Moore v. Czerniak ( 2008 )


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  •                                             Volume 1 of 2
    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    RANDY JOSEPH MOORE,                  
    Petitioner-Appellant,        No. 04-15713
    v.
          D.C. No.
    CV-01-01795-ST
    STAN CZERNIAK, Superintendent of
    OSP,                                       OPINION
    Respondent-Appellee.
    
    Appeal from the United States District Court
    for the District of Oregon
    Anna J. Brown, District Judge, Presiding
    Argued and Submitted
    March 10, 2005—Portland, Oregon
    Filed July 28, 2008
    Before: Stephen Reinhardt, Marsha S. Berzon, and
    Jay S. Bybee, Circuit Judges.
    Opinion by Judge Reinhardt;
    Concurrence by Judge Berzon;
    Dissent by Judge Bybee
    9397
    MOORE v. CZERNIAK                   9401
    COUNSEL
    Barbara L. Creel, Office of the Federal Public Defender, Port-
    land, Oregon, for the petitioner-appellant.
    Hardy Myers, Attorney General for the State of Oregon, Mary
    H. Williams, Solicitor General (On the Briefs); Jennifer S.
    Lloyd, Attorney-In-Charge, Collateral Remedies and Capital
    Appeals Unit, Salem, Oregon (Argued), for the Respondent-
    Appellee.
    OPINION
    REINHARDT, Circuit Judge:
    Randy Moore’s taped confession was obtained by the
    police at the station house by means that even the state con-
    cedes were unconstitutional. It does not contest on this appeal
    the district court’s finding that Moore’s confession was invol-
    untary. As the Supreme Court has declared emphatically, “[a]
    confession is like no other evidence. Indeed, ‘the defendant’s
    own confession is probably the most probative and damaging
    evidence that can be admitted against him.’ ” Arizona v. Ful-
    minante, 
    499 U.S. 279
    , 296 (1991) (quoting Bruton v. United
    States, 
    391 U.S. 123
    , 139 (1968) (White, J., dissenting)).
    Inexplicably, Moore’s lawyer failed to recognize that the con-
    fession to the police was inadmissible, even though it was
    unconstitutional for not one but two separate reasons.
    9402                  MOORE v. CZERNIAK
    Counsel’s explanation for not filing the motion was, in his
    words, “two-fold.” First, he thought such a motion would not
    have succeeded because Moore was not in custody when he
    gave his confession and his confession was voluntary — both
    clearly erroneous conclusions: the confession was impermiss-
    ibly extracted as the result of a promise of leniency made by
    the interrogating officers, and it was also obtained in violation
    of Edwards v. Arizona, 
    451 U.S. 477
     (1981), as Moore had
    asked for counsel before making the confession but his
    request had been ignored. Second, Moore’s lawyer errone-
    ously thought that the taped confession was not prejudicial
    because Moore had told his brother and his half-brother’s girl-
    friend about the crime. In both respects, Moore’s lawyer
    exhibited a remarkable lack of familiarity with, or basic mis-
    understanding of, controlling principles of constitutional law.
    As a result of his ineptitude—and, as his affidavit makes crys-
    tal clear, not because of any strategic reasons—he failed to
    make a motion to suppress the unconstitutionally obtained
    confession. Having determined not to file the motion, counsel
    advised Moore that a plea to felony murder was “the best
    [they] could do under the circumstances,” and Moore pled no
    contest to that charge.
    The state makes the same error as Moore’s counsel. It urges
    that the failure to move to suppress Moore’s taped confession
    to the police was not prejudicial because Moore had told two
    others about the crime, and only because he had done so.
    Unlike our highly imaginative and creative dissenting col-
    league, the state does not argue that it possessed other evi-
    dence, aside from the two other confessions, that rendered the
    failure to file the motion harmless. In fact, perhaps mindful of
    Fulminante’s command that, in cases such as this, reviewing
    courts “exercise extreme caution” before determining that the
    failure to move to exclude unconstitutional confessions is
    harmless, 
    499 U.S. at 296
    , the state does not challenge on any
    basis other than his statements to others Moore’s assertion
    that the ineffectiveness of his counsel necessarily undermines
    our confidence in the outcome of the proceedings. Here, Ful-
    MOORE v. CZERNIAK                           9403
    minante’s dictate is all the more compelling because, unlike
    in Fulminante, where the challenged confession was made
    informally to a not particularly reliable layman, the confes-
    sion at issue is recorded, is in Moore’s own voice, and was
    made in the formal context of a police interrogation.
    In the end, there can be no serious doubt that Moore’s
    counsel was ineffective and that Moore was deprived of his
    basic constitutional rights under the Sixth Amendment, as
    clearly established in Strickland v. Washington, 
    466 U.S. 668
    (1984). The state court, following the same rationale
    advanced by the State and Moore’s counsel, concluded that
    Moore’s recorded confession to the police was non-
    prejudicial because of his prior statements to others, a conclu-
    sion that is contrary to the clearly established law of Fulmi-
    nante. But for counsel’s failure to move to suppress his
    involuntary confession, there is a reasonable probability that
    Moore would not have pled to the felony murder charge but
    would have instead insisted on going to trial, in which case,
    the state would undoubtedly have offered him a more favor-
    able plea agreement. Counsel’s performance fell below an
    objective standard of reasonableness. Because we hold that
    the state court’s rejection of Moore’s federal constitutional
    claim was contrary to Fulminante, 
    499 U.S. 279
    , and consti-
    tuted an objectively unreasonable application of Strickland,
    
    466 U.S. 668
    , we reverse the district court and remand for
    issuance of the writ.1
    1
    The dissent, disregarding Fulminante’s commands, creates its own ver-
    sion of harmlessness in this case. It envisions a record that shows that the
    police were aware of a set of facts that would make conviction of felony
    murder inevitable regardless of the confession and its fruits, that counsel
    also knew these facts wholly aside from what his client told him, and that
    all the overwhelming evidence the dissent posits was obtained from
    sources unrelated to Moore’s and his co-defendant’s unconstitutional con-
    fessions. Not only is there no evidence to support the dissent’s wishful
    thinking as to the ideal set of facts that might have been, but are not,
    reflected in the record, but the dissent’s analysis bears no resemblance to
    the issues or arguments raised by the state on appeal, the facts and circum-
    9404                      MOORE v. CZERNIAK
    I.
    In December 1995, petitioner Randy Moore, his half-
    brother Lonnie Woolhiser, and his friend Roy Salyer were
    allegedly involved in the assault, kidnapping, and death of
    Kenneth Rogers. After arresting Salyer and booking him in
    the county jail, the investigating police officers asked Moore
    and Woolhiser to come to the police station for questioning.
    The two were separated and interviews were conducted by
    different police detectives. Moore provided a brief statement
    about stopping by Rogers’s motor home, waiting while Wool-
    hiser and Salyer went in to talk to Rogers, and then leaving
    with Woolhiser and Salyer. After making this statement,
    Moore was advised of and invoked his Miranda rights. Subse-
    quently, as the district court found, both Moore and Wool-
    hiser were released on the condition that they speak with their
    older brother Raymond Moore (“Raymond”), and return to
    the station at 1:00 p.m. the following day.
    The police officers had good reason for directing Moore
    and Woolhiser to speak with Raymond. Raymond had a per-
    sonal and working relationship with the investigating officers.
    Moreover, these officers had been involved in the investiga-
    tion of a murder charge against Raymond that resulted from
    a separate killing. The charge was dropped when Raymond
    cooperated with the officers and explained that the killing was
    perpetrated in self-defense. Raymond testified later that
    stances found by the state post-conviction court, or the grounds upon
    which that court based its decision. Moreover, in a last gasp effort to save
    an unlawful conviction, the dissent represents that counsel failed to move
    to suppress the unconstitutional confession for reasons—strategic ones—
    that counsel’s own affidavit makes clear were not reasons that motivated
    him. We recognize that our dissenting colleague believes that Moore
    deserves to be convicted, but disregarding the state’s arguments as well as
    the state court record and findings, and substituting one’s own, is hardly
    the manner in which federal appellate courts are supposed to determine
    appeals.
    MOORE v. CZERNIAK                   9405
    because Moore and Woolhiser told him that Rogers’s death
    was an accident, he believed that the police officers would do
    the same for his brother and half-brother as they had for him,
    if they cooperated in the same manner he had.
    The next day, after speaking with Raymond, Moore and
    Woolhiser spent the morning unsuccessfully trying to obtain
    legal representation. When they called the police station at
    1:10 p.m., the police promptly ordered them to return for fur-
    ther questioning: “they told us that if we were not there by
    3:00 they would come get us—[ ] and our family would not
    like the way they did it and they—we knew what they meant.”
    In accordance with the police officers’ commands, Moore and
    Woolhiser returned to the police station that afternoon, with-
    out counsel. They were accompanied by Raymond, and also
    by Woolhiser’s girlfriend, Debbie Ziegler.
    When the four arrived at the police station, the investigat-
    ing officers began another round of questioning. Moore inter-
    rupted at the very beginning of that questioning to request
    counsel: “You see . . . until I, I have to be able to talk to
    somebody that’s on my side, you know, for me, to be able to
    go tell nobody . . . I don’t trust my judgment right now.”
    When the police officers ignored Moore’s request, Woolhiser
    reiterated by stating, “You know, we’d just like to talk to
    somebody, you know.” Moore then stated that he wanted to,
    “[a]s quick as possible, talk to a lawyer,” which was followed
    by Raymond’s confirmation of that request: “If there was
    some way we could maybe get an attorney in here for a con-
    sultation.” Eventually, in response, the police officers told
    Moore and Woolhiser that they were not entitled to counsel
    at that time unless they could afford it themselves. The police
    officers then promptly proceeded with the interrogation.
    During the interrogation, the police officers told Moore and
    Woolhiser that they “would go to bat for [them] as long as
    [they] got the truth,” to which Moore responded: “See that’s
    what I want to hear.” At this point, Raymond interrupted the
    9406                       MOORE v. CZERNIAK
    questioning to vouch for the officers’ assurances, stating that
    “I know in my, this is for myself, saying, there was once an
    officer, and I said hey, look, I want out, I did something and
    been doing something. I want out of this, I want a chance.
    And this officer said, okay, Ray, I’ll go to bat for you. And
    that officer’s your captain.” Building on Raymond’s account,
    one of the interrogating officers asked, “But he did go to bat
    for you[?],” to which Raymond responded, “That’s exactly
    right. . . . I talked to him and he stood behind his word one
    hundred percent and he’s probably one of the best friends I
    have in the world.”
    After Raymond’s comments, the interrogating officers
    emphasized that the police could be similarly helpful to
    Moore and Woolhiser if they confessed. Moore first hesitated,
    but then indicated that he would be willing to talk. At this
    point, one of the officers told Moore, “Okay, so that you
    know you’re going to get a fair shake from us alright, I want
    to verify that with our DA that he is not going and [sic] turn
    around and jam you. I want him to tell me right now on the
    phone that you can change your mind and he will accept it.
    So there’s no jammin’ down the road, okay?” The officer then
    left to obtain the verification that the DA would not “jam”
    Moore so long as he confessed.
    When the officer returned, he told Moore that he had spo-
    ken with the DA—“our Deputy DA actually”—and then pro-
    ceeded to elicit Moore’s confession. Before doing so,
    however, he extracted several statements from Moore regard-
    ing his custody status and the voluntariness of the confession
    he was about to give. In response to a series of questions,
    Moore agreed with the officers that he had voluntarily
    returned to the police station, that he was not in custody, that
    the police had offered nothing in exchange for his confession
    other than that they would make a “recommendation[ ]” to the
    District Attorney, and that he understood his right to counsel
    and was waiving it.2 In short, as one of the interrogating offi-
    2
    Although the officers continued their efforts to obtain answers to their
    questions, they acknowledged, after their call to the District Attorney, that
    MOORE v. CZERNIAK                           9407
    cers explained: “[t]he main thing is we want everybody on
    this recording to know that you guys are not in custody . . .
    [a]nd this is not an . . . in custody interrogation type of thing.”
    In the recorded confession that he then made, Moore
    described how he, Salyer, and Woolhiser went to Rogers’s
    home after Salyer informed the two that Rogers had stolen
    property from his cabin. Moore stated that Woolhiser con-
    fronted Rogers about the theft, assaulted him, and placed him
    in the trunk of a car. They then drove Rogers to a remote
    wooded area and began to walk him blindfolded up a hill. At
    some point during this walk, Woolhiser handed Moore a
    loaded gun. Moore explained that they had no intention of
    killing Rogers; they were simply going to frighten him by
    leaving him on top of the hill and forcing him to find his way
    back home. As the four climbed the hill, however, Rogers
    stumbled and fell back into Moore, causing the gun in his
    hands to discharge. As a result, Rogers died of an accidental
    gunshot wound to the head.
    Following his confession, Moore was appointed counsel
    and charged with one count of felony murder with a firearm.
    He entered a plea of no contest, and was given a mandatory
    sentence of twenty-five years imprisonment, with five years
    to be served concurrently as a sentencing enhancement for the
    use of a firearm, in addition to a life term of post-prison supervi-
    sion.3 Moore appealed his sentence to the Oregon Court of
    they had been “wrong” in earlier informing Moore that he was entitled to
    a lawyer only if he could afford one; immediately before Moore gave his
    statement, the officers stated that if Moore wanted a “court appointed
    attorney [he could] have one at this time,” but that if he wanted to “go
    ahead and talk” with the officers, he could do that instead. This statement,
    of course, conflicts with the state’s representation that Moore was not in
    custody.
    3
    Moore was sentenced under what is termed “Measure 11.” Approved
    by Oregon voters in November 1994, Ballot Measure 11 imposed lengthy
    mandatory minimum sentences, with no possibility of reduction, for cer-
    9408                      MOORE v. CZERNIAK
    Appeals, which affirmed without opinion, and to the Oregon
    Supreme Court, which denied review. State v. Moore, 
    951 P.2d 204
     (Or. Ct. App. 1997), rev. denied, 
    953 P.2d 395
     (Or.
    1998).
    Shortly thereafter, Moore filed a petition for state post-
    conviction relief, alleging, inter alia, that he had been denied
    effective assistance of counsel because his lawyer had failed
    to file a motion to suppress his confession. The state court
    held an evidentiary hearing at which Moore and his brother
    Raymond testified. Raymond recalled that the detectives
    “made it appear” that Moore and Woolhiser were not in cus-
    tody, but that it was clear from the circumstances that they
    were not free to leave. He also testified that he advised the
    pair to confess their involvement in Rogers’s death because
    he understood that the police had promised leniency:
    “[B]asically what I had deducted [sic] from what they had
    said was that they would work for [Moore] like they had
    worked for me to change my life around.”
    Moore also testified that he understood the officers’ state-
    ments to be an assurance that his crime would be charged as
    an accidental killing rather than felony murder. He stated that
    the officers “left me believing that the D.A. had agreed not to
    jab us down the road. . . . [W]hen the detective went and
    talked to the D.A. to make sure he wasn’t going to jab me, I
    thought there was an agreement that they were going to
    charge me with accidental death and the D.A. had agreed to
    it because he didn’t come back saying that he did not agree,
    and that’s what he went there for.” Moreover, Moore
    explained that during the interrogation, he did not feel free to
    tain crimes against persons, including felony murder. Act effective June
    30, 1995, ch. 421, sec. 1, 
    1995 Or. Laws 1072
     (codified as amended at 
    Or. Rev. Stat. § 137.700
     (2003)) (listing crimes covered by Measure 11). Fur-
    ther, under such a sentence, Moore was not eligible “during the service of
    the term of imprisonment . . . for release on post-prison supervision or any
    form of temporary leave from custody.” 
    Id.
    MOORE v. CZERNIAK                    9409
    leave, in part because detectives had made it clear on the eve-
    ning prior to the interview that Salyer had already been
    charged and that they were going to be booked that day.
    After the evidentiary hearing, the state court filed an
    unpublished order denying Moore’s post-conviction petition.
    With regard to the ineffective assistance of counsel claim, the
    state court first concluded that it was reasonable for counsel
    to believe that a motion to suppress would be without merit.
    In so finding, the state court relied on counsel’s affidavit,
    which asserted that because Moore admitted on tape that he
    was not in custody and “never believed that he was in custo-
    dy,” there was no merit to the claim that the police officers
    improperly denied him counsel in a custodial interrogation.
    The state court further found that the officers’ questions
    regarding custody would have constituted notice to a reason-
    able person that he was free to leave and was not being held
    in custody. As a result, the state court found that there “was
    no basis for filing a motion to suppress.” It did not mention
    the involuntariness claim.
    Relying solely on the affidavit of Moore’s trial counsel, the
    state court further reasoned that even if a motion to suppress
    had been filed and granted, it would have been “fruitless”
    because Moore “had previously confessed his participation in
    the crime to his brother (Raymond Moore) and another friend
    [Debbie Ziegler].” From this, the state court concluded that
    Moore suffered no prejudice because “[b]oth Raymond
    Moore and [Ziegler] could have been called as witnesses to
    repeat petitioner’s confession.” It made no findings as to what
    Moore had told Raymond or Ziegler about the crime or as to
    the specific facts to which they might have been able to tes-
    tify. Specifically, the state court did not determine whether
    Moore simply confessed to the two laymen that he had killed
    the victim accidentally, or whether his informal confession
    covered all of the elements required to prove a felony murder.
    The state court found only that Moore had “confessed” to
    them. Based on the above, the state court held that counsel’s
    9410                       MOORE v. CZERNIAK
    failure to file a motion to suppress his taped confession did
    not constitute ineffective assistance of counsel. The Oregon
    Court of Appeals affirmed without opinion and the Oregon
    Supreme Court denied review. See Moore v. Palmateer, 
    26 P.3d 191
     (Or. Ct. App. 2001), rev. denied, 
    30 P.3d 1184
     (Or.
    2001).
    In December 2001, Moore petitioned the United States Dis-
    trict Court for the District of Oregon for a writ of habeas cor-
    pus. He raised, inter alia, the ineffective assistance of counsel
    claim that was denied in the state courts. Adopting the magis-
    trate judge’s findings and recommendation, the district court
    found that the state court was not unreasonable in concluding
    that Moore was not in custody at the time of his request for
    counsel, but that he had “confessed to Rogers’ murder based
    on [a] false promise” of leniency, which “rendered [his] con-
    fession involuntary.” Nevertheless, the court concluded that
    “counsel’s failure to seek suppression did not necessarily fall
    below an objective standard of reasonableness” because of
    Moore’s prior confessions to Raymond Moore and Debbie
    Ziegler and the potential adverse testimony of Salyer.4 On that
    4
    We consider the issues regarding Raymond Moore and Debbie Ziegler
    later in our opinion. We note here, however, that the district court clearly
    erred with respect to Salyer. There is no evidence in the record to suggest
    that the state could have or would have relied on Salyer’s testimony. Cer-
    tainly, it makes no such assertion on appeal. Indeed, until the district court
    made the sua sponte determination regarding Salyer, no interested party—
    the state court, Moore’s trial counsel, or the state itself—had suggested
    that the taped confession was non-prejudicial because of Salyer’s potential
    testimony. Moreover, in light of the Supreme Court’s recognition of the
    inherent unreliability of a co-defendant’s testimony, the state would cer-
    tainly not have believed that, without Moore’s taped confession, Salyer’s
    testimony could have given it the same chance of obtaining a conviction.
    See, e.g., Lee v. Illinois, 
    476 U.S. 530
    , 545 (1986) (“[A] codefendant’s
    confession is presumptively unreliable as to the passages detailing the
    defendant’s conduct or culpability because those passages may well be the
    product of the codefendant’s desire to shift or spread blame, curry favor,
    avenge himself, or divert attention to another.”); see also Crawford v.
    Washington, 
    541 U.S. 36
    , 59 (2004) (explaining that Lee v. Illinois “is not
    MOORE v. CZERNIAK                           9411
    basis, the district court ultimately held that the post-
    conviction court’s conclusion that there had not been a consti-
    tutional violation was “neither contrary to, nor an unreason-
    able application of, Strickland v. Washington.”
    This appeal followed. Because the state does not contest the
    district court’s finding that Moore’s confession was involun-
    tary, and because we conclude that the state court unreason-
    ably erred with respect to its finding of “no prejudice,” we
    reverse. We hold that the state court’s adjudication of
    Moore’s claim “resulted in a decision that . . . involved an
    unreasonable application of[ ] clearly established Federal law,
    as determined by the Supreme Court of the United States,” 
    28 U.S.C. § 2254
    (d)(1), and remand to the district court with
    instructions to grant the writ of habeas corpus.
    II.
    This court reviews de novo the district court’s decision to
    deny a petition for a writ of habeas corpus. See DePetris v.
    Kuykendall, 
    239 F.3d 1057
    , 1061 (9th Cir. 2001). Factual
    findings relevant to the district court’s decision to grant or
    deny the petition are reviewed for clear error. See Solis v.
    Garcia, 
    219 F.3d 922
    , 926 (9th Cir. 2000). Moore’s federal
    habeas petition was filed after April 24, 1996, and is therefore
    governed by the Antiterrorism and Effective Death Penalty
    . . . contrary” to modern Confrontation Clause jurisprudence). Under these
    circumstances, it was mere supposition for the district court to suggest that
    Salyer would be able to offer sufficient inculpatory testimony to render the
    failure to suppress Moore’s formal confession non-prejudicial. Most
    important of all, however, there can be little doubt that Salyer would not
    have testified against Moore but would have taken the Fifth Amendment,
    as he faced a trial himself on charges arising from the same incident. Even
    had Salyer been convicted before Moore’s trial began, he would in all
    likelihood have taken the Fifth because he continued to challenge his con-
    viction all the way through 2005, when his federal habeas petition was
    denied, see Salyer v. Belleque, 
    2005 WL 555403
     (D. Or. Mar. 4, 2005).
    9412                       MOORE v. CZERNIAK
    Act (“AEDPA”), 
    28 U.S.C. § 2254
    . Woodford v. Garceau,
    
    538 U.S. 202
    , 210 (2003). Under AEDPA, we may grant
    habeas relief only when the state court’s decision was “con-
    trary to, or involved an unreasonable application of, clearly
    established Federal law, as determined by the Supreme Court
    of the United States” or “was based on an unreasonable deter-
    mination of the facts in light of the evidence presented in the
    State court proceeding.” 
    28 U.S.C. § 2254
    (d); Wiggins v.
    Smith, 
    539 U.S. 510
    , 520 (2003).5 “[C]learly established Fed-
    eral law” includes only the Supreme Court’s “applicable hold-
    ings,” not its dicta. See Carey v. Musladin, 
    127 S. Ct. 649
    ,
    653 (2006). There need not be a narrow Supreme Court hold-
    ing precisely on point, however—a state court can render a
    decision that is “contrary to” or an “unreasonable application”
    of Supreme Court law by “ignoring the fundamental princi-
    ples established by [that Court’s] most relevant precedents.”
    Abdul-Kabir v. Quarterman, 
    127 S. Ct. 1654
    , 1671 (2007).
    A state court’s decision is “ ‘contrary to’ federal law if it
    fails to apply the correct controlling Supreme Court authority
    5
    Although we can overturn a state court’s decision only if it is contrary
    to, or an unreasonable application of, clearly established federal law as
    determined by the Supreme Court, decisions from this court and other cir-
    cuits are of persuasive weight in regard to “whether a particular state court
    decision is an ‘unreasonable application’ of Supreme Court law, and . . .
    what law is ‘clearly established.’ ” Duhaime v. DuCharme, 
    200 F.3d 597
    ,
    600-01 (9th Cir. 2000). This is especially true if the fact pattern of the
    lower court decision is substantially similar to the case being decided. See
    Ouber v. Guarino, 
    293 F.3d 19
    , 26 (1st Cir. 2002) (“To the extent that
    inferior federal courts have decided factually similar cases, reference to
    those decisions is appropriate in assessing the reasonableness vel non of
    the state court’s treatment of the contested issue.” (internal quotation
    marks and citation omitted)). Prior decisions of this court that make it
    clear that we are applying clearly established Supreme Court law or that
    a particular application of Supreme Court law is unreasonable constitute
    binding precedent on that point. Otherwise, were an identical case to come
    before us the following month, we would have to undertake the identical
    analytical exercise all over again, instead of simply relying on the fact that
    we had just done so and had already resolved the question.
    MOORE v. CZERNIAK                           9413
    or comes to a different conclusion . . . [from] a case involving
    materially indistinguishable facts.” Pirtle v. Morgan, 
    313 F.3d 1160
    , 1167 (9th Cir. 2002) (citing Bell v. Cone, 
    535 U.S. 685
    ,
    694 (2002)). A state court’s decision is an “unreasonable
    application” of Supreme Court law if “the state court correctly
    identifies the governing legal principle . . . but unreasonably
    applies it to the facts of the particular case.” Bell, 
    535 U.S. at 694
    . The Supreme Court has held that “a federal habeas court
    making the ‘unreasonable application’ inquiry should ask
    whether the state court’s application of clearly established
    federal law was objectively unreasonable.” Williams v. Tay-
    lor, 
    529 U.S. 362
    , 409 (2000).
    The substantive federal law guiding our inquiry is supplied
    by Strickland v. Washington, 
    466 U.S. 668
     (1984), which is
    “clearly established Federal law” under AEDPA. Williams,
    
    529 U.S. at 391
    . To prevail on a claim of ineffective assis-
    tance of counsel under Strickland, Moore must demonstrate
    both that his counsel’s representation was deficient—in other
    words, that it “fell below an objective standard of
    reasonableness”—and that the deficiency was prejudicial.
    Strickland, 
    466 U.S. at 687-88, 692
    . To show prejudice,
    Moore must demonstrate that “there is a reasonable probabil-
    ity that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different. A reasonable prob-
    ability is a probability sufficient to undermine confidence in
    the outcome.”6 
    Id. at 694
    . The Court has held expressly that
    this is so in the plea, as well as the trial, context. See Hill v.
    Lockhart, 
    474 U.S. 52
    , 57 (1985). Because Moore’s claim
    involves the failure to suppress a confession, the prejudice
    6
    For Strickland claims, it is unnecessary to conduct a harmless error
    analysis under Brecht v. Abrahamson, 
    507 U.S. 619
    , 637 (1993). Avila v.
    Galaza, 
    297 F.3d 911
    , 918 n.7 (9th Cir. 2002) (“We need not conduct a
    harmless error review of Strickland violations under Brecht . . . , because
    ‘[t]he Strickland prejudice analysis is complete in itself; there is no place
    for an additional harmless-error review.’ ” (quoting Jackson v. Calderon,
    
