FELICIA Y. JACKSON, Petitioner - Appellant,
UNITED STATES OF AMERICA, Respondent - Appellee.
from the United States District Court for the Southern
District of Alabama D.C. Docket Nos. 2:16-cv-00357-CB;
TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.
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. 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
Jackson is a federal prisoner serving a life sentence for
conspiracy to commit bank robbery,  bank robbery resulting in
death,  and possession of a firearm during a crime
of violence. 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 assessment
of whether Jackson met the statutory criteria of §
2255(h)(2) before assessing the merits of her claim.
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.
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.
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.
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.
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
dismissed the motion with prejudice. The dismissal
constituted an adjudication on the merits.
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
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 ...