United States v. McIntosh

• Decision Date: 05 August 2016
• Docket Number: CRIMINAL ACTION No. 11-20085-01-KHV,CIVIL ACTION No. 15-2909-KHV
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. RODNEY MCINTOSH, Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff, v. RODNEY MCINTOSH, Defendant.

CRIMINAL ACTION No. 11-20085-01-KHV

CIVIL ACTION No. 15-2909-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

August 5, 2016

MEMORANDUM AND ORDER

On June 18, 2013, the Court sentenced defendant to 144 months in prison. This matter is before the Court on defendant's Motion To Vacate, Set Aside, Or Correct Brought Under Title 28 U.S.C. § 2255 (Doc. #198) filed April 6, 2015 and numerous related motions. For reasons stated below, the Court overrules defendant's Section 2255 motion and denies a certificate of appealability.

Factual Background

On October 6, 2011, a grand jury charged Rodney McIntosh with nine counts of forcible assault against Bureau of Prisons ("BOP") employees in violation of 18 U.S.C. § 111(a)(1). See Indictment (Doc. #1). Each count pertained to different incidents involving various BOP employees.¹

In a pretrial motion to dismiss, defendant claimed that the government destroyed material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). See Motion To Dismiss (Doc. #35) filed June 7, 2012. On June 26, 2012, the Honorable Beth Phillips of the United States District Court for the Western District of Missouri, sitting by designation, overruled the motion. See Transcript Of Motions Hearing (Doc. #190) at 9. Judge Phillips found that (1) the exculpatory value of the evidence was not apparent and (2) to the extent that the evidence was potentially useful, defendant had presented no evidence that the government acted in bad faith. See id.

The following is a summary of the evidence at trial as to each count:

Count One: On October 27, 2010, Fred Messina, a corrections officer with the United States Penitentiary in Leavenworth, Kansas, was performing a routine cell check of defendant's cell. Officer Messina testified that he informed defendant that he was going to do a "quick cell search;" defendant replied "okay" and stepped out of the cell. As Officer Messina was conducting a search of the cell, he heard a noise behind him and saw defendant standing in the doorway watching him. Officer Messina told him that he needed to go out of eyesight of what he was doing so he could finish the search. Defendant responded "fuck you, I'm not going anywhere, you're going to steal my stuff." Officer Messina then exited the cell, at which point a physical altercation occurred. Officer Messina stated that while the verbal confrontation continued, defendant had his hands balled up in a fist and at one point "came at me." As the two began to wrestle, another officer, Frank Ketchum, showed up to assist Officer Messina. Once officers restrained defendant, they took him to the Special Housing Unit (SHU).

Count Two: On May 13, 2011, Earl Genter, a corrections officer, was on duty in the SHU where defendant was being housed. Officer Genter testified that during a safety and security check of the unit the defendant threw a liquid that "was yellowish in color and it smelled like urine" underneath the cell door, hitting Officer Genter in the lower leg. Defendant then began to scream, "I got you motherfucker, I got you, I told you I would get you[.]" Officer Genter stated that he was "[a]bsolutely offended . . . and disgusted" by having the liquid thrown on him because "this how diseases get spread in prison." Genter did not collect the clothing for the purpose of trying to forensically identify the liquid because "that's not something that's done for urine."

Count Three: On May 16, 2011, Officer Genter was again on duty in the SHU. During shift briefing it was reported that defendant had taken control of the feeding slot to his cell by sticking his arm through the slot and holding a clear bottle in his hand that he claimed contained urine and feces. Officer Genter personally observed defendant holding these items; defendant claimed the bottle contained urine and feces and told the officers, "[I]f you come down here, I'm going to get you, motherfucker." Defendant threatened to squirt the contents on staff members. The conflict continued for approximately two hours until the incident was resolved by the calculated-use-of-force team. Joseph Wilson, a unit case manager, testified that he was part of the calculated- use-of-force team that was called to assist in the incident involving defendant. He testified that he was assigned the number 1 man, meaning he was the first to enter the cell. Defendant ran at the team as they entered his cell and tried to kick Wilson as the door was opening. As Wilson was attempting to secure defendant so he could be placed in restraints, defendant spit on him numerous times, hitting him in the neck, hands and chest, and making several threatening comments to him. The spit landed on his shoulders, face shield, and the bare skin on the right side of his neck. As Wilson was securing defendant, defendant commented, while he continued to spit on Wilson, that he was going to find his house on the internet, kill Wilson, and sexually assault his family members. After several minutes the team was able to place defendant in restraints and remove him from the cell. Wilson testified that he injured his shoulder during the incident, underwent several physical therapy sessions, and received two injections in his shoulder for a bruised bone and small tear in his tissue.