    211 F.3d 1148
    , 1154 n.2 (9th Cir. 2000))); see also Kyles v. Whitley, 
    514 U.S. 419
    , 435-36 & n.9 (1995).
    9414                  MOORE v. CZERNIAK
    question is governed by Fulminante, 
    499 U.S. 279
    , the guid-
    ing Supreme Court precedent on the harmlessness of an erro-
    neously admitted confession. As Fulminante commands, we
    must “exercise extreme caution” before determining that the
    failure to move to suppress a coerced confession was nonpre-
    judicial. Fulminante, 
    499 U.S. at 296
    .
    III.
    We address Strickland’s performance prong first. In Part
    III.A, we consider whether Moore’s attorney rendered defi-
    cient performance in failing to file a motion to dismiss
    Moore’s confession. Moore’s counsel provided two reasons
    why he did not file such a motion: first, he believed that a
    motion would not be meritorious, and second, he believed that
    even if a motion were to succeed, it would make no difference
    to the outcome because Moore had confessed informally to
    two lay persons. As noted above, the state does not dispute on
    appeal that a suppression motion would have been meritori-
    ous. Thus, the sole issue as to deficient performance is
    whether counsel’s conclusion that a motion to suppress
    Moore’s formal, taped confession would have been purpose-
    less in light of his two informal confessions “fell below an
    objective standard of reasonableness.” Because this question
    is essentially one of prejudice, our deficient performance
    analysis turns largely on whether counsel’s failure to move to
    suppress the taped confession affected the outcome of the plea
    process. We conclude, in Part III.B, that it did. Thus, because
    both of counsel’s stated reasons for not filing the motion were
    patently erroneous, and because the detailed, taped confession
    Moore gave to the police was highly damaging, we hold that
    counsel’s performance “fell below an objective standard of
    reasonableness” and, as such, was constitutionally deficient.
    For the reasons explained below, we also hold that the state
    court’s conclusion that counsel’s failure to file the motion was
    not prejudicial was contrary to Fulminante and constituted an
    unreasonable application of Strickland.
    MOORE v. CZERNIAK                         9415
    A.    Deficient Performance
    The Supreme Court has clearly established that “a single,
    serious error may support a claim of ineffective assistance of
    counsel”—including counsel’s failure to file a motion to sup-
    press. Kimmelman v. Morrison, 
    477 U.S. 365
    , 383 (1986). In
    applying the deficient performance prong of Strickland to
    cases in which the alleged ineffective assistance consists of
    counsel’s failure to file such a motion, the Court has stated
    that the underlying claim—the claim purportedly requiring
    suppression—must be “meritorious.” 
    Id. at 375, 382
    ; see also
    Ortiz-Sandoval v. Clarke, 
    323 F.3d 1165
    , 1170 (9th Cir.
    2003) (same). However, “the failure to file a [meritorious]
    suppression motion does not constitute per se ineffective
    assistance of counsel.” Kimmelman, 
    477 U.S. at 384
    ; see also
    
    id. at 382
     (“Although a meritorious Fourth Amendment issue
    is necessary to the success of a Sixth Amendment claim
    [involving counsel’s failure to file a motion to suppress], a
    good Fourth Amendment claim alone will not earn a prisoner
    federal habeas relief.”). Rather, to satisfy Strickland’s perfor-
    mance prong, the habeas petitioner must show that his coun-
    sel’s failure to file the meritorious motion to suppress “fell
    below an objective standard of reasonableness.” Strickland,
    
    466 U.S. at 688
    . Where, as here, the state asserts that filing
    a motion to suppress, even if meritorious, would have served
    no useful purpose because other evidence in its possession
    would establish the same facts, our inquiry with respect to
    deficient performance substantially overlaps with our inquiry
    regarding prejudice.7
    7
    The dissent characterizes our holding in this case as mandating that
    defense counsel must file any meritorious suppression motion. See, e.g.
    Dis. op. at 9472, 9475, 9482-83 & n.9. As the text notes, Kimmelman
    rejects that proposition, and so do we. As our later discussion indicates,
    see infra nn. 16, 20, there may be a valid reason why a competent lawyer
    might not file a potentially meritorious suppression motion, but Moore’s
    counsel offered none here.
    9416                  MOORE v. CZERNIAK
    In his affidavit, Moore’s trial counsel stated two reasons
    and two reasons only for his decision not to file a motion to
    suppress (or, as counsel put it, his reasons for not filing a
    motion were “two-fold”): First, counsel believed that such a
    motion “would be unavailing”—i.e., not meritorious—
    because Moore “was not in custody at the time he gave the
    recorded interview and . . . the statement was voluntary.” Sec-
    ond, counsel believed that, even if a motion to suppress
    Moore’s confession were meritorious, filing it would make
    little difference because Moore “had previously made a full
    confession to his brother and to Ms. Ziegler, either one of
    whom could have been called as a witness at any time to
    repeat his confession in full detail.” We hold that both of
    counsel’s reasons for not filing the motion—that the motion
    was not meritorious on either ground, and that, even if it were,
    it would have served no purpose because of the other
    confessions—were erroneous. Given the highly damaging
    nature of Moore’s taped confession to the police and the
    unconstitutionality of that confession, we hold that counsel’s
    failure to move to suppress the confession “fell below an
    objective standard of reasonableness” and thus constituted
    deficient performance, and that the state court’s conclusion to
    the contrary was contrary to Fulminante and an unreasonable
    application of Strickland.
    1.   The state has conceded that a motion to suppress
    Moore’s confession on involuntariness grounds would
    have been meritorious.
    [1] Moore urges two grounds on which a motion to sup-
    press his confession would have been meritorious: first, that
    his confession was procured during a custodial interrogation,
    after Moore had invoked his right to counsel, in violation of
    Edwards v. Arizona, 
    451 U.S. 477
    ; and second, that his con-
    fession was involuntary, having been extracted as the result of
    a promise of leniency made by the interrogating officers. The
    state court concluded that a motion to suppress on the
    Edwards ground would not have been meritorious because
    MOORE v. CZERNIAK                            9417
    Moore “was not in custody when he gave his statement.” It
    did not, however, address the involuntariness question.8 On
    federal habeas review, the district court agreed with the state
    court with respect to the Edwards issue but found that a
    motion to suppress would have been meritorious on the invol-
    untariness ground.9 Critically, the state does not challenge the
    district court’s determination on appeal. Thus, although we
    would ordinarily review the district court’s factual findings
    for clear error, here we simply accept as correct the district
    court’s finding that Moore’s confession was involuntary—
    and, consequently, that a motion to suppress would have been
    meritorious on that ground.10 Accordingly, we will not engage
    8
    It is unclear why the state court failed to address the involuntariness
    ground. Nevertheless, both parties agree that this issue was raised at the
    state court and therefore that it is properly before us.
    9
    Specifically, the district court found that
    [a] reasonable person in [Moore]’s position would have con-
    cluded that an offer of leniency had been extended in exchange
    for a confession. It is clear [Moore ] subjectively believed that
    this offer was made, and confessed to Rogers’ murder based on
    this false promise. The false promise of leniency, made entirely
    believable by the continual references and comparison’s to [Ray-
    mond]’s prior situation, rendered [Moore]’s confession involun-
    tary.
    10
    We note, however, that had the state contested the district court’s vol-
    untariness determination, we could not conclude that the district court had
    erred, let alone clearly erred, in finding that Moore’s confession was made
    in response to a false promise that the charges against him would be
    reduced if he confessed to accidentally killing Rogers. The officers repeat-
    edly told Moore that they would “go to bat for him” if he confessed. More
    important, the officers reminded Moore of the experience of his brother
    Raymond, whose murder charges had been dismissed at their instigation
    when Raymond explained that the killing was accidental, and used Ray-
    mond’s own personal reaffirmation of the events to convince Moore that
    his treatment would follow in the same vein. Throughout the interrogation,
    the officers implied that if he agreed to talk, Moore would receive the
    same treatment his brother did—that is, that the charges against him would
    be dropped, or, more likely, reduced from murder to a lesser offense. The
    officers also purported to clear the arrangement with the District Attorney,
    9418                       MOORE v. CZERNIAK
    in an extensive discussion as to why a motion to suppress
    would also have been meritorious if based on the ground that
    Moore was in custody and had asked for, but not been
    granted, his right to counsel prior to the interrogation. How-
    ever, because counsel’s error on this ground buttresses our
    conclusion that his performance was highly deficient, we set
    forth briefly in the footnote appended hereto the reasons we
    conclude that counsel’s failure to file on the Edwards ground
    was also objectively unreasonable.11
    reassuring Moore that he would be taken care of as long as he told the
    truth. Given these facts, we fully agree with the district court’s conclusion
    that the officers created an implied promise that Moore would not be
    charged with intentional murder or felony murder if he confessed to Rog-
    ers’s accidental killing, and that this promise was “sufficiently compelling
    to overbear [Moore’s] will.” United States v. Leon Guerrero, 
    847 F.2d 1363
    , 1366 (9th Cir. 1988); see Haynes v. Washington, 
    373 U.S. 503
    , 513-
    14 (1963).
    11
    Counsel’s rationale for not moving to suppress on the Edwards ground
    was that Moore was not in custody when he was interrogated and con-
    fessed after he unsuccessfully invoked his right to counsel. The record
    clearly demonstrates the contrary, however. Moore had already been sub-
    jected to a custodial interrogation the previous day, a fact the state does
    not dispute. He was released from custody only on the condition that he
    return the following afternoon, when, the police told him, he would be for-
    mally booked. Moore was further informed the next day that if he and
    Raymond did not arrive at the station on time, the police “would come get
    [them] . . . and [their] family would not like the way they did it.” At the
    station, the police told Moore that Salyer had already been charged and
    indicated that he too would be formally arrested and charged later that
    day. Faced with these facts, it is clear that a reasonable person in Moore’s
    position—i.e., a person who knows that he is a prime suspect in a killing,
    that he will be booked, charged with murder, and placed in jail later that
    day, and that his co-defendant had already been charged—would not have
    believed that he was free to leave. Thus, there can be no doubt that Moore
    was in fact in custody when he was interrogated and confessed, see Yar-
    borough v. Alvarado, 
    541 U.S. 652
    , 661-63 (2004); United States v.
    Leyva, 
    659 F.2d 118
    , 120 (9th Cir. 1981), and that a motion to suppress
    on this ground would also have been meritorious. In concluding that
    Moore was not in custody, counsel erroneously and unreasonably relied on
    Moore’s post-invocation statements and subjective opinion in violation of
    the clearly established law of Smith v. Illinois, 
    469 U.S. 91
    , 97-98 (1984)
    (per curiam), and Stansbury v. California, 
    511 U.S. 318
    , 323 (1994).
    MOORE v. CZERNIAK                    9419
    2.   Counsel’s failure to file a meritorious motion to
    suppress Moore’s confession “fell below an objective
    standard of reasonableness” and thus constituted
    deficient performance.
    [2] Having determined that a motion to suppress Moore’s
    confession, had it been filed, would have been meritorious,
    we must now consider whether counsel’s failure to file such
    a suppression motion was objectively unreasonable. We con-
    clude that it was.
    [3] Counsel’s only explanation for not filing a motion to
    suppress, aside from his erroneous conclusion that such a
    motion lacked merit, was that he believed that suppressing
    Moore’s taped confession to the police would be futile
    because Moore had also confessed to his brother and half-
    brother’s girlfriend, and that “either one of [them] could have
    been called as a witness.” Counsel’s explanation is essentially
    an argument about prejudice: he did not file a motion to sup-
    press, he asserts, because doing so would have made no dif-
    ference in light of Moore’s confession to his brother and to
    Ziegler. For reasons we explain in the prejudice section of this
    opinion, infra Part III.B, we reject counsel’s determination
    that suppressing Moore’s formal, taped confession to the
    police was purposeless because of the two informal confes-
    sions. We note, moreover, that any reasonable counsel would
    have realized that invalidating Moore’s formal, tape-recorded
    confession would have placed him in a far better position to
    negotiate a reasonable plea and obtain a lesser sentence than
    he would be in if the state knows it can introduce at trial the
    damning unconstitutional confession made to the police.
    [4] Counsel’s decision not to file a motion to suppress was
    doubly erroneous: he both failed to recognize the clear merit
    of that motion on two grounds and failed, notwithstanding the
    clear teaching of Fulminante, to assess properly the damaging
    nature of the tape-recorded formal confession. Thus, because
    we squarely reject both reasons Moore’s counsel offered to
    9420                        MOORE v. CZERNIAK
    explain his decision not to file a motion to suppress, and
    because the confession unconstitutionally obtained by the
    police was so critical to the prosecution and so damaging to
    Moore, we hold that counsel’s failure to file a motion to sup-
    press the confession “fell below an objective standard of rea-
    sonableness” and, accordingly, constituted deficient
    performance. The state court’s opposite conclusion was con-
    trary to Fulminante and constituted an unreasonable applica-
    tion of Strickland.
    The dissent argues that counsel’s performance was not defi-
    cient because “[e]ven assuming the involuntariness of
    Moore’s confession, counsel gave a detailed explanation why
    pursuing the plea was in Moore’s strategic interest.” Dis. op.
    at 9484. Whatever “strategic interests” the dissent might proj-
    ect onto counsel’s thought process post hoc, counsel’s “de-
    tailed explanation,” put forward in his affidavit, makes clear
    these were not the considerations upon which he based his
    decision not to file a motion to suppress. As explained above,
    counsel provided only two reasons for that decision, both of
    which were erroneous and objectively unreasonable.12 At no
    12
    Counsel’s explanation of why he did not move to suppress Moore’s
    confession is set forth in its entirety at paragraphs 3 and 4 of his affidavit.
    This explanation is as follows:
    3. I did not file a Motion to Suppress. My reasons for doing
    this were two-fold. First of all, petitioner’s interview with the
    police, which was taped and transcribed, a copy of the transcrip-
    tion is attached to this affidavit, makes it abundantly clear that
    Mr. Moore was not in custody. He never believed that he was in
    custody and admitted to me that he realized he was not in custody
    when he and his brothers and another friend voluntarily came to
    the police department to give the recorded statement. The law as
    I understood it then and now is exemplified by State ex rel Juv.
    Dept. v. Loredo, 
    125 Or App 390
    , and State v. Smith, 
    310 Or 1
    .
    4. In addition, however, Mr. Moore had previously given a
    full confession to his brother Raymond Moore and to a woman
    named Debbie Ziegler. Mr. Moore and I discussed the possibility
    of filing a Motion to Suppress and concluded that it would be
    MOORE v. CZERNIAK                           9421
    time did counsel suggest that he did not file the motion to sup-
    press because he was concerned about the effect that doing so
    would have on Moore’s plea deal or for any other “strategic”
    reason, and neither the state court nor the district court even
    hinted that counsel’s failure to file the motion was based on
    any such consideration. Nor did the state itself so suggest at
    any time during this litigation and, of particular significance,
    it does not do so on this appeal. Only our dissenting colleague
    offers such a contention, and does so initially on this appeal
    and directly contrary to the facts in the record.
    All the “strategic interests” the dissent says counsel might
    have relied on—namely, counsel’s calculations regarding the
    charges Moore likely would have faced had he foregone the
    plea and his probability of success at trial—were factors
    counsel set forth in a wholly unrelated portion of his affidavit,
    calculations that related to a wholly different question. These
    “strategic interests” were offered by counsel not in explana-
    tion of his failure to file the motion to suppress, but solely in
    justification of his advice to Moore to enter into the plea bar-
    gain. Given counsel’s specific explanation for his decision not
    to file a motion to suppress, that decision necessarily preceded
    and ultimately played a part in counsel’s calculations regard-
    ing the plea offer. Those calculations were influenced by his
    decision on the motion, and are only as good as that decision.13
    unavailing, because in the first place, he knew he was not in cus-
    tody at the time he gave the recorded interview and that the state-
    ment was voluntary, and in the second place, he had previously
    made a full confession to his brother and to Ms. Ziegler, either
    one of whom could have been called as a witness at any time to
    repeat his confession in full detail.
    No other portion of counsel’s affidavit offers any reason for his failure to
    file the motion. See Appendix B.
    13
    In its effort to present counsel’s suppression decision as contempora-
    neous with the plea negotiations, the dissent asserts that “[c]ounsel simply
    could not have moved to suppress a confession at any time before the
    9422                       MOORE v. CZERNIAK
    Thus, we must consider whether counsel’s decision not to file
    a motion to suppress Moore’s confession met the “objective
    standard of reasonableness” required of competent counsel.14
    plea” because “Moore was never indicted, but [rather] pled no contest to
    an information negotiated as part of the plea.” Dis. op. at 9482. The fal-
    lacy of this reasoning is obvious: there is no doubt that had Moore’s coun-
    sel decided to suppress the confession prior to entering plea negotiations
    he would have been able to do so. He need not have “threaten[ed] to file
    such a motion in the plea negotiations,” id.; he simply could have waited
    for the clearly forthcoming charges to be filed, at which point he could
    have moved to suppress the confession. Instead, he decided, incorrectly,
    that a suppression motion would be unmeritorious, and, after making that
    erroneous conclusion, proceeded to plead his unindicted, uncharged client
    to felony murder. Counsel’s determinations throughout the process were
    based on the erroneous premise that his client would be confronted with
    a recorded confession to the police that would assure a conviction regard-
    less of all else. Such a course of conduct falls far short of “meticulous,
    informed representation.” id. at 9481.
    14
    For this reason, the dissent’s invocation of McMann v. Richardson,
    
    397 U.S. 759
     (1970), is misplaced. Moore’s challenge is not to counsel’s
    plea advice, as was the case in McMann, but to counsel’s failure to file a
    motion to suppress. This challenge to the failure to file a motion is a valid
    Strickland claim clearly recognized by the Supreme Court in Kimmelman.
    See Van Tran v. Lindsey, 
    212 F.3d 1143
    , 1156 (9th Cir. 2000) (“The
    Supreme Court has held that counsel’s failure to file a motion to suppress
    evidence can provide the basis for a claim of ineffectiveness.” (citing Kim-
    melman)), overruled on other grounds by Lockyer v. Andrade, 
    538 U.S. 63
     (2003). We have repeatedly recognized such Kimmelman-type Strick-
    land claims ever since Kimmelman was decided more than twenty years
    ago, see Ortiz-Sandoval, 
    323 F.3d at 1170
    ; Van Tran, 
    212 F.3d at
    1156-
    57; Lowry v. Lewis, 
    21 F.3d 344
    , 345-47 (9th Cir. 1994); United States v.
    Molina, 
    934 F.2d 1440
    , 1447 (9th Cir. 1991), and we have done so in
    cases in which the defendant pled rather than going to trial, see Weaver
    v. Palmateer, 
    455 F.3d 958
    , 972 (9th Cir. 2006); Langford v. Day, 
    110 F.3d 1380
     (9th Cir. 1997), amending on denial of reh’g and reh’g en banc
    
    102 F.3d 1551
     (9th Cir. 1996). Here, as in Langford “the focus is not on
    an attorney’s advice to plead guilty; it is on [the attorney’s performance]
    . . . regarding possible defenses.” Langford, 
    102 F.3d at 1386
    . As such,
    apart from the fact that McMann’s standard of attorney competence was
    the precursor to Strickland’s deficient performance prong, see Strickland,
    
    466 U.S. at 687
    , McMann is simply inapposite to this case, which is about
    suppression, not plea advice.
    MOORE v. CZERNIAK                          9423
    In quoting at length the remainder of Moore’s counsel’s
    affidavit—the passages that are unrelated to counsel’s failure
    to file the suppression motion—the dissent attempts to obfus-
    cate the issue by equating counsel’s failure to file the motion
    with his advice to accept the proposed plea agreement. See
    dis. op. at 9480 (discussing the “strong and obvious strategic
    reasons to take the plea and forego the suppression motion”);
    dis. op. at 9480 (“[C]ounsel’s advice to forego the motion and
    take the plea was based on numerous considerations other
    than these two factors.”); dis. op. at 9482 (discussing the “ob-
    vious strategic reasons . . . that counsel had to advise Moore
    to take the plea”). As counsel’s affidavit makes plain, how-
    ever, while the decision not to file the motion to suppress
    influenced counsel’s separate advice to take the plea, the two
    decisions were distinct and the former was not influenced by
    the latter.15 But see dis. op. at 9482. The dissent’s attempt to
    15
    The deficiency in the dissent’s reasoning becomes all the more appar-
    ent once we actually consult the record. The dissent argues that counsel’s
    “strategic” decision to pursue a plea agreement was reasonable because
    “counsel feared severe consequences if his client went to trial.” Dis. op.
    at 9478. Specifically, in the dissent’s version of the record, the severe
    potential consequences included a possible “conviction of aggravated
    murder, [which] would have subjected Moore to the possibility of the
    death penalty or life imprisonment without the possibility of parole.” Id.
    at 9479 (emphasis added). However, as is the case with much of the dis-
    sent, the “severe consequences” that Judge Bybee retrospectively injects
    into counsel’s thought process were not the consequences that counsel
    actually contemplated. To the contrary, as counsel’s affidavit makes clear,
    he “believed [that] if [Moore] went to trial he would be found guilty of
    assault, kidnapping, and murder (as was his codefendant, Roy Salyer, who
    chose trial as an option).” Appendix B at ¶ 17. Counsel feared that if
    Moore did not plead no contest, he would end up with the same sentence
    Salyer received after trial, but Moore and Salyer received exactly the same
    sentence: mandatory twenty-five year prison terms under Oregon’s Mea-
    sure 11. See supra n. 3; see also Salyer v. Belleque, 
    2005 WL 555403
    , at
    *1 (D. Or. March 4, 2005). Therefore, the “severe consequences” that
    Moore’s counsel feared, as opposed to those dreamed up by the dissent,
    amounted to precisely the same consequences that Moore actually faced
    under the “negotiated” plea agreement. Given this outcome, the dissent’s
    reliance on the “reasonableness” of counsel’s plea advice is doubly curi-
    ous — not only does counsel’s affidavit make clear that his decision
    9424                       MOORE v. CZERNIAK
    elide these issues and obfuscate counsel’s reasons for failing
    to file a critical motion is directly contrary to what counsel
    himself stated under oath. So that no reader will be misled as
    to exactly what counsel’s reasons were—and were not—for
    failing to file a motion to suppress, we attach as Appendix B
    to the opinion a full and complete copy of counsel’s affidavit.
    Even if the objective of not impairing plea negotiations
    might have been a reasonable strategy supporting some other
    counsel’s decision not to file a motion to suppress in some
    other case, it was simply not a reason that influenced Moore’s
    counsel or that his counsel considered as a basis for his deci-
    sion.16 Nor has the state ever argued, or the state court ever
    regarding the motion to suppress was unrelated to his subsequent plea
    negotiations, but counsel hardly won a bargain that “was the best [he]
    could do under the circumstances,” dis. op. at 9480, seeing as, by coun-
    sel’s own admission, the plea bargain resulted in the same mandatory sen-
    tence that counsel thought would be the likely outcome of a full trial. In
    short, Moore’s plea gained him nothing, just as counsel’s failure to move
    to suppress the confessions was only to his client’s detriment.
    16
    To be sure, we have held that a defense counsel’s decision not to file
    a meritorious motion may constitute a reasonable strategic choice where
    counsel did so in order “not . . . to upend plea negotiations.” Weaver v.
    Palmateer, 
    455 F.3d 958
    , 972 (9th Cir. 2006). That rule is of no relevance
    here, however. In such cases, the defendant had made clear in advance that
    he desired to plead rather than go to trial; thus, we emphasized, because
    the lawyer’s conduct was motivated by his client’s express wishes, his
    decision not to file a suppression motion so as to preserve the plea negoti-
    ations was a reasonable strategy. 
    Id.
     (holding that counsel’s failure to file
    a motion to exclude lineup identifications was reasonable “in light of [the
    defendant’s] desire to plead guilty and avoid multiple public trials”);
    Langford, 
    110 F.3d at 1387
     (holding that counsel’s failure to pursue sup-
    pression of a confession was not deficient performance where the defen-
    dant had “insiste[d] . . . that he wanted no motions to suppress or other
    types of delay to interfere with his intended plea of guilty”); see also
    Stankewitz v. Woodford, 
    365 F.3d 706
    , 720 n.7 (9th Cir. 2004) (“An attor-
    ney’s performance is not deficient where[ ] . . . it reflects a reasonable
    strategic choice that aligns with his client’s wishes.”). In this case, there
    is no suggestion, let alone any evidence, that Moore expressed a desire to
    MOORE v. CZERNIAK                           9425
    suggested, at any level, that counsel had any such strategic
    consideration in mind. This is simply another argument that
    our dissenting colleague has for the first time conjured up on
    appeal. We may not as appellate judges manufacture such
    arguments from scratch, especially where, as here, the facts in
    the record are directly contrary to the theory we are seeking
    to create on behalf of one of the parties. See Alcala v.
    Woodford, 
    334 F.3d 862
    , 871 (9th Cir. 2003) (“We will not
    assume facts not in the record in order to manufacture a rea-
    sonable strategic decision for [the defendant’s] trial coun-
    sel.”). The dissent’s suggestion that counsel’s decision not to
    file a motion was motivated by strategic considerations con-
    cerning the plea negotiations “resembles more a post hoc
    rationalization of counsel’s conduct than an accurate descrip-
    tion of [his] deliberations prior to” deciding against filing the
    motion. Wiggins, 
    539 U.S. at 526-27
    .
    [5] Where the issue is whether counsel’s performance was
    ineffective, we must decide that question based on what coun-
    sel’s reasons for his decisions actually were, not on the basis
    of what reasons he could have had for those decisions. Thus,
    just as we may not second-guess a lawyer’s reasonable tacti-
    cal or strategic decisions, Strickland, 
    466 U.S. at 689
    , we may
    not deem unreasonable actions to have been “the result of rea-
    sonable professional judgment,” 
    id. at 690
    , by grounding
    them in considerations that were not, in fact, the lawyer’s rea-
    sons for acting or failing to act. See Kimmelman, 
    477 U.S. at 385
     (“The trial record in this case clearly reveals that Morri-
    son’s attorney failed to file a timely suppression motion, not
    due to strategic considerations, but because, until the first day
    plead guilty and avoid trial, or to forego the filing of his meritorious sup-
    pression motion, prior to counsel’s decision not to file such a motion, nor
    did counsel ever suggest that his reason for not filing the motion was that
    it would have jeopardized or adversely affected plea negotiations. To the
    contrary, counsel’s affidavit makes clear that his reasons for not filing the
    motion had nothing to do with the prospective plea negotiations. See infra
    Appendix B at ¶¶ 3-4.
    9426                  MOORE v. CZERNIAK
    of trial, he was unaware of the search and of the State’s inten-
    tion to introduce the bedsheet into evidence.”); Tomlin v.
    Myers, 
    30 F.3d 1235
    , 1239 (9th Cir. 1994) (rejecting coun-
    sel’s justification for his failure to move to suppress unconsti-
    tutional lineup identification evidence—that he did not
    believe it would be excluded—where counsel “did not indi-
    cate that that was the basis on which he chose not to object”).
    Here, as in Kimmelman and Tomlin, the record makes clear
    that counsel failed to file a motion to suppress not for strate-
    gic reasons but because of his ineffective performance of his
    duties. As counsel himself explained, his failure to file a
    motion was based solely on his assessment of the motion’s
    likelihood of success and his judgment that failing to suppress
    Moore’s formal, taped confession to the police would be
    harmless in light of the two informal confessions that Moore
    allegedly had made to laymen. Because that assessment was
    grossly erroneous and clearly “fell below an objective stan-
    dard of reasonableness,” we hold that Moore’s counsel’s per-
    formance was constitutionally deficient under Strickland.
    B.   Prejudice
    [6] It has long been clear that Strickland’s prejudice prong
    requires no more than a “show[ing] that there is a reasonable
    probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” Strick-
    land, 
    466 U.S. at 694
    ; 
    id.
     (holding that “[a] reasonable proba-
    bility is a probability sufficient to undermine confidence in
    the outcome”). In Hill v. Lockhart, 
    474 U.S. 52
     (1985), the
    Supreme Court confirmed that Strickland’s prejudice standard
    applies in the plea context; it held that prejudice in that con-
    text turns on “whether counsel’s constitutionally ineffective
    performance affected the outcome of the plea process.” 
    Id. at 59
    . “In other words,” the Court wrote, “in order to satisfy the
    ‘prejudice’ requirement, the defendant must show that there is
    a reasonable probability that, but for counsel’s errors, he
    would not have pleaded guilty and would have insisted on
    going to trial.” 
    Id.
    MOORE v. CZERNIAK                     9427
    [7] We are confronted here with a very clear and specific
    argument by the state as to why the failure of Moore’s coun-
    sel to move to suppress the taped confession Moore made
    while in custody in the police station was not prejudicial. The
    argument is not, as our dissenting colleague wishes it were,
    that the police had so much evidence against Moore that
    Moore’s formal confession was unlikely to affect the result.
    Had that been the state’s contention, we would have had very
    different briefs, very different oral arguments, and a very dif-
    ferent majority opinion, although not a different result. It is
    not the function of appellate judges, however, to decide cases
    that the parties have not presented to them. Here, the state’s
    sole argument as to prejudice is straightforward and succinct:
    “[P]etitioner previously had confessed ‘the whole story’ that
    he told police to his brother and told another friend, Debbie
    Ziegler, ‘what had happened.’ Either of those people could
    have been called as witnesses to repeat the confession. . . . In
    light of this, petitioner failed to show . . . that he was preju-
    diced by counsel’s decisions.” State’s Br. at 18. The state’s
    argument mirrors Moore’s counsel’s explanation for why he
    did not file the motion, see Counsel’s Affidavit at 2 ¶4 (con-
    cluding that a motion to suppress “would be unavailing”
    because Moore “had previously made a full confession to his
    brother and to Ms. Ziegler, either one of whom could have
    been called as a witness . . . to repeat his confession in full
    detail”), as well as the state court’s conclusion as to prejudice,
    see State Court decision at 6 ¶ 8 (“Both Raymond Moore and
    the friend could have been called as witnesses to repeat peti-
    tioner’s confession. A motion to suppress would have been
    fruitless.”) (citing Counsel’s Affidavit) (citation omitted).
    Critically, at no point does the state argue—nor did the state
    court hold—that counsel’s failure to file the motion was not
    prejudicial because the state had other evidence in its posses-
    sion that would have caused Moore to accept the plea rather
    than go to trial. The state’s argument and the state court’s
    decision are limited exclusively to the contention that Moore
    had confessed to two lay persons and for that reason the
    exclusion of his formal confession to the police would have
    9428                       MOORE v. CZERNIAK
    made no difference to Moore’s decision to plead. As a result,
    our analysis is limited to the specific question whether the
    existence of an informal “confession” to two lay witnesses
    makes counsel’s failure to move to suppress Moore’s formal,
    taped confession to the police non-prejudicial.17
    The state court found, as a matter of fact, that because
    Moore “had previously confessed his participation in the
    crime to his brother . . . and another friend,” both of these
    individuals “could have been called as witnesses to repeat
    petitioner’s confession.” It then concluded, as a matter of law,
    that because “[b]oth Raymond Moore and the friend could
    have been called as witnesses to repeat petitioner’s confession
    . . . [a] motion to suppress,” even if successful, “would have
    been fruitless.”18 Assessing the state court’s decision under
    AEDPA, we conclude that its prejudice determination consti-
    tuted “an unreasonable application of[ ] clearly established
    Federal law” under 
    28 U.S.C. § 2254
    (d)(1).
    Even granting the factual assumption underlying the state
    court’s prejudice determination—i.e., that Raymond and
    Ziegler would have testified to a version of Moore’s informal
    confession—its determination that counsel’s failure to sup-
    press the formal taped confession was not prejudicial because
    Moore had previously told his relative and a relative’s girl-
    friend about his participation in the killing of the victim was
    17
    Were we to consider the arguments regarding prejudice created ex
    cathedra on appeal by the dissent, we would in all likelihood reject them.
    So as not to leave the dissent’s extensive presentation of the case it has
    created on behalf of the state wholly unanswered, we have commented in
    a summary fashion in Appendix A, infra. We note, here, however, that the
    legal obstacles Judge Bybee’s enormously creative argument faces are
    insurmountable for some of the reasons we have set forth herein, as well
    as for the reasons set forth in that Appendix.
    18
    The district court echoed the state court, adding only, on its own ini-
    tiative, that co-defendant “Salyer’s demonstrated willingness to cooperate
    with the police” also prevented any error by Moore’s counsel from preju-
    dicing his defense.
    MOORE v. CZERNIAK                             9429
    contrary to clearly established Supreme Court law. Indeed, the
    Supreme Court squarely rejected a markedly similar argument
    in Arizona v. Fulminante, 
    499 U.S. 279
    , a case that is, a forti-
    ori, controlling here.19
    [8] In Fulminante, the defendant confessed, while in prison,
    to a paid informant who offered protection from “tough treat-
    ment” in exchange for the confession; he also confessed to the
    informant’s wife following his release from prison. 
    499 U.S. at 283-84
     (internal quotation marks omitted). Fulminante
    claimed that the confession to the informant was coerced and
    that its admission at trial violated his rights under the Fifth
    and Fourteenth Amendments. 
    Id. at 284
    . The state supreme
    court, not unlike the state court here, found that the admission
    of the defendant’s coerced confession was harmless because
    an “admissible second confession . . . rendered the first con-
    fession . . . cumulative.” 
    Id. at 296
    . The state court in Fulmi-
    nante concluded that “due to the overwhelming evidence
    adduced from the second confession, if there had not been a
    first confession, the jury would still have had the same basic
    evidence to convict.” 
    Id. at 297
     (quoting State v. Fulminante,
    
