JAMIE WHITLOW 26604 078 v. UNITED STATES OF AMERICA (2026)

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Proceeding pro se, Jamie Whitlow filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence in No. 4:16-CR-00101-SDJ-BD-8 (E.D. Tex.). The motion, which was referred to me for findings of fact, conclusions of law, and a recommended disposition, should be dismissed without prejudice.

BACKGROUND

Whitlow's first § 2255 motion challenging his same conviction and sentence was denied and dismissed with prejudice as time-barred. No. 4:23-CV-01050-SDJ-BD (E.D. Tex. Nov. 1, 2024). In June 2026, he filed the present successive § 2255 motion, Dkt. 1, but he did not submit documentation from the Fifth Circuit Court of Appeals showing that he has the certification necessary to file a successive § 2255 motion.

DISCUSSION

A prisoner who seeks to file a second or successive § 2255 motion must obtain prior leave from the court of appeals. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); see Bowe v. United States, 146 S. Ct. 447, 473 (2026) (noting a party's admission that “§ 2255(h) subjects federal prisoners to the same rules that apply to state prisoners in § ․ 2244(b)(3)(A)” and explaining that “[e]ach and every one of § 2244(b)(3)'s subparagraphs ‘provide[s]’ for how a second or successive collateral attack ‘must be certified’ by a ‘panel of the appropriate court of appeals’ (quoting 28 U.S.C. § 2255(h))). Although Whitlow's first § 2255 motion was dismissed as time-barred, such a dismissal is considered an adjudication on the merits for purposes of determining successiveness. In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009) (per curiam); Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003). The Fifth Circuit has not issued an order authorizing this court to consider Whitlow's successive § 2255 motion. Because Whitlow must first obtain permission from the Fifth Circuit before he can file a successive § 2255 motion challenging his conviction and sentence, this court lacks jurisdiction over his present § 2255 motion. Therefore, the successive § 2255 motion should be dismissed without prejudice for want of jurisdiction.

CERTIFICATE OF APPEALABILITY

An appeal may not be taken to the court of appeals from a final order in a proceeding under § 2255 “[u]nless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(B). Although Whitlow has not yet filed a notice of appeal, the court will address whether he would be entitled to a certificate of appealability. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (explaining that a district court may rule on a certificate of appealability sua sponte because “the district court that denies a [movant] relief is in the best position to determine whether the [movant] has made a substantial showing of a denial of a constitutional right on the issues before the court. Further briefing and argument on the very issues the court has just ruled on would be repetitious.”).

A certificate of appealability may issue only if a movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court explained the requirements associated with that showing in Slack v. McDaniel, 529 U.S. 473 (2000), and Miller-El v. Cockrell, 537 U.S. 322 (2003). In a case in which “a district court has rejected the constitutional claims on the merits,” the movant must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” Slack, 529 U.S. at 484, or that “the issues presented are adequate to deserve encouragement to proceed further,” Miller-El, 537 U.S. at 327. And “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484; see 28 U.S.C. § 2253(c)(1) (reflecting that the certificate-of-appealability requirement applies equally in the habeas and § 2255 contexts).

In this case, it is respectfully recommended that reasonable jurists could not debate the dismissal of Whitlow's § 2255 motion on procedural grounds. Accordingly, it is recommended that the court find that Whitlow is not entitled to a certificate of appealability.

RECOMMENDATION

It is RECOMMENDED that the motion, Dkt. 1, be DISMISSED without prejudice. It is also RECOMMENDED that a certificate of appealability be DENIED.

* * *

Within 14 days after service of the magistrate judge's report, any party may serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).

To be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from 10 to 14 days).

So ORDERED and SIGNED this 17th day of July, 2026.

Bill Davis United States Magistrate Judge