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Case No. 4:97cr36-RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:97cr36-RH/CAS

OSVALDO FRANCISCO GONZALEZ,

Defendant.

____________________________________/

ORDER DENYING THE § 2255 MOTION

An indictment in Case No. 4:96cr56 charged the defendant Osvaldo 

Francisco Gonzalez and 14 others with conspiring to distribute cocaine. A later 

indictment in this Case No. 4:97cr36 charged 12 additional defendants with 

participating in the same conspiracy. The first trial in Case No. 4:96cr56 took 

place before Mr. Gonzalez was arrested. He was tried in a consolidated trial with 

some of the defendants in Case No. 4:97cr36. But Mr. Gonzalez was a defendant 

only in Case No. 4:96cr56. He was sentenced, and a judgment was entered, only in 

Case No. 4:96cr56.

On April 2, 2014, Mr. Gonzalez filed identical motions in Cases No. 

4:96cr56 and this Case No. 4:97cr36 seeking relief under 28 U.S.C. § 2255. An 

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Case No. 4:97cr36-RH/CAS

order was entered in Case No. 4:96cr56 on April 10, 2014, denying the motion in 

that case as unfounded both procedurally and on the merits. The motion in this 

Case No. 4:97cr36 is unfounded because Mr. Gonzalez was not convicted or 

sentenced in this case; there is no judgment in this case from which relief could be 

given. And if that were not so, Mr. Gonzalez still would not be entitled to relief, 

for the reasons set out in the April 10 order in Case No. 4:96cr56. 

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. 

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.” 

Slack, 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 

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Case No. 4:97cr36-RH/CAS

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.” Slack, 529 U.S. at 484. 

Mr. Gonzalez has not made the required showing. This order thus denies a 

certificate of appealability. 

For these reasons,

IT IS ORDERED:

Mr. Gonzalez’s § 2255 motion, ECF No. 815, is DENIED. 

SO ORDERED on July 3, 2014.

s/Robert L. Hinkle

United States District Judge

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