Plunk v. Hobbs, 12–1309.

• Decision Date: 03 July 2013
• Docket Number: No. 12–1309.,12–1309.
• Parties: Terry Gale PLUNK, Petitioner–Appellant v. Ray HOBBS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

719 F.3d 977

Terry Gale PLUNK, Petitioner–Appellant

v.Ray HOBBS, Respondent–Appellee.

No. 12–1309.

United States Court of Appeals,

Eighth Circuit.

Submitted: Jan. 16, 2013.

Filed: July 3, 2013.

Josh Lee, AFPD, argued, Julie (Pitt) Vandiver, AFPD, on the brief, Little Rock, AR, for Appellant.

Christian Harris, AAG, argued, Lauren Elizabeth Heil, AAG, on the brief, Little Rock, AR, for Appellee.

Before BYE, MELLOY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Terry Gale Plunk, an Arkansas state inmate, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2007 state-court convictions and resulting 72–year sentence for several felony offenses, including two counts of possession with intent to distribute methamphetamine. Plunk's petition rests on allegations that his state trial attorney, Phillip Moon, rendered ineffective assistance of counsel. Plunk argues that Moon rendered ineffective assistance by, among other things, laboring under an actual conflict of interest caused by his dual representation of Plunk and Plunk's girlfriend, Deborah Devries. The magistrate judge recommended denial of Plunk's habeas petition. The district court adopted the magistrate judge's report in its entirety, dismissed Plunk's petition with prejudice, and granted a certificate of appealability. Plunk appealed. We reverse and remand for an evidentiary hearing on whether Plunk waived the conflict of interest presented by Moon's dual representation of Plunk and Devries.

I. Background

Law enforcement officers received reports that Plunk was in possession of a substantial amount of methamphetamine, so officers began surveillance of Plunk's Arkansas residence. One evening in April 2006, officers followed Plunk as he drove away from the residence. After a dangerous, high-speed chase across state lines, officers arrested Plunk in Branson, Missouri. Early the next morning, officers executed a search warrant at Plunk's residence. Police seized firearms, electronic scales, a scanner, empty plastic storage bags, drug paraphernalia, and ledger sheets. Officers also arrested Devries and discovered three grams of methamphetamine in her purse. Missouri officers searched Plunk's impounded truck and discovered approximately 579 grams of methamphetamine.

Based on the chase and the discovery of the drugs and other items, authorities charged Plunk in Boone County Circuit Court Case No. CR 2006–129–3 (“ Plunk 1 ”) with the following offenses: (1) possession of methamphetamine with intent to deliver; (2) simultaneous possession of drugs and firearms; (3) being a felon in possession of a firearm; (4) fleeing in a vehicle; (5) three counts of criminal mischief (damage to police vehicles); (6) possession of drug paraphernalia; (7) aggravated assault; (8) possession of marijuana; and (9) being subject to a sentencing enhancement due to a prior drug-related conviction. While still detained in Missouri, Plunk retained Moon to represent him. Plunk was later extradited to Arkansas, and Moon negotiated his release on a $15,000 bond.

Devries was charged with (1) possession of methamphetamine with intent to distribute; (2) simultaneous possession of drugs and firearms; (3) hindering apprehension or prosecution; (4) possession of drug paraphernalia; and (5) possession of a narcotic drug. Devries eventually posted bond and was released from custody. She was represented by a public defender until Plunk arranged for Moon to enter an appearance on her behalf. Moon thereafter defended both Plunk and Devries.

In August 2006, while out on bond, police arrested Plunk during his attempt to deliver methamphetamine to an undercover police officer. Officers discovered 34.4 grams of methamphetamine in Plunk's socks. In Plunk's car they discovered 338.9 grams of methamphetamine, a glass pipe, digital scales, and plastic baggies. Plunk was subsequently charged in Boone County Circuit Court Case No. CR 2006–213–3 (“ Plunk 2 ”) with the following: (1) criminal attempt to commit capital murder; (2) possession of methamphetamine (a total of 373.3 grams) with intent to deliver; (3) attempt to deliver methamphetamine; (4) possession of drug paraphernalia; and (5) being subject to sentencing enhancement due to prior convictions.

Thereafter, police discovered that Devries attempted to smuggle Xanax and a cell phone to Plunk while he was incarcerated. Devries was arrested and charged with (1) furnishing prohibited articles and (2) unlawful use of a communication device. The charges were both Class Y felonies, each of which carried a possible life sentence.

