Khan v. United States

Full title: HASSAN KHAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court: United States District Court, S.D. New York

Date published: Aug 18, 2023

20-CV-0945 (JSR) (JW) (S.D.N.Y. Aug. 18, 2023)

Opinion

20-CV-0945 (JSR) (JW)

08-18-2023

HASSAN KHAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

[

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

REPORT & RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

In 2016, the Petitioner, Hassan Khan, pled guilty to Coercion and Enticement of a Minor to Engage in Illegal Sexual Activity in violation of 18 U.S.C. § 2422(b). Following the plea, Mr. Khan was sentenced to a term of imprisonment of seventeen years. In 2020, claiming that he received constitutionally ineffective sentencing advocacy, Mr. Khan filed this § 2255 Petition to vacate his sentence. Dkt. No. 1.

Petitioner advances six distinct but partially overlapping arguments that his former counsel failed to provide effective assistance: 1) Former counsel allegedly “transformed a ‘falling on the sword' strategy into a ‘throwing in the towel' strategy” by failing “to seek, much less develop, a counter-narrative.” 2) The trial attorney did not engage with experts during the penalty phase despite circumstances making it reasonable to do so. 3) The former attorney failed to reasonably investigate the “cultural, personal, and familial factors that explained Mr. Khan's pathway into criminal conduct, including “his adolescent experience as a transitory immigrant through Canada, and his Pakistani upbringing where girls are betrothed by their parents while in their young teens.” 4) Previous counsel did not reasonably investigate potential challenges to the Victim's claims Mr. Khan caused the entirety of her “catastrophic” psychological injuries. 5) That his prior attorney did not adequately argue that the guidelines overstated the severity of Mr. Khan's conduct. 6) Mr. Khan, while not fully asserting that he was misled, claims his trial counsel's cavalier assumption that he would receive the minimum sentence was why Mr. Greco “didn't do the work”.

But the standard for proving ineffective counsel is “intentionally difficult to meet.” See Lumiere v. United States, No. 16-CR-483 (JSR)(BM), 2022 WL 866365, at *18 (S.D.N.Y. Jan. 18, 2022). As detailed in the Supreme Court decision Strickland v. Washington, 466 U.S. 668 (1984), the test is “highly deferential” and includes “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023) citing Strickland.

Because the alleged failures in advocacy amount to no more than alternative reasonable tactical choices, I conclude that Mr. Khan did not receive ineffective counsel. Furthermore, even if these proposed strategies were deployed, Mr. Khan cannot show that there is a reasonable probability that he would have received a lighter sentence. Therefore, each argument fails to meet the “heavy burden” of demonstrating constitutionally ineffective assistance under Strickland. See United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005).

Thus, I recommend the Petition be DENIED.

I PROCEDURAL POSTURE

On January 14, 2016, Petitioner Hassan Khan pled guilty to Coercion and Enticement of a Minor to Engage in Illegal Sexual Activity in violation of 18 U.S.C. § 2422(b). On June 24, 2016, the Honorable Jed S. Rakoff of the Southern District of New York sentenced Mr. Khan to a term of imprisonment of 204 months, followed by ten years of supervised release, as well as restitution of $500,000 and a $100 special assessment fee. 15-CR-804, Dkt. No. 40 at 25. Petitioner appealed, and on June 7, 2018, the Second Circuit affirmed his conviction. United States v. Khan, 726 Fed. App'x 73, 76 (2d Cir. 2018).

On February 4, 2020, Petitioner filed this Petition to vacate his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 1. In February 2020, the case was referred to this Court. Dkt. No. 2.

II. BACKGROUND

The Underlying Offense

Petitioner was arrested on September 3, 2015, and charged with two counts of coercion and enticement of a minor to engage in illegal sexual activity, one count of sexual exploitation of a child, one count of sexual exploitation of a child outside of the United States, and one count of receipt of child pornography, all relating to conduct with a single individual. 15-CR-804,¹Dkt. No. 1.

1 Several documents are only available on the 15-CR-804 docket. All docket numbers refer to documents on the 20-CV-945 docket unless specifically noted.

Petitioner would eventually plead guilty to Count Two of that Information, using a computer and the Internet to persuade, induce, entice, and coerce the Victim, a minor to send images, videos, and live visual depictions of Victim engaging in sexual activity to Mr. Khan over the Internet in violation of 18 U.S.C. § 2422(b). 15-CR-804, Dkt. No. 19.

When deciding a claim of ineffective counsel, Courts have held that the evidence is to be construed in the light most favorable to the prosecution. See, eg., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007); Cruz v. Griffin, No. 16-CV-8998 (CS) (JCM), 2019 WL 6220806, at *1 (S.D.N.Y. Oct. 24, 2019). Thus, the following facts are deemed to be true.

The acts charged occurred during the period from October 2007 to 2013 when Petitioner, who was 20 years old at the time, met an 11-year-old girl (the “Victim”) online. 15-CR-804, Dkt. No. 57 at 4. Beginning in 2007, Mr. Khan met the Victim through an online social network and reality game for children where they interacted as virtual cartoon characters or “avatars”. 15-CR-804, Dkt. No 1. Mr. Khan and the Victim eventually exchanged contact information on additional online chat platforms. See Id. When the Victim obtained access to a webcam in 2008, she and Mr. Khan communicated visually, and Mr. Khan soon asked the Victim to model clothing for him, remove some of her clothing, and expose parts of her body for him. 15-CR-804, Dkt. No. 57 at 4-5. Initially, the Victim told Petitioner that she was 12 years old, but later in October 2009, disclosed that she was one year younger. Id. at 5. At the time, Mr. Khan was 22 years old. Id.

After years of sexually explicit chat messages and correspondence, which included live nude images of the Victim, she traveled to New York City with her family in August 2011. 15-CR-804, Dkt. No. 57 at 6, 11. Mr. Khan arranged to meet the Victim at her hotel, where he took her to a private area and kissed her. Id. The Victim was 15 years old, and Petitioner was 24 years old. Id.

In April 2012, Mr. Khan flew to the Victim's country, the United Kingdom, where he stayed for nine days, and engaged in oral and vaginal sex with the Victim on multiple occasions. Id. Later between 2012 and 2013, following unanswered emails and the Victim's attempts to block Mr. Khan, he set up several email and social media accounts under false identities to stalk, harass, and engage in psychological and verbal abuse of the Victim. 15-CR-804, Dkt. No. 57 at 7; 15-CR-804, Dkt. No. 33 at 4.

The Charges

The Government filed the Information on November 18, 2015, charging Mr. Khan with five counts. 15-CR-804, Dkt. No. 19. Mr. Khan faced mandatory minimum sentences of 15 years of imprisonment on each of Counts Three and Four, 10 years of imprisonment on each of Counts One and Two, and five years of imprisonment on Count Five. Id.

The Reverse Proffer

Mr. Greco, Mr. Khan, and his family attended a reverse proffer with Alexander Rossmiller, the assigned U.S. Attorney for the Government. Dkt. No. 6 at 1, ¶3. Mr. Greco and Mr. Richard Langweber reviewed the discovery with Mr. Khan and his family, who agreed that the evidence was compelling and that “trial was likely a losing proposition.” Dkt. No. 48 at 2. Petitioner's former counsel says he consulted with Mr. Khan and his family, who supported the posture of persuading the Government to remove the 15-year mandatory minimum and 10-year mandatory minimum counts on the indictment. Dkt. No. 6 at 1, ¶4.

Assessment by Dr. Krueger

In October 2015, a psycho-sexual assessment was conducted by Dr. Richard Krueger, M.D. “to produce a report that could be submitted to the.United States Attorney's Office in the Southern District of New York as part of a plea bargaining effort.” 15-CR-804, Dkt. No. 110-3, ¶ 3. According to Dr. Krueger, “the primary focus of the report was an assessment of psychiatric diagnoses and risk assessment.” 15-CR-804, Dkt. No. 110-3, ¶ 4. Dr. Krueger found that Mr. Khan had a low risk of re-offending and would be responsive to sex offender treatment. Dkt. No. 47 at 1.

Preparing the Mitigation Submission

Petitioner's former attorney submitted a mitigation packet to the Government. Dkt. No. 47 at ¶ 3. The mitigation packet relied, in part, on the assessment from Dr. Kreuger that Mr. Khan presented a low risk of recidivism. 41-3 at 1; Dkt. No. 45 at 37. Based on the mitigation packet, the government removed the 15-year mandatory minimum and maintained the 10-year count. Dkt. No. 47. Counsel met with Mr. Khan to review the high Stipulated Guidelines Range and discuss his options to elect to go to trial or refuse a plea deal. Id. at ¶ 6. Mr. Khan ultimately decided to accept the plea offer. Id.

Mr. Greco, Petitioner's former attorney, says he informed Mr. Khan, “on multiple occasions,” of his rights and the consequences of waiving those rights if he were to plead guilty. Dkt. No. 54 at ¶ 5.

The Plea Proceedings

On January 14, 2016, Petitioner and his counsel appeared before Judge Rakoff to withdraw his previous plea of not guilty and enter a plea of guilty to Count Two of the Information pursuant to a plea agreement with the Government. 15-CR-804, Dkt. No. 57 at 8. Under Count Two of the Information, Petitioner pled guilty to violating 28 U.S.C. § 2422(b). 15-CR-804 at Dkt. No. 19.

