UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6601
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY WAYNE SHEPPARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-94-122; CA-98-747)
Argued: October 27, 2004 Decided: February 4, 2005
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Elizabeth Bonnie Wydra, GEORGETOWN UNIVERSITY LAW CENTER,
Appellate Litigation Program, Washington, D.C., for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Steven H. Goldblatt, Director, GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation Program, Washington, D.C., for
Appellant. Frank D. Whitney, United States Attorney, Christine
Witcover Dean, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Jerry Sheppard brings this 28 U.S.C. § 2255 action challenging
the sentence imposed upon him by the district court on the ground
that he was denied his Sixth Amendment right to counsel because his
counsel was operating under a conflict of interest. Because we
find that the district court erred in not holding an evidentiary
hearing on this issue, we vacate the decision of the district court
and remand for appropriate proceedings.
I.
On June 30, 1995, Jerry Sheppard was found guilty on two
counts of conspiracy to distribute and possession with intent to
distribute cocaine and marijuana. As a result of this conviction,
Sheppard was imprisoned for 210 months.
Alice Stubbs represented Sheppard during both the trial and
sentencing phases of this action. Assistant United States District
Attorney (“AUSA”) Jane Jackson represented the United States at
trial. AUSA J. Douglas McCullough represented the United States
during the sentencing phase of the proceedings. During the
sentencing hearing, AUSA McCullough referred to Sheppard as “the
violent enforcer of a drug operation” who has “no conscience and no
remorse,” J.A. 84-85, and contended that a sentence at the high
end of the United States Sentencing Guidelines was required “to
protect the public as long as we can from a man with his
3
background, who does the types of things that he does so
regularly.” Id. at 85. Ultimately, the district court found that
Sheppard was subject to a custody range of 168 to 210 months, and
sentenced him to the maximum allowable under the Sentencing
Guidelines.
In October of 1995 Sheppard brought a direct appeal of his
conviction to this Court, arguing that reversible error occurred
during both the trial and sentencing phases of his criminal trial.
At the time, Sheppard was still represented by Ms. Stubbs. In
November of 1996, AUSA McCullough left the United States Attorneys’
office and joined Ms. Stubbs’s law firm of Stubbs and Perdue.
In June of 1997, the Government filed a brief responding to
Sheppard’s contentions. Although a motion for extension of time to
file a reply brief was granted, no reply was ever filed. Ms.
Stubbs represented Sheppard at oral argument on October 27, 1997.
However, in November of 1997, Ms. Stubbs was appointed to the 10th
Judicial District of the North Carolina bench. Shortly thereafter,
former AUSA McCullough, still employed by Stubbs and Perdue, was
appointed to represent Sheppard.* Prior to his appointment, Mr.
McCullough notified the district court that he had been an AUSA
during Sheppard’s criminal trial. This Court affirmed the
*Despite a thorough search of the record, this court has been
unable to determine the exact date of said appointment.
4
conviction and sentence on direct appeal on January 20, 1998. See
United States v. Love, 134 F.3d 595 (4th Cir. 1998).
On February 11, 1998, Mr. McCullough filed both a petition for
panel rehearing pursuant to Fed. R. App. P. 40 and a motion for
leave to file a petition for rehearing out of time because the
petition for rehearing was untimely. In the panel rehearing
petition, Mr. McCullough argued that the district court committed
reversible error by allowing inadmissible evidence into the record.
Ultimately, both motions were denied by this Court. Mr. McCullough
also represented Sheppard in his petition for writ of certiorari,
which was denied on June 15, 1998.
Having exhausted his direct appeals, Sheppard next filed a 28
U.S.C. § 2255 petition pro se. The petition alleged, among other
things, that Sheppard received ineffective assistance of counsel
from both his trial and appellate counsel. In particular, Sheppard
claimed that he had not received effective assistance of counsel
because Mr. McCullough was operating under a conflict of interest.
Sheppard alleged that this conflict arose because Mr. McCullough’s
role as Sheppard’s appellate counsel required him to attack the
very sentence he had argued for during his tenure as an AUSA.
In response, Mr. McCullough filed two affidavits. In the
first affidavit, Mr. McCullough stated that he:
never played any role in the prosecution of this case,
and merely administered the office at a time when this
case was pending, as were numerous other cases. Your
undersigned had no direct involvement in this Defendant’s
5
case, nor did I ever appear in court on behalf of the
United States against this defendant.
J.A. 119. However, after a review of the record, Mr. McCullough
was forced to amend that affidavit, stating:
In a prior affidavit filed with this Court I stated that
I had not appeared in court for the Government in this
case. After reviewing a portion of the sentencing
transcript, that part of my previous affidavit appears to
be in error. I have absolutely no recollection of Mr.
