Volume 1 of 3

                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

RANDY JOSEPH MOORE,                     No. 04-15713
             Petitioner-Appellant,         D.C. No.
               v.
STAN CZERNIAK, Superintendent of        CV-01-01795-
                                          AJB/JMS
OSP,                                     ORDER AND
            Respondent-Appellee.
                                         OPINION

       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, 2009

     Before: Stephen Reinhardt, Marsha S. Berzon, and
               Jay S. Bybee, Circuit Judges.

                         Order;
              Opinion by Judge Reinhardt;
             Concurrence by Judge Berzon;
                Dissent by Judge Bybee;
           Dissent to Order by Judge Callahan;
             Dissent to Order by Judge Bea




                           9761
                     MOORE v. CZERNIAK                   9765




                         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.


                          ORDER

   The majority opinion, concurring opinion, and dissenting
opinion filed on July 28, 2008, slip op. 9397, and appearing
at 

(9th Cir. 2008), are withdrawn. A new
majority opinion, concurring opinion, and dissenting opinion
are filed contemporaneously with this order. With the filing
of the new opinion, Judge Reinhardt and Judge Berzon vote
to deny the petitions for rehearing and rehearing en banc.
Judge Bybee votes to grant the petitions for rehearing and
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of the votes of the nonrecused active judges in favor
of en banc reconsideration. Fed. R. App. P. 35. Judge Graber
9766                  MOORE v. CZERNIAK
was recused. The petitions for rehearing and rehearing en
banc are denied. No future petitions for rehearing or rehearing
en banc will be entertained.


                          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, 

, 296 (1991) (quoting Bruton v. United
States, 

, 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.

   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, 

(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-
                      MOORE v. CZERNIAK                    9767
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

, 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-
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, 

(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-
9768                      MOORE v. CZERNIAK
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—a trial at which
he would have faced a potential sentence identical to that he
received as a result of his plea bargain. Counsel’s perfor-
mance 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, 

, and constituted an objectively unreasonable applica-
tion of Strickland, 

, we reverse the district court
and remand for issuance of the writ.1

                                     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
   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-
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                   9769
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
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.
9770                  MOORE v. CZERNIAK
   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
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
                           MOORE v. CZERNIAK                           9771
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-
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
  2
    Although the officers continued their efforts to obtain answers to their
questions, they acknowledged, after their call to the District Attorney, that
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.
9772                      MOORE v. CZERNIAK
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
Appeals, which affirmed without opinion, and to the Oregon
Supreme Court, which denied review. State v. Moore, 

(Or. Ct. App. 1997), rev. denied, 

(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
  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-
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.” 

CZERNIAK                    9773
“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
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
9774                  MOORE v. CZERNIAK
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
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, 

(Or. Ct. App. 2001), rev. denied, 

(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
                           MOORE v. CZERNIAK                            9775
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
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
  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, 

, 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, 

, 59 (2004) (explaining that Lee v. Illinois “is not
. . . 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, 

(D. Or. Mar. 4, 2005).
9776                       MOORE v. CZERNIAK
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, 

, 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, 

, 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
Act (“AEDPA”), 28 U.S.C. § 2254. Woodford v. Garceau,

, 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, 

, 520 (2003).5 “[C]learly established Fed-
   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, 

,
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, 

, 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
                           MOORE v. CZERNIAK                            9777
eral law” includes only the Supreme Court’s “applicable hold-
ings,” not its dicta. See Carey v. Musladin, 

,
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, 

, 1671 (2007).

   A state court’s decision is “ ‘contrary to’ federal law if it
fails to apply the correct controlling Supreme Court authority
or comes to a different conclusion . . . [from] a case involving
materially indistinguishable facts.” Pirtle v. Morgan, 

, 1167 (9th Cir. 2002) (citing Bell v. Cone, 

,
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.” 

. 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, 

, 409 (2000).

   The substantive federal law guiding our inquiry is supplied
by Strickland v. Washington, 

(1984), which is
“clearly established Federal law” under AEDPA. 

. 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

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.
9778                       MOORE v. CZERNIAK
words, that it “fell below an objective standard of
reasonableness”—and that the deficiency was prejudicial. Str-

, 692. To show prejudice, Moore
must demonstrate that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.”6 

In the context of a plea bargain, we specif-
ically ask whether there is a reasonable probability that, but
for counsel’s deficient performance, the petitioner would have
gone to trial rather than accept the plea bargain offered by the
state. See Hill v. Lockhart, 

, 59 (1985). Because
Moore’s claim involves the failure to suppress a confession,
the prejudice question is governed by Fulminante, 

, the guiding Supreme Court precedent on the harmless-
ness of an erroneously admitted confession. As Fulminante
commands, we must “exercise extreme caution” before deter-
mining that the failure to move to suppress a coerced confes-
sion was nonprejudicial. 

.

                                    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
  6
    For Strickland claims, it is unnecessary to conduct a harmless error
analysis under Brecht v. Abrahamson, 

, 637 (1993). Avila v.
Galaza, 

, 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,

, 1154 n.2 (9th Cir. 2000))); see also Kyles v. Whitley, 

, 435-36 & n.9 (1995).
                      MOORE v. CZERNIAK                    9779
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 and Hill.

                 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, 

, 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.” 

382; see also
Ortiz-Sandoval v. Clarke, 

, 1170 (9th Cir.
2003) (same). However, “the failure to file a [meritorious]
suppression motion does not constitute per se ineffective
assistance of counsel.” 

; see also

(“Although a meritorious Fourth Amendment issue
is necessary to the success of a Sixth Amendment claim
9780                      MOORE v. CZERNIAK
[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.” 

. 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

    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
  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 9838, 9841, 9850 & 9851 n.10. 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.
                           MOORE v. CZERNIAK                          9781
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, 

; 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 “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
  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.
9782                       MOORE v. CZERNIAK
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
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
  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,
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, 

, 1366 (9th Cir. 1988); see Haynes v. Washington, 

,
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-
                          MOORE v. CZERNIAK                           9783
  2.    Counsel’s failure to file a meritorious motion to sup-
        press Moore’s confession “fell below an objective stan-
        dard 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-

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, 

, 661-63 (2004); United States v.
Leyva, 

, 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, 

, 97-98 (1984)
(per curiam), and Stansbury v. California, 

, 323 (1994).
9784                  MOORE v. CZERNIAK
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.

   [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
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 9852. 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
                             MOORE v. CZERNIAK                           9785
which were erroneous and objectively unreasonable.12 At no
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
  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
       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.
9786                       MOORE v. CZERNIAK
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
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
  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
plea” because “Moore was never indicted, but [rather] pled no contest to
an information negotiated as part of the plea.” Dis. op. at 9849-50. The
fallacy of this reasoning is obvious: there is no doubt that had Moore’s
counsel decided to suppress the confession prior to entering plea negotia-
tions 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, incor-
rectly, that a suppression motion would be unmeritorious, and, after mak-
ing 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 regardless of all else. Such a course of conduct falls far short
of “meticulous, informed representation.” 

   14
      For this reason, the dissent’s invocation of McMann v. Richardson,

(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, 

, 1156 (9th Cir. 2000) (“The
Supreme Court has held that counsel’s failure to file a motion to suppress
                          MOORE v. CZERNIAK                           9787
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 9847 (discussing the “strong and obvious strategic
reasons to take the plea and forego the suppression motion”);
dis. op. at 9848 (“[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 9850 (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. But see dis. op. at 9849-50.

  The deficiency in the dissent’s reasoning becomes all the
more apparent once we actually consult the record. The dis-
sent argues that counsel’s “strategic” decision to pursue a plea
agreement was reasonable because “counsel feared severe

evidence can provide the basis for a claim of ineffectiveness.” (citing Kim-
melman)), overruled on other grounds by Lockyer v. Andrade, 

(2003). We have repeatedly recognized such Kimmelman-type Strick-
land claims ever since Kimmelman was decided more than twenty years
ago, see 

; Van 

; Lowry v. Lewis, 

, 345-47 (9th Cir. 1994); United
States v. Molina, 

, 1447 (9th Cir. 1991), and we have done
so in cases in which the defendant pled rather than going to trial, see Wea-
ver v. Palmateer, 

, 972 (9th Cir. 2006); Langford v. Day, 

(9th Cir. 1997), amending on denial of reh’g and reh’g en banc

(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.” 

. As such,
apart from the fact that McMann’s standard of attorney competence was
the precursor to Strickland’s deficient performance prong, see 

, McMann is simply inapposite to this case, which is about
suppression, not plea advice.
9788                  MOORE v. CZERNIAK
consequences if his client went to trial.” Dis. op. at 9846. Spe-
cifically, 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 with-
out the possibility of parole.” 

