USA v. McKathan

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENZIL EARL McKATHAN, 	)
)
Petitioner, 	)
)
vs. 	) 	Criminal Action No. 14-00290-KD-C
) 	Civil Action No. 15-00611-KD-C
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
ORDER
This action is before the Court on Petitioner Denzil Earl McKathan’s motion for relief
from a judgment or order under Rule 60(b) of the Federal Rules of Civil Procedure and
Supplement (docs. 163, 165).1 Upon consideration, and for the reasons set forth herein, the
motion is DENIED for failure to show a defect in the integrity of the remand proceedings.
I. Background2
In relevant part, in November 2015, McKathan filed a pro se petition to vacate, set aside,
or correct his conviction under 28 U.S.C. § 2255. He asserted that his attorneys had been
ineffective, in violation of the Sixth Amendment, because they did not challenge the admission
of his statements to his Probation Officer regarding his cell phone and the fruits of those
statements, all of which, McKathan alleged, had been obtained in violation of the Fifth
Amendment.
1 McKathan’s motion for a status conference (doc. 166) and motion for a ruling (doc. 168) are
MOOT.
2 A more detailed history of the events preceding the § 2255 motion is found in the opinion of the
Court of Appeals for the Eleventh Circuit and the Court’s post-remand order (docs. 123, 153).
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With the assistance of appointed counsel, McKathan filed an amended §2255 motion
asserting, inter alia, that his previous attorneys were constitutionally deficient for failing to argue
a Fifth Amendment violation as a basis to suppress his statements about his cell phone and his
PIN, as well as the evidence derived from the phone. Following an evidentiary hearing, the
Magistrate Judge issued a report and recommendation recommending denial of McKathan's §
2255 claim. The report and recommendation were based solely on the finding that McKathan
failed to show that his attorneys alleged deficient performance had prejudiced his defense.3 This
Court adopted the report and recommendation. McKathan was denied a certificate of
appealability (COA) and leave to proceed in forma pauperis on appeal.
McKathan then moved pursuant to Rule 59(e), Fed. R. Civ. P., for this Court to
vacate its judgment and grant his ineffective assistance of counsel claim. In the alternative,
McKathan asked the Court to issue a 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.” (doc.
99). His motion to vacate the prior judgment was denied, but the Court granted a COA (doc.
110). McKathan filed a notice of appeal (doc. 112).
The Court of Appeals for the Eleventh Circuit vacated the denial of McKathan’s § 2255
motion as to his ineffective assistance of counsel claim and remanded the action for further
proceedings. Because this Court denied McKathan’s motion without considering counsel’s
performance under the first factor in Strickland v. Washington, 466 U.S. 668 (1984), the
3 “In this instance, there is no reason for this Court to discuss the first prong – that is, deficient
performance – of the Strickland standard inasmuch as McKathan has failed to prove prejudice[.]”
(Doc. 84, p. 31-32) (footnote omitted) (citation omitted). See Strickland v. Washington, 466 U.S.
668 (1984).
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Eleventh Circuit limited its analysis to the prejudice requirement, the second of the Strickland
factors. The Eleventh Circuit explained
In assessing the likelihood of success of a suppression motion based on the Fifth
Amendment, we must first evaluate the underlying Fifth Amendment legal issue. If
that has merit, we must then consider whether, despite the legal virtue of a Fifth
Amendment argument, McKathan’s statements and their fruits would have
nonetheless been admissible for an independent reason. Only if the answer to this
second question is “no” can McKathan demonstrate that a motion to suppress based
on the Fifth Amendment would have been reasonably likely to affect the outcome
of his case. Therefore, in Section III.A., we evaluate the Fifth Amendment issue.
Since we find that it has merit, in Section III.B., we consider whether the
government had any independent basis for admission of McKathan’s statements
and their fruits.
(Doc. 123, p. 16).
The Eleventh Circuit found that “there is a reasonable likelihood that a Fifth Amendment
suppression motion would have been successful.” (Id., p. 34). As to whether the United States
“had any independent basis for admission of McKathan’s statements and their fruits[,]” the
Eleventh Circuit found as follows:
In particular, the government suggests that it would have inevitably discovered
the evidence of child pornography on McKathan’s phone, since McKathan’s
supervised release required him to consent to reasonable searches, and Goodwin
had reason to suspect he was violating the terms of his release. Goodwin’s beliefs
were based on the following: McKathan had a Facebook account and opened it
with an Android phone, and he had an Android phone on his bed.
