Randy Joseph MOORE, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent of OSP, Respondent-Appellee.
No. 04-15713.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 10, 2005. Filed July 28, 2008.
533 F.3d 1033
Hardy Myers, Attorney General for the State of Oregon, Mary H. Williams, Solicitor General (On the Briefs); Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals Unit, Salem, OR (Argued), for the Respondent-Appellee.
Before: STEPHEN REINHARDT, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.
Opinion by Judge REINHARDT; Concurrence by Judge BERZON; Dissent by Judge BYBEE.
REINHARDT, Circuit Judge:
Randy Moore‘s taped confession was obtained by the police at the station house by means that even the state concedes were unconstitutional. It does not contest on this appeal the district court‘s finding that Moore‘s confession was involuntary. As the Supreme Court has declared emphatically, “[a] confession is like no other evidence. Indeed, ‘the defendant‘s own confession is probably the most probative and damaging evidence that can be admitted against him.‘” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Inexplicably, Moore‘s lawyer failed to recognize that the confession to the police was inadmissible, even though it was unconstitutional for not one but two separate reasons.
Counsel‘s explanation for not filing the motion was, in his words, “two-fold.” First, he thought such a motion would not have succeeded because Moore was not in custody when he gave his confession and his confession was voluntary—both clearly erroneous conclusions: the confession was impermissibly extracted as the result of a promise of leniency made by the interrogating officers, and it was also obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as Moore had asked for counsel before making the confession but his request had been ignored. Second, Moore‘s lawyer erroneously thought that the taped confession was not prejudicial because Moore had told his brother and his half-brother‘s girlfriend about the crime. In both respects, Moore‘s lawyer exhibited a remarkable lack of familiarity with, or basic misunderstanding of, controlling principles of constitutional law. As a result of his ineptitude—and, as his affidavit makes crystal clear, not because of any strategic reasons—he failed to make a motion to suppress the unconstitutionally obtained confession. Having determined not to file the motion, counsel advised Moore that a plea to felony murder was “the best [they] could do under the circumstances,” and Moore pled no contest to that charge.
The state makes the same error as Moore‘s counsel. It urges that the failure to move to suppress Moore‘s taped confession to the police was not prejudicial because Moore had told two others about the crime, and only because he had done so. Unlike our highly imaginative and creative dissenting colleague, the state does not argue that it possessed other evidence, aside from the two other confessions, that rendered the failure to file the motion harmless. In fact, perhaps mindful of Fulminante‘s command that, in cases such as this, reviewing courts “exercise extreme caution” before determining that the failure to move to exclude unconstitutional confessions is harmless, 499 U.S. at 296, 111 S.Ct. 1246, the state does not challenge
In the end, there can be no serious doubt that Moore‘s counsel was ineffective and that Moore was deprived of his basic constitutional rights under the Sixth Amendment, as clearly established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The state court, following the same rationale advanced by the State and Moore‘s counsel, concluded that Moore‘s recorded confession to the police was non-prejudicial because of his prior statements to others, a conclusion that is contrary to the clearly established law of Fulminante. But for counsel‘s failure to move to suppress his involuntary confession, there is a reasonable probability that Moore would not have pled to the felony murder charge but would have instead insisted on going to trial, in which case, the state would undoubtedly have offered him a more favorable plea agreement. Counsel‘s performance fell below an objective standard of reasonableness. Because we hold that the state court‘s rejection of Moore‘s federal constitutional claim was contrary to Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, and constituted an objectively unreasonable application of Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, we reverse the district court and remand for issuance of the writ.1
I.
In December 1995, petitioner Randy Moore, his half-brother Lonnie Woolhiser, and his friend Roy Salyer were allegedly involved in the assault, kidnapping, and death of Kenneth Rogers. After arresting Salyer and booking him in the county jail, the investigating police officers asked Moore and Woolhiser to come to the police station for questioning. The two were separated and interviews were conducted by different police detectives. Moore provided a brief statement about stopping by Rogers‘s motor home, waiting while Woolhiser and Salyer went in to talk to Rogers, and then leaving with Woolhiser and Salyer. After making this statement, Moore was advised of and invoked his Miranda rights. Subsequently, as the district court
The police officers had good reason for directing Moore and Woolhiser to speak with Raymond. Raymond had a personal and working relationship with the investigating officers. Moreover, these officers had been involved in the investigation of a murder charge against Raymond that resulted from a separate killing. The charge was dropped when Raymond cooperated with the officers and explained that the killing was perpetrated in self-defense. Raymond testified later that because Moore and Woolhiser told him that Rogers‘s death was an accident, he believed that the police officers would do the same for his brother and half-brother as they had for him, if they cooperated in the same manner he had.
The next day, after speaking with Raymond, Moore and Woolhiser spent the morning unsuccessfully trying to obtain legal representation. When they called the police station at 1:10 p.m., the police promptly ordered them to return for further questioning: “they told us that if we were not there by 3:00 they would come get us—[] and our family would not like the way they did it and they—we knew what they meant.” In accordance with the police officers’ commands, Moore and Woolhiser returned to the police station that afternoon, without counsel. They were accompanied by Raymond, and also by Woolhiser‘s girlfriend, Debbie Ziegler.
When the four arrived at the police station, the investigating officers began another round of questioning. Moore interrupted at the very beginning of that questioning to request counsel: “You see ... until I, I have to be able to talk to somebody that‘s on my side, you know, for me, to be able to go tell nobody ... I don‘t trust my judgment right now.” When the police officers ignored Moore‘s request, Woolhiser reiterated by stating, “You know, we‘d just like to talk to somebody, you know.” Moore then stated that he wanted to, “[a]s quick as possible, talk to a lawyer,” which was followed by Raymond‘s confirmation of that request: “If there was some way we could maybe get an attorney in here for a consultation.” Eventually, in response, the police officers told Moore and Woolhiser that they were not entitled to counsel at that time unless they could afford it themselves. The police officers then promptly proceeded with the interrogation.
During the interrogation, the police officers told Moore and Woolhiser that they “would go to bat for [them] as long as [they] got the truth,” to which Moore responded: “See that‘s what I want to hear.” At this point, Raymond interrupted the questioning to vouch for the officers’ assurances, stating that “I know in my, this is for myself, saying, there was once an officer, and I said hey, look, I want out, I did something and been doing something. I want out of this, I want a chance. And this officer said, okay, Ray, I‘ll go to bat for you. And that officer‘s your captain.” Building on Raymond‘s account, one of the interrogating officers asked, “But he did go to bat for you[?],” to which Raymond responded, “That‘s exactly right.... I talked to him and he stood behind his word one hundred percent and he‘s probably one of the best friends I have in the world.”
After Raymond‘s comments, the interrogating officers emphasized that the police could be similarly helpful to Moore and Woolhiser if they confessed. Moore first hesitated, but then indicated that he would be willing to talk. At this point, one of the officers told Moore, “Okay, so that you know you‘re going to get a fair shake from
When the officer returned, he told Moore that he had spoken with the DA—“our Deputy DA actually“—and then proceeded to elicit Moore‘s confession. Before doing so, however, he extracted several statements from Moore regarding his custody status and the voluntariness of the confession he was about to give. In response to a series of questions, Moore agreed with the officers that he had voluntarily returned to the police station, that he was not in custody, that the police had offered nothing in exchange for his confession other than that they would make a “recommendation[]” to the District Attorney, and that he understood his right to counsel and was waiving it.2 In short, as one of the interrogating officers explained: “[t]he main thing is we want everybody on this recording to know that you guys are not in custody ... [a]nd this is not an in custody interrogation type of thing.”
In the recorded confession that he then made, Moore described how he, Salyer, and Woolhiser went to Rogers‘s home after Salyer informed the two that Rogers had stolen property from his cabin. Moore stated that Woolhiser confronted Rogers about the theft, assaulted him, and placed him in the trunk of a car. They then drove Rogers to a remote wooded area and began to walk him blindfolded up a hill. At some point during this walk, Woolhiser handed Moore a loaded gun. Moore explained that they had no intention of killing Rogers; they were simply going to frighten him by leaving him on top of the hill and forcing him to find his way back home. As the four climbed the hill, however, Rogers stumbled and fell back into Moore, causing the gun in his hands to discharge. As a result, Rogers died of an accidental gunshot wound to the head.
Following his confession, Moore was appointed counsel and charged with one count of felony murder with a firearm. He entered a plea of no contest, and was given a mandatory sentence of twenty-five years imprisonment, with five years to be served concurrently as a sentencing enhancement for the use of a firearm, in addition to a life term of post-prison supervision.3 Moore appealed his sentence to the Oregon Court of Appeals, which affirmed without opinion, and to the Oregon Supreme Court, which denied review. State v. Moore, 151 Or.App. 464, 951 P.2d 204 (1997), rev. denied, 326 Or. 507, 953 P.2d 395 (1998).
Moore also testified that he understood the officers’ statements to be an assurance that his crime would be charged as an accidental killing rather than felony murder. He stated that the officers “left me believing that the D.A. had agreed not to jab us down the road.... [W]hen the detective went and talked to the D.A. to make sure he wasn‘t going to jab me, I thought there was an agreement that they were going to charge me with accidental death and the D.A. had agreed to it because he didn‘t come back saying that he did not agree, and that‘s what he went there for.” Moreover, Moore explained that during the interrogation, he did not feel free to leave, in part because detectives had made it clear on the evening prior to the interview that Salyer had already been charged and that they were going to be booked that day.
After the evidentiary hearing, the state court filed an unpublished order denying Moore‘s post-conviction petition. With regard to the ineffective assistance of counsel claim, the state court first concluded that it was reasonable for counsel to believe that a motion to suppress would be without merit. In so finding, the state court relied on counsel‘s affidavit, which asserted that because Moore admitted on tape that he was not in custody and “never believed that he was in custody,” there was no merit to the claim that the police officers improperly denied him counsel in a custodial interrogation. The state court further found that the officers’ questions regarding custody would have constituted notice to a reasonable person that he was free to leave and was not being held in custody. As a result, the state court found that there “was no basis for filing a motion to suppress.” It did not mention the involuntariness claim.
Relying solely on the affidavit of Moore‘s trial counsel, the state court further reasoned that even if a motion to suppress had been filed and granted, it would have been “fruitless” because Moore “had previously confessed his participation in the crime to his brother (Raymond Moore) and another friend [Debbie Ziegler].” From this, the state court concluded that Moore suffered no prejudice because “[b]oth Raymond Moore and [Ziegler] could have been called as witnesses to repeat petitioner‘s confession.” It made no findings as to what Moore had told Raymond or Ziegler about the crime or as to the specific facts to which they might have been able to testify. Specifically, the state court did not determine whether Moore simply confessed to the two laymen that he had killed the victim accidentally, or whether his informal confession covered all of the elements required to prove a felony murder. The state court found only that Moore had “confessed” to them. Based on the above, the state court held that counsel‘s failure to file a motion to suppress his taped confession did not constitute ineffective assistance of counsel. The Oregon Court of Appeals affirmed without opinion and the
In December 2001, Moore petitioned the United States District Court for the District of Oregon for a writ of habeas corpus. He raised, inter alia, the ineffective assistance of counsel claim that was denied in the state courts. Adopting the magistrate judge‘s findings and recommendation, the district court found that the state court was not unreasonable in concluding that Moore was not in custody at the time of his request for counsel, but that he had “confessed to Rogers’ murder based on [a] false promise” of leniency, which “rendered [his] confession involuntary.” Nevertheless, the court concluded that “counsel‘s failure to seek suppression did not necessarily fall below an objective standard of reasonableness” because of Moore‘s prior confessions to Raymond Moore and Debbie Ziegler and the potential adverse testimony of Salyer.4 On that basis, the district court ultimately held that the post-conviction court‘s conclusion that there had not been a constitutional violation was “neither contrary to, nor an unreasonable application of, Strickland v. Washington.”
This appeal followed. Because the state does not contest the district court‘s finding that Moore‘s confession was involuntary, and because we conclude that the state court unreasonably erred with respect to its finding of “no prejudice,” we reverse. We hold that the state court‘s adjudication of Moore‘s claim “resulted in a decision that ... involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States,”
II.
This court reviews de novo the district court‘s decision to deny a petition for a writ of habeas corpus. See DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir.2001). Factual findings relevant to the district court‘s decision to grant or deny
A state court‘s decision is “‘contrary to’ federal law if it fails to apply the correct controlling Supreme Court authority or comes to a different conclusion ... [from] a case involving materially indistinguishable facts.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002) (citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). A state court‘s decision is an “unreasonable application” of Supreme Court law if “the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case.” Bell, 535 U.S. at 694. The Supreme Court has held that “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court‘s application of clearly established federal law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
The substantive federal law guiding our inquiry is supplied by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which is “clearly established Federal law” under AEDPA. Williams, 529 U.S. at 391. To prevail on a claim of ineffective assis
III.
We address Strickland‘s performance prong first. In Part III.A, we consider whether Moore‘s attorney rendered deficient performance in failing to file a motion to dismiss Moore‘s confession. Moore‘s counsel provided two reasons why he did not file such a motion: first, he believed that a motion would not be meritorious, and second, he believed that even if a
A. Deficient Performance
The Supreme Court has clearly established that “a single, serious error may support a claim of ineffective assistance of counsel” including counsel‘s failure to file a motion to suppress. Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In applying the deficient performance prong of Strickland to cases in which the alleged ineffective assistance consists of counsel‘s failure to file such a motion, the Court has stated that the underlying claim—the claim purportedly requiring suppression—must be “meritorious.” Id. at 375, 382; see also Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir.2003) (same). However, “the failure to file a[meritorious] suppression motion does not constitute per se ineffective assistance of counsel.” Kimmelman, 477 U.S. at 384; see also id. at 382 (“Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim [involving counsel‘s failure to file a motion to suppress], a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief.“). Rather, to satisfy Strickland‘s performance prong, the habeas petitioner must show that his counsel‘s failure to file the meritorious motion to suppress “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Where, as here, the state asserts that filing a motion to suppress, even if meritorious, would have served no useful purpose because other evidence in its possession would establish the same facts, our inquiry with respect to deficient performance substantially overlaps with our inquiry regarding prejudice.7
In his affidavit, Moore‘s trial counsel stated two reasons and two reasons only for his decision not to file a motion to suppress (or, as counsel put it, his reasons for not filing a motion were “two-fold“): First, counsel believed that such a motion “would be unavailing“—i.e., not meritori
1. The state has conceded that a motion to suppress Moore‘s confession on involuntariness grounds would have been meritorious.
Moore urges two grounds on which a motion to suppress his confession would have been meritorious: first, that his confession was procured during a custodial interrogation, after Moore had invoked his right to counsel, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378; and second, that his confession was involuntary, having been extracted as the result of a promise of leniency
Having determined that a motion to suppress Moore‘s confession, had it been filed, would have been meritorious, we must now consider whether counsel‘s failure to file such a suppression motion was objectively unreasonable. We conclude that it was.
