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Khan v. United States

United States District Court, D. New Mexico

May 31, 2018

ERIK BILAL KHAN, Petitioner,



         THIS MATTER is before the Court on the Chief Magistrate Judge's Proposed Findings and Recommended Disposition (the “PFRD”) (Doc. 210[1]), filed November 9, 2017; Petitioner's Objections to Magistrate's Proposed Findings and Recommended Disposition (the “Objections”) (Doc. 217), filed January 18, 2018; Respondent United States of America's Response to Defendant's Objections to The Court's Proposed Findings and Recommended Disposition (the “Response”) (Doc. 221), filed February 16, 2018; Petitioner's Reply to United States' Response to Petitioner's Objections to the PFRD (the “Reply”) (Doc. 229), filed March 29, 2018; and Petitioner's Supplement to his Objections (Doc. 233), filed April 27, 2018. This matter is also before the Court on Petitioner's Motion to Strike Document 202-1 (Doc. 213), filed December 11, 2017; Petitioner's Motion for Sanctions (Doc. 219), filed February 1, 2018; Respondent's Motion to File Response Out of Time (Doc. 220), filed February 16, 2018; Petitioner's Motion to Stay (Doc. 224), filed March 6, 2018; and Petitioner's Motion to Withdraw Motion to Stay (Doc. 230), filed March 30, 2018.

         On November 9, 2017, the Chief Magistrate Judge recommended that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Section 2255 Motion”) (Doc. 194); Petitioner's Motion for Leave to Conduct Discovery (the “Motion for Discovery”) (Doc. 200); Petitioner's Motion for Production of Court Records (the “Motion for Production”) (Doc. 203); Petitioner's Motion for Default Judgement (the “Motion for Default Judgment”) (Doc. 208), all be denied. (Doc. 210 at 19-20.) The Chief Magistrate Judge further recommended that Petitioner's Motion for Leave to File Late Reply (the “Motion for Leave”) (Doc. 205), be denied as moot, and that this case be dismissed with prejudice. (Id.) The parties were notified that written objections were due within 14 days. (Id. at 20.) Petitioner was granted an extension of time to file his objections by January 23, 2018 (Doc. 212), so Petitioner's Objections filed January 18, 2018, are timely. Following a de novo review of the record and the PFRD, the Court will: (1) overrule Petitioner's Objections; (2) deny Petitioner's Motion to Strike Document 202-1 (Doc. 213); (3) deny as moot Petitioner's Motion for Sanctions (Doc. 219), and Motion to Stay (Doc. 224); (4) grant Respondent's Motion to File Response Out of Time (Doc. 220), and Petitioner's Motion to Withdraw Motion to Stay (Doc. 230); and (5) adopt the PFRD and dismiss this case 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. (Doc. 7 at 1-2). The statutory sentencing range for receipt and distribution was 5 to 20 years, and the statutory range for possession was no more than 10 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. (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). (Doc. 26.) This charge carried a mandatory minimum 15 year sentence and a maximum 30 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. (Doc. 164 at 27.)

         On November 25, 2013, Petitioner pled guilty to all four counts in the superseding indictment. (Doc. 65). Before sentencing, however, Petitioner retained new counsel. (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. (Doc. 170.) As part of the agreement the parties stipulated to a sentence of 20 years' imprisonment. (Id. at 5.) When Petitioner was sentenced, his Sentencing Guidelines recommended sentence was 235-293 months. (Doc. 164 at 40.) 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.)

         On July 14, 2017, Petitioner filed his Section 2255 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. (Docs. 194 at 13-66; 199 at 1-77.) The Court referred this matter to Chief Magistrate Judge Garza to conduct analysis and to make findings of fact and a recommended disposition. (Doc. 197.) The Chief Magistrate Judge concluded that Petitioner's claims of prosecutorial misconduct and that the CPPA is unconstitutional are within the scope of Petitioner's plea waiver, so they are waived. (Doc. 210 at 19.) The Chief Magistrate Judge further concluded that Petitioner's claims of ineffective assistance of counsel fail, either because Petitioner was not prejudiced because he could not have received a better sentence, or because Petitioner's counsel acted objectively reasonably. (Id.) Therefore, the Chief Magistrate Judge recommended that Petitioner's Section 2255 Motion be denied. (Id.)

         II. Analysis

         A. Pending Motions

         1. Motion to Strike

         Petitioner asks the Court to strike Doc. 202-1, which is a Presentence Report (“PSR”) that Respondent attached to its response to Petitioner's Section 2255 Motion. (Doc. 213.) Petitioner contends that this PSR was the first PSR in his criminal case (as opposed to the final version, at Doc. 164), and “is not accurate, was heavily objected to in four rounds of objections, and improperly calculates Mr. Khan's guidelines.” Id. at 1. Petitioner states that this report is “reaking [sic] havoc at the prison for Mr. Khan, ” the Bureau of Prisons uses PSRs “to effectuate a prisoner's sentence and programming needs, ” and “the Bureau presumes that the newly filed PSR is the controlling PSR.” Id.

