Minnick v. USA CV-96-23-SD 05/30/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Wayne Wesley Minnick

v. Civil No. 96-23-SD

United States of America

O R D E R

Petitioner Wayne Wesley Minnick presently moves the court to

reconsider its decision of February 21, 1996, wherein the court

denied petitioner's motion to vacate, set aside, or correct

sentence pursuant to

.

Background

As the court noted in its previous order, petitioner's

arguments all relate back to certain investigatory and judicial

proceedings that occurred in New Jersey in the 1980's.

Petitioner was prosecuted in New Jersey on two different charges

in two different counties. In Union County, petitioner was

indicted for multiple gambling offenses, whereas a separate

prosecution occurred in Hunterdon County upon indictment for

various weapons offenses. Petitioner filed a retraxit plea of

guilty as to the gambling charges and was found guilty of the weapons charges by a jury of his peers.

Petitioner now claims that his "conviction on weapons

related charges was based upon evidence obtained in connection

with the investigation of his alleged gambling activities."

Petitioner's Motion for Reconsideration 5 4. Due to alleged

ineffective assistance of counsel in the gambling offense

prosecution, wherein a motion to suppress evidence was argued and

denied, petitioner asserts that such suppression hearing was

conducted "in his absence and without his attorney ever

conferring with him prior to attempting to represent his

interests . . . ."Id. 5 5. As a conseguence thereof,

petitioner continues, his "conviction in New Jersey of possession

of prohibited weapons is as invalid as his conviction on gambling

activities."

5 6.

Discussion

Relief under

may be disallowed by this

court, even in the absence of an evidentiary hearing, "if it

plainly appears on the face of the pleadings that the petitioner

is not entitled to the reguested relief," United States v.

LaBonte,

(1st Cir. 1995), or if facially

adeguate allegations are determined to "consist of no more than

conclusory prognostications and perfervid rhetoric,"

at 1412-

2 13, or if petitioner's "key factual averments . . . are either

inherently improbable or contradicted by established facts of

record,"

.

Arguments founded upon an alleged ineffective assistance of

trial counsel "are evaluated against the heavy burden of proof

the law imposes." Argencourt v. United States,

(1st Cir. 1996). Thus, the "familiar test", LaBonte, supra,

, of Strickland v. Washington,

(1984),

reguires petitioner to "demonstrate both that trial counsel's

performance fell below an objective standard of reasonable

effectiveness, and that counsel's deficient performance was so

prejudicial as to undermine confidence in the outcome of the

trial."

(citing

; Lema v. United States,

(1st Cir. 1993)); LaBonte, supra,

.

When measuring "whether trial counsel's performance fell

below the relevant objective benchmark, '[jJudicial scrutiny of

counsel's performance must be highly deferential,' and 'every

effort [should] be made to eliminate the distorting effects of

hindsight.'"

(guoting

). "The court 'must indulge a

strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance . . . .'"

3 (quoting

) .

The second prong of the Strickland test--the "prejudice"

element--is similarly difficult for a claimant to surmount. "'An

error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if

the error had no effect on the judgment.'"

(quoting

). Merely "postulating that

counsel's errors had some conceivable effect on the outcome of

the proceeding,"

(quotation omitted) , is insufficient to

demonstrate prejudice. Rather, Minnick "must affirmatively prove

'a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.'"

(quoting

).

Petitioner argues a complicated web of alleged deficiencies

in the representation afforded by his New Jersey trial counsel,

but the court is hard-pressed to arrive at the result Minnick now

seeks.1 Essentially, investigators in New Jersey obtained

1The court notes that the argument made herein regarding the quality of petitioner's counsel during the New Jersey state court proceedings has never heretofore been advanced, either in plaintiff's New Jersey state court appeals or in his direct appeal to the First Circuit subsequent to conviction in this court. Insofar as a claim of ineffective assistance of counsel is one of constitutional dimension, and thus properly before the

4 inculpatory evidence about petitioner's gambling activities

through wiretap interception of certain of his conversations.

