USA v. McKathan

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA 	)
)
v. 	) 	Criminal Action No. 14-00290-KD-C
) 	Civil Action No. 15-00611-KD-C
DENZIL EARL MCKATHAN, 	)
)
Defendant. 	)
ORDER
This action is before the Court on remand and vacatur from the Court of Appeals for the
Eleventh Circuit. (Doc. 123; issued as mandate, Doc. 124). The Eleventh Circuit vacated the denial
of Defendant Denzil Earl McKathan’s Section 2255 motion finding, “because McKathan would
have prevailed on the Fifth Amendment suppression issue, it now becomes necessary to consider
whether the evidence would have otherwise been admissible.” (Doc. 123 at 36-37). On remand,
the Eleventh Circuit said “the government must receive an opportunity to present any evidence
and arguments to show that the evidence from McKathan’s phone would have otherwise been
admissible, and the district court shall rule on any such arguments.” (Id. at 37). Thereafter, the
parties filed briefs addressing the issues raised by the Eleventh Circuit in the remand order. (Docs.
126, 135). And, on February 4, 2021 the undersigned held an evidentiary hearing to address same.
Present at the hearing were Defendant Denzil Earl McKathan, and his counsel Arthur Madden,
and Assistant United States Attorneys Christopher Bodnar and Keith Jones.
I. 	Background
In 2005, Defendant Denzil Earl McKathan (McKathan) pled guilty to possessing child
pornography in violation of 18 U.S.C. § 2252A(a). United States v. McKathan, Case No. 1:05-cr-
00094-CG (S.D. Ala. 2005) (McKathan I). He was sentenced to 27 months’ imprisonment,
followed by a lifetime term of supervised release. (McKathan I, Doc. 23). The written judgment
set forth both standard conditions of release as well as five special conditions of supervision.

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(McKathan I, Id. at 4, 7). Relevant here, is a term of supervised release required McKathan “answer
truthfully all inquiries by the probation officer and follow the instructions of the probation officer.”
(McKathan I, Id. at 4). Another condition required he “shall submit” to his probation officer’s
reasonable searches of his home. (McKathan I, Id. at 7). This condition also subjected McKathan
to reasonable searches of electronic devices. This was necessary so that the Probation Office could
determine if McKathan was in compliance with his term of supervision which prohibited
“possess[ion] or use a computer with access to any ‘on-line computer service’ at any location
(including employment) without the permission of the Probation Office.’” (McKathan I, Id.).
McKathan began living under the terms of his supervised release in 2007 after he
completed his prison term. In September 2014, McKathan’s probation officer, Rafael Goodwin,
Jr., (Goodwin) discovered someone had opened a Facebook account in McKathan’s name using
an Android device. As a result, on September 19, 2014, Goodwin conducted a surprise visit at
McKathan’s apartment to investigate.
Upon arriving at McKathan’s home, Goodwin spotted an Android phone on McKathan’s
bed. Goodwin asked McKathan whether he had a new phone. Goodwin was aware that McKathan
had a cell phone, but was not aware that he had a “smart phone,” i.e. a phone capable of internet
access. Goodwin requested to see the phone and McKathan handed it to him. Goodwin could not
open the phone because it was password protected. Goodwin handed the phone back to McKathan
and asked him to put in the passcode; McKathan complied. Goodwin found a Facebook application
on McKathan’s phone; McKathan confirmed the Facebook account was his. Goodwin did not find
inappropriate content on the Facebook account but he then reviewed McKathan’s internet history.
“The browsing history reflected that somebody had visited sites with terms such as ‘preteen’ and
‘sexy lil girls.’” McKathan, 969 F.3d at 1218. After seeing this, Goodwin asked McKathan whether
he had been viewing child pornography and McKathan conceded he had.

