Ineffective assistance of counsel
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 established 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.”
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 witnesses. This explanation confirms that counsel’s representation was adequate under Strickland, so it is unnecessary to consider the reasonableness of his other justification-that a suppression motion would have failed. Plea bargains involve complex negotiations suffused 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 create at least two problems. First, the potential for distortions and imbalance that can inhere in a hindsight perspective may become all too real; and habeas courts must be mindful of their limited role, to assess deficiency in light of information then available to counsel. Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect because prosecutors must have assurances that a plea will not be undone 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 prosecution 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 allow 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 further on Fulminante, but a state-court adjudication of counsel’s performance under the Sixth Amendment cannot be “contrary to” Fulminante , for Fulminante -which involved the admission of an involuntary confession in violation of the Fifth Amendment -says nothing about Strickland ‘s effectiveness standard.
574 F. 3d 1092, reversed and remanded.
09-658 Premo v. Moore
Kennedy, J.; Ginsburg, J., concurring.