(emphasis added).
However, as is the case with much of the dissent, 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 Measure 11. See supra
n. 3; see also Salyer v. Belleque, 

, at *1 (D.
Or. Mar. 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 “reasonable-
ness” of counsel’s plea advice is doubly curious—not only
does counsel’s affidavit make clear that his decision 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 9847,
seeing as, by counsel’s own admission, the plea bargain
resulted in the same mandatory sentence 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.

  Knowles v. Mirzayance, 

(2009), does not
suggest a contrary result. Knowles holds that trial counsel
need not pursue a defense that he “reasonably conclude[s] . . .
                            MOORE v. CZERNIAK                              9789
[is] almost certain to lose.” 

Knowles further
explains that this is true even if the defendant has nothing to
lose by presenting that defense. 

Knowles is
entirely inapplicable here because Moore’s counsel did not
“reasonably conclude” that the motion to suppress was “al-
most certain to lose.” Even the state has conceded that a
motion to suppress Moore’s confession would have suc-
ceeded. Further, Moore’s counsel did not “reasonably” reach
his erroneous conclusion, as he was entirely ignorant of the
relevant law. Had Moore’s counsel been reasonably informed
about the law, he would have learned that Moore was almost
certainly in custody at the time of his confession, see supra
note 11; that Moore’s confession was almost certainly invol-
untary, see supra note 10; and that the admission of Moore’s
confession would, as Fulminante explained, be deeply preju-
dicial notwithstanding Raymond and Ziegler’s potential testi-
mony, see infra pages 9795-98. In short, Moore’s counsel
failed to suppress the confession because he was ignorant of
clearly established law regarding custody, volition, and the
prejudicial effect of a defendant’s confession. The incorrect,
uninformed, and unreasonable decision made by Moore’s
counsel is a far cry from the Supreme Court’s recognition in
Knowles that a reasonable decision by counsel as to the merits
of a defense does not constitute ineffective assistance.15
  15
     Our dissenting colleague appears to believe that Knowles is relevant
because, in Knowles, the Court requires no strategic justification for coun-
sel’s decision beside his reasonable conclusion that an insanity defense
was certain to fail. Although a strategic reason may not be necessary for
failing to make a motion that has no merit, it is certainly necessary when
counsel fails to make a meritorious motion. As explained above, Moore’s
counsel did not forego the suppression motion for strategic reasons.
Instead, he offered two reasons for failing to make the motion. One, he
believed that the motion would fail. Two, he believed that suppression was
worthless due to Raymond and Ziegler’s potential testimony. Both reasons
were based on counsel’s ignorance of the law.
   In crafting a strategic justification for trial counsel’s failings, the dissent
suggests that Moore “had a lot to lose” by rejecting the state’s plea offer
because “by going to trial he risked losing a lenient plea agreement and
getting a far more severe sentence.” Dis. op. at 9842. The record belies
this claim: Moore’s co-defendant Salyer went to trial on the same charges
that Moore’s counsel believed Moore would face, and Salyer received a
sentence identical to Moore’s.
9790                       MOORE v. CZERNIAK
   The dissent’s attempt to elide the 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 decision.16 Nor has the state ever
argued, or the state court ever suggested, at any level, that
counsel had any such strategic consideration in mind. This is
  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, 

, 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. 

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”);

(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, 

, 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
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.
                      MOORE v. CZERNIAK                     9791
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, 

, 871 (9th Cir.
2003) (“We will not assume facts not in the record in order
to manufacture a reasonable strategic decision for [the defen-
dant’s] trial counsel.”). The dissent’s suggestion that coun-
sel’s decision not to file a motion was motivated by strategic
considerations concerning the plea negotiations “resembles
more a post hoc rationalization of counsel’s conduct than an
accurate description of [his] deliberations prior to” deciding
against filing the motion. 

.

   [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, 

, we may
not deem unreasonable actions to have been “the result of rea-
sonable professional judgment,” 

by grounding
them in considerations that were not, in fact, the lawyer’s rea-
sons for acting or failing to act. See 

(“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
of trial, he was unaware of the search and of the State’s inten-
tion to introduce the bedsheet into evidence.”); Tomlin v.
Myers, 

, 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
9792                  MOORE v. CZERNIAK
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-

; 

“[a] reasonable proba-
bility is a probability sufficient to undermine confidence in
the outcome”). In Hill v. Lockhart, 

(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.” 

“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.” 

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-
                          MOORE v. CZERNIAK                         9793
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
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
  17
    Were we to consider the arguments regarding prejudice created ex
cathedra on appeal by the dissent, we would in all likelihood reject them.
9794                       MOORE v. CZERNIAK
   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
contrary to clearly established Supreme Court law. Indeed, the
Supreme Court squarely rejected a markedly similar argument
in Arizona v. Fulminante, 

, a case that is, a forti-
ori, controlling here.19

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.
   19
      The dissent finds it significant that petitioner does not cite Arizona v.
Fulminante in his brief, see dis. op. at 9837-38, 9860 n.15, 9864, equating
our reliance on this Supreme Court precedent with the dissent’s effort to
                            MOORE v. CZERNIAK                             9795
   [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 

(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. 

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.” 

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.” 

(quoting State v. Fulminante,

, 611 (Ariz. 1988)) (internal quotation marks
omitted). The Supreme Court unequivocally rejected this
argument. The Court held that because “the two confessions
reinforced and corroborated each other . . . one confession
was not merely cumulative of the other,” 

and there-
fore concluded that the error was not harmless, 

Ful-
minante stands for the proposition that the admission of an

judicially 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, 

, 1424 (9th Cir. 1987); cf. Puerta v.
United States, 

, 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.”).
9796                       MOORE v. CZERNIAK
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
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)
  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
9865. 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.” 

(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                             9797
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, 

(1972), than to
those of Fulminante is simply not correct. See dis. op. at 9869 n.22. In
Milton, as the dissent notes, the petitioner had already made three full con-
fessions, which were held to be admissible. 

,
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. 

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, 

, 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,
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 

, 1022, rev’d on other grounds
sub nom. Whorton v. Bockting, 

(2007).
9798                      MOORE v. CZERNIAK
confession would certainly have “reinforced and corroborat-
ed” the informal accounts reported by two lay witnesses. Ful-

. 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 Fulminante23

   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 

. 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 most knowledgeable and unimpeachable source of infor-
mation about his past conduct.” 

391 U.S.
at 139-40 (White, J., dissenting)) (omission and alteration in
original); see also Taylor v. Maddox, 

, 1017 (9th
Cir. 2004) (“[W]e are mindful of the Supreme Court’s admo-
   23
      See Stapleton v. Wolfe, 

, 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 Ful

). The
Stapleton court also held that the state court had “reached a decision con-
trary to clearly established federal law”—namely, Fulminante. 

CZERNIAK                            9799
nition as to the devastating power of confessions.” (citing Ful-

)). 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 In addition, as noted already, the plea
   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
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 9853. 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
9800                       MOORE v. CZERNIAK
agreement accepted by Moore did nothing to reduce his sen-
tence, as his co-defendant received an identical mandatory
minimum sentence after going to trial. Accordingly, exercis-
ing “extreme caution,” as Fulminante requires us to do,

, we cannot conclude that coun-
sel’s failure to move to suppress Moore’s formal, taped con-
fession was harmless.

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 

.
                      MOORE v. CZERNIAK                   9801
   The dissent criticizes our application of Fulminante, argu-
ing that it actually “supports the exact opposite conclusion”
from our holding. Dis. op. at 9865. 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, Fulmi-
nante supports the conclusion that Moore’s formal, taped con-
fession was not prejudicial because the two lay confessions
also carried unique weight. 

this argument,
the dissent entirely misses the point of Fulminante. In that
case, the Supreme Court held that the admission of the
coerced confession was prejudicial notwithstanding the avail-
ability of another confession to a lay witness. Under the dis-
sent’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, 

(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, 

(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. 

. 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,” 

(quoting 

) (internal quotation
marks omitted), we concluded that the “prejudice from
9802                       MOORE v. CZERNIAK
Anderson’s confession cannot be soft pedaled” because the
“confession was central to the conviction,” 

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—the same 25 year Measure 11
sentence that his co-defendant Salyer received after going to
trial.25 In light of these considerations, the only reasonable
conclusion is that Moore has established Strickland prejudice.26

                                    ***

   [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
  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 9836-37. 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.
   26
      After the involuntary confession was suppressed, the state might well
have offered a more generous plea bargain. Moore need not show that he
would have rejected any and all plea bargains the state might have offered.
Under Hill, it is enough that there is a reasonable probability that he would
have chosen trial over the plea bargain he was actually offered. Accord-
ingly, we need not consider whether Moore could also establish prejudice
by showing a reasonable probability that he would have obtained a better
plea bargain had his attorney moved to suppress his confession.
                       MOORE v. CZERNIAK                     9803
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

, 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.

