REPLY In Support NOTICE OF MOTION AND MOTION to Vacate, Set Aside, or Correct… — USA v. Ayvazyan et al (Dkt. 1350)

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U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 1350 · 2023-02-24 · Docket on CourtListener

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Richard Ayvazyan's reply in support of his motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 (Case No. 2:22-cv-8915), filed February 24, 2023 as Doc. 1350 in USA v. Ayvazyan et al, No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California. The reply argues that evidence traced to an October 19, 2020 FBI-directed customs inspection in Miami tainted Government Exhibit 10, and that the government cannot show it did not use tainted evidence. It says his claims are not procedurally defaulted and that the Kastigar violation was a structural error. On the Fourth Amendment claim, it argues the court should have applied Ninth Circuit rather than Eleventh Circuit law. The 22-page filing asks the court to vacate the conviction or hold an evidentiary hearing and is signed /s/ Carlo Brooks.

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Carlo Brooks, CA Bar # 316485
3826 Grand View Boulevard, Suite 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Petitioner
RICHARD AYVAZYAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
RICHARD AYVAZYAN,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No.: 2:22-cv-8915
[CR No. 2:20-cr-579-SVW]
PETITIONER’S REPLY IN
SUPPORT OF MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER
28 U.S.C. § 2255
Hon. Stephen V. Wilson
Hearing Date: March 6, 2023
Time: 1:30 p.m.
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I.
INTRODUCTION
The government’s opposition advocates for a circular reasoning in which
every single one of Petitioner’s contentions is “meritless” because “the Court
remarked on numerous occasions following a nine-day trial and a two-day Kastigar
hearing [that] the evidence against defendant was overwhelming.” Gov. Opp’n to
Mot. to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“Opp’n”) at 6, Dkt. 6 (citing ECF 874 at 83; 84). The government’s circular
reasoning depends on the assumption that the Court’s ruling is inviolable. Such
assumption would preclude the possibility that a sentence could be “imposed in
violation of the Constitution or laws of the United States, . . . that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack,” thus
eviscerating 28 U.S.C. § 2255. This Court must not adopt the government’s
proposed reasoning.
The government states that Mr. Ayvazyan “must demonstrate that the alleged
errors “not merely . . . created a possibility of prejudice, but that [the errors] worked
to [his] actual and substantial disadvantage, infecting [his] entire [proceedings]
with error of constitutional dimensions.” Opp’n at 5 (citing United States v.
Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quoting United States v. Frady, 456
U.S. 152, 170 (1982))). This is precisely what Petitioner argued in his opening
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motion.
It is not every day that a government case is built upon avowedly tainted
evidence, such as here. The government conducted an unlawful search and seizure
and compelled statements from Petitioner which led to documentary evidence from
an unconstitutionally seized phone – a text chain in which Petitioner and
co-defendant Tamara Dadyan allegedly discussed the conspiracy, the “mirror
image” of which was eventually curated into what came to be known as the
government’s “star witness” at trial: Government Exhibit 10 (“GEX 10”). See Dkt.
823, Gov’t. Exhibit A to Ahn Decl.; Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at
196.
The taint can be traced back all the way to the October 19, 2020 Miami
airport FBI-directed “customs” inspection, which yielded a treasure trove of tainted
evidence for the government’s review. The exposure from that point forward is not
in dispute:
●On October 20, 2020, after instructing Customs and Border Protection (CBP)
to initiate a secondary inspection of Petitioner and his wife, information was
conveyed to Agent Palmerton from Customs and Border Protection (CBP).
See Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at 11-18. However, his review
is undocumented. Id.
●DOJ Trial Attorney Fenton also received information on October 20, 2021.
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See Dkt. 813 (July 28, 2021 Kastigar Hr’g Tr.) at 87 (“Q: So the October 20th
… airport stop. You received information [on] approximately October 20th
about some of the contents on the Miami phones orally; correct? A: Yes.”).
●On November 13, 2020, Agent Palmerton reviewed the seized Miami phones
for approximately two hours and took 65 photographs of the phones and their
contents. See Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at 15-17; Kastigar
Ex. 1 at 23. His review is undocumented. Id. at 11-18.
