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 third motion for
relief from the judgment and order denying his motion pursuant to 28 U.S.C. § 2255. McKathan
moves pursuant to Rule 60(b)(4) (“the judgment is void”) of the Federal Rules of Civil
Procedure (doc. 183) and Clisby v. Jones, 960 F. 2d 925, 936 (11th Cir. 1992). Upon
consideration, and for the reasons set forth herein, the third motion is DENIED.
A. Background
The Court initially denied in part and granted in part McKathan’s motion to vacate
pursuant to § 2255 (docs. 95, 97). His argument that he was not eligible for a 5-level
enhancement pursuant to U.S.S.G. § 2G2.2(b)(5) was granted, and he was resentenced (doc. 97).
His argument that his guilty plea was not knowing and voluntary because of inadequate
assistance of trial counsel was denied (Id.).
The Court of Appeals for the Eleventh Circuit vacated the denial and remanded the §
2255 motion. The Eleventh Circuit found that McKathan “faced a ‘classic penalty situation’
when his probation officer asked him to answer questions that would reveal he had committed
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new crimes” (doc. 123, p. 3) (new crimes which resulted in this action). And that the answers
and evidence resulting therefrom, were compelled in violation of the Fifth Amendment and
inadmissible in a criminal prosecution (Id.) The Eleventh Circuit explained that
McKathan’s attorneys never raised this argument during his criminal
proceedings on the newly revealed crimes. Had they done so and on that basis
filed a motion to suppress the statements McKathan made and the evidence the
government derived from those statements, the government would have had to
establish that it nonetheless would have obtained the incriminating evidence
against McKathan through other, lawful means. If the government had been
unable to do so, it is reasonably likely that McKathan would have prevailed on
his suppression motion, and the outcome of McKathan’s case would have been
different. As a result, McKathan would be entitled to habeas relief upon a
showing that his counsel’s performance was deficient in failing to raise this
argument. But because the current record lacks information concerning
whether the evidence derived from McKathan’s statements otherwise would
have been admissible, we vacate the district court’s denial of McKathan’s 28
U.S.C. § 2255 motion and remand for further proceedings consistent with this
opinion.
(Doc. 123, p. 3-4).
The Eleventh Circuit explained that in the proceedings on remand, the United States
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) (citation omitted).
The Court held an evidentiary hearing and found that the evidence would have been
otherwise admissible (doc. 153). The Court denied McKathan’s §2255 motion and denied his
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Certificate of Appealability. The Eleventh Circuit denied his motion for Certificate of
Appealability (doc. 162).
McKathan then moved pursuant to Fed. R. Civ. P. 60(b)(4) and 60(b)(6) (doc. 163). His
motion was denied (doc. 169). The Court found that McKathan failed to show a defect in the
integrity of the § 2255 proceedings and that to the extent he sought to reassert his claims for
relief, or raise new claims, related to the alleged ineffective assistance of counsel, his motion was
the equivalent of a second or successive motion and therefore, barred by § 2255(h). The Court
also explained that without approval from the Eleventh Circuit, it lacked jurisdiction to address
the motion. The Eleventh Circuit affirmed this Court’s decisions (doc. 176).1
B. Analysis
McKathan now moves pursuant to Fed. R. Civ. P. 60(b)(4) and Clisby v. Jones, 960 F. 2d
925, 936 (11th Cir. 1992) to reopen his § 2255 proceedings (doc. 183). “When a pro se plaintiff
brings a motion under Rule 60, the district court may construe it as a § 2255 motion, and if
applicable, treat it as an unauthorized second or successive motion.” Ramdeo v. United States,
2023 WL 7151995, at *1 (11th Cir. Oct. 31, 2023) (citing Farris v. United States, 333 F.3d 1211,
1216 (11th Cir. 2003)). “Rule 60(b) motions should be considered impermissible second or
successive § 2255 motions if the movant is attempting to (1) raise a new ground for relief, or (2)
attack a federal court's previous disposition of a claim on the merits.” Wukoson v. United States,
No. 23-10222, 2024 WL 1803087, at *2 (11th Cir. Apr. 25, 2024) (citing Williams v. Chatman,
510 F.3d 1290, 1293-94 (11th Cir. 2007)).
1 McKathan’s motions for relief from his judgment, based on other grounds, were denied (docs.
175, 181, 184, 185, 164, 167).
