The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court following an evidentiary hearing on defendant Byron McDade's amended motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. The defendant argues that: (1) his amended motion on the issue of the ineffective assistance of his trial counsel was timely filed; (2) his trial counsel was ineffective; and (3) the Court has authority to re-sentence the defendant regardless of how it rules on the issue of ineffective assistance of counsel. Upon consideration of the papers filed by the defendant and the government, the transcript of the trial in this case, the evidence presented during the evidentiary hearing, and the entire record in the case, the Court will deny the defendant's motion to vacate his sentence and concludes that it does not have the authority to re-sentence defendant.*fn1
Recognizing, however, that the Court was required to impose a twenty-seven year sentence and that the sentence is dramatically disproportionate to the sentences received by Mr. McDade's former co-defendants and the other co-conspirators, the Court urges the Bureau of Prisons to file a motion for sentence reduction and recommends executive clemency after fifteen years have been served.
On March 16, 2000, a federal grand jury indicted the defendant, Byron Lamont McDade, along with four others, on one count of conspiring to distribute five kilograms or more of a mixture or substance containing cocaine in violation of 21 U.S.C. § 846. After returning two superseding indictments, the grand jury returned a third and final superseding indictment on August 9, 2001, charging the defendant with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine.
A jury trial was held before this Court from February 4, 2002 to February 25, 2002. Most of the witnesses at trial were former co-defendants or others involved in the conspiracy who had negotiated pleas with the government and were awaiting sentencing. The jury found the defendant guilty as charged. Accordingly, on May 29, 2002, the Court sentenced the defendant under the then mandatory United States Sentencing Guidelines to imprisonment for a term of 324 months, with credit for any time served. See Judgment and Commitment, Dkt. No. 278 at 2. The maximum period of incarceration for this conviction is life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(ii).
The defendant filed a timely notice of appeal. The United States Court of Appeals for the District of Columbia Circuit affirmed the judgment of this Court. See United States v. McDade, No. 02-3054, 2003 WL 22204126 (D.C. Cir. Sept. 16, 2003) (per curiam). The defendant filed a petition for a writ of certiorari, which the Supreme Court of the United States denied on March 8, 2004. See McDade v. United States, 541 U.S. 911 (2004).
On March 7, 2005, the defendant filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. In that motion, the defendant asserted the following two legal arguments: (1) that the sentence the Court had imposed violated the defendant's constitutional rights based on the recently decided case of United States v. Booker, 543 U.S. 220 (2005), because the Court based its sentence, in part, on facts that the jury did not find beyond a reasonable doubt; and (2) that the defendant received ineffective assistance from his appellate counsel for failure to challenge the validity of the defendant's sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000). On April 8, 2005, the defendant filed an amended Section 2255 motion that asserted the additional argument that the defendant received ineffective assistance from his trial counsel, insofar as trial counsel failed to interview and present the testimony of three potential defense witnesses.
On January 4, 2006, this Court denied the defendant's challenges to his sentence based on Booker, and the claim that appellate counsel was ineffective. See United States v. McDade, Memorandum Opinion and Order, Dkt. No. 345 at 5, 7 (D.D.C. Jan. 4, 2006). The Court directed the government to address the merits of the defendant's claim that his trial counsel was ineffective. See id. at 8. The Court subsequently concluded that it was not able to determine whether trial counsel made sound tactical or strategic decisions based on the trial transcripts alone - specifically, "whether trial counsel knew of the existence of these witnesses, whether they tried to contact them and, if not, why not, and whether they made a conscious decision not to put them on the witness stand at trial." United States v. McDade, Memorandum Opinion and Order, Dkt. No. 348 at 5, 7 (D.D.C. May 3, 2007). On January 15, 2008, the Court held an evidentiary hearing on the defendant's ineffective assistance of trial counsel claim. The Court heard testimony from Mr. McDade, Kent Robinson, and Larry Nathans, Mr. McDade's lead trial counsel. All parties agreed that it was unnecessary for the Court to hear testimony from Mr. Nathan's co-counsel, Robert Biddle. See Tr. Evid. at 97. At the conclusion of the evidentiary hearing, the Court requested that the parties file supplemental memoranda to further address the defendant's claims.
A. Ineffective Assistance of Trial Counsel*fn2
To prevail on this claim, the defendant bears the burden of satisfying both prongs of a constitutional claim of ineffective assistance of counsel as articulated by the Supreme Court in Strickland v. Washington: that (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The second, or "prejudice" prong of the Strickland test is based on the Supreme Court's judgment that "'[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding, if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57 (1985) (quoting Strickland v. Washington, 466 U.S. at 691). Thus, "there is no reason for a court deciding an ineffective assistance of counsel claim to . . . address both components of the inquiry if the defendant has made an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697. Furthermore, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 688. As the Supreme Court has explained:
It is all too tempting for a defendant to second-guess counsel's assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation [of attorney conduct], a court must indulge a strong presumption that counsel's conduct falls within the wide range of ...