*1 demand, is no there is zero foreclosure. correctly court
Accordingly, the district Buyers, having
held that shown no foreclo- competition
sure of in the market for the product,
tied failed to show the critical per
third element of a claim for a se unlaw- tying arrangement.
ful
AFFIRMED.
Randy Joseph MOORE, Petitioner-
Appellant, CZERNIAK, Superintendent
Stan
OSP, Respondent-Appellee.
No. 04-15713. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted March 2005. July
Filed
1093 REINHARDT, Before: STEPHEN BERZON, and JAY S. MARSHA S. BYBEE, Judges. Circuit REINHARDT; Opinion by Judge BERZON; by Judge Dissent Concurrence BYBEE; by by Judge Dissent to Order CALLAHAN; by Judge Dissent to Order Judge BEA.
ORDER majority opinion, concurring opin- The 28, ion, July dissenting opinion and filed on 9397, slip op. appearing and 534 (9th Cir.2008), are withdrawn. F.3d majority opinion, concurring opin- A new ion, are dissenting opinion and filed con- with this order. With the temporaneously opinion, Judge Reinhardt filing of the new deny Judge peti- and Berzon vote to rehearing rehearing and en banc. tions for Bybee grant petitions votes to Judge rehearing rehearing en banc. A for requested a vote on whether to re- judge en The matter hear the matter banc. majority of the votes of failed to receive judges nonreeused active favor of en P. R.App. reconsideration. Fed. banc Judge petitions Graber was recused. rehearing en banc are rehearing for petitions rehearing future denied. No rehearing en banc will be entertained. Creel, Federal L. Office of the Barbara OPINION Defender, Portland, OR, for the Public REINHARDT, Judge: Circuit petitioner-appellant. confession was ob- Randy taped Moore’s Myers, Attorney General for Hardy at the house tained station Williams, H. Oregon, Mary Solici- State the state concedes were means that even (On Briefs); S. Jennifer tor General It does not contest on unconstitutional. Attorney-In-Charge, Collateral Lloyd, finding court’s appeal this the district Unit, Capital Appeals Sa- Remedies involuntary. As confession was lem, (Argued), respondent-ap- for the OR emphati- declared Court has pellee. cally, is like no other evi- confession “[a] Indeed, con- ‘the defendant’s own
dence.
probative
the most
probably
fession is
that can be admitted
damaging evidence
”
Fulminante, 499
against him.’ Arizona v.
279, 296,
highly imaginative
113 L.Ed.2d Unlike our
and creative
(1991)
(quoting Bruton v. United
dissenting colleague, the
state does
States,
evidence,
argue
possessed
other
confessions,
(1968)
aside from the two other
(White, J., dissenting)).
L.Ed.2d 476
*3
rendered the failure to file the motion
Inexplicably,
lawyer failed to rec-
Moore’s
mindful of Ful-
fact, perhaps
harmless.
ognize
police
that the confession to the
was
minant^ s
that,
in
command
cases such as
inadmissible,
it was unconsti-
though
even
this, reviewing courts “exercise extreme
separate
tutional for not one but two
rea-
determining
caution” before
fail-
sons.
ure to move to exclude unconstitutional
explanation
filing
Counsel’s
for not
harmless,
296,
confessions is
was,
words,
in
motion
his
“two-fold.”
1246,
challenge
S.Ct.
the state does not
First,
thought
he
such a motion would not
any
basis other than his statements to
in
have succeeded because Moore was not
others Moore’s assertion that the ineffec-
custody
gave
when he
his confession and
necessarily
tiveness of his counsel
under-
voluntary
clearly
his
was
confession
—both
mines our
in
confidence
the outcome of the
erroneous conclusions: the confession was
Here,
proceedings.
Fulminante’s dictate
impermissibly extracted as the result of a
because,
is all the
compelling
more
unlike
promise
leniency
made
the interro-
Fulminante,
where the challenged con-
officers,
gating
and it was also
obtained
fession
informally
par-
was made
to a not
Arizona,
violation of Edwards v.
451 U.S.
ticularly
layman,
reliable
the confession at
477,
1880,
(1981),
101 S.Ct.
lice
promptly proceeded
officers then
with
returned,
When the officer
he told
interrogation.
spoken
Moore that he
DA—
had
During
interrogation,
police
Deputy
actually”
offi- “our
DA
pro-
then
—and
they
cers told Moore and Woolhiser that
ceeded to elicit Moore’s confession. Be-
so, however,
go
“would
to bat for
as long
doing
[them]
as
fore
he extracted sever-
truth,”
[they] got the
to which Moore re-
al statements from
regarding
Moore
his
sponded:
I
custody
“See that’s what want to hear.”
status
the voluntariness of the
point, Raymond
At this
interrupted the
give.
confession he was about to
In re-
questioning to vouch for the
sponse
questions,
officers’ as-
to a series of
Moore
surances, stating
my,
agreed
that “I know in
this
with the officers that he had volun-
myself,
is for
saying,
tarily
station,
there was once an
police
returned to the
that
officer,
look,
out,
hey,
and I said
I
I
custody,
want
he was not in
that
police
had
did something
doing something.
and been
offered
in
nothing
exchange for his confes-
this,
I want out of
I
a
they
want
chance. And
sion other than that
would make a
said, okay, Ray,
this officer
I’ll go to bat
]”
District Attor-
“recommendation!
you.
for
that
your captain.” ney,
And
officer’s
right
that he understood his
Building
account,
Raymond’s
short,
on
one of
waiving
counsel and was
it.2 In
statement,
Although
ately
gave
the officers continued their efforts
before Moore
his
questions, they
to obtain answers to their
ac-
officers stated that if Moore wanted a "court
knowledged,
attorney
appointed
after their call to the District
[he could] have one at this
time,”
Attorney,
they
"wrong”
"go
that
had been
but that
he
earli-
if wanted to
ahead and
officers,
informing
er
Moore that he
entitled
a
talk” with the
he could do that in-
one;
statement,
course,
lawyer only
he
if
could afford
immedi-
stead. This
conflicts
Court, which denied review. State v.
explained:
officers
interrogating
one of
Moore,
Or.App.
Relying solely on the affidavit of *7 custody Moore was not in at the time of counsel, Moore’s trial the state court fur- counsel, request for but that he had ther reasoned that if even a motion to Rogers’ “confessed to murder based on [a] granted, had been filed and promise” leniency, false of which “ren- would have been “fruitless” because involuntary.” dered confession [his] Nev- previously par- Moore “had confessed his ertheless, the court ticipation concluded that “coun- (Ray- in the crime to his brother Moore) failure suppression sel’s to seek did not mond and another friend [Debbie Ziegler].” this, necessarily objective From fall an the state court con- below stan- prejudice cluded that Moore no dard reasonableness” suffered because Raymond prior because Moore and Moore’s Raymond “[b]oth [Zie- confessions to gler] could have been called as witnesses Moore Ziegler poten- and Debbie and the repeat petitioner’s confession.” It tial testimony Salyer.4 adverse On that regarding Raymond Salyer's 4. We testimony. Certainly, consider issues it makes no Ziegler Moore and opin- Debbie later in our Indeed, appeal. such assertion on until the here, however, ion. We note that the district sponte district court made the sua determina- clearly respect Salyer. court erred with regarding Salyer, party— tion no interested suggest There is no evidence in the record to court, counsel, the state Moore's trial or the that the state could have or would have relied
1099 ultimately corpus. writ of habeas See DePetris v. basis, court held the district (9th 1057, court’s conclusion post-conviction Kuykendall, that 1061 Cir. a constitutional had not been 2001). there findings Factual relevant to, contrary nor an was “neither violation grant deny district court’s decision to or of, v. application Strickland unreasonable petition are reviewed for clear error. Washington.” Garcia, (9th v. 219 See Sоlis F.3d 926 Cir.2000). Because the state appeal followed. This petition federal habeas finding district court’s does not contest the 24, 1996, April was filed after and is there involuntary, was that Moore’s confession governed by fore the Antiterrorism and the state because we conclude (“AEDPA”), Penalty Death Act Effective respect unreasonably court erred with Garceau, § 2254. v. 28 U.S.C. Woodford we reverse. finding prejudice,” its of “no 202, 210, 123 538 U.S. S.Ct. 155 adjudication that the state court’s We hold (2003). AEDPA, L.Ed.2d 363 Under we in a decision of Moore’s claim “resulted may grant only habeas relief when the applica- ... an unreasonable involved to, “contrary state court’s decision was law, clearly established Federal tion of[] of, an application involved unreasonable Supreme Court as determined law, clearly established Federal as deter States,” 2254(d)(1), § 28 U.S.C. United Supreme mined of the Court United court with in- and remand to district or “was on an States” based unreasonable grant the writ of habeas cor- structions of the in light determination facts of the pus. presented pro evidence the State court II. 2254(d); § ceeding.” Wiggins 28 U.S.C. v. Smith, 510, 520, reviews de novo the district This court (2003).5 “[Cjlearly 471 deny petition for a 156 L.Ed.2d estab- court’s decision Salyer against suggested taped would not have testified itself—had that the con state non-prejudicial because of Sal- Moore but would have taken the Fifth Amend- fession was Moreover, ment, light yer’s potential testimony. charges faced trial as he himself on recognition arising Court’s of the Even of the from the same incident. unreliability Salyer of a co-defendant’s testi inherent been convicted before Moore’s trial mony, certainly not have be began, the state would he would in all likelihood taken that, confession, taped lieved without Moore’s challenge the Fifth because he continued to given Salyer’s testimony could have it the way through all when his conviction See, obtaining denied, same chance of a conviction. petition his federal habeas see Illinois, 530, 545, e.g., (D.Or. Lee v. Salyer Belleque, WL (1986) (“[A] code Mar.4, 90 L.Ed.2d 2005). presumptively unrelia fendant's confession Although we can overturn state court’s passages detailing the defen ble as to to, contrary *8 if it or an unrea decision is culpability or because those dant’s conduct of, application clearly fed sonable established product passages may well of the code be Court, by Supreme eral law as determined blame, spread desire to shift or cur fendant's decisions from this court other circuits himself, favor, avenge ry or divert attention to persuasive weight regard are of in to "wheth another.”); Washington, v. see also Crawford particular decision is an ‘un er a state court 1354, 36, 59, S.Ct. 158 L.Ed.2d 541 U.S. 124 application’ Supreme reasonable law, Court (2004) (explaining that Lee v. Illinois "is 177 'clearly ... estab what law is contrary” to modern Confrontation not ... ” Ducharme, v. 200 F.3d lished.’ Duhaime jurisprudence). Under circum Clause these 597, (9th Cir.2000). especially This is stances, 600-01 supposition for the dis it was mere pattern true if the fact of the lower court Salyer suggest that would be trict court to substantially similar to the case decision is inculpatory testimony able to offer sufficient Guarino, being v. 293 decided. See Ouber Moore's for to render the failure 19, (1st Cir.2002) ("To the extent that impor F.3d 26 non-prejudicial. Most mal confession all, however, factually have decided can little doubt inferior federal courts tant of there be 1100 objectively federal law was unreasonable.”
lished Federal law” includes
Su
362, 409,
Taylor,
120
preme
“applicable holdings,”
Court’s
not Williams
529 U.S.
1495,
(2000).
Musladin,
Carey v.
549
S.Ct.
L.Ed.2d 389
its dicta. See
U.S.
