Moore v. Dickhaut

United States Court of Appeals
For the First Circuit
No. 14-1400
ANTHONY MOORE,
Petitioner, Appellant,
v.
THOMAS DICKHAUT,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien,
LLP was on brief, for appellant.
Argie K. Shapiro, Assistant Attorney General, Criminal
Appeals Division, with whom Maura Healey, Attorney General, was on
brief, for appellee.
November 22, 2016
HOWARD, Chief Judge. Appellant Anthony Moore filed the
instant habeas petition seeking to set aside his 2006 Massachusetts
conviction for unarmed robbery. See 28 U.S.C. § 2254. Moore's
sole contention on appeal is that the admission of certain
identification evidence at his trial violated due process. Because
the Massachusetts Appeals Court's adjudication of this issue did
not constitute an unreasonable application of Supreme Court
precedent, we affirm the district court's denial of Moore's
petition.
I.
Moore was convicted in connection with the robbery of a
Sovereign Bank branch located on Causeway Street in Boston.
Shortly after Moore's arrest on this charge, law enforcement
arranged for several bank employees to view a photo array. The
array included Moore's photograph, as well as seven other photos
selected by a computerized imaging system for their resemblance to
Moore. Two witnesses provided a positive identification of Moore.
About two months later, law enforcement conducted a
lineup for bank employees. A police officer who was not part of
the investigation selected seven "fillers" to be included along
with Moore. Defense counsel attended the lineup and made no
objection to the process. Four bank employees positively
identified Moore.
Moore filed a motion seeking to preclude the Commonwealth
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from introducing evidence of these pre-trial identifications, as
well as in-court identifications by the same witnesses. After an
evidentiary hearing, the state trial court denied Moore's motion.
With respect to the array, the court found that the "photos all
appear similar enough to each other so that no single individual
stands out." Along the same lines, the court also concluded that
the eight individuals in the lineup were "all similar in
appearance." In connection with both the array and the lineup,
the court found "that the police did not do or say anything" to
influence the witnesses to identify Moore. For these reasons, it
held that the identification procedures were not suggestive and
allowed the evidence to go to the jury. Ultimately, the jury
returned a guilty verdict.
The Massachusetts Appeals Court affirmed Moore's
conviction, rejecting the claim that the identification procedures
violated his constitutional rights. It held that those procedures
were "not so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification."
Commonwealth v. Moore, 929 N.E.2d 1001, 2010 WL 2773260, at *2
(Mass. App. Ct. July 15, 2010) (unpublished table decision)
(citation omitted). The Massachusetts Supreme Judicial Court
subsequently denied review. See 934 N.E.2d 826 (Mass. Sept. 16,
2010) (unpublished table decision).
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The federal district court subsequently denied Moore's
§ 2254 habeas petition, and we granted a certificate of
appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22.
II.
We review the district court's denial of Moore's
petition de novo. See Teti v. Bender, 507 F.3d 50, 56 (1st Cir.
2007). But, like the district court, we must afford a high degree
of deference to the Massachusetts Appeals Court's decision.
Indeed, under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), we may grant Moore's petition only if we find that
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." Williams
v. Taylor, 529 U.S. 362, 376 (2000) (quoting 28 U.S.C. §
2254(d)(1)). Because Moore develops no argument that the
challenged decision was "contrary to" Supreme Court precedent,1 we
restrict our inquiry to the issue of unreasonable application.
A state court unreasonably applies federal law where it
"identifies the correct governing legal rule . . . but unreasonably
applies it to the facts of the particular state prisoner's case."
1 Any argument on this point would, in any event, be
unavailing. Moore appears to concede that the Massachusetts court
applied the correct legal standard, and he points to no Supreme
Court precedent involving facts "materially indistinguishable"
from those at issue here. Williams, 529 U.S. at 405.
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Id. at 407. Under this "highly deferential" standard, it is not
enough for the state court to have reached a decision that is
"incorrect or erroneous." Teti, 507 F.3d at 56-57. Rather, the
error must be clear "beyond any possibility for fairminded
disagreement." White v. Woodall, 134 S. Ct. 1697, 1702 (2014)
(citation omitted). Critically, state courts do not act
unreasonably by declining to extend Supreme Court precedent. Id.
at 1706. Where, as here, the highest state court, namely, the
Massachusetts Supreme Judicial Court, denies review, we "look
through to the last reasoned decision" issued by the Massachusetts
Appeals Court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010)
(citation omitted).
In ruling on Moore's petition, we must also defer to the
state court's fact-finding, meaning its determination of "basic,
primary, or historical facts, such as witness credibility and
recitals of external events." Sleeper v. Spencer, 510 F.3d 32, 38
(1st Cir. 2007) (citation omitted). This deference extends to
factual determinations made by a trial court and affirmed on direct
appeal. See John v. Russo, 561 F.3d 88, 91 n.4 (1st Cir. 2009).
