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Polanco v. United States

United States District Court, D. New Jersey

June 6, 2019

RONNY POLANCO, Petitioner,




         Presently before the Court is Petitioner Ronny Polanco's counseled motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on him on July 27, 2001 (the “§ 2255 Motion”). (DE 1.) For the reasons stated herein, Polanco's § 2255 Motion will be dismissed as untimely under 28 U.S.C. § 2255(f) and no certificate of appealability will issue.


         Initially, it must be noted that the Court, through its April 12, 2019 order granting Polanco's separately-filed pro se motion seeking relief under the First Step Act in his underlying criminal matter, has already ordered Polanco's release from prison and the Court has been advised that he is no longer in federal custody. (See United States v. Polanco, Crim. Action No. 01-27 (KSH), at DE 34.) The ruling in this decision in no way changes the order of release; he has served the incarcerative portion of his sentence. But Polanco still faces ongoing collateral consequences associated with his federal conviction, the most significant of which is his term of supervised release that exposes him to requirements which, if not met, could result in sanctions, including a prison term. The Court is accordingly compelled to address the substantive merits of his petition even though the goal of the petition - release - has already happened.

         Much of the factual and procedural history underlying Polanco's habeas matter has already been summarized, in extensive detail, in this Court's 2014 opinion denying Polanco's prior § 2255 motion. See Polanco v. United States, No. 03-4843 (KSH), 2014 WL 3499977 (D.N.J. July 11, 2014). The Court now quotes from that opinion at length:

In January 2001, Polanco was arrested and charged with distribution and possession with intent to distribute more than 50 grams of cocaine base or “crack” cocaine. The offense carried a mandatory minimum sentence of 10 years on conviction. . . . Ultimately a plea agreement was reached and Polanco pleaded guilty on March 12, 2001, before Judge Alfred J. Lechner, Jr. The stipulations in the plea agreement left open the issue of whether Polanco would satisfy the criteria to be deemed a career offender. The stipulations also provided alternative total offense levels under the United States Sentencing Guidelines (“sentencing guidelines” or “guidelines”) depending upon how the Court made that determination: “the applicable Guidelines Total Offense Level is 29, unless Ronny Polanco satisfies the criteria of [U.S.S.G. Section] 4B1.1. In the event that the sentencing court determines that Ronny Polanco is a career offender within the meaning of [Section] 4B1.1, the applicable Guidelines Total Offense Level is 34.” [Significantly, ] at the time the agreement was struck, the parties acknowledged Polanco could face sentencing as a career offender.
In due course, the United States Probation Department (“U.S. Probation” or “probation”) undertook a pre-sentence investigation. In its draft pre-sentence report sent to the federal prosecutor and defense counsel, U.S. Probation listed as part of Polanco's past criminal history a 1994 conviction for fourth degree aggravated assault. Under Section 4B1.2 of the guidelines, that conviction satisfied one of the required two predicate offenses for Polanco's classification as a career offender because it was considered a “crime of violence.”
On June 26, 2001, while his sentencing hearing was pending, Polanco made a motion through counsel to withdraw his guilty plea on the basis that his attorney had confused the aggravated assault conviction for a simple assault conviction. On July 12, 2001, Polanco moved for a downward departure. Judge Lechner denied Polanco's motion to withdraw his plea and imposed sentence, ruling that Polanco was a career offender. As such, his sentence was based on a criminal history category of VI and a base offense level of 34, exposing him to a guidelines sentencing range of 262 months to 327 months. He received 275 months.
Polanco filed a timely [direct] appeal . . . The Third Circuit affirmed Polanco's plea and sentence, United States v. Polanco, 35 Fed.Appx. 358 (3d Cir. 2002), and denied his request for a rehearing en banc, United States v. Polanco, No. 01-3157 (3d Cir. June 4, 2002). The United States Supreme Court denied Polanco's petition for a writ of certiorari. Polanco v. United States, 537 U.S. 940 (2002).

Id. at *1-2 (citations to record omitted).

         Thereafter, in 2003, Polanco filed his first § 2255 motion collaterally attacking the Court's 2001 sentence in a related habeas case, Polanco v. United States, Civil Action No. 03-4843 (KSH) (hereinafter, Polanco's “2003 Habeas Motion” in his “First § 2255 Matter”). On July 11, 2014, the Court denied Polanco's 2003 Habeas Motion. (See July 11, 2014 Op. and Order, First § 2255 Matter at DEs 29 and 30). On June 9, 2014 - before the Court issued its final order and opinion denying his 2003 Habeas Motion - Polanco filed an appeal in the Third Circuit challenging the undersigned's rulings in the First § 2255 Matter. (See Polanco's June 9, 2014 Notice of Appeal, First § 2255 Matter at DE 27.) On November 25, 2014, the Third Circuit, in a two-page order, concluded that it lacked jurisdiction over Polanco's 2014 appeal because he failed to properly perfect the same after entry of final judgment in the First § 2255 Matter. See Polanco v. United States, No. 14-2997, Order (3d Cir. Nov. 25, 2014). Polanco did not further pursue that appeal.

         Subsequently, on June 26, 2015, the United States Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerns the Armed Career Criminal Act (“ACCA”), which imposes an increased prison term upon a defendant with three prior “violent felony” convictions. See 18 U.S.C. § 924(e)(1). At the time Johnson was issued, a qualifying “violent felony” under ACCA's so-called residual clause included any felony that “involve[d] conduct that present[ed] a serious potential risk of physical injury to another.” Johnson at 2555-56 (citing 18 U.S.C. § 924(e)(2)(B)). The Johnson Court held that this language was unconstitutionally vague and, thus, that “[i]ncreasing a defendant's sentence under [that] clause denies due process of law.” Id. at 2557. On April 18, 2016, the Supreme Court ruled that Johnson is retroactive to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016).

         Shortly after the Court announced that Johnson had retroactive effect, on or about May 27, 2016, Polanco - as required by 28 U.S.C. §§ 2244 and 2255(h) - applied to the Court of Appeals for authorization to file a second § 2255 motion. See In re Polanco, No. 16-2615, Order (3d Cir. Nov. 2, 2017). On November 2, 2017, the Third Circuit granted Polanco's application and transferred his matter here. Id. In so ...

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