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United States of America v. ERIC SCURRY, ALSO KNOWN AS E
Case Number: 18-3067
Judge: Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
Opinion for the Court filed PER CURIAM
Court: United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Plaintiff's Attorney: Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Elizabeth H. Danello, Arvind K. Lal, and Pamela S.
Satterfield, Assistant U.S. Attorneys. Suzanne G. Curt,
Assistant U.S. Attorney
Washington, DC - Criminal defense lawyer represented defendant with distributing and
possessing with intent to distribute five kilograms or more of cocaine and 280 grams or more of crack cocaine charges.
In 2009, the Federal Bureau of Investigation began
investigating suspected narcotics distribution at an apartment
complex in southeast Washington, D.C. United States v.
Scurry (Scurry I), 821 F.3d 1, 5–6 (D.C. Cir. 2016). The
Bureau focused on Eric Scurry, who it believed was dealing
crack cocaine. See id. at 6. After reviewing evidence
obtained from cooperating witnesses, physical surveillance,
recorded conversations, pen-register records, GPS data, and
other public records, investigators sought and obtained a
wiretap on Scurry’s cell phone.
Evidence gleaned from the Scurry wiretap led to court
orders authorizing several additional wiretaps: First on
Terrance Hudson’s phone, then Robert Savoy’s, then James
Brown’s, and finally Jerome Johnson’s. Scurry is specifically
named in the orders approving the Hudson wiretap, J.A. 86–87
(“There is probable cause to believe that * * * ERIC
DEWAYNE SCURRY * * * and others yet unknown, have
committed, are committing, and will continue to commit
violations of” the law and “that particular wire communications
of * * * ERIC DEWAYNE SCURRY * * * and others yet
unknown concerning the above-described offenses will be
obtained through the interception for which authorization has
herewith been applied.”), and the Savoy wiretap, J.A. 106–107
(“There is probable cause to believe that * * * ERIC
DEWAYNE SCURRY * * * and others yet unknown, have
committed, are committing, and will continue to commit
violations of [the law.]”). He was also named in several of the
government’s wiretap applications. See J.A. 81–82 (Hudson
application); J.A. 95A–95B, 101 (Savoy application and
accompanying affidavit); J.A. 110 (Johnson application).
Scurry, Hudson, Savoy, and Johnson were arrested and
charged in late 2010; Brown was arrested and charged in 2011.
The government alleged that all five men conspired, from
November 2006 through November 2010, to distribute and
possess with intent to distribute five kilograms or more of
cocaine and 280 grams or more of crack cocaine. The
government also charged Scurry with distributing crack
cocaine, distributing crack cocaine within 1,000 feet of a
school, and unlawfully using a communication facility (a
telephone) to aid and abet drug distribution.
Each of the five defendants filed a motion to suppress
wiretap evidence. Scurry’s motion sought suppression of only
the evidence obtained from the wiretap of his own phone. But
Savoy and Johnson moved to suppress evidence from the
wiretaps of their own and their co-defendants’ phones, while
Brown asked to suppress only evidence from the wiretaps of
Savoy’s phones. The district court rejected each motion. See
United States v. Savoy, 883 F. Supp. 2d 101, 104
Throughout most of the district court proceedings, Scurry
had been represented by Christopher Davis. But just a few
days before trial was scheduled to start, Mary Davis, who is
Christopher Davis’s spouse, told the district court that she
would be “standing in for Mr. Davis some days,” because Mr.
Davis was occupied with other court matters. Transcript at 9,
United States v. Savoy, No. 10-cr-00310 (D.D.C. Sept. 7,
2012), ECF No. 347. When Mary Davis raised the possibility
that Mr. Davis would not be present for opening arguments, the
district court responded that Mr. Davis should advise the other
court that “trial takes precedence,” and “[i]f [the other judge]
doesn’t believe it, I’ll tell him myself.” Id. at 7–8. On the
day that Scurry’s trial was set to start, Christopher Davis was
absent, and Mary Davis appeared in her husband’s place.
That same day, Scurry was considering a plea offer from
the government. With Mary Davis as his only counsel
present, Scurry accepted the plea offer. He pleaded guilty to
conspiracy to distribute and possess with intent to distribute
280 grams or more of crack cocaine and a conspiracy to launder
money gained from the drug distribution scheme.
