             United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 12-1309
                    ___________________________

                             Terry Gale Plunk,

                  lllllllllllllllllllllPetitioner - Appellant,

                                      v.

                                 Ray Hobbs,

                  lllllllllllllllllllllRespondent - Appellee.
                                  ____________

                 Appeal from United States District Court
             for the Eastern District of Arkansas - Pine Bluff
                              ____________

                       Submitted: January 15, 2014
                         Filed: August 14, 2014
                             ____________

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 judge1 held an
evidentiary hearing and recommended denial of the petition. The district court2
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


      1
       The Honorable Jerry W. Cavaneau, United States Magistrate Judge for the
Eastern District of Arkansas.
      2
       The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

                                          -2-
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,

                                         -3-
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

                                          -4-
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.

                                           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 (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 (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
(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.

                                          -5-
       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. The purpose of the Sullivan rule “is not to
enforce the Canons of Legal Ethics,” id. at 176, 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. 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 (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. If the prosecutor would not have been receptive to a more favorable plea
bargain, then there is no basis to conclude that any conflict of interest harmed the
lawyer’s advocacy. Burger v. Kemp, 483 U.S. 776, 785-86 (1987).




                                          -6-
        After an evidentiary hearing, the district court concluded that Moon’s joint
representation did not adversely affect Plunk’s defense during the negotiation of the
package plea agreement. The district court found that “all . . . proposals by the
prosecution would have required Petitioner to plead guilty to attempted capital
murder,” but that Plunk “refused to take any plea deal that involved pleading guilty
to the attempted capital murder.” In other words, Moon’s potential conflict of interest
did not prevent Moon from negotiating a more favorable agreement for Plunk,
because no better deal was available.

       The record supports the district court’s conclusion. When asked why the
package plea agreement never happened, Prosecutor Bradford testified that Moon
asked for a plea offer that would not require Plunk to plead guilty to attempted capital
murder, but that “the State was not in a position to [nolle pros] or to not include that
charge in the plea negotiations.” App. 560. He explained that the inability to reach
an agreement on the attempted murder charge “was ultimately what led to us having
to try the case.” Id. Moon explained that Plunk did not feel the attempted murder
charge was justified, and that avoiding a conviction on that offense was most
important to Plunk. Id. at 442. But Moon also perceived that the State was “like a
dog with rabies” in its prosecution of Plunk, and that attempted murder was the most
important charge to prosecutors. Id. at 444. The parties thus reached loggerheads
when the State insisted on a conviction for attempted murder and Plunk refused to
plead guilty to that offense. Moon’s representation of Devries did not adversely
affect his negotiations on behalf of Plunk, because Plunk was unwilling to plead
guilty to attempted murder, and the State was unwilling to forego that charge.

       In concluding that Moon labored under a conflict of interest that adversely
affected his representation, the dissenting opinion asserts that Plunk did not accept
the package plea agreement because Moon was having difficulty getting Plunk to
understand the proposal. We are presented, however, with a factual finding of the
district court that Plunk rejected the plea agreement because that proposal, and all

                                          -7-
others, would have required him to plead guilty to attempted capital murder. We may
reject the finding only if it is clearly erroneous, after allowing “for the advantages
possessed by the trial court in appraising the significance of conflicting testimony.”
Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949). The
evidence cited by the dissent does not leave us with a “definite and firm conviction
that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948). The district court’s finding is supported by ample evidence, including
Bradford’s testimony described above and Plunk’s own testimony that he rejected the
package plea agreement because he refused to accept any agreement that required him
to plead guilty to attempted capital murder. App. 354, 372. That the record includes
arguably conflicting testimony does not make the district court’s finding clearly
erroneous.

