dissenting from denial of rehearing en bane:
I respectfully dissent from the order denying rehearing en banc. The panel’s opinion fails to follow the standard for determining ineffective assistance of counsel set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In particular, it fails to follow Supreme Court guidance on deference and improperly conflates the distinct concepts of deficient performance and prejudice, holding, in essence, and incorrectly, that because counsel’s performance was deficient, it was also prejudicial. Furthermore, the majority fails to accord the state court decision the deference the Supreme Court has held it is due under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1). See Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1419-20, 173 L.Ed.2d 251 (2009). We should have reheard this case en banc to correct these departures from the Supreme Court’s guidance and to ensure that the panel’s opinion not give rise to a wave of new post-conviction petitions second-guessing acts by defense counsel engaged in prior to the defendants’ pleas.
I
Several salient facts control this case and undermine the panel’s findings of deficient performance and prejudice. First, we should focus on the reasons proffered by counsel for not filing a motion to suppress, not because the motion would not have been successful, but because the reasons bear on the real issue in this case: whether the attorney rendered ineffective assistance by counseling Moore to accept the plea bargain. The first two reasons were that (1) Moore did not think he was in custody, and (2) Moore had previously made a full confession to his brother, Raymond, and a woman named Debbie Ziegler. Affidavit of Kim Jordan, pp. 1-2. The third reason, which is also set forth in the attorney’s affidavit, is that Moore affirmed to counsel that the confession he had given to the police was accurate.1
Second, any evaluation of counsel’s decisions should take into account the quantum of evidence that counsel could reasonably have expected the prosecutor to have gathered, even if Moore’s confession were suppressed. As persuasively set forth by Judge Bybee in his dissent, counsel recognized that the prosecutor had a very strong, if not air-tight case, regardless of Moore’s confession.2 When these essentially undisputed facts are considered, *1163counsel’s decision not to file a motion to suppress, even though based on a mistaken understanding of the law, was neither unreasonable nor prejudicial.
Furthermore, in light of the other evidence that counsel reasonably expected the prosecutor to gather legally, it is important to recognize that the charge Moore pled to was felony-murder. Counsel’s concern had to be that Moore would be charged with aggravated murder, which would have potentially subjected him to the death penalty or life imprisonment. See Moore v. Czerniak, 534 F.3d 1128,-1176-77 (9th Cir.2008) (Bybee, J., dissenting). Moore admitted that he had held the gun and had fired a single shot through Rogers’s temple, causing his death.3 Moore’s claimed lack of intent is hardly compelling, and his counsel thought it “would have been malpractice” not to alert Moore to the possibility that he might be charged with aggravated murder. See Jordan Affidavit pp. 3-4. Thus, counsel had very good tactical reasons, even compelling reasons, for advising Moore to plead no-contest to the charge of felony-murder.4
*1164The fact that Moore had substantial, if not compelling, reasons to accept the plea bargain of felony-murder makes it very difficult to reconcile the majority’s opinion with the Supreme Court’s recent opinion in Mirzayance. In that case, the Supreme Court overruled our holding that counsel had rendered ineffective assistance of counsel by withdrawing a not guilty by reason of insanity (NGI) plea after the jury convicted Mirzayance of first-degree murder because the defendant had nothing to lose from pursuing the NGI plea. Mirzayance, 129 S.Ct. at 1418. Here, however, counsel, by arranging for Moore to plead no-contest to felony-murder, spared Moore from facing the possibility of the death penalty or life in prison. While a twenty-five year prison term may appear to be a long sentence, the finite nature of the term presents significant advantages to Moore. Moore saves his life and is assured of release from prison when he completes his twenty-five year term or is released early on parole or for good behavior. Unlike the situation in Mirzayance, where the defendant would not have been worse off if counsel had pursued the NGI plea, here, a failure to accept the plea bargain could have subjected Moore to a trial for aggravated murder with the possibility of the death penalty or life imprisonment.
The panel’s concern with the motion to suppress rather than the plea also fails to appreciate McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) and United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). In McMann, the Supreme Court reasoned:
In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.
397 U.S. at 770-71, 90 S.Ct. 1441 (footnote omitted). In Ruiz, the Court, in reversing the Ninth Circuit’s holding that required impeachment evidence to first be disclosed before a plea agreement would be held voluntary, observed “that the Constitution, in respect to a defendant’s awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor.” 536 U.S. at 630, 122 S.Ct. 2450. Here, regardless of the propriety of his confession to the police, Moore was informed of all the circumstances of the underlying crime, and his counsel reasonably understood that the state had more than sufficient evidence to convict Moore even without his confession. Pursuant to McMann and Ruiz there are no grounds for disturbing Moore’s plea of no contest.