The “inevitable discovery” doctrine applies when the government can show by a
preponderance of the evidence that it would have discovered the evidence by
some other lawful means. See Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016)
(“[T]he inevitable discovery doctrine allows for the admission of evidence that
would have been discovered even without the unconstitutional source.”); Nix v.
Williams, 467 U.S. 431, 444 (1984). For that doctrine to apply in this Circuit, the
government must also demonstrate that before the unlawful activity occurred, it
was actively pursuing the lawful means that would have rendered discovery
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inevitable. United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007). The
inevitable-discovery doctrine can apply when a Fifth Amendment violation
occurs. United States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir. 1987)
(per curiam).
Here, in the context of McKathan’s § 2255 Case, the district court had no reason
to analyze—and the government had no reason to argue—whether the inevitable-
discovery doctrine could apply, since the district court determined that McKathan
could not prevail on his Fifth Amendment argument.8 For these reasons, the
record lacks information that would allow us to assess the viability of an
inevitable-discovery argument. Therefore, we cannot determine whether, as a
legal matter, the government would have been permitted to search McKathan’s
phone. Nor can we assess the government’s proffer at oral argument that it would
have been able to view the contents without compelling McKathan to provide his
PIN to unlock it, since it “has tools and has methods, and has used them in many
cases to get in[to] [phones] before.” Oral Argument at 24:17–24:23.
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 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.
Therefore, we must vacate the denial of McKathan’s § 2255 motion and remand for
further proceedings. In those proceedings, the government must receive the
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. Should the district court conclude that the
evidence would have been otherwise admissible, it shall deny the § 2255 motion,
since filing the Fifth Amendment suppression motion would not have been
reasonably likely to change the outcome in McKathan II. But should the district
court determine that the evidence would not have been otherwise admissible, it
shall address whether McKathan’s counsel performed deficiently by failing to raise
the Fifth Amendment issue in McKathan II.
(Doc. 123, p. 37) (footnote 8 omitted).
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The parties filed their respective post-remand briefs (docs. 126, 135). McKathan also
engaged in limited discovery (docs. 127, 129, 131, 132, 136, 139, 143, 149). The Court held an
evidentiary hearing on February 4, 2021.
On February 23, 2021, the Court entered an order finding that “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.” (doc. 153, p.
7). Applying the inevitable discovery exception, the Court found that the evidence would have
otherwise been admissible (doc. 153, p. 7-11). The Court denied McKathan’s § 2255 motion to
vacate, and denied a COA and IFP (Id.)
McKathan filed a notice of appeal and notice that he would seek in forma pauperis status
and a COA in the Eleventh Circuit (doc. 154). On November 30, 2021, the Eleventh Circuit
denied McKathan’s motion for COA, motion for appointment of counsel, and his motion to
proceed in forma pauperis was denied as moot (doc. 162).
McKathan has now filed a “Motion to Reopen § 2255 Proceedings under Rule 60(b)(4)
and 60(b)(6)” (doc. 163). In a supplement, he moves the Court to construe his motion as also
raising a claim under Rule 60(b)(1) because of the “errors and mistakes as set out in the Rule
60(b) motion” (doc. 165). McKathan argues that this Court’s order entered February 23, 2021, is
subject to Rule 60(b) analysis because the Ҥ 2255 proceedings were fundamentally defective,
incomplete, and antithetical to due process of law.” (doc. 163).
II. Rule 60(b)
Rule 60(b) addresses “[r]elief from a judgment or order.” The Rule sets forth in relevant
part as follows:
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(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, . . .;
(4) the judgment is void; …
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The Supreme Court recently held “that a judge's errors of law are indeed ‘mistake[s]’
under Rule 60(b)(1).” Kemp v. United States, 142 S. Ct. 1856 (2022). “A judgment is ‘void’
under Rule 60(b)(4) ‘if the court that rendered it lacked jurisdiction of the subject matter, or of
the parties, or if it acted in a manner inconsistent with due process of law.’” Clements v. 3M
Elec. Monitoring, No. 21-12779, 2022 WL 15146786, at *6 (11th Cir. Oct. 27, 2022) (citation
omitted). Rule 60(b)(6) “is available only when the other grounds for relief specified in Rules
60(b)(1)-(5) are inapplicable.” Kemp, 142 S. Ct. at 1858.
