Moore

Opinion by Judge REINHARDT; Concurrence by Judge BERZON; Dissent by Judge BYBEE.

Randy Moore’s taped confession was obtained by the police at the station house by means that even the state concedes were unconstitutional. It does not contest on this appeal the district court’s finding that Moore’s confession was involuntary. As the Supreme Court has declared emphatically, “[a] confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.’ ” Arizona v. Fulminante, 499 U.S. 279, 296 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Inexplicably, Moore’s lawyer failed to recognize that the confession to the police was inadmissible, even though it was unconstitutional for not one but two separate reasons.

Counsel’s explanation for not filing the motion was, in his words, “two-fold.” First, he thought such a motion would not have succeeded because Moore was not in custody when he gave his confession and his confession was voluntary — both clearly erroneous conclusions: the…

concurring:

I concur in Judge Reinhardt’s result and almost all of his opinion.

The pivotal questions are simply whether the Oregon state court was unreasonable in its determination that Moore did not (1) receive deficient representation of counsel that (2) prejudiced his case. Because the state has, by forfeiture, acknowledged that Moore’s confession was involuntary for the purposes of this appeal, I see no reason to reach that issue de novo. I therefore do not concur in footnote ten of the majority opinion, which does so. Except for any references to footnote ten’s voluntariness holding elsewhere in the text, I concur fully in the remainder of the opinion.

In particular, I concur in Judge Reinhardt’s discussion of why Moore’s counsel’s failure to move to suppress his confession prejudiced Moore, in that I believe, to the extent that Hill v. Lockhart, 474 U.S. 52 , *1165 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), provides the proper prejudice standard here, Moore has fulfilled it for the reasons which Judge Reinhardt supplies. I write separately, however, to note that I believe that Moore could also demonstrate prejudice more directly under Strickland v. Washington, 466 U.S. 668 ,…

dissenting:

Randy Moore and others beat Kenneth Rogers until he bled, stripped him, bound him in duct tape, placed him in the trunk of a car, drove him to a remote location, and forced him to march up a hill at gunpoint. While marching Rogers through the woods, Moore shot Rogers— accidentally, he said — through the temple. Moore confessed to his older brother, Raymond, and his step-brother’s girlfriend, Debbie Ziegler, what he had done. He then talked to police, corroborating the evidence the police had already obtained. Before Moore could be indicted, he negotiated a plea bargain under which Moore obtained the lowest sentence available under Oregon law for felony murder. Moore’s counsel, an experienced defense *1172 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 suppressed 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…

Barbara L. Creel, Office of the Federal Public Defender, Portland, OR, 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, OR (Argued), for the Respondent-Appellee.

Before: STEPHEN REINHARDT, MARSHA S. BERZON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge REINHARDT; Concurrence by Judge BERZON; Dissent by Judge BYBEE.

REINHARDT, Circuit Judge:

Randy Moore's taped confession was obtained by the police at the station house by means that even the state concedes were unconstitutional. It does not contest on this appeal the district court's finding that Moore's confession was involuntary. As the Supreme Court has declared emphatically, "[a] confession is like no other evidence. Indeed, `the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.'" Arizona v. Fulminante, 499 U.S. 279, 296 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) (White, J., dissenting)).…