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 16, 2013

 Filed: July 3, 2013

____________

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. Themagistrate 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 ofmethamphetamine 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,

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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 delivermethamphetamine 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 wasincarcerated. 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

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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'sinitial plea offer wasfor 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

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recommended denial of Plunk's petition. Plunk v. Hobbs, No. 5:08CV00203 SWWJWC, 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 (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 factual

findings 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).

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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).

An "actual conflict," for Sixth Amendment purposes, is a conflict of

interest that adversely affects counsel's performance. The effect must be

actual and demonstrable, causing the attorney to choose to engage or not

to engage in particular conduct. To make such a showing, the defendant

must identify a plausible alternative defense strategy or tactic that

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.

Noe v. United States, 601 F.3d 784, 790 (8th Cir. 2010) (internal citations and some

quotations omitted).

Plunk contends that the prosecutor was willing to agree to probation for

Devries only if Plunk would plead guilty and agree to a 99-year sentence. He

maintains that Moon's dual representation of himself and Devries resulted in Moon's

having divided loyalties from the moment that the prosecutor extended the package

plea offer: "[i]t was unquestionably in Ms. Devries's best interests to accept the plea

deal, while Mr. Plunk was better served by pressing for a better offer or taking his

charges to trial." Plunk argues that a letter that prosecutor Wes Bradford wrote

memorialized discussions between Moon and Bradford as to the terms of this deal.

The letter Bradford sent to Moon stated, in pertinent part, as follows:

Re: State v. Terry Plunk; Boone Co. No. CR 2006-129-3; 2006-213-3

State v. Deborah Devries; Boone Co. No. 2006-99-3

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Dear Phillip:

Please treat this letter as confirmation of our discussions in this

case as follows:

Pursuant to the negotiated plea of Terry Plunk, the State of

Arkansas shall extend an offer of probation to Deborah Devries.

If you have any questions, please feel free to contact me.

Bradford further testified under direct examination as follows:

Q. Okay. And when you took over the Plunk cases, were you trying

to come to a joint resolution with the Plunk and the Devries cases?

A. Yes. Of course, when the second case came down and both cases

were assigned to me, I was looking at it from the standpoint of, if we're

going to work out a negotiated plea, it would probably be a wrap-up

encompassing both [of Plunk's] cases. But it also turned into kind of a

wrap-up, so to speak, in Plunk and Devries's cases. If this offer was

accepted, then this offer could be extended. And that was kind of the

way it worked.

Q. Okay. And could you say more about that when you say if this

offer was accepted? Who would be accepting that offer?

A. If Mr. Plunk accepted an offer that I was authorized to extend to

him and he accepted that offer, then there was an offer we were prepared

to make to Ms. Devries.

Q. And if you recall, what was the offer to Mr. Plunk?

A. It was, of course, based a lot on the second case. He was charged

with attempted capital murder in that case, and the offer that was

extended was pleading guilty as charged in both cases and receiving a

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sentence of life in prison. If he were to accept that, we were in a position

to offer probation to Ms. Devries.

Q. And so when you say if he were to accept that, you were in a

position to extend an offer of probation to Ms. Devries, if Mr. Plunk did

not accept that offer, then you could not?

A. Right. It was contingent, I guess would be a way to describe it,

upon Mr. Plunk accepting his offer.

Q. So Ms. Devries's probation sentence was contingent on Mr. Plunk

accepting the life sentence, which included pleaded guilty to all of his

charges, including attempted capital murder?

A. That's correct.

Q. Let's see. When you were entertaining this joint disposition, did

you talk to Phillip Moon about that?

A. Yes.

Q. Okay. And I'm going to show you . . . Joint Exhibit 10. Can you

see that?

A. I can.

Q. Okay. Do you recognize this?

A. Yes, I do. This is a letter that I would have typed on the 17th of

February, 2007, addressed to Mr. Moon regarding plea negotiationsthat

we had entered into regarding the Plunk and Devries cases.

Q. Okay. So this letter would have come after you'd already talked

to Mr. Moon?

A. Yes. This would have been a follow-up to a verbal conversation

that we had.

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Q. Okay. And is the agreement that's discussed here, is that the one

that you previously mentioned, that Mr. Plunk would plead to life and

Ms. Devries would get probation?

A. That is correct.

Q. So is it fair to say that Mr. Moon was amenable to this joint

disposition?

A. I was under the impression that he was at least willing to discuss

it with his clients. His personal feelings about it I could not say, but

when we discussed it, he certainly seemed willing to at least discuss it

with his clients to see if it would be acceptable to them.