    778 P.2d 602
    , 611 (Ariz. 1988)) (internal quotation marks
    omitted). The Supreme Court unequivocally rejected this
    argument. The Court held that because “the two confessions
    19
    The dissent finds it significant that petitioner does not cite Arizona v.
    Fulminante in his brief, see dis. op. at 9471, 9492 n.14, 9493, equating our
    reliance on this Supreme Court precedent with the dissent’s effort to judi-
    cially manufacture a new record on appeal. However, it is clear that the
    petitioner never waived the issue of prejudice or the argument that
    Moore’s confession was prejudicial despite the existence of the other
    “confessions.” To the contrary, this issue was central to the litigation
    below. Where a party has “raised the issue” and the opposing party has
    had an opportunity to offer arguments in response, the Court of Appeals
    is not prohibited from relying on Supreme Court precedent simply because
    a party failed to cite that particular “legal authority to support their conten-
    tion.” Lake v. Lake, 
    817 F.2d 1416
    , 1424 (9th Cir. 1987); cf. Puerta v.
    United States, 
    121 F.3d 1338
    , 1341-42 (9th Cir. 1997) (“An argument is
    typically elaborated more articulately, with more extensive authorities, on
    appeal . . . and there is nothing wrong with that.”).
    9430                       MOORE v. CZERNIAK
    reinforced and corroborated each other . . . one confession
    was not merely cumulative of the other,” 
    id. at 299
    , and there-
    fore concluded that the error was not harmless, 
    id. at 297
    . Ful-
    minante stands for the proposition that the admission of an
    additional confession ordinarily reinforces and corroborates
    the others and is therefore prejudicial.20
    [9] Here, too, the formal confession to the police would
    reinforce and corroborate the informal confessions. But, here,
    the prejudice is far greater than with the type of confessions
    involved in Fulminante. Unlike in Fulminante, the unconstitu-
    tional evidence here did not involve simply a second recita-
    tion by a second lay witness of an account of an informal
    confession. Rather, here the evidence that counsel should
    have sought to exclude was a formal taped confession in
    which Moore himself described in detail, in his own words
    and his own voice, his participation in a killing in response to
    detailed questioning by trained investigators in the police sta-
    tion. Such a formal confession would, without question, be far
    more persuasive to a jury than Moore’s statements to two lay
    witnesses—statements that Moore’s brother Raymond and his
    half-brother Lonnie’s girlfriend might or might not have been
    willing to recount, but that would in any event have lacked the
    flavor, details, specificity, and completeness of the taped con-
    fession. There can be little doubt that a taped recording of a
    20
    Contrary to the dissent’s contention, we do not “adopt a per se rule
    that the improper admission of a confession is prejudicial.” Dis. op. at
    9493-94. We recognize that Fulminante held that the erroneous admission
    of a confession is subject to harmless error review; it did not, however,
    hold that such an error is ordinarily harmless. To the contrary, the Court
    emphasized that “[i]n the case of a coerced confession . . . the risk that the
    confession is unreliable, coupled with the profound impact that the confes-
    sion has upon the jury, requires a reviewing court to exercise extreme cau-
    tion before determining that the admission of the confession at trial was
    harmless.” Fulminante, 
    499 U.S. at 296
     (emphasis added). Here, for rea-
    sons we explain at length in the text, such an exercise of caution compels
    the conclusion that the admission of Moore’s coerced, uncounseled, for-
    mal confession would have been highly prejudicial.
    MOORE v. CZERNIAK                             9431
    defendant’s confession taken with all the requisite formalities
    by police officers and played to a jury that hears the defen-
    dant’s confession in the defendant’s own words from his own
    lips (or even from a reading of a transcript of his confession)
    is in no way comparable in its impact on the jury, and is
    indeed far more inculpatory in substance and effect, than a
    recitation by a layperson of the defendant’s informal and
    unrecorded account of the incident21 —in this case, a recita-
    tion by witnesses sympathetic to the defendant who would
    undoubtedly be reluctant to do unnecessary harm to his case
    and whose testimony, to the extent that it might be adverse,
    would be subject to rigorous cross-examination by defense
    counsel whose efforts at impeachment they would be inclined
    to support.22 Admission of Moore’s formal, tape-recorded
    21
    The dissent’s argument that the facts of this case bear a closer resem-
    blance to the facts of Milton v. Wainwright, 
    407 U.S. 371
     (1972), than to
    those of Fulminante is simply not correct. See dis. op. at 9498 n.20. In
    Milton, as the dissent notes, the petitioner had already made three full con-
    fessions, which were held to be admissible. Milton, 
    407 U.S. at 373-74, 376-77
    . The petitioner challenged the admission of a fourth confession,
    made to an undercover officer posing as an incarcerated murder suspect
    in petitioner’s cell. 
    Id. at 375
    . In a case in which the petitioner has already
    made three confessions—one that was recorded and two that were in writ-
    ing and signed by the petitioner—it is relatively clear that a fourth confes-
    sion made orally to another person will not be prejudicial. In the present
    case, however, the challenged confession was the only full and formal
    confession, the only confession that was memorialized in any manner, let
    alone in the form of a taped recording; further, as discussed infra, it is
    unclear whether the two prior informal confessions would have been
    adduced at trial or how effective they would have been. Moore’s taped
    confession would have been the only full account of the events relating to
    the actual kidnapping and shooting, as well as the only totally credible
    account, not subject to challenge on cross-examination. To treat it as sim-
    ply corroborative would be grossly disingenuous.
    22
    In applying Strickland’s prejudice prong, we also note that this court
    has refused to hold non-prejudicial the wrongful admission of a critical
    piece of evidence even when other, substantially similar statements would
    have been admissible. See, e.g., Bockting v. Bayer, 
    408 F.3d 1127
    , 1127
    (9th Cir. 2005) (“Even if [the six-year-old alleged sexual abuse victim’s]
    statement to the mother was, for argument’s sake, considered admissible,
    9432                      MOORE v. CZERNIAK
    confession would certainly have “reinforced and corroborat-
    ed” the informal accounts reported by two lay witnesses.
    Fulminante, 
    499 U.S. at 299
    . The state court’s finding that a
    motion to suppress a recorded confession to the police would
    have been “fruitless” due to the fact that Raymond or Ziegler
    “could have been called as witnesses to repeat [Moore’s] con-
    fession” was without question contrary to clearly established
    federal law as set forth in Fulminante.23
    The probability that Moore would not have pled to a felony
    murder charge with a mandatory twenty-five-year sentence
    had his counsel filed a motion to suppress the taped confes-
    sion is more than “sufficient to undermine confidence in the
    outcome” under Strickland. Without Moore’s formal, taped
    confession, the state’s case would have been far weaker. As
    the Supreme Court held in Fulminante, “[a] confession is like
    no other evidence.” 
    499 U.S. at 296
    . The Fulminante Court
    emphasized the weight of a defendant’s confession: A “defen-
    dant’s own confession is probably the most probative and
    damaging evidence that can be admitted against him . . . .
    [T]he admissions of a defendant come from the actor himself,
    the detective’s description of Autumn’s interview was so significant as
    corroborating evidence that its admission had a substantial and injurious
    effect or influence in determining the jury’s verdict.” (emphasis added)),
    amending on denial of reh’g 
    399 F.3d 1010
    , 1022, rev’d on other grounds
    sub nom. Whorton v. Bockting, 
    127 S. Ct. 1173
     (2007).
    23
    See Stapleton v. Wolfe, 
    288 F.3d 863
    , 868 (6th Cir. 2002) (holding
    under AEDPA that a finding of lack of prejudice under analogous circum-
    stances was contrary to Fulminante). Unlike the instant case, Stapleton
    involved multiple accomplice statements rather than more than one con-
    fession. However, relying on Fulminante, the Sixth Circuit held that
    because “Stapleton’s jury could have believed that [one accomplice’s]
    statements and [the other accomplice’s] taped statements ‘reinforced and
    corroborated each other,’ ” the admission of the second accomplice’s
    taped statements, which violated Stapleton’s Confrontation Clause rights,
    was not harmless error. 
    Id.
     (quoting Fulminante, 
    499 U.S. at 299
    ). The
    Stapleton court also held that the state court had “reached a decision con-
    trary to clearly established federal law”—namely, Fulminante. 
    Id.
    MOORE v. CZERNIAK                           9433
    the most knowledgeable and unimpeachable source of infor-
    mation about his past conduct.” 
    Id.
     (quoting Bruton, 
    391 U.S. at 139-40
     (White, J., dissenting)) (omission and alteration in
    original); see also Taylor v. Maddox, 
    366 F.3d 992
    , 1017 (9th
    Cir. 2004) (“[W]e are mindful of the Supreme Court’s admo-
    nition as to the devastating power of confessions.” (citing Ful-
    minante, 
    499 U.S. at 296
    )). When that confession is recorded
    on tape and played to a jury, which hears it in the defendant’s
    own voice, or when the defendant’s own words are tran-
    scribed and read directly to the jury, the confession is of
    course far more harmful than that recounted by a lay witness
    —a witness who is subject to cross-examination on the basis
    of the accuracy of his recollection or even on the basis of his
    veracity, bias, or self-interest—who simply tells the jury what
    the defendant purportedly said in an unrecorded informal dis-
    cussion.
    It is likely that, without the benefit of Moore’s formal, tape-
    recorded confession to the police officers, the state would not
    have been able to secure a plea on the basis of the informal
    confessions. Even assuming that the prosecution was confi-
    dent that Raymond or Ziegler would have testified at a trial,
    it is far from clear what those witnesses would have said or
    to what extent their testimony would have been persuasive to
    a jury, although it is certain that their second-hand reports
    would not have been nearly as damaging as Moore’s own
    taped confession. Critically, the state court made no findings
    as to the contents of what Moore had told Raymond or Ziegler
    or what details they might have been able to recount at trial.
    Thus, the record falls far short of establishing that the poten-
    tial testimony of Raymond and Ziegler would have been suffi-
    cient to cause Moore to accept so harsh a plea agreement—
    especially because Raymond would likely have been a hostile
    witness and there is little evidence that Ziegler could have
    contributed anything.24 Accordingly, exercising “extreme cau-
    24
    In its quest to construct a record supportive of its reasoning, the dis-
    sent claims that “[w]e do not need to fret much about what Raymond
    9434                       MOORE v. CZERNIAK
    tion,” as Fulminante requires us to do, Fulminante, 
    499 U.S. at 296
    , we cannot conclude that counsel’s failure to move to
    suppress Moore’s formal, taped confession was harmless.
    Moore would have testified had he been called at trial . . . because the
    record contains Raymond’s testimony at the state court post-conviction
    evidentiary hearing.” Dis. op. at 9485. However, at the time of the plea
    neither the state nor defense counsel had interviewed Raymond in order
    to determine what he knew about the events. Moreover, Raymond offered
    the testimony that the dissent quotes on his brother’s behalf in order to
    help win his freedom; there are significant reasons to believe that, in the
    context of a trial, Raymond would not have been willing to help convict
    his brother. Raymond was not only Moore’s brother, but also served as an
    advocate for Moore and his co-defendant before and after the interroga-
    tion. Indeed, at the post-conviction hearing, Raymond revealed that he felt
    just as betrayed by the police and District Attorney as did Moore when
    they failed to “go to bat” for him. Furthermore, even if the state had sub-
    poenaed Raymond to testify, knowing him to be a hostile witness, it is
    unlikely that it would have been able to elicit much of the information it
    desired from him.
    As for Ziegler, there is no evidence regarding precisely what Moore told
    her about the crime, and it seems unlikely from the record that he told her
    much. The interrogation transcript shows only the following question and
    answer: “Debbie, since you’re here and you’ve listened to their story,
    when did you first find out about this?” “Today.” Ziegler also stated, “I
    didn’t know [about Rogers’s death] until we’d read the paper and I still
    didn’t know the actual thing.” There is no further record of what Ziegler
    knew.
    The dissent asserts that the state court explicitly found that Moore made
    a full confession to Ziegler because it stated at one point that “[t]he Court
    believes trial counsel’s affidavit” and because that affidavit asserted that
    a “full confession” had been made. Read in context, however, the state
    court declared only that it believed the affidavit as to one particular asser-
    tion it contained—that Moore’s counsel had reviewed Moore’s statement
    —not that it believed every single statement contained in the affidavit,
    including those that it did not discuss until three pages later when for the
    first time it mentioned Moore’s alleged confession to Ziegler. In any case,
    the state court entirely ignored the “relevant” and “highly probative” con-
    flicting evidence consisting of Ziegler’s statements at the interrogation,
    rendering its factfinding process “defective” and unworthy of our defer-
    ence under AEDPA. See Taylor, 
    366 F.3d at 1000-01
    .
    MOORE v. CZERNIAK                   9435
    The dissent criticizes our application of Fulminante, argu-
    ing that it actually “supports the exact opposite conclusion”
    from our holding. Dis. op. at 9494. Specifically, the dissent
    contends that Fulminante’s description of the weight of con-
    fessions applies to Moore’s informal confessions to Raymond
    and Ziegler as well and that, consequently, Fulminante sup-
    ports the conclusion that Moore’s formal, taped confession
    was not prejudicial because the two lay confessions also car-
    ried unique weight. 
    Id.
     In advancing this argument, the dissent
    entirely misses the point of Fulminante. In that case, the
    Supreme Court held that the admission of the coerced confes-
    sion was prejudicial notwithstanding the availability of
    another confession to a lay witness. Under the dissent’s logic,
    the other confession Fulminante made to a lay witness would
    have rendered his coerced confession non-prejudicial, and his
    case would have come out the opposite way: his conviction
    would have been affirmed, not reversed. But that, of course,
    was not the outcome of Fulminante.
    Indeed, our application of Fulminante is fully consistent
    with this court’s recent en banc decision in Anderson v. Ter-
    hune, 
    516 F.3d 781
     (9th Cir. 2008) (en banc), an AEDPA case
    involving a confession obtained in violation of the defen-
    dant’s Fifth Amendment right to silence. In Anderson, we
    held that the state court had unreasonably applied the clearly
    established law of Miranda v. Arizona, 
    384 U.S. 436
     (1966),
    in concluding that the police’s continued interrogation, which
    resulted in the defendant’s confession, after the defendant had
    stated, “I plead the Fifth,” did not violate the Fifth Amend-
    ment. Anderson, 
    516 F.3d at 790-91
    . In determining that the
    Miranda violation was not harmless, we did not even consider
    the other evidence the state had presented to tie the defendant
    to the crime, or whether the confession would have repeated
    such evidence. Rather, relying on Fulminante’s guidance that
    a “defendant’s own confession is probably the most . . . dam-
    aging evidence that can be admitted against him,” 
    id. at 792
    (quoting Fulminante, 
    499 U.S. at 296
    ) (internal quotation
    marks omitted), we concluded that the “prejudice from
    9436                       MOORE v. CZERNIAK
    Anderson’s confession cannot be soft pedaled” because the
    “confession was central to the conviction,” 
    id.
    [10] As in Anderson, Moore’s formal, taped confession was
    central to the state’s ability to secure a plea. The count to
    which Moore pled carried an extremely harsh mandatory
    minimum sentence as a result of the recent passage of a state
    ballot measure. There is at least a reasonable probability that,
    had his confession to the police been suppressed, Moore
    would have insisted on going to trial rather than pleading to
    the offense to which he did, an offense that carried with it so
    severe a mandatory sentence.25 In light of these consider-
    ations, we have no difficulty concluding that Moore has estab-
    lished Strickland prejudice.26
    25
    The dissent misses the point when it observes that “Moore obtained
    the lowest sentence available under Oregon law for felony murder.” Dis.
    op. at 9470-71. Without Moore’s confession and the other evidence it pro-
    duced, Moore likely would not have been convicted of, or even charged
    with felony murder, but rather would have faced some lesser charge. As
    we have noted, see supra n. 15, Salyer, who did not enter into a plea
    agreement, but went to trial instead, received the same 25 year Measure
    11 sentence as did Moore following his plea.
    26
    We note that our case law suggests that if, in response to the filing of
    a suppression motion, the state would have offered Moore a more favor-
    able plea bargain (and he would have accepted it in lieu of going to trial),
    Moore could still have established Strickland prejudice. See United States
    v. Howard, 
    381 F.3d 873
    , 882 (9th Cir. 2004) (“To satisfy Strickland’s
    prejudice prong, [a defendant] must allege that but for counsel’s errors, he
    would either have gone to trial or received a better plea bargain.”). This
    principle makes good sense. The vast majority of cases in criminal courts
    are resolved by plea bargains. See, e.g., U.S. DEP’T OF JUSTICE, BUREAU OF
    JUSTICE STATISTICS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS-2003, at
    450, Table 5.46 (stating that in 2002, 95% of felony convictions in state
    courts were obtained through guilty pleas). Deficient performance that
    results in a defendant pleading to a murder count and receiving a life sen-
    tence where effective representation would have resulted in a manslaugh-
    ter plea and a five- to ten-year sentence is as prejudicial to a defendant as
    deficient performance that results in a conviction of murder after a trial in
    which only a manslaughter charge was sustainable. See Glover v. United
    States, 
    531 U.S. 198
    , 200 (2001) (“[I]f an increased prison term did flow
    from an error the petitioner has established Strickland prejudice.”).
    MOORE v. CZERNIAK                     9437
    *    *    *
    [11] Our task on habeas is to examine the state court’s deci-
    sion under the standards established by AEDPA. The state
    court held that counsel’s failure to move to suppress Moore’s
    taped confession was not prejudicial for the sole reason that
    he had also confessed to two lay witnesses. In reviewing that
    decision, we have, following the law, based our analysis on
    the decision itself and the arguments made by the state on
    appeal. The state argued before the district court and this
    court, consistent with its argument to the state court, and con-
    sistent with the state court’s decision, that Moore’s counsel’s
    performance was not prejudicial for one reason and one rea-
    son only: Moore had confessed to Raymond and Ziegler, who
    could have been called as witnesses, thereby rendering the
    suppression of the confession of no practical significance. As
    discussed supra, that argument is wholly lacking in merit and
    the state court’s conclusion that Moore was not prejudiced by
    counsel’s failure to file a motion to suppress is objectively
    unreasonable under clearly established Supreme Court law.
    Fulminante permits no such construction of the law, and such
    a misconstruction is unreasonable under any standard.
    To reach the opposite conclusion, the dissent once again
    develops its own set of facts and its own arguments—
    arguments that were never conceived of by the state nor sug-
    gested before the state court, the district court, or this court,
    a set of facts and arguments to which the petitioner has never
    had an opportunity to respond. The case now presented on the
    state’s behalf for the first time has been created in its entirety
    by our extremely able, talented, and experienced colleague; it
    is based on the testimony of witnesses and evidence never
    mentioned or relied upon by the state in its arguments regard-
    ing prejudice. Further, the dissent creates and relies upon tes-
    timony that it assumes inevitably would have supported the
    state’s case, without any evidence in the record as to the sub-
    stance or availability of such testimony, or, even more impor-
    tant, its admissibility.
    9438                  MOORE v. CZERNIAK
    No court in this case has undertaken the formidable factual
    inquiry necessary to determine the admissibility—and in
    some instances, substance—of the evidence upon which the
    dissent relies. The record discloses little about how and when
    most of this evidence became known to the state, making it
    impossible for us to determine whether that evidence is, as
    seems likely, a “fruit of the poisonous tree”—a product of
    Moore’s confession. To make this determination would
    require us to find a multitude of facts for the first time on
    appeal, a function that we are neither equipped nor permitted
    to perform. See McNary v. Haitian Refugee Ctr., Inc., 
    498 U.S. 479
    , 497 (1991) (observing that a federal appellate court
    “lack[s] the factfinding and record-developing capabilities of
    a federal district court”).
    Even apart from concerns about inappropriate appellate
    factfinding, we simply decline to base our decision on argu-
    ments and theories that the state has never offered, and which
    it has therefore forfeited. It would work great prejudice to the
    petitioner were we to affirm the denial of his habeas petition
    on the basis of such speculative arguments and assertions
    offered for the first time by a member of this court—
    arguments and assertions to which Moore has had no occa-
    sion, opportunity, or reason to respond. Without any indica-
    tion from the state as to what evidence it may have possessed
    and why that evidence may have rendered counsel’s failure to
    suppress the confession harmless, it is simply impossible for
    a petitioner to respond to the state’s “evidence” or “argu-
    ments.”
    Our prior decisions disapprove of such practice. Indeed,
    under our precedent, the state has doubly forfeited the fact-
    bound alternative theories of prejudice that our dissenting col-
    league creates and advances on its behalf. Not only did the
    state forfeit any such contentions by not raising them on
    appeal, but it first forfeited these theories in federal court by
    failing to raise them in the district court. See Singleton v.
    Wulff, 
    428 U.S. 106
    , 120 (1976) (“It is the general rule, of
    MOORE v. CZERNIAK                     9439
    course, that a federal appellate court does not consider an
    issue not passed upon below.”); Kimes v. Stone, 
    84 F.3d 1121
    ,
    1126 (9th Cir. 1996) (“The decision to consider an issue not
    raised below is discretionary, and such an issue should not be
    decided if it would prejudice the other party.”). The Supreme
    Court has explained that this forfeiture rule “is essential in
    order that parties may have the opportunity to offer all the
    evidence they believe relevant to the issues which the trial tri-
    bunal is alone competent to decide” and that “it is equally
    essential in order that litigants may not be surprised on appeal
    by final decision there of issues upon which they have had no
    opportunity to introduce evidence.” Hormel v. Helvering, 
    312 U.S. 552
    , 556 (1941). The forfeiture rule (sometimes errone-
    ously called the waiver rule) applies equally to arguments,
    factual assertions, and legal theories that were not urged
    below. See Gieg v. DDR, Inc., 
    407 F.3d 1038
    , 1046 n.10 (9th
    Cir. 2005) (holding that appellees had waived argument not
    raised below); Int’l Union of Bricklayers & Allied Craftsman
    Local Union v. Martin Jaska, Inc., 
    752 F.2d 1401
    , 1404-06
    (9th Cir. 1985) (finding waiver of factual assertions not raised
    in the district court); see also A-1 Ambulance Serv., Inc. v.
    County of Monterey, 
    90 F.3d 333
    , 337-39 (9th Cir. 1996)
    (declining to consider legal theory that would require further
    development of the factual record).
    [12] In this case, the state’s failure to raise below the argu-
    ment that counsel’s failure to move to suppress the taped con-
    fession was harmless for reasons other than the existence of
    the two informal confessions precludes us from considering
    that argument on this appeal. Moore has had no opportunity
    to introduce evidence on the crucial question of which parts
    of the case the dissent now creates for the state are based on
    “fruits of the poisonous tree.” Nor has he had any opportunity
    to challenge any contention the state might advance that such
    evidence was obtained independent of any connection with
    the confession, or to examine any prosecution witness who
    might testify to that effect. Finally, as some of the evidence
    is not even in the record, he has not had the opportunity to
    9440                      MOORE v. CZERNIAK
    challenge the dissent’s assertion that such evidence actually
    exists.
    The state forfeited these arguments a second time by failing
    to raise them before this court. In Stuard v. Stewart, 
    401 F.3d 1064
     (9th Cir. 2005), we squarely rejected the notion that this
    court could create arguments for the state that it did not raise
    on appeal. See 
    id. at 1067
     (holding in an AEDPA case that
    “we are not going to construct an argument for the state sua
    sponte, depriving [the defendant’s] counsel of a fair chance to
    respond to it”). We ordinarily will not consider arguments not
    raised by a party in its opening brief, especially where doing
    so would prejudice the opposing side. See United States v.
    Ullah, 
    976 F.2d 509
    , 514 (9th Cir. 1992); see also Fed. R.
    App. P. 28(a)(9), (b). “We apply that rule with some vigor
    against criminal defendants; we should be no less vigorous in
    applying it against the government.” United States v. Ziegler,
    
