# Moore v. Czerniak

> Court of Appeals for the Ninth Circuit · July 28, 2009 · 574 F.3d 1092

URL: https://www.frixlaw.com/law-library/cases/9600127

## Case

- **Full name:** Randy Joseph MOORE, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent of OSP, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 28, 2009
- **Citations:** 574 F.3d 1092; 2009 U.S. App. LEXIS 16736; 2009 WL 2231650
- **Precedential status:** Published
- **Opinion:** Concurrence by Berzon
- **Judges:** Reinhardt, Berzon, Bybee, Kleinfeld, Tallman, Bea, Smith, Callahan
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Harrington v. Richter, 131 S. Ct. 770 (2011).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9600127

## Opinion text

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 confession prejudiced Moore, in that I believe, to the extent that Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), provides the proper prejudice standard here, Moore has fulfilled it for the reasons which Judge Reinhardt supplies. I write sepa *1130 rately, however, to note that I believe that Moore could also demonstrate prejudice more directly under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (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 Strickland’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 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 process) 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 particular 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 particular path through that landscape, pleading guilty, was badly wrong. Strickland and Kimmelman , instead, deal with counsel’s failure to create a proper legal landscape— by, for instance in this case, failing to file a plainly meritorious suppression motion. Below, I discuss the Kimmelman/Strickland prejudice standard in more detail, explain why the Hill standard 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 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694 , 104 S.Ct. 2052 (emphasis added). This prejudice standard is a generic one, and ordinarily governs ineffective assistance of counsel cases. See, e.g., Wilson v. Henry, 185 F.3d 986, 988 (9th Cir.1999) (relying on Strickland to state the standard for a 28 U.S.C. § 2254 ineffective assistance of counsel case). Two elements of the Strickland standard are particularly important:
First, Moore need only show a “reasonable possibility” of a different outcome. Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ; Wilson, 185 F.3d at 988 .
Second, applying Strickland , the Supreme Court has established that “any amount of actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203 , 121 S.Ct. 696 , 148 L.Ed.2d 604 (2001). Glover held that “if an increased prison term did flow from an error the petitioner has established Strickland prejudice.” 1 Id. at 200, 121 *1131 S.Ct. 696 ; see also Argersinger v. Hamlin, 407 U.S. 25, 32, 37 , 92 S.Ct. 2006 , 32 L.Ed.2d 530 (1972) (holding that Sixth Amendment right to counsel applies to any case where “imprisonment even for a brief period” is possible); id. at 37 , 92 S.Ct. 2006 (quoting Baldwin v. New York, 399 U.S. 66, 73 , 90 S.Ct. 1886 , 26 L.Ed.2d 437 (1970) (stating that “the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter ....”) (emphasis added)).
Accordingly, if Moore can show a “reasonable probability” that absent his counsel’s ineffective performance he would have obtained a verdict leading to less time in prison, then, applying Strickland and Glover , he has satisfied the prejudice prong of the ineffective assistance of counsel test.
Kimmelman makes clear that the usual Strickland analysis applies in the context of a lawyer’s incompetent failure to file a timely suppression motion. Kimmelman, 477 U.S. at 383-91 , 106 S.Ct. 2574 . Specifically, Kimmelman stated that to show prejudice in the suppression motion context, the defendant must demonstrate “that there is a reasonable probability that the verdict would have been different absent the excludable evidence.” Id. at 375 , 106 S.Ct. 2574 . We have read Kimmelman as establishing that “[t]o show prejudice under Strickland from failure to file a motion, [the defendant] must show that ... had the motion been granted, it is reasonable that there would have been an outcome more favorable to him.” Wilson, 185 F.3d at 990 .
In Kimmelman , of course, the question was whether the defendant would have received a different verdict at trial had the evidence been suppressed. Absent a meritorious motion, the evident answer to that query is no. But Kimmelman does not restrict its outcome-oriented, Strickland— based, prejudice standard to the full trial context, and no reason appears why it should be so limited. In this case, as the course of Moore’s pretrial proceedings and trial remained open, the parallel question is whether the filing of his meritorious suppression motion would have affected the plea bargain negotiations, with the “reasonable probability” that the outcome of those negotiations would have been more favorable to Moore.
