Opinion
No. 20-2124
09-10-2020
IN RE: JULIO AVILES, SR., Petitioner
NOT PRECEDENTIAL
On Petition for a Writ of Mandamus to the United States District Court for the Middle District of Pennsylvania
(D.C. Nos. 1-15-cr-00181 & 1-20-cv-00290)
District Judge: Honorable John E. Jones, III Submitted Pursuant to Fed. R. App. P. 21
on August 13, 2020 Before: AMBRO, GREENAWAY, JR., and BIBAS, Circuit Judges OPINION PER CURIAM
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. --------
Julio Aviles, Sr., is a federal prisoner currently awaiting resentencing in the United States District Court for the Middle District of Pennsylvania. In February 2020, while resentencing was pending, Aviles filed a pro se motion pursuant to 28 U.S.C. § 2255 challenging his convictions. That motion was docketed in his criminal case, M.D. Pa. Crim. No. 1:15-cr-00181, and a new civil case was also opened for the matter, M.D. Pa. Civ. No. 1:20-cv-00290. In May 2020, Aviles filed a motion in the civil matter asking the District Court to adjudicate his § 2255 motion. The District Court then entered an order in the criminal matter dismissing the § 2255 motion without prejudice as premature. The District Court's order was not docketed in the civil matter and, although the District Court directed counsel to provide Aviles with a copy of the order, it appears that Aviles never received one. As a result, on May 26, 2020, Aviles filed in this Court a petition for writ of mandamus asking us to compel the District Court to adjudicate his § 2255 motion.
Given that the District Court has already adjudicated the § 2255 motion, this case does not present a live controversy. Therefore, we will dismiss the mandamus petition as moot. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). This dismissal is without prejudice to Aviles' ability to file a § 2255 motion after resentencing.