                                                                                     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         This order is not binding precedent except under the doctrines of law of the case,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).

                                             2
       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?



                                               3
       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,

                                             4
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

                                              5
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



                                              6
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.
                                             7
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:



                                              8
       [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

                                              9
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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