Submitted January 15, 2014.
Petition for certiorari filed at, 11/10/2014
Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff.
For Terry Gale Plunk, Petitioner - Appellant: Jenniffer Morris Horan, Federal Public Defender, Josh Lee, Assistant Federal Public Defender, Julie Vandiver, Assistant Federal Public Defender, Federal Public Defender's Office, Little Rock, AR.
Terry Gale Plunk, Petitioner - Appellant, Pro se, Grady, AR.
For Ray Hobbs, Respondent - Appellee: Christian Harris, Lauren Elizabeth Heil, Assistant Attorney General, Pamela Rumpz, Assistant Attorney General, Attorney General's Office, Little Rock, AR.
Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc. SMITH, Circuit Judge, with whom BYE, MELLOY, and KELLY, Circuit Judges, join, dissenting.
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 held an evidentiary hearing and recommended denial of the petition. The district court 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.
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, see 28 U.S.C. § 2254(b)(2), and we deem it unnecessary to address the statute of limitations and procedural default.
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 ...