USA v. McKathan

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DENZIL McKATHAN, 	:
Petitioner, 	:
CIVIL ACTION 15-00611-KD-C
v. 	:
CRIMINAL ACTION 14-00290-KD-C
UNITED STATES OF AMERICA, 	:
Respondent. 	:
ORDER
This matter is before the Court on the Federal Rule of Civil Procedure 59(e) Motion to
Vacate filed by Petitioner Denzil McKathan, the United States’ response, and Petitioner’s Reply.
(Docs. 99, 102, and 106). 	Petitioner moves the Court to either vacate its Order and Judgment
(Docs. 95, 97) or to grant a Certificate of Appealability. Upon consideration, the motion is
DENIED as to Petitioner’s request to vacate and GRANTED as to Petitioner’s request for a
Certificate of Appealabilty.
Though Petitioner’s Rule 59(e) motion is styled as a motion to vacate, Rule 59(e)
provides for alteration or amendment of a judgment. As such, the Court’s amends its previous
Order (Doc. 95) in order to fully address Petitioner’s Fifth Amendment based ineffective
assistance of counsel claim and to expand its additional findings contained in Doc 95. The
Judgment, entered May 31, 2017, remains in effect. (Doc. 97). See also Rule 60(a)(providing for
the Court’s own ability to correct an oversight or omission).
I. 	Previously Addressed Claims
On May 25, 2017, the Court entered an Order adopting the United States Magistrate
Judge’s Report and Recommendation, which included additional findings. (Doc. 95). Petitioner’s
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claims regarding ineffective assistance of counsel were denied and his claim regarding the
calculation of his sentence was granted. (Id.). Petitioner was set for resentencing. (Id.).
On June 14, 2017, pursuant to Federal Rule of Civil Procedure 59(e), Petitioner moved to
vacate the above referenced Order. (Doc. 99).1 Petitioner argues that the Court relied on factual
findings that are not supported by the record. 	Specifically, Petitioner takes issue with the
statement that “the Probation Officer had searched his phone and had already discovered the
evidence of Petitioner’s viewing of child pornography.”
Upon review, though more precise wording may have been employed, the Court does not
misunderstand the sequence of facts. As discussed in the Order, Petitioner contends he would not
have pled guilty had his attorney recognized that he had a Fifth Amendment challenge to the
statement he made to his Probation Officer admitting he had accessed child pornography. 	This
admission was made after the Probation Officer searched his phone and discovered a browser
history showing searches for “sexy little girls” and “pre-teen”. 2 The reference to “the
overwhelming 	physical 	evidence 	against 	Petitioner” 	was 	the 	evidence 	discovered, 	after
Petitioner’s admission, as a result of further examination of the phone.
II. 	Fifth Amendment Claims
In his amended motion, Petitioner also contends that counsel was ineffective for failing to
pursue a Fifth Amendment based challenge to the statements made prior to the Probation
Officer’s search of his cell phone: 1) the admission that the phone belonged to Petitioner, 2)
Petitioner’s admission that the phone had internet access, and 3) Petitioner’s entry of the PIN
code required to unlock the cell phone. This argument was furth er developed in the current Rule
59(e) motion. Upon review of the record and consideration of Petitioner’s motion to reconsider
1 All references to “the Order” are to Doc. 95. The accompanying Judgment was entered May 31, 2017. (Doc. 97).
2 See Report and Recommendation (Doc. 84 at 5-6, n. 5) for a detailed description of Petitioner’s interaction with the
Probation Officer.
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(Doc. 99), the Court finds that the Fifth Amendment claim would have been unsuccessful, and
thus Defendant did not suffer prejudice as a result. See Strickland v. Washington, 466 U.S. 668
(1984).
Petitioner alleges that counsel was ineffective for failing to raise a Fifth Amendment
challenge pertaining statements made by the Petitioner in response to questions from the
Probation Officer. “To qualify for the Fifth Amendment privilege, a communication must be
testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Court of Nevada,
Humboldt Cty., 542 U.S. 177, 189 (2004)(citing 	United States v. Hubbell, 530 U.S. 27, 34-38
(2000). Petitioner alleges that he was compelled to answer the Probation Officer’s questions or
he would be revoked.
Pursuant to the standard conditions of supervision, Petitioner was required to “answer
truthfully all inquiries by the probation officer and follow the instructions of the probation
officer.” (Doc. 23, 05-CR-00094 at 4). Petitioner was also required to “consent to periodic,
unannounced examinations of his computer equipment, which may include retrieval and copying
of all data from his computer and any internal or external peripherals to ensure compliance with
this condition, and/or removal of such equipment for the purpose of conducting more thorough
inspection.” (Doc. 23, 05-CR-00094 at 7).
The Court begins with an examination of the merits of a challenge to entry of the PIN
code. While it appears the statement was both testimonial3 and incriminating,4 pursuant to
3 “…[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual
assertion or disclose information. Doe v. United States, 487 U.S. 201, 210 (1988). Justice Stevens’ dissent in Doe
stated, in part:
A defendant can be compelled to produce material evidence that is incriminating. Fingerprints,
blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may
be extracted from a defendant against his will. But can he be compelled to use his mind to assist
the prosecution in convicting him of a crime? I think not. He may in some cases be forced to
surrender a key to a strongbox containing incriminating documents, but I do not believe he can be
compelled to reveal the combination to his wall safe—by word or deed.