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Goodwin confiscated the phone and instructed McKathan to report to Goodwin on
September 22, 2014. Goodwin further inspected McKathan’s phone at the Probation Office and he
found downloaded images of child pornography.
Thereafter, the Court held a hearing and determined McKathan’s supervised release should
be revoked. He was sent back to prison to be followed by a reimposed term of supervised release
for life, with the same conditions that had originally been imposed.
Goodwin also provided the U.S. Attorney’s Office with copies of the images he found on
McKathan’s phone. Goodwin gave the Department of Homeland Security McKathan’s phone so
they could seek a search warrant. Homeland Security procured a warrant for the phone and
accessed the phone with the PIN McKathan provided to Goodwin.
In November 2014, a federal grand jury charged McKathan with three counts of knowingly
receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Counts One to Three),
and one count of knowingly possessing material containing an image of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) (Count Four). United States v. McKathan, Case No. 1:14-
cr-00290 (S.D. Ala. 2014) (McKathan II). Since Knight was familiar with the case from the
revocation hearing, the Court appointed him to represent McKathan on the new charges. McKathan
then filed a pro se motion requesting new counsel; the court granted his request and appointed
Cindy Powell. McKathan, 969 F.3d at 1219.
Next, McKathan filed a pro se motion to suppress arguing “(1) any and all evidence seized
as a result of any search and/or seizure and the fruits of any search and/or seizure, [and] (2) any
and all written and/or oral statements taken from me and the fruits of any such statements.”
McKathan’s attorney thereafter filed an amended motion to suppress on McKathan’s behalf. The
court ultimately denied McKathan’s motion to suppress. On advice of counsel, McKathan then
entered into a plea agreement with the government. “Under that agreement, McKathan pled guilty
to 	one 	count 	of 	knowingly 	receiving 	child 	pornography 	in 	violation 	of 	18 	U.S.C. 	§
2252A(a)(2)(A). He also agreed to waive his right to appeal and to file a collateral attack, with

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limited exceptions.” McKathan, 969 F.3d at 1220. This waiver did not preclude McKathan from
claiming ineffective assistance of counsel in a motion filed under 28 U.S.C. § 2255. The district
court imposed a term of 188 months in prison. McKathan did not directly appeal his conviction.
In November 2015, McKathan filed a pro se habeas petition to vacate, set aside, or correct
his conviction in the 2014 Case under 28 U.S.C. § 2255. McKathan v. United States, Case No.
1:15-cv-00611-KD (S.D. Ala. 2015) (McKathan III). He asserted that his counsel had been
ineffective, in violation of the Sixth Amendment, because they did not challenge the admission of
his statements and the fruits of those statements, all of which, McKathan alleged, had been
obtained in violation of the Fifth Amendment. With the assistance of newly appointed counsel,
Arthur Madden, McKathan filed an amended habeas petition asserting that his previous counsel
(both Knight and Powell) were constitutionally deficient for failing to argue a Fifth Amendment
violation as a basis to suppress his statements to Goodwin about his phone and his PIN, as well as
the evidence derived from the phone.
The Magistrate Judge held an evidentiary hearing on McKathan’s Section 2255 petition
and issued a report and recommendation (“R&R”) recommending that the district court deny
McKathan's § 2255 claim that he received ineffective assistance of counsel when his attorneys did
not seek under the Fifth Amendment to suppress his statements and their fruit. The R&R, which
ruled based solely on its finding that McKathan had failed to show prejudice, was adopted by the
District Court.
McKathan then moved pursuant to Rule 59(e), Fed. R. Civ. P., for the District Court to
vacate its judgment and grant his denied ineffective-assistance claim. In the alternative, McKathan
asked the district court to issue a Certificate of Appealability (“COA”) on the question of “whether
the district court erred in finding that [he] failed to prove Strickland’s prejudice prong of his second
§ 2255 claim.” McKathan, 969 F.3d at 1222. The district court rejected McKathan's request to
vacate its prior judgment, but granted a COA. McKathan appealed.

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The Eleventh Circuit held McKathan would have prevailed on a Fifth Amendment
suppression because McKathan’s statements to Goodwin were compelled in violation of the Fifth
Amendment. The Eleventh Circuit remanded to this Court to determine whether the evidence
derived from McKathan’s statements would have been otherwise admissible. If the evidence would
have otherwise been admissible, the Eleventh Circuit instructed this Court to deny McKathan’s
Section 2255 motion “since filing the Fifth Amendment suppression motion would not have been
reasonably likely to change the outcome in McKathan II.” McKathan, 969 F.3d at 1233. However,
if on remand this Court determine the evidence would not have been otherwise admissible, this
Court must then address “whether McKathan’s counsel performed deficiently by failing to raise
the Fifth Amendment issue in McKathan II.” Id.
II. 	Discussion
A. Admissibility of Evidence
As a threshold matter, McKathan contends the applicable standard is whether the evidence
derived from his statements came from a wholly independent source. McKathan also contends that
though the Eleventh Circuit discussed the issue in terms of the inevitable discovery doctrine, that
this Court is not confined to the inevitable discovery doctrine.
The Eleventh Circuit, after concluding McKathan’s statements were compelled in violation
of the Fifth Amendment, turned to “whether the fruits of McKathan’s statements would have
nonetheless been admissible for an independent reason.” McKathan, 969 F.3d at 1231. The
Eleventh Circuit then notes “the government suggests that it would have inevitably discovered the
evidence…” Id. au 1332. The Court briefly discusses the inevitable discovery doctrine. Id. It then
explains that “since the district court determined that McKathan could not prevail on his Fifth
Amendment argument[,]” “the district court had no reason to analyze—and the government had
no reason to argue—whether the inevitable discovery doctrine could apply[.]” Id. From this, the
Eleventh Circuit stated: “As a result, we cannot evaluate, in the final analysis, whether there was
a reasonable likelihood that the outcome of McKathan's case would have been different, had his

