Plunk v. Hobbs

• Decision Date: 14 August 2014
• Docket Number: No. 12–1309.,12–1309.
• Citation: 766 F.3d 760
• Parties: Terry Gale PLUNK, Petitioner–Appellant, v. Ray HOBBS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

766 F.3d 760

Terry Gale PLUNK, Petitioner–Appellant,

v.Ray HOBBS, Respondent–Appellee.

No. 12–1309.

United States Court of Appeals,

Eighth Circuit.

Submitted: Jan. 15, 2014.

Filed: Aug. 14, 2014.

Julie Vandiver, FPD, argued, Little Rock, AR, for Appellant.

Lauren Elizabeth Heil, AG, argued, Little Rock, AR, for Appellee.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.

COLLOTON, Circuit Judge.

Terry Gale Plunk, an Arkansas prisoner, petitioned for a writ of habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254. A magistrate judge ¹ held an evidentiary hearing and recommended denial of the petition. The district court ² adopted the recommended findings and disposition, dismissed the petition, and granted a certificate of appealability on all issues. Plunk appealed, and a panel of this court vacated the judgment of the district court and remanded for further proceedings. Plunk v. Hobbs, 719 F.3d 977 (8th Cir.2013). We granted the State's petition for rehearing en banc and now affirm the judgment of the district court.

I.

Law enforcement officers in Arkansas received multiple reports in April 2006 that Plunk possessed a large quantity of methamphetamine. One evening that month, officers attempted to effect a traffic stop while Plunk was driving his truck. Plunk refused to halt and led officers on a high-speed chase—much of it recorded on video—during which Plunk drove through stop lights, rammed police vehicles, wove through a crowded parking lot, and threw baggies of methamphetamine out of the truck.

Plunk was arrested and charged with multiple offenses related to the chase and his possession of methamphetamine and firearms. Officers discovered more methamphetamine and evidence of drug activity when they executed a search warrant at the residence Plunk shared with his girlfriend, Deborah Devries. Police arrested Devries for offenses related to her possession of drugs and firearms and attempts to destroy evidence.

After Plunk was released pending trial, he was arrested again in August 2006 while attempting to deliver methamphetamine from his vehicle to an undercover officer. As police officers approached Plunk, he began to back out of a parking space, causing one officer to believe that Plunk was going to hit him. That officer shot Plunk in the shoulder. Plunk was arrested and charged with attempted capital murder of the police officer, as well as multiple drug offenses.

Plunk retained Phillip Moon to represent him in both the April and August cases. Devries was initially represented by a public defender on her April case, but Plunk later hired Moon to represent her as well. According to Moon, he talked with Plunk at length about the dangers of joint representation and also discussed the topic with Devries. App. 491–92. Plunk disputes this point, and the district court deemed it unnecessary to make a definitive factual finding. R. Doc. 183, at 43.

While Moon represented both Plunk and Devries, he negotiated a “package plea deal” with prosecuting authorities to resolve all charges against Plunk and Devries. Under the proposed agreement, Plunk would plead guilty to all of the pending charges, including the attempted capital murder charge, and receive a life or life-equivalent sentence, while Devries would plead guilty to drug charges and receive a sentence of probation. When Moon presented the offer to Plunk, he promptly rejected it, because he refused to accept any plea offer that required a plea of guilty to attempted capital murder. The cases remained set for trial.

Moon thought the April case involving Plunk's video-recorded flight would be difficult to defend, but he believed the attempted capital murder charge from August was “very defensible.” The attempted murder case was tried first, in July 2007. Moon presented a defense that Plunk did not attempt to murder the police officer, because his poor eyesight and obstructed view from inside the car prevented him from seeing the officer. The jury acquitted Plunk of the attempted capital murder charge but convicted him on two drug trafficking charges.

At a sentencing hearing before the same jury, the prosecution prepared to present the video recording of the April police chase. Moon feared the jury—upon viewing the aggravated circumstances of Plunk's flight from police—would regret rendering its acquittal and sentence Plunk to the maximum sentence available on the drug trafficking charges. Moon approached the prosecutor and negotiated a plea agreement to resolve both of Plunk's cases. The agreement, which Plunk accepted, provided for seventy-two years of imprisonment on the charge of possession of methamphetamine with intent to distribute and shorter concurrent sentences to resolve the remaining charges. Plunk waived his right to appeal the convictions and sentences, and he did not seek state post-conviction relief.