Count Four: On July 26, 2011, Corrections Officer Amy Holmes was on duty in the SHU. Officer Holmes testified that she had called other staff members to the unit because defendant was not responding to her safety and security check. Upon receiving no response from defendant, Officer Holmes and two other staff members entered the cell to check on defendant's welfare. When they entered the cell, defendant started yelling obscenities and threatening them. After determining that defendant was okay, they started to exit the cell, at which time defendant threw a milk carton containing a liquid, splashing the shield on Officer Holmes's left arm. Officer Holmes could not identify the liquid, but she testified that she found this contact "very offensive."

Count Five: On August 15, 2011, Lieutenant Michael Newell testified he was advised by another officer that defendant had broken his cell door windows. Lieutenant Newell and Officer Michael Kobulnicky reported to the SHU to check the damage to the window. As Newell was photographing the broken cell window defendant squirted a liquid from a container, splashing Newell on his mouth, right eye and upper right torso. Around the time this occurred, defendant stated, "I told you I was going to get you, you motherfucker." Officer Kobulnicky testified that he was with Lieutenant Newell as he was photographing the window to defendant's cell when defendant threw a liquid substance striking Officer Kobulnicky on the upperright side of his body. Photographs of Officer Kobulnicky were taken after the incident showing spots on his shirt from where the liquid had hit him.

Count Six: On August 16, 2011, Lieutenant Newell was again on duty in the SHU. Defendant that day was in restraints and Lieutenant Newell was performing the two-hour restraint check, along with Officer Kobulnicky. When Lieutenant Newell opened the outer cell door and walked into the inner grill, defendant stated, "[D]on't come in here." Immediately after making this statement, defendant threw a plastic bag containing urine in his direction; the bag burst open and its contents struck Lieutenant Newell in the face, upper body, and pants, making contact with his bare skin. He surmised the liquid was urine by its strong smell. Officer Kobulnicky testified similarly about this incident.

Counts Seven, Eight, & Nine: On August 18, 2011, Officer Gregory Sawyer was on duty in the SHU. He had been asked by the lieutenant to assist with a two-hour restraint check. Upon completing the check, Officer Sawyer was locking the inner grill door when defendant came up to the bars with his pants around his ankles and began to urinate on Officer Sawyer's right leg and shoe. It was determined that a calculated use of force be used on defendant due to the incident that had happened earlier and on previous days. Defendant had already been placed in ambulatory restraints and was still assaulting staff members. Lieutenant Newell, who was a part of the calculated-use-of-force team that day, testified that the desired effects of the ambulatory restraints were unsuccessful, so a calculated use of force was being used to restrain him to his bed. Defendant complied with the orders of the force team to lie face up on his bed so that they could secure him with restraints to the bed; however, during the process defendant was calling the staff member obscenities and threatening to spit "lugies" on them. Lieutenant Newell checked the restraints to make sure they were safely secured; as he was checking one of the hand restraints, defendant was able to maneuver his hand in a way that he was able to grab onto Lieutenant Newell's fingers and twist them. As the use-of-force team exited the cell, defendant spit at one of the team members, Keith Thomas, striking the shield and his leg and foot area.

After a seven-day trial, a jury found defendant not guilty on Count 1 and guilty on Counts 2 through 9. Shortly after trial, defendant filed several pro se motions and asked the Court to appoint new counsel. On February 13, 2013, defendant withdrew his request for new counsel. In March of 2013, the Court sustained defendant's request to proceed pro se. Subsequently, the Court overruled some 40 pro se post-trial defense motions.

On June 18, 2013, defendant proceeded pro se at sentencing. Defendant's total offense levelwas 20, with a criminal history category VI, resulting in a guideline range of 70 to 87 months in prison. The statutory penalty under each count did not include a minimum term but included a maximum term of eight years in prison. See 18 U.S.C. § 111(a)(1). The Court sentenced defendant to a total...