Welcome back to SCOTUS oral arguments and opinions.

Today we're diving into Beau versus United States, a case that presents what I'd call a perfect storm of statutory complexity, jurisdictional puzzles, and a government that switched sides mid litigation.

Set for oral arguments on October 14, this case is another example of the government switching position after a change in presidential administration.

The Trump administration now concedes that the lower court got it wrong, but then argues the Supreme Court has no power to fix the error.

It's like acknowledging someone's trapped in a burning building, but saying the fire department can't respond because of jurisdictional restrictions.

And at the heart of this case is Michael Bowe, a federal prisoner who's shuffled for years to challenge his conviction based on a Supreme Court decision that came down after his trial.

But he keeps getting blocked by a procedural rule that may not even apply to him.

This case raises fundamental questions about how federal prisoners access the courts, whether Supreme Court review is available when circuit courts make mistakes, and the limits of Congress's power to restrict the Supreme Court's jurisdiction.

The implications reach far beyond one prisoner's claim.

Fair warning.

There's a few different statutes at play here.

We'll do our best to try to follow the bouncing ball.

Now, here's the constitutional backdrop that makes this case so compelling.

Bo's conviction was based on crimes, conspiracy and attempted Hobbs act robbery that the Supreme Court later said don't actually qualify as crimes of violence.

So his conviction rests on conduct that, under current Supreme Court precedent, shouldn't support that conviction at all.

And here's something important for our listeners to understand.

This isn't about someone trying to game the system.

When the Supreme Court announces a new rule of constitutional law, the Constitution's ex post facto clause generally requires applying that rule retroactively to people whose convictions became final before the decision came down.

The ex post facto clause prevents the government from punishing someone for conduct that wasn't criminal when they did it or from increasing the punishment after the fact.

That courts have interpreted this to mean that when the Supreme Court narrows the scope of a criminal statute on constitutional grounds, people convicted under the broader interpretation should get the benefit of that narrowing.

In this case, Beau asks for the benefit of Supreme Court decisions that came down after his conviction, but that should apply retroactively.

The problem is he's stuck in this procedural maze trying to get those decisions applied to his case.

Which brings us to the questions the Supreme Court must decide.

So let's start with the questions the court agreed to decide.

This case presents two Questions.

Both questions are jurisdictional, meaning they're about whether courts have the power to hear the case at all.

Question one asks whether 28 USC section 2244 applies to a claim presented in a second or successive motion to vacate under 28 USC section 2200.

Okay, that's a mouthful.

Let's unpack this piece by piece.

First, we need to understand what section2255 is.

Think of it this way.

After you're convicted in federal court and your direct appeal is over, you might discover new evidence or a new legal development that shows your conviction was wrong.

Section2255 is the main vehicle federal prisoners use to challenge their convictions based on Based on these developments, it's basically the federal prisoner's version of habeas corpus, that ancient legal remedy that lets people challenge unlawful detention.

But Section2255 is specifically designed for people convicted in federal court, while habeas corpus under section2254 is for people convicted in state court.

Now here's the wrinkle.

Congress doesn't want prisoners filing these challenges over and over forever.

So if you want to file a second or successive Section2255 motion, meaning you've already filed one before, you need special permission from the court of appeals.

You can't just file it directly with the trial court.

That's where section 2244 comes in.

Section 2244 contains a bunch of rules governing these second or successive petitions.

And one specific provision.

Section 2244 creates what we call a do over bar.

The do over bar says if you already presented a claim in a prior petition, you can't present that same claim again.

Here's the actual A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

Now, here's the key detail that makes this whole case interesting.

Notice the language.

Habeas corpus application under section2254.

Section 2254 is specifically for state prisoners challenging state convictions.

Federal prisoners use Section 2, 255 motions, not Section 2254 applications.

So the million dollar question is, does this do over bar apply to federal prisoners?

Even though the statute specifically mentions only state prisoner petitions under section 2254?

That's question one.

Notice the language there.

Habeas corpus application under section 2254.

Section 2254 is the provision for state prisoners, not federal prisoners.

Federal prisoners use section 22555 motions.

So the question is, does this do over bar apply to federal prisoners, even though the statute specifically references state prisoner habeas petitions?

