Sidney Upchurch v USA, 26-1114
U.S. Court of Appeals, Seventh Circuit Criminal Habeas Corpus
Holdings
- Seventh Circuit reaffirms that § 2244(b)(3)(E)'s rehearing bar applies to federal prisoners via § 2255(h), barring rehearing petitions on successive motion denials.
- Bowe v. United States' holding on the certiorari bar does not extend to the rehearing bar, which remains non-jurisdictional but still enforceable under existing precedent.
- Essential for federal habeas/§ 2255 practitioners advising prisoners on successive petition strategy and the finality of gatekeeping decisions on second or successive motions.
Summary
Sidney Upchurch, a federal prisoner proceeding pro se, sought reconsideration after a Seventh Circuit panel denied his fourth application for leave to file a successive § 2255 motion. The Chief Judge construed his filing as a motion for leave to seek rehearing en banc and, applying Federal Rule of Appellate Procedure 27(c), decided the matter in chambers as a single judge rather than referring it to a panel or the full court.
The central issue was whether 28 U.S.C. § 2244(b)(3)(E)'s bar on petitions for rehearing—incorporated into § 2255 proceedings through § 2255(h)'s cross-reference—prohibits federal prisoners from seeking rehearing of a panel's denial of authorization to file a successive motion. Upchurch argued that the Supreme Court's recent decision in Bowe v. United States, which held that the parallel certiorari bar does not apply to federal prisoners, undermined this rule. The court rejected that argument, holding that Bowe addressed only the certiorari bar and expressly left open whether its reasoning extended to the rehearing bar. The court reaffirmed its own precedent (United States v. Wyatt) and the unanimous view of other circuits that the rehearing bar applies to federal prisoners. It further held that, unlike the certiorari bar (which implicates Article III appellate jurisdiction and requires a clear congressional statement), the rehearing bar derives from court-made appellate rules and is not jurisdictional, so no comparable clear-statement requirement applies.
For practitioners, this decision confirms that petitions for rehearing following denial of authorization to file successive § 2255 motions remain barred in the Seventh Circuit, and that Bowe provides no basis to challenge that practice.
In short
The bar on petitions for rehearing in 28 U.S.C. § 2244(b)(3)(E) applies to federal prisoners through the cross-reference in 28 U.S.C. § 2255(h), consistent with prior Seventh Circuit precedent and unanimous circuit authority.
Bowe v. United States' holding that the certiorari bar does not apply to federal prisoners is limited to that specific bar and does not extend to or undermine the rehearing bar.
The rehearing bar is not jurisdictional because it arises from court-made Federal Rules of Appellate Procedure rather than a direct statutory jurisdictional strip.
No clear-statement rule analogous to that governing Supreme Court certiorari jurisdiction applies to limits on rehearing of court of appeals decisions, given Congress's plenary power over lower federal court jurisdiction.
This summary was drafted by AI and verified against the slip opinion. It may contain errors and is not legal advice — always read the original before relying on it.