United States v. John Polanco ( 2011 )


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  • HLD-022                                                        NOT PRECEDENTIAL
    
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                     ___________
    
                                          No. 10-3912
                                          ___________
    
                                  In re: JOHN POLANCO,
                                                    Petitioner
                          ____________________________________
    
                          On a Petition for Writ of Mandamus from the
                    United States District Court for the District of New Jersey
                           (Related to D.N.J. Crim. No. 06-cr-00239)
                         District Judge: Honorable Anne E. Thompson
                          ____________________________________
    
                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    October 29, 2010
             Before: MCKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
    
                                (Opinion filed: February 14, 2011)
                                          ___________
    
                                           OPINION
                                          ___________
    
    PER CURIAM.
    
                  John Polanco, proceeding pro se, petitions for a writ of mandamus directing
    
    that he be released from prison. For the reasons that follow, we will deny the petition.
    
                  In 2006, Polanco pleaded guilty to conspiracy to distribute and to possess
    
    with intent to distribute 50 grams or more of cocaine base. Polanco received the statutory
    
    mandatory minimum sentence of 120 months in prison. He did not file a direct appeal.
    
                                                 1
                  In 2008, Polanco filed a motion in District Court pursuant to 18 U.S.C. §
    
    3582 to reduce his sentence under Amendment 706 to the Sentencing Guidelines, which
    
    reduced the base offense level for crack cocaine offenses. The District Court denied
    
    Polanco’s motion, concluding that Amendment 706 had no effect on his mandatory
    
    minimum sentence. Polanco then filed a petition in District Court seeking immediate
    
    release from prison based on alleged discriminatory treatment of African-Americans and
    
    Hispanics in sentencing. The District Court denied Polanco’s petition. Polanco is now
    
    challenging his sentence in District Court through a petition, which has been construed as
    
    a motion to vacate sentence pursuant to 28 U.S.C. § 2255. See Polanco v. United States,
    
    D.N.J. Civ. No. 10-cv-05395.
    
                  Polanco has also filed the present petition for a writ of mandamus asserting
    
    that he is illegally imprisoned as a result of a discriminatory process. Polanco asks us to
    
    issue a writ of mandamus directing that he be immediately released from prison.
    
                  The writ of mandamus traditionally has been used to confine an inferior
    
    court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its
    
    authority when it is its duty to do so. In re Patenaude, 
    210 F.3d 135
    , 140 (3d Cir. 2000)
    
    (citations omitted). “The writ is a drastic remedy that is seldom issued and its use is
    
    discouraged.” Id. A petitioner must show that he has no other adequate means to attain
    
    the desired relief and that the right to a writ is clear and indisputable. Id. At 141.
    
                                                   2
                 Mandamus relief is not available here. Polanco could have appealed the
    
    denial of his motion for relief pursuant to § 3582 and his motion for immediate release,
    
    but he did not do so. Mandamus is not a substitute for an appeal. In re Chambers Dev.
    
    Co., Inc., 
    148 F.3d 214
    , 226 (3d Cir. 1998).
    
                 Accordingly, we will deny the petition for a writ of mandamus.
    
    
    
    
                                                   3
    

Document Info

DocketNumber: 10-3912

Filed Date: 2/14/2011

Precedential Status: Non-Precedential

Modified Date: 12/21/2014