POLANCO v. HOLLINGSWORTH

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 12/28/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
ALEJO POLANCO,
:
:
Petitioner,
:
Civ. No. 18-6582 (NLH)
:
v.
:
OPINION
:
WARDEN J. HOLLINGSWORTH,
:
:
Respondent.
:
___________________________________:
APPEARANCES:
Alejo Polanco, No. 58958-054
FCI Ft. Dix
P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
Elizabeth Ann Pascal, Esq.
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
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.
No. 05-cr-185 (S.D.N.Y.).

See No. 08-cr-65 (E.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 F. App'x 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).
(E.D.N.Y.).

See No. 17-cv-2195

That motion was denied, with the sentencing court
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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 postsentencing.

See ECF No. 1.

in support of his Petition.

Petitioner does not provide a brief
However, he does attach as an

exhibit the opinion denying his § 2255 motion.
II.

See ECF No. 1-1.

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

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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 entitled to relief. See Denny v. Schult,
708 F.3d 140, 148 n.3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2241, 2254.
B.

Analysis

Petitioner raises as his only ground for relief in the
Petition a challenge to his sentence as imposed, requesting a
reduction pursuant to Federal Rule of Criminal Procedure 35(b)
for substantial assistance post-sentencing.

As noted by the

Court of Appeals for the Third Circuit in In re Dorsainvil, 119
F.3d 245, 249 (3d Cir. 1997), a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 has been the “usual
avenue” for federal prisoners seeking to challenge the legality
of their confinement including their sentence as imposed.

See

also Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002);
United States v. McKeithan, 437 F. App’x 148, 150 (3d Cir.
2011); United States v. Walker, 980 F. Supp. 144, 145-46 (E.D.
Pa. 1997) (challenges to a sentence as imposed should be brought
under § 2255, while challenges to the manner in which a sentence
is executed should be brought under § 2241).
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Section 2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or ineffective
to test the legality of [Petitioner's] detention.”
U.S.C. § 2255(e).

See 28

In Dorsainvil, the Third Circuit held that

the remedy provided by § 2255 is “inadequate or ineffective,”
permitting resort to § 2241 (a statute without timeliness or
successive petition limitations), where a prisoner who
previously had filed a § 2255 motion on other grounds “had no
earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.”
Dorsainvil, 119 F.3d at 251.

The court emphasized, however,

that its holding was not intended to suggest that § 2255 would
be considered “inadequate or ineffective” merely because a
petitioner is unable to meet the stringent limitations or
gatekeeping requirements of § 2255.

Id.

To the contrary, the

court was persuaded that § 2255 was “inadequate or ineffective”
in the unusual circumstances presented in Dorsainvil because it
would have been a complete miscarriage of justice to confine a
prisoner for conduct that, based upon an intervening
interpretation of the statute of conviction by the United States
Supreme Court, may not have been criminal conduct at all.

Id.

at 251-52.
Under Dorsainvil and its progeny, this Court can exercise §
2241 jurisdiction over this Petition if, and only if, Petitioner
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demonstrates (1) his “actual innocence,” (2) as a result of a
retroactive change in substantive law that negates the
criminality of his conduct, (3) for which he had no other
opportunity to seek judicial review.

See Dorsainvil, 119 F.3d

at 251-52; Cradle, 290 F.3d at 539; Okereke, 307 F.3d at 120;
Trenkler v. Pugh, 83 F. App’x 468, 470 (3d Cir. 2003).
Here, Petitioner’s claims do not fall within the Dorsainvil
exception because Petitioner had an opportunity to seek judicial
review of the legality of his confinement and sentence in his §
2255 motion.

Based on the foregoing, the Court finds that it

lacks jurisdiction under § 2241 over the instant habeas
petition.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interests of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it
was filed.”

28 U.S.C. § 1631.

Since Petitioner has already

pursued a motion under § 2255, he must seek authorization from
the Court of Appeals for the Second Circuit to file a second or
successive petition.

28 U.S.C. § 2244(b)(3).

The Court finds

that it is not in the interests of justice to transfer this
habeas petition to the Second Circuit as it does not appear
Petitioner can satisfy the requirements of § 2244(b)(2).
Court's decision not to transfer the case does not prevent

This

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Petitioner seeking permission from the Second Circuit on his
own.
III. CONCLUSION
For the foregoing reasons, the Motion to Dismiss will be
granted and the Petition dismissed for lack of jurisdiction.
appropriate order will be entered.

Dated: December 28, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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An