In the Plea Agreement, based on a total offense level of 40 and a Criminal History Category of I under the United States Sentencing Guidelines (the "Guidelines"), the Parties agreed that the applicable sentencing Guidelines range was 292 to 365 months imprisonment (the "Stipulated Guidelines Range") or 24 to 30 years. Dkt. No. 43 at 2.

During the plea colloquy, Mr. Khan acknowledged that pursuant to the plea agreement, he was giving up his right to appeal his sentence as long as Judge Rakoff sentenced him to 365 months or less. 15-CR-804, Dkt. No. 22 at 10:9-11.

Towards the end of the plea colloquy, Mr. Khan allocuted that from 2008 to 2013, he used the Internet to meet, befriend, and engage in a sexual relationship with the Victim, who Mr. Khan learned “was under the age of 18.” 15-CR-804, Dkt. No. 22 at 11:20-25. When the Victim was 15 years old and Mr. Khan was 24, he visited the Victim in England and had sex with her. Id. at 11-12 (“I began a friendship with her that eventually became sexualized in nature.”).

After the plea colloquy and allocution, the Court found that the Petitioner was fully competent to enter an informed plea and understood his rights and the terms of the plea agreement. 15-CR-804, Dkt. No. 22 at 4:17-18 and 9:17-18.

Mr. Khan was then remanded to the custody of the U.S. Marshal. 15-CR-804, Dkt. No. 21.

The Presentence Report and Dr. Must's Assessment

After Mr. Khan pled guilty, the Court informed him that the Probation Department would prepare a presentence report (“PSR”) to aid in determining his sentence. 15-CR-804, Dkt. No. 22, 14:1-16. Mr. Khan was made aware that he and his counsel would have an opportunity to review and “offer suggestions, corrections, and additions” to the draft report before its final submission. Id. 14:18-25.

In response to the Probation Department's request to conduct a psychosexual evaluation of Mr. Khan, on February 26, 2016, Judge Rakoff sua sponte held a hearing to examine the clinical psychologist the Probation Department sought to use, Dr. Shoshanna Must. 15-CR-804, Dkt. No. 52 at 6, ¶ 21. Judge Rakoff explained that he found such reports to be helpful, “[p]sychologists and psychiatrists are often extraordinarily good at diagnosis,” but he also expressed skepticism about the reliability of predictions of reoffending. Dkt. No. 52 at 8, ¶ 31. (“What I think is more problematic.is the predictive qualities [of the tests].”).

After the February hearing, Judge Rakoff authorized payment for Dr. Must to conduct an evaluation of Mr. Khan. Dkt. No. 52 at 8, ¶ 32.

Based upon Dr. Must's evaluation, the Probation Office prepared a PSR, with a Guidelines calculation that reflected the range in the Plea Agreement. 15-CR-804, Dkt. No. 27. Mr. Khan did not raise objections to the draft PSR, which included a factual recitation of the offenses. Id.

Psychological Assessment by Dr. Janoson

Prior to sentencing, Petitioner's former attorney also consulted with Marc Janoson, Ph.D., as an additional expert for mitigation purposes. Dkt. No. 47 at 2. Dr. Janoson later met with Mr. Khan while he was incarcerated. Id. at 2. Dr. Janoson recommended that Mr. Greco “not proceed with a written report as it would not be favorable...” Dkt. No. 47 at 2. Mr. Greco claims that with input from the Khan family, he and Mr. Khan decided to not proceed with the report or mention Dr. Janoson in the sentencing memorandum. Id.at 6.

The Preparation for Mr. Khan's Sentencing.

In preliminary and subsequent discussions to Mr. Khan's guilty plea, Mr. Greco consulted with Dr. Krueger, Mr. Khan, and other attorneys to explore various defensive theories. Dkt. No. 54 at 4. Mr. Greco says he considered the stress of medical school, Mr. Khan's background as an immigrant, emigrating from Pakistan to Canada at age 9 and later to the U.S. at age 15, his cultural identity, and youth at the time of the offense as potential justifications for Mr. Khan's actions. Id.

According to Mr. Greco, Mr. Khan sought to explain that in Pakistan, his behavior “would not have been nearly as reprehensible” as in America. Id. However, Mr. Greco says he did not find it likely that cultural beliefs related to sex would have impacted Mr. Khan “at the tender age of 8.” Dkt. No. 54 at 5.

Mr. Greco says Mr. Khan presented an alternative in which the Victim was “partly culpable” and a “willing participant” due to mental health issues. Dkt. No. 54 at 5.

Yet Mr. Greco says he concluded, “in light of Mr. Khan's background as a first-time offender and doctor, facing potential denaturalization and deportation,” that accepting responsibility and adopting a strategy based on “contrition and remorse” would be Mr. Khan's “best chance.” Dkt. No. 54 at 6. Mr. Greco claims he received “Mr. Khan's blessing” to pursue a contrition strategy and believed that it would appeal to Judge Rakoff. Id. at 4-6.

Before the sentencing hearing, Petitioner's former counsel submitted “almost a couple dozen” letters from Mr. Khan's friends, family, and colleagues, including separate letters from each of Mr. Khan's six sisters and both of his parents. 15-CR-804, Dkt. No. 40 at 144:4-11. In addition to nearly 20 letters attesting to Mr. Khan's character, Mr. Greco submitted a professionally-produced mitigation video, and a seven-page sentencing argument in support of Petitioner. Dkt. No. 47 at 2-3.

In the letter, Mr. Greco emphasized the collateral consequences of the conviction, Mr. Khan's remorse, and that in the evaluations done by Dr. Krueger and Dr. Must “neither of them believes he is a future danger to anyone.” Dkt. No. 31 at 7 (“He is beating himself up for ruining his life and causing the mental pain and suffering that he has undeniably caused to the victim.”).

The Sentencing Proceedings

On June 27, 2016, Mr. Khan appeared before Judge Rakoff for his sentencing proceeding. 15-CR-804, Dkt. No. 36. Judge Rakoff adopted the findings in the PSR, which considered the 10-year mandatory minimum and recommended a 15-year sentence. 15-CR-804, Dkt. No. 40. On the other hand, Mr. Greco argued for 10 years. Id. The Government requested “substantially more,” but “did not oppose a nonguidelines sentence.” Id.

Judge Rakoff expressed his “appreciation to counsel for both sides” for their numerous submissions. 15-CR-804, Dkt. No. 40 at 3:6-7. Judge Rakoff highlighted that “it was a very fine submission” and noted his appreciation “for the excellent and at times touching letters that I received on the Defendant's behalf.” Id. 12:6-9. Mr. Greco reiterated, and Judge Rakoff concluded, that based on the reports from Dr. Krueger, Mr. Khan had a low risk of recidivism. Id. 13:11-25. Mr. Rossmiller stated that “defense counsel's submission was very fair and well put” and that letters from Mr. Khan's family and friends assisted the Government's sentencing evaluation. Id. 17:2-25. Mr. Rossmiller acknowledged that it was atypical for the Government to submit a below guidelines sentence. Id. Yet, the Government disagreed that a minimum sentence was appropriate due to Mr. Khan's “lack of remorse” and “lack of admission”. 15-CR-804, Dkt. No. 40 at 20.

Judge Rakoff acknowledged Mr. Khan's failure to fully comprehend the “enormity of his crime.” 15-CR-804, Dkt. No. 40 at 25:9-10. He then balanced relevant factors and determined that a sentence of 17 years was appropriate. Id.

Appeal to the Second Circuit

Petitioner timely appealed his conviction and sentence. United States v. Khan, 726 Fed.Appx. 73 (2d Cir. 2018). The Second Circuit affirmed the conviction and sentence but remanded the case to modify the schedule of the restitution payment. Id. at 76.

The § 2255 Petition

On September 5, 2019, Mr. Khan, represented by Jane Anne Murray, moved to vacate his sentence pursuant to 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel. Khan v. United States, No. 15-CR-8041 (JSR), 2020 WL 5982886 (S.D.N.Y. Oct. 8, 2020) (Dkt. No. 1). Mr. Khan argued that he was “severely prejudiced” by his former counsel's constitutionally ineffective representation. 15-CR-804, Dkt No. 53 at 4. Specifically, Petitioner claims that counsel provided ineffective sentencing advocacy. Dkt. No. 41 at 2.

On February 6, 2020, the Honorable Kevin Nathaniel Fox, U.S.M.J. was referred the case. Dkt. No. 2.

The Evidentiary Hearing

Magistrate Judge Fox held an evidentiary hearing on July 19, 2021. Dkt. No. 37.

Three witnesses testified: Jeffrey Greco, former counsel to Petitioner at sentencing, Richard Langweber, a former associate working for Mr. Greco, and Mahpara Khan, Petitioner's mother, whom the Government elected not to crossexamine. Dkt. No. 41 at 2.

Petitioner's new attorney, Ms. Murray, cross-examined Mr. Greco. Dkt. No. 45 at 93. According to Petitioner, Mr. Greco's submissions failed to account for the interplay of Mr. Khan's cultural, religious, and immigrant background on his sexual maturation process. Dkt. No. 41 at 13. Petitioner's counsel questioned Mr. Greco as to why he failed to follow up with Dr. Krueger after the hearing on Dr. Shoshanna Must, the Government's expert. Dkt. No. 41 at 11.

Mr. Greco explained that after he informed Dr. Krueger about the hearing, they discussed a possible additional evaluation of Mr. Khan to supplement the report. Dkt. No. 45 at 25:2-13. But Mr. Greco admitted that he did not obtain an updated report from Dr. Krueger, instead he only submitted the report from October 2015. 15-CR-804, Dkt. No. 53 at 27:1-6.