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counsel filed a suppression motion based on the Fifth Amendment. But because McKathan would
have prevailed on the Fifth Amendment suppression issue, it now becomes necessary to consider
whether the evidence would have otherwise been admissible.” Id.
Before delving into the differences of these standards, it’s necessary to understand their
origins. “In the 20th century,… the exclusionary rule—the rule that often requires trial courts to
exclude unlawfully seized evidence in a criminal trial—became the principal judicial remedy to
deter Fourth Amendment violations.” Utah v. Strieff, 136 S.Ct. 2056, 2061 (2016) (citing Mapp
v. Ohio, 367 U.S. 643, 655 (1961)). “Under the [Supreme] Court's precedents, the exclusionary
rule encompasses both the ‘primary evidence obtained as a direct result of an illegal search or
seizure’ and,…‘evidence later discovered and found to be derivative of an illegality,’ the so-called
‘fruit of the poisonous tree.’” Id. 	(citing Segura v. United States, 468 U.S. 796, 804, 104 S.Ct.
3380, 82 L.Ed.2d 599 (1984). This doctrine equally applies to fruits of evidence obtained in
violation of an accused’s Sixth Amendment rights, as well as in violation of an accused’s Fifth
Amendment rights. U.S. v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990). And see
Lundberg v. Secretary, Florida Department of Corrections, 808 Fed.Appx. 725, 732 (11th Cir.
2020) (citing Terzado-Madruga and applying fruit of the poisonous tree doctrines to Fifth
Amendment case). Because of the significant ramifications of this rule, the Supreme Court has
deemed it “applicable only…where its deterrence benefits outweigh its substantial social costs.”
Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal quotation
marks omitted). “Suppression of evidence…has always been our last resort, not our first impulse.”
Id.
Accordingly, the Supreme Court has recognized exceptions to this rule. Strieff, 136 S.Ct.
at 2061. In Utah v. Strieff, 136 S.Ct. 2056, the Supreme Court explained:
Three 	of 	these 	exceptions 	involve 	the 	causal 	relationship 	between 	the
unconstitutional act and the discovery of evidence. First, the independent source
doctrine allows trial courts to admit evidence obtained in an unlawful search if
officers independently acquired it from a separate, independent source. See Murray
v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988).

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Second, the inevitable discovery doctrine allows for the admission of evidence that
would have been discovered even without the unconstitutional source. See Nix v.
Williams, 467 U.S. 431, 443–444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Third,
and at issue here, is the attenuation doctrine: Evidence is admissible when the
connection between unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance, so that “the interest
protected by the constitutional guarantee that has been violated would not be served
by suppression of the evidence obtained.” Hudson, supra, at 593, 126 S.Ct. 2159.
136 S.Ct. at 2061.
These three exceptions are “closely related but analytically distinct.” 	United States v.
Terzado-Madruga, 897 F.2d at 1113. Illustrative of the interrelatedness of these exceptions is an
example the Supreme Court gave in Murray v. U.S., 487 U.S. 553, 539 (1988):
We recently assumed this application of the independent source doctrine (in the
Sixth 	Amendment 	context) 	in 	Nix 	v. 	Williams, 	supra. 	There 	incriminating
statements obtained in violation of the defendant's right to counsel had led the
police to the victim's body. The body had not in fact been found through an
independent source as well, and so the independent source doctrine was not itself
applicable. We held, however, that evidence concerning the body was nonetheless
admissible because a search had been under way which would have discovered the
body, had it not been called off because of the discovery produced by the unlawfully
obtained statements. Id., 467 U.S., at 448–450, 104 S.Ct., at 2511–12. This
“inevitable discovery” doctrine obviously assumes the validity of the independent
source doctrine as applied to evidence initially acquired unlawfully. It would make
no sense to admit the evidence because the independent search, had it not been
aborted, would have found the body, but to exclude the evidence if the search had
continued and had in fact found the body. The inevitable discovery doctrine, with
its distinct requirements, is in reality an extrapolation from the independent source
doctrine: Since the tainted evidence would be admissible if in fact discovered
through an independent source, it should be admissible if it inevitably would have
been discovered.
487 U.S. at 539. So, even if illegally obtained evidence was not also found through an independent
source, the evidence is still admissible if it inevitably would have been discovered. Id. Only one
exception need apply for the evidence to be admissible notwithstanding a prior illegality.
Accordingly, since there is no information that the child pornography would have been discovered
through an independent source, the standard to apply is whether it would inevitably have been
discovered.

