United States v. Magana-Gonzalez, 17cr3077-LAB (2019)
Court: District Court, N.D. California
Number: infdco20191212962
Visitors: 10
Filed: Dec. 10, 2019
Latest Update: Dec. 10, 2019
Summary: ORDER DENYING PETITION UNDER 28 U.S.C. 2255 LARRY ALAN BURNS , Chief District Judge . Defendant Adalberto Magana-Gonzales filed a direct appeal on September 25, 2018. The Ninth Circuit in a memorandum affirmed his conviction on October 22, 2019, but granted his motion to extend the time for him to file a petition for rehearing or rehearing en banc. Then he filed this petition under 28 U.S.C. 2255 on November 26, 2019. As of today, the mandate has not issued, and the appeal is still pend
Summary: ORDER DENYING PETITION UNDER 28 U.S.C. 2255 LARRY ALAN BURNS , Chief District Judge . Defendant Adalberto Magana-Gonzales filed a direct appeal on September 25, 2018. The Ninth Circuit in a memorandum affirmed his conviction on October 22, 2019, but granted his motion to extend the time for him to file a petition for rehearing or rehearing en banc. Then he filed this petition under 28 U.S.C. 2255 on November 26, 2019. As of today, the mandate has not issued, and the appeal is still pendi..
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ORDER DENYING PETITION UNDER 28 U.S.C. § 2255
LARRY ALAN BURNS, Chief District Judge.
Defendant Adalberto Magana-Gonzales filed a direct appeal on September 25, 2018. The Ninth Circuit in a memorandum affirmed his conviction on October 22, 2019, but granted his motion to extend the time for him to file a petition for rehearing or rehearing en banc. Then he filed this petition under 28 U.S.C. § 2255 on November 26, 2019. As of today, the mandate has not issued, and the appeal is still pending.
A § 2255 petition filed while a direct appeal is still pending will be denied, because the disposition of the appeal may render the petition unnecessary. Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987).
The petition is DENIED WITHOUT PREJUDICE. This order does not prevent Magana-Gonzalez from filing a new petition after the appeal is final.
IT IS SO ORDERED.
Source: Leagle
