by David M. Reutter

The U.S. Court of Appeals for the District of Columbia Circuit “discovered an undeniable and unwaived conflict of interest between court-appointed counsel” in a § 2255 petition and the appellant. It held the appointment of attorney Mary Davis to represent the appellant was not in the interests of justice under the Criminal Justice Act.

The Court’s opinion was issued in an appeal by Eric Scurry. In 2009, the FBI began an investigation into suspected narcotics distribution at a Washington D.C. apartment complex. The evidence it collected led investigators to seek and obtain a wiretap on Scurry’s cell phone. That led to evidence that resulted in additional wiretaps on the phones of Terrance Hudson, Robert Savoy, James Brown, and Jerome Johnson.

All five men were arrested in late 2010 or 2011. They were charged with conspiring from November 2006 through November 2010 to distribute five or more kilograms of cocaine and 280 or more grams of crack cocaine. Scurry was also charged with distributing crack cocaine within 1,000 feet of a school and unlawfully using a telephone to aid and abet drug distribution.

All five defendants moved to suppress the wiretap evidence. Scurry moved to suppress only evidence from his phone. Savoy and Johnson moved to suppress not only evidence from their phones but evidence from their co-defendants’ phones. Brown moved to suppress only evidence from Savoy’s phone. The district court rejected each motion.

Throughout most of the district court proceedings, Scurry was represented by Christopher Davis. Just a few days before trial, Mary Davis, Christopher’s wife, informed the court that she would be “standing in for Mr. Davis some days” because Mr. Davis was occupied with other court matters.

On the day of trial, Mary Davis was the only counsel present for Scurry. He accepted a plea offer to plead guilty to conspiracy to distribute and possess with intent to distribute 280 grams or more of crack cocaine and conspiracy to launder money gained from the drug distribution scheme.

The plea agreement included a condition that Scurry reserved the right to appeal the denial of his own motion to suppress and that he could withdraw his plea “[o]nly in the event of a reversal of that decision.” Scurry’s co-defendants also entered guilty pleas, but the plea agreements of Johnson and Hudson expressly preserved a broader right to appeal an order denying motions to suppress other than the defendant’s own. Scurry was sentenced to 12 years in prison and five years of supervised release.

Scurry and his co-defendants appealed the denial of their motions to suppress. Those appeals were consolidated. Mary Davis was initially Scurry’s counsel on appeal, but he moved to have her removed. He asserted a conflict of interest because she coerced him to plead guilty and because she was married to his trial counsel. Mary Davis moved to withdraw a few days later.

The D.C. Circuit subsequently reversed the denial of Hudson’s and Johnson’s motions to suppress on grounds the warrants failed to identify “the high-level Justice Department official who approved the application” as required by 18 U.S.C. § 2518(4)(d). The denial of Scurry’s motion was affirmed. On remand, the district court determined the suppressed wiretap evidence was also relevant to Savoy and Brown. The Government ultimately moved to dismiss the charges against those four defendants, leaving only Scurry without the benefit of the suppression decisions.

Scurry then filed a pro se motion to dismiss his indictment. Of her own initiative, Mary Davis reached out to Scurry and offered to supplement his motion. She did not obtain a waiver of conflict before representing him. The district court granted Scurry’s motion to appoint Christopher and Mary Davis as counsel. Three months later, they filed a 28 U.S.C. § 2255 petition to vacate Scurry’s plea on grounds it was not voluntarily or intelligently entered into because the illegal wiretap evidence “induced” the guilty plea. The district court denied the petition, and Scurry appealed.

The D.C. Circuit rejected the voluntariness of the plea claim. It said that “wrongly judging the admissibility of evidence does not render a plea involuntary as long as counsel provided reasonably competent advice in making that decision.” The courts have repeatedly stated that “a voluntary plea of guilty intelligently made in light of then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Brady v. United States, 397 U.S. 742 (1970).

“That, however, is not the end of the story in this case,” wrote the Court. A foundational presumption is that the decision to plead guilty rested upon competent legal advice from counsel. Tollett v. Henderson, 411 U.S. 258 (1973). The “rub in this case” was that “the only legally viable avenue for challenging the plea apparent on this record would have been for [Mary] Davis to argue her own and/or her husband’s representation of Scurry in the decision to plead guilty was constitutionally ineffective.” The fact that she failed to pursue such a claim and pursued a claim that was “plainly foreclosed by precedent” presented “an untenable direct and plain conflict of interest between attorney and client,” the Court stated.

Davis failed to obtain a waiver of the conflict, “even assuming a conflict like this is waivable at all,” before reinserting herself into Scurry’s case, the Court noted. Given Mary Davis’s unwaived and material conflict of interest, the Court determined that her appointment as Scurry’s counsel was not in the interests of justice under the Criminal Justice Act, 18 U.S.C. § 3006A(a)(2)(B).

Accordingly, the Court reversed and remanded for appointment of conflict-free counsel to represent Scurry in his § 2255 petition. See: United States v. Scurry, 987 F.3d 1144 (D.C. Cir. 2021). 

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