       The dissent also reasons that Moon’s conflict of interest prevented him from
attempting to negotiate an agreement calling for a lesser punishment than the 99-year
prison term specified in the proposed package agreement. The suggestion is that
Prosecutor Bradford would have been willing to consider mitigating evidence from
a competency report or to entertain offers to cooperate in a drug trafficking
investigation. But the prosecutor never said the State would have been willing to
consider dropping the attempted capital murder charge, and Plunk simply refused to
plead guilty to that charge. It matters not whether Moon might have been able to
negotiate a lesser sentence for a guilty plea to attempted capital murder, because his
client professed innocence and was unwilling to plead guilty to that offense.
Prosecutor Bradford, moreover, testified that while he is willing to consider
extenuating circumstances disclosed in a defendant’s forensic report on competency,
he did not see “anything” in Plunk’s report that he “would deem to be mitigating.”
App. 591. As for potential cooperation, the district court found—with ample support
in the record—that no matter what Moon might have attempted to negotiate, Plunk
failed to demonstrate he actually would have been willing to cooperate with law
enforcement. R. Doc. 183, at 67-68.

                                         -8-
       Second, Plunk asserts that Moon’s advice to accept the package plea agreement
was by itself sufficient to show an adverse effect on Moon’s performance, because
a conflict-free attorney would not have recommended the agreement that Plunk
rejected. To accept this contention would expand the rule concerning presumption
of prejudice. Unlike Plunk’s case, the published authorities in this area concern
whether a defendant is entitled to relief when he followed advice of a conflicted
attorney, either to plead guilty or to decline a plea agreement. See, e.g., Berry v.
United States, 293 F.3d 501, 504 (8th Cir. 2002); Hall v. United States, 371 F.3d 969,
974 (7th Cir. 2004); Thomas v. Foltz, 818 F.2d 476, 483 (6th Cir. 1987). If a
defendant follows counsel’s recommendation, foregoes an alternative line of defense,
and shows that the attorney’s advice was influenced by a conflict of interest, then
prejudice may be presumed.

       Plunk argues that even where a defendant immediately rejects counsel’s advice
to plead guilty, and the litigation then proceeds in a different direction, he is entitled
to a presumption of prejudice with respect to everything that follows. We find no
authority to support this proposition, and we decline to adopt it. Sullivan’s
presumption of prejudice adheres because a conflict of interest significantly affected
counsel’s performance, and the effect on performance could have affected the
outcome of the proceedings, but it is impractical to measure the harm resulting from
counsel’s errors. In Plunk’s scenario, however, it is clear that there was no harm
whatever: Plunk immediately rejected Moon’s recommendation to plead guilty.
Moon then pursued an alternative defense strategy that Plunk preferred. It is not
necessary to speculate about the impact of Moon’s advice to plead guilty on his
defense of the cases, because the effect was zero. The Sullivan prophylactic rule is
designed to protect a defendant when it is impossible to reconstruct what might have
occurred without counsel’s conflict of interest. To extend that rule to Plunk’s
situation would grant an unwarranted windfall to a defendant who plainly suffered
no harm as a result of advice that he promptly rejected.



                                           -9-
     We therefore reject Plunk’s contention that Moon’s advice to accept the
package plea agreement justifies a presumption of prejudice and relief under the Sixth
Amendment. The district court correctly dismissed this claim.

                                          B.

       Plunk also suggests that Moon’s conflict of interest caused Moon to forego an
investigation of Plunk’s mental defects that could have been used in plea negotiations
and court proceedings. Plunk alleges that a competent investigation would have
uncovered evidence of his mental retardation, as worsened by a traumatic brain injury
he suffered in 1999. He contends that evidence of his mental problems would have
supported (1) an affirmative defense that he lacked the capacity to follow the law, (2)
a claim of incompetence to stand trial, and (3) an argument for leniency in plea
negotiations or sentencing. Plunk theorizes that Moon did not look for such evidence
because he was attempting to emphasize Plunk’s culpability in order to downplay
Devries’s.

       The district court rejected Plunk’s theory that Moon sought to shift liability
from Devries to Plunk, finding “no proof that this took place.” Plunk relied on the
statement of a prosecutor in the second case involving Devries—in which she was
prosecuted for furnishing prohibited articles to Plunk in jail—that Moon had
“emphasized greatly” that Devries had been “led astray” by Plunk. Referring to this
colloquy, however, the district court found that Plunk’s “sole evidence” about
Moon’s shifting culpability to Plunk came during a hearing that occurred after
Plunk’s case was already final, and that this evidence could not establish that Moon’s
performance was adversely affected during Plunk’s case. The district court found “no
other evidence in the record” of Moon’s attempting to emphasize Plunk’s culpability
or minimize Devries’s.