Counsel‘s only explanation for not filing a motion to suppress, aside from his erroneous conclusion that such a motion lacked merit, was that he believed that suppressing Moore‘s taped confession to the police would be futile because Moore had also confessed to his brother and half-brother‘s girlfriend, and that “either one of [them] could have been called as a witness.” Counsel‘s explanation is essentially an argument about prejudice: he did not file a motion to suppress, he asserts, because doing so would have made no difference in light of Moore‘s confession to his brother and to Ziegler. For reasons we explain in the prejudice section of this opinion, infra Part III.B, we reject counsel‘s determination that suppressing Moore‘s formal, taped confession to the police was purposeless because of the two informal confessions. We note, moreover, that any reasonable counsel would have realized that invalidating Moore‘s formal, tape-recorded confession would have placed him in a far better position to negotiate a reasonable plea and obtain a lesser sentence than he would be in if the state knows it can introduce at trial the damning unconstitutional confession made to the police.
Counsel‘s decision not to file a motion to suppress was doubly erroneous: he both failed to recognize the clear merit of that motion on two grounds and failed, notwithstanding the clear teaching of Fulminante, to assess properly the damaging nature of the tape-recorded formal confession. Thus, because we squarely reject both reasons Moore‘s counsel offered to explain his decision not to file a motion to suppress, and because the confession unconstitutionally obtained by the police was so critical to the prosecution and so damaging to Moore, we hold that counsel‘s failure to file a motion to suppress the confession “fell below an objective standard of reasonableness” and, accordingly, constituted deficient performance. The state court‘s opposite conclusion was contrary to Fulminante and constituted an unreasonable application of Strickland.
The dissent argues that counsel‘s performance was not deficient because “[e]ven assuming the involuntariness of Moore‘s confession, counsel gave a detailed explanation why pursuing the plea was in Moore‘s strategic interest.” Dis. op. at 1179. Whatever “strategic inter
All the “strategic interests” the dissent says counsel might have relied on—namely, counsel‘s calculations regarding the charges Moore likely would have faced had he foregone the plea and his probability of success at trial—were factors counsel set forth in a wholly unrelated portion of his affidavit, calculations that related to a wholly different question. These “strategic interests” were offered by counsel not in explanation of his failure to file the motion to suppress, but solely in justification of his advice to Moore to enter into the plea bargain. Given counsel‘s specific explanation for his decision not to file a motion to suppress, that decision necessarily preceded and ultimately played a part in counsel‘s calculations regarding the plea offer. Those calculations were influenced by his decision on the motion, and are only as good as that decision.13
In quoting at length the remainder of Moore‘s counsel‘s affidavit—the passages that are unrelated to counsel‘s failure to file the suppression motion—the dissent attempts to obfuscate the issue by equating counsel‘s failure to file the motion with his advice to accept the proposed plea agreement. See dis. op. at 1177 (discussing the “strong and obvious strategic reasons to take the plea and forego the suppression motion“); dis. op. at 1177 (“[C]ounsel‘s advice to forego the motion and take the plea was based on numerous considerations other than these two factors.“); dis. op. at 1178 (discussing the “obvious strategic reasons ... that counsel had to advise Moore to take the plea“). As counsel‘s affidavit makes plain, however, while the decision not to file the motion to suppress influenced counsel‘s separate advice to take the plea, the two decisions were distinct and the former was not influenced by the latter.15 But see dis. op. at
1178. The dissent‘s attempt to elide these issues and obfuscate counsel‘s reasons for failing to file a critical motion is directly contrary to what counsel himself stated under oath. So that no reader will be misled as to exactly what counsel‘s reasons were—and were not—for failing to file a motion to suppress, we attach as Appendix B to the opinion a full and complete copy of counsel‘s affidavit.
Even if the objective of not impairing plea negotiations might have been a reasonable strategy supporting some other counsel‘s decision not to file a motion to suppress in some other case, it was simply not a reason that influenced Moore‘s counsel or that his counsel considered as a basis for his decision.16 Nor has the state
Where the issue is whether counsel‘s performance was ineffective, we must decide that question based on what counsel‘s reasons for his decisions actually were, not on the basis of what reasons he could have had for those decisions. Thus, just as we may not second-guess a lawyer‘s reasonable tactical or strategic decisions, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, we may not deem unreasonable actions to have been “the result of reasonable professional judgment,” id. at 690, 104 S.Ct. 2052, by grounding them in considerations that were not, in fact, the lawyer‘s reasons for acting or failing to act. See Kimmelman, 477 U.S. at 385, 106 S.Ct. 2574 (“The trial record in this case clearly reveals that Morrison‘s attorney failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the State‘s intention to introduce the bedsheet into evidence.“); Tomlin v. Myers, 30 F.3d 1235, 1239 (9th Cir.1994) (rejecting counsel‘s justification for his failure to move to suppress unconstitutional lineup identification evidence—that he did not believe it would be excluded—where counsel “did not indicate that that was the basis on which he chose not to object“). Here, as in Kimmelman and Tomlin, the record makes clear that counsel failed to file a motion to suppress not for strategic reasons but because of his ineffective performance of his duties. As counsel himself explained, his failure to file a motion was based solely on his assessment of the motion‘s likelihood of success and his judgment that failing to suppress Moore‘s formal, taped confession to the police would be harmless in light of the two informal confessions that Moore allegedly had made to laymen. Because that assessment was grossly erroneous and clearly “fell below an objective standard of reasonableness,” we hold that Moore‘s counsel‘s performance was constitutionally deficient under Strickland.
B. Prejudice
It has long been clear that Strickland‘s prejudice prong requires no more than a “show[ing] that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; id. (holding that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome“). In Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court confirmed that Strickland‘s prejudice standard applies in the plea context; it held that prejudice in that context turns on “whether counsel‘s constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59, 106 S.Ct. 366. “In other words,” the Court wrote, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
We are confronted here with a very clear and specific argument by the state as to why the failure of Moore‘s counsel to move to suppress the taped confession Moore made while in custody in the police station was not prejudicial. The argument is not, as our dissenting colleague wishes it were, that the police had so much evidence against Moore that Moore‘s formal confession was unlikely to affect the result. Had that been the state‘s contention, we would have had very different briefs, very different oral argu
The state court found, as a matter of fact, that because Moore “had previously confessed his participation in the crime to his brother ... and another friend,” both of these individuals “could have been called as witnesses to repeat petitioner‘s confession.” It then concluded, as a matter of law, that because “[b]oth Raymond Moore and the friend could have been called as witnesses to repeat petitioner‘s confession ... [a] motion to suppress,” even if successful, “would have been fruitless.”18 Assessing the state court‘s decision under AEDPA, we conclude that its prejudice determination constituted “an unreasonable application of[] clearly established Federal law” under
Even granting the factual assumption underlying the state court‘s prejudice determination—i.e., that Raymond and Ziegler would have testified to a version of Moore‘s informal confession—its determination that counsel‘s failure to suppress the formal taped confession was not prejudicial because Moore had previously told
In Fulminante, the defendant confessed, while in prison, to a paid informant who offered protection from “tough treatment” in exchange for the confession; he also confessed to the informant‘s wife following his release from prison. 499 U.S. at 283-84, 111 S.Ct. 1246 (internal quotation marks omitted). Fulminante claimed that the confession to the informant was coerced and that its admission at trial violated his rights under the Fifth and Fourteenth Amendments. Id. at 284, 111 S.Ct. 1246. The state supreme court, not unlike the state court here, found that the admission of the defendant‘s coerced confession was harmless because an “admissible second confession ... rendered the first confession ... cumulative.” Id. at 296, 111 S.Ct. 1246. The Supreme Court unequivocally rejected this argument. The Court held that because “the two confessions reinforced and corroborated each other ... one confession was not merely cumulative of the other,” id. at 299, 111 S.Ct. 1246, and therefore concluded that the error was not harmless, id. at 297, 111 S.Ct. 1246. Fulminante stands for the proposition that the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial.20
Here, too, the formal confession to the police would reinforce and corroborate the informal confessions. But, here, the prejudice is far greater than with the type of confessions involved in Fulminante. Unlike in Fulminante, the unconstitutional
It is likely that, without the benefit of Moore‘s formal, tape-recorded confession to the police officers, the state would not have been able to secure a plea on the basis of the informal confessions. Even assuming that the prosecution was confident that Raymond or Ziegler would have testified at a trial, it is far from clear what those witnesses would have said or to what extent their testimony would have been persuasive to a jury, although it is certain that their second-hand reports would not have been nearly as damaging as Moore‘s own taped confession. Critically, the state court made no findings as to the contents of what Moore had told Raymond or Ziegler or what details they might have been able to recount at trial. Thus, the record falls far short of establishing that the potential testimony of Raymond and Ziegler would have been sufficient to cause Moore to accept so harsh a plea agreement—especially because Raymond would likely have been a hostile witness and there is little evidence that Ziegler could have contributed anything.24 Accordingly, exercis
The dissent criticizes our application of Fulminante, arguing that it actually “supports the exact opposite conclusion” from our holding. Dis. op. at 1185. Specifically, the dissent contends that Fulminante‘s description of the weight of confessions applies to Moore‘s informal confessions to Raymond and Ziegler as well and that, consequently, Fulminante supports the conclusion that Moore‘s formal, taped confession was not prejudicial because the two lay confessions also carried unique weight. Id. In advancing this argument, the dissent entirely misses the point of Fulminante. In that case, the Supreme Court held that the admission of the coerced confession was prejudicial notwithstanding the availability of another confession to a lay witness. Under the dissent‘s logic, the other confession Fulminante made to a lay witness would have rendered his coerced confession non-prejudicial, and his case would have come out the opposite way: his conviction would have been affirmed, not reversed. But that, of course, was not the outcome of Fulminante.
Indeed, our application of Fulminante is fully consistent with this court‘s recent en banc decision in Anderson v. Terhune, 516 F.3d 781 (9th Cir.2008) (en banc), an
As in Anderson, Moore‘s formal, taped confession was central to the state‘s ability to secure a plea. The count to which Moore pled carried an extremely harsh mandatory minimum sentence as a result of the recent passage of a state ballot measure. There is at least a reasonable probability that, had his confession to the police been suppressed, Moore would have insisted on going to trial rather than pleading to the offense to which he did, an offense that carried with it so severe a mandatory sentence.25 In light of these considerations, we have no difficulty concluding that Moore has established Strickland prejudice.26
* * *
Our task on habeas is to examine the state court‘s decision under the standards established by
To reach the opposite conclusion, the dissent once again develops its own set of facts and its own arguments—arguments that were never conceived of by the state nor suggested before the state court, the district court, or this court, a set of facts and arguments to which the petitioner has never had an opportunity to respond. The case now presented on the state‘s behalf for the first time has been created in its entirety by our extremely able, talented, and experienced colleague; it is based on the testimony of witnesses and evidence never mentioned or relied upon by the state in its arguments regarding prejudice. Further, the dissent creates and relies upon testimony that it assumes inevitably would have supported the state‘s case, without any evidence in the record as to the substance or availability of such testimony, or, even more important, its admissibility.
No court in this case has undertaken the formidable factual inquiry necessary to determine the admissibility—and in some instances, substance—of the evidence upon which the dissent relies. The record discloses little about how and when most of this evidence became known to the state, making it impossible for us to determine whether that evidence is, as seems likely, a “fruit of the poisonous tree“—a product of Moore‘s confession. To make this determination would require us to find a multitude of facts for the first time on appeal, a function that we are neither equipped nor permitted to perform. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (observing that a federal appellate court “lack[s] the factfinding and record-developing capabilities of a federal district court“).
Even apart from concerns about inappropriate appellate factfinding, we simply decline to base our decision on arguments and theories that the state has never offered, and which it has therefore forfeited. It would work great prejudice to the petitioner were we to affirm the denial of his habeas petition on the basis of such speculative arguments and assertions offered for the first time by a member of this court—arguments and assertions to which Moore has had no occasion, opportunity, or reason to respond. Without any indication from the state as to what evidence it may have possessed and why that evidence may have rendered counsel‘s failure to suppress the confession harmless, it is simply impossible for a petitioner to respond to the state‘s “evidence” or “arguments.”
Our prior decisions disapprove of such practice. Indeed, under our precedent, the state has doubly forfeited the fact-bound alternative theories of prejudice that our dissenting colleague creates and advances on its behalf. Not only did the state forfeit any such contentions by not raising them on appeal, but it first forfeited these theories in federal court by failing to raise them in the district court. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.“); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.1996) (“The decision to consider an issue not raised
In this case, the state‘s failure to raise below the argument that counsel‘s failure to move to suppress the taped confession was harmless for reasons other than the existence of the two informal confessions precludes us from considering that argument on this appeal. Moore has had no opportunity to introduce evidence on the crucial question of which parts of the case the dissent now creates for the state are based on “fruits of the poisonous tree.” Nor has he had any opportunity to challenge any contention the state might advance that such evidence was obtained independent of any connection with the confession, or to examine any prosecution witness who might testify to that effect. Finally, as some of the evidence is not even in the record, he has not had the opportunity to challenge the dissent‘s assertion that such evidence actually exists.
The state forfeited these arguments a second time by failing to raise them before this court. In Stuard v. Stewart, 401 F.3d 1064 (9th Cir.2005), we squarely rejected the notion that this court could create arguments for the state that it did not raise on appeal. See id. at 1067 (holding in an
The state court‘s failure to recognize that Moore‘s confession was obtained unlawfully, along with its and the state‘s exclusive reliance on the other “confessions” to establish prejudice, resulted in the court‘s not making any determination as to whether all, or what parts of, the evidence on which the dissent now relies was obtained as a result of the unlawful confession and was thus inadmissible in evidence. See Appendix A, infra, at 1155-56. Nor, for similar reasons, as we have noted, did the district court undertake any such inquiry. Although it seems likely that the evidence on which the dissent relies (to the extent that it exists at all) was principally obtained as a result of
CONCLUSION
Moore‘s counsel inexplicably failed to file a motion to suppress—a motion that could easily have been based on either of two grounds, each of which was meritorious and each of which would in all likelihood have resulted in the suppression of his confession and its fruits. The state does not contest the finding that Moore would have prevailed on one of them—that his confession was involuntary. The reasons offered by counsel for his conduct were both limited and unmeritorious (and bear no resemblance to the reasons suggested by the dissent). His inexcusable failure to move to exclude the confession afforded the state the opportunity to prosecute Moore on the basis of the most damaging inculpatory evidence that can be introduced against a defendant, and thereby to exact a no-contest plea to the egregious offense of felony murder with a mandatory twenty-five-year sentence. We conclude that Moore was prejudiced by his counsel‘s failure to file the suppression motion and that, because counsel‘s performance fell below an objective standard of reasonableness, he received ineffective assistance of counsel under Strickland. A contrary ruling would necessarily constitute an unreasonable application of clearly established Supreme Court law. Neither Fulminante nor Strickland is susceptible of an objectively reasonable interpretation, even though erroneous, that would support a determination that counsel‘s performance in this case was competent or that Moore suffered no prejudice as a result of his representation.