146
70,
649, 653,
127 S.Ct.
ously made a full confession to his brother 378; second, L.Ed.2d that his confes- Ziegler, and to Ms. either one of whom involuntary, having sion was been extract- any could have been called as witness at promise leniency ed as the result of a repeat time to his confession full detail.” made interrogating officers. The hold that We both of counsel’s reasons for state court that a concluded motion to filing the motion—that the motion was suppress on the ground Edwards that, ground, not meritorious on either not have been meritorious because Moore were, if even it would have served no not in custody gave “was when he purpose because of the other confessions— not, however, It statement.” did address were erroneous. Given highly damag- question.8 the involuntariness On federal ing taped nature of Moore’s confession to review, habeas agreed the district court unconstitutionality and the of with the state court with respect confession, we hold that counsel’s fail- Edwards issue but found that a motion to ure to to suppress move the confession suppress would have been meritorious on objective “fell below an standard of reason- ground.9 Critically, involuntariness holding 7. The dissent characterizes our in this raised the state court and therefore that it mandating properly case as that defense counsel must before us. See, suppression file meritorious motion. 1137, 1139, Specifically, 9. the district court e.g., op. found that dis. & 1143-44 1145 n. notes, rejects 10. As the text Kimmelman person posi- reasonable [a] [Moore]'s proposition, and we. so do As our later dis- tion would have concluded that an offer of indicates, 16, 20, cussion see nn. there leniency infra exchange had been extended in may why competent be a valid reason law- subjective- It confession. is clear [Moore] yer might potentially not file a meritorious made, ly believed that this offer was motion, suppression but Moore's counsel of- Rogers’ confessed to murder based on this fered none here. promise. promise false The false of lenien- cy, entirely made believable the continu- why It comparison's is unclear the state court failed [Ray- al references and situation, ground. address the prior involuntariness Never- mond]'s rendered [Moore]'s theless, parties agree involuntary. both that this issue was confession
1103
if
challenge
not
the district would also have been meritorious
based
the state does
Thus,
appeal.
ground
on
al-
on the
that Moore was in custody
determination
court’s
for,
and had
though
ordinarily
granted,
we would
review
dis-
asked
but not been
error,
findings
right
prior
interroga-
factual
for clear
his
to counsel
trict court’s
However,
as correct
the dis-
tion.
because
simply accept
here we
counsel’s error on
finding
ground
that Moore’s confes-
this
buttresses our conclusion
trict court’s
that
deficient,
involuntary
and, consequently,
performance
highly
his
was
sion was
we
—
briefly
appended
would have
set forth
in the footnote
suppress
that a motion to
been
ground.10
hereto the reasons we
that
According-
meritorious on
conclude
coun-
Edwards
ground
in an
failure to
on the
ly,
engage
we will not
extensive
sel’s
file
why
suppress
objectively
was also
discussion as to
motion
unreasonable.11
however,
note,
unsuccessfully
10. We
that had the state con-
and confessed after he
invoked
deter-
right
clearly
tested the district court's voluntariness
to counsel. The record
dem
mination,
conclude that the dis-
we could not
contrary,
onstrates the
however. Moore had
erred,
erred,
clearly
let alone
trict court had
already
subjected
been
to a custodial interro
finding that Moore's confession was made
gation
previous day,
a fact the state does
response
promise
to a false
dispute.
custody
He was released from
charges against him would be reduced if he
only on the
that he return
condition
the fol
accidentally killing Rogers. The
confessed to
afternoon, when,
him,
lowing
police
told
they
repeatedly told Moore that
would
officers
formally
he would be
booked. Moore was
"go to bat for him” if he confessed. More
day
further informed the next
that if he and
important, the officers reminded Moore of the
Raymond did not arrive at the station on
experience
Raymond,
of his brother
whose
time,
police
get
"would
[them]
come
...
charges
been
at their
murder
had
dismissed
family
way they
and
[their]
not like the
instigation
Raymond explained
when
that the
station,
did it.” At the
told Moore
accidental,
killing
Raymond's
was
and used
Salyer
already
charged
been
and
personal
of the events
own
reaffirmation
formally
indicated that he too would be
ar
convince Moore that his treatment would fol-
charged
day.
rested and
later that
Faced
Throughout
in the
vein.
the inter-
low
same
facts,
with these
it is clear that a reasonable
rogation,
implied
agreed
the officers
that if he
person
position i.e.,
person
in Moore’s
a—
talk,
Moore would receive the same treat-
prime suspect
who knows that he is a
in a
is,
charges
ment his brother did—that
booked,
killing,
charged
that he will be
or,
against
dropped,
him would be
more like-
murder,
placed
jail
day,
later that
ly,
a lesser
reduced from murder to
offense.
already
that his co-defendant had
been
purported
The officers also
to clear
ar-
charged
not have believed that he
—would
rangement
Attorney,
with the District
reassur-
Thus,
was
leave.
free to
there can be no
ing Moore that he would be taken care of as
custody
doubt that Moore was in fact in
when
facts,
long
the truth.
as he told
Given these
confessed,
interrogated
he was
see Yar
fully agree
we
with the district court’s conclu-
Alvarado,
652, 661-63,
borough v.
541 U.S.
implied
sion that
the officers created an
2140,
(2004);
124 S.Ct.
possible defenses.”
—
--,
Mirzayance,
gler’s potential testimony,
Knowles v.
pages
see infra
short,
(2009), 1110-12. In
Moore’s counsel
(cid:127)trials”); forego (holding plead guilty or to Langford, at to and avoid 110 F.3d 1387 motion, suppression pursue suppression filing of his meritorious to that counsel’s failure prior to file such a performance to counsel’s decision not a confession was not deficient motion, suggest ever that his ... nor did counsel "insiste[d] where the defendant had filing the motion was that it suppress reason for not he wanted no motions other adversely jeopardized or affected types delay his intended would have to interfere with contrary, plea negotiations. To the counsel’s plea guilty”); v. Wood see also Stankewitz (9th Cir.2004) ford, clear that his reasons for not 720 n. 7 affidavit makes ("An filing nothing do with the attorney's performance the motion had is not deficient Ap- prospective plea negotiations. strategic See ... it reflects a reasonable where[ ] infra ¶¶ wishes.”). pendix B at 3-4. aligns with his client’s choice that
1109
Prejudice
B.
argument
the state’s sole
to prejudice
“[Pjetitioner
straightforward and succinct:
long
It has
been clear that Strick
previously had confessed ‘the
story’
whole
prejudice prong requires no more
land’s
that he told
to his brother and told
“show[ing]
than a
that there is a reason
friend,
another
Ziegler,
Debbie
‘what had
that,
probability
un
able
but
counsel’s
happened.’ Either of those people could
errors, the
professional
pro
result of the
have been
repeat
called as
witnesses
ceeding would have been different.”
this,
light
confession....
petitioner
Strickland,
2052;
104
U.S.
S.Ct.
failed to show ...
prejudiced
he was
(holding
probabili
id.
reasonable
“[a]
by counsel’s decisions.” State’s Br. at 18.
ty
probability
is a
sufficient to undermine
argument
state’s
mirrors Moore’s
outcome”).
confidence in the
In Hill v.
explanation
counsel’s
for why he did not
Lockhart,
motion,
file the
see
Counsel’s Affidavit at
(1985),
L.Ed.2d 203
Court
¶ 4 (concluding that a motion to suppress
prejudice
confirmed that Strickland’s
stan
“would be unavailing” because Moore “had
context;
applies
dard
plea
it held previously
a full
made
confession to his
prejudice
that context
turns
brother and to
Ziegler,
Ms.
either one of
constitutionally
“whether counsel’s
ineffec whom could have been called as a witness
performance
tive
affected the outcome of
repeat
...
detail”),
his confession in full
plea process.”
Id. at
The state L.Ed.2d 113 499 U.S. S.Ct. previously “had fact, that because fortiori, is, controlling a case that in the crime to participation his confessed friend,” here.19 both ... and another his brother have been called individuals “could of these Fulminante, the defendant confess- confes- petitioner’s repeat as witnesses informant ed, paid to a prison, while concluded, as a matter of It then sion.” “tough from treat- protection offered who Raymond Moore law, “[b]oth that because confession; he exchange for the ment” called could have been and the friend informant’s wife fol- confessed to the also confession repeat petitioner’s
witnesses to
lowing
prison.
his release from
even if suc-
suppress,”
...
motion
[a]
(internal
283-84,
quota-
at
cessful,
As-
have been fruitless.”
“would
omitted).
claimed
Fulminante
tion marks
under
court’s decision
sessing the state
was
the confession to the informant
AEDPA,
prejudice
its
we conclude
at trial vio-
and that its admission
coerced
“an unreason-
determination constituted
under the Fifth and Four-
rights
lated his
clearly established
application of[]
able
Id. at 284. The state
Amendments.
teenth
2254(d)(1).
§
under 28 U.S.C.
Federal law”
court,
the state court
supreme
not unlike
here,
that the admission of the de-
assumption
found
the factual
granting
Even
harmless
coerced confession was
prejudice de-
fendant’s
underlying the state court’s
ie.,
second confession
because an “admissible
Raymond and Zie-
termination —
... cu-
...
rendered the first confession
a version of
have testified to
gler would
296, 111
mulative.” Id. 1246. The
S.Ct.
determi-
informal confession—its
Fulminante
concluded that
state court
that counsel’s failure to
nation
overwhelming evidence ad-
“due to the
taped
preju-
confession was not
the formal
confession, if
from the second
there
previously
told duced
because Moore
dicial
confession,
jury
had not been
first
girlfriend
relative’s
about
his relative and a
basic evi-
would still have had
same
killing
in the
of the victim
participation
297, 111
convict.” Id. clearly
Su- dence to
contrary
was
established
Fulminante,
State v.
Indeed,
(quoting
law.
preme Court
(inter-
(1988))
602, 611
markedly
Ariz.
778 P.2d
squarely rejected a
simi-
Court
However,
note, here, however,
peti
legal
appeal.
is clear that the
We
that the
infra.
Judge Bybee's enormously
prejudice
creative
tioner never waived
issue of
obstacles
argument
argument
are insurmountable
some
was
faces
that Moore's confession
herein, as
reasons we have set forth
despite
of the
prejudicial
the existence of the other
Appen-
well as for the reasons set forth in
contrary,
To the
this issue
"confessions.”
dix.
litigation
Where a
central to the
below.
opposing
and the
party has "raised the issue”
court,
court echoed the state
district
*18
argu
opportunity
party has had an
to offer
initiative,
adding only,
own
that co-
on its
Appeals
response, the Court of
is not
ments in
"Salyer's
willingness
demonstrated
defendant
Supreme
prohibited
relying on
Court
from
prevented
cooperate
police”
with
also
the
simply
party
a
failed to cite
precedent
because
prejudic-
any
by
from
error Moore’s counsel
authority
support
particular "legal
that
ing his defense.
Lake, 817 F.2d
their contention.” Lake v.
1416,
(9th Cir.1987);
Puerta v. Unit
significant
peti-
it
that
19. The dissent finds
cf.
1338,
(9th
States,
Cir.
ed
1341-42
v. Fulminante in
tioner does not cite Arizona
1997) (“An argument
typically
1137-38,
is
elaborated
brief,
op. at
1149-50 n.
his
see dis.
articulately,
1151-52,
with more extensive au
15,
more
equating our reliance on this
thorities,
nothing
appeal ... and there is
on
precedent with the
Court
dissent’s
that.”).
wrong with
judicially
a new record
effort to
manufacture
omitted).
detail,
self
in
in
own
quotation
nal
marks
Su-
described
his
words
voice,
and his own
his
rejected
participation in a
unequivocally
this
preme Court
killing in
response
questioning
detailed
that
argument. The Court held
because
by
investigators
police
trained
in the
sta-
“the two confessions reinforced and cor-
tion.
would,
Such a formal confession
...
confession
roborated each othеr
one
question,
without
far
persuasive
be
more
other,”
merely
the
was not
cumulative of
jury
to a
than Moore’s statements
to two
1246,
id. at
111 S.Ct.
and therefore
lay witnesses —statements
that Moore’s
harmless,
the
not
concluded that
error was
Raymond
brother
and his half-brother
id. at
this
a recitation
confession,
taped
the
case would
state’s
who
un-
to the defendant
would
thetic
far weaker. As the
have been
doubtedly
unnecessary
reluctant
to do
be
Fulminante,
in
confession
Court held
“[a]
testimony,
to
and whose
to
harm his case
296,
is like no other evidence.”
499 U.S.
adverse,
might
extent that it
be
would
111
1246. The
Court
S.Ct.