For her part, Devries pleaded guilty in January 2008 to charges arising from her arrest in April 2006 and to additional charges of furnishing contraband to Plunk while he was in jail. The court sentenced her to 120 days in jail and to concurrent 10–year and 1–year sentences of probation.

In July 2008, Plunk petitioned for a writ of habeas corpus, alleging that he received ineffective assistance from Moon. The district court held an evidentiary hearing, assumed without deciding that Plunk could overcome defenses of procedural default and statute of limitations, and denied Plunk's claims on the merits. Plunk raised four points on appeal, and a panel of this court reversed and remanded on one ground without reaching the other three.

We granted rehearing en banc. Because Plunk did not exhaust his claims in state court, the claims have not been adjudicated on the merits in state court proceedings, and the standards of 28 U.S.C. § 2254(d) do not apply. In that circumstance, we review the district court's findings of fact for clear error and its conclusions of law de novo. Like the district court, we resolve Plunk's claims on the merits, see28 U.S.C. § 2254(b)(2), and we deem it unnecessary to address the statute of limitations and procedural default.

II.

A.

We address first the argument that drew the attention of the three judge panel. Plunk argues that attorney Moon labored under an actual conflict of interest when he jointly represented both Plunk and Devries. Plunk contends that Moon's conflict affected the adequacy of his representation and that he is entitled to relief without any additional showing of prejudice under the rule of Cuyler v. Sullivan, 446 U.S. 335, 349–50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Sullivan provides that we presume prejudice when a conflict of interest arising from multiple representation adversely affected counsel's representation. The presumption arises because when joint representation of conflicting interests has an adverse effect on counsel's performance, it is difficult “to measure the precise harm arising from counsel's errors.” Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). A rule requiring a defendant to show specific prejudice “would not be susceptible of intelligent, evenhanded application.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). When a defendant shows that counsel refrained from pursuing a particular strategy or tactic on his behalf because of loyalty to another extant client, there is no effective way to determine what would have happened if counsel had performed without a conflict of interest. Especially in the context of plea negotiations, “to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible,” and an inquiry into harmlessness of the error would require “unguided speculation.” Id. at 491, 98 S.Ct. 1173.

To trigger the presumption of prejudice, however, a petitioner who did not object at trial must show that a conflict of interest “significantly affected counsel's performance.” Mickens, 535 U.S. at 173, 122 S.Ct. 1237. The purpose of the Sullivan rule “is not to enforce the Canons of Legal Ethics,” id. at 176, 122 S.Ct. 1237, and there is no per se rule that a defendant who is advised by the same attorney as a co-defendant is deprived of his right to effective assistance of counsel under the Sixth Amendment. Holloway, 435 U.S. at 482, 98 S.Ct. 1173. A habeas petitioner invoking Sullivan must “identify a plausible alternative defense strategy or tactic that [his] defense counsel might have pursued, show that the alternative strategy was objectively reasonable under the facts of the case, and establish that the defense counsel's failure to pursue that strategy or tactic was linked to the actual conflict.” Covey v. United States, 377 F.3d 903, 908 (8th Cir.2004) (internal quotations omitted). If a petitioner claiming ineffective assistance of counsel cannot show that a conflict of interest significantly affected counsel's performance, then he must establish deficient performance and prejudice under the ordinary standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Plunk argues that Moon was acting under a conflict of interest when he negotiated a package plea agreement for both Plunk and Devries. He cites two ways in which the conflict adversely affected Moon's performance in the negotiations.

First, Plunk contends that Moon's conflict of interest prevented him from seeking a better plea agreement for Plunk alone. A conflict of interest may adversely affect counsel's representation when it prevents an attorney from exploring potential plea opportunities, but only when “a lesser charge or a favorable sentencing recommendation would be acceptable” to the prosecution. Holloway, 435 U.S. at 489–90, 98 S.Ct. 1173. If the prosecutor would not have been receptive to a more favorable plea...