SUBJECT: U.S.C. Section 2255 Motion

DATE: 08/17/2020 08:52:30 AM

IN THE UNITED STATES DISTRICT COURT

FOR THE

SO UTHERN DISTRICT OF FLORIDA

FILED BY D.C.

AkC 2 5 2229

ANGELA E, NOBLE

CLERK tl S. DIS'L Cm s. o. op Ftk. .n: ouo.

cAsE sonl. iti -cR- LY n u G .A.o*.A

SHAYEH DOV,

r7lëlirltiff,

UNITED STATES O F AM ERICA,

Defendant,

*****************************#*******************************************************************************************************************

MOTION FOR RELIEF PURSUANT TO 28 U.S.C. SECTION 2255

*************************************************************************************************************************************************

SHAYEH DOV

Reg. No. 39733-053

Pro-se Litigant

Otisville Satellite Camp

P.O. Box 1000

Otisville, N.Y. 10963

0:20-cv-61740-WPD

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 1 of 12
SUBJECT: U.S.C. Section 2255 M otion

DATE: 08/17/2020 02:55:39 PM

IN THE UNITED STATES DISTRICT CO URT

FOR THE

SOUTHERN DISTRICT OF FLORIDA

SHAYEH DOV,

PLAINTIFF,

VS

CASE NO. 0:19-CR-60006-W PD

UNITED STATES OF AMERICA,

DEFENDANT,

MOTION FOR RELIEF PURSUANT TO UNITED STATES CO DE SECTION 2255

COMES NOW , the plaintiff, Shayeh Dov preceding Pro-se, and respectfully submits the instant 28 U.S.C. 2255

to Vacate, Set Aside, and Correct Sentence, forjudicial review by this Honorable Coud.

THE CO URT'S JURISDICTION

This Court has jurisdiction pursuant to United States Code Section 2255 to Vacate, Set Aside, and Correct Sentence.

SUMMARY OF M OTION

Pursuant to the Court O RDER AND ADJUDGED that the motion DE-59 be denied, dated on August 6, 2020 in reference

to the 87 month prison sentence and petitioner conviction becom ing final, we will assume this Courts fam iliar

with the above referenced Case No. 19-60006-CR- DIMITROULEAS.

STATEM ENT OF FACTS

Pursuant to the Guilty Pleas on February 7, 2019 on a wire fraud charge, petitioner now files United States Code M otion

Section 2255 based on a Conflict of Interest. Sam J. Rabin also reprèsented plaintiff victim s in a crim inal case where plaintiff

was represented by Menachem Mayberg. Adam Segan was paid $75,000 dollars therefore creating a conflict of interest.

Plaintiff request the following facts be entered into the District Court record for judicial review.

On or about 2016, I Shayeh Dov paid Adam Segan $75,000 dollars, this payment was made through my Iawyer at the time who

was Menachem Mayberg. Mr. Adam Segan and I both signed an agreement that he would not file charges with the Federal

Court. Mr. Mayberg rpade the agreement after Mr. Segan meet at the Hollywood Police Departm ent Iocated in Hollywood

Florida. Mr. Segan Was also represented by Sam Rabin in criminal Case # 1:10-TP-20140-DLG . Sam did not do a client check

to avoid any possible conflict of interest, and went to my sentencing right after 10 days in Podugal on Vacation.

Sam Rabin did not even ask the Court for the Iow end of the guidelines range, which was 70 to 87 months, he did not

make any statem ent about my poor health, heart surgery, one kidney, my blood pressure or my high cholesterol.

He fail to mention my PSR repod, that states I am an alcoholic and gambler. The PSR states Sam Rabin just sat there and did

nothing at all.

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 2 of 12
l only meet with Mr. Sam Rabin once, he fail to meet with me again until the morning of 8/6/19. Sam Rabin told me not to

have an ORDER TO SHOW CAUSE hearing, when in fact, I should have had the hearing. This Court can check with AUSA

Katz, it was supposed to be on the morning of 8/6/19. Sam Rabin sim ply fail to measure klp to the com petent standards of an

attorney, guaranteed by the constitution resulting in a conflict of interest. To further confirm his incom petents he charged my

family $50.000 dollars for a two hour court appearance. To confirm the above statement that my attorney

Iabored from a conflict of interest. I request a hearing in order to have Mr. Mayberg verify that he paid Mr. Adam Segan, and

Mr. Adam Segan verify that Mr. Sam Rabin was told on 8/7/19, that he found out he had a huge conflict of interest.

To fudher confirm there was a conflict of interest, he told my w ife that there is nothing you can do about it, an the above fact will

be submitted to this court at a hearing and verified by text to m y wife on 8/7/19 to 8/15/19, through Exhibit A.

