Gonzalez v. United States of America
ORDER DENYING MOVANT'S REQUEST FOR BAIL. Movant's request for bail, contained within his § 2255 Motion [ECF No. 1 ] and pursuant to Fed. R. App. P. 23(b), is DENIED. Signed by Judge Rodolfo A. Ruiz, II on 9/16/2022. See attached document for full details. (daa)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 22-CV-22940-RAR
JONNATHAN JESUS GONZALEZ,
UNITED STATES OF AMERICA,
ORDER DENYING MOVANT’S REQUEST FOR BAIL
THIS CAUSE is before the Court on Movant Jonnathan Jesus Gonzalez’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [ECF
No. 1] (“Motion”). Although the Motion contains three “grounds,” the third ground does not
challenge the legality of Movant’s federal sentence and instead argues that Movant should be
released on bail while the Court adjudicates his § 2255 Motion. See Motion at 7 (“The Court
should admit Petitioner to bail pending the disposition of the Section 2255 proceedings.”). As
Movant himself recognizes, bail can only be granted in “extraordinary circumstances.” Id. Having
reviewed the applicable case law and the allegations in Movant’s Motion, the Court concludes that
Movant’s request for bail should be DENIED.
“The custody of habeas petitioners during the pendency of their habeas proceedings is
governed by Rule 23(b) of the Federal Rules of Appellate Procedure[.]” Ostrer v. United States,
584 F.2d 594, 597 (2d Cir. 1978). Rule 23(b) explains that “[w]hile a decision not to release a
prisoner is under review, the court or judge rendering the decision . . . may order that the prisoner
be released on personal recognizance, with or without surety.” Fed. R. App. P. 23(b)(3). Although
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Rule 23(b) “does not itself set forth any substantive criteria for determining detention or release,”
United States v. Dade, 959 F.3d 1136, 1138 (9th Cir. 2020), federal courts around the country have
repeatedly held that “[b]ail pending a decision in a habeas case is reserved for extraordinary cases
involving special circumstances or a high probability of success[,]” Land v. Deeds, 878 F.2d 318,
318 (9th Cir. 1989); see also Ostrer, 584 F.2d at 596 n.1 (“[W]e have held that a habeas petitioner
should be granted bail only in unusual cases, or when extraordinary or exceptional circumstances
exist which make the grant of bail necessary to make the habeas remedy effective.”) (internal
citations omitted); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (“We stated that the
factual predicate for the exercise of such power was a finding of ‘extraordinary circumstances.’”).
The Court finds two strong reasons to deny relief under Rule 23(b). To start, it is dubious
whether district courts have the power to grant bail under Rule 23(b) in the first place. In a recent
decision rendered by this Court, United States District Judge Beth Bloom surveyed a wide
sampling of district court cases from around the country and adopted the majority view of those
courts: “Rule 23(b) does not apply to habeas petitions that remain pending before a federal district
court.” Destin v. Florida, No. 22-cv-22251, 2022 WL 3656964, at *1 (S.D. Fla. Aug. 25, 2022).
Judge Bloom concluded that “the plain language of Rule 23(b) ‘appears to apply only to motions
for release filed after the district court has issued a decision on the merits of a habeas petition.’”
Id. (quoting Hall v. San Francisco Super. Ct., No. 09-5299, 2010 WL 890044, at *1 (N.D. Cal.
Mar. 8, 2010)) (emphasis in original). The Court agrees with Judge Bloom’s analysis and finds
that it does not have the authority to grant bail under Rule 23(b).
