UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

_______________________________________ ) UNI TED STATES OF AMERI CA ) ) v. ) Criminal No. 00-0105 (PL F) ) Civil Action No. 05-0555 ) BY RON MCDADE, )

Def endant. ) _______________________________________)
MEMORANDUM OPI

NI ON AND ORDER This matter is befor e the Court on def endant’ s motion for a ce rtificate of appea lability
. After

car eful c onsideration of the parties’ paper s, the rele vant ca se law a nd 1 statutes, and the e ntire history of this case , the Court will gr ant the motion and will issue a
cer tificate of appea lability
. In a proc eeding

broug ht under 28 U.S.C. § 2255 the applica nt cannot take an appea l unless a circ uit or a district judg e first issues a c ertificate of a ppeala bility . See F E D . R. A P P . P. 22(b)(1). Acer

tificate of appea lability

may issue “only

if the applica

nt has made a substantial showing of

the denial of

a constitutional rig ht.” 28 U.S.C. § 2253(c)( 2). To make such a showing , Mr. McDa de “ne ed not show that he should pre vail on the merits. . . . Rather, he must demonstrate that the issues ar e debatable amongjurists of rea son; that a court c ould resolve

Def endant’ s appointed counse l filed a pe tition for a ce rtificate of appe alability on 1 Dec ember

1, 2009. On Dec ember

9, 2009, defe ndant sent a le tter to the Court reque sting that the Court substit ute a motion for a cer tificate of appea lability

that he had pr epar ed, and attachingthat motion. He also reque sts that the Court remove his appointed c ounsel. The Court conc ludes that defe ndant’s pro semotion for a ce rtificate of appe alability more pe rsuasively

prese nts his case than does the motion prepa red by counsel. Ac cording ly , it will deny as moot the motion for a cer tificate of appea lability

prepa red by counsel.the issues [in a differe nt manner]; or that the questions are adequate to deser ve enc ourag ement to proce ed fur

ther.’” United States v. Mitchell, 216 F.3d 1126, 1130 ( D.C. Cir. 2000) (quoting Ba ref oot v. Estelle, 463 U.S. 880, 893 (1983)). The de fenda

nt was tried a

nd convicted of

one count of

conspirac y

to distribute and possess with intent to distribute five kilogr ams or more of coc aine. In his moti on to vacate, set aside or

corr ect his sentenc e under 28 U.S.C. § 2255 defenda nt raised multiple theories f or relief , including the argument that his trial counsel wa s ineffe ctive. Af ter holdingan evide ntiary hear ing on the defe ndant’s inef fec tive assistance of trial counse l claim, the Court conclude d that it was objectively

unrea sonable for

trial counsel not to interviewa potential def ense w itness, Kent Robinson. See United States v. McDa de, 639 F . Supp. 2d 77, 84 (D.D.C. 2009). The Court deter mined that trial counsel’ s perf ormanc e wa s not constituti onally ineffe ctive, howe ver, beca use the fa ilure to interview Mr . Robinson did not prejudice the def endant. See id. at 85. The de fenda

nt seeks to appe al the Court’s dec ision on the gr ounds that: (1) the Court did not properly

assess the pr ejudice pr ong with reg ard to pe titioner’s ineff ective assistance of counse l claim; and (2) pe titioner’s trial counse l did in fact provide ine ffe ctive assistance . See Petition For I ssuance of Certificate of Appe alability at 2. Def endant a rgues that althoug h the Court stated the standa rd for the pre judice prongproper ly

— that “ther e is a
rea sonable proba

bility that, but for counse l’s unprofe ssional error s, the result of the pr ocee ding would have be en diffe rent.” United States v. McDa de, 639 F . Supp. 2d at 80 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)) — the Court err ed by failingto incorporate the “re asonable probability ” standa rd into its analy sis, and applied instead a heavie r standar d which

2require d defe ndant to show with some cer tainty that the outcome would have bee n differ ent absent c ounsel’s unprof

essional er

rors. Whil e the Court stands by its decision, it concludes that other judg es mig ht ag ree with defe ndant and, a ccor dingly , that defe ndant has met the standa rd for the issuance of a
cer tificate of appea lability . See Slack v. Mc Daniel, 529 U.S. 473, 484 (2000) (“The petitioner must demonstrate that re asonable jurists would find the district court’s asse ssment of the constitutional claims debatable or wrong .”). I f the Court did employ an inappr opriate standa

rd for the pr ejudice pr ong , it is also possi ble that its ulti mate conc lusion that trial counsel was not ineffe ctive would be r esolved diff ere ntly . Acc ording ly , the Court conclude s that defe ndant has “made a substantial showingof the de nial of a c onstitut ional rig ht.” 28 U.S.C. § 2253(c)( 2).

As for de fenda

nt’s reque st that the Court remove a ppointed counsel a

nd appoint
new c ounsel to pursue the a ppeal on de fenda

nt’s behalf

, this is a matter that Mr. McDa de must addre ss to the court of a

ppeals. For the re asons stated a

bove, it is hereby ORDERED that def

endant’ s pro se motion for a ce rtificate of appe alability [380] is GRANTED; the motion for a c ertifica te of a ppeala bility prepa red by counsel [379] will be DENI ED as moot; it is

FURTHE R ORDERED that, the Court havingfound that a c ertificate of appea lability

is warr anted, a

cer tificate of appea lability

is issued with respec t to two issues: (1) Whether

the district court prope rly assessed the prejudice prongwith reg ard to petitioner’s inef

fec tive assistance of counse l claim under Strickland; a nd

3(2) Whether trial counsel pr ovided ineff ective a ssistance in violation of defe ndant’s Six th Amendment rig hts; and it is

FURTHE R ORDERED that the Clerk of this Court is directed to tra nsmit a copy of this Memorandum Opinion and Or der to the c ourt of appe als.

SO ORDERED. __/s/_________________________ PAULL . FRI EDMAN DATE: Apr il 21, 2010 United States District J udg e

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