●On February 2, 2021, Agent Palmerton received 141 photographs from CBP,
which included photographs of text messages from Mr. Ayvazyan. Id. at 21;
Kastigar Ex. 2 at 140. The prosecution team received the 141 photos on
February 2, 2021. Dkt. 813 (July 28, 2021 Kastigar Hr’g Tr.) at 156-57,
203-204, 239-240; Kastigar Ex. 2 at 111.
●On February 11, 12, and 19, 2021, the Cellebrite data extractions from three
key Miami smartphones, including the “Iuliia Zhadko” phone (an alias of
Richard Ayvazyan), were released and reviewed. See Dkt. 813 (July 28, 2021
Kastigar Hr’g Tr.) at 29-40, 71-87. 918 pages of text messages were extracted
from the Zhadko phone (phone “1B123”). Dkt. 813 (July 29, 2021 Kastigar
Hr’g Tr.) at 32.
●Of particular interest to the government were text messages between
Petitioner and Tamara Dadyan discussing PPP or EIDL loan applications.
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These text messages and responses from the Dadyan phone (phone “1B21”)
were exported into PDF format for review. Dkt. 813 (July 29, 2021 Kastigar
Hr’g Tr.) at 31-35; Kastigar Ex. 19 (Ex. O to Palmerton Decl. at 391, 474,
561).
●On March 9, 2021, the government filed a superseding indictment.
●On April 27, 2021, Agent Palmerton sent 918 pages of text messages
excerpted from the Zhadko phone to trial attorney Fenton. Dkt. 813 (July 29,
2021 Kastigar Hr’g Tr.) at 39-39.
●The Tamara Dadyan phone was seized from Dadyan’s Weddington residence
on November 5, 2020. Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at 18-19.
However, the government did not review the contents of the Dadyan phone
until May 2021. Id. They realize they are seeing the “mirror image” of the text
messages they extracted from Petitioner’s phone in November. Id. at 19-21.
●On May 7, 2021, AUSA Catherine Ahn, the author of GEX 10, is assigned to
the case. Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at 67. She reviewed text
messages from the Dadyan phone (1B21); Agent Palmerton selected the text
messages and uploaded them to the government’s file share system. Id. at 70
to 71. Ms. Ahn then took this information and created Government Exhibit
10. Id. at 79. Agent Palmerton – who had reviewed the Zhadko phone
containing the mirror image of the text messages on the Dadyan phone –
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provided the precursor to Government Exhibit 10.
●In June 2021, the government used a subset of Petitioner’s unlawfully seized
text messages at trial as part of Government Exhibit 10. Dkt. 813 (July 29,
2021 Kastigar Hr’g Tr.) at 35-36. As predicted by Ms. Ahn in her May 11,
2021 email, the text messages became the government’s “star witness” at trial.
Dkt. 823, Gov’t. Exhibit A to Ahn Decl.
●DOJ Trial Attorney Fenton recalls reviewing all three Cellebrite files,
including the contents of Petitioner’s “Zhadko” phone. Dkt. 813 (July 28,
2021 Kastigar Hr’g Tr.) at 38. However, he does not “specifically recall” the
specific images and documents he reviewed. Id. at 38, 53, 63, 73, 92, 118,
158, 2013, 225; Kastigar Exhibit 31 (Fenton Decl.) at 29 (“I do not have a
specific recollection of the information that I saw.”).
●Despite months and months of robust exposure to patently tainted evidence,
the government cannot prove it did not use tainted evidence because, by its
own admission, it had no appreciation of the taint. The government cannot
prove GEX 10 is untainted because it does not “specifically recall” what was
reviewed.
II.
ARGUMENT
A. Petitioner’s claims are not procedurally defaulted
Normally a petitioner who fails to raise his § 2255 claims on direct appeal
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must demonstrate cause and prejudice to overcome the procedural default. “The
general rule in federal habeas cases is that a defendant who fails to raise a claim on
direct appeal is barred from raising the claim on collateral review.” Sanchez-Llamas
v. Oregon, 548 U.S. 331, 350-51 (2006); United States v. Ratigan, 351 F.3d 957,
962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not
raising them on direct appeal and not showing cause and prejudice or actual
innocence in response to the default.”). There is, however, “an exception if a
defendant can demonstrate both ‘cause’ for not raising the claim at trial, and
‘prejudice’ from not having done so.” Sanchez-Llamas, 548 U.S. at 351. A
defendant who fails to show cause and prejudice can obtain review by
demonstrating “that the constitutional error . . . has probably resulted in the
conviction of one who is actually innocent.” Bousley v. United States, 523 U.S. 614,
623 (1998).
