In re: Michael Bowe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 6, 2026
• Docket: 24-11704
• Status: Published

Opinion

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FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-11704 ____________________

In re: MICHAEL BOWE, Petitioner. ____________________ Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h) ____________________

Before GRANT, ED CARNES, and WILSON, Circuit Judges. ED CARNES, Circuit Judge: Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Michael Bowe has filed an application seeking an order authorizing the dis- trict court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, see 28 U.S.C. § 2255. That authorization may be granted only if this Court certifies that his motion contains a claim involving: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 2 of 13

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evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Id. § 2255(h). Bowe must make a prima facie showing that his claim meets those requirements. See id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357–58 (11th Cir. 2007). Even if he does, this Court’s determination that an applicant has made a prima facie showing that the statutory criteria have been met is only a threshold determination, and the district court determines whether the criteria have actually been met. Jordan, 485 F.3d at 1357–58. A. Procedural History We briefly recap the factual background. In 2008, a federal grand jury charged Bowe with conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a) (Count One), attempt to commit Hobbs Act robbery, 18 U.S.C. §§ 1951(a) and 2 (Count Two), and the use, brandishing, or discharge of a firearm during and in rela- tion to a crime of violence, “that is, a violation of Title 18, [U.S.C. § ] 1951(a) as set forth respectively in Counts One and Two,” 18 U.S.C. § 924(c)(1)(A) (Count Three). Bowe entered a written plea agreement. During his plea colloquy Bowe admitted under oath that, during the attempted Hobbs Act robbery, he had used an assault rifle to shoot an armed security guard who was USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 3 of 13

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servicing the automated teller machine at a bank. That was the factual basis for Count Three. Based on his guilty plea, Bowe was adjudicated guilty. In 2009, he was sentenced to a total term of 288 months imprison- ment, which included a mandatory 120-month consecutive sen- tence for Count Three. See id. § 924(c)(1)(A) (providing for a ten- year consecutive mandatory minimum sentence when the defend- ant discharged a firearm “during and in relation to any crime of violence”). He did not appeal. In 2016, Bowe filed an initial § 2255 motion. In it, he claimed that his § 924(c) conviction was no longer valid in light of Johnson v. United States, 576 U.S. 591 (2015), which held that the “residual clause” of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. 576 U.S. at 597. Ad- dressing that claim, the district court determined that binding prec- edent classified attempted Hobbs Act robbery as a crime of vio- lence under § 924(c)(3)(A), and it denied the motion. Bowe sought to appeal that decision, but he was denied a certificate of appeala- bility because our precedent foreclosed his claim; at that time, at- tempted Hobbs Act robbery was classified as a crime of violence. Bowe unsuccessfully sought certiorari review. Bowe v. United States, 584 U.S. 945 (2018). In 2019, Bowe filed an application seeking leave to file a sec- ond or successive § 2255 motion. He based his claim on the Su- preme Court’s then-recent decision in United States v. Davis, 588 U.S. 445, 470 (2019), which held that the § 924(c)(3)(B) residual USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 4 of 13

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clause was unconstitutionally vague. But Bowe could not “make a prima facie showing that his § 924(c) conviction and sentence [we]re unconstitutional under Davis” because our precedent at the time held that attempted Hobbs Act robbery qualified as a crime of violence under § 924(c)’s elements clause. As a result, his applica- tion was denied. In 2022, Bowe filed another successive application. He con- tended that in United States v. Taylor, 596 U.S. 845 (2022), the Su- preme Court had announced a new rule of constitutional law when it held that attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c)(3)(A). See 596 U.S. at 849–50, 860. Based on Taylor, Bowe argued that his conviction for attempted Hobbs Act robbery no longer qualified as a crime of violence under § 924(c). But we concluded that, to the extent that Bowe’s second application was based on the Davis claim he had already asserted in his earlier successive application, we lacked jurisdiction to consider it. That conclusion was compelled by our existing precedent, In re Baptiste, 828 F.3d 1337, 1339–41 (11th Cir. 2016), which held that § 2244(b)(1)’s same-claim bar applies to claims presented by federal prisoners in second or successive motions to vacate under § 2255. As an alternative holding, we concluded that Taylor did not announce a new rule of constitutional law under § 2255(h)(2). In- stead, we reasoned that Taylor “interpreted, as a matter of statutory analysis, the meaning of the term ‘crime of violence’ in § 924(c), and more specifically, the proper application of the ‘elements USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 5 of 13