Sheppard or of handling his sentencing hearing for the
Government and was undoubtedly handling the matter due to
Ms. Jackson, the assigned Assistant United States
District Attorney, being elsewhere. The sentencing
recommendation made in court was taken after receiving
Ms. Jackson’s instructions and merely reflected her views
on the sentencing of this defendant.
Id. at 156.
The United States District Court for the Eastern District of
North Carolina, Western Division, granted the government’s motion
for summary judgment and denied Sheppard habeas relief. This Court
subsequently granted a certificate of appealability solely on the
conflict of interest issue.
II.
Sheppard contends that at minimum the district court should
have held an evidentiary hearing on the issue of whether a conflict
of interest was present in this case. We agree.
As a general matter, it is clearly established federal law
that the Sixth Amendment right to counsel is the right to effective
counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984).
6
It is also clearly established that the right to effective counsel
includes the right to representation that is free from conflicts of
interest. See Rubin v. Gee, 292 F.3d 396, 401 (4th Cir. 2002)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980)). In order
to establish a conflict of interest claim, a defendant "must
demonstrate that an actual conflict of interest adversely affected
his lawyer's performance." Rubin, 292 F.3d 396, 401 (citing
Sullivan, 446 U.S. at 348 (1980)). And, an adverse effect cannot
be presumed solely from the existence of a conflict of interest.
See Mickens v. Taylor, 535 U.S. 162, 170-75 (2002); Rubin, 292 F.3d
at 401.
As Sheppard brought his habeas claim under 28 U.S.C. § 2255,
we are guided by the dictates of that section. Under § 2255:
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.
28 U.S.C.A. § 2255. “Section 2255 of Title 28 U.S.C. provides that
unless the record conclusively shows that the prisoner is entitled
to no relief, the district court should conduct an evidentiary
hearing and state its findings and conclusions.” United States v.
Young, 644 F.2d 1008, 1013 (4th Cir. 1981).
Therefore, in order for the lack of an evidentiary hearing in
this case to be proper, the record must conclusively show either
7
that an actual conflict of interest did not exist, or that the
conflict in question did not adversely impact Mr. McCullough’s
performance. Here, Sheppard alleges that Mr. McCullough operated
under an actual conflict of interest when he was forced to argue
against the very same sentence for which he earlier argued in
favor. Sheppard further alleges that Mr. McCullough’s performance
was adversely affected by this conflict of interest when Mr.
McCullough, as a result of a lack of zeal, failed to timely file a
petition for rehearing en banc. While we make no judgment
regarding the propriety of the conduct in question, we simply
cannot find that the record conclusively shows that the prisoner is
not entitled to habeas relief. Therefore, we find that § 2255
mandates that an evidentiary hearing be held in this case.
As an initial matter, we cannot accept the assertion that Mr.
McCullough “simply was standing in for AUSA Jackson, who was unable
to appear for sentencing that day,” and “simply relayed Ms.
Jackson’s recommendation of a sentence at the top end of the
guideline range.” J.A. 199. Even assuming the above is true, Mr.
McCullough’s statements during the sentencing hearing are
attributable to Mr. McCullough himself, and not Ms. Jackson. Mr.
McCullough presented himself to the court as an AUSA, and appeared
as counsel of record for the Government at Sheppard’s sentencing
hearing. Further, he argued vigorously for the highest sentence
allowable in order “to protect the public as long as we can from a
8
man with his background, who does the types of things that he does
so regularly,” stating that Sheppard was “the violent enforcer of
a drug operation” who has “no conscience and no remorse.” Id. at
84-85. Despite the Government’s insistence to the contrary, we
believe that the fact that Mr. McCullough did not otherwise proffer
additional arguments at sentencing is irrelevant to whether or not
he acted as counsel on both sides of the matter in question. We
know of no instance where counsel were permitted to appear before
a court as counsel of record, argue on the record, and then
successfully argue that the words and arguments were not
attributable to them. We will not establish any such precedent
here.
Given that position, the facts of this case simply do not
conclusively show that Sheppard was not entitled to habeas relief
on his conflict of interest claims. Specifically, the issue of
whether this actual conflict of interest adversely affected the
representation Sheppard received is a factual question not
conclusively resolved by the record. Mr. McCullough, in his role
as defense counsel, was called upon to attack the very sentence he
earlier argued for. Sheppard contends that, as a result of this
conflict, Mr. McCullough possessed a “lack of zeal” in his
representation and argues that the untimely filing of the petition
for rehearing en banc is evidence thereof. Again, we specifically
make no finding regarding whether an actual conflict of interest
9
adversely affected the representation Sheppard received. We simply
conclude that the record at this point does not conclusively show
that Sheppard is not entitled to habeas relief. As such, we find
that an evidentiary hearing is warranted.
VACATED AND REMANDED
10