### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1375

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

K ERRY L. S MITH

, 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

.

____________________

O N M OTION TO R ECALL O PINION OF THE C OURT

____________________

N OVEMBER 18, 2014

____________________

Before P OSNER

, R IPPLE and K ANNE

, Circuit Judges

.

P ER C URIAM

. 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 days2 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. WinslowNo. 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 possibility of

a conflict of interest in light of the district court’s finding 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