Minaya v. USA
OPINION & ORDER re: 1 MOTION to Vacate: For the reasons described above, Minaya's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is denied. There is no need for an evidentiary hearing because"the m otion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (b). The Court declines to issue a certificate of appealability because Minaya has not made a "substantial sho wing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2); Krantz v. United States, 224 F.3d 125, 127 (2d Cir. 2000). Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is respectfully directed to closethe case and enter judgment for the Government. SO ORDERED. (Signed by Judge John F. Keenan on 5/23/2017) (anc)
Case 1:09-md-02013-PAC Document 57
Filed 09/30/10 Page 1 of 45
DOC #: _________________
DATE FILED: 05/23/2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re FANNIE MAE 2008 SECURITIES
08 Civ. 7831 (PAC)
09 MD 2013 (PAC)
No. 14 Civ. 2479 (JFK)
No. 10 Cr. 1179 (JFK)
: OPINION & ORDER
OPINION & ORDER
UNITED STATES OF AMERICA,
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PETITIONER JOSE MINAYA
FOR RESPONDENT early years STATES OF saw a boom in home financing which was fueled, among
The UNITED of this decade AMERICA
Jonathan Cohen, Esq.
other things, by low interest rates and lax credit conditions. New lending instruments, such as
JOHN F. KEENAN, United States District Judge:
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Before the Court is Petitioner Jose Minaya’s motion to
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
assumption that the market would continue to rise and that refinancing options would always be
§ 2255. Minaya asserts that he was denied effective assistance
available in the future. Lending discipline was lacking in the system. Mortgage originators did
of appellate counsel in violation of the Sixth Amendment and that
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
the Government committed prosecutorial misconduct at his trial in
originators sold their loans Due secondary under market, often as securitized packages
violation of his right to into theProcess mortgagethe Fourteenth
known For the reasons stated below, Minaya’s motion exponentially.
Amendment. as mortgage-backed securities (“MBSs”). MBS markets grew almostis
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
and home prices began to fall. In light of the changing housing market, banks modified their
lending practices and became unwilling to refinance home mortgages without refinancing.
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
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.)
December 6, 2011, a superseding indictment charged Minaya with
(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, 519:28, 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.
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
In its opposition, the Government refers to pages in the
transcript of Minaya’s trial under an alternative numbering
system because it references a relevant portion of the
transcript, which was submitted as an appendix to Minaya’s
appellate brief. (See Resp’t Mem. in Opp’n at 1 n.1.) In this
Opinion, the Court refers to and cites relevant pages of the
trial transcript according to its original pagination.
occasions prior to his arrest. (Tr. 532:19-533:4.)
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. 583:1518.)
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.)
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
“Cut” refers to adulterants used to dilute cocaine. (Tr.
to 132 months’ imprisonment followed by a term of supervised
release of five years, and a mandatory special assessment of
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.
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 §
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
Five of these letters were sent to Minaya’s appellate
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 could review them. (Id. Exs. B, C, D.)
attached a letter to the clerk of court for the Second Circuit
requesting a transcript of the appellate argument and a request
for appointment of new counsel for purposes of Minaya’s appeal.
(Id. Exs. E, G.)
Under 28 U.S.C. § 2255(a), a federal prisoner may
collaterally challenge his sentence on the ground that “the
sentence was imposed in violation of the Constitution or laws of
the United States.”
To obtain relief under § 2255, a petitioner
must establish “a constitutional error, a lack of jurisdiction
in the sentencing court, or an error of law or fact that
constitutes ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” United States v. Bokun, 73
F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)).
Because Minaya is appearing pro se, the Court construes his
arguments liberally and interprets them to raise the strongest
arguments that they suggest. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam).
A. Ineffective Assistance of Counsel
Ineffective assistance of counsel is a basis for relief
under § 2255 because the Sixth Amendment guarantees a criminal
defendant the right to effective assistance of counsel. See
Morales v. United States, 635 F.3d 39, 42-43 (2d Cir. 2011); see
also Strickland v. Washington, 466 U.S. 668, 686 (1984) (“[T]he
Court has recognized that ‘the [Sixth Amendment] right to
counsel is the right to the effective assistance of counsel.’”