                                         -10-
       Plunk asserts that there was other evidence: Moon’s failure to emphasize
Plunk’s intellectual disability was itself proof of an adverse effect on representation,
because an objective observer could conclude that Moon was acting to preserve the
blame-shifting argument for Devries to use in her later case. To show the required
adverse effect, however, Plunk must establish “that the conflict caused the attorney’s
choice,” and “that the defense counsel’s failure to pursue that strategy or tactic was
linked to” the conflict. Covey, 377 F.3d at 908 (internal quotations omitted); see also
Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006). He must show that the
adverse effect on his case was “actual and demonstrable,” not merely “abstract or
theoretical.” Covey, 377 F.3d at 908 (internal quotation omitted). Because Plunk
offered only theoretical ways in which the conflict could have caused Moon’s alleged
deficiency, we find no error in the district court’s conclusion that Plunk “simply
failed to prove” this claim.

       Alternatively, Plunk argues that Moon’s failure to present evidence of
intellectual disability was ineffective assistance under the Strickland standard. The
district court found that Plunk does suffer from some mental impairment that could
have been relevant to his defense, and that evidence could have been available about
his difficulty in school, difficulty completing ordinary life tasks, and traumatic brain
injury. The district court thought Moon’s failure to investigate Plunk’s impairments
beyond obtaining one psychiatric evaluation fell below the Strickland “objective
standard of reasonableness,” but concluded that Plunk failed to show prejudice.

       We find it unnecessary to endorse or reject the conclusion that Moon’s
performance fell below the range of competence demanded of attorneys in criminal
cases. Assuming deficient performance for the sake of analysis, we agree with the
district court that Plunk has not shown prejudice.

      On Plunk’s claim that he would have been found incompetent to stand trial, we
agree with the district court that any additional evaluations were likely to reach the

                                         -11-
same result as the first one. The psychiatrist’s report determined that Plunk
understood the legal system and the charges against him. Plunk was no stranger to
the legal system, and he invoked his right to remain silent in several interrogations.
The district court found that Plunk did have the ability to “have meaningful
discussions about all the facts” early in trial preparation, that he was able to assist in
the fact-intensive trial preparation of the defense on the attempted murder charge, and
that Plunk’s own testimony at the hearing showed his assistance in the defense.
Although Plunk’s expert raised “concerns” about Plunk’s competency at the time of
trial, he did not offer an opinion on the issue. Plunk thus did not carry his burden to
show a reasonable probability that he would have been found incompetent to stand
trial.

       We also agree with the district court that Plunk did not show prejudice in plea
negotiations or at sentencing arising from Moon’s failure to develop mitigating
mental evidence. The prosecutor testified that due to the seriousness of the charges,
only “compelling” mitigating evidence would have affected his plea offers, and
Plunk’s proffered evidence does not rise to that level. As to sentencing, if Plunk had
eschewed the plea agreement reached after the acquittal on attempted murder and
proceeded to sentencing on the drug trafficking charges of which he was convicted,
the result may well have been worse. Regardless of evidence on Plunk’s mental
capacity, a jury would have seen video evidence of Plunk’s reckless flight from
officers in April 2006 and learned of his extensive criminal history. Counsel aptly
recognized a substantial risk that the jury would regret acquitting Plunk on the
attempted murder charge and choose life imprisonment as punishment. Plunk has not
demonstrated a reasonable likelihood that developing evidence of mental deficiency
and proceeding before a jury would have improved the outcome.




                                          -12-
                                          C.

