UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-22940-RAR

(20-CR-20155-RAR-5) 

JONNATHAN JESUS GONZALEZ, 

 Movant, 

v. 

UNITED STATES OF AMERICA, 

Respondent. 

_________________________________/ 

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 

Case 1:22-cv-22940-RAR Document 6 Entered on FLSD Docket 09/16/2022 Page 1 of 5
Page 2 of 5

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., 

Case 1:22-cv-22940-RAR Document 6 Entered on FLSD Docket 09/16/2022 Page 2 of 5
Page 3 of 5

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. See 

Sentencing Tr., United States v. Gonzalez, No. 20-CR-20155-RAR-5 (S.D. Fla. Oct. 18, 2021), 

1 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).

Case 1:22-cv-22940-RAR Document 6 Entered on FLSD Docket 09/16/2022 Page 3 of 5
Page 4 of 5

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-20155-

RAR-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. 

Case 1:22-cv-22940-RAR Document 6 Entered on FLSD Docket 09/16/2022 Page 4 of 5
Page 5 of 5

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 

DENIED.

DONE AND ORDERED in Fort Lauderdale, Florida, this 16th day of September, 2022.

 _________________________________

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

cc: Counsel of record

Jonnathan Jesus Gonzalez

28548-509

Allenwood Low Federal Correctional Institution 

Inmate Mail/Parcels

P.O. Box 1000

White Deer, PA 17887

PRO SE

Case 1:22-cv-22940-RAR Document 6 Entered on FLSD Docket 09/16/2022 Page 5 of 5