Clarence Moore v. Willis Morton, Administrator Peter G. Verniero, Attorney General of the State of New Jersey

issue, ed.1999) (7th a substantial but it is not (defining “sub a trustee is tionary 857 jurisdiction. subject-matter an issue of “the extent to jurisdiction” as ject-matter can rule on the conduct a court which The things”). the status of

persons or Conclusion here is whether on the merits issue judgment of the District Court permits appointment Bankruptcy Code reversed, case is remanded. and the Whether post-confirmation trustee. court, does, bankruptcy or not it subject-matter jurisdiction

unquestioned proceeding, see 28 bankruptcy

over a 151, 157, 1334; §§ § also see

U.S.C. Ad. jurisdiction subject-matter to decide

has Hood, statutory Bell issue. Cf. 678, 682-84, 66 90 L.Ed.

U.S. (non-frivolous (1946) statutory federal MOORE, Appellant, Clarence court’s to invoke district issue sufficient jurisdiction). The distinc question federal jurisdic bankruptcy court’s

tion between MORTON, Administrator; Peter Willis authority or to take a power tion and its Verniero, Attorney General G. carefully articulated particular action was Jersey. of New State Hard by the Ninth Circuit American (In woods, Corp. re Inc. v. Deutsche Credit No. 98-5429. Hardwoods, Inc.),

American 885 F.2d Appeals, United States Court of (9th Cir.1989). Bankruptcy A had Third Circuit. jurisdiction and ruled that it lacked both power under section 105 of the Code Argued Sept. injunction beyond the confirma extend an 22, 2001. Filed: June plan reorganization. of a tion Ninth explained: Circuit

Subject jurisdiction power matter court’s prerequisites

are separate Subject jurisdic- act. matter

capacity to authority the court’s to entertain

tion is it. parties before action between scope is the

Power under section 105 may order

and forms of relief the jurisdiction.

in an action in which it has the Bank- upheld

Id. at 624. The Court

ruptcy jurisdiction, agreed but Court’s Bankruptcy power lacked injunction post-confirmation.

continue the

Id. at 624-27. court has the bankruptcy

Whether

authority Chapter proceeding in a post-confirmation appointment

make the Casteleiro, Hoboken,

Paul .(Argued), J. NJ, Attorney Appellant. Hulett, Despite of At- He ordered her to undress. Nancy (Argued), A. Office torney Jersey, Depart- of New man’s assurance she would not be hurt if General told, Safety, pen- Public Division of she did as she was the man ment of Law & Justice, Bureau, anally complied Tren- etrated her after she Criminal ton, NJ, Attorney Appellees. for with his directions to roll over on her stomach and then kneel on her hands SCIRICA, RENDELL and Before: and knees. The man then ordered her GREENBERG, Judges. Circuit penetrated to roll over and he vagi- her nally. perform He then forced her to THE OPINION OF COURT him ejaculated. fellatio on until he Still SCIRICA, Judge. Circuit angered by money, lack of the man again forced her perform oral sex Moore, Clarence who was convicted of until he achieved an erection. He then robbery rape per- and sentenced as ordered her to kneel on the bed and sistent offender to life imprisonment “shake” her rear the air while some- twenty-five years parole ineligibility, ap- one outside watched. He her if warned petition from the peals denial his she did not do this “he would come back corpus writ of habeas under 28 U.S.C. again and do it or kill” her. M.A. re- principal § 2254. at trial issue mained in her bed for four hours fearful identity of rapist. principal the man was still the house. post-hypnotic evidence was the victim’s Finally, she have arranged police identification. The state made and, arrived, police called when the improper arguments during jury certain M.A. her by summation which were addressed described attacker. She described male, him a black with curative instructions. The as about 5'8" to 5'10" tall, thirties, appeal early very issue on late twenties to is whether these arguments deprived strong.... Moore of his muscular and She also said her wearing a fair trial. attacker had been blue Further,

jeans. him she described I. having facial some hair on the sides of his face. 5, 1987, March On convicted dark, While the bedroom was there was second-degree

Moore of burglary, second- enough “to light outside see face.” degree robbery, robbery with intent Also, although wearing she was not her assault, aggravated commit sexual contact that corrected near- lenses her of aggravated three counts sexual assault. sightedness, she stated attacker was These essential facts were established her, “very enough close” to close for her Moore’s trial. However, to see him and his face.... 14, 1986, January On some time after M.A. testified she see without her could a.m., 25-year-old 1:20 M.A. was vicious- contacts, driven without she had ly a man in by assaulted the bedroom of them, prevent and her vision did not her cottage her Point. M.A. Somers went seeing things from close to her. night only bed to be awakened grabbed police a male who her the neck. M.A. give When could not money, The male demanded and M.A. composite artist sufficient information to sketch, from purse gave develop composite suggest- removed her it she $8 produce hypnosis, thinking “might help to him. When M.A. could no ed remember, detail, money, angry. more man [her] became more hypnotically shortcomings en- about face.” With the aid of Miller testified memory, vividly recall hanced she could using to enhance a mem- hypnosis victim’s attacker’s facial features. She her ory. identify able to positively

thereafter was Moore, an Clarence African-American as her both in the defendant assailant male, testify. Cheryl did not His wife in out-of- court and three occasions Moore, woman, a Caucasian on his testified arrays. photographic She de- behalf. Mrs. Moore she testified that the hypnotic scribed enhancement as forty-five her lived about minutes husband making her “much clear- attacker’s face from home. Although recalling M.A.’s er” with “the features ... more de- initially she rape tailed.” She also testified in night particular, the Mrs. positively could not her assail- recognize Moore testified she would if have noticed hypnosis. ant without the There is her were missing period husband for a in nothing suggest the record either a half early two and to three hours in the police assisting the or the doctor the hours. morning baby She testified her in hypnosis any way suggested what the from a suffered condition “failure to called might assailant look like. required frequent nursing thrive” which aAs result of the M.A. hypnosis, also Mr. nursing and that Moore assisted her in recalled her assailant a tan wore suede baby. the Mrs. Moore also that at testified jacket pockets. with dirt A around the rape, the the suffering time she was subsequently warrant executed search mastitis, type from a infection. breast aup defendant’s residence turned tan jacket pockets along observed, suede sweater with trial court The state “[T]he several pairs jeans. of blue only question real that this case is Moore, identity.” There was that dispute no the N.J.Super. State (1994) (“Moore II”) (al- robbed, sexually victim was 270-71 assaulted and A.2d trial, M.A., in original). question” terations At and the “real woman, Caucasian testified identified culprit. was whether Moore was the As jacket as the her one worn attacker. found, the answer turned or [hypnotically] “whether en- portion A of the trial consisted of [of hanced or refreshed recollection expert testimony on hypnosis.1 The of sufficient charac- victim] [wa]s reliable witness, Babcock, justi State’s Dr. Samuel ter such that probative and with value methodology fied his maintained that beyond M.A.’s believe memory through [the should victim] was enhanced hypnosis.2 Dr. William A. Defense witness doubt.” reasonable law, Jersey "testimony New 1. Under en- Division court's affirmed trial through hypnosis admissible, hanced is admissible in ruling testimony ex that criminal trial if that the trial court finds plaining hyp that it was "satisfied the use hypnosis particular use of in the case was appropriate nosis was for the victim’s fear- reasonably likely compara- to result in recall neurosis, induced traumatic that the accuracy ble human memo- normal findings judge's procedures toas ry. ... The trier of fact must then decide how employed require and adherence to the Hurd weight hypnotically much to accord the re- supported by were ments substantial credible Hurd, testimony.” freshed 525, 86 N.J. State in the evidence record.” Moore has not (1981). 432 A.2d challenge, raised federal constitutional court, or either state federal to the admission Hurd, required pre-trial 2. As under State v. testimony. post-hypnotic M.A.’s trial of hearing was held to determine admissibil ity testimony. of M.A.’s at 95. The A.2d you Let me show what I mean. What if more than two weeks The trial lasted individual, conclusion, you’re you as an whether both the defense and at the female, your that or a life male decide that prosecution delivered summations your you want to live life with a blonde? hours. In his summa- lasted two to three know, tion, why you You see all of these ads about sought explain prosecutor have more and this and fun that Mrs. buttressed blondes Moore’s and, again, you are male stating, on the testi- whether or case “Based State’s Moore, strong- or can work both mony Cheryl the case is female whatever —it you ever, ways that this so become interested in that the odds are er than —and you prefer ... you being with blondes because perpetrator [and] is the defendant Right? prefer Clarence them. Gentlemen have more reason convict that blondes. McKinley Moore now has testified she than noted ever.” it, Well, seen, that can be can’t because things” important

there in fact “three maybe people choose to from Mrs. should learn marry appear or with all date or wit- “appearance” a defense Moore’s it or might or be redheads be blondes ness. know, You nowa- might green be hair. you really days guess green popular I concen- I is one of the where ask to Here’s anything. It could be You could my you words because if misun- colors. trate on now, you or I’m I color hair could saying right what substitute derstand foolish, any particular Right? trait. am feel real and going to bad substitute hair. even be color of It and are too. So all understand It needn’t you let’s It could be eyes. could be the color of a it like adults. I people. who likes tall think person nothing to do with Race has whatsoever I be six whoever should be with should case, know right? Right. We all this It feel terrific foot four. would make me of the involved does people that the race four, a woman foot or vice to be with six or guilty not at all dictate he’s whether versa, of a man a woman could think like mean, hope that. I let’s anything like that. way, all that whether we are that we feel Okay? my point? not a statement anything. or black or So You see It’s white choice, race; question that it’s a selec- the air that statement let’s clear with, be you might has whatso- tion of who want to nothing I’m about to make boyfriend or I this machine whether it is as mate or hope ever do—and to to or victim. How that? girlfriend whatsoever about nothing hears this —has might people that do How about some with race. way to the according choose a victim selection, okay? with has to do This look, or they they whether be blonde what I mean. All of us select Here’s anything or blue else? what- people in life to be with based on reason, you I did we learn to mar- ask this: What people ever whether it’s So friends, Cheryl found out that Moore ry, it’s whether it’s when we whether with, sug- I whether it’s was the wife of the defendant? people to associate way that you in a nonracist what gest We all make choices to people. business McKin- out was that relationships life that lead us to we found Clarence others, may made to with a may ley and or Moore a choice be those choices woman-—(cid:127) significant. Caucasian objected point at that that proper argument