Petitioner contends that all of the discussions Mr. Greco had with Dr. Krueger were before, not after, Mr. Khan's guilty plea. Dkt. No. 41 at 11-12.

In addition to retaining Dr. Krueger, Mr. Greco retained Dr. Janoson to explore other mitigating factors including Mr. Khan's upbringing and psyche. Dkt. No. 45 at 45:11-25; 68:9-11. Dr. Janoson ultimately stated that Mr. Khan “repeatedly was arrogant,” viewed the victim as a willing participant, downplayed their age gap, and continued to blame the victim “as to why he was in this situation.” Id. at 68-69. Thus, Mr. Greco agreed with Dr. Janoson that they should not proceed with a report. Id. at 49.

Through repetitive questioning, Ms. Murray sought to illustrate that Mr. Greco failed to conduct due diligence on Dr. Janoson. Dkt. No. 45 at 46-54.

Petitioner challenged Mr. Greco's decision to reject the argument that the Victim's psychological issues existed prior to and independent of Mr. Khan's conduct at sentencing. Dkt. No. 45 at 118:15-25. Mr. Greco asserted that this was discussed during potential sentencing mitigation arguments with Mr. Khan, but as a strategic posture, Mr. Greco declined the argument to avoid the risk of “inflaming the sentencing court” by deflecting full responsibility. Id. 119:14-21. Furthermore, Mr. Greco claimed that because Mr. Khan stated he was not a practicing Muslim, Mr. Greco did not consult with an expert on Islam or the childhood development of Muslim children. Id. 129:1-21.

Oral Argument

On February 1, 2022, the case was redesignated from Judge Fox to this Court.

On June 26, 2023, the Court heard oral argument on the merits of the Petition. Dkt. No. 66.

III. LEGAL STANDARD

The Sixth Amendment right to counsel is “the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis added). This right to effective assistance extends to sentencing. Mempa v. Rhay, 389 U.S. 128 (1967). There is a “two-prong test for ineffective assistance of counsel.outlined by the Supreme Court in Strickland.” Lumiere v. United States, No. 16-CR-483 (JSR), 2022 WL 861832, at *1 (S.D.N.Y. Mar. 23, 2022). To qualify for relief based on ineffective assistance of counsel, “a movant must prove that (1) counsel's performance was deficient, and (2) there was prejudice resulting from that deficient performance.” Genovese v. United States, No. 18-CR-183 (JMF), 2023 WL 2185699, at *1 (S.D.N.Y. Feb. 23, 2023) citing Puglisi v. United States, 586 F.3d 209, 215 (2d Cir. 2009); see also Massaro v. United States, 538 U.S. 500, 501 (2003) (“[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.”).

To prevail on the first prong, Petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Beniquez v. Johnson, No. 21-CV-1467 (PAE), 2023 WL 3948738, at *16 (S.D.N.Y. June 12, 2023) citing Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008).

As there are “countless ways to provide effective assistance in any given case,” even the best criminal defense attorneys, “would not defend a particular client in the same way.” See Strickland, 466 U.S. at 689-90. Moreover, following a conviction, adverse sentence, or unsuccessful defense, “it is far too tempting for a defendant” to doubt counsel's assistance. Carmichael v. Chappius, 811 Fed.Appx. 41, 44 (2d Cir. 2020).

For these reasons, in analyzing the first step of the Strickland test, the standard of review is highly deferential and includes “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023) citing Strickland v. Washington, 466 U.S. 668 (1984). “This presumption is overcome only if counsel failed to act reasonably considering all of the circumstances.” Id. citing United States v. Rosemond, 958 F.3d 111, 121 (2d Cir. 2020).

In evaluating counsel's effectiveness, “courts must assess the case from the viewpoint of the attorney at the time of the challenged conduct or omission.” See Cortez v. Griffin, No. 18-CV-766 (PAE)(JLC), 2023 WL 3266926, at *16-17 (S.D.N.Y. May 5, 2023) citing Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993). Rather than “strictly scrutinizing an attorney's every decision, courts must focus on whether counsel's behavior was so unreasonable as to represent a breakdown in the adversarial process that our system counts on to produce just results.” Gonzalez-Alvarez v. Eckert, No. 17-CV-9773(ALC)(JLC), 2019 WL 2274596, at *9 (S.D.N.Y. May 29, 2019); Santiago v. United States, 563 Fed.Appx. 30 (2d Cir. 2014).

Relevant here, “counsel has a duty to make reasonable investigations, and a decision not to investigate will be reasonable only to the extent that reasonable professional judgments support the limitations on investigation.” Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). In assessing the reasonableness of an attorney's investigation, however, a court must consider “not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003).

One guidepost in determining what is reasonable is the American Bar Association's Professional Standards. Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005)(“Norms of practice, reflected in national standards like the American Bar Association (ABA) Standards for Criminal Justice, are useful guides for evaluating reasonableness.”).

ABA Standard 4-8.3(e) says "Defense counsel should independently investigate the facts relevant to sentencing." ABA Standards for Criminal Justice, 4-8.3 (4^th ed. 2017). Furthermore, 4-8.3(a) states that “defense counsel should consider potential issues that might affect sentencing. Defense counsel should become familiar with the client's background...Defense counsel should also consider whether consultation with an expert specializing in.sentencing issues is appropriate.” Id.

Still, “strategic choices made by counsel after thorough investigation are virtually unchallengeable.” See Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005).

Next, under the second prong of the Strickland test, the “movant must establish that his counsel's errors resulted in actual prejudice.” United States v. Barbee, No. 20 CR. 403 (KPF), 2023 WL 2388738, at *4 (S.D.N.Y. Mar. 6, 2023). Proving prejudice under Strickland is a “heavy burden”. United States v. Marley, No. 16-CR-374 (VEC), 2022 WL 1210844, at *4 (S.D.N.Y. Apr. 25, 2022) citing United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005) (citation omitted).

A movant satisfies this second prong only by proving that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” United States v. Barbee, No. 20 CR. 403 (KPF), 2023 WL 2388738, at *4 (S.D.N.Y. Mar. 6, 2023); see also United States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018). This standard requires that the movant show that “the likelihood of a different result was substantial, not just conceivable.” Genovese v. United States, No. 18-CR-183 (JMF), 2023 WL 2185699, at *1 (S.D.N.Y. Feb. 23, 2023) citing Harrington v. Richter, 562 U.S. 86, 112 (2011).

In certain Sixth Amendment contexts, “prejudice is presumed.” Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir. 1992). Courts have found such per se violations in “two limited circumstances: where, unknown to the defendant, his or her counsel was, at the time of trial (1) not duly licensed to practice law.or (2) implicated in the defendant's crimes.” Id.

Regardless of the facts presented, “application of the per se rule must be justified under one or both of these rationales.” Bellamy v. Cogdell, 974 F.2d 302, 306-07 (2d Cir. 1992); Weston v. Capra, 18-CV-05770 (PMH)(JCM), 2022 WL 1811161, at *19 (S.D.N.Y. Apr. 13, 2022)(“the Second Circuit has applied a per se ineffectiveness rule in only two situations.”); see also Martich v. Smith, No. 08-CV-6277 (SAS), 2009 WL 2043894 (S.D.N.Y. July 14, 2009).²

2 Petitioner claims that “Mr. Greco's failure to see the imperative of mitigation, his failure to mitigate, his failure to consult appropriate experts, and his failure to challenge through discovery and litigation the government's position at sentencing on damage causation, individually and cumulatively, is per se ineffectiveness. If not per se ineffectiveness, it most assuredly prejudiced Mr. Khan at sentencing.” Dkt. No. 41 at 3. Here, there is no claim that Mr. Greco had a conflict of interest or was not a licensed attorney. Thus, the second prong of the Strickland test must also be met for Petitioner to prevail.

Finally, courts have flexibility in determining a claim of ineffective assistance of counsel. Carmichael v. Chappius, 811 Fed.Appx. 41 (2d Cir. 2020). A court is not required to address Strickland's elements in any particular order. United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023). If the movant does not successfully establish either the performance prong or the prejudice prong, the entire ineffective assistance claim fails. Id.

IV. DISCUSSION

Petitioner submits six distinct but slightly overlapping arguments that he received ineffective assistance. Each argument fails to establish either ineffective assistance or prejudice. The Court will address each in turn below.

1. Former Counsel's Alleged Failure to Develop a Mitigation Strategy

Petitioner contends that his former counsel failed “to sit down and get to know his client,” failed to seek out mitigating facts, “egregiously stated that there was no explanation³for his client's conduct,” and adopted a “foolhardy sentencing strategy of simply throwing himself at the mercy of the Court.he viewed explanation and contextualization as simply making excuses.” Dkt. No. 66 at 6. Thus, according to Mr. Khan, the previous counsel “transformed a ‘falling on the sword' strategy into a ‘throwing in the towel' strategy” and “failed to seek, much less develop, a counter-narrative.” Dkt. No. 41 at 21 and 3; 15-CR-804, Dkt. No. 53 at 4.

3 The Government contends that trial counsel intended this to mean, “there is no explanation for the client's conduct that would satisfy the Court.” Dkt. No. 66 at 31.

Essentially, Petitioner now contends his former attorney adopted a foolish strategy that overemphasized contrition at the expense of effective explanation.

