Professor Barbara Creel Succeeds in Habeas Corpus Appeal

Barbara CreelA recent ruling by the U.S. Ninth Circuit Court of Appeals was the second time the court affirmed an argument set forth by UNM Law Professor Barbara Creel ('90), and issued a writ of habeas corpus as relief for constitutional violations of her client’s case at the state court level.

Creel represented her client, Randy Moore, from the beginning of the habeas case by filing a petition on his behalf in 2001 when she was a federal public defender in Oregon. She represented him on appeal and argued before the Ninth Circuit in March 2005. Last July she finally received a response for years of hard work.

The case involved Moore, who admitted to killing a friend during a fight. He was sentenced to 30 years in federal prison based on a taped confession at the police station that all parties agree was coerced and therefore unconstitutional. Even more egregious, the judges found, was that Moore's trial counsel failed to recognize and file a motion to the unconstitutionality of the confession.

The U.S. District Court, acting on the habeas petition filed by Creel that outlined a list of constitutional violations, agreed that Moore’s confession was involuntary and coerced, and therefore could not be used against him. But the court considered it a "harmless error" and refused to grant the writ. .

On appeal, Creel continued to argue that the ineffective assistance of trial counsel allowed a coerced confession to be used against Moore and that the confession was indeed prejudicial. A year ago, in published opinion, the appellate court agreed. That ruling was challenged by the State of Oregon, which sought a rehearing en banc.

Last July, the Ninth Circuit judges denied the request for rehearing and again issued the writ of habeas corpus in a 103-page opinion outlining the constitutional infirmities. The new opinion reaffirms that Moore is entitled to relief as described in the first opinion.

Given the strict standards for proving both a coerced confession and ineffective counsel in a post conviction case, Creel, who joined the UNM law faculty in 2007, was pleased for her client.

"When I first met with him, I told him that our chances of succeeding in a federal habeas petition were very slim. Because federal habeas statutes require strict deadlines and procedural rules, deference to the state court decision and an extremely high standard for relief, habeas is an uphill battle even in the best cases in which the constitutional error has been preserved and you have a good record," she says. "Very few habeas petitions filed in U.S. district courts by state prisoners in non-capital cases are granted and this case reaffirms that our constitutional rights afforded to us as individuals are worth protecting, that we can’t just throw people in jail based on improper interrogation tactics."

The case has been stayed for 90 days to allow the state to file a writ of certiorari. If the U.S. Supreme Court refuses to hear the case, Moore will be released after 17 years of imprisonment, unless the state decides to refile charges, in which case he will finally have his day in court or receive a fair remedy by the State of Oregon.