United States v. Khan, CR No: 2:12-cr-02901-RB-1
| Decision Date | 26 July 2017 |
| Docket Number | CV No: 17-cv-00744-RB-CG,CR No: 2:12-cr-02901-RB-1 |
| Court | U.S. District Court — District of New Mexico |
| Parties | United States of America, Plaintiff/Respondent; v. Erik Bilal Khan Defendant/Petitioner. |
Erik Khan, Pro Se, brings a motion to vacate, set aside or correct his sentence for violations of the United States Constitution. In support, Mr. Khan submits:
I. Introduction
Between 2011 and 2012, the United States Department of Homeland Security opened an investigation in the Las Cruces area regarding trafficking in child pornography. Utilizing a privately owned system, agents located an IP address that appeared to be trafficking in child pornography. The United States Department of Homeland Security then proceeded to make an arrest and perfect a prosecution against Erik Khan.
The United States' case opened on or about May 18, 2012 and continued for over four (4) years. Throughout the case, Mr. Khan suffered numerous errors from both sides of the table.
This memorandum will explore the violations of the Fifth and Sixth Amendments and challenge the statutes of conviction for vagueness and overbreadth. The Court will be appalled at the level of incompetence demonstrated throughout this case.
II. Procedural History On or about May 9, 2012 agents from the Department of Homeland Security and Las Cruces Police Department executed a state issued search warrant and arrested Erik Khan on site. Subsequently, the State of New Mexico charged Mr. Khan with various violations of sexual exploitation laws (State of NM v. Eric Khan, M-14-FR-201200382 (Las Cruces)(Exhibit A)). On or about May 17, 2012, a state grand jury returned an indictment alleging fifteen counts of sexual exploitation of a child in violation of NMSA 30-6A-3(D) (State of NM v. Eric Khan, D-307-CR-201200560 (Las Cruces District)(Exhibit B)). On or about May 21, 2012, the District Attorney dismissed that case, and the case was opened federally on or about May 18, 2012 by the filing of a criminal complaint (United States v. Erik Bilal Khan, 2:12-mj-01191-SMV-1 (D.N.M.)(Exhibit C)). The Court held a detention hearing on or about May 30, 2012 where Erik Khan was denied bail and detained, (Exhibit C at 4). On or about November 9, 2012, the United States Attorney's Office dismissed the case without prejudice (Id. at 3).
On or about November 9, 2012, the United States refiled its criminal complaint and opened a new case number with identical language as the first [Doc. 1] ("Doc." citations refer to United States v. Erik Bilal Khan, 12-cr-02901-RB-1). On or about November 13, 2012, the Court held an initial appearance hearing and set the case for a preliminary/detention hearing [Doc. 4]. On or about November 14, 2012, a federal grand jury returned an indictment alleging three (3) counts of violating child pornography trafficking/possession laws [Doc. 7]. On or about November 20, 2012 an arraignment was held where defense counsel entered a plea of not guilty [Doc. 10].
On or about December 14, 2012, the Court issued an order declaring the case complex and excluded time under the Speedy Trial Act [Doc. 15]. Between December 14, 2012 and June 4, 2013 there was no activity for this case on the Court's docket.
On or about June 3, 2013, defense counsel filed a Motion to compel the production of discovery [Doc. 21], to which the government responded [Doc. 23]. Defense counsel also filed a Motion to Suppress for violations of the Sixth Amendment right tocounsel [Doc. 22]. On or about July 17, 2013, a federal grand jury returned a superseding indictment adding an allegation of attempted production of child pornography [Doc. 26].
On or about August 1, 2013, the defense moved to suppress the fruits obtained from a search alleging violations of the Fourth Amendment [Doc. 31]. Following a hearing on both motions to suppress held on or about October 1, 2013 [Doc. 50], the Court entered an Order denying the motions [Doc. 55]. On or about November 25, 2013, Mr. Khan entered a plea of guilty to all four counts of the indictment [Doc. 66] pursuant to an agreement reached between Mr. Khan and the United States [Doc. 65].
After Mr. Khan discovered numerous errors made by Mr. Gorence and Mr. Bowles throughout their representation, new counsel was retained and entered their appearance on or about March 20, 2014 [Doc. 73-74]. New counsel moved to vacate Mr. Khan's plea under Rule 11(d)(1) as the District Court had not yet formally accepted the plea at that time [Doc. 84]. In a subsequent motion, the defense also presented that Mr. Khan's plea was unknowing and involuntary under Rule 11(d)(2)(B) [Doc. 91]. Following a hearing on the matter [Doc. 109], the Court denied Mr. Khan's motions to vacate his plea on or about July 6, 2015 [Doc. 110].
