Hernandez v. Thompson et al

Filing 13

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 4/8/2014. (AVC)

FILED
2014 Apr-08 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
JOSEPH G. HERNANDEZ,

)
)
Petitioner,
)
)
v.
)
)
GLENN E. THOMPSON
)
and the ATTORNEY GENERAL OF )
THE STATE OF ALABAMA,
)
)
Respondents,
)

7:11-cv-3329-RBP-JEO

MEMORANDUM OPINION
This case was filed in September 2011 by Joseph G. Hernandez, an Alabama state prisoner
acting pro se. In his original pleading, filed in September 2011, styled as a “Petition for Declaratory
Judgment Pursuant to [28 U.S.C. § 2201] and Article I, Section 10 [of the] U.S. Constitution,”
Hernandez claims that, after pleading guilty to two counts of sexual abuse in an Alabama state court,
he received a split sentence that was not authorized under Alabama state law. (Doc. 1). He asked
the court to determine the legality of his sentence and to grant “a permanent injunction to bar the
State from practicing these unconstitutional acts.” (Id. at 3-4). The court construed that pleading
as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Hernandez was thereafter
resentenced by the State court, apparently based on the fact that he also filed a similar pleading in
that court. Hernandez is clearly not satisfied with the result of that re-sentencing, which is actually
harsher that his original sentence in that it is all “prison time,” with out any “split” portion to be
served on probation. Nonetheless, on November 23, 2013, Hernandez moved this court to dismiss
this action without prejudice, stating that he “has found other avenues of discourse that he can

pursue.” (Doc. 12). Because it would appear that Hernandez is seeking an opportunity to pursue
other remedies that might be available in the Alabama courts regarding his resentencing, his motion
to dismiss without prejudice is due to be GRANTED. A separate final order will be entered.
DONE, this the 8th day of April, 2014.

_______________________________________
ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

2