Moore’s counsel vinced it’s not jury. arguing for a mistrial the reference moved irrelevant, inflammatory and to race was argued: then court denied the prejudicial.3 say you I that there are two other but motion for a mistrial admonished the why you reasons should find that not to refer race.4 prosecutor at sidebar gets stronger State’s case with the testi- objection and in- The court sustained mony Cheryl Moore. We learned jury: structed the 4, 1985, that on December the defen- gives dant’s wife birth to a child. jury, I am She gentlemen Ladies you that further tells from that time on disregard pros- what ordering you to arrested, up until the time he’s she’s ecutor said in reference testimo- mean, disabled. I bleeding she has Moore, ny, the of Mrs. she appearance breasts. Caucasian, being person, a white Mr. being person, black I you ask that consider and infer that reason, process, that selective give believability that would to the fact aggravated was that he did this assault during time, is, that period that that because he selected a white or Cauca- January in the middle person. Disregard sian that. That’s an of the time after the birth of the child unfair wife, and unreasonable inference to be disability and the ask drawn from the and I’m con- period infer is a of time sidebar, argued, trying 3. At Moore’s counsel to infer to this selection, honor, something probative that that is going Your I'm to ask for a mistrial they making because if there's no reason that race that can use in a determina- all, tion, mean, brought thing should be into part this I it has no in this trial. nothing probative there's because of highly prejudicial, It purpose is has no for fact that he's married ato white woman being purpose pros- other than the that [the suggest that would that he would nec- then do, trying improper is to ecutor] infer- go essarily out attack and assault a jury, ence to this and I would ask the court white woman. to declare a mistrial. precisely prosecutor] That what [the is is here, trying to infer that because he's mar- sidebar, 4. At stated: ried woman to white and because a white jury they I will instruct that this are not to assaulted, woman has been that that neces- any purpose any suggestion consider sarily was the selection that went impropriety, they racial are to de- on in his mind because he couched prejudice, cide this matter on bias or ... question in terms choice of victims. anything going to do race. I am with also absolutely inject There is no reason to race disregard argument to tell this to that it, stayed away up in this case. I from and going prosecutor and I'm to tell the that point everybody stayed until this in time you not to refer to are that area. away just from it. The comments that were I argue am convinced that summation is to prosecutor], elicited it's [the done that facts were adduced from the wit- purpose entirely, for one and that's to in- ness stand. I am also convinced that put improperly flame this to before not a reasonable inference to draw from the them the fact of race as an issue terms of defendant, fact that this defendant is married to a how this if in fact he was the selectively white women that he made that perpetrator, selected the victim. rob, rape sexualfly] to [and] decision or testimony There was no as to that. There assault, a white woman. I was no that he don’t think has assaulted oth- anything er white that’s a reasonable that can victims before or of that inference nature, sudden, only process, and all because drawn from the selective and I'm white, prosecutor] going juiy. his wife is [the is now to so instruct the when individual would have his court dismissed the for the greatest need for sexual release. day, advising counsel it would charge the jury the next morning. Immediately objected Moore’s counsel and renewed his thereafter, Moore’s counsel raised an ob- motion for mistrial. He noted that there jection and renewed his motion for a mis- was no evidence the record “to even trial, arguing the comment regarding suggest that [Moore] couldn’t have had “perpetrating M.A., a worse assault” on sexual relations with” his wife during the period particularly time in when question. The trial court viewed connection mistrial, comments, denied the motion for a with the prosecutor’s and re- earlier re- peated its warning prosecutor quired “to a mistrial. stay away from the area of white/black The trial court denied the motion for a I

because don’t think that’s the case.”5 mistrial, explaining the comment about The court objection sustained the “perpetrating a worse assault” on M.A. inference and jury: instructed the was “tangentially dealing credibility.” gentlemen Ladies and jury, I’m that, But the court informed counsel “in going to you disregard order that last fairness,” order to insure it would never- prosecutor. statement of the I don’t theless instruct the jury disregard believe a reasonable inference can be remark. The court issued the following vein, drawn in that that because there instruction the next morning: was not I’m access—and not even sure Before I [charge you], I want to you

there tell was—but because Mrs. Moore tes- going I’m you to order mastitis, generally tified that she had this that —I don’t order people. I’m going to order give would the defendant impe- you disregard tus to last remark made something. do That’s an improp- prosecutor] [the to the effect that the er inference. You to disregard are that. thing last I say you have to is that if Undeterred, concluded you don’t think you believe her and she’s with a third jury: remark6 to the lying, you’re then probably perpetrating thing The last say have to is that if a worse assault on her. don’t believe you [M.A.] and think she’s lying, you’ve probably then perpetrated Disregard that remark. I have deter a worse assault on her. mined that’s you and are not sidebar, judge 5. At implication stated: testify that Moore did not in his conference, defense. After another sidebar you I stay away want from the areas of the following issued the curative because I don't think that’s in white/black instruction: case; two, the reason that he could possibly rape gentlemen jury, some Ladies and woman because of the there has anything dealing wife or been some reference with the reason to the fact that [the give defendant] the wife—which would called two defense wit- reason from you you nesses. I want tell something him to do I'll tell because he was unable —and general my charge in the satisfy context of later anything his needs at home or on—that defendant under an part vein. obli- don’t think it’s of this gation nothing. to do The defendant need case. any not call witnesses. remark, 6. Prior to this third you I indicated that to on earlier when we jury told the that M.A. had been got victimized first here. The defendant can stand beyond rape by investigative her and trial say anything mute and not and are not process. objected Defense counsel any any to this to take inference unreasonable — objected comment and perceived also to a from that at all. that for purpose Jersey consider tification to the New presenting

case. process his due claim allegations and additional prosecutorial charged The court without ob misconduct. The Jersey Supreme New jection. returned verdict of review, Court declined and denied Moore’s guilty all sentencing, counts. At motion for reconsideration. granted trial court the State’s motion to offender,” “persistent treat Moore as a represented still public imposed imprison an extended term of life defender who filed petition for certifi- years twenty-five parole cation, ment with ineli Moore filed a post- motion for state § gibility. See Stat. Ann. alia, N.J. 2C:44-3a conviction review claiming, inter he (West 2001). predi Moore’s sentence was was denied his Sixth Amendment cated on a 1968 conviction for carnal effective assistance of counsel on direct abuse, eight burgla appeal convictions 1970 for because counsel failed to raise due ry, and a 1976 conviction for distribution resulting claims from following possession with the intent to allegations prosecutorial distribute misconduct: marijuana. convictions, (1) prior These along improper reference to matters outside with his immediate burglary, conviction for stating evidence and personal opin- robbery separate and three ag counts of ion on veracity of witnesses and the assault, (2) gravated placed sexual him under guilt; defendant’s misstating the law Jersey’s persistent New offender category. diluting proof by burden of in- Moore, A-1910-87Ta, slip State op. forming reasonable doubt (N-J.Super. Ct.App. April *7-8 Div. it; meant “the odds are” the defendant did 1991)(“Moore I”). (3) disparaging and ridiculing the de- fense and defense counsel. The trial direct appeal Appellate On Divi court, holding without an evidentiary hear- sion, Moore, represented by public now ing, petition denied the as proeedurally defender, among claimed other things, that barred and without appeal, merit. On “the summation exceeded the Appellate Division highlighted some of the propriety making bounds of it impossible procedural infirmities, reject but chose to for the defendant to receive a fair trial.” Moore’s claim on the merits. The Appel- Id. at In support, *2. Moore cited the that, late Division ruled if even Moore’s references the state’s summation about properly every counsel had raised instance process,” the “selection the “need for sexu alleged prosecutorial misconduct on di- release,” al and the remark “perpe about appeal, rect it would have concluded that trating a worse assault on the victim.” trial, Moore had a fair and was not denied rejected Division Moore’s II, effective assistance of counsel. Moore claim on the Although merits. it found the 641 A.2d at 268. The New Jersey Su- prosecutor’s “outrageous conduct violated preme Court petition denied Moore’s principles” ethical and “showed a disre certification. gard obligation of the prosecutor to play justice done,” fair and 1997, see April no longer represented by that, Appellate Division office, ruled within the public timely defender’s Moore trial, context of the judge’s “force filed a corpus petition counseled habeas ful” instructions to the § cured the under 28 U.S.C. 2254 in the United harm that was done. Id. at *4. Moore States District Court for the District of received new public counsel from the Jersey. de New He following raised the office, fender’s and filed a petition for cer claim: Act)). Penalty rorism and Effective Death and continuous miscon-

The deliberate noted, which included duct The District Court justify the conviction racist rationales I as an sitting Appellate Were petitioner African-American below, judge on direct review of the trial woman, a white statements raping well have concluded that might that the “odds doubt meant reasonable prosecutor’s deprived misconduct petitioner are” that the committed a fair right Congress, of his trial. offense, counsel statements that defense however, imposed has a much more de- justice only and was didn’t care about manding standard of review on federal to “sell” reasonable doubt and a trying corpus Appellate habeas courts. The they acquit that if warning to the presented Division considered the issue they perpetrated will have petitioner to me on two occasions and concluded victim, than upon an assault worse that Moore was not denied a fair trial. rape, deprived petitioner her of his complete After a review of the trial rec- to a fair trial.7 ord, I cannot conclude that the state record, reviewing finding After analyses “an court’s unreasonable conduct “offensive and prosecutor’s application clearly established federal unprofessional,” District Court held law.” Appellate opinions that “the Division’s relief appeal post-conviction direct and on Id. *19. the evi-

clearly weight considered the evaluating Moore’s claim.”