Ignoring Moore‘s request, the state court failed to consider whether the confession was involuntary on the ground that his will was overborne by improper promises of leniency. The district court found, however, that Moore‘s confession was made involuntarily. Because the state does not challenge that determination on appeal, it has conceded that a motion to suppress on involuntariness grounds would have been meritorious. Despite the merit of such a motion, Moore‘s counsel failed to move to suppress what was “probably the most probative and damaging evidence that [could] be admitted against him,” Fulminante, 499 U.S. at 296, 111 S.Ct. 1246 (quoting Bruton, 391 U.S. at 139, 88 S.Ct. 1620 (White, J., dissenting)). He did not fail to make the motion for any strategic reasons but simply because he understood
The state court held that Moore was not prejudiced by his counsel‘s conduct because informal confessions to two lay witnesses could have been introduced. In doing so, the state court erred unreasonably. Its determination that the taped confession was harmless was contrary to clearly established Supreme Court law as set forth in Fulminante.
It is likely that, but for counsel‘s failure to file a suppression motion, Moore would have not entered into the plea agreement that required him to plead no contest to a felony murder charge with a mandatory twenty-five-year sentence. As a result, our confidence in the outcome is undermined. Accordingly, Moore is entitled to a writ of habeas corpus directing the state to permit him to withdraw his plea or to release him from custody.28 Accordingly, we reverse the district court and remand for the issuance of the writ.
REVERSED AND REMANDED.
APPENDIX A
In this Appendix we will discuss the facts and theories that our dissenting colleague has created and advanced on behalf of the state—facts and theories not relied on by the state court, not suggested by the state in the district court, and not argued to this court by either party—facts and theories advanced for the first time by an appellate judge, in contravention of all the rules of appellate procedure. Here, we will explain why, even had the state not forfeited the alternative theories of prejudice the dissent creates for it, we would reject them on the merits.
With respect to Moore‘s co-defendant, Salyer, although the district court believed that he “apparently provided detectives with the details of the crime when he took them to the location where the shooting occurred,” there is no evidence in the record as to what information he conveyed to them. Salyer never gave a sworn statement, never testified, and was never cross-examined. There is simply no way of knowing precisely what Salyer‘s testimony might have been, especially under the stress of cross examination. More important, as we explained in footnote 4 of the opinion, it is almost certain that Salyer would not have testified against Moore in any event but would have taken the Fifth Amendment instead, as he too was facing trial for his involvement in Rogers‘s death.29 In fact, Salyer was ultimately
The dissent argues that the state‘s felony murder case was “airtight” even without Moore‘s confession to the police, his alleged confession to Raymond and Ziegler, and the testimony of his co-defendants. Dis. op. at 1181, 1182-83. This is simply not so. This dissent goes on at length about all of the damning facts that are “undisputed” or “indisputable” in this case. Many of these “undisputed” facts, however, appear to be drawn by the dissent from the factual basis the state offered at Moore‘s plea colloquy and sentencing. See, e.g., dis. op. at 1182 (“[T]he car‘s license plates had been covered over with duct tape.“). These facts, of course, became “undisputed” only after Moore had decided to plead no contest. The fact that Moore did not object to factual assertions made by the state‘s attorney at his plea colloquy, after he had decided not to contest the charges (because doing so not only would have served no purpose but would also have been hopeless with his formal confession in the record), does not mean that, without Moore‘s illegal confession and its fruits, the state would have been able to prove the assertions beyond a reasonable doubt at trial.
More important, nearly all of the evidence the dissent discusses would have been inadmissible at trial because it derived either directly or indirectly from Moore and Woolhiser‘s involuntary confessions. In particular, the authorities learned about the existence and identities of the witnesses at Woolhiser and Ziegler‘s residence—who, the dissent insinuates, could have been called to testify to Salyer‘s “ranting and raving” and the trio‘s plan to scare Rogers—as a result of the illegal confessions. It is also from the confessions that the police learned about the “multiple witnesses” who allegedly saw Moore, Salyer, and Woolhiser arrive at and later return to Rogers‘s residence.30 Dis. op. at 1182-83. The police found the gun, too, because Woolhiser agreed during the unlawful interrogation to show the police “exactly” where it was located. And while the record contains no explanation regarding how the police located the car, which contained additional physical evidence, in California, it seems highly likely that they did so using information supplied by the defendants after they had “let the cat out of the bag” by giving their involuntary confessions.
Had Moore‘s counsel filed a motion to suppress on the ground the state concedes is meritorious, and had that motion succeeded, which is highly probable, all of this evidence would likely have been excluded as “fruits of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The fruits of involuntary confessions—including those that are extracted with promises of leniency—may not be admitted at trial. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (“We hold that ... immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination.... Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords [the protection required by the Fifth Amendment]. It prohibits prosecu
Nor would Woolhiser‘s confession—which was obtained during the same coercive interrogation as Moore‘s—or its fruits be admissible against Moore. See Douglas v. Woodford, 316 F.3d 1079, 1092 (9th Cir.2003) (“[I]llegally obtained confessions may be less reliable than voluntary ones, and thus using a coerced confession at another‘s trial can violate due process.” (citing Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.1997) (“[A] person may challenge the government‘s use against him or her of a coerced confession given by another person.“))); see also Clanton, 129 F.3d at 1158 (collecting similar cases from the First, Fifth, Sixth, and Seventh Circuits). Furthermore, there is no evidence in the record, nor any assertion by the prosecution, that the physical and eye-witness evidence on which the dissent relies was obtained through a source independent from the illegal confessions or that the connection between the confessions and the evidence was “so attenuated as to dissipate the taint.” See Wong Sun, 371 U.S. at 487, 83 S.Ct. 407 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)) (internal quotation mark omitted).31
The dissent‘s suggestion that much of the evidence on which it relies to construct the state‘s hypothetical and “airtight” case was based “solely on statements made by Moore, the admissibility of which has never been questioned” is unsupported by the record. See dis. op. at 1182 n. 12. The statement by Moore to which the dissent alludes, which he made to the police the evening before his confession, does not contain nearly as much information as the dissent makes out. Moore stated only that Salyer “was talking about going and confronting [Rogers] about the break in at the cabin and he also wanted to talk to [Rogers] about the boom box and who took it.” He said nothing about “ranting and raving,” nothing about “scar[ing] [Rogers] out of ever committing another [robbery],” and nothing about the existence or number of witnesses who observed the defendants planning their visit to Rogers. Moore further stated that, upon arriving at Rogers‘s motor home, “some guy” confronted Woolhiser, but Woolhiser “walk[ed] away” and “over towards to [sic] motor home.” According to Moore‘s statement, Salyer “was talking to [Rogers] about the stolen stuff and the punctured tires.... [T]hey only stayed at the motor home for approximately 15-20 minutes or just enough time to drink two beers.” At no point did Moore discuss covering the car‘s license plates with duct tape, nor did he mention “other people,” beyond the one person who confronted Woolhiser, being present at Rogers‘s home. Certainly he said nothing about kidnapping Rogers, beating him, putting him in the trunk, or shooting him. In fact, he denied doing so.
The evidentiary problems that a successful suppression motion would have created for the state are therefore quite severe. Establishing that critical evidence was discovered independently of the confessions would have presented serious if not insurmountable problems. For purposes of this
Without the fruits of Moore and Woolhiser‘s confessions, the prosecution would have had tremendous difficulty meeting the high burden it faced. In view of the weaknesses in the state‘s case, it is highly unlikely that, in the absence of his own recorded confession, Moore would have pled to felony murder. We thus cannot have any confidence that the outcome would have been the same had counsel filed a motion to suppress.
APPENDIX B
1
2
3
4 IN THE CIRCUIT COURT OF THE STATE OF OREGON
5 FOR THE COUNTY OF MARION
6 RANDY JOSEPH MOORE, Case No. 98C-15019
7 Petitioner,
8 v. AFFIDAVIT OF KIM L. JORDAN
9 MITCH MORROW, Superintendent, Oregon State Penitentiary,
10 Defendant.
11
12 STATE OF OREGON )
13 County of Josephine ) ss.
14 I, Kim L. Jordan, being first duly sworn on oath, depose and say:
15 1. I am an attorney licensed to practice law in the State of Oregon, and in that capacity I
16 represented Randy Joseph Moore in State of Oregon v. Randy Joseph Moore, Josephine County
17 Circuit Court Case No. 96CR-0118. I make this affidavit in response to petitioner‘s claim of
18 inadequate assistance of trial counsel.
19 2. I did not fail to review petitioner‘s statement to the police. I read it many times and
20 discussed it at length and in detail with Mr. Moore. He affirmed to me that it was true, and that it
21 was accurate.
22 3. I did not file a Motion to Suppress. My reasons for doing this were two-fold. First of
23 all, petitioner‘s interview with the police, which was taped and transcribed, a copy of the
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2 custody. He never believed that he was in custody and admitted to me that he realized he was
3 not in custody when he and his brothers and another friend voluntarily came to the police
4 department to give the recorded statement. The law as I understood it then and now is
5 exemplified by State ex rel Juv. Dept. v. Loredo, 125 Or App 390 (1993), and State v. Smith, 310 Or 1 (1990).
6 4. In addition, however, Mr. Moore had previously given a full confession to his brother
7 Raymond Moore and to a woman named Debbie Ziegler. Mr. Moore and I discussed the
8 possibility of filing a Motion to Suppress and concluded that it would be unavailing, because in
9 the first place, he knew he was not in custody at the time he gave the recorded interview and that
10 the statement was voluntary, and in the second place, he had previously made a full confession to
11 his brother and to Ms. Ziegler, either one of whom could have been called as a witness at any
12 time to repeat his confession in full detail.
13 5. Mr. Moore‘s older brother Raymond was an active church member and I investigated
14 his church status to determine whether, under the rules of the church to which he belonged, he
15 had the right to hear confessions and could therefore claim some privilege. Raymond Moore did
16 not hold a position in his church that allowed him to hear confessions and therefore, in my
17 opinion, no priest-penitent privilege applied to anything Randy Moore had previously told to his
18 brother in their pre-police interview conversation.
19 6. I believe that I reviewed every aspect of the law and the facts regarding this case. I
20 discussed the case at length with Mr. Moore and reviewed the extensive police reports, some of
21 which are attached to this affidavit. I do not recollect any material statement of fact in the police
22 report with which Mr. Moore disagreed. Mr. Moore always claimed his actual shooting of the
23 victim was an accident, but there was never the smallest doubt that it occurred during a kidnap
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2 at length the fact that he had not yet been indicted for any conduct and that it was possible that
3 when an indictment came down from the grand jury, it could be for any charge up to and
4 including aggravated murder. However, I made it very clear to Mr. Moore that he was not
5 charged with aggravated murder and that in fact, the grand jury had not yet considered his case,
6 so that the options were fully open for the district attorney to seek whatever charge or charges
7 the district attorney thought might be justified.
8 7. At no time did I ever tell Mr. Moore that he could receive the death penalty if
9 convicted “although petitioner was not charged with aggravated murder.” I discussed at great
10 length with Mr. Moore the definitions of “aggravated murder,” “murder,” and “felony murder.”
11 I did tell Mr. Moore that if he were charged with aggravated murder and if the jury decided that
12 murder had been committed under
13 maiming or torture,” that it was not impossible that he might be convicted of aggravated murder
14 if he were ever in fact charged with aggravated murder. At no time did I ever tell Mr. Moore that
15 he was charged with aggravated murder, or that I thought he would be charged with aggravated
16 murder. We simply discussed all possibilities.
17 8. The victim in this case had been assaulted, bloodied, bound with duct tape, placed in
18 the trunk of a car, taken to an isolated rural location, marched into the woods while still bound,
19 and shot. Furthermore, the victim had an extremely large protruding abdominal hernia for which
20 he always wore a truss. I discussed with Mr. Moore the possibility that if he were ever charged
21 with aggravated murder that the jury might, after taking into account all of the facts of the case,
22 conceivably find that he had engaged in “torture” of a helpless and somewhat disabled victim. I
23 did not ever tell Mr. Moore that I thought that this was going to be what he was charged with or
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2 to him this was a possibility, however remote. I would still consider it malpractice not to have
3 brought it to his attention, or to have attempted to assure him that this would not or could not
4 happen to him.
5 9. Attached to this affidavit is a copy of the plea petition signed by Mr. Moore in
6 connection with his plea to the final single charge of felony murder. On the face of the plea
7 petition, it states that he is to receive “life parole” and on the addendum to the plea petition it
8 clearly notes that “Measure 11” and
9 Mr. Moore and he clearly understood that “Measure 11” had been codified by the legislature and
10 that
11 10. I simply never told Mr. Moore that he would retain 5th Amendment rights against self-
12 incrimination by entering a plea of no contest. We discussed the possibility of him being called
13 as a witness to testify against a third codefendant, Roy Salyer, because his plea would waive any
14 right he might have against his plea would waive any right he might have against self-
15 incrimination. Mr. Moore was willing to testify against Mr. Salyer if called as a witness.
16 Mr. Moore understood perfectly that by entering a plea of no contest he waived any rights he
17 might have against future self-incrimination and understood that he could be compelled as a
18 witness against the codefendant if the State served him a subpoena to compel his testimony.
19 11. I did not inform Mr. Moore that he could be sentenced under
20 not sentenced under
21 under
22 which shows on its face that he was sentenced under Measure 11,
23
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2 Judgment Order except to make it clear that Mr. Moore was not eligible for any kind of
3 diminishment of sentence under any law whatsoever. If this created some kind of a
4 constitutional issue by virtue of the Court entering what I believe to be empty surplus verbiage
5 on the Sentence Order, then questionably, I did miss it.
6 12. I never did advise Mr. Moore that if he did not take the plea offer his brother Lonnie
7 Wollheiser would also be charged with felony murder. Scott Titzler, the Deputy District
8 Attorney in charge of the case made it absolutely clear that although he was making a settlement
9 offer to Mr. Moore and his brother at the same time, and that while Mr. Moore was to be charged
10 with murder, and his brother was to be charged with lesser offenses, the two plea offers were not
11 contingent upon one another, but were based upon Mr. Titzler‘s independent evaluation of the
12 respective cases.
