MINAYA v. United States

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

YASMIL MINAYA

Civ. No. 21-18050 (KM)

v.

UNITED STATES OF AMERICA OPINION

Yasmil Minaya was convicted by a jury of heroin trafficking charges and

is currently serving a 24-year sentence of imprisonment. That conviction was

affirmed on appeal. United States v. Minaya, 827 F. App’x 232, 237 (3d Cir.

2020). Now he has filed a Section 2255 motion in which he seeks to vacate his

conviction or sentence, essentially repackaging his rejected arguments on

appeal as claims of ineffective assistance of counsel. For the reasons stated

herein, that motion is denied.1

Before addressing the merits, I make the following general observations.

The evidence, including wiretapped conversations, was characterized by the

Third Circuit as overwhelming, and I concur. I observed trial counsel’s

performance before, during, and after trial. Counsel was, if anything, quite

aggressive; in no sense could he be accused of lack of zeal. His cross-

examinations were thorough. While his legal arguments were not always

successful, I never had any sense that he had overlooked a meritorious issue.

One defense, the “joint venture” theory for suppressing a foreign wiretap,

creatively if ultimately unsuccessfully pressed the boundaries of existing Third

Circuit law. Counsel’s Sentencing Guidelines arguments, too, had some

1 Throughout this Opinion, “DE __” refers to the docket entries in this § 2255

proceeding, Civ. No. 21-18050. References to the docket entries in the underlying

criminal case, Crim. No. 17-359, are specifically identified as such.

success. The defendant was facing a mandatory life sentence under the

Guidelines as calculated in the presentence report. Counsel managed to

persuade the Court to vary downward substantially from the base offense level;

to reduce the role-in-the-offense adjustment by one point; and to eliminate an

upward adjustment for importation. He was unable to persuade the court to

reduce the role in the offense by an additional point, or to remove an upward

adjustment for obstruction of justice based on threatening communications to

a witness. Mr. Minaya’s § 2255 motion, however, fails to articulate any specific

manner in which the Court’s adverse rulings can be attributed to substandard

performance by counsel.

I. Legal Standards: § 2255 Motion Alleging Ineffective Assistance of

Counsel

A prisoner in federal custody under sentence of a federal court “may

move the court which imposed the sentence to vacate, set aside or correct the

sentence” upon three grounds: (1) “that the sentence was imposed in violation

of the Constitution or laws of the United States”; (2) “that the court was

without jurisdiction to impose such sentence”; or (3) “that the sentence was in

excess of the maximum authorized by law.” 28 U.S.C. § 2255(a).

The defendant bears the burden of establishing entitlement to § 2255

relief, see United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005), and “must

clear a significantly higher hurdle than would exist on direct appeal.” United

States v. Frady, 456 U.S. 152, 166 (1982); see also United States v. Travillion,

759 F.3d 281, 288 (3d Cir. 2014) (“a motion pursuant to 28 U.S.C. § 2255 is

reviewed much less favorably than a direct appeal[.]”). In considering a § 2255

motion, “the court must accept the truth of the movant’s factual allegations

unless they are clearly frivolous on the basis of the existing record.” United

States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (internal quotation marks

and citation omitted). Pro se habeas petitions are liberally construed. Rainey v.

Varner, 603 F.3d 189, 198 (3d Cir. 2010) (citation omitted). The Court may

deny the motion without holding an evidentiary hearing if the motion and the

files and records of the case conclusively show that the prisoner is not entitled

to relief. See 28 U.S.C. § 2255(b); Liu v. United States, No. 11-4646, 2013 WL

4538293, at *9 (D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545–46).

Where, as here, the petitioner asserts that counsel rendered ineffective

assistance, more particular standards apply. The Sixth Amendment guarantees

the accused the “right . . . to have the Assistance of Counsel for his defense.”

U.S. Const. amend. VI. A claim of ineffective assistance has two essential

components. Strickland v. Washington, 466 U.S. 668, 687 (1984).

First, the defendant must “show that counsel’s representation fell below

an objective standard of reasonableness,” id. at 687–88, meaning he “must

identify the acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment.” Id. at 690. In evaluating counsel’s

performance, a court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance”;

thus, the court’s scrutiny of counsel’s performance “must be highly

deferential.” Id. at 689.

Second, a petitioner must establish prejudice, i.e., “a reasonable

probability that the result of the trial would have been different” absent the

deficient act or omission. Id. at 687.

