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Supreme Court grants cert concerning limits on successor federal 2255 petitions under AEDPA

By Douglas Berman

The US Supreme Court this afternoon granted cert in five cases this afternoon via this order list. Only one of the five involves criminal matters, Bowe v. United States, No. 24-5438, but this one may warm the heart of post-conviction proceduralists. Specifically, here is the questions presented in the criminal defendant’s cert petition:

Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” (emphasis added).

The first question presented is:

Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in 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 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 a writ of certiorari.” (emphasis added).

The second question presented is:

Whether 28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari 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 U.S.C. § 2255.

This dispute, as I see it, serves as yet another recent criminal case grants in which textualism would arguably favor a criminal defendant, but they are non-textual concerns that might push jurists to another resolution.  Stay tuned.