Magana-Gonzalez v. United States ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA Case No.: 17cr3077-LAB and 19cv2276 12 Plaintiff, 13 v. ORDER DENYING PETITION UNDER 28 U.S.C. § 2255 14 ADALBERTO MAGANA- GONZALEZ 15 Defendant. 16 17 18 Defendant Adalberto Magana-Gonzales filed a direct appeal on September 19 25, 2018. The Ninth Circuit in a memorandum affirmed his conviction on October 20 22, 2019, but granted his motion to extend the time for him to file a petition for 21 rehearing or rehearing en banc. Then he filed this petition under 28 U.S.C. § 2255 22 on November 26, 2019. As of today, the mandate has not issued, and the appeal 23 is still pending. 24 A § 2255 petition filed while a direct appeal is still pending will be 25 denied, because the disposition of the appeal may render the petition 26 unnecessary. Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir. 1987). 27 / / / 28 / / / 1 The petition is DENIED WITHOUT PREJUDICE. This order does not prevent 2 || Magana-Gonzalez from filing a new petition after the appeal is final. 3 IT IS SO ORDERED. 4 ||Dated: December 10, 2019 5 / Mf 4. (By wy 6 Honorable Larry Alan Burns 7 Chief United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28