       Plunk also claims that Moon’s joint representation adversely affected his
representation of Plunk because Moon’s divided loyalty led him to ask Devries to
testify against Plunk. Devries averred that she saw Moon speaking with a prosecutor,
and that Moon then told her that the prosecutor wanted her to testify against Plunk.
Moon disputed this account and testified that neither he nor the prosecutor ever asked
Devries to testify against Plunk. The prosecutor further explained that he would
never ask a co-defendant to testify against another when both were represented by the
same counsel.

      The district court found that “the request did not occur.” This credibility
finding is not clearly erroneous. Plunk argues that the district court misunderstood
the issue and focused incorrectly on whether the prosecutor sought Devries’s
testimony when the claim is that Moon suggested that she implicate Plunk. But
Devries’s statement was that Moon told her the prosecutor wanted to know if she
would testify against Plunk. So when the district court credited the prosecutor’s
denial, it was appropriate for the court also to discount Devries’s testimony that Moon
relayed a request from the prosecutor.

                                          D.

       Plunk contends finally that Moon rendered ineffective assistance under
Strickland by failing to advise him accurately about when he would be eligible for
parole under the plea agreement that Plunk accepted. At the time, the Supreme Court
of Arkansas had ruled that counsel had no constitutional duty to inform a client about
the specifics of parole eligibility, Buchheit v. State, 6 S.W.3d 109, 111-12 (Ark.
1999), and this court held that the state court’s decision did not involve an
unreasonable application of clearly established federal law. Buchheit v. Norris, 459
F.3d 849, 853 (8th Cir. 2006). Although some courts subsequently have extended the

                                         -13-
reasoning of the Supreme Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 369
(2010)—concerning advice about deportation consequences—to require advice about
parole eligibility, e.g., Commonwealth v. Pridham, 394 S.W.3d 867, 878 (Ky. 2012);
Ex Parte Moussazadeh, 361 S.W.3d 684, 690-91 (Tex. Crim. App. 2012), any such
extension of the Sixth Amendment would be a new rule of constitutional law,
inapplicable on collateral review. See Chaidez v. United States, 133 S. Ct. 1103
(2013) (holding that Padilla does not apply retroactively).

       In any event, the district court also found that even if Moon had advised Plunk
that he would be eligible for parole in eighteen years, rather than the five years that
Plunk understood, Plunk would not have rejected the plea agreement and opted for
sentencing by a judge or jury. The court’s credibility finding that Plunk’s “self-
serving, after-the-fact statements” were inadequate is not clearly erroneous. Having
failed to show a reasonable probability that different advice about parole eligibility
would have changed the outcome of the proceeding, Plunk cannot show prejudice.
See Hill v. Lockhart, 474 U.S. 52, 60 (1985).

                                   *      *       *

      For the foregoing reasons, the judgment of the district court is affirmed.

SMITH, Circuit Judge, with whom BYE, MELLOY, and KELLY, Circuit Judges,
join, dissenting.

       I respectfully dissent. I find merit in Plunk's contention that Moon labored
under an actual conflict of interest that adversely affected his representation. See
Sullivan, 446 U.S. at 348. Because the district court failed to address whether Plunk
waived the right to effective assistance of counsel in hiring Moon to represent
Devries and himself, I would reverse the district court and remand with instructions



                                         -14-
to consider this issue at an evidentiary hearing. See United States v. Unger, 665 F.2d
251, 256 (8th Cir. 1981).

       "In order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance." Sullivan, 446 U.S. at 348 (footnote
omitted). "[A] defendant who shows that a conflict of interest actually affected the
adequacy of his representation need not demonstrate prejudice in order to obtain
relief." Id. at 349–50. A defendant must demonstrate "that his counsel actively
represented conflicting interests" in order to "establish[ ] the constitutional predicate
for his claim of ineffective assistance." Id. at 350. In this case, Moon and Prosecutor
Bradford negotiated an agreement in which the State would offer a "package" plea
deal to Plunk and Devries in which Devries would receive 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.3 The State's offer of probation to Devries was entirely


      3
       In April 2006, 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.

       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.
                                          -15-
contingent on Plunk's acceptance of the State's offer. It is undisputed that a "conflict
of interest" existed at the moment that Prosecutor Bradford made the plea offer to
Plunk and Devries;4 therefore, the question is whether this conflict of interest
"affected counsel's performance." Mickens, 535 U.S. at 171 ("'[A]n actual conflict of
interest' mean[s] precisely a conflict that affected counsel's performance—as opposed
to a mere theoretical division of loyalties.").