However, Movant has provided case law that district courts (at least in the Section 2255
context) still have the inherent authority to grant bail, irrespective of Rule 23(b). See, e.g.,
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Fernandez v. United States, No. 16-CV-60091, 2017 WL 6597535, at *13 (S.D. Fla. Mar. 3, 2017)
(“However, district courts have inherent power to place Section 2255 applicants on bail.”), report
and recommendation adopted, 2017 WL 6597968 (S.D. Fla. Aug. 22, 2017). Assuming Movant
is correct, the Court is still restrained by certain equitable principles, as bail can only be granted
“when the petitioner has raised substantial constitutional claims upon which he has a high
probability of success, and also when extraordinary or exceptional circumstances exist which make
the grant of bail necessary to make the habeas remedy effective.” Calley v. Callaway, 496 F.2d
701, 702 (5th Cir. 1974). 1
Without deciding whether Movant’s claims have a high probability of success, the Court
finds that Movant has failed to allege an “extraordinary or exceptional circumstance” which
justifies bail. Movant’s argument appears to be that he “has demonstrated that he is actually
innocent of 18 U.S.C. § 1028A(a)(1)” and that he will “complete his sentence imposed for [18
U.S.C. § 1349] by October 3, 2022[.]” Motion at 7. These arguments are wholly unpersuasive.
First, there is nothing “exceptional” about Movant alleging that he is innocent of the charges
against him and that his federal sentence is unconstitutional—nearly all postconviction movants
feel the same way. See Destin, 2022 WL 3656964, at *2 (“Mere belief that Petitioner’s detention
is illegal is insufficient since all habeas petitioners share this same circumstance.”). In addition,
Movant’s claim of actual innocence is belied by the fact he voluntarily pled guilty to the charges
against him and expressed remorse for committing the crimes during his sentencing.
Sentencing Tr., United States v. Gonzalez, No. 20-CR-20155-RAR-5 (S.D. Fla. Oct. 18, 2021),
The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit rendered
before October 1, 1981. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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ECF No. 302 at 89–90 (“I want to apologize for the crime committed and for the bad decisions
that I’ve made. . . . I should have stopped all this and not made these decisions.”); see also
Fernandez, 2017 WL 6597535, at *14 (“His claim of actual innocence is refuted by his statements
in open court during the plea and sentencing hearings stating that he is guilty of the offense for
which he pled guilty and that he accepts responsibility for his criminal behavior.”).
Second, Movant’s claim that his release is imminent is misleading. It is true that an
impending release date is one of the few recognized “exceptional circumstances” which entitle a
postconviction movant to bail. See Landano, 970 F.2d at 1239 (“Very few cases have presented
extraordinary circumstances, and those that have seem to be limited to situations involving poor
health or the impending completion of the prisoner’s sentence.”). The problem here is that Movant
is currently not scheduled to be released until 2024. Although Movant’s sentence on Count 1 of
the Indictment has almost concluded, he still must serve another, consecutive 24-month term of
incarceration on Count 12. See Amended Judgment, United States v. Gonzalez, No. 20-CR-20155RAR-5 (S.D. Fla. Sept. 1, 2022), ECF No. 331 at 2.
Regardless, Movant is also a citizen of the Bolivarian Republic of Venezuela, not the
United States, meaning that he will likely be taken into the custody of Immigration and Customs
Enforcement even if the Court were to release Movant on bail. See Sentencing Tr., United States
v. Gonzalez, No. 20-CR-20155-RAR-5 (S.D. Fla. Oct. 18, 2021), ECF No. 302 at 83 (“[Movant’s
Counsel:] My client is going to be deported when this is over[.]”). In short, Movant’s only
argument for release pending the disposition of his § 2255 Motion is his belief that the Motion is
meritorious. This is not an exceptional circumstance, and it does not merit bail.
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Accordingly, it is hereby ORDERED AND ADJUDGED that Movant’s request for bail,
contained within his § 2255 Motion [ECF No. 1] and pursuant to Fed. R. App. P. 23(b), is
DONE AND ORDERED in Fort Lauderdale, Florida, this 16th day of September, 2022.
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE
Counsel of record
Jonnathan Jesus Gonzalez
Allenwood Low Federal Correctional Institution
P.O. Box 1000
White Deer, PA 17887
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