FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2099
(D.C. Nos. 2:17-CV-00744-RB &
ERIK BILAL KHAN, 2:12-CR-02901-RB-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, MORITZ, and EID, Circuit Judges.
_________________________________
After agreeing to plead guilty to four counts of child pornography in exchange for
a 20-year prison sentence, Erik Khan filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. The district court denied his motion. To appeal from that
denial, he requires a certificate of appealability (COA). See United States v. Springer,
875 F.3d 968, 972 (10th Cir. 2017) (citing 28 U.S.C. § 2253(c)(1)(B)), cert. denied,
138 S. Ct. 2002 (2018). The district court denied a COA. Mr. Khan has renewed his
application with this court. We now deny a COA and dismiss this proceeding.
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BACKGROUND
Mr. Khan initially was charged 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. He faced a statutory sentencing range of 5 to 20 years on the receipt and
distribution counts, and a maximum of 10 years on the possession count. See id.
§ 2252(b). Mr. Khan claims that when he was arraigned he told his retained attorney he
wanted to plead guilty immediately, but counsel told him he could not plead guilty at the
arraignment.
The government later offered Mr. Khan a deal in which he would plead guilty in
exchange for a 22-year sentence, but he rejected that offer. After he 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). This additional
charge carried a mandatory minimum sentence of 15 years and a maximum 30-year
sentence.
In November 2013, Mr. Khan pled guilty to all four counts charged in the
superseding indictment. As part of their amended plea agreement, Mr. Khan and the
government stipulated to a sentence of 20 years’ imprisonment, followed by lifetime
supervised release. See Fed. R. Crim. P. 11(c)(1)(C) (authorizing parties to “agree that a
specific sentence or sentencing range is the appropriate disposition of the case”). In the
plea agreement, Mr. Khan waived his right to collaterally attack his convictions and
sentence “except on the issue of defense counsel’s ineffective assistance.” R., Vol. 1 at
381 (internal quotation marks omitted).
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Mr. Khan thereafter filed his § 2255 motion. Among other claims, he argued that
his defense counsel had been ineffective (1) in interfering with his decision to enter an
“open” plea (i.e., without an agreement with the government) to the initial three charges
he faced at arraignment, and (2) by failing to adequately investigate the basis for filing a
motion to suppress the evidence against him. The district court concluded he had failed
to show prejudice from counsel’s alleged interference with his decision to plead guilty. It
further stated it had already considered and rejected Mr. Khan’s claims for suppression of
evidence in its decision denying reconsideration of his motion to suppress. It therefore
denied relief on these claims, without conducting an evidentiary hearing on them.
ANALYSIS
To obtain a COA, Mr. Khan must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has rejected a claim
on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). But when a district court has denied relief on
procedural grounds, the petitioner must show that reasonable jurists could debate both
(1) the validity of the constitutional claim and (2) the correctness of the district court’s
procedural ruling. Id.
Mr. Khan seeks a COA on three issues:
1. Was [he] deprived [of] the effective assistance of counsel where
counsel interfered with his decision of whether or not to plead guilty at
the arraignment?
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2. Was [he] deprived [of] the effective assistance of counsel where
counsel failed to investigate the law and facts surrounding a motion to
suppress?
3. Did the District Court err in failing to hold an evidentiary hearing?
COA Appl. at 4.
1. Guilty Plea
We first consider Mr. Khan’s argument that his counsel interfered with his
decision to enter an “open” guilty plea at his arraignment. Ordinarily, a petitioner
claiming ineffective assistance of counsel “must show both that his counsel’s
performance fell below an objective standard of reasonableness and that the deficient
performance prejudiced the defense.” Grant v. Royal, 886 F.3d 874, 903 (10th Cir. 2018)
(citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)) (internal quotation marks
omitted), cert. denied, 139 S. Ct. 925 (2019). But Mr. Khan argues he was not obliged to
show prejudice, because his counsel’s alleged error was not merely strategic but
interfered with his objective for the representation in his case. See McCoy v. Louisiana,
138 S. Ct. 1500, 1511 (2018). Even assuming McCoy applies retroactively to this
collateral proceeding, Mr. Khan has not made a debatable showing that its holding
applies under the facts of his case.