Scurry’s plea agreement included a condition: He
reserved the right to appeal “the Court’s Order of August 3,
2012, denying defendants’ motion to suppress the wiretap
evidence, specifically Documents [sic] 59”—that is, his own
motion to suppress. J.A. 147–148. The agreement was
explicit that Scurry could withdraw his plea “[o]nly in the event
of a reversal of that decision” denying his own motion to
suppress. J.A. 148. To confirm the point, the agreement
separately stated that Scurry “reserves the right to appeal only
the identified pretrial ruling[.]” J.A. 148.
Scurry’s co-defendants entered plea agreements as well.
But unlike Scurry’s, two of the other plea agreements expressly
preserved a broader right to appeal an order denying motions
to suppress other than the defendant’s own. See Plea
Agreement at 9–10, Savoy, No. 10-cr-00310 (D.D.C. Sept. 7,
2012), ECF No. 213 (Johnson plea agreement, reserving right
to appeal an order denying one of Savoy’s motions); Plea
Agreement at 10, Savoy, No. 10-cr-00310 (D.D.C. Sept. 10,
2012), ECF No. 224 (Hudson plea agreement, reserving right
to appeal an order denying Savoy’s motions).
Under the plea agreement, Scurry was sentenced to
twelve years of imprisonment, followed by five years of
Scurry and his co-defendants appealed the district court’s
denial of their motions to suppress. Those appeals were
consolidated in United States v. Scurry, No. 12-3104
Initially, Mary Davis was Scurry’s attorney for the direct
appeal. But Scurry soon asked for Mary Davis to be removed
as counsel. Motion, Scurry I, No. 12-3104 (D.C. Cir.
March 27, 2013), ECF No. 1427990. Scurry said that Mary
Davis had a conflict of interest because she coerced him into
pleading guilty and because she was married to trial counsel,
Christopher Davis, against whom Scurry also planned to file an
ineffective assistance of counsel claim. Id. at 4. A few days
later, Mary Davis filed a motion to withdraw as Scurry’s
counsel. Motion, Scurry I, No. 12-3104 (D.C. Cir. March 29,
2013), ECF No. 1428070. This court granted both motions
and directed that new counsel be appointed for Scurry. Per
Curiam Order, Scurry I, No. 12-3104 (D.C. Cir. July 25, 2013),
ECF No. 1448381.
This court subsequently reversed the district court’s denial
of motions to suppress evidence from the wiretaps of Hudson’s
and Johnson’s phones. Scurry I, 821 F.3d at 5. We did so on
the ground that the federal wiretap statute, Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, requires
that an order approving a wiretap include, among other things,
“the identity of the high-level Justice Department official who
approved the application[.]” Id. at 7 (citing 18 U.S.C.
§ 2518(4)(d)). Because the Hudson and Johnson orders
plainly did not include the name of that official, the court held
that the wiretap orders were invalid on their face. See id. at 8–
12. That holding required suppression of the evidence
obtained directly or derived from the Hudson and Johnson
wiretaps. See id. at 13–14. This court then affirmed the
remainder of the district court’s rulings, including the denial of
Scurry’s own motion to suppress. See id. at 5, 16.
On remand, the government determined that evidence
from the Hudson wiretap had led to the Savoy wiretap, which
in turn had led to evidence relevant to Brown and to the
Johnson wiretap. As a result, the government moved to
dismiss the charges against Hudson, Savoy, Brown, and
Johnson. That meant that, of the five original co-defendants
in this case, only Scurry remained, without any benefit from
the suppression decisions.
Scurry then filed a pro se motion to dismiss his indictment.
While monitoring the electronic docket, Mary Davis noticed
Scurry’s filing. She then, on her own initiative, reached out to
Scurry and offered to supplement his motion. Oral Arg. Tr.
