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McKye v. United States

United States District Court, W.D. Oklahoma

July 31, 2017

BRIAN McKYE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          DAVID L.RUSSELL UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant-Petitioner Brian McKye's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1 (Civil) and D o c. 3 1 3 (Criminal) . For following reasons, his Motion is DENIED.

         In February 2011, a federal grand jury sitting in the Western District of Oklahoma returned an indictment charging Brian McKye with eight counts of securities fraud, in violation of 15 U.S.C. § 78j(b), and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). A jury found McKye guilty on all charges save one count of security fraud. The Tenth Circuit reversed Mr. McKye's conviction, however, finding that the Court, rather than instructing the jury that the term “security” includes a “note, ” should have let the jury decide whether the investment notes Mr. McKye marketed qualified as securities. United States v. McKye, 734 F.3d 1104, 1105 (10th Cir. 2013). The Tenth Circuit then remanded the case for a retrial.

         Following remand, Mr. McKye's attorney and Mr. McKye both moved t o s e v e r t h e i r attorney-client relationship. The Court allowed counsel to withdraw, and after an examination on the record, permitted Mr. McKye to proceed to trial pro se but also appointed standby counsel to assist Mr. McKye. At his retrial, the jury found Mr. McKye guilty on all counts except the security-fraud count on which he was previously acquitted. Mr. McKye appealed his conviction, and the Tenth Circuit affirmed. United States v. McKye, 638 F.Appx. 680, 681 (10th Cir. 2015), cert denied, 136 S.Ct. 2522 (2016).

         Mr. McKye now moves to vacate his sentence under 28 U.S.C. § 2255, arguing that he is being held in violation of the Constitution and the laws of the United States. “To obtain collateral relief [Mr. McKye] must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). He must allege a violation of federal law constituting a “fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Gordon, 172 F.3d 753, 755 (10th Cir. 1999). “[T]he petitioner bears the burden of alleging facts which, if proved, would entitle him to relief.” Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995).

         Mr. McKye advances several bases for relief. Though the Court has liberally construed his pro se arguments pursuant to Haines v. Kerner, 404 U.S. 519 (1972), none entitles him to relief. The Court has divided his arguments into seven categories.

         Before proceeding, the Court acknowledges that while Mr. McKye devotes nearly his entire brief to describing why legal errors contaminated his trial, he does make a singular reference to his appellate counsel's general failure to raise his brief's arguments on appeal. Counsel did raise one of the following issues (the hearsay issue) on direct appeal, however. As for the arguments not raised on direct appeal, Mr. McKye has not proved that his counsel was ineffective in failing to raise them. To prevail on a claim for ineffective assistance of appellate counsel, Mr. McKye “must show a reasonable probability that, but for his counsel's unreasonable failure to” raise a particular nonfrivolous issue, “he would have prevailed on his appeal.” Milton v. Miller, 744 F.3d 660, 669 (10th Cir. 2014). And as the Court explains below, any issues that appellate counsel could have raised would have been meritless and thus would not have entitled Mr. McKye to relief.

         The Admission of Hearsay Testimony from Agent Labarthe

         A central question at Mr. McKye's trial was whether the investment notes that McKye marketed and sold were securities under the federal securities fraud statute. Mr. McKye contends that the Court erred when it admitted testimony from Agent Labarthe, of the Oklahoma Department of Securities, who investigated Mr. McKye's business activities. During cross-examination the Government questioned LaBarthe about the outcome of a state civil action filed against Mr. McKye and his companies as a result of her agency's investigation. (The same investment notes were at issue in both the civil action and Mr. McKye's federal criminal trial.) Agent LaBarthe testified in the criminal trial that the state court previously held that the investment notes were securities.

         Mr. McKye argues this was inadmissible hearsay. Mr. McKye, however, already raised this issue on appeal, and the Tenth Circuit summarily rejected it, finding that the introduction of the testimony was harmless. McKye, 638 Fed.Appx. at 682. “Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). The Tenth Circuit disposed of this argument, and Mr. McKye cannot now relitigate it via collateral attack.

         Before proceeding to Mr. McKye's remaining arguments, the Court acknowledges that, in contrast to this hearsay issue, Mr. McKye failed to raise his remaining arguments on direct appeal. Generally, “Section 2255 is not available to test the legality of matters which should have been raised on appeal.” United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992) (alteration omitted). The exception is where a defendant “can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.” United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). There is no exhaustive list of acceptable causes for failing to raise an argument on appeal. But “the existence of a cause of a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to” raise the issue. Murray v. Carrier, 477 U.S. 478, 488 (1986). Examples can include when a factual or legal basis for a claim was not available to counsel or when interference by officials made raising the issue impracticable. Id. The miscarriage-of-justice exception, on the other hand, is a “markedly narrow one, implicated only in extraordinary cases where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (alterations omitted).

         So to sum, Mr. McKye failed to raise the following arguments on appeal. But even if he had, the Court would deny relief because has not shown the requisite prejudice and a valid reason for failing to address the arguments on appeal.

         Violations of the Speedy Trial Act

         Mr. McKye argues the Court violated his rights under the Speedy Trial Act, 18 ...


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