Those issues can be decided in either order. “If it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that

course should be followed.” Strickland, 466 U.S. at 697.

II. Discussion

Mr. Minaya’s motion asserts the following claims:

CLAIM ONE: Counsel was ineffective for failing to obtain from the

Dominican Republic information referenced by Movant that would

have effectively demonstrated that the Dominican authorities and

the DEA did in fact engaged in an impermissible joint venture

which, in turn, would have precluded the admission of the wiretap

evidence.

CLAIM TWO: Counsel was ineffective for failing to properly object

to the court’s failure to explain its consideration of the 18 U.S.C. §

3553(a) factors.

CLAIM THREE: Counsel was ineffective for failing to properly object

to the drug type that has been charged in the indictment, and to

the drug amount attributed to Movant.

CLAIM FOUR: Counsel was ineffective for failing to properly object

to the PSR’s finding that Movant was an organizer or leader of a

criminal activity that involved five or more participants.

CLAIM FIVE: Movant’s sentence was imposed in violation of the

Constitution and laws of the United States.

(Memorandum of Law, DE 1-1 at 1, 13, 15, 19, 21; see also Motion, DE 1 at 3,

18.) He seeks an evidentiary hearing. (DE 1-1 at 22, DE 1 at 18)2

2 In his reply brief (“Reply”, DE 12), Mr. Minaya has added a claim that his

counsel was ineffective in advising Movant to go to trial “despite [his desire to plead

guilty.” (Id. at 3) Or rather, despite not having asserted that claim in his briefing, he

takes the government to task for failing to respond to it. I conclude (a) that no such

claim was fairly raised, and (b) that in any event, the record would preclude any such

claim.

In his Reply, Mr. Minaya states that this was “Claim One.” True, in the printed

Form AO 243 (DE 1), there is a one-sentence statement of “GROUND ONE: Counsel

was ineffective for advising Movant to proceed to trial despite Movant’s desire to plead

guilty.” But that is it. The body of the motion, submitted as a lengthy attachment to

the form Motion, lists Ground One as the Dominican wiretap issue. (DE 1 at 18) In

that attachment, there is no more than a passing reference in the Procedural History

to the defendant going to trial despite having “previously” wanted to plead guilty. (Id.

at 15)

Nor is this claim saved by cross-reference. Under the AO 243 form’s one-

sentence statement of the issue, the entire discussion consists of this: “Please see

attached Memorandum of Law.” The Memorandum of Law, however, does not list this

as one of the claims for relief. The five claims for relief are very clearly listed. (See

Claims One through Five, quoted in text, supra.) Mr. Minaya’s Reply states that he

“dedicated more than ten pages of his Memorandum of Law in support of his § 2255

motion to arguing that his attorney was ineffective for improperly advising him to

proceed to trial in spite of his desire to plead guilty.” (Reply at 3) That is simply

untrue; the cited pages are wholly devoted to the Dominican wiretap issue.

The reference in the Memorandum of Law that comes closest to such a claim is

a single sentence in the boilerplate recitation of legal standards governing a § 2255

claim:

Finally, a defendant who claims that ineffective advice led him to reject a

plea offer must show that but for ineffective assistance of counsel, he

would have accepted the plea, and that the conviction or sentence or

both under the terms of the plea offer would have been less severe than

under the judgment and sentence that were imposed. See Lafler v.

Cooper, 566 U.S. 156, 132 S. Ct. 1376, 1385, 182 L.Ed. 2d 398 (2012).

(DE 1-1 at 2)

Other than that boilerplate reference to a generic legal standard, the

Memorandum of law contains not a single fact or argument concerning Minaya’s

desire to plead guilty or his attorney’s advice to go to trial. Even in the Reply, no

allegedly ineffective advice is described or even referred to. Rather, the Reply argues

that the government’s “silence” constitutes irrefutable evidence that defendant’s

position is meritorious—while still omitting any factual support.

The Court recognizes its duty to a litigant who is now pro se, and has reviewed

the record with an eye to establishing such a claim. No such claim can be gleaned

from the record, which in fact establishes the opposite. The Court held two Frye

hearings, the first on November 18, 2018, and the second in the midst of jury selection

on April 22, 2019. (17cr359 docket entries 74, 177, 115, 128) Far from overbearing his

client’s desire to plead guilty, counsel was urging his client to accept, not reject, the

plea offer. Mr. Minaya acknowledged on the record that the decision to go to trial was

his alone. He attested to the accuracy of his lawyer’s description of a meeting in which

the lawyer urged him to take the plea offer.