11:3–20. Although Mary Davis had withdrawn from Scurry’s
direct appeal because of a conflict of interest—including
Scurry’s allegation that she had coerced him into pleading
guilty––she did not obtain a waiver from Scurry of that conflict
before offering to represent him. Oral Arg. Tr. 11:21–12:13,
13:11–16; see A.B.A. MODEL R. PROF’L CONDUCT 1.7(a)(2),
(b)(4) (2016) (requiring “informed consent, confirmed in
writing” from client when “there is a significant risk that the
representation of one or more clients will be materially limited
* * * by a personal interest of the lawyer”); see also National
Treasury Emps. Union v. United States Dep’t of Treasury, 656
F.2d 848, 851 (D.C. Cir. 1981) (giving deference to the
American Bar Association rules of conduct). Nor did Davis
advise Scurry that the common and likely only legally viable
way to challenge his conviction and sentence at this procedural
stage would be to press an ineffective assistance of counsel
claim against herself and/or her husband. See Oral Arg. Tr.
After Mary Davis’s contact, Scurry filed a pro se motion
asking the district court to re-appoint Mary and Christopher
Davis to represent him because they had “indicated that they
may supplement [his] motion.” Motion at 1, Savoy, No. 10-
cr-00310 (D.D.C. Dec. 19, 2016), ECF No. 384. The district
court granted that motion, appointing them both under the
Criminal Justice Act, 18 U.S.C. § 3006A. As relevant here,
the Criminal Justice Act authorizes federal courts to appoint
counsel for indigent parties in post-conviction proceedings
when it is in the “interests of justice” to do so. Id.
Three months later, Mary and Christopher Davis filed a
motion under 28 U.S.C. § 2255 to vacate Scurry’s plea on the
ground that it was not voluntarily or intelligently entered into
because Scurry was “induced” to plead guilty by evidence
collected from the wiretaps of his co-defendants’ phones,
which had since been ruled inadmissible. On August 22,
2018, the district court denied that motion, along with Scurry’s
motion to dismiss his indictment, ruling that Scurry’s plea was
valid because he had understood the charges against him, and
“the mere fact that evidence was suppressed as to others does
not render his plea involuntary.” United States v. Scurry, 318
F. Supp. 3d 365, 369 (D.D.C. 2018).
Scurry filed a timely pro se notice of appeal from the
denial of his Section 2255 motion. On December 10, 2019,
this court granted Scurry’s motion for a certificate of
appealability and referred the case to the Office of the Federal
Public Defender for representation or selection of counsel from
the Criminal Justice Act panel. Two weeks later, the court
appointed Mary Davis as counsel for the appeal under the
Criminal Justice Act. See U.S. Court of Appeals for the
District of Columbia Circuit Plan to Implement the Criminal
Justice Act of 1964 (June 2007).
The district court had jurisdiction over Scurry’s motion
under 28 U.S.C. § 2255. Because this court issued a
certificate of appealability, we have jurisdiction over the appeal
under 28 U.S.C. § 2253.
We review the district court’s legal conclusions de novo.
United States v. Caso, 723 F.3d 215, 219 (D.C. Cir. 2013).
Determinations regarding appointment of counsel in the
interests of justice under the Criminal Justice Act, 18 U.S.C.
§ 3006A(a)(2)(B), are reviewed for an abuse of discretion.
See Wiseman v. Wachendorf, 984 F.3d 649, 655 (8th Cir.
Scurry challenges the voluntary and intelligent nature of
his plea. At the time of the plea, Scurry believed that the
wiretaps of his co-defendants’ telephones supplied the critical
evidence that he had participated in a conspiracy to distribute,
or possess with intent to distribute, at least 280 grams of crack
cocaine. He argues that his plea was neither voluntary nor
intelligent because, when he entered the plea, he did not
understand that the evidence might not have been admissible
against him since the wiretaps were facially invalid. In other
words, Scurry argues that he “did not understand the law in
relation to the facts of this case[.]” Scurry Reply Br. 6.
Scurry’s argument requires him to show first that, under
the wiretap statute, he qualifies as an aggrieved person who can
object to the government’s use of evidence from the wiretaps
of others’ phones. See 18 U.S.C. § 2518(10)(a). Second, his
evidentiary challenge must support a legally viable objection
to the voluntary and intelligent nature of his plea. Even
assuming that Scurry is an aggrieved person within the
meaning of the wiretap statute who could challenge the
wiretaps of his (former) co-defendants, his challenge to the
voluntariness of his plea, as presently formulated, is squarely
foreclosed by precedent.
It is well settled that “a voluntary and intelligent plea of
guilty made by an accused person, who has been advised by
competent counsel, may not be collaterally attacked.” United
States v. Broce, 488 U.S. 563, 574 (1989) (quoting Mabry v.
