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McKathan v. United States

United States District Court, Southern District of Alabama, Southern Division

July 18, 2017

DENZIL McKATHAN, Petitioner,
UNITED STATES OF AMERICA, Respondent. Civil Action No. 15-00611-KD-C



         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 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 (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 testimonial[3] and incriminating, [4] pursuant to 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 ...

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