At the earlier Frye hearing, counsel explicitly questioned his client on the

record. He elicited that he had advised Mr. Minaya that his chances of prevailing at

trial were slim, and that he would likely face a sentence in excess of 20 years:

MR. BROWNSTEIN: And I told you that the 14 years is on the

table until the date it was going to expire, and you decided not -- to go to

trial knowing that you're going to get at least 20 years or more; is that

correct?

THE DEFENDANT: Yes.

MR. BROWNSTEIN: I also advised you that the Giants have a

better chance of winning the Super Bowl than you winning this trial?

THE DEFENDANT: Yes.

MR. BROWNSTEIN: And you still decided to reject this agreement

and go forward?

THE DEFENDANT: Yes, sir.

(11/14/2018 Tr., 17cr359 docket entry 177 at 22).

And here is the transcript of the latter Frye hearing:

THE COURT: . . .. When was the last plea offer made? Don’t tell me

anything about it, just tell me when.

[AUSA] WANGENHEIM: Certainly, Your Honor. It was a plea offer dated

March 13th, 2019, with an expiration of March 15th.

THE COURT: And so let me ask first you, Mr.. Brownstein, did you

receive that plea offer from the government?

[DEFENSE COUNSEL] BROWNSTEIN: Yes, Your Honor.

THE COURT: And did you discuss it with your client?

MR. BROWNSTEIN: Yes. I attempted to convince him to take it.

THE COURT: Well, that's neither here nor there. I just need to know

whether you discussed it.

MR. BROWNSTEIN: Yes, I did. He understood it, and he rejected it.

THE COURT: Okay. How recently did you discuss it with him?

MR. BROWNSTEIN: Well, we only had – that same day when we got the

offer, talked with him the next day, it expired the day after. It was his

decision. I think we got the offer on the 13th, which was a Wednesday.

THE COURT: Yes.

MR. BROWNSTEIN: I went to see him on Thursday, and the offer expired

on Friday.

THE COURT: Did you feel you had enough of an opportunity to explain it

to him and discuss it with him?

MR. BROWNSTEIN: Absolutely.

THE COURT: Okay. Now I’m going to ask your client some yes-or-no

questions. Mr. Minaya, just yes or no because we don’t want you talking

about the facts or the plea agreement, which is – or the plea offer, which

is none of my business. I just want to know, has your lawyer described

what happened accurately?

THE DEFENDANT: Yes.

THE COURT: Okay. So you got the plea offer, you had time to discuss it

with your lawyer, correct?

THE DEFENDANT: We got like an hour, you know.

THE COURT: Okay. And did he explain it to you so you understood it?

THE DEFENDANT: Yes.

THE COURT: And you decided to say no, right?

THE DEFENDANT: Yes.

THE COURT: Okay. And that was your choice?

THE DEFENDANT: Yes.

(4/22/2019 Tr. at 48–50, 17cr359 docket entry 128.)

The defendant now claims that there is an “issue of fact” because, in response

to his § 2255 motion, the government sought and obtained a privilege waiver and

interviewed defense counsel. The mere existence of such an interview does not raise an

issue of fact as to the underlying merits.

A. Relitigation

Generally speaking, § 2255 may not be used to relitigate issues already

decided by a higher court on direct appeal. See United States v. DeRewal, 10

F.3d 100, 105 n.4 (3d Cir. 1993) (§ 2255 “generally ‘may not be employed to

relitigate questions which were raised and considered on direct appeal.’”)

(quoting Barton v. United States, 791 F.2d 265, 267 (2d Cir. 1986)); accord

United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). And indeed most,

if not all, of these substantive issues were decided against Mr. Minaya on direct

appeal. See United States v. Minaya, 827 F. App’x 232, 235 (3d Cir. 2020).

On direct appeal, the Third Circuit affirmed Mr. Minaya’s conviction. In

particular, it upheld this court’s denial of his motion to suppress the results of

a wiretap in the Dominican Republic as the product of a “joint venture”

between the U.S. and foreign authorities, and held that there was no

procedural error in limiting the evidentiary hearing to one witness. Further, the

Court of Appeals rejected a “cumulative error” claim based on a grab-bag of

purported errors at trial. And finally, it rejected challenges to the sentence

based on the calculated amount of heroin; the application of upward

adjustments based on a managerial role in the offense and obstruction of

justice; the court’s alleged failure to give meaningful consideration to the

factors under 18 U.S.C. § 3553(a); and the alleged overall unreasonableness of

the sentence based on, inter alia, allegedly “erroneous facts” and disparities

with the sentences of coconspirators. Id. at 235–38.

