Whitlow v. Luna

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JAMIE AARON WHITLOW,
Petitioner,
VS.
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CIVIL ACTION NO. 2:26-CV-00139
RICHARD A LUNA,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner Jamie Aaron Whitlow, a federal prisoner, filed this purported 28 U.S.C.
§ 2241 habeas corpus petition on May 11, 2026. (D.E. 1). Whitlow’s incarceration stems
from a November 2017 conviction in the Eastern District of Texas, Sherman Division, in
case number 4:16-cr-00101. (Id. at 1). In his petition, Whitlow states that he is challenging
the government’s refusal to file a motion for sentence reduction based on substantial
assistance under Federal Rule of Criminal Procedure 35(b). (Id. at 2). For the reasons
discussed further below, it is recommended that Whitlow’s petition be DISMISSED
without prejudice prior to service for lack of jurisdiction.1
1 The Court must sua sponte analyze its own jurisdiction. Howery v. Allstate Ins.
Co., 243 F.3d 912, 919 (5th Cir. 2001). Further, § 2241 petitions are subject to “the rules
governing habeas petitions under 28 U.S.C. § 2254,” which authorize the Court to conduct
a preliminary review of the petition and summarily dismiss if it “plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief.” Garcia
Ramirez v. Cox, No. 2:22-CV-00047, 2022 WL 2110699, at *4 (S.D. Tex. May 5, 2022).
United States District Court
Southern District of Texas
ENTERED
June 08, 2026
Nathan Ochsner, Clerk
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I. PETITION AND CLAIMS
In his petition, Whitlow asserts that he is challenging how his sentence is being
carried out, calculated, or credited by prison or parole authorities. (D.E. 1 at 1). However,
his claims stem from the allegation that the government should be compelled to file a Rule
35(b) motion to reduce his sentence based on substantial assistance he provided after
sentencing. (Id. at 2-3, 6-7). He indicates that he has raised this issue with prison officials
but was told that the prosecutor must file a Rule 35(b) motion for him to receive credit.
(Id. at 2-3). Whitlow indicates that he is raising three claims, but liberally construed, he
raises only two claims: (1) the government is required to file a Rule 35(b) motion based on
substantial assistance post-sentencing; and (2) the Bureau of Prisons (“BOP”) is required
to apply any Rule 35(b) sentence reduction to its sentence computation. (Id. at 6).
II. DISCUSSION
Here, Whitlow’s claims are not properly raised in a § 2241 petition and this Court
lacks jurisdiction to consider them. “A section 2241 petition on behalf of a sentenced
prisoner attacks the manner in which a sentence is carried out or the prison authorities’
determination of its duration, and must be filed in the same district where the prisoner is
incarcerated.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000). Whitlow’s claims do not
attack the manner in which his sentence is being carried out by the BOP or the BOP’s
calculation of his sentence, but rather challenge the government’s failure to file a Rule
35(b) motion for sentence reduction. (D.E. 1 at 2-3, 6). To the extent that Whitlow argues
that the BOP is incorrectly calculating his sentence by not including a Rule 35(b) sentence
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reduction, this claim lacks merit. (See id.). While Whitlow is correct that the BOP’s
sentence computation would be required to reflect any Rule 35(b) sentence reduction, the
remainder of his arguments establish that the government has not filed such a motion and
there is no sentence reduction for the BOP to consider at this stage. A review of the docket
of Whitlow’s criminal case in the Eastern District of Texas shows no Rule 35(b) motion
on the record. (See E.D. Tex. Case No. 4:16-cr-00101).
In contrast to a § 2241 petition, a 28 U.S.C. § 2255 motion “provides the primary
means of collateral attack on a federal sentence.” Cox v. Warden, Federal Detention Ctr.,
911 F.2d 1111, 1113 (5th Cir.1990). A § 2255 motion applies to errors that occurred at or
prior to sentencing and must be filed in the sentencing court. Id. at 1113 & n.2. Some
courts have held that claims regarding the government’s failure to file a Rule 35(b) motion
must be filed in a § 2255 motion. See, e.g., Jackson v. Pitzer, 108 F.3d 1379, 1379 (7th
Cir. 1997); see also Garcia v. Beeler, No. CIV.A. 97-5624(JEI), 1998 WL 418041, at *4
(D.N.J. July 20, 1998) (discussing Rule 35(b), § 2241, § 2255, and how to construe Rule
35(b) claims). Research indicates that prisoners in the Fifth Circuit have filed such claims
in a § 2255 motions and in miscellaneous motions before the sentencing court. See, e.g.,
United States v. Allen, 774 F. App'x 244 (5th Cir. 2019); United States v. Brown, 547 F.
App'x 637, 638, 643 (5th Cir. 2013). Regardless of the procedural mechanism, because
such claims implicate the length of the underlying sentence itself, they must be raised
before the sentencing court. See Fed. R. Crim. P. 35; 28 U.S.C. § 2255(a). Accordingly,
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Whitlow’s claims are not properly raised in a § 2241 petition, and this Court does not
otherwise have jurisdiction to consider a sentence reduction for Whitlow under Rule 35(b).
Finally, it would not be in the interest of justice to transfer Whitlow’s petition to the
Eastern District of Texas. See 28 U.S.C. § 1631 (stating that, where the Court lacks
jurisdiction, it shall, if it is in the interest of justice, transfer the action to any court it could
have properly been brought in). Resentencing under Rule 35(b) “is permitted only on the
Government’s motion.” United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). To the
extent Whitlow’s petition could be construed as a motion for a sentence reduction under
Rule 35(b), neither this Court nor the sentencing court would have jurisdiction to consider
it because only the government can file such a motion. Allen, 774 F. App'x at 244 (citing
Early, 27 F.3d at 141). To the extent Whitlow’s petition could be construed as a challenge
to the government’s failure to file a Rule 35(b) motion, the Supreme Court and Fifth Circuit
have established that such a claim only exists if the petitioner can show that the
government’s decision was based on an unconstitutional motive or that the government
bargained away its discretion. Allen, 774 F. App'x at 244; see also Brown, 547 F. App’x
at 644-45 (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)); United States v.
Kassim, No. CIV. H-07-2004, 2007 WL 1886278, at *2 (S.D. Tex. June 29, 2007).
Whitlow has not raised either of these arguments in his current petition. (See generally
D.E. 1). A transfer to the Eastern District of Texas would not be in the interest of justice
where it is clear under binding precedent that Whitlow has not stated a sufficient basis of
relief in his petition. See Alvarado v. United States, No. 7:20-CV-0347, 2021 WL 4464186,
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at *4 (S.D. Tex. May 21, 2021) (noting that it is not in the interest of justice to transfer a
clearly meritless case). Accordingly, it is recommended that his petition be dismissed
without prejudice rather than transferred to the Eastern District of Texas.
III. RECOMMENDATION
Accordingly, it is recommended that Whitlow’s petition be DISMISSED without
prejudice prior to service for lack of jurisdiction.
Respectfully submitted on June 8, 2026.
____________________________
Julie K. Hampton
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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