 of AEDPA, Congress

amended Federal Rule of Appellate Procedure 22(a)

“to bar consideration of original habeas [applications]

in the courts of appeals”). Now, only the district courts

and this Court have original jurisdiction over habeas

corpus applications. See Felker, 518 U.S. at 660-61; see

also Fed. R. App. 22(a) (requiring that any habeas

corpus application submitted to a circuit court be

transferred to the appropriate district court). The

district courts have always had exclusive original

jurisdiction over § 2255 motions. See § 2255(a)-(b);

United States v. Hayman, 342 U.S. 205, 212-19 (1952).

In turn, without original jurisdiction over § 2254

applications or § 2255 motions themselves, circuit

courts necessarily lack jurisdiction to adjudicate the

merits of a proposed second or successive § 2254

application or § 2255 motion submitted in support of

an authorization request. And, notwithstanding its

directive that previously presented claims “shall be

dismissed,” § 2244(b)(1) does not independently vest

circuit courts with jurisdiction over any previously

presented claim that a prisoner has included in a

proposed second or successive pleading. Rather, the

13

authority to dismiss previously presented claims, as

required by § 2244(b)(1), lies with the district court

once a state prisoner has filed an authorized second or

successive § 2254 application in, and thus presented

his or her claims to, that court. See § 2244(b)(4) (“A

district court shall dismiss any claim presented in a

second or successive application that the court of

appeals has authorized to be filed unless . . .”

(emphasis added)); Rule 4 of the Rules Governing

Section 2254 Proceedings for the United States

District Courts; cf. Felker, 518 U.S. at 662-63 (leaving

open the question whether this Court is bound by

§ 2244(b)(1) and (2)).

Thus, when a prisoner requests authorization to

file a second or successive § 2254 application or § 2255

motion that includes a previously presented claim, the

circuit court does not have jurisdiction over the

proposed pleading or the previously presented claim.

It does, however, retain its “gatekeeping” jurisdiction

over the authorization request.

In this situation, the circuit court should not, and

cannot, rely on § 2244(b)(1) to dismiss or otherwise

adjudicate the proposed second or successive pleading

or the previously presented claim. Instead, the circuit

court should exercise its “gatekeeping” jurisdiction

and either grant or deny authorization based on the

applicable “gatekeeping” standard. See § 2244(b)(3);

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716

(1996) (federal courts generally have a strict duty to

exercise the jurisdiction Congress has conferred upon

them). If a federal prisoner has made the request, that

means granting authorization if the proposed second

or successive § 2255 motion meets the “gatekeeping”

standard in § 2255(h) and denying authorization if it

14

does not. For state prisoners, if all the claims in the

proposed second or successive § 2254 application have

been presented previously, or do not otherwise meet

the “gatekeeping” standard in § 2244(b)(1) and (2), the

appropriate course of action for the circuit court is to

deny authorization. If, however, at least one claim

meets the standard, authorization should be granted.

Once the state prisoner files the authorized second or

successive § 2254 application in the district court, the

district court will then have jurisdiction to dismiss

any previously presented claims. See § 2244(b)(1), (4).

C. A circuit court has “gatekeeping” jurisdiction

to consider an authorization request, notwithstanding

§ 2244(b)(1), even if the proposed second or successive

pleading includes a claim the prisoner has already

proposed in an earlier unsuccessful request.

First, § 2244(b)(1) does not apply to claims that a

prisoner has only proposed as part of an authorization

request. By its terms, § 2244(b)(1) applies only to “[a]

claim presented in a second or successive habeas

corpus application under [§] 2254 that was presented

in a prior application.” See Magwood, 561 U.S. at 332

(noting that a § 2254 application seeks invalidation of

a state-court judgment). An authorization request is

not an “application.” See In re Jones, 830 F.3d at 1298

(Rosenbaum and Jill Pryor, J.J., concurring in the

result) (“The term ‘application’ as used in § 2244(b)(1)

clearly means the same thing it means in the rest of

§2244—the actual substantive habeas petition filed in

the district court.”); In re Williams, 364 F.3d 235, 24142 (4th Cir. 2004) (“Throughout § 2244(b), including

within § 2244(b)(1) itself, the word ‘application’ refers

to a collateral review application filed or sought to be

filed in the district court.”).