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In United States v. Watkins, 981 F.3d 1224 (11th Cir. 2020) the Eleventh Circuit explained:
Illegally obtained evidence is admissible under the inevitable discovery exception
if the government can make two showings. One is a showing that if there had been
no constitutional violation there is “a reasonable probability that the evidence in
question would have been discovered by lawful means.” Johnson, 777 F.3d at 1274
(quotation marks omitted); accord United States v. Terzado-Madruga, 897 F.2d
1099, 1114 (11th Cir. 1990). That does not require establishing an “absolute
inevitability of discovery but simply a reasonable probability that the evidence in
question would have been discovered other than by the tainted source.” United
States v. Brookins, 614 F.2d 1037, 1042 n.2 (5th Cir. 1980).2 The other requirement
the government must meet is “that the lawful means which made discovery
inevitable were being actively pursued prior to the occurrence of the illegal
conduct.” Johnson, 777 F.3d at 1274 (quotation marks omitted). But “active
pursuit” in this sense does not “require that police have already planned the
particular search that would obtain the evidence” but only “that the police would
have discovered the evidence by virtue of ordinary investigations of evidence or
leads already in their possession.” Id. (quotation marks omitted).
981 F.2d at 1233.
The first issue is whether Goodwin could have obtained access to the phone contents by
legal means. In United States v. Knights, 534 U.S. 113, 118-19 (2001), the Supreme Court
examined the reasonableness of a warrantless search by a law-enforcement officer of a probationer
for investigative purposes. 534 U.S. at 115-16. The Court explained “that the reasonableness of a
search is determined by assessing, on the one hand, the degree to which it intrudes upon an
individual’s privacy and, on the other, the degree to which it is needed for the promotion of
legitimate governmental interests.” Id. at 118-19. “Because probationers subject to a condition
authorizing warrantless searches have a greatly diminished expectation of privacy, while the
government has a considerable interest in supervising probationers, the [Supreme] Court held that
warrantless searches of a probationer subject to a search condition based on reasonable suspicion
are reasonable under the Fourth Amendment.” United States v. Bishop, 683 Fed.Appx. 899, 908

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(citing Knights, 534 U.S. at 118-19).1 “Reasonable suspicion exists when, under the totality of the
circumstances, officers have a particularized and objective basis for suspecting legal wrongdoing.”
Id. (citing United States v. Yuknavich, 419 F.3d 1302, 1311 (11th Cir. 2005)).
There was sufficient reasonable suspicion to search McKathan’s phone. Goodwin lawfully
learned through a public search of Facebook2 that a Facebook account in McKathan’s name was
accessed with an Android.3 Thereafter, when he made a surprise visit to McKathan’s home,
Goodwin saw an Android phone in plain view. The Android phone had a touchscreen and appeared
to be capable of accessing the internet. McKathan lived alone and no one else was present. At this
point, considering McKathan’s history of using the internet to possess child pornography and his
SRT term prohibiting internet access without permission, Goodwin testified that his intent was to
seize the phone regardless of McKathan’s answers to his questions.4 Moreover, without the PIN,
Goodwin testified that he would have reached out to other law enforcement agencies and found a
way to access the information on the phone.
Kevin Levy, a former Secret Service agent and expert in cybercrime forensics, opined that
starting in 2012 technology existed to get past the PIN code on this model of the Android phone.
1 The Eleventh Circuit has also extended Knights to a situation where no warrantless search condition existed. See
United States v. Yuknavich, 419 F.3d 1302, 1309-10 (11th Cir. 2005). There, the defendant was a sex-offender
probationer subject to internet and computer usage restrictions. Id. at 1304-05, 1310. The Court reasoned that because
of these limitations, in combination with the crime for which defendant was convicted the defendant’s expectation of
privacy in his computer were greatly diminished and no more than reasonable suspicion was needed to search his
computer. Id. at 1310. Plus, the Court held the defendant should have been prepared to answer questions about his
internet usage and to have “the officers…conduct their own research to find the answers.” Id
2 Goodwin testified that as part of his supervision of sex offenders, he conducts Internet searches to see if the search
returns for open Internet profiles of his supervisees.
3 The Facebook profile indicated the user accessed Facebook via “Facebook for Android.”
4 McKathan’s conditions of supervised release expressly permitted Goodwin to conduct periodic reasonable searches
of McKathan’s residence; the conditions permitted Goodwin to remove computer equipment “for the purpose of
conducting a more thorough inspection.” (McKathan I, Doc. 23 at 7).