“In procedural default cases, the cause standard requires the petitioner to
show that some objective factor external to the defense impeded counsel’s efforts to
raise the claim [on direct appeal].” McCleskey v. Zant, 499 U.S. 467, 493 (1991).
“If a petitioner succeeds in showing cause, the prejudice prong of the test requires
demonstrating ‘not merely that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.’” United States v. Braswell,
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501 F.3d 1147, 1150 (9th Cir. 2007) (emphasis in original) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)).
A defendant filing a 28 U.S.C. § 2255 motion can also overcome procedural
default based on failure to file a direct appeal by demonstrating “structural errors” –
that is, errors that affect the framework within which the trial proceeds and defy
analysis by harmless-error standards. “[S]ome errors should not be deemed
harmless beyond a reasonable doubt.” Weaver v. Massachusetts, 137 S. Ct. 1899,
1907 (2017). “These errors came to be known as structural errors.” Id. at 1907-08
(citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). “The purpose of the
structural error doctrine is to ensure insistence on certain basic, constitutional
guarantees that should define the framework of any criminal trial. Thus, the
defining feature of a structural error is that it ‘affect[s] the framework within which
the trial proceeds,’ rather than being ‘simply an error in the trial process itself.’” Id.
(quoting Fulminante, 499 U.S. 279 at 310). “For the same reason, a structural error
‘def[ies] analysis by harmless error  standards.’” Id. (quoting Fulminante, 499 U.S.
279 at 309).
Here, it is undisputed that Petitioner did not file a direct appeal. An objective
factor external to the defense impeded counsel’s efforts to raise the claim on direct
appeal as Petitioner was not residing within the jurisdiction of the United States.
As to prejudice, the errors raised in Petitioner’s motion concern constitutional
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violations that worked to his “actual and substantial disadvantage.” As set forth in
Petitioner’s opening motion and herein, the unlawfully executed FBI-directed
customs search and tainted evidence derived therefrom “infected” Petitioner’s
entire trial with “error of constitutional dimensions.” The government cannot prove
it did not use tainted evidence in this case. The Kastigar issue is an issue of
constitutional dimensions. See Kastigar v. United States, 406 U.S. 441, 444-45
(1972) (“[T]he power to compel testimony is not absolute. There are a number of
exemptions from the testimonial duty, the most important of which is the Fifth
Amendment privilege against compulsory self-incrimination. The privilege reflects
a complex of our fundamental values and aspirations, and marks an important
advance in the development of our liberty. It can be asserted in any proceeding,
civil or criminal, administrative or judicial, investigatory or adjudicatory; and it
protects against any disclosures that the witness reasonably believes could be used
in a criminal prosecution or could lead to other evidence that might be so used. This
Court has been zealous to safeguard the values that underlie the privilege.”).
The Kastigar taint in this case is not harmless by any measure. Among other
things, the illegal search and seizure directed by Agent Palmerton was the precursor
to the government’s “star witness,” GEX 10. Petitioner’s unlawfully seized phone
contained the “mirror image” of the text messages from the Dadyan phone (1B21)
that was obtained via the search warrant on the Weddington Street residence.
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AUSA Ahn took the text messages selected by Agent Palmerton – who had been
seeped in tainted evidence since October 2020 – and created GEX 10, a
reverse-engineered exhibit containing the text messages that were seized at the
Miami airport. The fact that these text messages also existed in “mirror image”
form on the Dadyan phone does not “purge” the taint. The Dadyan “mirror image”
is not a “legitimate independent source” – it was not reviewed until May 2021, eons
after the text messages from Petitioner’s Miami phone had already been extracted,
exported and reviewed. In sum, Petitioner’s Fifth Amendment privilege against
compulsory self-incrimination was blatantly violated, and the violation worked to
his actual and substantial disadvantage.
This blatant constitutional violation was also a “structural error” in that, rather
than being “simply an error in the trial process itself,” it affected the entire
framework of the trial. In essence, Petitioner’s smartphone, unlawfully seized by
coerced statements during incommunicado interrogation, spoke for him, against his
will, at trial and sentencing. In support of the admittedly exemplary sentencing, the
Court relied not on Petitioner’s testimony, but on the text messages from his phone.