The Supreme Court has repeatedly stated that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms,” that “(jjudicial scrutiny of counsel’s performance must be highly deferential,” and *1165that “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Mirzayance, 129 S.Ct. at 1420 (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). Even accepting that counsel should have filed a motion to suppress, and that it would have been granted, the ease against Moore would have remained overwhelming and accordingly, counsel’s advice to plead no-contest to the charge of felony-murder was neither deficient nor prejudicial.
II
Furthermore, our own views of counsel’s competence are only tangentially relevant. As the panel recognizes, “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).” Moore, 534 F.3d at 1136. In Mirzayance, the Supreme Court noted that under AEDPA, determinations of ineffective assistance of counsel are entitled to double deference. 129 S.Ct. at 1420. The question “ ‘is not whether a federal court believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether that determination was unreasonable — a substantially higher threshold.’ ” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). Moreover, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Mirzayance, 129 S.Ct. at 1420.
Here, the state court held a hearing on Moore’s post-conviction petition and denied relief. Moore, 534 F.3d at 1134. The state court thought that counsel’s failure to file a motion to suppress was reasonable, and it also found that the motion would have been “fruitless” because Moore had previously confessed to Raymond and Debbie Ziegler. Id. When Moore filed his federal habeas petition, the district court also found that there was no ineffective assistance of counsel because of Moore’s prior confession and the potential adverse testimony of Salyer. Id. at 1135.
The panel argues that Raymond’s and Ziegler’s testimony would not have been as powerful as Moore’s confession. See id. at 1148. Whether or not true, the panel does not answer the critical question: whether it was reasonable for the state court to determine that in light of Raymond’s and Ziegler’s potential testimony, as well as all the other evidence connecting Moore to the kidnaping and shooting, the motion to suppress would have been “fruitless.” In light of the other evidence available to the prosecutor, the fact that Moore had admitted that he committed the underlying crime to his counsel (and others), and the possibility that Moore could be charged with aggravated murder in addition to felony-murder, counsel’s decision to forego the motion to suppress and to recommend a no-contest plea to a charge of felony-murder, was certainly a reasonable decision.
It follows under the Supreme Court’s reading of AEDPA in Mirzayance, that even when the panel concluded that the state court’s determination that the motion to suppress would be fruitless was incorrect, it should nonetheless have deferred to that decision because it is not objectively unreasonable. See Mirzayance, 129 S.Ct. at 1420. Here, for the reasons well articulated by Judge Bybee in his dissent to the panel’s opinion, the state court’s and the district court’s determinations that Moore did not receive ineffective assis*1166tance of counsel if not correct are nonetheless clearly not unreasonable.5
Ill
The panel’s erudition cannot hide the problematic nature of its decision when the case is reviewed on its stark facts. In 1995, Moore admitted to participating in the kidnaping of Rogers and subsequently told at least two persons that during the kidnaping he had fired the single shot that had killed Rogers. Counsel managed to secure a no-contest plea to a charge of felony-murder that resulted in a twenty-five year prison term. Now, some fourteen years later, the majority would vacate the conviction and sentence because counsel failed to file a motion to suppress Moore’s confession to the police. This confession, however, was made after Moore had confessed to two other persons. Moreover, Moore and his counsel did not think that his confession had been coerced, and Moore has never questioned the veracity of his confession..
The panel argues that a motion to suppress the confession should have been made and would have been successful. But under the Supreme Court’s opinions in McMann, 397 U.S. at 770-71, 90 S.Ct. 1441, Ruiz, 536 U.S. at 630, 122 S.Ct. 2450, and Mirzayance, 129 S.Ct. at 1420, such a determination does not entitle Moore to relief. Rather, he must show that (a) counsel’s overall performance, particularly the advice to plead no-contest to felony-murder, was deficient, (b) counsel’s performance and advice was prejudicial, and (c) the state court’s contrary determination was objectively unreasonable. The underlying facts in this ease simply do not support such determinations. We should have taken this case en banc to correct the panel’s conflation of the performance and prejudice prongs of the Strickland standard for ineffective assistance of counsel and its failure to follow the Supreme Court’s guidance on deferring to counsel and to the reasonable determinations of state courts and district courts.