   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
9804                  MOORE v. CZERNIAK
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., 

, 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, 

, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an
issue not passed upon below.”); Kimes v. Stone, 

,
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-
                       MOORE v. CZERNIAK                     9805
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, 

, 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., 

, 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., 

, 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, 

, 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
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, 

(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 

(holding in an AEDPA case that
9806                      MOORE v. CZERNIAK
“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, 

, 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,

, 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 confession was
obtained unlawfully, along with its and the state’s exclusive
reliance on the other “confessions” to establish prejudice,
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 9811-12. 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-
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.
  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                     9807
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 Str-
ickland. 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.
9808                   MOORE v. CZERNIAK
   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,” 

(quoting 

(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.

   [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 severe mandatory twenty-five-year
sentence—the same sentence received by a co-defendant after
trial. As a result, our confidence in the outcome is under-
mined. Accordingly, Moore is entitled to a writ of habeas cor-
pus directing the state to permit him to withdraw his plea or
                          MOORE v. CZERNIAK                           9809
to release him from custody.28 Accordingly, we reverse the
district 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 9882, 9883. 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 chal-
lenge 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 in a manner that warrants granting habeas relief under
AEDPA. That we have done.
9810                      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, 

(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, 

, 127-28 (1968).
                       MOORE v. CZERNIAK                       9811
   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 9855, 9858. 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
9857 (“[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 9858. 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.
9812                  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, 

(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, 

, 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, 

, 644 (2004) (plurality
opinion) (“[T]he Court requires the exclusion of the physical
fruit of actually coerced statements . . . .” ); United States v.
Gonzalez-Sandoval, 

, 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,

, 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, 

, 1157-58
                           MOORE v. CZERNIAK                           9813
(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 

(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 

(quoting Nardone v. United States, 

, 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 9857 n.13. 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
    That 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.
9814                  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            9815
                    Volume 2 of 3
9816   MOORE v. CZERNIAK
        APPENDIX B
MOORE v. CZERNIAK   9817
9818   MOORE v. CZERNIAK
MOORE v. CZERNIAK   9819
9820   MOORE v. CZERNIAK
MOORE v. CZERNIAK   9821
9822   MOORE v. CZERNIAK
MOORE v. CZERNIAK   9823
9824                  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, 

(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, 

(1984), and Kimmelman v. Morrison, 

(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                     9825
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 

(emphasis added). This prejudice standard is a
generic one, and ordinarily governs ineffective assistance of
counsel cases. See, e.g., Wilson v. Henry, 

, 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:
9826                      MOORE v. CZERNIAK
   First, Moore need only show a “reasonable possibility” of
a different outcome. Strick

; 

.

   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, 

,
203 (2001). Glover held that “if an increased prison term did
flow from an error the petitioner has established Strickland prej-
udice.”1 

see also Argersinger v. Hamlin, 

, 32, 37 (1972) (holding that Sixth Amendment right to
counsel applies to any case where “imprisonment even for a
brief period” is possible); 

(quoting Baldwin v. New
York, 

, 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. 

.
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.” 

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. 

.
Thus, it was very likely clearly established even before the Court decided
Glover.
                      MOORE v. CZERNIAK                     9827
defendant] must show that . . . had the motion been granted,
it is reasonable that there would have been an outcome more
favorable to him.” 

.

   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. 

; see also Dis. op. at 9873. The
cases upon which the dissent relies and which Hill cites —
principally, McMann v. Richardson, 

(1970), and
Tollett v. Henderson, 

(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
9828                  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 

.

   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, 

(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-

.

  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                   9829
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 

. 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 Kimmel-
man/Strickland standard is the generally applicable one, and
therefore applies in the first instance here, even assuming that
Hill provides an available alternative route. Cf. Abdul-Kabir
v. Quarterman, 

, 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
9830                  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.

. 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, 

(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                      9831
involves counsel’s performance during the course of a legal
proceeding, either at trial or on appeal.” 

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.” 

   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,” 

, 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-
9832                       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 9786-87 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. 

. It is now constitu-
tionally required that a judge rather than a jury decide the admissibility of
a confession. See 

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                     9833
   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 9876. 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 9876-78. 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 9876 (quoting United States v. Redondo-Lemos, 

, 1299-1300 (9th Cir. 1992), overruled on other
grounds, United States v. Armstrong, 

, 1515 n.5
(9th Cir. 1995) (en banc)). Prosecutorial discretion is, indeed,
broad, although not unfettered. See Wayte v. United States,

, 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 con-
cerns.

   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
9834                      MOORE v. CZERNIAK
first instance, that of the prosecutor. That this assessment
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 Kimmel-
man/Strickland analysis of the defendant’s plea bargain lever-
age is “counterfactual,” will be conducted “in most cases,
years after the decision to offer the challenged plea bargain,”
and may be difficult. Dis. op. at 9875. Unlike Judge Bybee,
however, I do not think that asking courts to consider these
matters poses an “impossible question.”3 See 

prejudice inquiry is always counter-factual — we are asking,
after all, whether there “is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different,” Strick

— 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,

, 1943-44 (2007) (considering whether a capi-
tal defendant was prejudiced by his counsel’s failure to intro-
duce mitigation evidence); Williams v. Taylor, 

,
396-98 (2000) (concluding that a defendant was prejudiced by
counsel’s failure to investigate his background, which would
  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 9874-75, rather than whether it was reasonably
probable that defense counsel could secure such an arrangement.
                       MOORE v. CZERNIAK                      9835
have resulted in additional mitigation evidence); Lopez v.
Schriro, 

, 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 

; Wil-

, 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.” 

. 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
9836                  MOORE v. CZERNIAK
in his application of it. Moore also meets the Kimmel-
man/Strickland standard which I believe also applies, essen-
tially for the same reasons that Judge Reinhardt explains in
the context 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
negotiate a plea bargain with reduced jail time. There is there-
fore a “reasonable probability” that Moore has suffered preju-
dice 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
                      MOORE v. CZERNIAK                    9837
obtained the lowest sentence available under Oregon law for
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 have
insisted on going to trial rather than pleading guilty to felony
murder. 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 9799. 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.” 

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].” 

, 295 (1991) (quotation marks and
citation omitted). See Maj. Op. at 9766-67, 9780, 9794-96,
9838                  MOORE v. CZERNIAK
9798, 9807. The majority’s reliance on 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 con-
fession 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, 

(1986), Strickland v. Washington, 

(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 if
there is any possibility that filing the motion would have
caused a defendant to choose a trial over the plea. The majori-
ty’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 evi-
dence available in the record. See Maj. Op. at 9792-9807.
According to the majority, if counsel has any grounds for
moving to suppress a confession and there is any possibility
the defendant would have gone to trial, the failure to move for
suppression satisfies both prongs of Strickland. It is, abso-
lutely, error and, absolutely, prejudicial.

   The majority’s position is unfathomable. Not only is its
conclusion not supported by Supreme Court authority, see
Hill v. Lockhart, 

(1985), it contradicts the Court’s
holdings. Indeed, the contrary proposition was clearly estab-
lished in McMann v. Richardson: “In our view a defendant’s
plea of guilty based on reasonably competent advice is an
intelligent plea not open to attack on the ground that counsel
may have misjudged the admissibility of the defendant’s con-
fession.” 

, 770 (1970). And, if we needed further
                          MOORE v. CZERNIAK                          9839
evidence, the majority’s opinion contravenes the Court’s most
recent AEDPA decision, Knowles v. Mirzayance, 

, 1420 (2009): “[T]his Court has never required defense
counsel to pursue every claim or defense, regardless of its
merit, viability, or realistic chance for success.” Counsel can-
not be faulted for not going to trial just because a majority of
our court thinks he had “nothing to lose.” 

In fact,
Moore had everything to lose—he could have faced far more
severe charges and even the death penalty. He got good
advice from his counsel and a good deal from Oregon.

  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, 

, 654 (2006); Clark v. Murphy,

, 1069 (9th Cir. 2003). For an ineffective assis-
tance of counsel claim, the clearly established Federal law
that governs is Strickland v. Washington, 

(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.” 