    497 F.3d 890
    , 901 (9th Cir. 2007) (Kozinski, J., dissenting
    from denial of rehearing en banc) (citation omitted).
    The state court’s failure to recognize that Moore’s confes-
    sion was obtained unlawfully, along with its and the state’s
    exclusive reliance on the other “confessions” to establish prej-
    udice, resulted in the court’s not making any determination as
    to whether all, or what parts of, the evidence on which the dis-
    sent now relies was obtained as a result of the unlawful con-
    fession and was thus inadmissible in evidence. See Appendix
    A, infra, at 9446-47. Nor, for similar reasons, as we have
    noted, did the district court undertake any such inquiry.
    Although it seems likely that the evidence on which the dis-
    sent relies (to the extent that it exists at all) was principally
    obtained as a result of Moore’s confession,27 we cannot deter-
    27
    For example, the first two dramatic sentences of the dissent, in which
    Judge Bybee purports to describe the facts of the case, parrot the statement
    provided by Moore’s counsel in his effort to defend himself against
    charges of incompetence. It appears that Moore’s counsel inferred these
    facts from statements his client had made and from Moore’s half-brother’s
    confession, both of which were inadmissible. It is likely for this reason
    that the state did not offer any of the arguments that Judge Bybee now
    makes.
    MOORE v. CZERNIAK                     9441
    mine those facts here. Because no factual determination has
    ever been made as to the “fruits of the poisonous tree” and
    because the state has repeatedly failed to offer, and has
    thereby forfeited, any argument that some unproven potential
    evidentiary case as a whole might have rendered counsel’s
    deficient performance non-prejudicial, we cannot and do not
    here consider the dissent’s extensive evidentiary analysis.
    Rather, we are left only with determining whether the differ-
    ence between the weight of Moore’s statements to his brother
    and his half-brother’s girlfriend and his formal taped confes-
    sion to the police is such that the exclusion of the latter under-
    mines our confidence that Moore would have entered into so
    harsh a plea agreement. Considering only the arguments that
    are properly before us, we hold that Moore has established
    Strickland prejudice.
    CONCLUSION
    Moore’s counsel inexplicably failed to file a motion to
    suppress—a motion that could easily have been based on
    either of two grounds, each of which was meritorious and
    each of which would in all likelihood have resulted in the sup-
    pression of his confession and its fruits. The state does not
    contest the finding that Moore would have prevailed on one
    of them—that his confession was involuntary. The reasons
    offered by counsel for his conduct were both limited and
    unmeritorious (and bear no resemblance to the reasons sug-
    gested by the dissent). His inexcusable failure to move to
    exclude the confession afforded the state the opportunity to
    prosecute Moore on the basis of the most damaging inculpa-
    tory evidence that can be introduced against a defendant, and
    thereby to exact a no-contest plea to the egregious offense of
    felony murder with a mandatory twenty-five-year sentence.
    We conclude that Moore was prejudiced by his counsel’s fail-
    ure to file the suppression motion and that, because counsel’s
    performance fell below an objective standard of reasonable-
    ness, he received ineffective assistance of counsel under
    9442                  MOORE v. CZERNIAK
    Strickland. A contrary ruling would necessarily constitute an
    unreasonable application of clearly established Supreme
    Court law. Neither Fulminante nor Strickland is susceptible of
    an objectively reasonable interpretation, even though errone-
    ous, that would support a determination that counsel’s perfor-
    mance in this case was competent or that Moore suffered no
    prejudice as a result of his representation.
    Ignoring Moore’s request, the state court failed to consider
    whether the confession was involuntary on the ground that his
    will was overborne by improper promises of leniency. The
    district court found, however, that Moore’s confession was
    made involuntarily. Because the state does not challenge that
    determination on appeal, it has conceded that a motion to sup-
    press on involuntariness grounds would have been meritori-
    ous. Despite the merit of such a motion, Moore’s counsel
    failed to move to suppress what was “probably the most pro-
    bative and damaging evidence that [could] be admitted
    against him,” Fulminante, 
    499 U.S. at 296
     (quoting Bruton,
    
    391 U.S. at 139
     (White, J., dissenting)). He did not fail to
    make the motion for any strategic reasons but simply because
    he understood that Moore had told two other persons what
    had happened on the day in question and concluded that as a
    result the admission of his formal taped confession to the
    police would be harmless. Given that the failure was in fact
    highly prejudicial, counsel’s conduct fell below an objective
    standard of reasonableness and therefore was “deficient”
    under Strickland. A contrary decision would constitute an
    objectively unreasonable application of clearly established
    Supreme Court law.
    The state court held that Moore was not prejudiced by his
    counsel’s conduct because informal confessions to two lay
    witnesses could have been introduced. In doing so, the state
    court erred unreasonably. Its determination that the taped con-
    fession was harmless was contrary to clearly established
    Supreme Court law as set forth in Fulminante.
    MOORE v. CZERNIAK                            9443
    [13] It is likely that, but for counsel’s failure to file a sup-
    pression motion, Moore would have not entered into the plea
    agreement that required him to plead no contest to a felony
    murder charge with a mandatory twenty-five-year sentence.
    As a result, our confidence in the outcome is undermined.
    Accordingly, Moore is entitled to a writ of habeas corpus
    directing the state to permit him to withdraw his plea or to
    release him from custody.28 Accordingly, we reverse the dis-
    trict court and remand for the issuance of the writ.
    REVERSED AND REMANDED.
    28
    The dissent condemns our holding as not having “accomplished” any-
    thing for Moore, speculating that “[i]t is quite possible that Moore will be
    worse off for having prevailed here.” Dis. op. at 9514. It is not this court’s
    place to make paternalistic judgments about whether a particular holding
    is “good” for a party. Moore made a choice to bring a habeas challenge,
    as is his right. Having been granted the writ, Moore can determine for
    himself whether withdrawing his plea is in his best interest. Our sole
    responsibility is to determine whether Moore’s constitutional rights have
    been violated. That we have done.
    9444                      MOORE v. CZERNIAK
    APPENDIX A
    In this Appendix we will discuss the facts and theories that
    our dissenting colleague has created and advanced on behalf
    of the state—facts and theories not relied on by the state
    court, not suggested by the state in the district court, and not
    argued to this court by either party—facts and theories
    advanced for the first time by an appellate judge, in contra-
    vention of all the rules of appellate procedure. Here, we will
    explain why, even had the state not forfeited the alternative
    theories of prejudice the dissent creates for it, we would reject
    them on the merits.
    With respect to Moore’s co-defendant, Salyer, although the
    district court believed that he “apparently provided detectives
    with the details of the crime when he took them to the loca-
    tion where the shooting occurred,” there is no evidence in the
    record as to what information he conveyed to them. Salyer
    never gave a sworn statement, never testified, and was never
    cross-examined. There is simply no way of knowing precisely
    what Salyer’s testimony might have been, especially under
    the stress of cross examination. More important, as we
    explained in footnote 4 of the opinion, it is almost certain that
    Salyer would not have testified against Moore in any event
    but would have taken the Fifth Amendment instead, as he too
    was facing trial for his involvement in Rogers’s death.29 In
    fact, Salyer was ultimately tried and his appellate and post-
    conviction proceedings did not end until long after the date on
    which Moore would have gone to trial had he not pled. See
    Salyer v. Belleque, 
    2005 WL 555403
     (D. Or. Mar. 4, 2005)
    (denying Salyer’s federal habeas petition).
    29
    Of course, without the ability to put Salyer on the stand, the state
    would not have been able to introduce any statements he might have previ-
    ously made, as doing so would have violated Moore’s Sixth Amendment
    right to cross examine adverse witnesses. See Bruton v. United States, 
    391 U.S. 123
    , 127-28 (1968).
    MOORE v. CZERNIAK                       9445
    The dissent argues that the state’s felony murder case was
    “airtight” even without Moore’s confession to the police, his
    alleged confession to Raymond and Ziegler, and the testi-
    mony of his co-defendants. Dis. op. at 9487, 9490. This is
    simply not so. This dissent goes on at length about all of the
    damning facts that are “undisputed” or “indisputable” in this
    case. Many of these “undisputed” facts, however, appear to be
    drawn by the dissent from the factual basis the state offered
    at Moore’s plea colloquy and sentencing. See, e.g., dis. op. at
    9489 (“[T]he car’s license plates had been covered over with
    duct tape.”). These facts, of course, became “undisputed” only
    after Moore had decided to plead no contest. The fact that
    Moore did not object to factual assertions made by the state’s
    attorney at his plea colloquy, after he had decided not to con-
    test the charges (because doing so not only would have served
    no purpose but would also have been hopeless with his formal
    confession in the record), does not mean that, without
    Moore’s illegal confession and its fruits, the state would have
    been able to prove the assertions beyond a reasonable doubt
    at trial.
    More important, nearly all of the evidence the dissent dis-
    cusses would have been inadmissible at trial because it
    derived either directly or indirectly from Moore and Wool-
    hiser’s involuntary confessions. In particular, the authorities
    learned about the existence and identities of the witnesses at
    Woolhiser and Ziegler’s residence—who, the dissent insinu-
    ates, could have been called to testify to Salyer’s “ranting and
    raving” and the trio’s plan to scare Rogers—as a result of the
    illegal confessions. It is also from the confessions that the
    police learned about the “multiple witnesses” who allegedly
    saw Moore, Salyer, and Woolhiser arrive at and later return
    to Rogers’s residence.30 Dis. op. at 9490. The police found the
    gun, too, because Woolhiser agreed during the unlawful inter-
    30
    The day before the interrogation at issue, Moore told police that
    “some guy” was present outside Rogers’s motor home, but never com-
    mented on the presence or identities of any other witnesses.
    9446                  MOORE v. CZERNIAK
    rogation to show the police “exactly” where it was located.
    And while the record contains no explanation regarding how
    the police located the car, which contained additional physical
    evidence, in California, it seems highly likely that they did so
    using information supplied by the defendants after they had
    “let the cat out of the bag” by giving their involuntary confes-
    sions.
    Had Moore’s counsel filed a motion to suppress on the
    ground the state concedes is meritorious, and had that motion
    succeeded, which is highly probable, all of this evidence
    would likely have been excluded as “fruits of the poisonous
    tree.” See Wong Sun v. United States, 
    371 U.S. 471
     (1963).
    The fruits of involuntary confessions—including those that
    are extracted with promises of leniency—may not be admitted
    at trial. See Kastigar v. United States, 
    406 U.S. 441
    , 453
    (1972) (“We hold that . . . immunity from use and derivative
    use is coextensive with the scope of the privilege against self-
    incrimination . . . . Immunity from the use of compelled testi-
    mony, as well as evidence derived directly and indirectly
    therefrom, affords [the protection required by the Fifth
    Amendment]. It prohibits prosecutorial authorities from using
    the compelled testimony in any respect . . . .”); see also
    United States v. Patane, 
    542 U.S. 630
    , 644 (2004) (plurality
    opinion) (“[T]he Court requires the exclusion of the physical
    fruit of actually coerced statements . . . .”); United States v.
    Gonzalez-Sandoval, 
    894 F.2d 1043
    , 1048 (9th Cir. 1990).
    Thus, a successful motion to suppress would have triggered
    the “fruits of the poisonous tree” doctrine, rendering inadmis-
    sible all evidence obtained as a result of Moore’s confession.
    Nor would Woolhiser’s confession—which was obtained
    during the same coercive interrogation as Moore’s—or its
    fruits be admissible against Moore. See Douglas v. Woodford,
    
    316 F.3d 1079
    , 1092 (9th Cir. 2003) (“[I]llegally obtained
    confessions may be less reliable than voluntary ones, and thus
    using a coerced confession at another’s trial can violate due
    process.” (citing Clanton v. Cooper, 
    129 F.3d 1147
    , 1157-58
    MOORE v. CZERNIAK                           9447
    (10th Cir. 1997) (“[A] person may challenge the govern-
    ment’s use against him or her of a coerced confession given
    by another person.”))); see also Clanton, 
    129 F.3d at 1158
    (collecting similar cases from the First, Fifth, Sixth, and Sev-
    enth Circuits). Furthermore, there is no evidence in the record,
    nor any assertion by the prosecution, that the physical and
    eyewitness evidence on which the dissent relies was obtained
    through a source independent from the illegal confessions or
    that the connection between the confessions and the evidence
    was “so attenuated as to dissipate the taint.” See Wong Sun,
    
    371 U.S. at 487
     (quoting Nardone v. United States, 
    308 U.S. 338
    , 341 (1939)) (internal quotation mark omitted).31
    The dissent’s suggestion that much of the evidence on
    which it relies to construct the state’s hypothetical and “air-
    tight” case was based “solely on statements made by Moore,
    the admissibility of which has never been questioned” is
    unsupported by the record. See dis. op. at 9489 n.12. The
    statement by Moore to which the dissent alludes, which he
    made to the police the evening before his confession, does not
    contain nearly as much information as the dissent makes out.
    Moore stated only that Salyer “was talking about going and
    confronting [Rogers] about the break in at the cabin and he
    also wanted to talk to [Rogers] about the boom box and who
    took it.” He said nothing about “ranting and raving,” nothing
    about “scar[ing] [Rogers] out of ever committing another
    [robbery],” and nothing about the existence or number of wit-
    nesses who observed the defendants planning their visit to
    Rogers. Moore further stated that, upon arriving at Rogers’s
    motor home, “some guy” confronted Woolhiser, but Wool-
    hiser “walk[ed] away” and “over towards to [sic] motor
    home.” According to Moore’s statement, Salyer “was talking
    to [Rogers] about the stolen stuff and the punctured tires. . . .
    31
    What evidence the state could have or would have obtained from inde-
    pendent sources that would not be tainted by the information previously
    obtained as a result of the unlawful confessions is a question that is highly
    speculative and impossible to determine at this time on appeal.
    9448                  MOORE v. CZERNIAK
    [T]hey only stayed at the motor home for approximately 15-
    20 minutes or just enough time to drink two beers.” At no
    point did Moore discuss covering the car’s license plates with
    duct tape, nor did he mention “other people,” beyond the one
    person who confronted Woolhiser, being present at Rogers’s
    home. Certainly he said nothing about kidnapping Rogers,
    beating him, putting him in the trunk, or shooting him. In fact,
    he denied doing so.
    The evidentiary problems that a successful suppression
    motion would have created for the state are therefore quite
    severe. Establishing that critical evidence was discovered
    independently of the confessions would have presented seri-
    ous if not insurmountable problems. For purposes of this
    habeas appeal, however, the most important point is that the
    state made no attempt to separate any admissible evidence
    from the patently excludable evidence, and no court ever
    undertook that task. As a result, we cannot now consider the
    question or make a determination on appeal, for purposes of
    assessing the state’s case, that any of the “evidence” referred
    to by our dissenting colleague is admissible.
    Without the fruits of Moore and Woolhiser’s confessions,
    the prosecution would have had tremendous difficulty meet-
    ing the high burden it faced. In view of the weaknesses in the
    state’s case, it is highly unlikely that, in the absence of his
    own recorded confession, Moore would have pled to felony
    murder. We thus cannot have any confidence that the outcome
    would have been the same had counsel filed a motion to sup-
    press.
    MOORE v. CZERNIAK   9449
    APPENDIX B
    MOORE v. CZERNIAK            9457
    Volume 2 of 2
    9458                  MOORE v. CZERNIAK
    BERZON, Circuit Judge, concurring:
    I concur in Judge Reinhardt’s result and almost all of his
    opinion.
    The pivotal questions are simply whether the Oregon state
    court was unreasonable in its determination that Moore did
    not (1) receive deficient representation of counsel that (2)
    prejudiced his case. Because the state has, by forfeiture,
    acknowledged that Moore’s confession was involuntary for
    the purposes of this appeal, I see no reason to reach that issue
    de novo. I therefore do not concur in footnote ten of the
    majority opinion, which does so. Except for any references to
    footnote ten’s voluntariness holding elsewhere in the text, I
    concur fully in the remainder of the opinion.
    In particular, I concur in Judge Reinhardt’s discussion of
    why Moore’s counsel’s failure to move to suppress his con-
    fession prejudiced Moore, in that I believe, to the extent that
    Hill v. Lockhart, 
    474 U.S. 52
     (1985), provides the proper prej-
    udice standard here, Moore has fulfilled it for the reasons
    which Judge Reinhardt supplies. I write separately, however,
    to note that I believe that Moore could also demonstrate preju-
    dice more directly under Strickland v. Washington, 
    466 U.S. 668
     (1984), and Kimmelman v. Morrison, 
    477 U.S. 365
    (1986). Under Kimmelman and Strickland, the state court
    could have found prejudice if it were reasonably probable that
    the failure to file a meritorious motion led to an increase in
    jail time for Moore — through, for instance, a loss of plea
    bargain leverage.
    While Judge Reinhardt uses Kimmelman to address Strick-
    land’s ineffectiveness prong, both he and Judge Bybee depart
    from the straightforward prejudice inquiry of Strickland’s
    prejudice prong, as used in Kimmelman, instead applying the
    standard used in Hill. On examination however, Hill deals
    with the narrow set of cases within the larger plea context in
    which counsel advised the defendant to take a plea (which
    MOORE v. CZERNIAK                     9459
    may have been poorly-negotiated or ill-informed) rather than
    go to trial, and the defendant challenges this advice (rather
    than, for instance, pre-trial motions that bore on the plea pro-
    cess) as ineffective assistance of counsel. To show prejudice
    under Hill, the defendant must allege that he would have gone
    to trial save for the counsel’s bad advice. As Hill does not
    speak to the context of ineffective assistance with regard to
    pre-trial motions and how they may affect whether a particu-
    lar plea offered is accepted, its prejudice standard need not be
    met here, even if it is available as an alternative means of
    showing prejudice. Put differently, Hill provides that, once
    motions practice and discovery have set the legal landscape,
    prejudice can be judged without showing a different ultimate
    outcome for the defendant, if counsel’s advice to take a par-
    ticular path through that landscape, pleading guilty, was badly
    wrong. Strickland and Kimmelman, instead, deal with coun-
    sel’s failure to create a proper legal landscape — by, for
    instance in this case, failing to file a plainly meritorious sup-
    pression motion. Below, I discuss the Kimmelman/Strickland
    prejudice standard in more detail, explain why the Hill stan-
    dard is not necessary to the disposition here, and conclude
    that Moore was prejudiced under either standard.
    I.   Analysis
    a. Strickland and Kimmelman
    Under Strickland, Moore “must show that there is a reason-
    able probability that, but for counsel’s unprofessional errors,
    the result of the proceeding would have been different.” 
    466 U.S. at 694
     (emphasis added). This prejudice standard is a
    generic one, and ordinarily governs ineffective assistance of
    counsel cases. See, e.g., Wilson v. Henry, 
    185 F.3d 986
    , 988
    (9th Cir. 1999) (relying on Strickland to state the standard for
    a 
    28 U.S.C. § 2254
     ineffective assistance of counsel case).
    Two elements of the Strickland standard are particularly
    important:
    9460                      MOORE v. CZERNIAK
    First, Moore need only show a “reasonable possibility” of
    a different outcome. Strickland, 
    466 U.S. at 694
    ; Wilson, 
    185 F.3d at 988
    .
    Second, applying Strickland, the Supreme Court has estab-
    lished that “any amount of actual jail time has Sixth Amend-
    ment significance.” Glover v. United States, 
    531 U.S. 198
    ,
    203 (2001). Glover held that “if an increased prison term did
    flow from an error the petitioner has established Strickland prej-
    udice.”1 
    Id. at 200
    ; see also Argersinger v. Hamlin, 
    407 U.S. 25
    , 32, 37 (1972) (holding that Sixth Amendment right to
    counsel applies to any case where “imprisonment even for a
    brief period” is possible); 
    id. at 37
     (quoting Baldwin v. New
    York, 
    399 U.S. 66
    , 73 (1970) (stating that “the prospect of
    imprisonment for however short a time will seldom be viewed
    by the accused as a trivial or ‘petty’ matter. . . .” ) (emphasis
    added)).
    Accordingly, if Moore can show a “reasonable probability”
    that absent his counsel’s ineffective performance he would
    have obtained a verdict leading to less time in prison, then,
    applying Strickland and Glover, he has satisfied the prejudice
    prong of the ineffective assistance of counsel test.
    Kimmelman makes clear that the usual Strickland analysis
    applies in the context of a lawyer’s incompetent failure to file
    a timely suppression motion. Kimmelman, 
    477 U.S. at 383-91
    .
    Specifically, Kimmelman stated that to show prejudice in the
    suppression motion context, the defendant must demonstrate
    “that there is a reasonable probability that the verdict would
    have been different absent the excludable evidence.” 
    Id. at 375
    . We have read Kimmelman as establishing that “[t]o show
    prejudice under Strickland from failure to file a motion, [the
    1
    Indeed, this conclusion was so obvious that the Court reached it unani-
    mously and the government conceded the point. Glover, 
    531 U.S. at 202
    .
    Thus, it was very likely clearly established even before the Court decided
    Glover.
    MOORE v. CZERNIAK                     9461
    defendant] must show that . . . had the motion been granted,
    it is reasonable that there would have been an outcome more
    favorable to him.” Wilson, 
    185 F.3d at 990
    .
    In Kimmelman, of course, the question was whether the
    defendant would have received a different verdict at trial had
    the evidence been suppressed. Absent a meritorious motion,
    the evident answer to that query is no. But Kimmelman does
    not restrict its outcome-oriented, Strickland-based, prejudice
    standard to the full trial context, and no reason appears why
    it should be so limited. In this case, as the course of Moore’s
    pretrial proceedings and trial remained open, the parallel
    question is whether the filing of his meritorious suppression
    motion would have affected the plea bargain negotiations,
    with the “reasonable probability” that the outcome of those
    negotiations would have been more favorable to Moore.
    Moreover, Kimmelman directly answers the dissent’s pri-
    mary objection to my analysis, that Hill rests on a line of
    cases that limit a habeas petitioner’s authority to challenge, on
    constitutional or any other grounds, errors that preceded a
    guilty plea, provided that the guilty plea itself was entered
    with the advice of counsel who was not constitutionally inef-
    fective. Hill, 
    474 U.S. at 56-59
    ; see also Dis. op. at 9504-05.
    The cases upon which the dissent relies and which Hill cites
    — principally, McMann v. Richardson, 
    397 U.S. 759
     (1970),
    and Tollett v. Henderson, 
    411 U.S. 258
     (1973) — did not deal
    with circumstances in which the asserted pre-plea constitu-
    tional violation was ineffective assistance of counsel with
    regard to pre-trial practice, as opposed to constitutional viola-
    tions by the court or the prosecution. As to the latter variety
    of pre-plea constitutional violation, we assume that the peti-
    tioner had effective assistance of counsel in determining
    whether or not to challenge those violations in a timely man-
    ner, and so consider any such challenge waived as part of the
    guilty plea. Kimmelman explains that where that is not the
    case — where the very counsel who is advising the criminal
    defendant is constitutionally ineffective in setting the legal
    9462                  MOORE v. CZERNIAK
    background for later proceedings, because he or she fails to
    file essential, meritorious pretrial motions,
    collateral review will frequently be the only means
    through which an accused can effectuate the right to
    counsel . . . . A layman will ordinarily be unable to
    recognize counsel’s errors and to evaluate counsel’s
    professional performance . . . ; consequently a crimi-
    nal defendant will rarely know that he has not been
    represented competently until after trial or appeal,
    usually when he consults another lawyer about his
    case. Indeed, an accused will often not realize that he
    has a meritorious ineffectiveness claim until he
    begins collateral review proceedings, particularly if
    he retained trial counsel on direct appeal.
    