Fulminante
subject
rigorous cross-examination
be
to
weight
of a defendant’s
emphasized
efforts at im-
by defense counsel whose
A
confession:
“defendant’s own confession
sup-
inclined to
peachment they would be
damag-
probably
probative
is
the most
formal,
tape-
Admission Moore’s
port.22
ing
can
against
evidence that
be admitted
certainly have
recorded confession would
him....
admissions of a defendant
[T]he
the informal
“reinforced and corroborated”
himself,
from the actor
the most
come
lay
two
witnesses.
reported
accounts
unimpeachable
knowledgeable and
source
Fulminante,
299,
111
499 U.S.
S.Ct.
past
of information about his
conduct.”
finding
a
1246. The state court’s
that
Bruton,
139-40,
Id. (quoting
It likely is without benefit of to accept plea agreement— so harsh a formal, tape-recorded Moore’s confession especially Raymond because likely would officers, police would state not have been a hostile witness and there is plea to on been able secure a little evidence that Ziegler could have con- basis of the informal confessions. Even addition, anything.24 tributed In as assuming prosecution noted was confi- already, agreement Raymond plea accepted by Ziegler dent that would have trial, nothing sentence, Moore did it clear reduce his testified at a is far from what as his an those or to co-defendant received witnesses have said what identical mandatory minimum testimony extent their would have been after going sentence jury, it to trial. persuasive although Accordingly, exercising is certain “extreme as Fulminante requires us to caution,” their reports do, second-hand would not Fulminante, nearly damaging have been as as Moore’s 499 U.S. at crime, quest support- 24. In record unlikely its construct a seems it from the record reasoning, ive of that he her interrogation its dissent claims that told much. The transcript only following question do not need to fret about shows “[w]e much what "Debbie, you're Raymond answer: since Moore would have testified had he here and you've story, you listened to their when did been called at trial ... because record “Today.” first Ziegler find out about this?” Raymond’s testimony at contains the state stated, Rogers's also "I didn’t know [about post-conviction evidentiary hearing.” court paper death] until we'd read the However, I still op. Dis. at the time at of the thing.” didn’t know the actual There is no the state neither nor defense counsel had Ziegler further of what record knew. Raymond interviewed in order to determine The dissent asserts that the state court ex- Moreover, what he knew about the events. plicitly found that Moore amade full confes- Raymond testimony offered the that the dis- Ziegler point sion to because it at one stated quotes sent brother's in order to behalf that "[t]he Court believes trial counsel's affi- freedom; help significant win his there are davit” and because that affidavit asserted that that, reasons to believe the context of a a "full had confession” been made. Read in trial, Raymond willing would not have been however, context, the state court declared help Raymond convict his brother. only that it believed the as to affidavit one brother, not but also served as particular assertion it contained—that an advocate Moore and his co-defendant Moore's counsel had reviewed Moore’s state- Indeed, interrogation. before and after the single it every ment—not that believed state- post-conviction hearing, Raymond re- affidavit, ment including contained in the just betrayed he vealed that felt pages those that it did discuss until three Attorney and District as did Moore later when for the first it time mentioned they “go when Furthermore, failed to bat” for him. alleged Ziegler. Moore's confession to subpoe- even if the state case, entirely court ignored state the "rel- knowing Raymond testify, naed him to be a “highly probative” conflicting evant” and evi- witness, unlikely hostile it would consisting Ziegler's dence statements have been able to elicit much of the informa- interrogation, rendering factfinding pro- its tion it from desired him. unworthy cess “defective” and of our defer- Ziegler, regard- Taylor, As for there is no evidence ence under AEDPA. See 366 F.3d at ing precisely what her Moore told about the 1000-01. *21 1114 (1966), in concluding L.Ed.2d 694 that counsel’s 16 conclude cannot we interrogation, police’s the continued for- Moore’s
failure to move which resulted the defendant’s confes- mal, harmless. taped confession was sion, stated, “I the had after defendant of application our The criticizes dissent Fifth,” Fifth not violate the plead the did Fulminante, actually “sup- it arguing that Anderson, at 790- Amendment. from opposite conclusion” ports the exact Miranda that the vio- determining 91. In Specifical- 1153. op. Dis. at holding. our harmless, we did not even lation was not that Fulminante's the contends ly, dissent the consider the other evidence state weight the of confessions description of to tie the defendant to the presented confessions applies Moore’s informal crime, or whether the would confession that, Ziegler as well Raymond and Rather, re- repeated have such evidence. consequently, Fulminante supports the lying a “de- guidance on Fulminante’s formal, taped con- conclusion that Moore’s probably is the fendant’s own confession two prejudicial not because the fession was most ... that can be damaging evidence unique weight. lay also carried confessions him,” id. against (quoting at 792 admitted Id. In advancing argument, the dis- this Fulminante, 111 S.Ct. Fulmi- entirely point sent misses the 1246) (internal omitted), quotation marks case, nante. In that the Court “prejudice we the from concluded of the coerced held that admission pe- cannot be Anderson’s confession soft prejudicial notwithstanding confession was the “confession central daled” because was availability another to a confession conviction,” id. lay witness. Under the dissent’s logic, Anderson, formal, taped As in lay other Fulminante made to a confession ability was central to state’s confession witness have his coerced would rendered plea. a count which to secure nonprejudicial, and his ease confession pled extremely Moore carried an harsh opposite way: would come out the his have mandatory minimum a result sentence as affirmed, not would have been conviction passage of the recent of a state ballot that, course, But was reversed. There at least a measure. is reasonable of Fulminante. outcome that, probability had his confession to of Fulminante is police Indeed, application our suppressed, Moore have been would fully with this court’s recent en consistent going to trial rather than insisted Terhune, banc decision Anderson v. did, which an pleading to offense to he (9th Cir.2008) (en banc), F.3d an AED- it that carried with so severe offense involving PA confession obtained in case year same mandatory sentence —the Fifth violation of the defendant’s Amend- Measure 11 sentence that co-defendant Anderson, ment we right silence. Salyer going to trial.25 In received after unreasonably considerations, held that the state court had light of these rea- law Mi- applied clearly established sonable conclusion is that Moore has es- Arizona, randa v. tablished Strickland prejudice.26 sup- point involuntary 25. 26. The dissent misses the when it ob- After confession was pressed, might serves the state well have that "Moore obtained lowest sen- offered Oregon felony generous plea bargain. tence under law need not available more Moore op. rejected any all Dis. Without show that he would have murder.” Moore's plea bargains might pro- and the evidence state have offered. confession other Hill, duced, likely enough not have con- it is that there a reason- would been Under of, charged felony probability chosen victed or even mur- able that he have der, actually bargain he rather would faced some lesser trial over the but charge. Accordingly, we need not consider offered. *22 never mentioned upon by or relied the arguments in its regarding prejudice. state is the Our task on habeas to examine Further, the dissent creates and relies court’s under the standards state decision upon testimony inevitably that it assumes by AEDPA. The court established state case, have supported would the state’s sup- failure to to that counsel’s move held any without in the evidence record as to confession was not press taped the availability substance or of such testi- for sole reason that he had prejudicial the or, mony, even important, more its admis- lay two also confessed to witnesses. decision, sibility. have, reviewing following that we law, analysis the based our on the decision in No court this case has undertaken the by and the made the state arguments itself factual inquiry necessary formidable to de appeal. argued on The state before the the admissibility termine in some —and court, court this district and consistent stances, substance —of the upon evidence court, argument
with its
state
and which the dissent
The
relies.
record dis
decision,
consistent with
state court’s
the
closes little about how and when most of
performance
that Moore’s counsel’s
was
state,
this evidence became known to the
prejudicial
one
and one
for
reason
it
making
impossible for us to determine
only:
Ray-
reason
Moore
confessed to
is,
whether
evidence
as seems
a
likely,
who
Ziegler,
mond and
could have been
the poisonous
“fruit of
tree” —a product of
witnesses, thereby rendering
called as
Moore’s confession. To make this deter
suppression
prac-
no
the confession of
would
us
require
mination
to find a multi
significance.
supra,
tical
As discussed
tude of facts for
appeal,
the first time on
a
argument wholly
in merit
lacking
is
function
we are
equipped
neither
nor
and the state court’s conclusion that Moore
permitted
perform.
to
See McNary v.
by
not prejudiced
counsel’s failure to
Ctr., Inc.,
Refugee
Haitian
suppress
a
objectively
file motion to
888, 112
(1991)
L.Ed.2d 1005
clearly
unreasonable under
Su-
established
(observing
appellate
that a federal
court
preme
permits
Court law. Fulminante
no
and
factfinding
“lack[s]
record-devel
law,
such construction
and such a
capabilities
oping
of a federal district
any
misconstruction is unreasonable under
court”).
standard.
apart
Even
from concerns
inap-
about
conclusion,
To
opposite
reach the
propriate appellate factfinding, we simply
again develops
dissent once
set of
its own
decline
base our
on arguments
decision
facts and its own arguments
arguments
—
theories
the state has never of-
that were
by
never conceived of
the state
fered, and which it
therefore
has
forfeited.
court,
suggested
nor
before
state
It
work great
prejudice
peti-
court,
court,
or
a
district
this
set of facts
tioner were we to affirm the denial of his
arguments
petitioner
to which the
has
petition
habeas
of such specu-
the basis
an opportunity
never had
respond.
arguments
lative
and assertions offered for
presented
case now
on the
behalf
state’s
time
a
first
member of this court—
the first
has been
time
created
its
arguments and
able, talented,
assertions to which
entirety
extremely
our
occasion,
no
experienced colleague;
opportunity,
it
on has had
or
is based
rea-
testimony
respond.
of witnesses and evidence
son to
Without
indication
prejudice
attorney
whether
suppress
Moore could also establish
had his
moved to
his con-
by showing
probability
that he
reasonable
fession.
plea bargain
would have obtained
better
court);
may
raised
assertions not
district
as to
evidence
from the state
what
may
Serv.,
that evidence
why
also A-1
Inc. v.
possessed
have
see
Ambulance
failure
counsel’s
rendered
County Monterey,
F.3d
337-39
harmless,
simply impos-
it is
the confession
(9th Cir.1996)
legal
(declining
consider
respond to
petitioner
sible for
theory
develop
further
require
that would
“arguments.”
state’s “evidence”
record).
ment of
factual
*23
of
prior
disapprove
decisions
Our
case,
raise
In this
the state’s failure to
Indeed,
prece
under our
practice.
such
the
failure
argument
below
that counsel’s
dent,
the
doubly forfeited
the state has
suppress
taped
to move to
the
confession
prejudice
fact-bound alternative theories of
other than the
was harmless
reasons
dissenting colleague
that
creates
our
two
existence of the
informal confessions
Not
the
on its behalf.
did
advances
argu-
precludes
considering
us from
that
by not
any such contentions
state forfeit
no
appeal.
ment on this
Moore has had
it
forfeit
raising
appeal,
them on
but
first
the
opportunity to introduce evidence on
failing
ed
in federal court
these theories
question
parts
of
of the
crucial
which
to
them in
district court. See
raise
the
now
for the state
case
dissent
creates
106, 120,
Wulff,
96
Singleton v.
the poisonous
are based on “fruits of
(1976) (“It
2868,
is
(citation omitted).
inexplicably
counsel
failed to
The state
fail-
court’s
file a motion
motion that
recognize that Moore’s confession
ure to
—a
easily
unlawfully, along
was obtained
with its and
could
have been based on either of
on
other
the state’s exclusive reliance
grounds,
two
each which
was meritori-
prejudice,
“confessions” to establish
result-
ous and each of which would in all likeli-
making any
ed in
court’s not
determi-
hood have
suppression
resulted
all,
of,
or what parts
nation as whether
his confession
its
fruits. The state
now
the evidence
which the dissent
*24
does not contest
finding
the
that Moore
a
un-
relies
as
result of the
was obtained
prevailed
would have
on one of them—that
was thus
lawful confession and
inadmissi- his confession
involuntary.
was
The rea-
A,
at
Appendix
infra,
ble in evidence. See
by
sons offered
counsel for his conduct
Nor,
reasons,
1119-20.
for similar
as we
(and
were both limited and unmeritorious
noted, did
have
the district court under-
bear no resemblance to the
sug-
reasons
any
inquiry. Although
take
such
it seems
dissent).
gested
the
His inexcusable
the
on
likely that
evidence which the dis-
failure to move to exclude the confession
(to
sent
the
that it
at
relies
extent
exists
afforded the state
opportunity
pros-
to
all)
as a
of
principally
was
obtained
result
ecute Moore on the basis of the most
confession,27
cannot
Moore’s
we
determine
damaging inculpatory evidence that can be
here.
no
de-
those facts
Because
factual
against defendant,
introduced
a
and there-
termination has ever
made as to the
been
exact a
plea
to
no-contest
egre-
tree”
poisonous
“fruits of
and because
gious
of felony
offense
murder with a man-
offer,
has
failed
repeatedly
the state
to
datory twenty-five-year
sentence. We
thereby forfeited, any argument
has
that
that
prejudiced by
conclude
Moore was
his
unproven potential evidentiary
some
case
counsel’s failure
file
suppression
to
might
as a whole
have rendered counsel’s
that,
per-
motion
because counsel’s
performance non-prejudicial,
deficient
we
fell
objective
formance
below an
standard
cannot and do not here consider
dis-
reasonableness,
of
he received ineffective
evidentiary
analysis.
sent’s
extensive
assistance of counsel under Strickland. A
Rather,
determining
we are left
contrary ruling
necessarily
would
consti-
weight
whether
difference between the
application
tute an
clearly
unreasonable
Moore’s statements
his brother and
Supreme
established
Court law. Neither
girlfriend
his half brother’s
and his formal
susceptible
Fulminante nor Strickland is
taped
that
confession
is such
of an objectively
interpretation,
reasonable
the exclusion of
our
the latter undermines
erroneous,
though
even
support
that
that would
confidence
Moore would have entered
a
a
plea
into so harsh
determination that
agreement.
perform-
Consider-
counsel’s
ing only
arguments
that
properly
competent
are
ance in this case was
or that
example,
27. For
the first two dramatic sen- Moore's counsel inferred these facts from
dissent,
Bybee
Judge
tences of
in which
statements his
client
made and from
case,
purports
confession,
to describe the facts of the
Moore’s half-brother’s
both of
parrot
provided by
the statement
Moore's
were
likely
which
inadmissible.