dence State II. Moore, 97-2087, *17 slip op. v. No. un jurisdiction The District Court had (D.N.J. 1998) III”). 12, Aug. {‘Moore 2254(a) § granted der 28 U.S.C. District concluded it was not an appealability under certificate 28 U.S.C. clearly estab- application “unreasonable jurisdiction § 2253. We have under 28 lished federal for the Divi- law” 1291, §§ 2253. Because the U.S.C. Dis support sion to hold the evidence could exclusively trict Court relied on the state jury’s prosecutor’s verdict and “the con- court not hold an evidentia record did duct, considered within the context of the ry hearing, our review of its decision is including judge’s curative entire trial — plenary. Hartey Vaughn, v. 186 F.3d instructions, the evidence and the correct cert, (3d denied, Cir.1999), 528 U.S. not ‘infect the trial with charge—did ” 1138, 120 145 L.Ed.2d 933 S.Ct. (citing unfairness.’ Id. at *18 28 U.S.C. (as 2254(d)(1) § amended the Anti Ter- (2000). Boerckel, appeal In this we will address Moore's O’Sullivan respect (1999) (“Before due federal claim 144 L.Ed.2d 1 prosecutorial instances of misconduct that he grant may to a federal habeas relief before New raised at each level of review prisoner prisoner, must state exhaust (i.e. Jersey courts "selection” court.”); remedies in state McCandless argument, argument, the “sexual release” (3d Cir.1999) (to Vaughn, 172 F.3d regarding “perpetrating the comment a worse claim, "fairly present” federal constitutional victim”). remaining factu- assault on the petitioner present must "factual claim's presented predicates fairly to the al were not legal to the state courts in a substance Jersey support pro- New courts in of his due puts a feder- manner that them on notice that cess claim. Therefore to extent asserted”) being (citing al claim is Anderson allegations pros- seeks relief based on other 4, 276, Harless, 459 U.S. 103 S.Ct. L.Ed.2d misconduct, these are unex- ecutorial claims (1982)). hausted, procedurally and now defaulted.

III. applying proof a burden of other than that required by Supreme precedent Court corpus petition habeas prisoner’s A state contrary clearly would be to established respect to granted “shall not be by federal law as determined Supreme adjudicated claim that was on the merits in 406,120 Id. at Court. S.Ct. 1495. adjudi court proceedings State unless (1) resulted in a cation of deci claim— Even if a state judgment to, contrary that was or sion involved not contrary Supreme precedent, Court of, application clearly unreasonable estab it may be an unreasonable application of law, by Federal as determined lished 407-08, precedent. Id. at 120 S.Ct. Supreme Court of the United States.” 28 1495. To hold that a state court’s decision 2254(d)(1). 2254(d) § “[S]ection U.S.C. application is an “clearly unreasonable firmly establishes the state court decision law, by established Federal as deter mined starting point as the in habeas review.” Supreme States,” Court of the United Albion, Superintendent, (1) Matteo SCI 171 we must find that the state court iden cert, (3d Cir.) (en 877, banc), F.3d tified governing legal “the correct rule denied, 824, 73, 528 U.S. 120 S.Ct. 145 from Supreme] [the Court’s but un cases (1999). L.Ed.2d 62 reasonably applie[d] it to the facts” of the (2) case, particular or the state court un In Taylor, Williams v. reasonably extended or failed to extend a 404-06, 120 S.Ct. 146 L.Ed.2d 389 legal principle Supreme from the Court’s (2000), Supreme Court held that “con- precedent. Id. at 120 S.Ct. 1495. trary to” and application “unreasonable of’ federal making “[A] habeas court the ‘un independent, have if overlapping mean- application’ inquiry reasonable should ask ings. To hold state court decision is whether the state court’s application “contrary ... clearly established Feder- clearly objec established federal law was law, al by Supreme as determined tively unreasonable.” Id. at States,” Court of the United a federal 1495. The “may federal court not issue court must find the state court arrived “at simply the writ because that court con opposite conclusion by reached independent cludes in its judgment law,” Supreme] question [the Court on a the relevant applied state court decision or that the state court confronted facts clearly established federal law erroneously “materially indistinguishable from a rele- Rather, or incorrectly. that application vant Supreme precedent” Court but ar- must also be unreasonable.” Id. at rived “at a result different from” that 1495. reached Supreme Court. Id. at 404-09, 120 S.Ct. 1495. The Court ex- “[C]learly law, established Federal plained that “a run-of-the-mill state-court as deter mined Supreme Court applying decision legal correct rule the United States” refers from our to the prisoner’s cases facts of a dicta,” “holdings, opposed as case would not fit comfortably within the time of the relevant state court ” 2254(d)(l)’s § ‘contrary clause,’ but decision.8 Id. at 120 S.Ct. 1495. Su that, as an example, state court decision preme precedent which would have determining clearly whether a state court unrea- cation of established federal law was law, sonably apply failed to federal the Su- objectively unreasonable. The federal ha- instructed, preme Court inquiry beas court should not transform the application" inquiry subjective by resting [T]he "unreasonable into one its determi- appli- should ask whether the simple state court's nation instead on fact that at

105 judge. of Teag under the sound discretion “old rule” considered been York, 1060, 862, Lane, 288, 853, 422 95 Herring 489 U.S. 109 S.Ct. v. New U.S. v. ue (1975). (1989), “clearly 2550, 334 is also But L.Ed.2d 45 L.Ed.2d 593 103 S.Ct. law, mined Federal deter may infect[ established misconduct “so prosecutorial ] of States.”9 Supreme Court the United the trial with as to make the unfairness Id. resulting pro conviction a of due denial Donnelly DeChristoforo, v. 416 cess.”

IV. 643, 637, 1868, 94 S.Ct. 40 L.Ed.2d U.S. mind, (1974). we this standard of review consti With Such misconduct must “ pros- Moore’s claims that will examine ‘failure to fundamen tute observe that a fair him of deprived ecutor’s summation very concept tal essential to of fairness ” 642, trial. justice.’ (quot Id. S.Ct. 1868 219, California, ing Lisenba 314 U.S. A. (1941)). 280, 236, 62 S.Ct. 86 L.Ed. 166 trial, guarantees Bill of “specific includ Where of the The conduct of involved, arguments, Supreme] [the under are Court closing regulated Rights ing applied factually jurists courts have decided least one of the Nation's has or federal cases, the relevant federal law in the same manner reference decisions is similar to those petitioner’s case. did in assessing the state court the habeas appropriate in reasonableness * * * * * * non of the state treatment of the vel court's issue.").... cases it contested certain [I]n appropriate may the deci- to consider diffi- term "unreasonable” is no doubt helpful sions of inferior federal courts as said, That a common cult to define. it is Supreme precedent. amplifications of Court and, legal accordingly, term in the world judges are its mean- federal familiar with Delaware, recently we In Hameen v. State purposes today's opinion, ing. For Supreme applied test. Court’s Williams important point unreason- most is that an cert, — denied, (3d Cir.2000), F.3d 226 application of law is different able federal —, 149 L.Ed.2d 293 U.S. application federal from an incorrect (2001). Harneen we determined the Dela In law. Supreme application Court’s of a retro ware Williams, 409-10, 529 U.S. at 120 S.Ct. 1495 penalty active amendment the state death original). (emphasis in a violation Ex Post Facto law was not interpreting the and Ef- Anti-Terrorism United be Clause of the States Constitution (“AEDPA”) Penalty fective Death Act clearly "contrary to” estab cause it was stated, recently "We find context we different coming determi federal law. In to this lished role that AEDPA eliminated the no indication Supreme at length we detailed nation interpreting federal of the lower courts in post precedent we ex facto and stated Court’s Supreme pronouncements.” effect “simply decision of the cannot find ... (3d Vaughn, 204 F.3d 62 n. 10 West contrary to Supreme Court of Delaware ... Cir.2000) (discussing retroactivity traditional circumstances, cases].... these In the [of AEDPA). light Similarly analysis in here, post we an ex violation if we found facto Matteo, held, 171 F.3d at we obligations surely would be to our unfaithful [AJlthough "clearly AEDPA estab- refers to Id. the AEDPA.” at 246. After review under law, Federal lished 'as determined " ing Supreme jurisprudence this area States,’ (ci- Supreme Court of the United we also determined there was "no basis omitted), we believe federal tation do not unreasonably the Delaware Court hold that precluded courts are from consider- habeas post applied the ex facto Court’s ing decisions the inferior federal unreasonably to the facts of case or cases evaluating when whether the state courts post principles ex refused to extend facto application law was reason- court's Williams, Dubois, (citing Id. this case.” able. See O’Brien v. 145 F.3d Cir.1998) ("To 389). (1st inferi- 146 L.Ed.2d the extent that 106 pros- prejudice care to assure that special 643-44,

has taken had been cured. Id. at way impermissibly in no ecutorial conduct 94 S.Ct. 1868. The Court further ex- them,” 643, 1868, at 94 infringes id. S:Ct. plained prosecutor’s comment was “ad- the same. but the test remains See Dar- one,” 645, mittedly ambiguous at id. 94 168, 182, 477 Wainwright, den v. U.S. 106 1868, S.Ct. and the case was not one “in 2464, (1986), reh’g 91 L.Ed.2d which the prosecutor’s preju- remarks so denied, 1036, 24, 478 U.S. 107 S.Ct. specific diced a right, privilege such as the (1986). L.Ed.2d 774 against compulsory self-incrimination, as Donnelly, first-degree pros- In murder right.” amount to denial of that Id. at ecution, improper the Court addressed an 643, 94 (citing S.Ct. 1868 Griffin Califor- by prosecutor during jury remark a state nia, 609, 85 S.Ct. trial court later gave summation. The (1965)). L.Ed.2d 106 following part curative instruction as Darden, made several jury charge: during remarks closing argu- Closing arguments are not evidence for ment, including using defense counsel’s your consideration.... Now in his clos- term “animal” to refer to the defendant ing, Attorney, noted, I the District made making “several offensive comments “I don’t they statement: know what reflecting an emotional reaction to the you by way want to do of a verdict. 9-12, case.” 477 U.S. 180 & nn. They they hope said find him S.Ct. 2464. The state convicted the guilty. quite frankly think that defendant of murder and assault with in-