And that brings us to question two, which asks whether 28 USC section 2244B3E deprives this court of certiorary jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under 28 USC section2255.

This is the jurisdiction stripping provision.

Section 2244 states 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 certioraries.

So that provision says, when a court of appeals decides whether to authorize a second petition, that decision cannot be appealed and cannot be reviewed by the Supreme Court through certiorary.

The question is whether that applies to federal prisoners under section 2255 or just state prisoners under section 2254.

What makes this case so compelling is that both questions involve the same core interpretive issue.

When Congress enacted the Anti Terrorism and Effective Death Penalty act AEDPA in 1996, did it intend to treat federal and state prisoners the same way for purposes of successive petitions, or did it deliberately create different rules based on federalism concerns?

Let's tell Michael Bow's story, because understanding the facts helps explain why this matters so much.

In 2008, Beau pled guilty in federal court to conspiracy to commit Hobbs act robbery, attempted Hobbs act robbery, and using a firearm during a crime of violence under 18 USC section 924C.

That firearm conviction, the section 924C count is the focus of this case now.

Section 924C requires that the underlying offense be a crime of violence.

There are two ways an offense can qualify through the elements clause, which looks at what the crime requires you to prove, or through the residual clause, which covered offenses that involve a substantial risk of physical force.

In 2019, the Supreme Court decided United States v. Davis, which held that the residual clause in Section 924 was unconstitutionally vague.

And critically, the 11th Circuit held that Davis announced a new retroactive constitutional rule which meant federal prisoners could seek authorization to file second or successive Section 2000255 motions to challenge their convictions.

So Bo filed his first request for authorization in 2019, arguing his Section 9.24C conviction should be vacated under Davis.

But the 11th Circuit denied authorization because at that time, Circuit precedent held that attempted Hobbs act robbery was still a crime of violence under the Elements Clause.

Then came United States versus Taylor in 2022, where the Supreme Court held that attempted Hobbs act robbery is not a crime of violence under the Elements Clause.

This abrogated meaning wiped out the 11th Circuit's precedent that had been used to deny Beau's first authorization request.

So Beau tried again in 2022, seeking authorization for a second time based on Davis.

But the 11th Circuit dismissed his request.

Under a case called Henri Baptiste, which held that section 2244 that do over bar we discussed earlier applies to Federal prisoners under section 2255, the court said, you already presented your Davis claim once.

So even though we denied it based on precedent that the Supreme Court later abrogated, the do over bar prevents you from presenting it again.

Dismissed bow then did something unusual.

He filed an original habeas petition directly in the Supreme Court.

Justice Sotomayor, joined by Justice Jackson, issued a statement recognizing that there's a circuit split on whether the do over bar applies to federal prisoners and noting the structural barriers preventing Supreme Court review because of section 2244e's apparent jurisdiction stripping.

Following that statement, Beau returned to the 11th Circuit in 2024 with a third authorization request.

He asked for three things.

Authorization to file his Davis claim, an initial en banc hearing to reconsider Baptiste, and alternatively, certification of the do over bar question to the Supreme Court.

The 11th Circuit said no to all three.

It again dismissed his request based on Baptiste and the do over bar denied the en banc petition and declined to certify the question.

So Beau petitioned the Supreme Court for certiorari, and the court granted review on both questions.

And and here's where it gets really interesting.

The government filed a brief on the merits, conceding that the 11th Circuit erred on question one, the do over bar does not apply to federal prisoners.

But, and this is a big but, the government argues the court should dismiss the petition for lack of jurisdiction because section 2244 strips the court of the power to review the 11th Circuit's decision.

So we have an acknowledged legal error that the government says cannot be corrected.

It's a remarkable posture for a case.

The Supreme Court granted certiorari on January 17, 2025 to resolve both questions.

And this grant is significant because it creates an opportunity for the court to clarify important questions about how AEDPA's complex provisions include interact, resolve, a circuit split that's been deepening over the years and potentially address constitutional questions about the limits of Congress's power to restrict the court's jurisdiction.

Let's dive into how each side makes its case.

We'll start with the petitioner's arguments.

That's Michael Bowe.

Bowe's first major argument is textual and straightforward.

The due over Bar in section 2244, by its plain terms, does not apply to federal prisoners.

The statute says it applies to a claim presented in a second or successive habeas corpus application under section2254.

