United States District Court, Southern District of Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
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.
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).
Previously Addressed Claims
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.).
14, 2017, pursuant to Federal Rule of Civil Procedure 59(e),
Petitioner moved to vacate the above referenced Order. (Doc.
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
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”. 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.
Fifth Amendment Claims
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).
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.
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).
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 and incriminating,  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
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 ...