It is
for this
against
counsel
his effort to defend
that
himself
reason
the state did not
of the
offer
charges
incompetence.
appears
It
that
arguments
Judge Bybee
now makes.
contrary to
was
a
harmless
prejudice
no
result
confession
suffered
Moore
law as
clearly
established
Court
representation.
his
set forth in Fulminante.
the state
request,
Ignoring
whether the con-
that,
to consider
likely
court failed
for
failure
It is
but
counsel’s
involuntary
ground
on
motion,
fession was
suppression
would
file
Moore
by improper prom-
his will was overborne
plea agreement
entered into the
not
found,
court
leniency. The district
ises of
no
to a
required
plead
him to
contest
however,
confession was
that Moore’s
with a
man-
felony
charge
murder
severe
involuntarily. Because
state
made
twenty-five-year
sentence' —the
datory
that determination
challenge
does
by a
sentence received
co-defendant
same
that a motion
has conceded
appeal,
result,
As
our
after trial.
confidence
grounds involuntariness
suppress on
Accordingly,
outcome
undermined.
the merit
Despite
meritorious.
have been
cor-
is entitled to a writ of habeas
motion,
Moore’s counsel failed
of such
permit him to
pus directing the state to
“probably the
move to
what was
him from
withdraw
release
probative
damaging
evidence
most
we
custody.28 Accordingly,
reverse
Ful-
him,”
against
be admitted
[could]
district court and remand
the issuance
minante,
defendants after
2003)
obtained confessions
involuntary
(“[I]llegally
by giving their
bag”
of the
ones,
voluntary
than
may
less reliable
be
confessions.
using
coerced
and thus
confession
filed a motion to
Had Moore’s counsel
process.”
trial
violate due
another’s
can
ground the state concedes
suppress on the
1147,
Cooper,
(citing Clanton
meritorious,
that motion suc
and had
(10th Cir.1997) (“[A]
may
person
1157-58
ceeded,
all
highly
of this
probable,
which is
challenge
government’s
against
the
use
likely
been excluded
evidence would
given
him
of a
or her
coerced confession
poisonous tree.” See
as “fruits of the
Clanton,
by
person.”))); see
another
also
471,
States, 371
Wong Sun v. United
U.S.
(collecting
cases
almost all of his
text,
fully
I concur
in the remainder of the
opinion.
pivotal questions
simply
are
wheth-
er
Oregon
state court was unreason-
particular,
I
in Judge
concur
Rein-
able in its determination that Moore did
why
hardt’s discussion of Moore’s counsel’s
(1)
representation
receive deficient
failure to move to suppress his confession
(2) prejudiced
counsel that
his case. Be-
Moore,
believe,
prejudiced
in
I
has,
forfeiture,
cause the state
acknowl-
Lockhart,
52,
extent that Hill v.
edged that Moore’s confession was invol-
366,
(1985),
106 S.Ct.
pro-
rately, prejudice badly wrong. also demonstrate was Strickland guilty, Moore could v. Wash- directly Kimmelman, instead, more under Strickland deal with counsel’s 104 S.Ct. ington, 466 U.S. landscape— proper legal failure to create a (1984), Kimmelman v. L.Ed.2d case, file a failing in this by, for instance Morrison, 2574, 91 suppression meritorious motion. plainly (1986). Under Kimmelman L.Ed.2d Below, I discuss Kimmelman/Strick- Strickland, have court could state detail, in more prejudice land standard reasonably prob- if it were prejudice found why the Hill standard is not neces- explain failure to file a meritorious able that the here, and conclude sary disposition jail an increase in time motion led to under either prejudiced that Moore instance, a loss of through, for Moore— standard. bargain leverage. plea uses Kimmel- Analysis Judge Reinhardt
While
I.
ineffective-
Strickland’s
man to address
and Kimmelman
a. Strickland
Judge Bybee
he and
de-
prong,
ness
both
Strickland, Moore “must show
Under
prejudice
straightforward
from the
part
that,
probability
that there is a reasonable
prejudice prong as
inquiry of Strickland’s
errors,
unprofessional
but for counsel’s
Kimmelman,
applying the
used in
instead
proceeding
of the
been
result
On examination
standard used
Hill.
Strickland
standard
contest to the
charge
filing
murder
before
that he would have been better off in
a motion to suppress his confession would
gone
terms of outcome had he
to trial.
necessarily
not
have set Moore on a course
59-60,
1135 may at “[pjrosecu- op. the dissent that be difficult. Dis. 1157. Unlike agree I however, Judge Bybee, I think particularly ... are ill-suit- do not torial decisions judicial oversight.” op. asking Dis. courts consider these matters ed for broad poses “impossible an (quoting question.”3 United States v. Redon- See id. at 1158 (9th do-Lemos, 1296, First, prejudice inquiry 1299-1300 always 955 F.2d is Cir.1992), all, grounds, asking, on other counter-factual —we are after overruled 1508, Armstrong, v. 48 F.3d “is a probability States whether there reasonable United Cir.1995) (en banc)). (9th that, n. Prose- unprofessional 1515 5 but for counsel’s er- is, broad, indeed, rors, al- proceeding cutorial discretion the result of the v. though Wayte different,” Strickland, not unfettered. See have been 466 U.S. States, 598, 607-08, 470 105 694, United at 104 generally S.Ct. 2052—and oc- (1985). So, L.Ed.2d 547 if S.Ct. years curs after the fact if it has reached my ap- correct Judge Bybee were So, appellate objection an court. is give right federal courts the proach would uniquely plea bargain directed at the plea bargains charging dictate and deci- I inquiry suggest, critique but is instead a sions, I would share his concerns. prejudice inquiry generally. of the in nothing
But
Further,
Kimmelman/Strick-
plea bargain process
while the
approach implicates
land
such matters.
complex,
is
so is trial. To answer the
question
prosecutor
is not what
prejudice
context,
question
the trial
one
what a “fair”
charged,
should have
nor'
weight
present
must consider the
of the
Rather,
have been.
plea bargain should
evidence,
jury,
the views of the
the choices
whether, but for counsel’s
question
and, yes,
of the
prosecutor.
defense
assistance, a defendant would
ineffective
See,
courts, undaunted,
e.g.,
Yet
do so.
negotiate
in a
position
have been
better
Landrigan,
Schriro v.
550 U.S.
It,
therefore,
prosecutor.
with the
con-
1933, 1943-44,
S.Ct.
trial
because
majority
that counsel
defi-
finds
“nothing
thinks he had
to lose.” Id. at
grounds:
cient on two
Moore’s statement
fact,
everything
Moore had
suppressed,
should have been
lose—he could have faced far more severe
first,
and,
involuntary
because it was
sec-
He
charges
penalty.
and even the death
ond,
because it was obtained
violation of
got good advice from his counsel and a
Oddly, the
Miranda.
district court’s find-
good
Oregon.
deal from
ing that Moore’s confession was involun-
below,
tary
challenged by
is not
explain
For the reasons I
I would
state
appeal,
agree
majority
and I
with the
judgment
affirm the
of the district court
question
of voluntariness therefore is
denying
respectfully
I
writ.
dissent.
properly
Maj. Op.
before us. See
I. WHETHER COUNSEL’S
that,
pre-
1102-03. I note
were the issue
CONDUCT WAS
served,
persuasive argument
a
could be
DEFICIENT
given
made that the confession was in fact
review, may only
voluntarily.
inexplicably2
On AEDPA
we
issue a
Since
state —
corpus
pressed
appeal,
writ of habeas
when the state court —has not
this issue on
I
Kimmelman,
prong,
1. To meet
the first
"the
meritorious. See
477 U.S. at
defendant
382,
And,
375,
representation
must show
counsel’s
fell
not deficient
advantageous
guilty is the most
course.
only possible
his
defense—the
pursue
truly
nothing
Knowles defendant
767-69,
Id. at
Of these
contrast,
Moore’s counsel elected
lose.
situations,
say:
the Court had this to
move to
the confession
not to
later
for collat-
petition
[A defendant’s]
ulti-
he
its merits and its
because
doubted
asserting
eral relief
that a coerced con-
Additionally, though, unlike
mate effect.
plea
fession induced his
is at most a
defendant, Moore had a lot to
the Knowles
admissibility
claim that the
of his confes-
losing
he
a
by going
lose:
to trial
risked
mistakenly
was
and that
sion
assessed
agreement
getting
a far
plea
lenient
...
erroneously
since he was
advised
sentence. Had counsel de-
more severe
plea
unintelligent
was an
and voidable
plea
waiting
while
layed negotiating
Constitution, however,
act. The
does
suppression
charged
Moore to be
so
pleas
guilty
not render
so vulnerable
filed, might
have cost
motion could be
plea
....
In our
view defendant’s
plead
to such a
opportunity
guilty
reasonably competent
based on
charge.
minimal
If counsel in Knowles
an intelligent plea
open
advice is
not
despite having nothing
deficient
ground
may
attack on the
that counsel
lose, surely Moore’s counsel was not defi-
misjudged
admissibility
of the
had much to lose.
cient when his client
defendant’s confession. Whether a
unintelligent
of guilty is
and therefore
Indeed,
majority’s proposition
runs
*45
vulnerable when motivated
a confes-
nearly forty years
counter to
of
directly
erroneously thought
sion
admissible in
precedent,
established
Court
matter,
depends
evidence
as an initial
Richardson,
starting
v.
with McMann
397
retrospec-
not on whether a court would
759, 90
tance from counsel. place, the second previously [I]n he had good might motion seem like suppression full made a confession to his brother now, accepting the state’s tactical move [Raymond] Ziegler, and to Ms. [Debbie] do, bargain strategic thing was the plea either one of whom could have been knew at the time. knowing what counsel at any repeat called as witness time to Indeed, obligation explain counsel’s in full his confession detail.... light trial in of a offer is far risks of Moore, explained com- Counsel majority’s more nuanced than the new would, petent there counsel was mandatory scorched-earth-litigation strate- possibility might charge the state carefully trial counsel has gy. Moore’s aggravated Moore with murder because by affidavit his reasons for not explained victim this case had been as- [t]he filing suppress: the motion to saulted, bloodied, tape, bound with duct fail state- [Moore’s] I did not to review car, placed in the trunk of a taken to an many I read it times police. ment to the location, isolated rural marched into the length it at detail and discussed bound, woods while still and shot. Fur- He to me Mr. Moore. affirmed with thermore, extremely the victim had an true, that it accu- that it was large protruding abdominal hernia for rate. always which he wore a truss. I dis- Suppress. My I not file a Motion to did possibility cussed with Mr. Moore the doing reasons for this were two-fold. charged aggra- that if he were ever with all, First of interview [Moore’s] jury might, vated murder that the after taped which was and transcribed police, *46 taking into account all of the facts of the abundantly ... makes it clear that Mr. case, conceivably that he find had en- custody. was not in He never Moore gaged helpless “torture” of a and custody that he was in and believed admitted to me that he realized he was somewhat disabled victim. indirectly guilty. plead Court If McMann means effective assistance. The rec- client anything, ognized v. it means counsel's advice on as much when it stated in McMann that admissibility of a confession is unrea- guilty plea
Richardson that a
cannot be at-
simply
judges
sonable
because two federal
inadequate legal
tacked as based on
advice
disagree
years
with it
later.
'reasonably compe-
not a
unless counsel was
attorney’
was not 'within
tent
and
advice
majority
that it
cites two cases
holds
range
competence
of
demanded of attor-
establishing
recognized
out as
that we have
”
McMann,
neys
(quoting
in criminal cases.’
“Kimmelman-type Strickland claims ...
770-71,
1441));
U.S. at
90 S.Ct.
see also
397
pled
cases in which the defendant
rather than
Kimmelman,
377-78,
477
at
106 S.Ct.
going
Maj. Op.
trial.”
at
1105 n.14. These
Hill,
McMann);
(citing
2574
Mr. Moore Moore what accident, the victim was an shooting carefully to Mr. Moore as as I plained doubt there was never smallest but thought could what I the result would be during kidnap[sic] occurred option of his actions if he chose one or with an assault. We dis- began which another. felony murder rule. length cussed at murder, aggravated A conviction of fact that length also discussed at We course, subjected would have Moore any yet he had not been indicted for im- possibility penalty of the death or life possible conduct and that it was prisonment possibility pa- without the an came down from the when indictment 163.105(l)(a). § role. See Or. Rev. Stat. up grand jury, charge it could be for strength facing Given the of the evidence ... aggravated murder.... Moore, surprising it is not to learn that great length I discussed at with Mr. “attempt and counsel Moore decided to “aggravated Moore the definitions of possible secure the best of the resolution murder,” “murder,” “felony mur- counsel, nearly case” or that who had I Mr. that if der.” did tell he experi- three decades of criminal defense charged aggravated were murder ence, thought plea “was the best we if jury decided that murder had could do under the circumstances.” been committed under REV. [OR. strong strategic These and obvious rea- 163.095(e), § in the course of or ] STAT. forego sup- sons to take the maiming as a result of intentional pression protected motion are under torture, impossible that it was not Strickland, see 466 U.S. might aggravated he be convicted of (“[Sjtartaric respect- choices must be murder.... they ed these circumstances if are based frankly I if believed we went to trial he professional judgment.”), especially be- assault, guilty kidnap
would be found
obviously seeking
cause Moore was so
“to
(as
ping, and murder
codefen
expense
agony
save himself the
of a
dant, Roy Salyer, who
trial
an
chose
perhaps
trial and
also to minimize the
I
option),[6]
presume
but
did not
to tell
penalty
might
imposed.”
he
Moore what he
I
Mr.
should do.
