Moore v. Dickhaut, 2016 U.S. App. LEXIS 21021

Background

Anthony Moore was convicted (2006, Massachusetts) of unarmed robbery based on eyewitness identifications from a photo array and a subsequent live lineup.
Photo array: Moore plus seven photos selected for resemblance; two witnesses identified Moore.
Live lineup (about two months later): Moore plus seven fillers selected by an officer not on the case; defense counsel attended and raised no contemporaneous objection; four witnesses identified Moore.
Trial court held evidentiary hearing, found photos/lineup participants similar, found no police suggestion, and admitted pretrial and in-court identifications; jury convicted.
Massachusetts Appeals Court affirmed; state high court denied review. Moore filed a federal § 2254 petition alleging due-process violation from suggestive identification procedures; district court denied relief and this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Were the photo array and lineup impermissibly suggestive under the Due Process Clause?	Moore: He was the only participant with a facial scar, so procedures were suggestive and created a substantial likelihood of misidentification.	Commonwealth: Arrays/lineup included eight similar-looking individuals; scar was small and not necessarily suggestive; no police conduct rendered procedures impermissibly suggestive.	Court: Not impermissibly suggestive; state court reasonably found participants similar and no improper police conduct, so no due-process violation.
If suggestive, must identifications be excluded for reliability concerns?	Moore: (implicit) If procedures were suggestive, identification reliability insufficient.	Commonwealth: Even if suggestive, reliability could outweigh suggestiveness and jury protections suffice.	Court: Did not reach reliability because state court reasonably found no improper suggestion; cited Perry’s rule that reliability is considered only after improper police conduct is shown.
Does AEDPA deference apply or were federal claims unadjudicated on the merits?	Moore: Argued claims were not adjudicated on the merits in state court, so AEDPA deference should not apply.	Commonwealth: State court resolved the substance; Massachusetts law is at least as protective as federal law, so federal claims are subsumed and AEDPA applies.	Held: AEDPA applies; Massachusetts decision adjudicated the federal claims on the merits and is reviewed for unreasonable application.
Are other factual/contention challenges (order number in array, appearing in both procedures, police wording) sufficient to show suggestiveness?	Moore: He emphasized being number six in both arrays, appearing in both photo and live identifications, and police called them "photos of suspects."	Commonwealth: Prior precedent permits inclusion in multiple spreads, numbering, and wording; state court found witnesses did not focus on order.	Held: These arguments fail; court held them meritless or rebutted by state-court findings.

Key Cases Cited

Simmons v. United States, 390 U.S. 377 (due process excludes identifications from procedures giving rise to a very substantial likelihood of misidentification)
Neil v. Biggers, 409 U.S. 188 (factors for assessing reliability of eyewitness ID)
Perry v. New Hampshire, 565 U.S. 228 (reliability inquiry applies only after improper police conduct; otherwise jury safeguards control)
Williams v. Taylor, 529 U.S. 362 (AEDPA standards for federal habeas review)
Stovall v. Denno, 388 U.S. 293 (one-person showups and due process concerns)
Manson v. Brathwaite, 432 U.S. 98 (reliability can outweigh suggestiveness; standards for admissibility)
Foster v. California, 394 U.S. 440 (series of suggestive procedures can render IDs inadmissible)
Commonwealth v. Walker, 953 N.E.2d 195 (Massachusetts standard for exclusion is more protective than federal law)
United States v. Maguire, 918 F.2d 254 (inclusion in multiple photospreads not per se impermissible)
United States v. Holliday, 457 F.3d 121 (upholding array despite distinctive skin discoloration)