govinfo:USCOURTS-dcd-1_10-cr-00310-4

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
UNITED STATES OF AMERICA, 
 
v. 
 

ERIC SCURRY, 
 
 Defendant . 
 
 
 
 
MEMORANDUM OPINION 
Defendant Eric Scurry filed a motion under 28 U.S.C. § 2255 to vacate his sentence, 
arguing that his counsel provided ineffective assistance in the lead up to trial and throughout his 
plea negotiations with the government. Having held an evidentiary hearing on this motion, the 
Court holds that the ineffective assistance of counsel claim fails because Mr. Scurry cannot prove 
that he was prejudiced by his counsel’s actions. The motion will therefore be denied. 
I. BACKGROUND 
Because of the long history of this case, the background section proceeds by outlining the 
facts of the underlying case, the events surrounding Mr. Scurry’s plea agreement, and the 
subsequent proceedings thereafter. 
A. Original Investigation and Wiretaps 
In 2009, the FBI began investigating suspected narcotics distribution at an apartment 
complex in southeast Washington, D.C. United States v. Scurry (Scurry II), 992 F.3d 1060, 1062 
(D.C. Cir. 2021). Suspecting that Mr. Scurry was dealing crack cocaine, the FBI focused its 
investigation on him and obtained a wiretap on his cell phone after gathering evidence against him 
from cooperating witnesses, physical surveillance, and recorded conversations, among other 
things. Id. Evidence from Mr. Scurry’s wiretap led to several subsequent wiretaps —namely, on 

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the phones of Terrance Hudson, then Robert Savoy, then James Brown, and finally Jerome 
Johnson. Id. But the court orders authorizing the Hudson and Johnson wiretaps did not include 
the name of the high-level Justice Department official who approved the application, thus setting 
up the suppression issue at the center of these post-conviction proceedings. 
Mr. Scurry was arrested and charged in late 2010, as were most of his co- defendants. Id. 
The government alleged that the men conspired, from November 2006 to November 2010, to 
distribute and possess with intent to distribute five kilograms or more of cocaine and 280 grams 
or more of crack cocaine. Superseding Indictment at 2 , ECF No. 115. The government also 
charged Mr. Scurry with multiple counts of distributing crack cocaine, distributing crack cocaine 
within 1,000 feet of a school, and unlawfully using a communication facility to aid and abet drug 
distribution. Id. at 3–8. 
B. Pretrial Proceedings 
Mr. Scurry initially entered a not -guilty plea to all charges against him. As the case 
progressed, each defendant moved to suppress evidence from their own wiretaps, and several 
defendants (including Mr. Scurry) moved to join co- defendants’ motions to suppress. ECF Nos. 
59, 168. Specifically, Mr. Scurry joined the motions of Hudson, Johnson, and Brown, seeking to 
suppress evidence from these co -defendants’ wiretaps on the basis that they lacked the name of 
the high-level Justice Department official who a pproved the underlying applications. ECF No. 
168. This Court granted Mr. Scurry’s procedural joinder motion. ECF No. 185. But the Court 
denied the suppression motions. ECF No. 186. 
Throughout most of the pretrial proceedings, Mr. Scurry was represented by Christopher 
Davis, but on the eve of trial, Mary Davis, Mr. Davis’s spouse and law partner, stepped in as co-
counsel to represent Mr. Scurry while Mr. Davis attended to other court matters. Scurry II, 992 

