Issues
1. Should the Fulminante standard apply to a federal habeas corpus claim where there is no trial record available for review?
2. Did Moore sustain his burden of proof by showing his attorney's alleged ineffective assistance prejudiced him?
The police brought in Respondent Randy Moore for questioning in connection with the kidnapping and murder of Kenneth Rogers. Moore requested legal counsel and was told that he was not entitled to counsel unless he could afford it. Moore ultimately confessed to accidentally killing Rogers and was then appointed legal counsel. On counsel’s advice, Moore pled no contest to felony-murder and was sentenced to twenty-five years in prison. After Oregon state courts denied Moore’s petition for post-conviction relief, Moore petitioned for federal habeas corpus relief, asserting that he had been denied effective assistance of counsel because his attorney had failed to move to suppress his confession. The federal district court denied his petition, but the Ninth Circuit reversed, reasoning that the failure of Moore’s counsel to seek suppression of Moore’s confession was unreasonable and highly prejudicial. On appeal to the Supreme Court, Oregon argues that the Ninth Circuit failed to apply the correct standard in granting habeas relief and that Moore did not show that he was prejudiced by his counsel’s failure to seek suppression of his confession. This decision will ultimately impact when and how often defendants and states pursue plea agreements, the finality of those agreements once made, as well as the deference federal courts accord to decisions of state criminal courts.
Questions as Framed for the Court by the Parties
1. This Court established in Hill v. Lockhart the standard for assessing, in a collateral challenge to a conviction that was based on a guilty or no-contest plea, whether an attorney's deficient performance requires reversal of a conviction. In Arizona v. Fulminante--a direct appellate review case--this Court reviewed all the evidence presented at trial and held that the erroneous admission of a coerced confession at the trial was not harmless.
a. If a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, does the Fulminante standard apply, even though no record of a trial is available for review?
b. Even if the Fulminante standard applies in that context, is it "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1)?
2. In Moore's underlying criminal case, he confessed to police that he personally shot the victim. He also confessed to two other people, and he ultimately pleaded no contest to murder. In his collateral challenge to his conviction, he alleged that his attorney should have moved to suppress the confession to police, but he offered no evidence that he would have insisted on going to trial had counsel done so. Did the Ninth Circuit err by granting federal habeas relief on Moore's ineffective-assistance of- counsel claim?
Facts
Respondent Randy Moore and two other men were allegedly involved in the assault, kidnapping, and murder of Kenneth Rogers. See Moore v. Czerniak, 574 F.3d 1092, 1095, 1097 (9th Cir. 2009). Sometime after the incident, Moore disclosed his involvement in the incident to his brother and another friend. See id. at 1134–35. The police also questioned Moore about Rogers’ death but released him on the condition that he return the next day. See id. at 1095. Moore returned and immediately requested legal counsel. See id. at 1095–96. The police told Moore that because he was not in custody, he was only entitled to legal representation if he could afford it himself. See id. The police alsopromised leniency if Moore confessed, and Moore subsequently confessed on tape to accidentally killing of Rogers. See id. at 1097. Moore was then appointed legal counsel. See id.
On the advice of his appointed counsel, Moore pled no contest to a charge of felony murder and was sentenced to twenty-five years in prison and a life-term of supervision, the lowest possible sentence for felony-murder under Oregon law. See Moore, 574 F.3d at 1095, 1097. On appeal, the Oregon Court of Appeals affirmed his sentence, and the Oregon Supreme Court denied review. See State v. Moore, 951 P.2d 204 (Or. Ct. App. 1997), rev. denied, 943 P.2d 395 (Or. 1998).
Moore then petitioned for state post-conviction relief, claiming that he had been denied effective assistance of counsel because his lawyer did not file a motion to suppress his confession. See Moore, 574 F.3d at 1097. Finding that Moore’s counsel had not acted unreasonably, the state court denied Moore’s request for relief. See id. at 1098. As before, the Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. See Moore v. Palmateer, 26 P.2d 191 (Or. Ct. App. 2001), rev. denied, 30 P.3d 1184 (Or. 2001).