The current § 2255 motion simply repackages those rejected claims as

claims of ineffective assistance. Such repackaging, without more, will not

suffice:

Further, the fastening of an ineffectiveness preamble to barred

appellate claims does not revive them for section 2255 purposes.

To complete the procedural history, the government, belatedly noting the

presence of this new issue in the Reply, sought leave to make a supplemental

submission. I denied that application, stating in my order that I would determine later

whether additional submissions were required. (DE 15) For the reasons expressed

above, I find that additional submissions are not required.

See, e.g., White v. United States, 2012 WL 2119104, *5 (S.D.N.Y.

June 12, 2012) (“[section 2255] [p]etitioner unsuccessfully argued

on direct appeal that the jury instruction was incorrect and cannot

now repackage that procedurally barred claim as an ineffective

assistance of counsel claim”); Azzara v. United States, 2011 WL

5025010, at *6 (S.D.N.Y. Oct.20, 2011) (section 2255 petitioner’s

“arguments ... based on claims pursued on direct appeal,

repackaged ... as ineffective assistance of counsel claims ... are

procedurally barred”).

Pascual v. United States, No. 14 CV 6025 RJD, 2015 WL 6506739, at *2

(E.D.N.Y. Oct. 27, 2015). See also United States v. Cooley, No. CIV. 07-308,

2009 WL 1408123, at *3 (W.D. Pa. May 19, 2009) (“Each of the errors that form

the basis for Cooley’s ineffective assistance claim have already been submitted

to the Third Circuit and rejected….Cooley now attempts to repackage those

same alleged errors as a claim for ineffective assistance of counsel in hopes of

receiving yet another bite at the apple.”).

An adverse ruling cannot simply be assumed to give rise to a separate

claim for deficient attorney performance. “To conclude as much would be to say

that every attorney who has ever lost an argument (i.e., every attorney), was

thereby providing ineffective assistance of counsel in violation of the Sixth

Amendment.” United States v. Terry, Civ. No. 14-1006, 2015 WL 4255527, at *7

(W.D. Pa. July 14, 2015). Rather, when assessing deficient performance in the

context of an ineffective assistance claim, “[a]s a threshold matter, the court

must determine whether the underlying claim was meritorious.” U.S. v. Baird,

218 F.3d 221, 225 (3d Cir. 2000) (citing United States v. Mannino, 212 F.3d

835, 839–40 (3d Cir. 2000)). As counsel does not act deficiently or create

prejudice by failing to raise or prevail on a meritless argument, see U.S. v.

Sanchez, 53 F. App’x 208, 210 (3rd Cir. 2002), arguments previously rejected

on direct appeal will typically not survive a subsequent Strickland analysis. See

Cvjeticanin v. United States, No. 19-549, 2022 WL 280185, at *6 (D.N.J. Jan.

31, 2022) (rejecting ineffective assistance claim where petitioner “attempts to

relitigate claims which this Court and the Court of Appeals rejected by

repackaging them as claims of ineffective assistance of counsel”).

Mr. Minaya’s claims, then, are not favorably postured and could perhaps

be rejected at the outset. I nevertheless analyze them under Strickland

standards. For the reasons stated in the following sections, I find that Mr.

Minaya has not demonstrated that any meritorious claim was lost through bad

lawyering.

B. The Merits

CLAIM ONE: Counsel was ineffective for failing to obtain from

the Dominican Republic information referenced by Movant

that would have effectively demonstrated that the Dominican

authorities and the DEA did in fact engaged in an

impermissible joint venture which, in turn, would have

precluded the admission of the wiretap evidence.

Before trial, Mr. Minaya moved to suppress evidence derived from a

wiretap conducted in the Dominican Republic, pursuant to authorization from

the Dominican authorities. His argument was that the wiretap was in reality a

“joint venture” of the U.S. and Dominican authorities and therefore should be

subject to Fourth Amendment constraints. In discovery he received various

reports and documents concerning the origins and conduct of the investigation,

which he introduced in evidence at the suppression hearing. The Court

confined the hearing to one witness, DEA Special Agent Roxana K. Pulido. The

Court denied suppression in a written opinion. (“Suppression Op.”, DE 111. I

do not repeat the analysis of that opinion, which is incorporated here by

reference.)