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“Conversely, a Rule 60(b) motion that merely attacks a defect in the integrity of the
federal habeas proceeding, such as an allegation that the district court failed to reach the merits
of a movant's claims, should not be deemed second or successive, and the district court may rule
on such a motion.” Id. (citing Gonzalez v. Crosby, 545 U.S. 524, 532, 538 (2005) and citing
Santa v. United States, 492 Fed. Appx. 949, 950-51 (11th Cir. 2012) (unpublished)). “Generally,
to attack a defect in the integrity of the § 2255 proceedings … 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.” Howell v. United States, 2022 WL 175484, at *2 (11th Cir. Jan. 19, 2022)
(citation omitted). Overall, 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.” Howell, 2022 WL 175484, at *2 (citing Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.
1992) (en banc) and Rhode v. United States, 583 F.3d 1289, 1291–92 (11th Cir. 2009) (applying
Clisby in the § 2255 context)).
McKathan alleges a defect in the integrity of his § 2255 proceedings. He argues that
The courts judgment is void because [he] has never had an un-obstructed
opportunity to prove his immunity and that the indictment was due to be
dismissed, despite raising the issue pro se. This is because a Federal Magistrate
Judge usurped Article III power by ruling on these dispositive issues prior to
an evidentiary hearing without de novo review by an Article III judge.
(Doc. 183, p. 2) (sic).
As background, McKathan states that when he filed his pro se § 2255 motion to vacate,
he argued that counsel was ineffective for failing to file a motion to dismiss the indictment on
grounds that he should have been immune under the Fifth Amendment (doc. 183, p. 2, citing
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doc. 51, the pro se motion). McKathan also states that in his reply to the United States’ response,
he argued that “‘a competent attorney would have filed a motion to dismiss’ and that he
“specifically told the court that ‘[n]o indictment should have ever issued.” (Id., citing doc. 54, p.
16, the reply). He also argued that he should have been “provided immunity with respect to the
compelled disclosures”, i.e., not indicted (Id., citing doc. 54, p. 15)
On pages 13-16 of the reply, and relevant to this motion, McKathan argued that the
United States had engaged in prosecutorial misconduct because it presented evidence to the
grand jury that had been obtained in violation of the Fifth Amendment. He also argued that a
competent attorney would have filed a motion to dismiss the Indictment on these grounds. He
argued that
To the extent that Respondent seeks to do away with the Fifth Amendment,
Respondent should seek to do so through the amendatory process to the
Constitutions and not by abuse of the grand jury process and baseless
prosecution. No indictment should have ever issued. Any indictment that did
issue would have placed a burden upon the court to act sua sponte and dismiss it
by exercising its supervisory powers over the administration of justice. In the
alternative, a competent attorney would have filed a motion to dismiss.
Respondent has distorted the facts and misrepresented the law to the court.
Prosecutorial abuse of the grand jury process has taken place to initiate a series
of proceedings that are nothing short of fraudulent.
(Doc. 54, p. 15-16) (emphasis added).
McKathan points out that after he filed this reply, the Magistrate Judge appointed counsel
for the purpose of filing an amended motion and explained that the amended motion would
supersede the pro se motion and become the operative pleading (doc. 55). The Magistrate Judge
ordered appointed counsel to file an amended motion which would clarify the issues, stating that
“[a]s it stands now, the undersigned is finding it hard to identify all issues petitioner wishes this
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Court to address (compare Doc. 51 [pro se motion to vacate] with Doc. 54 [reply]).” (Id.) (citing
Footnote Four). The Magistrate Judge also set an evidentiary hearing (Id.).