*47
McMann,
767-68,
at
U.S.
90 S.Ct.
him
thought
told
what I
the result would
added).
(emphasis
majority’s
The
be of the various choices he had before
opinion sweeps
away.
all of these factors
him. I explained to Mr. Moore that if he
majority
advising
Had the
been
Moore at
to accept
chose not
the offer which the
time, they might
have
to a
him,
come
differ-
expected
State had made to
I
that
ent conclusion. But even
attorney
charge
accepting
the district
would
him
degree, kidnap majority’s morning-after
with assault in the first
that
conclusion
Moore, Salyer
proceed
justified
6. Unlike
chose to
to
nation and would
an
intentional
murder,
guilty
kidnap-
charge.
Rogers
trial and was found
of
murder
Moore shot
ping, burglary,
Salyer
gun
discharge
and assault. See
v.
revolver—a
that
not
un-
555403,
(D.Or.
Belleque,
at
.
2005 WL
*1
less it had been cocked
the shooter. Fur-
4, 2005).
thermore,
March
Rogers
temple,
was shot in the
as if
executed,
back,
he was
and not in the
Very strong
might
expected
slipped
7.
circumstantial evidence
be
if he had
and fallen
contra-
shooting” expla-
dicted Moore’s "accidental
backward onto Moore.
admissibility
weighs during
ation defense counsel
“misjudged
plea
counsel
confession,” McMann,
negotiations.
paragraphs
Two entire
defendant’s
affidavit,
14,
paragraphs
13 and
at
90 S.Ct.
Moore is
discuss
at 770- how Moore was more worried about
habeas relief. See id.
entitled to
plea agreement
that was offered
1441.
to his
90 S.Ct.
brother,
Woolheiser,
Lonnie
than he was
limits its consideration of
majority
The
agreement.8
his own plea
about
Another
para-
to a mere two
explanation
counsel’s
paragraph
entire
establishes
that
trial
trial
affidavit and
graphs of the
counsel’s
at great length
counsel “discussed
whether
many of the reasons
refuses to consider
try
it was
best interest
[Moore’s]
gave
pursuing
that
trial counsel
for
(em-
press
early
the ease to
resolution.”
going
instead of
forward with
plea bargain
added).
phasis
majority’s
The
assertion
strategy.
majority
trial
The
preparation
no suggestion,
“there is
let alone
that trial counsel of-
erroneously believes
evidence,
expressed
that Moore
a desire to
justify
fered
two reasons to
his advice
trial,
plead guilty and avoid
or to forego
(1)
to Moore:
because he concluded Moore
filing
of his
suppression
meritorious
in custody
was not
the time of the
motion, prior to counsel’s decision not to
(2)
giv-
confession and
because Moore had
motion,”
suppression]
Maj.
file
Op.
[a
people.
a full confession to two other
en
n.16, ignores
reality
1107-08
of the
1101-02,
1093-94, 1100-01,
Maj.
atOp.
See
record evidence.9
majority summarily
n. 12. The
1104-05 &
meticulous,
there is no evidence that
This kind of
repre-
concludes
informed
sentation,
early
provided by
the case to
an
press
attorney
Moore wanted
who
and,
therefore,
resolution
trial counsel had decades of criminal defense experi-
ence,
strategic
repre-
could not have made a reasoned
does not “show that counsel’s
suppression
objective
choice to not file the
motion so sentation fell below an
standard
Strickland,
upend plea negotiations.”
...
of reasonableness.”
as “not
466 U.S.
Palmateer,
2052; McMann,
972 at
Weaver
(9th Cir.2006);
767-71,
Maj. Op. at 1104-05. at
important-
see
More
ly
purposes
appeal,
of this
the state
portions
The extensive
of the affidavit
court’s decision that it did not constitute
already quoted make clear
counsel’s
representation
deficient
was not an unrea-
take the
forego
advice to
the motion and
application
clearly
sonable
established
consider-
plea was based
numerous
holdings
federal law as determined
than
two
But
ations other
these
factors.
of the
Court.
Maj. Op.
por-
at 1105-07. And other
see
plea
majority’s attempt
coun-
parse
tions
the affidavit demonstrate
front and center in both
sel’s advice on
to take the
negotiations were
whether
first,
trial
Trial
two
Moore’s and
counsel’s mind.
into
distinct
whether
decisions—
confession,
file a motion to
reported
counsel
that Moore indicated his
*48
second,
against
accept
a co-defen-
whether to
the offered
willingness
testify
dant,
surely
type
plea bargain
ig-
is
the
of eonsider-
an almost willful
which
—reflects
negotiations
plea
trial
whether the
occurred before
8. The affidavit indicates
counsel
properly
Moore that the offer to him
informed
or after trial counsel advised Moore that a
independent
made to
of the offer
unlikely
suppression
to suc-
motion would be
brother.
ceed or would otherwise be useless. The rec-
press
reflect that Moore wanted to
ord does
claims, Maj.
Contrary
majority’s
to the
see
early
for an
resolution.
1104-05,
Op. at
the record does not reflect
meritorious,
the
to be
lest the court
the record evidence and
determine
norance of
representa-
criminal defense
realities of
find that counsel “failed to rec-
appeals
of
Maj.
1104-07. As coun-
Op.
tion.
at
See
ognize the clear merit of that motion” or
clear, Maj. Op.
makes
see
sel’s declaration
of
properly
damaging
“to assess
the
nature
B,
to file the
App.
sup-
the decision not
formal
confession.”
tape-recorded
the
to take
motion and the decision
pression
Maj. Op. at 1104.
necessarily informed each other.
plea
the
majority’s application
of
Strick-
fact,
affidavit demon-
In
trial counsel’s
standard does not accord with the
land
two decisions—whether to
strates
defending
realities of
a criminal defendant.
suppress
file a motion to
and how to advise
competing
Defense counsel must balance
contempo-
made
plea
Moore on the —were
a
selecting
strategy:
factors when
defense
indicted,
was never
but
raneously. example,
for
the likelihood of success on
nego-
no contest to an information
pled
he
suppress,
the motion to
the likelihood of
part
plea.
simply
tiated as
of the
Counsel
prevailing
given
at trial
the other available
a confes-
could not
moved
evidence, the deal that the state is offer-
any
plea,
time before the
unless the
sion
penalties that a
ing,
potential
defen-
majority
to find
ineffective
means
counsel
deal,
by taking
dant can avoid
an offered
file
threatening
for not
such motion
and,
course,
own
plea negotiations.
defendant’s
wishes.
gave “wide latitude” to
Strickland
counsel
majority’s approach
The net effect of the
unhelpful judicial
to avoid
nosiness in
pernicious:
deciding
Instead of
whether
is
negotiations:
objective
conduct fell
an
counsel’s
below
reasonableness,
majority
particular
standard
No
set of detailed rules for
asks
the motion had merit and
whether
satisfactorily
can
counsel’s conduct
take
collapses
step
the entire first
of Strickland
variety
account of the
of circumstances
Maj.
question
prejudice.
into the
See
or the
range
faced
defense counsel
(“[0]ur
atOp.
inquiry
respect
legitimate
regarding
decisions
how best
performance substantially
deficient
over
represent
Any
a criminal defendant.
laps
inquiry regarding preju
with our
such
of rules would interfere with
set
dice.”).
so,
doing
largely ignores
constitutionally protected indepen-
strategic reasons detailed in coun
obvious
dence of
and restrict
the wide
counsel
sel’s affidavit that counsel had to advise
making
latitude counsel must have in
plea,
dispositive
Moore to take the
and the
tactical decisions.
question becomes whether the motion to
Strickland,
688-89,
466 U.S.
104 S.Ct.
suppress had merit. Paired with the ma
requirement
2052. A
counsel
defense
jority’s unprecedented reading of Arizona
any potentially
file
meritorious pre-trial
Fulminante,
being
or risk
incompetent
motions
found
(1991), Maj. Op.
there is a reasonable
but
errors,
for counsel’s
he would not have
majori-
short,
agree
I
with the
In
cannot
guilty and would have insisted on
pleaded
thorough representation
ty that counsel’s
58-59,
going to trial.” Id. at
MOORE A straightforward application the Hill that Moore cannot ineffective, standard demonstrates Even if Moore’s counsel was any preju- that he has suffered if he establish Moore is entitled to habeas relief prej- that he has suffered dice.11 This conclusion flows from two can demonstrate counsel, Moreover, if, majority effectively line defense of his as the bottom 10. plea agreements reputation, will not seek own always today, defense counsel must holds against accepting will bar- counsel suppress a confession or risk a claim move to gain. This makes no sense. counsel, there is no of ineffective assistance of second-guessing game. end to the If counsel Judge argues Berzon in her concurrence motion, moved to and lost on that option meeting that Moore had the then, by majority’s reading, counsel must prejudice either Strick- standard under through appeal. and take an see the case trial further, and, or Hill that he land/Kimmehnan appeal, then he must file And if he loses on Concur- meets both of those standards. See argu- habeas—all that he can be in the best ring Op. so I address her at 1129-30. II.C, position negotiate plea bargain. ments in Part infra. *50 know, First, home, him you could have and make walk simple facts. the state testify that Raymond Ziegler here, and to called after he freed himself. This kidnapping his role in the Moore confessed course, kidnapping is the that’s involved slaying Rogers. of Kenneth We do and they in this case because took him some- Ray- much about what not need to fret against [D]uring where his will.... this would have testified had he mond Moore time, Lonnie a little period who is does, trial, majority at as the been called just good boy rowdier —he’s a but he’s 1097-98; at 1112 Maj. Op. (sug- see at id. rowdy. drop He’ll at the of a fight little gesting Raymond Ziegler and “would un- possession hat. He had in his a .22 doubtedly unnecessary to do be reluctant magnum pistol Rogers in which Mr. had (“[I]t case”); at harm to id. [Moore’s] given previously- given to him or trad- — [Raymond far from clear what and Zie- ed, Randy, I’m not which. sure And extent gler] would have said or what they pushing Rogers up while were Mr. testimony persua- would have their been hill, muddy, kind of during it’s (“Critical- ....”); jury sive to a id. at 1113 winter and we have a lot of red mud ly, findings no the state court made as there, Randy down had taken the revolv- Ray- the contents what Moore had told er from Lonnie at the time he had Ziegler they mond or what details it, Rogers taken Mr. had slipped back- trial”), might have been able to recount at on the mud gun wards and the dis- Raymond’s because the record contains I’m charged. not sure of all the exact testimony post-convic- at the state court basically hearsay. details because this is it, evidentiary hearing. Raymond tion It’s what was stated court and it’s that, confirms before he took his brothers they basically what had told me after the police station where their confes- too, incident, in, I took them before recorded, sions were Moore cоnfessed to way or on the in. him the happened. details of what Here is it, oath, Raymond how described under added). (emphasis majority thus is the state court: disingenuous in stating that state “[t]he [Roy Salyer] got back from [W]hen Tex- court found that Moore had ‘confess- as and Rogers discovered had bur- [that Raymond Ziegler ed’ to” but did not Salyer’s home, glarized Salyer] showed specific findings concerning make the con- up over at Lonnie [Woolhiser’s] house confession, Maj. Op. tent of that Randy morning where was that [Moore] particularly because trial counsel’s affida- couple and ... there was a cases of beer vit—which the state court credited-—-stated and started drinking basically, that Moore had made a “full confession to my understanding ... instigated them brother Ziegler.” and to Ms. The rec- and, it, going up they into put spank- least, clearly Raymond, ord showed that ing their other friend because friends do knew what happened because Moore told process not rob friends. And in the him about the details. With this testimo- this, guess, I to make an example and ny, reasonably the state court concluded put Rogers some scare into Mr. so he failure on the of trial part counsel thing again, they did not do this prejudice would not have resulted in taped blindfolded him to duct him and counsel, court, Moore. Trial the state put him in trunk of the car and took recognized Ray- the district court all remote, him place out to a that’s a little mond could have testified about what gentleman not a lot. The a large guy concerning size Moore told him the murder. and didn’t walk much and stuff. record, And him their intent was to leave there In its selective treatment of *51 Woolhiser, Moore, by virtue of Salyer, and this testi- ignores irresponsibly majority kidnap- in the felonies of their involvement mony. assault, guilty felony were ping confession to Second, even without It Oregon equally under law. murder case the state’s Ziegler, Raymond and that had no affirmative indisputable Moore have air- likely been Moore would against Thus, felony to convict Moore of defense. that the case “would