.1
  1
    To meet the first prong, “the defendant must show that counsel’s repre-
sentation fell below an objective standard of reasonableness,” Str

, and overcome the “strong presumption that counsel’s
performance falls within the ‘wide range of professional assistance,’ ”

(quoting 

-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
9840                       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 9780-82. I note that, were
the issue preserved, a persuasive argument could be made that
the confession was in fact given voluntarily. Since the state—
inexplicably2—has not pressed this issue on appeal, I proceed
on the assumption that Moore has demonstrated that his con-
fession was involuntarily given.3 However, that the state for-

sufficient, condition for a successful showing of incompetence is that the
motion would have been meritorious. See 

,
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.” Strick

.
   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, 

, 513 (1963) (quoting
Lynumn v. Illinois, 

, 534 (1963)); see also United States v.
Guerrero, 

, 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
                           MOORE v. CZERNIAK                            9841
feited its argument concerning Moore’s confession on appeal
does not mean that the state has conceded the substantive
merit of the issue, as the majority assumes it does. Thus the
majority’s claims that the state concedes both that Moore’s
taped confession was unconstitutional, Maj. Op. at 9766, and
that a motion to suppress the confession would have been suc-
cessful, Maj. Op. at 9789, are unwarranted and misleading.

   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. To the contrary, the Supreme Court recently held that
an attorney is not even deficient if he declines to pursue a
strategy despite there being “nothing to lose” by pursuing that
strategy. Knowles v. Mirzayance, 

, 1419 & n.3
(2009).4 Counsel “is not required to have a tactical reason—

even to “buttress[ the majority’s] conclusion that [counsel’s] performance
was highly deficient.” Maj. Op. at 9781-82 & n.11. The majority’s discus-
sion of the Miranda claim in footnote 11 is thus double dicta—resolving
the Miranda claim is unnecessary to the majority’s decision, and its dis-
cussion is way beyond our charge under AEDPA. Likewise is the assertion
that Moore’s confession was inadmissible. 

n.27. I will not pro-
long my dissent 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.
   4
     Knowles involved a defendant who plead not guilty and not guilty by
reason of insanity (“NGI”). 

Counsel’s strategy was to seek a
second-degree murder verdict in the first stage of a bifurcated trial, and an
NGI verdict in the second stage. 

jury evidently rejected
the evidence of insanity the defendant offered in the first stage of the trial
because it found him guilty of first-degree murder. 

Because
the defendant’s proffered evidence in the second stage of the trial would
have been identical to the evidence offered in the first stage—before the
same jury—counsel advised the defendant not to pursue the NGI plea. 

v. CZERNIAK
above and beyond a reasonable appraisal of a claim’s dismal
prospects for success” for declining to pursue a course of
action. 

If anything, Knowles is a more extreme
case than Moore’s because the Court found that counsel in
Knowles was not deficient despite advising his client not to
pursue his only possible defense—the Knowles defendant
truly had nothing to lose. In contrast, Moore’s counsel elected
not to move to suppress the confession because he doubted its
merits and its ultimate effect. Additionally, though, unlike the
Knowles defendant, Moore had a lot to lose: by going to trial
he risked losing a lenient plea agreement and getting a far
more severe sentence. Had counsel delayed negotiating a plea
while waiting for Moore to be charged so a suppression
motion could be filed, it might have cost Moore the opportu-
nity to plead to such a minimal charge. If counsel in Knowles
was not deficient despite having nothing to lose, surely
Moore’s counsel was not deficient when his client had much
to lose.

   Indeed, the majority’s proposition runs directly counter to
nearly forty years of established Supreme Court precedent,
starting with McMann v. Richardson, 

(1970).
The Court in McMann considered

     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

at 1420-21. The Court, in holding that counsel was not deficient, stressed
that counsel “is not required to have a tactical reason—above and beyond
a reasonable appraisal of a claim’s dismal prospects for success for recom-
mending that a weak claim be dropped altogether.” 

The Court
noted that counsel had carefully weighed the options before making an
informed decision. 

                           MOORE v. CZERNIAK                            9843
      case is too strong to contest and that a plea of guilty
      is the most advantageous course.

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
      range of competence demanded of attorneys in crim-
      inal cases.

 

(second and third emphasis added).

   McMann is on all fours with Moore’s claim.5 Moore asserts
  5
    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 9786 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 

(“[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
9844                       MOORE v. CZERNIAK
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

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, 

, 57-58 (1985). McMann informed the creation of the
first part of the two-part test in Strickland. 

(“[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 

-71)); see also 

(citing McMann);

; accord Langford v. Day, 

, 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
the defendant pled rather than going to trial.” Maj. Op. at 9787 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, 

,
972 (9th Cir. 2006); 

.
                       MOORE v. CZERNIAK                      9845
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
    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
9846                      MOORE v. CZERNIAK
      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
      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),[6] 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
  6
   Unlike Moore, Salyer chose to proceed to trial and was found guilty
of murder, kidnapping, burglary, and assault. See Salyer v. Belleque, 

, at *1 (D. Or. March 4, 2005).
                         MOORE v. CZERNIAK                        9847
      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,[7] 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
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, 

(“[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.” 

(emphasis added).
The majority’s opinion sweeps all of these factors away. Had
the majority been advising Moore at the time, they might have
  7
   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.
9848                      MOORE v. CZERNIAK
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,” 

, Moore is not entitled to habeas relief. See 

   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 9766-67, 9778, 9780, 9784-85 & n.12. The major-
ity 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, 

, 972 (9th
Cir. 2006); see Maj. Op. at 9784-85.

   The extensive portions of the affidavit already quoted make
clear that counsel’s advice to forego the motion and take the
plea was based on numerous considerations other than these
two factors. But see Maj. Op. at 9785-88. 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.8 Another entire paragraph
  8
   The affidavit indicates that trial counsel properly informed Moore that
the offer to him was independent of the offer made to his brother.
                           MOORE v. CZERNIAK                           9849
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 9790 n.16, ignores the reality of the record evidence.9

   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.” 

; 

. 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.

   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
9784-90. 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-
  9
   Contrary to the majority’s claims, see Maj. Op. at 9785-87, 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.
9850                   MOORE v. CZERNIAK
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 9780 (“[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,

(1991), see Maj. Op. at 9795-96 (“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
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 9784.

   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
                          MOORE v. CZERNIAK                         9851
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.

-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
to the negotiation table. In those cases, the post-motion deal
will nearly always be worse than the pre-motion deal.10

  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
  10
    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.
9852                  MOORE v. CZERNIAK
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-
fered prejudice as a result. Unlike the majority, however, I do
not believe that Moore has demonstrated prejudice. To dem-
onstrate prejudice under Strick

, 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.” 

In Hill v.
Lockhart, 

, 57-59 (1985), the Supreme Court
applied Strickland “[i]n the context of guilty pleas” and held
that “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.” 

   There is no reason to believe that Moore would have gone
to trial. In fact, the state’s case against Moore was so strong
                          MOORE v. CZERNIAK                         9853
that it would have been irresponsible for counsel to lead
Moore into thinking he might have gotten a better deal from
a jury than he received from the DA. As I explain here, by
declining the plea of felony murder and taking the mandatory
minimum of twenty-five years, Moore risked getting a life or
even a death sentence.

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.11 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 9773-74; 

(suggesting Raymond and Ziegler “would undoubtedly
be reluctant to do unnecessary harm to [Moore’s] case”); 

(“[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 . . . .”); 

(“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.”), because the record contains
Raymond’s testimony at the state court post-conviction evi-
dentiary 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 hap-
pened. Here is how Raymond described it, under oath, to the
state court:

       [W]hen [Roy Salyer] got back from Texas and dis-
  11
    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
9824-25. I address her arguments in Part II.C, infra.
9854                  MOORE v. CZERNIAK
    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 Lon-
    nie and at the time he had taken it, Mr. Rogers had
    slipped backwards on the mud and the gun dis-
    charged. I’m not 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.
                      MOORE v. CZERNIAK                     9855
at 9774, 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
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.
9856                       MOORE v. CZERNIAK
   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.12 Since all of these
witnesses were Moore’s close relatives or good friends, their
testimony would likely have been very credible.
  12
     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 9799 & 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
9799-9800. 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 9843-44, the affidavit
clearly states that Moore admitted to making a full confession to Ziegler.
Contrary to the majority’s assertions, see Maj. Op. at 9799-9800 & n.24,
the state court’s ruling that Moore confessed to Ziegler did not conflict
with the interrogation transcript: Just because Ziegler learned of the mur-
der on the day of the interrogation does not mean that she learned of it at
the interrogation.
   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.
                           MOORE v. CZERNIAK                           9857
   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.13

   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
   13
      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
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.
9858                  MOORE v. CZERNIAK
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
case against Moore could hardly have been any stronger
unless the murderers had brought along a camera crew.