15

In addition, a claim that has only ever been

proposed as part of an authorization request has

never been “presented.” This is because a claim can

only be “presented” in a habeas corpus application or

a § 2255 motion. See § 2241(d); § 2255(a); U.S. Sup.

Ct. R. 20.4; Rule 9 of the Rules Governing Section

2254 Proceedings for the United States District

Courts; Rule 9 of the Rules Governing Section 2255

Proceedings in the United States District Courts.

And a claim that a prisoner has only ever proposed

in conjunction with an earlier authorization request

cannot be considered “presented” simply because the

circuit court purported to dismiss, “reject on the

merits,” or otherwise adjudicate the claim in its order

denying that request. As discussed above, a circuit

court exceeds its limited “gatekeeping” jurisdiction

over an authorization request when it adjudicates a

proposed pleading or claim the prisoner has submitted

with the request. 3 Felker, 518 U.S. at 664 (“This Court

has long recognized that the power to award the writ

by any of the courts of the United States must be given

by written law.” (cleaned up)); § 2255(a)-(b); AEDPA

§ 103; St. Hubert, 918 F.3d at 1203-04 (Martin, J.,

dissenting) (circuit courts lack jurisdiction to decide

the merits of a proposed second or successive pleading

submitted with an authorization request); cf. Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 101-02

(1998) (“For a court to pronounce upon the meaning or

the constitutionality of a state or federal law when it

3 When a

circuit court adjudicates the merits of a proposed

second or successive pleading or claim in an order denying an

authorization request, it effectively forecloses any meaningful

opportunity for reconsideration or appellate review of its decision

too. See § 2244(b)(3)(E). But cf. Castro, 540 U.S. 379-81.

16

has no jurisdiction to do so is, by very definition, for a

court to act ultra vires.”).

Critically, § 2244(b)(1) also does not divest circuit

courts of their “gatekeeping” jurisdiction, even when

a proposed second or successive pleading includes a

claim the prisoner proposed in an earlier unsuccessful

authorization request. Rather, § 2244(b)(1) is simply

the first step of the two-step “gatekeeping” standard

for second or successive § 2254 applications. As such,

it applies to a circuit court acting in its “gatekeeping”

capacity only to the extent it informs the court’s

decision whether to grant or deny a state prisoner’s

request for authorization. That is, § 2244(b)(1) is

relevant to a circuit court only because it bears on the

issue whether a state prisoner has made a prima facie

showing that his or her proposed second or successive

§ 2254 application meets the “gatekeeping” standard,

i.e., whether it includes at least one claim that would

not be subject to dismissal by the district court under

§ 2244(b)(4) because it does not satisfy § 2244(b)(1)

and (2). 4

4 Nor is § 2244(b)(4) is jurisdictional. See Gonzalez v. Thaler,

565 U.S. 134, 141-43 (2012) (discussing jurisdictional rules and

claim-processing rules). Instead, it is a claim-processing rule that

makes a second check for compliance with the “gatekeeping”

standard part of the district court’s preliminary review of an

authorized second or successive § 2254 application. See Rivers,

145 S. Ct. at 1642; Rule 4 of the Rules Governing Section 2254

Proceedings for the United States District Courts. As such,

§ 2244(b)(4) narrows the claims to which the state must respond,

and, in this way, functions much like the claim-processing rules

Congress adopted for other forms of prisoner litigation, the day

after it enacted AEDPA, in the Prison Litigation Reform Act of

1995, Pub. L. 104-134, §§ 803-805, 110 Stat. 1321 (codified, as

relevant, at 28 U.S.C. §§ 1915(e)(2)(B), 1915A, and 1997e(c))).

17

When a prisoner requests authorization to file a

proposed second or successive pleading that contains

a claim the prisoner has only ever proposed in a prior

unsuccessful authorization request, § 2244(b)(1) has

no impact on the circuit court’s “gatekeeping”

jurisdiction. In this situation, the circuit court is

generally obligated to exercise its jurisdiction, decide

whether the prisoner’s proposed second or successive

pleading meets the authorization requirements, and

then grant or deny authorization accordingly. 5 See

§ 2244(b)(3); Quackenbush, 517 U.S. at 716.

