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Polanco v. Hollingsworth

United States District Court, D. New Jersey

December 28, 2018

ALEJO POLANCO, Petitioner,
v.
WARDEN J. HOLLINGSWORTH, Respondent.

          Alejo Polanco, No. 58958-054 Petitioner Pro se

          Elizabeth Ann Pascal, Esq. Office of the U.S. Attorney Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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 Petition.

         I. BACKGROUND

         Petitioner 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).

         Next, 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).

         After 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.

         II. DISCUSSION

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 thereto.

         A 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 ...


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