After trial, Mr. Minaya moved for reconsideration of the denial of the

pretrial suppression motion. Here, he cited additional evidence that had been

developed at trial, including testimony of other DEA agents and a member of

the Dominican police. In addition, Minaya proffered affidavits of two persons

who had acted as monitors on other Dominican wiretaps outside the time

frame of the relevant De La Cruz wiretap. In a written opinion, I again analyzed

the claims and ruled that the Dominican wiretap had not been a joint venture

with U.S. authorities. (“Posttrial Op.”, DE 156. I do not repeat the analysis of

that opinion, which is incorporated here by reference.)

On direct appeal, Mr. Minaya revived his contentions concerning the

Dominican wiretap and the procedural fairness of the suppression proceedings.

The U.S. Court of Appeals for the Third Circuit rejected those contentions (and

others) in a written opinion, which I quote at length:

First, Minaya argues that the District Court violated his due

process rights by limiting the witnesses ordered to appear at the

suppression hearing on the foreign wiretaps and limiting his cross

examination of Special Agent Pulido. We are unpersuaded. Minaya

agreed to the witness procedures that the District Court used at

the suppression hearing, so he waived his right to now object to

those procedures on appeal. See United States v. James, 955 F.3d

336, 344–45 (3d Cir. 2020). Regardless, the District Court did not

abuse its discretion in either limiting the scope of the hearing or

limiting Minaya’s opportunity to cross examine Special Agent

Pulido. See United States v. Skulsky, 786 F.2d 558, 562 (3d Cir.

1986) (applying the abuse of discretion standard for limiting the

scope of an evidentiary hearing); United States v. Fattah, 914 F.3d

112, 179 (3d Cir. 2019) (same for limiting cross examination). The

District Court reasoned that it wanted to hear from Special Agent

Pulido, who had firsthand knowledge of the wiretaps and the

investigation into Cruz, before deciding whether to allow Minaya to

call more witnesses who might not be needed to enable the court to

rule on the motion. Further, Minaya did not object to the court’s

limiting his time to cross examine Special Agent Pulido. And

Minaya spent his entire opportunity to do so questioning Pulido

about the wording of the DEA reports on the Cruz wiretaps in an

attempt to show impermissible cooperation. If Minaya failed to

elicit the testimony that he sought, the fault is his own.

Second, Minaya asserts that the District Court should have

suppressed the evidence gleaned from the wiretaps because it was

the fruit of an impermissible “joint venture” between United States

and Dominican authorities. Minaya argues that the court

improperly assessed who led and executed the wiretap, discounted

DEA reports that portrayed the wiretap as a cooperative

investigation, and ignored the fact that DEA agents were frequently

“in the wire room” with Dominican authorities. Reply Br. 7

(quotation marks omitted).

We conclude that the District Court did not abuse its

discretion in admitting the wiretap evidence. Foreign wiretap

evidence ordered by “foreign officials acting on their own to enforce

foreign law” is admissible in federal criminal cases unless (i) the

conduct of the foreign officials “shock[s] the ... conscience” or (ii)

the foreign officials are acting as “agents ... of United States law

enforcement” or are cooperating with United States agents in a way

“designed to evade constitutional requirements” — what some of

our sister Courts of Appeals refer to as an impermissible “joint

venture.” United States v. Maturo, 982 F.2d 57, 60–61 (2d Cir.

1992) (quotation marks omitted); see also United States v.

Callaway, 446 F.2d 753, 755 (3d Cir. 1971) (holding that the

Fourth Amendment exclusionary rule does not apply to searches in

a foreign country which “were conducted by foreign law

enforcement ... who were not acting in connection or cooperation

with” United States “authorities[,] and the conduct involved was

not the type that would shock the conscience of our courts”).

We have never adopted the “joint venture” doctrine, but,

even if we had, Minaya’s arguments fall short. We agree with the

District Court that Dominican officials initiated the investigation of

Cruz and independently sought and executed the wiretaps. Minaya

failed to present any witnesses or other evidence indicating that

United States authorities controlled or were “active participants in

the [wiretaps] operation.” United States v. Valdivia, 680 F.3d 33, 52

(1st Cir. 2012). Standing alone, foreign law enforcement officials

sharing information gleaned from their own activities with United

States authorities — even if cloaked in cooperative terms in

agency reports — is not indicative of an impermissible joint

venture, and thus, the District Court did not abuse its discretion

in admitting the wiretap evidence. For the same reasons, we

discern no error in the District Court’s denial of Minaya’s motion to

reconsider the suppression of the wiretap evidence.