emphasize I tight. murder, was all that the state needed to do counsel airtight” because have been likely part Rogers’s kid- prove that he took the state’s strength of judge had and that the murder furthered the napping Neverthe- put it on. before the state case kidnapping. show, felony murder less, I the case for at all. one not have been hard. The was not difficult This would Roy Salyer and Lonnie state had both Oregon of the section 163.115 Under have custody, and both could Woolhiser Statutes, was a Rogers’s killing Revised testify part that Moore took been called by a if “it committed felony [was] murder court found that in the attack. The state or at- committed] ... who person, had also confessed to Moore Woolhiser as- [kidnapping or tempted] to commit Raymond Moore as their older brother in the death occurred] sault] [the girlfriend, Debbie well as to Woolhiser’s crime in furtherance of the course of and all of these witnesses Ziegler.12 Since attempting committing or person [was] good relatives or were Moore’s close Moore, that undisputed It is to commit.” friends, testimony likely would their have Rogers’s went Salyer, and Woolhiser very been credible. beaten, home, that he was Rogers that was yet And this scratches the surface and that he was tape, with duct bound testimony to the they damning of the available trunk of the car thrown into the location, they Rogers’s Before left for borrowed, prosecution. a remote driven to Moore, residence, Salyer, that and Woolhiser indisputable It is temple. in the shot explicitly that Moore’s great The state court found majority spends a deal of time 12. affidavit, including para- confessions discounting the value of these two trial counsel's what the witnesses would by speculating graph explaining on that no motion to "Ray- It finds that Ziegler Raymond would not have done. or was filed because likely a hostile wit- would have been testify, mond was truthful. have been called to could unlikely 1140-41, state] that noted, [the and that "it is ness” already supra at As see to elicit much of the have been able would clearly states that Moore admitted affidavit Maj. Op. from him.” it desired information Ziegler. Contrary making a confession to full speculation, and & n. 24. This is raw at 1113 assertions, Maj. Op. majority’s see testimony Raymond actually belied it is ruling that & n. the state court’s 1112-14 patently provided the state court. It is also Ziegler did not conflict Moore confessed of what Because the broad outlines absurd. interrogation transcript: be- with the Just i.e., Rogers very clear happened were Ziegler of the murder on the cause learned home, bound, kidnapped, in his was beaten interrogation day does not mean that and shot in the taken to a remote location interrogation. of it at the she learned state needed to head while still bound—the majority, I find it remarkable felony very little to convict Moore establish years question, after the incidents in twelve Focusing made murder. on statements knowing any parties of the in- and without questioning, the Ziegler during initial volved, Ziegler Raymond and can divine what is little evidence majority states that “there they thinking and what would or were any- Ziegler contributed could have it remarkable that have done. I also find thing.” Maj. Op. at 1113. But state aside, majority with almost no brushes finding Ziegler court did not rest its discussion, findings court's factual solely the state repeated Moore's confession could concerning confessions. questioning. these made at the statements she drinking Ziegler’s had been others at either the blood or the hair was ever scien- tested, Salyer “ranting tifically inspection and rav- residence. visual of the *52 Rogers suggested may broken into his hair that it ing” about how had have been the victim’s, long cabin and slashed his tires. This was who had hair that he wore in prompted Rog- ponytail. what the trio to head to ers’s residence —to confront him about the So, summarize, even without Moore’s robbery and to scare him out of ever com- police, to the or his confession confession witnesses, mitting another one. Four in- Raymond Ziegler, Moore or Debbie or cluding Ziegler, observed this entire inter- testimony co-defendants, the the action and then observed the trio drive off prosecution testimony had from multiple Salyer to confront a car Rogers —in witnesses, well unchallenged as as state- had borrowed from another one of the (1) Moore, ments from that: An intoxicat- guests. Salyer ed ranting raving had been and Rogers’s Rogers
When the trio arrived at
resi-
about how
had stolen from his
dence,
(2)
tires;
people
other
were there. These
cabin and slashed his
Moore had
Moore, Woolhiser,
people witnessed
Salyer
and left with
and
confront
Woolhiser to
(3)
arrive,
Salyer
Rogers;
and at least one of those
Rogers’s
the trio arrived at
residence,
people spoke with
what
they
Woolhiser about
and that soon thereafter
(4)
they
doing there.
Rogers;
were
Another was able were alone with
the trio
identify
all
Rogers’s
three defendants from a
returned from
togeth-
residence
photo lineup.
people
These
Rogers
would also er.
was found murdered the next
testify
point
day.
have been able to
that at
Salyer
clearly
this
Woolhiser and
were
plates
involved,
the car’s
they
was,
license
had been covered
gun
knew where the
tape. Shortly
over with duct
after the
and blood and hair
were found
the trunk
arrived,
people
defendants
these
all drove
of the car that the trio had borrowed. The
away, leaving Rogers
Moore,
alone with
police
prove
could
that Moore had lied
Woolhiser,
Salyer.13
about what
transpired
had
when he went
Rogers’s
residence. Add
testimony
the
highly inculpatory
There was also
physi-
Raymond
Ziegler,
and the case is
day
cal evidence in this case. The
before
airtight. The
felony
state’s
murder case
confessed,
Moore
Salyer
police
led
against Moore could hardly
any
have been
location of the
they
revolver
had used.
stronger
unless
the murderers
police
were unable to
it in
find
brought along a camera crew.
dark, but Woolhiser led them back to the
same area
day,
Moreover,
the next
at which point
the evidence was
such
they
weapon.
recovered the
When
Moore could have been
variety
tried for a
used,
found the car that the
they
trio had
of other crimes instead of or in addition to
trunk,
found blood in the
felony
as well as hair.
murder. Had Moore not pled to
Although
murder,
the record does not
felony
state that
DA
could have tried
exception
lineup
With the
they
identifica-
tions after
had finished their dinner. Af-
tion,
prosecution
house,
could establish all of the
arriving
gave
ter
at the station
Moore
paragraphs by
facts in the
relying
last two
description
largely
of events that was
accu-
Moore,
solely
on statements made
the ad-
up
point
rate
until the
that Woolhiser and
missibility
ques-
of which has never been
Salyer began beating Rogers.
day,
The next
day
interrogation
tioned. The
before the
asking
Woolhiser admitted to
owner of
case,
police approached
issue in this
anything
they
car if he had
could use to
they
eating
Moore and Woolhiser while
were
Rogers up,
responded
tie
to which the owner
restaurant,
pair
at a
agreed
local
and the
tape.
that he had some duct
ques-
come
station house
answer
murder,
fathom—that the state had a rock-
car-
cannot
which
aggravated
against
case
Moore and his best shot
life
solid
imprisonment,
of life
a sentence
ries
However,
deal.
pa-
strike
possibility
without
imprisonment
majority’s
opinion completely
formal
fails
role,
death.
See
or
Stat.
Or. Rev.
Likewise,
almost
of this evidence
163.095(l)(e),
to consider
163.105.
§§
n
struck.
implications for the deal Moore
tried for other
its
have been
Moore could
(“Without
See,
Maj.
at 1121
homicide,
e.g.,
Op.
any of which
criminal
types of
],
...
confession[
fruits of
imprison-
Moorefs]
of life
carry a sentence
would
163.115(5)(a).
have had tremendous
prosecution
§
In addition
ment. See id.
*53
high
the
burden it faced.
difficulty meeting
and
Moore could
charge,
homicide
to the
in
with In
of the weaknesses
the state’s
charged
been
view
likely
have also
case,
that, in
highly unlikely
Final-
the ab-
crimes, including kidnapping.
it is
other
confession,
being charged
of his own recorded
of Moore’s
sence
ly,
possibility
the
in
pled
felony
forefront
counsel’s
have
murder.
crimes was
Moore would
with such
with
any
the
confidence that
he discussed
We thus cannot have
mind when
As counsel testified:
the outcome would have been the same
Moore.
suppress.”).
a motion to
felony mur- had counsel filed
length
at
the
discussed
We
length
at
also
der rule. We
discussed
majority’s
parts
opinion
of the
formal
yet been indict-
that he had not
the fact
appendix,
majority
as well as its
the
also
possi-
that it was
any conduct and
ed for
record;
my reading of the
these
criticizes
an indictment came down
ble that when
example,
lack force. For
criticisms
any
jury, it could be for
grand
from
majority questions my placing
reliance
mur-
up
aggravated
to ...
charge
Woolhiser,
testimony
Salyer
on the
of
and
....
der
any evidence in the record as to
“without
Mr.
great
length
at
with
I discussed
of
availability
the substance or
such testi-
“aggravated
of
Moore the definitions
or,
mony,
important,
even more
its admis-
murder,” “murder,”
mur-
“felony
and
in
sibility,” Maj. Op.
(emphasis
at 1115
Mr.
that if he
I did tell
Moore
der.”
in
own
original),14
contrast to its
reliance
aggravated murder
charged
were
by the state on
arguments
on “the
made
that murder had
jury
and if the
decided
First,
Moore,
it is
not
appeal,” id. at 1114.
under
been committed
Rev. Stat.
[Or.
state,
the burden of estab-
who bears
163.095(e),in
of or as a
§
the course
]
prejudice; his
lishing that he has suffered
torture,
maiming
of intentional
or
result
in
record
failure to address evidence
might
that he
impossible
that it was not
making
it in
ignore
does not entitle us to
aggravated murder....
be convicted of
utterly
It is
for us to
our decision.
absurd
witnesses,
pretend
obviously
and
put
on blinders
All of this evidence—the
testimony
damning evidence—such as the
gun, Moore’s confession to
tape,
duct
pled guilty—
Moore and his of codefendants who
others —were known to
Indeed,
majority
simply
does
exist.15
They
counsel.
knew what
hesitation,
manufacturing
strange
apparently,
in
particularly
no
criticism seems
14. This
Moore,
arguments
behalf
who did
new
light
extensive discussion that
ma-
of the
impor-
appeal
not cite on
the two cases most
why,
opinion, Ziegler
jority provides
in its
majority’s opinion, Kimmelman
tant
good
Raymond
made
and
would not have
Fulminante,
any argument
make
relat-
See, e.g., Maj. Op.
prosecution
witnesses.
majority
on which the
bases
ed to the theories
1-12;
supra at 1145 n. 11.
see also
("The
Maj. Op. at 1116
its decision. But see
(sometimes erroneously called
majority’s
on this score
rule
15. criticism
forfeiture
rule)
arguments,
applies equally to
waiver
hypocritical because it has
seems all the more
so;
expect
arising
guilty pleas:
petitioner
does not
us to do
he
from
himself
must show “that
there is a
specifically
Salyer’s
addresses the issue of
reasonable
that,
errors,
Second,
probability
but for counsel’s
testimony
his brief.
the record
Salyer
pleaded guilty
he would not have
little doubt that
and Woolhis-
leaves
admissible,
going
would have insisted on
to trial.”
testimony
er’s
would have been
Hill,
available,
18.
suppressed,
requirement,
had
the
the defendant
that
confession
been
state
must show
that,
plea
probability
there is
may
bargain.
have
a better
a reasonable
but for
offered Moore
errors,
Op.
pleaded
Maj.
possibility
n. 26. This
counsel’s
he would not have
1114-15
is
guilty
going
unlikely
and would have insisted
Considering the
both
and irrelevant.
Hill,
evidence,
trial."
474
at
weight
speculative
U.S.
Yet
assume Fulminante
to those
analogous
presented
here.
its
plies,
facts are so
from those
different
Moore’s confessions do not
the same
need
presented here that
to suggest
background
it is absurd
kind
that Ful-
explanation
it supports
proposition
the minante’s confession to Donna Sarivola re-
court’s
clearly
quired
Raymond
state
determination violated
Ziegler
because
were
federal
strangers
established
law. Fulminaiite
way
was not
to Moore in
of murdering
eleven-year-old
convicted
his
Donna
was to
Sarivola
Fulminante. Un-
stepdaughter.
circumstances,
He made two confessions: der
only
made sense
Sarivola,
Anthony
one
a fellow inmate
that Fulminante would have
confessed
him,
who befriended
and another to
already
Donna her if he had
confessed
her
Sarivola, Anthony’s wife.
Ray-
Fulminante had
husband.
confessions to
accomplices,
no
physical
Ziegler
“the
evidence
preceded
mond and
his confession
from
scene and
police,
other circumstantial
and the confessions were not
evidence would have
way
been insufficient to
in the same
linked
that Fulminante’s
Fulminante,
convict.”