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Minnesota v. Murphy, disclosure of the PIN code was not compelled. 465 U.S. 420 (1984). The
Eleventh Circuit has summarized Minnesota v. Murphy as follows:
The Supreme Court has stated that a state may generally require a probationer to
appear and discuss matters that affect his probationary status without violating the
Fifth Amendment. Minnesota v. Murphy, 465 U.S. 420, 435, 104 S.Ct. 1136,
1146, 79 L.Ed.2d 409 (1984); see also United States v. Robinson, 893 F.2d 1244,
1245 (11th Cir.1990) (affirming revocation of convicted currency smuggler's
probation where probationer violated condition of release by refusing to answer
questions regarding sources of income). The Court in Murphy admitted some
exceptions to the general rule, such as where a state forces a probationer to
answer incriminating questions over a claim of privilege:
The result may be different if the questions put to the probationer,
however relevant to his probationary status, call for answers that would
incriminate him in a pending or later criminal prosecution. There is thus a
substantial basis in our cases for concluding that if the State, either
expressly or by implication, asserts that invocation of the privilege would
lead to revocation of probation, it would have created the classic penalty
situation, the failure to assert the privilege would be excused, and the
probationer's answers would be deemed compelled and inadmissible in a
criminal prosecution.
Murphy, 465 U.S. at 435, 104 S.Ct. at 1146. The Court went on to note, however,
that “questions put to a probationer [that] were relevant to his probationary status
and posed no realistic threat of incrimination in a separate criminal proceeding”
would not violate the Fifth Amendment. Id. at 435 n. 7, 104 S.Ct. at 1146 n. 7.
Doe v. United States, 487 U.S. 201, 219 (1988). The majority clarified, “We do not disagree with the dissent that
‘[t]he expression of the contents of an individual's mind’ is testimonial communication for purposes of the Fifth
Amendment…” Id. at 210, n. 9. Petitioner’s provision of the PIN is akin to revealing the combination to a safe,
rather than providing a key to a lock box, as it required Petitioner to “use his mind,” and entry of the PIN permitted
the Probation Officer to access to the phone’s contents. Petitioner’s entry of his unique PIN was a testimonial
communication.
4 While the contents of the PIN code itself may not have been incriminating, its provision led to incriminating
evidence, and is thus protected under the Fifth Amendment. See United States v. Hubbell, 530 U.S. 27, 37, 120 S.
Ct. 2037, 2044, 147 L. Ed. 2d 24 (2000) (“Finally, the phrase ‘in any criminal case’ in the text of the Fifth
Amendment might have been read to limit its coverage to compelled testimony that is used against the defendant in
the trial itself. It has, however, long been settled that its protection encompasses compelled statements that lead to
the discovery of incriminating evidence even though the statements themselves are not incriminating and are not
introduced into evidence.”).
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United States v. Zinn, 321 F.3d 1084, 1091 (11th Cir. 2003)(footnote omitted).5 The general rule
is that the Fifth Amendment privilege is not self-executing. Murphy at 434. Thus, unless certain
circumstances are present, an individual must invoke his right not to incriminate himself.
When the Probation Officer asked Petitioner to enter his PIN code, Petitioner could have
either 1) consented, 2) refused, or 3) invoked his Fifth Amendment privilege against self-
incrimination. Here, Petitioner did not invoke the privilege. Instead he complied with his
conditions of supervised release and consented by inputting the PIN code.
Like Petitioner, “Murphy was informed that he was required to be truthful with his
probation officer in all matters and that failure to do so could result in revocation of probation.”
Id. at 436. As the Murphy Court explained:
We note first that the general obligation to appear and answer questions truthfully
did not in itself convert Murphy's otherwise voluntary statements into compelled
ones. In that respect, Murphy was in no better position than the ordinary witness
at a trial or before a grand jury who is subpoenaed, sworn to tell the truth, and
obligated to answer on the pain of contempt, unless he invokes the privilege and
shows that he faces a realistic threat of self-incrimination. The answers of such a
witness to questions put to him are not compelled within the meaning of the
Fifth Amendment unless the witness is required to answer over his valid claim of
the privilege.
Id. at 427 (emphasis added). 	Petitioner did not claim the privilege and was not required to
answer over his valid claim of privilege, thus his entry of the PIN was not compelled.
Petitioner testified that he believed he would be revoked if he did not provide the PIN
code. Similarly, “[b]ecause revocation of his probation was threatened if he was untruthful with
his probation officer, Murphy argue[d] that he was compelled to make incriminating disclosures
instead of claiming the privilege.” Id. at 434. The Murphy Court held, “[a]lthough this contention
5 The omitted footnote, footnote nine, states: “The Court held in Murphy that a Fifth Amendment privilege was not
self-executing where a probationer is required to answer questions affecting his probation. In other words, even if
the probationer gave incriminating testimony, such testimony would not be barred in a subsequent proceeding unless
the probationer actually asserted a claim of privilege. See Murphy, 465 U.S. at 440, 104 S.Ct. at 1149.”
