UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).




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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


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background,   who      does   the   types   of   things    that    he    does    so

regularly.”   

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.

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conviction and sentence on direct appeal on January 20, 1998.    See

United States v. Love, 

(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

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     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.

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, 

, 686 (1984).


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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, 

, 401 (4th Cir. 2002)

(citing Cuyler v. Sullivan, 

, 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, 

, 401 (citing

(1980)).    And, an adverse effect cannot

be presumed solely from the existence of a conflict of interest.

See Mickens v. Taylor, 

, 170-75 (2002); 

.

     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, 

, 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


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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.”                     

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


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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




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