13 13. It was clear, I believe, in everybody‘s mind, that Mr. Moore denied any premeditated
14 intent to kill the victim, but that it was an accidental killing in the course of an assault and
15 kidnapping. Under the facts it was quite clear that Mr. Moore‘s brother was less physically
16 involved in the actual killing than was Mr. Moore. Mr. Moore was actually holding the gun
17 which fired the fatal shot. Scott Titzler made it perfectly clear to me and I made it perfectly clear
18 to Mr. Moore that the offer made to him was separate from and unconnected with the other offer
19 made to his brother. Mr. Moore was, throughout our association, probably more concerned
20 about his brother than about himself. Mr. Moore believed that he was guilty of murder under the
21 felony murder rule, although he felt that it was very unfortunate and lamentable that he was
22 guilty since he always maintained that the actual firing of the shot was an accident rather than a
23 premeditated act. Mr. Moore felt very strongly that his younger brother, Lonnie Wollheiser, was
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2 to his brother.
3 14 Mr. Moore and I discussed at great length whether it was in his best interest to try to
4 press the case to early resolution or to waive all time constraints for speedy trial and immediate
5 indictment in an attempt to secure the best possible resolution of the case. Mr. Moore was fully
6 aware of his right to speedy trial, and of his right to speedy presentment to a grand jury by
7 requesting a preliminary hearing. After full discussion with me, he voluntarily waived those
8 rights.
9 15 The allegation that there is a defect in the charge because the information was filed in
10 District Court rather than in Circuit Court is simply a misunderstanding on Mr. Moore‘s part of
11 the procedural path that felony criminal charges took through the justice system at that time. All
12 felony informations were filed in District Court at that time, and the only way to bring a felony
13 matter to resolution in Circuit Court was by waiving presentment, by requesting a preliminary
14 hearing or by insisting on a grand jury indictment. There is no constitutional defect either in the
15 delay or in the court in the venue in which the charges were initially presented.
16 16 I never coerced Mr. Moore into doing anything. I have been practicing law since 1967
17 and have always served exclusively as defense counsel. The negotiated plea which we entered
18 into with the district attorney did not include any charges of Measure 11 assault or Measure 11
19 kidnapping. I thought that it was the best we could do under the circumstances and I told
20 Mr. Moore this. I also made it very clear every time it came up, that the decision of whether to
21 take or to reject a plea offer was entirely Mr. Moore‘s responsibility.
22 17 I informed Mr. Moore that I frankly believed if we went to trial he would be found
23 guilty of assault, kidnapping, and murder (as was his codefendant, Roy Salyer, who chose trial as
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2 thought the result would be of the various choices he had before him. I explained to Mr. Moore
3 that if he chose not to accept the offer which the State had made to him, I expected that the
4 district attorney would charge him with assault in the first degree, kidnapping, and murder, and
5 would go to trial on those charges. At no time during our association did I ever tell Mr. Moore
6 what he should do. I only explained to Mr. Moore as carefully as I could what I thought the
7 result would be of his actions if he chose one option or another.
8 18. As I have discussed above in connection with paragraph (d)(E), I did not object to
9 “the sentencing court‘s imposition of sentence under
10 sentenced under that statute. I did not believe that he had been sentenced under that statute. I
11 am confident the judge did not believe he had been sentenced under that statute, and I am
12 confident the district attorney did not believe he had been sentenced under that statute.
13 Furthermore, Mr. Moore did not believe he had been sentenced under that statute.
14 19. From my thorough discussions with Mr. Moore, I know that he believed that he was
15 being sentenced under “Measure 11” and its statutory codification,
16 understood that under the terms of “Measure 11” and
17 early release, no halfway houses no reduction in sentence under any statute and that he could
18 expect to serve all of the 300 months to which he understood he would be sentenced. We
19 discussed at length his current age and how old he would be at the end of 25 years. We
20
21
22
23
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2 no illusions as to the law he under which he was being sentenced or as to the terms of the
3 sentence he was going to be required to serve.
4
5
6
7 [Signature]
Kim L. Jordan
Attorney at Law
8
9 SUBSCRIBED AND SWORN to before me this 26th day of February, 1999.
10
11
12 [Seal] [Signature]
Notary Public for Oregon
My Commission Expires:
13
14
15
16
17
18
19
20
21
22
23
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BERZON, Circuit Judge, concurring:
I concur in Judge Reinhardt‘s result and almost all of his opinion.
The pivotal questions are simply whether the Oregon state court was unreasonable in its determination that Moore did not (1) receive deficient representation of counsel that (2) prejudiced his case. Because the state has, by forfeiture, acknowledged that Moore‘s confession was involuntary for the purposes of this appeal, I see no reason to reach that issue de novo. I therefore do not concur in footnote ten of the majority opinion, which does so. Except for any references to footnote ten‘s voluntariness holding elsewhere in the text, I concur fully in the remainder of the opinion.
In particular, I concur in Judge Reinhardt‘s discussion of why Moore‘s counsel‘s failure to move to suppress his confession prejudiced Moore, in that I believe, to the extent that Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), pro-vides the proper prejudice standard here, Moore has fulfilled it for the reasons which Judge Reinhardt supplies. I write separately, however, to note that I believe that Moore could also demonstrate prejudice more directly under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Under Kimmelman and Strickland, the state court could have found prejudice if it were reasonably probable that the failure to file a meritorious motion led to an increase in jail time for Moore—through, for instance, a loss of plea bargain leverage.
While Judge Reinhardt uses Kimmelman to address Strickland‘s ineffectiveness prong, both he and Judge Bybee depart from the straightforward prejudice inquiry of Strickland‘s prejudice prong, as used in Kimmelman, instead applying the standard used in Hill. On examination however, Hill deals with the narrow set of cases within the larger plea context in which counsel advised the defendant to take a plea (which may have been poorly-negotiated or ill-informed) rather than go to trial, and the defendant challenges this advice (rather than, for instance, pre-trial motions that bore on the plea process) as ineffective assistance of counsel. To show prejudice under Hill, the defendant must allege that he would have gone to trial save for the counsel‘s bad advice. As Hill does not speak to the context of ineffective assistance with regard to pre-trial motions and how they may affect whether a particular plea offered is accepted, its prejudice standard need not be met here, even if it is available as an alternative means of showing prejudice. Put differently, Hill provides that, once motions practice and discovery have set the legal landscape, prejudice can be judged without showing a different ultimate outcome for the defendant, if counsel‘s advice to take a particular path through that landscape, pleading guilty, was badly wrong. Strickland and Kimmelman, instead, deal with counsel‘s failure to create a proper legal landscape—by, for instance in this case, failing to file a plainly meritorious suppression motion. Below, I discuss the Kimmelman/Strickland prejudice standard in more detail, explain why the Hill standard is not necessary to the disposition here, and conclude that Moore was prejudiced under either standard.
I. Analysis
a. Strickland and Kimmelman
Under Strickland, Moore “must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added). This prejudice standard is a generic one, and ordinarily governs ineffective assistance of counsel cases. See, e.g., Wilson v. Henry, 185 F.3d 986, 988 (9th Cir.1999) (relying on Strickland to state the standard for a
First, Moore need only show a “reasonable possibility” of a different outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Wilson, 185 F.3d at 988.
Second, applying Strickland, the Supreme Court has established that “any amount of actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). Glover held that “if an increased prison term did flow from an error the petitioner has established Strickland prejudice.”1 Id. at 200, 121
Accordingly, if Moore can show a “reasonable probability” that absent his counsel‘s ineffective performance he would have obtained a verdict leading to less time in prison, then, applying Strickland and Glover, he has satisfied the prejudice prong of the ineffective assistance of counsel test.
Kimmelman makes clear that the usual Strickland analysis applies in the context of a lawyer‘s incompetent failure to file a timely suppression motion. Kimmelman, 477 U.S. at 383-91, 106 S.Ct. 2574. Specifically, Kimmelman stated that to show prejudice in the suppression motion context, the defendant must demonstrate “that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Id. at 375, 106 S.Ct. 2574. We have read Kimmelman as establishing that “[t]o show prejudice under Strickland from failure to file a motion, [the defendant] must show that had the motion been granted, it is reasonable that there would have been an outcome more favorable to him.” Wilson, 185 F.3d at 990.
In Kimmelman, of course, the question was whether the defendant would have received a different verdict at trial had the evidence been suppressed. Absent a meritorious motion, the evident answer to that query is no. But Kimmelman does not restrict its outcome-oriented, Strickland-based, prejudice standard to the full trial context, and no reason appears why it should be so limited. In this case, as the course of Moore‘s pretrial proceedings and trial remained open, the parallel question is whether the filing of his meritorious suppression motion would have affected the plea bargain negotiations, with the “reasonable probability” that the outcome of those negotiations would have been more favorable to Moore.
Moreover, Kimmelman directly answers the dissent‘s primary objection to my analysis, that Hill rests on a line of cases that limit a habeas petitioner‘s authority to challenge, on constitutional or any other grounds, errors that preceded a guilty plea, provided that the guilty plea itself was entered with the advice of counsel who was not constitutionally ineffective. Hill, 474 U.S. at 56-59, 106 S.Ct. 366; see also dis. op. at 1190-91. The cases upon which the dissent relies and which Hill cites—principally, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973)—did not deal with circumstances in which the asserted pre-plea constitutional violation was ineffective assistance of counsel with regard to pre-trial practice, as opposed to constitutional violations by the court or the prosecution. As to the latter variety of pre-plea constitutional violation, we assume that the petitioner had effective assistance of counsel in determining whether or not to challenge those violations in a timely manner, and so consider any such challenge waived as part of the guilty plea. Kimmelman explains that where that is not the case—where the very counsel who is advising the criminal defendant is constitutionally ineffective in set
In other words, where there is ineffective counsel who continues to advise the defendant past the point at which it would ordinarily be proper to make a constitutional challenge, the usual rules regarding the timing of such a challenge—in Kimmelman, the rule that Fourth Amendment challenges must be made at trial or on direct appeal, not during collateral challenges, see Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); here, the rule that any pretrial challenges to potential evidence must be made before pleading guilty (or preserved for later challenge in a conditional guilty plea)—cannot apply, because the premises upon which they rest are absent. “The Sixth Amendment mandates that the state bear the risk of constitutionally deficient assistance of counsel,” not a defendant who cannot forward his rights because of counsel‘s incompetence. Kimmelman, 477 U.S. at 379, 106 S.Ct. 2574.
Thus, under Strickland and Kimmelman, to show prejudice, Moore could demonstrate that the plea bargain outcome would have been improved upon by filing the meritorious suppression motion that was not filed because of ineffective assistance of counsel.
b. Strickland and Hill
Rather than apply this basic Strickland analysis through the lens of Kimmelman, Judges Reinhardt and Bybee both rely on language in Hill: “[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 106 S.Ct. 366. Judge Bybee insists that Strickland‘s standard provides the exclusive analysis for all ineffective assistance cases involving a plea. Judge Reinhardt assumes that Hill is the appropriate standard and makes a convincing case that Moore would have gone to trial but for his counsel‘s failure to file the suppression motion, thereby meeting that standard.
On the analysis I propose, however, there is no need to focus on whether the Hill standard is met. Essentially our problem is deciding whether it is only the Hill prejudice standard, which deals with some varieties of plea bargain ineffective assistance cases, or also the Kimmelman standard, which deals with the impact of the failure to file meritorious motions, that controls here. Neither case is directly on point on its facts, as Hill was a different kind of plea bargain case, while Kimmelman involved a trial. But the Kimmelman/Strickland standard is the generally applicable one, and therefore applies in the first instance here, even assuming that Hill provides an available alternative route. Cf. Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 1671, 167 L.Ed.2d 585 (2007) (holding that a state court decision is “contrary to,” or an “unreasonable application of,” clearly-established law if it “ignore[s] the fundamental
principles established by [the Supreme Court‘s] most relevant precedents“).
What is critical in considering whether Kimmelman applies is that Hill varies the generally applicable prejudice standard where there is a guilty plea, to permit application of Strickland even where there is no indication that, by choosing trial, the petitioner would have avoided conviction or lessened his sentence. Hill indicates that Moore can prevail if he simply proves that he would have gone to trial had his confession been suppressed. But nothing in Hill precludes a petitioner who pleaded guilty from meeting the ordinary Strickland standard.
This commonsense conclusion is confirmed by Hill. Hill governs cases in which defendants face a binary choice between pleading guilty and going to trial, and concludes, in essence, that in that situation, the defendant need not meet the usual Strickland prejudice standard by showing that he would have been better off in terms of outcome had he gone to trial. See 474 U.S. at 59-60, 106 S.Ct. 366. But Hill does not suggest that this analysis need be the only one governing all plea bargain cases. Instead, Hill created an additional means to claim ineffective assistance of counsel, even when the alleged ineffective assistance might not have affected the ultimate adjudication of guilt or the sentence. It applies when the facts create such a binary choice, and the asserted prejudice is simply in foregoing a trial, regardless of the probable outcome of a trial.
The Supreme Court‘s discussion of Hill in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), reinforces this understanding. That case involved counsel‘s failure to file a notice of appeal, thereby forfeiting an entire proceeding just as the ill-advised defendant in Hill forfeited trial. Again, the two choices were between appealing and not appealing, so prejudice could only be evaluated on those terms. Furthermore, nowhere does Roe state that Hill limited Strickland, but only that the special prejudice rule of Hill could be applied to a case involving the decision to appeal. Roe, in fact, articulated the very difference between Hill-type cases—that is, advice cases—and cases such as this one. The Court stated in Roe that “[i]n most cases, a defendant‘s claim of ineffective assistance of counsel involves counsel‘s performance during the course of a legal proceeding, either at trial or on appeal.” Id. at 481, 120 S.Ct. 1029. In contrast, Roe, like Hill, was “unusual in that counsel‘s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Id. at 483, 120 S.Ct. 1029.
The present case, however, is not binary like Hill and Roe. Refusing to plead no contest to the murder charge before filing a motion to suppress his confession would not necessarily have set Moore on a course for trial. Rather, it would have set him on a course for preliminary motions (on suppression motions for evidence flowing from the confession and, perhaps other pretrial claims) and, then, for further plea negotiations once the motions were resolved. Thus, if Moore could show a reasonable probability that he would have obtained a better plea bargain had his attorney moved to suppress his confession, as I demonstrate below that he can, he would not need the assistance of the special prejudice rule in Hill. Instead, if he can meet the ordinary Kimmelman/Strickland prejudice standard, that is sufficient under my approach.