    477 U.S. at 378
    .
    In other words, where there is ineffective counsel who con-
    tinues to advise the defendant past the point at which it would
    ordinarily be proper to make a constitutional challenge, the
    usual rules regarding the timing of such a challenge — in
    Kimmelman, the rule that Fourth Amendment challenges must
    be made at trial or on direct appeal, not during collateral chal-
    lenges, see Stone v. Powell, 
    428 U.S. 465
     (1976); here, the
    rule that any pretrial challenges to potential evidence must be
    made before pleading guilty (or preserved for later challenge
    in a conditional guilty plea) — cannot apply, because the
    premises upon which they rest are absent. “The Sixth Amend-
    ment mandates that the state bear the risk of constitutionally
    deficient assistance of counsel,” not a defendant who cannot
    forward his rights because of counsel’s incompetence. Kim-
    melman, 
    477 U.S. at 379
    .
    Thus, under Strickland and Kimmelman, to show prejudice,
    Moore could demonstrate that the plea bargain outcome
    would have been improved upon by filing the meritorious
    MOORE v. CZERNIAK                     9463
    suppression motion that was not filed because of ineffective
    assistance of counsel.
    b. Strickland and Hill
    Rather than apply this basic Strickland analysis through the
    lens of Kimmelman, Judges Reinhardt and Bybee both rely on
    language in Hill: “[I]n order to satisfy the ‘prejudice’ require-
    ment, the defendant must show that there is a reasonable
    probability that, but for counsel’s errors, he would not have
    pleaded guilty and would have insisted on going to trial.” 
    474 U.S. at 59
    . Judge Bybee insists that Hill’s standard provides
    the exclusive analysis for all ineffective assistance cases
    involving a plea. Judge Reinhardt assumes that Hill is the
    appropriate standard and makes a convincing case that Moore
    would have gone to trial but for his counsel’s failure to file
    the suppression motion, thereby meeting that standard.
    On the analysis I propose, however, there is no need to
    focus on whether the Hill standard is met. Essentially our
    problem is deciding whether it is only the Hill prejudice stan-
    dard, which deals with some varieties of plea bargain ineffec-
    tive assistance cases, or also the Kimmelman standard, which
    deals with the impact of the failure to file meritorious
    motions, that controls here. Neither case is directly on point
    on its facts, as Hill was a different kind of plea bargain case,
    while Kimmelman involved a trial. But the Kimmelman/
    Strickland standard is the generally applicable one, and there-
    fore applies in the first instance here, even assuming that Hill
    provides an available alternative route. Cf. Abdul-Kabir v.
    Quarterman, 
    127 S. Ct. 1654
    , 1671 (2007) (holding that a
    state court decision is “contrary to,” or an “unreasonable
    application of,” clearly-established law if it “ignore[s] the
    fundamental principles established by [the Supreme Court’s]
    most relevant precedents”).
    What is critical in considering whether Kimmelman applies
    is that Hill varies the generally applicable prejudice standard
    9464                  MOORE v. CZERNIAK
    where there is a guilty plea, to permit application of Strick-
    land even where there is no indication that, by choosing trial,
    the petitioner would have avoided conviction or lessened his
    sentence. Hill indicates that Moore can prevail if he simply
    proves that he would have gone to trial had his confession
    been suppressed. But nothing in Hill precludes a petitioner
    who pleaded guilty from meeting the ordinary Strickland stan-
    dard.
    This commonsense conclusion is confirmed by Hill. Hill
    governs cases in which defendants face a binary choice
    between pleading guilty and going to trial, and concludes, in
    essence, that in that situation, the defendant need not meet the
    usual Strickland prejudice standard by showing that he would
    have been better off in terms of outcome had he gone to trial.
    See 
    474 U.S. at 59-60
    . But Hill does not suggest that this
    analysis need be the only one governing all plea bargain
    cases. Instead, Hill created an additional means to claim inef-
    fective assistance of counsel, even when the alleged ineffec-
    tive assistance might not have affected the ultimate
    adjudication of guilt or the sentence. It applies when the facts
    create such a binary choice, and the asserted prejudice is sim-
    ply in foregoing a trial, regardless of the probable outcome of
    a trial.
    The Supreme Court’s discussion of Hill in Roe v. Flores-
    Ortega, 
    528 U.S. 470
     (2000), reinforces this understanding.
    That case involved counsel’s failure to file a notice of appeal,
    thereby forfeiting an entire proceeding just as the ill-advised
    defendant in Hill forfeited trial. Again, the two choices were
    between appealing and not appealing, so prejudice could only
    be evaluated on those terms. Furthermore, nowhere does Roe
    state that Hill limited Strickland, but only that the special
    prejudice rule of Hill could be applied to a case involving the
    decision to appeal. Roe, in fact, articulated the very difference
    between Hill-type cases — that is, advice cases — and cases
    such as this one. The Court stated in Roe that “[i]n most cases,
    a defendant’s claim of ineffective assistance of counsel
    MOORE v. CZERNIAK                      9465
    involves counsel’s performance during the course of a legal
    proceeding, either at trial or on appeal.” 
    Id. at 481
    . In contrast,
    Roe, like Hill, was “unusual in that counsel’s alleged deficient
    performance arguably led not to a judicial proceeding of dis-
    puted reliability, but rather to the forfeiture of a proceeding
    itself.” 
    Id. at 483
    .
    The present case, however, is not binary like Hill and Roe.
    Refusing to plead no contest to the murder charge before fil-
    ing a motion to suppress his confession would not necessarily
    have set Moore on a course for trial. Rather, it would have set
    him on a course for preliminary motions (on suppression
    motions for evidence flowing from the confession and, per-
    haps other pretrial claims) and, then, for further plea negotia-
    tions once the motions were resolved. Thus, if Moore could
    show a reasonable probability that he would have obtained a
    better plea bargain had his attorney moved to suppress his
    confession, as I demonstrate below that he can, he would not
    need the assistance of the special prejudice rule in Hill.
    Instead, if he can meet the ordinary Kimmelman/Strickland
    prejudice standard, that is sufficient under my approach.
    Put a bit differently, the prejudice standard Hill sets out for
    the binary choice circumstance is a narrow statement of the
    general standard set out by Strickland and Kimmelman. The
    prejudice inquiry for defendants in Moore’s situation can, as
    a result, be stated in Hill terms, but need not be. Defendants
    in such circumstances are still, ultimately, choosing between
    pleading and going to trial, but the time period available for
    the choice is longer. Such defendants can credibly “show that
    there is a reasonable probability that, but for counsel’s errors,
    [they] would not have pleaded guilty and would have insisted
    on going to trial,” Hill, 
    474 U.S. at 59
    , in response to the plea
    bargain originally offered them. But they might well take a
    different, better plea agreement if competent counsel engages
    in motions practice to improve the position of the defense. So,
    while there is no reason to use Hill’s specialized language in
    such cases, Hill’s standard is still satisfied. It is far more sen-
    9466                       MOORE v. CZERNIAK
    sible, however, to address such cases directly, by applying the
    general Kimmelman/Strickland inquiry.
    The case law does not in any way preclude this limited
    understanding of Hill. I am aware of no case — and Judge
    Bybee cites none — that addresses why Kimmelman and Str-
    ickland do not apply in circumstances like those we consider
    today. Many plea cases address the Hill situation, and so
    apply the Hill standard directly, having no reason to address
    Kimmelman and Strickland. Some other cases, it is true,
    assume (as Judge Reinhardt does today) that Hill also applies
    in the motions context when a plea bargain is involved, as
    well as in the advice context, but these cases do not provide
    support for using Hill as the exclusive standard in such cir-
    cumstances. See Maj. op. at 9422 n.14 (discussing such
    cases). That we have sometimes assumed that Hill applies in
    the motions context does not justify abandoning the usual
    Kimmelman/Strickland approach in that context.2
    2
    I note that if Hill is read to limit the prejudice standard in the motions
    context to the question whether there is a reasonable probability that the
    defendant would have pursued further court proceedings rather than taking
    the plea, there is no reason why that proceeding should be trial, rather than
    a suppression hearing. A guilty plea forfeits not only the merits trial but
    other judicial proceedings, such as an evidentiary hearing concerning
    whether a confession was voluntary. McMann, one of the underpinnings
    of Hill, certainly provides no justification for focusing on forgoing trial,
    rather than on forgoing other court proceedings, when assessing prejudice
    resulting from a guilty plea infected by ineffective assistance of counsel.
    The defendants in that case, under then-applicable state law, could only
    attempt to suppress their confessions at trial, rendering the two proceed-
    ings effectively synonymous. See 
    397 U.S. at 772-74
    . It is now constitu-
    tionally required that a judge rather than a jury decide the admissibility of
    a confession. See 
    id. at 772
    . But if a defendant can show a reasonable
    probability that he would not have forfeited a hearing before a judge on
    the issue, save for his counsel’s advice to waive that opportunity by plead-
    ing guilty, I would read the “trial” reference in Hill as encompassing that
    evidentiary hearing, which is just as connected to the trial itself as would
    be a mid-trial hearing of a similar kind.
    MOORE v. CZERNIAK                     9467
    Hill was not initially designed for the present circum-
    stances, and I can see no reason why the petitioner in a case
    such as this one cannot at least choose to meet the regular
    Kimmelman/Strickland prejudice standard.
    c.   Prejudice and Prosecutors
    The dissent argues that the approach I describe would
    “place[ ] federal courts in the role of instructing state prosecu-
    tors . . . how to conduct plea negotiations,” implicating feder-
    alism concerns. See Dis. op. at 9507. It also contends that
    inquiring into whether competent defense counsel could have
    improved the defendant’s leverage to seek a better plea bar-
    gain runs against the general wisdom that courts are ill suited
    to “review . . . prosecutorial decisions,” thereby raising sepa-
    ration of powers issues. See Dis. op. at 9507-09. These con-
    cerns have no place whatever in the current context.
    I agree with the dissent that “[p]rosecutorial . . . decisions
    are particularly ill-suited for broad judicial oversight.” Dis op.
    at 9467 (quoting United States v. Redondo-Lemos, 
    955 F.2d 1296
    , 1299-1300 (9th Cir. 1992), overruled on other grounds,
    United States v. Armstrong, 
    48 F.3d 1508
    , 1515 n.5 (9th Cir.
    1995) (en banc)). Prosecutorial discretion is, indeed, broad,
    although not unfettered. See Wayte v. United States, 
    470 U.S. 598
    , 607-08 (1985). So, if Judge Bybee were correct that my
    approach would give federal courts the right to dictate plea
    bargains and charging decisions, I would share his concerns.
    But nothing in the Kimmelman/Strickland approach impli-
    cates such matters. The question is not what a prosecutor
    should have charged, nor what a “fair” plea bargain should
    have been. Rather, the question is whether, but for counsel’s
    ineffective assistance, a defendant would have been in a better
    position to negotiate with the prosecutor. It, therefore, con-
    cerns the defendant’s and defense counsel’s choices, defense
    counsel’s judgment, and defense counsel’s actions, not, in the
    first instance, that of the prosecutor. That this assessment
    9468                      MOORE v. CZERNIAK
    requires some consideration of the defense counsel’s position
    with regard to the prosecutor’s case is inherent in any preju-
    dice inquiry, whether under Hill or the more general frame-
    work of Kimmelman and Strickland, and does not convert
    asking the question into an assault on prosecutorial discretion.
    I acknowledge that, as the dissent points out, the
    Kimmelman/Strickland analysis of the defendant’s plea bar-
    gain leverage is “counterfactual,” will be conducted “in most
    cases, years after the decision to offer the challenged plea bar-
    gain,” and may be difficult. Dis. op. at 9468. Unlike Judge
    Bybee, however, I do not think that asking courts to consider
    these matters poses an “impossible question.”3 See 
    id.
     First,
    the prejudice inquiry is always counter-factual — we are ask-
    ing, after all, whether there “is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the pro-
    ceeding would have been different,” Strickland, 
    466 U.S. at
    694 — and generally occurs years after the fact if it has
    reached an appellate court. So, that objection is not uniquely
    directed at the plea bargain inquiry I suggest, but is instead a
    critique of the prejudice inquiry generally.
    Further, while the plea bargain process is complex, so is
    trial. To answer the prejudice question in the trial context, one
    must consider the weight of the present evidence, the views
    of the jury, the choices of the defense and, yes, the prosecutor.
    Yet courts, undaunted, do so. See, e.g., Schriro v. Landrigan,
    
    127 S. Ct. 1933
    , 1943-44 (2007) (considering whether a capi-
    tal defendant was prejudiced by his counsel’s failure to intro-
    duce mitigation evidence); Williams v. Taylor, 
    529 U.S. 362
    ,
    396-98 (2000) (concluding that a defendant was prejudiced by
    counsel’s failure to investigate his background, which would
    have resulted in additional mitigation evidence); Lopez v.
    3
    One reason the dissent may think the inquiry is so difficult is that it
    portrays the question as whether the prosecutor would offer a better plea
    bargain, see Dis. op. at 9506, rather than whether it was reasonably proba-
    ble that defense counsel could secure such an arrangement.
    MOORE v. CZERNIAK                      9469
    Schriro, 
    491 F.3d 1029
    , 1044 (9th Cir. 2007) (holding that
    defense counsel’s failure to object to medical evidence did not
    prejudice the defendant). I cannot say that assessing, for
    instance, whether a jury would have ruled differently on a
    death sentence, see Landrigan, 
    127 S. Ct. at 1943-44
    ; Wil-
    liams, 
    529 U.S. at 396-98
    , is so obviously easier than deciding
    whether a defendant would be in a better plea bargaining posi-
    tion as to warrant characterizing the latter question as “impos-
    sible” for courts to answer.
    Nor, for that matter, is inquiring into a defendant’s plea
    bargaining leverage self-evidently harder than determining
    whether “there is a reasonable probability that, but for coun-
    sel’s errors, he would not have pleaded guilty and would have
    insisted on going to trial.” Hill, 
    474 U.S. at 59
    . There, too, we
    must inquire into the strength of the defendant’s case and the
    sentence the prosecutor likely would have sought (albeit at
    trial, rather than as part of a plea bargain). That inquiry, again,
    is not particularly easier than the plea bargain leverage ques-
    tion.
    My point, in sum, is this: Leaving aside the entirely out-of-
    place constitutional problems that the dissent raises, the
    objection that the prejudice inquiry outlined here is “counter-
    factual,” and may sometimes be difficult to apply, does not
    distinguish this prejudice inquiry from other sorts that we reg-
    ularly carry out. It is not, in my view, a sufficient reason to
    abandon it.
    d.   Application
    As I agree with Judge Reinhardt that Moore’s counsel was
    ineffective because he failed to file a meritorious suppression
    motion, and had no good reason not to do so, all that remains
    to determine is whether this failure prejudiced Moore. Judge
    Reinhardt ably explains why Moore meets Hill’s standard for
    prejudice and I, assuming Hill is the proper standard, concur
    in his application of it. Moore also meets the Kimmelman/
    9470                  MOORE v. CZERNIAK
    Strickland standard which I believe also applies, essentially
    for the same reasons that Judge Reinhardt explains in the con-
    text of Hill. Just as suppressing the confession would have
    substantially strengthened Moore’s case at trial, and so would
    have substantially influenced Moore’s decision to go to trial
    rather than take the particular plea offered, so too — and even
    more obviously, given the risk-assessment nature of plea-
    bargaining — would it have improved his leverage to negoti-
    ate a plea bargain with reduced jail time. There is therefore a
    “reasonable probability” that Moore has suffered prejudice as
    to the actual sentence imposed, and it was unreasonable of the
    state court not to find prejudice here.
    II.   Conclusion
    For the reasons given by Judge Reinhardt as well as for the
    reasons set forth in this concurrence, I conclude that the state
    court unreasonably failed to determine that counsel’s failure
    to file a meritorious suppression motion constituted deficient
    performance, and that such deficient representation prejudiced
    Moore. Accordingly, I agree with Judge Reinhardt that we
    should grant Moore’s petition for habeas corpus.
    BYBEE, Circuit Judge, dissenting:
    Randy Moore and others beat Kenneth Rogers until he
    bled, stripped him, bound him in duct tape, placed him in the
    trunk of a car, drove him to a remote location, and forced him
    to march up a hill at gunpoint. While marching Rogers
    through the woods, Moore shot Rogers—accidentally, he said
    —through the temple. Moore confessed to his older brother,
    Raymond, and his step-brother’s girlfriend, Debbie Ziegler,
    what he had done. He then talked to police, corroborating the
    evidence the police had already obtained. Before Moore could
    be indicted, he negotiated a plea bargain under which Moore
    obtained the lowest sentence available under Oregon law for
    MOORE v. CZERNIAK                    9471
    felony murder. Moore’s counsel, an experienced defense
    attorney, recommended that he accept the offer. Counsel
    explained that he did not think he had grounds to suppress
    Moore’s formal confession and, even if he could have sup-
    pressed it, Raymond and Ziegler could “repeat [Moore’s
    informal] confession in full detail.” Under the circumstances,
    counsel thought he had secured the best deal he could get for
    Moore. The Oregon courts and the district court agreed.
    Not so, says the majority: Moore’s attorney offered consti-
    tutionally deficient advice because he advised Moore to
    accept the plea offer before he moved to suppress Moore’s
    confession to the police. The majority reasons that Moore
    would have prevailed on a motion to suppress, and, knowing
    the state was without his confession, Moore would not have
    pled guilty to felony murder or would have held out for a bet-
    ter deal. The majority dismisses counsel’s explanation that
    there was no reason to go to trial in any event because the
    state had a second confession—Moore’s confession to Ray-
    mond and Ziegler—by ignoring the state and the district
    court’s findings and entering its own findings: The majority
    finds that “it is far from clear what those witnesses would
    have said,” and wonders “to what extent their testimony
    would have been persuasive to a jury.” Maj. Op. at 9433. Fur-
    thermore, the majority concludes, Raymond was “a hostile
    witness, [so] it is unlikely that [the state] would have been
    able to elicit much of the information it desired from him.” 
    Id.
    at 9434 n.24.
    The majority not only entered its own findings of fact, it
    found its own law as well. In this AEDPA-governed case, the
    majority holds that the Oregon state court’s decision was
    “contrary” to the statement in Arizona v. Fulminante that “a
    confession is like no other evidence” and is “the most proba-
    tive and damaging evidence that can be admitted against [a
    defendant].” 
    499 U.S. 279
    , 295 (1991) (quotation marks and
    citation omitted). See Maj. Op. at 9402, 9403-04, 9413, 9419,
    9428-30, 9430-32, 9435, 9440-42. The majority’s reliance on
    9472                   MOORE v. CZERNIAK
    Fulminante is twice remarkable: First, Moore does not even
    cite Fulminante, nor was it cited by the district court, the state
    court, or any other party. Second, the majority’s repeated
    insistence that “a confession is like no other evidence” is its
    own undoing. Counsel negotiated a plea because he knew
    what the majority cannot bring itself to admit: Moore had
    confessed to two other people before he confessed to the
    police, and their confessions were plainly admissible and
    independently damaging.
    In the process of second-guessing counsel, the Oregon
    courts, and the district court, the majority clearly establishes
    a dramatic proposition: After Kimmelman v. Morrison, 
    477 U.S. 365
     (1986), Strickland v. Washington, 
    466 U.S. 668
    (1984), and Arizona v. Fulminante, when a motion to suppress
    a confession is potentially “meritorious,” counsel’s failure to
    file the motion constitutes deficient and prejudicial conduct
    because of the possibility that filing the motion “would have
    placed [Moore] in a far better position to negotiate a reason-
    able plea.” Maj. Op. at 9419. The majority’s principle applies
    regardless of how many witnesses a defendant has confessed
    to, how many co-defendants are available to testify against the
    defendant, or any other evidence available in the record. See
    Maj. Op. at 9426-40. Indeed, the majority concludes that even
    though “Moore had confessed to Raymond and Ziegler, who
    could have been called as witnesses,” the state court’s conclu-
    sion that Moore suffered no prejudice “is wholly lacking in
    merit” and was objectively unreasonable under Fulminante.
    Maj. Op. at 9437. According to the majority, if counsel has
    any grounds for moving to suppress a confession, the failure
    to move for suppression satisfies both prongs of Strickland. It
    is, absolutely, error and, absolutely, prejudicial.
    I have referred deliberately to “the majority clearly estab-
    lish[ing]” this proposition, because no court—not ours, and
    certainly not the U.S. Supreme Court—has previously done
    so. In fact, we might have thought the contrary proposition
    was clearly established in McMann v. Richardson: “In our
    view a defendant’s plea of guilty based on reasonably compe-
    MOORE v. CZERNIAK                          9473
    tent advice is an intelligent plea not open to attack on the
    ground that counsel may have misjudged the admissibility of
    the defendant’s confession.” 
    397 U.S. 759
    , 770 (1970). It is
    not only evident that the majority has clearly established its
    proposition, but that its proposition has been clearly estab-
    lished by the majority. The majority’s efforts to do so contra-
    vene our statutory function under AEDPA. See 
    28 U.S.C. § 2254
    (d)(1).
    For the reasons I explain below, I would affirm the judg-
    ment of the district court denying the writ. I respectfully dis-
    sent.
    I.   WHETHER COUNSEL’S CONDUCT WAS
    DEFICIENT
    On AEDPA review, we may only issue a writ of habeas
    corpus when the state court unreasonably applies “clearly
    established Federal law, as determined by the Supreme Court
    of the United States.” 
    28 U.S.C. § 2254
    (d)(1); see also Carey
    v. Musladin, 
    127 S. Ct. 649
    , 654 (2006); Clark v. Murphy,
    
    331 F.3d 1062
    , 1069 (9th Cir. 2003). For an ineffective assis-
    tance of counsel claim, the clearly established Federal law
    that governs is Strickland v. Washington, 
    466 U.S. 668
    (1984), which sets forth a two-step inquiry. “In order to estab-
    lish ineffective representation, the defendant must” overcome
    a “highly demanding” standard and “prove both incompetence
    and prejudice.” Kimmelman, 
    477 U.S. at 381-82
    .1
    1
    To meet the first prong, “the defendant must show that counsel’s repre-
    sentation fell below an objective standard of reasonableness,” Strickland,
    
    466 U.S. at 687-88
    , and overcome the “strong presumption that counsel’s
    performance falls within the ‘wide range of professional assistance,’ ”
    Kimmelman, 
    477 U.S. at 381
     (quoting Strickland, 
    466 U.S. at 688-89
    ).
    When the habeas petitioner alleges that his counsel was ineffective
    because of counsel’s failure to file a motion, a necessary, but by no means
    sufficient, condition for a successful showing of incompetence is that the
    motion would have been meritorious. See Kimmelman, 
    477 U.S. at 375, 382
    . And, to meet the second, “[t]he defendant must show that there is a
    reasonable probability that, but for counsel’s unprofessional errors, the
    result of the proceeding would have been different.” Strickland, 
    466 U.S. at 694
    .
    9474                       MOORE v. CZERNIAK
    The majority finds that counsel was deficient on two
    grounds: Moore’s statement to the police should have been
    suppressed, first, because it was involuntary and, second,
    because it was obtained in violation of Miranda. Oddly, the
    district court’s finding that Moore’s confession was involun-
    tary is not challenged by the state on appeal, and I agree with
    the majority that the question of voluntariness therefore is not
    properly before us. See Maj. Op. at 9416-18. I note that, were
    the issue preserved, a persuasive argument could be made that
    the confession was in fact given voluntarily. However, since
    the state—inexplicably2 —has not pressed this issue on
    appeal, I proceed on the assumption that Moore has demon-
    strated that his confession was involuntarily given.3
    2
    The district court based its finding of involuntariness on an implied
    promise of leniency that the police allegedly gave to Moore. Yet, to use
    Moore’s own words, the officers promised him “[n]othing other [than]
    helping the best [they] could.” This offer to recommend leniency to the
    district attorney is inadequate to establish that “all of the attendant circum-
    stances” indicate that “ ‘the defendant’s will was overborne at the time he
    confessed.’ ” Haynes v. Washington, 
    373 U.S. 503
    , 513 (1963) (quoting
    Lynumn v. Illinois, 
    372 U.S. 528
    , 534 (1963)); see also United States v.
    Guerrero, 
    847 F.2d 1363
    , 1366 (9th Cir. 1988) (“An interrogating agent’s
    promise to inform the government prosecutor about a suspect’s coopera-
    tion does not render a subsequent statement involuntary, even when it is
    accompanied by a promise to recommend leniency or by speculation that
    cooperation will have a positive effect.”). The record demonstrates that the
    police could not have promised anything other than a recommendation of
    leniency—and certainly could not promise a reduction of charges—
    because Moore had not been formally booked or charged when he made
    his confession.
    3
    The conclusion that the state has forfeited its argument concerning the
    voluntariness of Moore’s confession relieves us of the obligation to dis-
    cuss the Miranda issue. It is not relevant to the rest of our inquiry—not
    even to “buttress[ the majority’s] conclusion that [counsel’s] performance
    was highly deficient.” Maj. Op. at 9418 & n.11. The majority’s discussion
    of the Miranda claim in footnote 11 is thus double dicta—resolving the
    Miranda claim is unnecessary to the majority’s decision, and its discus-
    sion is way beyond our charge under AEDPA. I will not prolong my dis-
    sent with further discussion of the Miranda claim, except to note that there
    is substantial merit in the state’s argument that Moore was not in custody
    when he invoked his right to counsel and, therefore, Miranda did not
    apply. And, certainly, the state courts’ decision is not an unreasonable
    application of any Supreme Court decisions.
    MOORE v. CZERNIAK                        9475
    Even conceding that the state has failed to challenge the
    involuntariness finding, I cannot concede that counsel’s fail-
    ure to move to suppress necessarily constitutes deficient con-
    duct. It cannot be, as the majority today holds, that because
    counsel could have filed such a motion, he must have filed the
    motion. This proposition runs directly counter to clearly
    established Supreme Court precedent, namely McMann v.
    Richardson, 
    397 U.S. 759
     (1970). The Court in McMann con-
    sidered
    those situations involving the counseled defendant
    who allegedly would put the State to its proof . . .
    except for a prior confession that might be offered
    against him . . . . At least the probability of the
    State’s being permitted to use the confession as evi-
    dence is sufficient to convince him that the State’s
    case is too strong to contest and that a plea of guilty
    is the most advantageous course.
    
