Bowe v. United States · ¶55

The Government also points to part of § 2244(b)(3)(E) that does speak to a “panel” of “a court of appeals.” Specifically, § 2244(b)(3)(E) says that an authorization decision “shall not be the subject of a petition for rehearing,” thereby barring panel rehearing. According to the Government, because § 2244(b)(3)(E) speaks to the panel in some regard, § 2255(h) must have intended to incorporate that provision in its entirety. The Government is wrong, however, that the certiorari bar is incorporated in this way. Whether § 2244(b) (3)(E)'s panel-rehearing bar applies to federal prisoners says little, and certainly nothing clear, about whether Congress intended § 2244(b)(3)(E)'s separate certiorari bar to extend to authorization decisions concerning federal prisoners. Using the former to incorporate the latter is the kind of jurisdiction stripping by implication that cannot suffce. Cf.…

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