       "Joint representation of conflicting interests is suspect because of what it tends
to prevent the attorney from doing. For example, . . . it may well . . . preclude[ ]
defense counsel . . . from exploring possible plea negotiations . . . , provided a lesser
charge or a favorable sentencing recommendation would be acceptable." Holloway,
435 U.S. at 489–90. "[J]oint representation of conflicting interests is inherently
suspect, and . . . counsel's conflicting obligations to multiple defendants 'effectively
sea[l] his lips on crucial matters' and make it difficult to measure the precise harm
arising from counsel's errors." Mickens, 535 U.S. at 168 (quoting Holloway, 435 U.S.
at 489–90) (third alteration in original).

       Here, I find that the conflict of interest may have precluded Moon from
negotiating a plea agreement containing a more favorable sentence to Plunk than 99
years' imprisonment—effectively, a life sentence. See Holloway, 435 U.S. at 490.
Prosecutor Bradford's testimony demonstrates that he would have been open to a
more "favorable sentencing recommendation." See id. Prosecutor Bradford testified
that, prior to trial, Moon indicated to Prosecutor Bradford "that he had . . . tried to
discuss the terms of the [package] plea offer with Mr. Plunk, . . . but . . . was having


      4
       At oral argument, I asked the State's counsel whether counsel agreed that
Moon's recommendation to Plunk to accept the plea deal that was beneficial and
favorable to Devries created an actual conflict of interest. While the State's counsel
responded that she was unsure whether Moon actually gave such advice to Plunk, she
"assume[d] that to be true" "[f]or the sake of [the State's] argument." She agreed that
such advice would create a conflict of interest.
                                          -16-
some difficulty . . . getting Mr. Plunk to understand what he was trying to explain to
him. One minute [Plunk] seemed to understand. The next minute, he did not." App.
562. According to Prosecutor Bradford, because Moon was "concern[ed] about the
way Mr. Plunk was interacting with him when he was trying to explain things to
him[,] he felt the need to request a forensic examination." Id. Subsequently, Plunk
underwent a forensic evaluation, which ultimately found him competent.

       During the evidentiary hearing, Plunk's counsel asked Prosecutor Bradford
whether he would ever consider "offer[ing] a reduced sentence to a defendant on the
basis of something that comes out of a forensic evaluation," even if the evaluation
concludes that the defendant is nonetheless competent to stand trial. Id. at 564.
Plunk's counsel reminded Prosecutor Bradford about his prior deposition testimony,
and the following exchange occurred:

      [Plunk's counsel:] And I asked you on line 15: What about something
      about the defendant, like diminished capacity, you know, like mental
      health, physical health, something like that?

                                        ***

      A. [by Prosecutor Bradford] My response was:         Yeah, sometimes I

      would say that if the forensic report comes back and they are—they are
      fit to proceed, they are competent, but there is some extenuating
      circumstance, perhaps their IQ is borderline, if there's something there,
      I am willing to consider that.

      Q.    So your testimony at your deposition is that you would be willing
      to consider—

      A.    Yes. I'm always open to listen to just about anything that the
      defense wants to present, or something in the forensic report they want
      me to take a second look at, I'm willing to do that.


                                        -17-
Id. at 565–66 (emphases added). But Prosecutor Bradford did not recall Moon
presenting him with such mitigating evidence in Plunk's case. Id. at 566.5

      Prosecutor Bradford also testified that although Moon never approached him
about Plunk providing information about his suppliers to investigators, it was "always
a possibility" that "Plunk would have received less prison time" had Moon
approached Prosecutor Bradford about Plunk's cooperation in the investigation. Id.
at 571–72.

