Premo v. Moore , 131 S. Ct. 733 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PREMO, SUPERINTENDENT, OREGON STATE
PENITENTIARY v. MOORE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 09–658. Argued October 12, 2010—Decided January 19, 2011
Respondent Moore and two accomplices attacked and bloodied Kenneth
Rogers, tied him up, and threw him in the trunk of a car before driv
ing into the Oregon countryside, where Moore fatally shot him. Af
terwards, Moore and one accomplice told Moore’s brother and the ac
complice’s girlfriend that they had intended to scare Rogers, but that
Moore had accidentally shot him. Moore and the accomplice repeated
this account to the police. On the advice of counsel, Moore agreed to
plead no contest to felony murder in exchange for the minimum sen
tence for that offense. He later sought postconviction relief in state
court, claiming that he had been denied effective assistance of coun
sel. He complained that his lawyer had not moved to suppress his
confession to police in advance of the lawyer’s advice that Moore con
sidered before accepting the plea offer. The court concluded the sup
pression motion would have been fruitless in light of Moore’s other
admissible confession to two witnesses. Counsel gave that as his rea
son for not making the motion. He added that he had advised Moore
that, because of the abuse Rogers suffered before the shooting, Moore
could be charged with aggravated murder. That crime was punish
able by death or life in prison without parole. These facts led the
state court to conclude Moore had not established ineffective assis
tance of counsel under Strickland v. Washington, 466 U. S. 668.
Moore sought federal habeas relief, renewing his ineffective
assistance claim. The District Court denied the petition, but the
Ninth Circuit reversed, holding that the state court’s conclusion was
an unreasonable application of clearly established law in light of
Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279.
Held: Moore was not entitled to the habeas relief ordered by the Ninth
2 PREMO v. MOORE
Syllabus
Circuit. Pp. 4–17.
(a) Under 28 U. S. C. §2254(d), federal habeas 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 decision
denying relief involves “an unreasonable application” of “clearly es
tablished Federal law, as determined by” this Court. The relevant
federal law is the standard for ineffective assistance of counsel under
Strickland, which requires a showing of “both deficient performance
by counsel and prejudice.” Knowles v. Mirzayance, 556 U. S. ___, ___.
Pp. 4–6.
(b) The state-court decision was not an unreasonable application of
either part of the Strickland rule. Pp. 6–16.
(1) The state court would not have been unreasonable to accept
as a justification for counsel’s action that suppression would have
been futile in light of Moore’s other admissible confession to two wit
nesses. This explanation confirms that counsel’s representation was
adequate under Strickland, so it is unnecessary to consider the rea
sonableness of his other justification—that a suppression motion
would have failed. Plea bargains involve complex negotiations suf
fused with uncertainty, and defense counsel must make strategic
choices in balancing opportunities—pleading to a lesser charge and
obtaining a lesser sentence—and risks—that the plea bargain might
come before the prosecution finds its case is getting weaker, not
stronger. Failure to respect the latitude Strickland requires can cre
ate at least two problems. First, the potential for distortions and im
balance that can inhere in a hindsight perspective may become all too
real; and habeas courts must be mindful of their limited role, to as
sess deficiency in light of information then available to counsel. Sec
ond, ineffective-assistance claims that lack necessary foundation may
bring instability to the very process the inquiry seeks to protect be
cause prosecutors must have assurances that a plea will not be un
done in court years later. In applying and defining the Strickland
standard—reasonable competence in representing the accused—
substantial deference must be accorded to counsel’s judgment. The
absence of a developed and extensive record and well-defined prose
cution or defense case creates a particular risk at the early plea
stage. Here, Moore’s prospects at trial were anything but certain.
Counsel knew that the two witnesses presented a serious strategic
concern and that delaying the plea for further proceedings might al
low the State to uncover additional incriminating evidence in support
of a capital prosecution. Under these circumstances, counsel made a
reasonable choice. At the very least, the state court would not have
been unreasonable to so conclude. The Court of Appeals relied fur
ther on Fulminante, but a state-court adjudication of counsel’s per
Cite as: 562 U. S. ____ (2011) 3
Syllabus
formance under the Sixth Amendment cannot be “contrary to” Ful
minante, for Fulminante—which involved the admission of an invol
untary confession in violation of the Fifth Amendment—says nothing
about Strickland’s effectiveness standard. Pp. 6–12.
