2:26-cv-00139•Whitlow v. Luna
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION JAMIE AARON WHITLOW, Petitioner, VS. § § § § § § § § § 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 Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 1 of 6
2 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 Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 2 of 6
3 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, Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 3 of 6
4 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, Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 4 of 6
5 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 Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 5 of 6
6 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). Case 2:26-cv-00139 Document 6 Filed 06/08/26 in TXSD Page 6 of 6
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