See Dkt. 1166 (minutes); 1154 (transcript) (“He says, for example, in the text
messages . . . ”). Petitioner’s “own words” were really just GEX 10,
reverse-engineered at the 11th hour as texts “from” Dadyan’s phone. As such,
Petitioner’s claims are not procedurally defaulted.
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B. Petitioner’s Fourth Amendment claim is not “meritless”
The government makes the perfunctory argument that Petitioner’s Fourth
Amendment claim is “meritless.” First, it claims that “Defendant does not seriously
dispute that the Court correctly applied Eleventh Circuit law instead of Ninth
Circuit law.” This is false on the face of the pleadings. In his opening motion,
Petitioner argued that the Court erroneously applied Eleventh Circuit law even
though, if it was one circuit’s law, it should be the Ninth Circuit, “because that’s
where the search was directed from.” The government makes no substantive
argument as to why a “customs inspection” directed by an FBI agent from
California should be controlled by the customs jurisprudence of the situs. In fact,
the Court granted Petitioner’s Fifth Amendment Miranda motion and suppressed
the evidence from Defendants’ phones based on a threshold determination that the
interrogation was criminal in nature. See Dkt. 296. Therefore, 9th Circuit criminal
law jurisprudence should have controlled the criminal aspect of the Fourth
Amendment claim.
Moreover, ​the government’s contention that Defendant may not raise a Fourth
Amendment challenge in a § 2255 motion is without merit. While Stone v. Powell
established a general rule that the exclusionary rule should not be applied in state
criminal proceedings where a defendant has had a full and fair opportunity to
litigate their Fourth Amendment claim, a critical exception to this rule applies in
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this case: when the police or government officials engage in bad faith or deliberate
conduct that violated the defendant’s Fourth Amendment rights, the exclusionary
rule still applies.
In his opening motion, Petitioner went to great lengths to detail the bad-faith
circumstances warranting deterrence in this case. CBP agents’ violation of their
own regulations and policies apply regardless of the “situs of the search.” CBP,
working in concert with the prosecutors in this case, conducted a series of searches
of private smartphones over the course of almost four hours, lied about the purpose
of their search, violated CBP policy by executing the search without the travelers
present, and clearly violated 19 C.F.R. § 162.21. Bad faith constitutional violations
are per se egregious. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 n.5 (9th Cir.
1994)
(“Federal
courts
cannot
countenance
deliberate
violations of basic
constitutional rights. To do so would violate our judicial oath to uphold the
Constitution of the United States.”).
Moreover, whether the Court correctly applied Eleventh Circuit law instead of
Ninth Circuit law is not a decisive factor here because CBP regulations have
extraterritorial application and apply beyond the boundaries of a particular
jurisdiction. Petitioner’s phone was seized by CBP. Part 162 of Chapter I of Title
19 of the Code of Federal Regulations Customs sets forth the rules which regulate
U.S. Customs and Border Protection’s Inspection, Search, and Seizure powers. 19
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C.F.R. § 162.21 of Subpart C, “Seizures,” provides that “Property may be seized, if
available, by any Customs officer who has reasonable cause to believe that any law
or regulation enforced by Customs and Border Protection or Immigration and
Customs Enforcement has been violated, by reason of which the property has
become subject to seizure or forfeiture.” 19 C.F.R. § 162.21. Loan fraud is not a
“law or regulation enforced by Customs and Border Protection.” United States v.
Touset, 890 F.3d 1227 (11th Cir. 2018) involved the “importation of contraband,”
specifically, child pornography. It has no application in this case. Therefore, the
government’s “meritness” claim is meritless.
C. Petitioner’s discovery order claim is not meritless
Citing United States v. Timmreck, 441 U.S. 780, 783-784 (1979), the
government argues that “procedural rulings” do not provide a basis for review
pursuant to § 2255.
Timmreck dealt with a “technical violation” of a rule without a showing of
prejudice. Here, the government’s dumping of data related to this alleged
overarching conspiracy and continued production after the close of discovery
violated the Court’s Discovery Order and operated as an extension of the search
warrant that ultimately provided the key evidence at trial. Moreover, the Court’s
rulings were erroneous because they failed to take into account the prosecution’s
“bad faith” and “deliberate” conduct in this regard. Therefore, the continued
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production of discovery after the Court’s March 15, 2021 deadline prejudiced
Petitioner.