(2) The state court also reasonably could have concluded that
Moore was not prejudiced by counsel’s actions. To prevail in state
court, he had to demonstrate “a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have in
sisted on going to trial.” Hill v. Lockhart, 474 U. S. 52, 59. Deference
to the state court’s prejudice determination is significant, given the
uncertainty inherent in plea negotiations. That court reasonably
could have determined that Moore would have accepted the plea
agreement even if his second confession had been ruled inadmissible.
The State’s case was already formidable with two witnesses to an
admissible confession, and it could have become stronger had the in
vestigation continued. Moore also faced the possibility of grave pun
ishments. Counsel’s bargain for the minimum sentence for the crime
of conviction was thus favorable, and forgoing a challenge to the con
fession may have been essential to securing that agreement. Again,
the state court’s finding could not be contrary to Fulminante, which
does not speak to Strickland’s prejudice standard or contemplate
prejudice in the plea bargain context. To the extent Fulminante’s
harmless-error analysis sheds any light on this case, it suggests that
the state court’s prejudice determination was reasonable. Pp. 12–16.
574 F. 3d 1092, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined.
GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J.,
took no part in the consideration or decision of the case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–658
_________________
JEFF PREMO, SUPERINTENDENT, OREGON STATE
PENITENTIARY, PETITIONER v. RANDY
JOSEPH MOORE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 19, 2011]
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 Harring
ton v. Richter, ante, p. ___. 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 chal­
lenge 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 estab­
lished 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. Wash
ington, 466 U. S. 668 (1984), which provides the standard
for inadequate assistance of counsel under the Sixth
Amendment. Richter involves a California conviction and
2 PREMO v. MOORE
Opinion of the Court
addresses the adequacy of representation when counsel
did not consult or use certain experts in pretrial prepara­
tion and at trial. The instant case involves an unrelated
Oregon conviction and concerns the adequacy of represen­
tation in providing an assessment of a plea bargain with­
out 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 throw­
ing 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
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
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 consid­
ered 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 ex­
plained 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 girl­
friend], 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 re­
sponse. 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
4 PREMO v. MOORE
Opinion of the Court
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 assis­
tance was an unreasonable application of clearly estab­
lished law in light of Strickland and was contrary to
Arizona v. Fulminante, 499 U. S. 279 (1991). Six judges
dissented from denial of rehearing en banc. 574 F. 3d, at
1162.
We granted certiorari. 559 U. S. ___ (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 estab­
lished Federal law, as determined by the Supreme
Court of the United States; or
“(2) resulted in a decision that was based on an un­
reasonable 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,
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
ante, at 11. The applicable federal law consists of the
rules for determining when a criminal defendant has
received inadequate representation as defined in Strick
land.
To establish ineffective assistance of counsel “a defen­
dant must show both deficient performance by counsel and
prejudice.” Knowles v. Mirzayance, 556 U. S. ___, ___
(2009) (slip op., at 10). In addressing this standard and its
relationship to AEDPA, the Court today in Richter, ante,
at 14–16, gives the following explanation:
“To establish deficient performance, a person chal­
lenging a conviction must show that ‘counsel’s repre­
sentation fell below an objective standard of rea­
sonableness.’ [Strickland,] 466 U. S., at 688. A court
considering a claim of ineffective assistance must
apply a ‘strong presumption’ that counsel’s represen­
tation was within the ‘wide range’ of reasonable pro­
fessional 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. ___, ___
(2010) (slip op., at 14). 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
6 PREMO v. MOORE
Opinion of the Court
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 rele­
vant proceedings, knew of materials outside the re­
cord, 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 (2002); Lockhart v. Fretwell, 506
U. S. 364, 372 (1993). The question is whether an at­
torney’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.
“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 (1997), and
when the two apply in tandem, review is ‘doubly’ so,
Knowles, 556 U. S., at ___ (slip op., at 11). The Strick
land standard is a general one, so the range of rea­
sonable applications is substantial. 556 U. S., at ___
(slip op., at 11). Federal habeas courts must guard
against the danger of equating unreasonableness un­
der Strickland with unreasonableness under §2254(d).
When §2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is
whether there is any reasonable argument that coun­
sel satisfied Strickland’s deferential standard.”
