United States v. Kerry Smith , 771 F.3d 1045 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1375
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KERRY L. SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:07-cr-40038-jpg-1 — J. Phil Gilbert, Judge.
____________________
ON MOTION TO RECALL OPINION OF THE COURT
____________________
NOVEMBER 18, 2014
____________________
Before POSNER, RIPPLE and KANNE, Circuit Judges.
PER CURIAM. This matter is before us on the motion of
newly appointed counsel for appellant Kerry Smith, asking
that we recall the opinion in which we decided the merits of
this appeal. We deny the motion but give counsel thirty days
2 No. 13-1375
in which to file a petition for rehearing if she deems it advis-
able.
A.
On October 1, 2014, we issued an order granting Attor-
ney Beau Brindley’s motion to withdraw as appointed coun-
sel for Mr. Smith. Mr. Brindley explained that he was the
subject of a federal criminal investigation and wanted to
avoid any potential conflict of interest in this matter.
Mr. Brindley further explained that there was no conflict of
interest or potential conflict of interest during his representa-
tion of Mr. Smith because the appeal was fully briefed and
argued prior to July 2014, when the Government initially no-
tified him that he was a target of a federal investigation. (The
district court had made the same findings when we remand-
ed the matter to permit that court to look into the possibility
of a conflict of interest caused by Mr. Brindley’s situation.)
Mr. Brindley concluded, nevertheless, that it was best for
him to withdraw “to prevent any conflict of interest issue
from having an impact.” App. R.47 at 2.
On October 8, 2014, we appointed Heather Winslow to
represent Mr. Smith. See United States v. Shaaban, 514 F.3d
697, 698–99 (7th Cir. 2008) (Ripple, J., in chambers) (appoint-
ing counsel to consider filing petition for rehearing).
Ms. Winslow now asks that we recall our opinion, issued on
October 24, 2014, that decided this appeal. She seeks addi-
tional time to review the record on appeal and to determine
whether there are meritorious issues that Mr. Brindley did
not raise. If she finds such meritorious issues, she would
seek leave to supplement the appellate briefs. Ms. Winslow
No. 13-1375 3
suggests that, during the remand proceedings, the district
court failed to address the issue of whether Mr. Brindley in-
tentionally failed to pursue meritorious issues in the appeal
because he knew that he was under criminal investigation.
She notes that the conduct charged in the indictment dates
back to August 2009, and she represents that Mr. Smith has
related to her that he told Mr. Brindley of two potentially
meritorious issues that he wished to raise on appeal but
which were not addressed in the brief filed by Mr. Brindley.
According to the motion before us, “Mr. Smith believes that
Mr. Brindley may have declined to raise these issues in order
to curry favor with the government or the Court.” App. R.52
at 3.
B.
We cannot accept the suggestion that the district court
failed to address the issue of whether Mr. Brindley failed to
pursue issues because he knew there was a criminal investi-
gation pending. The court explicitly found that no potential
conflict existed until July of 2014. This finding is compatible
with Mr. Brindley’s representation in his motion to with-
draw that he was unaware of the criminal investigation until
on or about July 15, 2014. This information is, moreover,
consistent with the Government’s filings dated July 17, 2014,
in other appeals pending before this court, in which it has
represented that Mr. Brindley was recently notified he is a
target of a federal criminal investigation. 1
1 See, e.g., Agreed Motion for Limited Remand to Address Any Po-
tential Conflict of Interest, United States v. Matthews, No. 14-1002 (7th Cir.
4 No. 13-1375
The principles governing our decision are well-
settled. The Sixth Amendment right to counsel includes the
right to conflict-free counsel. Wood v. Georgia, 450 U.S. 261,
271 (1981); United States v. Hubbard, 22 F.3d 1410, 1418 (7th
Cir. 1994). Here, there does not appear to be even a possibil-
ity of a conflict of interest in light of the district court’s find-
ing that Mr. Brindley was unaware of the investigation until
many months after his role in the appeal was complete.
Moreover, if Ms. Winslow, after careful investigation,
were to find some other basis for alleging that Mr. Brindley
rendered ineffective assistance of counsel on appeal by fail-
ing to raise meritorious issues, 2 the appropriate vehicle to
raise such a contention is a motion for collateral relief under
28 U.S.C. § 2255. Failure to raise an ineffective assistance of
counsel motion claim on direct appeal does not bar the claim
from being brought in a later § 2255 proceeding. Massaro v.
United States, 538 U.S. 500, 509 (2003); Ballinger v. United
States, 379 F.3d 427, 429–30 (7th Cir. 2004). Moreover, pre-
senting the argument in a § 2255 motion would permit
Mr. Smith to attempt to develop a factual basis for the argu-
ment that a potential conflict of interest existed despite
Mr. Brindley’s assertions that he was unaware he was under
investigation when filing briefs and presenting oral argu-
ment on behalf of Mr. Smith. If the habeas court agrees that
Mr. Brindley failed to render reasonably effective assistance
and that Mr. Smith suffered prejudice, the appropriate rem-
July 17, 2014). Briefing in Mr. Smith’s appeal was complete on October
11, 2013, and oral argument was heard on February 19, 2014.
2 It is unclear from the motion whether Ms. Winslow is aware of the
nature of the two issues that Mr. Smith believes should have been raised
in his appeal.
No. 13-1375 5
edy would be to grant the motion and afford Mr. Smith a
new direct appeal in which he would have the opportunity
to advance the additional issues. Shaw v. Wilson, 721 F.3d
908, 910 (7th Cir. 2013) (citing Strickland v. Washington, 466
U.S. 668 (1984)). Counsel’s current assertions that additional
but unspecified meritorious issues may exist do not come
close to showing that Mr. Brindley’s performance was con-
stitutionally inadequate or that “there is a reasonable likeli-
hood that the outcome of the proceedings would have been
different.” United States v. Wallace, 276 F.3d 360, 366 (7th Cir.
2002).
C.
There remains the possibility that newly appointed coun-
sel may not have had sufficient time to determine whether a
different sort of contention—one suitable for consideration
in a petition for rehearing in this direct appeal—may exist.
Unlike where counsel has been involved in the appeal from
its inception, Ms. Winslow, upon receipt of our opinion, had
to study the trial record as well as the appellate proceedings
to make that determination. Indeed, she states in her motion
that she needs additional time to review the record on ap-
peal and to communicate with Mr. Smith, who is in the pro-
cess of being transported back to the United States Peniten-
tiary at Leavenworth. While a grant of additional time will
not address counsel’s concern about whether additional is-
sues should have been raised on appeal, such additional
time will permit counsel to familiarize herself with the case
and to determine whether there are any issues that could be
raised properly and effectively in a petition for rehearing.
6 No. 13-1375
Accordingly, the motion to recall the opinion is denied.
Counsel for Mr. Smith shall have thirty days from the date of
this opinion to file a petition for rehearing if she deems it
appropriate.
IT IS SO ORDERED