# MINAYA v. United States

> District Court, D. New Jersey · May 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10276340

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10276340

## How later opinions describe it (automated extraction)

- applying the abuse of discretion standard for limiting the scope of an evidentiary hearing

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10276340. Public record. Not legal advice.