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970))).
A claim of ineffective assistance of counsel has two components.
First, a petitioner must show that counsel’s performance was
deficient. Strickland, 466 U.S. at 687.
Second, the petitioner
must show that he or she suffered prejudice as a result of
counsel’s deficient performance. Id.; Tavarez v. Larkin, 814
F.3d 644, 648 (2d Cir. 2016).
The two-prong Strickland test
“applies to the evaluation of appellate counsel as well as trial
counsel.” Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000);
see also Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (“The
Sixth Amendment guarantees the right to effective representation
on direct appeal.”).
To satisfy the first (or deficiency) prong of the
Strickland test, a petitioner must show that counsel’s
performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
In assessing a
claim that counsel’s representation did not meet the
constitutional minimum, a court should “indulge a strong
presumption that counsel’s conduct f[ell] within the wide range
of reasonable professional assistance.” Lynch, 789 F.3d at 311
(quoting Strickland, 466 U.S. at 689) (alteration in original).
In the appellate context, “counsel has no duty to raise every
non-frivolous issue that could be raised.” Id.
“may establish constitutionally inadequate performance [of
appellate counsel] if he shows that counsel omitted significant
and obvious issues while pursuing issues that were clearly and
significantly weaker.” Id. (quoting Mayo v. Henderson, 13 F.3d
528, 533 (2d Cir. 1994)) (alteration in original).
To satisfy the second (or prejudice) prong of the
Strickland test, a petitioner must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.”
Strickland, 466 U.S. at 694.
In this context, a “reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id.
A prejudice determination “may be made
with the benefit of hindsight.” Lynch, 789 F.3d at 311 (quoting
Mayo, 13 F.3d at 534).
B. Prosecutorial Misconduct and Perjured Testimony
“Prosecutorial misconduct may provide a basis for § 2255
relief only when such conduct constitutes a denial of due
process.” Jones v. United States, Nos. 92 CR. 925 (LBS), 99 Civ.
5738 (LBS), 2000 WL 987271, at *5 (S.D.N.Y. July 17, 2000).
“Unless the misconduct results in prejudice which amounts to a
denial of due process, it is not cognizable as a claim for
relief in a § 2255 motion.” Id.
With regard to Minaya’s petition, however, another standard
is likely more relevant.
A claim for wrongful conviction based
on allegedly perjured testimony is properly analyzed “under the
Due Process Clause of the Fourteenth Amendment.” Drake v.
Portuondo, 321 F.3d 338, 344–45 (2d Cir. 2003) (citing Napue v.
Illinois, 360 U.S. 264, 269 (1959)).
To “challenge a conviction
because of a prosecutor’s knowing use of false testimony, a
defendant must establish that (1) there was false testimony, (2)
the Government knew or should have known that the testimony was
false, and (3) there was ‘any reasonable likelihood that the
false testimony could have affected the judgment of the jury.’”
United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993)
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
A. Minaya Does Not Establish That He Received Ineffective
Assistance of Counsel
In his petition, Minaya raises various arguments in support
of his contention that appellate counsel’s representation was
First, Minaya asserts that
counsel failed entirely to contact him.
Second, Minaya states
that counsel’s failure to communicate with him precluded counsel
from focusing on Minaya’s preferred arguments, including an
argument regarding alleged prosecutorial misconduct at Minaya’s
Third, Minaya cites counsel’s failure to provide him
with a transcript of the appellate hearing in a format that
Minaya could review.
The Court concludes that Minaya’s
arguments do not show that he received ineffective assistance of
appellate counsel and do not entitle him to habeas relief.
With respect to Minaya’s first argument, counsel’s failure
to communicate with Minaya does not establish a claim for
ineffective assistance of counsel. (See Pet’r’s Mem. at 3.)
appellate attorney's failure to consult with his client is not a
per se violation of a defendant’s Sixth Amendment rights.”
Williams v. Comm’r N.Y.S. Dep’t of Corr., Nos. 07 Civ.
