Minaya v. United States

OSCAR MINAYA, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 22 Civ. 6338 (KPF)

No. 11 Cr. 755-5 (KPF)

United States District Court, S.D. New York

December 29, 2022

ORDER

KATHERINE POLK FAILLA, District Judge:

The Court is in receipt of Mr. St. Laurent's declaration in opposition to Mr. Minaya's motion to vacate dated November 16, 2022 (11 Cr. 755-5 Dkt. #551), and the Government's memorandum of law in opposition to Mr Minaya's motion to vacate and related motions filed December 28, 2022 (11 Cr. 755-5 Dkt. #52; 22 Civ. 6338 Dkt. #13). Mr. Minaya is directed to file his reply, if any, on or before February 6, 2023. For completeness the Court attaches Mr. St. Laurent's declaration and supporting exhibits to this Order.

The Clerk of Court is directed to docket this Order in both cases and to mail a copy of the Order and Mr. St. Laurent's declaration and supporting exhibits to Mr. Minaya at his address of record.

SO ORDERED.

DECLARATION OF ANDREW ST. LAURENT

I Andrew St. Laurent, under penalties of perjury pursuant to 28 U.S.C. § 1746, swear and aver to the following:

1. I was previously attorney of record for petitioner Oscar Minaya (“Minaya”).

2. On September 20, 2022, Minaya filed a petition under 28 U.S.C § 2255 alleging, among other things, ineffective assistance of counsel claims against me in connection with my previous representation of him, which petition was filed in the Court on September 26, 2022 (22 Civ. 6338 (KPF) Docket Entry 4) (the “Petition”).

3. On October 5, 2022, the Court directed that Minaya execute a waiver of attorneyclient privilege as a condition of the Court's consideration of his ineffective assistance of counsel claims in the Petition and directed undersigned counsel to file a sworn declaration in response within thirty (30) days of the docketing of Minaya's waiver.

4. On October 25, 2022, the Court docketed the executed version of Minaya's waiver of his attorney-client privilege.

5. This declaration follows.

6. In the Petition, Minaya seeks relief on a number of grounds, including ineffective assistance of counsel by his trial attorney, Martin Geduldig, and undersigned counsel, who represented Minaya in connection with his appeal and his resentencing after appeal.

7. This Declaration addresses only those claims against undersigned counsel and is based, unless otherwise stated, on undersigned counsel's direct knowledge of the underlying events by his own personal observation and involvement in those events. Specifically, this Declaration addresses those claims made in “Ground Three” of his Petition, i.e., that undersigned counsel failed to communicate two plea offers in this case to Minaya, who would have accepted one or the other of such plea offers had they been communicated, and that undersigned counsel failed to file a notice of appeal, despite Minaya's explicit instructions that he do so. Id. at 66-74.

8. As explained in more detail below, no plea offers were ever made to Minaya during the time that Minaya was represented by undersigned counsel, and accordingly no plea offers were communicated to Minaya by undersigned counsel. Further, Minaya instructed undersigned counsel not to file a notice of appeal and, following those instructions, undersigned counsel did not file a notice of appeal.

Conviction and Sentence

9. Minaya was found guilty following a three-week trial in the United States District Court for the Southern District of New York in 2013. (Keenan, J.). Minaya was charged with conspiracy to commit Hobbs Act robbery (Count One), conspiracy to commit kidnaping (Count Two), one count of the use of a firearm in furtherance of the conspiracies to commit Hobbs Act robbery and to commit kidnapping (Count Three), three substantive Hobbs Act robbery charges (Counts Four, Ten, Thirteen) two substantive kidnapping charges (Counts Five, Eleven), two counts of use of a firearm in connection with either a substantive robbery or a substantive kidnapping offense (Counts Six, Twelve), one count of use of a firearm in connection with a substantive robbery offense (Court Thirteen) and narcotics conspiracy (Count Fifteen). Minaya was convicted on all counts, including the four Section 924(c) charges. Minaya was sentenced to an aggregate sentence of 92 years of incarceration and 5 years of post-release supervision.

10. Significantly for purposes of this declaration, Minaya's sentence included “stacked” consecutive sentences on the four Section 924(c) counts, with a mandatory minimum sentence of 7 years being imposed on the first Section 924(c) count, and three consecutive mandatory minimum sentences of 25 years being imposed on the three remaining Section 924(c) counts. In addition, Minaya had a 10-year mandatory minimum sentence on the narcotics conspiracy count, to which all of the Section 924(c) counts were required to run consecutively. Accordingly, the 92-year sentence imposed by Judge Keenan was the minimum allowed by law at the time.

