Randy Joseph MOORE, Petitioner-Appellant, v. Stan CZERNIAK, Superintendent of OSP, Respondent-Appellee, 574 F.3d 1092

Opinion by Judge REINHARDT; Concurrence by Judge BERZON; Dissent by Judge BYBEE; Dissent to Order by Judge CALLAHAN; Dissent to Order by Judge BEA. ORDER The majority opinion, concurring opinion, and dissenting opinion filed on July 28, 2008, slip op. 9397, and appearing at 534 F.3d 1128 (9th Cir.2008), are withdrawn. A new majority opinion, concurring opinion, and dissenting opinion are filed contemporaneously with this order. With the filing of the new opinion, Judge Reinhardt and Judge Berzon vote to deny the petitions for rehearing and rehearing en banc.

Judge Bybee votes to grant the petitions for rehearing and rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc reconsideration. Fed. R.App. P. 35. Judge Graber was recused. The petitions for rehearing and rehearing en banc are denied. No future petitions for rehearing or rehearing en banc will be entertained.

OPINION REINHARDT, Circuit Judge: Randy Moore’s taped confession was obtained by the police at the station house by means that even the state concedes were unconstitutional. It does not contest on this appeal the district court’s finding that Moore’s confession was involuntary. As the Supreme Court has declared emphatically, “[a] confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.’ ” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v.

United States, 391 U.S. 123, 139, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)). Inexplicably, Moore’s lawyer failed to recognize that the confession to the police was inadmissible, even though it was unconstitutional for not one but two separate reasons.

Counsel’s explanation for not filing the motion was, in his words, “two-fold.” First, he thought such a motion would not have succeeded because Moore was not in custody when he gave his confession and his confession was voluntary — both clearly erroneous conclusions: the confession was impermissibly extracted as the result of a promise of leniency made by the interrogating officers, and it was also obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as Moore had asked for counsel before making the confession but his request had been ignored.

Second, Moore’s lawyer erroneously thought that the taped confession was not prejudicial because Moore had told his brother and his half-brother’s girlfriend about the crime. In both respects, Moore’s lawyer exhibited a remarkable lack of familiarity with, or basic misunderstanding of, controlling principles of constitutional law. As a result of his ineptitude — and, as his affidavit makes crystal clear, not because of any strategic reasons — he failed to make a motion to suppress the unconstitutionally obtained confession.

Having determined not to file the motion, counsel advised Moore that a plea to felony murder was “the best [they] could do under the circumstances,” and Moore pled no contest to that charge. The state makes the same error as Moore’s counsel. It urges that the failure to move to suppress Moore’s taped confession to the police was not prejudicial because Moore had told two others about the crime, and only because he had done so.

Unlike our highly imaginative and creative dissenting colleague, the state does not argue that it possessed other evidence, aside from the two other confessions, that rendered the failure to file the motion harmless.

In fact, perhaps mindful of Fulminant^ s command that, in cases such as this, reviewing courts “exercise extreme caution” before determining that the failure to move to exclude unconstitutional confessions is harmless, 499 U.S. at 296, 111 S.Ct. 1246, the state does not challenge on any basis other than his statements to others Moore’s assertion that the ineffectiveness of his counsel necessarily undermines our confidence in the outcome of the proceedings.

Here, Fulminante’s dictate is all the more compelling because, unlike in Fulminante, where the challenged confession was made informally to a not particularly reliable layman, the confession at issue is recorded, is in Moore’s own voice, and was made in the formal context of a police interrogation. In the end, there can be no serious doubt that Moore’s counsel was ineffective and that Moore was deprived of his basic constitutional rights under the Sixth Amendment, as clearly established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The state court, following the same rationale advanced by the State and Moore’s counsel, concluded that Moore’s recorded confession to the police was nonprejudicial because of his prior statements to others, a conclusion that is contrary to the clearly established law of Fulminante.

But for counsel’s failure to move to suppress his involuntary confession, there is a reasonable probability that Moore would not have pled to the felony murder charge but would have instead insisted on going to trial — a trial at which he would have faced a potential sentence identical to that he received as a result of his plea bargain. Counsel’s performance fell below an objective standard of reasonableness.

Because we hold that the state court’s rejection of Moore’s federal constitutional claim was contrary to Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, and constituted an objectively unreasonable application of Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, we reverse the district court and remand for issuance of the writ. I. In December 1995, petitioner Randy Moore, his half-brother Lonnie Woolhiser, and his friend Roy Salyer were allegedly involved in the assault, kidnapping, and death of Kenneth Rogers.

After arresting Salyer and booking him in the county jail, the investigating police officers asked Moore and Woolhiser to come to the police station for questioning. The two were separated and interviews were conducted by different police detectives. Moore provided a brief statement about stopping by Rogers’s motor home, waiting while Woolhiser and Salyer went in to talk to Rogers, and then leaving with Woolhiser and Sal-yer. After making this statement, Moore was advised of and invoked his Miranda rights.

Subsequently, as the district court found, both Moore and Woolhiser were released on the condition that they speak with their older brother Raymond Moore (“Raymond”), and return to the station at 1:00 p.m. the following day. The police officers had good reason for directing Moore and Woolhiser to speak with Raymond. Raymond had a personal and working relationship with the investigating officers. Moreover, these officers had been involved in the investigation of a murder charge against Raymond that resulted from a separate killing.

The charge was dropped when Raymond cooperated with the officers and explained that the killing was perpetrated in self-defense. Raymond testified later that because Moore and Woolhiser told him that Rogers’s death was an accident, he believed that the police officers would do the same for his brother and half-brother as they had for him, if they cooperated in the same manner he had. The next day, after speaking with Raymond, Moore and Woolhiser spent the morning unsuccessfully trying to obtain legal representation.

When they called the police station at 1:10 p.m., the police promptly ordered them to return for further questioning: “they told us that if we were not there by 3:00 they would come get us — [ ] and our family would not like the way they did it and they — we knew what they meant.” In accordance with the police officers’ commands, Moore and Woolhiser returned to the police station that afternoon, without counsel. They were accompanied by Raymond, and also by Woolhiser’s girlfriend, Debbie Ziegler. When the four arrived at the police station, the investigating officers began another round of questioning.

Moore interrupted at the very beginning of that questioning to request counsel: “You see ... until I, I have to be able to talk to somebody that’s on my side, you know, for me, to be able to go tell nobody ...

I don’t trust my judgment right now.” When the police officers ignored Moore’s request, Woolhiser reiterated by stating, “You know, we’d just like to talk to somebody, you know.” Moore then stated that he wanted to, “[a]s quick as possible, talk to a lawyer,” which was followed by Raymond’s confirmation of that request: “If there was some way we could maybe get an attorney in here for a consultation.” Eventually, in response, the police officers told Moore and Woolhiser that they were not entitled to counsel at that time unless they could afford it themselves.

The police officers then promptly proceeded with the interrogation. During the interrogation, the police officers told Moore and Woolhiser that they “would go to bat for [them] as long as [they] got the truth,” to which Moore responded: “See that’s what I want to hear.” At this point, Raymond interrupted the questioning to vouch for the officers’ assurances, stating that “I know in my, this is for myself, saying, there was once an officer, and I said hey, look, I want out, I did something and been doing something. I want out of this, I want a chance. And this officer said, okay, Ray, I’ll go to bat for you.

And that officer’s your captain.” Building on Raymond’s account, one of the interrogating officers asked, “But he did go to bat for you[?],” to which Raymond responded, “That’s exactly right.... I talked to him and he stood behind his word one hundred percent and he’s probably one of the best friends I have in the world.” After Raymond’s comments, the interrogating officers emphasized that the police could be similarly helpful to Moore and Woolhiser if they confessed. Moore first hesitated, but then indicated that he would be willing to talk.