D. The Eleventh Circuit has concluded otherwise,

however. In In re Baptiste, the Eleventh Circuit held

that § 2244(b)(1) applies not only to claims that a state

prisoner presents in a second or successive § 2254

application, but that it also applies to claims a federal

prisoner presents in a second or successive § 2255

motion. It also concluded that § 2244(b)(1) “applies

with equal force” to claims that the court “rejected on

the merits” in denying a prisoner’s prior authorization

request. 6 828 F.3d at 1339-40. Furthermore, in In re

Bradford, the Eleventh Circuit held that § 2244(b)(1)

5 Circuit courts have other tools available—like the law-of-the-

case doctrine and their inherent authority to impose reasonable

filing restrictions—to mitigate the burden of repetitive

authorization requests. See In re Jones, 830 F.3d at 1302-03

(Rosenbaum and Jill Pryor, J.J., concurring in the result) (noting

the importance of the law-of-the-case doctrine in this context).

6 To reiterate, circuit courts do not have jurisdiction to “reject

on the merits” or to otherwise adjudicate claims that a prisoner

has proposed as part of a request for authorization. Rather, the

circuit courts’ “gatekeeping” authority is limited to determining

whether a prisoner’s proposed second or successive pleading

meets the “gatekeeping” requirements and granting or denying

authorization accordingly. See § 2244(b)(3)(C)-(D); Woodford,

538 U.S. at 208; Felker, 518 U.S. at 660-64 & 661 n.3.

18

divests it of jurisdiction to even consider an

authorization request that relies exclusively on a

claim for which the prisoner has already requested,

and been denied, authorization. 830 F.3d at 1277-78.

The Eleventh Circuit relied on In re Baptiste and

In re Bradford to conclude that it lacked jurisdiction

over Mr. Bowe’s request for authorization. Those

decisions are erroneous and should be overturned.

The Eleventh Circuit had jurisdiction over Mr. Bowe’s

request under § 2244(b)(3), and § 2244(b)(1) did not

divest it of that jurisdiction. The Eleventh Circuit

thus had an obligation to exercise its jurisdiction and

either grant or deny Mr. Bowe’s authorization

request. See Quackenbush, 517 U.S. at 716. Its

judgment of dismissal should be vacated.

III. By its own terms and for myriad other

reasons, § 2244(b)(1) does not apply to

claims presented in a second or successive

§ 2255 motion.

A. First, by its terms, § 2244(b)(1) does not apply

to claims presented in a second or successive § 2255

motion. Specifically, the text of § 2244(b)(1) refers

only to claims presented in a “habeas corpus

application under [§] 2254.” Magwood, 561 U.S. at 332

(“The limitations imposed by § 2244(b) apply only to a

habeas corpus application under § 2254, that is, an

application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State

court.” (cleaned up)). In holding that § 2244(b)(1) does

not extend to federal prisoners seeking relief under

§ 2255, the Sixth Circuit described § 2244(b)(1)’s

express reference to § 2254 applications as a “glaring

textual red flag.” That court has also criticized In re

19

Baptiste, referring to its application of § 2244(b)(1) to

§ 2255 movants as “an unjustifiable contravention of

[the] plain statutory text.” Williams v. United States,

927 F.3d 427, 434-436 & 435 n.5 (6th Cir. 2019).

Moreover, as the Fourth Circuit has aptly explained:

Sections 2244(b)(1) and (b)(2) . . .

appear to work in tandem to establish

the requirements for authorizing a

second

or

successive

§ 2254

application; which provision applies

turns on whether the petitioner seeks

to bring a claim “presented in a prior

application.”

By contrast, the gatekeeping test for

authorizing a second or successive

§ 2255 motion applies, by its terms, to

any “second or successive motion,”

regardless of whether the claim in the

second or successive motion was

previously presented. That is, whereas

§ 2244(b)(2) limits the application of its

gatekeeping test for second or

successive § 2254 applications to

claims that were “not presented in a

prior application,” § 2255(h) provides

no such limiting language.