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F.3d at 1063. When Ms. Davis suggested that she might be standing in for Mr. Davis during 
opening arguments, this Court advised her that “trial takes precedence,” and “[i]f [the other judge] 
doesn’t believe it, I’ll tell him myself.” Id. (quoting Tr. at 7–8, United States v. Savoy, No. 10-cr-
00310 (D.D.C. Sept. 7, 2012), ECF No. 347) . Despite this admonishment, on the day that Mr. 
Scurry’s trial was set to start, Ms. Davis appeared on behalf of her absent husband. Id. 
On the morning of trial, Mr. Scurry was still considering a plea offer with only Ms. Davis 
as counsel to advise him. Id. In the end, he pleaded guilty to two counts: (1) conspiracy to 
distribute and possess with intent to distribute 280 grams or more of c rack cocaine, and (2) 
conspiracy to launder money gained from the drug distribution scheme. Scurry Plea Agreement 
at 1 –2, ECF No. 231; see also Superseding Information as to Eric Scurry, ECF No. 227. As 
explained below, the quality of this representation became the basis for the ineffective assistance 
claim now before this Court. 
Mr. Scurry’s plea agreement included the right to appeal this Court’s order denying his 
own motion to suppress, explicitly stating that Mr. Scurry could withdraw his plea “[o]nly in the 
event of a reversal of that decision.” Id. at 9–10. His co-defendants likewise pleaded guilty, but 
unlike Mr. Scurry’s plea agreement, several of theirs expressly preserved a broader right to appeal 
the denial of each other’s suppression motions. See Johnson Plea Agreement at 9 –10, ECF No. 
213 (reserving the right to appeal an order denying one of Savoy’ s motions to suppress wiretap 
evidence); James Plea Agreement at 9–10, ECF No. 217 (same); Hudson Plea Agreement at 10, 
ECF No. 224 (same). 
On the same day that he signed the plea agreement, Mr. Scurry appeared in court and 
pleaded guilty alongside his co-defendants. The Court reviewed the charges with Mr. Scurry and 
the co-defendants. ECF No. 343 at 19–24. Each counsel then gave “a brief description of the 

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agreement” their client had signed, at the request of the Court. Id. at 24. Whereas several other 
counsel mentioned provisions retaining the right to appeal, Ms. Davis did not. Id. at 27–31. The 
Court accepted Mr. Scurry’s guilty plea upon receiving his assent. Id. at 31–33. On November 
30, 2012, Mr. Scurry was sentenced to twelve years of imprisonment, followed by fi ve years of 
supervised release—the sentence stipulated to in his Rule 11(c) plea offer . Judgment, ECF No. 
289; Scurry Plea Agreement at 2, ECF No. 231. 
C. Direct Appeal 
Following sentencing, Mr. Scurry appealed the denial of his suppression motion, which 
was consolidated with his co-defendants’ appeals. See generally United States v. Scurry (Scurry 
I), No. 12-3104 (D.C. Cir). 
Ms. Davis initially represented Mr. Scurry, but Mr. Scurry asked that she be removed as 
counsel based on a conflict of interest, alleging that she had coerced him into pleading guilty and 
that Mr. Davis, her husband, had provided ineffective assistance . Motion at 4, Scurry I, No. 12-
3104 (D.C. Cir. March 27, 2013), ECF No. 1427990. Several days later, Ms. Davis moved to 
withdraw as Mr. Scurry’s counsel. Motion, Scurry I, No. 12-3104 (D.C. Cir. Mar. 29, 2013), ECF 
No. 1428070. The D.C. Circuit granted these motions and appointed Dennis Hart as new appellate 
counsel. Per Curiam Order, Scurry I , No. 12-3104 (D.C. Cir. July 25, 2013), ECF No. 1448381; 
Clerk’s Order, Scurry I, No. 12-3104 (D.C. Cir. August 13, 2013), ECF No. 1451304. Mr. Hart 
did not raise the ineffective assistance of counsel claim that Mr. Scurry now raises in the present 
§ 2255 motion. 
The Circuit ultimately reversed this Court’s denial of the suppression motion as to the 
wiretaps of Hudson’s and Johnson’s phones. United States v. Scurry (Scurry I), 821 F.3d 1, 5 
(D.C. Cir. 2016) . T he federal wiretap statute, Title III of the Omnibus Crime Control and Safe 

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Streets Act of 1968, requires that an order approving a wiretap include, among other things, “the 
identity of the high-level Justice Department official who approved the application,” and since the 
orders authorizing the Hudson and Johnson wiretaps did not include the name of that official, the 
D.C. Circuit held that they were invalid on their face. Id. at 7–12 (citing 18 U.S.C. § 2518(1)(a)). 
This meant that these wiretaps, along with whatever evidence was derived from them, should have 
been suppressed. Id. at 13–14. The Circuit affirmed the rest of this Court’s ruling, including the 
denial of Mr. Scurry’s own suppression motion. Id. at 16, 18. 
D. First § 2255 Petition 
On remand, the government concluded that the evidence from the Hudson wiretap had led 
to the Savoy wiretap, which had led to the Brown and Johnson wiretaps. Scurry II, 992 F.3d at 
1064. Because these defendants retained the right to withdraw their plea agreements if this 
evidence was suppressed, the government moved to dismiss the charges against Hudson, Savoy, 
Brown, and Johnson. Id. This left only Mr. Scurry, who would not benefit from those suppression 
decisions under the terms of his plea agreement. Id. 
Nevertheless, Mr. Scurry filed a pro se motion to dismiss the indictment. Id. Ms. Davis, 
who had been monitoring the electronic docket, notice d Mr. Scurry’s filing and on her own 
initiative reached out to Mr. Scurry to offer her assistance with his motion. Id. Even though Ms. 
Davis had withdrawn from representing Mr. Scurry on his direct appeal due to a conflict of interest, 
which had involved allegations that she had coerced him into pleading guilty, she failed to obtain 
a conflict waiver from Mr. Scurry for this representation. Id. Ms. Davis also failed to advise Mr. 
Scurry “that the common and likely only legally viable way to challenge his conviction and 
sentence at this procedural stage would be to press an ineffective assistance of counsel claim 
against herself and/or her husband.” Id. 