In McCoy, a death-penalty case, “the defendant vociferously insisted that he did
not engage in the charged acts and adamantly objected to any admission of guilt.” Id. at
1505. Notwithstanding the defendant’s insistence on his objective of asserting his
innocence, his counsel told the jury during his trial that he was guilty of murdering the
victims. Id. The Supreme Court reversed the denial of the defendant’s new-trial motion,
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holding that “it is the defendant’s prerogative, not counsel’s, to decide on the objective of
his defense: to admit guilt . . . or to maintain his innocence . . . .” Id. The Court further
explained that Strickland’s prejudice requirement did not apply, because the
constitutional violation of the defendant’s right of autonomy “was complete when the
[trial] court allowed counsel to usurp control of an issue within [the defendant’s] sole
prerogative,” which represented a “structural” error, “not subject to harmless-error
review.” Id.
In McCoy, the defendant’s disagreement with his counsel affected the object of the
representation: whether the defendant should concede guilt. No such conflict is alleged
here. Mr. Khan chose to plead guilty, his counsel worked toward that objective, and he
ultimately pled guilty. The only disagreement alleged between Mr. Khan and his counsel
involved the timing of the guilty plea. Mr. Khan fails to show that it is reasonably
debatable whether this alleged error was structural under McCoy and thus exempt from
Strickland’s prejudice requirement. Cf. United States v. Rosemond, 322 F. Supp. 3d 482,
486 (S.D.N.Y. 2018) (finding no violation of McCoy based on counsel’s concession that
the defendant directed a shooting, where both the defendant and his counsel maintained
his innocence “but disagreed about the best course to attempt to avoid conviction”). We
will therefore consider the alleged error using the Strickland test, including its prejudice
component, not McCoy.
The district court determined that Mr. Khan failed to satisfy Strickland’s prejudice
prong, for two reasons. First, if he had entered an open plea at the arraignment the
government would have been free to continue to investigate him and to prosecute him
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separately for attempted production of child pornography. Second, even if the
government did not separately charge him with attempted production, there was not a
substantial likelihood that by pleading guilty at arraignment Mr. Khan would have
received a lower sentence than the 20 years he ultimately agreed to.
The first of these rationales justifies denial of a COA. As the district court stated,
had Mr. Khan entered into an open plea, without an agreement to forgo additional
charges the government could have sought to separately indict him on the production
charge. Mr. Khan argues this possibility should be ignored when determining whether he
was prejudiced by his counsel’s alleged ineffectiveness. He contends prejudice should be
determined solely by comparing the charges for which he was originally indicted to the
charges to which he ultimately pled guilty. We disagree. The cases Mr. Khan cites
concerning prejudice, COA Appl. at 9-10, do not concern counsel’s failure to sponsor an
open plea and we do not find them persuasive on this issue. In analyzing Mr. Khan’s
ineffective-assistance claim, it would be improper to turn a blind eye to the fact that
without a binding plea agreement the government would have been free to bring
additional charges. Cf., e.g., United States v. Jones, 832 F. Supp. 2d 519, 529-30 (E.D.
Pa. 2011) (counsel was not ineffective in failing to object to additional charges the
government brought, where no formal plea agreement had been signed by the time of the
superseding indictment).
Mr. Khan also argues that it is unlikely the government would have separately
indicted him for the attempted production count if he had entered an “open” plea. His
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argument rests on speculation.1 To establish prejudice under Strickland, “[t]he likelihood
of a different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011). “Mere speculation is not sufficient” to satisfy a petitioner’s
burden. Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).
In the plea agreement, Mr. Khan admitted that the attempted production count—
unlike the other counts he had been charged with—involved communication with and
solicitation of an individual victim. The alleged likelihood that he would never have
been charged with that count had he pled guilty to the other three counts is insufficient to
debatably establish prejudice under the Strickland test. We therefore deny a COA
concerning this claim.
