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Argument preview: Excludable confessions and effective counsel

The Sixth Amendment secures a criminal defendant’s right to effective assistance of counsel.  Under Strickland v. Washington (1984), that right is violated when a lawyer’s performance falls below an objective standard of reasonableness, resulting in prejudice to the defendant.  Counsel’s representation is prejudicial when there is a reasonable probability that, but for the lawyer’s deficiencies, the proceeding would have ended differently.  Some defendants accept a plea bargain and then argue that their counsel was ineffective; in those cases, Hill v. Lockhart (1985) instructs a court to ask whether there is a reasonable probability that the defendant would have gone to trial had his counsel been constitutionally adequate.  When the Court hears argument tomorrow in Premo v. Moore (09-658), it will attempt to clarify how Strickland and Hill apply to plea deals that are made after counsel fails to suppress an unconstitutionally obtained confession.


After confessing his role in a kidnapping that ended in the shooting death of the victim, respondent Randy Moore pleaded no contest to felony murder.  Although he confessed only after the police promised him leniency and denied him counsel during an interrogation that was arguably custodial, Moore’s lawyer did not move to suppress the videotaped statement.  Moore then sought to have the judgment vacated.  During the post-trial proceedings, Moore’s trial lawyer explained in an affidavit that he had not attempted to suppress the confession because he believed that it was given lawfully; moreover, he contended, a motion to suppress would have been pointless in light of Moore’s additional confessions to his girlfriend and half-brother.

After his efforts to obtain state post-conviction relief were unsuccessful, Moore filed a federal habeas corpus petition.  The district court concluded that his confession was unconstitutionally obtained but denied habeas relief on the ground that Moore’s trial counsel had not necessarily been unreasonable in failing to suppress it.  Because the state did not contest the district court’s conclusion that Moore’s confession was obtained unconstitutionally, the only question on appeal was whether his counsel’s performance had been unreasonable and prejudicial.  A three-judge panel of the Ninth Circuit reversed, holding that because Moore’s confession was at least as prejudicial as the one at issue in Arizona v. Fulminante (1991) – where the Court held that the existence of a second confession did not mean that counsel’s failure to suppress the first was harmless error – the state court’s contrary finding was an unreasonable application of clearly established federal law.  The Ninth Circuit denied rehearing en banc over five dissenting votes, and the Supreme Court granted certiorari.

The state’s arguments

The state argues that Moore’s counsel was not unconstitutionally ineffective because he could reasonably have decided that a motion to suppress one of Moore’s three confessions would be pointless.  The state attacks the Ninth Circuit’s reliance on Fulminante, from which that court deduced the principle that “the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial.” Fulminante concerned direct review, the state counters, and does not apply to collateral attacks in which no trial has occurred.  On direct review, the state has the burden of proving the harmlessness of an evidentiary error; by contrast, on collateral review, the petitioner must prove that his attorney’s conduct was prejudicial.  Moreover, Fulminante’s harmless-error inquiry requires the assessment of a confession in the context of the other evidence presented at trial; when it is a plea bargain being challenged, no such context exists.

And even if Fulminante does establish the proper standard for evaluating Moore’s habeas petition, the state continues, that standard would be novel as applied to collateral attacks on plea bargains.  Thus, contrary to the requirements of the Antiterrorism and Effective Death Penalty Act, it would not have been clearly established federal law when the Oregon courts evaluated Moore’s post-trial claims, and the Ninth Circuit therefore erred when it granted Moore habeas relief.

Finally, the state argues that its courts reasonably relied on the trial attorney’s affidavit in finding that a motion to suppress Moore’s confession to the police would have served no practical purpose, and that nothing in the record required a state court to find a reasonable probability that Moore would have gone to trial but for his counsel’s conduct.  Here too, the state contends, the Ninth Circuit’s decision contravened AEDPA because the panel failed to show the necessary deference to the state courts’ factual findings.

Moore’s arguments

Moore argues that, although Strickland, Hill, and a third case – Kimmelman v. Morrison (1986), which requires a reviewing court to assess the likelihood that a motion to suppress would have succeeded had it been made – provide the clearly established federal law governing his habeas petition, the Ninth Circuit nonetheless correctly held that such law had been misapplied by the Oregon courts.  The Ninth Circuit properly looked to Fulminante in evaluating both the reasonableness of his lawyer’s performance and the prejudice that arose from any failing, Moore argues, because that case describes the harm that flows from the failure to suppress one confession when others exist.

Moore next defends the Ninth Circuit’s de novo review of the facts.  Because the state court erroneously believed that a motion to suppress would have been meritless, Moore asserts, it never considered whether counsel’s failure to file such a motion prejudiced him.  In the absence of any state court holding on the point, there was nothing to which a federal court could defer.  Moreover, the standard for habeas review is whether the state court determination was unreasonable, rather than (as the state suggests) whether a contrary determination was required.  Finally, Moore argues that the Ninth Circuit was correct to find that he was prejudiced by his counsel’s conduct, and that so holding would neither require states to generate a voluminous record when accepting pleas nor open a floodgate to new challenges.

Recommended Citation: James Bickford, Argument preview: Excludable confessions and effective counsel, SCOTUSblog (Oct. 11, 2010, 9:40 PM),