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Scurry filed a pro se motion asking this Court to re-appoint Mr. and Ms. Davis to represent 
him because they had “indicated that they may supplement [his] motion,” Motion to Appoint 
Counsel at 1, ECF No. 384, and this Court granted his motion, appointing the Davises as counsel 
under the Criminal Justice Act, 18 U.S.C. § 3006A, 12/29/2016 Order, ECF No. 385. 
Several months later, on March 3, 2017, they filed a § 2255 motion to vacate Mr. Scurry’s 
plea, arguing that he had not voluntarily or intelligently agreed to it since he was induced to plead 
guilty by evidence that was subsequently suppressed. ECF No. 387 at 4 –8. Specifically, this 
motion argued that the plea was not knowing and voluntary because the 280 grams of crack that 
he admitted to conspiring to distribute as part of his plea was the amount for which the entire 
conspiracy was responsible, and that amount was determined from the wiretaps of his co-
defendants’ cell phones. Id. at 7–8. This Court denied the motion, along with Mr. Scurry’s pro se 
motion to dismiss the indictment, partly on the grounds that his plea was valid because he had 
understood the charges against him and “the mere fact that evidence was suppressed as to others 
does not render his plea involuntary.” United States v. Scurry, 318 F. Supp. 3d 365, 369 (D.D.C. 
2018). 
Scurry filed a timely pro se notice of appeal as to his § 2255 motion, and the Circuit granted 
his motion for a certificate of appealability, referring the case to the Office of the Federal Public 
Defender. Scurry II, 992 F.3d at 1065. The Circuit subsequently appointed Ms. Davis as appellate 
counsel under the Criminal Justice Act. Id. 
On appeal, Ms. Davis again pressed the argument that Mr. Scurry’s plea was induced by 
illegally obtained evidence, meaning his agreement was therefore not voluntary. Id. The Circuit 
ultimately held that “by pleading guilty, [Mr.] Scurry specifically waived any challenge to the 
government’s evidence other than his expressly reserved challenge to the district court’s denial of 

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his own motion to suppress evidence from the wiretap on his telephone.” Scurry II, 992 F.3d at 
1066. As Supreme Court and Circuit precedent squarely held, “wrongly judging the admissibility 
of evidence does not render a plea involuntary as long as counsel provided reasonably competent 
advice in making that decision.” Id. at 1067 (citing McMann v. Richardson, 397 U.S. 759, 769–
70 (1970)). 
But the Circuit proceeded to address an argument that Mr. Scurry did not raise—namely, 
the ineffectiveness of Mr. and Ms. Davises’ assistance during the plea negotiations. Id. at 1067–
68. As the Circuit explained, a central feature of the caselaw governing the voluntariness of plea 
agreements “is the foundational presumption that the decision to plead guilty rested on competent 
legal advice from counsel. ” Id. at 1067. In other words, “ while reasonable but mistaken 
evidentiary judgments themselves do not render a plea involuntary, ineffective assistance of 
counsel in evaluating the strength of the government ’s case, the risks of going to trial, or the 
consequences of pleading guilty can invalidate a plea.” Id. (citing McMann, 397 U.S. at 770–71). 
And because Mr. and Ms. Davises’ potential ineffectiveness was likely Mr. Scurry’s only viable 
basis for post -conviction relief, Ms. Davis faced a conflict of interest throughout her post -
conviction representation of Mr. S curry that she had failed to properly resolve. Id. at 1067–68. 
This failure was particularly stark since Ms. Davis stated at oral argument that she did not 
remember that this conflict of interest existed, despite Mr. Scurry having claimed at the outset of 
his direct appeal that she had coerced him into agreeing to the plea. Id. at 1068. Ultimately, the 
Circuit concluded that “ by affirmatively intervening in [Mr.] Scurry’s collateral proceedings 
despite the conflict and not pressing the ineffective assistance claim, [Ms.] Davis seemingly 
‘ma[d]e a choice advancing [her] own interest at the expense of [her] client ’s.’” Id. at 1069 
(quoting United States v. Taylor, 139 F.3d 924, 930 (D.C. Cir. 1998)). 