United States v. Minaya, 827 F. App’x 232, 235–37 (3d Cir. 2020).

The Third Circuit, then, affirmed this Court’s rulings. In doing so, it

rejected on substantive grounds every claim that Minaya reasserts here in the

guise of ineffective assistance. The question, then, becomes this: Was it trial

counsel’s ineffectiveness that led this Court and the Third Circuit to rule as

they did? The answer is clearly no.

Mr. Minaya proffers that his counsel “was ineffective for failing to obtain

from the Dominican Republic information referenced by Movant that would

have” caused the district court to find the wiretap was a U.S./Dominican “joint

venture.” In particular, Minaya cites “credible information, i.e., the first-hand

account of Leny Pascual, a paralegal who works as a monitor and intelligence

analyst for the National Department of Drug Control (“DNCD”), and who was

assigned to the wire room that monitored De La Cruz’s activities.” (DE 1-1 at 8)

Pascual’s affidavit is attached as an exhibit. (DE 1-2)

As the government points out, Pascual’s 2019 affidavit was submitted to

the Court and was fully discussed by the Court in connection with the posttrial

reconsideration motion:

With his reply brief, for the first time, defense counsel

proffers two affidavits . . . . (DE 149) . . . .

[T]hese materials would not justify reconsideration of the

court’s ruling on suppression. The two affiants state that they have

worked as wiretap monitors at the relevant facility. They did not,

however, participate in the DR Wiretap that is at issue here. One, a

law student, worked from 2010–13, and the other from 2017–19,

largely or wholly outside the relevant time frame. They state very

generally that DEA agents directed or participated in local

investigations, and that it was “common” for an investigation to

originate from the DEA.

These averments are at a high level of generality. There is

reason to doubt that a person employed as a wiretap monitor is

qualified to opine as to the joint venture status, or not, of an

investigation. More to the point, these witnesses have no

information about this particular investigation; they did not

participate in, and they have no information about, the Dominican

authorities’ investigation of Luna Cruz or application to wiretap his

phone. . . .

This information, even taken at face value, would not alter

my suppression rulings to the effect that the Luna Cruz wiretap

was not a joint venture with the DEA or a subterfuge to circumvent

U.S. law as to Minaya. The motion for reconsideration of the

court’s rulings denying suppression of the Luna Cruz wiretap is

denied.

(Posttrial Op., DE 156 at 9) So the Pascual affidavit, while not considered on

the original motion to suppress, was considered in connection with the

posttrial motion, was discussed by the Court, and was in the record that was

before the Third Circuit on appeal.

Pascual is the law student/paralegal referred to in the Posttrial Opinion

who was employed from 2010 to 2013. As noted, this did not overlap the period

of the De La Cruz wiretap, which was conducted pursuant to an order dated

November 12, 2014. (See Suppression Op., DE 111 at 12 n.7.) Pascual

acknowledges that he had no involvement with the De La Cruz wiretap.3

The limitation of the initial suppression hearing to one witness is not

grounds for § 2255 relief. The court held that it would hear only from Ms.

Pulido, the relevant U.S. official who possessed the relevant knowledge, before

deciding whether further testimony was necessary. The Third Circuit held that,

irrespective of whether defense counsel had consented, this was an appropriate

exercise of the Court’s discretion. (See p.7, supra.) My decision would have

been no different. At any rate, the court revisited the suppression issue with

the benefit of a full trial record and supplemental evidence, and denied it; any

arguable attorney error did not give rise to any prejudice.

In short, there is still no sufficient showing that counsel’s representation

was deficient. And even assuming that counsel should have introduced the

Pascual affidavit earlier, at the original suppression hearing, there is no

plausible claim of prejudice. For the reasons expressed in my posttrial opinion,

that affidavit had no bearing on the Court’s analysis.4 Nor has Mr. Minaya

3 Minaya’s motion states that Pascual “was assigned to the wire room that

monitored De La Cruz’s activities.” (DE 1-1 at 8) That statement, while perhaps

literally true, has a misleading implication. Pascual states that he worked in that

room, but he did so a year before the De La Cruz wiretap, in which he had no

involvement.