III
The question becomes whether Moore’s counsel provided
ineffective assistance by failing to seek suppression of
Moore’s confession to police before advising Moore regard­
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
ing the plea. Finding that any “motion to suppress would
have been fruitless,” the state postconviction court con­
cluded that Moore had not received ineffective assistance
of counsel. App. 140. The state court did not specify
whether this was because there was no deficient perform­
ance under Strickland or because Moore suffered no
Strickland prejudice, or both. To overcome the limitation
imposed by § 2254(d), the Court of Appeals had to con­
clude that both findings would have involved an unrea­
sonable application of clearly established federal law. See
Richter, ante, at 19–20. In finding that this standard was
met, the Court of Appeals erred, for the state-court deci­
sion was not an unreasonable application of either part of
the Strickland rule.
A
The Court of Appeals was wrong to accord scant defer­
ence to counsel’s judgment, and doubly wrong to conclude
it would have been unreasonable to find that the defense
attorney qualified as counsel for Sixth Amendment pur­
poses. Knowles, supra, at ––– (slip op., at 11); Strickland,
466 U. S., at 687. Counsel gave this explanation for his
decision to discuss the plea bargain without first challeng­
ing Moore’s confession to the police: that suppression
would serve little purpose in light of Moore’s other full and
admissible confession, to which both his brother and his
accomplice’s girlfriend could testify. The state court would
not have been unreasonable to accept this explanation.
Counsel also justified his decision by asserting that any
motion to suppress was likely to fail. Reviewing the rea­
sonableness of that justification is complicated by the
possibility that petitioner forfeited one argument that
would have supported its position: The Court of Appeals
assumed that a motion would have succeeded because the
warden did not argue otherwise. Of course that is not the
same as a concession that no competent attorney would
8 PREMO v. MOORE
Opinion of the Court
think a motion to suppress would have failed, which is the
relevant question under Strickland. See Kimmelman v.
Morrison, 477 U. S. 365, 382 (1986); Richter, ante, at 19–
20. It is unnecessary to consider whether counsel’s second
justification was reasonable, however, since the first and
independent explanation—that suppression would have
been futile—confirms that his representation was ade­
quate under Strickland, or at least that it would
have been reasonable for the state court to reach that
conclusion.
Acknowledging guilt and accepting responsibility by an
early plea respond to certain basic premises in the law and
its function. Those principles are eroded if a guilty plea is
too easily set aside based on facts and circumstances not
apparent to a competent attorney when actions and advice
leading to the plea took place. Plea bargains are the
result of complex negotiations suffused with uncertainty,
and defense attorneys must make careful strategic choices
in balancing opportunities and risks. The opportunities, of
course, include pleading to a lesser charge and obtaining a
lesser sentence, as compared with what might be the
outcome not only at trial but also from a later plea offer if
the case grows stronger and prosecutors find stiffened
resolve. A risk, in addition to the obvious one of losing the
chance for a defense verdict, is that an early plea bargain
might come before the prosecution finds its case is getting
weaker, not stronger. The State’s case can begin to fall
apart as stories change, witnesses become unavailable,
and new suspects are identified.
These considerations make strict adherence to the
Strickland standard all the more essential when reviewing
the choices an attorney made at the plea bargain stage.
Failure to respect the latitude Strickland requires can
create at least two problems in the plea context. First, the
potential for the distortions and imbalance that can inhere
in a hindsight perspective may become all too real. The
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
art of negotiation is at least as nuanced as the art of trial
advocacy and it presents questions farther removed from
immediate judicial supervision. There are, moreover,
special difficulties in evaluating the basis for counsel’s
judgment: An attorney often has insights borne of past
dealings with the same prosecutor or court, and the record
at the pretrial stage is never as full as it is after a trial. In
determining how searching and exacting their review
must be, habeas courts must respect their limited role
in determining whether there was manifest deficiency in
light of information then available to counsel. Lockhart v.
Fretwell, 506 U. S. 364, 372 (1993). AEDPA compounds
the imperative of judicial caution.
Second, ineffective-assistance claims that lack necessary
foundation may bring instability to the very process the
inquiry seeks to protect. Strickland allows a defendant “to
escape rules of waiver and forfeiture,” Richter, ante, at 15.
Prosecutors must have assurance that a plea will not be
undone years later because of infidelity to the require­
ments of AEDPA and the teachings of Strickland. The
prospect that a plea deal will afterwards be unraveled
when a court second-guesses counsel’s decisions while
failing to accord the latitude Strickland mandates or
disregarding the structure dictated by AEDPA could lead
prosecutors to forgo plea bargains that would benefit
defendants, a result favorable to no one.