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He further testified that the same technology would have allowed extraction of the child
pornography that was found on the phone.
In sum, before McKathan made compelled statements, Goodwin knew: of McKathan’s
prior sex offense conviction; that McKathan was subject to internet usage restrictions; that a
Facebook page in McKathan’s name was created; that the Facebook profile was accessed through
“Facebook for Android”; that there was an Android device in plain view at McKathan’s residence
where McKathan lived alone. At this point, viewing the totality of the circumstances known to
Goodwin, Goodwin had reasonable suspicion to suspect McKathan was violating the terms of his
probation and to conduct a reasonable search therefrom. Moreover, the Court finds credible
Goodwin’s assertion that the phone would have been seized and searched regardless of
McKathan’s answers to Goodwin’s questions. Also, the evidence established that a search without
the PIN code could have been executed. “Given the circumstances of the discovery of the phone,
the restrictions on [McKathan’s] internet usage… there is a reasonable probability that the
evidence of child pornography would have been discovered during a lawful search of the phone
for evidence of a probation violation.” United States v. Bishop, 683 Fed.Appx. 899, 909 (11th Cir.
2017). Accordingly, the first requirement is met.
As to the second requirement, McKathan contends the United States did not make this
showing because Homeland Security did not begin an “active investigation” prior to Goodwin
going to McKathan’s residence on September 19, 2014. McKathan also argues the Homeland
Security investigation is incurably tainted because Anderson relied exclusively on Goodwin’s
statements (which encompass McKathan’s compelled statements) to secure a search warrant.
McKathan’s focus on Homeland Security’s search warrant is misplaced. The “active investigation”
began when Goodwin legally discovered that McKathan had likely accessed the internet using an

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Android phone. The investigation continued when Goodwin legally accessed McKathan’s home
and saw the Android phone in plain view.
As noted supra, “‘active pursuit’ does not require the government to ‘have already planned
the particular [legal] search that would obtain the evidence.” Watkins, 981 F.3d at 1238 (bracketed
language in original). The evidence incriminating McKathan would have been discovered “by
virtue of ordinary investigations of evidence or leads already in their possession.” Id. (citing U.S.
v. Johnson, 777 F.3d 1270, 1275). “Here, the investigation into whether [McKathan’s] use of the
[phone] violated the terms of his probation is the ‘lawful means which made discovery
inevitable.’” Id. (citing Johnson, 777 F.3d at 1275). This search began before, and was independent
of, the compelled statements. See e.g., Johnson, 777 F.3d at 1277 (noting the officer’s investigation
of the truck started before, and was independent of, his illegal search). “No more than reasonable
suspicion was needed to conduct a warrantless search of [McKathan’s] phone,” and “reasonable
suspicion to search for evidence of a probation violation existed…” Bishop, 682 Fed.Appx. at 907.
A further search, in turn, “would have been lawful and likely would have led to the discovery of
child pornography on the phone.” Id. at 910.
Also, the objective of the exclusionary rule would not be met here by excluding this
evidence. See e.g., Johnson, 777 F.3d at 1275 (rejecting defendant’s narrow reading of active
pursuit, explaining that the purpose of the active pursuit requirement was to ‘exclude evidence that
was not being sought in any fashion.’”). If the evidence of child pornography was not admissible,
“we would put the government in a worse position than had the [alleged ] misconduct not occurred,
an outcome that the inevitable discovery exception was fashioned to avoid.” Johnson, 777 F.3d at
1275. “Subtract the illegal search from the factual picture in this case and nothing of substance
would have changed.” Id. at 1274 (alteration adopted) (internal quotation marks omitted). Thus,