But as early as mid-May 2016, it was obvious that the Government would argue that Mr. Khan had not fully accepted responsibility for his crimes. Upon release of the PSR in May, when the probation department recommended 15 years “given the nature of the crime and the Defendant's inability to accept responsibility,” any reasonable lawyer would conclude that a key debate during sentencing would be whether Mr. Khan fully accepted responsibility and fully appreciated the harm of his actions. 15-CR-804, Dkt. No. 27 at 30.

Indeed, while Petitioner qualified for the acceptance-of-responsibility reduction under the Guidelines, in their submission and at the hearing, the Government pressed the argument that Mr. Khan was not remorseful. See 15-CR-804, Dkt. No. 40 at 21 (“.defendants who are not able to express remorse, courts have been concerned about their recidivism.”); Dkt. No. 33 at 9 (“even after the Defendant pled guilty in this case, he continued to minimize and dissemble regarding his interactions with the Victim.”). During the sentencing conference, the Government sought to “emphasize.how little the Defendant seems to, so far, accept or necessarily understand his role here.” 15-CR-804, Dkt. No. 40 at 18. At another point in the hearing, the Government again returned to that theme, arguing, “the Government's concern is the Defendant's consistent and continual lack of understanding, lack of remorse, and lack of admission.” 15-CR-804, Dkt. No. 40 at 20.

Therefore, it seems objectively reasonable for Mr. Khan's former counsel to have focused his submission and sentencing hearing arguments on collateral consequences, the low likelihood of recidivism, and his client's acceptance of responsibility. Under the circumstances, this “fall on the sword” strategy was a reasonable response to blunt one of the Government's key arguments.

Petitioner's former counsel submitted nearly 20 letters from family members as well as a professionally produced mitigation video,⁴ which according to the Government, “collectively highlight[ed] the vital role he played in his family, his positive relationships with his friends, and his contributions to his community.” Dkt. No. 43 at 9.

4 At oral argument, Petitioner's counsel challenged the effectiveness of the video: “I do want to say, with respect to the sentencing video, Your Honor, that just doing a video isn't enough. The video needs to be in some way related to -- you know, related to a position at sentencing. And, here, all it did was sort of, in a way, underline and present for the judge this is somebody of enormous privilege and with a beautiful family, supportive family, and it just underlined the Jekyll-and-Hyde argument that he ended up planting in the Judge's head.” Dkt. No. 66 at 26.

Petitioner's former counsel also submitted his own seven-page mitigation letter. 15-CR-804, Dkt. No. 31. During the sentencing hearing, the prior attorney highlighted the collateral consequences of the conviction. 15-CR-804, Dkt. No. 31 at 6 (“Hassan will have his license revoked by the medical board”). He also provided a possible explanation for Mr. Khan's conduct. 15-CR-804, Dkt. No. 31 at 4 (“Hassan was lost and actually believed he was in love with the Victim”). 15-CR-804, Dkt. No. 31 at 4. He noted Mr. Khan's youth (“he was young”) and inexperience. 15-CR-804, Dkt. No. 31 at 3 (“Hassan was socially and sexually inept.”). He attempted to distinguish Mr. Khan from “the real online predators out there.” 15-CR-804, Dkt. No. 31 at 4. (“it is not brought up to understate the severity of the case.I bring it up to point out that there is another facet to this sad story, one that is rooted in actual feelings.”). Furthermore, the former counsel also noted the low likelihood of recidivism. 15-CR-804, Dkt. No. 31 at 7 (“neither [expert] believes he is a future danger to anyone.”). Finally, he emphasized his client's contrition. 15-CR-804, Dkt. No. 31 at 6 (“he is beating himself up for ruining his life and causing the mental pain and suffering that he undeniably caused to the Victim and her parents. He wishes he could take it all back, but he knows he cannot.”).

At oral argument, Petitioner contended that “the obligation of Greco was to come up with an explanation for his client's conduct.mitigation is essentially this concept of explaining the client's conduct.” Dkt. No. 66 at 10.

While the Government maintains that "it is simply not the standard" that defense attorneys have an obligation to provide an explanation for their client's conduct, the Government "certainly is not arguing that no explanation should be provided by defense counsel.in fact, we're arguing that he did make those arguments." Dkt. No. 66 at 37. The Government contends, “in particular he talked about, among other things, Mr. Khan's.stunted development.about how Mr. Khan was, in his mind, truly in love with the Victim. There were, in fact, explanations.” Dkt. No. 66 at 36.

Therefore, applying both the “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023) citing Strickland v. Washington, 466 U.S. 668 (1984), and analyzing the strategic choice “from the viewpoint of the attorney at the time of the challenged conduct or omission,” Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993), the Court cannot conclude that “counsel's behavior was so unreasonable as to represent a ‘breakdown in the adversarial process.” Santiago v. United States, 563 Fed.Appx. 30 (2d Cir. 2014).

Thus, it was not ineffective assistance of counsel for Petitioner's prior attorney to have adopted a strategy of focusing Judge Rakoffs attention on collateral consequences, the low likelihood of recidivism, and his client's acceptance of responsibility.

Even if the strategy were deemed to not be objectively reasonable, Petitioner certainly does not meet the “heavy burden” of demonstrating prejudice. United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005).

To the contrary, the former counsel's strategy appears successful. At the sentencing hearing, Judge Rakoff labeled it, “a very fine submission” and expressed his “appreciation for the excellent and at times very touching letters.” 15-CR-804, Dkt. No. 40 at 12.

Judge Rakoff did say he “totally agree[s] with [the Government] that [Mr. Khan] has not really come to terms in the way.I would have liked with the enormity of his crime.” 15-CR-804, Dkt. No. 40 at 21. But crucially, Judge Rakoff agreed with several of the Defense's arguments that “there's no indication here of likely recidivism.” 15-CR-804, Dkt. No. 40 at 13. Further, Judge Rakoff recognized Mr. Khan's conduct reflected “the mental state of a young man with all the impulsivity and, if you will, lack of neurological balance that is not untypical of young men.” 15-CR-804, Dkt. No. 40 at 24.

While Judge Rakoff noted the “need to punish utterly despicable conduct” he adopted the Defense's framing of Mr. Khan's youth as a key mitigating factor, explaining that “the other side of the coin..is this young man with so much to offer society, so much to offer the future.” 15-CR-804, Dkt. No. 40 at 25.

As a result, despite a Guideline-recommended sentence of 292-365 months, Judge Rakoff sentenced Mr. Khan to 204 months and 10 years of supervised release. While 17 years is a punishing sentence, the Court cannot conclude that with a different strategy, “there is a reasonable probability that.the result of the proceeding would have been different.” United States v. Barbee, No. 20-CR-403 (KPF), 2023 WL 2388738, at *4 (S.D.N.Y. Mar. 6, 2023); see also United States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020).

Not only is it unclear whether Mr. Khan would have received a better sentence if his former attorney did not adopt the “fall on the sword” strategy, but it is also entirely possible that without focusing Judge Rakoffs attention on Mr. Khan's youth, the collateral consequences of the conviction, and Mr. Khan's positive contributions to his family, the sentence could have been even worse. Thus, Mr. Khan cannot show prejudice that meets the “heavy burden” under Strickland. United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005).

2. Limited Expert Consultation

Petitioner also argues that his trial attorney did not adequately engage with experts during the penalty phase, despite circumstances making it reasonable to do so. Dkt. No. 41 at 10 and 15.

Consultation with Dr. Krueger

In October 2015, Petitioner's prior attorney “retained Dr. Richard Krueger to conduct a pre-plea psychosexual evaluation for the primary purpose of submitting this report (“The Krueger Report”) to a committee at the U.S. Attorney's Office as part of a plea-bargaining effort.” Dkt. No. 41 at 11. The Krueger Report and, as acknowledged by the prior attorney, any sentencing-related consultation with Dr. Krueger, all took place “prior to the receipt of any plea agreement, prior to the plea, the presentence interview, the Shoshanna Must interview, the issuance of the Shoshanna Must Report and the issuance of the Presentence Report.” Dkt. No. 41 at 12.

Thus, Petitioner argues that any consultation with Krueger was premature. Dkt. No. 41 at 12 citing Wiggins v. Smith, 539 U.S. 510, 525-529 (2003) (limiting scope of investigation into potential mitigation was not entitled to deference because it was made at an unreasonable stage, rendering an informed decision impossible) and Williams v. Taylor, 529 U.S. 362, 390 (2000) (failing to uncover and present extensive mitigating evidence could not be justified on decision to focus on other defense because that decision was made prematurely, without the benefit of a thorough investigation).

Consultation with Dr. Janoson

The former attorney consulted with another expert as well: Dr. Janoson. But, as Petitioner emphasizes, this consultation did not occur until “just weeks before sentencing, and two weeks before the due date of his sentencing memorandum.” Dkt. No. 41 at 13.

Petitioner argues that Dr. Janoson is “an expert that no lawyer would present “with a straight face” in the Southern District of New York or at the very least, not before Judge Rakoff.” Dkt. No. 41 at 14. Petitioner provided numerous decisions that appear to discount expert opinions from Dr. Janoson. See People v. Gracia, 897 N.Y.S.2d 671, 2009 WL 2340689, *5, n.7 (Sup Ct., Bronx County, June 29, 2009) (Sonberg, J.); United States v. Robertson, 2015 WL 520220, *7 (E.D.N.Y., February 9, 2015) (Matsumoto, J); Alcantara v. Artus, 2014 WL 415954, *5 (E.D.N.Y. February 4, 2014) (Gleeson, J.) (reviewing Judge Tomei's decision in a habeas proceeding and concluding “there can be little dispute that Dr. Janoson, the defense expert who testified about Alcantara's competency.did little to help Alcantara's case. Although Janoson stated that he had testified in at least thirty similar proceedings before.The court found him misleading and not credible, which was part of the reason his testimony and report were discounted.”).