The alleged usurpation of Article III authority occurred in Footnote Four, as follows:
Moreover, the Court is unable to wrap its head around certain arguments
petitioner seems to be making. For instance, his suggestion in his reply that the
indictment should have been dismissed because any and all evidence before the
grand jury was tainted (see Doc. 54, at 2) can simply find no traction given that
an indictment is not invalidated by the grand jury’s consideration of
incompetent or unconstitutionally-obtained evidence. See Bracy v. United
States, 435 U.S. 1301, 1302, 98 S.Ct. 1171, 1172, 55 L.Ed.2d 489 (1978)
(denying application) (“The grand jury does not sit to determine the truth of the
charges brought against a defendant, but only to determine whether there is
probable cause to believe them true, so as to require him to stand his trial.
Because of this limited function, we have held that an indictment is not
invalidated by the grand jury’s consideration of hearsay, . . ., or by the
introduction of evidence obtained in violation of the Fourth Amendment . . . .
While the presentation of inadmissible evidence at trial may pose a substantial
threat to the integrity of that factfinding process, its introduction before the
grand jury poses no such threat.”); United States v. Calandra, 414 U.S. 338,
344-345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974) (“The grand jury’s sources
of information are widely drawn, and the validity of an indictment is not
affected by the character of the evidence considered. Thus, an indictment valid
on its face is not subject to challenge on the ground that the grand jury acted on
the basis of inadequate or incompetent evidence . . .[,] or even on the basis of
information obtained in violation of a defendant’s Fifth Amendment privilege
against self-incrimination[.]”); In re Grand Jury Proceedings, 142 F.3d 1416,
1425 (11th Cir. 1998) (“Recognizing the independence of the grand jury, the
Court has explained that although the grand jury ‘may not itself violate a valid
privilege,’ it may consider incompetent evidence . . ., as well as evidence
obtained in violation of the Fourth Amendment. . . . Furthermore, Supreme
Court precedent suggests that a grand jury indictment obtained through the use
of evidence previously obtained in violation of the privilege against self-
incrimination is nonetheless valid.”). Against this backdrop, petitioner’s
additional prosecutorial misconduct argument related to evidence presented to
the grand jury (see Doc. 54, at 13-16) obviously fails, the cases cited by
McKathan, United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037, 147 L.Ed.2d
24 (2000) and United States v. Holloway, 74 F.3d 249 (11th Cir. 1996) being
factually and legally inapposite to the present case. Compare Hubbell, supra,
530 U.S. at 29-30, 120 S.Ct. at 2040 (“The two questions presented concern
the scope of a witness’ protection against compelled self-incrimination: (1)
whether the Fifth Amendment privilege protects a [] witness from being
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compelled to disclose the existence of incriminating documents that the
Government is unable to describe with reasonable particularity; and (2) if the
witness produces such documents pursuant to a grant of immunity, whether
18 U.S.C. § 6002 prevents the Government from using them to prepare
criminal charges against him.” (footnotes omitted; emphasis supplied)) with
Holloway, supra, 74 F.3d at 250 (“In this criminal appeal, the district court
dismissed an indictment because an assistant United States Attorney, at the
taking of depositions in a civil matter, assured the appellees that no criminal
prosecutions would be brought against them. We affirm.” (emphasis
supplied)).
(Doc. 55, p. 3-4) (emphasis in original).2
Based upon footnote four, McKathan argues that “Article III Power” was usurped when
[his] pro se motion to vacate was assigned to a Magistrate who opined that
petitioner’s argument “that the indictment should have been dismissed . . . can
simply find no traction” [ ]. The Magistrate also opined that “the cases cited by
McKathan … being factually and legally inapposite to the present case” Id. While
those cases are clearly not “inapposite”, the Magistrate disposed of them, which
only an Article III judge can do.
(Doc. 55, p. 3-4).
McKathan argues that the Magistrate Judge should not have disposed of his argument.