         In response, Respondent contends that motions to strike are not favored, and that Petitioner has not alleged a sufficient basis for the Court to strike the original PSR. (Doc. 215.) Respondent states that the original PSR demonstrates the “exposure that [Petitioner] was facing in his case, ” and that the PSR was filed under seal so it is not clear how it could be affecting Petitioner in prison. (Id. at 2-3.) In reply, Petitioner asks the Court to either strike the document or issue an order directing the Bureau of Prisons to disregard it, destroy any copies they have of it, and not rely on it. (Doc. 218.)

         Rule 12(f) of the Federal Rules of Civil Procedure provides that the Court may strike information from the Court's docket if it is “redundant, immaterial, impertinent, or scandalous.” Motions to strike are disfavored, and are generally denied unless the information has no possible relation or logical connection to the case. See Scherer v. U.S. Dept. of Educ., 78 F. App'x. 687, 698 (10th Cir. 2003); 5C C. Wright & A. Miller, Fed. Prac. & Proc. Civ., § 1382 (3d. ed. 2004). Here, the original PSR shows that Petitioner was facing additional allegations that were later negotiated out of the plea agreement. (Doc. 215 at 2-3.) This information is relevant to this case because Petitioner claims in part that, but for his counsel's ineffective assistance, he would have pled guilty early and received a sentence of less than 20 years. As Respondent points out, the original PSR shows what sentence Petitioner faced early in his case.

         In addition, Petitioner fails to allege with any specificity that the Bureau of Prisons is relying on the original PSR, instead of the amended PSR that was filed on the record in his criminal case prior to his plea agreement and sentencing. Petitioner's allegation of potential harm, without more, is insufficient to state a basis for striking this document, especially considering it is filed under seal so that only the Court and the parties have access to it. Based on the foregoing, the Court does not find good cause to strike the original PSR, and will deny Petitioner's Motion to Strike.

         2. Motion for Sanctions

         Next, Petitioner moves for sanctions against Respondent for its failure to ensure that Petitioner is being served with its filings. (Doc. 219.) After Petitioner filed his Motion for Sanctions, Respondent filed United States' Notice Regarding Service (Doc. 225), in which Respondent explains that Respondent initially understood that the Clerk's office was mailing Respondent's filings to Petitioner, but that Respondent later learned that it is Respondent's responsibility to mail Petitioner its filings. (Id. at 1-2.) Respondent apologized to Petitioner and the Court for its misunderstanding, explained that it mailed Petitioner its last five pleadings, and stated that it has ensured that Petitioner will receive future pleadings by certified mail. (Id. at 2.)

         On March 30, 2018, Petitioner filed a reply to his Motion for Sanctions, asking that the motion be denied based on the statements made in Respondent's Notice Regarding Service. (Doc. 232.) Based on the foregoing, and noting that the Chief Magistrate Judge has ordered Respondent to continue serving Petitioner with its pleadings by mail (Doc. 228), the Court finds that Petitioner's Motion for Sanctions shall be denied as moot.

         3. Motion to Extend Response Deadline

         In Respondent's motion to extend its response deadline, Respondent states that it inadvertently calendared its deadline to file a response to Petitioner's Objections as February 16, 2018, instead of February 6, 2018. (Doc. 220.) Respondent asks the Court to allow it to file the response outside of the February 6, 2018, deadline. (Id.) Petitioner states that he does not object to Respondent's request. (Doc. 231.) The Court shall grant the motion and will consider Respondent's Response to Petitioner's Objections, (Doc. 221.)

         4. Motion to Stay

         On March 6, 2018, Petitioner moved the Court for a 45-day stay of this case to allow him to file a brief discussing the United States Supreme Court's recent decision in Class v. United States, 138 S.Ct. 798 (2018). (Doc. 224.) Petitioner contends that this case affects the issue of whether the waiver in his plea agreement bars some of his claims. (Id.) In response, Respondent contends that Class has no impact on the claims raised in Petitioner's Section 2255 Motion because the Supreme Court in that case held that a guilty plea does not bar a defendant from challenging the constitutionality of a statute of conviction on direct appeal-not in a collateral proceeding. (Doc. 226 at 2.)

         On March 30, 2018, Petitioner filed a motion to withdraw his motion to stay, stating that he addressed Class in his reply to his Objections, so there is no more need for a stay of his case. (Doc. 230.) The Court finds that Petitioner's motion to withdraw his motion for a stay is well-taken and shall be granted, and the Court will deny the motion to stay as moot.

         B. Law ...

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