USA v. McKathan

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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 fourth motion for
relief from the judgment and order denying his motion pursuant to 28 U.S.C. § 2255 (doc. 200).
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
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
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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
Certificate of Appealability. The Eleventh Circuit denied his motion for Certificate of
Appealability (doc. 162).
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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 28 U.S.C. § 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).
McKathan again moved pursuant to Fed. R. Civ. P. 60(b)(4) and 60(b)(6) to reopen his §
2255 habeas proceedings (doc. 175). The United States’ motion for a more definite statement
was granted and McKathan filed an amended motion (doc. 181). As defects in the § 2255
proceedings, he alleged unlawful and unconstitutional collusion between the Administrative
Office of the U.S. Courts (the judicial branch) and the United States Attorney (the executive
branch), spoliation of evidence, and unauthorized practice of law on the part of an assistant
counsel for the AO. His claims were based on a series of emails obtained by a Freedom of
Information Act request. The motion was denied (doc. 185). The Court denied his application
for a Certificate of Appealability (doc. 186). The Eleventh Circuit also denied McKathan’s
application for a Certificate of Appealability (doc. 197).
McKathan again moved pursuant to Rule 60(b)(4) and Clisby v. Jones, 960 F. 2d 925,
936 (11th Cir. 1992) (doc. 183). As a defect in the habeas proceedings, he argued that the
Magistrate Judge usurped Article III power by disposing of an argument. Specifically, in his
reply, McKathan argued that his trial counsel was ineffective for not arguing that the United
States Attorney engaged in prosecutorial misconduct by presenting tainted evidence to the Grand
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Jury. McKathan believed the evidence was tainted because it had been obtained in violation of
his 5th Amendment privilege against self-incrimination. The Magistrate Judge stated in the
Report and Recommendation that this argument “can simply find no traction given that an
indictment is not invalidated by the grand jury’s consideration of incompetent or
unconstitutionally obtained evidence” (doc. 198, p. 7, citing doc. 55, p. 3-4, n.4).
McKathan’s motion was denied (doc. 198). The Court found that the Magistrate Judge’s
statement was “not a dispositive decision or order, and thus review by a district judge”, i.e., and
Article III judge, “was not necessary” (Id.). The Court also stated that McKathan’s § 2255
counsel did not pursue this ineffective assistance of counsel argument when the amended § 2255
motion was filed (Id.). Thus, there was no defect in the § 2255 proceedings.
B. Analysis
McKathan moves pursuant to Rule 60(b)(4) and 60(b)(6) (doc. 200). “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). In the alternative, a Rule
60(b) motion may be used to “attack a defect in the integrity of the § 2255 proceedings” and in
that circumstance, the “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,
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2022 WL 175484, at *2 (11th Cir. Jan. 19, 2022) (quoting Dickey v. United States, 856 Fed.
Appx. 809, 811 (11th Cir. 2021).
As a defect in the habeas proceedings, McKathan argues that his § 2255 counsel was
constitutionally ineffective because counsel did not include the above-discussed ineffective
assistance of trial counsel claim in the amended § 2255 motion. McKathan argues that “no
competent attorney would have amended out the pro se claims of immunity or an invalid
indictment given the wealth of precedent supporting those claims” (Id., p. 2). He argues that
“[b]ecause the judgment denying [his] § 2255 motion is the product of ineffective assistance of
counsel, the court should reopen the 2255 proceeding so that [he] may proceed on his
immunity/invalid indictment claims as originally raised in the pro se pleadings without the
obstruction of a lawyer that was never requested.” (Id.).
McKathan’s motion is due to be dismissed because his “ineffective assistance of §2255
counsel claim is an attempt to relitigate his claim that his trial attorney was ineffective”. Dickey,
856 Fed. Appx. at 812. As the Court of Appeals for the Eleventh Circuit has explained:
While [Dickey] couches his argument in procedural terms -- that the court was
precluded from reaching the merits because of some procedural problem or
because of the ineffectiveness of his § 2255 counsel – Dickey is simply attacking
the district court’s resolution of the merits of his ineffective assistance of counsel
claim. See Gonzalez, 545 U.S. at 532 n.5, 125 S.Ct. 2641. It is unclear how his §
2255 counsel abandoned his ineffective assistance of trial counsel claim, as
Dickey argues, because the district court held an evidentiary hearing about it with
testimony from his trial attorneys. And Dickey provides no support for his
proposition that a district court is somehow precluded from reaching the merits of
an ineffective assistance of counsel claim because of a disagreement between the
prisoner and his § 2255 counsel about how to best present that claim.
Dickey, 856 Fed. Appx. at 812
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Before this Court may address McKathan’s second or successive § 2255 motion, he must
obtain an order from the Eleventh Circuit authorizing this Court to consider his motion. 28
U.S.C. § 2255(h) and § 2244(b)(3) (“Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.”); Rule 9 of the Rules
Governing Section 2255 Proceedings for the United States District Courts (a party must obtain
authorization from the appropriate court of appeals before presenting a second or successive
motion). The Eleventh Circuit has explained that without authorization, the district courts lack
jurisdiction to consider a second or successive motion. Baker v. United States, 791 Fed. Appx.
884 (11th Cir. Jan. 28, 2020) (quoting United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005)).
C. Conclusion
Since McKathan has not obtained authorization from the Eleventh Circuit, his motion is
dismissed for lack of jurisdiction.
D. Certificate of Appealability
A “certificate of appealability is not required if the district court dismisses a § 2255
motion for lack of jurisdiction.” Cobb v. United States, No. 22-13909, 2024 WL 470346, at *1,
n.1 (11th Cir. Feb. 7, 2024) (citing Becker v. Montgomery, 532 U.S. 757, 765–66 (2001) and
Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)).
DONE and ORDERED this the 2nd day of July 2025.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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