Bowe v. United States · ¶37

This Court granted certiorari to address the recharacterization of Castro's first filing. The Court also asked the parties whether § 2244(b)(3)(E) barred its review. Like here, the Government argued that it did. In the Government's view, the Court of Appeals had denied Castro authorization when it affirmed the District Court's dismissal, making that “denial” the “subject” of his “petition for . . . certiorari” for the purposes of § 2244(b)(3)(E). The Court accepted that characterization of the proceedings below for the sake of argument, yet disagreed that § 2244(b)(3)(E) posed a bar to its review. Castro, 540 U. S., at 380. That was because the “subject” of Castro's petition was not the denial of authorization, but rather “the lower courts' refusal to recognize that [the] § 2255 motion [was] his first, not his second.” Ibid.

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