    Id. at 767-69
    . Of these situations, the Court had this to say:
    [A defendant’s] later petition for collateral relief
    asserting that a coerced confession induced his plea
    is at most a claim that the admissibility of his confes-
    sion was mistakenly assessed and that since he was
    erroneously advised . . . his plea was an unintelligent
    and voidable act. The Constitution, however, does
    not render pleas of guilty so vulnerable. . . . In our
    view a defendant’s plea of guilty based on reason-
    ably competent advice is an intelligent plea not open
    to attack on the ground that counsel may have mis-
    judged the admissibility of the defendant’s confes-
    sion. Whether a plea of guilty is unintelligent and
    therefore vulnerable when motivated by a confession
    erroneously thought admissible in evidence depends
    as an initial matter, not on whether a court would
    retrospectively consider counsel’s advice to be right
    or wrong, but on whether that advice was within the
    9476                       MOORE v. CZERNIAK
    range of competence demanded of attorneys in crim-
    inal cases.
    
    Id. 769, 770-71
     (second and third emphasis added).
    McMann is on all fours with Moore’s claim.4 Moore asserts
    4
    The majority laments that my “invocation of McMann v. Richardson
    is misplaced” because “Moore’s challenge is not to counsel’s plea advice,
    as was the case in McMann, but to counsel’s failure to file a motion to
    suppress.” Maj. Op. at 9422 n.14. True enough, the claim in McMann was
    styled as a challenge to the voluntariness of a plea. But the McMann Court
    treated the claim as one of ineffective assistance of counsel. See McMann,
    
    397 U.S. at 770
     (“[D]efendants facing felony charges are entitled to the
    effective assistance of competent counsel. . . . [The] matter . . . should be
    left to the good sense and discretion of the trial courts with the admonition
    that if the right to counsel guaranteed by the Constitution is to serve its
    purpose, defendants cannot be left to the mercies of incompetent counsel.
    . . .”). Further, although McMann was decided before Strickland and Hill,
    those two cases were built upon and reaffirmed McMann. “In the context
    of guilty pleas, the first half of the Strickland v. Washington test is nothing
    more than a restatement of the standard of attorney competence already set
    forth in Tollett v. Henderson and McMann v. Richardson.” Hill v. Lock-
    hart, 
    474 U.S. 52
    , 57-58 (1985). McMann informed the creation of the
    first part of the two-part test in Strickland. See 
    466 U.S. at 687
     (“[T]he
    proper standard for attorney performance is that of reasonably effective
    assistance. The Court indirectly recognized as much when it stated in
    McMann v. Richardson that a guilty plea cannot be attacked as based on
    inadequate legal advice unless counsel was not a ‘reasonably competent
    attorney’ and the advice was not ‘within the range of competence
    demanded of attorneys in criminal cases.’ ” (quoting McMann, 
    397 U.S. at 770-71
    )); see also Kimmelman, 
    477 U.S. at
    377-78 (citing McMann);
    Hill, 
    474 U.S. at 57-58
    ; accord Langford v. Day, 
    110 F.3d 1380
    , 1386-87
    (9th Cir. 1996) (applying McMann, as interpreted by Hill, in case alleging
    ineffective assistance of counsel based on failure to file various suppres-
    sion motions). Indeed, the question in McMann and the question here are
    identical: whether a reasonably competent attorney would have foregone
    the suppression motion and advised the client to plead guilty. If McMann
    means anything, it means that counsel’s advice on the admissibility of a
    confession is not unreasonable simply because two federal judges disagree
    with it years later.
    The majority cites two cases that it holds out as establishing that we
    have recognized “Kimmelman-type Strickland claims . . . in cases in which
    MOORE v. CZERNIAK                           9477
    that his trial counsel was ineffective in failing to file a motion
    to suppress Moore’s confession and that he would not have
    pled no contest to felony murder if he had received competent
    assistance from counsel. Although filing the suppression
    motion might seem like a good tactical move now, accepting
    the state’s plea bargain was the strategic thing to do, knowing
    what counsel knew at the time. Indeed, counsel’s obligation
    to explain the risks of trial in light of a plea offer is far more
    nuanced than the majority’s new mandatory scorched-earth-
    litigation strategy. Moore’s trial counsel has carefully
    explained by affidavit his reasons for not filing the motion to
    suppress:
    I did not fail to review [Moore’s] statement to the
    police. I read it many times and discussed it at length
    and in detail with Mr. Moore. He affirmed to me that
    it was true, and that it was accurate.
    I did not file a Motion to Suppress. My reasons for
    doing this were two-fold. First of all, [Moore’s]
    interview with the police, which was taped and tran-
    scribed . . . makes it abundantly clear that Mr. Moore
    was not in custody. He never believed that he was in
    custody and admitted to me that he realized he was
    not in custody when he and his brothers and another
    friend voluntarily came to the police department to
    give the recorded statement. . . .
    [I]n the second place, he had previously made a
    full confession to his brother [Raymond] and to Ms.
    [Debbie] Ziegler, either one of whom could have
    the defendant pled rather than going to trial.” Maj. Op. at 9422 n.14. These
    cases provide, at best, weak support for the majority’s assertion that
    McMann should not inform our analysis here. In both cases, we concluded
    that the defendant’s claim of ineffective assistance failed because the deci-
    sion not to file the motion was a strategic one or because the defendant
    insisted on forgoing the motions. See Weaver v. Palmateer, 
    455 F.3d 958
    ,
    972 (9th Cir. 2006); Langford, 
    110 F.3d at 1386-88
    .
    9478                  MOORE v. CZERNIAK
    been called as a witness at any time to repeat his
    confession in full detail. . . .
    Counsel explained to Moore, as any competent counsel
    would, that there was a possibility that the state might charge
    Moore with aggravated murder because
    [t]he victim in this case had been assaulted, bloo-
    died, bound with duct tape, placed in the trunk of a
    car, taken to an isolated rural location, marched into
    the woods while still bound, and shot. Furthermore,
    the victim had an extremely large protruding abdom-
    inal hernia for which he always wore a truss. I dis-
    cussed with Mr. Moore the possibility that if he were
    ever charged with aggravated murder that the jury
    might, after taking into account all of the facts of the
    case, conceivably find that he had engaged in “tor-
    ture” of a helpless and somewhat disabled victim.
    For this and other reasons, counsel feared severe conse-
    quences if his client went to trial:
    Mr. Moore always claimed his actual shooting of
    the victim was an accident, but there was never the
    smallest doubt that it occurred during a kidnap [sic]
    which began with an assault. We discussed at length
    the felony murder rule. We also discussed at length
    the fact that he had not yet been indicted for any
    conduct and that it was possible that when an indict-
    ment came down from the grand jury, it could be for
    any charge up to . . . aggravated murder. . . .
    I discussed at great length with Mr. Moore the
    definitions of “aggravated murder,” “murder,” and
    “felony murder.” I did tell Mr. Moore that if he were
    charged with aggravated murder and if the jury
    decided that murder had been committed under [OR.
    REV. STAT. §] 163.095(e), in the course of or as a
    MOORE v. CZERNIAK                         9479
    result of intentional maiming or torture, that it was
    not impossible that he might be convicted of aggra-
    vated murder . . . .
    I frankly believed if we went to trial he would be
    found guilty of assault, kidnapping, and murder (as
    was his codefendant, Roy Salyer, who chose trial as
    an option),[5] but I did not presume to tell Mr. Moore
    what he should do. I only told him what I thought the
    result would be of the various choices he had before
    him. I explained to Mr. Moore that if he chose not
    to accept the offer which the State had made to him,
    I expected that the district attorney would charge
    him with assault in the first degree, kidnapping, and
    murder,[6] and would go to trial on those charges. At
    no time during our association did I ever tell Mr.
    Moore what he should do. I only explained to Mr.
    Moore as carefully as I could what I thought the
    result would be of his actions if he chose one option
    or another.
    A conviction of aggravated murder, of course, would have
    subjected Moore to the possibility of the death penalty or life
    imprisonment without the possibility of parole. See OR. REV.
    STAT. § 163.105(1)(a). Given the strength of the evidence fac-
    ing Moore, it is not surprising to learn that counsel and Moore
    decided to “attempt to secure the best possible resolution of
    the case” or that counsel, who had nearly three decades of
    5
    Unlike Moore, Salyer chose to proceed to trial and was found guilty
    of murder, kidnapping, burglary, and assault. See Salyer v. Belleque, 
    2005 WL 555403
    , at *1 (D. Or. March 4, 2005).
    6
    Very strong circumstantial evidence contradicted Moore’s “accidental
    shooting” explanation and would have justified an intentional murder
    charge. Moore shot Rogers with a revolver—a gun that would not dis-
    charge unless it had been cocked by the shooter. Furthermore, Rogers was
    shot in the temple, as if he was executed, and not in the back, as might
    be expected if he had slipped and fallen backward onto Moore.
    9480                  MOORE v. CZERNIAK
    criminal defense experience, thought the plea “was the best
    we could do under the circumstances.”
    These strong and obvious strategic reasons to take the plea
    and forego the suppression motion are protected under Strick-
    land, see 
    466 U.S. at 681
     (“[S]trategic choices must be
    respected in these circumstances if they are based on profes-
    sional judgment.”), especially because Moore was so obvi-
    ously seeking “to save himself the expense and agony of a
    trial and perhaps also to minimize the penalty that might be
    imposed.” McMann, 
    397 U.S. at 767-68
     (emphasis added).
    The majority’s opinion sweeps all of these factors away. Had
    the majority been advising Moore at the time, they might have
    come to a different conclusion. But even accepting the majori-
    ty’s morning-after conclusion that counsel “misjudged the
    admissibility of the defendant’s confession,” McMann, 
    397 U.S. at 770
    , Moore is not entitled to habeas relief. See 
    id. at 770-71
    .
    The majority limits its consideration of counsel’s explana-
    tion to a mere two paragraphs of the trial counsel’s affidavit
    and refuses to consider many of the reasons that trial counsel
    gave for pursuing the plea bargain instead of going forward
    with a trial preparation strategy. The majority erroneously
    believes that trial counsel offered only two reasons to justify
    his advice to Moore: (1) because he concluded Moore was not
    in custody at the time of the confession and (2) because
    Moore had given a full confession to two other people. See
    Maj. Op. at 9402, 9414, 9416, 9420 & n.12. The majority
    summarily concludes that there is no evidence that Moore
    wanted to press the case to early resolution and, therefore,
    trial counsel could not have made a reasoned strategic choice
    to not file the suppression motion so as “not . . . to upend plea
    negotiations.” Weaver v. Palmateer, 
    455 F.3d 958
    , 972 (9th
    Cir. 2006); see Maj. Op. at 9420-21.
    The extensive portions of the affidavit already quoted make
    clear that counsel’s advice to forego the motion and take the
    MOORE v. CZERNIAK                           9481
    plea was based on numerous considerations other than these
    two factors. But see Maj. Op. at 9421-24. And other portions
    of the affidavit demonstrate that plea negotiations were front
    and center in both Moore’s and trial counsel’s mind. Trial
    counsel reported that Moore indicated his willingness to tes-
    tify against a co-defendant, which is surely the type of consid-
    eration defense counsel weighs during plea negotiations. Two
    entire paragraphs of the affidavit, paragraphs 13 and 14, dis-
    cuss how Moore was more worried about the plea agreement
    that was offered to his brother, Lonnie Woolheiser, than he
    was about his own plea agreement.7 Another entire paragraph
    establishes that trial counsel “discussed at great length
    whether it was in [Moore’s] best interest to try to press the
    case to early resolution.” (emphasis added). The majority’s
    assertion that “there is no suggestion, let alone any evidence,
    that Moore expressed a desire to plead guilty and avoid trial,
    or to forego the filing of his meritorious suppression motion,
    prior to counsel’s decision not to file [a suppression] motion,”
    Maj. Op. at 9423 n.16, ignores the reality of the record evidence.8
    This kind of meticulous, informed representation, provided
    by an attorney who had decades of criminal defense experi-
    ence, does not “show that counsel’s representation fell below
    an objective standard of reasonableness.” Strickland, 
    466 U.S. at 688
    ; McMann, 
    397 U.S. at 767-71
    . More importantly for
    purposes of this appeal, the state court’s decision that it did
    not constitute deficient representation was not an unreason-
    able application of clearly established federal law as deter-
    mined by the holdings of the Supreme Court.
    7
    The affidavit indicates that trial counsel properly informed Moore that
    the offer to him was independent of the offer made to his brother.
    8
    Contrary to the majority’s claims, see Maj. Op. at 9421-24, the record
    does not reflect whether the plea negotiations occurred before or after trial
    counsel advised Moore that a suppression motion would be unlikely to
    succeed or would otherwise be useless. The record does reflect that Moore
    wanted to press for an early resolution.
    9482                   MOORE v. CZERNIAK
    The majority’s attempt to parse counsel’s advice on
    whether to take the plea into two distinct decisions—first,
    whether to file a motion to suppress the confession, and sec-
    ond, whether to accept the offered plea bargain—reflects an
    almost willful ignorance of the record evidence and the reali-
    ties of criminal defense representation. See Maj. Op. at 9420-
    26. As counsel’s declaration makes clear, see Maj. Op. App.
    B, the decision not to file the suppression motion and the
    decision to take the plea necessarily informed each other. In
    fact, trial counsel’s affidavit demonstrates that the two
    decisions—whether to file a motion to suppress and how to
    advise Moore on the plea—were made contemporaneously.
    Moore was never indicted, but he pled no contest to an infor-
    mation negotiated as part of the plea. Counsel simply could
    not have moved to suppress a confession at any time before
    the plea, unless the majority means to find counsel ineffective
    for not threatening to file such a motion in the plea negotia-
    tions.
    The net effect of the majority’s approach is pernicious:
    Instead of deciding whether counsel’s conduct fell below an
    objective standard of reasonableness, the majority asks
    whether the motion had merit and collapses the entire first
    step of Strickland into the question of prejudice. See Maj. Op.
    at 9415 (“[O]ur inquiry with respect to deficient performance
    substantially overlaps with our inquiry regarding prejudice.”).
    In doing so, it largely ignores the obvious strategic reasons
    detailed in counsel’s affidavit that counsel had to advise
    Moore to take the plea, and the dispositive question becomes
    whether the motion to suppress had merit. Paired with the
    majority’s unprecedented reading of Arizona v. Fulminante,
    
    499 U.S. 279
     (1991), see Maj. Op. at 9430 (“Fulminante
    stands for the proposition that the admission of an additional
    confession ordinarily . . . is therefore prejudicial.”), which I
    address in detail infra, the implication is that if the motion had
    merit, then counsel was obligated to bring it, irrespective of
    any other considerations or strategy. It forces defense counsel
    to file any motions to suppress a confession that a panel of
    MOORE v. CZERNIAK                      9483
    federal judges later might determine to be meritorious, lest the
    court of appeals find that counsel “failed to recognize the
    clear merit of that motion” or “to assess properly the damag-
    ing nature of the tape-recorded formal confession.” Maj. Op.
    at 9419.
    The majority’s application of the Strickland standard does
    not accord with the realities of defending a criminal defen-
    dant. Defense counsel must balance competing factors when
    selecting a defense strategy: for example, the likelihood of
    success on the motion to suppress, the likelihood of prevailing
    at trial given the other available evidence, the deal that the
    state is offering, the potential penalties that a defendant can
    avoid by taking an offered deal, and, of course, the defen-
    dant’s own wishes. Strickland gave “wide latitude” to counsel
    to avoid unhelpful judicial nosiness in plea negotiations:
    No particular set of detailed rules for counsel’s con-
    duct can satisfactorily take account of the variety of
    circumstances faced by defense counsel or the range
    of legitimate decisions regarding how best to repre-
    sent a criminal defendant. Any such set of rules
    would interfere with the constitutionally protected
    independence of counsel and restrict the wide lati-
    tude counsel must have in making tactical decisions.
    Strickland, 
    466 U.S. at 688-89
    . A requirement that defense
    counsel file any potentially meritorious pre-trial motions or
    risk being found incompetent on collateral review will skew
    plea negotiations where the considerations promoting negotia-
    tion include whether the defendant will file a motion to sup-
    press. If, in response to the majority’s new rule, counsel must
    file all motions, defense counsel loses a bargaining chip and
    will almost certainly face a much less cooperative prosecutor.
    And if defense counsel loses the motion to suppress, counsel
    will be in a much weaker bargaining position when he returns
    9484                      MOORE v. CZERNIAK
    to the negotiation table. In those cases, the post-motion deal
    will nearly always be worse than the pre-motion deal.9
    The majority would leapfrog over all of those
    considerations—if the motion to suppress had merit, then
    counsel must bring it (even if counsel does not think it will
    serve the client’s best interests). Strickland and its progeny
    simply do not allow this new presumption of deficient con-
    duct whenever a potentially “meritorious” suppression motion
    might have been filed—least of all in habeas proceedings
    governed by AEDPA.
    ****
    In short, I cannot agree with the majority that counsel’s
    thorough representation constituted deficient performance.
    Even assuming the involuntariness of Moore’s confession,
    counsel gave a detailed explanation why pursuing the plea
    was in Moore’s strategic interest. We can second-guess coun-
    sel’s decisions, but we have no basis for concluding that those
    decisions were constitutionally deficient, let alone that clearly
    established Federal law, as announced by the Supreme Court,
    compels such a finding.
    II.   WHETHER COUNSEL’S CONDUCT PREJUDICED
    MOORE
    Even if Moore’s counsel was ineffective, Moore is only
    entitled to habeas relief if he can demonstrate that he has suf-
    9
    Moreover, if, as the majority effectively holds today, defense counsel
    must always move to suppress a confession or risk a claim of ineffective
    assistance of counsel, there is no end to the second-guessing game. If
    counsel moved to suppress and lost on that motion, then, by the majority’s
    reading, counsel must see the case through trial and take an appeal. And
    if he loses on appeal, then he must file for habeas—all so that he can be
    in the best position to negotiate a plea bargain. The bottom line is that
    counsel, in defense of his own reputation, will not seek plea agreements
    or will counsel against accepting a plea bargain. This makes no sense.
    MOORE v. CZERNIAK                         9485
    fered prejudice as a result. Unlike the majority, however, I do
    not believe that Moore has demonstrated prejudice. To dem-
    onstrate prejudice under Strickland, 
    466 U.S. at 694
    , a peti-
    tioner must show that “there is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the pro-
    ceeding would have been different.” 
    Id. at 694
    . In Hill v.
    Lockhart, 
    474 U.S. 52
    , 57-59 (1985), the Supreme Court
    applied Strickland’s prejudice requirement “[i]n the context of
    guilty pleas” and held that the relevant question is “whether
    counsel’s constitutionally ineffective performance affected
    the outcome of the plea process. In other words, in order to
    satisfy the ‘prejudice’ requirement, the defendant must show
    that there is a reasonable probability that, but for counsel’s
    errors, he would not have pleaded guilty and would have
    insisted on going to trial.” 
    Id. at 58-59
    .
    A.     The Evidence Against Moore
    A straightforward application of the Hill standard demon-
    strates that Moore cannot establish that he has suffered any prej-
    udice.10 This conclusion flows from two simple facts: First,
    the state could have called Raymond and Ziegler to testify
    that Moore confessed his role in the kidnapping and slaying
    of Kenneth Rogers. We do not need to fret much about what
    Raymond Moore would have testified had he been called at
    trial, as the majority does, see Maj. Op. at 9409-10; id. at
    9430-31 (suggesting Raymond and Ziegler “would undoubt-
    edly be reluctant to do unnecessary harm to [Moore’s] case”);
    id. at 9433 (“[I]t is far from clear what [Raymond and
    Ziegler] would have said or to what extent their testimony
    would have been persuasive to a jury. . . .” ); id. at 9433
    (“Critically, the state court made no findings as to the con-
    tents of what Moore had told Raymond or Ziegler or what
    10
    Judge Berzon argues in her concurrence that Moore had the option of
    meeting the prejudice standard under either Strickland/Kimmelman or Hill
    and, further, that he meets both of those standards. See Concurring Op. at
    9458. I address her arguments in Part III.B, infra.
    9486                  MOORE v. CZERNIAK
    details they might have been able to recount at trial.”),
    because the record contains Raymond’s testimony at the state
    court post-conviction evidentiary hearing. In it, Raymond
    confirms that, before he took his brothers to the police station
    where their confessions were recorded, Moore confessed to
    him the details of what happened. Here is how Raymond
    described it, under oath, to the state court:
    [W]hen [Roy Salyer] got back from Texas and dis-
    covered [that Rogers had burglarized Salyer’s home,
    Salyer] showed up over at Lonnie [Woolhiser’s]
    house where Randy [Moore] was that morning and
    . . . there was a couple cases of beer and started
    drinking and basically, to my understanding . . .
    instigated them into going up and, as they put it,
    spanking their other friend because friends do not
    rob friends. And in the process of this, I guess, to
    make an example and put some scare into Mr. Rog-
    ers so he did not do this thing again, they had blind-
    folded him to duct taped him and put him in the
    trunk of the car and took him out to a place that’s a
    little remote, not a lot. The gentleman was a large
    size guy and didn’t walk much and stuff. And their
    intent was to leave him there and make him walk
    home, you know, after he freed himself. This here,
    of course, is the kidnapping that’s involved in this
    case because they took him somewhere against his
    will. . . . [D]uring this period of time, Lonnie who is
    a little rowdier—he’s a good boy but he’s just a little
    rowdy. He’ll fight at the drop of a hat. He had in his
    possession a .22 magnum pistol in which Mr. Rogers
    had given to him previously—given or traded, I’m
    not sure which. And Randy, while they were pushing
    Mr. Rogers up the hill, kind of muddy, it’s during
    the winter and we have a lot of red mud down there,
    Randy had taken the revolver from Lonnie and at the
    time he had taken it, Mr. Rogers had slipped back-
    wards on the mud and the gun discharged. I’m not
    MOORE v. CZERNIAK                       9487
    sure of all the exact details because this is basically
    hearsay. It’s what was stated in court and it’s what
    they had basically told me after the incident, too,
    before I took them in, or on the way in.
    (emphasis added). The majority thus is disingenuous in stat-
    ing that “[t]he state court found only that Moore had ‘con-
    fessed’ to” Raymond and Ziegler but did not make specific
    findings concerning the content of that confession, Maj. Op.
    at 9409, particularly because trial counsel’s affidavit—which
    the state court credited—stated that Moore had made a “full
    confession to his brother and to Ms. Ziegler.” The record
    clearly showed that Raymond, at least, knew what happened
    because Moore told him about the details. With this testi-
    mony, the state court reasonably concluded that any failure on
    the part of trial counsel would not have resulted in prejudice
    to Moore. Trial counsel, the state court, and the district court
    all recognized that Raymond could have testified about what
    Moore told him concerning the murder. In its selective treat-
    ment of the record, the majority irresponsibly ignores this tes-
    timony.
    Second, even without his confession to Raymond and
    Ziegler, the state’s case against Moore would likely have been
    airtight. I emphasize that the case “would likely have been
    airtight” because counsel had to judge the strength of the
    state’s case before the state put it on. Nevertheless, as I show,
    the case for felony murder was not a difficult one at all.
    Under section 163.115 of the Oregon Revised Statutes,
    Rogers’s killing was a felony murder if “it [was] committed
    by a person, . . . who commit[ted] or attempt[ed] to commit
    [kidnapping or assault] and [the death occurred] in the course
    of and in furtherance of the crime the person [was] commit-
    ting or attempting to commit.” It is undisputed that Moore,
    Salyer, and Woolhiser went to Rogers’s home, that Rogers
    was beaten, that he was bound with duct tape, and that he was
    thrown into the trunk of the car they had borrowed, driven to
    9488                       MOORE v. CZERNIAK
    a remote location, and shot in the temple. It is indisputable
    that Moore, Salyer, and Woolhiser, by virtue of their involve-
    ment in the felonies of kidnapping and assault, were guilty of
    felony murder under Oregon law. It is equally indisputable
    that Moore had no affirmative defense. Thus, to convict
    Moore of felony murder, all that the state needed to do was
    prove that he took part in Rogers’s kidnapping and that the
    murder furthered the kidnapping.
    This would not have been hard. The state had both Roy
    Salyer and Lonnie Woolhiser in custody, and both could have
    been called to testify that Moore took part in the attack. The
    state court found that Moore and Woolhiser had also con-
    fessed to their older brother Raymond Moore as well as to
    Woolhiser’s girlfriend, Debbie Ziegler.11 Since all of these
    11
    The majority spends a great deal of time discounting the value of these
    two confessions by speculating on what the witnesses would or would not
    have done. It finds that “Raymond would likely have been a hostile wit-
    ness” and that “it is unlikely that [the state] would have been able to elicit
    much of the information it desired from him.” Maj. Op. at 9433 & n.24.
    This is raw speculation, and it is belied by the testimony Raymond actu-
    ally provided to the state court. It is also patently absurd. Because the
    broad outlines of what happened were very clear—i.e., that Rogers was
    beaten in his home, bound, kidnapped, taken to a remote location and shot
    in the head while still bound—the state needed to establish very little to
    convict Moore of felony murder. Focusing on statements made by Ziegler
    during Moore’s initial questioning, the majority states that “there is little
    evidence that Ziegler could have contributed anything.” Maj. Op. at 9433.
    But the state court did not rest its finding that Ziegler could have repeated
    Moore’s confession solely on the statements she made at questioning. The
    state court explicitly found that Moore’s trial counsel’s affidavit, including
    the paragraph explaining that no motion to suppress was filed because
    Ziegler or Raymond Moore could have been called to testify, was truthful.
    As already noted, see supra at 9477-78, the affidavit clearly states that
    Moore admitted to making a full confession to Ziegler. Contrary to the
    majority’s assertions, see Maj. Op. at 9432-33 & n.24, the state court’s
    ruling that Moore confessed to Ziegler did not conflict with the interroga-
    tion transcript: Just because Ziegler learned of the murder on the day of
    the interrogation does not mean that she learned of it at the interrogation.
    MOORE v. CZERNIAK                           9489
    witnesses were Moore’s close relatives or good friends, their
    testimony would likely have been very credible.
    And yet this only scratches the surface of the damning testi-
    mony available to the prosecution. Before they left for Rog-
    ers’s residence, Salyer, Moore, and Woolhiser had been
    drinking with others at Ziegler’s residence. Salyer was “rant-
    ing and raving” about how Rogers had broken into his cabin
    and slashed his tires. This was what prompted the trio to head
    to Rogers’s residence—to confront him about the robbery and
    to scare him out of ever committing another one. Four wit-
    nesses, including Ziegler, observed this entire interaction and
    then observed the trio drive off to confront Rogers—in a car
    that Salyer had borrowed from another one of the guests.
    When the trio arrived at Rogers’s residence, other people
    were there. These people witnessed Moore, Woolhiser, and
    Salyer arrive, and at least one of those people spoke with
    Woolhiser about what they were doing there. Another was
    able to identify all three defendants from a photo lineup.
    These people would also have been able to testify that at this
    point the car’s license plates had been covered over with duct
    tape. Shortly after the defendants arrived, these people all
    drove away, leaving Rogers alone with Moore, Woolhiser,
    and Salyer.12
    I find it remarkable that the majority, twelve years after the incidents
    in question, and without knowing any of the parties involved, can divine
    what Raymond and Ziegler were thinking and what they would or would
    not have done. I also find it remarkable that the majority brushes aside,
    with almost no discussion, the state court’s factual findings concerning
    these confessions.
    12
    With the exception of the lineup identification, the prosecution could
    establish all of the facts in the last two paragraphs by relying solely on
    statements made by Moore, the admissibility of which has never been
    questioned. The day before the interrogation at issue in this case, the
    police approached Moore and Woolhiser while they were eating at a local
    9490                       MOORE v. CZERNIAK
    There was also highly inculpatory physical evidence in this
    case. The day before Moore confessed, Salyer led police to
    the location of the revolver they had used. The police were
    unable to find it in the dark, but Woolhiser led them back to
    the same area the next day, at which point they recovered the
    weapon. When police found the car that the trio had used,
    they found blood in the trunk, as well as hair. Although the
    record does not state that either the blood or the hair was ever
    scientifically tested, a visual inspection of the hair suggested
    that it may have been the victim’s, who had long hair that he
    wore in a ponytail.
    So, to summarize, even without Moore’s confession to the
    police, or his confession to Raymond Moore or Debbie
    Ziegler, or the testimony of his co-defendants, the prosecution
    had testimony from multiple witnesses, as well as unchal-
    lenged statements from Moore, that: (1) An intoxicated Salyer
    had been ranting and raving about how Rogers had stolen
    from his cabin and slashed his tires; (2) Moore had left with
    Salyer and Woolhiser to confront Rogers; (3) the trio arrived
    at Rogers’s residence, and that soon thereafter they were
    alone with Rogers; and (4) the trio returned from Rogers’s
    residence together. Rogers was found murdered the next day.
    Woolhiser and Salyer were clearly involved, as they knew
    where the gun was, and blood and hair were found in the
    trunk of the car that the trio had borrowed. The police could
    prove that Moore had lied about what had transpired when he
    went to Rogers’s residence. Add the testimony of Raymond
    and Ziegler, and the case is airtight. The state’s felony murder
    restaurant, and the pair agreed to come by the station house and answer
    questions after they had finished their dinner. After arriving at the station
    house, Moore gave a description of events that was largely accurate up
    until the point that Woolhiser and Salyer began beating Rogers. The next
    day, Woolhiser admitted to asking the owner of the car if he had anything
    that they could use to tie Rogers up, to which the owner responded that
    he had some duct tape.
    MOORE v. CZERNIAK                           9491
    case against Moore could hardly have been any stronger
    unless the murderers had brought along a camera crew.
    All of this evidence—the witnesses, the duct tape, the gun,
    Moore’s confession to others—were known to Moore and his
    counsel. They knew what the majority cannot fathom—that
    the state had a rock-solid case against Moore and his best shot
    was to strike a plea deal. However, the majority’s formal
    opinion completely fails to consider almost any of this evi-
    dence or its implications for the deal Moore struck. See, e.g.,
    Maj. Op. at 9448 (“Without the fruits of Moore[’s] . . . con-
    fession[ ], the prosecution would have had tremendous diffi-
    culty meeting the high burden it faced. In view of the
    weaknesses in the state’s case, it is highly unlikely that, in the
    absence of his own recorded confession, Moore would have
    pled to felony murder. We thus cannot have any confidence
    that the outcome would have been the same had counsel filed
    a motion to suppress.”).
    In parts of the majority’s formal opinion as well as its
    appendix, the majority also criticizes my reading of the
    record; these criticisms lack force. For example, the majority
    questions my placing any reliance on the testimony of Salyer
    and Woolhiser, “without any evidence in the record as to the
    substance or availability of such testimony, or, even more
    important, its admissibility,” Maj. Op. at 9437 (emphasis in orig-
    inal),13 in contrast to its own reliance on “the arguments made
    by the state on appeal,” id. at 9437. First, it is Moore, not the
    state, who bears the burden of establishing that he has suf-
    fered prejudice; his failure to address evidence in the record
    does not entitle us to ignore it in making our decision. It is
    utterly absurd for us to put on blinders and pretend that obvi-
    ously damning evidence—such as the testimony of co-
    13
    This criticism seems particularly strange in light of the extensive dis-
    cussion that the majority provides of why, in its opinion, Ziegler and Ray-
    mond would not have made good prosecution witnesses. See, e.g., Maj.
    Op. at 9432-33; see also supra at 9488-89 n.11.
    9492                       MOORE v. CZERNIAK
    defendants who have pled guilty—simply does not exist.14
    Indeed, Moore himself does not expect us to do so; he specifi-
    cally addresses the issue of Salyer’s testimony in his brief.
    Second, the record leaves little doubt that Salyer and Wool-
    hiser’s testimony would have been admissible, available, and
    adequate: Both Salyer and Woolhiser were imprisoned by the
    State of Oregon, so they could easily be produced if necessary.15
    As to the substance of their testimony, even if it were not as
    complete as their formal confessions to police, Moore was on
    trial for felony murder, so the state needed to prove precious
    few details of the day’s events to secure a conviction.16
    14
    The majority’s criticism on this score seems all the more hypocritical
    because it has no hesitation, apparently, in manufacturing new arguments
    on behalf of Moore, who did not cite on appeal the two cases most impor-
    tant to the majority’s opinion, Kimmelman and Fulminante, or make any
    argument related to the theories on which the majority bases its decision.
    But see Maj. Op. at 9439 (“The forfeiture rule (sometimes erroneously cal-
    led the waiver rule) applies equally to arguments, factual assertions, and
    legal theories that were not urged below.”). To borrow from the majority
    opinion, I “recognize that [my] colleague[s] believe[ ] that Moore deserves
    to [get a less harsh penalty], but disregarding the [appellate] arguments as
    well as the state court record and findings, and substituting one’s own, is
    hardly the manner in which federal appellate courts are supposed to deter-
    mine appeals,” Maj. Op. at 9404 n.1, and “[w]e may not as appellate
    judges manufacture such arguments from scratch, especially where, as
    here, the facts in the record are directly contrary to the theory we are seek-
    ing to create on behalf of one of the parties,” Maj. Op. at 9425.
    15
    The majority’s inadmissibility argument—an argument that Moore
    himself only makes in passing and, even then, only with reference to
    Salyer—fails for the same reason. The majority’s claim that any of the
    evidence I cite above flowed from “Woolhiser’s involuntary confes-
    sion[ ],” Maj. Op. at 9445, and is therefore inadmissible is simply wrong
    because Woolhiser could have been called to testify directly.
    16
    The majority cites Lee v. Illinois, 
    476 U.S. 530
    , 545 (1986), for the
    proposition that testimony by co-defendants is “inherent[ly] unreliab[le].”
    See Maj. Op. at 9410 n.4. This citation is misleading both because Lee
    involved application of hearsay law, which is not implicated by Salyer and
    Woolhiser’s potential testimony, and because it relied on Ohio v. Roberts,
    