they hope you guilty find him of some- tent kill recommended death sen- thing first-degree a little than mur- less Supreme tence. The Court affirmed the der.” There is no evidence of that what- denial of the defendant’s federal habeas soever, course, you are instructed to petition. Although the Court found the disregard that statement made closing “deserve[d] the condemnation it Attorney. District Consider the case as has though every received from no such statement was to review made. it,” id. at the Court Id. at 94 S.Ct. 1868. that, context, concluded when viewed in Supreme rejected defen- manipulate comments “did not or mis- relief, dant’s claim for federal habeas find- evidence, state the ... implicate nor other ing that an pro- “examination of entire specific rights of the accused.” Id. at ceeding” support did not the contention 106 S.Ct. 2464. The Court noted the trial “prosecutor’s ... by remark itself jurors court had “instructed the several so infected the trial with as to unfairness times that their decision was to be made make the resulting conviction a denial of alone, on the basis of the evidence and that process.” due Id. 94 S.Ct. 1868. the arguments of counsel were not evi- that, The Court although prose- noted Moreover, dence.” Id. cutor’s statement was improper, it was not found weight “[t]he of the evidence against so prejudicial that effect its could not be petitioner heavy; the overwhelming mitigated by a curative instruction. Find- eyewitness and circumstantial evidence ing the trial court “strong” had issued a instruction, support a finding guilt charges, on all stating twice arguments jury’s reduced the directing not evidence and likelihood the jury disregard argument.” offensive state- decision influenced (internal omitted). particular, ment quotes Court held Id. discern, prosecutorial may or not misconduct the extent that we whether

To trial, a defendant a fair “the therefore, coun has denied of Supreme precedent Court drawing constitutional line reviewing examine of court must that the sels necessarily imprecise.” Donnelly, 416 in con offensive actions prosecutor’s the 645, Here, trial, New U.S. at 94 S.Ct. 1868. light of the assess text and entire conduct, Jersey Appellate the effect Division examined each severity of ing the instructions, challenged arguments quan prosecutor’s and the of the curative and, although finding improper, held against the defendant. them tum of evidence in light at trial that when examined of the entire [that] are “some occurrences There ... a trial clearly prejudicial for trial and the court’s curative instruc may be too tions, their eff Moore had not been of a mitigate deprived curative instruction 644, analysis trial. This was Donnelly, 416 at 94 fair the correct U.S. S.Ct. ect.”10 Darden, States, precedent. 1868; Supreme v. 391 U.S. under Court Bruton United cf. 183, 2464; 106 123, 136, 1620, Donnelly, 476 477 at S.Ct. 88 20 L.Ed.2d U.S. S.Ct. (admission 643, (1968) at 94 Further inculpa of codefendant’s 416 U.S. S.Ct. 1868. more, have Supreme cured because we found no tory prejudicial confession too instruction). making “materially cases with facts indistin through jury hand, determination, from those we Supreme precedent guishable” at hold contrary to reviewing weigh state court’s decision requires the was Williams, conduct, clearly of the cu established federal law. the effect prosecutor’s 404-09,120 at S.Ct. 1495. strength rative instructions Darden, 182, 106 477 at evidence. U.S. 2464; 643, Donnelly, 416 at 94 S.Ct. U.S. 2.

S.Ct. 1868. Appellate unrea- Whether Division apply sonably clearly failed to established

B. by Supreme federal law as deter mined 1. a more difficult question. Court is Ap Division twice concluded Appellate now examine whether We contrary support evidence to judgment Division’s there was sufficient pellate I, slip op. See clearly established law as deter Moore’s conviction. federal (“In for a new ruling the United at *11 the motion by Supreme mined Court of analysis made a careful application or an unreasonable trial States ability respect by law as of the evidence federal determined Williams, identify 529 to have her the United States. the victim seen Court of 404-09, An of the record 120 1495. The Su examination assailant. U.S. satisfies addressing fully recital and Court has noted that substantiates preme See, Floyd Mea- appeals e.g., tests errors.” v. Other courts of have set forth "incurable chum, Cir.1990) (2d (grant- determining prosecutorial F.2d whether mis- 907 356 petition pre-AEDPA ing due under stan- a defendant's habeas conduct violates See, Melendez, e.g., part because remarks process. United States dard in (2d Cir.1995) repeated (examining was a 241 that defendant liar and her 57 F.3d misconduct, were in- severity to the Fifth Amendment curative instructions references evidence); Donnelly). under But Capone, United curable error under States Williams, (1st Cir.1982) (looking U.S. F.2d sever- conduct, purposeful, we must determine whether ity it was L.Ed.2d whether instruction, strength reviewing unreasonably applied federal courts effect of curative evidence). Supreme Court. also discussed law as determined Some courts have supported by that the conviction is sub- us inference.” Id. at *5-6. The evidence....”)- Specifi- Appellate stantial credible Division was “satisfied that credibility cally addressing possible prejudice fully M.A.’s removed identification, post-hypnotic judge’s prompt action.” Id. at *6. stated, And as to the final nothing Division “There is in the remark —that the probably would suggest police perpetrate record to either the a “worse or the as- if they sault” on M.A. to assisting hypnosis any way doctor in failed believe her the Appellate Division noted suggested might what the assailant look —the that II, again jury “[o]nce the was instructed like.” Moore 641 A.2d at 271. comment, disregard to the that it was im- Addressing prosecutorial the misconduct proper.” Id. at *6-7. The court was “sat- in the particular, Appellate claims Division here, judge’s isfied the action as with the held, “An [prosecutor’s] examination of the previous improprieties, prevented the entirety summation its that shows the prosecutor’s statements substantially from complained represented of comments prejudging the defendant.” Id. at *7. portion extremely lengthy small of an sum- conclusion, Appellate the Division mation, broadly are too characterized noted following: the defendant and in each promptly case appropriately Although persuaded with we are dealt forceful that the I, prosecutor’s slip op. deprive curative instruction.” Moore at comments did not trial, *4. prosecutor’s argument As to the defendant of a fair we that would be derelict if express the should infer that we did not disap- Moore selected a our proval rape strongest white woman to because the his wife is terms. The white, summation showed Appellate explained disregard Division obligation that “the impropriety suggestion prosecutor play to fair done, forcefully justice was and see expressed” by the trial that is [citation role, however, omitted]. when he told the at Our side- is not to supervise bar that punish prosecutorial the inference was or unreasonable. mis- Id. conduct. It Appellate Division is to examine noted the trial for judge “immediately gave Fortunately, a forceful fairness. the judge, unlike complete prosecutor, curative instruction which not was sensitive to the need only told the for a fair trial disregard prose- and promptly and force- fully cutor’s remarks but told delivered them it was an curative instructions to jury. unfair and unreasonable inference and an improper argument.” Id. at *5. The court Id. The Appellate Division noted its view was “satisfied that judge’s [the trial action] prosecutor’s that “the outrageous conduct prevented prosecutor’s statement from violated ethical principles,” “urge[d] substantially prejudicing defendant’s Attorney bring General to the matter to a fair trial.” Id. to the attention appropriate ethics body.” Id. prosecutor’s

As to the argument that rápe committed the because he had The State Appellate maintains the Divi- “greatest need for sexual release” sion’s judgment unjust- “cannot be seen as ill, while his wife Divi- ified” or Donnelly unreasonable under sion noted that the trial judge issued Darden. Br. Appellee for at 37. Al- “curative instruction which though he told the the Appellate correctly Division disregard state- governing identified the law federal ment; that it was an prosecutorial claims, unreasonable and misconduct see Dar- den, 2464; Don- of her opportunity U.S. 106 S.Ct. Because limited attacker, view nelly, suggested police her M.A. reasonably might question is whether failed she able to remember him if apply hypnotized. law to the facts this case. more detail she were Three rape, weeks after the the Somers Point identity at trial The sole issue arranged appointment Police Dr. rapist. undisputed It M.A.’s Babcock, a psychologist, Samuel clinical description initial of her attacker was hypnotized. for M.A. to be Before the vague. morning rape after the she told Babcock, hypnotic session with Dr. M.A. police that' she had him “from seen had not identified Moore as her attacker. light apartment outside” her which police M.A. testified that the did not show lights came from street on the road and photographs potential suspects her be- lights hospital parking from in a lot half a hypnotic fore the session. In accordance away. acknowledged at trial block M.A. law, Jersey with New taped Dr. Babcock eyes her that she had closed most meeting his with M.A. transcript during time the attack and that she was his meeting produced por- was at trial and “scared to death.” She also testified that tape played tions the audio were for the keep eyes her attacker told her to her jury. Part of this evidence consisted of “kept telling and that he that closed me he pre-hypnotic description M.A.’s to Dr. if I had knife and didn’t do what he said Babcock ability of her limited to her see that he hurt would me.” She noted that said, attacker. She “There’s not much “very had a fleeting opportunity” she some, [light], a little light bit of comes attacker, point to see her but at “one when through the light window but there was no bed, standing he over the I was saw his house, in my lights no on pretty it’s face.” enough M.A. stated he was “close dark.” much light When asked how came see, but not in detail.” She stated that stated, “Ah, through her window she not though wearing even she was her con- much, very enough its to see like shadows attack, during tact her lenses attacker stuff, but not.... Like outlines of “very enough was close” to her —close know, uhm, things, you really but nothing her to see him and his face. She stated know, ahm, nothing not like in detail.” that things she could see certain without Dr. pre-hypnotic her interview with her contact lenses—that she had driven Babcock, she also stated that her attack- without them and that her vision did not “round, ... he er’s face was had a short prevent seeing things her from close d, meaning bear facial hair as he though her. days. hadn’t shaved in a few He was Although po- her initial statement about five-foot-eleven.” day rape lice the after the she her stated black,” “may attacker have been in a writ- After undergoing hypnosis, M.A. was police day ten statement that same she able to recall her attacker’s skin color “black, described her attacker as about was “medium.” She testified “[w]hen 5'10", lbs., just late 20’s to I hypnotized, again mid 30’s. Short saw his face hair, it, short beard close to his face. He was like I had much seen but was clearer.” stated, wearing jeans.” session, Immediately hypnotic blue She also after the police “You could tell he was black” because of M.A. met with a sketch artist state “tough street talk.” She described her and described her attacker. The sketch “medium, hyp- attacker’s build as muscular. artist testified that as a result of the nosis, bulky, just memory “definitely Not muscular.” M.A.’s en- jeans They pair home. found particular Moore’s was “surer of she hanced” and front and jacket that she suede told me [S]he information.... collar, He said M.A. material” on the back “sweater remembered better.” jacket on the had stains sleeves. perpetrator or the person described police male, front. had not mentioned M.A. being Negro crime as old, jacket ma- years attacker’s had sweater twenty-eight her approximately Additionally, sleeves. M.A. eighty hundred terial on the one approximately “tan,” but a state jacket five[-]foot[-]elev- as pounds, approximately described build, complexion. en, medium laboratory muscular that conducted tests police eyes approxi- “orange remembered his fi- jacket She it contained said being remember[ed] mately dark. She bers.” being and the hair as on his face stubble months almost nine On October tight and short with texture. black Moore, after the initial identification recalling specific more fea- In addition to Point again met with the Somers M.A. during hypnosis, tures of her attacker County and the Atlantic Prosecu- Police had worn her attacker M.A. remembered was shown a series of tor’s office and jacket zipper. a tan with a