In re Graham, 61 F.4th 433, 439 (4th Cir. 2023).

B. Besides, if Congress had wanted § 2244(b)(1) to

apply to claims presented in § 2255 motions too, it

knew how to make that happen.

One obvious option would have been to modify the

text of § 2244(b)(1) so that it applies to both § 2254

applications and § 2255 motions. Congress did just

20

that, elsewhere in AEDPA, when it amended the

standard for appellate review for both habeas

applicants and § 2255 movants. See AEDPA § 102

(codified at 28 U.S.C. § 2253(a)) (“In a habeas corpus

proceeding or a proceeding under section 2255 . . .”);

Williams, 927 F.3d at 435 (noting that, in AEDPA,

“Congress clearly knew how to refer to federal

prisoners (or all applicants) when it wanted to do so”).

Alternatively, Congress could have imported the

text of § 2244(b)(1) into § 2255(h), making minimal

revisions so that it would refer to federal prisoners

instead of state prisoners. Congress took that very

approach, elsewhere in AEDPA, when it enacted

nearly identical statutes of limitations for both § 2254

applications and § 2255 motions. Compare AEDPA

§ 101 and 28 U.S.C. § 2244(d)(1), with AEDPA § 105

and 28 U.S.C. § 2255(f).

C. Notably, in AEDPA, Congress struck an

existing “gatekeeping” provision from § 2255 that had,

for nearly half a century, already limited federal

prisoners’ ability to re-litigate claims they had

presented in a prior § 2255 motion. See 28 U.S.C.

§ 2255, ¶ 5 (1948) (“The sentencing court shall not be

required to entertain a second or successive [§ 2255]

motion for similar relief on behalf of the same

prisoner.”); see also AEDPA § 105 (striking the fifth

undesignated paragraph from § 2255). That provision,

together with this Court’s pre-AEDPA jurisprudence,

generally prevented district courts from reaching the

merits of claims that had been heard and decided on

the merits in a prior § 2255 motion (i.e., successive

claims), or claims that were previously available, but

not raised, in an earlier motion (i.e., abuse of the writ).

See Sanders v. United States, 373 U.S. 1, 12-15 (1963).

21

It would have made scant sense for Congress to

strike the existing “gatekeeping” provision from

§2255, in favor of enacting a new standard for second

or successive § 2255 motions by: (1) adopting only half

of the new standard in § 2255, where the standard had

been codified since the remedy was first created, see

Sanders, 373 U.S. at 4, 12-13; (2) borrowing half of its

new standard for second or successive § 2254

applications to serve as the other half of its new

standard for § 2255 motions, even though that

provision, by its own express terms, applies only to

§ 2254 applications, see § 2244(b)(1); and (3) doing so

via an overly broad cross-reference to all of § 2244,

where it had only ever codified standards for second

or successive habeas corpus applications, see

Kuhlmann v. Wilson, 477 U.S. 436, 448-51 (1986).

The more plausible inference is that, in AEDPA,

Congress chose one new “gatekeeping” standard for

second or successive § 2254 applications and codified

it in § 2244, like it always had; and that it adopted a

different new standard for second or successive § 2255

motions and codified that standard in its entirety in

§ 2255, as it always had. Compare AEDPA § 106(a)

(“Limits on Second or Successive Applications”), with

AEDPA § 105 (“Section 2255 Amendments”).

D. Moreover, in AEDPA, Congress simultaneously

replaced the “gatekeeping” provision that it struck

from § 2255 with a new standard for second or

successive § 2255 motions that, like its predecessor,

applies to both new and previously raised claims.

Conspicuously, the new “gatekeeping” standard for

second or successive § 2255 motions incorporates

stricter versions of the same standards courts had

been applying to both new and previously presented

22

claims under the since-stricken provision and this

Court’s pre-AEDPA jurisprudence. See Felker, 518

U.S. at 664. Before AEDPA was enacted, district

courts generally could not reach the merits of claims

that a prisoner had, or could have, raised in a prior

§ 2255 motion. See Sanders, 373 U.S. at 12-15. A

prisoner’s failure to present a claim in an earlier

§ 2255 motion could be excused, however, upon a

showing of either “cause and prejudice” or “actual

innocence.” See McCleskey v. Zant, 499 U.S. 467, 47795 (1991). So too could a prisoner be excused for not

having made a particular legal argument or adduced

evidence that would have supported a previously

presented claim. See Kuhlmann, 477 U.S. at 451-54.