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clause’ in § 924(c)(3)(A)” to the crime of attempted Hobbs Act rob- bery. We explained that standard statutory interpretation is not the same as the Supreme Court’s announcement of a new rule of constitutional law. We denied Bowe’s application in part (because Taylor didn’t announce a new rule of constitutional law) and dis- missed it in part (because Baptiste barred Bowe from re-raising the previously raised Davis claim). Later that year Bowe, represented by counsel, filed a third successive application, again based on Davis and Taylor. We dis- missed that application based on our Baptiste decision, which barred Bowe from bringing any claim based on Davis or Taylor be- cause those claims had already been asserted in his earlier succes- sive applications. Bowe also sought an initial hearing en banc. He asked the full Court to overrule Baptiste, arguing that its reasoning was contrary to the plain text of § 2244(b)(1), which does not men- tion § 2255. His request for initial hearing en banc was denied. In 2023, Bowe filed an original petition for writ of habeas corpus in the Supreme Court under 28 U.S.C. § 2241(a). See In re Bowe, 144 S. Ct. 1170 (2024) (statement of Sotomayor, J., joined by Jackson, J., respecting the denial of the original petition for a writ of habeas corpus). The Supreme Court denied his petition in Feb- ruary 2024. Id. at 1170. In May 2024, Bowe filed yet another counseled successive application. In it, he argued that he is actually innocent of Count Three (discharging a firearm during a crime of violence) in light of the Supreme Court’s decision in Davis and that neither Count One USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 6 of 13

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(conspiracy to commit Hobbs Act robbery) nor Count Two (at- tempted Hobbs Act robbery) qualifies as a “crime of violence” un- der § 924(c). In June 2024, we dismissed that application because Bowe had already raised those issues in his earlier successive appli- cations and Baptiste held that we lacked jurisdiction to consider those re-raised claims. Bowe asked us to certify a question to the Supreme Court, but we declined to do that, noting that the proce- dure had been used only four times in the past seventy-eight years. He asked the full Court for an initial en banc hearing to overturn Baptiste, but that request was denied. Bowe then petitioned the Supreme Court for a writ of certi- orari, which the Court granted. Bowe v. United States, 145 S. Ct. 1122 (2025). It held that § 2244(b)(1)’s “old-claim bar” does not ap- ply to federal prisoners. Bowe v. United States, No. 24-5438, manu- script op. at 19–25 (U.S. Jan. 9, 2026). That holding abrogated our Baptiste decision. The Supreme Court directed us on remand “to determine in the first instance whether Bowe should receive authorization to file a second or successive motion under the correct standard.” Id. at 25. Our earlier order dismissing Bowe’s application was vacated. Id. B. The Pending Application on Remand We now reconsider on remand Bowe’s May 2024 applica- tion, which asserts that under Davis he is actually innocent of Count Three (discharging a firearm during a crime of violence) and that neither Count One (conspiracy to commit Hobbs Act robbery) USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 7 of 13