jeans and suede including photographs suspects different recalled there days later she also Several photograph recent of Clarence more pockets near one of the was dirt or stain (the had been previous photograph Moore jacket. of her attacker’s earlier). years The officers taken two “sketch,” the assistance of M.A.’s With M.A. viewing at this testified that present photo line-up pos- police arranged immediately identified Clarence Moore as suspects photograph that included a sible identification, After this her attacker. included Moore Moore. Police Clarence pho- M.A. a third series of officers showed in suspect he was a line-up in this because line-up suspects tographs from live in assault cases Somers two other sexual in a different order from the that were awaiting was also trial on Point. Moore previous photographs. in the suspects May in charges Cape assault Coun- sexual M.A. identified Clarence Moore as again ty- her attacker. immediately photo- recognized M.A. investigating The officers those during photo graph of Clarence during M.A.’s out of court identifi- present assault line-up. But the two other sexual at trial. Defense counsel cations testified could not iden- victims from Somers Point cross-examined these witnesses about police tify him. In a written statement to officer procedures. identification who stated, line-up, M.A. following photo line-up described photo conducted the first A.M., 5, 1986, February at 12:40 I On selecting procedures employed he consisting of photo line-up was shown a stating, for the identification photographs photographs Capt. of black men six Kaufman. After Sgt. Lukasiewicz and photographs I obtained five other I carefully viewing photographs, these people appeared physical that similar # 2 picked photo photo of Clarence [the I With those appearance [to Moore]. sexually as the man assault- Moore] who all photographed separately then six so absolutely of this ed me. I am sure general they all be of the same would identification. placed I them size and color hue. then identification, squares that has cut out so After into a folder photo this initial showing. the face was police warrant executed a search face that Moore because “that is same photo- chose the that he He also testified face, night. recognize I I through a saw that by going in the line-up graphs it.” M.A. identi- everything Finally, at the about police photographs large stack during fied Moore in-court identifica- pick “tried to out the he station question tion there was no whatso- closely stating Mr. that most resembled pictures mind that he was her attacker. during the iden- ever her He testified that Moore.” immediately picked out tification, M.A. evidence, physical The state recovered “ said, ‘I’m sure that’s photo and Moore’s including clothing and various articles of face. see it- forget I’ll never him. apartment, M.A.’s and sent blankets from ” my eyes.’ I close every time laboratory a crime this evidence to testified at Dr. Samuel Babcock laboratory exam- testing. DNA also employed hyp- procedures he about hair, samples from ined saliva and blood cross-examination, notizing During M.A. testing this M.A. and Moore. After both about his questioned Babcock was Dr. material, laboratory report issued pro- methodology, specifically whether his high stating, “An insufficient amount of forms of suggestive ques- relied on cedure weight molecular human DNA was isolated tioning to enhance recall.11 swabs, sheet, beige vaginal from the fitted when trial M.A. testified that she was blanket, At light and the blue yellow blanket sexually assaulted she was able look no comparisons therefore could comforter who her and was able person attacked made from Clarence Moore.” with blood face. was able to to see his She stated she being that after “clearly,” him see C. again just “I like I

hypnotized, saw his face noted, it, weight or of the quantum As the but was much clearer.” had seen determining whether at evidence is crucial describing her identification Moore testified, arguments during the summa- photo line-up, initial M.A. “As the [Moore], in a prejudicial I tion as to result I saw two were so soon as number Darden, 477 U.S. at process. testifying him.” In about denial due recognized 2464; at identification, said, Donnelly, M.A. “I photo second Division Appellate The immediately recognized the man who as- S.Ct. 1868. “incurability” analyzed prosecu- of the me.” that the other She testified saulted tor’s remarks within context line-up in the did not look photographs and examined specifically Moore but she knew entire trial very different from subjects experiencing greater Dr. a number of questioned Babcock 11. Defense counsel confabulation, person responded where under about Dr. Babcock confabulation. memory may unconsciously fill in hypnosis questions acknowledging by the scholar- these suggested gaps Defense information. suggestive questioning its ly criticism of suggested authorities within the counsel However, impact stat- he on confabulation. community asser- scientific believed more ed, hypnotist, greater tive dominant person. I keep key, I do I low not lead hypnotized subject expe- would likelihood narra- them to continue their own ask ques- Defense counsel rience confabulation. tive, asking questions their narrative within how assertive he tioned Dr. Babcock about they're pressure. If but I feel that without patients. questioned Dr. his He also was with answer, ques- giving I’ll off the an back regression technique age about Babcock later, Perhaps may to it tion. come back hypnotizing hypnosis employed he in of clients, pressure but I do it in kind of do not he was aware that some and whether technique situation. resulted in authorities believed this I, slip Moore weight op. appropriate of the evidence.12 for the victim’s fear-induced II, *11; at Moore 641 A.2d at 271. Al- neurosis, traumatic and that though identification of M.A.’s Moore was judge’s findings procedures as to the Jersey the New post-hypnotic, courts have employed and adherence to the Hurd validated this form of identification.13 The requirements supported by sub- Jersey New courts reviewed this evidence stantial credible evidence in the record. nothing and found the record suggested Id. Dr. police sug- that either the or Babcock Appellate Division concluded the gested what the assailant looked like. evidence was “more than sufficient” to I, slip op. Moore at *10. Appellate support I, a finding guilt. slip Moore noted, Division *11; II, op. Moore A.2d 271. Following thorough hearing, Hurd finding But the evidence “more than suffi- found that all the standards cient” for necessarily conviction does not Jersey] set forth [New fully had end the constitutional complied inquiry. Although been with. We are hypnosis satisfied use of beyond found Moore guilty a rea- description 12. M.A.'s of Moore as her attacker prepare should not be used to a witness to court, cannot be corroborated other testify witnesses. attempt improve corroborating usually But are witnesses un- previously recall of unreliable or uncer- involving available in cases sexual assault. It Orne, (quoting tain witness.” Id. Martin T. et duty is the fact finder assess the al., Hypnotically Testimony Eyewit- Induced credibility reliability of the victim’s testi- Testimony: ness Psychological Perspective mony. attorney Moore's cross-examined M.A. (Gary L. Wells & Elizabeth F. Lof- on her identification and the found her tus, 1984)). eds. Jersey the New Su- But identification reliable. The trial court and preme Court many commented that federal held, Division if the found courts, including Appeals the Courts of for the reliable, M.A.’s there suffi- identification Fourth, Fifth, Seventh, Eighth and Eleventh cient evidence to sustain Moore's conviction. Circuits, courts, including several state II, 641 A.2d at 271-72. Alabama, Colorado, Florida, courts in Missis- Mexico, sippi, New South Dakota and Wis- recently Jersey As the New Su- consin, case-by-case determine on a basis preme adopt per Court declined se rule hypnotically whether prohibiting refreshed hypnotically testimony. induced sufficiently Fertig, State v. 143 N.J. reliable 668 A.2d to be admissible. at Id. (1996). stated, 1081-82 Jersey Supreme The court reasoned that 1081. The New al- Court though many prohibit Hurd, hypnotical- state courts recognize, “These courts as we did in ly testimony, induced other courts have evalu- per that a may se inadmissible exclude rule testimony ated post-hypnotic totality under a otherwise reliable evidence.” Fertig, Id. In of the circumstances test or have considered however proce- the court added an additional factors, including "procedural other safe- safeguard stating, dural "When trial courts Hurd, guards similar to those in to determine hypnotically-refreshed testimony, admit they case-by-case hypnotically-refreshed whether should instruct hyp- the of the effect that testimony is admissible.” Id. at 1081. The may testimony.” nosis have on that Id. at twenty-six court noted that courts have found hypnotically testimony per refreshed se inad- case, In this the trial court conducted the states, Dakota, missible while four North appropriate hearing Hurd to determine the Oregon, Wyoming, gen- Tennessee and find admissibility post-hypnotic of M.A.'s identifi- erally admissible. The court also noted that cation and they instructed the could expert the they whose recommendations re- testimony they consider this if upon found it reli- lied in Hurd to determine the admissi- course, bility Fertig’s requirement able. Of hypnotically testimony that the induced now "procedural jurors safeguards hypnosis believes that be instructed about cannot the effect fully protect against may testimony the have on inapplicable [some admission of was improper] testimony.... hypnosis the time [Therefore] of Moore’s trial.