At this point, one of the officers told Moore, “Okay, so that you know you’re going to get a fair shake from us alright, I want to verify that with our DA that he is not going and[sic] turn around and jam you. I want him to tell me right now on the phone that you can change your mind and he will accept it. So there’s no jammin’ down the road, okay?” The officer then left to obtain the verification that the DA would not “jam” Moore so long as he confessed. When the officer returned, he told Moore that he had spoken with the DA— “our Deputy DA actually” — and then proceeded to elicit Moore’s confession.

Before doing so, however, he extracted several statements from Moore regarding his custody status and the voluntariness of the confession he was about to give. In response to a series of questions, Moore agreed with the officers that he had voluntarily returned to the police station, that he was not in custody, that the police had offered nothing in exchange for his confession other than that they would make a “recommendation! ]” to the District Attorney, and that he understood his right to counsel and was waiving it.

In short, as one of the interrogating officers explained: “[t]he main thing is we want everybody on this recording to know that you guys are not in custody ... [a]nd this is not an ... in custody interrogation type of thing.” In the recorded confession that he then made, Moore described how he, Salyer, and Woolhiser went to Rogers’s home after Salyer informed the two that Rogers had stolen property from his cabin. Moore stated that Woolhiser confronted Rogers about the theft, assaulted him, and placed him in the trunk of a car.

They then drove Rogers to a remote wooded area and began to walk him blindfolded up a hill. At some point during this walk, Woolhiser handed Moore a loaded gun. Moore explained that they had no intention of killing Rogers; they were simply going to frighten him by leaving him on top of the hill and forcing him to find his way back home. As the four climbed the hill, however, Rogers stumbled and fell back into Moore, causing the gun in his hands to discharge. As a result, Rogers died of an accidental gunshot wound to the head.

Following his confession, Moore was appointed counsel and charged with one count of felony murder with a firearm. He entered a plea of no contest, and was given a mandatory sentence of twenty-five years imprisonment, with five years to be served concurrently as a sentencing enhancement for the use of a firearm, in addition to a life term of post-prison supervision. Moore appealed his sentence to the Oregon Court of Appeals, which affirmed without opinion, and to the Oregon Supreme Court, which denied review. State v. Moore, 151 Or.App. 464, 951 P.2d 204 (1997), rev. denied, 326 Or. 507, 953 P.2d 395 (1998).

Shortly thereafter, Moore filed a petition for state post-conviction relief, alleging, inter alia, that he had been denied effective assistance of counsel because his lawyer had failed to file a motion to suppress his confession. The state court held an evidentiary hearing at which Moore and his brother Raymond testified. Raymond recalled that the detectives “made it appear” that Moore and Woolhiser were not in custody, but that it was clear from the circumstances that they were not free to leave.

He also testified that he advised the pair to confess their involvement in Rogers’s death because he understood that the police had promised leniency: “[B]asically what I had deducted [sic] from what they had said was that they would work for [Moore] like they had worked for me to change my life around.” Moore also testified that he understood the officers’ statements to be an assurance that his crime would be charged as an accidental killing rather than felony murder.

He stated that the officers “left me believing that the D.A. had agreed not to jab us down the road.... [W]hen the detective went and talked to the D.A. to make sure he wasn’t going to jab me, I thought there was an agreement that they were going to charge me with accidental death and the D.A. had agreed to it because he didn’t come back saying that he did not agree, and that’s what he went there for.” Moreover, Moore explained that during the interrogation, he did not feel free to leave, in part because detectives had made it clear on the evening prior to the interview that Salyer had already been charged and that they were going to be booked that day.

After the evidentiary hearing, the state court filed an unpublished order denying Moore’s post-conviction petition. With regard to the ineffective assistance of counsel claim, the state court first concluded that it was reasonable for counsel to believe that a motion to suppress would be without merit. In so finding, the state court relied on counsel’s affidavit, which asserted that because Moore admitted on tape that he was not in custody and “never believed that he was in custody,” there was no merit to the claim that the police officers improperly denied him counsel in a custodial interrogation.

The state court further found that the officers’ questions regarding custody would have constituted notice to a reasonable person that he was free to leave and was not being held in custody. As a result, the state court found that there “was no basis for filing a motion to suppress.” It did not mention the involuntariness claim.

Relying solely on the affidavit of Moore’s trial counsel, the state court further reasoned that even if a motion to suppress had been filed and granted, it would have been “fruitless” because Moore “had previously confessed his participation in the crime to his brother (Raymond Moore) and another friend [Debbie Ziegler].” From this, the state court concluded that Moore suffered no prejudice because “[b]oth Raymond Moore and [Ziegler] could have been called as witnesses to repeat petitioner’s confession.” It made no findings as to what Moore had told Raymond or Ziegler about the crime or as to the specific facts to which they might have been able to testify.

Specifically, the state court did not determine whether Moore simply confessed to the two laymen that he had killed the victim accidentally, or whether his informal confession covered all of the elements required to prove a felony murder. The state court found only that Moore had “confessed” to them. Based on the above, the state court held that counsel’s failure to file a motion to suppress his taped confession did not constitute ineffective assistance of counsel. The Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. See Moore v.

Palmateer, 174 Or.App. 321, 26 P.3d 191 (2001), rev. denied, 332 Or. 430, 30 P.3d 1184 (2001). In December 2001, Moore petitioned the United States District Court for the District of Oregon for a writ of habeas corpus. He raised, inter alia, the ineffective assistance of counsel claim that was denied in the state courts.

Adopting the magistrate judge’s findings and recommendation, the district court found that the state court was not unreasonable in concluding that Moore was not in custody at the time of his request for counsel, but that he had “confessed to Rogers’ murder based on [a] false promise” of leniency, which “rendered [his] confession involuntary.” Nevertheless, the court concluded that “counsel’s failure to seek suppression did not necessarily fall below an objective standard of reasonableness” because of Moore’s prior confessions to Raymond Moore and Debbie Ziegler and the potential adverse testimony of Salyer.

On that basis, the district court ultimately held that the post-conviction court’s conclusion that there had not been a constitutional violation was “neither contrary to, nor an unreasonable application of, Strickland v. Washington.” This appeal followed. Because the state does not contest the district court’s finding that Moore’s confession was involuntary, and because we conclude that the state court unreasonably erred with respect to its finding of “no prejudice,” we reverse.

We hold that the state court’s adjudication of Moore’s claim “resulted in a decision that ... involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), and remand to the district court with instructions to grant the writ of habeas corpus. II. This court reviews de novo the district court’s decision to deny a petition for a writ of habeas corpus. See DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir.2001).

Factual findings relevant to the district court’s decision to grant or deny the petition are reviewed for clear error. See Solis v. Garcia, 219 F.3d 922, 926 (9th Cir.2000). Moore’s federal habeas petition was filed after April 24, 1996, and is therefore governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003).

Under AEDPA, we may grant habeas relief only when the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “[Cjlearly established Federal law” includes only the Supreme Court’s “applicable holdings,” not its dicta. See Carey v.

Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006). There need not be a narrow Supreme Court holding precisely on point, however — a state court can render a decision that is “contrary to” or an “unreasonable application” of Supreme Court law by “ignoring the fundamental principles established by [that Court’s] most relevant precedents.” Abdulr-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 1671, 167 L.Ed.2d 585 (2007).