Following a flurry of litigation by defense counsel [Doc. 116-159], the United States negotiated an amended plea agreement stipulating to 240 months imprisonment with Lifetime Supervised Release [Doc. 170]. The Court and Mr. Khan accepted the terms of the Rule 11(c)(1)(C) agreement and the Court imposed the agreed upon sentence on or about June 27, 2016 [Doc. 171]. The Court entered judgement on or about July 1, 2016 [Doc. 173] and amended that judgement to reflect a prison placement recommendation on or about July 7, 2016 [Doc. 174].
Inasmuch as there will be reference throughout this Memorandum to State proceedings, Mr. Khan points the Court's attention to the procedural facts of those cases. In State of New Mexico v. Erik Khan (D-307-CR-2013-__________ (Las Cruces District)), the State alleged that Mr. Khan had inappropriate contact with a 13 year oldboy, while allegedly posing as a physician. After the release of Mr. Gorence and Mr. Bowles, new defense counsel conducted a comprehensive investigation into the State's allegations. That investigation unveiled that it was highly unlikely that the allegation was valid. Indeed, the State of New Mexico dismissed that case immediately after the defense began witness interviews.
In State of Arizona v. Erik Khan (CR2015-000944-001 (Maricopa Superior Court)), the State of Arizona alleged that Mr. Khan had inappropriate contact with a 12 year old boy while working at a residential treatment center for juvenile sex offenders between February 2001 and February 2002. Federal defense counsel, and subsequent state defense counsel, conducted a comprehensive investigation into the allegations. This investigation uncovered clear and convincing evidence that Mr. Khan did not commit any crime against the "victim" and if the "victim" was actually victimized that Mr. Khan was misidentified by police. It became evident that Mr. Khan: was not present during the dates alleged, the victim never identified Mr. Khan by name or other police identification method, the victim had motive to lie, the victim had a history of lying to his own benefit, and witness interviews showed that it was highly unlikely that any sexual assault was ever committed against any child at the residential treatment facility in question.
Be that as it may, the State of Arizona insisted on prosecuting the case and transported Mr. Khan to the State of Arizona on or about December 15, 2016. After the defense filed a motion to remand for, inter alia, failing to present exculpatory evidence to the grand jury, the State negotiated a plea of NO CONTEST to a single count of attempted molestation and the Court sentenced Mr. Khan to a term of life probation to begin after his "BOP sentence" is complete. Mr. Khan is presently engaged in post conviction litigation pursuant to Rule 32 of the Arizona Rules of Criminal Procedure.
III. Timeliness
28 USC 2255(f) imposes a "one-year period of limitation that, absent newfactual or legal developments, runs from the date which the judgement of conviction becomes final" (United States v. McGaughy, 670 F.3d 1149, 1160 n. 2 (10th Cir. 2012)). For the purposes of this case, the judgement became final when the expiration for a notice of appeal had lapsed under Rule 4 of the Federal Rules of Appellate Procedure.
The judgement in this case was filed on or about July 1, 2016 [Doc. 173]. However, the Court entered an amended judgement on or about July 7, 2016 [Doc. 174]. A review of the case law does not discuss whether the time limitations for filing a notice of appeal begins to run at the filing of the original judgement or the amended judgement. For protection sake, Mr. Khan will proceed stipulating that the original judgement controls and the expiration date to file a notice of appeal was on or about July 15, 2016 (see: United States v. Lonjose 663 F.3d 1292, 1298-99 (10th Cir. 2011)("...the time limit on a defendant's right to appeal his sentence begins to run at the moment the district court enters its judgement of conviction containing the sentence.")). The amendment did not change the judgement of conviction or the sentence - it only adjusted a recommendation to the Bureau of Prisons. Therefore, the deadline for filing a Motion to Vacate, Set Aside, or Correct a Sentence in Mr. Khan's case is on or about July 15, 2017 (1 year and 14 days following the entry of judgement).
The motion itself was placed in the institutional mailing system on or about July 10, 2017 [Doc. 194 at 13 and 68]. The Clerk received and filed the motion on or about July 14, 2017 (Id.). Pursuant to Houston v. Lack, 487 US 266, 270 (1988) and United States v. Spence, 625 Fed. App'x. 871, 874 (10th Cir. 2015)(unpublished), the motion is deemed filed when it is properly placed in the prison legal mail mailing system ("the Prison Mailbox Rule"). Thus, the motion is deemed filed on or about July 10, 2017; prior to the expiration of the limitations period.
IV. Grounds for Relief
In his motion to vacate, Mr. Khan presses three (3) grounds for relief.First, Mr. Khan presses that he was deprived his Sixth...
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