2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2013

USA v. Nelson Hernandez

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4288

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Recommended Citation

"USA v. Nelson Hernandez" (2013). 2013 Decisions. Paper 1082.

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1

*AMENDED HLD-004 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4288

___________

IN RE: NELSON HERNANDEZ,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

United States District Court for the Eastern District of Pennsylvania

(Related to E.D. Pa. Criminal No. 2:90-cr-00315-002)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

December 6, 2012

Before: MCKEE, Chief Judge, ALDISERT and BARRY, Circuit Judges

(Opinion filed: March 26, 2013)

_________

OPINION

_________

PER CURIAM

Nelson Hernandez, a federal inmate currently incarcerated at USP Coleman in 

Coleman, Florida and proceeding pro se, petitions for a writ of mandamus compelling the 

District Court to rule on various motions he has filed relating to his criminal case. 

Because Hernandez has not demonstrated that he is entitled to mandamus relief at this 

time, we will deny his petition.
2

In 1991, following a jury trial, Hernandez was convicted of various drug 

trafficking offenses and was sentenced to life imprisonment by the District Court. We 

affirmed his judgment of conviction on direct appeal. See United States v. Hernandez, 

No. 91-1930, 970 F.2d 900 (3d Cir. June 22, 1992) (table decision). In 1995, Hernandez 

filed a motion pursuant to 28 U.S.C. § 2255, which was ultimately denied by the District 

Court following an evidentiary hearing regarding his claims of ineffective assistance of 

counsel. We affirmed the District Court’s denial. See United States v. Hernandez, No. 

97-1590, 156 F.3d 1226 (3d Cir. May 22, 1998) (table decision).

In July 2007, Hernandez filed a motion pursuant to Fed. R. Civ. P. 60(b), alleging 

that the Government lacked jurisdiction to request a sentence enhancement pursuant to 21 

U.S.C. § 851(a). On January 19 and March 12, 2010, he filed motions for modification 

and reduction of his sentence pursuant to 18 U.S.C. § 3582(c). He filed motions to 

supplement his Rule 60(b) motion on March 21 and August 22, 2011. On April 30, 2012, 

Hernandez filed a motion requesting final resolution of these motions.

On November 26, 2012, Hernandez filed his present petition, seeking a writ of 

mandamus that would require the District Court to rule on his various motions filed since 

July 2007. On January 25, 2013, the District Court denied Hernandez’s March 12, 2010 

motion seeing a modification and reduction of his sentence pursuant to § 3582(c) and 

denied his January 19, 2010 § 3582(c) motion to the extent it relied upon an amendment

to the United States Sentencing Guidelines other than Amendment 709.
3

Mandamus is a drastic remedy that is granted only in extraordinary cases. In re 

Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). It may be “used to 

confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it 

to exercise its authority when it is its duty to do so.” Id. (internal citation and quotation 

omitted). To demonstrate that mandamus is appropriate, a petitioner must demonstrate

that “(1) no other adequate means exist to attain the relief he desires, (2) the party’s right 

to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the 

circumstances.” Hollingsworth v. Perry, 130 S. Ct. 705, 710 (2010) (per curiam) 

(internal quotation marks and citation omitted).

Here, Hernandez has not demonstrated that the writ is appropriate under the 

circumstances. Since he filed his petition, the District Court has ruled upon his § 3582(c) 

motions, and its order notes that Hernandez’s remaining motions will be addressed by a 

separate order. We are confident that the District Court will act on these remaining 

motions in a timely manner.

For the foregoing reasons, we will deny the petition for a writ of mandamus. This 

denial is without prejudice to Hernandez’s filing another petition if the District Court 

takes no action on his remaining motions within the next three month.