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While the Circuit did not decide the merits of whether Mr. Scurry received constitutionally 
ineffective assistance, it did observe that Ms. Davis made several statements at oral argument that 
“were not inconsistent with that claim.” Id. at 1068. In particular, the Circuit flagged that even 
though she appeared “as counsel for the first day of trial, she admitted that she had not reviewed 
important evidence in the case” and yet nonetheless “represented [Mr.] Scurry regarding the plea.” 
Id. And in the end, this plea did not preserve Mr. Scurry’s “ability to challenge ” this Court’s 
“failure to suppress his co-defendants’ wiretap evidence or condition his plea on the result of any 
challenge to their suppression orders, as some of his former co-defendants’ plea agreements did.” 
Id. 
“Given all of those facts,” the Circuit held that “the record incontrovertibly establishe [d] 
that the conflict of interest impaired” Ms. Davis’s representation of Mr. Scurry throughout the 
post-conviction proceedings. Id. at 1068–69. And because appointing counsel who labors under 
an apparent conflict of interest “constitutes an abuse of discretion” under the Criminal Justice Act, 
the Circuit concluded that Mr. Scurry was owed a fresh attempt to file a § 2255 petition with 
unconflicted counsel. Id. at 1069–70 (citing 18 U.S.C. § 3006A(a)(2)(B)). 
Following the Circuit’s decision, the Office of Professional Responsibility within the 
Department of Justice referred this matter to the D.C. Bar’s Disciplinary Counsel, which opened 
an investigation into Ms. Davis’s post-conviction representation of Mr. Scurry. See Petition for 
Negotiated Discipline, Defense Exhibit (DE) 20. In the negotiated disposition of this investigation, 
she and the Disciplinary Counsel stipulated to the following misconduct: Ms. Davis had violated 
Rule 1.7(b)(4) of the D.C. Rules of Professional Conduct by representing Mr. Scurry, without his 
informed consent , “in his § 2255 proceeding and subsequent appeal notwithstanding that her 
professional judgment was or reasonably could have been adversely affected by her own interests”; 

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further, she had also violated Rule 8.4(d) of the D.C. Rules of Professional Conduct by engaging 
“in conduct that seriously interfered with the administration of justice. ” Id. at 8–9. The agreed-
upon sanction was a 30-day suspension of her Bar license with probationary terms including CLE 
requirements. Id. at 9. Ms. Davis was also removed from the list of attorneys eligible for 
appointment under the Criminal Justice Act within the D.C. Circuit. Rough Tr. of 1/15/2027 
Evidentiary Hr’g at 145:24–146:08. 
E. Second § 2255 Petition 
After this case again returned from the Circuit, new counsel was appointed to represent Mr. 
Scurry. ECF No. 423. In February 2022, with the assistance of his new attorney, Mr. Scurry filed 
his second § 2255 petition, which is now before the Court. See Scurry’s Second § 2255 Mot., ECF 
No. 424. At the same time, Mr. Scurry requested that the Court hold a hearing on his motion. Id. 
This motion became ripe in April 2023. See Gov’t Opp’n, ECF No. 436; Scurry’s Reply, ECF No. 
442. In March 2024, Mr. Scurry renewed his request for an evidentiary hearing to help resolve the 
§ 2255 petition. ECF No. 446. 
In August 2025, the Court granted the motion, instructing the parties that the evidentiary 
hearing would focus on two inquiries. Order, ECF No. 449. First, the Court observed that it 
“need[ed] more information on exactly what evidence regarding the conspiracy charge specifically 
existed against Mr. Scurry on his codefendants’ wiretaps, versus on his own wiretap” to resolve 
whether the government would have been able to bring a conspiracy case against Mr. Scurry had 
he successfully joined his co- defendants’ motions to suppress on appeal. Id. at 2 (emphasis 
omitted). Second, the Court indicated that it “ also need [ed] more information regarding Mr. 
Scurry’s sentencing exposure on his non- conspiracy charges” since the government opposed his 
§ 2255 petition on the basis “that this sentencing exposure, even without the conspiracy charge, 

