United States District Court, D. Columbia.
April 29, 2014
UNITED STATES OF AMERICA
BYRON LAMONT MCDADE, Defendant Criminal No. 00-0105 (PLF)
LAMONT MCDADE, also known as / / BARRY (1:00-cr-00105-PLF-4),
Defendant, Pro se, LORETTO, PA.
BYRON LAMONT MCDADE, also known as / / BARRY
(1:00-cr-00105-PLF-4), Defendant: Christopher Michael Davis,
Mary Elizabeth Davis, LEAD ATTORNEYS, DAVIS & DAVIS,
UNITED STATES OF AMERICA (1:00-cr-00105-PLF-4), Plaintiff:
John Philip Dominguez, LEAD ATTORNEY, U.S. ATTORNEY'S
OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC; Sherri
Lee Berthrong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,
Lamont Mcdade (1:13cv1066), Petitioner, Pro se, Loretto , PA.
FRIEDMAN, United States District Judge.
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, 124 S.Ct. 1622, 158 L.Ed.2d 259
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, 125 S.Ct.
738, 160 L.Ed.2d 621 (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. &
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,
403 U.S. App.D.C. 30 (D.C. Cir. 2012).
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, 83 S.Ct. 1194, 10 L.Ed.2d 215
(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
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.
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. 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. Defendant
relies on a decision from the Ninth Circuit in support of
this argument. See United States v. Lopez,
577 F.3d 1053 (9th Cir. 2009), cert. denied, 559
U.S. 984, 130 S.Ct. 1718, 176 L.Ed.2d 200 (2010).
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.
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.
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.
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
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
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
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, 1261 (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
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 clemency for Mr. McDade. But the Court has not lost
hope, and presumably Mr. McDade has not either.
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
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
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 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."
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.
reasons set forth in the Memorandum Opinion issued this same
day, it is hereby
that the United States' Motion to Transfer [Dkt. No. 411]
Defendant's Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 is GRANTED, and
the defendant's Section 2255 motion [Dkt. No. 408] shall
be transferred, pursuant to 28 U.S.C. § § 1631 and
2255, to the United States Court of Appeals for the District
of Columbia Circuit, so that the court of appeals may
determine whether to authorize the filing of the
defendant's motion for relief; and it is
ORDERED that, consistent with Part II of the Memorandum
Opinion accompanying this Order, Mr. McDade's
court-appointed counsel, Christopher M. Davis and Mary E.
Davis, are encouraged to represent Mr. McDade in pursuing
clemency as a part of the new clemency initiative recently
announced by the Department of Justice. The Court is
confident that they will receive cooperation from the Federal
Public Defender for the District of Columbia and from the
organizations that have joined together to form Clemency
Project 2014, which was established to answer Deputy Attorney
General Cole's appeal to the Bar.
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.
Section 2255(h) provides as
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.
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)