A state court’s decision is “ ‘contrary to’ federal law if it fails to apply the correct controlling Supreme Court authority or comes to a different conclusion ... [from] a case involving materially indistinguishable facts.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002) (citing Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). A state court’s decision is an “unreasonable application” of Supreme Court law if “the state court correctly identifies the governing legal principle ... but unreasonably applies it to the facts of the particular case.” Bell, 535 U.S. at 694, 122 S.Ct. 1843.

The Supreme Court has held that “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The substantive federal law guiding our inquiry is supplied by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which is “clearly established Federal law” under AEDPA. Williams, 529 U.S. at 391, 120 S.Ct. 1495.

To prevail on a claim of ineffective assistance of counsel under Strickland, Moore must demonstrate both that his counsel’s representation was deficient — in other words, that it “fell below an objective standard of reasonableness” — and that the deficiency was prejudicial. Strickland, 466 U.S. at 687-88, 692, 104 S.Ct. 2052. To show prejudice, Moore must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In the context of a plea bargain, we specifically ask whether there is a reasonable probability that, but for counsel’s deficient performance, the petitioner would have gone to trial rather than accept the plea bargain offered by the state. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Because Moore’s claim involves the failure to suppress a confession, the prejudice question is governed by Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, the guiding Supreme Court precedent on the harmlessness of an erroneously admitted confession. As Fulminante commands, we must “exercise extreme caution” before determining that the failure to move to suppress a coerced confession was nonprejudicial. Fulminante, 499 U.S. at 296, 111 S.Ct. 1246. III. We address Strickland's performance prong first. In

Part III.A, we consider whether Moore’s attorney rendered deficient performance in failing to file a motion to dismiss Moore’s confession. Moore’s counsel provided two reasons why he did not file such a motion: first, he believed that a motion would not be meritorious, and second, he believed that even if a motion were to succeed, it would make no difference to the outcome because Moore had confessed informally to two lay persons. As noted above, the state does not dispute on appeal that a suppression motion would have been meritorious.

Thus, the sole issue as to deficient performance is whether counsel’s conclusion that a motion to suppress Moore’s formal, taped confession would have been purposeless in light of his two informal confessions “fell below an objective standard of reasonableness.” Because this question is essentially one of prejudice, our deficient performance analysis turns largely on whether counsel’s failure to move to suppress the taped confession affected the outcome of the plea process. We conclude, in

Part III.B, that it did. Thus, because both of counsel’s stated reasons for not filing the motion were patently erroneous, and because the detailed, taped confession Moore gave to the police was highly damaging, we hold that counsel’s performance “fell below an objective standard of reasonableness” and, as such, was constitutionally deficient. For the reasons explained below, we also hold that the state court’s conclusion that counsel’s failure to file the motion was not prejudicial was contrary to Fulminante and constituted an unreasonable application of Strickland and Hill. A.

Deficient Performance The Supreme Court has clearly established that “a single, serious error may support a claim of ineffective assistance of counsel” — including counsel’s failure to file a motion to suppress. Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

In applying the deficient performance prong of Strickland to cases in which the alleged ineffective assistance consists of counsel’s failure to file such a motion, the Court has stated that the underlying claim — the claim purportedly requiring suppression-must be “meritorious.” Id. at 375, 382, 106 S.Ct. 2574; see also Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir.2003) (same).

However, “the failure to file a [meritorious] suppression motion does not constitute per se ineffective assistance of counsel.” Kimmelman, 477 U.S. at 384, 106 S.Ct. 2574; see also id. at 382, 106 S.Ct. 2574 (“Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim [involving counsel’s failure to file a motion to suppress], a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief.”).

Rather, to satisfy Strickland’s performance prong, the habeas petitioner must show that his counsel’s failure to file the meritorious motion to suppress “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Where, as here, the state asserts that filing a motion to suppress, even if meritorious, would have served no useful purpose because other evidence in its possession would establish the same facts, our inquiry with respect to deficient performance substantially overlaps with our inquiry regarding prejudice.

In his affidavit, Moore’s trial counsel stated two reasons and two reasons only for his decision not to file a motion to suppress (or, as counsel put it, his reasons for not filing a motion were “two-fold”): First, counsel believed that such a motion “would be unavailing” — i.e., not meritorious — because Moore “was not in custody at the time he gave the recorded interview and ... the statement was voluntary.” Second, counsel believed that, even if a motion to suppress Moore’s confession were meritorious, filing it would make little difference because Moore “had previously made a full confession to his brother and to Ms.

Ziegler, either one of whom could have been called as a witness at any time to repeat his confession in full detail.” We hold that both of counsel’s reasons for not filing the motion — that the motion was not meritorious on either ground, and that, even if it were, it would have served no purpose because of the other confessions— were erroneous.

Given the highly damaging nature of Moore’s taped confession to the police and the unconstitutionality of that confession, we hold that counsel’s failure to move to suppress the confession “fell below an objective standard of reasonableness” and thus constituted deficient performance, and that the state court’s conclusion to the contrary was contrary to Fulminante and an unreasonable application of Strickland. 1. The state has conceded that a motion to suppress Moore’s confession on involuntariness grounds would have been meritorious.

Moore urges two grounds on which a motion to suppress his confession would have been meritorious: first, that his confession was procured during a custodial interrogation, after Moore had invoked his right to counsel, in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378; and second, that his confession was involuntary, having been extracted as the result of a promise of leniency made by the interrogating officers.

The state court concluded that a motion to suppress on the Edwards ground would not have been meritorious because Moore “was not in custody when he gave his statement.” It did not, however, address the involuntariness question. On federal habeas review, the district court agreed with the state court with respect to the Edwards issue but found that a motion to suppress would have been meritorious on the involuntariness ground. Critically, the state does not challenge the district court’s determination on appeal.

Thus, although we would ordinarily review the district court’s factual findings for clear error, here we simply accept as correct the district court’s finding that Moore’s confession was involuntary — and, consequently, that a motion to suppress would have been meritorious on that ground. Accordingly, we will not engage in an extensive discussion as to why a motion to suppress would also have been meritorious if based on the ground that Moore was in custody and had asked for, but not been granted, his right to counsel prior to the interrogation.

However, because counsel’s error on this ground buttresses our conclusion that his performance was highly deficient, we set forth briefly in the footnote appended hereto the reasons we conclude that counsel’s failure to file on the Edwards ground was also objectively unreasonable. 2. Counsel’s failure to file a meritorious motion to suppress Moore’s confession “fell below an objective standard of reasonableness” and thus constituted deficient performance.

Having determined that a motion to suppress Moore’s confession, had it been filed, would have been meritorious, we must now consider whether counsel’s failure to file such a suppression motion was objectively unreasonable. We conclude that it was.

Counsel’s only explanation for not filing a motion to suppress, aside from his erroneous conclusion that such a motion lacked merit, was that he believed that suppressing Moore’s taped confession to the police would be futile because Moore had also confessed to his brother and half-brother’s girlfriend, and that “either one of[them] could have been called as a witness.” Counsel’s explanation is essentially an argument about prejudice: he did not file a motion to suppress, he asserts, because doing so would have made no difference in light of Moore’s confession to his brother and to Ziegler.

For reasons we explain in the prejudice

section of this opinion, infra

Part III.B, we reject counsel’s determination that suppressing Moore’s formal, taped confession to the police was purposeless because of the two informal confessions. Counsel’s decision not to file a motion to suppress was doubly erroneous: he both failed to recognize the clear merit of that motion on two grounds and failed, notwithstanding the clear teaching of Fulminante, to assess properly the damaging nature of the tape-recorded formal confession.