Johnson, 467 U.S. 504, 508 (1984)); see also, e.g., Class v.
United States, 138 S. Ct. 798, 805 (2018); Lefkowitz v.
Newsome, 420 U.S. 283, 288 (1975); Tollett v. Henderson, 411
U.S. 258, 267 (1973); Parker v. North Carolina, 397 U.S. 790,
796–798 (1970); McMann v. Richardson, 397 U.S. 759, 770–
771 (1970); Brady v. United States, 397 U.S. 742, 757 (1970);
In re Sealed Case, 936 F.3d 582, 587 (D.C. Cir. 2019).
That case law closes the door on Scurry’s challenge to his
plea based on the inadmissibility of wiretap evidence. For
example, in McMann, the petitioners argued that their guilty
pleas were involuntary because the pleas had been induced by
unlawfully obtained evidence—in that case, coerced
confessions. See 397 U.S. at 762–763. The Supreme Court
gave that argument no harbor. The Court explained that a
“later petition for collateral relief asserting that a coerced
confession induced [a defendant’s] plea” amounts “at most [to]
a claim that the admissibility of his confession was mistakenly
assessed and that since he was erroneously advised, either
under the then applicable law or under the law later announced,
his plea was an unintelligent and voidable act.” Id. at 769
(emphasis omitted). That is insufficient to overturn a
conviction. Id. As long as counsel’s advice to take the plea
rather than gamble on an evidentiary suppression issue was
“reasonably competent,” the plea is “not open to attack on the
ground that counsel may have misjudged the admissibility of
the defendant’s confession.” Id. at 770.
So too here. Just as the McMann petitioners argued that
their guilty pleas had been induced by inadmissible evidence
(coerced confessions), Scurry argues that his plea was induced
by inadmissible wiretap evidence. But by pleading guilty,
Scurry specifically waived any challenge to the government’s
evidence other than his expressly reserved challenge to the
district court’s denial of his own motion to suppress evidence
from the wiretap on his telephone. See Plea Tr. 8:17–22; 9:2–
7, 12–13; J.A. 147–148. So Scurry’s “guilty plea result[ed] in
the * * * loss of any meaningful opportunity he might
otherwise have had to challenge the inadmissibility of [other]
evidence obtained in violation of” law. Haring v. Prosise, 462
U.S. 306, 320 (1983).
Scurry argues that McMann is different because the
petitioners there knew that their confessions had been coerced,
while he did not know, until Scurry I, that the evidence from
his co-defendants’ phones would be suppressed. That
argument makes little sense. While the McMann petitioners
may have known the factual circumstances of their
confessions, they did not know at the time of their pleas
whether their confessions would meet the legal definition of
coercion and would be suppressed. Similarly, Scurry did not
understand the legal status of the other individuals’ wiretaps at
the time of his plea. Fighting those legal evidentiary
disputes—and the risk of losing that battle—is part of what a
defendant forgoes when pleading guilty. That is why the
Supreme Court rejected an argument just like Scurry’s. See
Tollett, 411 U.S. at 265–266 (holding that guilty plea
foreclosed inquiry into discrimination in grand jury selection,
even though defendant and his attorney were unaware of such
discrimination before the defendant entered his guilty plea).
Simply put, wrongly judging the admissibility of evidence does
not render a plea involuntary as long as counsel provided
reasonably competent advice in making that decision. See
McMann, 397 U.S. at 769–770; see also Brady, 397 U.S. at 757
(defendant cannot withdraw plea where “his calculus
misapprehended the quality of the State’s case”). As has been
said time and again, “a voluntary plea of guilty intelligently
made in light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the plea
rested on a faulty premise.” Brady, 397 U.S. at 757.
That, however, is not the end of the story in this case.
Central to McMann, Tollett, Brady, and the other governing
precedent is the foundational presumption that the decision to
plead guilty rested on competent legal advice from counsel.
See Tollett, 411 U.S. at 266–267; McMann, 397 U.S. at 770–
771; Brady, 397 U.S. at 756–758. So while reasonable but
mistaken evidentiary judgments themselves do not render a
plea involuntary, ineffective assistance of counsel in evaluating
the strength of the government’s case, the risks of going to trial,
or the consequences of pleading guilty can invalidate a plea.