Furthermore, prosecutor Chris Carter testified in response to direct examination as

follows:

[Q.] This is Joint Exhibit 5 at page 4. And this is . . . a court

appearance in Mr. Plunk's case before Plunk 2 occurred.

* * *

And if you wouldn't mind, if Mr. Moon is the speaker, if you wouldn't

mind reading from line 13 to line 21.

A. "Your Honor, . . . there has been a proposed resolution ofthis case

extended to me by Mr. Carter. At this juncture, our position is to review

this offer, but I'd like the Court to put this on the trial docket."

* * * 

"We're still going to explore a potential of this, but there's other

thingsinvolved. The codefendant, who I also represent, your Honor, that

we'll need to try to tie all of these in together, and . . . there may be some

additional discovery issues that come up. But if the Court would go

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ahead and put it on the trial docket and schedule it for trial and we'll try

to get this matter re[s]olved prior. If we don't, then we'll be ready to go

to trial."

Q. Do you know what Mr. Moon was referring to when he said

you're trying to tie all of these in together?

A. I don't know what Mr. Moon is referring to. I know he was trying

to tie them all together and make a package deal for both of them.

Q. Okay. Tell me what you mean by that.

A. Well, when you deal with Phillip and he represents people who

are codefendants, he's very big on looking at it and trying to plead them

both at the same time on the same day.

Q. Okay.

A. That's not the way I necessarily do things, but that's the way he

wants it done.

Finally, Plunk testified under direct examination as follows:

Q Did you ask Phillip Moon to ask the prosecutors to give you a

long sentence so that Deb could have probation?

A No.

Q Did Phillip Moon ever try to talk to you about a deal like that?

A No.

Q He never talked to you about whether or not you—

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A He told me maybe, okay. Sorry. One time he tried to get me to

take a 99-year deal and he goes, that would make it better for Deb, she

could probably get probation.

Q Okay. And . . . what did you tell him that you thought about that

deal?

A I told him I ain't going to take it.

Q Okay. Did Phillip Moon ever tell you that [it] might hurt you to

take that long deal?

A No.

Q Did he tell you that he was talking to the prosecutors about that

deal?

A No.

Plunk argues that, rather than pursue the 99-year package plea deal,

[i]t was an objectively reasonable strategy for Mr. Moon to seek reduced

charges or a reduced sentence for Mr. Plunk from the prosecution or to

advise his client to decline a plea offer in which he would fare no better

than if he went to trial on both cases, was convicted of all charges, and

received the maximum sentence.

"'[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."

Mickens v. Taylor, 535 U.S. 162, 171 (2002). "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 . . . ." Holloway v. Arkansas, 435 U.S. 475, 489–90 (1978). "[J]oint

representation of conflicting interests is inherently suspect, and . . . counsel's

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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 490) (third

alteration in original).

Plunk cites Thomas v. State, 551 S.E.2d 254 (S.C. 2001), to support his claim

that Moon labored under an actual conflict of interest from the moment Bradford

extended the "package" plea deal. Thomas involved a husband and wife who were

both indicted for trafficking in more than 200 grams of cocaine. Id. at 255. They

retained the same attorney. "Counsel testified [at the post-conviction relief hearing

that they] both confessed to the crime and waived the potential conflict of interest

because they did not want separate attorneys." Id. The prosecutor offered the husband

and wife a deal: they could each plead guilty to trafficking in more than 100 grams

and receive eight-year sentences, or else one could plead guilty to trafficking in the

entire amount and the other would go free. Id. The husband and wife discussed the

plea deal outside of the presence of their attorney. Id. The wife decided to plead guilty

to the entire amount. Id. At the post-conviction relief hearing, the wife testified that

she did not have her own money to hire a lawyer and she did not

understand she could have possibly obtained an appointed lawyer. She

stated if she had understood, she would not have used the same lawyer

as her husband. [The wife] also indicated she would have gone to trial,

rather than plead guilty, if she had understood she was pleading to a 25-

year non-parolable sentence.

Id. at 255–56. The trial court found that counsel did not have a conflict of interest. Id.

at 256. The South Carolina Supreme Court reversed, finding that "an actual conflict

of interest arose when the solicitor offered a plea bargain that would allow the charge

against one spouse to be dismissed if the other spouse would plead guilty to the entire

amount of the cocaine." Id. at 256. "At the moment the solicitor made the plea offer,

petitioner's and Husband's interests became adverse to one another and counsel

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should have advised them accordingly." Id. "Although petitioner initially waived a

conflict of interest, once it became clear an actual conflict existed due to the plea

bargain, counsel should have either withdrawn from representing one or both of them

or acquired another waiver covering this specific conflict." Id.