11. Minaya filed a timely notice of appeal.

Appeal to the Second Circuit

12. After the notice of appeal was filed, Martin Geduldig, Minaya's trial counsel, moved to withdraw. On July 11, 2014, the United States Court of Appeals for the Second Circuit (“Second Circuit”) granted the motion and appointed undersigned counsel to represent Minaya under the Criminal Justice Act.

13. Minaya timely filed his principal brief, appendix, and reply brief in the Second Circuit.

14. After briefing and oral argument, on February 11, 2016, Minaya filed a letter under Fed. R. App. P. 28(j), bringing to the Second Circuit's attention then-recent caselaw holding that the definition of “crime of violence” under Section 924(c)(3)(B) was unconstitutionally vague and that conspiracy to commit Hobbs Act robbery, as well as, potentially, substantive Hobbs Act robbery and kidnapping, were not “crimes of violence” for the purposes of Section 924(c).

15. On February 26, 2016, the Second Circuit granted the unopposed motions of Minaya and his two co-appellants to reserve decision on their appeals pending the decisions by the Second Circuit in United States v. Barrett (Docket No. 14-2641) and United States v. Hill (Docket No. 14-3872).

16. Following the decisions in Barrett and Hill, that held, respectively, that conspiracy to commit Hobbs Act robbery was a “crime of violence” and that substantive Hobbs Act robbery was a “crime of violence” under Section 924(c), the Second Circuit affirmed Minaya's conviction and sentence in all respects on February 5, 2019.

17. Following unsuccessful petitions for rehearing and rehearing en banc, Minaya petitioned the United States Supreme Court for certiorari on July 19, 2019.

18. On November 4, 2019, the Supreme Court granted Minaya's petition, vacated his convictions, and remanded the matter to the Second Circuit for further consideration in light of United States v. Davis, 588 U.S. ___ (2019).

19. Following additional briefing in the Second Circuit, on January 22, 2021, the Second Circuit vacated one count of conviction, the Section 924(c) violation predicated, in the alternative, on conspiracy to commit Hobbs Act robbery and conspiracy to kidnap, and remanded Minaya's case for plenary resentencing before this Court. See United States v. Minaya, 841 Fed.Appx. 301 (2d Cir. 2021). The Second Circuit affirmed the remainder of Minaya's convictions.

Resentencing

20. After the Second Circuit issued the mandate, jurisdiction was restored to this Court.

21. The Court (Keenan, J.) set the matter down for resentencing on June 23, 2021, ordered the preparation of a revised presentence report, and set a schedule for pre-sentencing briefing.

22. During the period between the issuance of the mandate and the resentencing, undersigned defense counsel discussed with Minaya and with Jacob Fiddelman, the responsible Assistant United States Attorney, whether there was a possible disposition on Minaya's sentence. Given the sharp disagreements between the parties as to the sentence required under the law (as described in more detail below), these negotiations did not result in a plea offer being extended by the government. No plea offer was ever made by the government or communicated by undersigned counsel to Minaya.

23. The critical issue for resentencing was whether Minaya should be sentenced applying the First Step Act, which Congress had passed in 2018. Importantly for Minaya's resentencing the First Step Act required that for the increased mandatory minimum sentence of 25 years for a “second or subsequent” conviction under Section 924(c) to apply, the second or subsequent conviction must have been committed “after a prior [§ 924(c)] conviction . . . has become final[.]” First Step Act, § 403(b). In Minaya's case, because he had no convictions for a Section 924(c) violation at the time of his arrest, and, in fact, had no criminal record at all, if the First Step Act applied none of his convictions would be “second or subsequent” convictions.

24. Because the majority of Minaya's sentence was a result of the “stacked” 25-year mandatory minimum sentences, whether the First Step Act applied to his resentencing was of fundamental importance. In numerical terms, if the First Step Act applied, Minaya's mandatory minimum sentence was 31 years: 10 years from the narcotics conspiracy and 7 years from each of the three mandatory consecutive Section 924(c) violations that remained following vacatur of the Section 924(c) violation predicated on the conspiracy counts. By contrast, if the First Step Act did not apply, Minaya's mandatory minimum sentence would be 36 years higher: 10 years from the narcotics conspiracy, 7 years from the “first” Section 924(c) violation and 25 years each from the two “second or subsequent” Section...