2. Motion to Suppress
Mr. Khan next challenges counsel’s failure to investigate the facts and law
surrounding his motion to suppress. In 2013, his counsel filed a motion to suppress all
evidence obtained as the result of a search warrant for his home. The district court held
an evidentiary hearing on the motion and denied it. Two years later, after Mr. Khan had
entered his guilty plea, his new counsel filed a motion seeking reconsideration of the
denial of his motion to suppress. The motion to reconsider included an argument that
1
Mr. Khan cites what he claims is evidence that the government would have
been willing to forgo any further charges if he pled guilty. See R., Vol. I at 240, 334-35.
But this evidence, consisting of emails from a prosecutor to Mr. Khan’s counsel,
concerns their negotiations surrounding a formal plea agreement. It does not reveal the
government’s position concerning an open plea without any plea agreement.
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previous counsel had been ineffective in failing to properly investigate the motion to
suppress.
The district court denied the motion. Citing Strickland, it found that Mr. Khan had
failed to show that his previous counsel’s handling of the motion to suppress had been
deficient or that he had suffered any prejudice. Although the district court noted that
ineffective-assistance claims should normally be brought in collateral proceedings, it
analyzed the claim under both prongs of Strickland, finding neither of them satisfied.
Having done so, at the end of its decision it returned to the theme of collateral
proceedings, stating that the facts were far from fully developed, there was insufficient
evidence to determine the trial strategy of Mr. Khan’s counsel, and for this reason the
ineffective-assistance claims would be more appropriately considered in collateral
proceedings. But when Mr. Khan accepted the district court’s invitation and raised the
issue in his § 2255 motion, the district court stated that it had already addressed the issue
in denying his motion for reconsideration. Mr. Khan argues that the district court erred
by refusing to further analyze his ineffective-assistance claim in § 2255 proceedings,
after previously stating the claim would be more appropriately addressed through those
proceedings.
Although the district court’s order denying reconsideration may have been
somewhat ambiguous, Mr. Khan fails to show that the district court’s later reliance on
that order to deny this § 2255 claim is debatable. As the district court stated in its order
denying the § 2255 motion:
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[I]n considering the motion for reconsideration, the Court considered the
merits of the arguments raised in that motion and found that Petitioner’s
counsel’s performance was not deficient and that Petitioner was not
prejudiced by counsel’s performance relating to the motion to suppress.
Specifically, the Court held that the strategies Petitioner’s counsel used in
pursuing the motion to suppress were within the range of professionally
competent assistance, and that even if the Court had found the search
warrant to be invalid, the good-faith exception would still have protected
the evidence from exclusion.
R., Vol. I at 395 (citation omitted).
Although Mr. Khan makes generalized assertions that the district court’s reasoning
was erroneous, see COA Appl. at 13-14 (decrying “a number of troubling facts”
uncovered by his new counsel and old counsel’s failure “to investigate the law and facts
surrounding the litigation”), and enumerates various arguments made in the motion for
reconsideration, id. at 12, he fails to develop an adequate argument that the district
court’s resolution of this claim was debatable. Specifically, he fails to explain why the
good-faith exception would not have permitted admission of the evidence, thereby
preventing him from showing prejudice under Strickland as to this claim. Although we
construe his pro se pleadings liberally, we will not serve as his advocate by making his
arguments for him. See Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1173 (10th Cir.
2013). He fails to show this issue warrants a COA.
3. Evidentiary Hearing
Mr. Khan also challenges the district court’s failure to provide him with an
evidentiary hearing. We review the denial of an evidentiary hearing for abuse of
discretion. United States v. Clingman, 288 F.3d 1183, 1187 n.4 (10th Cir. 2002). A
hearing was not required here because “the motion and the files and records of the case
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conclusively show that the prisoner is entitled to no relief” on his claims. 28 U.S.C.
§ 2255(b).
CONCLUSION
We deny a COA and dismiss this proceeding. We note that Mr. Khan has filed a
motion to proceed in forma pauperis (IFP). The district court previously granted him IFP
to proceed on appeal. But in its order, the district court referenced and applied provisions
of the Prison Litigation Reform Act, which does not apply to § 2255 actions. See
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). We therefore
modify the district court’s order to simply grant IFP.
Entered for the Court
Allison H. Eid
Circuit Judge
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