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would have induced Mr. Scurry to plead in any event.” Id. at 3. The evidentiary hearing was held 
on January 15–16, 2026. 
II. LEGAL STANDARDS 
A. Relief Under 28 U.S.C. § 2255 
A court may vacate, set aside, or correct a sentence if the sentence was imposed “in 
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The constitutional 
standard for the validity of the plea agreement turns on “whether the plea represent[ed] a voluntary 
and intelligent choice among the alternative courses of action open to the defendant.” Hill v. 
Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). “A 
plea is not voluntary or intelligent, and therefore unconstitutional, if the advice given by defense 
counsel on which the defendant relied in entering the plea falls below the level of reasonable 
competence” required by the Sixth Amendment . In re Sealed Case , 670 F.3d 1296, 1303 (D.C. 
Cir. 2011) (cleaned up). Consequently, “a defendant who pleads guilty upon the advice of counsel 
‘may only attack the voluntary and intelligent character of the guilty plea by showing that the 
advice he received from counsel’ was not ‘within the range of competence demanded of attorneys 
in criminal cases.’” United States v. Rubio, 677 F.3d 1257, 1261–62 (D.C. Cir. 2012) (quoting 
Hill, 474 U.S. at 56). 
B. Strickland Standard 
To prevail on a claim of ineffective assistance of counsel, a petitioner “must prove both 
incompetence and prejudice.” Kimmelman v. Morrison , 477 U.S. 365, 381 (1986). This means 
that he must demonstrate that (1) “counsel’s representation fell below an objective standard of 
reasonableness . . . under prevailing professional norms” and (2) “there is a reasonable probability 
that, but for counsel ’s unprofessional errors, the result of the proceeding would have been 
different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). 

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If either prong fails, the petitioner cannot make out an ineffectiveness claim . Id. at 700. 
The Court’s evaluation of counsel’s actions “must be highly deferential,” and is assessed under 
the circumstances present at the time of representation without the benefit of hindsight. Id. at 689. 
As for the prejudice prong, a “reasonable probability” is one that is “sufficient to undermine 
confidence in the outcome.” Id. at 694. This means that the petitioner must show there is “a 
substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 
170, 189 (2011) (cleaned up). In the plea context, a petitioner “must show that there is a reasonable 
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted 
on going to trial.” Hill, 474 U.S. at 59; see also Missouri v. Frye , 566 U.S. 134, 148 (2012) 
(affirming that the Hill standard continues to govern in “cases where a defendant complains that 
ineffective assistance led him to accept a plea offer as opposed to proceeding to trial”). 
While the petitioner need not show that counsel’s deficient conduct “more likely than not” 
caused him to plead guilty rather than proceed to trial, he must establish that it was “reasonably 
likely” that he would have gone to trial but for counsel’s errors. Strickland, 466 U.S. at 693–96. 
Such “predictions of the outcome at a possible trial . . . should be made objectively, without regard 
for the ‘idiosyncrasies of the particular decisionmaker.’” Hill, 474 U.S. at 59 –60 (quoting 
Strickland, 466 U.S. at 695); see also Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (observing 
that “the prejudice inquiry” turns on whether “a rational defendant [would] insist on going to 
trial”). Put differently, while a petitioner need not show that he would have prevailed had he gone 
to trial, he must prove that choosing to do so would have been a “rational decision” based on “a 
realistic assessment” of the case. United States v. Hanson, 339 F.3d 983, 991 (D.C. Cir. 2003). 
III. DISCUSSION 
Mr. Scurry maintains that he would have insisted on proceeding to trial had he known that 
the evidence on his co -defendants’ wiretaps could not be used against him. The g overnment, 