    448 U.S. 56
    , 66 (1980), which is no longer good law. See Crawford v.
    Washington, 
    541 U.S. 36
     (2004).
    MOORE v. CZERNIAK                     9493
    But the most important point is this: Where we are review-
    ing the state court’s denial of an ineffective assistance of
    counsel claim, it would be irresponsible for us not to review
    the record to apprise ourselves of what counsel likely knew.
    We can only speculate as to what testimony the witnesses
    actually would have offered had this case actually gone to
    trial. But it is naive for us to ignore the other evidence in the
    record. Moore’s counsel did not have the benefit of the major-
    ity’s ipse dixit power; when advising Moore on the plea offer,
    he had to judge his case on the basis of the evidence he
    thought the state had and the likelihood of various witnesses
    testifying. This much is clear: There was more than enough
    admissible evidence, easily obtainable by the state, to convict
    Moore of felony murder—especially and most importantly, as
    the state court recognized, the likely testimony of Raymond
    Moore and Debbie Ziegler. When we consider that evidence,
    it is plain that not only was counsel’s advice not deficient or
    prejudicial, it was very good advice. Moore may not have
    received a lesser sentence than his codefendant who went to
    trial, but he did avoid a potential death sentence. There is
    good reason why Strickland requires us to defer to counsel’s
    on-the-ground judgments over the majority’s own “ ‘post hoc
    rationalization.’ ” Maj. Op. at 9425 (quoting Wiggins v. Smith,
    
    539 U.S. 510
    , 526-27 (2003)).
    B.   The Majority’s Reliance on Fulminante
    Ultimately, however, the majority opinion rests on the
    premise that the state court’s decision resulted in an unreason-
    able application of Arizona v. Fulminante, 
    499 U.S. 279
    (1991), a case, I note once again, that Moore does not even
    cite. According to the majority, “Fulminante stands for the
    proposition that the admission of an additional confession
    ordinarily reinforces and corroborates the others and is there-
    fore prejudicial.” Maj. Op. at 9430. Fulminante does no such
    thing. It did not, as the majority’s characterization suggests,
    adopt a per se rule that the improper admission of a confes-
    9494                       MOORE v. CZERNIAK
    sion is prejudicial;17 in fact, Fulminante explicitly held that
    the improper admission of a confession is subject to harmless
    error analysis. See 
    499 U.S. at 310
    . Nor does the fact that the
    Supreme Court found that the admission of the confession at
    issue in Fulminante was prejudicial compel the same result
    here.
    The fact that Moore’s confession to the police was proba-
    tive does not make it prejudicial. Indeed, it is fair to say that
    the formal, tape-recorded confession that Moore gave to
    police in their interrogation room was probably more proba-
    tive than Fulminante’s confession, which he made to a friend
    while they were both incarcerated. All of the quotations that
    the majority pulls from Fulminante to establish the damaging,
    probative value of a confession—that “[a] confession is like
    no other evidence,” Maj. Op. at 9432 (alteration in original),
    that a “defendant’s own confession is probably the most pro-
    bative and damaging evidence that can be admitted against
    him,” 
    id.,
     that “[t]he admissions of a defendant come from the
    actor himself, the most knowledgeable and unimpeachable
    source of information about his past conduct,” id.—are state-
    ments that were originally made by the Fulminante Court
    about confessions like those Moore made to Raymond and
    Ziegler—i.e., those that are made to third parties who then
    testify about them in court. Thus, Fulminante does not
    suggest—let alone hold—that Moore was prejudiced because
    his confession to police was not suppressed. In fact, it sup-
    ports the exact opposite conclusion—that Moore’s two con-
    fessions to Raymond and Ziegler were already so damaging
    to his case that the admission of his confession to police
    17
    The majority attempts to conceal its mischaracterization of Fulmi-
    nante, assuring its readers that it does not adopt a per se rule that improp-
    erly admitted confessions are prejudicial. Maj. Op. at 9430 n.20. That is
    a remarkably contradictory claim to make, as footnote 20 of the majority’s
    opinion is appended to a sentence that says, “Fulminante stands for the
    proposition that the admission of an additional confession ordinarily . . .
    is therefore prejudicial.” Maj. Op. at 9430. If that sentence does not adopt
    a per se rule, it comes dangerously close.
    MOORE v. CZERNIAK                    9495
    would do him no further harm. By the majority’s own logic,
    Moore’s confessions to Raymond and Ziegler were “like no
    other evidence” and were “probably the most probative and
    damaging evidence . . . against [Moore].” Maj. Op. at 9432.
    The majority tries to avoid the implications of its own argu-
    ment by comparing the relative value of Moore’s confession
    to the police with his confession to Raymond and Ziegler. The
    majority states that “Moore’s lawyer . . . thought that the
    taped confession was not prejudicial because Moore had told
    his brother and his half-brother’s girlfriend about the crime.”
    Maj. Op. at 9402. According to the majority, “[s]uch a formal
    confession would, without question, be far more persuasive to
    a jury than Moore’s statements to two lay witnesses.” Id. at
    9430. The majority concludes that the state courts’ “determi-
    nation that the taped confession was harmless was contrary to
    clearly established Supreme Court law as set forth in Fulmi-
    nante.” Id. at 9442; see also id. at 9428 (“[The state court’s]
    determination that counsel’s failure to suppress the formal
    taped confession was not prejudicial because Moore had pre-
    viously told his relative and a relative’s girlfriend about his
    participation in the killing of the victim was contrary to
    clearly established Supreme Court law.”). In the majority’s
    mind, the question under Fulminante comes down to “deter-
    mining whether the difference between the weight of Moore’s
    statements to his brother and his half-brother’s girlfriend and
    his formal taped confession to the police is such that the
    exclusion of the latter undermines our confidence that Moore
    would have entered into so harsh a plea agreement.” Maj. Op.
    at 9441. This approach misstates the law in at least two ways.
    First, Fulminante says nothing about determining the rela-
    tive weight of the two confessions. Rather, it says that harm-
    less error analysis applies to determine whether an
    erroneously admitted confession is harmless. Fulminante, 
    499 U.S. at 308
    . The Fulminante Court found the admission of the
    first confession not to be harmless, not because it was more
    weighty than the second one, but because of a unique relation-
    9496                     MOORE v. CZERNIAK
    ship between the two confessions—the veracity of the second
    was bolstered by the existence of the other. 
    Id. at 298-300
    .
    Here, no such relationship exists.18
    Second, Fulminante concerned the application of harmless
    error after a trial had taken place, not after a guilty plea had
    been entered, as here. The question under clearly established
    Supreme Court precedent is thus not whether we are confident
    that Moore “would have entered into so harsh a plea agree-
    ment,” Maj. Op. at 9441, an approach that would permit
    Moore to show that he suffered prejudice if he could have
    negotiated a better bargain. Instead, the question is whether
    Moore can show that, but for the failure to file the suppression
    motion, Moore would not have pled but would have insisted
    on going to trial. No other standard of prejudice is clearly
    established Supreme Court law in the guilty plea context. See
    Hill, 
    474 U.S. at 58-59
    . But see Maj. Op. at 9433 (“[T]he
    record falls far short of establishing that the potential testi-
    mony of Raymond and Ziegler would have been sufficient to
    cause Moore to accept so harsh a plea agreement . . . .”); id.
    at 9441 (“[W]e are left only with determining whether the dif-
    ference between the weight of Moore’s statements to his
    brother and his half-brother’s girlfriend and his formal taped
    confession to the police is such that the exclusion of the latter
    undermines our confidence that Moore would have entered
    into so harsh a plea agreement.”). If we were dealing with a
    jury verdict, the majority’s objection that a “confession is
    probably the most probative and damaging evidence that can
    be admitted against [Moore]” would carry more force because
    “it is impossible to know what credit and weight the jury gave
    to the confession.” Fulminante, 
    499 U.S. at 292
     (White, J.,
    dissenting) (internal quotations and citations omitted). But we
    are dealing with a plea bargain here. The question is whether
    a reasonably competent attorney would have advised Moore
    18
    The majority’s accusation that, under my logic, Fulminante “would
    have come out the opposite way,” Maj. Op. at 9435, is thus flatly incor-
    rect.
    MOORE v. CZERNIAK                    9497
    differently when faced with this evidence, and, if so, whether
    that would have led Moore to go to trial instead of pleading
    guilty. No Supreme Court case permits us to ask whether
    Moore would have entered into “so harsh a plea agreement.”
    Yet even if we assume Fulminante applies, its facts are so
    different from those presented here that it is absurd to suggest
    that it supports the proposition that the state court’s determi-
    nation violated clearly established federal law. Fulminante
    was convicted of murdering his eleven-year-old stepdaughter.
    He made two confessions: one to Anthony Sarivola, a fellow
    inmate who befriended him, and another to Donna Sarivola,
    Anthony’s wife. Fulminante had no accomplices, and “the
    physical evidence from the scene and other circumstantial evi-
    dence would have been insufficient to convict.” Fulminante,
    
    499 U.S. at 297
    . Thus, unlike here, where the case against
    Moore was exceptionally strong even without his confessions,
    “both the trial court and the State recognized that a successful
    prosecution depended on the jury believing the two confes-
    sions.” 
    Id.
     (emphasis added). The question before the
    Supreme Court was whether Fulminante was prejudiced by
    the improper admission of the first confession at trial in light
    of the properly admitted second confession. The Supreme
    Court found that Fulminante suffered prejudice because,
    under the unique circumstances of that case, the jury likely
    would not believe that the second confession (to Donna
    Sarivola) had been made if it had not already heard about the
    first confession (to Anthony Sarivola). See 
    id. at 298-300
    .
    The facts of Fulminante are simply not analogous to those
    presented here. Moore’s confessions do not need the same
    kind of background explanation that Fulminante’s confession
    to Donna Sarivola required because Raymond and Ziegler
    were not strangers to Moore in the way that Donna Sarivola
    was to Fulminante. Under the circumstances, it only made
    sense that Fulminante would have confessed to her if he had
    already confessed to her husband. Moore’s confessions to
    Raymond and Ziegler preceded his confession to the police,
    9498                       MOORE v. CZERNIAK
    and the confessions were not linked in the same way that Ful-
    minante’s confessions to the two Sarivolas were.19 Moore
    confessed to his older brother Raymond because Raymond
    himself had once been in a similar situation and Moore
    wanted his advice. Ziegler and Moore were good friends; he
    was at her house with her before he left to confront Rogers,
    he returned to her house afterwards, and he was at her house
    when Rogers’s murder was reported in the news. Moreover,
    Raymond and Ziegler did not have the same incentives to lie
    that Donna Sarivola did. Also unlike Fulminante, here there
    was other evidence—for example, the duct tape used to bind
    Rogers, and the blood and hair found in the trunk—to corrob-
    orate the details of the testimony that Raymond and Ziegler
    would have given.20
    19
    On the contrary, the confessions in this case bear far more resem-
    blance to the confessions in Milton v. Wainwright, 
    407 U.S. 371
     (1972),
    the case that the Fulminante Court cited as an example of a case where
    confessions were made independently of each other. The challenged con-
    fession in Milton was made to a police officer who was posing as a fellow
    murder suspect incarcerated with the defendant. The defendant had previ-
    ously made three separate confessions that were not related to the confes-
    sion he made in prison, other than in the sense that the confessions all
    corroborated each other. 
    Id. at 372-73
    . To the extent that the majority dis-
    tinguishes Milton because Moore’s confession at issue was his only formal
    confession, it misses my point. See Maj. Op. at 9431 n.21. The Fulminante
    Court held that admission of the confession was prejudicial, even though
    a second confession was also admitted, because the credibility of each
    confession was strongly related and each could easily be attacked indepen-
    dently. This was not the case in Milton, and, accordingly, the Court did not
    find prejudice; similarly, it is not the case here.
    20
    The majority claims that Anderson v. Terhune, 
    516 F.3d 781
     (9th Cir.
    2008) (en banc), supports its remarkable reading of Fulminante. See Maj.
    Op. at 9435. It cites Anderson for the proposition that a habeas court
    applying Fulminante need “not . . . consider the other evidence the state
    had presented to tie the defendant to the crime, or whether the confession
    would have repeated such evidence.” Maj. Op. at 9435. That is an inappro-
    priate reading of Anderson, which simply did not discuss any of the addi-
    tional evidence that was present before the state court. Its entire discussion
    of prejudice is basically a single sentence: “The confession was central to
    the conviction.” Anderson, 
    516 F.3d at 792
    . Anderson provides no support
    for the majority’s broad reading of Fulminante. If the majority’s reading
    of Anderson and Fulminante is correct, it would swallow the Fulminante
    rule that harmless error analysis applies to erroneously admitted confes-
    sions.
    MOORE v. CZERNIAK                     9499
    Finally, regardless of how Fulminante is read, it certainly
    does not hold that an attorney who declines to file a motion
    to suppress the challenged confession in favor of advising his
    client to take a plea on the basis of the presence of the second
    confession—which the Fulminante Court acknowledged was
    admissible, see Fulminante, 
    499 U.S. at 298, 300
    , 302—has
    provided ineffective assistance.
    I close by returning to a common theme of my dissent. I do
    not believe that the majority’s reading of Fulminante is cor-
    rect. However, even if I am wrong and the majority is correct,
    under AEDPA this is not enough to permit us to grant Moore
    habeas relief. We may only do so if the state court’s decision
    was contrary to any law that was “clearly established” by the
    Court in Fulminante. The majority’s reading simply does not
    meet this standard.
    III.   PLEA AGREEMENTS AND PREJUDICE
    Judge Reinhardt’s majority opinion and Judge Berzon’s
    concurring opinion both argue, though in slightly different
    ways, that Moore can demonstrate Strickland prejudice by
    showing that but for counsel’s unprofessional errors, Moore
    would have received a more favorable plea agreement. See
    Maj. Op. at 9403, 9419, 9436 n.26, 9440-41; Concurring Op.
    at 9458. Neither of their proposed theories has any support in
    clearly established Federal law.
    A.   The Majority’s Interpretation of Hill v. Lockhart
    The body of the majority’s opinion correctly quotes the
    applicable standard of prejudice for ineffective assistance of
    counsel claims arising from guilty pleas, but in a footnote, the
    majority strangely hypothesizes “that if, in response to the fil-
    ing of a suppression motion, the state would have offered
    Moore a more favorable plea bargain (and he would have
    accepted it in lieu of going to trial), Moore could still have
    established Strickland prejudice.” Maj. Op. at 9436 n.26. In
    9500                  MOORE v. CZERNIAK
    other words, the majority believes that even if it is wrong on
    the merits of Moore’s motion to suppress, Moore would be
    entitled to relief on the grounds that had counsel filed a sup-
    pression motion he might have been in a position to argue for
    a better plea.
    The majority’s innovative and far reaching assertion cannot
    go unanswered. As support for its novel legal theory that
    Moore can claim he might have negotiated a better plea
    bargain—a theory that Moore, incidentally, has never argued
    —the majority cites to no Supreme Court precedent but only
    to one of our own cases, United States v. Howard, 
    381 F.3d 873
     (9th Cir. 2004). See Maj. Op. at 9436 n.26. The majori-
    ty’s failure to cite anything else is hardly surprising since, as
    pointed out above, Hill unequivocally held that, “in order to
    satisfy the ‘prejudice’ requirement, the defendant must show
    that there is a reasonable probability that, but for counsel’s
    errors, he would not have pleaded guilty and would have
    insisted on going to trial.” Hill, 
    474 U.S. at 59
     (emphasis
    added). Moreover, the Supreme Court reaffirmed Hill—and
    thereby rejected the majority’s reading—in Roe v. Flores-
    Ortega, 
    528 U.S. 470
     (2000). In that case, the Supreme Court
    “h[e]ld that when counsel’s constitutionally deficient perfor-
    mance deprives a defendant of an appeal that he otherwise
    would have taken, the defendant has made out a successful
    ineffective assistance of counsel claim entitling him to an
    appeal.” 
    Id. at 484
    . In so holding, the Court stated
    [i]n Hill, we considered an ineffective assistance of
    counsel claim based on counsel’s allegedly deficient
    advice regarding the consequences of entering a
    guilty plea. Like the decision whether to appeal
    [presented here], the decision whether to plead guilty
    (i.e., waive trial) rested with the defendant and, like
    this case, counsel’s advice in Hill might have caused
    the defendant to forfeit a judicial proceeding to
    which he was otherwise entitled.
    MOORE v. CZERNIAK                          9501
    
    Id. at 485
    . The Court proceeded to cite Hill for the proposition
    that “when, in connection with a guilty plea, counsel gives
    deficient advice regarding a potentially valid affirmative
    defense, the prejudice inquiry depends largely on whether that
    affirmative defense might have succeeded, leading a rational
    defendant to insist on going to trial.” 
    Id. at 486
    .
    Yet the majority ignores this language by misconstruing
    our opinion in Howard, where we stated that “[t]o satisfy Str-
    ickland’s prejudice prong, [a defendant] must allege that but
    for counsel’s errors, he would either have gone to trial or
    received a better plea bargain.” 
    381 F.3d at 882
    . Considered
    in context, it is clear that our statement in Howard was merely
    loose language and not a holding. No other panel has ever
    read Howard the way that the majority now interprets it.
    Howard cites Hill only in passing, provides no justification
    for its deviation from our prior case law, does not discuss its
    novel reading, and did not turn on whether the defendant
    would have been able to secure a more favorable plea agree-
    ment. Moreover, Howard itself does not consistently hold to
    the majority’s reading; every time that a question turned on
    the standard of prejudice, the Howard court hewed to the
    accepted construction of Hill—that a petitioner must demon-
    strate that, but for counsel’s ineffective assistance, he would
    not have pled guilty. It interpreted unclear allegations in How-
    ard’s pro se brief “as a sufficient statement that he would not
    have entered the plea and would have taken the case to trial
    if his counsel had not permitted him to plead while incompe-
    tent,” and stated that “[t]his . . . allegation, if true, would
    establish prejudice.” Howard, 
    381 F.3d at 883
    .21 Finally, the
    21
    The majority’s implicit reading of Hill through its interpretation of
    Howard also completely ignores the plethora of cases—both pre-and post-
    Howard—where we have adopted the more limited construction of Hill
    that I propound. See, e.g., Weaver v. Palmateer, 
    455 F.3d 958
    , 966-67 (9th
    Cir. 2006) (“In assessing prejudice, we do not ask what a defendant might
    have done had he benefited from clairvoyant counsel. . . . Instead, we con-
    sider whether there is a reasonable probability that Weaver would have
    9502                        MOORE v. CZERNIAK
    majority asserts that the principle it derives from Howard
    “makes good sense” because “[t]he vast majority of cases in
    criminal courts are resolved by plea bargains.” Maj. Op. at
    9436 n.26. There is some force to this argument, but it is only
    an argument that the Supreme Court should have adopted the
    majority’s rule, not—as required under AEDPA—that it actu-
    ally did.22 Indeed, commentators have criticized the holding in
    proceeded to trial had he been given proper advice from counsel. See Hill,
    