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nor Count Two (attempted Hobbs Act robbery) qualifies as a “crime of violence” under § 924(c) based on the law as it currently stands. Bowe points out that the Supreme Court’s Davis decision held that the residual clause definition of a “crime of violence” in § 924(c)(3)(B) is unconstitutionally vague. And then our In re Ham- moud decision held that Davis announced a new rule of constitu- tional law made retroactive by the Supreme Court that satisfies § 2255(h)(2). 931 F.3d at 1039. He also points to our decision in Brown v. United States, 942 F.3d 1069, 1075–76 (11th Cir. 2019), holding that conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence” under the elements clause of § 924(c)(3)(A). And he relies on the Supreme Court’s holding in Taylor that at- tempted Hobbs Act robbery does not satisfy the elements clause of § 924(c)(3)(A). From all of that he contends that his § 924(c) con- viction is invalid because it is not predicated on a “crime of vio- lence.” C. The Demise of Baptiste’s Interpretation of § 2244(b)(1) Under 28 U.S.C. § 2244(b)(1), we are required to 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). In Baptiste, we concluded that § 2244(b)(1) ap- plies to federal prisoners seeking to file a second or successive ap- plication under § 2255. 828 F.3d at 1339–40. The Baptiste decision reasoned that “[a]lthough § 2244(b)(1) explicitly applies to petitions filed under § 2254, which applies to state prisoners, it would be odd USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 8 of 13

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indeed if Congress had intended to allow federal prisoners to refile precisely the same non-meritorious motions over and over again while denying that right to state prisoners.” Id. at 1339. As it turns out, the Supreme Court did not think it odd, or did not think that oddness alone controls statutory interpretation The Baptiste interpretation of § 2244(b)(1) is no more. Ad- dressing a circuit split about the applicability of § 2244(b)(1)’s same- claim bar to federal prisoners, the Supreme Court abrogated our Baptiste decision. Bowe, No. 24-5438, manuscript op. at 5. The Court held as a matter of statutory interpretation that § 2244(b)(1) does not apply to federal prisoners. It determined that § 2255(h)’s cross-reference to § 2244 incorporates the procedures for a panel’s certification of a second or successive application, but § 2255(h) “does not incorporate the content requirements contained in § 2244, like § 2244(b)(1)’s old-claim bar.” 1 Id. at 19–21. Instead, the Court clarified that a federal prisoner seeking approval to file a sec- ond or successive application can bring previously asserted claims but still must meet one of the two requirements set out in § 2255(h). Id. at 22–23.

1 That is not to say that federal prisoners who file duplicative § 2255(h) re-

quests will necessarily receive the authorization they seek. In many cases, the law of the case doctrine may bar reconsideration of a request that is substan- tively identical to one we have already denied. See Baptiste, 828 F.3d at 1340– 41. As the Supreme Court recognized in Bowe, “AEDPA may not have dis- placed other practices that courts can still use to address repetitive filings made by federal prisoners in the absence of § 2244(b)(1).” Bowe, No. 24-5438, man- uscript op. at 25 n.10. USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 9 of 13

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That means, to pass through the narrow gate of § 2255(h), the application must either identify “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,” or it must rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id.; 28 U.S.C. § 2255(h)(1)–(2). D. Bowe’s Contentions Bowe does not rely on newly discovered evidence, which is necessary for a claim under 28 U.S.C. § 2255(h)(1). Instead, he con- tends that he can meet the strict requirements of § 2255(h)(2) by showing that he is actually innocent of his § 924(c)(1)(A) conviction for discharging a firearm during a crime of violence. He admits that he discharged a firearm and shot a person during an attempted Hobbs Act robbery that he conspired to commit. But he argues that Count 3 (his § 924(c)(1)(A) offense) was predicated on Count 1 (conspiracy to commit Hobbs Act robbery) and Count 2 (attempt to commit Hobbs Act robbery), and neither of those offenses qual- ifies as a “crime of violence” as the law now defines that term. That matters to him because of the mandatory 120-month consecutive sentence attached to Count Three. See 18 U.S.C. § 924(c)(1)(A). He first argues that neither of his underlying offenses can be classified as a crime of violence under § 924(c)(3)(B)’s residual clause. He points to the Supreme Court’s Davis decision which USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 10 of 13