Finally, and equally important, the practical implications of our failure to take this case en banc are significant. The panel opinion creates out of whole cloth a new area of potential habeas relief where defense counsel is faced with a “Morton’s Fork” — a choice between two equally unpleasant alternatives. Filing a motion to suppress might have weakened the prosecutor’s hand, possibly, but not necessarily or even probably, resulting in the prosecutor offering a better deal. However accepting the plea bargain when offered protected the defendant from exposure to a much harsher sentence. As if labeling as ineffective defense counsel’s resolution of such an impossible dilemma weren’t bad enough, the panel opinion also sanctions federal habeas relief on this basis even where the strategy foregone has been declared “fruitless” by a state court. We should have taken this case en banc to ensure that the panel’s opinion does not give rise to a wave of new post-conviction petitions second guessing defense counsel’s every forbearance.
. Counsel's affidavit states:
I do not recollect any material statement of fact in the police report with which Mr. Moore disagreed. Mr. Moore always claimed his actual shooting of the victim was an accident, but there was never the smallest doubt that it occurred during a kidnap which began with an assault.
Jordan Affidavit pp. 2-3. She further states:
Mr. Moore believed that he was guilty of murder under the felony murder rule, although he felt that it was very unfortunate and lamentable that he was guilty since he always maintained that the actual firing of the shot was an accident rather than a premeditated act.
Jordan Affidavit p. 5.
. Judge Bybee notes:
Under section 163.115 of the Oregon Revised Statutes, Rogers’s killing was a felony murder if "it [was] committed by a person, ... who committed] or attempted] to commit [kidnaping or assault] and [the death occurred] in the course of and in furtherance of the crime the person [was] committing or attempting to commit.” It is undisputed that Moore, Salyer, and Woolhiser went to Rogers’s home, that Rogers was beaten, that he was bound with duct tape, and that he was *1163thrown into the trunk of the car they had borrowed, driven to a remote location, and shot in the temple. It is indisputable that Moore, Salyer, and Woolhiser, by virtue of their involvement in the felonies of kidnaping and assault, were guilty of felony murder under Oregon law. It is equally indisputable that Moore had no affirmative defense. Thus, to convict Moore of felony murder, all that the state needed to do was prove that he took part in Rogers’s kidnaping and that the murder furthered the kidnaping.
This would not have been hard. The state had both Roy Salyer and Lonnie Woolhiser in custody, and both could have been called to testify that Moore took part in the attack. The state court found that Moore and Woolhiser had also confessed to their older brother Raymond Moore as well as to Woolhiser’s girlfriend, Debbie Ziegler.....Before they left for Rogers’s residence, Salyer, Moore, and Woolhiser had been drinking with others at Ziegler's residence. Salyer was "ranting and raving” about how Rogers had broken into his cabin and slashed his tires. This was what prompted the trio to head to Rogers's residence — to confront him about the robbery and to scare him out of ever committing another one. Four witnesses, including Ziegler, observed this entire interaction and then observed the trio drive off to confront Rogers— in a car that Salyer had borrowed from another one of the guests.
When the trio arrived at Rogers’s residence, other people were there. These people witnessed Moore, Woolhiser, and Salyer arrive, and at least one of those people spoke with Woolhiser about what they were doing there. Another was able to identify all three defendants from a photo lineup. These people would also have been able to testify that at this point the car’s license plates had been covered over with duct tape.....There was also highly inculpatory physical evidence in this case. The day before Moore confessed, Salyer led police to the location of the revolver they had used. The police were unable to find it in the dark, but Woolhiser led them back to the same area the next day, at which point they recovered the weapon. When police found the car that the trio had used, they found blood in the trunk, as well as hair. Moore v. Czerniak, 534 F.3d 1128, 1181-82 (9th Cir.2008) (Bybee, J., dissenting) (footnotes omitted).
. Even the panel’s description of Moore’s version of the facts fails to place Moore in a good light:
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.
Moore, 534 F.3d at 1133.
. The panel cites the fact that Salyer went to trial and received the same twenty-five year sentence as Moore as suggesting that Moore did not benefit from his plea bargain. See Moore, 534 F.3d at 1143 n. 15. This assertion, however, overlooks the fact that Moore, not Salyer, held the murder weapon and fired the *1164single shot that killed Rogers. Thus, Salyer did not face the same risk as Moore did of being charged with aggravated murder.
. In Mirzayance, the Supreme Court commented: ”[b]ut, courts of appeals may not set aside a district court's factual findings unless those findings are clearly erroneous. Fed. Rule Civ. Proc. 52(a); Anderson v. Bessemer City, 470 U.S. 564, 573-574, 105 S.Ct. 1504, 84 L.Ed.2d 518 ... (1985).” 129 S.Ct. at 1421.