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Cases No. 5:98cr28-RH and 5:16cv147-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 5:98cr28-RH

 5:16cv147-RH/GRJ

VICTOR GARCIA VILLARREAL,

Defendant.

________________________________/

ORDER DENYING THE § 2255 MOTION

The defendant has filed two copies of a motion under 28 U.S.C. § 2255 for 

relief from his judgment of conviction. ECF Nos. 223 and 225. The motion is 

before the court on the magistrate judge’s report and recommendation, ECF No. 

224, and the objections, ECF No. 226. I have reviewed de novo the issues raised 

by the objections. This order accepts the report and recommendation and denies 

the § 2255 motion.

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 

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Cases No. 5:98cr28-RH and 5:16cv147-RH/GRJ

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

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. 5:98cr28-RH and 5:16cv147-RH/GRJ

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

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

2. A certificate of appealability is denied.

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

SO ORDERED on June 28, 2016.

s/Robert L. Hinkle

United States District Judge

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