Rule 60(c)(1) sets forth as follows: “A motion under Rule 60(b) must be made within a
reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). The order on remand
was entered February 23, 2021 (doc. 153). McKathan’s motion was filed January 14, 2022,
within the one-year period for a motion pursuant to Rule 60(b)(1). Although almost a year had
lapsed, the Court finds that the motion as to Rule 60(b)(4) and (6) was filed within a reasonable
time. The Eleventh Circuit denied McKathan’s motion for a COA on November 30, 2021.
A petitioner may file a Rule 60(b) motion to challenge non-merits aspects of a prior
habeas proceeding. Williams v. Chatman, 510 F. 3d 1290, 1295 (11th Cir. 2007). In the context
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of 28 U.S.C. § 2255,4 when the petitioner’s “Rule 60(b) motion attacks, not the substance of the
federal court's resolution of a claim on the merits, but some defect in the integrity of the federal
habeas proceedings” it may be considered a proper Rule 60(b) motion. Gonzalez v. Crosby, 545
U.S. 524, 532 (2005). If the petitioner “asserts that a previous ruling which precluded a merits
determination was in error—for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar”, that might be a proper Rule 60(b) motion. Id.,
at 532, n.4 (emphasis added).
However, a Rule 60(b) motion that “attacks the federal court's previous resolution of a
claim on the merits,” or seeks “to add a new ground for relief” constitutes a second or successive
habeas petition. Id., at 532 (emphasis in original). Overall, a Rule 60(b) motion is effectively a
second or successive habeas petition when it “seeks vindication of” or “advances” one or more
“claims.” Id., at 531-32. The motion may “be said to bring a ‘claim’ if it attacks the federal
court's previous resolution of a claim on the merits.” Id., at 532.
A Rule 60(b) motion may not be used to circumvent the statutory provision that before
filing a second or successive § 2255 petition, the petitioner “shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.A. §
2244(b)(3)(A); Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“Felker
established a ‘bright line rule’ that the successive-petition restrictions in § 2244(b) apply to all
Rule 60(b) motions filed by habeas petitioners”) (quoting Mobley v. Head, 306 F.3d 1096 (11th
4 United States v. Terrell, 141 Fed. Appx. 849, 851 (11th Cir. 2005) (“Although Gonzalez
addressed a Rule 60(b) motion and decided the issue only under § 2254, … we believe that its
holding and rationale apply equally to § 2255, and that it controls the disposition of this appeal.”)
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Cir. 2002)). The “bar on second or successive motions is jurisdictional”; therefore, the district
court lacks jurisdiction to consider a Rule 60(b) motion that is actually a second or successive §
2255 petition unless the petitioner has been granted permission to file from the Court of Appeals
for the Eleventh Circuit. In re Morgan, 717 F.3d 1186, 1193 (11th Cir. 2013); Farris, 333 F.3d at
1216 (“Without authorization, the district court lacks jurisdiction to consider a second or
successive petition”); United States v. Zachery, 581 Fed. Appx. 828 (11th Cir. 2014) (same).
As such, before the Court may address the merits of a Rule 60(b) motion, it must
determine whether the motion is an unauthorized second or successive habeas petition. “To
determine whether a prisoner's pro se motion is a second or successive § 2255 motion,” the Court
should “examine the content of the filing and the relief sought.” Walker v. United States, 367
Fed. Appx. 67, 68 (11th Cir. 2010). “A party's labeling of a motion is not binding on the Court,
which may discard an inappropriate label to render a decision based on the motion's substance.”
Soto-Herrera v. United States, 2013 WL 1788499, *2 (S.D. Ala. Apr. 26, 2013) (citing Smith v.