Moore subsequently petitioned the U.S. District Court for the District of Oregon for federal habeas corpus relief, again asserting ineffective assistance of counsel. See Moore, 574 F.3d at 1098–99. Like the Oregon courts, the federal district court found that the failure of Moore’s counsel to move to suppress Moore’s confession was not unreasonable, even though the confession had been obtained involuntarily and unconstitutionally. See id. The U.S. Court of Appeals for the Ninth Circuit reversed the district court, finding that the failure of Moore’s counsel to seek suppression of Moore’s confession was not only unreasonable but also highly prejudicial. See id.at 1100–04. The Ninth Circuit remanded with instructions to grant Moore’s petition for a writ of habeas corpus. See id.at 1095. Petitioner Jeff Premo, as the Superintendent of the Oregon State Penitentiary, petitioned the Supreme Court for review, and on March 22, 2010, the Court granted certiorari to consider whether the Ninth Circuit erred in reversing the district court. See Premo v. Moore, 130 S.Ct. 1882 (2010).
Analysis
Under 28 U.S.C. § 2254, an application for federal habeas corpus relief should not be granted when a claim has been decided on the merits, unless that decision is “contrary to . . . clearly established federal law.” 28 U.S.C. § 2254(d)(1).A state court decision is “contrary to clearly established federal law” if 1) the state court applies the wrong governing legal principle; or 2) “correctly identifies the governing legal principle . . . but unreasonably applies it to the facts of the particular case.” See Moore v. Czerniak, 574 F.3d 1092, 1100 (9th Cir. 2009).
The Supreme Court will address two issues in this case. First, the Court will decide whether Moore provided sufficient evidence to prove he received ineffective assistance of counsel. See Premo v. Moore, 130 S.Ct. 1882 (2010). Second,the Court will decide whether the legal principle established by Arizona v. Fulminante, in which the Court held that the admission of an additional confession is prejudicial to a defendant because the confessions corroborate one another, applies to this case. See Id. at 1; Arizona v. Fulminante, 499 U.S. 279 (1990).
Petitioner Jeff Premo, as the Superintendent of the Oregon State Penitentiary (“Oregon”), Oregon contends that Moore failed to prove he that he received ineffective assistance of counsel. See Brief for Petitioner, Jeff Premo at 31–34, 40–44. Premo further argues that Fulminante is not clearly-established federal law under 28 U.S.C. § 2254, and thus should not be applied to this case. See Id. at 23–25, 29. Respondent Moore counters that he has proven that he received ineffective assistance of counsel and that Fulminante is clearly-established, applicable federal law. See Brief for Respondent, Randy Moore at 19–24, 30–35.
Ineffective Assistance of Counsel
The Sixth Amendment guarantees defendants the right to counsel, which the Court has interpreted to include the right to effective counsel. See Strickland v. Washington, 466 U.S. 668 (1984). If a convicted defendant can prove 1) that counsel was ineffective, and 2) that the counsel’s actions prejudiced the defendant’s case, the defendant’s conviction may be reversed. See id.To determine if ineffective assistance of counsel caused prejudice to Moore, the Court will decide whether there was a reasonable probability that Moore would have gone to trial, in lieu of accepting the plea bargain, if his attorney had not provided deficient assistance. See Hill v. Lockhart, 474 U.S. 52 (1985); Strickland v. Washington, 466 U.S. 668 (1984).
Oregon contends that the U.S. Court of Appeals for the Ninth Circuit failed to apply the appropriate standard of review when determining if Moore was prejudiced by ineffective assistance of counsel. See Brief for Petitioner, Jeff Premo at 40–41. According to Oregon, the state trial court reasonably relied on the information contained in the attorney’s affidavit. See id.at 40. In this affidavit, Moore’s attorney stated that even if he had made a motion to suppress Moore’s confession and the motion had been successful, Moore had confessed to two other witnesses who could testify against Moore. See id. at 40–41. Further, the affidavit maintained that Moore knew he was not in custody when he confessed to the police and that his statement was therefore voluntary. See id. at 41. Also according to the affidavit, Moore and his attorney both agreed that a motion to suppress the single police confession would be “unavailing.” See id. Because the state court reasonably relied on this affidavit to determine that assistance of counsel was adequate, Oregon argues that the Ninth Circuit disregarded the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which requires a deferential review of factual issues determined in state court. See id.at 44.
In response, Moore contends that the Ninth Circuit was not required to defer to the trial court on the issue of prejudice in this action. See Brief for Respondent, Randy Moore at 30. Moore argues that because the trial court found that counsel’s assistance was adequate, this precluded the need to determine whether counsel’s assistance had prejudiced Moore, and indeed, the trial court never considered the prejudice issue. See id. at 30–31. For this reason, once the Ninth Circuit determined that assistance of counsel was ineffective, it was free to conduct the prejudice analysis de novo because there was no trial court decision on the issue of prejudice to defer to. See id.