Thus, because we squarely reject both reasons Moore’s counsel offered to explain his decision not to file a motion to suppress, and because the confession unconstitutionally obtained by the police was so critical to the prosecution and so damaging to Moore, we hold that counsel’s failure to file a motion to suppress the confession “fell below an objective standard of reasonableness” and, accordingly, constituted deficient performance. The state court’s opposite conclusion was contrary to Fulminante and constituted an unreasonable application of Strickland.

The dissent argues that counsel’s performance was not deficient because “[ejven assuming the involuntariness of Moore’s confession, counsel gave a detailed explanation why pursuing the plea was in Moore’s strategic interest.” Dis. op. at 1145. Whatever “strategic interests” the dissent might project onto counsel’s thought process post hoc, counsel’s “detailed explanation,” put forward in his affidavit, makes clear these were not the considerations upon which he based his decision not to file a motion to suppress.

As explained above, counsel provided only two reasons for that decision, both of which were erroneous and objectively unreasonable. At no time did counsel suggest that he did not file the motion to suppress because he was concerned about the effect that doing so would have on Moore’s plea deal or for any other “strategic” reason, and neither the state court nor the district court even hinted that counsel’s failure to file the motion was based on any such consideration. Nor did the state itself so suggest at any time during this litigation and, of particular significance, it does not do so on this appeal.

Only our dissenting colleague offers such a contention, and does so initially on this appeal and directly contrary to the'facts in the record. All the “strategic interests” the dissent says counsel might have relied on — namely, counsel’s calculations regarding the charges Moore likely would have faced had he foregone the plea and his probability of success at trial — were factors counsel set forth in a wholly unrelated portion of his affidavit, calculations that related to a wholly different question.

These “strategic interests” were offered by counsel not in explanation of his failure to file the motion to suppress, but solely in justification of his advice to Moore to enter into the plea bargain. Given counsel’s specific explanation for his decision not to file a motion to suppress, that decision necessarily preceded and ultimately played a

part in counsel’s calculations regarding the plea offer. Those calculations were influenced by his decision on the motion, and are only as good as that decision. Thus, we must consider whether counsel’s decision not to file a motion to suppress Moore’s confession met the “objective standard of reasonableness” required of competent counsel.

In quoting at length the remainder of Moore’s counsel’s affidavit — the passages that are unrelated to counsel’s failure to file the suppression motion — the dissent attempts to obfuscate the issue by equating counsel’s failure to file the motion with his advice to accept the proposed plea agreement.

See dis. op. at 1142 (discussing the “strong and obvious strategic reasons to take the plea and forego the suppression motion”); dis. op. at 1143 (“[Counsel's advice to forego the motion and take the plea was based on numerous considerations other than these two factors.”); dis. op. at 1144 (discussing the “obvious strategic reasons ... that counsel had to advise Moore to take the plea”).

As counsel’s affidavit makes plain, however, while the decision not to file the motion to suppress influenced counsel’s separate advice to take the plea, the two decisions were distinct and the former was not influenced by the latter. But see dis. op. at 1143-44. The deficiency in the dissent’s reasoning becomes all the more apparent once we actually consult the record. The dissent argues that counsel’s “strategic” decision to pursue a plea agreement was reasonable because “counsel feared severe consequences if his client went to trial.” Dis. op. at 1142.

Specifically, in the dissent’s version of the record, the severe potential consequences included a possible “conviction of aggravated murder, [which] would have subjected Moore to the possibility of the death penalty or life imprisonment without the possibility of parole.” Id. at 1142 (emphasis added). However, as is the case with much of the dissent, the “severe consequences” that Judge Bybee retrospectively injects into counsel’s thought process were not the consequences that counsel actually contemplated.

To the contrary, as counsel’s affidavit makes clear, he “believed [that] if [Moore] went to trial he would be found guilty of assault, kidnapping, and murder (as was his codefendant, Roy Salyer, who chose trial as an option).” Appendix B at ¶ 17. Counsel feared that if Moore did not plead no contest, he would end up with the same sentence Salyer received after trial, but Moore and Salyer received exactly the same sentence: mandatory twenty-five year prison terms under Oregon’s Measure 11. See supra n. 3; see also Salyer v. Belleque, 2005 WL 555403, at *1 (D.Or. Mar.4, 2005).

Therefore, the “severe consequences” that Moore’s counsel feared, as opposed to those dreamed up by the dissent, amounted to precisely the same consequences that Moore actually faced under the “negotiated” plea agreement.

Given this outcome, the dissent’s reliance on the “reasonableness” of counsel’s plea advice is doubly curious — -not only does counsel’s affidavit make clear that his decision regarding the motion to suppress was unrelated to his subsequent plea negotiations, but counsel hardly won a bargain that “was the best [he] could do under the circumstances,” dis. op. at 1142, seeing as, by counsel’s own admission, the plea bargain resulted in the same mandatory sentence that counsel thought would be the likely outcome of a full trial.

In short, Moore’s plea gained him nothing, just as counsel’s failure to move to suppress the confessions was only to his client’s detriment. Knowles v. Mirzayance, — U.S. --, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009), does not suggest a contrary result. Knowles holds that trial counsel need not pursue a defense that he “reasonably conclude[s] ... [is] almost certain to lose.” Id. at 1421. Knowles further explains that this is true even if the defendant has nothing to lose by presenting that defense. Id. at 1422.

Knowles is entirely inapplicable here because Moore’s counsel did not “reasonably conclude” that the motion to suppress was “almost certain to lose.” Even the state has conceded that a motion to suppress Moore’s confession would have succeeded. Further, Moore’s counsel did not “reasonably” reach his erroneous conclusion, as he was entirely ignorant of the relevant law.

Had Moore’s counsel been reasonably informed about the law, he would have learned that Moore was almost certainly in custody at the time of his confession, see supra note 11; that Moore’s confession was almost certainly involuntary, see supra note 10; and that the admission of Moore’s confession would, as Fulminante explained, be deeply prejudicial notwithstanding Raymond and Ziegler’s potential testimony, see infra pages 1110-12.

In short, Moore’s counsel failed to suppress the confession because he was ignorant of clearly established law regarding custody, volition, and the prejudicial effect of a defendant’s confession. The incorrect, uninformed, and unreasonable decision made by Moore’s counsel is a far cry from the Supreme Court’s recognition in Knowles that a reasonable decision by counsel as to the merits of a defense does not constitute ineffective assistance.

The dissent’s attempt to elide the issues and obfuscate counsel’s reasons for failing to file a critical motion is directly contrary to what counsel himself stated under oath. So that no reader will be misled as to exactly what counsel’s reasons were — and were not — for failing to file a motion to suppress, we attach as Appendix B to the opinion a full and complete copy of counsel’s affidavit.

Even if the objective of not impairing plea negotiations might have been a reasonable strategy supporting some other counsel’s decision not to file a motion to suppress in some other case, it was simply not a reason that influenced Moore’s counsel or that his counsel considered as a basis for his decision. Nor has the state ever argued, or the state court ever suggested, at any level, that counsel had any such strategic consideration in mind. This is simply another argument that our dissenting colleague has for the first time conjured up on appeal.

We may not as appellate judges manufacture such arguments from scratch, especially where, as here, the facts in the record are directly contrary to the theory we are seeking to create on behalf of one of the parties. See Alcala v. Woodford, 334 F.3d 862, 871 (9th Cir.2003) (“We will not assume facts not in the record in order to manufacture a reasonable strategic decision forfthe defendant’s] trial counsel.”).