499 U.S. at
confessions
the two
were.22
Sarivolas
contrary,
22. On the
the confessions in
this
sense that
all
confessions
corroborated
372-73,
each other. Id. at
To
bear far
case
more resemblance to the confes-
majority distinguishes
that the
extent
Mil-
Wainwright,
sions Milton v.
ton because Moore’s confession
issue was
(1972),
wanted his advice. friends; house he was at her good were Prejudice The Concurrence’s Stan- C. Rogers, he left to confront with her before dard afterwards, and
he
to her house
returned
ar-
Judge
concurring opinion
Berzon’s
mur-
Rogers’s
he
at her house when
was
satisfy
to
gues that Moore could choose
Moreover,
in the
reported
der
news.
was
un-
prejudice prong either
the Strickland
Ziegler
not have the
Raymond and
did
directly
Hill or
under Strickland
der
to lie
Donna Sarivola
incentives
same
through
lens of Kimmelman.
applied
Fulminante, here there
did. Also unlike
However,
Concurring Op. at
See
1129-30.
example, the duct
was other evidence—for
Berzon
views
the Kimmel-
Judge
Rogers, and the blood
tape
to bind
used
appro-
as more
framework
man/Strickland
in the
corrobo-
and hair found
trunk-—to
resolving
priate for
this case because Hill
testimony
Ray-
rate
of the
the details
plea
governs prejudice determinations
given.23
would have
Ziegler
mond
concerning counsel’s advice on
bargains
regardless of how Fulminante
Finally,
to take the plea,
whether
after “motions
an
read,
certainly does not hold that
is
legal
practice
discovery
have set
to
to file a motion
attorney who declines
at
landscape.”
Id.
1130. On the other
challenged
in favor
suppress the
confession
Kimmelman,
hand,
Strickland and
her
plea
to
a
on the
advising
of
his client
take
view, “deal with counsel’s failure to create
confes-
presence of the second
basis of the
legal landscape by,
exam-
proper
[for
a
—
ac-
the Fulminante Court
sion—which
failing
plainly
to file a
meritorious
ple],
admissible,
Fulmi-
was
see
knowledged
Judge
motion.” Id. at 1130.
suppression
298, 300, 302,
nante,
concludes that
the Kimmelman
Berzon
assistance.
provided
1246—has
ineffective
context,
standard,
per-
applied
plea
by
to be
show-
returning
prejudice
I
to
common theme mits
established
by
close
properly
had
ing
I do not
that the
defense counsel
my
of
dissent.
believe
legal landscape prior
cor-
reading
shaped
of Fulminante is
majority’s
However,
might
wrong
proceedings,
if
am
the defendant
plea
rect.
even
I
correct,
bar-
AEDPA this have obtained more favorable
majority
is
under
prosecutor.
Id. at 1131.
permit
grant
gain
from
enough
is not
us
may
attempts
so if the
she
to draw is
only
relief. We
do
The distinction
habeas
itself,
any
but
contrary
precluded
by
decision
Hill
also
state court’s
“clearly
weight
in both
precedent
law
established”
the vast
that was
simply
majority
Anderson v. Ter-
did not discuss
of the additional
claims that
present
that was
before the state
evidence
(9th Cir.2008) (en banc),
hune,
F.3d 781
prejudice
Its entire discussion of
is
court.
reading
Fulmi-
supports its remarkable
basically
single
sentence: “The confession
Maj. Op.
cites
at 1114.
It
nante. See
Anderson,
was central
to the conviction.”
proposition
that a habeas
Anderson for
sup-
provides
at 792.
no
Anderson
...
applying Fulminante need "not
con-
court
reading
majority’s
port for the
broad
Ful-
present-
evidence
sider the other
the state
majority's
reading
If
minante.
crime,
wheth-
ed
the defendant
to tie
correct,
and Fulminante
it would
Anderson
repeated
er
would have
such
the confession
the Fulminante rule
harmless
swallow
Maj. Op.
an
That is
erroneously
evidence.”
1114-15.
analysis applies
admitted
error
*59
Anderson,
reading
which
confessions.
inappropriate
of
of appeals
courts
and the district courts.
can
challenged
be
a plea
after
is the advice
“legal landscape” argument
Her
particular
is inter-
to enter a
plea, for all other
“established,”
esting but
has never been
defects are
by
plea.
waived
the
To be
established,
clearly
sure,
much less
by the Su-
Strickland is not irrelevant
to the
preme
Hill;
Court. It
analysis
also raises substantial
under
explic-
the Hill Court
concerns about
separation
itly adopted
federalism and
the
in
Strickland standard
the
powers.
of
guilty
hold,
context of
pleas. “We
there-
fore, that
two-part
Strickland v. Wash-
The concurrence’s critical mistake is its
ington
applies
test
challenges
guilty
failure to
principles
consider fundamental
pleas based on ineffective assistance of
governing the appeal
guilty pleas.
of
A
Hill,
counsel.”
1158
Conducting
type
inquiry
this
of
very
into wheth-
breadth of the inquiry ...
er a
plea bargain
better
would have been
require
government
would
that the
di-
require
judicial
vulge
available would
the kind of
minute details
process
about the
scores,
prosecutorial
hundreds,
review of
which
perhaps
decisions that
of
courts
uniformly
charging
have almost
decisions are
shunned.
made. The court
previously
We have
would also have to
validity
described the reasons
consider the
of
avoiding judicial
various rationales
review of the
advanced for
plea
partic-
decisions,
ular
bargaining
charging
which
decision:
would en-
deeply
mesh it
policies,
into the
prac-
charging
Prosecutorial
plea
bar-
procedures
tices and
of the United
gaining
particularly
decisions are
ill-suit-
Attorney’s
States
Finally,
Office.
judicial
ed for broad
oversight.
court would have to second-guess the
place,
first
they involve exercises of
prosecutor’s judgment
variety
of
judgment and discretion that are often
cases to determine whether the reasons
difficult to
in a
articulate
manner suit-
advanced therefor
a subterfuge.
are
judicial
able for
evaluation. Such deci-
normally
Redondo-Lemos,
sions are
United States v.
made as a result of
955
(9th Cir.1992) (foot
careful
F.2d
professional judgment
1299-1300
as to the
evidence,
strength
omitted),
notes and
citations
availability
overruled on
resources,
grounds,
other
visibility
of the
United States v. Arm
crime
(9th
strong,
likely
and the
F.3d
1515 n.
deterrent effect on
Cir.
1995) (en banc);
particular
Wayte,
defendant
see also
and others similar-
607-08,
ly
collect,
situated.
standard
”
prosecution’s
looking at the
done without
(quoting United
arbitrary classification.’
instance.”
Id. at
456, 464, 116
“in the first
decisions
Armstrong, 517 U.S.
States
*62
(1996)) (inter
assistance of
In an ineffective
1134-35.
134 L.Ed.2d
trial,
a
where the
removed));
following
claim
counsel
Redondo-Le
quotations
nal
to the court
(“Given
question posed
counterfactual
mos,
signifi
the
at 1299
jury might
a
evaluating what
concerns
charging and
prosecutor’s
of the
cance
done,
presented
the
have
at least
evidence
decisions,
offend
it would
bargaining
plea
it was
jury
legal
and the
instructions
to have them
justice
notions
common
for review.
con-
throw,
are available
given
a coin
of a dart
the basis
made on
situation,
trast,
there is
plea bargain
in a
arbitrary
capricious
other
toss or some
about
other deals the
no record at all
what
say
that
thing
it
one
But
is
process.”).
might have offered.25
prosecution
the feder
of either
branches
the executive
prosecute
cannot
governments
al br state
whether,
If,
contrast,
question
in
“the
is
through
methods
there are
selectively, for
assistance, a
ineffective
but for counsel’s
such
judiciary can evaluate
the
which
position
in a better
[be]
would
defendant
different,
far
entirely
It
anis
claims.
Judge
prosecutor,”
the
as
negotiate with
bothersome,
district
thing to instruct
more
on,
the test later
id. at
articulates
Berzon
bargain
plea
“the
ask whether
courts to
entirely
would
the new standard
improved upon
have been
outcome
un-
Numerous cases decided
swallow Hill.
suppression
the meritorious
filing of
also be characterized as
der Hill can
at 1132-33.
Concurring Op.
motion.”
failure to create
“dealing] with counsel’s
inquiry into
require
analysis would
That
by failing to take
legal landscape”
proper
has
this court
questions
precise
Op. at
Concurring
action.
strategic
some
which the
avoid and
courts should
said
See,
Weaver,
Judge
counsel based on
assistance of
courts
ineffective
inquiry that
type
this is
motions).
suppression
various
failure to file
in ineffective assis-
undertake
regularly
sup-
meritorious
filing
potentially
And
Concurring
claims. See
tance of counsel
always strengthen de-
motion will
considering pression
Rather than
at 1134-35.
Op.
(at
position
bargaining
actions,
fense counsel’s
Judge Berzon
prosecution’s
ruling is
potentially
until a
adverse
“the
least
would focus on
approach
that her
says
down).
If
that a
choices,
possibility
handed
counsel’s
and defense
defendant’s
plea bargain might
more favorable
and defense
judgment,
counsel’s
defense
if a
meritorious
potentially
offered
But if the
been
Id. at 1135.
counsel’s actions.”
sufficient to estab-
was not filed is
plea
“the
bar- motion
is whether
question posed
guilty
prejudice after
improved lish Strickland
would have been
gain outcome
every plea bargain
virtually
suppres-
plea,
filing
the meritorious
upon
relief.
be,
country
open
now
to habeas
motion,”
is
says
ought
id.
as she
sion
presented by
looking
evidence
at the
swer
problem is avoided under
note that this
I
defendant on habeas
and the
question
trial counsel
prejudice: If the
Hill standard of
discussions and
the defendant's
review about
have insisted
the defendant would
is whether
depends
prejudice standard
The Hill
taking
plea,
choices.
going to trial instead of
prosecutor’s considerations.
not at all on
a reasoned an-
question
amenable to
is
within
proper
apply
context,
Viewed
standard of
guilty plea
Hill
other
AEDPA,
“[sjome
review under
it was not an unrea-
say
than to
...
other cases
application
sonable
Court law
(as Judge
assume
today)
Reinhardt does
Oregon
for the
courts to evaluate Moore’s
also
applies
Hill
the motions con-
claim under Hill. The case fits squarely
plea bargain
involved,
text when a
within the rule of Hill: Moore asserts that well
inas
the advice context.” Id. From
his trial counsel failed to advise him that a
that, despite
the absence of
ap-
case
suppress might
motion to
be successful. plying
proposed
her
guilty
distinction to a
advice,
On the basis of that
Moore pled no
case,
she
inexplicable
draws the
con-
felony
contest to the charge of
murder.
clusion that
provide
“these cases do not
*63
considering
Other courts
such claims have
support
using
for
Hill as the exclusive
uniformly looked to Hill for the correct
standard in such circumstances.” Id.
standard.26 Given that the federal courts
Supreme
The
Court would have had dif-
have been applying
prejudice
Hill’s
re-
ficulty being more clear than it was in Hill
quirement to situations similar to the one
proper prejudice
about the
standard for
case,
presented by this
it is difficult to see
said,
guilty pleas.
hold, therefore,
It
“We
how a state court should have
to
been able
two-part
Washing-
Strickland v.
divine this kind of extension of Strickland
applies
ton test
challenges
to
guilty
to
and
Judge
Kimmelman.
preju-
Berzon’s
pleas based on ineffective assistance of
dice standard is not
clearly
estab-
counsel.
law;
guilty
the context of
Supreme
pleas,
lished
Court
it is also con-
...
to satisfy
‘prejudice’
trary
requirement,
to all other
authority.
federal
I
the defendant
puzzle
therefore
over
must show that
there
a
Judge Berzon’s
ob-
jection
that,
probability
I do
reasonable
but
any
not cite to
case
for coun-
errors,
holding that
sel’s
reading
her
he would
prejudice
pleaded
not have
Hill,
precluded by
guilty
standard is
see
would have insisted
going
Concur-
to
1134,
ring Op. at
for all the
trial.” The
cases she cites
Hill Court did not recognize
applying the
Judge
Kimmelman standard oc-
Berzon’s distinction
pre-
between
curred after a trial and did
landscape
not involve the
trial
setting ineffective assis-
plea context. She
respond
also fails to
to
tance claims and
guilty
advice to enter
the numerous
I
claims,
cases
have cited which plea
point
and she cannot
to a
See,
Merchant,
780,
e.g.,
Gilbert v.
488
say
F.3d
cannot
Davis has shown 'a reasonable
(7th Cir.2007) ("[G]iven
791
that he
that,
was con
errors,
probability
but for counsel's
he
plea,
victed based on his own
Gilbert was
pleaded
guilty
not have
and would
"
obliged
complete
the demonstration of
have
going
insisted on
(quoting
to trial.’
prejudice by showing that had his confession
Hill,
59,
366));
I respectfully dissent.
I
CALLAHAN,
Judge,
Circuit
with whom
Several salient facts control this case
KLEINFELD,
BYBEE,
TALLMAN,
panel’s
and undermine the
findings of defi-
BEA,
SMITH,
and N.R.
Judges,
First,
Circuit
cient performance
prejudice.
join, dissenting
rehearing
from denial of
en we should focus on the
proffered
reasons
bane:
by counsel for not filing
sup-
a motion to
press, not because the motion would not
I respectfully dissent from the order
successful,
have been
but because the rea-
denying rehearing en banc.
panel’s
sons bear on the real
in
issue
this case:
opinion fails to follow the standard for
attorney
whether the
rendered ineffective
determining ineffective assistance of coun-
by counseling
assistance
accept
Moore to
sel set forth
Supreme
Court
the plea bargain. The first two reasons
Strickland v. Washington, 466 U.S.
