Tag Archives: 2255(h)

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

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

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

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root

Supreme Court Loosens 2255 ‘Second or Successive’ Restrictions – Update for January 12, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS GUTS § 2244 LIMITATIONS ON SUCCESSIVE § 2255 MOTIONS

For federal prisoners, the only workable means of challenging an unlawful conviction or sentence after direct appeal rights have lapsed is through a petition for writ of habeas corpus. Such a petition is brought through a mechanism provided by 28 USC § 2255.

The procedure is restricted as to timing and frequency: generally, the motion must be filed within a year of the end of direct appeal rights. What’s more, it is a one-to-a-customer filing: to bring a “second or successive” § 2255 motion, the prisoner must get advance approval from the Court of Appeals, and the new filing must fit within very narrow restrictions described in 28 USC § 2255(h).

Congress adopted the restrictions in the Antiterrorism and Effective Death Penalty Act some 30 years ago. I have railed about the AEDPA often enough, so here I will just mention that constitutional abomination in passing.

Back in 2008, Michael Bowe was convicted of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924. In 2016, after the Supreme Court invalidated the residual clause in the Armed Career Criminal Act, Mike filed a § 2255 motion arguing that § 924(c)’s residual clause was unconstitutional as well. The District Court denied the motion, reasoning that – regardless of the residual clause’s constitutionality – he was not entitled to a second bite of the apple because attempted Hobbs Act robbery qualified as a “crime of violence” under the elements clause of the statute.

In 2019, after United States v. Davis held that conspiracy to commit a violent crime was not itself a violent crime, Mike sought permission from the 11th Circuit under § 2255(h) to file a second or successive motion raising whether his § 924(c) conviction should be thrown out. A three-judge panel found that while Davis announced a new, retroactive constitutional rule (one of the two statutory gateways for successive motions under § 2255(h)(2)), Mike could not show that his § 924(c) conviction was unconstitutional because Circuit precedent still treated attempted Hobbs Act robbery as a crime of violence under the elements clause.

After United States v. Taylor held in 2022 that attempted Hobbs Act was not a crime of violence either, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor left neither of his Hobbs Act convictions as a valid predicate for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under 28 USC § 2244(b)(1). That statute on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court, not federal prisoners proceeding under § 2255. Nevertheless, language in § 2255(h) has led courts to ambiguously apply § 2244(b)(1) to federal § 2255 movants as well.

The Circuit panel also denied the part of Mike’s request that rested on Taylor because Taylor did not announce a new constitutional rule within the meaning of § 2255(h)(2).

Mike didn’t give up, going back to the 11th several times, seeking authorization to pursue a § 2255 motion, asking for an en banc hearing, and seeking reversal of Circuit precedent applying § 2244(b)(1)’s old-claim bar to federal prisoners’ successive § 2255 motions. He also requested certification of the question whether § 2244(b)(1) applied to federal prisoners at all. But the 11th turned down all of his entreaties.

Mike eventually filed for a Supreme Court review, pointing out that while six Circuits apply § 2244(b)(1)’s old-claim bar to federal prisoners, three others held that it only applied to state prisoners seeking leave to file a second § 2254 petition in federal court.

Last Friday, the Supreme Court ruled for Mike.

First, the Justices held 5-4 that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, that provision does not apply to federal prisoners. The Supremes reasoned that the limitation is housed within § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, § 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions’.”

The Supreme Court also ruled that § 2244(b)(1)’s “old-claim” bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners alone: “That specific reference to § 2254 was deliberate: Elsewhere in this very section, Congress expressly distinguishes § 2254 “applications” from § 2255 “motions… When interpreting statutes, the Court presumes that “differences in language like this convey differences in meaning.” By its plain terms, § 2244(b)(1)’s old-claim bar applies only to state prisoners.”

In the Bowe decision, SCOTUS resoundingly underscores that “the best textual reading of both § 2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization [to file a successive § 2255], a panel can authorize the filing if the filing makes a prima facie showing that it satisfies one of the two grounds in § 2255(h), the ‘two—and only two—conditions in which a second or successive § 2255 motion may proceed’,” quoting Jones v. Hendrix.

