Habeas, IAC, Plea

Premo v Moore, __ US __; 131 S Ct 733 (2011)(jan’11). Moore pled no contest to felony murder. He had confessed to police and described the crime to two other people. Moore’s lawyer did not attempt to suppress the confession to police before Moore entered into the plea. The Ninth Circuit ruled that the failure to suppress the confession constituted ineffective assistance of counsel, relying heavily on the SCOTUS decision in Arizona v Fulminante, discussing whether the introduction of a confession could be harmless error in a trial context. In an 8-0 Decision, the Supreme Court held that Moore did not meet either part of the Strickland analysis. In deciding the performance prong, the Court found that a reasonable state court could have accepted the explanation given by Moore’s lawyer – that two other confessions were still on the record, rendering challenging the third inconsequential. As to the prejudice prong, the Court held that the proper question in plea cases is whether the defendant would have proceeded with a plea without the counsel’s deficiency. The Court declined to apply the more liberal harmless error standard inquiry in Fulminante - which asks whether a defendant would have been found guilty beyond a reasonable doubt absent the error – to pleas. The Court felt there is no practical way to know whether a jury would have convicted a defendant who pled guilty. Note also that the Court quoted heavily from Harrington v Richter (also summarized in these materials) to explain that, in order to succeed on habeas corpus, a petitioner must show that a state court was unreasonable in its application of an already deferential Strickland standard.