United States District Court, W.D. Oklahoma
L.RUSSELL UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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).
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
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.
Admission of Hearsay Testimony from Agent Labarthe
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
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.
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)
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.
of the Speedy Trial Act
McKye argues the Court violated his rights under the Speedy
Trial Act, 18 ...