    474 U.S. at 60
    . . . . [T]he prejudice requirement of Strickland and Hill
    requires Weaver to show that but for [counsel’s] alleged errors Weaver
    would have rejected the State’s plea offer and insisted on facing trial . . . .”
    ); United States v. Davis, 
    428 F.3d 802
    , 806 (9th Cir. 2005) (“[D]efendant
    satisfied the prejudice prong of Hill . . . only if he proved that, but for his
    counsel’s erroneous advice, he would have insisted on going to trial.”);
    Washington v. Lampert, 
    422 F.3d 864
    , 873 (9th Cir. 2005) (“[T]o prevail
    [under Hill], the petitioner must show that . . . ‘there is a reasonable proba-
    bility that, but for counsel’s errors, he would not have pleaded guilty and
    would have insisted on going to trial.’ . . . Washington points to no evi-
    dence indicating that, had his attorneys performed differently, he would
    have rejected the sentencing stipulation and insisted on proceeding with
    the sentencing phase of trial.” (quoting Hill, 
    474 U.S. at 58-59
    )); Lang-
    ford, 
    110 F.3d at 1389
     (“The state trial court applied the proper test under
    the Sixth Amendment. It invoked Hill and Strickland and ruled that Lang-
    ford ‘would not have entered a not guilty plea even if his trial counsel [had
    not made the errors the defendant alleges].’ . . . The trial court properly
    applied the federal standard.”); Doganiere v. United States, 
    914 F.2d 165
    ,
    168 (9th Cir. 1990) (“Even if his attorney’s performance was deficient . . .
    , Doganiere’s defense was not prejudiced. To show prejudice [under Hill],
    Doganiere must show that ‘there is a reasonable probability that, but for
    counsel’s errors, he would not have pleaded guilty and would have
    insisted on going to trial.’ Doganiere does not allege that had his attorney
    [not been deficient], he would have pleaded not guilty and insisted on
    going to trial.” (quoting Hill, 
    474 U.S. at 59
    )).
    22
    In fact, it is not so obvious that the Howard rule makes very much
    sense, because it is essentially a truism: If counsel had filed a potentially
    meritorious motion, the state’s case would have been at least marginally
    weaker, and the defendant might have obtained a plea agreement that was
    not quite as “harsh.” The majority’s reading reopens every plea agreement
    to a possible ineffective assistance of counsel claim if counsel had a poten-
    tially meritorious motion to file.
    MOORE v. CZERNIAK                     9503
    Hill precisely because it does not afford relief to many prison-
    ers who received constitutionally deficient representation.
    See, e.g., Richard Klein, Due Process Denied: Judicial Coer-
    cion in the Plea Bargaining Process, 32 HOFSTRA L. REV.
    1349, 1369 (2004) (“We are left by the [Hill v.] Lockhart
    decision with a most unfortunate result: in the vast majority
    of instances where an effective, competent counsel could have
    negotiated a better plea for the defendant than his incompetent
    counsel did, there will be no remedy.”); Emily Rubin, Note,
    Ineffective Assistance of Counsel and Guilty Pleas: Toward a
    Paradigm of Informed Consent, 80 VA. L. REV. 1699, 1705-
    06 (1994) (“[I]t is a very rare defendant who insists on taking
    his case to trial”; in most cases, a defendant with the benefit
    of adequate representation “would have eventually pleaded
    guilty pursuant to a more generous [plea offer than the one he
    accepted]. Such a defendant has no recourse under Hill
    because he will be unable to demonstrate that he probably
    ‘would have insisted on going to trial.’ ”). The majority sim-
    ply installs its own view of what Hill should have said, and
    it infects the entire majority opinion. See, e.g., Maj. Op. at
    9419 (“[I]nvalidating Moore’s formal, tape-recorded confes-
    sion would have placed him in a far better position to negoti-
    ate a reasonable plea and obtain a lesser sentence. . . .”); id.
    at 9433 (“[T]he record falls far short of establishing that the
    potential testimony of Raymond and Ziegler would have been
    sufficient to cause Moore to accept so harsh a plea agreement
    . . . .” ); id. at 9441 (“[T]he [failure to] exclu[de] the [formal
    confession] undermines our confidence that Moore would
    have entered into so harsh a plea agreement.”).
    B.   The Concurrence’s Prejudice Standard
    Judge Berzon’s concurring opinion argues that Moore
    could choose to satisfy the Strickland prejudice prong either
    under Hill or directly under Strickland as applied through the
    lens of Kimmelman. See Concurring Op. at 9458. However,
    Judge Berzon views the Kimmelman/Strickland framework as
    more appropriate for resolving this case because Hill governs
    9504                  MOORE v. CZERNIAK
    prejudice determinations in plea bargains concerning coun-
    sel’s advice on whether to take the plea, after “motions prac-
    tice and discovery have set the legal landscape.” Id. at 9459.
    On the other hand, Strickland and Kimmelman, in her view,
    “deal with counsel’s failure to create a proper legal landscape
    —by, [for example], failing to file a plainly meritorious sup-
    pression motion.” Id. at 9459. Judge Berzon concludes that
    the Kimmelman standard, applied in the plea context, permits
    prejudice to be established by showing that had defense coun-
    sel properly shaped the legal landscape prior to the plea pro-
    ceedings, the defendant might have obtained a more favorable
    plea bargain from the prosecutor. Id. at 9460-61. The distinc-
    tion she attempts to draw is precluded not only by Hill itself,
    but also by the vast weight of precedent in both the courts of
    appeals and the district courts. Her “legal landscape” argu-
    ment is interesting but it has never been “established,” much
    less clearly established, by the Supreme Court. It also raises
    substantial concerns about federalism and separation of pow-
    ers.
    The concurrence’s critical mistake is its failure to consider
    fundamental principles governing the appeal of guilty pleas.
    A criminal defendant who has entered a plea generally waives
    his right to challenge defects in the pre-plea proceedings.
    Instead, a defendant who has entered a plea “may not thereaf-
    ter raise independent claims relating to the deprivation of con-
    stitutional rights that occurred prior to the entry of the guilty
    plea. He may only attack the voluntary and intelligent charac-
    ter of the guilty plea by showing that the advice he received
    from counsel was not within the standards set forth in
    McMann [v. Richardson, 
    397 U.S. 759
    , 770-72 (1970)].” Tol-
    lett v. Henderson, 
    411 U.S. 258
    , 267 (1973); see also
    McMann, 
    397 U.S. at 770-71
     (“Whether a plea of guilty is
    unintelligent and therefore vulnerable when motivated by a
    confession erroneously thought admissible in evidence
    depends . . . not on whether a court would retrospectively con-
    sider counsel’s advice to be right or wrong, but on whether
    that advice was within the range of competence demanded of
    MOORE v. CZERNIAK                     9505
    attorneys in criminal cases.”); Ortberg v. Moody, 
    961 F.2d 135
    , 137-38 (9th Cir. 1992) (“Petitioner’s nolo contendere
    plea precludes him from challenging alleged constitutional
    violations that occurred prior to the entry of that plea.” (citing
    Tollett, 
    411 U.S. at 266-67
    )).
    With that fundamental principle of pleas in mind, it
    becomes obvious that Hill provides the only appropriate stan-
    dard for evaluating claims of ineffective assistance in the plea
    context. The only thing that can be challenged after a plea is
    the advice to enter a particular plea, for all other defects are
    waived by the plea. To be sure, Strickland is not irrelevant to
    the analysis under Hill; the Hill Court explicitly adopted the
    Strickland standard in the context of guilty pleas. “We hold,
    therefore, that the two-part Strickland v. Washington test
    applies to challenges to guilty pleas based on ineffective
    assistance of counsel.” Hill, 
    474 U.S. at 58
    . But the process
    of applying Strickland to guilty pleas was set forth in Hill, and
    there is no reason to use a different prejudice analysis than
    that established in Hill.
    In Hill, the Court wrote that “[i]n many guilty plea cases,
    the ‘prejudice’ inquiry will closely resemble the inquiry
    engaged in by courts reviewing ineffective-assistance chal-
    lenges to convictions obtained through a trial.” 
    Id. at 59
    .
    “[W]here the alleged error of counsel is a failure to investi-
    gate . . . , the determination whether the error ‘prejudiced’ the
    defendant by causing him to plead guilty rather than go to
    trial will depend on the likelihood that . . . [counsel] would
    have . . . change[d] his recommendation as to the plea.” 
    Id.
    But this inquiry only goes to the question of whether the
    advice to enter the plea caused prejudice—i.e., whether the
    defendant would not have pled guilty with better advice—not
    whether the prosecution might have offered a different plea
    agreement. Put differently, even accepting Judge Berzon’s
    proposed distinction between the advice to enter a plea and
    the process of creating the legal landscape in which plea bar-
    gaining occurs, if a defendant still would have pled guilty or
    9506                  MOORE v. CZERNIAK
    nolo contendere despite trial counsel’s unprofessional errors
    in crafting the legal landscape in which the plea was entered,
    then there is no constitutional prejudice.
    Judge Berzon’s response that Hill did not deal with the cre-
    ation of pre-trial landscapes while Kimmelman did, see Con-
    curring Op. at 9461-62, only highlights why the Hill standard
    is the correct one. Under Hill, if it was reasonable to advise
    a defendant to take a plea, there is no deficient conduct. If
    counsel has been unreasonable in giving that advice, then we
    proceed to ask whether the defendant would have taken the
    plea anyway. In other words, Judge Berzon’s concerns about
    the pre-plea landscape are adequately addressed in the first
    step of Hill.
    There is good reason for us to follow Hill in these circum-
    stances. Judge Berzon would have us consider the “legal land-
    scape” and ask whether “the plea bargain outcome would
    have been improved upon the filing of the meritorious sup-
    pression motion that was not filed because of ineffective
    assistance of counsel.” Concurring Op. at 9462-63. We have
    no way of evaluating whether the prosecutor, having been
    forced to answer the motion to suppress, would even be will-
    ing to offer a new plea bargain, much less whether the prose-
    cutor would have offered an “improved” “plea bargain
    outcome.” 
    Id.
    Given the multiplicity of factors that a prosecutor must
    consider when offering a plea bargain, it is highly doubtful
    that a federal court, reviewing a state prosecutor’s decision to
    offer a particular plea bargain, even has the tools necessary to
    decide what bargaining posture a prosecutor would take in the
    face of a hypothetical motion to suppress. When deciding
    what plea bargain to offer a particular criminal defendant, for
    example, a prosecutor might consider the willingness of the
    defendant to cooperate, the defendant’s past criminal history,
    department resources, and pressure from the public in high
    profile or emotionally charged cases. See Wayte v. United
    States, 
    470 U.S. 598
    , 607 (1985); see also United States v.
    Estrada-Plata, 
    57 F.3d 757
    , 760 (9th Cir. 1995) (“[T]here is
    MOORE v. CZERNIAK                          9507
    no constitutional right to a plea bargain, and the decision
    whether to offer a plea bargain is a matter of prosecutorial
    discretion.” (citation omitted)). To further complicate Judge
    Berzon’s proposed counterfactual analysis, all of this second-
    guessing will be conducted, in most cases, years after the
    decision to offer the challenged plea bargain. Political winds
    may have shifted or a new prosecutor may have taken office.
    Permitting a habeas petitioner to demonstrate prejudice sim-
    ply by showing that a different plea bargain might have been
    offered calls for an answer to an impossible question, and will
    have the effect of unsettling scores of negotiated state convic-
    tions, encouraging needless litigation, and creating a mass
    printing press in the federal courts for writs of habeas corpus.
    Were this the only side effect of Judge Berzon’s method,
    perhaps it would be tolerable. But there are at least two addi-
    tional problems. First, it places federal courts in the role of
    instructing state prosecutors—members of the state executive
    branch—of how to conduct plea negotiations, or at least how
    much prison time a prosecutor is permitted to offer if the state
    decides to proceed with reprosecution after the writ of habeas
    corpus issues. To put it mildly, this kind of interference with
    a state executive branch function raises substantial federalism
    concerns. Cf. Printz v. United States, 
    521 U.S. 898
    , 933
    (1997).
    Second, and related to the federalism problem, Judge Ber-
    zon’s approach implicates the separation of powers with
    potential effects far beyond the current case.23 Conducting this
    type of inquiry into whether a better plea bargain would have
    been available would require the kind of judicial review of
    23
    Although the current case does not involve a direct extension of the
    judiciary’s constitutional powers vis-a-vis coequal branches of the federal
    government because this case is before us on review of a state court’s
    judgment, Judge Berzon’s novel prejudice analysis, if adopted, also would
    apply to review of federal convictions, either under 
    28 U.S.C. § 2255
     or
    on direct review.
    9508                  MOORE v. CZERNIAK
    prosecutorial decisions that courts have almost uniformly
    shunned. We have previously described the reasons for avoid-
    ing judicial review of the plea bargaining decision:
    Prosecutorial charging and plea bargaining deci-
    sions are particularly ill-suited for broad judicial
    oversight. In the first place, they involve exercises of
    judgment and discretion that are often difficult to
    articulate in a manner suitable for judicial evalua-
    tion. Such decisions are normally made as a result of
    careful professional judgment as to the strength of
    the evidence, the availability of resources, the visi-
    bility of the crime and the likely deterrent effect on
    the particular defendant and others similarly situated.
    Even were it able to collect, understand and balance
    all of these factors, a court would find it nearly
    impossible to lay down guidelines to be followed by
    prosecutors in future cases. We would be left with
    prosecutors not knowing when to prosecute and
    judges not having time to judge.
    Assuming these problems of guidance and under-
    standing could be overcome—and it is unlikely that
    they could be—there is an added constitutional con-
    sideration based on the peculiar relationship between
    the Office of the United States Attorney and the fed-
    eral district courts: The United States is necessarily
    a party to every criminal case presented to a district
    court. It would raise serious separation of powers
    questions—as well as a host of virtually insurmount-
    able practical problems—for the district court to
    inquire into and supervise the inner workings of the
    United States Attorney’s Office.
    The very breadth of the inquiry . . . would require
    that the government divulge minute details about the
    process by which scores, perhaps hundreds, of
    charging decisions are made. The court would also
    MOORE v. CZERNIAK                     9509
    have to consider the validity of various rationales
    advanced for particular charging decisions, which
    would enmesh it deeply into the policies, practices
    and procedures of the United States Attorney’s
    Office. Finally, the court would have to second-
    guess the prosecutor’s judgment in a variety of cases
    to determine whether the reasons advanced therefor
    are a subterfuge.
    United States v. Redondo-Lemos, 
    955 F.2d 1296
    , 1299-1300
    (9th Cir. 1992) (footnotes and citations omitted), overruled on
    other grounds, United States v. Armstrong, 
    48 F.3d 1508
    ,
    1515 n.5 (9th Cir. 1995) (en banc); see also Wayte, 
    470 U.S. at 607-08
     (recognizing that the “broad discretion” afforded
    the executive to evaluate such factors is “not readily suscepti-
    ble to the kind of analysis the courts are competent to under-
    take”); United States v. Banuelos-Rodriguez, 
    215 F.3d 969
    ,
    976 (9th Cir. 2000) (en banc) (“Courts generally have no
    place interfering with a prosecutor’s discretion whom to pros-
    ecute, what charges to file, and whether to engage in plea
    negotiations.”).
    To be sure, prosecutorial discretion, including the discre-
    tion to negotiate plea bargains, does not give the executive
    branch license to violate a criminal defendant’s due process
    rights, and courts widely agree that a prosecutor cannot hide
    discriminatory motives under the guise of prosecutorial dis-
    cretion. See United States v. Arenas-Ortiz, 
    339 F.3d 1066
    ,
    1068 (9th Cir. 2003) (“One important restriction on prosecu-
    torial discretion, however, is that ‘the decision whether to
    prosecute may not be based on an unjustifiable standard such
    as race, religion, or other arbitrary classification.’ ” (quoting
    United States v. Armstrong, 
    517 U.S. 456
    , 464 (1996)) (inter-
    nal quotations removed)); Redondo-Lemos, 
    955 F.2d at 1299
    (“Given the significance of the prosecutor’s charging and plea
    bargaining decisions, it would offend common notions of jus-
    tice to have them made on the basis of a dart throw, a coin
    toss or some other arbitrary or capricious process.”). But it is
    9510                      MOORE v. CZERNIAK
    one thing to say that the executive branches of either the fed-
    eral or state governments cannot prosecute selectively, for
    there are methods through which the judiciary can evaluate
    such claims. It is an entirely different, and far more bother-
    some, thing to instruct district courts to ask whether “the plea
    bargain outcome would have been improved upon the filing
    of the meritorious suppression motion.” Concurring Op. at
    9462-63. That analysis would require inquiry into the precise
    questions that this court has said courts should avoid and
    which the Constitution likely protects from judicial intrusion.
    See Redondo-Lemos, 
    955 F.2d at 1299-1300
    .
    Judge Berzon responds by claiming that this is the type of
    inquiry that courts regularly undertake in ineffective assis-
    tance of counsel claims. See Concurring Op. at 9467-68.
    Rather than considering the prosecution’s actions, Judge Ber-
    zon says that her approach would focus on “the defendant’s
    and defense counsel’s choices, defense counsel’s judgment,
    and defense counsel’s actions.” Id. at 9467. But if the ques-
    tion posed is whether “the plea bargain outcome would have
    been improved upon the filing of the meritorious suppression
    motion,” as she says it ought to be, id. at 9462-63, I fail to see
    how that could be done without looking at the prosecution’s
    decisions “in the first instance.” Id. at 9467. In an ineffective
    assistance of counsel claim following a trial, where the coun-
    terfactual question posed to the court concerns evaluating
    what a jury might have done, at least the evidence presented
    to the jury and the legal instructions it was given are available
    for review. In contrast, in a plea bargain situation, there is no
    record at all about what other deals the prosecution might
    have offered.24
    24
    I note that this problem is avoided under the Hill standard of preju-
    dice: If the question is whether the defendant would have insisted on going
    to trial instead of taking the plea, that question is amenable to a reasoned
    answer by looking at the evidence presented by trial counsel and the
    defendant on habeas review about the defendant’s discussions and choices.
    The Hill prejudice standard depends not at all on the prosecutor’s consid-
    erations.
    MOORE v. CZERNIAK                             9511
    If, in contrast, “the question is whether, but for counsel’s
    ineffective assistance, a defendant would [be] in a better posi-
    tion to negotiate with the prosecutor,” as Judge Berzon articu-
    lates the test later on, id. at 9467, the new standard would
    entirely swallow Hill. Numerous cases decided under Hill can
    also be characterized as “deal[ing] with counsel’s failure to
    create a proper legal landscape” by failing to take some stra-
    tegic action. Concurring Op. at 9459. See, e.g., Weaver, 
    455 F.3d at 970-71
     (9th Cir. 2006) (applying Hill to counsel’s fail-
    ure to investigate mental defect defense); Langford, 
    110 F.3d at 1386-87
     (using Hill in guilty plea case alleging ineffective
    assistance of counsel based on failure to file various suppres-
    sion motions). And filing a potentially meritorious suppres-
    sion motion will always strengthen defense counsel’s
    bargaining position (at least until a potentially adverse ruling
    is handed down). If the possibility that a more favorable plea
    bargain might have been offered if a potentially meritorious
    motion was not filed is sufficient to establish Strickland preju-
    dice after a guilty plea, virtually every plea bargain in the
    country is now open to habeas relief.
    Viewed within the proper standard of review under
    AEDPA, it was not an unreasonable application of Supreme
    Court law for the Oregon courts to evaluate Moore’s claim
    under Hill. The case fits squarely within the rule of Hill:
    Moore asserts that his trial counsel failed to advise him that
    a motion to suppress might be successful. On the basis of that
    advice, Moore pled no contest to the charge of felony murder.
    Other courts considering such claims have uniformly looked
    to Hill for the correct standard.25 Given that the federal courts
    25
    See, e.g., Gilbert v. Merchant, 
    488 F.3d 780
    , 791 (7th Cir. 2007)
    (“[G]iven that he was convicted based on his own plea, Gilbert was
    obliged to complete the demonstration of prejudice by showing that had
    his confession been suppressed, it is reasonably likely that he would have
    gone to trial rather than plead guilty.” (citing Hill, 
    474 U.S. at 59
    )); United
    States v. Salazar, 
    323 F.3d 852
    , 857 (10th Cir. 2003) (applying Hill to
    determine if defendant who pled guilty “should be allowed to pursue his
    9512                      MOORE v. CZERNIAK
    have been applying Hill’s prejudice requirement to situations
    similar to the one presented by this case, it is difficult to see
    how a state court should have been able to divine this kind of
    extension of Strickland and Kimmelman. Judge Berzon’s prej-
    udice standard is not only not clearly established Supreme
    Court law; it is also contrary to all other federal authority. I
    therefore puzzle over Judge Berzon’s objection that I do not
    cite to any case holding that her reading of the prejudice stan-
    dard is precluded by Hill, see Concurring Op. at 9466, for all
    the cases she cites applying the Kimmelman standard occurred
    after a trial and did not involve the plea context. She also fails
    to respond to the numerous cases I have cited which apply
    Hill in the guilty plea context, other than to say that “[s]ome
    other cases . . . assume (as Judge Reinhardt does today) that
    Hill also applies in the motions context when a plea bargain
    is involved, as well as in the advice context.” 
    Id.
     From that,
    despite the absence of any case applying her proposed distinc-
    tion to a guilty plea case, she draws the inexplicable conclu-
    sion that “these cases do not provide support for using Hill as
    the exclusive standard in such circumstances.” 
    Id.
    The Supreme Court would have had difficulty being more
    clear than it was in Hill about the proper prejudice standard
    suppression claim”); Langford, 
    110 F.3d at 1386-88
    ; Banks v. Hanks, 
    41 F.3d 1187
    , 1189 (7th Cir. 1994); Hale v. Lockhart, 
    903 F.2d 545
    , 548-50
    (8th Cir. 1990); United States v. Carasis, 
    863 F.2d 615
    , 616 (8th Cir.
    1988) (“[B]ecause Davis’ lawyer did not unreasonably forego filing a sup-
    pression motion on behalf of his client, we cannot say Davis has shown
    ‘a reasonable probability that, but for counsel’s errors, he would not have
    pleaded guilty and would have insisted on going to trial.’ ” (quoting Hill,
    
    474 U.S. at 59
    )); Hibbert v. Poole, 
    415 F. Supp. 2d 225
    , 232-33
    (W.D.N.Y. 2006) (applying Hill to prejudice determination when counsel
    advised defendant to plead guilty before court ruled on suppression
    motion); United States v. Hawkins, 
    973 F. Supp. 825
    , 828 (S.D. Ill. 1997)
    (“Even if counsel’s failure to file a motion . . . to suppress the evidence
    was unreasonable, defendant has not . . . alleged that he would have pled
    differently had the motions been filed, and had they later succeeded.”);
    Friedman v. Gamble, 
    919 F. Supp. 1440
    , 1447 (D. Mont. 1995).
    MOORE v. CZERNIAK                     9513
    for guilty pleas. It said, “We hold, therefore, that the two-part
    Strickland v. Washington test applies to challenges to guilty
    pleas based on ineffective assistance of counsel. In the context
    of guilty pleas, . . . to satisfy the ‘prejudice’ requirement, the
    defendant must show that there is a reasonable probability
    that, but for counsel’s errors, he would not have pleaded
    guilty and would have insisted on going to trial.” The Hill
    Court did not recognize Judge Berzon’s distinction between
    pre-trial landscape setting ineffective assistance claims and
    advice to enter guilty plea claims, and she cannot point to a
    single federal court since Hill that has done so. Until the
    Supreme Court tells us otherwise, her proposed distinction is
    foreclosed by Hill. See Carey v. Musladin, 
    127 S. Ct. 649
    ,
    654 (2006) (“Given the lack of holdings from this Court . . .
    , it cannot be said that the state court ‘unreasonabl[y]
    appli[ed] clearly established Federal law.’ ” (quoting 
    28 U.S.C. § 2254
    (d)(1))).
    The concurrence’s argument is a disguised attempt implic-
    itly to extend Howard to permit satisfaction of Strickland’s
    prejudice prong by demonstrating simply that a more favor-
    able plea might have been obtained, instead of doing it explic-
    itly in the manner advocated by Judge Reinhardt. See Maj.
    Op. at 9436 n.26. Although Judge Berzon couches her argu-
    ment as giving defendants the choice of proving prejudice
    under what is commonly perceived as the more difficult Str-
    ickland standard rather than proving prejudice under Hill, her
    approach actually achieves the opposite effect: Instead of
    being required to demonstrate that he would not have pled
    guilty but would have insisted on going to trial, Moore would
    only be required to demonstrate that he might have obtained
    a more favorable plea agreement. This attempt misconceives
    the nature of plea bargaining, potentially violates principles of
    federalism and separation of powers, and ignores Supreme
    Court precedent on how to conduct the prejudice inquiry fol-
    lowing plea agreements. Even if I were to agree that an
    ambiguity about the relationship between Hill, Kimmelman,
    9514                   MOORE v. CZERNIAK
    and Strickland existed, it is not our job on AEDPA review to
    resolve it.
    IV.   CONCLUSION
    I cannot join anything the majority has written. For the rea-
    sons I have stated, I believe the majority to be wrong on the
    facts and the law, and I believe that it fails to accord the state
    court’s decision the deference that AEDPA commands. At the
    end of the day, it is not clear what the majority has accom-
    plished, for Moore or for anyone else. The majority grants
    Moore a writ of habeas corpus and orders the state either to
    permit Moore to withdraw his plea or to release him. Oregon
    will surely allow Moore to withdraw his plea and then prose-
    cute him to the hilt. When it does, Oregon will be under no
    obligation to offer Moore any kind of a deal, and if it does
    decide to bargain, it has no obligation to offer Moore a plea
    bargain as attractive as what he got in this case. It may even
    decide to seek the death penalty. And even if Oregon were to
    offer a new plea deal, Moore’s counsel must reject it until he
    has filed every conceivable pre-trial motion he can. After
    today’s decision, no conscientious defense attorney should
    even consider accepting a plea deal—no matter how good the
    bargain and no matter what other evidence the prosecutor has
    —if there are potentially “meritorious” motions that can be
    filed.
    Oregon will try Moore and, given his confessions to family
    and friends, the available eyewitnesses, and other incontro-
    vertible evidence, Moore will likely be found guilty of mur-
    der. For that, he is likely to receive a sentence well in excess
    of the bargain he negotiated. It is quite possible that Moore
    will be worse off for having prevailed here. Nor is it clear that
    anyone else after Moore will actually benefit from today’s
    ruling. In fact, defendants whose counsel cannot negotiate
    plea agreements until after exhausting their pre-trial motions
    are likely to be worse off for the majority’s effort.
    MOORE v. CZERNIAK                    9515
    Today’s decision is not a liberty-enhancing decision. It will
    actually hamper defense counsel’s ability to avoid trial and
    negotiate plea agreements. And our decision is so unneces-
    sary. Moore is plainly guilty of felony murder, or worse. He
    took a fair deal from the prosecutor on the advice of compe-
    tent counsel. Justice was served. There is no reason for us to
    up-end the orderly administration of justice in Oregon in this
    way.
    I respectfully dissent.
    

Document Info

Docket Number: 04-15713

Filed Date: 7/28/2008

Precedential Status: Precedential

Modified Date: 10/14/2015

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