United States Parole Comm'n, 721 F.2d 346, 348 (11th Cir.1983) (per curiam)). Despite the title,
“a motion that collaterally attacks a prisoner’s sentence as being unconstitutional is a motion to
vacate under §2255.” Walker, 367 Fed. Appx. at 68.
III. Analysis
“Ground 1: The 2255 proceedings were defective because the district court failed to reach
the merits of multiple claims raised by petitioner that was necessary to fully resolve the case.”
McKathan argues that during the remand proceedings he “raised to the district court that:
petitioner was immune from criminal liability as a result of his compelled disclosures over a self-
executing Fifth Amendment privilege, that the indictment against petitioner would have been
dismissed on proper motion, and that United States v. Doe (In re Grand Jury Subpoena Duces
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Tecum), 670 F. 3d 1335 (11th Cir. 2012) was applicable to the issues presented” (doc. 163, p. 2).
He also “argued that ‘wholly independent source’ was the appropriate analysis to undertake in
the context of a Fifth Amendment violation.” (Id.). McKathan argues that “the district court ruled
on none of these dispositive legal arguments that were properly before it.” (Id., p. 3).
The Eleventh Circuit has held that a Rule 60(b) “motion that challenges the district
court's failure to reach the merits can be ruled upon by the district court without precertification”
by the Eleventh Circuit. Howell v. United States, No. 20-13143, 2022 WL 175484, at *1 (11th
Cir. Jan. 19, 2022) (citing Gonzalez, 545 U.S. at 538). “Generally, to attack a defect in the
integrity of the § 2255 proceedings and escape treatment as an impermissibly successive § 2255
motion, the Rule 60(b) motion must allege a fraud on the court or a procedural error that
prevented the court from reaching the merits of the § 2255 motion.” Id., at *2. The Eleventh
Circuit has “held that a district court must resolve all claims for relief—defined as any allegation
of a constitutional violation—raised in a § 2255 motion, regardless of whether relief is granted or
denied and regardless of whether the claims for relief arise out of the same operative facts.” Id.,
at *2 (citing Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc)).
Thus, the Court looks to whether it failed to reach the merits of McKathan’s claims
during the remand proceedings. To do so, the Court has compared its post-remand order (doc.
153) to McKathan’s brief on remand (doc. 135) and oral arguments (doc. 161). McKathan
argued that the applicable standard to determine whether the evidence was otherwise admissible
was the “wholly independent source” standard, as opposed to the “inevitable discovery doctrine”
advanced by the United States (doc. 135, p. 2-7). At the hearing on remand, McKathan argued
that he received immunity from prosecution when he answered the Probation Officer’s question,
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i.e., the compelled statements, and that the United States had to show a “wholly independent
source” for the compelled statements and evidence found on the phone (doc. 161, p. 6-17). The
Court addressed this argument in its order, concluding:
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. 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.
(Doc. 153, p. 5-7).
The Court’s order did not specifically find that McKathan was immune from “criminal
liability as a result of his compelled disclosures over a self-executing Fifth Amendment
privilege” such that the indictment against him “would have been dismissed on proper motion”
(doc. 163), i.e., a motion to suppress the evidence obtained from the compelled disclosures. The
Court did not need to address this claim because the Eleventh Circuit had already determined
that McKathan would have prevailed on a Fifth Amendment-based motion to suppress if it had
been raised. The issue on remand was whether the evidence obtained from his compelled
statements could have been otherwise admissible. Accordingly, the Court finds that the merits of
the claims McKathan raised during the remand proceedings were addressed. No defect in the
integrity of the habeas process having been identified, this argument does not provide any
grounds for relief from the post-remand Order denying McKathan’s § 2255 motion.
“Ground 2: The 2255 proceedings were defective because petitioner was improperly
denied discovery necessary for a full and fair opportunity to meet the government’s case.”
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McKathan argues that during the remand proceedings, he was denied discovery of the
Grand Jury testimony by the Homeland Security agent who testified regarding information on
McKathan’s cell phone (doc. 163, p. 5-6). Specifically, that he “was denied the grand jury
testimony of agent Anderson to further the as yet unresolved argument that petitioner’s
indictment was due to be dismissed, having been predicated entirely upon compelled testimony
or evidence derived therefrom” (Id., p. 5). McKathan also argues that during the remand
proceedings he was denied discovery of the “KRONOS and PACS” data generated by his
Probation Officer. 	McKathan states that denying this discovery was a violation of due process
because he did not receive a full and fair opportunity to rebut the United States’ argument
regarding inevitable discovery.