The dissent’s suggestion that counsel’s decision not to file a motion was motivated by strategic considerations concerning the plea negotiations “resembles more a post hoc rationalization of counsel’s conduct than an accurate description of [his] deliberations prior to” deciding against filing the motion. Wiggins, 539 U.S. at 526-27, 123 S.Ct. 2527. Where the issue is whether counsel’s performance was ineffective, we must decide that question based on what counsel’s reasons for his decisions actually were, not on the basis of what reasons he could have had for those decisions.

Thus, just as we may not second-guess a lawyer’s reasonable tactical or strategic decisions, Strickland, 466 U.S. at 689, 104 S.Ct. 2052, we may not deem unreasonable actions to have been “the result of reasonable professional judgment,” id. at 690, 104 S.Ct. 2052, by grounding them in considerations that were not, in fact, the lawyer’s reasons for acting or failing to act.

See Kimmelman, 477 U.S. at 385, 106 S.Ct. 2574 (“The trial record in this case clearly reveals that Morrison’s attorney failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the. State’s intention to introduce the bedsheet into evidence.”); Tomlin v.

Myers, 30 F.3d 1235, 1239 (9th Cir.1994) (rejecting counsel’s justification for his failure to move to suppress unconstitutional lineup identification evidence — that he did not believe it would be excluded — where counsel “did not indicate that that was the basis on which he chose not to object”). Here, as in Kimmelman and Tomlin, the record makes clear that counsel failed to file a motion to suppress not for strategic reasons but because of his ineffective performance of his duties.

As counsel himself explained, his failure to file a motion was based solely on his assessment of the motion’s likelihood of success and his judgment that failing to suppress Moore’s formal, taped confession to the police would be harmless in light of the two informal confessions that Moore allegedly had made to laymen. Because that assessment was grossly erroneous and clearly “fell below an objective standard of reasonableness,” we hold that Moore’s counsel’s performance was constitutionally deficient under Strickland. B.

Prejudice It has long been clear that Strickland’s prejudice prong requires no more than a “show[ing] that 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; id. (holding that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome”). In Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme Court confirmed that Strickland’s prejudice standard applies in the plea context; it held that prejudice in that context turns on “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59, 106 S.Ct. 366. “In other words,” the Court wrote, “in 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.” Id.

We are confronted here with a very clear and specific argument by the state as to why the failure of Moore’s counsel to move to suppress the taped confession Moore made while in custody in the police station was not prejudicial. The argument is not, as our dissenting colleague wishes it were, that the police had so much evidence against Moore that Moore’s formal confession was unlikely to affect the result. Had that been the state’s contention, we would have had very different briefs, very different oral arguments, and a very different majority opinion, although not a different result.

It is not the function of appellate judges, however, to decide cases that the parties have not presented to them. Here, the state’s sole argument as to prejudice is straightforward and succinct: “[Pjetitioner previously had confessed ‘the whole story’ that he told police to his brother and told another friend, Debbie Ziegler, ‘what had happened.’ Either of those people could have been called as witnesses to repeat the confession.... In light of this, petitioner failed to show ... that he was prejudiced by counsel’s decisions.” State’s Br. at 18.

The state’s argument mirrors Moore’s counsel’s explanation for why he did not file the motion, see Counsel’s Affidavit at 2 ¶ 4 (concluding that a motion to suppress “would be unavailing” because Moore “had previously made a full confession to his brother and to Ms. Ziegler, either one of whom could have been called as a witness ... to repeat his confession in full detail”), as well as the state court’s conclusion as to prejudice, see State Court decision at 6 ¶ 8 (“Both Raymond Moore and the friend could have been called as witnesses to repeat petitioner’s confession.

A motion to suppress would have been fruitless.”) (citing Counsel’s Affidavit) (citation omitted). Critically, at no point does the state argue — nor did the state court hold — that counsel’s failure to file the motion was not prejudicial because the state had other evidence in its possession that would have caused Moore to accept the plea rather than go to trial.

The state’s argument and the state court’s decision are limited exclusively to the contention that Moore had confessed to two lay persons and for that reason the exclusion of his formal confession to the police would have made no difference to Moore’s decision to plead. As a result, our analysis is limited to the specific question whether the existence of an informal “confession” to two lay witnesses makes counsel’s failure to move to suppress Moore’s formal, taped confession to the police non-prejudicial.

The state court found, as a matter of fact, that because Moore “had previously confessed his participation in the crime to his brother ... and another friend,” both of these individuals “could have been called as witnesses to repeat petitioner’s confession.” It then concluded, as a matter of law, that because “[b]oth Raymond Moore and the friend could have been called as witnesses to repeat petitioner’s confession ... [a] motion to suppress,” even if successful, “would have been fruitless.” Assessing the state court’s decision under AEDPA, we conclude that its prejudice determination constituted “an unreasonable application of[] clearly established Federal law” under 28 U.S.C. § 2254(d)(1).

Even granting the factual assumption underlying the state court’s prejudice determination — ie., that Raymond and Ziegler would have testified to a version of Moore’s informal confession — its determination that counsel’s failure to suppress the formal taped confession was not prejudicial because Moore had previously told his relative and a relative’s girlfriend about his participation in the killing of the victim was contrary to clearly established Supreme Court law. Indeed, the Supreme Court squarely rejected a markedly similar argument in Arizona v.

Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302, a case that is, a fortiori, controlling here. In Fulminante, the defendant confessed, while in prison, to a paid informant who offered protection from “tough treatment” in exchange for the confession; he also confessed to the informant’s wife following his release from prison. 499 U.S. at 283-84, 111 S.Ct. 1246 (internal quotation marks omitted). Fulminante claimed that the confession to the informant was coerced and that its admission at trial violated his rights under the Fifth and Fourteenth Amendments. Id. at 284.

The state supreme court, not unlike the state court here, found that the admission of the defendant’s coerced confession was harmless because an “admissible second confession ... rendered the first confession ... cumulative.” Id. at 296, 111 S.Ct. 1246. The state court in Fulminante concluded that “due to the overwhelming evidence adduced from the second confession, if there had not been a first confession, the jury would still have had the same basic evidence to convict.” Id. at 297, 111 S.Ct. 1246 (quoting State v. Fulminante, 161 Ariz. 237, 778 P.2d 602, 611 (1988)) (internal quotation marks omitted).

The Supreme Court unequivocally rejected this argument. The Court held that because “the two confessions reinforced and corroborated each other ... one confession was not merely cumulative of the other,” id. at 299, 111 S.Ct. 1246, and therefore concluded that the error was not harmless, id. at 297, 111 S.Ct. 1246. Fulminante stands for the proposition that the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial. Here, too, the formal confession to the police would reinforce and corroborate the informal confessions.

But, here, the prejudice is far greater than with the type of confessions involved in Fulminante. Unlike in Fulminante, the unconstitutional evidence here did not involve simply a second recitation by a second lay witness of an account of an informal confession. Rather, here the evidence that counsel should have sought to exclude was a formal taped confession in which Moore himself described in detail, in his own words and his own voice, his participation in a killing in response to detailed questioning by trained investigators in the police station.

Such a formal confession would, without question, be far more persuasive to a jury than Moore’s statements to two lay witnesses — statements that Moore’s brother Raymond and his half-brother Lonnie’s girlfriend might or might not have been willing to recount, but that would in any event have lacked the flavor, details, specificity, and completeness of the taped confession.