And as Bose Brief emphasizes, the text could not be plainer.

B1 applies only to claims presented in a habeas corpus application under section2254, and only state prisoners may file those applications.

Federal prisoners file motions under section 2255, not applications under section 2254.

Now, the circuits that have applied the do over bar to federal prisoners rely on Section 2, 255H, which says that a second or successive motion must be certified as provided in section 2244.

They argue this incorporates all of section 2244, including the do over bar.

But Bo argues that section 2255H only incorporates the provisions that govern how certification occurs the procedures, not substantive bars.

Like the do over provision, the text says motions must be certified as provided in section 2244, meaning following the procedures.

And here's Bo's killer argument.

Even the 11th Circuit admits that section 2255H cannot incorporate section 2244, which contains different requirements for state prisoners.

So if section 2255H doesn't incorporate B2, it can't incorporate B1 either.

Both provisions use identical language referring only to state prisoner applications under section2254.

Bao's second major argument is based on federalism.

AEDPA repeatedly subjects state prisoners to stricter requirements than federal prisoners because when state prisoners challenge their convictions in federal court, that creates tension with state sovereignty.

Federal courts are second guessing state courts.

But when federal prisoners challenge federal convictions in federal court, no state sovereignty is implicated.

It's federal courts reviewing federal courts.

That's why Congress subjected state prisoners to the do over bar but not federal prisoners.

Federalism concerns justify different treatment.

On the jurisdictional question, Beau makes two alternative arguments.

First, section 2244 doesn't apply to section 2255 motions at all.

For the same textual reasons, the do over bar doesn't apply.

Courts must narrowly construe limitations on Supreme Court jurisdiction, and Congress must provide a clear statement to strip jurisdiction.

Second, even if the certiorary bar generally applies, this particular case falls outside its scope.

The 11th Circuit dismissed Beau's request rather than denied it on the merits.

The the statute distinguishes between dismissals and denials.

The certiorari bar only covers denials of authorization, not jurisdictional dismissals.

Plus, the court never actually evaluated the gatekeeping requirements in section 2255H.

It just applied the do over bar as a threshold matter.

And the subject of Beau's petition isn't the denial of authorization.

It's the threshold legal question of whether the do over bar applies at all.

Cases like Castro and Stewart show that threshold questions fall outside the certiorari bar's scope.

Finally, BO invokes constitutional avoidance.

If the certiorari bar applies here, it raises serious exceptions clause the Supreme Court must retain jurisdiction over essential matters, like resolving circuit splits.

Six circuits say the do over bar applies to federal prisoners three say it doesn't without certiorari review.

Fifth, there's no way to ensure uniformity of federal law.

Now the government's position remember, they concede the 11th Circuit erred on the do over bar question but argue the court lacks jurisdiction to correct it.

On jurisdiction.

The Government argues that section 2255H's reference to certification as provided in section 2000244 comprehensively incorporates all of section 2000 244, including including the certiorari bar.

All five subparagraphs work together as an integrated whole governing authorization procedures and review.

The government emphasizes that these subparagraphs use authorization language and the unadorned word application.

Unlike the do over Bar and Section 2244, which specifically reference state prisoner applications, this textual pattern shows these provisions apply to both state and federal prisoners.

On whether the 11th Circuit's dismissal constitutes a denial, the government takes a functional approach.

Congress's use of denial covers all rejections of authorization requests.

Section 2244 requires courts to grant or deny authorization within 30 days.

There's no third category of dismissals that escape review.

The government warns the that accepting bo's distinction could substantially undermine the certiorary bar.

Anytime a court applies an arguably incorrect legal standard, parties could claim it wasn't a real authorization decision and seek Supreme Court review.

On constitutional avoidance, the government argues, there's no serious constitutional question at common law orders denying habeas relief couldn't be appealed at all and Felker vs Turpin unanimously rejected an exceptions clause challenge to this exact provision for state prisoners.

Plus, alternative review mechanisms exist, certification by courts of appeals, the All Writs act, and potential review if authorization is granted and the case proceeds through district court.

And crucially, the government argues Beau's underlying claim is actually statutory, not constitutional, so it doesn't satisfy Section 2255H2's requirements anyway.

Oral arguments are slated for October 14th, the same day as Ellingberg versus United States.