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is not without force, we find it unpersuasive on close examination.” Id. “If Murphy did harbor a
belief that his probation might be revoked for exercising the Fifth Amendment privilege, that
belief would not have been reasonable. Our decisions have made clear that the State could not
constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth
Amendment privilege.” Id. at 438.
Petitioner’s conditions of supervised release did not expressly or implicitly state that
invocation of the privilege would lead to revocation of probation, nor is there any evidence that
the Probation Officer made any such implicit or explicit threat. In Murphy, “[t]he State court did
not attempt to define the precise contours of Murphy’s obligation to respond to questions. On its
face, Murphy’s probation condition proscribed only false statements; it said nothing about his
freedom to decline to answer particular questions and certainly contained no suggestion that his
probation was conditional on his waiving his Fifth Amendment privilege with respect to further
criminal prosecution.” Id. at 437. The same is true in Petitioner’s case. “A state may require a
probationer to appear and discuss matters that affect his probationary status; such a requirement,
without more, does not give rise to a self-executing privilege.” Id. at 435 (emphasis added).
The applicable conditions of Petitioner’s term of supervised release were no different
than those present in the Murphy case and there is no evidence that either the Probation Officer
or the conditions of supervised release required “more,” as described in Murphy. Thus,
McKathan was required to assert the privilege and he failed to do so.
For the same reasons disclosure of the PIN was not compelled, Petitioners statements that
the cell phone belonged to him and that it had internet access were not compelled. Any effort by
counsel to raise a Fifth Amendment claim as to any of these three statements would have been
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unsuccessful. Thus, counsel was not ineffective for failing to raise it.6 Accordingly, Petitioner’s
motion to vacate (Doc. 99) is DENIED.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
The applicant for § 2255 relief “cannot take an appeal unless a circuit justice or a circuit or
district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Fed. R.App. P.
22(b)(1). And, the “certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)(emphasis
added). To make a substantial showing of the denial of a constitutional right, the applicant 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.” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)
(citations and internal quotations omitted). Here, the Court finds that the issues presented are
“adequate to deserve encouragement to proceed further.” Id. Accordingly, Petitioner’s request
for a Certificate of Appealability is GRANTED.
6 See United States v. Godwin, 2014 WL 6978864, at *4 (N.D. Fla. Dec. 10, 2014)(collecting cases)(“Counsel is not
ineffective for failing to preserve or argue a meritless claim. Freeman v. Attorney General, Florida, 536 F.3d 1225,
1233 (11th Cir.2008); see also Sneed v. Florida Dep't of Corrections, 496 F. App'x 20, 27 (11th Cir. 2012) (failure
to preserve meritless Batson claim not ineffective assistance of counsel); Lattimore v. United States, 345 F. App'x
506, 508 (11th Cir.2009) (counsel not ineffective for failing to make a meritless objection to an obstruction
enhancement); Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir.2002) (counsel not ineffective for failing to raise
issues clearly lacking in merit); Chandler v. Moore, 240 F.3d 907, 917 (11th Cir.2001) (counsel not ineffective for
failing to object to “innocuous” statements by prosecutor, or accurate statements by prosecutor about effect of
potential sentence); Meeks v. Moore, 216 F.3d 951, 961 (11th Cir.2000) (counsel not ineffective for failing to make
meritless motion for change of venue); Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir.1995) (counsel need not
pursue constitutional claims which he reasonably believes to be of questionable merit); United States v. Winfield,
960 F.2d 970, 974 (11th Cir.1992) (no ineffective assistance of counsel for failing to preserve or argue meritless
issue); Lancaster, 880 F.2d at 375 (counsel was not ineffective for informed tactical decision not to make what he
believed was a meritless motion challenging juror selection procedures where such a motion has never been
sustained because such a motion would not have been successful).”).
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IN FORMA PAUPERIS
The Court has previously determined that Petitioner is indigent and counsel from the
Criminal Justice Act (“CJA”) panel was appointed to represent him. (Docs. 19, 32, and 55). Rule
24(a)(3) of the Federal Rules of Appellate procedure provides:
A party who was permitted to proceed in forma pauperis in the district-court
action, or who was determined to be financially unable to obtain an adequate
defense in a criminal case, may proceed on appeal in forma pauperis without
further authorization, unless:
(A) the district court--before or after the notice of appeal is filed--certifies
that the appeal is not taken in good faith or finds that the party is not
otherwise entitled to proceed in forma pauperis and states in writing its
reasons for the certification or finding; or
(B) a statute provides otherwise.
Fed. R. App. P. 24(a)(3). The Court has determined that Petitioner is entitled to a Certificate of
Appealability. It also appears that if Petitioner chooses to appeal the denial of his 28 U.S.C. §
2255 motion, it would be in good faith. As such, he would be entitled to do so in forma pauperis.
DONE and ORDERED this 18th day of July 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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