Moreover, Kimmelman directly answers the dissent’s primary 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 ineffective. Hill, 474 U.S. at 56-59 , 106 S.Ct. 366 ; see also Dis. op. at 1156. The cases upon which the dissent relies and which Hill cites— principally, McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970), and Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973)— did not deal with circumstances in which the asserted pre-plea constitutional violation was ineffective assistance of counsel with regard to pre-trial practice, as opposed to constitutional violations by the court or the prosecution. As to the latter variety of pre-plea constitutional violation, we assume that the petitioner had effective assistance of counsel in determining whether or not to challenge those violations in a timely manner, 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 background for later proceedings, because he or she fails to file essential, meritorious pretrial motions,
*1132 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 criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal.
477 U.S. at 378 , 106 S.Ct. 2574 .
In other words, where there is ineffective counsel who continues 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 challenges, see Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (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 Amendment 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. Kimmelman, 477 U.S. at 379 , 106 S.Ct. 2574 .
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 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’ 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.” 474 U.S. at 59 , 106 S.Ct. 366 . 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 standard, which deals with some varieties of plea bargain ineffective assistance cases, or also the Kimmelman standard, which deals with the impact of the failure to file meritorious motions, that controls here. Neither case is directly on point on its facts, as Hill was a different kind of plea bargain case, while Kimmelman involved a trial. But the Kimmelman! Strickland standard is the generally applicable one, and therefore applies in the first instance here, even assuming that Hill provides an available alternative route. Cf. Abdul-Kabir v. Quarterman, 550 U.S. 233 , 127 S.Ct. 1654, 1671 , 167 L.Ed.2d 585 (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 *1133 generally applicable prejudice standard where there is a guilty plea, to permit application of Strickland 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 standard.
This commonsense conclusion is confirmed by Hill. Hill governs cases in which defendants face a binary choice between pleading guilty and going to trial, and concludes, in essence, that in that situation, the defendant need not meet the usual Strickland prejudice standard by showing that he would have been better off in terms of outcome had he gone to trial. See 474 U.S. at 59-60 , 106 S.Ct. 366 . 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 ineffective assistance of counsel, even when the alleged ineffective 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 simply in foregoing a trial, regardless of the probable outcome of a trial.
The Supreme Court’s discussion of Hill in Roe v. Flores-Ortega, 528 U.S. 470 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (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 involves counsel’s performance during the course of a legal proceeding, either at trial or on appeal.” Id. at 481 , 120 S.Ct. 1029 . In contrast, Roe , like Hill , was “unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Id. at 483, 120 S.Ct. 1029 .
The present case, however, is not binary like Hill and Roe . Refusing to plead no contest to the murder charge before filing 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, perhaps other pretrial claims) and, then, for further plea negotiations 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 *1134 pleading and going to trial, but the time period available for the choice is longer. Such defendants can credibly “show that there is a reasonable probability that, but for counsel’s errors, [they] would not have pleaded guilty and would have insisted on going to trial,” Hill, 474 U.S. at 59 , 106 S.Ct. 366 , 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 sensible, 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 Strickland 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 circumstances. See Maj. op. at 1105-06 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
Hill was not initially designed for the present circumstances, 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 prosecutors ... how to conduct plea negotiations,” implicating federalism concerns. See Dis. op. at 1157. It also contends that inquiring into whether competent defense counsel could have improved the defendant’s leverage to seek a better plea bargain runs against the general wisdom that courts are ill suited to “review ... prosecutorial decisions,” thereby raising separation of powers issues. See Dis. op. at 1157-59. These concerns have no place whatever in the current context.
