Whether appellate counsel was ineffective for failing to argue that Petitioner's Fifth Amendment right to be heard and due process were violated when the Court of Appeals affirmed Petitioner's conviction by creating new precedent with the warrantless seizure requirement sua sponte without any party presentation or any fair notice

QUESTION PRESENTED Petitioner raised in the district court with an 18 U.S.C. Section 2255 motion that appellate counsel was ineffective on direct appeal for failing to argue in Petitioner's petition for panel rehearing on en banc review that Petitioner's Fifth Amendment right to be heard and due process were violated when the Court of Appeals affirmed Petitioner's conviction by creating new precedent with the warrantless seizure requirement sua sponte without any party presentation or any fair notice. The district court denied the 2255 motion in its entirety and denied a Certificate of Appealability ("COA"). Petitioner then filed a COA in the Second Circuit Court of Appeals, which was denied with one page (see