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Minaya v. United States

United States District Court, S.D. New York

May 23, 2017

JOSE MINAYA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          FOR PETITIONER JOSE MINAYA Pro se.

          FOR RESPONDENT UNITED STATES OF AMERICA Jonathan Cohen, Esq.

          OPINION & ORDER

          JOHN F. KEENAN UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner Jose Minaya's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Minaya asserts that he was denied effective assistance of appellate counsel in violation of the Sixth Amendment and that the Government committed prosecutorial misconduct at his trial in violation of his right to Due Process under the Fourteenth Amendment. For the reasons stated below, Minaya's motion is denied.

         I. Background

         A. Minaya's Arrest and Indictment

         Between 2007 and November 2010, Minaya participated in a conspiracy to possess and distribute cocaine and heroin. (See Superseding Indictment ¶¶ 1-3, United States v. Minaya, No. 10 Cr. 1179 (Dec. 6, 2011), ECF No. 29.) On November 23, 2010, Minaya was arrested with Lisandro Antonio Tavarez Guzman in Manhattan, New York, where they attempted to sell 500 grams of heroin to a customer who was actually an undercover federal agent. (See Pet'r's Mem. at 2; Resp't Mem. in Opp'n at 9.) On December 6, 2011, a superseding indictment charged Minaya with three counts: (1) conspiracy to distribute at least five kilograms of cocaine and 100 grams of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B); (2) distributing and possessing with the intent to distribute heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C); and (3) distributing and possessing with the intent to distribute 100 grams of heroin in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B). (See Superseding Indictment.)

         A. Minaya's Trial

         Minaya's trial took place in early 2012. At trial, Guzman appeared as a witness for the Government and testified that on numerous occasions he and Minaya participated in sales of cocaine and heroin. (See, e.g., Tr. 513:16-20, 518:1-17, 519:2-8, United States v. Minaya, No. 10 Cr. 1179.[1]) Prior to Minaya's trial, Guzman pleaded guilty to charges concerning the distribution and possession of heroin and cocaine, and a related conspiracy. (Tr. 491:8-22.) In connection with his guilty plea, Guzman also entered into a cooperation agreement with the Government, whereby he agreed to tell the truth regarding his prior criminal activities and otherwise cooperate, including providing testimony. (Tr. 492:4-8, 493:17-24.) At the time he testified in Minaya's trial, Guzman had not yet been sentenced. (Tr. 491:23-24.)

         At various points during the trial, the Government elicited testimony from Guzman that demonstrated he had initially provided inaccurate information during proffer sessions, which he later corrected. For example, on direct examination, Guzman testified that he initially told the Government that he had “never sold heroin until the day of [his] arrest, ” but subsequently admitted that he had sold heroin on several occasions prior to his arrest. (Tr. 532:19-533:4.) Later, Guzman testified that he initially told the Government that he, along with a supplier named Ambiori, merely intended to sell “cut, ”[2] but subsequently admitted that they intended to sell heroin, not cut. (Tr. 552:5-16.)

         On cross-examination, Minaya's trial counsel questioned Guzman's veracity and credibility. Guzman reiterated that, in his initial meetings with the Government, he said that he had never sold heroin prior to the date of his arrest. (Tr. 583:15-18.) Guzman testified that he subsequently “changed [his] story.” (Tr. 583:19-24.) Guzman also reiterated his earlier recounting about intending to sell cut rather than heroin. Initially, Guzman told the Government that he and Ambiori intended to sell a customer only cut. (Tr. 587:13-23.) Then, after taking a break to speak to his attorney, Guzman “changed [his] story” and told the Government that he actually thought that Ambiori would bring heroin, not cut, to sell to a customer. (Tr. 589:7-12, 591:1-8.)

         The jury found Minaya guilty on all three counts. (See Judgment at 1, United States v. Minaya, No. 10 Cr. 1179 (June 18, 2012), ECF No. 58.) On June 18, 2012, Minaya was sentenced to 132 months' imprisonment followed by a term of supervised release of five years, and a mandatory special assessment of $300. (Id.) Minaya filed a notice of appeal on June 27, 2012. (See Notice of Appeal, United States v. Minaya, No. 10 Cr. 1179 (June 27, 2012), ECF No. 60.)

         B. Minaya's Appeal

         On appeal, Minaya was represented by appointed counsel and his appellate brief focused on two arguments. First, Minaya argued that the evidence that he conspired to distribute at least five kilograms of cocaine-that is, Guzman's testimony-was not legally sufficient to sustain the verdict. Second, in the alternative, Minaya argued that Guzman's testimony was so incredible that a jury could not reasonably have relied on it. See United States v. Minaya, 544 F. App'x 12, 14 (2d Cir. 2013). By summary order on November 1, 2013, the Second Circuit affirmed the judgment of this Court, concluding that the testimony was sufficiently specific “to establish the quantity of cocaine that Minaya conspired to distribute” and that “the jury was entitled to credit” Guzman's testimony. Id. at 14-15.

         C. Minaya's § 2255 Motion

         On April 4, 2014, Minaya filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C § 2255. Minaya asserts two grounds for relief: (1) he was denied effective assistance of appellate counsel because, on direct appeal of his conviction, counsel failed to consult with or otherwise communicate with him prior to filing an appellate brief, and (2) the Government committed prosecutorial misconduct at trial by presenting allegedly perjured testimony. (Pet'r's Mem. at 3-9.) Additionally, Minaya attached seven letters he authored as exhibits to his memorandum of law in support of his petition. Five of these letters were sent to Minaya's appellate counsel. In one letter, dated November 19, 2012, Minaya set forth ten items he wanted counsel “to be aware of, ” including his belief that Guzman gave false testimony. (Id. Ex. A; see also Id. Ex. F.) In subsequent letters, Minaya requested that counsel forward materials related to his appeal in paper format so that he ...


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