United States District Court, S.D. New York
PETITIONER JOSE MINAYA Pro se.
RESPONDENT UNITED STATES OF AMERICA Jonathan Cohen, Esq.
OPINION & ORDER
F. KEENAN UNITED STATES DISTRICT JUDGE.
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.
Minaya's Arrest and Indictment
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
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.) 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.)
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, ” but subsequently
admitted that they intended to sell heroin, not cut. (Tr.
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.)
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.)
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.
Minaya's § 2255 Motion
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 ...