Most relevant, Petitioner argued that Dr. Janoson was “excoriated in 2014 in a published decision from Judge Rakoff, Mr. Khan's sentencing judge.” Dkt. No. 41 at 13 citing United States v. Shenghur, 734 F.Supp.2d 552, 554-57 (S.D.N.Y. 2010) (describing Dr. Janoson in a competency hearing as “less persuasive,” “less compelling' and “less than objective,” and that his analysis was infused with bias and adding in a footnote: “Anyone who takes issue with Dr. Janoson appears destined to feel his wrath...”).

However, as explained by the former attorney in his affidavit, “Dr. Janoson met with and interviewed Mr. Khan while he was incarcerated, Dr. Janoson subsequently contacted us via telephone and advised us that the interview did not go well. He further advised that we not proceed further with a written report as it would not be a favorable report for Mr. Khan.” 15-CR-804, Dkt. No. 102-1 at 2. According to an associate working for the former attorney, Dr. Janoson⁵“concluded that Mr. Khan was consistently minimizing his conduct.” 15-CR-804, Dkt. No. 102-2 at 9. Petitioner claims, however, that “Dr. Janoson had other reasons for not submitting any report to Judge Rakoff in this case.more likely because he knew that any report he would submit to Judge Rakoff would likely be viewed with disdain.” Dkt. No. 41 at 15.

5 Referring to Dr. Janoson, Richard Langweber wrote in his affidavit, "I do not remember this individual's name, but I do have a clear and specific memory of retaining this person, and I also recall their specific findings.” 15-CR-804, Dkt. No. 102-2 at 9.

Petitioner Argues Additional Consultation was Necessary

In sum, Petitioner argues that his former attorney, “drafted and submitted a sentencing submission without the benefit of expert consultation during the post plea/pre-sentence stage.” Dkt. No. 41 at 15.

Petitioner contends that “consultation with a respectable expert was especially indicated here for three reasons.” Dkt. No. 41 at 15. First, in advance of sentencing, Judge Rakoff said that he prefers to hear from psychologists and psychiatrists, that “their years of clinical experience is very useful to me as a sentencing judge; I find that very helpful.” Dkt. No. 66 at 11. Second, the Petitioner argues the report of the Government's expert, Dr. Shoshanna Must, “contrary to Mr. Greco's belief, was deeply critical of Mr. Khan, including finding that Mr. Khan was at a moderate to low risk of offending, that Mr. Khan was “rigid” and “inflexible” and “may not be open to psychological self-evaluation, that he still has an interest in adolescents, and repeatedly stated that Mr. Khan was “minimizing” his conduct.” Dkt. No. 41 at 15. Third, according to Petitioner, “the necessity of consultation was all the more necessary here given Greco's fundamental ignorance of all the social, cultural and psychological issues at play in this complex case.” Dkt. No. 41 at 15.

Applying the ABA Standards

As mentioned above, one guidepost in the determination of what amounts to effective representation is the American Bar Association's Professional Standards. Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005).

ABA Standard 4-8.3(a) states that “Defense counsel should also consider whether consultation with an expert specializing in.sentencing issues is appropriate.” ABA Standards for Criminal Justice, 4-8.3 (4^th ed. 2017)(emphasis added).

Nevertheless, “there is no per se rule that requires trial attorneys to seek out an expert.” Gersten v. Senkowski, 426 F.3d 588, 609 (2d Cir. 2005); Harrington v. Richter, 562 U.S. 86, 112 (2011)(“Here it would be well within the bounds of a reasonable judicial determination.to conclude that defense counsel could follow a strategy that did not require the use of experts ....”); Adams v. Keyser, No. 16-CV-129(GBD)(AJP), 2018 WL 2089337, at *7 (S.D.N.Y. May 3, 2018)(“it is well settled that the. tactical decision.cannot form the basis of an ineffective assistance of counsel claim, especially where, as here, counsel opted for a strategy that did not involve the use of an expert.”).

The ABA Standards only recommend that defense counsel “consider” whether consultation would be appropriate. See ABA 4-8.3(a). Petitioner's former attorney went further. He not only considered whether to consult with an expert, but in fact, he actually consulted with two different experts. Then, he used one expert's report to reduce the charges and as an argument during the sentencing hearing. Dkt. No. 41 at 11; 15-CR-804, Dkt. No. 40 at 13 (“I can only say that, at least per Dr. Krueger and [Dr.] Must at least looking at both their expert reports, they both agree on one thing, that he is not, and doesn't present to them, as a risk to anybody else in the future.”).

Applying Strickland

Perhaps, if Petitioner's former attorney had found Petitioner's current expert, Dr. Kroll,⁶he could have incorporated into his presentation some of the nuance and context Dr. Kroll identified.

6 Dr. Jerome Kroll is a professor of psychiatry at the University of Minnesota. Dkt. No. 41 at 5. According to Petitioner, Dr. Kroll is “perhaps the most eminent and experienced scholar and psychiatrist in the country working with immigrant Muslim males.” See also Resume of Dr. Kroll, Dkt. No. 41-1. The “Kroll Report” is a sealed document. See 15-CR-804, Dkt. No. 52-1.

But Strickland (perhaps unfortunately) does not require the use of even a single expert. While it is possible that a different (perhaps better) defense lawyer would have recognized the benefits soliciting additional expertise could provide, Petitioner's former attorney was free to adopt a strategy that didn't rely upon additional experts. See Harrington v. Richter, 562 U.S. 86, 106-07 (2011)(“Strickland, however, permits counsel to make a reasonable decision that makes particular investigations unnecessary ...defense counsel could follow a strategy that did not require the use of experts.”); Swaby v. New York, 613 Fed.Appx. 48, 50 (2d Cir. 2015)(“the failure to seek an expert does not satisfy the performance prong of Strickland where counsel chooses a strategy that does not require an expert.”) citing Richter.

While Petitioner contends that the prior counsel should have utilized experts to “create a reservoir of facts” upon which to base any strategy, Dkt. No. 41 at 6, the Strickland standard does not require that experts be consulted on whether to consult additional experts. Former counsel was entitled to conclude that a strategy that focused on collateral consequences, youth, and contrition was the best option.

Thus, Petitioner has not overcome the “strong presumption” that his former counsel's decision to not utilize additional experts was a reasonable exercise of tactical discretion. Strickland v. Washington, 466 U.S. 668 (1984).

Even if Petitioner could show that his former attorney objectively should have retained additional experts, Petitioner cannot demonstrate prejudice.

While there are indeed numerous judicial decisions excoriating Dr. Janoson, including a decision from Judge Rakoff, Dr. Janoson never testified and never provided a report. Thus, Dr. Janoson's level of respectability (or lack thereof) was not relevant to the outcome.

Moreover, on the one hand, Petitioner argues Dr. Must and Dr. Krueger had a difference of opinion with respect to recidivism. Dkt. No. 41 at 15 (“It would also have been especially useful given Dr. Shoshann Must's conclusions that Mr. Khan was at a low to moderate risk of offending, whereas Dr. Krueger believed the risk of re-offending was remote.”). But on the other hand, in the initial memorandum of law, Petitioner argued, “Dr. Must, joined Dr. Krueger in concluding that Mr. Khan was at a low risk of recidivating.So, the absence of recidivism was the floor of the sentencing analysis.” See 15-CR-804, Dkt. No. 53 at 15.

Either way, as Petitioner admits, Judge Rakoff accepted the finding that Mr. Khan presented a low risk of recidivism. See 15-CR-804, Dkt. No. 53 at 15. (“Krueger's and Must's conclusions that Mr. Khan was not at risk of recidivating were fully accepted by the Court.”). Accordingly, while it maybe could have been a better strategy to focus on a different issue, one cannot say for certain that the former attorney's use of the Krueger Report was unsuccessful. Thus, Mr. Khan has not met the “heavy burden” of showing “the likelihood of a different result was substantial, not just conceivable.” Genovese v. United States, No. 18-CR-183 (JMF), 2023 WL 2185699, at *1 (S.D.N.Y. Feb. 23, 2023) citing Harrington v. Richter, 562 U.S. 86, 112 (2011); United States v. Cohen, 427 F.3d 164, 171 (2d Cir. 2005).

3. Failure to Investigate and Argue Cultural Factors Petitioner's Cultural Factor Argument

Petitioner's third contention is that his prior attorney failed to reasonably investigate the “cultural, personal, and familial factors that explained Mr. Khan's pathway into criminal conduct.” Dkt. No. 41 at 6. Specifically, “his adolescent experience as a transitory immigrant through Canada. and his Pakistani upbringing where girls are betrothed by their parents while in their young teens.” See 15-CR-804, Dkt. No. 53 at 4.

Petitioner emphasizes that “counsel has a duty to make reasonable investigations.” Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). Furthermore, Petitioner highlights that a “reasonable investigation” includes an analysis of whether the available “evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 527 (2003).