The Supreme Court in McMann was quite clear that what could
render a guilty plea involuntary is not the claim of evidentiary
misjudgment advanced by Scurry’s counsel here, but instead is
a claim of ineffective assistance of counsel in entering the plea.
See McMann, 397 U.S. at 770–771. For a counseled
defendant informed of the charges against him, “the
voluntariness of the plea depends on whether counsel’s advice
‘was within the range of competence demanded of attorneys in
criminal cases.’” Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(quoting McMann, 397 U.S. at 771). As such, a counseled
defendant like Scurry “may only attack the voluntary and
intelligent character of the guilty plea by showing that the
advice he received from counsel” failed the constitutional
requirement of effective counsel. See id. at 57–58 (quoting
Tollett, 411 U.S. at 267); see generally Strickland v.
Washington, 466 U.S. 668 (1984).1
1 There are a few other narrow exceptions to the general bar on
collateral attacks to a counseled plea. They include, for example,
(i) when a defendant was “misinformed as to the true nature of the
charge against him[,]” Bousley v. United States, 523 U.S. 614, 619
(1998), which often takes the form of a challenge under Federal Rule
of Criminal Procedure 11; (ii) when the government lacked the
power to constitutionally prosecute the defendant because the
defendant could not lawfully have been “haled into court at all,” the
so-called Blackledge-Menna doctrine, Class, 138 S. Ct. at 803
(quoting Blackledge v. Perry, 417 U.S. 21, 30–31 (1974)); In re
Sealed Case, 936 F.3d at 587; and (iii) when a defendant challenges
Therein lies the rub in this case. Mary Davis, after
withdrawing from the direct appeal because Scurry raised a
conflict of interest based on her and her husband’s asserted
ineffectiveness, affirmatively reached out to Scurry to get
appointed to assist him with his collateral challenge to his plea.
See Oral Arg. Tr. 11:3–20; Motion, Scurry I, No. 12-3104
(D.C. Cir. March 27, 2013), ECF No. 1427990; Motion, Scurry
I, No. 12-3104 (D.C. Cir. March 29, 2013), ECF No. 1428070.
Yet, under controlling Supreme Court precedent, the only
legally viable avenue for challenging the plea apparent on this
record would have been for Davis to argue that her own and/or
her husband’s representation of Scurry in the decision to plead
guilty was constitutionally ineffective. That Davis chose to
pursue a challenge to Scurry’s guilty plea that was plainly
foreclosed by precedent rather than the only potentially viable
legal avenue recognized by case law—an ineffective assistance
of counsel claim against herself and her spouse—presents an
untenable direct and plain conflict of interest between attorney
Nor did Davis, when she re-inserted herself into Scurry’s
case to file this Section 2255 motion, obtain any waiver of the
conflict—even assuming a conflict like this is waivable at all.
See Oral Arg. Tr. 12:11–17; 13:11–16. Davis, in fact, did not
recall broaching the conflict issue at all with Scurry; she did
not even recall the conflict. Oral Arg. Tr. 12:3–4, 13:1–3, 11–
16. Davis also apparently never advised Scurry that, to be
legally viable, a challenge to the voluntary and intelligent
nature of his plea based on the suppression of the other wiretaps
would require him to level an ineffective assistance of counsel
claim aimed at her and/or her husband. See Oral Arg. Tr.
the subject-matter jurisdiction of the district court, United States v.
Cotton, 535 U.S. 625, 630 (2002); United States v. Delgado-Garcia,
374 F.3d 1337, 1341 (D.C. Cir. 2004). None of those arguments has
been raised here.
15:24–25; 16:1–9. So the conflict of interest persisted
throughout and permeated Mary Davis’s representation of
Scurry in these Section 2255 proceedings.
While we make no decision about the ultimate merits of a
claim that Scurry received constitutionally ineffective
assistance in entering his plea, the record establishes that
pressing such a claim was sufficiently plausible so as not to
foreclose Scurry raising the argument as a potential avenue of
relief in his Section 2255 petition. See Christeson v. Roper,
574 U.S. 373, 380 (2015) (per curiam) (finding that, despite a
“host of procedural obstacles,” habeas petition was not futile).