113 doubt, D. re- Supreme the Court sonable the reviewing to factor the quires arguments prosecutor’s challenged im- prosecutor’s effect of the prejudicial irrelevant, very illogical least were at the jury’s finding into remarks the proper argument offensive. His “selection” Taking impact. assess and then its guilt perception to be based on the appeared rape expression the of evidence is of sexual desire quantum consideration into violence.14 fact it is gener- rather than inqui- the due properly presented, true, opposite Lie- ally understood court to deter- ry requires reviewing, 1085, Washington, F.3d berman v. prosecutor’s remarks mine whether (7th Cir.1997) authorities), (citing light prejudicial, were so even jury of the the trial court advised the instructions, in the curative as to result theory in its invalidity prosecutor’s trial. When a fair denial curative instruction. To the extent in- strong, evidence is and the curative theory implicitly prosecutor’s represented adequate, Supreme structions that a black man’s attraction to a white prosecutor’s prejudicial con- has held characteristic, identifying woman is an deprive of a fair does not a defendant duct trial court countered it “unfair and Miller, 756, n. 483 U.S. trial. Greer to infer unreasonable” that the selection 3102, 8, (holding 97 L.Ed.2d 618 107 S.Ct. would Moore. help identify a white victim “primarily consisting of detailed evidence prose- The trial court also invalidated the who had co-conspirator [of in- argument by cutor’s “sexual release” which was corrobo- crime] confessed inference was structing testimonial ev- by physical rated other and there was improper unreasonable and strong support con- enough idence” was evidence of lack of sexual access. no comments), prejudicial despite viction argument “selection” denied, reh’g 483 U.S. 108 S.Ct. woman, marriage cited Moore’s to a white Darden, (1987); 477 U.S. 97 L.Ed.2d raising miscegena- biases arguably against weight 2464 (holding 106 S.Ct. “the stereotypes. Racially or eth- ugly tion and against [defendant] of evidence have nically prosecutorial arguments based heavy; overwhelming eyewitness system justice. See place no in our a find- support circumstantial evidence to 279, 309-10, McCleskey Kemp, 481 U.S. ing guilt charges on the reduced 262, reh’g de- 95 L.Ed.2d 107' S.Ct. jury’s that the was in- likelihood decision nied, [prosecutor’s] ar- improper

fluenced (1987). In courts regard, L.Ed.2d 686 pros- must then the gument”). We assess have precedent applying remarks, the curative ecutor’s improper racial and ethnic ref- found that weight and the of the evi- prejudicial instructions can so as to result erences not all due But process.15 a denial of dence. Typically a trial acknowledges, prejudicial comments. State "The 14. igno- grant motion for properly judge's saw as an defendant’s Division this remark appeal, unless about the true not reviewed on and uninformed statement mistrial rant Appellees present. jeopardy sexual Br. for are See nature of assault.” double concerns 600, Dinitz, at 40. States 424 U.S. generally United v. 1075, (1976). 47 L.Ed.2d There- 96 S.Ct. 267 fore, following sampling appellate cases recognize where 15. We there are instances accurately range of cases immediately grant may not reflect the courts a defendant's trial prosecutor's improper prosecutor's racial refer- for mistrial because of a where motion 114 prejudi- preme references are so precedent

racial and ethnic have prej- held the udicial effect of a improper process cial due as to constitute violations. references ethnicity to race or can .be 182, Darden, 2464; 477 106 S.Ct. U.S. judicial cured with charging instructions 644, 416 94 S.Ct. 1868. Donnelly, U.S. to disregard improper state- instances, applying other courts Su- ments.16 process due rape ences constituted violations. We defendant accused of to fair following also note that some of the cases inappro- when combined with two other predate Donnelly. But to the extent these comments); priate United States ex rel. prejudicial cases examine the effect of im- McKendrick, 152, 155, Haynes v. F.2d 481 161 proper arguments helpful we find racial them (2d 1973) (prosecutor’s Cir. statements about illustrating curability improper ra- "experience defense people counsel's with the See, arguments. e.g., cial United v. Slates knowledge of the colored race” and his Cannon, 1495, (8th 1996) 88 F.3d 1503 Cir. inability “their weaknesses and to do certain (prosecutor's reference to African-American things maybe commonplace are for the people" defendants as "bad in case where do,” ordinaiy person to combined with his overwhelming "gave evidence was not [the] statement about "the custom and habit of improper and convenient hook on many people” colored to have "exotic hair conduct," hang resulting which to their dos” denied African-American defendants fair Doe, violation); process due United States v. trial where in case was not evidence "over- 16, (D.C.Cir.1990) (prosecu- 903 F.2d 27-28 whelmingly persuasive”); United States v. tor's statement ... "Jamaican[s][are] 1043, (6th Grey, Cir.) 422 (pros- F.2d 1045-46 coming they're taking re- over” and ecutor’s statement about African-American peated "they” references to and "them” in a defendant's African-American character wit- drug involving case Jamaican defendants was "running go-go ness awith white around improper where evidence was not "over- sufficiently prejudicial dancer” was Smith, to war- whelming”); McFarland 611 F.2d cert, denied, trial), 967, 414, 416, (2d Cir.1979) rant new 400 U.S. (prosecutor's 91 419 380, (1970). 27 statement that L.Ed.2d 387 African-American officer’s tes- timony about African-American defendant should be believed because it is "someone she following sampling is a of federal knows and that's a member her own race” applying Supreme precedent, cases see "constitutionally impermissible” because 8, supra note improper prose- that have found illogical purpose invoked race for an cutorial references to preju- race were not so stirring created "a racially distinct risk of dicial process. as result in the denial of due attitudes”); prejudiced Withers v. United Again, predate Donnelly. some of these cases States, 124, 125, (6th Cir.1979) 602 F.2d 127 . they But prejudicial to the extent illustrate the (prosecutor's statement that "not one white arguments, effect racial we find produced” support witness has been Afri- See, Gilmore, helpful. e.g., them Thomas v. prejudi- can-American defendant’s case was (7th Cir.1998) 144 (prosecu- F.3d 518 required cial and new trial where evidence tor's statement that African-American defen- overwhelming was not as so to create an prior dant had arrests for sexual offenses with "open defendant); against and shut case” "young fleeting white women” was "too Carolina, Miller v. North 583 F.2d trial), isolated” to have denied defendant fair (4th Cir.1978) (prosecutor’s statement that "I cert, denied, argue average that the white woman (1999); L.Ed.2d Farley, Smith v. 59 F.3d anything type abhors of this with a black (7th 1995) (prosecutor's 663-64 Cir. ref- rape involving man” in a case African-Ameri- erence to African-American witness can defendants was due violation "shucking jiving on the stand” and refer- given); where no curative instructions were ence to African-American defendants as Stone, (9th Kelly 1975) F.2d Cir. “boys” did impartiality not interfere with the (prosecutor’s asking jury to "[t]hink about the jurors guilt because the "evidence consequences letting guilty go of a a man ... cert, denied, overwhelming”), the case was maybe free. Because the next time it won’t 1123, 935, girl be a little 516 U.S. black from the 116 S.Ct. 133 other side of the L.Ed.2d tracks; (1996); Collins, 202, maybe somebody you it will be 861 that Russell v. 944 F.2d know,” operated (5th Cir.) deny to (prosecutor’s African-American 204 n. 1 statement

115 reason, pro- and that selective case, trial court commend- In this cess, aggravated that he did this harm was any possible cure attempted to ably a he white or assault because selected prosecu- from resulting prejudice person. Disregard that. refuting After Caucasian arguments. improper tor’s unfair infer- That’s an and unreasonable argument, “selection” prosecutor’s to be drawn from jury to ence specifically instructed the remarks, proper I’m that it’s not de- convinced disregard prosecutor’s jury. argument that racial references claring such noted, As instruct- invalid. in the Division held that jury, ed trial, entire these curative context the harms caused disregard to what instructions remedied ordering I am prosecutor’s improper testi- comments.17 in reference to the prosecutor said Moore, not We are convinced. mony, appearance Mrs. Caucasian, his “selection” ar- person, approach advancing a being