      This is not a case in which the prosecutor "flat[ly] refus[ed] to engage in plea
bargaining." Burger, 483 U.S. at 786 (quotation and citation omitted). Instead, the
record evidence cited above shows that Prosecutor Bradford "would have been
receptive to a plea bargain" containing a more favorable sentence based on mitigating
evidence and cooperation, had Moon presented such evidence. Cf. Burger, 483 U.S.
at 785 ("The notion that the prosecutor would have been receptive to a plea bargain
is completely unsupported in the record.").

      Despite record evidence that Prosecutor Bradford was willing to entertain a
more favorable sentence to Plunk than 99 years' imprisonment, the majority concludes
that "Moon's representation of Devries did not adversely affect his negotiations on
behalf of Plunk, because Plunk was unwilling to plead guilty to attempted murder,
and the State was unwilling to forego that charge." Part II.A., supra. In support of its
conclusion, the majority cites Prosecutor Bradford's testimony that the State was
unwilling to forego the attempted-murder charge and that "the inability to reach an
agreement on the attempted murder charge 'was ultimately what led to us having to


      5
       During the State's cross-examination of Prosecutor Bradford, he indicated that
he "didn't see anything in the cases that [he] would consider to be mitigating." Id. at
580. During redirect examination, Prosecutor Bradford reaffirmed that, in addition
to seeing nothing mitigating in the forensic report, Moon never provided him with
any mitigating evidence. Id. at 591.
                                         -18-
try the case.'" Id. (citing App. 560). It also cites Moon's testimony that Plunk did not
think "that the attempted capital murder charge was justified" and that the "attempted
capital murder charge was the most important [charge] to [Plunk]." App. 442.
However, the majority omits Prosecutor Bradford's additional testimony about why
the State and Plunk were unable to reach a plea agreement—Plunk's difficulty
understanding the terms of the proposed plea agreement. App. 562. During the
evidentiary hearing, Plunk's counsel asked Prosecutor Bradford, "So at that time,
when Mr. Moon was willing to take [the "package" plea deal] to his clients, why did
that not result in a disposition at that time?" As discussed previously, Prosecutor
Bradford responded that Moon "was having some difficulty . . . getting Mr. Plunk to
understand what he was trying to explain to him," which resulted in the competency
hearing. Id.

      Plunk need not show that a more favorable plea agreement would have been
entered absent the conflict; instead, to prove that Moon's conflict of interest
prevented him from seeking a better plea agreement for Plunk alone, he need show
only that "a lesser charge or a favorable sentencing recommendation would be
acceptable" to the prosecution. Holloway, 435 U.S. at 489–90. Plunk has met this
burden based on Prosecutor Bradford's testimony. Furthermore, even if the true
reason for the failure to reach a plea agreement was the State's insistence on an
attempted-murder conviction and Plunk's refusal to plead guilty to that offense, a
competent attorney not laboring under a conflict of interest would have pursued a
deal containing a more favorable sentence to his client, even if it included the
objected-to charge. Plunk was presented only with a plea deal containing (1) an
unfavorable term—pleading to attempted murder—and (2) an unfavorable
sentence—a 99-year sentence pursuant to a plea of guilty to all of the Plunk 1 and
Plunk 2 offenses (effectively, a life sentence). Despite the State's refusal to negotiate
on the attempted-murder charge, Moon could have proposed an agreement in which
Plunk pleaded guilty to the attempted-murder charge but did not receive a life



                                          -19-
sentence. When presented with a more favorable sentencing term, Plunk may no
longer have been at "loggerheads" with the State over the attempted-murder charge.

      In finding that no actual conflict of interest existed, the district court did not
address whether Plunk waived the right to effective assistance of counsel in hiring
Moon to represent Devries and himself.

             We have consistently held that the right to effective assistance of
      counsel may be waived, provided that waiver is knowing, voluntary and
      intelligent. See United States v. Bryant, 766 F.2d 370, 377 (8th Cir.
      1985), cert. denied, 474 U.S. 1054, 106 S. Ct. 790, 88 L. Ed. 2d 768
      (1986); United States v. Poston, 727 F.2d 734, 738 (8th Cir.), cert.
      denied, 466 U.S. 962, 104 S. Ct. 2179, 80 L. Ed. 2d 561 (1984); Larry
      Buffalo Chief v. State of South Dakota, 425 F.2d 271, 280 (8th Cir.
      1970). Once a valid waiver is found to exist, we need not inquire
      whether an "actual conflict of interest exists." Bryant, 766 F.2d at 378;
      see also Larry Buffalo Chief, 425 F.2d at 280.