*1135 I agree with the dissent that “[pjrosecutorial ... decisions are particularly ill-suited for broad judicial oversight.” Dis. op. at 1158 (quoting United States v. Redondo-Lemos, 955 F.2d 1296, 1299-1300 (9th Cir.1992), overruled on other grounds, United States v. Armstrong, 48 F.3d 1508 , 1515 n. 5 (9th Cir.1995) (en banc)). Prosecutorial discretion is, indeed, broad, although not unfettered. See Wayte v. United States, 470 U.S. 598, 607-08 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985). So, if Judge Bybee were correct that my approach would give federal courts the right to dictate plea bargains and charging decisions, I would share his concerns.
But nothing in the Kimmelman/Strickland approach implicates 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, concerns the defendant’s and defense counsel’s choices, defense counsel’s judgment, and defense counsel’s actions, not, in the first instance, that of the prosecutor. That this assessment requires some consideration of the defense counsel’s position with regard to the prosecutor’s case is inherent in any prejudice inquiry, whether under Hill or the more general framework of Kimmelman and Strickland , and does not convert asking the question into an assault on prosecutorial discretion.
I acknowledge that, as the dissent points out, the Kimmelman/Strickland analysis of the defendant’s plea bargain leverage is “counter-factual,” will be conducted “in most cases, years after the decision to offer the challenged plea bargain,” and may be difficult. Dis. op. at 1157. Unlike Judge Bybee, however, I do not think that asking courts to consider these matters poses an “impossible question.” 3 See id. First, the prejudice inquiry is always counter-factual — we are asking, after all, whether there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 — 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, 550 U.S. 465 , 127 S.Ct. 1933, 1943-44 , 167 L.Ed.2d 836 (2007) (considering whether a capital defendant was prejudiced by his counsel’s failure to introduce mitigation evidence); Williams v. Taylor, 529 U.S. 362, 396-98 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (concluding that a defendant was prejudiced by counsel’s failure to investigate his background, which would have resulted in additional mitigation evidence); Lopez v. Schriro, 491 F.3d 1029, 1044 (9th Cir.2007) (holding that defense counsel’s failure to object to medical evidence did not prejudice the defendant). I cannot say that assessing, for instance, whether a jury would have ruled differently on a death sentence, see Landrigan, 127 S.Ct. at 1943-44 , 127 S.Ct. 1933 ; Williams, 529 U.S. at 396-98 , 120 S.Ct. 1495 , is so obvi *1136 ously easier than deciding whether a defendant would be in a better plea bargaining position as to warrant characterizing the latter question as “impossible” 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 counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59 , 106 S.Ct. 366 . There, too, we must inquire into the strength of the defendant’s ease 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 question.
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 regularly carry out. It is not, in my view, a sufficient reason to abandon it.
d. Application
As I agree with Judge Reinhardt that Moore’s counsel was ineffective because he failed to file a meritorious suppression motion, and had no good reason not to do so, all that remains to determine is whether this failure prejudiced Moore. Judge Reinhardt ably explains why Moore meets Hill’s standard for prejudice and I, assuming Hill is the proper standard, concur in his application of it. Moore also meets the Kimmelman/Strickland standard which I believe also applies, essentially 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 therefore a “reasonable probability” that Moore has suffered prejudice as to the actual sentence imposed, and it was unreasonable of the state court not to find prejudice here.
II. Conclusion
For the reasons given by Judge Reinhardt as well as for the reasons set forth in this concurrence, I conclude that the state court unreasonably failed to determine that counsel’s failure to file a meritorious suppression motion constituted deficient performance, and that such deficient representation prejudiced Moore. Accordingly, I agree with Judge Reinhardt that we should grant Moore’s petition for habeas corpus.
. Indeed, this conclusion was so obvious that the Court reached it unanimously and the government conceded the point. Glover, 531 U.S. at 202 , 121 S.Ct. 696 . Thus, it was very likely clearly established even before the Court decided Glover .
. 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 proceedings effectively synonymous. See 397 U.S. at 772-74 , 90 S.Ct. 1441 . It is now constitutionally required that a judge rather than a jury decide the admissibility of a confession. See id. at 772 , 90 S.Ct. 1441 . 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 pleading 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.
. 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 1156-57, rather than whether it was reasonably probable that defense counsel could secure such an arrangement.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600127. Public record. Not legal advice.