   Moreover, the evidence was such that Moore could have
been tried for a variety of other crimes instead of or in addi-
tion to felony murder. Had Moore not pled to felony murder,
the DA could have tried Moore for aggravated murder, which
carries a sentence of life imprisonment, life imprisonment
without the possibility of parole, or death. See OR. REV. STAT.
§§ 163.095(1)(e), 163.105. Likewise, Moore could have been
tried for other types of criminal homicide, any of which
would carry a sentence of life imprisonment. See 

CZERNIAK                     9859
§ 163.115(5)(a). In addition to the homicide charge, Moore
could and likely would have also been charged with other
crimes, including kidnapping. Finally, the possibility of
Moore’s being charged with such crimes was forefront in
counsel’s mind when he discussed the plea with Moore. As
counsel testified:

    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 possi-
    ble that when an indictment 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 defi-
    nitions of “aggravated murder,” “murder,” and “fel-
    ony 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
    result of intentional maiming or torture, that it was
    not impossible that he might be convicted of aggra-
    vated murder . . . .

   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 9814 (“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
9860                       MOORE v. CZERNIAK
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 9803 (emphasis in orig-
inal),14 in contrast to its own reliance on “the arguments made
by the state on appeal,” 

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-
defendants who have pled guilty—simply does not exist.15
Indeed, Moore himself does not expect us to do so; he specifi-
  14
      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 9796-98; see also supra at 9853 n.11.
   15
      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 9805 (“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 9768 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 9791.
                          MOORE v. CZERNIAK                          9861
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.16
As to the substance of their testimony, even if it were not as
complete as their formal confessions to police, had Moore
been on trial for felony murder, the state needed to prove pre-
cious few details of the day’s events to secure a conviction.17

   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.

   The majority’s opinion correctly quotes the applicable stan-
dard of prejudice for ineffective assistance of counsel claims
arising from guilty pleas: the petitioner 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 Supreme Court reaf-
  16
      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 9811, and is therefore inadmissible is simply wrong
because Woolhiser could have been called to testify directly.
   17
      The majority cites Lee v. Illinois, 

, 545 (1986), for the
proposition that testimony by co-defendants is “inherent[ly] unreliab[le].”
See Maj. Op. at 9775 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,

, 66 (1980), which is no longer good law. See Crawford v.
Washington, 

(2004).
9862                      MOORE v. CZERNIAK
firmed Hill in Roe v. Flores-Ortega, 

(2000),
stating:

       [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.

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.” 

   The majority’s position, then, is that there is a reasonable
probability that, but for his counsel’s failure to move to sup-
press the taped confession, Moore would not have pled to fel-
ony murder, but instead would have insisted on going to trial.
The majority speculates that it is likely the state would have
been unable to secure a plea bargain with “only” the two con-
fessions and other evidence catalogued above.18 In support of
  18
    The majority claims that if Moore’s taped confession had been sup-
pressed, the state may have offered Moore a better plea bargain. Maj. Op.
9802 n.26. This possibility is both unlikely and irrelevant. Considering the
weight of the evidence, it is speculative and unlikely that the state would
have offered Moore a different plea bargain had one of multiple confes-
sions been suppressed. Moreover, the lost possibility of negotiating a more
favorable plea bargain, which I do not believe exists here in any event,
does not constitute prejudice under any Supreme Court authority. The
Supreme Court has held unequivocally that “in order to satisfy the ‘preju-
dice’ 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.” 

(emphasis
added).
                         MOORE v. CZERNIAK                         9863
this proposition, the majority points out that we don’t know
with certainty what Raymond and Ziegler would have testi-
fied to at trial, so we can’t know that their testimony would
have been sufficient to cause Moore to accept a plea bargain.
Maj. Op. at 9799-9800.

   Moore’s counsel did not have the benefit of the majority’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 testify-
ing. No one knows with prescient certainty how a trial will
play out, so a defendant and his counsel must weigh their
options and decide whether the certainty of a plea is prefera-
ble to the gamble one takes by being tried.

   The majority also makes much of the fact that Salyer went
to trial and received the same sentence as Moore did from his
plea bargain: twenty-five years.19 Maj. Op. at 9788, 9789
n.15, 9802. This simply is not relevant. First, Moore’s counsel
did not have the benefit of this knowledge at the time he was
discussing the plea bargain with Moore. Additionally, one
cannot infer with any certainty how one defendant will fare in
a trial from how a different defendant fared. And, Salyer is
not a good test case of what would have happened had Moore
gone to trial because Salyer was not the one who pulled the
trigger; it was Moore who marched Kenneth Rogers up the
hill and it was Moore who held the gun that shot Rogers
through the temple. Thus, there is every reason to expect
Moore to be susceptible to more serious charges and a harsher
sentence and little reason to think that Moore would be
charged only with the same crimes as Salyer. Maj. Op. at
9789 n.15. Moreover, the majority uses Moore’s and Salyer’s
similar sentences as evidence of the raw deal Moore got by
  19
    Salyer was sentenced to twenty-five years for murder, ninety months
for kidnaping, seventy months for assault, and twenty-two months for bur-
glary, all of which ran concurrently. See Salyer v. Belleque, 

, at *1 (D. Or. 2005).
9864                  MOORE v. CZERNIAK
accepting a plea bargain. However, Moore’s plea bargain of
twenty-five years is no harsher than the sentence Salyer
received. If Salyer’s fate suggests anything, it is that, at the
least, Moore did no worse by accepting the plea bargain than
he would have done by going to trial. The majority claims that
Moore suffered prejudice because a less culpable co-
conspirator, who did not pull the trigger, received the same
sentence. Maj. Op. at 9811. How this constitutes prejudice is
beyond me.

   This much is clear: There was more than enough admissi-
ble evidence, easily obtainable by the state, to convict Moore
of (at least) felony murder—especially and most importantly,
as the state court recognized, the likely testimony of Raymond
Moore and Debbie Ziegler. When we consider the surfeit of
evidence against Moore, it is plain that not only was counsel’s
advice to accept the plea not deficient or prejudicial, but 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 rationaliza-
tion.’ ” Maj. Op. at 9791 (quoting Wiggins v. Smith, 

, 526-27 (2003)). In short, there is no reason to think that
removing one brick in the state’s wall of evidence would have
caused Moore to subject himself to a high-stakes trial and
therefore no reason to conclude that he suffered any prejudice.

B.     The Majority’s Reliance on Fulminante

   Ultimately, the majority opinion rests on the premise that
the state court’s decision resulted in an unreasonable applica-
tion of Arizona v. Fulminante, 

(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 rein-
forces and corroborates the others and is therefore prejudi-
cial.” Maj. Op. at 9796-97. Fulminante does no such thing. It
                           MOORE v. CZERNIAK                           9865
did not, as the majority’s characterization suggests, adopt a
per se rule that the improper admission of a confession is prejudi-
cial;20 in fact, Fulminante explicitly held that the improper
admission of a confession is subject to harmless error analy-
sis. 

. 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 9798 (alteration in original),
that a “defendant’s own confession is probably the most pro-
bative and damaging evidence that can be admitted against
him,” 

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 tes-
tify about them in court. Thus, Fulminante does not suggest—
let alone hold—that Moore was prejudiced because his con-
fession to police was not suppressed. In fact, it supports the
exact opposite conclusion—that Moore’s two confessions to
Raymond and Ziegler were already so damaging to his case
  20
     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 9796 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 9796. If that sentence does not adopt
a per se rule, it comes dangerously close.
9866                  MOORE v. CZERNIAK
that the admission of his confession to police would do him
no further harm. By the majority’s own logic, Moore’s con-
fessions to Raymond and Ziegler were “like no other evi-
dence” and were “probably the most probative and damaging
evidence . . . against [Moore].” Maj. Op. at 9798.

   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 9766. 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.” 

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.” 

see also 

(“[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 9807. 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. 

. The Fulminante Court found the admission of the
first confession not to be harmless, not because it was more
                         MOORE v. CZERNIAK                        9867
weighty than the second one, but because of a unique relation-
ship between the two confessions—the veracity of the second
was bolstered by the existence of the other. 

Here, no such relationship exists.21

   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 9807, but 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 

. But see Maj. Op. at 9799 (“[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 . . . .”); 

(“[W]e are left
only with determining 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.”). 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.”

(White, J., dissenting) (internal
quotations and citations omitted). But we are dealing with a
plea bargain here. The question is whether a reasonably com-
petent attorney would have advised Moore differently when
  21
     The majority’s accusation that, under my logic, Fulminante “would
have come out the opposite way,” Maj. Op. at 9801, is thus flatly incor-
rect.
9868                  MOORE v. CZERNIAK
faced with this evidence, and, if so, whether that would have
led Moore to go to trial instead of pleading guilty.

   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.” 

. 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.” 

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 

   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,
and the confessions were not linked in the same way that Ful-
                           MOORE v. CZERNIAK                            9869
minante’s confessions to the two Sarivolas were.22 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.23
  22
      On the contrary, the confessions in this case bear far more resem-
blance to the confessions in Milton v. Wainwright, 

(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. 

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 9797 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.
   23
      The majority claims that Anderson v. Terhune, 

(9th Cir.
2008) (en banc), supports its remarkable reading of Fulminante. See Maj.
Op. at 9801-02. 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 9801. 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 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            9871
                    Volume 3 of 3
9872                  MOORE v. CZERNIAK
   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 

, 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.

C.     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 9824-25. How-
ever, Judge Berzon views the Kimmelman/Strickland frame-
work as more appropriate for resolving this case because Hill
governs prejudice determinations in plea bargains concerning
counsel’s advice on whether to take the plea, after “motions
practice and discovery have set the legal landscape.” 

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 merito-
rious suppression motion.” 

Judge Berzon con-
cludes that the Kimmelman standard, applied in the plea
context, permits prejudice to be established by showing that
had defense counsel properly shaped the legal landscape prior
to the plea proceedings, the defendant might have obtained a
more favorable plea bargain from the prosecutor. 

The distinction she attempts to draw is precluded not only by
                       MOORE v. CZERNIAK                     9873
Hill itself, but also by the vast weight of precedent in both the
courts of appeals and the district courts. Her “legal landscape”
argument 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
powers.

   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, 

, 770-72 (1970)].” Tol-
lett v. Henderson, 

, 267 (1973); see also

-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
attorneys in criminal cases.”); Ortberg v. Moody, 

, 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

)).

   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
9874                  MOORE v. CZERNIAK
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.” 

. 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.” 

“[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.” 

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
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 9827-28, 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
                      MOORE v. CZERNIAK                    9875
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 9828-29. 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.” 

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, 

, 607 (1985); see also United States v.
Estrada-Plata, 

, 760 (9th Cir. 1995) (“[T]here is
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
9876                      MOORE v. CZERNIAK
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, 

, 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.24 Conducting this
type of inquiry into whether a better plea bargain would have
been available would require the kind of judicial review of
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
  24
    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.
                      MOORE v. CZERNIAK                       9877
    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
    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, 

, 1299-1300
(9th Cir. 1992) (footnotes and citations omitted), overruled on
9878                  MOORE v. CZERNIAK
other grounds, United States v. Armstrong, 

,
1515 n.5 (9th Cir. 1995) (en banc); see also 

(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, 

,
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, 

,
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, 

, 464 (1996)) (inter-
nal quotations removed)); 

(“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
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
9828-29. 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 

-1300.
                          MOORE v. CZERNIAK                           9879
   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 9833-34.
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.” 

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, 

I fail to see
how that could be done without looking at the prosecution’s
decisions “in the first instance.” 

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.25

   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, 

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 9825. See, e.g., 

(9th Cir. 2006) (applying Hill to counsel’s fail-
ure to investigate mental defect defense); 

(using Hill in guilty plea case alleging ineffective
  25
     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.
9880                       MOORE v. CZERNIAK
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.26 Given that the federal courts
   26
      See, e.g., Gilbert v. Merchant, 

, 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 

)); United
States v. Salazar, 

, 857 (10th Cir. 2003) (applying Hill to
determine if defendant who pled guilty “should be allowed to pursue his
suppression claim”); 

; Banks v. Hanks, 

, 1189 (7th Cir. 1994); Hale v. Lockhart, 

, 548-50
(8th Cir. 1990); United States v. Carasis, 

, 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 

)); Hibbert v. Poole, 

, 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, 

, 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, 

, 1447 (D. Mont. 1995).
                       MOORE v. CZERNIAK                     9881
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 9832, 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.” 

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.” 

Court would have had difficulty being more
clear than it was in Hill about the proper prejudice standard
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, 

,
654 (2006) (“Given the lack of holdings from this Court
9882                   MOORE v. CZERNIAK
. . ., 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 Hill to permit satisfaction of Strickland’s preju-
dice prong by demonstrating simply that a more favorable
plea might have been obtained. Although Judge Berzon
couches her argument as giving defendants the choice of
proving prejudice under what is commonly perceived as the
more difficult Strickland standard rather than proving preju-
dice 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 vio-
lates principles of federalism and separation of powers, and
ignores Supreme Court precedent on how to conduct the prej-
udice inquiry following plea agreements. Even if I were to
agree that an ambiguity about the relationship between Hill,
Kimmelman, and Strickland existed, it is not our job on
AEDPA review to resolve it.

                     III.   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
                      MOORE v. CZERNIAK                     9883
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.

   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.
9884                  MOORE v. CZERNIAK
CALLAHAN, Circuit Judge, with whom KLEINFELD,
TALLMAN, BYBEE, BEA, and N.R. SMITH, Circuit
Judges, join, dissenting from denial of rehearing en banc:

   I respectfully dissent from the order denying rehearing en
banc. The panel’s opinion fails to follow the standard for
determining ineffective assistance of counsel set forth by the
Supreme Court in Strickland v. Washington, 

(1984). In particular, it fails to follow Supreme Court guid-
ance on deference and improperly conflates the distinct con-
cepts of deficient performance and prejudice, holding, in
essence, and incorrectly, that because counsel’s performance
was deficient, it was also prejudicial. Furthermore, the major-
ity fails to accord the state court decision the deference the
Supreme Court has held it is due under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d)(1). See Knowles v. Mirzayance, 

,
1419-20 (2009). We should have reheard this case en banc to
correct these departures from the Supreme Court’s guidance
and to ensure that the panel’s opinion not give rise to a wave
of new post-conviction petitions second-guessing acts by
defense counsel engaged in prior to the defendants’ pleas.

                               I

   Several salient facts control this case and undermine the
panel’s findings of deficient performance and prejudice. First,
we should focus on the reasons proffered by counsel for not
filing a motion to suppress, not because the motion would not
have been successful, but because the reasons bear on the real
issue in this case: whether the attorney rendered ineffective
assistance by counseling Moore to accept the plea bargain.
The first two reasons were that (1) Moore did not think he
was in custody, and (2) Moore had previously made a full
confession to his brother, Raymond, and a woman named
Debbie Ziegler. Affidavit of Kim Jordan, pp. 1-2. The third
reason, which is also set forth in the attorney’s affidavit, is
                           MOORE v. CZERNIAK                           9885
that Moore affirmed to counsel that the confession he had
given to the police was accurate.1

   Second, any evaluation of counsel’s decisions should take
into account the quantum of evidence that counsel could rea-
sonably have expected the prosecutor to have gathered, even
if Moore’s confession were suppressed. As persuasively set
forth by Judge Bybee in his dissent, counsel recognized that
the prosecutor had a very strong, if not air-tight case, regard-
less of Moore’s confession.2 When these essentially undis-
  1
   Counsel’s affidavit states:
      I do not recollect any material statement of fact in the police
      report with which Mr. Moore disagreed. 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 kid-
      nap which began with an assault.
Jordan Affidavit pp. 2-3. She further states:
      Mr. Moore believed that he was guilty of murder under the felony
      murder rule, although he felt that it was very unfortunate and
      lamentable that he was guilty since he always maintained that the
      actual firing of the shot was an accident rather than a premedi-
      tated act.
Jordan Affidavit p. 5.
  2
    Judge Bybee notes:
         Under section 163.115 of the Oregon Revised Statutes, Rog-
      ers’s killing was a felony murder if “it [was] committed by a per-
      son, . . . who commit[ted] or attempt[ed] to commit [kidnaping
      or assault] and [the death occurred] in the course of and in fur-
      therance of the crime the person [was] committing 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 a remote location, and shot
      in the temple. It is indisputable that Moore, Salyer, and Wool-
      hiser, by virtue of their involvement in the felonies of kidnaping
      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
9886                      MOORE v. CZERNIAK
puted facts are considered, counsel’s decision not to file a
motion to suppress, even though based on a mistaken under-
standing of the law, was neither unreasonable nor prejudicial.

   Furthermore, in light of the other evidence that counsel rea-
sonably expected the prosecutor to gather legally, it is impor-
tant to recognize that the charge Moore pled to was felony-

    to do was prove that he took part in Rogers’s kidnaping and that
    the murder furthered the kidnaping.
       This would not have been hard. The state had both Roy Salyer
    and Lonnie Woolhiser in custody, and both could have been cal-
    led to testify that Moore took part in the attack. The state court
    found that Moore and Woolhiser had also confessed to their older
    brother Raymond Moore as well as to Woolhiser’s girlfriend,
    Debbie Ziegler. . . . . Before they left for Rogers’s residence,
    Salyer, Moore, and Woolhiser had been drinking with others at
    Ziegler’s residence. Salyer was “ranting 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 con-
    front him about the robbery and to scare him out of ever commit-
    ting another one. Four witnesses, 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. . . . . 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.
Moore v. Czerniak, 

, 1181-82 (9th Cir. 2008) (Bybee, J.,
dissenting) (footnotes omitted).
                           MOORE v. CZERNIAK                           9887
murder. Counsel’s concern had to be that Moore would be
charged with aggravated murder, which would have poten-
tially subjected him to the death penalty or life imprisonment.
See Moore v. Czerniak, 

,1176-77 (9th Cir.
2008) (Bybee, J., dissenting). Moore admitted that he had
held the gun and had fired a single shot through Rogers’s tem-
ple, causing his death.3 Moore’s claimed lack of intent is
hardly compelling, and his counsel thought it “would have
been malpractice” not to alert Moore to the possibility that he
might be charged with aggravated murder. See Jordan Affida-
vit pp. 3-4. Thus, counsel had very good tactical reasons, even
compelling reasons, for advising Moore to plead no-contest to
the charge of felony-murder.4

   The fact that Moore had substantial, if not compelling, rea-
sons to accept the plea bargain of felony-murder makes it very
difficult to reconcile the majority’s opinion with the Supreme
Court’s recent opinion in Mirzayance. In that case, the
Supreme Court overruled our holding that counsel had ren-
dered ineffective assistance of counsel by withdrawing a not
guilty by reason of insanity (NGI) plea after the jury con-
victed Mirzayance of first-degree murder because the defen-
  3
   Even the panel’s description of Moore’s version of the facts fails to
place Moore in a good light:
      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.

.
   4
     The panel cites the fact that Salyer went to trial and received the same
twenty-five year sentence as Moore as suggesting that Moore did not ben-
efit from his plea bargain. See 

n.15. This asser-
tion, however, overlooks the fact that Moore, not Salyer, held the murder
weapon and fired the single shot that killed Rogers. Thus, Salyer did not
face the same risk as Moore did of being charged with aggravated murder.
9888                  MOORE v. CZERNIAK
dant had nothing to lose from pursuing the NGI plea.

. Here, however, counsel, by
arranging for Moore to plead no-contest to felony-murder,
spared Moore from facing the possibility of the death penalty
or life in prison. While a twenty-five year prison term may
appear to be a long sentence, the finite nature of the term
presents significant advantages to Moore. Moore saves his life
and is assured of release from prison when he completes his
twenty-five year term or is released early on parole or for
good behavior. Unlike the situation in Mirzayance, where the
defendant would not have been worse off if counsel had pur-
sued the NGI plea, here, a failure to accept the plea bargain
could have subjected Moore to a trial for aggravated murder
with the possibility of the death penalty or life imprisonment.

   The panel’s concern with the motion to suppress rather than
the plea also fails to appreciate McMann v. Richardson, 

(1970) and United States v. Ruiz, 

(2002). In McMann, the Supreme Court reasoned:

       In our view a defendant’s plea of guilty based on
    reasonably competent advice is an intelligent plea
    not open to attack on the ground that counsel may
    have misjudged the admissibility of the defendant’s
    confession. Whether a plea of guilty is unintelligent
    and therefore vulnerable when motivated by a con-
    fession 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 range of competence demanded of attor-
    neys in criminal 

(footnote omitted). In Ruiz, the Court, in
reversing the Ninth Circuit’s holding that required impeach-
ment evidence to first be disclosed before a plea agreement
would be held voluntary, observed “that the Constitution, in
respect to a defendant’s awareness of relevant circumstances,
                      MOORE v. CZERNIAK                   9889
does not require complete knowledge of the relevant circum-
stances, but permits a court to accept a guilty plea, with its
accompanying waiver of various constitutional rights, despite
various forms of misapprehension under which a defendant
might 

. Here, regardless of the propri-
ety of his confession to the police, Moore was informed of all
the circumstances of the underlying crime, and his counsel
reasonably understood that the state had more than sufficient
evidence to convict Moore even without his confession. Pur-
suant to McMann and Ruiz there are no grounds for disturbing
Moore’s plea of no contest.

   The Supreme Court has repeatedly stated that the “proper
measure of attorney performance remains simply reasonable-
ness under prevailing professional norms,” that “[j]udicial
scrutiny of counsel’s performance must be highly deferen-
tial,” and that “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” 

(quoting 

-89). Even accepting that
counsel should have filed a motion to suppress, and that it
would have been granted, the case against Moore would have
remained overwhelming and accordingly, counsel’s advice to
plead no-contest to the charge of felony-murder was neither
deficient nor prejudicial.

                              II

   Furthermore, our own views of counsel’s competence are
only tangentially relevant. As the panel recognizes, “we may
grant habeas relief only when the state court’s decision was
‘contrary 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
determination of the facts in light of the evidence presented
in the State court proceeding.’ 28 U.S.C. 2254(d).” 

. In Mirzayance, the Supreme Court noted
that under AEDPA, determinations of ineffective assistance of
9890                  MOORE v. CZERNIAK
counsel are entitled to double 

.
The question “ ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard
‘was incorrect but whether that determination was unreason-
able — a substantially higher threshold.’ ” 

v. Landrigan, 

, 473 (2007)). Moreover,
“because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.” Mirzayance, 129 S.
Ct. at 1240.

   Here, the state court held a hearing on Moore’s post-
conviction petition and denied relief. 

. The state court thought that counsel’s failure to file a
motion to suppress was reasonable, and it also found that the
motion would have been “fruitless” because Moore had previ-
ously confessed to Raymond and Debbie Ziegler. 

filed his federal habeas petition, the district court also
found that there was no ineffective assistance of counsel
because of Moore’s prior confession and the potential adverse
testimony of Salyer. 

   The panel argues that Raymond’s and Ziegler’s testimony
would not have been as powerful as Moore’s confession. See

Whether or not true, the panel does not answer the
critical question: whether it was reasonable for the state court
to determine that in light of Raymond’s and Ziegler’s poten-
tial testimony, as well as all the other evidence connecting
Moore to the kidnaping and shooting, the motion to suppress
would have been “fruitless.” In light of the other evidence
available to the prosecutor, the fact that Moore had admitted
that he committed the underlying crime to his counsel (and
others), and the possibility that Moore could be charged with
aggravated murder in addition to felony-murder, counsel’s
decision to forego the motion to suppress and to recommend
a no-contest plea to a charge of felony-murder, was certainly
a reasonable decision.
                          MOORE v. CZERNIAK                         9891
   It follows under the Supreme Court’s reading of AEDPA in
Mirzayance, that even when the panel concluded that the state
court’s determination that the motion to suppress would be
fruitless was incorrect, it should nonetheless have deferred to
that decision because it is not objectively unreasonable. See

. Here, for the reasons well
articulated by Judge Bybee in his dissent to the panel’s opin-
ion, the state court’s and the district court’s determinations
that Moore did not receive ineffective assistance of counsel if
not correct are nonetheless clearly not unreasonable.5

                                   III

   The panel’s erudition cannot hide the problematic nature of
its decision when the case is reviewed on its stark facts. In
1995, Moore admitted to participating in the kidnaping of
Rogers and subsequently told at least two persons that during
the kidnaping he had fired the single shot that had killed Rog-
ers. Counsel managed to secure a no-contest plea to a charge
of felony-murder that resulted in a twenty-five year prison
term. Now, some fourteen years later, the majority would
vacate the conviction and sentence because counsel failed to
file a motion to suppress Moore’s confession to the police.
This confession, however, was made after Moore had con-
fessed to two other persons. Moreover, Moore and his counsel
did not think that his confession had been coerced, and Moore
has never questioned the veracity of his confession.

  The panel argues that a motion to suppress the confession
should have been made and would have been successful. But
under the Supreme Court’s opinions in 

-71, 

, and 

, such a determination does not entitle Moore to relief.
  5
   In Mirzayance, the Supreme Court commented: “[b]ut, courts of
appeals may not set aside a district court’s factual findings unless those
findings are clearly erroneous. Fed. Rule Civ. Proc. 52(a); Anderson v.
Bessemer City, 

, 573-574 . . . 

.
9892                  MOORE v. CZERNIAK
Rather, he must show that (a) counsel’s overall performance,
particularly the advice to plead no-contest to felony-murder,
was deficient, (b) counsel’s performance and advice was prej-
udicial, and (c) the state court’s contrary determination was
objectively unreasonable. The underlying facts in this case
simply do not support such determinations. We should have
taken this case en banc to correct the panel’s conflation of the
performance and prejudice prongs of the Strickland standard
for ineffective assistance of counsel and its failure to follow
the Supreme Court’s guidance on deferring to counsel and to
the reasonable determinations of state courts and district
courts.

   Finally, and equally important, the practical implications of
our failure to take this case en banc are significant. The panel
opinion creates out of whole cloth a new area of potential
habeas relief where defense counsel is faced with a “Morton’s
Fork” — a choice between two equally unpleasant alterna-
tives. Filing a motion to suppress might have weakened the
prosecutor’s hand, possibly, but not necessarily or even prob-
ably, resulting in the prosecutor offering a better deal. How-
ever accepting the plea bargain when offered protected the
defendant from exposure to a much harsher sentence. As if
labeling as ineffective defense counsel’s resolution of such an
impossible dilemma weren’t bad enough, the panel opinion
also sanctions federal habeas relief on this basis even where
the strategy foregone has been declared “fruitless” by a state
court. We should have taken this case en banc to ensure that
the panel’s opinion does not give rise to a wave of new post-
conviction petitions second guessing defense counsel’s every
forbearance.
                      MOORE v. CZERNIAK                    9893
BEA, Circuit Judge, with whom, KLEINFELD, TALLMAN,
CALLAHAN, BYBEE, and N.R. SMITH, Circuit Judges,
join, dissenting from the order denying the petition for rehear-
ing en banc:

   One of two things must be true. Either (1) the majority’s
conclusion that Randy Moore suffered prejudice depends on
some egregious and highly creative appellate fact-finding by
which the majority concludes that Moore’s confessions to his
brother and a friend lacked inculpatory detail; or (2) the
majority has invented a new, virtually per se rule that coun-
sel’s failure to file a meritorious motion to suppress a defen-
dant’s confession to the police always entitles a habeas
petitioner to relief under Strickland, no matter how many
other people the defendant confesses to. In either case, rehear-
ing was warranted to correct the panel’s error. I join fully in
Judge Callahan’s dissent from the order denying rehearing en
banc, but write separately to emphasize my concern with the
majority’s treatment of the state court’s factual determina-
tions.

   The facts, briefly, are these: Randy Moore, along with two
accomplices, Lonnie Woolhiser and Roy Salyer, assaulted
Kenneth Rodgers, tied him up, threw him in the trunk of their
car, drove him to an isolated spot, blindfolded him, marched
him into the woods, and then ‘accidentally’ shot him in the
temple at point-blank range. Moore pleaded guilty to felony
murder and was sentenced to 300 months’ imprisonment.
Despite the fact that Moore confessed to being the trigger
man, not once, not twice, but three times, and despite the fact
that Moore told his counsel that these confessions were true,
and despite the fact that the state court found that a motion to
suppress would have been fruitless, the majority holds that
Moore’s counsel’s failure to file a motion to suppress one of
the three separate confessions constituted ineffective assis-
tance of counsel under Strickland v. Washington, 

(1984).
9894                     MOORE v. CZERNIAK
   The majority concludes the state court’s determination
Moore did not receive ineffective assistance of counsel was
unreasonable, at least in part, because the record is devoid of
evidence about which details of the crime Moore divulged in
his confessions to Ziegler and Raymond Moore. Moore v.
Czerniak, 

, 1131 (9th Cir. 2008); 

n.21 (“Moore’s taped confession would have been the only
full account of the events . . . .”); 

(“[I]t is far from
clear what those witnesses would have said [if called to tes-
tify]. . . .”); 

-49 n.24. This, charitably put, is imagi-
native appellate fact-finding made possible only by ignoring
some inconvenient facts in the record.

   To the contrary, Moore’s counsel, Kim Jordan, averred
Moore had given “full”1 confessions to both Ziegler and Ray-
mond Moore. Jordan used this word—“full”—three times in
his affidavit. Jordan’s statement is some of the most probative
evidence we could have of the extent and content of these
confessions—counsel’s knowledge is based, at least in part,
on communications with the defendant, and it is, after all, Jor-
dan’s performance we are now evaluating.

   The state court credited Jordan’s affidavit and found
“[b]oth Raymond Moore and the friend [Ziegler] could have
been called as witnesses to repeat petitioner’s confession. A
motion to suppress would have been fruitless.” In doing so,
the state court even cited to the portion of Jordan’s affidavit
describing the confessions as “full.”

   The majority first concludes this finding is inadequate
because the state court did not expressly find that the two
prior confessions were “full.” This cramped reading is both
incorrect and contrary to longstanding, controlling precedent
regarding implied findings. “[N]ot every finding of fact need
be stated on the record in infinite detail and clarity. . . . When
  1
  Full: “2. Complete in every detail .”
Webster’s II New Riverside University Dictionary 511 (1984).
                       MOORE v. CZERNIAK                     9895
a state trial court holds a hearing on a motion to suppress evi-
dence and rules on the motion, a federal district court may
assume that the state court found the facts necessary to sup-
port the state court’s decision . . . .” Knaubert v. Goldsmith,

, 727 (9th Cir. 1986).

   In any case, says the majority, such a finding of fact, had
it been made, would have been unreasonable under Taylor v.
Maddox, 

, 1000-01 (9th Cir. 2004), because the
state court ignored “highly probative” and “relevant” evi-
dence that contradicts Jordan’s statement that Ziegler heard a
full confession. 

n.24. This “highly
probative” and “relevant” evidence consists, in its entirety, of
Ziegler’s statement to police that she had not heard the details
of Moore’s confession until the day of the police interroga-
tion. That Ziegler heard Moore’s confession for the first time
that day hardly proves she didn’t hear the confession until she
was in the police interrogation room itself; that interrogation
did not begin until the late afternoon. Moore had ample
opportunity to confess to her before he arrived at the police
station. Even Moore’s briefs describe Ziegler’s statements
about when she heard the confession as “ambiguous” and
“equivocal.”

   As important as the evidence that is in the record as to the
fullness of Moore’s confession to Ziegler is the evidence that
isn’t. Moore has not provided a shred of evidence to support
his claims that his confessions to Ziegler and to his brother
Raymond lacked inculpatory detail, that Moore did not con-
fess to Ziegler prior to the police interrogation, or that Ziegler
and Raymond would have been reluctant witnesses at trial.
For example, Moore could have, but did not, offer proof by
way of affidavits or declarations from Ziegler or Raymond to
corroborate his present contentions. As Moore’s habeas coun-
sel explained, “Nobody knows what Raymond Moore, Mrs.
Ziegler, or [Roy] Salyer would have said” at trial. Our igno-
rance on this score is entirely caused by Moore and he must
bear the consequences, for on all aspects of the Strickland
9896                  MOORE v. CZERNIAK
inquiry, Moore bears the burden of proof. Woodford v. Visci-
otti, 

, 25 (2002). The state court reasonably could
have inferred the falsity of Moore’s present claims that his
confessions to Ziegler and brother Raymond lacked critical
details, and hence probative force, from his failure to offer
evidence to buttress them.

   The majority was not free to ignore the state court’s find-
ings as to the completeness of Moore’s confessions to Ray-
mond and Ziegler unless it could point to record evidence
showing such findings of completeness to be objectively
unreasonable. 28 U.S.C. § 2254(d)(2). Here, the panel has
simply substituted its own view of the facts for that of the
state court. Doing so in this case is especially troubling. As
is often the case in habeas proceedings, the record the peti-
tioner has provided is thin and leaves many gaps to be filled
by the finder of fact. But we cannot do so ourselves; that is
the role of the state courts and, under appropriate circum-
stances, the federal district court. It is never our role.

   If the panel majority’s expressed doubts about the fullness
of Moore’s confessions are unnecessary to the decision, then
the need for rehearing is all the more obvious. If such is the
case, the majority has created a new, virtually per se rule that
the failure to file a meritorious motion to suppress a defen-
dant’s confession to the police is always prejudicial. If the
existence of two separate, independent, and mutually corrobo-
rating confessions, given to persons to whom the defendant
was personally close, is insufficient to establish harmless
error, little will be. After all, a “confession is like no other
evidence.” Arizona v. Fulminante, 

, 296 (1991).

   The majority correctly observes that there were also multi-
ple confessions in Fulminante. But the differences between
this case and Fulminante are stark. The second confession in
Fulminante was given: (1) to a single individual; (2) to a vir-
tual stranger, whose only connection to Fulminante was the
fact that she was the wife of the investigating officer; (3) to
                      MOORE v. CZERNIAK                    9897
a person whose credibility was made dubious by her failure
to report Fulminante to the authorities and by the fact that,
after Fulminante confessed, she voluntarily associated with
him despite her stated disgust at his actions; and (4) to a per-
son who reported the confession to authorities under highly
suspicious circumstances. 

Here, Moore’s twin
confessions to close associates—one of them his own brother
—whose testimony the jury would have had little reason to
doubt, bear little resemblance to the single confession in Ful-
minante.

   Even if, on direct appeal, we might conclude that Moore’s
counsel’s failure to file a motion to suppress the confession to
the police entitled Moore to relief under Strickland, it strains
credulity to claim that the state court’s decision was contrary
to, or an unreasonable application of, the Fulminante deci-
sion.

  For these reasons, and the reasons persuasively set forth by
Judges Bybee and Callahan, I respectfully dissent from the
denial of rehearing en banc.