Put a bit differently, the prejudice standard Hill sets out for the binary choice circumstance is a narrow statement of the general standard set out by Strickland and Kimmelman. The prejudice inquiry for
The case law does not in any way preclude this limited understanding of Hill. I am aware of no case—and Judge Bybee cites none—that addresses why Kimmelman and Strickland do not apply in circumstances like those we consider today. Many plea cases address the Hill situation, and so apply the Hill standard directly, having no reason to address Kimmelman and Strickland. Some other cases, it is true, assume (as Judge Reinhardt does today) that Hill also applies in the motions context when a plea bargain is involved, as well as in the advice context, but these cases do not provide support for using Hill as the exclusive standard in such circumstances. See Maj. op. at 1142 n. 14 (discussing such cases). That we have sometimes assumed that Hill applies in the motions context does not justify abandoning the usual Kimmelman/Strickland approach in that context.2
Hill was not initially designed for the present circumstances, and I can see no reason why the petitioner in a case such as this one cannot at least choose to meet the regular Kimmelman/Strickland prejudice standard.
c. Prejudice and Prosecutors
The dissent argues that the approach I describe would “place[] federal courts in the role of instructing state prosecutors... how to conduct plea negotiations,” implicating federalism concerns. See Dis. op. at 1192. It also contends that inquiring into whether competent defense counsel could have improved the defendant‘s leverage to seek a better plea bargain runs against the general wisdom that courts are ill suited to “review... prosecutorial decisions,” thereby raising separation of pow-
I agree with the dissent that “[p]rosecutorial... decisions are particularly ill-suited for broad judicial oversight.” Dis. op. at 1170 (quoting United States v. Redondo-Lemos, 955 F.2d 1296, 1299-1300 (9th Cir. 1992), overruled on other grounds, United States v. Armstrong, 48 F.3d 1508, 1515 n. 5 (9th Cir. 1995) (en banc)). Prosecutorial discretion is, indeed, broad, although not unfettered. See Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). So, if Judge Bybee were correct that my approach would give federal courts the right to dictate plea bargains and charging decisions, I would share his concerns.
But nothing in the Kimmelman/Strickland approach implicates such matters. The question is not what a prosecutor should have charged, nor what a “fair” plea bargain should have been. Rather, the question is whether, but for counsel‘s ineffective assistance, a defendant would have been in a better position to negotiate with the prosecutor. It, therefore, concerns the defendant‘s and defense counsel‘s choices, defense counsel‘s judgment, and defense counsel‘s actions, not, in the first instance, that of the prosecutor. That this assessment requires some consideration of the defense counsel‘s position with regard to the prosecutor‘s case is inherent in any prejudice inquiry, whether under Hill or the more general framework of Kimmelman and Strickland, and does not convert asking the question into an assault on prosecutorial discretion.
I acknowledge that, as the dissent points out, the Kimmelman/Strickland analysis of the defendant‘s plea bargain leverage is “counterfactual,” will be conducted “in most cases, years after the decision to offer the challenged plea bargain,” and may be difficult. Dis. op. at 1170. Unlike Judge Bybee, however, I do not think that asking courts to consider these matters poses an “impossible question.”3 See id. First, the prejudice inquiry is always counter-factual—we are asking, after all, whether there “is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052—and generally occurs years after the fact if it has reached an appellate court. So, that objection is not uniquely directed at the plea bargain inquiry I suggest, but is instead a critique of the prejudice inquiry generally.
Further, while the plea bargain process is complex, so is trial. To answer the prejudice question in the trial context, one must consider the weight of the present evidence, the views of the jury, the choices of the defense and, yes, the prosecutor. Yet courts, undaunted, do so. See, e.g., Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1943-44, 167 L.Ed.2d 836 (2007) (considering whether a capital defendant was prejudiced by his counsel‘s failure to introduce mitigation evidence); Williams v. Taylor, 529 U.S. 362, 396-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (concluding that a defendant was prejudiced by counsel‘s failure to investigate his background, which would have resulted in additional mitigation evidence); Lopez v. Schriro, 491 F.3d 1029, 1044 (9th Cir. 2007) (holding that defense counsel‘s failure to object to medical evidence did not prejudice the defendant). I cannot say that assessing, for instance, whether a jury would have ruled differently on a death
Nor, for that matter, is inquiring into a defendant‘s plea bargaining leverage self-evidently harder than determining whether “there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. There, too, we must inquire into the strength of the defendant‘s case and the sentence the prosecutor likely would have sought (albeit at trial, rather than as part of a plea bargain). That inquiry, again, is not particularly easier than the plea bargain leverage question.
My point, in sum, is this: Leaving aside the entirely out-of-place constitutional problems that the dissent raises, the objection that the prejudice inquiry outlined here is “counter-factual,” and may sometimes be difficult to apply, does not distinguish this prejudice inquiry from other sorts that we regularly carry out. It is not, in my view, a sufficient reason to abandon it.
d. Application
As I agree with Judge Reinhardt that Moore‘s counsel was ineffective because he failed to file a meritorious suppression motion, and had no good reason not to do so, all that remains to determine is whether this failure prejudiced Moore. Judge Reinhardt ably explains why Moore meets Hill‘s standard for prejudice and I, assuming Hill is the proper standard, concur in his application of it. Moore also meets the Kimmelman/Strickland standard which I believe also applies, essentially for the same reasons that Judge Reinhardt explains in the context of Hill. Just as suppressing the confession would have substantially strengthened Moore‘s case at trial, and so would have substantially influenced Moore‘s decision to go to trial rather than take the particular plea offered, so too—and even more obviously, given the risk-assessment nature of plea-bargaining—would it have improved his leverage to negotiate a plea bargain with reduced jail time. There is therefore a “reasonable probability” that Moore has suffered prejudice as to the actual sentence imposed, and it was unreasonable of the state court not to find prejudice here.
II. Conclusion
For the reasons given by Judge Reinhardt as well as for the reasons set forth in this concurrence, I conclude that the state court unreasonably failed to determine that counsel‘s failure to file a meritorious suppression motion constituted deficient performance, and that such deficient representation prejudiced Moore. Accordingly, I agree with Judge Reinhardt that we should grant Moore‘s petition for habeas corpus.
BYBEE, Circuit Judge, dissenting:
Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed him in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers—accidentally, he said—through the temple. Moore confessed to his older brother, Raymond, and his step-brother‘s girlfriend, Debbie Ziegler, what he had done. He then talked to police, corroborating the evidence the police had already obtained. Before Moore could be indicted, he negotiated a plea bargain under which Moore obtained the lowest sentence available under Oregon law for felony murder. Moore‘s counsel, an experienced defense
Not so, says the majority: Moore‘s attorney offered constitutionally deficient advice because he advised Moore to accept the plea offer before he moved to suppress Moore‘s confession to the police. The majority reasons that Moore would have prevailed on a motion to suppress, and, knowing the state was without his confession, Moore would not have pled guilty to felony murder or would have held out for a better deal. The majority dismisses counsel‘s explanation that there was no reason to go to trial in any event because the state had a second confession—Moore‘s confession to Raymond and Ziegler—by ignoring the state and the district court‘s findings and entering its own findings: The majority finds that “it is far from clear what those witnesses would have said,” and wonders “to what extent their testimony would have been persuasive to a jury.” Maj. Op. at 1148. Furthermore, the majority concludes, Raymond was “a hostile witness, [so] it is unlikely that [the state] would have been able to elicit much of the information it desired from him.” Id. at 1148-49 n. 24.
The majority not only entered its own findings of fact, it found its own law as well. In this AEDPA-governed case, the majority holds that the Oregon state court‘s decision was “contrary” to the statement in Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quotation marks and citation omitted) that “a confession is like no other evidence” and is “the most probative and damaging evidence that can be admitted against [a defendant].” See Maj. Op. at 1130, 1131-32, 1136-37, 1140, 1145-47, 1146-48, 1149-50, 1152-54. The majority‘s reliance on Fulminante is twice remarkable: First, Moore does not even cite Fulminante, nor was it cited by the district court, the state court, or any other party. Second, the majority‘s repeated insistence that “a confession is like no other evidence” is its own undoing. Counsel negotiated a plea because he knew what the majority cannot bring itself to admit: Moore had confessed to two other people before he confessed to the police, and their confessions were plainly admissible and independently damaging.
In the process of second-guessing counsel, the Oregon courts, and the district court, the majority clearly establishes a dramatic proposition: After Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Arizona v. Fulminante, when a motion to suppress a confession is potentially “meritorious,” counsel‘s failure to file the motion constitutes deficient and prejudicial conduct because of the possibility that filing the motion “would have placed [Moore] in a far better position to negotiate a reasonable plea.” Maj. Op. at 1140. The majority‘s principle applies regardless of how many witnesses a defendant has confessed to, how many co-defendants are available to testify against the defendant, or any other evidence available in the record. See Maj. Op. at 1144-52. Indeed, the majority concludes that even though “Moore had confessed to Raymond and Ziegler, who could have been called as witnesses,” the state court‘s conclusion that Moore suffered no prejudice “is wholly lacking in merit” and was objectively unreasonable under Fulminante. Maj. Op. at 1150-51. According to the majority, if counsel has any grounds for moving to suppress a confession, the
I have referred deliberately to “the majority clearly establish[ing]” this proposition, because no court—not ours, and certainly not the U.S. Supreme Court—has previously done so. In fact, we might have thought the contrary proposition was clearly established in McMann v. Richardson: “In our view a defendant‘s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant‘s confession.” 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). It is not only evident that the majority has clearly established its proposition, but that its proposition has been clearly established by the majority. The majority‘s efforts to do so contravene our statutory function under
For the reasons I explain below, I would affirm the judgment of the district court denying the writ. I respectfully dissent.
I. WHETHER COUNSEL‘S CONDUCT WAS DEFICIENT
On AEDPA review, we may only issue a writ of habeas corpus when the state court unreasonably applies “clearly established Federal law, as determined by the Supreme Court of the United States.”
The majority finds that counsel was deficient on two grounds: Moore‘s statement to the police should have been suppressed, first, because it was involuntary and, second, because it was obtained in violation of Miranda. Oddly, the district court‘s finding that Moore‘s confession was involuntary is not challenged by the state on appeal, and I agree with the majority that the question of voluntariness therefore is not properly before us. See Maj. Op. at 1138-39. I note that, were the issue preserved, a persuasive argument could be made that the confession was in fact given voluntarily. However, since the state—inexplicably—has not pressed this issue on
Even conceding that the state has failed to challenge the involuntariness finding, I cannot concede that counsel‘s failure to move to suppress necessarily constitutes deficient conduct. It cannot be, as the majority today holds, that because counsel could have filed such a motion, he must have filed the motion. This proposition runs directly counter to clearly established Supreme Court precedent, namely McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The Court in McMann considered
those situations involving the counseled defendant who allegedly would put the State to its proof... except for a prior confession that might be offered against him.... At least the probability of the State‘s being permitted to use the confession as evidence is sufficient to convince him that the State‘s case is too strong to contest and that a plea of guilty is the most advantageous course.
Id. at 767-69, 90 S.Ct. 1441. Of these situations, the Court had this to say:
[A defendant‘s] later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised... his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.... In our view a defendant‘s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant‘s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel‘s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.
Id. 769, 770-71, 90 S.Ct. 1441 (second and third emphasis added).
McMann is on all fours with Moore‘s claim.4 Moore asserts that his trial coun-
I did not fail to review [Moore‘s] statement to the police. I read it many times and discussed it at length and in detail with Mr. Moore. He affirmed to me that it was true, and that it was accurate.
I did not file a Motion to Suppress. My reasons for doing this were two-fold. First of all, [Moore‘s] interview with the police, which was taped and transcribed... makes it abundantly clear that Mr. Moore was not in custody. He never believed that he was in custody and admitted to me that he realized he was not in custody when he and his brothers and another friend voluntarily came to the police department to give the recorded statement....
[I]n the second place, he had previously made a full confession to his brother [Raymond] and to Ms. [Debbie] Ziegler, either one of whom could have been called as a witness at any time to repeat his confession in full detail....
Counsel explained to Moore, as any competent counsel would, that there was a possibility that the state might charge Moore with aggravated murder because
[t]he victim in this case had been assaulted, bloodied, bound with duct tape, placed in the trunk of a car, taken to an isolated rural location, marched into the woods while still bound, and shot. Furthermore, the victim had an extremely large protruding abdominal hernia for which he always wore a truss. I discussed with Mr. Moore the possibility that if he were ever charged with aggravated murder that the jury might, after taking into account all of the facts of the case, conceivably find that he had engaged in “torture” of a helpless and somewhat disabled victim.
For this and other reasons, counsel feared severe consequences if his client went to trial:
Mr. Moore always claimed his actual shooting of the victim was an accident, but there was never the smallest doubt that it occurred during a kidnap[sic] which began with an assault. We discussed at length the felony murder rule. We also discussed at length the fact that he had not yet been indicted for any conduct and that it was possible that when an indictment came down from the grand jury, it could be for any charge up to... aggravated murder....
I discussed at great length with Mr. Moore the definitions of “aggravated murder,” “murder,” and “felony murder.” I did tell Mr. Moore that if he were charged with aggravated murder and if the jury decided that murder had been committed under [
OR. REV. STAT. § ]163.095(e) , in the course of or as a result of intentional maiming or torture, that it was not impossible that he might be convicted of aggravated murder....I frankly believed if we went to trial he would be found guilty of assault, kidnapping, and murder (as was his codefendant, Roy Salyer, who chose trial as an option),5 but I did not presume to tell Mr. Moore what he should do. I only told him what I thought the result would be of the various choices he had before him. I explained to Mr. Moore that if he chose not to accept the offer which the State had made to him, I expected that the district attorney would charge him with assault in the first degree, kidnapping, and murder,6 and would go to trial on those charges. At no time during our association did I ever tell Mr. Moore what he should do. I only explained to Mr. Moore as carefully as I could what I thought the result would be of his actions if he chose one option or another.
A conviction of aggravated murder, of course, would have subjected Moore to the possibility of the death penalty or life imprisonment without the possibility of parole. See
Given the strength of the evidence facing Moore, it is not surprising to learn that counsel and Moore decided to “attempt to secure the best possible resolution of the case” or that counsel, who had nearly three decades of criminal defense experience, thought the plea “was the best we could do under the circumstances.”
These strong and obvious strategic reasons to take the plea and forego the suppression motion are protected under Strickland, see 466 U.S. at 681, 104 S.Ct. 2052 (“[S]trategic choices must be respected in these circumstances if they are based on professional judgment.“), especially because Moore was so obviously seeking “to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed.” McMann, 397 U.S. at 767-68 (emphasis added). The majority‘s opinion sweeps all of these factors away. Had the majority been advising Moore at the time, they might have come to a different conclusion. But even accepting the majority‘s morning-after conclusion that counsel “misjudged the admissibility of the defendant‘s confession,” McMann, 397 U.S. at 770, Moore is not entitled to habeas relief. See id. at 770-71, 90 S.Ct. 1441.