Oregon also argues that Moore failed to sustain his burden of proof to demonstrate that he was prejudiced by his attorney’s inaction. See Brief for Petitioner at 43. Oregon contends that Moore never directly stated in his deposition that he would have changed his no-contest plea and gone to trial if the suppression motion had been made and granted. See id. Oregon maintains that even if Moore’s testimony did state that he would have gone to trial if the suppression motion had been granted, the state trial court still had the discretion to find to the contrary. See id. at 44. The state trial court, according to Oregon, could have found that Moore’s testimony was not credible or was outweighed by the contrary statements of his attorney’s affidavit. See id.
In response, Moore states that the state trial court improperly focused upon Moore’s statements, as opposed to considering all of the surrounding circumstances. See Brief for Respondent at 33. When considering the entire record, Moore argues there are several factors indicating he would likely have gone to trial if the motion had been made and granted, including: Moore consistently maintained that the shooting was accidental; the record reflects that Moore was “reluctant” to plead guilty; and, when Moore learned of his attorney’s failure, he timely filed to have his conviction set aside. See id. at 34–35. Moore contends these facts support his argument that if he had been provided adequate assistance, he would likely have gone to trial. See id. at 34.
The Fulminante Standard
Oregon argues that the Ninth Circuit should not have applied Fulminante—which held that the admission of an additional confession is prejudicial to a defendant—when determining if Moore was prejudiced by ineffective assistance of counsel under the Strickland/Hill analysis discussed above. See Brief for Petitioner at 24. While Oregon admits that both the Fulminante case and Moore’s case center upon ineffective assistance of counsel claims and involve a failure to file a motion to suppress a confession, Oregon contends that several differences distinguish the cases and render the Fulminante standard inapplicable. See id. at 29. Oregon maintains that Fulminante is not “clearly established federal law” for this case because it has never been read in conjunction with the Strickland prejudice test. See id. at 29.
However, Moore argues that the Ninth Circuit was correct in considering both the Fulminante standard together with the Strickland/Hill prejudice analysis. See Brief for Respondent at 19. Moore contends that Fulminante considered the issue of what harm was caused by the failure to file a motion or to recognize a motion’s significance at trial, the same harm in issue in this case. See id. at 20. The standard articulated in Fulminante, Moore argues, requires courts to look at how the failure to file a motion impacts a case as a whole. See id. at 19. Therefore, to determine if the ineffective assistance of counsel caused prejudice in this case, Moore asserts that the federal district court was required to apply the Fulminante standard to the failure of Moore’s counsel to file a motion to suppress Moore’s confession. See id. at 21.
Oregon further contends that Fulminante has never been applied to a case where the defendant pled guilty or no-contest. See Brief for Petitioner at 30–31. Oregon argues that Fulminante requires the review of other evidence in the case to see if the alleged error made by an attorney was harmful. See id. Moore’s case, unlike the case in Fulminante, was never litigated, and thus there is no evidence for a reviewing court to analyze. See id. Instead, Oregon asserts that applying the Fulminante standard would require the state to speculate how a suppression motion may have affected the state’s case or plea bargain and how suppression may have affected Moore’s decision to plead no contest. See id. at 31–32.
Moore counters that even though there was a full trial in Fulminante, the Court nevertheless speculated about how the confessions may have corroborated one another and what the jury may have believed or found if the confession at issue had not been admitted. See Brief for Respondent at 22. Moore argues that both the Fulminante and the Ninth Circuit’s decision were not based on haphazard speculation but instead considered the relationship between the unsuppressed confessions and the weaknesses of the other testimonies. See id. at 23. Further, Moore references a recent Court decision which states that prejudice inquiries will often necessitate some speculation by courts. See id. at 39; Sears v. Upton, 130 S. Ct. 3259, 3626–27 (2010) (per curium).
Discussion
To decide this case, the Supreme Court will balance the benefits of plea bargain agreements against criminal defendants’ constitutional right to effective assistance of counsel. The Court will also address federalism concerns because the case involves a federal court’s reversal of a state court decision based on state law. Petitioner Jeff Premo, as the Superintendent of the Oregon State Penitentiary, argues that a ruling in favor of Respondent Randy Moore could result in unwarranted federal intrusion into state criminal matters and undermine the certainty offered by legally-binding plea agreements. See Brief for Petitioner, Jeff Premo at 21–22. In contrast, Moore asserts that a decision in his favor will not harm state criminal justice systems nor challenge the finality of plea agreements, particularly where, as here, the agreements are founded on a no contest plea. See Brief for Respondent, Randy Moore at 38–39.