Here, the district court found "that counsel's advice to [Plunk] to accept a plea

agreement to resolve both his cases and agree on a sentence was not because of his

representation of Ms. Devries, but was because of a legitimate concern that the

outcome could have been much worse had [Plunk] failed to plead." Plunk, 2011 WL

6963092, at *21. The court found that "negotiations [of a package plea deal] did not

adversely affect [Plunk's] defense." Id. On this record, we disagree. First, the plea

deal involved more than merely resolving "both [of Plunk's] cases." Id. Rather, it was

an attempt "to tie [Plunk and Devries's charges] all together and make a package deal

for both of them." Like in Thomas, "[a]t the moment [Bradford] made the plea offer,

[Plunk's] and [Devries's] interests became adverse to one another and counsel should

have advised them accordingly." 551 S.E.2d. at 256. Indeed, it is more likely that

Plunk suffered an adverse effect because the record does not indicate that Moon ever

advised Plunk of the potential for a conflict of interest from his dual representation.

"[A]s opposed to [creating] a mere theoretical division of loyalties," this conflict

actually "affected counsel's performance." Mickens, 535 U.S. at 171. In pursuing the

package deal, Moon was prevented "from exploring [other] possible plea

negotiations" that would have been more favorable to Plunk. Holloway, 435 U.S. at

490.

Moon might have pursued a plea deal to obtain the most favorable outcome for

Plunk before going to trial as an objectively reasonable defense strategy, but he did

not. See Noe, 601 F.3d at 790. Moreover, Moon's "failure to pursue that strategy

. . . waslinked to" the conflict of interest arising fromhis dual representation of Plunk

and Devries. See id. (quotation and citation omitted). Consequently, we find that the

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district court erred in concluding that Moon's dual representation was not a "conflict

of interest that adversely affect[ed] [Moon's] performance." See id.

We also agree with Plunk that the district court's consideration of

circumstancessurrounding the "plea agreements ultimately reached" after Plunk'strial

was immaterial to the question of whether Plunk was adversely affected by Moon's

conflict under the Cuyler analysis. Plunk, 2011 WL 6963092, at *21. The Supreme

Court has

spared the defendant the need of showing probable effect upon the

outcome, and ha[s] simply presumed such effect, where assistance of

counsel has been denied entirely or during a critical stage of the

proceeding. When that has occurred, the likelihood that the verdict is

unreliable is so high that a case-by-case inquiry is unnecessary. See

[United States v.] Cronic, [466 U.S. 648] at 658–659 [(1984)], 104 S.

Ct. 2039; see also Geders v. United States, 425 U.S. 80, 91, 96 S. Ct.

1330, 47 L. Ed. 2d 592 (1976); Gideon v. Wainwright, 372 U.S. 335,

344–345, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). But only in

"circumstances of that magnitude" do we forgo individual inquiry into

whether counsel'sinadequate performance undermined the reliability of

the verdict. Cronic, supra, at 659, n.26, 104 S. Ct. 2039.

[The Court has] held in several cases that "circumstances of that

magnitude" may also arise when the defendant's attorney actively

represented conflicting interests.

Mickens, 535 U.S. at 166; see also Wayne R. LaFave, Crim. Proc. § 11.9(d) ("[O]nce

a defendant shows that a conflict of interest actually affected the adequacy of his

representation, he is automatically entitled to relief; there is no need to establish that

the Sixth Amendment violation might have adversely affected the outcome of the

case." (quotations omitted)).

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In finding that there was no actual conflict of interest, 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). "We cannot discern from

this record . . . whether, in fact, such a waiver was made. We, therefore, direct the

district court to consider this issue at [an] evidentiary hearing" on remand." United 1

The record does contain some relevant testimony. For example, Robert Hall 1

is an inmate who assists other inmates with their legal work. Hall helped Plunk to file

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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.

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

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States v. Unger, 665 F.2d 251, 256 (8th Cir. 1981).

III. Conclusion

On this record, we conclude that the district court erred in finding that 2

"negotiations [of a package plea deal] did not adversely affect [Plunk's] defense."

Plunk, 2011 WL 6963092, at *21. Accordingly, we reverse and remand for further

proceedings consistent with this opinion, which shall include an evidentiary hearing

on the issue of waiver.

______________________________

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.

Because of the result we reach as to Plunk's conflict-of-interest argument, we 2

need not address his additional claims of ineffectiveness.

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