The wiretap interception allegedly provided probable cause for a

subseguent search of petitioner's New Jersey residence, wherein a

a sawed-off rifle and a silencer were discovered. Petitioner was

indicted on both gambling and weapons-related offenses, but a

superseding indictment parsed the crimes so that the gambling

charges were tried in Union County and the weapons charges were

tried in Hunterdon County.

A suppression hearing was sought in the Union County

prosecution in May of 1984, but was denied by the trial judge.

Petitioner thereafter entered a retraxit plea of guilty to the

gambling crimes, but appealed the trial court's denial of the

suppression hearing. The appeals court ruled on December 29,

1986, that a suppression hearing should have been held, and if

petitioner was successful in suppressing the evidence, then he

would be allowed to withdraw his guilty plea. The motion was

thereafter denied on remand in March 1987 by the trial judge

after oral argument. Subseguent appeal of claimed deficiencies

court under

, "the failure to bring a claim of ineffective assistance of counsel on direct appeal is not subject to the cause and prejudice standard." Knight v. United States,

(1st Cir. 1994) (citing Brien v. United States, 695 F .2d 10, 13 (1st Cir. 1982)).

5 in the remand suppression hearing offered petitioner no benefit.2

Petitioner was tried and convicted in Hunterdon County on

the weapons charges in 1985. A separate suppression hearing

appears to have taken place in the Hunterdon County prosecution,

wherein the trial judge ultimately denied, on November 16, 1984,

petitioner's reguest that the evidence seized be suppressed. See

State of New Jersey v. Minnick, Civil No. A-2516-84T4, slip op.

at 2 (N.J. Super. C t . A p p . Div. Oct. 20, 1986) (per curiam).

After sentencing, an appeal was taken which challenged the term

of probation assessed but did not otherwise fault the

proceedings. The appeals court affirmed the conviction on

October 20, 1986, but remanded the matter for resentencing.

Petitioner received a fine and probation on resentencing. See

Transcript, supra note 2, at 96.

Minnick's first claim is that his counsel's failure to

convince the trial court to suppress evidence in the gambling

case--to which he entered a plea of guilty--somehow prejudiced

his trial in the weapons case.3 As evidenced by the record, and

2The Supreme Court of New Jersey has addressed and rejected petitioner's argument that his absence from the hearing offended the Constitution. See Dec. 4, 1990, Transcript of Jury Trial in United States v. Minnick at 126-27.

3Insofar as a valid conviction on either the gambling or the weapons offenses is sufficient to sustain the sentence imposed by this court, attention is primarily focused, as in the February 21, 1986, order, on the weapons-related crimes.

6 as petitioner himself has testified, his trial on the weapons

charges was "a completely separate trial." Transcript, supra

note 2, at 126. Neither the original 2255 motion nor the instant

motion for reconsideration adeguately addresses the separate

Hunterdon County proceedings.

Moreover, even were counsel's conduct in Hunterdon County

found to constitute substandard performance, Strickland's "second

line of inguiry is needed because, in itself, dreary lawyering

does not offend the Constitution." Scarpa v. Dubois,

(1st Cir. 1994), cert, denied, ___ U.S. , 115 S.C t . 940

(1995). The guestion thus becomes whether petitioner suffered

actual prejudice in conseguence of counsel's purported, and

unsubstantiated, blunders.

In order to successfully demonstrate this second prong,

petitioner must show a "'reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different.'"

(guoting

). Neither Minnick's original motion nor his motion

for reconsideration supports such "reasonable probability".

Indeed, the slim evidence presented by petitioner in support of

his arguments, both on the original 2255 motion and on

reconsideration, are at best characterized as the type of

"conclusory prognostications and perfervid rhetoric," LaBonte,

7 supra,

, which the First Circuit has determined

form an inadequate basis upon which to grant

relief.

Accordingly, petitioner's motion for reconsideration must be

and herewith is denied.

Conclusion

For the reasons set forth herein, petitioner's motion for

reconsideration (document 4) is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 30, 1996

cc: Wayne Wesley Minnick, pro se