(1)
were that Moore did not think he was
(1984).
borrowed,
plates
point
had been
a remote
this
the car’s license
driven to
indisputable
tape.....There
temple.
It is
with duct
was
in the
covered over
shot
Woolhiser,
Moore,
Salyer,
virtue of
inculpatory physical
highly
evidence in
also
kidnaping
confessed,
in the felonies of
involvement
day
their
before Moore
this case.
assault,
felony murder un-
guilty of
were
Salyer
led
to the location of the revolv
indisputable
equally
Oregon law.
It is
der
they
police were
had used. The
unable to
er
Thus,
affirmative defense.
had no
that Moore
dark,
them
it in the
but Woolhiser led
find
murder,
felony
all
Moore of
to convict
day,
area the next
at which
back to the same
prove
he took
needed to do
the state
weapon.
po
point they
Whеn
recovered
mur-
Rogers’s kidnaping and that the
part in
used, they
lice found the car that the trio
kidnaping.
furthered the
der
trunk,
well as hair.
blood in the
found
hard. The state
not have been
This would
Czerniak,
1128, 1181-82
Roy Salyer and Lonnie Woolhiser
had both
J.,
(foot
(9th Cir.2008)
dissenting)
(Bybee,
been called to
custody, and
could have
both
omitted).
*66
to their older brother
had also confessed
hiser
good
place Moore in a
sion of the facts fails to
Raymond
as well as to Woolhiser’s
Moore
light:
they
Ziegler.....Before
girlfriend, Debbie
walk,
point during
Woolhiser
At
this
Moore,
some
residence, Salyer,
Rogers’s
left for
gun.
ex-
a loaded
handed Moore
drinking with others
Woolhiser had been
killing
they
intention of
plained that
had no
"ranting
Salyer was
Ziegler's residence.
at
simply going
frighten
Rogers; they were
raving”
Rogers had broken
about how
leaving
top
the hill and
by
him on
of
him
his tires. This
into his cabin
slashed
way
As
forcing him to find his
back home.
Rogers's
head to
prompted the trio to
what
hill, however, Rogers
the four climbed the
robbery
the
confront him about
residence—to
Moore, causing
back into
stumbled and fell
committing an-
of ever
and to scare him out
witnesses,
discharge. As a
gun
his hands to
including Ziegler,
the
one. Four
other
result,
gunshot
Rogers
accidental
died of an
interaction and then ob-
this entire
observed
Rogers—
wound to the head.
drive off to confront
served the trio
Moore,
at 1133.
Salyer had borrowed from an-
in a car that
guests.
of the
other one
Salyer
panel
went to
residence,
cites the fact that
4. The
Rogers’s
at
When the trio arrived
year
twenty-five
the same
trial and received
people wit-
there. These
people were
other
suggesting
arrive,
that Moore
Moore, Woolhiser,
as Moore as
sentence
Salyer
nessed
plea bargain. See
from his
did not benefit
spoke
people
with
least one of those
and at
assertion,
Moore,
n. 15. This
In our
ness under prevailing professional norms,”
view а
plea
defendant’s
of
guilty
reasonably
“(jjudicial
based on
competent
that
scrutiny of
per-
counsel’s
advice is an intelligent plea
open
not
to
deferential,”
formance must
highly
be
and
Thus,
single
Rogers.
shot that
Salyer
killed
being charged
aggravated
with
murder.
did not face the same risk as Moore did of
court
that counsel’s failure
indulge
strong pre-
thought
state
to
must
that “a court
conduct
with-
reasonable,
counsel’s
falls
sumption that
file a motion to
was
suppress
range
profession-
of reasonable
in the wide
and it also
that
the motion
found
would
Mirzayance, 129 S.Ct.
al assistance.”
have been
because Moore had
“fruitless”
Strickland,
Ill
and its failure to follow
Supreme
the
panel’s
The
erudition cannot hide the
guidance
Court’s
on deferring to counsel
problematic nature of its decision when the
and to the reasonable determinations of
case is reviewed on its stark facts.
In
state courts and district courts.
1995,
participating
Moore admitted to
in
Finally,
equally important,
the prac-
kidnaping
the
of Rogers
subsequently
implications
tical
of our failure to take this
told at
persons
during
least two
case en banc are significant.
panel
The
kidnaping he had fired the single shot that
opinion creates out of whole cloth a new
Rogers.
had killed
managed
Counsel
area of potential habeas relief where de-
plea
secure a no-contest
to a charge of
fense counsel is faced with a “Morton’s
felony-murder that
twenty-
resulted
Fork” —a choice between
equally
two
un-
Now,
year prison
five
term.
some four-
pleasant
Filing
alternatives.
a motion to
years later,
majority
teen
would vacate
suppress might
prose-
have weakened the
the conviction and sentence because coun-
hand, possibly,
cutor’s
but not necessarily
sel failed to
file motion to
probably,
or even
resulting in
prosecu-
Moore’s confession to
police.
This
offering
tor
a better deal. However ac-
confession, however, was made after
cepting
bargain when
pro-
offered
Moore had
persons.
confessed to two other
tected the defendant
exposure
from
to a
Moreover, Moore and his counsel did not
much harsher sentence. As if labeling as
coerced,
think that his confession had been
ineffective defense counsel’s resolution of
questioned
Moore has never
the verac-
impossible
such an
dilemma weren’t bad
ity of his confession..
enough,
panel opinion
also sanctions
panel
argues that a
sup-
motion to
federal habeas relief on this basis even
press the confession should have been
strategy
where the
foregone has been de-
made and would have been successful.
clared
“fruitless”
a state court. We
But
Supreme
under the
opinions
Court’s
should have taken this case en banc to
McMann,
770-71,
1167
fective assistance
counsel was unreason
appellate
creative
highly
and
egregious
able,
majority con-
in
part,
at least
because
record is
fact-finding
which
to his
Moore’s confessions
devoid of evidence about which details of
cludes
inculpatory
a friend lacked
and
in
divulged
brother
the crime Moore
his confes
(2)
detail;
majority
invented a
has
Ziegler
Raymond
and
Moore.
sions
new,
rule that counsel’s
virtually per se
Czerniak,
F.3d
1131
Moore v.
534
sup-
motion to
file a meritorious
failure to
(“Moore’s
(9th Cir.2008);
at 1147 n. 21
id.
confession to the
a defendant’s
press
confession would have been the
taped
to re-
petitioner
a habeas
always entitles
----”);
at
full account of the events
id.
Strickland,
many
no matter how
lief under
(“[I]t is far from clear what those
confesses to.
people
other
the defendant
would have said
called to
[if
witnesses
case,
rehearing was warranted
In either
....”);
This,
n. 24.
testify]
id.
1148-49
join fully
I
panel’s error.
correct the
charitably put,
imaginative appellate
is
from the order
dissent
Judge Callahan’s
fact-finding
possible only by ignoring
made
banc,
rehearing
sepa-
but write
denying
en
in the
some inconvenient facts
record.
my concern with the
rately
emphasize
counsel,
contrary,
To the
Kim
court’s
majority’s treatment of
state
Jordan,
given
averred Moore had
“full”1
factual determinations.
Ziegler
Raymond
to both
and
confessions
facts,
Randy
briefly, are these:
The
Moore.
Jordan used this word—“full”—
Moore,
accomplices,
two
Lonnie
along with
three times
his affidavit.
Jordan’s
Salyer, assaulted Ken-
Roy
and
Woolhiser
probative
statement
is some of the most
up,
him
threw him in
Rodgers, tied
neth
evidence we could have of the extent and
car,
him to an
the trunk of their
drove
content of these confessions—counsel’s
him,
spot, blindfolded
marched
isolated
based,
knowledge
part,
is
at least in
woods,
‘accidentally’
then
him into the
defendant,
communications
temple
point-blank
him in the
shot
is,
all,
performance
after
Jordan’s
we are
felony
pleaded guilty
Moore
range.
evaluating.
now
to 300 months’
murder and was sentenced
The state court credited Jordan’s affida-
the fact
imprisonment. Despite
Raymond
vit and found
Moore and
“[b]oth
man,
being
trigger
Moore confessed to
[Ziegler]
the friend
could have been called
once,
twice,
times,
three
not
not
but
repeat petitioner’s
as witnesses to
confes-
fact
his coun-
despite the
told
suppress
sion. A motion to
would have
true,
that these confessions were
sel
so,
In doing
been fruitless.”
the state
despite the fact that the state court found
portion
court even cited to the
of Jordan’s
would have been
that motion
describing
affidavit
the confessions as
fruitless,
majority holds that Moore’s
“full.”
sup-
failure to file a motion to
counsel’s
press
separate
one
the three
confessions
majority
finding
The
first concludes this
constituted ineffective assistance of coun-
court did
inadequate
because
state
Washington,
sel under Strickland v.
expressly
prior
find that the two
con-
not
80 L.Ed.2d
cramped
fessions were “full.” This
read-
(1984).
contrary
long-
ing is both incorrect and
controlling
regarding
standing,
precedent
majority
concludes
state court’s
every finding of
implied findings.
inef-
“[N]ot
determination Moore did
receive
(1984).
University Dictionary
Complete
every
“2."
detail <a
Riverside
Full:
full
of the incident>.” Webster’s II New
account
*70
on the record in infi-
contentions. As Moore’s habeas counsel
fact need be stated
clarity.... When a state
explained, “Nobody
Raymond
nite detail and
knows what
a
a
hearing
Moore,
trial court holds
on motion
[Roy]
Ziegler,
Salyer
Mrs.
or
motion,
on the
suppress evidence and rules
ignorance
would have said” at trial. Our
may
district court
assume that
federal
entirely
on this score is
caused Moore
necessary
court
the
the state
found
facts
consequences,
and he must
bear
”
support
the state court’s decision....
aspects
inquiry,
all
of the Strickland
Goldsmith,
Knaubert v.
proof.
Moore bears the burden of
Wood
(9th Cir.1986).
Visciotti,
19, 25,
v.
ford
(2002).
case,
before he arrived at police station. finder of fact. But we cannot do so our- Even Moore’s Ziegler’s briefs describe selves; that is the role of the state courts statements about when she heard the con and, circumstances, appropriate under “ambiguous” fession as and “equivocal.” federal district It court. is never our role. important As as the evidence that is in panel majority’s expressed If the doubts as to the record fullness of Moore’s about the fullness of Moore’s confessions Ziegler confession to is the evidence that unnecessary decision, are then the provided isn’t. Moore has not shred rehearing need for is all the more obvious. support evidence to his claims that his case, If majority such is the has creat- Ziegler confessions to and to his brother new, ed a virtually per se rule that Raymond detail, lacked inculpatory failure to file a sup- meritorious motion to Ziegler Moore did not confess to prior to press a defendant’s confession to the police interrogation, Ziegler or that always prejudicial. If the existence of Raymond would have been reluctant separate, two independent, mutually example, witnesses at trial. For have, not, confessions, corroborating proof by way given persons could but did offer of affidavits or from to whom the Ziegler personally declarations defendant was Raymond close, present corroborate his is insufficient to establish harmless *71 all, error, After a “confes little will be. SANCHEZ; Sanchez; R. E. C. Arizona v. no other evidence.” is like
sion Rodriguez; Figueroa, S. 279, 296, Fulminante, S.Ct. Plaintiffs-Appellees, (1991). 1246, 113 L.Ed.2d majority correctly observes multiple CANALES, Sergeant; confessions there were also LAPD James Wesley Woo; But the differences between Fulminante. Ruben Gonzalez Wil- Lantz; Rede; Ronquil- are stark. The liam Max Alex this case and Fulminante lo, Defendants-Appellants. giv- was confession Fulminante second (2) (1) individual; to a single to a en: No. 06-55584. stranger, virtual whose connection Appeals, United States Court fact that was the Fulminante was the she Ninth Circuit. (3) officer; to a investigating wife of the Argued and Submitted Nov. 2008. credibility made dubious person whose report Fulminante to the by her failure July Filed 2009. that, by the fact after Ful- authorities and confessed, voluntarily associ- minante she despite disgust with him her stated
ated (4) actions; person to a who re- the confession to authorities under
ported suspicious circumstances. Id. at
highly Here,
298-99, 111
twin confessions to close associates—one testimony them his own brother —whose jury would have had little reason to
doubt, single little bear resemblance
confession Fulminante. if, appeal, might
Even on direct we con-
clude that Moore’s counsel’s failure to file motion to the confession to the
police entitled Moore to relief under
Strickland, credulity to it strains claim contrary
that the state court’s decision was
to, of, an application unreasonable
Fulminante decision. reasons, per-
For these and the reasons by Judges Bybee
suasively set forth
Callahan, I respectfully dissent from the rehearing en banc.
denial notes part in the attack. testify that Moore took Moore and Wool- court found that The state description ver- panel’s of Moore’s 3. Even