5496(WHP)(FM), 07 Civ. 5514(WHP)(FM), 2011 WL 5301766, at *21
(S.D.N.Y. Oct. 31, 2011) (citing Buitrago v. Scully, 705 F.
Supp. 952, 955 (S.D.N.Y. 1989)).
An attorney’s mere “failure to
consult” his or her client, id., does not necessarily fall
“below an objective standard of reasonableness.” Strickland, 466
U.S. at 688.
Thus, Minaya is not entitled to habeas relief on
this ground. See Williams, 2011 WL 5301766, at *21.
Similarly, Minaya’s argument that counsel allegedly failed
to incorporate the arguments Minaya viewed as “strongest” into
his appeal does not demonstrate ineffective assistance. (See
Pet’r’s Mem. at 3-4, 7.)
“Although it may be desirable and
productive, the Constitutional right to effective assistance of
counsel does not encompass the requirement that an attorney
consult with his client to discuss the alleged [issues] that his
client wishes to pursue.” McIntyre v. Duncan, No. 03-CV-0523
(ADS), 2005 WL 3018698, at *3 (E.D.N.Y. Nov. 8, 2005); see also
Vinson v. Brown, No. 07 CIV. 2972(VB)(PED), 2011 WL 7640001, at
*18 (S.D.N.Y. July 11, 2011) (holding that petitioner did not
establish ineffective assistance by appellate counsel who failed
to consult with petitioner or learn that petitioner wanted to
raise a specific argument on direct appeal) adopted by, 2012 WL
1129271 (S.D.N.Y. Mar. 29, 2012); Campbell v. Greene, 440 F.
Supp. 2d 125, 152 (N.D.N.Y. 2006) (holding that petitioner did
not establish ineffective assistance by appellate counsel who
failed to consult with petitioner prior to filing appellate
brief or incorporate petitioner’s suggested arguments in
These cases demonstrate that counsel’s
failure to “incorporate in [an] appellate brief the arguments
asserted” by Minaya, Campbell, 440 F. Supp 2d at 152, does not
fall “below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688.
The specific argument that Minaya references in his
petition that counsel failed to raise is that the Government
committed prosecutorial misconduct at his trial. (See Pet’r’s
Mem. at 5-7.)
However, Minaya does not demonstrate that counsel
“omitted significant and obvious issues while pursuing issues
that were clearly and significantly weaker.” Lynch, 789 F.3d at
311 (quoting Mayo, 13 F.3d at 533); see also Smith v. Robbins,
528 U.S. 259, 288 (2000) (stating that “it is still possible to
bring a Strickland claim based on counsel’s failure to raise a
particular claim, but it is difficult to demonstrate that
counsel was incompetent” because doing so requires a “showing
that a particular nonfrivolous issue was clearly stronger than
issues that counsel did present”).3
Here, Minaya provides no
evidence for the proposition that the argument regarding
prosecutorial misconduct was clearly stronger than the two
issues that counsel actually presented, i.e., the sufficiency of
the evidence and the credibility of Guzman’s testimony. See
Minaya, 544 F. App’x at 14.
Even assuming that the
prosecutorial misconduct argument had some merit, counsel’s
decision not to raise it was within the “wide range of
reasonable professional assistance.” Strickland, 466 U.S. at
Indeed, the “process of winnowing out weaker arguments on
appeal and focusing on those more likely to prevail, far from
being evidence of incompetence, is the hallmark of effective
appellate advocacy.” Sellan v. Kuhlman, 261 F.3d 303, 317 (2d
Cir. 2001) (internal quotation marks omitted); see also Parks v.
Sheahan, 104 F. Supp. 3d 271, 288 (E.D.N.Y. 2015) (“[T]he choice
As discussed further below, the prosecutorial misconduct
argument that Minaya desired counsel to press on appeal is
without merit. “Failure to make a meritless argument does not
amount to ineffective assistance.” United States v. Arena, 180
F.3d 380, 396 (2d Cir. 1999), disapproved on other grounds,
Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 403 n.8
of which issues to raise on appeal is a matter of professional
judgment left to appellate counsel.”).
argument that counsel failed to argue prosecutorial misconduct
does not establish a claim for ineffective assistance of
With respect to Minaya’s third argument, counsel’s failure
to provide him with a transcript of the argument in his appeal
does not constitute ineffective assistance of counsel. (See
Pet’r’s Mem. at 4.)
