Magana-Gonzalez v. United States

Opinion

UNITED STATES OF AMERICA Case No.: 17cr3077-LAB and 19cv2276 Plaintiff,

v. ORDER DENYING PETITION UNDER 28 U.S.C. § 2255

GONZALEZ Defendant.

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. Dated: December 10, 2019 / Mf 4. (By wy Honorable Larry Alan Burns Chief United States District Judge