The majority limits its consideration of counsel‘s explanation to a mere two paragraphs of the trial counsel‘s affidavit and refuses to consider many of the reasons that trial counsel gave for pursuing the plea bargain instead of going forward with a trial preparation strategy. The majority erroneously believes that trial counsel offered only two reasons to justify his advice to Moore: (1) because he concluded Moore was not in custody at the time of the confession and (2) because Moore had given a full confession to two other people. See Maj. Op. at 1130, 1137, 1138, 1140-41 & n. 12. The majority summarily concludes that there is no evidence that Moore wanted to press the case to early resolution and, therefore, trial counsel could not have made a reasoned strategic choice to not file the suppression motion so as “not... to upend plea negotiations.” Weaver v. Palmateer, 455 F.3d 958, 972 (9th Cir. 2006); see Maj. Op. at 1140-41.
The extensive portions of the affidavit already quoted make clear that counsel‘s advice to forego the motion and take the plea was based on numerous considerations other than these two factors. But see Maj. Op. at 1141-43. And other portions of the affidavit demonstrate that plea negotiations were front and center in both Moore‘s and trial counsel‘s mind. Trial counsel reported that Moore indicated his willingness to testify against a co-defendant, which is surely the type of consideration defense counsel weighs during plea negotiations. Two entire paragraphs of the affidavit, paragraphs 13 and 14, discuss how Moore was more worried about the plea agreement that was offered to his brother, Lonnie Woolheiser, than he was about his own plea agreement.7 Another entire paragraph establishes that trial counsel “discussed at great length whether it was in [Moore‘s] best interest to try to press the case to early resolution.” (emphasis added). The majority‘s assertion that “there is no suggestion, let alone any evidence, that Moore expressed a desire to plead guilty and avoid trial, or to forego the filing of his meritorious suppression motion, prior to counsel‘s decision not to file [a suppression] motion,” Maj. Op. at 1143 n. 16, ignores the reality of the record evidence.8
This kind of meticulous, informed representation, provided by an attorney who had decades of criminal defense experience, does not “show that counsel‘s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; McMann, 397 U.S. at 767-71. More importantly for purposes of this appeal, the state court‘s decision that it did not constitute deficient representation was not an unreasonable application of clearly established federal law as determined by the holdings of the Supreme Court.
The majority‘s attempt to parse counsel‘s advice on whether to take the plea into two distinct decisions—first, whether to file a motion to suppress the confession, and second, whether to accept the offered plea bargain—reflects an almost willful ignorance of the record evidence and the realities of criminal defense representation. See Maj. Op. at 1140-44. As counsel‘s declaration makes clear, see Maj. Op. App. B, the decision not to file the suppression motion and the decision to take the plea necessarily informed each other. In fact, trial counsel‘s affidavit demonstrates that the two decisions—whether to file a motion to suppress and how to advise Moore on the plea—were made contemporaneously. Moore was never indicted, but he pled no contest to an information negotiated as part of the plea. Counsel simply could not have moved to suppress a confession at any time before the plea, unless the majority means to find counsel ineffective for not threatening to file such a motion in the plea negotiations.
The net effect of the majority‘s approach is pernicious: Instead of deciding whether counsel‘s conduct fell below an objective standard of reasonableness, the majority asks whether the motion had merit and collapses the entire first step of Strickland into the question of prejudice. See Maj. Op. at 1138 (“[O]ur inquiry with respect to deficient performance substantially overlaps with our inquiry regarding prejudice.“). In doing so, it largely ignores the obvious strategic reasons detailed in counsel‘s affidavit that counsel had to advise Moore to take the plea, and the dispositive question becomes whether the motion to suppress had merit. Paired with the majority‘s unprecedented reading of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), see Maj. Op. at 1146 (”Fulminante stands for the proposition that the admission of an additional confession ordinarily... is therefore prejudicial.“), which I address in detail infra, the implication is that if the motion had merit, then counsel was obligated to bring it, irrespective of any other considerations or strategy. It forces defense counsel to file any motions to suppress a confession that a panel of federal judges later might determine to be meritorious, lest the court of appeals find that counsel “failed to recognize the clear merit of that motion” or “to assess properly the damaging nature of the tape-recorded formal confession.” Maj. Op. at 1140.
The majority‘s application of the Strickland standard does not accord with the realities of defending a criminal defendant. Defense counsel must balance competing factors when selecting a defense strategy: for example, the likelihood of success on the motion to suppress, the likelihood of prevailing at trial given the other available evidence, the deal that the state is offering, the potential penalties that a defendant can avoid by taking an offered deal, and, of course, the defendant‘s own wishes. Strickland gave “wide latitude” to counsel to avoid unhelpful judicial nosiness in plea negotiations:
No particular set of detailed rules for counsel‘s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.
Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. A requirement that defense counsel file any potentially meritorious pre-trial motions or risk being found incompetent on collateral review will skew plea negotiations where the considerations promoting negotiation include whether the defendant will file a motion to suppress. If, in response to the majority‘s new rule, counsel must file all motions, defense counsel loses a bargaining chip and will almost certainly face a much less cooperative prosecutor. And if defense counsel loses the motion to suppress, counsel will be in a much weaker bargaining position when he returns to the negotiation table. In those cases, the post-motion deal will nearly always be worse than the pre-motion deal.9
The majority would leapfrog over all of those considerations—if the motion to suppress had merit, then counsel must bring it (even if counsel does not think it will serve the client‘s best interests). Strickland and its progeny simply do not allow this new presumption of deficient conduct whenever a potentially “meritorious” suppression motion might have been filed—least of all in habeas proceedings governed by AEDPA.
In short, I cannot agree with the majority that counsel‘s thorough representation constituted deficient performance. Even assuming the involuntariness of Moore‘s confession, counsel gave a detailed explanation why pursuing the plea was in Moore‘s strategic interest. We can second-guess counsel‘s decisions, but we have no basis for concluding that those decisions were constitutionally deficient, let alone that clearly established Federal law, as announced by the Supreme Court, compels such a finding.
II. WHETHER COUNSEL‘S CONDUCT PREJUDICED MOORE
Even if Moore‘s counsel was ineffective, Moore is only entitled to habeas relief if he can demonstrate that he has suffered prejudice as a result. Unlike the majority, however, I do not believe that Moore has demonstrated prejudice. To demonstrate prejudice under Strickland, a petitioner must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court applied Strickland‘s prejudice requirement “[i]n the context of guilty pleas” and held that the relevant question is “whether counsel‘s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 58-59, 106 S.Ct. 366.
A. The Evidence Against Moore
A straightforward application of the Hill standard demonstrates that Moore cannot establish that he has suffered any prejudice.10 This conclusion flows from two simple facts: First, the state could have called Raymond and Ziegler to testify that Moore confessed his role in the kidnapping and slaying of Kenneth Rogers. We do not need to fret much about what Raymond Moore would have testified had he been called at trial, as the majority does, see Maj. Op. at 1134-35; id. at 1146-47 (suggesting Raymond and Ziegler “would undoubtedly be reluctant to do unnecessary harm to [Moore‘s] case“); id. at 1148 (“[I]t is far from clear what[Raymond and Ziegler] would have said or to what extent their testimony would have been persuasive to a jury....“); id. at 1148 (“Critically, the state court made no findings as to the contents of what Moore had told Raymond or Ziegler or what details they might have been able to recount at trial.“), because the record contains Raymond‘s testimony at the state court post-conviction evidentiary hearing. In it, Raymond confirms that, before he took his brothers to the police station where their confessions were recorded, Moore confessed to him the details of what happened. Here is how Raymond described it, under oath, to the state court:
[W]hen [Roy Salyer] got back from Texas and discovered [that Rogers had burglarized Salyer‘s home, Salyer] showed up over at Lonnie [Woolhiser‘s] house where Randy [Moore] was that morning and... there was a couple cases of beer and started drinking and basically, to my understanding... instigated them into going up and, as they put it, spanking their other friend because friends do not rob friends. And in the process of this, I guess, to make an example and put some scare into Mr. Rogers so he did not do this thing again, they had blindfolded him to duct taped him and put him in the trunk of the car and took him out to a place that‘s a little remote, not a lot. The gentleman was a large size guy and didn‘t walk much and stuff. And their intent was to leave him there and make him walk home, you know, after he freed himself. This here, of course, is the kidnapping that‘s involved in this case because they took him somewhere against his will.... [D]uring this period of time, Lonnie who is a little rowdier—he‘s a good boy but he‘s just a little rowdy. He‘ll fight at the drop of a hat. He had in his possession a .22 magnum pistol in which Mr. Rogers had given to him previously—given or traded, I‘m not sure which. And Randy, while they were pushing Mr. Rogers up the hill, kind of muddy, it‘s during the winter and we have a lot of red mud down there, Randy had taken the revolver from Lonnie and at the time he had taken it, Mr. Rogers had slipped backwards on the mud and the gun discharged. I‘m not sure of all the exact details because this is basically hearsay. It‘s what was stated in court and it‘s what they had basically told me after the incident, too, before I took them in, or on the way in.
(emphasis added). The majority thus is disingenuous in stating that “[t]he state court found only that Moore had ‘confessed’ to” Raymond and Ziegler but did not make specific findings concerning the content of that confession, Maj. Op. at 1134, particularly because trial counsel‘s affidavit—which the state court credited—stated that Moore had made a “full confession to his brother and to Ms. Ziegler.” The record clearly showed that Raymond, at least, knew what happened because Moore told him about the details. With this testimony, the state court reasonably concluded that any failure on the part of trial counsel would not have resulted in prejudice to Moore. Trial counsel, the state court, and the district court all recognized that Raymond could have testified about what Moore told him concerning the murder. In its selective treatment of the record, the majority irresponsibly ignores this testimony.
Second, even without his confession to Raymond and Ziegler, the state‘s case against Moore would likely have been airtight. I emphasize that the case “would likely have been airtight” because counsel had to judge the strength of the state‘s case before the state put it on. Nevertheless, as I show, the case for felony murder was not a difficult one at all.
Under
This would not have been hard. The state had both Roy Salyer and Lonnie Woolhiser in custody, and both could have been called to testify that Moore took part in the attack. The state court found that Moore and Woolhiser had also confessed to their older brother Raymond Moore as well as to Woolhiser‘s girlfriend, Debbie Ziegler.11 Since all of these witnesses were Moore‘s close relatives or good friends, their testimony would likely have been very credible.
And yet this only scratches the surface of the damning testimony available to the prosecution. Before they left for Rogers‘s residence, Salyer, Moore, and Woolhiser had been drinking with others at Ziegler‘s residence. Salyer was “ranting and raving” about how Rogers had broken into his cabin and slashed his tires. This was what prompted the trio to head to Rogers‘s residence—to confront him about the robbery and to scare him out of ever committing another one. Four witnesses, including Ziegler, observed this entire interaction and then observed the trio drive off to confront Rogers—in a car that Salyer had borrowed from another one of the guests.
When the trio arrived at Rogers‘s residence, other people were there. These people witnessed Moore, Woolhiser, and Salyer arrive, and at least one of those people spoke with Woolhiser about what they were doing there. Another was able to identify all three defendants from a photo lineup. These people would also have been able to testify that at this point the car‘s license plates had been covered over with duct tape. Shortly after the defendants arrived, these people all drove away, leaving Rogers alone with Moore, Woolhiser, and Salyer.12
There was also highly inculpatory physical evidence in this case. The day before Moore confessed, Salyer led police to the location of the revolver they had used. The police were unable to find it in the dark, but Woolhiser led them back to the same area the next day, at which point they recovered the weapon. When police found the car that the trio had used, they found blood in the trunk, as well as hair. Although the record does not state that either the blood or the hair was ever scientifically tested, a visual inspection of the hair suggested that it may have been the victim‘s, who had long hair that he wore in a ponytail.
So, to summarize, even without Moore‘s confession to the police, or his confession to Raymond Moore or Debbie Ziegler, or the testimony of his co-defendants, the prosecution had testimony from multiple witnesses, as well as unchallenged statements from Moore, that: (1) An intoxicated Salyer had been ranting and raving about how Rogers had stolen from his cabin and slashed his tires; (2) Moore had left with Salyer and Woolhiser to confront Rogers; (3) the trio arrived at Rogers‘s residence, and that soon thereafter they were alone with Rogers; and (4) the trio returned from Rogers‘s residence together. Rogers was found murdered the next day. Woolhiser and Salyer were clearly involved, as they knew where the gun was, and blood and hair were found in the trunk of the car that the trio had borrowed. The police could prove that Moore had lied about what had transpired when he went to Rogers‘s residence. Add the testimony of Raymond and Ziegler, and the case is airtight. The state‘s felony murder case against Moore could hardly have been any stronger unless the murderers had brought along a camera crew.
All of this evidence—the witnesses, the duct tape, the gun, Moore‘s confession to others—were known to Moore and his counsel. They knew what the majority cannot fathom—that the state had a rock-solid case against Moore and his best shot was to strike a plea deal. However, the majority‘s formal opinion completely fails to consider almost any of this evidence or its implications for the deal Moore struck. See, e.g., Maj. Op. at 1157 (“Without the fruits of Moore[‘s] confession[], the prosecution would have had tremendous difficulty meeting the high burden it faced. In view of the weaknesses in the state‘s case, it is highly unlikely that, in the absence of his own recorded confession, Moore would have pled to felony murder. We thus cannot have any confidence that the outcome would have been the same had counsel filed a motion to suppress.“).
In parts of the majority‘s formal opinion as well as its appendix, the majority also criticizes my reading of the record; these criticisms lack force. For example, the majority questions my placing any reliance on the testimony of Salyer and Woolhiser, “without any evidence in the record as to the substance or availability of such testimony, or, even more important, its admissibility,” Maj. Op. at 1150-51 (emphasis in original),13 in contrast to its own reliance on “the arguments made by the state on appeal,” id. at 1150-51. First, it is Moore, not the state, who bears the burden of establishing that he has suffered prejudice; his failure to address evidence in the record does not entitle us to ignore it in making our decision. It is utterly absurd for us to put on blinders and pretend that obviously damning evidence such as the testimony of co-defendants who have pled guilty—simply does not exist.14 Indeed, Moore himself does not expect us to do so; he specifically addresses the issue of Salyer‘s testimony in his brief. Second, the record leaves little doubt that Salyer and Woolhiser‘s testimony would have been admissible, available, and adequate: Both Salyer and Woolhiser were imprisoned by the State of Oregon, so they could easily be produced if necessary.15 As to the substance of their testimony, even if it were not as complete as their formal confessions to police, Moore was on trial for felony murder, so the state needed to prove precious few details of the day‘s events to secure a conviction.16
But the most important point is this: Where we are reviewing the state court‘s denial of an ineffective assistance of counsel claim, it would be irresponsible for us not to review the record to apprise ourselves of what counsel likely knew. We can only speculate as to what testimony the witnesses actually would have offered had this case actually gone to trial. But it is naive for us to ignore the other evidence in the record. Moore‘s counsel did not have the benefit of the majority‘s ipse dixit power; when advising Moore on the plea offer, he had to judge his case on the basis of the evidence he thought the state had and the likelihood of various witnesses testifying. This much is clear: There was more than enough admissible evidence, easily obtainable by the state, to convict Moore of felony murder—especially and most importantly, as the state court recognized, the likely testimony of Raymond Moore and Debbie Ziegler. When we consider that evidence, it is plain that not only was counsel‘s advice not deficient or prejudicial, it was very good advice. Moore may not have received a lesser sentence than his codefendant who went to trial, but he did avoid a potential death sentence. There is good reason why Strickland requires us to defer to counsel‘s on-the-ground judgments over the majority‘s own “‘post hoc rationalization.‘” Maj. Op. at 1143 (quoting Wiggins v. Smith, 539 U.S. 510, 526-27, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).