As to discovery regarding the Grand Jury testimony, McKathan raises substantially the
same arguments for allowing this discovery as were raised in the remand proceedings. (Compare
doc. 163, p. 5-6 to doc. 127, McKathan’s motion to produce and doc. 131, reply). As to the
“chronological entries (“chronos”) made” by the Probation Officer and “recorded in PACTS”,
McKathan previously argued that these entries “go directly to the government’s claim of
‘inevitable discovery’” (doc. 136, second motion for production; doc. 143, reply).
The Court granted McKathan’s first motion to produce in part, allowing information
related to the United States’ cell phone technology expert (doc. 132). However, the Court denied
production of the Grand Jury testimony of the Homeland Security agent. The Court found that
McKathan has not shown a particularized need for the grand jury testimony. The
viability of the indictment is not at issue here; SA Anderson’s testimony is not
relevant to the issues to be decided in this case. Accordingly, McKathan’s motion
as to the grand jury testimony is DENIED.
(Doc. 132).
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The Court granted McKathan’s second motion to produce in part, as stated on the record
at the remand hearing (doc. 149). The Court denied the motion except for McKathan’s August
2014 monthly supervision report. The Court conducted an in camera review of approximately
900 pages of Probation Office entries which included information regarding multiple other
defendants, as well as communications with the Court, and found that the entries did not contain
information that was relevant to the issues on remand (doc. 161, p. 2-5).
The Court’s decision to deny McKathan the full scope of his discovery request was not a
defect in the integrity of the remand proceedings. McKathan “is not entitled to discovery as a
matter of course.” Prada v. United States, 692 Fed. Appx. 572, 574 (11th Cir. 2017) (citing
Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Instead, “[l]eave
of court is required to pursue discovery, which courts only grant for good cause.” Id. McKathan
is challenging the merits of the Court’s decision to allow only limited discovery. No defect in
the integrity of the habeas process having been identified, this argument does not provide any
grounds for relief from the post-remand Order denying McKathan’s § 2255 motion.
“Ground 3: The 2255 proceedings were defective because petitioner was held to a
standard that is not applicable to § 2255 proceedings.”
McKathan argues that instead of the Strickland standard for prejudice, which requires
that a “petitioner merely needs to establish a ‘reasonable probability’ of a different outcome”, he
was held to the “‘McKathan standard’ which requires a petitioner to affirmatively prevail on a
pre-trial issue – inevitable discovery …”5 (doc. 163, p. 6). McKathan quotes from the Eleventh
5 McKathan also asserts that he was held to this standard “while simultaneously being denied
discovery relevant to the source.” He appears to mean the denial of discovery of the Grand Jury
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Circuit’s decision as to the issues to resolve on remand and argues that “without ever receiving
any briefing whatsoever on the issue, the Appeals panel established a materially different
standard.” (Id., p. 6-7). He argues that this Court “took things a step further” by finding on
remand that the compelled statements would have been inevitably discovered when it previously
found at the suppression hearing that “there’s no inevitable discovery here.” (Id., p. 7).
McKathan’s argument does not reveal a defect in the remand proceedings. The Eleventh
Circuit did not create a different standard. The Eleventh Circuit explained:
Therefore, we must vacate the denial of McKathan’s § 2255 motion and remand
for further proceedings. In those proceedings, the government must receive the
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. Should the district court conclude that the
evidence would have been otherwise admissible, it shall deny the § 2255 motion,
since filing the Fifth Amendment suppression motion would not have been
reasonably likely to change the outcome in McKathan II. But should the district
court determine that the evidence would not have been otherwise admissible, it
shall address whether McKathan’s counsel performed deficiently by failing to
raise the Fifth Amendment issue in McKathan II. See Strickland, 466 U.S. at 687.
