Hernandez v. United States

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) UNITED STATES OF AMERICA, ) ) v. ) Case No. 17-cr-10067-LTS ) FERNANDO HERNANDEZ, ) ) Defendant. ) )

ORDER ON PETITION UNDER 28 U.S.C. § 2255 (DOC. NO. 329)

December 4, 2018

SOROKIN, J. Fernando Hernandez pled guilty to conspiracy to distribute and possess with intent to distribute heroin and fentanyl on November 6, 2017. Doc. Nos. 161, 226. On February 26, 2018, this Court sentenced Hernandez to 188 months’ incarceration—the bottom end of the applicable range under the United States Sentencing Guidelines. Doc. No. 227. Hernandez filed a timely direct appeal, Doc. No. 230, and that appeal remains pending before the First Circuit, United States v. Hernandez, No. 18-1209 (1st Cir.).1 On November 26, 2018, this Court received and docketed Hernandez’s pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, along with a supporting memorandum. Doc. Nos. 329, 330. Because Hernandez’s direct appeal is presently under consideration by the First Circuit, “the orderly administration of criminal justice precludes” this Court “from considering [Hernandez’s] § 2255 motion.” United States v. Gordon, 634 F.2d 638, 638 (1st Cir. 1980)

1 According to the First Circuit’s docket, Hernandez’s appellate counsel filed an Anders brief on October 24, 2018, in which the two issues discussed are the voluntariness of Hernandez’s guilty plea and the propriety of his sentence. (quotation marks omitted). This is so even where Hernandez’s motion purports to present a counsel ineffectiveness claim that may not be asserted or resolved in the pending direct appeal. United States v. Weekes, 611 F.3d 68, 71-72 (1st Cir. 2010). The Court can discern no “extraordinary circumstances” justifying an exception to this general rule here, and Hernandez

has identified none. Id. Accordingly, Hernandez’s motion to vacate his conviction under § 2255 (Doc. No. 329) is DISMISSED without prejudice. SO ORDERED.

/s/ Leo T. Sorokin Leo T. Sorokin United States District Judge