Felicia Jackson v. USA

Filing

Opinion issued by court as to Appellant Felicia Y. Jackson. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to withdraw as counsel is MOOT [8146000-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-16472

Date Filed: 10/25/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16472
Non-Argument Calendar
________________________
D.C. Docket Nos. 2:16-cv-00357-CB; 2:01-cr-00007-CB-N-2

FELICIA Y. JACKSON,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(October 25, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Felicia Jackson appeals the District Court’s order dismissing her motion to
vacate, set aside, or correct her sentence, filed pursuant to 28 U.S.C. § 2255.

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Jackson appeals without first obtaining a certificate of appealability (“COA”) as
required by 28 U.S.C. § 2253(c)(1)(B). Section 2253 does not permit the appeal of
a “final order” in a § 2255 proceeding unless a COA has been issued. Because the
District Court’s dismissal constitutes a final order within the meaning of § 2253
and no COA has been issued, we lack jurisdiction to hear the appeal. We therefore
dismiss Jackson’s appeal without prejudice.
I.
Felicia Jackson is a federal prisoner serving a life sentence for conspiracy to
commit bank robbery, 1 bank robbery resulting in death, 2 and possession of a
firearm during a crime of violence.3 In 2003, Jackson filed her first § 2255 motion
in the Southern District of Alabama. It was denied. In 2016, Jackson filed an
application in this Court, pursuant to 28 U.S.C. § 2244(b)(3)(A), seeking an order
to authorize the District Court to consider a second or successive § 2255 motion on
the basis of Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). This
Court granted Jackson’s application because the available record was too limited to
determine which crime of violence provided the basis for her firearm possession
offense. In granting the application, this Court stated that this issue had not been
“conclusively resolve[d]” and directed the District Court to perform a de novo
1

18 U.S.C. § 371.

2

Id. § 2113(a), (e).

3

Id. § 924(c)(1)(A).
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assessment of whether Jackson met the statutory criteria of § 2255(h)(2) before
assessing the merits of her claim.
With the benefit of the complete record, the District Court determined that
Jackson’s conviction and sentence could not possibly give rise to a cognizable
claim under Johnson. Because her § 2255 motion conclusively could not contain
“a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable,” Jackson failed the
§ 2255(h)(2) inquiry and the District Court dismissed her motion with prejudice.
Jackson appealed. The District Court construed her notice of appeal as a
motion for a COA and denied it. Without applying for a COA from this Court, she
argues here that Hubbard v. Campbell, 379 F.3d 1245 (11th Cir. 2004), permits her
appeal without the issuance of a COA because § 2253(c) does not apply. We find
that Hubbard is inapposite and § 2253(c) does apply.
II.
Section 2253(c) bars appeals from “final order[s]” in § 2255 proceedings
“[u]nless a circuit justice or judge issues a certificate of appealability.” Because no
COA has been issued in this case, we have no jurisdiction to entertain Jackson’s
appeal if the order issued by the District Court is a “final order” within the
meaning of the statute. We conclude that it is.

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The key inquiry into whether an order is “final” for § 2253 purposes is
whether it is an order “that dispose[s] of the merits of a habeas corpus proceeding.”
Harbison v. Bell, 556 U.S. 180, 183, 129 S. Ct. 1481, 1485 (2009). Here, the
District Court performed a de novo review of whether Jackson’s successive motion
met the statutory criteria of § 2255(h)(2) and concluded that it did not. This
conclusion was necessarily on the merits of Jackson’s claim, because under
§ 2255(h)(2) it is the merits of the claim itself that qualify it to be heard. Only
“newly discovered evidence” that, after considering, “no reasonable factfinder
would have found the movant guilty,” or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,” provide bases
under § 2255(h)(2) for a second or successive motion. In other words, the
petitioner prevails only if the facts or the law—the merits of their claim—have
significantly improved in their favor. The District Court’s decision that Jackson’s
motion did not satisfy § 2255(h)(2), therefore, is necessarily on the merits.
There also was no jurisdictional bar to the District Court’s review. On the
contrary, this Court granted Jackson’s § 2244(b)(3)(A) application and properly
placed her motion before the District Court. The District Court reviewed the
underlying facts and law de novo and concluded that Jackson’s motion failed to
state a claim that could possibly grant relief. Accordingly, the District Court

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dismissed the motion with prejudice. The dismissal constituted an adjudication on
the merits. 4
Jackson now argues that Hubbard controls. It does not. In Hubbard, an
inmate filed a petition in the Northern District of Alabama for a second or
successive habeas corpus application without first moving in this Court for
authorization required by § 2244(b)(3)(A). 379 F.3d at 1246. Because the inmate
failed to obtain authorization, the Northern District dismissed the petition without
prejudice for lack of subject matter jurisdiction. Id. The inmate then applied to
this Court for a COA. Id. at 1247.
We determined that the Northern District’s dismissal without prejudice was
not a “final order in a habeas corpus proceeding” under § 2553. Id. Instead, it was
an order dismissing the petition for lack of jurisdiction. Because the key inquiry is
whether the order disposed of the merits of the proceeding, and the Northern
District properly dismissed the case when it had no jurisdiction to reach the merits,
Hubbard was correctly decided.
But Hubbard is easily distinguished from the present case. Here, the District
Court had jurisdiction over the case because this Court had authorized it under
§ 2244(b)(3)(A). The District Court exercised that jurisdiction in performing a de
4

This merits-based dismissal framework should sound familiar. A dismissal with
prejudice for failure to state a claim upon which relief can be granted, under Federal Rule of
Civil Procedure 12(b)(6), is an adjudication on the merits. Lobo v. Celebrity Cruises, Inc., 704
F.3d 882, 893 (11th Cir. 2013).
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novo review of the merits of Jackson’s claim under Johnson. After performing that
review, the District Court determined that Jackson’s claim was without merit and
dismissed the claim with prejudice.
III.
A district court dismissing a petition without prejudice, because it lacks
subject matter jurisdiction, is not the same as a district court dismissing a petition
with prejudice on the merits. This distinction is critical here. The District Court
had jurisdiction, exercised it, performed de novo review as instructed by this Court,
and dismissed Jackson’s petition on the merits. Therefore, Hubbard does not
control. But Harbison does. Because the District Court’s order “dispose[d] of the
merits of a habeas corpus proceeding,” it is a “final order” within the meaning of
§ 2253. Harbison, 556 U.S. at 183. Since no COA has been issued, we lack
jurisdiction to hear the appeal. Jackson’s appeal is therefore dismissed without
prejudice.
DISMISSED.

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