Moon and the prosecutor negotiated an agreement in which the state would offer a “package” plea deal to Plunk and Devries in which Devries would get ten years' probation in exchange for Plunk serving a 99–year sentence pursuant to plea of guilty to all of the Plunk 1 and Plunk 2 offenses. The state's offer of probation for Devries was entirely contingent on Plunk's acceptance of the state's offer. Moon presented the plea deal to Plunk, but Plunk rejected it because he refused to plead guilty to attempted capital murder. Devries eventually pleaded guilty to her charges, and the court sentenced her to 120 days' imprisonment and ten years of probation.

Prosecutors first brought to trial the Plunk 2 charges arising from the events of August 2006. Moon knew that Plunk suffered from lifelong mental impairment exacerbated by a traumatic brain injury. Moon feared that Plunk's mental condition might be deteriorating, so he successfully moved the court for a competency evaluation. That evaluation found, among other things, that Plunk had the capacity to appreciate the criminality of his conduct and the capacity to conform his conduct to the law. Moon accepted the findings of the competency evaluation and did not further investigate or present evidence of Plunk's mental impairment. At the close of the State's case, Moon moved for a directed verdict on all charges. The state trial court granted a directed verdict on the charge of attempted delivery of a controlled substance, but it denied the motion on all other charges. The jury convicted Plunk on the two remaining charges—possession of methamphetamine with intent to deliver and possession of drug paraphernalia. But the jury acquitted Plunk on attempted capital murder, the most serious charge. At that point, Moon explored the prospects for a plea deal with the prosecutor. The prosecutor's initial plea offer was for 90 years' imprisonment. Moon negotiated this down to 72 years, resolving all remaining charges from both cases— Plunk 2 and Plunk 1. Moon and Plunk did not discuss Plunk's prospects for parole eligibility under the deal, but Plunk pleaded guilty to the remaining Plunk 1 charges. The state trial court accepted the jury's guilty verdict on the Plunk 2 charges and Plunk's pleas on the Plunk 1 charges. The court adjudged him guilty and pronounced sentences in accordance with the plea agreement.

In the plea agreement, Plunk waived his right to pursue a direct appeal in state court. Nevertheless, Plunk petitioned the district court for a writ of habeas corpus, arguing that Moon rendered ineffective assistance of counsel. The magistrate judge recommended denial of Plunk's petition. Plunk v. Hobbs, No. 5:08CV00203 SWW–JWC, 2011 WL 6963092 (E.D.Ark. Sept. 20, 2011) (unpublished). The district court adopted the report in its entirety, dismissed Plunk's petition with prejudice, and granted a certificate of appealability. Plunk v. Hobbs, No. 5:08CV00203 SWW–JWC, 2012 WL 37369 (E.D.Ark. Jan. 9, 2012) (unpublished). Plunk asks this court to reverse the decision of the district court and grant the writ of habeas corpus.

II. Discussion

On appeal, Plunk argues that Moon rendered ineffective assistance by (1) failing to investigate and present evidence of his mental impairment; (2) laboring under an actual conflict of interest that adversely affected his representation through his attempt to negotiate the “package” plea deal; (3) failing to advise him regarding his parole eligibility under the plea deal ultimately reached; and (4) soliciting Devries's testimony against him. We find merit in Plunk's contention that Moon labored under an actual conflict of interest that adversely affected his representation under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

“Although AEDPA directs our review of state court decisions, we apply our usual standards of review to the decision of the District Court, reviewing factualfindings for clear error and questions of law or mixed questions of law and fact de novo.” Johnston v. Luebbers, 288 F.3d 1048, 1051 (8th Cir.2002) (citing Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir.2001)); see also Reagan v. Norris, 365 F.3d 616, 621 (8th Cir.2004) (holding that where “there is no state court adjudication of [a] claim, ... we need not apply the AEDPA's deferential standard of review. We review the district court's factual determinations for clear error and its legal conclusions de novo.” (internal citations omitted)). “Findings of fact are clearly erroneous if they are unsupported by substantial evidence, or if the reviewing court is left with the conviction that a mistake has been made.” United States v. Dochterman, 630 F.2d 652, 653 (8th Cir.1980) (citations omitted).

Plunk argues that Moon rendered ineffective assistance by attempting to negotiate the package plea deal before he went to trial. He argues that the package deal resulted in an actual conflict of interest that adversely affected Moon's performance. “[I]f [a] defendant can show that his or her attorney had an actual conflict of interest,” then he or she does not have to show prejudice. Berry v. United States, 293 F.3d 501, 503 (8th Cir.2002) (citing Cuyler, 446 U.S. at 349–50, 100 S.Ct. 1708).

An “actual conflict,” for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance. The effect must be...