Scurry had already claimed at the outset of his direct appeal
that Mary Davis coerced him into agreeing to the plea.
Motion at 3–5, Scurry I, No. 12-3104 (D.C. Cir. March 27,
2013), ECF No. 1427990. And Davis’s answers at oral
argument were not inconsistent with that claim. She stated
that she was covering for her husband by representing and
counseling Scurry as he made the final decision to plead guilty.
Oral Arg. Tr. 10:15–16; 26:14–18. Although appearing as
counsel for the first day of trial, she admitted that she had not
reviewed the evidence in the case. And yet she still
represented Scurry regarding the plea. See Oral Arg. Tr. 26:8–
18. She further admitted that she did not even know whether
Scurry’s communications were captured by the wiretaps of his
co-defendants’ phones, a fact of potentially critical significance
to his ability to challenge those wiretaps. See Oral Arg.
Tr. 26:8–21; 18 U.S.C. §§ 2510(11), 2518(10)(a) (providing
that “aggrieved person[s],” including those who were a party
to any intercepted communication, can move to suppress the
contents of that communication). Scurry’s plea also did not
preserve his ability to challenge the district court’s failure to
suppress his co-defendants’ wiretap evidence or condition his
plea on the result of any challenge to their suppression orders,
as some of his former co-defendants’ plea agreements did.
Given all of those facts, the record incontrovertibly
establishes that the conflict of interest impaired Davis’s
representation of Scurry in the district court and in this court.
Davis brought a challenge to Scurry’s plea that is squarely
foreclosed by precedent and omitted a plausible ineffectiveness
claim that courts have allowed in precisely this context. Still
worse, by affirmatively intervening in Scurry’s collateral
proceedings despite the conflict and not pressing the ineffective
assistance claim, Davis seemingly “ma[d]e a choice advancing
[her] own interest at the expense of [her] client’s.” United
States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998).
To be sure, there generally is no constitutional right to
effective counsel in collateral proceedings. See, e.g., Garza v.
Idaho, 139 S. Ct. 738, 749 (2019).2
But the Criminal Justice
Act statutorily authorizes courts to appoint counsel for
financially eligible individuals like Scurry who are seeking
relief under Section 2255 when “the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2)(B). The “interests of
justice” inquiry is “peculiarly context-specific,” and we will
overturn a district court’s decision about the appointment of
counsel under Section 3006A(a)(2)(B) only for an abuse of
discretion. See Martel v. Clair, 565 U.S. 648, 663 (2012); see
2 The Supreme Court has left open the possibility that an
individual could have a constitutional right to effective counsel in
collateral proceedings when those proceedings provide the first
opportunity to raise a claim of ineffective assistance of trial counsel.
See Martinez v. Ryan, 566 U.S. 1, 8 (2012) (describing Coleman v.
Thompson, 501 U.S. 722, 755 (1991)). Relatedly, the Court has
held that the ineffective assistance of post-conviction counsel can
serve as “cause” to overcome the procedural default of an ineffective
assistance of trial counsel claim, where the individual did not have a
meaningful opportunity to bring his claim alleging ineffective
assistance at trial on direct appeal. See Trevino v. Thaler, 569 U.S.
413, 429 (2013); Martinez, 566 U.S. at 10, 17.
also id. at 652 (applying the same “interests of justice” standard
from the Criminal Justice Act to substitutions of counsel for
capital defendants under 18 U.S.C. § 3599(e)).
The appointment of counsel despite an “obvious conflict
of interest” constitutes an abuse of discretion under the
“interests of justice” standard. Cf. Christeson, 574 U.S. at 379
(in the context of substitution of counsel under
Section 3599(e)); Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)
(explaining that an attorney is ineffective in violation of the
Sixth Amendment where “an actual conflict of interest
adversely affect[s]” her performance). In Christeson, the
Supreme Court overturned the lower courts’ denial of a motion
to substitute post-conviction counsel under the “interests of
justice” standard because their client’s “only hope” was to
pursue a claim “premised on [appointed counsel’s] own
malfeasance[.]” 574 U.S. at 375. The Supreme Court
explained that “[a]dvancing such a claim would have required
[counsel] to denigrate their own performance,” yet they
“cannot reasonably be expected to make such an argument,
which threatens their professional reputation and livelihood.”