The new “gatekeeping” standard for federal

prisoners seeking to bring new claims or to re-litigate

previously denied claims based on newly discovered

evidence incorporates a more limited version of both

the “actual innocence” and “cause and prejudice”

standards. Compare § 2255(h)(1), with Schlup v. Delo,

513 U.S. 298, 313-27 (1995), Sawyer v. Whitley, 505

U.S. 333, 338-47 (1992), Kuhlmann, 477 U.S. at 45154, and McCleskey, 499 U.S. at 493-95. And the new

standard for federal prisoners seeking another round

of § 2255 review based on an intervening change in

law is a narrower version of the “cause and prejudice”

standard. Compare § 2255(h)(2), with Bousley v.

United States, 523 U.S. 614, 622-24 (1998); cf. Jones

v. Hendrix, 599 U.S. 465, 469, 476-80 (2023).

By adopting modified versions of the pre-AEDPA

“gatekeeping” standards, Congress appears to have

intended its new standard for second or successive

§ 2255 motions to apply to both new and previously

raised claims too.

23

E. Likewise, the text of AEDPA itself supports the

conclusion that § 2244(b)(1) does not apply to claims

presented in a § 2255 motion to vacate.

In AEDPA, Congress made substantial changes to

Chapter 153 of Title 28 of the United States Code,

which authorizes federal courts to grant the writ of

habeas corpus. See Felker, 518 U.S. at 654. In § 104 of

the Act, titled “Section 2254 Amendments,” Congress

amended “Section 2254.” See AEDPA § 104 (“Section

2254 . . . is amended . . .”). In §105 of the Act, titled

“Section 2255 Amendments,” Congress amended

“Section 2255.” See AEDPA § 105 (“Section 2255 . . . is

amended . . .”).

Congress’s amendments to § 2244 are found in

§ 106 of the Act. As discussed above, § 2244(b), as

amended by AEDPA, contains the new “gatekeeping”

procedure for both state and federal prisoners, see

§ 2244(b)(3), and the new “gatekeeping” standard for

second or successive § 2254 applications, see

§ 2244(b)(1)-(2), (4). Notably, Congress did not title

§ 106 of the Act “Section 2244 Amendments,” nor does

the text of § 106 make any reference to “Section 2244.”

Instead, § 106 of AEDPA is titled “Limits on

Second or Successive Applications” and is subdivided

into two parts. In § 106(a), Congress amended

“Section 2244(a).” See AEDPA § 106(a) (“Section

2244(a) . . . is amended . . .”). In turn, in § 106(b),

Congress amended “Section 2244(b).” See AEDPA

§ 106(b) (“Section 2244(b) . . . is amended . . .”). 7

7 It is unclear whether this was intentional or inadvertent, but

either way, it does not accord with Congress’s ordinary practice

for referencing subdivided statutory provisions. See Koons Buick

Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60-61 (2004) (discussing

24

It thus appears that, as used in § 106(b) of AEDPA

and the amended text of § 2244(b), Congress used the

phrases “Section 2244(b)” and “this section” to refer

only to § 2244(b), not to the entirety of § 2244. By

extension, it appears that, in § 106(b) of AEDPA and

the text of § 2244(b)(3), the phrase “this subsection”

refers only to § 2244(b)(3), not to all of “Section

2244(b).” When read this way, § 2244(b) makes

eminently more sense. See Lindh v. Murphy, 521 U.S.

320, 336 (1997) (“The upshot is that our analysis

accords more coherence to [two provisions of AEDPA]

than any rival we have examined.”).

Under this reading of “Section 2244(b),” a circuit

court may grant authorization when a prisoner makes

a prima facie showing that his or her proposed second

or successive pleading “satisfies the requirements of

[§ 2244(b)(3)].” See § 2244(b)(3)(C). A state prisoner’s

proposed second or successive § 2254 application

“satisfies the requirements of [§ 2244(b)(3)]” if it is

“permitted by [‘Section 2244(b)’].” 8 See § 2244(b)(3)(A).

