SCOTUS order list includes a notable statement in a habeas denial

The US Supreme Court is back in action this morning, staring with the release of this lengthy order list.  The list includes no grants of certiorari (and any “normal” grants these days would not be heard until the fall anyway).  But the list does conclude with a number of dissents and statements regarding the denial of review, one of which involves a federal criminal case.  

In In re Bowe, No. 22–7871 (S. Ct. Feb. 20, 2024) (available here), Justice Sotomayor, joined by Justice Jackson, issued a three-page statement respecting the denial of the petition for a writ of habeas corpus.  Here are excerpts: 

Under §2244(b)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 U. S. C. §2244(b)(1).  State prisoners seek federal postconviction relief under §2254.  Federal prisoners seek postconviction relief under §2255.  This petition raises the question whether §2244(b)(1)’s bar, which explicitly references only §2254, also applies to a claim by a federal prisoner who brings a successive challenge to his conviction under §2255….

JUSTICE KAVANAUGH has previously expressed his desire for this Court to resolve [the 6-3 circuit] split [over the reach of this bar on state prisoner petitions].  Avery v. United States, 589 U. S. ___, ___ (2020) (statement respecting denial of certiorari) (slip op., at 2).  I now join him.  There is a reason, however, that this is the first case to reach the Court presenting this question since he welcomed petitions on the split in Avery.  There are considerable structural barriers to this Court’s ordinary review via certiorari petition….

I would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious §2255 claims.  The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.

I still recall fondly when the Second Circuit in US v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system.  I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket.