Moore v. Czerniak

• Decision Date: 28 July 2009
• Docket Number: No. 04-15713.,04-15713.
• Citation: 574 F.3d 1092
• Parties: Randy Joseph MOORE, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent of OSP, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

574 F.3d 1092

Randy Joseph MOORE, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent of OSP, Respondent-Appellee.

No. 04-15713.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2005.

Filed July 28, 2009.

Barbara L. Creel, Office of the Federal Public Defender, Portland, OR, for the petitioner-appellant.

Hardy Myers, Attorney General for the State of Oregon, Mary H. Williams, Solicitor General (On the Briefs); Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals Unit, Salem, OR (Argued), for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. CV-01-01795-AJB/JMS.

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

Opinion by Judge REINHARDT; Concurrence by Judge BERZON; Dissent by Judge BYBEE; Dissent to Order by Judge CALLAHAN; Dissent to Order by Judge BEA.

ORDER

The majority opinion, concurring opinion, and dissenting opinion filed on July 28, 2008, slip op. 9397, and appearing at 534 F.3d 1128 (9th Cir.2008), are withdrawn.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 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 concedes were unconstitutional. It does not contest on this appeal the district court's finding that Moore's confession was involuntary. As the Supreme Court has declared emphatically, "[a] confession is like no other evidence. Indeed, `the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.'" Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Inexplicably, Moore's lawyer failed to recognize that the confession to the police was inadmissible, even though it was unconstitutional for not one but two separate reasons.

Counsel's explanation for not filing the motion was, in his words, "two-fold." First, he thought such a motion would not have succeeded because Moore was not in custody when he gave his confession and his confession was voluntary—both clearly erroneous conclusions: the confession was impermissibly extracted as the result of a promise of leniency made by the interrogating officers, and it was also obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as Moore had asked for counsel before making the confession but his request had been ignored. Second, Moore's lawyer erroneously thought that the taped confession was not prejudicial because Moore had told his brother and his half-brother's girlfriend about the crime. In both respects, Moore's lawyer exhibited a remarkable lack of familiarity with, or basic misunderstanding of, controlling principles of constitutional law. As a result of his ineptitude —and, as his affidavit makes crystal 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 colleague, the state does not argue that it possessed other evidence, aside from the two other confessions, that rendered the failure to file the motion harmless. In fact, perhaps mindful of Fulminante's command that, in cases such as this, reviewing courts "exercise extreme caution" before determining that the failure to move to exclude unconstitutional confessions is harmless, 499 U.S. at 296, 111 S.Ct. 1246, 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, Fulminante'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 confession at issue is recorded, is in Moore's own voice, and was made in the formal context of a police interrogation.

In the end, there can be no serious doubt that Moore's counsel was ineffective and that Moore was deprived of his basic constitutional rights under the Sixth Amendment, as clearly established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 nonprejudicial because of his prior statements to others, a conclusion that is contrary to the clearly established law of Fulminante. 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 performance fell below an objective standard of reasonableness. Because we hold that the state court's rejection of Moore's federal constitutional claim was contrary to Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, and constituted an objectively unreasonable application of Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, 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 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 Woolhiser 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. Subsequently, as the district court found, both Moore and Woolhiser 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 personal and working relationship with the investigating officers. Moreover, these officers had been involved in the investigation 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 further 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, without counsel. They were accompanied by Raymond, and also by Woolhiser's girlfriend, Debbie Ziegler.

When the four arrived at the police station, the investigating officers began another round of questioning. Moore interrupted 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 consultation." 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...