4 The government proffers that Minaya’s counsel, in an interview, stated that he

used all the information Minaya gave him, and that he explored and investigated the

possibility of calling other witnesses from the Dominican Republic, but none were

willing to testify. I do not take into account this representation, which has not been

subjected to cross-examination.

identified any further information to which Mr. Pascual’s information would

supposedly have led.

The § 2255 motion, insofar as it asserts ineffective assistance in

connection with efforts to suppress the Dominican wiretap, is denied.

CLAIM THREE5 Counsel was ineffective for failing to properly

object to the drug type that has been charged in the

indictment, and to the drug amount attributed to Movant.

The PSR found that the conspiratorial offense had involved in excess of

90 kilograms of heroin, for a base offense level of 38. See U.S.S.G. § 2D1.1(a)(5)

and (c)(1). The Court accepted that calculation, and the Third Circuit upheld

that ruling on appeal. See 827 F. App’x at 237 (“The District Court correctly

calculated Minaya’s Guidelines range based on evidence presented at trial of

the large amounts of heroin distributed by the conspiracy . . . .”)

Minaya’s claim that counsel did not “properly” object is opaque. Counsel

filed a memorandum of law in which he objected to that calculation (DE 153)

and he argued the point at sentencing (“Sentencing Tr.”, DE 166 at 5–8, 10–12)

It is true, of course, that his argument did not technically prevail; the Court,

being familiar with the entire trial record, ruled that the jointly undertaken

criminal activity encompassed trafficking in well over 90 kilograms of heroin.

(DE 12–14 (citing U.S.S.G. § 1B1.13 definition of relevant conduct)).

But defense counsel’s arguments regarding the drug amount did in a

sense prevail. Later in the sentencing proceeding, I accepted his equitable

argument that the amount of heroin attributable to his client should be

commensurate with that attributed to the coconspirators who did not go to

trial. I granted a structured downward variance of 4 points, based on the drug

amount of 10–30 kilograms that was attributed to certain codefendants.

(Sentencing Tr. at 58–59)6

5 Claim Two is discussed out of order, following Claim Four.

6 Mr. De La Cruz’s drug amount was brought in line with that of other

codefendants by means of a variance. His guidelines offense level nevertheless

remained higher than that of certain codefendants. He portrays this as an inexplicable

disparity, but there are several explanations. For example, he, unlike them, did not

By any measure, this result reflected dogged and effective advocacy by

counsel. A fortiori, there was no prejudice resulting from the initial attribution

of over 90 kilograms, since the effect of that calculation was undone by the

downward variance.

The § 2255 motion, insofar as it asserts ineffective assistance in

connection with the Guidelines calculation of over 90 kilograms of heroin, is

denied.

CLAIM FOUR: Counsel was ineffective for failing to properly

object to the PSR’s finding that Movant was an organizer or

leader of a criminal activity that involved five or more

participants.

Once again, Mr. Minaya cites a PSR finding to which his counsel

objected, both orally and in writing, and cryptically asserts that his counsel

did not “properly” object. The PSR would have imposed an upward adjustment

of 4 points based on Mr. Minaya’s role as an “organizer or leader” of criminal

activity involving five or more persons. See U.S.S.G. § 3B1.1(a). Defense

counsel objected in writing (DE 153) and orally (Sentencing Tr. DE 166 at 14–

20) that Mr. De La Cruz, not his client, met that description. I accepted his

argument in part. Based on ample evidence that five or more persons were

involved, and that Mr. Minaya played at least an organizational role, I imposed

a 3 (not 4) point upward adjustment for being an “organizer or manager” of

such activity. U.S.S.G. § 3B1.1(b). The Third Circuit upheld that finding. 827

F. App’x at 237 (“The District Court correctly calculated Minaya's Guidelines

range based on evidence presented at trial of the large amounts of heroin

distributed by the conspiracy, correctly imposed a “manager or supervisor”

role enhancement based on Minaya’s activities coordinating transfers of large

amounts of drugs and sums of money . . . .”).

plead guilty, so he was denied a 3-point downward adjustment for acceptance of

responsibility, U.S.S.G. § 3E1.1. In addition, he received an upward adjustment for his

managerial role, and another for obstruction of justice, based on his threatening of a

witness. (Sentencing Tr. DE 166 at 31 et seq.)