“Even assuming for purposes of argument
that a failure to provide a defendant with a transcript of an
appellate argument could constitute deficient performance, there
would be no resulting prejudice.” Duncan v. Fischer, 410 F.
Supp. 2d 101, 118 (E.D.N.Y. 2006).
The fact that counsel failed
to provide a transcript of the appellate argument to Minaya
after the argument took place has no logical connection to the
possibility—let alone probability—of a “different” result in
that proceeding. See Strickland, 466 U.S. at 694.
Minaya’s remaining arguments on this front are without
Minaya cites Slappy v. Morris, 649 F.2d 718 (9th Cir.
1981), for the proposition that the right to counsel includes
“the right to a meaningful attorney-client relationship.”
(Pet’r’s Mem. at 5.)
However, the Supreme Court reversed the
Ninth Circuit’s decision in Slappy and “reject[ed] the claim
that the Sixth Amendment guarantees a ‘meaningful relationship’
between an accused and his counsel.” Morris v. Slappy, 461 U.S.
1, 14 (1983).
Moreover, although Minaya takes issue with
counsel’s “perfunctory manner,” (Pet’r’s Mem. at 7), the Sixth
Amendment does not guarantee complete satisfaction with
counsel’s performance. See United States v. Cronic, 466 U.S.
648, 657 n.21 (1984) (“If counsel is a reasonably effective
advocate, he meets constitutional standards irrespective of his
client's evaluation of his performance.”).
Finally, with respect to the second prong of the Strickland
test, the Court observes that Minaya’s petition does not
establish that counsel’s allegedly deficient performance
resulted in any prejudice to Minaya.
That is, Minaya does not
show that, but for any of the alleged defects in counsel’s
performance analyzed above, “the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
Minaya’s wishes to consult with counsel and review a
transcript of the appellate argument are understandable.
arguments, however, do not establish a violation of the Sixth
Accordingly, habeas relief is not warranted on these
B. Minaya Does Not Establish That Prosecutorial Misconduct
Occurred at Trial
As noted above, Minaya also contends that the Government
committed prosecutorial misconduct during his trial.
Minaya asserts that the Government knowingly presented and
failed to correct false evidence in the form of allegedly
Second, Minaya’s petition, read liberally,
appears to base a claim of prosecutorial misconduct on the
Government’s presentation of a witness who allegedly had
violated his cooperation agreement.
The Court finds that
Minaya’s arguments do not show that prosecutorial misconduct
occurred at his trial and, thus, do not warrant habeas relief.
With respect to his first argument, Minaya does not
demonstrate that the Government knowingly presented, and failed
to correct, perjured testimony. (Pet’r’s Mem. at 7-9.)
Minaya styles this claim as one establishing prosecutorial
misconduct at his trial, Minaya’s argument actually sounds in
the nature of an allegedly wrongful conviction based on perjured
Accordingly, Minaya must establish that “(1) there
was false testimony, (2) the Government knew or should have
known that the testimony was false, and (3) there was ‘any
reasonable likelihood that the false testimony could have
affected the judgment of the jury.’” Helmsley, 985 F.2d at 120506 (quoting Agurs, 427 U.S. at 103).
Here, Minaya does not point to any examples of perjured or
Perjury is “[t]he act or an instance of a
person’s deliberately making material false or misleading
statements while under oath.” BLACK’S LAW DICTIONARY 958 (8th ed.
To be sure, Minaya identifies excerpts of the trial
transcript where Guzman admitted to having lied or changed his
story during proffer discussions with the Government. (Pet’r’s
Mem. at 5-6.)
Both the Government, on direct examination, and
Minaya’s trial counsel, on cross examination, elicited testimony
from Guzman to that effect. (See, e.g., Tr. 532:19-533:4, 552:516, 583:15-20, 589:7-12, 591:1-8.)