Should the Court rule in favor of Moore, Alabama and 23 other states (“States”) fear that their already-flooded criminal dockets will be overwhelmed. See Brief of Amici Curiae the States of South Carolina, Alabama, et. al. (“States”) in Support of Petitioner at 5, 17. In all states,plea bargains function as a crucial component of the criminal justice system, and guilty or no contest pleas account for 94% of all state felony convictions. See Id. at 16. Nevertheless, the demand on state courts has steadily increased during the last few decades, and the criminal docket alone grew by 67% between 1987 and 2004. See Id. According to the States and the Criminal Justice Legal Foundation (“CJLF”), a ruling for Moore could encourage plea-bargained defendants to assert ineffective assistance of counsel claims and thereby increase the demand on state courts. See Id. at 11; Brief of Amicus Curiae the Criminal Justice Legal Foundation (“CJLF”) in Support of Petitioner at 13. Similarly, a ruling for Moore could also make defense attorneys reluctant to recommend pleas to their clients for fear of incurring accusations of ineffectiveness. See Brief of States at 16. Indeed, the States and the CJLF contend that defense attorneys may feel compelled to make frivolous motions to guard against ineffective assistance of counsel accusations. See Brief of States at 6, 10; Brief of CJLF at 12–16.
The States worry that increased reluctance to enter into or offer plea bargains may harm defendants themselves, because defendants who accept plea agreements often receive more lenient sentences. See Brief of States at 13, 18–19. Specifically, plea agreements lowered prison sentences by an average of six years for murder or other non-negligent homicides during 2006. See id. at 18–19. Also, because generally only 1% of all felony defendants and 5% of murder defendants are acquitted at trial, plea bargains often make strategic sense. See id. Thus, the States and CJLF fear that if defense attorneys are reluctant to recommend plea bargains, criminal defendants could find themselves in greater danger for harsher sentences at trial. See id.; Brief of CJLF at 12.
Moore, in contrast, asserts that all such concerns are overblown, especially because he entered a no-contest plea, as opposed to a guilty plea. See Brief of Respondent at 39. No-contest pleas are very rare, and habeas corpus challenges to no-contest pleas are infrequent, as compared to habeas corpus challenges to trial-based convictions. See Brief of Respondent at 34, 39. Thus, Moore contends that a Court decision in his favor would not cause a flood of challenges to plea bargains nor, adversely impact the finality of plea agreements. See id. at 39–40.
The Court’s decision will also implicate federalism concerns. As provided in 28 U.S.C. 2254 § (d), habeas corpus is a federal remedy that overturns state court decisions, and federal courts generally give substantial deference to state court decisions in habeas corpus cases. See 28 U.S.C. § 2254(d); Brief of CJLF at 23. However, if the Court affirms the Ninth Circuit’s decision, the States fear that this signals a diminishment in federal deference. See Brief of States at 2, 8. The Court may address these concerns in this case because Oregon state courts affirmed Moore’s sentence and denied him post-conviction relief after finding that his counsel acted reasonably in not filing a motion to suppress Moore’s confession to killing Kenneth Rogers. See Moore v. Czerniak, 574 F.3d 1092, 1097 (9th Cir. 2009).
Conclusion
Prison Superintendent Jeff Premo argues that the Ninth Circuit erroneously granted habeas corpus relief to Randy Moore because Moore did not sustain his burden of showing that he was prejudiced by his attorney’s failure to suppress his police confession. Moore contends he was rightfully granted habeas corpus relief and that he sufficiently demonstrated prejudice. Premo argues that upholding the Ninth Circuit opinion will create an influx of ineffective-assistance-of-counsel claims, flooding the already-crowded dockets of the state criminal courts. Moore, however, argues that habeas challenges to no-contest pleas are actually very rare in the criminal justice system, and thus a decision in his favor would have little effect on state criminal dockets.
Written by
Edited by
Additional Resources
· LII: Sixth Amendment
· CRS Annotated Constitution: Sixth Amendment: Assistance of Counsel
· Wex: Criminal Procedure