United States District Court, D. New Jersey
Polanco, No. 58958-054 Petitioner Pro se
Elizabeth Ann Pascal, Esq. Office of the U.S. Attorney
Counsel for Respondent
L. HILLMAN, U.S.D.J.
Alejo Polanco, a prisoner confined at the Federal
Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this Petition for Writ of Habeas Corpus under
28 U.S.C. § 2241, challenging his sentence. ECF No. 1.
Presently before the Court is Respondent's Motion to
Dismiss the Petition for lack of jurisdiction. ECF No. 8.
Petitioner has failed to file an opposition to the Motion,
and the Motion is now ripe for disposition. For the reasons
that follow, the Court will grant the Motion and dismiss the
Alejo Polanco is presently serving a twenty-seven (27) year
federal sentence for his convictions by jury for “drug
and Hobbs Act conspiracy, use and discharge of firearms, and
murder.” ECF No. 1-1 at 1. Petitioner was convicted of
these offenses in the U.S. District Court for the Eastern of
New York, and also has a conviction from the U.S. District
Court for the Southern District of New York. See No.
08-cr-65 (E.D.N.Y.); No. 05-cr-185 (S.D.N.Y.). After his
sentencing, Petitioner moved under 18 U.S.C. § 3582(c)
for a reduction in his sentence based on Amendment 782 to the
Guidelines, but his sentencing court denied the motion,
finding that the applicable amendment did not alter
Polanco's advisory guideline sentence of life. No.
08-cr-65, ECF No. 351 (E.D.N.Y.). Petitioner also filed a
direct appeal regarding his sentence, which was affirmed.
See United States v. Vasquez, et al., 672 Fed.Appx.
56 (2d Cir. 2016).
Petitioner filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 in the Eastern
District of New York, his sentencing court, arguing that his
counsel was ineffective for failing to seek a downward
departure and that Petitioner should receive a reduction
pursuant to Federal Rule of Criminal Procedure 35(b).
See No. 17-cv-2195 (E.D.N.Y.). That motion was
denied, with the sentencing court noting that (1) his trial
counsel did advocate for a below guidelines range, which he
received, and (2) Petitioner provided no substantial
assistance post-sentencing and thus could not rely on Federal
Rule of Criminal Procedure 35(b) for a reduction in sentence.
ECF No. 1-1 (opinion denying § 2255 relief attached as
an exhibit to the Petition).
his § 2255 motion was denied, Petitioner filed the
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 in this Court, his district of confinement,
advancing the same argument contained in his § 2255
motion and seeking a reduction in his sentence for alleged
substantial assistance post-sentencing. See ECF No.
1. Petitioner does not provide a brief in support of his
Petition. However, he does attach as an exhibit the opinion
denying his § 2255 motion. See ECF No. 1-1.
A. Legal Standard
United States Code Title 28, Section 2243, provides in
relevant part as follows:
A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue
an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
pro se pleading is held to less stringent standards
than more formal pleadings drafted by lawyers. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972). A pro se
habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition
that the petitioner is not ...