Terry Plunk v. Ray Hobbs, 766 F.3d 760

Plunk, an Arkansas prisoner, pursued habeas relief under 28 U.S.C. § 2254 in district court.
District court denied after an evidentiary hearing; court adopted findings and dismissed; certificate of appealability granted.
April 2006 chase: Plunk led police, discarded methamphetamine; Devries’ residence search yielded drugs and firearms evidence.
August 2006 arrest: Plunk shot by officer during attempted delivery; charged with attempted capital murder and drug offenses.
Phillip Moon represented both Plunk and Devries; he negotiated a package plea deal which Plunk rejected because it required pleading to attempted capital murder.
July 2007 trial: Moon’s defense for attempted capital murder failed; Plunk was acquitted on that count but convicted on drug trafficking charges; plea later resolved to 72 years with other charges concurrent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Moon's joint representation created an actual conflict of interest	Plunk contends Moon had an actual conflict harming representation.	Moon’s representation did not adversely affect Plunk; no prejudice shown.	Conflict present; no, actual conflict not established by majority.
Whether the conflict affected plea negotiations for Plunk	Conflict prevented favorable plea for Plunk alone; Sullivan prejudice applies.	No prejudice; Plunk rejected the package plea; negotiations proceeded with Devries.	No prejudice from conflict; no presumptive prejudice under Sullivan.
Whether Moon’s failure to investigate mental impairments prejudiced Plunk	Moon’s conflict led to failure to pursue mitigating mental-health evidence.	Evidence insufficient to show prejudice; mental evaluations unlikely to change outcome.	No prejudice; prejudice requirement not met.
Whether Moon’s failure to develop mitigating evidence mattered for competency/plea	Moon’s conduct could have changed competency or plea outcomes.	Competency findings and sentencing factors remained unfavorable; no reasonable probability of different result.	No reasonable probability of different outcome; no ineffective assistance.

Sullivan v. United States, 446 U.S. 335 (U.S. 1980) (presumption of prejudice when conflict harms counsel’s performance)
Holloway v. Arkansas, 435 U.S. 475 (U.S. 1978) (no per se rule against same-attorney representation; requires prejudice inquiry)
Mickens v. Taylor, 535 U.S. 162 (U.S. 2002) (presumption of prejudice when conflict significantly affects performance)
Covey v. United States, 377 F.3d 903 (8th Cir. 2004) (to trigger Sullivan claim, must show plausible alternative strategy linked to conflict)
Burger v. Kemp, 483 U.S. 776 (U.S. 1987) (prosecutor’s receptiveness to plea bargains is part of the prejudice inquiry)
Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prejudice shown where different plea would have a reasonable probability of altering outcome)
Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) ( Sixth Amendment right not extendable to deportation consequences; retroactivity discussed)
Chaidez v. United States, 133 S. Ct. 1103 (U.S. 2013) (Padilla not retroactive)
Unger v. United States, 665 F.2d 251 (8th Cir. 1981) (remand for waiver question when conflict waiver issue is unsettled)
Henderson v. Smith, 903 F.2d 534 (8th Cir. 1990) (waiver of conflict-of-interest rights may be valid if knowing and voluntary)