                                          ***

      Therefore, a waiver can be valid if obtained during a state trial court
      proceeding even if the state court does not conduct an on-the-record
      inquiry, provided that the waiver is knowing, voluntary, and intelligent.
      See Larry Buffalo Chief, 425 F.2d at 280; accord Harris v. State, 609
      S.W.2d 723, 724 (Mo. App. 1980) (testimony at 27.26 hearing sufficient
      to determine whether waiver valid); Davis v. State, 573 S.W.2d 736, 737
      (Mo. App. 1978); cf. Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S. Ct.
      1708, 1717, 64 L. Ed. 2d 333 (1980) ("nothing in our precedents
      suggests that the Sixth Amendment requires state courts themselves to
      initiate inquiries into the propriety of multiple representation in every
      case").

Henderson v. Smith, 903 F.2d 534, 536–37 (8th Cir. 1990). "[I] cannot discern from
this record . . . whether, in fact, such a waiver was made. [I], therefore, [would] direct



                                          -20-
the district court to consider this issue at [an] evidentiary hearing" on remand."6


      6
        The record does contain some relevant testimony. For example, Robert Hall
is an inmate who assists other inmates with their legal work. Hall helped Plunk to file
his initial habeas petition. Hall testified to statements that Plunk made to him while
they were incarcerated together. Hall testified on direct examination as follows:

      Q       Mr. Hall, . . . when you said you reviewed Mr. Plunk's papers,
      . . . you thought that he had some claims to raise?

      A      Yes, ma'am.

      Q      And what was that?

      A      Well, when I found this drug task force report and I asked Terry
      who she was and I asked him had he ever heard of a conflict of interest
      and he said no, he didn't know what that was. And I said, Well, it's when
      two defendants have—when two people have an antagonistic defense.
      And he didn't know what that was either, and so I said, You sure you
      never heard your attorney talk about a conflict of interest while y'all
      were in trial at any time. He says, No, I'm almost positive I've never
      heard that word. So I sat down and explained to Terry about the conflict
      of interest.

             Terry had told me that he had paid Moon to represent Ms. Devries
      also. And that Moon, Attorney Moon, had represented both of them on
      the case. And then I explained, of course, to Terry that he couldn't
      represent both of them because of what had happened, there was a
      conflict of interest, and, of course, over and over and over I had to tell
      him several, several times.

      Q      Why did it take so long do you think? Why did you have to tell
             him several times?

      A      He doesn't grasp legal or arguments. He doesn't understand or he
      didn't understand the significance of everything I was trying to explain
      to him.
                                         -21-
Unger, 665 F.2d at 256.

      On this record, I conclude that the district court erred7 in finding that
"negotiations [of a package plea deal] did not adversely affect [Plunk's] defense."
Plunk, 2011 WL 6963092, at *21. Accordingly, I would reverse and remand for
further proceedings, which would include an evidentiary hearing on the issue of
waiver.
                       ______________________________



Furthermore, Plunk testified that he met Moon through his son and his son's ex-wife
while he was in jail in Missouri. Then, he testified under direct examination as
follows:

      Q      Did [Devries] ever get a lawyer?

      A      I helped her get a lawyer.

      Q      Okay. And who was her lawyer?

      A      Phillip Moon.

                                          ***

      Q     Okay. And when you hired Phillip Moon for you and Deb, did he
      say anything to you that it might be a problem for him to represent both
      of you?

      A      No.

      Q      And who paid Phillip Moon?

      A      Me.
      7
       Because of the result that I reach as to Plunk's conflict-of-interest argument,
I would not address his additional claims of ineffectiveness. See Part II.B–D., supra.
                                          -22-
