Premo v. Moore, 09–658.

• Decision Date: 19 January 2011
• Docket Number: No. 09–658.,09–658.
• Citation: 178 L.Ed.2d 649,131 S.Ct. 733,562 U.S. 115
• Parties: Jeff PREMO, Superintendent, Oregon State Penitentiary, Petitioner, v. Randy Joseph MOORE.
• Court: U.S. Supreme Court

562 U.S. 115

131 S.Ct. 733

178 L.Ed.2d 649

Jeff PREMO, Superintendent, Oregon State Penitentiary, Petitioner,

v.Randy Joseph MOORE.

No. 09–658.

Supreme Court of the United States

Argued Oct. 12, 2010.

Decided Jan. 19, 2011.

John R. Kroger, Attorney General, Salem, OR, for petitioner.

Steven T. Wax, Portland, OR, for respondent.

John R. Kroger, Attorney General of Oregon, Counsel of Record, Mary H. Williams, Solicitor General, Counsel of Record, Rolf C. Moan, Assistant Attorney General, Salem, OR, for petitioner.

Steven T. Wax, Counsel of Record, Federal Public Defender, Anthony D. Bornstein, Assistant Federal Public Defender, Federal Public Defender for the District of Oregon, Portland, OR, for respondent.

Justice KENNEDY delivered the opinion of the court.

This case calls for determinations parallel in some respects to those discussed in today's opinion in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624, 2011 WL 148587. Here, as in Richter , the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U.S.C. § 2254(d), the instruction that federal habeas corpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state court's decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States." And, as in Richter , the relevant clearly established law derives from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counsel did not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed to have been improperly obtained.

I

On December 7, 1995, respondent Randy Moore and two confederates attacked Kenneth Rogers at his home and bloodied him before tying him with duct tape and throwing him in the trunk of a car. They drove into the Oregon countryside, where Moore shot Rogers in the temple, killing him.

Afterwards, Moore and one of his accomplices told two people—Moore's brother and the accomplice's girlfriend—about the crimes. According to Moore's brother, Moore and his accomplice admitted:

"[T]o make an example and put some scare into Mr. Rogers ..., they had blind-folded him [and] duct taped him and put him in the trunk of the car and took him out to a place that's a little remote.... [T]heir intent was to leave him there and make him walk home ..... [Moore] had taken the revolver from Lonnie and at the time he had taken it, Mr. Rogers had slipped backwards on the mud and the gun discharged." App. 157–158.

Moore and his accomplice repeated this account to the police. On the advice of counsel Moore agreed to plead no contest to felony murder in exchange for a sentence of 300 months, the minimum sentence allowed by law for the offense.

Moore later filed for postconviction relief in an Oregon state court, alleging that he had been denied his right to effective assistance of counsel. He complained that his lawyer had not filed a motion to suppress his confession to police in advance of the lawyer's advice that Moore considered before accepting the plea offer. After an evidentiary hearing, the Oregon court concluded a "motion to suppress would have been fruitless" in light of the other admissible confession by Moore, to which two witnesses could testify. Id ., at 140. As the court noted, Moore's trial counsel explained why he did not move to exclude Moore's confession to police:

"Mr. Moore and I discussed the possibility of filing a Motion to Suppress and concluded that it would be unavailing, because ... he had previously made a full confession to his brother and to [his accomplice's girlfriend], either one of whom could have been called as a witness at any time to repeat his confession in full detail." Jordan Affidavit (Feb. 26, 1999), App. to Pet. for Cert. 70, ¶4.

Counsel added that he had made Moore aware of the possibility of being charged with aggravated murder, which carried a potential death sentence, as well as the possibility of a sentence of life imprisonment without parole. See Ore.Rev.Stat. § 163.105(1)(a) (1995). The intense and serious abuse to the victim before the shooting might well have led the State to insist on a strong response. In light of these facts the Oregon court concluded Moore had not established ineffective assistance of counsel under Strickland .

Moore filed a petition for habeas corpus in the United States District Court for the District of Oregon, renewing his ineffective-assistance claim. The District Court denied the petition, finding sufficient evidence to support the Oregon court's conclusion that suppression would not have made a difference.

A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. Moore v. Czerniak, 574 F.3d 1092 (2009). In its view the state court's conclusion that counsel's action did not constitute ineffective assistance was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Six judges dissented from denial of rehearing en banc. 574 F.3d, at 1162.

We granted certiorari. 559 U.S. 1004, 130 S.Ct. 1882, 176 L.Ed.2d 361 (2010).

II

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is defined by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

"(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in § 2254(d) obtains. Relevant here is § 2254(d)(1)'s exception "permitting relitigation where the earlier state decision resulted from an ‘unreasonable application of’ clearly established federal law." Richter, 562 U.S., at ––––, 131 S.Ct. 770. The applicable federal law consists of the rules for determining when a criminal defendant has received inadequate representation as defined in Strickland .

To establish ineffective assistance of counsel "a defendant must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). In addressing this standard and its relationship to AEDPA, the Court today in Richter, 562 U.S., at –––– – ––––, 131 S.Ct. 770, gives the following explanation:

"To establish deficient performance, a person challenging a conviction must show that ‘counsel's representation fell below an objective standard of reasonableness.’ [ Strickland,] 466 U.S., at 688 . A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance. Id., at 689 . The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.’ Id., at 687 .

"With respect to prejudice, a challenger must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ...

" ‘Surmounting Strickland 's high bar is never an easy task.’ Padilla v. Kentucky, 559 U.S. 356, 371 [130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689–690 . Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is ‘all too tempting’ to ‘second-guess counsel's assistance after conviction or adverse sentence.’ Id., at 689 ; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

"Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ id., at 689 ; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117

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