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Khan v. United States

United States District Court, D. New Mexico

November 9, 2017

ERIK BILAL KHAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Erik Bilal Khan's Motion Under 18 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Motion”), (CR Doc. 194), filed July 14, 2017; Petitioner's Memorandum of Law in Support of Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. 2255 (the “Memorandum”), (CR Doc. 199), filed August 7, 2017; Petitioner's Motion for Leave to Conduct Discovery (the “Motion for Discovery”), (CR Doc. 200), filed August 21, 2017; Respondent United States of America's Response to Defendant's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (the “Response”), (CR Doc. 202), filed August 23, 2017; Petitioner's Motion for Production of Court Records (the “Motion for Production”), (CR Doc. 203), filed August 24, 2017; Petitioner's Motion for Leave to File Late Reply (the “Motion for Leave”), (CR Doc. 205); Petitioner's Reply to Government's Response in Opposition (the “Reply”), (CR Doc. 206), filed October 10, 2017; Petitioner's Supplemental Authority (the “Supplemental Authority”), filed October 19, 2017; and Petitioner's Motion for Default Judgement (the “Motion for Default Judgment”), filed October 23, 2017. United States District Judge Robert C. Brack referred this case to United States Magistrate Judge Carmen E. Garza for proposed findings of fact and a recommended disposition. (CR Doc. 197).

         The Court has reviewed the Motion, the Memorandum, the Response, the Reply, and Petitioner's Motion for Discovery, Motion for Production, Motion for Leave, and Motion for Default Judgment. After considering the parties' filings, the record of the case, and relevant law, the Court RECOMMENDS that Petitioner's Motion, Motion for Discovery, Motion for Production, and Motion for Default Judgment be DENIED, that Petitioner's Motion for Leave be DENIED AS MOOT, and that this case be DISMISSED WITH PREJUDICE.

          I. Background

         This case arises from Petitioner's prosecution for and guilty plea to violations of the Child Pornography Prevention Act of 1996 (the “CPPA”), 18 U.S.C. §§ 2251-2260a (2012). Petitioner was originally charged in federal court with one count each of receipt, distribution, and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), (b)(1), and 2256. (CR Doc. 7 at 1-2). The statutory sentencing range for receipt and distribution was five to twenty years, and the statutory range for possession was no more than ten years. §§ 2251(b)(1)-(2). Respondent initially offered Petitioner a plea in which he would agree to a 22 year-sentence, but he rejected that offer. (CR Doc. 194 at 23).

         After Petitioner rejected the plea offer, the grand jury returned a superseding indictment that added a charge of attempted production of child pornography in violation of 18 U.S.C. §§ 2251(a). (CR Doc. 26). This charge carried a mandatory minimum fifteen year sentence and a maximum thirty year sentence. § 2251(e). During the course of Petitioner's prosecution, he was also charged with criminal sexual contact of a minor in New Mexico state court. (CR Doc. 164 at 27).

         On November 25, 2013, Petitioner pled guilty to all four counts in the superseding indictment. (CR Doc. 65). However, Petitioner retained new counsel before sentencing. (CR Docs. 75, 76). After Petitioner's new counsel filed and litigated a series of motions, Petitioner pled guilty pursuant to an amended plea agreement under Fed. R. Crim. P. Rule 11(c)(1)(C) on June 27, 2016. (CR Doc. 170). As part of the agreement the parties stipulated to a sentence of twenty years imprisonment. Id. at 5. When Petitioner was sentenced, his Sentencing Guidelines recommended sentence was 235-293 months. (CR Doc. 164 at 40). Although the attempted production charge carried a higher statutory minimum than the receipt, distribution, and possession charges, the latter three charges had a higher adjusted offense level than the attempted production charge. Id. at 24-25. In the plea agreement, Petitioner waived his right to appeal or collaterally attack his convictions and sentence “except on the issue of defense counsel's ineffective assistance.” Id. at 11-12.

         Petitioner has now timely filed the Motion, bringing three broad claims: ineffective assistance of counsel; denial of due process as a result of prosecutorial misconduct; and a facial constitutional challenge to the CPPA. (CR Doc. 194 at 13-66; CR Doc. 199 at 1-77). Petitioner has organized his ineffective assistance of counsel claims into sixteen “counts.” (CR Doc. 194 at 14-41, 65-66). In sum, Petitioner claims that but for his ineffective assistance of counsel, he would have pled guilty to the original indictment as soon as he was arraigned in federal court and would have received a sentence of less than twenty years. Petitioner also alleges seven different instances of prosecutorial misconduct that denied him due process of law, Id. at 42-63, and claims that the CPPA is facially unconstitutional, Id. at 63-64.