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however, argues that a rational decisionmaker in his position would not have refused his plea offer 
considering the non-suppressible evidence against him and his sentencing exposure if convicted. 
The Court agrees that, even assuming ineffectiveness, the prejudice requirement is not met here. 
While Mr. Scurry ultimately pleaded guilty to conspiracy to distribute and possess with 
intent to distribute 280 grams or more of cocaine base in violation of 18 U.S.C. §§ 841, 846, he 
had been charged with the lesser-included offense of conspiracy to distribute 28 grams or more of 
crack cocaine, along with 19 additional counts that were charged against him individually. 
Superseding Indictment at 2–8, ECF No. 115. These included seven counts of unlawful 
distribution of a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & 
(b)(1)(C) (Counts 2, 4, 6, 8, 11, 13, and 16); seven counts of unlawful distribution of cocaine base 
within 1,000 feet of a school in violation of 21 U.S.C. § 860(a) (Counts 3, 5, 7, 9, 12, 14, and 17); 
and five counts of unlawfully using a communication facility in violation of 21 U.S.C. § 843(b) 
(Counts 10, 15, 18, 19, and 20). 
As a result of his plea, the additional charges against him were dismissed. ECF No. 231. 
But they are relevant for present purposes since, i n assessing a defendant’s sentencing exposure 
had he proceeded to trial, a court must “consider not only the count[s] to which the defendant pled 
guilty, but also the other counts he would have faced.” In re Sealed Case , 488 F.3d 1011, 1017 
(D.C. Cir. 2007) (citing United States v. McCoy, 215 F.3d 102, 106–07 (D.C. Cir. 2000)). 
Whether Mr. Scurry can prove prejudice turns on a reasonable person’s estimation of the 
evidence against him (excluding the evidence on his co- defendants’ wiretaps) and the sentencing 
exposure he faced had he been convicted. Given the evidence against Mr. Scurry , there is 
vanishingly little chance that he would have been acquitted on all counts. At the bare minimum, 
a reasonable person in his position would have anticipated being convicted on at least one 

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substantive count of distribution, which would have carried a Guidelines range of 262 months to 
327 months. Mr. Scurry’s Rule 11(c) plea agreement, which stipulated to a sentence of only 144 
months of imprisonment, therefore offered him considerably favorable terms despite not including 
the right to withdraw his appeal should his co- defendants’ wiretaps be suppressed. Put simply, 
Mr. Scurry cannot make out the prejudice prong of his ineffectiveness claim because his sentencing 
exposure as to even a single substantive count of distributing cocaine base would have induced a 
rational decisionmaker to accept the plea that he ultimately entered.1 
A. Evidence 
Simply put, the evidence against Mr. Scurry as to the individual charges of distribution was 
overwhelming. In total, the government collected evidence across at least 10 controlled buys. 
Government Exhibits (GEs) 1–2. Recall that this evidence ultimately led to the wiretap on Mr. 
Scurry’s phone and that the Circuit ultimately upheld this Court’s decision to deny suppression of 
that particular wiretap. Scurry I, 821 F.3d at 16–18. The evidence collected from the controlled 
buys included multiple videos, surveillance photos, FBI -302 and FBI-1023 forms 
(contemporaneous reports prepared by special agents memorializing their actions and those of 
cooperating witnesses during the controlled buys), as well as DEA-7 forms (lab reports that verify 
the type and quantity of drugs seized). GEs 3–20. 
 
1 In his closing argument s at the evidentiary hearing, Mr. Scurry’s counsel argued that no showing of prejudice is 
necessary when a defendant can show that his attorney labored under a conflict of interest that affected the adequacy 
of the representation—citing United States v. Gray-Burriss, 791 F.3d 50, 62 (D.C. Cir. 2015), and Cuyler v. Sullivan, 
446 U.S. 335, 349 (1980), for support. Though this may be true were the Court considering the adequacy of Ms. 
Davis’s representation during the first round of post-conviction proceedings, this argument fails for present purposes 
since Mr. Scurry has not argued that any conflict of interest existed when Ms. Davis advised him to enter into the plea 
agreement. Mr. Scurry cites no authority suggesting that Ms. Davis’s ill-advised representation during the post -
conviction proceedings alleviate s his burden to prove that he was prejudiced by her ineffectiveness during the plea 
negotiations. Of course, Mr. Scurry could have been prejudiced by Ms. Davis’s post-conviction representation since 
she predictably did not raise her own ineffectiveness in his first § 2255 petition. But the Circuit remedied the conflict 
of interest, as best it could, by remanding the case for appointment of new counsel. 