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (Jan. 9, 2026)

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

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

Jones v. Hendrix, 599 U.S. 465 (2023)

~ Thomas L. Root

Summer of Our Discontent – Update for July 10, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

JONES TSUNAMI ROLLING OVER PENDING CASES

The two-week-old Jones v. Hendrix decision is claiming its first victims.

innocent210504You recall that in Jones, the Supreme Court held that if a federal prisoner has previously filed a § 2255 motion – even one addressing a completely unrelated issue – he or she cannot file a second post-conviction challenge arguing that, under a new Supreme Court decision that changes a statutory interpretation, even if the change means that the prisoner was not guilty of a crime.

In other words, as attorney Adam Unikowsky blogged last week, “Even if the federal prisoner is indisputably innocent, the prisoner must serve his full sentence.”

I know of a number of pending district court 28 USC § 2241 cases that Jones has already torpedoed. Last Friday, the 7th Circuit added to the carnage.

DeAngelo Sanders had argued in a 28 USC § 2241 habeas petition that he did not have the required three prior drug or violent convictions for a mandatory minimum 15-year sentence under the Armed Career Criminal Act. His filing came well after his § 2255 post-conviction motion had been denied, and only because the Circuit had just ruled that a conviction for Illinois residential burglary cannot be used to enhance an ACCA sentence.

The Circuit was in the middle of considering whether DeAngelo could rely on the 28 USC § 2255(e) saving clause to raise his actual-innocence-of-ACCA-sentence when the Supreme Court handed down Jones. Last Friday, the 7th denied DeAngelo’s case.

The Supreme Court’s Jones decision ruled that “Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences,” the Circuit said. “The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”

courthouseclosed170605The same thing happened to Carlous Horton’s habeas petition, which argued that his mandatory life sentence for drug distribution, based on three prior drug trafficking convictions, should be vacated. “The government conceded that two of Carlous’s prior drug convictions are not proper § 841 predicates under Mathis,” the 7th said last Friday, “and a third – the 1995 Illinois cocaine conviction mentioned above – also could not be counted as a predicate under a recent Circuit decision in United States v. Ruth. But the government opposed relief, arguing that although Carlous’s habeas petition was premised on new statutory interpretation developments, he had not been previously precluded by Eighth Circuit precedent from making” the same arguments.

Last Friday, the Circuit dismissed Carlous’s case, holding that Jones kicked the legs from under his claim as well.

Adam Unikowsky concedes that the Jones majority opinion, written by Justice Thomas, “is well-written and persuasive. He puts forward a powerful argument that under the plain text of the applicable federal statutes, federal prisoners are forbidden from bringing this type of challenge. Justice Jackson’s dissent is also well-written and persuasive. She puts forward a powerful argument that the majority’s interpretation conflicts with congressional intent and would lead to unfair consequences. In the end, Jones presents a tough, close issue.”

Rather than focus on Jones’s merits, Unikowsky argues for a statutory fix that would allow prisoners to file successive Section 2255 petitions when new Supreme Court decisions establish their innocence. “This is not a tough, close issue,” he writes. “It is an obviously correct position that should prevail by unanimous voice votes in the House and Senate.”

congress151220Writing in Law 360, Northeastern University law professor Daniel Medwed agreed. “Perhaps Congress could add a third route, and even tailor it narrowly to gain bipartisan support,” Medwed wrote. “Specifically, Congress could change the law to permit a successive or second habeas filing when the Supreme Court has recognized a new statutory principle that is made retroactive and that could be relied on by those in custody to claim legal innocence. This would address Justice Jackson’s core concern about ‘slamming the courtroom doors to a possibly innocent person,’ while simultaneously avoiding any reference to the saving clause, let alone making that provision the ‘license for unbounded error correction’ that Justice Thomas feared.”