While the Supreme Court has yet to clarify the relationship between
the two AEDPA subsections relating to factual findings, see 28
U.S.C. § 2254(d)(2) and (e)(1), both "express the same fundamental
principle of deference." John, 561 F.3d at 92 (citation omitted).
For purposes of this appeal, we accept Moore's position that the
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challenged factual findings are merely reviewed for reasonableness
under § 2254(d)(2). See Wood v. Allen, 558 U.S. 290, 300-01
(2010); cf. 28 U.S.C. § 2254(e)(1) (establishing presumption of
correctness that may be rebutted only by clear and convincing
evidence).
In an effort to avoid the narrow constraints of AEDPA
review, Moore suggests that the deferential standards outlined
above do not apply because his claims were not "adjudicated on the
merits" in state court. 28 U.S.C. § 2254(d). A claim is
"adjudicated on the merits" so long as "there is a decision finally
resolving the parties' claims, with res judicata effect, that is
based on the substance of the claim advanced, rather than on a
procedural, or other, ground." Clements, 592 F.3d at 52 (citation
omitted). In other words, AEDPA requires only "adjudication, not
explanation." Id. at 55.
Here, Moore argues that the Massachusetts Appeals Court
only considered his state constitutional claims and did not
adjudicate the federal constitutional claims raised in his
petition. Where a state court is presented with both state and
federal claims and "does not expressly apply the federal standard
but resolves the issue under a state law standard that is more
favorable to defendants," we "presume the federal law adjudication
to be subsumed within the state law adjudication." Sleeper, 510
F.3d at 38 (citation omitted); see also Johnson v. Williams, 133
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S. Ct. 1088, 1096 (2013) ("[I]f the state-law rule . . . is at
least as protective as the federal standard . . . then the federal
claim may be regarded as having been adjudicated on the merits").
Here, the Massachusetts Supreme Judicial Court has expressly
described the state standard for due process challenges to
identification procedures as "more favorable" to defendants than
the federal standard discussed below. See Commonwealth v. Walker,
953 N.E.2d 195, 205 n.13 (Mass. 2011). Accordingly, we presume
that the Massachusetts court adjudicated Moore's federal claims
and review its decision under AEDPA's deferential standard.2
III.
Moore principally argues that the pre-trial
identification procedures were impermissibly suggestive because he
was the only person in the photo array or lineup with a facial
scar. Moore does not point to any additional physical or other
features that set him apart from the other participants. We have
little difficulty concluding that the Massachusetts Appeals Court
did not unreasonably apply Supreme Court precedent in rejecting
this claim.
The Supreme Court has held that pre-trial
2
Moore also suggests that the Massachusetts Appeals Court's
decision was limited to the photo array and did not consider the
lineup. This contention is belied by the opinion's express
acknowledgement that Moore's challenge applied to both
identification procedures. See Moore, 929 N.E.2d 1001, at *2 n.3.
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identifications resulting from procedures "so impermissibly
suggestive as to give rise to a very substantial likelihood of
. . . misidentification" may offend due process. Simmons v. United
States, 390 U.S. 377, 384 (1968); see also Neil v. Biggers, 409
U.S. 188, 198 (1972). Where the likely mistake is "irreparable,"
subsequent courtroom identifications may be similarly prohibited.
Simmons, 390 U.S. at 384. But, even where this standard is met,
the federal constitution does not require automatic exclusion of
the identification. Rather, "if the indicia of reliability are
strong enough to outweigh the corrupting effect of the . . .
suggestive circumstances, the identification evidence ordinarily
will be admitted, and the jury will ultimately determine its
worth." Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).3
It bears emphasis that the issue of reliability "comes
into play only after the defendant establishes improper police
conduct." Id. at 726. Absent unnecessarily suggestive procedures,
reliability is ensured through traditional trial protections, such
as "the presence of counsel at postindictment lineups, vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness identification
and the requirement that guilt be proved beyond a reasonable
3 It is on this point that Massachusetts law diverges from
the federal standard. Under the state constitution,
identifications resulting from impermissibly suggestive procedures
are "per se excluded." Walker, 953 N.E.2d at 205 n.13.
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doubt." Id. at 721; see also United States v. Melvin, 730 F.3d
29, 34 (1st Cir. 2013) ("Jurors should not be treated as gullible
dupes, and . . . identification evidence should be withheld from
them only in extraordinary cases." (citations omitted)). In the
present case, for the reasons discussed below, the Massachusetts
Appeals Court reasonably concluded that the procedures used were
not impermissibly suggestive. Accordingly, we need not consider
the reliability of the identifications.