CONSTITUTIONAL CLAIM

In a crim inal trial, the interests of a defendant and a cooperating government witness are almost always adverse.

U.S. Const. Am end. VI confers a right to conflict-free counsel and bars representations that involve an actual conflict of interest.

Such a conflict of interest prohibits a representation, despite waiver by aII parties, where counsel has divided loyalties due to

concurrent or prior representation of another client who is a co-defendant, a co-conspirator, or a government witness. Even

concurrent representations of adverse clients in unrelated matters have been barred.

.To demonstrate ineffective assistance of counsel based on a conflict of interest, a 28 U.S.C. S. 2255 petitioner must show that

counsel had an actual conflict of interest and that the conflict adversely a#ected counsel's pedorm ance. Only when a defendant

show that his counsel actively represented conflicting interest does he establish an actual conflict under the Sixth

Amendment. That fact-specific inquiry requires the defendant to make a factual showing of inconsistent interests or point

to specific instances in the record to suggest an actual impairment of his interests. A mere speculative, hypothetical, or possible

conflict of interest is insufficient to establish an ineffective-assistance claim . To prove adverse effect, the petitioner m ust show.

(1) the existence of a plausible alternative defense strategy or tactic that might have been pursued', (2) that the alternative

strategy or tactics was reasonable under the facts', (3) a link between the actual conflict and the decision to forgo the alternative

strategy of defense. In the guilty-plea context, the appellate couds Iooks to whether the attorney's actual conflict adversely

affected the defendant's decision to plead guilty.

AN ACTUAL CONFLICT AS OPPOSED TO NO CONFLICT AT ALL

.counsel Sam Rabin had and actual conflict of interest, and it adversely affected counsel's performance in the following

m anner. Sam Rabin side with Adam Sagan in his failure to ask for the low end of the guideline, his failure to request RDAP,

which was recommended in the PSR, his failure to mention any health conditions and his failure to meet with me before

sentencing. Sam Rabin also fail to perform a client check on Adam Sagan to determine if there was in fact a conflict of interest.

Had Sam Rabin requested a ORDER TO SHOW CAUSE hearing aII of the above facts would have been revealed at the

hearing, therefore allowing me to hire a conflict free Iawyer with out any ties or Ioyalties to Adam Sagan, which would of resulted

in me not cancelling the ORDER TO SHOW CAUSE hearing, as recommended by Sam Rabin, the hearing itself would have

resulted in a three point reduction for acceptance of responsibility. The three point reduction for ''Acceptance of Responsibility''

alone would have resulted in and additional 24 months off of the guideline. The Order to Show Cause hearing would have

revealed the fact that, Sam Rabin had represented Adam Sagan in another criminal case, and as a result I would have relieved

M r. Sam Rabin of his duties due to that Conflict of Interest, and hired a com petent Iawyer.

THE ORDER TO SHOW CAUSE HEARING

The Order to Show Cause Hearing was a critical and necessary part of petitioners proceedings, to proceed in a fully-adversarial

manner to determiY aII of the above findings of facts and conclusions of Iaw, to deny this petitioner the Show Cause Hearing

was clearly prejudicial, it denied the petitioner the opportunity to have the District Court to consider varying downward, and it

also denied this petitioner a 3 point reduction for acceptance of responsibility which would have resulted in a significant amount

of time off of the guidelines.

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 3 of 12
Sam Rabin was aware of the Conflict of Interest, because he had represented Adam Segan in Case #1 :10-TP-20140-DLG,

therefore his Ioyalties were divided and can account for the following failures, because no competent Iawyer practicing Iaw in

2019 would have fail in the following regard.

1 . Sam Rabin failure to pedorm a client check on Adam Segan created a Conflict of Interest.

2. Sam Rabin failure to ask for the low end of the guidelines, and RDAP which was recommended in the PSR.

3. Sam Rabin failure to mention any of petitioners many health conditions.

4. Sam Rabin failure to meet before sentencing and,

5. Sam Rabin failure to request a Order to Show Cause, which prejudiced petitioner

6. Sam Rabin Ioyalties were divided, and he sided with Adam Segan who was a victim of petitioner in this case.

7. Confirmation of Sam Rabin divided Ioyalties can be provided to this Coud in the form of a text to petitioner wife by Sam

. Rabin, attorney for Shayeh Dov.

Generally, to demonstrate that a counsel's performance was so defective that it was constitutionally deficient and requires

reversal, a defendant must allege facts showing that (1) his counsel made errors so serious that counsel was not functioning as

the counsel guaranteed by the Six Amendment; and (2) the deficient performance prejudice the defense. The right to effective

assistance of counsel includes the right to counsel who is unim paired by conflicting Ioyalties. The above facts support those

claims, the above plausible alternative defense strategy or tactics that m ight have been pursued. A plausible alternative strategy

is reasonable under the facts, but that does not mean the defendant must prove that strategy would necessarily have been

successful. He only need to demonstrate that the alternative strategy possessed sufficient substance to be a viable alternative.