There can be little doubt that a taped recording of a defendant’s confession taken with all the requisite formalities by police officers and played to a jury that hears the defendant’s confession in the defendant’s own words from his own lips (or even from a reading of a transcript of his confession) is in no way comparable in its impact on the jury, and is indeed far more inculpatory in substance and effect, than a recitation by a layperson of the defendant’s informal and unrecorded account of the incident — in this case, a recitation by witnesses sympathetic to the defendant who would undoubtedly be reluctant to do unnecessary harm to his case and whose testimony, to the extent that it might be adverse, would be subject to rigorous cross-examination by defense counsel whose efforts at impeachment they would be inclined to support.

Admission of Moore’s formal, tape-recorded confession would certainly have “reinforced and corroborated” the informal accounts reported by two lay witnesses. Fulminante, 499 U.S. at 299, 111 S.Ct. 1246.

The state court’s finding that a motion to suppress a recorded confession to the police would have been “fruitless” due to the fact that Raymond or Ziegler “could have been called as witnesses to repeat[Moore’s] confession” was without question contrary to clearly established federal law as set forth in Fulminante The probability that Moore would not have pled to a felony murder charge with a mandatory twenty-five-year sentence had his counsel filed a motion to suppress the taped confession is more than “sufficient to undermine confidence in the outcome” under Strickland.

Without Moore’s formal, taped confession, the state’s case would have been far weaker. As the Supreme Court held in Fulminante, “[a] confession is like no other evidence.” 499 U.S. at 296, 111 S.Ct. 1246.

The Fulminante Court emphasized the weight of a defendant’s confession: A “defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.... [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.” Id. (quoting Bruton, 391 U.S. at 139-40, 88 S.Ct. 1620 (White, J., dissenting)) (omission and alteration in original); see also Taylor v.

Maddox, 366 F.3d 992, 1017 (9th Cir.2004) (“[W]e are mindful of the Supreme Court’s admonition as to the devastating power of confessions.” (citing Fulminante, 499 U.S. at 296, 111 S.Ct. 1246)).

When that confession is recorded on tape and played to a jury, which hears it in the defendant’s own voice, or when the defendant’s own words are transcribed and read directly to the jury, the confession is of course far more harmful than that recounted by a lay witness — a witness who is subject to cross-examination on the basis of the accuracy of his recollection or even on the basis of his veracity, bias, or self-interest — who simply tells the jury what the defendant purportedly said in an unrecorded informal discussion.

It is likely that, without the benefit of Moore’s formal, tape-recorded confession to the police officers, the state would not have been able to secure a plea on the basis of the informal confessions. Even assuming that the prosecution was confident that Raymond or Ziegler would have testified at a trial, it is far from clear what those witnesses would have said or to what extent their testimony would have been persuasive to a jury, although it is certain that their second-hand reports would not have been nearly as damaging as Moore’s own taped confession.

Critically, the state court made no findings as to the contents of what Moore had told Raymond or Ziegler or what details they might have been able to recount at trial. Thus, the record falls far short of establishing that the potential testimony of Raymond and Ziegler would have been sufficient to cause Moore to accept so harsh a plea agreement— especially because Raymond would likely have been a hostile witness and there is little evidence that Ziegler could have contributed anything.

In addition, as noted already, the plea agreement accepted by Moore did nothing to reduce his sentence, as his co-defendant received an identical mandatory minimum sentence after going to trial. Accordingly, exercising “extreme caution,” as Fulminante requires us to do, Fulminante, 499 U.S. at 296, 111 S.Ct. 1246, we cannot conclude that counsel’s failure to move to suppress Moore’s formal, taped confession was harmless. The dissent criticizes our application of Fulminante, arguing that it actually “supports the exact opposite conclusion” from our holding. Dis. op. at 1153.

Specifically, the dissent contends that Fulminante's description of the weight of confessions applies to Moore’s informal confessions to Raymond and Ziegler as well and that, consequently, Fulminante supports the conclusion that Moore’s formal, taped confession was not prejudicial because the two lay confessions also carried unique weight. Id. In advancing this argument, the dissent entirely misses the point of Fulminante. In that case, the Supreme Court held that the admission of the coerced confession was prejudicial notwithstanding the availability of another confession to a lay witness.

Under the dissent’s logic, the other confession Fulminante made to a lay witness would have rendered his coerced confession nonprejudicial, and his ease would have come out the opposite way: his conviction would have been affirmed, not reversed. But that, of course, was not the outcome of Fulminante. Indeed, our application of Fulminante is fully consistent with this court’s recent en banc decision in Anderson v. Terhune, 516 F.3d 781 (9th Cir.2008) (en banc), an AED-PA case involving a confession obtained in violation of the defendant’s Fifth Amendment right to silence.

In Anderson, we held that the state court had unreasonably applied the clearly established law of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in concluding that the police’s continued interrogation, which resulted in the defendant’s confession, after the defendant had stated, “I plead the Fifth,” did not violate the Fifth Amendment. Anderson, 516 F.3d at 790-91. In determining that the Miranda violation was not harmless, we did not even consider the other evidence the state had presented to tie the defendant to the crime, or whether the confession would have repeated such evidence.

Rather, relying on Fulminante’s guidance that a “defendant’s own confession is probably the most ... damaging evidence that can be admitted against him,” id. at 792 (quoting Fulminante, 499 U.S. at 296, 111 S.Ct. 1246) (internal quotation marks omitted), we concluded that the “prejudice from Anderson’s confession cannot be soft pedaled” because the “confession was central to the conviction,” id. As in Anderson, Moore’s formal, taped confession was central to the state’s ability to secure a plea.

The count to which Moore pled carried an extremely harsh mandatory minimum sentence as a result of the recent passage of a state ballot measure. There is at least a reasonable probability that, had his confession to the police been suppressed, Moore would have insisted on going to trial rather than pleading to the offense to which he did, an offense that carried with it so severe a mandatory sentence — the same 25 year Measure 11 sentence that his co-defendant Salyer received after going to trial. In light of these considerations, the only reasonable conclusion is that Moore has established Strickland prejudice.

Our task on habeas is to examine the state court’s decision under the standards established by AEDPA. The state court held that counsel’s failure to move to suppress Moore’s taped confession was not prejudicial for the sole reason that he had also confessed to two lay witnesses. In reviewing that decision, we have, following the law, based our analysis on the decision itself and the arguments made by the state on appeal.

The state argued before the district court and this court, consistent with its argument to the state court, and consistent with the state court’s decision, that Moore’s counsel’s performance was not prejudicial for one reason and one reason only: Moore had confessed to Raymond and Ziegler, who could have been called as witnesses, thereby rendering the suppression of the confession of no practical significance.

As discussed supra, that argument is wholly lacking in merit and the state court’s conclusion that Moore was not prejudiced by counsel’s failure to file a motion to suppress is objectively unreasonable under clearly established Supreme Court law. Fulminante permits no such construction of the law, and such a misconstruction is unreasonable under any standard.

To reach the opposite conclusion, the dissent once again develops its own set of facts and its own arguments — arguments that were never conceived of by the state nor suggested before the state court, the district court, or this court, a set of facts and arguments to which the petitioner has never had an opportunity to respond.

The case now presented on the state’s behalf for the first time has been created in its entirety by our extremely able, talented, and experienced colleague; it is based on the testimony of witnesses and evidence never mentioned or relied upon by the state in its arguments regarding prejudice. Further, the dissent creates and relies upon testimony that it assumes inevitably would have supported the state’s case, without any evidence in the record as to the substance or availability of such testimony, or, even more important, its admissibility.

No court in this case has undertaken the formidable factual inquiry necessary to determine the admissibility — and in some instances, substance — of the evidence upon which the dissent relies. The record discloses little about how and when most of this evidence became known to the state, making it impossible for us to determine whether that evidence is, as seems likely, a “fruit of the poisonous tree” — a product of Moore’s confession. To make this determination would require us to find a multitude of facts for the first time on appeal, a function that we are neither equipped nor permitted to perform.