B. The Majority‘s Reliance on Fulminante
Ultimately, however, the majority opinion rests on the premise that the state court‘s decision resulted in an unreasonable application of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), a case, I note once again, that Moore does not even cite. According to the majority, ”Fulminante stands for the proposition that the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial.” Maj. Op. at 1146. Fulminante does no such thing. It did not, as the majority‘s characterization suggests, adopt a per se rule that the improper admission of a confession is prejudicial;17 in fact,
The fact that Moore‘s confession to the police was probative does not make it prejudicial. Indeed, it is fair to say that the formal, tape-recorded confession that Moore gave to police in their interrogation room was probably more probative than Fulminante‘s confession, which he made to a friend while they were both incarcerated. All of the quotations that the majority pulls from Fulminante to establish the damaging, probative value of a confession—that “[a] confession is like no other evidence,” Maj. Op. at 1148 (alteration in original), that a “defendant‘s own confession is probably the most probative and damaging evidence that can be admitted against him,” id., that “[t]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct,” id.—are statements that were originally made by the Fulminante Court about confessions like those Moore made to Raymond and Ziegler—i.e., those that are made to third parties who then testify about them in court. Thus, Fulminante does not suggest—let alone hold—that Moore was prejudiced because his confession to police was not suppressed. In fact, it supports the exact opposite conclusion—that Moore‘s two confessions to Raymond and Ziegler were already so damaging to his case that the admission of his confession to police would do him no further harm. By the majority‘s own logic, Moore‘s confessions to Raymond and Ziegler were “like no other evidence” and were “probably the most probative and damaging evidence... against [Moore].” Maj. Op. at 1148.
The majority tries to avoid the implications of its own argument by comparing the relative value of Moore‘s confession to the police with his confession to Raymond and Ziegler. The majority states that “Moore‘s lawyer... thought that the taped confession was not prejudicial because Moore had told his brother and his half-brother‘s girlfriend about the crime.” Maj. Op. at 1130. According to the majority, “[s]uch a formal confession would, without question, be far more persuasive to a jury than Moore‘s statements to two lay witnesses.” Id. at 1147. The majority concludes that the state courts’ “determination that the taped confession was harmless was contrary to clearly established Supreme Court law as set forth in Fulminante.” Id. at 1154; see also id. at 1145 (“[The state court‘s] determination that counsel‘s failure to suppress the formal taped confession was not prejudicial because Moore had previously told his relative and a relative‘s girlfriend about his participation in the killing of the victim was contrary to clearly established Supreme Court law.“). In the majority‘s mind, the question under Fulminante comes down to “determining whether the difference between the weight of Moore‘s statements to his brother and his half-brother‘s girlfriend and his formal taped confession to the police is such that the exclusion of the latter undermines our confidence that Moore would have entered into so harsh a plea agreement.” Maj. Op. at 1153. This approach misstates the law in at least two ways.
First, Fulminante says nothing about determining the relative weight of the two confessions. Rather, it says that harmless error analysis applies to determine whether an erroneously admitted confession is harmless. Fulminante, 499 U.S. at 308, 111 S.Ct. 1246. The Fulminante Court found the admission of the first confession not to be harmless, not because it was
Second, Fulminante concerned the application of harmless error after a trial had taken place, not after a guilty plea had been entered, as here. The question under clearly established Supreme Court precedent is thus not whether we are confident that Moore “would have entered into so harsh a plea agreement,” Maj. Op. at 1153, an approach that would permit Moore to show that he suffered prejudice if he could have negotiated a better bargain. Instead, the question is whether Moore can show that, but for the failure to file the suppression motion, Moore would not have pled but would have insisted on going to trial. No other standard of prejudice is clearly established Supreme Court law in the guilty plea context. See Hill, 474 U.S. at 58-59, 106 S.Ct. 366. But see Maj. Op. at 1148 (“[T]he record falls far short of establishing that the potential testimony of Raymond and Ziegler would have been sufficient to cause Moore to accept so harsh a plea agreement....“); id. at 1153 (“[W]e are left only with determining whether the difference between the weight of Moore‘s statements to his brother and his half-brother‘s girlfriend and his formal taped confession to the police is such that the exclusion of the latter undermines our confidence that Moore would have entered into so harsh a plea agreement.“). If we were dealing with a jury verdict, the majority‘s objection that a “confession is probably the most probative and damaging evidence that can be admitted against [Moore]” would carry more force because “it is impossible to know what credit and weight the jury gave to the confession.” Fulminante, 499 U.S. at 292, 111 S.Ct. 1246 (White, J., dissenting) (internal quotations and citations omitted). But we are dealing with a plea bargain here. The question is whether a reasonably competent attorney would have advised Moore differently when faced with this evidence, and, if so, whether that would have led Moore to go to trial instead of pleading guilty. No Supreme Court case permits us to ask whether Moore would have entered into “so harsh a plea agreement.”
Yet even if we assume Fulminante applies, its facts are so different from those presented here that it is absurd to suggest that it supports the proposition that the state court‘s determination violated clearly established federal law. Fulminante was convicted of murdering his eleven-year-old stepdaughter. He made two confessions: one to Anthony Sarivola, a fellow inmate who befriended him, and another to Donna Sarivola, Anthony‘s wife. Fulminante had no accomplices, and “the physical evidence from the scene and other circumstantial evidence would have been insufficient to convict.” Fulminante, 499 U.S. at 297, 111 S.Ct. 1246. Thus, unlike here, where the case against Moore was exceptionally strong even without his confessions, “both the trial court and the State recognized that a successful prosecution depended on the jury believing the two confessions.” Id. (emphasis added). The question before the Supreme Court was whether Fulminante was prejudiced by the improper admission of the first confession at trial in light of the properly admitted second confession. The Supreme Court found that Fulminante suffered prejudice because, under the unique circumstances of that case, the jury likely would not believe that the second confession (to Donna Sarivola)
The facts of Fulminante are simply not analogous to those presented here. Moore‘s confessions do not need the same kind of background explanation that Fulminante‘s confession to Donna Sarivola required because Raymond and Ziegler were not strangers to Moore in the way that Donna Sarivola was to Fulminante. Under the circumstances, it only made sense that Fulminante would have confessed to her if he had already confessed to her husband. Moore‘s confessions to Raymond and Ziegler preceded his confession to the police, and the confessions were not linked in the same way that Fulminante‘s confessions to the two Sarivolas were.19 Moore confessed to his older brother Raymond because Raymond himself had once been in a similar situation and Moore wanted his advice. Ziegler and Moore were good friends; he was at her house with her before he left to confront Rogers, he returned to her house afterwards, and he was at her house when Rogers‘s murder was reported in the news. Moreover, Raymond and Ziegler did not have the same incentives to lie that Donna Sarivola did. Also unlike Fulminante, here there was other evidence—for example, the duct tape used to bind Rogers, and the blood and hair found in the trunk—to corroborate the details of the testimony that Raymond and Ziegler would have given.20
Finally, regardless of how Fulminante is read, it certainly does not hold that an attorney who declines to file a motion to suppress the challenged confession in favor of advising his client to take a plea on the basis of the presence of the second confession—which the Fulminante Court acknowledged was admissible, see Fulminante, 499 U.S. at 298, 300, 302, 111 S.Ct. 1246—has provided ineffective assistance.
I close by returning to a common theme of my dissent. I do not believe that the majority‘s reading of Fulminante is correct. However, even if I am wrong and
III. PLEA AGREEMENTS AND PREJUDICE
Judge Reinhardt‘s majority opinion and Judge Berzon‘s concurring opinion both argue, though in slightly different ways, that Moore can demonstrate Strickland prejudice by showing that but for counsel‘s unprofessional errors, Moore would have received a more favorable plea agreement. See Maj. Op. at 1131, 1140, 1150 n. 26, 1152-53; Concurring Op. at 1164-65. Neither of their proposed theories has any support in clearly established Federal law.
A. The Majority‘s Interpretation of Hill v. Lockhart
The body of the majority‘s opinion correctly quotes the applicable standard of prejudice for ineffective assistance of counsel claims arising from guilty pleas, but in a footnote, the majority strangely hypothesizes “that if, in response to the filing of a suppression motion, the state would have offered Moore a more favorable plea bargain (and he would have accepted it in lieu of going to trial), Moore could still have established Strickland prejudice.” Maj. Op. at 1150 n. 26. In other words, the majority believes that even if it is wrong on the merits of Moore‘s motion to suppress, Moore would be entitled to relief on the grounds that had counsel filed a suppression motion he might have been in a position to argue for a better plea.
The majority‘s innovative and far reaching assertion cannot go unanswered. As support for its novel legal theory that Moore can claim he might have negotiated a better plea bargain—a theory that Moore, incidentally, has never argued—the majority cites to no Supreme Court precedent but only to one of our own cases, United States v. Howard, 381 F.3d 873 (9th Cir. 2004). See Maj. Op. at 1150 n. 26. The majority‘s failure to cite anything else is hardly surprising since, as pointed out above, Hill unequivocally held that, “in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366 (emphasis added). Moreover, the Supreme Court reaffirmed Hill—and thereby rejected the majority‘s reading—in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In that case, the Supreme Court “h[e]ld that when counsel‘s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.” Id. at 484, 120 S.Ct. 1029. In so holding, the Court stated
[i]n Hill, we considered an ineffective assistance of counsel claim based on counsel‘s allegedly deficient advice regarding the consequences of entering a guilty plea. Like the decision whether to appeal [presented here], the decision whether to plead guilty (i.e., waive trial) rested with the defendant and, like this case, counsel‘s advice in Hill might have caused the defendant to forfeit a judicial proceeding to which he was otherwise entitled.
Id. at 485, 120 S.Ct. 1029. The Court proceeded to cite Hill for the proposition that “when, in connection with a guilty plea, counsel gives deficient advice regarding a potentially valid affirmative defense, the prejudice inquiry depends largely on whether that affirmative defense might
Yet the majority ignores this language by misconstruing our opinion in Howard, where we stated that “[t]o satisfy Strickland‘s prejudice prong, [a defendant] must allege that but for counsel‘s errors, he would either have gone to trial or received a better plea bargain.” 381 F.3d at 882. Considered in context, it is clear that our statement in Howard was merely loose language and not a holding. No other panel has ever read Howard the way that the majority now interprets it. Howard cites Hill only in passing, provides no justification for its deviation from our prior case law, does not discuss its novel reading, and did not turn on whether the defendant would have been able to secure a more favorable plea agreement. Moreover, Howard itself does not consistently hold to the majority‘s reading; every time that a question turned on the standard of prejudice, the Howard court hewed to the accepted construction of Hill—that a petitioner must demonstrate that, but for counsel‘s ineffective assistance, he would not have pled guilty. It interpreted unclear allegations in Howard‘s pro se brief “as a sufficient statement that he would not have entered the plea and would have taken the case to trial if his counsel had not permitted him to plead while incompetent,” and stated that “[t]his... allegation, if true, would establish prejudice.” Howard, 381 F.3d at 883.21 Finally, the majority asserts that the principle it derives from Howard “makes good sense” because “[t]he vast majority of cases in criminal courts are resolved by plea bargains.” Maj. Op. at 1150 n. 26. There is some force to this argument, but it is only an argument that the Supreme Court should have adopted the majority‘s rule, not—as required under AEDPA—that it actually did.22 Indeed, commentators have
B. The Concurrence‘s Prejudice Standard
Judge Berzon‘s concurring opinion argues that Moore could choose to satisfy the Strickland prejudice prong either under Hill or directly under Strickland as applied through the lens of Kimmelman. See Concurring Op. at 1165. However, Judge Berzon views the Kimmelman/Strickland framework as more appropriate for resolving this case because Hill governs prejudice determinations in plea bargains concerning counsel‘s advice on whether to take the plea, after “motions practice and discovery have set the legal landscape.” Id. at 1165. On the other hand, Strickland and Kimmelman, in her view, “deal with counsel‘s failure to create a proper legal landscape—by, [for example], failing to file a plainly meritorious suppression motion.” Id. at 1165. Judge Berzon concludes that the Kimmelman standard, applied in the plea context, permits prejudice to be established by showing that had defense counsel properly shaped the legal landscape prior to the plea proceedings, the defendant might have obtained a more favorable plea bargain from the prosecutor. Id. at 1165-66. The distinction she attempts to draw is precluded not only by Hill itself, but also by the vast weight of precedent in both the courts of appeals and the district courts. Her “legal landscape” argument is interesting but it has never been “established,” much less clearly established, by the Supreme Court. It also raises substantial concerns about federalism and separation of powers.
The concurrence‘s critical mistake is its failure to consider fundamental principles governing the appeal of guilty pleas. A
With that fundamental principle of pleas in mind, it becomes obvious that Hill provides the only appropriate standard for evaluating claims of ineffective assistance in the plea context. The only thing that can be challenged after a plea is the advice to enter a particular plea, for all other defects are waived by the plea. To be sure, Strickland is not irrelevant to the analysis under Hill; the Hill Court explicitly adopted the Strickland standard in the context of guilty pleas. “We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill, 474 U.S. at 58, 106 S.Ct. 366. But the process of applying Strickland to guilty pleas was set forth in Hill, and there is no reason to use a different prejudice analysis than that established in Hill.
In Hill, the Court wrote that “[i]n many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.” Id. at 59, 106 S.Ct. 366. “[W]here the alleged error of counsel is a failure to investigate ..., the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that... [counsel] would have... change[d] his recommendation as to the plea.” Id. But this inquiry only goes to the question of whether the advice to enter the plea caused prejudice—i.e., whether the defendant would not have pled guilty with better advice—not whether the prosecution might have offered a different plea agreement. Put differently, even accepting Judge Berzon‘s proposed distinction between the advice to enter a plea and the process of creating the legal landscape in which plea bargaining occurs, if a defendant still would have pled guilty or nolo contendere despite trial counsel‘s unprofessional errors in crafting the legal landscape in which the plea was entered, then there is no constitutional prejudice.