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because this evidence would have otherwise been admissible, McKathan’s Section 2255 is
DENIED.
III. 	Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the “district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” 18
U.S.C. foll. § 2255, Rule 11(a). “A certificate of appealability may issue ‘only if the applicant has
made a substantial showing of the denial of a constitutional right.’ ” Spencer v. United States, 773
F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)).
When the district court “has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The 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). Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
(“Under the controlling standard, a petitioner must show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.” (citations
omitted and punctuation modified).). “A prisoner seeking a COA must prove something more than
the absence of frivolity or the existence of mere good faith on his or her part.” Miller-El, 537 U.S.
at 338 (quotations omitted).
The issues this Court previously considered “adequate to deserve encouragement to
proceed further,” warranting a certificate of appealability, have been thoroughly considered and
addressed by the Eleventh Circuit. Therefore, upon consideration, a certificate of appealability is
DENIED. McKathan has not made a substantial showing of the denial of a constitutional right,

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and reasonable jurists would not find this Court's assessment of his claim as “debatable or wrong.”
Slack, 529 U.S. at 484.
IV. 	In Forma Pauperis
“An appeal may not be taken in forma pauperis if the trial court certifies in writing that it
is not taken in good faith.” 28 U.S.C. § 1915(a)(3). A district court’s finding:
that an appeal would not be in good faith because no certificate of appealability had
been issued . . . is not enough to explain why the appeal on the merits would not be
in good faith, because the standard governing the issuance of a certificate of
appealability is not the same as the standard for determining whether an appeal is
in good faith. It is more demanding . . . [T]o determine that an appeal is in good
faith, a court need only find that a reasonable person could suppose that the appeal
has some merit.
Walker v. O’Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). And see Ghee v. Retailers Nat'l Bank,
271 Fed.Appx. 858, 859-60 (11th Cir. 2008) (citing Coppedge v. United States, 369 U.S. 438, 445
(1962) (finding that a “party demonstrates good faith by seeking appellate review of any issue that
is not frivolous when examined under an objective standard,” and noting that a non-frivolous claim
is one “capable of being convincingly argued,” so that “where a claim is arguable, but ultimately
will be unsuccessful, it should be allowed to proceed”) (internal quotations omitted)); DeSantis v.
United Techs, Corp., 15 F.Supp.2d 1285, 1288-89 (M.D. Fla. 1998) (stating that good faith ‘must
be judged by an objective, not a subjective, standard’ and that an appellant ‘demonstrates good
faith when he seeks appellate review of any issue that is not frivolous’), aff’d, 193 F.3d 522 (11th
Cir. 1999)).
“An appeal is not taken in good faith if it is plainly frivolous.” Johnson v. Thomas, 2005
WL 3005545, *1 (S.D. Ala. November 8, 2005); Busch v. County of Volusia, 189 F.R.D. 687, 692
(M.D. Fla. Dec. 16, 1999) (“The Petitioner demonstrates good faith when she seeks appellate
review of any issue that is not frivolous.”). An appeal filed in forma pauperis is frivolous if “it

14
appears that the Plaintiff has little to no chance of success,” meaning the “factual allegations are
clearly baseless or that the legal theories are indisputably meritless.” Carroll v. Gross, 984 F.2d
392, 393 (11th Cir. 1993). But see United States v. McCray, Nos. 4:07cr20-RH, 2012 WL
1155471, *2 (N.D. Fla. Apr. 5, 2012) (“Because the defendant has not obtained—and is not entitled
to—a certificate of appealability, any appeal by the defendant will not be taken in good faith. I
certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good
faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal[]”).
In consideration of the issues addressed herein, the Court finds and certifies that any appeal
by McKathan in this action would be without merit and therefore not taken in good faith.
Accordingly, McKathan is not entitled to appeal in forma pauperis.
V. 	Conclusion
For the reasons stated herein, Defendant’s Motion to Vacate pursuant to 28 U.S.C. § 2255
is DENIED; McKathan is not entitled to the issuance of a certificate of appealability, and is not
entitled to proceed in forma pauperis.
DONE and ORDERED this the 23rd day of February 2021.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE