United States v. McDade , 121 F. Supp. 3d 26 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 00-0105 (PLF)
) Civil Action No. 13-1066 (PLF)
BYRON LAMONT MCDADE, )
)
Defendant. )
______________________________________ )
MEMORANDUM OPINION
On February 25, 2002, after a ten-day trial, a jury found defendant Byron Lamont
McDade guilty of conspiracy to distribute and possess with the intent to distribute five kilograms
or more of cocaine. Most of the witnesses at trial were his former co-defendants or others
involved in the conspiracy who had negotiated pleas with the government involving cooperation
and testimony. In fact, McDade was the only one of those charged in this multi-defendant case
to have proceeded to trial. Regrettably, pursuant to the then-mandatory pre-Booker sentencing
guidelines, the Court was required to sentence McDade to 324 months in prison, a sentence
which the Court described at the time as “much more than sufficiently punitive.” See Judgment
and Commitment (June 3, 2002), at 6. McDade’s conviction was affirmed on his direct appeal to
the United States Court of Appeals for the District of Columbia Circuit, see United States v.
McDade, No. 02-3054, 2003 WL 22204126 (D.C. Cir. Sept. 16, 2003), and the Supreme Court
denied his petition for a writ of certiorari. See McDade v. United States, 541 U.S. 911 (2004).
McDade, through new counsel, then filed a motion to vacate, set aside or correct
his sentence under 28 U.S.C. § 2255. He challenged his sentence on constitutional grounds,
relying on United States v. Booker, 543 U.S. 220 (2005). He also asserted that he had received
ineffective assistance of counsel from both his appellate lawyer and his trial lawyer, the latter
because trial counsel purportedly failed to interview and present the testimony of three potential
defense witnesses. This Court denied the Booker motion and the challenge to the effectiveness
of appellate counsel without a hearing. See United States v. McDade, Criminal No. 00-0105,
Dkt. No. 345 (D.D.C. Jan. 5, 2006) (Memo. Op. & Order).
On January 15, 2008, the Court held an evidentiary hearing on the defendant’s
ineffective assistance of trial counsel claim. McDade testified about the information he had
given to trial counsel regarding three impeachment witnesses, and trial counsel testified as to his
trial strategy and his reasons for not calling or interviewing those witnesses. McDade also called
one of those three witnesses to testify at the hearing and submitted an affidavit from another.
This Court denied McDade’s Section 2255 motion, finding that trial counsel’s decisions not to
call the three witnesses and not to interview two of them were not objectively unreasonable,
while the decision not to interview one of them was. See United States v. McDade, 639 F. Supp.
2d 77, 82-84 (D.D.C. 2009). Nevertheless, the Court found that McDade had failed to show
prejudice and therefore was not entitled to relief. Id. at 85. After briefing and oral argument, the
D.C. Circuit affirmed. See United States v. McDade, 699 F.3d 499 (D.C. Cir. 2012).
I.
On July 13, 2013, Mr. McDade, acting pro se, filed a new motion to vacate, set
aside or correct his sentence pursuant to 28 U.S.C. § 2255. He requests that his conviction be
vacated because of purported newly discovered evidence, prosecutorial misconduct, and
violations of Brady v. Maryland, 373 U.S. 83 (1963). Rather than respond to McDade’s Section
2255 motion, the United States moved to transfer that motion from this Court to the U.S. Court
of Appeals for the D.C. Circuit. The government argues that authorization from that court is
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required before this Court can consider a second or successive Section 2255 motion, and that,
without authorization from the D.C. Circuit, this Court lacks jurisdiction to consider defendant’s
claims on their merits. See 28 U.S.C. § 2255(h). Because the Court did not believe that a pro se
defendant should be required to respond to this jurisdictional argument without the assistance of
counsel, it appointed Christopher M. Davis and Mary E. Davis to represent Mr. McDade in this
matter, and they have done so professionally and with great skill.
In their first filing, counsel for defendant McDade acknowledged that the current
motion to vacate constitutes a successive Section 2255 motion and agreed that the D.C. Circuit
must authorize this Court to consider the motion on the merits. 1 In their supplemental response,
counsel for defendant McDade have refined their argument, now suggesting that, to the extent
the motion to vacate involves an asserted violation of Brady, it does not require authorization
from the court of appeals pursuant to 28 U.S.C. § 2255(h), because the Brady claim did not arise
until after the earlier motion to vacate was filed and therefore should not be considered a “second
or successive” motion under Section 2255. 2 Defendant relies on a decision from the Ninth
1
After some back-and-forth between the parties, counsel offered two alternatives:
either this Court could transfer the defendant’s motion to the D.C. Circuit, or it could dismiss the
motion to vacate, without prejudice to the defendant’s refiling it in the D.C. Circuit.
2
Section 2255(h) provides as follows:
A second or successive motion must be certified . . . by a
panel of the appropriate court of appeals to contain –
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
3
Circuit in support of this argument. See United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009),
cert. denied, 559 U.S. 984 (2010).
The government maintains that, even with respect to defendant’s claims of Brady
violations and governmental misconduct, this Court would only have jurisdiction to decide
McDade’s Section 2255 motion on the merits if Mr. McDade first obtains authorization from the
D.C. Circuit. In its view, the instant motion is still a “second or successive” Section 2255
motion because: (1) the defendant’s first Section 2255 motion was decided on the merits; (2) the
defendant’s claims of a Brady violation and prosecutorial misconduct would not have been
unripe or dismissed as premature had they been raised in his first Section 2255 motion; (3) all
Brady claims in a second-in-time Section 2255 motion require certification from the court of
appeals; and (4) the defendant’s claims lack merit.
Without resolving the areas of dispute between Mr. McDade and the government,
the Court deals with the area of common ground: putting Brady aside, this Court has jurisdiction
to decide the numerous other claims made by McDade on this second or successive Section 2255
motion only if authorized by the court of appeals to exercise jurisdiction. See 28 U.S.C.
§ 2255(h); United States v. Mitchell, 953 F. Supp. 2d 162, 165 (D.D.C. 2013); United States v.
Mathis, 660 F. Supp. 2d 27, 29-30 (D.D.C. 2009); Harris v. United States, 522 F. Supp. 2d 199,
203 (D.D.C. 2007). And presumably McDade wants the Court to consider all of the claims
raised on this Section 2255 motion, not just the Brady and prosecutorial misconduct claims.
Because the Court “must establish that it has the power to hear the case before addressing the
merits of [the Section 2255] motion,” United States v. Mitchell, 953 F. Supp. 2d at 165, it will
grant the government’s motion to transfer the defendant’s motion to vacate, set aside or correct
his sentence to the United States Court of Appeals for the District of Columbia Circuit.
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II.
At the time the Court sentenced Mr. McDade nearly twelve years ago, on May 31,
2002, he was a 34-year old married man with two young children, one of whom is disabled. See
Presentence Investigation Report (May 13, 2002), at 11, 12-13. He was a high school graduate
who had been employed more or less steadily as a loader for United Parcel Service, as an
apprentice for a plumbing company, as a self-employed operator of a company that provided
transportation to the handicapped, and as a sanitation truck driver. Id. at 14-16. He was
described by his wife, a hair stylist who suffers from a heart murmur, as a good father to their
children and to her son by a prior relationship. Id. at 12-13. Before his current conviction, Mr.
McDade had one prior misdemeanor conviction for which he was ordered to pay a ten-dollar
fine. Id. at 10-11. For the instant offense, he faced a ten-year mandatory minimum sentence
and, at Offense Level 41, Criminal History Category I, a pre-Booker guideline sentence of 324
months to life. Id. at 9-10. As stated, the Court sentenced him to 324 months, as it was required
to do, noting that the sentence imposed was “much more than sufficiently punitive.” Judgment
and Commitment at 6.
In denying Mr. McDade’s first motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255, the Court said the following:
Twenty-seven years is a very long time. None of Mr. McDade’s
former co-defendants or co-conspirators received more than a
seven-and-one-half year sentence. While each of them pled guilty
and provided substantial assistance to the government by testifying
against Mr. McDade (and some provided assistance in other ways),
this sentence is disproportionate. Indeed, had Mr. McDade not
exercised his constitutional right to a jury trial and instead pled
guilty, the likely sentence under even a mandatory Guideline
regime would have been approximately 168 months,
approximately half the sentence the Court was required to impose
after Mr. McDade was found guilty at trial. Had the Sentencing
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Guidelines been advisory in 2002, or if Booker were retroactive
now, the Court would vary substantially from the Guideline
sentence of 324 months This Court, however, is without authority
to reduce Mr. McDade’s sentence at this juncture.
The Court may, however, “upon motion of the Director of
the Bureau of Prisons . . . reduce the term of imprisonment . . .
after considering the factors set forth in section 3553(a) to the
extent that they are applicable.” 18 U.S.C. § 3582(c)(1). While the
Court “lack[s] jurisdiction to issue a writ of mandamus compelling
the Director to seek a sentence reduction for an inmate,” Defeo v.
Lapin, Civil Action No. 08-7513, 2009 WL 1788056 at *3
(S.D.N.Y. June 22, 2009), the Court urges the Director to do so in
this case in his discretion. The Court will direct the Clerk’s Office
to send a copy of this Opinion to the Director of the Bureau of
Prisons for consideration of a motion to reduce Mr. McDade’s
sentence.
In addition, the Court urges the President to consider
executive clemency for Mr. McDade and to reduce Mr. McDade’s
sentence to fifteen years in prison followed by a substituted term of
supervised release. See United States v. Harvey, 946 F.2d 1375,
1378 (8th Cir. 1991) (“[E]xecutive clemency is one of the ‘flexible
techniques’ for modifying sentences.”); United States v. Angelos,
345 F. Supp. 2d 1227, 1267 (D. Utah. 2004) (“Given that the
President has exclusive power to commute sentences . . . such a
[judicial] recommendation is entirely proper.”). The Court directs
the Clerk’s Office to send a copy of this Opinion to the Office of
the Pardon Attorney in the United States Department of Justice to
be forwarded to the President for clemency consideration.
United States v. McDade, 639 F. Supp. 2d at 86-87 (footnote omitted). 3
Unfortunately, the Court’s plea went unheeded. In the intervening nearly five
years, the Director of the Bureau of Prisons has filed no motion pursuant to 18 U.S.C.
§ 3582(c)(1), and neither President Bush nor President Obama has considered executive
3
As one commentator, discussing judicial recommendations of executive
clemency, has noted: “Unfortunately, this period of mandatory injustice continues to manifest its
influence. Absent a remedy, Angelos, Harvey, and McDade must serve out, in their entireties,
sentences that the sentencing judges believed were excessive. All three sentencing judges
recognized the gravity of the situation and searched for a solution.” Joanna M. Huang, Note,
Correcting Mandatory Injustice: Judicial Recommendation of Executive Clemency, 60 DUKE L.J.
131, 138 (2010) (footnote omitted).
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clemency for Mr. McDade. But the Court has not lost hope, and presumably Mr. McDade has
not either.
Earlier this year, Deputy Attorney General James M. Cole previewed a new effort
on the part of the Department of Justice to identify individuals who are potential candidates for
executive clemency and sentence commutations and whom he hoped, with the help of volunteer
lawyers and bar associations, would be encouraged to prepare clemency petitions to the
Department of Justice. James M. Cole, U.S. Deputy Att’y Gen., Remarks at the N.Y. State Bar
Association Annual Meeting (Jan. 30, 2014), available at http://www.justice.gov/iso/opa/dag/
speeches/2014/dag-speech-140130.html. He said at the time: “For our criminal justice system to
be effective, it needs to not only be fair; but it also must be perceived as being fair. These older,
stringent punishments, that are out of line with sentences imposed under today’s laws, erode
people’s confidence in our criminal justice system.” Id. Then, just last week, Deputy Attorney
General Cole formally announced a new initiative to encourage qualified federal inmates to
petition to have their sentences commuted or reduced by the President, an initiative that will have
the assistance of numerous volunteer attorneys and groups under the umbrella Clemency Project
2014. James M. Cole, U.S. Deputy Att’y Gen., Remarks at the Press Conference Announcing
the Clemency Initiative (Apr. 23, 2014), available at http://www.justice.gov/iso/opa/dag/
speeches/2014/dag-speech-140423.html; see also Press Release, U.S. Dep’t of Justice,
Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad
New Criteria for Applicants (Apr. 23, 2014), available at http://www.justice.gov/opa/pr/2014/
April/14-dag-419.html. He noted that the initiative is not limited to crack offenders, but to
“worthy candidates” who meet six specific criteria. Cole, Remarks at the Press Conference
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Announcing the Clemency Initiative, supra. He stated that this clemency initiative “will go far
to promote the most fundamental of American ideals – equal justice under law.” Id.
The Court continues to believe that Byron McDade is a prime candidate for
executive clemency. The sentence this Court was required to impose on Mr. McDade was unjust
at the time and is “out of line” with and disproportionate to those that would be imposed under
similar facts today. While the Court is powerless to reduce the sentence it was required by then-
existing law to impose, the President is not. The Court urges Mr. McDade’s appointed counsel
to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.
A separate Order consistent with this Memorandum Opinion is issued this same day.
/s/____________________________
PAUL L. FRIEDMAN
DATE: April 29, 2014 United States District Judge
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