Judge Berzon‘s response that Hill did not deal with the creation of pre-trial landscapes while Kimmelman did, see Concurring Op. at 1166-67, only highlights why the Hill standard is the correct one. Under Hill, if it was reasonable to advise a defendant to take a plea, there is no deficient conduct. If counsel has been unreasonable in giving that advice, then we proceed to ask whether the defendant would have taken the plea anyway. In other words, Judge Berzon‘s concerns about the
There is good reason for us to follow Hill in these circumstances. Judge Berzon would have us consider the “legal landscape” and ask whether “the plea bargain outcome would have been improved upon the filing of the meritorious suppression motion that was not filed because of ineffective assistance of counsel.” Concurring Op. at 1167-68. We have no way of evaluating whether the prosecutor, having been forced to answer the motion to suppress, would even be willing to offer a new plea bargain, much less whether the prosecutor would have offered an “improved” “plea bargain outcome.” Id.
Given the multiplicity of factors that a prosecutor must consider when offering a plea bargain, it is highly doubtful that a federal court, reviewing a state prosecutor‘s decision to offer a particular plea bargain, even has the tools necessary to decide what bargaining posture a prosecutor would take in the face of a hypothetical motion to suppress. When deciding what plea bargain to offer a particular criminal defendant, for example, a prosecutor might consider the willingness of the defendant to cooperate, the defendant‘s past criminal history, department resources, and pressure from the public in high profile or emotionally charged cases. See Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); see also United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir. 1995) (“[T]here is no constitutional right to a plea bargain, and the decision whether to offer a plea bargain is a matter of prosecutorial discretion.” (citation omitted)). To further complicate Judge Berzon‘s proposed counterfactual analysis, all of this second-guessing will be conducted, in most cases, years after the decision to offer the challenged plea bargain. Political winds may have shifted or a new prosecutor may have taken office. Permitting a habeas petitioner to demonstrate prejudice simply by showing that a different plea bargain might have been offered calls for an answer to an impossible question, and will have the effect of unsettling scores of negotiated state convictions, encouraging needless litigation, and creating a mass printing press in the federal courts for writs of habeas corpus.
Were this the only side effect of Judge Berzon‘s method, perhaps it would be tolerable. But there are at least two additional problems. First, it places federal courts in the role of instructing state prosecutors—members of the state executive branch—of how to conduct plea negotiations, or at least how much prison time a prosecutor is permitted to offer if the state decides to proceed with reprosecution after the writ of habeas corpus issues. To put it mildly, this kind of interference with a state executive branch function raises substantial federalism concerns. Cf. Printz v. United States, 521 U.S. 898, 933, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).
Second, and related to the federalism problem, Judge Berzon‘s approach implicates the separation of powers with potential effects far beyond the current case.23 Conducting this type of inquiry into whether a better plea bargain would have been available would require the kind of judicial review of prosecutorial decisions that courts have almost uniformly shunned. We have previously described the reasons
Prosecutorial charging and plea bargaining decisions are particularly ill-suited for broad judicial oversight. In the first place, they involve exercises of judgment and discretion that are often difficult to articulate in a manner suitable for judicial evaluation. Such decisions are normally made as a result of careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge.
Assuming these problems of guidance and understanding could be overcome—and it is unlikely that they could be—there is an added constitutional consideration based on the peculiar relationship between the Office of the United States Attorney and the federal district courts: The United States is necessarily a party to every criminal case presented to a district court. It would raise serious separation of powers questions—as well as a host of virtually insurmountable practical problems—for the district court to inquire into and supervise the inner workings of the United States Attorney‘s Office.
The very breadth of the inquiry... would require that the government divulge minute details about the process by which scores, perhaps hundreds, of charging decisions are made. The court would also have to consider the validity of various rationales advanced for particular charging decisions, which would enmesh it deeply into the policies, practices and procedures of the United States Attorney‘s Office. Finally, the court would have to second-guess the prosecutor‘s judgment in a variety of cases to determine whether the reasons advanced therefor are a subterfuge.
United States v. Redondo-Lemos, 955 F.2d 1296, 1299-1300 (9th Cir. 1992) (footnotes and citations omitted), overruled on other grounds, United States v. Armstrong, 48 F.3d 1508, 1515 n. 5 (9th Cir. 1995) (en banc); see also Wayte, 470 U.S. at 607-08, 105 S.Ct. 1524 (recognizing that the “broad discretion” afforded the executive to evaluate such factors is “not readily susceptible to the kind of analysis the courts are competent to undertake“); United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (en banc) (“Courts generally have no place interfering with a prosecutor‘s discretion whom to prosecute, what charges to file, and whether to engage in plea negotiations.“).
To be sure, prosecutorial discretion, including the discretion to negotiate plea bargains, does not give the executive branch license to violate a criminal defendant‘s due process rights, and courts widely agree that a prosecutor cannot hide discriminatory motives under the guise of prosecutorial discretion. See United States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003) (“One important restriction on prosecutorial discretion, however, is that ‘the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.‘” (quoting United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)) (internal quotations removed)); Redondo-Lemos, 955 F.2d at 1299 (“Given the significance of the prosecutor‘s charging and plea bargaining decisions, it would offend common notions of justice to have them made on the basis of a dart throw, a coin toss or some other arbitrary or capricious
Judge Berzon responds by claiming that this is the type of inquiry that courts regularly undertake in ineffective assistance of counsel claims. See Concurring Op. at 1169-70. Rather than considering the prosecution‘s actions, Judge Berzon says that her approach would focus on “the defendant‘s and defense counsel‘s choices, defense counsel‘s judgment, and defense counsel‘s actions.” Id. at 1170. But if the question posed is whether “the plea bargain outcome would have been improved upon the filing of the meritorious suppression motion,” as she says it ought to be, id. at 1167-68, I fail to see how that could be done without looking at the prosecution‘s decisions “in the first instance.” Id. at 1170. In an ineffective assistance of counsel claim following a trial, where the counterfactual question posed to the court concerns evaluating what a jury might have done, at least the evidence presented to the jury and the legal instructions it was given are available for review. In contrast, in a plea bargain situation, there is no record at all about what other deals the prosecution might have offered.24
If, in contrast, “the question is whether, but for counsel‘s ineffective assistance, a defendant would [be] in a better position to negotiate with the prosecutor,” as Judge Berzon articulates the test later on, id. at 1170, the new standard would entirely swallow Hill. Numerous cases decided under Hill can also be characterized as “deal[ing] with counsel‘s failure to create a proper legal landscape” by failing to take some strategic action. Concurring Op. at 1165. See, e.g., Weaver, 455 F.3d at 970-71 (applying Hill to counsel‘s failure to investigate mental defect defense); Langford, 110 F.3d at 1386-87 (using Hill in guilty plea case alleging ineffective assistance of counsel based on failure to file various suppression motions). And filing a potentially meritorious suppression motion will always strengthen defense counsel‘s bargaining position (at least until a potentially adverse ruling is handed down). If the possibility that a more favorable plea bargain might have been offered if a potentially meritorious motion was not filed is sufficient to establish Strickland prejudice after a guilty plea, virtually every plea bargain in the country is now open to habeas relief.
Viewed within the proper standard of review under AEDPA, it was not an unreasonable application of Supreme Court law for the Oregon courts to evaluate Moore‘s claim under Hill. The case fits squarely within the rule of Hill: Moore asserts that his trial counsel failed to advise him that a motion to suppress might be successful. On the basis of that advice, Moore pled no
clusion that “these cases do not provide support for using Hill as the exclusive standard in such circumstances.” Id.
The Supreme Court would have had difficulty being more clear than it was in Hill about the proper prejudice standard for guilty pleas. It said, “We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, ... to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” The Hill Court did not recognize Judge Berzon‘s distinction between pretrial landscape setting ineffective assistance claims and advice to enter guilty plea claims, and she cannot point to a single federal court since Hill that has done so. Until the Supreme Court tells us otherwise, her proposed distinction is foreclosed by Hill. See Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006) (“Given the lack of holdings from this Court ..., it cannot be said that the state court ‘unreasonabl[y] appli[ed]
The concurrence‘s argument is a disguised attempt implicitly to extend Howard to permit satisfaction of Strickland‘s prejudice prong by demonstrating simply that a more favorable plea might have been obtained, instead of doing it explicitly in the manner advocated by Judge Reinhardt. See Maj. Op. at 1150 n. 26. Although Judge Berzon couches her argument as giving defendants the choice of proving prejudice under what is commonly perceived as the more difficult Strickland standard rather than proving prejudice under Hill, her approach actually achieves the opposite effect: Instead of being required to demonstrate that he would not have pled guilty but would have insisted on going to trial, Moore would only be required to demonstrate that he might have obtained a more favorable plea agreement. This attempt misconceives the nature of plea bargaining, potentially violates principles of federalism and separation of powers, and ignores Supreme Court precedent on how to conduct the prejudice inquiry following plea agreements. Even if I were to agree that an ambiguity about the relationship between Hill, Kimmelman, and Strickland existed, it is not our job on AEDPA review to resolve it.
IV. CONCLUSION
I cannot join anything the majority has written. For the reasons I have stated, I believe the majority to be wrong on the facts and the law, and I believe that it fails to accord the state court‘s decision the deference that AEDPA commands. At the end of the day, it is not clear what the majority has accomplished, for Moore or for anyone else. The majority grants Moore a writ of habeas corpus and orders the state either to permit Moore to withdraw his plea or to release him. Oregon will surely allow Moore to withdraw his plea and then prosecute him to the hilt. When it does, Oregon will be under no obligation to offer Moore any kind of a deal, and if it does decide to bargain, it has no obligation to offer Moore a plea bargain as attractive as what he got in this case. It may even decide to seek the death penalty. And even if Oregon were to offer a new plea deal, Moore‘s counsel must reject it until he has filed every conceivable pre-trial motion he can. After today‘s decision, no conscientious defense attorney should even consider accepting a plea deal—no matter how good the bargain and no matter what other evidence the prosecutor has—if there are potentially “meritorious” motions that can be filed.
Oregon will try Moore and, given his confessions to family and friends, the available eyewitnesses, and other incontrovertible evidence, Moore will likely be found guilty of murder. For that, he is likely to receive a sentence well in excess of the bargain he negotiated. It is quite possible that Moore will be worse off for having prevailed here. Nor is it clear that anyone else after Moore will actually benefit from today‘s ruling. In fact, defendants whose counsel cannot negotiate plea agreements until after exhausting their pre-trial motions are likely to be worse off for the majority‘s effort.
Today‘s decision is not a liberty-enhancing decision. It will actually hamper defense counsel‘s ability to avoid trial and negotiate plea agreements. And our decision is so unnecessary. Moore is plainly guilty of felony murder, or worse. He took a fair deal from the prosecutor on the advice of competent counsel. Justice was served. There is no reason for us to upend the orderly administration of justice in Oregon in this way.
I respectfully dissent.
Notes
[a] reasonable person in [Moore]‘s position would have concluded that an offer of leniency had been extended in exchange for a confession. It is clear [Moore] subjectively believed that this offer was made, and confessed to Rogers’ murder based on this false promise. The false promise of leniency, made entirely believable by the continual references and comparison‘s to [Raymond]‘s prior situation, rendered [Moore]‘s confession involuntary.Moreover, if, as the majority effectively holds today, defense counsel must always move to suppress a confession or risk a claim of ineffective assistance of counsel, there is no end to the second-guessing game. If counsel moved to suppress and lost on that motion, then, by the majority‘s reading, counsel must see the case through trial and take an appeal. And if he loses on appeal, then he must file for habeas—all so that he can be in the best position to negotiate a plea bargain. The bottom line is that counsel, in defense of his own reputation, will not seek plea agreements or will counsel against accepting a plea bargain. This makes no sense.
3. I did not file a Motion to Suppress. My reasons for doing this were two-fold. First of all, petitioner‘s interview with the police, which was taped and transcribed, a copy of the transcription is attached to this affidavit, makes it abundantly clear that Mr. Moore was not in custody. He never believed that he was in custody and admitted to me that he realized he was not in custody when he and his brothers and another friend voluntarily came to the police department to give the recorded statement. The law as I understood it then and now is exemplified by State ex rel Juv. Dept. v. Loredo, 125 Or.App. 390, 865 P.2d 1312 (1993), and State v. Smith, 310 Or. 1, 791 P.2d 836 (1990). 4. In addition, however, Mr. Moore had previously given a full confession to his brother Raymond Moore and to a woman named Debbie Ziegler. Mr. Moore and I discussed the possibility of filing a Motion to Suppress and concluded that it would be unavailing, because in the first place, he knew he was not in custody at the time he gave the recorded interview and that the statement was voluntary, and in the second place, he had previously made a full confession to his brother and to Ms. Ziegler, either one of whom could have been called as a witness at any time to repeat his confession in full detail.No other portion of counsel‘s affidavit offers any reason for his failure to file the motion. See Appendix B. With the exception of the lineup identification, the prosecution could establish all of the facts in the last two paragraphs by relying solely on statements made by Moore, the admissibility of which has never been questioned. The day before the interrogation at issue in this case, the police approached Moore and Woolhiser while they were eating at a local restaurant, and the pair agreed to come by the station house and answer questions after they had finished their dinner. After arriving at the station house, Moore gave a description of events that was largely accurate up until the point that Woolhiser and Salyer began beating Rogers. The next day, Woolhiser admitted to asking the owner of the car if he had anything that they could use to tie Rogers up, to which the owner responded that he had some duct tape.
As for Ziegler, there is no evidence regarding precisely what Moore told her about the crime, and it seems unlikely from the record that he told her much. The interrogation transcript shows only the following question and answer: “Debbie, since you‘re here and you‘ve listened to their story, when did you first find out about this?” “Today.” Ziegler also stated, “I didn‘t know [about Rogers‘s death] until we‘d read the paper and I still didn‘t know the actual thing.” There is no further record of what Ziegler knew.
The dissent asserts that the state court explicitly found that Moore made a full confession to Ziegler because it stated at one point that “[t]he Court believes trial counsel‘s affidavit” and because that affidavit asserted that a “full confession” had been made. Read in context, however, the state court declared only that it believed the affidavit as to one particular assertion it contained—that Moore‘s counsel had reviewed Moore‘s statement—not that it believed every single statement contained in the affidavit, including those that it did not discuss until three pages later when for the first time it mentioned Moore‘s alleged confession to Ziegler. In any case, the state court entirely ignored the “relevant” and “highly probative” conflicting evidence consisting of Ziegler‘s statements at the interrogation, rendering its factfinding process “defective” and unworthy of our deference under