Kennedy v. United States 2020 U.S. App. Lexis 1472 (Jan. 16. 2020).

.sam Rabin failure to pursue petitioner original plea offer of 51-63 months was prejudicial, because the acceptance-ofresponsibility reduction alone would have resulted in a 24 month reduction in petitioner sentence.

The above plausible defense strategy or tactic m ight have been pursued but was not, because of the conflict of interest.

Perillo v. Johnson, 79 f. 3d 441 (1996).

lf a defense attorney owes duties to a party who interests are adverse to those of the defendant, then an actual conflict exist.

The interest of the other client and the defendant is sufficiently adverse, if it is shown that the attorney owes a duty to the

defendant to take some action that sould be detrimental to the other client. Kahey, 436 So. 2d at 484-85, quoting

''Zuck v Alabama, 588 F. 2d 436, 439 (5th Cir. 1979). In this case Exhibit A will confirm petitioner claim against attorney Sam

Rabin.

An actual conflict exists when counsel, unknown to the accused and without his or her knowledgeable assent, is in a duplicitous

position where his full talents as a vigorous advocate having a single aim of defending by aII means fair and honorable are

hobbled or fretted or restrained by commitments to other, Perillo v. Johnson 205 F. 3d 775 (5th Cir. 2000).

.It should be noted by this Court that Judge Zlock, prior to retiring Order the ORDER TO SHOW CAUSE hearing, which could

have resulted in the 3 points reductioc for Acceptance of Responsibility, for a m aximum sentence of 63 months.

.petitioner respectfully request this case be Vacated, Set Aside, and Sentence Corrected.

Respectfully Submitted

Shayeh ov 39733-053

Petitioner Pro-se

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 4 of 12
*

SUBJECT: Cedificate of Service

DATE: 08/16/2020 01:57:14 PM

CERTIFICATE OF SERVICE

1, Shayeh Dov, have personally served a true and correct copy of United States Code Section 2255 Motion to Vacate, Set Aside,

and Correct Sentence, given to Federal Officials to be deposited in the out going Legal Mail Box in accordance with the ruling in

Huston v. Lack to the following parties. The Motion cover a Conflict of lnterest between Attorney Sam Rabin, Shayeh Dov, and

Adam Segan where Sam Rabin attorney for petitioner also represented Adam Segan in Case # 1:10-TP-20140-DLG.

Honorable Judge W illiam P. Dimitrouleas

United States District Court

Southern District of Florida

500 East Broward Blvd.

Ft. Lauderdale, FI 33394

Office of the United States Attorney

AUSA, Randall D. Katz

United States District Court

Southern District of Florida

500 East Broward Blvd. Suite 700

Ft. Lauderdale, FI 33394

United States District Court

Southern District of Florida

Office of the Clerk - Room 108

299 Broward Blvd

Fort Pierce, Fl 34950-4209

sign on this 1 '-7 day of 4- ' u .s the yearzozo

Respectfully Submitted

Shayeh Dov, #39733-053 Petitioner Pro-se

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 5 of 12
* #

10:51 j & .% + œ I

< 9 sam Rabin cy <

your hl Aug 6, 2019 a

form er client of m ine.

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w as aw are of a

connection, I do not

believe there is

conflict of

any

any sort

w hatsoever because

A d am Segan w as

involved in a

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yourhusband w here

he w as paid back

according to w hat

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Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 6 of 12
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A ug 6 ,20 19

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could do for your

husband . lw as in

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m y vacation. I w ish

the rest w as better

butyourhusband

hurt a Iot of people

financially and today

w as their

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Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 7 of 12
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opportunity to vent

and they did so

effectively. A s I told

you, S hayeh is

fortunate thejudge

did not depart

upw ards after those

victim s testified

today. (l)v

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Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 8 of 12
*6 u in it

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I Aug 6, 2019

w a nt a l Iy

com m unication

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phone call

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2 m inutes

.1 * œ .

A ,

ago I knew of no

connection betw een

your husband and a

form er client of m ine.

In any event, even if I

w as aw are of a

connection, I do not

believe there is

conflict of

w hatsoever because

any

any sort

A dam Segan w as

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 9 of 12
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careful about the

things you say. You

com m ented after the

sentencing by

essentially saying

you could have stuck

w ith M artin and go

the sam e result and

then you call m e and

suggestthat lhad a

conflict on an issue

w here no conflict

exists.

Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 10 of 12
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Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 11 of 12
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Case 0:20-cv-61740-WPD Document 2 Entered on FLSD Docket 08/26/2020 Page 12 of 12