The Supreme Court has applied its rule against
suggestive identification procedures to restrict the "practice of
showing suspects singly to" witnesses rather than showing them "as
part of a lineup." Stovall v. Denno, 388 U.S. 293, 302 (1967);
see also Biggers, 409 U.S. at 195-99 (implying that one-man
"showup," in which the police walked the defendant by the victim,
may have been suggestive); Manson v. Brathwaite, 432 U.S. 98, 107-
09 (1977) (noting state's concession that "display of a single
photograph" of the defendant was suggestive). The Court has,
however, suggested that, in some circumstances, the rule may extend
beyond one-man showups or the use of single photos. See Simmons,
390 U.S. at 383 (noting that the danger of misidentification is
also increased where witnesses are shown "the pictures of several
persons among which the photograph of a single such individual
recurs or is in some way emphasized"); Foster v. California, 394
U.S. 440, 442-43 (1969) (holding that series of identification
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procedures, including a three-person lineup where the defendant
"stood out" due to his height and leather jacket, a subsequent
"one-to-one confrontation" between the witness and the defendant,
and a third lineup, was impermissibly suggestive).
The facts of the present case are far removed from these
Supreme Court precedents. Indeed, rather than a showup or
presentation of a single photo, the police conducted a photo array
and a lineup, each involving Moore and seven other individuals.
The Massachusetts trial court expressly found that all of the
participants generally had a similar appearance, and Moore does
not seriously challenge this finding on appeal. With respect to
the photo array, our review of the record confirms the state
court's conclusion. Moore and the other seven individuals depicted
all appear to be African-American males with comparable ages, skin
tones, and hairstyles. Moore's facial scar, while visible, is
relatively small. The Massachusetts court also found that Moore's
scar "is a characteristic which is difficult to replicate in
individuals who otherwise resemble the defendant." Again, Moore
makes no effort to challenge this factual determination. Indeed,
a scar is different than other potentially distinguishing features
that can be easily removed or changed (e.g., clothing or
accessories). While the police could conceivably have made efforts
to conceal Moore's scar, this practice might itself have undermined
the reliability of the identification by artificially altering
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Moore's facial features. In any event, we need not opine on the
permissibility or advisability of such precautions. For present
purposes, it suffices that the state court reasonably concluded
that the police were not required to conceal Moore's scar. See,
e.g., United States v. Holliday, 457 F.3d 121, 126 (1st Cir. 2006)
(rejecting challenge to photo array based on the defendant's
distinctive "skin discoloration"); United States v. Moore, 115
F.3d 1348, 1360 (7th Cir. 1997) (finding that photo array was not
suggestive despite the defendant's "distinctive eyebrow"); Taylor
v. Swenson, 458 F.2d 593, 596-98 (8th Cir. 1972) (holding that
lineup was admissible even where the defendant stood out because
of a facial scar and a "filed down" tooth).
Moore relies almost exclusively on United States Court
of Appeals decisions to argue that his facial scar rendered the
identification procedures impermissibly suggestive. As an initial
matter, to the extent these lower federal court rulings stray
beyond the applicable Supreme Court precedents, they are
insufficient to demonstrate an unreasonable application of federal
law under 28 U.S.C. § 2254(d)(1). See Lopez v. Smith, 135 S. Ct.
1, 4 (2014). In any event, the cases Moore cites are largely
distinguishable. See, e.g., United States v. Castro-Caicedo, 775
F.3d 93, 98 (1st Cir. 2014) (noting that the defendant was "far
older" and had "darker skin" than anyone else in the photo array
and was the only person whose "sagging belly" (matching the
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witness's description) was shown); Raheem v. Kelly, 257 F.3d 122,
137 (2d Cir. 2001) (finding lineup suggestive where the defendant
was the only participant wearing a leather coat, which was "the
most prominent feature" of the witnesses' prior descriptions).
Moore's other contentions are meritless. First, he
argues that the identification procedures were unduly suggestive
because he was the only person to appear in both the photo array
and lineup. But we have held on direct appeal that "[a] suspect's
inclusion in two photospreads . . . is not constitutionally
impermissible." United States v. Maguire, 918 F.2d 254, 263 (1st
Cir. 1990). It follows that Moore's inclusion in both the photo
array and the lineup similarly does not offend due process. Next,
Moore points to evidence that the police described the array to
witnesses as "photos of suspects." Again, Maguire forecloses his
claim. See id. at 264 (noting that we have "condone[d] . . .
suggesting that the suspect is one of those shown in the array").
Third and finally, Moore contends that the identifications were
impermissibly suggestive because he was number six in both the
array and the lineup. This argument is contradicted by the state
trial court's express finding that "[n]one of the witnesses paid
attention to the order in which the photos or the individuals in
the lineup were presented." Moore's record citations fail to
convince us that this determination was unreasonable.
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IV.
For the foregoing reasons, we AFFIRM the denial of
Moore's § 2254 petition.
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