she a white His person, was direct deliberate. being gument and Mr. Moore black cert, denied, reference), disregard imagine jury to 411 the fear of white mur- asking to 920, 1560, strangers” as “three black attacked 93 36 der victim U.S. S.Ct. L.Ed.2d 313 Horne, 630, race of an reference to the (1973); her was “isolated United States v. 423 F.2d deny and did not defendant (9th Cir.1970) the defendant” (prosecutor’s statement 631-32 cert, denied, 1278, trial), 112 501 U.S. fair trying am tired [defense counsel] that "I 30, (1991); 1112 United 115 L.Ed.2d S.Ct. people their these behind race” and let hide 743, Chase, (5th F.2d Cir. States v. 838 750 closing during that "[r]emember statement 1988) (prosecutor’s statement about “Colom- first, Negro” that he is a was but drug with their cautiousness” in [sic] bians affect defendant's did not African-American involving defendant was not case Colombian rights” "substantial when viewed in context Cardenas, error”); v. "harmful United States White, record); v. whole Brent 398 F.2d 1127, 1131-32(5th Cir.1985) (prose- 778 F.2d 503, (5th 1968) (prosecutor’s 505 Cir. refer- drug cutor's statement that defendant rape girl” case victim as "white ence a new case was Colombian did not warrant was African-American where defendant 636, trial); Harvey, United v. 756 F.2d States process due violation because victim took not (8th Cir.) (prosecutor’s 649 statement apparent it was as witness and the stand "honky” to attributed the use term cert, denied, white), U.S. jury she was 393 accused African-American defendant 1123, 998, (1969); 22 89 S.Ct. L.Ed.2d 130 prejudi- involving crimes white victims 521, Douglas, F.Supp. 862 States v. United by cautionary instruc- cial but was cured (D.D.C.1994) (prosecutor’s reference 530-31 cert, 97, denied, 831, tions), 474 S.Ct. U.S. 106 drug ethnicity in to Jamaican defendant’s (1985); Wainwright, v. 88 L.Ed.2d 79 Griffin violation), not due case did result in Cir.1985) 1505, 1513, (11th F.2d 1515 760 cert, denied, 1995), (D.C.Cir. affd, 70 F.3d 638 as (prosecutor’s reference to victim of crime 1098, 827, L.Ed.2d 516 U.S. 116 133 involving did "white” in black defendant case (1996). 770 cert, denied, trial), deny 476 fair not defendant 1992, 1123, L.Ed.2d 672 U.S. 106 S.Ct. 90 Greer, See, e.g., U.S. at n. 107 483 767 Yonn, (1986); United States v. 702 F.2d ("We normally presume S.Ct. 3102 (11th Cir.) (prosecutor’s 1349 statement disregard inad will follow instruction drug did case was defendant in Colombian cert, inadvertently presented to missible evidence trial), denied, 464 U.S. not warrant new it, 'overwhelming probabili there unless is an (1983); L.Ed.2d ty’ be unable to follow Cir.) that the will Beto, (5th 470 F.2d Thornton instructions.”) (quoting Richardson court’s (prosecutor's reference African-American Marsh, 200, 218, 107 S.Ct. "niggers” during ex- defendants re-direct Here, (1987)). prosecutor's L.Ed.2d deny amination of victim did defendants inadvertently improper arguments were not objected trial because defense counsel fair presented. when remark was made and court instructed purpose argument demonstrate the of his The “selection” had no basis own words identifica- involving was to bolster the State’s the evidence. a a appeal case stated, a Specifically raping he black defendant accused of white tion evidence. argument, although woman believe this we Cheryl Based disclaimer, with presented highly was Moore, ever, than stronger the case is prejudicial and invited jury to decide odds that the are that this defendant is Miller, on bias. See F.2d at ease perpetrator you ... have more [and] “I (prosecutor’s argue statement that McKinley to reason convict Clarence you average that the white ab- woman now that she testified than has anything of this ... a black type hors with ever. a rape man” in case involving African- prosecutor The noted there were “three process American defendant was viola- due things” learn important should tion no curative where instructions were Mrs. “appearance” from Moore’s as a de- noted, given). As the trial little judge had witness. He stated: fense argument’s impact doubt about when did we What learn when we found out he admonished the at sidebar Cheryl Moore was the wife of the away “stay from the area of white/black in a nonra- suggest you defendant? don’t think because I that’s in the case.” way that what out cist we found was argu- “sexual release” that Clarence McKinley Moore made improper. ment also was The comment to be with choice woman. Caucasian implied that Moore guilty raping words, prosecutor argued In other M.A. because he was sexual unable have “preference” Moore’s for white women was improper, intercourse his wife. While probative raped he evidence whether usually we is the kind of believe remark disclaimer, M.A. His “It’s not statement by appropriate remedied instruc- curative race; choice,” question it’s a does not judge immediately The trial tions. cau- mitigate injection his of race into the jury that tioned the there was eviden- no (“the jury’s is stronger deliberations case tiary basis this inference. believe We ever”). immediately than The trial judge judge effectively the trial remedied implications prose- understood the possible prejudice stemming from re- argument. argument cutor’s Calling mark. “unfair,” recognized noted, prosecutor’s “selection” argument was the prosecutor As commented at prejudicial that, because it you declared Mrs. the end “if summation Moore’s race was relevant to issue of don’t think believe [M.A.] guilt Moore’s and could to bias then play lying, you’ve perpe- she’s probably against interracial couples. argument trated a worse assault on her.” This was gave the an “hook” illegitimate appeal jurors’ pas- on an which to base their decision.18 As the sions.19 Court held in See, e.g., McCleskey, al peo 481 U.S. 309 n. to African-American defendants "bad ("If ple” against in case where evidence 107 S.Ct. 1756 them circumstances of a overwhelming "gave improp particular [the] significant case indicate a likeli hang er and convenient hook on which to jury, may hood racial bias influence conduct,” resulting their in due viola requires questioning Constitution as to such tion). bias.”) Ross, (citing Ristaino U.S. (1976)); 96 S.Ct. 47 L.Ed.2d 258 Can 19. See, States, e.g., Viereckv. United non, (prosecutor’s 88 F.3d at 1503 reference (1943) 87 L.Ed. 734

117 78, supra note 8. States, improper.20 85- tion were See 295 U.S. v. United Berger (1935), 629, applying Supreme But other courts 88, 79 L.Ed. 1314 55 S.Ct. improper have precedent recognized that grounds, v. on other Stirone overruled 270, passion to can cured.21 Id. States, 212, appeals 4 361 U.S. 80 S.Ct. United (1960), 252 L.Ed.2d noted, the trial instructed As court here rep- Attorney States is The United jury, to a ordinary party not of an

resentative you I want to tell I’m to order going whose controversy, sovereignty but of generally people. you don’t order —I ... govern impartially to is obligation going disregard I’m to order to you may prosecute He compelling.... made to prosecutor] last remark [the vigor he should earnestness that the to thing 'the effect last have —indeed But, hard may while he strike do so. say you to is that if don’t believe her you blows, foul liberty to strike he is not you you’re think lying, she’s then ones. assault probably perpetrating worse I have Disregard on her. that remark. rape. suffered a attack and M.A. brutal you that’s are improper deter mined to factor their under- By asking any purpose to consider for not sympathy for the victim of this standable case. this guilt into Moore’s deciding horrible crime innocence, im- of a brutal prosecutor graphic or made an evidence Given “perpe- permissible request guilt rape, on we believe to decide was like- trating evidence. a worse assault” comment something other than jury’s ly improperly influence the deci- applying precedent to Courts verdict jurors by implying not-guilty that similar that a appeals have found sion suffering.22 compound to on and emo- M.A.’s passion cases based would decide taking during advantage children at (prosecutor’s statement to World defendant emotion); relying people appeal "the are improper War II that American Christmas was to Lee, protection 1240, (8th you against their upon ... for v. 1253 States 743 F.2d United crime, just they relying Cir.1984) as much as are sort of (prosecutor’s that “[w]hat statement guns” an upon the men who was man jurors going watched here. you do as to be passion); appeal to v. United States every can better believe that each You (7th Cir.) 295, Cunningham, 54 F.3d 300-01 happens drug smuggler-is watching here what (prosecutor’s "[c]ollec- statement to emotion). today,” improper appeal to was go stop tively [the can back there and [the You can make sure that defendants]. Jones, 399, See, Simpson e.g., F.3d 21. 238 up again. going get isn’t beat victim] (6th Cir.2000) (prosecutor’s statement 409 forbid, for the witnesses that came Heaven asking jurors put themselves in shoes days couple the last if these this courtroom prejudicial family not so murder victim’s was guys guilty. are not Heaven forbid. found deny trial when defendant to fair happen,” improper appeal let that was Don’t given); Walker v. curative instructions were cert, denied, 883, emotions), jury’s 516 U.S. Cir.2000) Gibson, (10th 228 F.3d 1243 (1995); Unit 116 S.Ct. 133 L.Ed.2d 150 (prosecutor's victim as reference to murder North, (D.C.Cir. 910 ed States F.2d 895 grave” improper appeal to "cold in 1990) (prosecutor’s comparing de statement un- but sufficient to render trial emotion improper appeal to Adolf Hitler was fendant "likely the crime itself because it fair superseded passion), opinion withdrawn and produced sympathy [the] before (D.C.Cir.1990) part reh'g, 920 F.2d 940 comments”). made [the] cert, denied, order), (per curiam (1991). 477 L.Ed.2d See, Kelly, (prosecutor’s e.g., F.2d 20.See, asking jury to the conse- ”[t]hink about e.g., Payne, 2 United States v. F.3d 1993) (6th letting go (prosecutor’s guilty free. quences reference to of a man Cir. Furthermore, race, prosecutor’s argument credibility the Moore’s and not from the testimony. The M.A.’s reliability testimony, mischaracterized or of her alibi at trial was never M.A.’s principal issue guilty. her husband was As noted the of her or credibility in terms truthfulness Supreme Darden, in prose- Court when a fact, can be sincerity. there no doubt argument manipulates cutor’s or mis- sincerity. principal issue about M.A.’s evidence, the argument states the can be identification, reliability of was the M.A.’s prejudicial so as to result in the denial of opportunity her to observe remember process. due 477 U.S. at 106 S.Ct. implying To her assailant. the extent Here, prosecutor the manipulated M.A. not-guilty required finding verdict testimony to bolster identification evi- lied, the iden- prosecutor manipulated the dence. question tification into of ve- believe trial properly We the court at- real racity reliability. when the issue was tempted any to cure resulting prejudice To it was intended to buttress the extent prosecutor’s arguments. from the As not- (in credibility ability terms of her to M.A.’s ed, directly its charged instructions the observe or to refute the confabulation ar- disregard prosecutor’s improp- the gument), argument was be- the er references to race appeals to their jurors’ it played cause emotions Despite emotions.23 court’s suggested not-guilty required verdict instructions, strong the issue remains finding lied. M.A. whether in the context of the entire trial only improper argument, Were this the evidence, in view of all prose- prece- we not believe Court Supreme do prejudicial cutor’s remarks resulted in a require finding dent would denial of due denial of due process. recognized by As isolation, process. in prejudice Taken Darden, Supreme when look- stemming “perpetrating from the a worse trial, ing at the reviewing entire argument assault” could cured with should examine the strength of the evi- strong instructions like those the trial against dence the defendant. 477 U.S. here. But when issued viewed 182,106 S.Ct. 2464. light prosecutor’s argu- “selection”