Mr. Minaya would of course have preferred for his attorney to have

obtained a still larger reduction. He fails, however, to point to any deficiency in

his attorney’s advocacy that was to blame for the result. And prejudice, once

again, is lacking; as the Third Circuit held, the Court’s imposition of the 3-

point adjustment was dictated by ample evidence of record.

The § 2255 motion, insofar as it asserts ineffective assistance in

connection with the § 3B1.1 role adjustment, is denied.

CLAIM TWO: Counsel was ineffective for failing to properly

object to the court’s failure to explain its consideration of the

18 U.S.C. § 3553(a) factors.

CLAIM FIVE: Movant’s sentence was imposed in violation of

the Constitution and laws of the United States.

As he did on appeal, Mr. Minaya objects more generally that the sentence

was unreasonable or contrary to law. Again, he asserts that his attorney,

despite his vigorous advocacy, failed to “properly object.” Like the earlier

issues, this claim amounts to little more than attaching a label of ineffective

assistance to a claim of error that has already been roundly rejected by the

Third Circuit:

To satisfy procedural reasonableness, a sentencing court

must “(1) correctly calculate[ ] the defendant’s advisory Guidelines

range; (2) appropriately consider[ ] any motions for a departure”;

and (3) give “meaningful consideration to the sentencing factors”

in § 3553(a). United States v. Freeman, 763 F.3d 322, 335 (3d Cir.

2014). The District Court correctly calculated Minaya’s Guidelines

range based on evidence presented at trial of the large amounts of

heroin distributed by the conspiracy, correctly imposed a “manager

or supervisor” role enhancement based on Minaya’s activities

coordinating transfers of large amounts of drugs and sums of

money, and correctly added an obstruction enhancement because

Minaya sent Cruz two letters clearly intended to threaten Cruz for

testifying against him. And the District Court “gave meaningful

consideration,” id., to the factors set forth in § 3553(a) in imposing

Minaya’s sentence. Therefore, the sentence was procedurally

reasonable.

In evaluating substantive reasonableness, we consider

“whether the record as a whole reflects rational and meaningful

consideration of the” § 3553(a) factors, United States v. Grier, 475

F.3d 556, 571 (3d Cir. 2007) (en banc), and we will affirm “unless

no reasonable sentencing court would have imposed the same

sentence ... for the reasons the district court provided,” United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). Minaya did not

object to the District Court’s consideration of the § 3553(a) factors,

so we review only for plain error. See Foster, 891 F.3d at 113 n.15.

Minaya fails to support his argument that his sentence was based

on “erroneous facts,” let alone point to factual errors that meet the

plain error standard. Further, while the District Court may

consider sentencing disparities between co-defendants in imposing

its sentence, it is not required to do so. See United States v. Parker,

462 F.3d 273, 276–78 (3d Cir. 2006). And here, the District Court

did vary downward from life to 288 months based on Minaya’s co-

defendants having stipulated to lower drug quantities. The

sentence was also substantively reasonable.

Minaya, 827 F. App’x at 237–38.

A review of the sentencing transcript reveals that the Court appropriately

analyzed the § 3553(a) factors in selecting an appropriate sentence. (Sentencing

Tr. DE 166 at 53–59) It is true that defense counsel did not then object to the

Court’s analysis, but that analysis followed many transcript pages of advocacy

by both sides for their positions as to an appropriate sentence. In its analysis,

the Court discussed those arguments, accepting some and rejecting others. Mr.

Minaya offers nothing to suggest that a further objection, at that point, would

have had any substantial basis or caused the Court to change its mind. The

Third Circuit’s affirmance confirms that it would not. There was no deficient

performance and, a fortiori, no prejudice.

The § 2255 motion, insofar as it asserts ineffective assistance in

connection with the selection of sentence, is denied.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken from a final order in a

proceeding under 28 U.S.C. § 2255. A certificate of appealability may issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here,

reasonable jurists would not find the Court’s habeas ruling debatable.

Accordingly, no certificate of appealability shall issue.

III. CONCLUSION

For the foregoing reasons, Mr. Minaya’s § 2255 motion is denied without

an evidentiary hearing, because the motion and the files and records of the

case conclusively show that the prisoner is not entitled to relief. See 28 U.S.C.

§ 2255(b). No certificate of appealability shall issue. An appropriate order

follows.

Dated: May 10, 2023

/s/ Kevin McNulty

______________________________

KEVIN MCNULTY

United States District Judge