He argues that the Magistrate Judge should have held an evidentiary hearing on this issue, and
issued a report and recommendation to which McKathan could object, and “which would then be
subject to Article III review” (doc. 183, p. 5). He argues that ruling on this issue in this manner
denied him due process and resulted in a “Clisby error by precluding Article III review” (Id.)3
2 On page 2 of the reply, McKathan argued that “Presumably, to obtain an indictment, the
government presented evidence of some kind to the grand jury. Yet there exists no untainted
evidence and by introducing compelled testimony or evidence derived therefrom, the Fifth
Amendment was violated, as, ‘A grand jury proceeding is at the heart of a criminal case. Without
an indictment there is no trial’ [citation omitted]. The indictment itself was constitutionally
invalid and should have been dismissed.” (doc. 54, p. 2, 14).
3 McKathan appears to rely on Clisby for the holding that the district courts must resolve all
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McKathan perceives the statement in Footnote Four as dispositive of his argument of
prosecutorial misconduct and ineffective assistance of counsel. McKathan argues that “in this
context”, with this issue having been decided by the Magistrate Judge, appointed counsel filed an
amended motion, which “omitted any ineffective assistance of counsel claims based of Counsel’s
advice to plead guilty despite immunity and despite an invalid indictment” (Id., p. 4) (sic).
Review of the amended motion (doc. 61) indicates that appointed counsel did not raise this
argument.
McKathan argues that “these errors” were initially harmless, because the amended
motion focused on suppression of the evidence. He points out that “[s]ince the government’s
knowledge that a crime was even occurring was derived from compelled testimony there would
be no functional distinction from suppressing all evidence of a criminal activity and dismissing
the indictment.” (doc. 183, p. 5). He argues that “only after the 11th Circuit used oral argument
to sua sponte raise inevitable discovery and ordered a second evidentiary hearing that those
harmless errors [by the Magistrate Judge] became harmful.” (Id., p. 5-6) (bracketed text added).
The Court finds no defect in the § 2255 proceedings. The Magistrate Judge’s statements
in Footnote Four were not a dispositive decision or order, and thus review by a district judge was
not necessary. An overall reading of the Order indicates that the Magistrate Judge gave the
movant guidance as to issues that needed clarification. The Order discussed some of the
arguments raised by the parties, explained that an evidentiary hearing was necessary, set the
hearing, and appointed counsel (doc. 55). Footnote Four grew out of this paragraph:
In addition, setting an evidentiary hearing and appointing counsel will also
claims for relief raised in habeas proceeding, “regardless of whether relief is granted or denied.”
Clisby, 960 F.2d at 936.
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allow the Court to “streamline” this case and determine the exact issues petitioner
intends to “press” in his motion to vacate by requiring counsel to file an amended
motion to vacate which specifically delineates and identifies the issues. As it stands
now, the undersigned is finding it hard to identify all issues petitioner wishes this Court
to address3 (compare Doc. 51 with Doc. 54).4
(Doc. 55, p. 3).
In Footnote Four the Magistrate Judge explained that the “Court is unable to wrap its
head around certain arguments petitioner seems to me making” (Id.). He then used McKathan’s
argument that the Indictment should have been dismissed because the United States presented
evidence obtained in violation of the Fifth Amendment to the grand jury (i.e., “prosecutorial
misconduct”) as a “For instance,” or example of the confusing arguments or non-viable claims
which appointed counsel should sort and clarify (Id.). Footnote Four followed Footnote Three
wherein the Magistrate Judge also expressed confusion regarding McKathan’s claims,
concluding that “Appointed counsel can certainly put an end to all such confusion.” (Id.).
Moreover, McKathan’s appointed counsel filed an amended § 2255 motion which
clarified the issues and superseded the earlier pro se motion and reply (doc. 61). McKathan’s pro
se argument - that the United States engaged in prosecutorial misconduct by presenting evidence
to the grand jury that was obtained in violation of the Fifth Amendment which resulted in an
invalid Indictment and that counsel was ineffective for failing to move to dismiss the Indictment
on these grounds - was abandoned.
DONE and ORDERED this the 10th day of October 2024.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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