See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (observing that a federal appellate court “lack[s] the factfinding and record-developing capabilities of a federal district court”). Even apart from concerns about inappropriate appellate factfinding, we simply decline to base our decision on arguments and theories that the state has never offered, and which it has therefore forfeited.

It would work great prejudice to the petitioner were we to affirm the denial of his habeas petition on the basis of such speculative arguments and assertions offered for the first time by a member of this court— arguments and assertions to which Moore has had no occasion, opportunity, or reason to respond.

Without any indication from the state as to what evidence it may have possessed and why that evidence may have rendered counsel’s failure to suppress the confession harmless, it is simply impossible for a petitioner to respond to the state’s “evidence” or “arguments.” Our prior decisions disapprove of such practice. Indeed, under our precedent, the state has doubly forfeited the fact-bound alternative theories of prejudice that our dissenting colleague creates and advances on its behalf.

Not only did the state forfeit any such contentions by not raising them on appeal, but it first forfeited these theories in federal court by failing to raise them in the district court. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir.1996) (“The decision to consider an issue not raised below is discretionary, and such an issue should not be decided if it would prejudice the other party.”).

The Supreme Court has explained that this forfeiture rule “is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide” and that “it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).

The forfeiture rule (sometimes erroneously called the waiver rule) applies equally to arguments, factual assertions, and legal theories that were not urged below. See Gieg v. DDR, Inc., 407 F.3d 1038, 1046 n. 10 (9th Cir.2005) (holding that appellees had waived argument not raised below); Int’l Union of Bricklayers & Allied Craftsman Local Union v. Martin Jaska, Inc., 752 F.2d 1401, 1404-06 (9th Cir.1985) (finding waiver of factual assertions not raised in the district court); see also A-1 Ambulance Serv., Inc. v.

County of Monterey, 90 F.3d 333, 337-39 (9th Cir.1996) (declining to consider legal theory that would require further development of the factual record). In this case, the state’s failure to raise below the argument that counsel’s failure to move to suppress the taped confession was harmless for reasons other than the existence of the two informal confessions precludes us from considering that argument on this appeal.

Moore has had no opportunity to introduce evidence on the crucial question of which parts of the case the dissent now creates for the state are based on “fruits of the poisonous tree.” Nor has he had any opportunity to challenge any contention the state might advance that such evidence was obtained independent of any connection with the confession, or to examine any prosecution witness who might testify to that effect. Finally, as some of the evidence is not even in the record, he has not had the opportunity to challenge the dissent’s assertion that such evidence actually exists.

The state forfeited these arguments a second time by failing to raise them before this court. In Stuard v. Stewart, 401 F.3d 1064 (9th Cir.2005), we squarely rejected the notion that this court could create arguments for the state that it did not raise on appeal. See id. at 1067 (holding in an AEDPA case that “we are not going to construct an argument for the state sua sponte, depriving [the defendant’s] counsel of a fair chance to respond to it”). We ordinarily will not consider arguments not raised by a party in its opening brief, especially where doing so would prejudice the opposing side. See United States v.

Ullah, 976 F.2d 509, 514 (9th Cir.1992); see also Fed. R.App. P. 28(a)(9), (b). “We apply that rule with some vigor against criminal defendants; we should be no less vigorous in applying it against the government.” United States v. Ziegler, 497 F.3d 890, 901 (9th Cir.2007) (Kozinski, J., dissenting from denial of rehearing en banc) (citation omitted).

The state court’s failure to recognize that Moore’s confession was obtained unlawfully, along with its and the state’s exclusive reliance on the other “confessions” to establish prejudice, resulted in the court’s not making any determination as to whether all, or what parts of, the evidence on which the dissent now relies was obtained as a result of the unlawful confession and was thus inadmissible in evidence. See Appendix A, infra, at 1119-20. Nor, for similar reasons, as we have noted, did the district court undertake any such inquiry.

Although it seems likely that the evidence on which the dissent relies (to the extent that it exists at all) was principally obtained as a result of Moore’s confession, we cannot determine those facts here. Because no factual determination has ever been made as to the “fruits of the poisonous tree” and because the state has repeatedly failed to offer, and has thereby forfeited, any argument that some unproven potential evidentiary case as a whole might have rendered counsel’s deficient performance non-prejudicial, we cannot and do not here consider the dissent’s extensive evidentiary analysis.

Rather, we are left only with determining whether the difference between the weight of Moore’s statements to his brother and his half brother’s girlfriend and his formal taped confession to the police is such that the exclusion of the latter undermines our confidence that Moore would have entered into so harsh a plea agreement. Considering only the arguments that are properly before us, we hold that Moore has established Strickland prejudice.

Conclusion Moore’s counsel inexplicably failed to file a motion to suppress — a motion that could easily have been based on either of two grounds, each of which was meritorious and each of which would in all likelihood have resulted in the suppression of his confession and its fruits. The state does not contest the finding that Moore would have prevailed on one of them — that his confession was involuntary. The reasons offered by counsel for his conduct were both limited and unmeritorious (and bear no resemblance to the reasons suggested by the dissent).

His inexcusable failure to move to exclude the confession afforded the state the opportunity to prosecute Moore on the basis of the most damaging inculpatory evidence that can be introduced against a defendant, and thereby to exact a no-contest plea to the egregious offense of felony murder with a mandatory twenty-five-year sentence. We conclude that Moore was prejudiced by his counsel’s failure to file the suppression motion and that, because counsel’s performance fell below an objective standard of reasonableness, he received ineffective assistance of counsel under Strickland.

A contrary ruling would necessarily constitute an unreasonable application of clearly established Supreme Court law. Neither Fulminante nor Strickland is susceptible of an objectively reasonable

interpretation, even though erroneous, that would support a determination that counsel’s performance in this case was competent or that Moore suffered no prejudice as a result of his representation. Ignoring Moore’s request, the state court failed to consider whether the confession was involuntary on the ground that his will was overborne by improper promises of leniency. The district court found, however, that Moore’s confession was made involuntarily.

Because the state does not challenge that determination on appeal, it has conceded that a motion to suppress on involuntariness grounds would have been meritorious. Despite the merit of such a motion, Moore’s counsel failed to move to suppress what was “probably the most probative and damaging evidence that [could] be admitted against him,” Fulminante, 499 U.S. at 296, 111 S.Ct. 1246 (quoting Bruton, 391 U.S. at 139, 88 S.Ct. 1620 (White, J., dissenting)).

He did not fail to make the motion for any strategic reasons but simply because he understood that Moore had told two other persons what had happened on the day in question and concluded that as a result the admission of his formal taped confession to the police would be harmless. Given that the failure was in fact highly prejudicial, counsel’s conduct fell below an objective standard of reasonableness and therefore was “deficient” under Strickland. A contrary decision would constitute an objectively unreasonable application of clearly established Supreme Court law.

The state court held that Moore was not prejudiced by his counsel’s conduct because informal confessions to two lay witnesses could have been introduced. In doing so, the state court erred unreasonably. Its determination that the taped confession was harmless was contrary to clearly established Supreme Court law as set forth in Fulminante.

It is likely that, but for counsel’s failure to file a suppression motion, Moore would have not entered into the plea agreement that required him to plead no contest to a felony murder charge with a severe mandatory twenty-five-year sentence' — the same sentence received by a co-defendant after trial. As a result, our confidence in the outcome is undermined. Accordingly, Moore is entitled to a writ of habeas corpus directing the state to permit him to withdraw his plea or to release him from custody. Accordingly, we reverse the district court and remand for the issuance of the writ. Reversed and Remanded.