(Doc. 123, p. 37). 	The Eleventh Circuit further explained that
To establish prejudice McKathan must show “a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial. … This inquiry in turn requires an evaluation of the merit of the
underlying Fifth Amendment challenge.
(Doc. 123, p. 39) (citation omitted).
In support, the Eleventh Circuit cited Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)
for its explanation
testimony given by the Homeland Security agent, which is addressed herein as Ground 2.
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that when defense counsel’s failure to litigate a suppression issue is the basis of
the ineffectiveness claim, in order to demonstrate prejudice, the defendant must
prove that his suppression claim is meritorious, and that there is a “reasonable
probability” that the suppression issue the attorney did not advance would have
affected the outcome of the case[.]
(Id.).
The same as in Kimmelman, to demonstrate prejudice, McKathan had to prove that had a
Fifth Amendment-based motion to suppress been raised by counsel, it would have been
meritorious. And as part of that proof, he also had to prove that the evidence he sought to
suppress would not have been otherwise admissible. No defect in the integrity of the habeas
process having been identified, this argument does not provide any grounds for relief from the
post-remand Order denying McKathan’s § 2255 motion.
“Ground 4: The 2255 proceedings were defective because the remanded hearing was a
judicially manufactured process that is untethered to § 2255.”
McKathan argues that
What has transpired in this case is a judicial hijacking of the 2255 process. The
government now claims – 6 years after the fact – that AUSA Williams-Maynard
was ‘not correct’ in the criminal case when she agreed on the record with the
court’s finding that there’s ‘clearly no inevitable discovery here.” The
government further argues that it has been prejudiced by Williams-Maynard’s
allegedly deficient conduct that but for her incompetence at the Feb. 2015
suppression hearing, the government would have prevailed on the inevitable
discovery issue.
Unfortunately, § 2255 does not create a remedy for the United States Attorney’s
Office. . . . While the jailing of sex offenders notwithstanding their Constitutional
rights might be a laudable goal, it is up to Congress to create that remedy, not for
the judiciary to invent a process that does not exist.
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(Doc. 163, p. 8-9). McKathan then outlines eight reasons why the “government 2255
process” is “absurd” (Id., p. 9). Specifically, eight steps the United States could have
taken to either challenge the Court’s “finding” of “no inevitable discovery here” at the
suppression hearing in the criminal action or argue that the evidence obtained in violation
of the Fifth Amendment was otherwise admissible (Id.). McKathan concludes that
“[g]etting eight bites at the inevitable discovery apple is procedurally ridiculous.” (Id.).
McKathan has failed to show a defect in the integrity of the remand proceedings.
Instead, he takes issue with the Eleventh Circuit’s decision to allow argument on an issue that
McKathan believes was resolved at the suppression hearing – that the Court found no evidence
of inevitable discovery with regard to his compelled statements. However, the Eleventh Circuit
explained
When it ruled on McKathan’s Fourth Amendment suppression motion in
McKathan II, the district court did say that it saw no basis for inevitable discovery
on the record before it at that time, and the government did not object. But that
did not occur in McKathan’s § 2255 Case. And at the time the district court
remarked on the inevitable-discovery doctrine, it had just ruled on a clearly
unmeritorious Fourth Amendment suppression motion (and the Fifth Amendment
argument had not been made at that time). So neither the court nor the
government had any reason to actually evaluate any alternative bases for
admission of the evidence from McKathan’s phone. Under these circumstances,
we cannot say that the government waived its right to pursue an inevitable-
discovery argument.
(Doc. 123, p. 36, n. 8).
Moreover, this Court has no jurisdiction to vary from the instructions on remand. See
United States v. Kirschner, 443 Fed. Appx. 480, 482 (11th Cir. 2011) (“The district court
followed our mandate and lacked jurisdiction to do anything more.”). No defect in the integrity
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of the habeas process having been identified, this argument does not provide any grounds for
relief from the post-remand Order denying McKathan’s § 2255 motion.
“Ground 5: The 2255 proceedings were defective because petitioner was denied a
procedural opportunity to examine relevant witnesses and raise additional legal arguments.”
