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Cases No. 4:02cr49-RH/CAS and 4:15cv407-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 4:02cr49-RH/CAS

 4:15cv407-RH/CAS

JOHNNY WINBUSH, JR.,

Defendant.

________________________________/

ORDER DENYING THE § 2255 MOTION

The defendant Johnny Winbush, Jr. has moved under 28 U.S.C. § 2255 for 

relief from his judgment of conviction. The motion is before the court on the 

magistrate judge’s report and recommendation, ECF No. 46, and the objections, 

ECF No. 48. I have reviewed de novo the issues raised by the objections. This 

order accepts the report and recommendation and denies the § 2255 motion, with 

this additional note.

The report and recommendation correctly concludes that this is Mr. 

Winbush’s second § 2255 motion and that the motion therefore cannot go forward 

in this court without authorization from the court of appeals. The requirement for 

advance authorization from the court of appeals applies even when a retroactive 

Supreme Court decision would afford a defendant relief on the merits. In that 

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Cases No. 4:02cr49-RH/CAS and 4:15cv407-RH/CAS

circumstance, a court of appeals, not a district court, may enter an order allowing 

the § 2255 motion to go forward. See 28 U.S.C. § 2255(h) (allowing a second or 

successive § 2255 motion only when “certified as provided in section 2244 by a 

panel of the appropriate court of appeals to contain . . . a new rule of constitutional 

law, made retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable” (emphasis added)); id. § 2244(3)(A) (“Before a second or 

successive application permitted by this section is filed in the district court, the 

applicant shall move in the appropriate court of appeals for an order authorizing 

the district court to consider the application. (emphasis added)). These provisions 

require denial of Mr. Winbush’s § 2255 motion and make it unnecessary to decide 

whether, under Johnson v. United States, 135 S. Ct. 2551 (2015), Mr. Winbush 

would still properly be treated as an Armed Career Criminal under 18 U.S.C. 

§ 924(e). 

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

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Cases No. 4:02cr49-RH/CAS and 4:15cv407-RH/CAS

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that reasonable 

jurists could debate whether (or, for that matter, agree that) the 

petition should have been resolved in a different manner or that the 

issues presented were “adequate to deserve encouragement to proceed 

further.” 

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to 

obtain a certificate of appealability when dismissal is based on procedural grounds, 

a petitioner must show, “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.” Id. at 484. 

The defendant has not made the required showing. This order thus denies a 

certificate of appealability. Because the defendant has not obtained—and is not 

entitled to—a certificate of appealability, any appeal by the defendant will not be 

taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that 

any appeal will not be taken in good faith and that the defendant is not otherwise 

entitled to proceed in forma pauperis on appeal. Accordingly,

IT IS ORDERED:

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Cases No. 4:02cr49-RH/CAS and 4:15cv407-RH/CAS

1. The clerk must enter a judgment stating, “The defendant’s motion for 

relief under 28 U.S.C. § 2255 is DENIED.”

2. The defendant’s application for a certificate of appealability is DENIED.

3. Leave to proceed on appeal in forma pauperis is DENIED.

SO ORDERED on October 5, 2015.

s/Robert L. Hinkle

United States District Judge

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