Opinion
Case No. 07-cr-780
07-24-2020
UNITED STATES OF AMERICA v. GERMAN DARIO POLANCO
Appearances: For the Government: ANDREW C. GILMAN, ESQ. U.S. Attorney's Office, E.D.N.Y. 271 Cadman Plaza East Brooklyn, NY 11201
MEMORANDUM AND ORDER
Appearances: For the Government:
ANDREW C. GILMAN, ESQ.
U.S. Attorney's Office, E.D.N.Y.
271 Cadman Plaza East
Brooklyn, NY 11201 BLOCK, Senior District Judge:
German Dario Polanco is currently incarcerated pursuant to the Court's September, 26 2011 judgment sentencing him to four concurrent life sentences on convictions for murder in furtherance of a continuing criminal enterprise and murder through the use of a firearm. See Dkt #135. On January 31, 2013, the Second Circuit affirmed this judgment. United States v. Polanco, 510 F. App'x 10 (2d Cir. 2013).
Polanco, pro se, moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence based on the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II") and Williams v. Pennsylvania, 136 S. Ct. 1899 (2016). For the following reasons, this motion is denied.
I. Johnson II Claim
Polanco's Johnson II claim challenges his two murder through the use of a firearm convictions under 18 U.S.C. § 924(j), not his two murder in furtherance of a continuing criminal enterprise convictions under 21 U.S.C. § 848(e)(1)(A). At sentencing, the Court imposed concurrent life sentences on each of the four counts of convictions.
Accordingly, regardless of any Johnson II errors, Polanco must still serve two concurrent life sentences. Therefore, any error "caused no prejudice" and Polanco is not entitled to habeas relief. Underwood v. U.S., 166 F.3d 84, 87 (2d Cir. 1999) (If the error "could not affect the prison term," then it is "merely cosmetic," and the petitioner "cannot obtain relief on collateral review."); see also Colon v. U.S., 2005 WL 2764820, at *2 (D. Conn. Oct. 21, 2005) (petitioner not entitled to relief because "[petitioner] still faced three additional life sentences" and "his sentences on the contested counts did not affect his total term of imprisonment"); Ogando v. U.S., 2001 WL 69428, at *2 (S.D.N.Y. Jan. 26, 2001) (when a petitioner has concurrent sentences, he is not entitled to have a lesser-included conviction vacated when "the consequences of such vacatur would be essentially non-existent" because he "would remain incarcerated for the same period of time").
II. Williams Claim
Polanco further argues that, in accordance with Williams v. Pennsylvania, 36 S. Ct. 1899 (2016), Judge Trager, the trial judge, and Judge Block, the sentencing judge, should have sua sponte recused themselves because these judges decided important witness issues, trial motions, and post-trial motions that rendered them bias. In Williams, the Supreme Court held that "there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." 136 S. Ct. at 1905.
Polanco's argument is without merit. Neither Judge Trager nor Judge Block acted as a prosecutor in Polanco's case. Both judges acted exclusively as impartial adjudicators in deciding trial motions, post-trial motions, and witness issues.
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For the foregoing reasons, Polanco's §2255 motion is denied.
SO ORDERED.
/S/ Frederic Block
FREDERIC BLOCK
Senior United States District Judge Brooklyn, New York
July 24, 2020