Petitioner also points to the ABA Standards that state, “Defense counsel should become familiar with the client's background...” ABA Standards for Criminal Justice, 4-8.3 (4^th ed. 2017).

Petitioner argues that the combination of being initially brought up in a strict, sexually conservative Muslim environment, moving to the West, and then immigrating from Canada to the United States during adolescence, left Mr. Khan without a network of Muslim peers, without family guidance, and without the circle of fellow young friends with whom he could learn the norms surrounding romantic interaction. 15-CR-804, Dkt. No. 53 at 10 (“Although 21 years old and in college, he was, in essence, an adolescent in terms of his experiences with females and his experiences of sex, a result of his devout Muslim upbringing and the fact that his family moved to Yonkers in his junior year at high school, extracting him from the male friends who would have grounded his maturation process.”).

According to Petitioner's new expert, Dr. Kroll, “Khan's practical deficiencies in Western social education, in the absence of a Muslim adolescent peer group that would support Eastern values of abstinence as would have been the case in Toronto, formed part of the background of Dr. Khan's development leading to the mistaken and unlawful behaviors that form the substance of the legal and ethical issues involved in this case.” 15-CR-804, Dkt. No. 53 at 11.

Hence, Petitioner's key point is that had his former counsel retained an expert like Dr. Kroll, the expert's investigation into Mr. Khan's background would have revealed this potentially helpful line of argument. 15-CR-804, Dkt. No. 53 at 12-13 (“Mr. Greco, however, although manifestly “bewildered” and flummoxed by his client's conduct, failed to seek expert input to provide that answer., this is precisely the case where competent counsel would have retained a psychiatrist or psychologist to do an in-depth analysis of the client's background and personal history to situate the offense conduct in context. Without such a report, one is left with the image the Court had of Mr. Khan at sentencing of someone with irreparable organic mental defects: someone with a ‘Jekyll and Hyde personality.'”).

Petitioner now thus attempts to articulate an argument that does not excuse his conduct or minimize the harm to the Victim, but rather one that attempts to explain the cultural and familial context that led Mr. Khan to commit this crime.

The Former Attorney's Rejection of the Cultural Factor Argument

According to Petitioner's former attorney, “issues surrounding Mr. Khan's background as an immigrant and his cultural background were brought to [Mr. Greco's] attention by Mr. Khan who advised that in Pakistan Mr. Khan's conduct would not have been nearly as reprehensible as it was in the United States.” 15-CR-804, Dkt. No. 61 at 4.

Petitioner's former attorney claims he rejected these cultural arguments for two reasons. First, “in deciding whether to pursue such arguments, I considered the fact that Mr. Khan and his family emigrated to Canada (from Pakistan) in 1996. At that time, Mr. Khan would have just turned nine years of age.” 15-CR-804, Dkt. No 61 at 4. Second, he “concluded that attempting to justify Mr. Khan's actions on his country of origin or his religion could quite possibly outrage the sentencing judge and cause him to sentence Mr. Khan far more harshly.” 15-CR-804, Dkt. No 61 at 4.

The associate who worked for Mr. Greco, Mr. Langweber, said in response to being asked whether “a defense based on the defendant's religion and culture might well have backfired, ‘Not only did I think that at the time, I remain convinced of that now.'” Dkt. No. 43 at 11.

The Risk that the Argument Could Backfire

As discussed above, the Government was pressing the point that Mr. Khan did not fully accept responsibility. See 15-CR-804, Dkt. No. 40 at 20 (“the Government's concern is the Defendant's consistent and continual lack of understanding, lack of remorse, and lack of admission.”).

Any strategy that could be interpreted as relying, even in part, on moral relativism, bears the risk of backfiring and undermining any arguments emphasizing the client's acceptance of responsibility. Thus, Mr. Greco's fear was reasonable.

Courts in this circuit applying the Strickland standard have recognized that the risk of an argument backfiring is one that defense counsel can reasonably consider. See United States v. Haywood, 182 F.3d 901 (2d Cir. 1999)(“the decision to focus on Haywood's remorse for the victims rather than protest errors in the presentence report or the quality of the 5K1.1 letter was a reasonable strategy, especially given, the possibility that any protest about the presentence report or 5K1.1 letter would backfire.”); Wallace v. Poole, No. 10-CV-00722 (MAT), 2011 WL 6370596, at *11 (W.D.N.Y. Dec. 20, 2011)(“counsel did not unreasonably decide that offering the testimony of Shamel and Daisy might backfire.”); Ennis v. Walker, No. 00-CV-2875 (DAB)(AJP), 2001 WL 409530, at *12 (S.D.N.Y. Apr. 6, 2001)(“The Second Circuit has explained that “[t]he introduction of an alibi defense frequently poses the risk that if the alibi evidence is disbelieved, the defense will backfire, leading the jury to convict.”); Matthews v. Raymond, No. 10 CV 5585 RJD, 2013 WL 2395911, at *6 (E.D.N.Y. May 31, 2013), affd, 562 Fed.Appx. 43 (2d Cir. 2014), as amended (July 30, 2014)(“a quasi-alibi defense might not simply fail to advance his client's defense; it could easily backfire.”).

That there was a risk of the argument backfiring is evident from the fact that numerous courts have not only failed to find the argument convincing, but some have gone even further, holding that it is improper for defendants to even attempt to make an argument based on cultural factors. United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir. 1989)(“a difference in cultural background has been consistently rejected as an excuse for criminal activity.”); United States v. Batchu, 724 F.3d 1, 13 (1st Cir. 2013); United States v. Contreras, 180 F.3d 1204, 1212 n. 4 (10th Cir. 1999); United States v. Sprei, 145 F.3d 528, 536 (2d Cir. 1998); United States v. Guzman, 236 F.3d 830, 833 (7th Cir. 2001)(“we lean to the view that section 5H1.10 of the Guidelines does forbid consideration of ethnicity or “cultural heritage” in the sentencing decision.”); United States v. Prestemon, 929 F.2d 1275, 1277 (8th Cir.) (cultural heritage does not warrant departure); United States v. Yu, 954 F.2d 951, 954 (3d Cir. 1992)(“it is doubtful at best that cultural differences are allowable under the Guidelines, even if it would appear to be reasonable to depart on that basis in a particular case.”).

Indeed, historically a difference in cultural background has been rejected as an excuse for criminal activity. See, e.g., Rex v. Esop, 173 Eng. Rep. 203 (Cent. Crim. Ct.)(July 8, 1836) (offense committed aboard East India Company ship in English harbor held not excusable even though not an offense in defendant's native Baghdad).⁷

7 The Court notes that while this case has been consistently cited over time as standing for the proposition that the legality of an act in one's former country is not an acceptable excuse under the law, and has been consistently cited in the context of sentencing, see United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir. 1989)(citing Esop in a discussion of sentencing guidelines); RB Brandt, A Motivational Theory of Excuse in the Criminal Law Vo. 27 AMERICAN SOCIETY FOR POLITICAL AND LEGAL PHILOSOPHY (1985); Kelly M. Neff, Removing the Blinders in Federal Sentencing 78 CHICAGO-KENT L. REV. (April 2003), dicta in the case does say that, “the act not being an offence in his own country, though it is not a defense in law, yet it is a matter to be considered in mitigation of punishment.” See Rex v. Esop, 173 Eng. Rep. 203 (Cent. Crim. Ct.)(July 8, 1836). It is also worth noting that the Defendant in that case was charged with sodomy, an act that, in this country, an individual has a constitutional right to engage in. See Lawrence v. Texas, 539 U.S. 558 (2003).

This is not to say that such an argument was doomed to failure, but simply that there are objectively reasonable grounds to reject not only this line of argument but to also reject retaining an expert to investigate this line of argument.

In Richter, the Supreme Court held that “defense counsel could follow a strategy that did not require the use of experts.” See Harrington v. Richter, 562 U.S. 86, 106-07 (2011).

So here too. Petitioner's former counsel was free to adopt a strategy that avoided this perilous line of argument. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005)(“when there is reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.”); see also Swaby v. New York, 613 Fed.Appx. 48, 50 (2d Cir. 2015)(“Strickland ... permits counsel to make a reasonable decision that makes particular [expert] investigations unnecessary.”); see also May v. Griffin, 17-CV-6319 (KMK)(JCM) 2021 WL 5450346, at *18 (S.D.N.Y. Nov. 19, 2021).

The Williams Decision

Indeed, since Mr. Greco asserts that he based his decision on the fact his former client was in Pakistan only for nine years, one can distinguish this case from the recent 11^th circuit decision,⁸ Williams v. Alabama, No. 21-13734, 2023 WL 4446427 (11th Cir. July 11, 2023). In Williams, the 11^th Circuit held that “counsel failed to conduct an adequate investigation into Williams' background for possible mitigating evidence. [h]ad counsel conducted a more thorough investigation into Williams' sexual history, they would have learned that Williams had been sexually abused on three or four occasions between the ages of four and six.” Williams v. Alabama, No. 21-13734, 2023 WL 4446427, at *6 (11th Cir. July 11, 2023). Whereas in Williams the lawyer never asked any questions that would have highlighted the need to retain experts to investigate possible mitigating lines of inquiry, here Petitioner's former counsel conducted a sufficient inquiry to flag a possible flaw in the argument. Moreover, the cases can be distinguished because an argument claiming that conduct is “not as reprehensible” in a former country bears a risk of being interpreted as minimizing the criminal conduct (and thus undermining a contrition strategy). 15-Cr-804, Dkt. No. 61 at 4.