“Section 2244(b)” has only three other provisions,

§ 2244(b)(1), (2), and (4); and as discussed above, they

provide the new “gatekeeping” standard for second or

successive § 2254 applications. For federal prisoners,

Congress’s ordinary practice); Lindh v. Murphy, 521 U.S. 320,

337 (1997) (“All we can say is that in a world of silk purses and

pigs’ ears, [AEDPA] is not a silk purse of the art of statutory

drafting.”). Congress did not similarly deviate from its ordinary

practice in § 101 of AEDPA, and its use of the phrase “this

subsection” in § 2244(d)(2) thus appears to refer to the entirety

of § 2244(d), as one would expect from reading the statutory text.

Other requirements in § 2244(b)(3) include filing the

authorization request in the appropriate circuit court and doing

so before filing the proposed § 2254 application or § 2255 motion

in the district court. See § 2244(b)(3)(A).

8

25

a proposed second or successive § 2255 motion

“satisfies the requirements of [§ 2244(b)(3)]” if it is

“permitted by [§ 2255(h)].” See § 2244(b)(3)(A).

Put another way, under this reading of “Section

2244(b),” the “gatekeeping” procedure that Congress

enacted in § 2244(b)(3) directs a circuit court to the

relevant “gatekeeping” standard depending on

whether a state prisoner or a federal prisoner has

requested authorization. When a state prisoner has

made the request, § 2244(b)(3) directs the court to the

standard for state prisoners found in § 2244(b)(1), (2),

and (4). For requests by federal prisoners, § 2244(b)(3)

directs the court to the standard for federal prisoners

in § 2255(h). 9 See Lindh, 521 U.S. at 336.

For these reasons, § 2244(b)(1) applies only to

claims presented by a state prisoner in a “habeas

corpus application under [§] 2254.” It does not apply

to claims presented by a federal prisoner in a § 2255

motion, and it does not apply to claims a prisoner has

only proposed in an earlier, unsuccessful request for

authorization. And to be sure, it does not divest a

circuit court of its “gatekeeping” jurisdiction over a

prisoner’s authorization request under § 2244(b)(3).

IV. Mr. Bowe’s proposed second or successive

§ 2255 motion satisfies the requirements for

authorization.

Mr. Bowe wants to file a § 2255 motion asserting

one claim: that his conviction under § 924(c) is invalid

9 Under this reading, it also follows that a proposed second or

successive pleading need not be timely to meet the “gatekeeping”

requirement, as the statutes of limitations are not among the

“gatekeeping” requirements in “Section 2244(b).” See § 2244(d);

§ 2255(f); Day v. McDonough, 547 U.S. 198, 202, 205-09 (2006).

26

because neither of the offenses on which it is

predicated—conspiracy to commit Hobbs Act robbery

and attempted Hobbs Act robbery—qualifies a “crime

of violence.” See § 2255(a). In support of this claim, he

seeks to rely on Davis and Taylor. In Davis, this Court

announced a new retroactive rule of constitutional law

that was previously unavailable to Mr. Bowe. See In

re Hammoud, 931 F.3d 1032, 1036-39 (11th Cir. 2019).

Mr. Bowe’s proposed § 2255 motion is “permitted by”

§ 2255(h) because it “contain[s] . . . a new rule of

constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable.” See § 2244(b)(3)(A). He has

satisfied the requirements for authorization to file his

proposed second or successive § 2255 motion in the

district court. See § 2244(b)(3)(A), (C).

CONCLUSION

This Court should find certiorari jurisdiction,

vacate the judgment dismissing Mr. Bowe’s

authorization request for lack of jurisdiction, and

remand this matter to the Eleventh Circuit with

instructions to grant Mr. Bowe authorization to file

his proposed second or successive § 2255 motion in the

district court.

Respectfully submitted,

STEPHANIE N. O’BANION

Counsel of Record

O’BANION LAW LLC

201 E. Fifth St.

Suite 1900

Cincinnati, Ohio 45202

stephanie@obanionlawllc.com

513-520-2626

August 4, 2025

Counsel for Amicus Curiae