D. Petitioner’s GEX 10 claim is far from meritless
In its opposition, the government reduces Petitioner’s GEX 10 claim to
asserting that the government improperly used notes from their agents’ review of
tainted text messages from 1B123 to identify which of co-defendant Tamara
Dadyan’s two lawfully seized cell phones (“1B21” or “1B130”) to ask the filter
team to prioritize.
As set forth in the opening motion and above, Petitioner’s GEX 10 claim has
far greater import. On May 7, 2021, AUSA Catherine Ahn, the author of GEX 10,
was assigned to the case. Dkt. 813 (July 29, 2021 Kastigar Hr’g Tr.) at 67. She
reviewed text messages from 1B21; Agent Palmerton selected the text messages
and uploaded them to the government’s file share system. Id. at 70 to 71. Ms. Ahn
then took this information and created Government Exhibit 10. Id. at 79. Agent
Palmerton – who had reviewed the Zhadko phone containing the mirror image of
the text messages on the Dadyan phone – provided the precursor to Government
Exhibit 10. At trial, the government used a subset of Petitioner’s unlawfully seized
text messages as part of Government Exhibit 10. Dkt. 813 (July 29, 2021 Kastigar
Hr’g Tr.) at 35-36. As predicted by Ms. Ahn in her May 11 email, the text messages
became the government’s “star witness” at trial. Dkt. 823, Gov’t. Exhibit A to Ahn
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Decl. They spoke for Petitioner against his will and in violation of his fundamental
right against self-incrimination. Therefore, Petitioner’s GEX 10 claim is not
meritless.
E. Petitioner’s filter team claim is not meritless
The government states the filter team functioned lawfully because it “actually
produced to defendant the potentially privileged documents that the filter team had
segregated as a result of its review.”
The government conveniently fails to address the elephant in the room: that
the filter team failed entirely to filter away the taint and instead allowed it to spread
like ink. The government argues that it could have found the loans through other
sources. But whether the government had other reason to suspect that some of these
loans might be fraudulent is irrelevant, because their derivation was, in fact, from
the tainted information, not untainted information. See Kastigar, 406 U.S. at 461-62
(government’s “heavy burden of proving that all of the evidence it proposes to use
was derived from legitimate independent sources standard requires proving that
evidence” (emphasis added)); United States v. Crowson, 828 F.2d 1427, 1429 (9th
Cir. 1987) (“[T]he government may still use the evidence derived from compelled
testimony if it meets its burden of showing that the evidence it intends to present is
derived from a prior, independent source;” United States v. Montoya, 45 F.3d 1286,
1295 (9th Cir. 1995) (holding that government carried burden by “establish[ing]
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that the indictment rested entirely on sources independent of Montoya’s immunized
testimony”).
The prosecution team in the instant case purportedly used a filter team. See
Dkt. 813, Kastigar hearing transcript, at 25-25; 136; 192; 213-214. However,
government testimony proves that the taint from Petitioner’s unlawfully seized
phone was hardly “filtered.” Agent Palmerton testified that the Cellebrite reports
from the digital devices from the Miami seizure were released to him from the filter
team on February 23, 2021. Id. at 25. Agent Palmerton reviewed phone 1B123
which was registered to Zhadko, and the other was 1B126, which was registered to
a Victoria Kauichko, approximately once per week from  February 24 and April 27
2021. Id. at 26-27. He exported what he thought were relevant text messages into a
PDF format. Id. at 27. IRS Criminal Investigation Special Agent Geffrey Clark
“never spoke with the filter team.” Id. at 136. Prior to April 27, 2021, no one
provided Agent Clark with information from any other other phones besides the
Miami phones. Id. Agent Clark reviewed the Tamara Dadyan phone, of which the
Zhadko phone contained the mirror image, but as of April 26, 2021, that phone had
not been released from the filter team to the government team. Id. at 136-137. In
other words, the Tamara Dadyan phone was not purged of the taint of the Zhadko
phone – Petitioner’s phone. In sum, the testimony demonstrates that no tainted
information was filtered in any meaningful way. There was no judicial review
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before any tainted materials could be released to the prosecution team. Petitioner’s
Fifth Amendment rights were clearly violated.
