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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

vs. Case Nos.: 5:98cr28/RH/GRJ

5:16cv147/RH/GRJ

VICTOR GARCIA VILLARREAL, 

REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s “Motion under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in 

Federal Custody.” (ECF No. 223.) Rule 4(b) of the Rules Governing 

Section 2255 Proceedings for the United States District Courts provides in 

part that A[i]f it plainly appears from the motion, any attached exhibits, and 

the record of prior proceedings that the moving party is not entitled to 

relief, the judge must dismiss the motion and direct the clerk to notify the 

moving party.@ A review of the record reveals that the court does not 

have jurisdiction to entertain Petitioner’s motion and that it should be 

summarily dismissed. 

BACKGROUND and ANALYSIS

Victor Garcia Villarreal was sentenced to a total term of 398 months 

imprisonment after entering a guilty plea to a single count of a two count 

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Case Nos.: 5:98cr28/RH/GRJ; 5:16cv147/RH/GRJ

indictment. (ECF No. 93.) His conviction and sentence were affirmed on 

appeal in 2010 (ECF No. 113), and when he filed a motion to vacate 

pursuant to 28 U.S.C. § 2255 in 2014 it was summarily denied as untimely. 

(ECF Nos. 189, 190, 198, 199.) Before filing the instant motion, Villarreal

filed an application with the Eleventh Circuit seeking an order authorizing 

the district court to consider a second or successive motion under 28 

U.S.C. § 2255. The Eleventh Circuit noted the seven claims Villarreal 

sought to raise as well as his reliance on Johnson v. United States, 135 

S.Ct. 2551 (2015) and Molina-Martinez v. United States, 136 S.Ct. 1338 

(2016). (ECF No. 222). The Eleventh Circuit found that Johnson was 

inapplicable to the facts of Villarreal’s case, and that Molina-Martinez was 

not a new rule of constitutional law. Therefore, because Villarreal had not 

shown that his claims were premised upon a new rule of constitutional law, 

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

court denied his application. (ECF No. 222 at 5.) Villarreal nonetheless 

filed the instant motion. 

Before a second or successive application for ' 2255 relief is filed in 

the district court, the litigant must typically move in the appropriate court of 

appeals for an order authorizing the district court to consider the 

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Case Nos.: 5:98cr28/RH/GRJ; 5:16cv147/RH/GRJ

application. 28 U.S.C. ' 2244(b)(3) and ' 2255(h); Felker v. Turpin, 518 

U.S. 651 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 

2005); Carter v. United States, 405 Fed. App=x 409 (11th Cir. 2010). 

Although Villarreal sought the certification, he did not receive it. As such, 

this Court does not have jurisdiction to consider his petition and it must be 

dismissed without prejudice.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings 

provides that “[t]he district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant,” and if a 

certificate is issued “the court must state the specific issue or issues that 

satisfy the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of 

appeal must still be filed, even if the court issues a certificate of 

appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of 

the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 

U.S. 473, 483–84 (2000) (explaining how to satisfy this showing) (citation 

omitted). Therefore, it is also recommended that the court deny a 

certificate of appealability in its final order.

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Case Nos.: 5:98cr28/RH/GRJ; 5:16cv147/RH/GRJ

The second sentence of Rule 11(a) provides: “Before entering the 

final order, the court may direct the parties to submit arguments on whether 

a certificate should issue.” If there is an objection to this recommendation 

by either party, that party may bring this argument to the attention of the 

district judge in the objections permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED: 

1. Villarreal’s Motion under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence by a person in Federal Custody (ECF No. 

223) should be summarily DISMISSED without prejudice. 

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 31st day of May 2016.

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed 

within fourteen (14) days after being served a copy thereof. Any different deadline 

that may appear on the electronic docket is for the court’s internal use only, and 

does not control. A copy of objections shall be served upon all other parties. If 

a party fails to object to the magistrate judge's findings or recommendations as to 

any particular claim or issue contained in a report and recommendation, that party 

waives the right to challenge on appeal the district court's order based on the

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 

636. 

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