8 ^] On July 21, 2023, counsel for Petitioner submitted a letter directing the Court's attention to Williams. According to Petitioner's counsel, “it addresses a very similar failure to investigate/mitigate as alleged in Mr. Khan's habeas petition.” Dkt. No. 68.

Thus, Mr. Khan cannot show his former counsel's representation “fell below an objective standard of reasonableness.” Beniquez v. Johnson, No. 21-CV-1467 (PAE), 2023 WL 3948738, at *16 (S.D.N.Y. June 12, 2023) citing Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008).

The Prejudice Prong Under Strickland

Furthermore, even if Mr. Khan could show that it was objectively unreasonable to fail to retain an expert to investigate these cultural and personal factors, Mr. Khan cannot meet the “heavy burden” of the second Strickland prong. While it is perhaps conceivable, there is not a reasonable probability that utilizing this argument would have led Judge Rakoff to impose a lighter sentence. Genovese v. United States, No. 18-CR-183 (JMF), 2023 WL 2185699, at *1 (S.D.N.Y. Feb. 23, 2023) citing Harrington v. Richter, 562 U.S. 86, 112 (2011).

In fact, it is just as likely that this argument could have outraged Judge Rakoff and resulted in a harsher sentence. Thus, Petitioner has not demonstrated the prejudice Strickland requires.

4. Declining to Challenge Causation of Injury

Petitioner's fourth argument is that Mr. Greco did not reasonably investigate potential challenges to the Victim's claim that Mr. Khan caused the entirety of her “catastrophic” psychological injuries. See 15-CR-804, Dkt. No. 53 at 22-23.

Petitioner argues that the prior attorney “concede[d] that leading up to the sentencing hearing in 2016, he was well aware that the government and the victim (and her mother) were claiming catastrophic injuries from Mr. Khan's conduct.” Dkt. No. 41 at 18 citing PSR, ¶¶ 44-50 (reporting that the Victim's mother stated Mr. Khan has “damaged [her] daughter and nearly broke her”); 15-CR-804, Dkt. No. 33 at 7 (“the defendant wreaked a path of destruction through the Victim's psychological health, emotional stability, and understandings of relationships and trust”); 15-CR-804, Dkt. No. 40 at 10, 11 (in which the Victim recounts how Mr. Khan caused “irrevocable damage”).

Petitioner alleges that “this was a critical issue that drove the huge sentence..,|a]t the sentencing, the Court agreed with the Victim and the Government, stating that Mr. Khan ‘has in many respects ruined the life of another human being.'” Dkt. No. 41 at 18; 15-CR-804, Dkt. No. 40 at 14.

As Petitioner's counsel detailed at oral argument, “there was a powerful aggravating factor here of the harm visited on the victim, and there was a serious causation issue.” Dkt. No. 66 at 15.

Petitioner claims that “hearing voices and having hallucinations” was a “red flag” that should have alerted Greco to the need to use further discovery or retain an expert to challenge the claim Mr. Khan caused the full extent of the Victim's psychological injuries. Dkt. No. 66 at 17. Petitioner's counsel explained that “my psychologist said to me that.this is an unusual symptom for somebody that allegedly has trauma. This is far more likely a symptom of incipient schizophrenia.” Dkt. No. 66 at 17.

Petitioner emphasized that “it's not about the severity of the symptoms.it's the inapposite nature of the symptoms. These symptoms are not the typical symptoms of trauma-induced experiences.” Dkt. No. 66 at 21.

Petitioner contends that he should have had a defense attorney willing “to parse through the thicket of this claim to ensure that the injuries alleged -particularly hallucinations and psychosis - were properly attributable to Mr. Khan.” Dkt. No. 41 at 20. Petitioner argues that Greco still “fundamentally misunderstands the defense's argument - portraying it as a claim that the Victim contributed to the crime.” Dkt. No. 41 at 20.

Petitioner's current counsel submits that “there are lots of ways that he could have questioned [the causation narrative].he could have gone to the probation department. I raise in my papers the right to go and seek Brady.the right to go even one step further and ask the Court to review her mental health records.But the point is he did nothing. He read in the presentence report that my client had caused all this harm, and he accepted it without question." Dkt. No. 66 at 23.

Petitioner's expert, Dr. Sanford Drob, concluded that “the services of a forensic specialist.may well have been able to provide a more precise evaluation of the impact of Mr. Khan's behavior on the psychological disorders of the victim, and further, a more precise evaluation regarding her future prognosis.” 15-CR-804, Dkt. No. 53 at 5 citing Drob Report at 5.

Petitioner further argues that “the Second Circuit has repeatedly held, this duty to consult is especially relevant in cases involving alleged sexual abuse of minors in which the government relies on the credibility of the complainant. See Dkt. No. 41 at 9 citing Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005); Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001).⁹

9 It is worth noting that these three cases analyze a trial attorney's decision to decline to consult an expert at the trial phase, rather than at the sentencing phase. See Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005); Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001).

However, there were powerful reasons for Greco to not go down that road.

First, if the overall strategy was to emphasize Mr. Khan's contrition and counter the Government's position that he failed to accept responsibility, a sentencing submission focusing the Court's attention on the particular harms the Victim suffered could easily backfire.

The Victim claimed other harms in addition to “hearing voices and having hallucinations” including being bedridden with depression, anorexia, self-harm, falling behind three years academically despite formerly being an A+ student, and being “still confused about [her] thoughts and belief systems because they have been influenced by [Petitioner].” 15-CR-804, Dkt No. 40 at 4, 5-6, 7 and 8. Thus, focusing the Court's attention on the harm to the Victim could have brought even more attention to these injuries and the ways that Petitioner could be linked to them.

Moreover, while Petitioner has an expert to say that these harms are unlikely to be linked to the trauma, the Victim herself asserted at the hearing that her own doctors diagnosed her with “trauma-induced psychosis”. 15-CR-804, Dkt No. 40 at 6. Thus, the most optimistic outcome Mr. Khan could have hoped for pursuing this line of argument was a fight over whose doctors were correct. A battle on such unfriendly terrain was unlikely to go well for Petitioner.

In short, with the Victim claiming to be “a shadow of the person I could have been,” there was more than enough presented at the hearing for Judge Rakoff to conclude that “he has truly ruined so much of his Victim's life...” 15-CR-804, Dkt No. 40 at 26.

Petitioner's former attorney cannot be deemed to have acted objectively unreasonable in navigating away from a venture fraught with peril.

While Petitioner claims there would have been various methods to delve into the issue and seek additional discovery, it is not clear at all what materials or therapy notes Mr. Greco would have had access to. Seeking the Court's intervention would have been especially risky, as the Court would be alerted to the issue of Victim harm but the Defense would have had no prior insight into what the contents of any such records would be.

As discussed above, courts in this circuit have recognized the potential for an argument to backfire. While there are decisions holding that the need for experts is heightened in some child sex abuse cases, there are also cases applying Strickland that identify the potential for such aggressive tactics against victims to spectacularly backfire. Santos v. Greiner, No. 99 CIV. 1545 AJP, 1999 WL 756473, at *9 (S.D.N.Y. Sept. 24, 1999) (“[t]he extent to which an alleged rape victim should be subjected to cross-examination is inherently a matter of strategy, as a withering and relentless cross-examination can easily backfire”) citing Williams-Bey v. Trickey, 894 F.2d 314, 316 (8^th Cir.) (strategic decision not to cross-examine rape victim about certain information not ineffective assistance where defense attorney feared detailed cross-examination might elicit sympathy for the victim), cert. denied, 495 U.S. 936 (1990); Eze v. Senkowski, 321 F.3d 110, 133 (2d Cir. 2003)(“Defense counsel faced the unenviable task of cross-examining two young girls who, according to the prosecution, were victims of heinous and brutal sexual abuse.”). The fact that these decisions held it was reasonable to avoid aggressive tactics at trial (when challenging a victim's allegations is more helpful) only bolsters the reasonableness of avoiding aggressive tactics at sentencing (when guilt has already been established).

Indeed, even if the prior attorney succeeded in convincing the Court that the Victim suffered from a host of organic psychological issues, this may make the Court view Petitioner in an even harsher light, as it would be theoretically possible to conclude that it was the psychological disorder that made the Victim especially vulnerable and a target.

Thus, it was not unreasonable for Petitioner's prior attorney to have adopted a strategy that foreclosed the need to retain an expert to delve into the harm causation issue. Hence, this argument also fails the first prong of the Strickland test.

Concerning prejudice, it is difficult to conclude that pursuing this line of discovery and then this line of argument would have resulted in a lighter rather than a harsher sentence, certainly not a probability rising to the level of undermining confidence in the outcome. Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018)(“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).

Indeed, Petitioner's own expert, Dr. Drob, concluded that “any psychologist would likely conclude, as the government argued, that the Victim's psychological problems were in part caused and hugely exacerbated by the Defendant's behavior.” 15-CR-804, Dkt. No. 53 at 24.

With Dr. Drob acknowledging that any psychologist likely would have concluded that Mr. Khan's criminal conduct contributed to the Victim's injuries, it cannot be said that Mr. Khan would've had a substantial likelihood of receiving a lighter sentence. Thus, this argument fails the prejudice prong of Strickland as well.

5. Limited Arguments Under the Guidelines

Fifth, Petitioner claims his former counsel did not adequately argue that the Guidelines overstated the severity of Mr. Khan's conduct.