F. Petitioner’s claim based on his sentence is not meritless
The government argues that Petitioner’s claim should be dismissed because
allegations that a sentence within the statutory maximum is excessive are not
ordinarily grounds for relief under § 2255, including allegations based on purported
sentencing disparities. However, “not ordinarily” does not constitute a bar. See
Campo v. United States, No. 89-56273, 1990 U.S. App. LEXIS 21325, at *3 (9th
Cir. Dec. 6, 1990) (assuming that Campo raised a cognizable constitutional claim
under § 2255 but finding that ten-year sentence imposed was within the statutory
maximum and was not an unreasonable exercise of discretion).
Therefore, the Court should consider Petitioner’s sentencing claim.
G. Petitioner’s claim based on the timing of the Kastigar hearing is not
meritless
The government contends that Petitioner's claim should be dismissed because
it “does not implicate a constitutional right because “‘there is no constitutional right
to plea bargain.’” Yet while there may not be a “constitutional right to plea
bargain,” there is a basic due process right to be given all of the information
necessary to make a knowing and intelligent decision about whether to plea
bargain.
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Here, it is clear from the record that the decision to engage in – or not to
engage in plea negotiations – with Mr. Ayvazyan was based at least in part on
exposure to tainted evidence and not the belief that the evidence against him was
“overwhelming.” The possibility of a plea bargain was discussed in telephone calls
that occurred on May 13, 2021 involving Ms. Ahn, Mr. Paetty and Mr. Fenton. Dkt.
813 (July 29, 2021 Kastigar Hr’g Tr.) at 83. Ultimately, the government decided not
to proceed any further with discussions about a potential plea bargain with Mr.
Ayvazyan, supposedly due to a policy “when there is pending misconduct
motions.” Id. at 86. This is the same period in which Ms. Ahn joined the
prosecution and identified the potential “star witness” in the case: Petitioner’s text
messages.
“The standard for a [certificate of appealability] is lenient.” Hayward v.
Marshall, 603 F.3d 546, 553 (9th Cir. 2010). A petitioner “need only show that
reasonable jurists could debate the district court’s resolution or that the issues are
adequate to deserve encouragement to proceed further. This showing requires
something more than the absence of frivolity, but something less than a merits
determination.” The standard is met when “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Obtaining a certificate of
appealability “does not require a showing that the appeal will succeed,” and “a
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court of appeals should not decline the application . . . merely because it believes
the applicant will not demonstrate an entitlement to relief.” Cockrell, 537 U.S. at
337.
Here, should the Court deny Petitioner’s motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, it would be bound to recognize that
Petitioner’s motion presents complex issues that are “adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003),
and grant a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Petitioner
here makes a “substantial showing of the denial of a constitutional right.”
§2253(c)(2). To obtain a certificate of appealability, Petitioner need only show that
the district court’s resolution of the constitutional issues set forth herein is
“debatable;” it is not necessary to establish that the appeal will succeed.
There can be no doubt that the issues raised in Petitioner’s motion implicate
fundamental constitutional rights. At a minimum, the Fifth Amendment right
against compulsory self-incrimination and the Fourth Amendment right against
unreasonable searches and seizures are clearly at issue and properly raised.
Therefore, the Court should grant a certificate of appealability pursuant to 28
U.S.C. § 2253(c).
III.
CONCLUSION
For the reasons set forth above, Petitioner’s sentence was “imposed in
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#:20524

violation of the Constitution or laws of the United States.” Pursuant to 28 U.S.C. §
2255, “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing
thereon, determine the issues and make findings of fact and conclusions of law with
respect thereto.” 28 U.S.C. § 2255(b). Here, Petitioner has alleged cognizable
claims that are supported by the record. Therefore, the Court should vacate the
conviction or promptly schedule this matter for an evidentiary hearing.
Dated: February 24, 2023
Respectfully submitted,
/s/ Carlo Brooks  
Carlo Brooks, Esq.
3826 Grand View Bl, Ste 661472
Los Angeles, CA 90066
(310) 691-9373
carlo@carlobrooks.com
Attorney for Petitioner
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#:20525

CERTIFICATE OF SERVICE
I certify that I served a copy of this document and its attachments on the
Court and all parties by filing this document with the Clerk of the Court through the
CM/ECF system, which will provide electronic notice and an electronic link to this
document to all counsel of record.
DATED: February 24, 2023
Respectfully submitted,
/s/ Carlo Brooks        
Carlo Brooks, Esq
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#:20526

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#:20527

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