Sunday, February 13, 2011

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

On the same day the Supreme Court wrote Harrington v. Richter, 2011 WL 148587 (C.A. 9) Justice Kennedy authored another opinion severely criticizing the 9th Circuit for disregard of the federal statute regulating federal habeas corpus (AEDPA; 28 U.S.C. 2254) and Supreme Court precedent.  The unanimous decision of the Supreme Court suggests a wilful disregard of the statute and Supreme Court case law by the Ninth Circuit.
In Premo, defense counsel entered into negotiations with the prosecutor to plead his client to an offense not requiring the death penalty.  The prosecution had a strong case including a confession by the defendant and two other civilian witnesses.
After the state court imposed Moore's sentence (for an extremely violent and brutal crime) he appealed on grounds of "ineffective counsel" citing the Supreme Court 1986 case of Strickland v. Washington 466 U.S. 669 (1986).  Moore alleged his counsel should have moved to suppress the confession to police.  The state court denied his  appeal; denied a post trial evidentiary hearing in state court; was denied a petition for habeas corpus in U.S. District Court; state court decision reversed in the Ninth Circuit.
Justice Kennedy gave the Ninth Circuit a lesson in trial advocacy and plea bargaining in addition to explaining the proper test for appellate review of state court decisions in federal courts.  He wrote: ". . . strict adherence to the Strickland standard [is] 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 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. AEDPA compounds the imperative of judicial caution."
Kennedy concludes by stating: "When 2254 applies, the question is not whether counsel's acrions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Stickland's deferential standard."

Comment:  The Ninth Circuit has a long history of reversing state court decisions by employing the Strickland case. Harrington v. Richter and Premo v. Moore may end a litany of wrong decisions written by the Ninth Circuit, most recently in Knowles v. Mirzayance,  and Wong v. Belmontes.

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