APPENDIX A In this Appendix we will discuss the facts and theories that our dissenting colleague has created and advanced on behalf of the state — facts and theories not relied on by the state court, not suggested by the state in the district court, and not argued to this court by either party — facts and theories advanced for the first time by an appellate judge, in contravention of all the rules of appellate procedure. Here, we will explain why, even had the state not forfeited the alternative theories of prejudice the dissent creates for it, we would reject them on the merits.

With respect to Moore’s co-defendant, Salyer, although the district court believed that he “apparently provided detectives with the details of the crime when he took them to the location where the shooting occurred,” there is no evidence in the record as to what information he conveyed to them. Salyer never gave a sworn statement, never testified, and was never cross-examined. There is simply no way of knowing precisely what Salyer’s testimony might have been, especially under the stress of cross examination.

More important, as we explained in footnote 4 of the opinion, it is almost certain that Salyer would not have testified against Moore in any event but would have taken the Fifth Amendment instead, as he too was facing trial for his involvement in Rogers’s death. In fact, Salyer was ultimately tried and his appellate and post-conviction proceedings did not end until long after the date on which Moore would have gone to trial had he not pled. See Salyer v. Belleque, 2005 WL 555403 (D.Or. Mar.4, 2005) (denying Salyer’s federal habeas petition).

The dissent argues that the state’s felony murder case was “airtight” even without Moore’s confession to the police, his alleged confession to Raymond and Ziegler, and the testimony of his co-defendants. Dis. op. at 1147, 1148. This is simply not so. This dissent goes on at length about all of the damning facts that are “undisputed” or “indisputable” in this case. Many of these “undisputed” facts, however, appear to be drawn by the dissent from the factual basis the state offered at Moore’s plea colloquy and sentencing.

See, e.g., dis. op. at 1147-48 (“[T]he car’s license plates had been covered over with duct tape.”). These facts, of course, became “undisputed” only after Moore had decided to plead no contest.

The fact that Moore did not object to factual assertions made by the state’s attorney at his plea colloquy, after he had decided not to contest the charges (because doing so not only would have served no purpose but would also have been hopeless with his formal confession in the record), does not mean that, without Moore’s illegal confession and its fruits, the state would have been able to prove the assertions beyond a reasonable doubt at trial.

More important, nearly all of the evidence the dissent discusses would have been inadmissible at trial because it derived either directly or indirectly from Moore and Woolhiser’s involuntary confessions. In particular, the authorities learned about the existence and identities of the witnesses at Woolhiser and Ziegler’s residence — who, the dissent insinuates, could have been called to testify to Salyer’s “ranting and raving” and the trio’s plan to scare Rogers — as a result of the illegal confessions.

It is also from the confessions that the police learned about the “multiple witnesses” who allegedly saw Moore, Salyer, and Woolhiser arrive at and later return to Rogers’s residence. Dis. op. at 1148. The police found the gun, too, because Woolhiser agreed during the unlawful interrogation to show the police “exactly” where it was located.

And while the record contains no explanation regarding how the police located the car, which contained additional physical evidence, in California, it seems highly likely that they did so using information supplied by the defendants after they had “let the cat out of the bag” by giving their involuntary confessions. Had Moore’s counsel filed a motion to suppress on the ground the state concedes is meritorious, and had that motion succeeded, which is highly probable, all of this evidence would likely have been excluded as “fruits of the poisonous tree.” See Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The fruits of involuntary confessions — including those that are extracted with promises of leniency. — may not be admitted at trial. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (“We hold that ... immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination .... Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords [the protection required by the Fifth Amendment].

It prohibits prosecutorial authorities from using the compelled testimony in any respect .... ”); see also United States v. Patane, 542 U.S. 630, 644, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004) (plurality opinion) (“[T]he Court requires the exclusion of the physical fruit of actually coerced statements.... ”); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir.1990). Thus, a successful motion to suppress would have triggered the “fruits of the poisonous tree” doctrine, rendering inadmissible all evidence obtained as a result of Moore’s confession.

Nor would Woolhiser’s confession— which was obtained during the same coercive interrogation as Moore’s. — or its fruits be admissible against Moore. See Douglas v. Woodford, 316 F.3d 1079, 1092 (9th Cir.2003) (“[I]llegally obtained confessions may be less reliable than voluntary ones, and thus using a coerced confession at another’s trial can violate due process.” (citing Clanton v.

Cooper, 129 F.3d 1147, 1157-58 (10th Cir.1997) (“[A] person may challenge the government’s use against him or her of a coerced confession given by another person.”))); see also Clanton, 129 F.3d at 1158 (collecting similar cases from the First, Fifth, Sixth, and Seventh Circuits).

Furthermore, there is no evidence in the record, nor any assertion by the prosecution, that the physical and eyewitness evidence on which the dissent relies was obtained through a source independent from the illegal confessions or that the connection between the confessions and the evidence was “so attenuated as to dissipate the taint.” See Wong Sun, 371 U.S. at 487, 83 S.Ct. 407 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)) (internal quotation mark omitted).

The dissent’s suggestion that much of the evidence on which it relies to construct the state’s hypothetical and “airtight” case was based “solely on statements made by Moore, the admissibility of which has never been questioned” is unsupported by the record. See dis. op. at 1148 n. 13. The statement by Moore to which the dissent alludes, which he made to the police the evening before his confession, does not contain nearly as much information as the dissent makes out.

Moore stated only that Salyer “was talking about going and confronting [Rogers] about the break in at the cabin and he also wanted to talk to [Rogers] about the boom box and who took it.” He said nothing about “ranting and raving,” nothing about “scarfing] [Rogers] out of ever committing another [robbery],” and nothing about the existence or number of witnesses who observed the defendants planning their visit to Rogers.

Moore further stated that, upon arriving at Rogers’s motor home, “some guy” confronted Woolhiser, but Woolhiser “walk[ed] away” and “over towards to [sic] motor home.” According to Moore’s statement, Salyer “was talking to [Rogers] about the stolen stuff and the punctured tires ____ [T]hey only stayed at the motor home for approximately 15-20 minutes or just enough time to drink two beers.” At no point did Moore discuss covering the car’s license plates with duct tape, nor did he mention “other people,” beyond the one person who confronted Woolhiser, being present at Rogers’s home.

Certainly he said nothing about kidnapping Rogers, beating him, putting him in the trunk, or shooting him. In fact, he denied doing so. The evidentiary problems that a successful suppression motion would have created for the state are therefore quite severe. Establishing that critical evidence was discovered independently of the confessions would have presented serious if not insurmountable problems.

For purposes of this habeas appeal, however, the most important point is that the state made no attempt to separate any admissible evidence from the patently excludable evidence, and no court ever undertook that task. As a result, we cannot now consider the question or make a determination on appeal, for purposes of assessing the state’s case, that any of the “evidence” referred to by our dissenting colleague is admissible. Without the fruits of Moore and Woolhiser’s confessions, the prosecution would have had tremendous difficulty meeting the high burden it faced.

In view of the weaknesses in the state’s case, it is highly unlikely that, in the absence of his own recorded confession, Moore would have pled to felony murder. We thus cannot have any confidence that the outcome would have been the same had counsel filed a motion to suppress. APPENDIX B . The dissent, disregarding Fulminantes commands, creates its own version of harmlessness in this case. It envisions a record that shows that the police were aware of a set of facts that would make conviction of felony murder inevitable regardless

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