Id. at 378. The Supreme Court accordingly reversed and
remanded for the substitution of conflict-free counsel. See id.
Here too, the appointment of Mary Davis by the district
court to represent Scurry when she labored under an undeniable
and significant conflict of interest was an improper exercise of
the appointment power under the Criminal Justice Act and,
therefore, legal error. A “significant conflict of interest”
arises when an attorney’s “interest in avoiding damage to [her]
own reputation” is “at odds with [her client’s] strongest
argument.” Maples v. Thomas, 565 U.S. 266, 285–286 n.8
(2012). That is this case exactly. Mary Davis’s conflict of
interest pitted her professional interests and reputation against
her client’s legal interest in the advancement of his only viable
challenge to the guilty plea—one based on the Davises’ own
alleged ineffectiveness in advising him to take the plea and in
setting its terms. This plain and material conflict of interest
made the appointment of Mary Davis for the Section 2255
petition and appeal legal error because we “certainly cannot
reasonably expect an attorney to vigorously attack [her] own
prior representation of a client as ineffective.” United States
v. Barnes, 662 F.2d 777, 782 (D.C. Cir. 1980); see also
Massaro v. United States, 538 U.S. 500, 502–503 (2003)
(noting that “an attorney who handles both trial and appeal is
unlikely to raise an ineffective assistance claim against
To be fair, that legal error is as much this court’s as the
district court’s because we appointed Mary Davis to handle this
appeal. Clerk’s Order at 1, United States v. Scurry (Scurry II),
No. 18-3067 (D.C. Cir. Dec. 23, 2019), ECF No. 1821432; see
also Per Curiam Order at 1, Scurry II, No. 18-3067 (D.C. Cir.
Dec. 10, 2019), ECF No. 1819648. That we and the district
court were ignorant of the conflict at the time of the
appointment does not absolve us of responsibility to correct the
error once it is discovered. It can never be appropriate under
the Criminal Justice Act—it can never be in the “interests of
justice”—to appoint counsel who labors under an unwaived
and material conflict of interest. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990) (A “court would
necessarily abuse its discretion if it based its ruling on an
erroneous view of the law[.]”). Mary Davis’s appointment
was therefore impermissible under the Criminal Justice Act.
Now that we have discovered this problem, this court may
raise the issue sua sponte. See Wood v. Georgia, 450 U.S.
261, 272 (1981) (raising possible conflict of interest that was
neither briefed nor argued); see also Barnes, 662 F.2d at 783
(“It was the responsibility of the court and the government to
take initiative to protect appellant’s right to counsel.”); cf.
Massaro, 538 U.S. at 508 (“There may be instances * * * when
obvious deficiencies in representation will be addressed by an
appellate court sua sponte” on direct appeal rather than in a
Section 2255 motion.). “Although the provision of counsel in
[S]ection 2255 proceedings may be discretionary, ‘[h]aving
thus determined that counsel should have been appointed, the
[d]istrict [c]ourt’” and this court “‘should have taken steps to
insure effective representation.’” Barnes, 662 F.2d at 781
(second alteration in original) (quoting McCartney v. United
States, 343 F.2d 471, 472 (9th Cir. 1965)).
We now take that necessary step and reverse and remand
to the district court for the appointment of conflict-free counsel
to represent Scurry in his Section 2255 proceedings. See
Barnes, 662 F.2d at 782–783 (remanding for hearing on
Section 2255 motion with new counsel after old counsel had
failed to “vigorously attack” his prior representation as
ineffective); see also United States v. Ortiz-Graulau, 526 F.3d
16, 21 (1st Cir. 2008) (instructing district court, in the event
that the defendant chose to pursue a Section 2255 petition, to
appoint conflict-free counsel for those proceedings).
Whatever the scope of the courts’ discretion in appointing
counsel under the Criminal Justice Act, it cannot extend to the
appointment of an attorney whose interests are antagonistic to
those of the client.
Outcome: For all of those reasons, we hold that the appointment of
Mary Davis was not in the interests of justice under the
Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B), given her
unwaived and material conflict of interest. The district court’s
judgment is reversed, and the case is remanded for the
appointment of conflict-free counsel to represent Scurry in his
Section 2255 proceedings.