ment, we believe due concerns are E. implicated. Together, prosecutor’s argument “perpetrat- “selection” and the Most presented of. evidence at trial ing argument a worse assault” were not on focused M.A.’s identification of Moore. only improper prejudicial. Through but The New Jersey courts found the identifi- arguments, these asked the cation evidence “more than sufficient” to jury to decide case bias and emotion support a finding guilt beyond a reason- presented. rather than on the evidence prosecutorial able doubt. Absent the mis- here, Specifically, argument his “selection” conduct we agree. would But wheth- asked quantum to infer from Mrs. er the against evidence maybe Because grave” improper appeal next time it won't be a as "cold girl little black from other side of the but not emotion sufficient to render trial un- tracks; maybe somebody it will be fair). know,” operated deny African American rape defendant accused of to fair delay 23. We do not believe the occasioned inappro- trial when combined with two other overnight adjournment especially is rele- Walker, comments); priate but see 228 F.3d at vant here. (prosecutor's reference to murder victim support single brief view. While this evidence sufficiently strong his con- prejudi- support finding guilt, could light properly viction question. strong as those in which cial is a difficult cases arguments more highly prejudi- has found acknowledged eyes that her M.A. prosecutorial cial arguments curable. most the attack. during She closed Greer, 3102; her that she was able see stated Darden, 182, 477 U.S. at 106 S.Ct. 2464. at when point attacker’s face “one he was Darden, During prosecu- the In the standing over bed.” this Court found the arguments part in glimpse,” wearing improper she was not her tor’s curable “mere understandably weight against and ex- because “the of evidence contact lenses was frightened. heavy; The room was the over- tremely [the defendant] which only eyewitness the whelming attack occurred was dark and was and circumstantial guilt a lights. support finding illuminated street M.A. evidence to of outside although charges her attacker’s the reduced the likelihood that stated she saw face, jury’s not it “in detail” the the was influenced [the she could see at decision only prosecutor’s rape. improper] argument.” of the was able to 477 time She (internal at give rough physical description quotes of her U.S. 106 S.Ct. 2464 race, omitted). Greer, including Similarly Supreme and his the approx- attacker his prosecutor’s prejudicial and build. the height physical imate It was Court found post-arrest the only undergoing hypnosis after that M.A. comment about defendant’s infect with unfair- give descrip- more detailed silence did not the trial was able weight including clothing tion her attacker the ness because the of the evidence of against strong. he wearing was and the color texture the defendant was physical “primarily hair. The Greer noted the evidence evidence Court jacket presented consisting [of at trial the found in of detailed co- was conspirator who had Moore’s home which M.A. identified as the confessed the by physical night one attacker the which was corroborated crime] her wore rape. impor- was laboratory But the tests on the and other testimonial evidence” jacket unhelpful finding process. tant in no of due fibers on the the denial 483 107 3102. identification. U.S. at S.Ct. case, similarly strong physical, is no there by the in Dar- Supreme As noted Court circumstantial, testimonial, or corroborat- den, prosecutori- prejudicial linking Moore to ing identification evidence al are curable arguments generally when rape. the strong. the 477 U.S. at evidence 106 the evidence is not S.Ct. Where F. however, strong, the has found that Court prosecutor’s account highly prejudicial may Taking into the arguments result comments, Greer, process. highly prejudicial the denial of due See noted, instructions, judge’s 3102. As curative the U.S. at here, evidence, strength we believe rea- physical there was no evidence pre- jacket, application Supreme sonable exception connect finding Moore’s trial was rape. pre-hypnotic requires to the M.A.’s cedent it of her so infected with unfairness vague. identification attacker Greer, infirm. constitutionally not See post-hypnotic Her identification was Darden, 3102; on her strong because was based recol- U.S. 106 S.Ct. 2464. The resulting lection of her attacker from U.S. prejudi- saying that it who improperly weighed without is the Division defendant prosecutor’s prosecutor’s references to harm from the miscon- cial effect of suffers sympa- duct, appeals jurors’ Certainly, and his not state. cannot race we given light strength for the victim in assume—as the dissent does—-that thy Although egregious evidence. nature of the instructions, remarks, automatically the evi- rec- strong issued curative would against sufficiently ognize Moore was the misconduct and dence therefore likely strong jury disregarded acquit to ensure that the more Un- defendant. prosecutor’s inflammatory highly theory, curious der that the worse misconduct, arguments prosecutorial the case off prejudicial and decided better defendant, solely ap- on the A and the there is likely evidence. reasonable less precedent By to be a due violation. plication trial one requires finding reasoning, prose- therefore Moore’s is left to wonder how so that was infected with unfairness he cutorial misconduct could ever violate due process. process. denied due Furthermore, emphasis it bears that the

V. by instructions curative issued the reasons, the we will re- foregoing For best, certainly court mediocre at and judgment the District and verse Court’s prejudicial did not cure the effect this matter to remand with directions outrageous prosecutor’s remarks. Rather corpus. the writ grant of habeas than, Donnelly, in taking “special pains” as may retry of New Jersey State Moore. prosecutor’s to correct the re- improper upon The writ will be issued conditioned a marks, Donnelly, 416 U.S. at the days retrial within 180 from date on 1868, the trial judge here made no effort to which the District Court enters its order. thin the veil the prosecutor’s remove from arguments by racist that telling jury the

RENDELL, concurring: Judge, Circuit were, fact, in arguments improper these join Judge appeals prejudice, I but I to racial such opinion, Scirica’s and that separately my appeals bearing write to view that the should have no the case note on Moreover, prosecutor’s closing in whatsoever. the trial remarks his state- never, trial, merely, any jury during ment the were not as the time the used them, “irrelevant, Majority the “race” in illog- describes word instructions ical, Op. Maj. jury, at 113. and the effect of prosecutor’s offensive.” were, fact, They appeals in in outrageous prejudice, their invidious to racial appeal direct in the context as a to decide case viewed of the trial whole, way on could no grounds and abandon the be cured instruc- justice that made no system standards our of re- tions that reference to race as a quires. factor that the must from its exclude deliberations. prosecutor’s inflammatory remarks clearly Finally, were calculated to divert the what makes im- prejudicial duty its on pact from sworn to focus the evi- of this misconduct Indeed, presented dence in the here is that case. case so clear the evidence of Clar- only manipulated guilt not under- uniquely ence Moore’s evidence, actually whelming. Judge misstated but at- Scirica’s sets opinion tempted to that did problems fabricate evidence forth in detail the inherent circumstances, exist. And such it goes M.A.’s identification of Moore—which was that study in the made a careful case and guilt evidence of only relevant thought- it has reached result after its I no need trial—-and thus see entire Nevertheless, can ful deliberation. there Howev- analysis here. his excellent repeat no doubt that the Division the use er, noting it worth that I think is Jersey New two Superior Court of on is identifications hypnotically-induced through went similar occasions best, concerns controversial of its obligations with no less an awareness such might about the use of that we have that yet opposite reached a result than in a case such heightened is identifications analy- In the court here. final reaches this, entirely where the identification then, sis, this case involves of two choice Fogg, E.g., Jackson uncorroborated. views tbe effect of prosecu- different (2d Cir.1978) (noting F.2d ef- tor’s misconduct and court’s ad- experience in the “[c]enturies remedy the situation. forts justice have shown ministration background of this I do not reiterate solely convictions based fairly as the court sets forth. Nor case previously unknown identifies defendant controlling legal I discuss the authori- do all the highly suspect. Of to the witness is lays out. length ties at as the them it is the least kinds of evidence various Rather, overarching merely state reliable, especially unsupported where here. legal principles involved Under evidence”); United corroborating see also court AEDPA when a federal considers Wade, 218, 228, States corpus the prisoner’s petition, state habeas (1967) (observing 18 L.Ed.2d the underlying decision of state court eyewitness identifi- vagaries that “[t]he any adjudicated that was respect claim well-known; the crimi- cation are annals of unless, ger- merits control as on the must nal law are rife with instances of mistaken to, here, contrary involved mane “was or identification”). of, clearly application es- an unreasonable law, by Federal as determined tablished sum, of the through viewed the lens Supreme the the United States.” teachings implica- Court’s on the Supreme 2254(d)(1). § this Inasmuch as U.S.C. remarks, improper prosecutorial tions of this not acknowledges that case does is no that Moore there doubt Clarence “contrary prong the to” of sec- implicate Indeed, I con- process. denied due when 2254(d)(1), tion the court must determine egregious the facts of this case—the sider unrea- whether the state decisions were an misconduct, lack of effec- prosecutorial application of Federal law as de- sonable instructions, the insub- tive curative I by am termined Court. hardly guilt can stantial evidence of —I fact, and, not they that were satisfied compelling case for rever- imagine more that, Indeed, if I were correct. believe given dictates of established Su- sal prosecutor’s comments which anything, such, As preme precedent. in the admonitions and directions resulted unfairness, and was infected with prejudiced the trial court the state ap- Jersey unreasonably New courts all, could not the trial. After by granting not precedent this plied recognize have possibly failed to trial. a new appeal making improper prosecutor I regard, point In this out that to it. GREENBERG, Judge, Circuit prosecutor a situation in which the is not dissenting: impor- he to the had suggested respectfully I dissent but do so reluc- to the pointing tant evidence defendant’s had not has for some reason he tantly recognize guilt as the court which Thus, while jury. presented supported arguments made not CONTRACTORS, N N & merely they improp- the evidence INCORPORATED, of which the

er on basis evidence Petitioner, Moreover, jury was aware. I see no rea- have to believe that the would had son OCCUPATIONAL SAFETY & HEALTH difficulty carrying judge’s out the in- COMMISSION; REVIEW Alexis M. disregard

structions to com- Herman, Secretary Respon- Labor, ments. dents. important It also to remember that this mat- Division reviewed No. 00-1734. ter not once but twice and thus the court States Appeals, United Court of its makes reference to both of decisions. Fourth Circuit.

Actually, separate two panels Appel- consisting late Division of five different Argued: March 2001. case, judges considered this once on direct Decided: May appeal post-conviction and once in relief proceedings and came to the unanimous

conclusion that conduct require

did not a reversal of convic- recognize It important

tions.1 also is remedial,

that these proceedings are if, clearly

punitive, so that I think is

case, the verdict was not influenced remarks,

prosecutor’s improper we should

deny Moore relief.

Finally, I point out that under the AED-

PA position we are the unfamiliar

being obliged to a highly make deferential of a

review state court’s decisions law ordinarily legal our review of determi- Thus, plenary. is guard

nations we must

against possibility that our result

driven our mere conclusion that requires

state erred as the AEDPA for the granting corpus

more of habeas

relief. the foregoing respectfully

For reasons I

dissent.

1. Moore contended that his to fair trial to a he was entitled new trial counsel because post-conviction had been violated in the relief had been ineffective. proceedings argument aspect as an of an

Case Details

Case Name: Clarence Moore v. Willis Morton, Administrator Peter G. Verniero, Attorney General of the State of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 22, 2001

Citation: 255 F.3d 95

Docket Number: 98-5429

Court Abbreviation: 3rd Cir.