These exchanges, however, fail to show anything false or
misleading about Guzman’s testimony at trial.
That is, the fact
that Guzman admitted to having lied to the Government
previously, in proffer sessions, does not mean that Guzman was
committing perjury—lying under oath—at Minaya’s trial.4
claims that Guzman’s testimony was “incredible,” (Pet’r’s Mem.
at 8), but assessing the credibility of a witness is a classic
Even inconsistent testimony does not necessarily qualify as
perjury. “[E]ven a direct conflict in testimony does not in
itself constitute perjury.” United States v. Gambino, 59 F.3d
353, 365 (2d Cir. 1995).
question of fact to be determined by the jury. See, e.g., United
States v. Carace, 796 F.3d 176, 192 (2d Cir. 2015) (“Assessments
of witness credibility and choices between competing inferences
lie solely within the province of the jury.” (internal quotation
marks omitted)); United States v. O’Connor, 650 F.3d 839, 855
(2d Cir. 2011) (“It is the province of the jury and not of the
court to determine whether a witness who may have been
inaccurate, contradictory, and even untruthful in some respects
was nonetheless entirely credible in the essentials of his
testimony.” (internal quotation marks omitted)).
In rendering a
verdict, the jury considered Guzman’s testimony and found it
credible; on direct appeal of Minaya’s conviction, the Second
Circuit determined that the jury was entitled to do so. See
Minaya, 544 F. App’x at 15.
Thus, Minaya does not establish the
existence of false testimony at his trial, that the Government
had knowledge of false testimony, or any reasonable likelihood
that false testimony could have affected the jury’s judgment.
See Helmsley, 985 F.2d at 1205-06.
Minaya’s second argument—that the Government committed
prosecutorial misconduct by relying on Guzman, who was allegedly
in violation of his cooperation agreement and had “obstructed
justice”—is also without merit. (Pet’r’s Mem. at 8.)
Minaya provides no support for the proposition that presenting a
witness who has violated a cooperation agreement constitutes
Second, whether Guzman violated his
cooperation agreement with the Government is “a matter for the
Government,” not Minaya, “to decide.” See United States v.
Perez, No. 01 CR. 848(SWK), 2003 WL 721568, at *8 (S.D.N.Y. Feb.
Third, even assuming Minaya had the authority to
determine whether Guzman violated the terms of his cooperation
agreement, the timeline that Minaya references does not
demonstrate that Guzman violated his cooperation agreement.
According to Minaya, Guzman violated his cooperation agreement
when, during post-arrest detention, Guzman instructed his wife
to distribute the cocaine that remained at his home. (Pet’r’s
Mem. at 7.)
Guzman testified that he was arrested in November
2010, and that he gave his wife instructions to sell the
remaining cocaine sometime during the “first few days” after his
arrest. (Tr. 556:5-15, 559:20-22.)
According to Guzman, the
conversation with his wife took place before he started
cooperating with the Government. (Tr. 553:3-8, 609:18-20.)
also testified that he entered into a cooperation agreement one
year after his arrest. (Tr. 557:10-24.)
It follows that Guzman
could not have violated the terms a cooperation agreement by his
behavior in November 2010 because there was no such cooperation
agreement in existence at that time.
Accordingly, Minaya's arguments do not establish a
violation of the Due Process Clause of the Fourteenth Amendment
and do not warrant habeas relief.
For the reasons described above, Minaya's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
There is no need for an evidentiary hearing because
"the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief." 28 U.S.C.
The Court declines to issue a certificate of appealability
because Minaya has not made a "substantial showing of the denial
of a constitutional right." 28 U.S.C.
United States, 224 F.3d 125, 127
2253(c) (2); Krantz v.
(2d Cir. 2000).
Court certifies, pursuant to 28 U.S.C.
1915(a) (3), that any
appeal from this Order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438,
The Clerk of the Court is respectfully directed to close
the case and enter judgment for the Government.
New York, New York
May 2 3 , 2017
United States District Judge
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