Whether before, during, or after trial, when the Sixth
Amendment applies, the formulation of the standard is the
same: reasonable competence in representing the accused.
Strickland, 466 U. S., at 688. In applying and defining
this standard substantial deference must be accorded to
counsel’s judgment. Id., at 689. But at different stages of
the case that deference may be measured in different
ways.
In the case of an early plea, neither the prosecution nor
the defense may know with much certainty what course
10 PREMO v. MOORE
Opinion of the Court
the case may take. It follows that each side, of necessity,
risks consequences that may arise from contingencies or
circumstances yet unperceived. The absence of a devel­
oped or an extensive record and the circumstance that
neither the prosecution nor the defense case has been well
defined create a particular risk that an after-the-fact
assessment will run counter to the deference that must be
accorded counsel’s judgment and perspective when the
plea was negotiated, offered, and entered.
Prosecutors in the present case faced the cost of litiga­
tion and the risk of trying their case without Moore’s
confession to the police. Moore’s counsel could reasonably
believe that a swift plea bargain would allow Moore to
take advantage of the State’s aversion to these hazards.
And whenever cases involve multiple defendants, there is
a chance that prosecutors might convince one defendant
to testify against another in exchange for a better deal.
Moore’s plea eliminated that possibility and ended an
ongoing investigation. Delaying the plea for further pro­
ceedings would have given the State time to uncover
additional incriminating evidence that could have formed
the basis of a capital prosecution. It must be remem­
bered, after all, that Moore’s claim that it was an accident
when he shot the victim through the temple might be
disbelieved.
It is not clear how the successful exclusion of the confes­
sion would have affected counsel’s strategic calculus. The
prosecution had at its disposal two witnesses able to relate
another confession. True, Moore’s brother and the girl­
friend of his accomplice might have changed their ac­
counts in a manner favorable to Moore. But the record
before the state court reveals no reason to believe that
either witness would violate the legal obligation to convey
the content of Moore’s confession. And to the extent that
his accomplice’s girlfriend had an ongoing interest in the
matter, she might have been tempted to put more blame,
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
not less, on Moore. Then, too, the accomplices themselves
might have decided to implicate Moore to a greater extent
than his own confession did, say by indicating that Moore
shot the victim deliberately, not accidentally. All these
possibilities are speculative. What counsel knew at the
time was that the existence of the two witnesses to an
additional confession posed a serious strategic concern.
Moore’s prospects at trial were thus anything but cer­
tain. Even now, he does not deny any involvement in the
kidnaping and killing. In these circumstances, and with a
potential capital charge lurking, Moore’s counsel made a
reasonable choice to opt for a quick plea bargain. At the
very least, the state court would not have been unreason­
able to so conclude. Cf. Yarborough v. Alvarado, 541 U. S.
652, 664 (2004) (explaining that state courts enjoy “more
leeway” under AEDPA in applying general standards).
The Court of Appeals’ contrary holding rests on a case
that did not involve ineffective assistance of counsel:
Arizona v. Fulminante, 499 U. S. 279 (1991). To reach
that result, it transposed that case into a novel context;
and novelty alone—at least insofar as it renders the rele­
vant rule less than “clearly established”—provides a rea­
son to reject it under AEDPA. See Yarborough, supra, at
666 (“Section 2254(d)(1) would be undermined if habeas
courts introduced rules not clearly established under the
guise of extensions to existing law . . .[, although c]ertain
principles are fundamental enough that when new factual
permutations arise, the necessity to apply the earlier rule
will be beyond doubt”). And the transposition is improper
even on its own terms. According to the Court of Appeals,
“Fulminante stands for the proposition that the admission
of an additional confession ordinarily reinforces and cor­
roborates the others and is therefore prejudicial.” 574
F. 3d, at 1111. Based on that reading, the Court of Ap­
peals held that the state court’s decision “was contrary to
Fulminante.” Id., at 1102. But Fulminante may not be so
12 PREMO v. MOORE
Opinion of the Court
incorporated into the Strickland performance inquiry.
