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POLANCO v. UNITED STATES

October 16, 1992

ARTURO POLANCO, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: MARY JOHNSON LOWE

 MARY JOHNSON LOWE, D.J.

 Before this Court is the pro se petition of Arturo Polanco ("petitioner"), brought pursuant to 28 U.S.C. § 2255 (habeas corpus), requesting that this Court vacate the sentence imposed upon him on December 1, 1986. For the reasons set forth below, the motion is denied and the petition is dismissed in its entirety.

 BACKGROUND

 On January 17, 1986, petitioner Polanco pleaded guilty before this Court to a charge of conspiracy to distribute and possess cocaine in violation of 21 U.S.C. § 846. Petitioner was sentenced to a five-year term of imprisonment. United States v. Polanco, 84 Cr. 827 (MJL). He was released from federal custody on July 19, 1989. See Order of July 5, 1990.

 Petitioner contends that his plea and sentence should be vacated. He alleges that his counsel, or alternatively the Court, should have informed him of the possibility of deportation pursuant to 8 U.S.C. § 1251(a)(2)(B) (formerly § 1251(a)(11)) following a conviction of a violation relating to controlled substances. Petitioner asserts that he would not have pleaded guilty had he been fully informed of the potential ramifications of a conviction. See Petitioner's Motion, Pursuant to Section 2255 of Title 28, United States Code in the United States District for the Southern District of New York Attacking a Sentence and Plea Imposed by That Court (hereinafter "Petitioner's Motion") at PP 7,8,17. *fn1"

 DISCUSSION

 I. 28 U.S.C. § 2255

 Petitioner's term of sentence was completed at the time of this application. Habeas corpus relief under § 2255 requires that applicant be a "prisoner in custody." 28 U.S.C. § 2255 (1982). The case at hand therefore involves a petition not properly brought. For these reasons, petitioner's motion may be dismissed as moot without ever reaching the merits of his argument. See, e.g., United States v. Roth, 283 F.2d 765 (2d Cir. 1960). However, a motion under § 2255, although not properly brought, may be treated as an application for a writ of error coram nobis if justice would be had by doing so. See United States v. Morgan, 346 U.S. 502, 98 L. Ed. 248, 74 S. Ct. 247 (1954). Petitioner fears continued ramifications - namely deportation - as a result of his conviction. Because of this, petitioner shall be permitted an opportunity to show that his conviction was invalid.

 The Court will treat the present application as seeking a writ of error coram nobis. The Supreme Court in Morgan termed such a writ an "extraordinary remedy." Id. at 511. "It is presumed the [prior] proceedings were correct and the burden rests on the accused to show otherwise." Id. at 512. Petitioner must meet a heavy burden in showing that his sentence should be vacated.

 II. Claim of Ineffective Assistance of Counsel

 Petitioner first contends that counsel erred in not warning him of the possibility of deportation following conviction. For these reasons, he claims that counsel was ineffective. When asserting that assistance of counsel has been ineffective, a defendant must meet the two-part test of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Under that test, a criminal defendant must first show that counsel's performance was deficient to the extent of falling below an objective standard of reasonableness. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

 Second, defendant must show that the deficient performance was so prejudicial as to have deprived defendant of a fair trial with reliable results. "Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Again, the Court should presume that the prior proceeding was conducted according to law. Id. Courts hearing claims of ineffectiveness must consider the totality of the evidence before the judge or jury. Id. at 695.

 This two-part test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985). In applying this two-part test to prior guilty pleas, a defendant must show: (a) that counsel's representation fell below an objective standard of reasonableness, and (b) that there is a reasonable probability that, but for counsel's ...


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