Here are some key points we'll be listening for.

First, I'll be fascinated to see how the Justices react to the government's position.

It's unusual for the government to concede error but argue the Court can't correct it.

Some Justices might find that deeply troubling from a rule of law perspective, right?

Justice Kagan, in particular has been skeptical of arguments that amount to yes, we made a mistake, but you can't fix it.

She might press the government on whether Congress really intended this kind of unreviewable error.

I'll also be watching for questions about the practical consequences of each side's interpretation.

If Beau wins on question one and the do over bar doesn't apply to federal prisoners, does that open the floodgates to repetitive claims?

Or are there other doctrines like law of the case or abuse of the writ that prevent abuse?

The government argues those pre existing doctrines exist, citing Sanders versus United States.

But the Justices might want to probe how well those alternatives actually work in practice.

On the jurisdictional question, I'm curious whether any justice will raise Marbury vs Madison concerns.

If Congress can bar Supreme Court review of circuit court decisions that create splits in federal law, what happens to the Court's essential function of ensuring uniformity?

That's particularly interesting given this Court's emphasis on major questions doctrine and structural constitutional limits on agency power.

Several Justices have been skeptical of Congress delegating too much power to agencies.

Might they be similarly skeptical of Congress limiting the Court's own power?

The distinction between dismissal and denial could generate interesting exchanges, too.

Some Justices might find that distinction overly formalistic, while others might see it as a meaningful textual difference that Congress deliberately created.

And watch for questions about Castro and Stuart.

Those precedents are critical to both sides arguments.

How do the Justices understand what the subject of a certiorary petition means for purposes of Section 2244, given the 11th.

Circuit's acknowledgment that it's bound by Baptiste unless overruled?

The the Justices might also explore what happens if the Court rules for beau.

Does that mean all the circuits applying the do over bar to federal prisoners have been wrong for years?

What about finality concerns for prisoners whose cases are already closed?

One more thing to watch.

How do the justices view the federalism arguments?

Bo makes a compelling point that AEDPA's structure shows Congress intended to treat state and federal prisoners differently based on comedy concerns.

But some Justices might be skeptical of reading too much into that pattern.

So why does Beau vs United States matter beyond just Michael Bowe?

First, there's the immediate impact on federal prisoners.

Six circuits have been applying the do over bar to federal prisoners.

If the Court holds that provision doesn't apply, it could reopen cases for prisoners who were denied relief.

Based on this reasoning, potentially hundreds or thousands of people.

Second, there's the broader question of statutory interpretation and AEDPA's structure.

This case forces the Court to grapple with how to interpret aedpa's complex cross references and whether federalism principles should inform that interpretation.

Third, there are the jurisdictional implications.

If the Court holds that section 2244 doesn't strip its jurisdiction or that this case falls outside that provision's scope, it will provide important guidance on how to interpret jurisdiction stripping statutes and the limits of congressional power to restrict Supreme Court review.

And finally, there's the constitutional dimension.

If the Court reaches the Exceptions Clause question, it could clarify what appellate jurisdiction is truly essential and indispensable to the Court's constitutional role.

That would have indicated implications far beyond habeas cases.

This is one of those cases that operates on multiple levels technical statutory interpretation, federalism theory, separation of powers, and fundamental questions about access to justice and error correction in our judicial system.

What's striking to me is how bo's case illustrates the sometimes Kafkaesque quality of post conviction litigation.

Here he has a potentially meritorious claim based on two Supreme Court decisions, Davis and Taylor, that came down after his conviction.

But procedural barriers may prevent him from ever getting that claim heard on the merits.

And whether you think those procedural barriers are justified by finality concerns or unjustified as traps for the unwary, this case will shape how federal prisoners navigate post conviction review for years to come.

We'll definitely be covering the oral arguments when they're scheduled and the decision when it comes down.

This is the kind of case that could produce surprising alignments among the Justices depending on whether they focus on text, structure, purpose, or constitutional concerns.

Thanks for joining us for this deep dive into BO versus United States.

It's a perfect example of how procedural questions can have profound substantive consequences.

As always, if you found this helpful, please rate and share the podcast.

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And if you're a federal practitioner dealing with post conviction issues, we'd love to hear your thoughts on how this case might affect your practice.

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