A state-court adjudication of the performance of coun-
sel under the Sixth Amendment cannot be “contrary to”
Fulminante, for Fulminante—which involved the admis­
sion of an involuntary confession in violation of the Fifth
Amendment—says nothing about the Strickland standard
of effectiveness. See Bell v. Cone, 535 U. S. 685, 694
(2002) (“A federal habeas court may issue the writ under
the ‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in our cases, or
if it decides a case differently than we have done on a set
of materially indistinguishable facts”). The Fulminante
prejudice inquiry presumes a constitutional violation,
whereas Strickland seeks to define one. The state court
accepted counsel’s view that seeking to suppress Moore’s
second confession would have been “fruitless.” It would
not have been unreasonable to conclude that counsel could
incorporate that view into his assessment of a plea offer, a
subject with which Fulminante is in no way concerned.
A finding of constitutionally adequate performance
under Strickland cannot be contrary to Fulminante. The
state court likely reached the correct result under Strick
land. And under §2254(d), that it reached a reasonable
one is sufficient. See Richter, ante, at 19.
B
The Court of Appeals further concluded that it would
have been unreasonable for the state postconviction court
to have found no prejudice in counsel’s failure to suppress
Moore’s confession to police. To prevail on prejudice before
the state court Moore had to demonstrate “a reasonable
probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U. S. 52, 59 (1985).
Deference to the state court’s prejudice determination is
all the more significant in light of the uncertainty inherent
Cite as: 562 U. S. ____ (2011) 13
Opinion of the Court
in plea negotiations described above: The stakes for defen­
dants are high, and many elect to limit risk by forgoing
the right to assert their innocence. A defendant who
accepts a plea bargain on counsel’s advice does not neces­
sarily suffer prejudice when his counsel fails to seek sup­
pression of evidence, even if it would be reversible error
for the court to admit that evidence.
The state court here reasonably could have determined
that Moore would have accepted the plea agreement even
if his second confession had been ruled inadmissible. By
the time the plea agreement cut short investigation of
Moore’s crimes, the State’s case was already formidable
and included two witnesses to an admissible confession.
Had the prosecution continued to investigate, its case
might well have become stronger. At the same time,
Moore faced grave punishments. His decision to plead no
contest allowed him to avoid a possible sentence of life
without parole or death. The bargain counsel struck was
thus a favorable one—the statutory minimum for the
charged offense—and the decision to forgo a challenge to
the confession may have been essential to securing that
agreement.
Once again the Court of Appeals reached a contrary
conclusion by pointing to Fulminante: “The state court’s
finding that a motion to suppress a recorded confession to
the police would have been ‘fruitless’ . . . was without
question contrary to clearly established federal law as set
forth in Fulminante.” 574 F. 3d, at 1112. And again there
is no sense in which the state court’s finding could be
contrary to Fulminante, for Fulminante says nothing
about prejudice for Strickland purposes, nor does it con­
template prejudice in the plea bargain context.
The Court of Appeals appears to have treated Fulmi
nante as a per se rule of prejudice, or something close to
it, in all cases involving suppressible confessions. It is
not. In Fulminante five Justices made the uncontroversial
14 PREMO v. MOORE
Opinion of the Court
observation that many confessions are powerful evidence.
See, e.g., 499 U. S., at 296. Fulminante’s prejudice analy­
sis arose on direct review following an acknowledged
constitutional error at trial. The State therefore had the
burden of showing that it was “clear beyond a reasonable
doubt that a rational jury would have found the defendant
guilty absent the error.” Neder v. United States, 527 U. S.
1, 18 (1999) (paraphrasing Fulminante, supra). That
standard cannot apply to determinations of whether in­
adequate assistance of counsel prejudiced a defendant who
entered into a plea agreement. Many defendants reasona­
bly enter plea agreements even though there is a signifi­
cant probability—much more than a reasonable doubt—
that they would be acquitted if they proceeded to trial.
Thus, the question in the present case is not whether
Moore was sure beyond a reasonable doubt that he would
still be convicted if the extra confession were suppressed.
It is whether Moore established the reasonable probability
that he would not have entered his plea but for his coun­
sel’s deficiency, Hill, supra, at 59, and more to the point,
whether a state court’s decision to the contrary would be
unreasonable.
To the extent Fulminante’s application of the harmless­
error standard sheds any light on the present case, it
suggests that the state court’s prejudice determination
was reasonable. Fulminante found that an improperly
admitted confession was not harmless under Chapman v.
