In McKathan v. United States, No. 17-13358 (Aug. 12,
2020) (Rosenbaum, Branch, Dubina), the Court vacated the denial of a
2255 motion asserting ineffective assistance of counsel for failing to file a
motion to suppress statements that he made to a probation officer while he was on
supervised release.
The question was whether the movant would have established a
violation of his privilege against self-incrimination. Because he never invoked the privilege, he
had to show that he was compelled to make the incriminating statements. Resolving that question affirmatively, the
Court concluded that, in light of binding precedent, he was faced with a “classic
penalty situation” because he could reasonably believe that his supervised
release would be revoked if he did not truthfully answer the probation officer’s
questions. The Court remanded for the district
court to determine if the statements would been admissible based on the
inevitable discovery doctrine.
Judge Branch dissented, opining that it was unreasonable for
the movant to believe he faced a “classic penalty situation.”