Sanders v. Joseph, Case No. 19-2504, 2023 U.S. App. LEXIS 17176 (7th Cir. July 7, 2023)

Horton v. Lovett, Case No. 21-1004, 2023 U.S. App. LEXIS 17177 (7th Cir. July 7, 2023)

Adam’s Legal Newsletter, Imprisoning innocent people is bad (July 2, 2023)

Law360, Justices’ Habeas Ruling Further Saps Writ Of Its Strength (July 7, 2023)

– Thomas L. Root

Supreme Court Leaves ‘Actually Innocent’ In Prison – Update for June 22, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘SAY IT AIN’T SO!’

aintso230622The Supreme Court today kicked a leg out from under federal prisoners who have been convicted of an offense based on an interpretation that later is abandoned by the Supreme Court, holding in Jones v. Hendrix that § 2255(e) – the so-called saving clause – does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent the law’s restrictions on filing a second or successive § 2255 motion by filing a § 2241 habeas petition.  

Back in 1998, the Supreme Court seemed to endorse the use of a § 2241 petition where the strict limitations of the new Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limited second § 2255 motions to cases where a recent Supreme Court constitutional holding or newly-discovered evidence would convince a jury that the petitioner was innocent. The problem was that many landmark criminal decisions by the Supreme Court – such as the holding that a defendant must know that he or she is in a class of people prohibited from possessing a gun (Rehaif v. United States, 2019) – do not resolve constitutional questions at all, but rather just interpret the meaning and scope of criminal statutes.

The 6-3 decision written by Justice Thomas observes that Congress created § 2255 “as a remedial vehicle by which federal prisoners could collaterally attack their sentences by motion in the sentencing court, rather than by a petition for a writ of habeas corpus under § 2241 in the district of confinement. The ‘sole purpose’ of § 2255 was to address the “serious administrative problems” created by district courts collaterally reviewing one another’s proceedings without access to needed evidence and “aggravated” by the concentration of federal prisoners in certain judicial districts that therefore faced “an inordinate number of habeas corpus actions.”

However, § 2255 contained a subsection – § 2255(e) – now known as the saving clause – which many courts (including the Supreme Court) had generally interpreted as letting prisoners file a § 2241 petition in cases where “the remedy by [2255] motion is inadequate or ineffective to test the legality of [a prisoner’s] detention.”

innocent210504Today, SCOTUS held that just because a change in how a law is interpreted makes someone actually innocent of the offense he or she is doing time for, such a new interpretation does not help a prisoner who has already used up his or her § 2255 motion. The Court said:

Section 2255(e)’s saving clause does not authorize that end-run around AEDPA. The clause preserves recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a sentence. But § 2255(h) specifies the two limited conditions in which federal prisoners may bring second or successive collateral attacks on their sentences. The inability of a prisoner with a statutory claim to satisfy § 2255(h) does not mean that the prisoner may bring the claim in a § 2241 petition.

Justices Sotomayor and Kagan filed a dissenting opinion. In a separate dissenting opinion, Justice Jackson wrote,

I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents. Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads § 2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.

Jones v. Hendrix, Case No. 21-857 (opinion, June 22, 2023)

– Thomas L. Root

Explainer: When Federal Prisoners Can Get Relief Under Range, Dubin – Update for June 12, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ASK THE PROFESSOR

explainer230612Last week, I reported on the 3rd Circuit’s en banc ruling that someone convicted of a nonviolent “crime punishable by imprisonment for a term exceeding one year” (18 USC § 922(g)(1)) could not constitutionally be prohibited from possessing a gun or ammo. That report was followed by a dispatch on the Supreme Court’s decision last Thursday that dramatically limited the reach of the aggravated identity theft statute (18 USC § 1028A).

This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”

Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”

Now let’s ask the professor.  Or, because he’s nowhere around, ask me…

professor230612To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.

Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.

However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.

So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.

dice161221For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…

ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.

Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.

General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.

Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”

USSC, Quick Facts – Felon in Possession (June 2022)

USSC, Quick Facts – Sec 1028A Aggravated Identity Theft Offenses (July 2022)

Sentencing Law and Policy, How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims? (June 8, 2023)

– Thomas L. Root