California, 386 U. S. 18 (1967) because the remaining
evidence against the defendant was weak. The additional
evidence consisted primarily of a second confession that
Fulminante had made to the informant’s fiancée. But
many of its details were not corroborated, the fiancée had
not reported the confession for a long period of time, the
State had indicated that both confessions were essential to
its case, and the fiancée potentially “had a motive to lie.”
499 U. S., at 300. Moore’s plea agreement, by contrast,
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
ended the government’s investigation well before trial, yet
the evidence against Moore was strong. The accounts of
Moore’s second confession to his brother and his accom­
plice’s girlfriend corroborated each other, were given to
people without apparent reason to lie, and were reported
without delay.
The State gave no indication that its felony-murder
prosecution depended on the admission of the police con­
fession, and Moore does not now deny that he kidnaped
and killed Rogers. Given all this, an unconstitutional
admission of Moore’s confession to police might well have
been found harmless even on direct review if Moore had
gone to trial after the denial of a suppression motion.
Other than for its discussion of the basic proposition
that a confession is often powerful evidence, Fulminante is
not relevant to the present case. The state postconviction
court reasonably could have concluded that Moore was
not prejudiced by counsel’s actions. Under AEDPA, that
finding ends federal review. See Richter, ante, at 19.
Judge Berzon’s concurring opinion in the Court of Ap­
peals does not provide a basis for issuance of the writ. The
concurring opinion would have found the state court’s
prejudice determination unreasonable in light of Kimmel
man. It relied on Kimmelman to find that Moore suffered
prejudice for Strickland purposes because there was
a reasonable possibility that he would have obtained a
better plea agreement but for his counsel’s errors. But
Kimmelman concerned a conviction following a bench
trial, so it did not establish, much less clearly establish,
the appropriate standard for prejudice in cases involving
plea bargains. See 477 U. S., at 389. That standard was
established in Hill, which held that a defendant who
enters a plea agreement must show “a reasonable prob­
ability 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. Moore’s failure to make that showing
16 PREMO v. MOORE
Opinion of the Court
forecloses relief under AEDPA.
IV
There are certain differences between inadequate assis­
tance of counsel claims in cases where there was a full
trial on the merits and those, like this one, where a plea
was entered even before the prosecution decided upon all
of the charges. A trial provides the full written record and
factual background that serve to limit and clarify some of
the choices counsel made. Still, hindsight cannot suffice
for relief when counsel’s choices were reasonable and
legitimate based on predictions of how the trial would
proceed. See Richter, ante, at 18.
Hindsight and second guesses are also inappropriate,
and often more so, where a plea has been entered without
a full trial or, as in this case, even before the prosecution
decided on the charges. The added uncertainty that re­
sults when there is no extended, formal record and no
actual history to show how the charges have played out at
trial works against the party alleging inadequate assis­
tance. Counsel, too, faced that uncertainty. There is a
most substantial burden on the claimant to show ineffec­
tive assistance. The plea process brings to the criminal
justice system a stability and a certainty that must not be
undermined by the prospect of collateral challenges in
cases not only where witnesses and evidence have disap­
peared, but also in cases where witnesses and evidence
were not presented in the first place. The substantial
burden to show ineffective assistance of counsel, the bur­
den the claimant must meet to avoid the plea, has not
been met in this case.
The state postconviction court’s decision involved no
unreasonable application of Supreme Court precedent.
Because the Court of Appeals erred in finding otherwise,
its judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 562 U. S. ____ (2011) 17
Opinion of the Court
JUSTICE KAGAN took no part in the consideration or
decision of this case.
Cite as: 562 U. S. ____ (2011) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–658
_________________
JEFF PREMO, SUPERINTENDENT, OREGON STATE
PENITENTIARY, PETITIONER v. RANDY
JOSEPH MOORE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[January 19, 2011]
JUSTICE GINSBURG, concurring in the judgment.
To prevail under the prejudice requirement of Strick
land v. Washington, 466 U. S. 668, 694 (1984), a petitioner
for federal habeas corpus relief must demonstrate “a
reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial,” Hill v. Lockhart, 474 U. S. 52, 59 (1985).
As Moore’s counsel confirmed at oral argument, see Tr. of
Oral Arg. 32, Moore never declared that, better informed,
he would have resisted the plea bargain and opted for
trial. For that reason, I concur in the Court’s judgment.