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Consider, for example, the evidence stemming from the controlled buy on December 10, 
2009. At the evidentiary hearing, the government played a dash camera video recorded on this 
date, which shows Mr. Scurry selling what appears to be narcotics to someone who appears to be 
a cooperator. GE 24 at 16:58–19:28. The FBI-1023 and DEA-7 forms for the December 10, 2009 
sale corroborate that the buyer was in fact a cooperator and the substance sold was in fact crack 
cocaine. GEs 8, 17. Given this evidence, there is little chance that Mr. Scurry would have avoided 
conviction as to this sale. 
The remaining nine sales were supported by roughly the same evidence, with perhaps one 
important exception. At the evidentiary hearing, Mr. Scurry’s counsel raised the issue of whether 
one of the government’s cooperating witnesses misidentified Mr. Scurry during the controlled buy 
on January 6, 2010. In a Brady disclosure sent to Mr. Davis on August 9, 2012, the government 
relayed that the cooperator who had initially identified Mr. Scurry as the person who sold the crack 
cocaine may have stolen $50 of government funds and later stated that Mr. Scurry had directed the 
cooperator to another man to complete the sale. DE 7. The cooperator indicated that Mr. Scurry 
“did not want to directly deal . . . during the hand-to-hand transaction.” Id. The video of this sale, 
which was recorded on a camera attached to the cooperator’s clothing, is not inconsistent with this 
latter version of events. DE 10. In th is video, Mr. Scurry opens the door for the cooperator and 
appears to gesture towards another man before heading up a flight of stairs, at which point the 
cooperator pulls up a zipper, thereby blocking the view of the camera. Id. at 7:50–8:04. 
It is true that the Brady disclosure corroborated by the video is potentially exculpatory 
evidence as to the January 6, 2010 sale, and it is true the cooperator’s conflicting version of events 
raises potential credibility concerns. But even if Mr. Scurry was acquitted on one or more of the 
substantive counts of distribution, it is not reasonably likely that he would have been acquitted as 

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to all of them. Put another way, even excluding the evidence gathered from his co- defendants’ 
wiretaps, it is exceedingly likely that Mr. Scurry would have been convicted on several of the non-
conspiracy counts. And as explained in the next section, Mr. Scurry’s sentencing exposure even 
as to one single substantive count would have induced a rational decisionmaker in his position to 
accept the plea agreement that he entered into. 
B. Sentencing 
Mr. Scurry faced steep consequence had he been convicted of even a single substantive 
count of distributing a measurable amount of crack cocaine . While the typical statutory penalty 
range for this crime is zero to 20 years of imprisonment, see 21 U.S.C. § 841(c), Mr. Scurry faced 
an enhanced statutory maximum of 30 years due to his prior felony drug convictions , see id. 
§ 841(b)(1)(C); see also ECF No. 65 (detailing Mr. Scurry’s prior convictions, as required by 21 
U.S.C. § 851). And his Guidelines range recommended a sentence much closer to the maximum 
than the minimum. 
To begin, he had a criminal history category of VI—the highest category— which qualified 
him as a so -called “career offender” under § 4B1.1 of the 2012 S entencing Guidelines Manual. 
Because § 4B1.1 would have applied and the applicable statutory maximum was 30 years , his 
offense level for a single substantive count of distribution would have been 34. In 2012, a criminal 
history category of VI plus an offense level of 34 yielded a Guidelines range of 262 to 327 months 
of imprisonment.
2 U.S. SENT’G GUIDELINES MANUAL, SENTENCING TABLE, CH. 5 PT. A (U.S. 
 
2 This range reflects the fact that, had Mr. Scurry gone to trial, he would have lost the benefit of the offense level 
reduction for acceptance of responsibility. In the hypothetical where Mr. Scurry pleaded guilty to the individual 
distribution charges alone, this adjustment would have likely lowered his range from 262 to 327 months down to 210 
to 262 months. Note that the negotiated sentence of 144 months was still 66 months (5.5 years) shorter than the bottom 
of the latter Guidelines range. See United States v. Smoot , 918 F.3d 163, 168 –69 (D.C. Cir. 2019) (holding that 
prejudice was partially mitigated by the fact that the defendant had earned a three-point reduction to his offense level 
by pleading guilty, lowering his Guideline range from 100 to 125 months to 77 to 96 months). 