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struck down the residual clause as unconstitutionally vague. 588 U.S. at 448–51, 470. 2 And he relies on our Hammoud decision, which held that Davis announced a new rule of constitutional law under § 2255(h)(2). 931 F.3d at 1036–39. He also argues that neither of his underlying offenses can be classified as a crime of violence under § 924(c)(3)(A)’s elements clause. He points to the Supreme Court’s Taylor decision, which held that attempted Hobbs Act robbery does not qualify as a pred- icate crime of violence under § 924(c)(3)(A)’s elements clause. That clause “covers offenses that have as an element the use, attempted use, or threatened use of physical force against the person or prop- erty of another.” Taylor, 596 U.S. at 848 (alteration adopted). To win a conviction for attempted Hobbs Act robbery, “the govern- ment must show an intention to take property by force or threat, along with a substantial step toward achieving that object,” but it does not have “to prove that the defendant used, attempted to use, or even threatened to use force against another person or his prop- erty” as required by § 924(c). Id. at 851. Bowe’s § 924(c) conviction might remain on a solid founda- tion if his other predicate offense, conspiracy to commit Hobbs Act robbery (Count 1), were classified as a crime of violence. But this Court has held that it is not a crime of violence under

2 That clause defines a crime of violence under the ACCA as a felony that “by

its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B); Davis, 588 U.S. at 449. USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 11 of 13

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§ 924(c)(3)(A)’s elements clause because “[n]either an agreement to commit a crime nor a defendant’s knowledge of the conspiratorial goal necessitates the existence of a threat or attempt to use force.” Brown, 942 F.3d at 1075. Based on Taylor and Brown, 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 dis- charging a firearm during a crime of violence E. The Prima Facie Showing Bowe has made a prima facie showing that he meets the stat- utory criteria in § 2255(h)(2). In Hammoud we held that the Su- preme Court’s Davis decision established a new rule of constitu- tional law that applies retroactively on collateral review within the meaning of § 2255(h)(2). Davis, 588 U.S. at 448–51, 469–70; Ham- moud, 931 F.3d at 1038–39. And, under Davis, Bowe has made a prima facie showing that his sentence for Count Three — his § 924(c) conviction — is predicated on offenses that do not qual- ify as crimes of violence. After Davis, neither attempted Hobbs Act robbery nor conspiracy to commit Hobbs Act robbery can qualify as a crime of violence under § 924(c)(3)(B)’s invalidated residual clause. 588 U.S. at 448–51, 470. And, after Taylor and Brown, those offenses do not qualify as crimes of violence under § 924(c)(3)(A)’s elements clause. USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 12 of 13

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But a prima facie showing case is not a final showing enti- tling an applicant to relief. A prima facie showing is only the neces- sary first step. He still has to show the district court that he is enti- tled to the relief he seeks. See Jordan, 485 F.3d at 1358. As we have explained: Things are different in the district court. That court has the benefit of submissions from both sides, has ac- cess to the record, has an opportunity to inquire into the evidence, and usually has time to make and ex- plain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The stat- ute puts on the district court the duty to make the in- itial 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. Id. The district court must consider those questions “fresh, or in the legal vernacular, de novo.” Id. Not only that, but also the timeliness of Bowe’s claims is not an issue we address at this stage of the proceedings. We’ve held that potential untimeliness isn’t relevant to our threshold determi- nation of whether the applicant has met the statutory criteria to obtain permission to file the successive collateral attack because the statute of limitations for habeas cases is not a jurisdictional bar. See In re Jackson, 826 F.3d 1343, 1347 (11th Cir. 2016). And the Supreme Court has emphasized that even if a claim meets the “strictly USCA11 Case: 24-11704 Document: 11-2 Date Filed: 02/06/2026 Page: 13 of 13

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limited” requirements of § 2255(h), the movant “must still conform with the demanding statute of limitations contained in § 2255(f).” Bowe, No. 24-5438, manuscript op. at 25. We express no view on that issue. Because Bowe has made a prima facie showing of the exist- ence of one of the grounds set forth in 28 U.S.C. § 2255(h), his ap- plication for leave to file a second or successive motion is hereby GRANTED. His request that we certify a question to the Supreme Court or that there be an initial en banc hearing to overturn our now-abrogated Baptiste decision, is DENIED as MOOT.