According to Petitioner, "Mr. Khan pled to a count with a mandatory minimum of 10 years, in a plea agreement that calculated his Guidelines with reference to the production of child pornography. But unrecorded, unphotographed video chats with an underage girlfriend are a far cry from the conduct envisaged by that Guideline. The federal statutory rape Guideline produces a sentence of approximately three to four years. The Guideline for criminal sexual abuse of a minor solicited over the internet produces a Guideline of 108 - 135 months. The stipulated Guideline outlined in Mr. Khan's plea agreement - 292 to 365 months -was far removed from the gravamen of the criminal conduct at issued here. Mr. Greco failed entirely to make this argument.” 15-CR-804, Dkt. No. 53 at 5.

According to Petitioner, the former attorney, “failed to appreciate the gravitational pull of the calculated guideline and its impact as an “anchor” for the final sentence.” 15-CR-804, Dkt. No. 53 at 20 citing United States v. Ingram, 721 F.3d 35, 40 (2d Cir. 2013) (Calabresi, J. concurring) (noting that the “so-called ‘anchoring effects' long described by cognitive scientists and behavioral economists, show why the starting, guidelines-departure point matters, even when courts know they are not bound to that point.”).

Petitioner argued that “while Khan had stipulated to the Guideline calculation in his case, he reserved the right in his plea agreement to challenge his sentence under the sentencing factors outlined in 18 U.S.C. § 3553(a)... [Greco] could then have deconstructed the Guideline operation in Khan's case, pointing out that certain enhancements were already incorporated in the offense itself and as such constituted double-counting (e.g., two levels for the use of a computer, pursuant to U.S.S.C. §2G2.1(b)(6)), or that certain enhancements were designed to target serial predators rather than the conduct at issue here: someone engaged in one ongoing online relationship (e.g., five levels because the defendant engaged in a pattern of activity involving prohibited sexual conduct, pursuant to U.S.C. §4B1.5(b)(1)).” 15-CR-804, Dkt. No. 53 at 21.

Petitioner contends, “it is draconian and callous to apply the child pornography Guidelines to unrecorded video chats that were confined to the participants and were never intended or designed to be duplicated or distributed to others.” 15-CR-804, Dkt. No. 53 at 22.

First, it is difficult to say that Mr. Khan's previous attorney did not attempt to distinguish Mr. Khan from others charged under the same statute. 15-CR-804, Dkt. No. 31 at 3-4 (“This was the first girl that Hassan ever had any sort of relationship with. While it doesn't diminish the atrocity that exists to engage in any type of relationship with a 13-year-old girl when you are nine years older, it certainly distinguishes you from the types of online predators who prey on victims.I bring it up merely to point out that there is another facet to this sad story, one that is rooted in actual feelings that undeniably distinguishes Hassan from the real online predators out there.”).

Second, Judge Rakoff at the sentencing hearing explicitly said he “think[s] the Guidelines, which are often irrational and bear very little relationship to the facts of individual cases, in calling for like 25-30 years, something of that order, do not fit the facts of this case.” 15-CR-804, Dkt. No. 40 at 15.

Indeed, Judge Rakoff, famously, is a vociferous opponent of the Sentencing Guidelines. See Jed S. Rakoff, Why the Federal Sentencing Guideline Should BeScrappedFEDERAL SENTENCING REPORTER, 29 (4), 226-229 (April 2017); see also RakoffSlams U.S. Sentencing Guidelines For Being Too Harsh (May 14, 2012) LAW360.COM (“U.S. District Judge Jed Rakoff said federal sentencing guidelines foolishly suggest judges can use simple arithmetic to answer the complex question of what is an appropriate punishment for a crime.”).

At oral argument, Ms. Murray conceded this wasn't Petitioner's strongest argument, “I agree, maybe better arguments than that one...I will move on from that point, Your Honor.” Dkt No. 66 at 25.

Thus, given that a focus on the Guidelines would have been unnecessary given Judge Rakoff s very public opposition to the Guidelines, as well as the fact that former counsel did attempt to distinguish his client from others convicted under 18 USC 2242(b), and the highly deferential “strong presumption” that counsel's conduct is reasonable, the Court cannot conclude that the former attorney provided ineffective assistance in failing to invest additional effort against the Guidelines. United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023) citing Strickland v. Washington, 466 U.S. 668 (1984); see also Gonzalez v. United States, Nos. 99-CR-1113, 13-CV-7588, 2014 WL 4494020, at *4 (S.D.N.Y. Sept. 12, 2014) (where a cooperating defendant was sentenced well below the bottom of the applicable Guidelines range, explaining: “Based on the results achieved by his counsel . . . the strategic decision to focus on [one sentencing factor] rather than [another sentencing factor] does not fall below ‘an objective standard of reasonableness' under ‘prevailing professional norms.'”).

Regarding prejudice, it cannot be said that with a greater focus on the Guidelines, there is a “substantial likelihood” that Mr. Khan would have received a lighter sentence. Given that the Guidelines recommended a punishment of 292-365 months, the fact that Judge Rakoff imposed a sentence of 204 months demonstrates that he was already discounting the Guidelines.

Thus, even if Greco's strategy were unreasonable, it did not prejudice Petitioner under Strickland. See United States v. Barbee, No. 20 CR. 403 (KPF), 2023 WL 2388738, at *4 (S.D.N.Y. Mar. 6, 2023); see also United States v. Nolan, 956 F.3d 71, 79 (2d Cir. 2020); Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018).

6. The Prior Attorney Allegedly Assumed a 10-year Minimum

Finally, Mr. Khan claims he was misled as to whether the 10-year minimum sentence was the likely outcome and that his trial attorney's “cavalier assumption” that the minimum sentence was likely was why Mr. Greco, “didn't do the work, didn't do the investigation...” Dkt. No. 66 at 52.

It is important to note that Petitioner “never made the argument that Mr. Khan was falsely induced into the guilty plea. We are not challenging the conviction here, and we're not trying to untie the plea agreement. I'm simply making a slightly different point, which is that the email exchange with Mr. Willstatter reflects why Mr. Greco didn't do the work, didn't do the investigation, and thought he could just walk into court.” Dkt. No. 66 at 52.

Petitioner emphasizes that on the 10-year minimum, “Mr. Khan recalls being specifically told that's what you're going to get. And that's exactly what Mr. Greco told Mr. Willstatter in an email, so I think that there is corroboration for Mr. Khan's statement, and there's no corroboration for Mr. Greco's claim that he never said that.” Dkt. No. 66 at 54.

At the hearing, Mr. Greco called the accusation that he believed that his client could be sentenced to no more than 10 years in prison “the most outlandish thing [he had] heard in this entire hearing, and I think everybody in this room, including you [Petitioner's counsel], know that that was never, ever a consideration. [The 10-year mandatory minimum sentence] was not a floor and a ceiling. It was absolutely a floor. Everybody knows that. It was nowhere near a ceiling.” Dkt. No. 43 at 16 citing Dkt. No. 45 at 88-89. Mr. Greco further testified that he had “never” guaranteed or promised the Petitioner, his mother, his father, or anyone else involved in the case, that the Petitioner would receive a 10-year sentence. Dkt. No. 43 at 16.

The Government argues that “it is impossible to reconcile the Petitioner's family agreeing to pay for a costly, professionally-produced video if they believed that no argument or submissions were required to guarantee the minimum 10-year sentence.” Dkt. No. 43 at 16.

Mr. Greco's associate, Mr. Langweber, “similarly expressed certainty that Mr. Greco had never promised anyone that the Defendant's sentence would be no higher than the mandatory minimum.” Dkt. No. 43 at 17.

Without the issue squarely before the Court, the Court declines to rule explicitly on whether the 10-year minimum was promised to Petitioner. The Court's narrow ruling is that Petitioner has not shown that any discussions surrounding the 10-year minimum prove objective unreasonableness or prejudice.

Indeed, it is entirely possible that Mr. Greco himself believed it was extremely likely his client would receive the minimum sentence. Such optimism, so long as it is reasonably held and communicated, does not amount to ineffective assistance of counsel. For all the reasons previously mentioned, the Court has concluded that the former attorney's strategic decisions were reasonable, thus, even if he personally believed Mr. Khan would only receive the minimum sentence, that subjective belief alone did not deprive Mr. Khan of effective counsel.

V. RECOMMENDATION

Strickland imposes a tremendously high bar for establishing constitutionally ineffective assistance. In fact, the Strickland standard is “intentionally difficult to meet.” Lumiere v. United States, No. 16-CR-483 (JSR)(BM), 2022 WL 866365, at *18 (S.D.N.Y. Jan. 18, 2022). Applying Strickland's “strong presumption” that trial counsel's choice of strategy was reasonable, the Court cannot conclude that Petitioner's former attorney made objectively unreasonable strategic decisions. United States v. Lopez, No. 16 CR. 323-2 (KPF), 2023 WL 2988892, at *6 (S.D.N.Y. Apr. 17, 2023) citing Strickland v. Washington, 466 U.S. 668 (1984).

These were hard choices. Even with the benefit of hindsight, the Court is not certain that trial counsel adopted the wrong approach. And even if the alternative strategies were deployed, there is not a reasonable probability that Mr. Khan would have received a lighter sentence. Thus, Petitioner has not met either the ineffective assistance prong or the prejudice prong of the Strickland test. For this reason, the Petition must be DENIED.

VI. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).

SO ORDERED.