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SENT’G COMM’N 2012). Even the lower end of this range stands in stark contrast to the 144-month 
sentence stipulated to in Mr. Scurry’s Rule 11(c) plea agreement. 
Recognizing this reality, Mr. Scurry points out that, in 2012, the United States Sentencing 
Commission reported that only 42.9% of defendants in drug trafficking cases nationwide received 
within-Guidelines-range sentences , and less than 1% of such defendants received above -
Guidelines sentences— meaning that about 56% received below -Guidelines sentences. DE 25. 3 
But while the Court does not disagree that Mr. Scurry may well have received a below-Guidelines 
sentence had he gone to trial , this possibility does not, without more, establish prejudice . E ven 
assuming a below-Guidelines sentence—on top of the assumption that Mr. Scurry would not have 
been convicted of the conspiracy charges —it strikes the Court as exceedingly unlikely that Mr. 
Scurry would have received a sentence that was nearly 10 years shorter than the bottom of the 
Guidelines range. Yet that is what he received by pleading guilty. Given the overwhelming 
likelihood that he would have been convicted on at least one of the substantive counts of 
distribution had he gone to trial, any rational decisionmaker in his position would have elected to 
plead guilty in exchange for a stipulated 144 months of imprisonment, particularly because of the 
anchoring effect that his Guidelines range would have had at sentencing. 
* * * 
Put simply, the considerable evidence against Mr. Scurry as to the individual counts of 
distribution alone, combined with the steep sentencing range recommended by the Guidelines had 
he gone to trial, leads the Court to conclude that the prejudice prong of his Strickland claim is not 
met. See, e.g., United States v. Smoot , 918 F.3d 163, 168–69 (D.C. Cir. 2019) ( holding that the 
 
3 Of the 135 recorded federal defendants in drug trafficking cases sentenced in D.C. in 2012, 29.6% received within -
Guidelines sentences and 1.5% received above-Guidelines sentences. DE 25. 

17 
defendant “ha[d] failed to show a reasonable probability that, had counsel been better prepared, he 
would not have pled guilty and would have insisted on going to trial,” “[g]iven the overwhelming 
evidence against him and the ‘somewhat favorable’ terms of the plea agreement” (quoting United 
States v. Hunt, 560 F. App’x 2, 3–4 (D.C. Cir. 2014) ); United States v. Farley, 72 F.3d 158, 165 
(D.C. Cir. 1995) (observing “the government had a relatively straightforward and compelling case” 
and the defendant would have faced a “stiff sentence” under the Guidelines and a mandatory 
minimum sentence had he been convicted after trial) ; United States v. Pollard, 602 F. Supp. 2d 
165, 170–71 (D.D.C. 2009) (holding that the strength of the evidence and the Guidelines range of 
at least 262 to 327 months had the defendant lost at trial, compared to the 144-month sentence she 
received under the plea agreement, “weigh against any reasonable probability that but for 
[counsel’s] alleged errors, [the defendant] would not have accepted a plea and proceeded to trial”); 
United States v. Ayers , 938 F. Supp. 2d 108, 115 (D.D.C. 2013) (pointing out that “ the plea 
agreement benefited defendant by ultimately resulting in a sentence lower than the sentence to 
which defendant would otherwise have been exposed” ). For this reason, Mr. Scurry’s § 2255 
motion will be denied. 
IV. CERTIFICATE OF APPEALABILITY 
A petitioner must obtain a certificate of appealability before pursuing any appeal from a 
final order in a § 2255 proceeding. See 28 U.S.C. § 2255(c)(1)(B). When the denial of a § 2255 
motion is based on the merits of the claims in the motion, a district court should issue a certificate 
of appealability only when the appeal presents a “substantial showing of the denial of a 
constitutional right.” 28 U.S.C. § 2255(c)(2). The petitioner must show that reasonable jurists 
could debate whether the issues should have been resolved differently or are “adequate to deserve 
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quotation 
omitted). 

While the Court stands by its analysis as to the prejudice prong of Mr. Scurry's Strickland
claim, this decision does not preclude any ground for reasonable disagreement. Because this 
Court's bottom line boils down to a judgment call as to whether Mr. Scurry would have received 
a sentence substantially below the Guidelines range by the undersign ed Judge had he been 
convicted of even a single substantive count of distribution at trial, the Court finds that a certificate 
of appealability is warranted and will issue. 
V. CONCLUSION
For the reasons above, Mr. Scurry's motion to vacate his sentence will be DENIED.
Date: __ ,,..,,..._"1.__.._----L-fL.., _"Z._•_-:i.-'�-
Royce C. Lamberth 
United States District Judge 
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