McKathan points out that his Probation Officer testified at the remand hearing that in
2014 the Probation Office “did not have a way to get into the phone but we know agencies that
did” (doc. 163, p. 10) (citing doc. 161, p. 31). McKathan argues that “no ‘agency that did’
testified in support of [his Probation Officer’s] ‘assertion’” and that to so testify “it would violate
separation of powers principles.”6 (doc. 163, p. 10). He argues that he was “unable to subpoena
witness from the ‘agency that did’ [examine his cell phone] because the ‘agency that did’ has
never been identified, much less the agent …” (Id., p. 11). He argues that he “was denied a
procedural opportunity to question the relevant personnel who would supposedly execute a
forensic search about their training or equipment because none of these people have been
identified.” (Id.)7
McKathan is mistaken. Prior to the remand hearing, McKathan’s counsel was aware that
the cell phone had been delivered to agents of the Department of Homeland Security and that the
6 McKathan asserts that “[w]arrantless searches for evidence of internet use is a judicial act
performed by probation officers. If an “agency that did” such as law enforcement was acting as
an agent of the probation office to search for evidence of non-crime that would be illegal” (doc.
163, p. 10).
7 McKathan acknowledged that the United States offered the testimony of an expert regarding
methods used to access to cell phones in 2014 but points out that he was not the agent who
accessed McKathan’s phone (doc. 163, p. 11).
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agents examined the cell phone (doc. 127).8 Counsel contacted the United States Attorney as to
testimony by the lead agent for Homeland Security (doc. 147) and the lead agent testified at the
remand hearing (doc. 161, p. 78-86).9 Thus, McKathan cannot assert a defect in the integrity of
the habeas process on grounds that the agency or agent that examined his cell phone in 2014 has
not been identified. No defect in the integrity of the habeas process having been identified, this
argument does not provide any grounds for relief from the post-remand Order denying
McKathan’s § 2255 motion.
“Ground 6: The 2255 proceedings were defective because the government has corruptly
laundered a criminal case through the rules of civil procedure.”
McKathan argues that the “2255 proceedings were conducted under the rules of § 2255
and the rules of civil procedure because the 2255 is a civil case” (doc. 163, p. 12). He also
argues that he “has a due process right to have the admissibility of evidence in a criminal case be
determined according to the rules of criminal procedure, not the rules of civil procedure.” (Id.)
Pointing to testimony and evidence in his § 2255 remand proceedings,10 he argues that
“[b]ecause the government could not use the evidence that it used in the civil case, in petitioner’s
8 McKathan’s counsel sought production of the “cell phone which was taken by USPO Goodwin
. . . and subsequently analyzed by Homeland Security” (doc. 127, p. 1). Thus, counsel was
aware that agents of Homeland Security analyzed the cell phone in 2014.
9 McKathan’s counsel introduced into evidence the request to the Department of Homeland
Security Lab for examination of the phone (doc. 161, p. 85, Exhibit 6).
10 McKathan argues that his Probation Officer and the United States’ expert “used compelled
testimony and evidence derived therefrom as an ‘investigatory lead’ which would be prohibited
in a criminal case.” (doc. 163, p. 13).
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criminal case, they have instead laundered the evidentiary ruling through the civil case.” (Id., p.
13).
McKathan is mistaken. The Rules Governing Section 2255 proceedings specifically state
that “[t]he Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the
extent that they are not inconsistent with any statutory provisions or these rules, may be applied
to a proceeding under these rules.” Rules Governing § 2255 Proceedings, Rule 12, 28 U.S.C.A.
foll. § 2255. No defect in the integrity of the habeas process having been identified, this
argument does not provide any grounds for relief from the post-remand Order denying
McKathan’s § 2255 motion.
V. Conclusion
For the reasons set forth herein, McKathan failed to show a defect in the integrity of his §
2255 remand proceedings. Accordingly, his motion is DENIED.
To the extent that McKathan’s seeks to reassert his claims for relief, or raise new claims,
instead of identifying a defect in the integrity of his § 2255 remand proceedings, his motion is
the equivalent of a second or successive motion and therefore, barred by 28 U.S.C. § 2255(h).
Gonzalez, 545 U.S. 524, 532; Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011).
Without approval from the Eleventh Circuit, this Court lacks jurisdiction to address his motion.
DONE and ORDERED this the 16th day of November 2022.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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