         In its Response, Respondent points out that Petitioner waived his right to collaterally attack his sentence except on the issue of ineffective assistance of counsel. (CR Doc. 202 at 8-9). Therefore, Respondent argues, Petitioner's claims of prosecutorial misconduct and his facial challenges to the CPPA are barred. Id. at 9-10. As for Petitioner's claims of ineffective assistance of counsel, Respondent argues that Petitioner was defended by “some of the most revered defense attorneys” in New Mexico, that Petitioner does not allege any defect with his last counsel, and that Petitioner was not prejudiced because his sentence of twenty years was far shorter than his Guidelines recommended range. Id. at 10-11.

         In his Reply, Petitioner disputes that his counsel could not have been deficient even if they were highly regarded. (CR Doc. 206 at 2). Moreover, although Petitioner is not alleging ineffective assistance of his counsel at sentencing, Petitioner states that does not prevent him from establishing ineffective assistance earlier in the case that prejudiced him later. Id. at 3. In particular, Petitioner again argues that but for his counsel's ineffective assistance, he would have pled guilty at his first arraignment and would not have received a twenty year sentence because he was not facing a charge for attempted production of child pornography at that time. Id. at 4-5. Finally, Petitioner contests that his other claims are waived. Id. at 5.

         In addition to the Motion, Memorandum, and Reply, Petitioner has filed a Motion for Production, in which he asks for print outs of various documents in the record, (CR Doc. 203 at 1-3); a Motion for Discovery, in which he seeks leave of the Court to subpoena records in order to support his Motion and requests appointment of counsel, (CR Doc. 200 at 1-8); a Motion for Leave, in which he requests leave to file his Reply late, (CR Doc. 205); a Motion for Default Judgment, in which he moves for default judgment due, he argues, to Respondent's failure to address the allegations raised in the Motion, (CR Doc. 208); and Supplemental Authority, in which he further develops arguments made in the Reply, (CR Doc. 207). The Court will address each in turn.

         II. Standard of Review Under 28 U.S.C. § 2255

         Under 28 U.S.C. § 2255 provides that prisoners in federal custody may challenge their sentences if: (1) their sentence was imposed in violation of the United States Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise subject to collateral review. § 2255(a). Here, Petitioner claims his sentence was imposed in violation of the United States Constitution. If the Court finds that the sentence infringed Petitioner's constitutional rights and is subject to collateral review, the Court must vacate the sentence and discharge, resentence, or correct the sentence as the Court believes appropriate. § 2255(b). The Court must review the answer and any transcripts of prior proceedings in order to determine whether to hold an evidentiary hearing. Rule 8 of the Rules Governing § 2255 Proceedings for the United States District Courts. The Court may decline to hold a hearing if the motion and record “conclusively show” the movant is not entitled to relief. § 2255(b).

         III. Analysis

         a. Whether Petitioner Waived His Right to Bring His Claims

         The first issue before the Court is whether Petitioner waived his right to bring certain of his claims. Respondent concedes that Petitioner may bring his ineffective assistance of counsel claims but contends that Petitioner's other claims are waived. Petitioner's plea agreement includes a “Waiver of Appeal Rights, ” which states Petitioner “knowingly waives the right to appeal” his convictions “and any sentence, including any fine, imposed in conformity” with the plea agreement. (CR Doc. 170 at 11-12). Additionally, Petitioner “agree[d] to waive any collateral attack” to his convictions “and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ, except on the issue of defense counsel's ineffective assistance.” Id. at 12.

         A defendant's waiver of his right to collateral attack under § 2255 “is generally enforceable where the waiver is expressly stated in the plea agreement.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). When a defendant waives the right to collaterally attack his sentence in a plea agreement but later files a § 2255 motion, courts must decide: (1) whether the collateral attack falls within the scope of the waiver; (2) whether the petitioner knowingly and voluntarily waived his right to collateral review; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States. v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The Court must “strictly construe[]” the waiver's scope, and “any ambiguities . . . will be read against the Government and in favor of” the defendant's right to collateral review. Id. (citation omitted). In this case, Petitioner does not argue that he did not knowingly or ...


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