United States District Court, D. Minnesota
Velazquez-Aguilu, United States Attorney's Office,
counsel for plaintiff.
Khemall Jokhoo, #16804-041, defendant pro se.
S. DOTY, JUDGE
matter is before the court upon the pro se motion by
defendant Khemall Jokhoo to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Based on a review of
the file, record, and proceedings herein, and for the
following reasons, the court denies the motion.
November 5, 2013, a jury convicted Jokhoo on eleven counts of
Bank Fraud, in violation of 18 U.S.C. § 1344; nine
counts of Mail Fraud, in violation of 18 U.S.C. § 1341;
two counts of Wire Fraud, in violation 18 U.S.C. § 1343;
nine counts of Aggravated Identity Theft, in violation of 18
U.S.C. § 1028A; and one count of False Personation of an
Officer or Employee of the United States, in violation of 18
U.S.C. § 912. On August 20, 2014, the court sentenced
Jokhoo to 175 months' imprisonment. Jokhoo timely
appealed, and on December 1, 2016, the Eighth Circuit Court
of Appeals affirmed his sentence. Jokhoo now moves to vacate
his sentence, arguing that (1) the court lacked subject
matter jurisdiction; and (2) his trial counsel was
Subject Matter Jurisdiction
hard to follow, Jokhoo seems to argue that the court did not
have jurisdiction over his offenses because they were
committed on state, rather than federal, property. This claim
is baseless. Jokhoo was charged with several federal
offenses, “and 18 U.S.C. § 3231 ... provides
district courts with original jurisdiction of all violations
of federal law.” United States v. Watson, 1
F.3d 733, 734 (8th Cir. 1983); see also 18 U.S.C.
§ 3231 (“The district courts of the United States
shall have original jurisdiction, exclusive of the courts of
the States, of all offenses against the laws of the United
contends, however, that § 3231 was never properly passed
by Congress. He points out that the House of Representatives
passed the bill containing § 3231 during the first
session of the 80th Congress in 1947, and the Senate passed
the bill in the second session of the 80th Congress in 1948.
Jokhoo argues that the bill died during the recess between
the two sessions.
argument has been rejected by several judges in this
district. See, e.g., Olson v. Wilson, No.
15-1656, 2015 WL 3397963, at *3-4 (D. Minn. May 26, 2015)
(rejecting claim that § 3231 is invalid); United
States v. Whitefeather, No. 05-388, 2009 WL 2901199, at
*2 (D. Minn. Sept. 2, 2009) (“[T]he Court knows of no
presiding United States District Court Judge who has accepted
[the argument that § 3231 was never properly
enacted].”); United States v. Schultz, No.
03-08(02), 2007 WL 2872387, at *2 (D. Minn. Sept. 26, 2007)
(same). Further, another court thoroughly examined this
argument and concluded that the recess did not extinguish the
pending legislation. See Derleth v. United States,
No. L-03-1745-6, 2006 WL 1804618, at *4 (S.D. Tex. June 27,
2006). The court sees no reason to depart from the holdings
in those cases. As a result, the court had subject matter
jurisdiction over Jokhoo's offenses.
Ineffective Assistance of Counsel
argues that his counsel was ineffective for failing to
challenge the court's subject matter jurisdiction. To
establish a claim of ineffective assistance of counsel,
Jokhoo must meet both prongs of the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984).
First, Jokhoo must show that his counsel's performance
was so deficient that it fell below the level of
representation guaranteed by the Sixth Amendment.
Id. at 687. Second, he must establish prejudice by
showing “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceedings would have been different.” Id. at
694. An attorney is not ineffective for failing to file
motions that are “frivolous beyond any reasonable
doubt.” United States v. Hart, 557 F.2d 162,
163 (8th Cir. 1977). As already discussed, a motion
challenging the court's jurisdiction on the grounds
presented by Jokhoo would have been frivolous. As a result,
Jokhoo has failed to show that his trial counsel's
performance was deficient.