Anthony MOORE, Petitioner, Appellant, v. Thomas DICKHAUT, Respondent, Appellee.
No. 14-1400
United States Court of Appeals, First Circuit.
November 22, 2016
842 F.3d 97
Argie K. Shapiro, Assistant Attorney General, Criminal Appeals Division, with whom Maura Healey, Attorney General, was on brief, for appellee.
HOWARD, Chief Judge.
Appellant Anthony Moore filed the instant habeas petition seeking to set aside his 2006 Massachusetts conviction for unarmed robbery. See
I.
Moore was convicted in connection with the robbery of a Sovereign Bank branch located on Causeway Street in Boston. Shortly after Moore‘s arrest on this charge, law enforcement arranged for several bank employees to view a photo array. The array included Moore‘s photograph, as well as seven other photos selected by a computerized imaging system for their resemblance to Moore. Two witnesses provided a positive identification of Moore.
About two months later, law enforcement conducted a lineup for bank employees. A police officer who was not part of the investigation selected seven “fillers” to be included along with Moore. Defense counsel attended the lineup and made no objection to the process. Four bank employees positively identified Moore.
Moore filed a motion seeking to preclude the Commonwealth from introducing evidence of these pre-trial identifications, as well as in-court identifications by the same witnesses. After an evidentiary hearing, the state trial court denied Moore‘s motion. With respect to the array, the court found that the “photos all appear similar enough to each other so that no single individual stands out.” Along the same lines, the court also concluded that the eight individuals in the lineup were “all similar in appearance.” In connection with both the array and the lineup, the court found “that the police did not do or say anything” to influence the witnesses to identify Moore. For these reasons, it held that the identification procedures were not suggestive and allowed the evidence to go to the jury. Ultimately, the jury returned a guilty verdict.
The Massachusetts Appeals Court affirmed Moore‘s conviction, rejecting the claim that the identification procedures violated his constitutional rights. It held that those procedures were “not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Commonwealth v. Moore, 929 N.E.2d 1001, 2010 WL 2773260, at *2 (Mass. App. Ct. July 15, 2010) (unpublished table decision) (citation omitted). The Massachusetts Supreme Judicial Court subsequently denied review. See 458 Mass. 1104, 934 N.E.2d 826 (2010) (unpublished table decision).
The federal district court subsequently denied Moore‘s
II.
We review the district court‘s denial of Moore‘s petition de novo. See Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007). But, like the district court, we must afford a high degree of deference to the Massachusetts Appeals Court‘s decision. Indeed, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), we may grant Moore‘s petition only if we find that the state court‘s decision “was contrary to, or involved an unreasonable ap-
A state court unreasonably applies federal law where it “identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner‘s case.” Id. at 407. Under this “highly deferential” standard, it is not enough for the state court to have reached a decision that is “incorrect or erroneous.” Teti, 507 F.3d at 56-57. Rather, the error must be clear “beyond any possibility for fairminded disagreement.” White v. Woodall, 572 U.S. 415, 419 (2014) (citation omitted). Critically, state courts do not act unreasonably by declining to extend Supreme Court precedent. Id. at 426. Where, as here, the highest state court, namely, the Massachusetts Supreme Judicial Court, denies review, we “look through to the last reasoned decision” issued by the Massachusetts Appeals Court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (citation omitted).
In ruling on Moore‘s petition, we must also defer to the state court‘s fact-finding, meaning its determination of “basic, primary, or historical facts, such as witness credibility and recitals of external events.” Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (citation omitted). This deference extends to factual determinations made by a trial court and affirmed on direct appeal. See John v. Russo, 561 F.3d 88, 91 n.4 (1st Cir. 2009). While the Supreme Court has yet to clarify the relationship between the two AEDPA subsections relating to factual findings, see
In an effort to avoid the narrow constraints of AEDPA review, Moore suggests that the deferential standards outlined above do not apply because his claims were not “adjudicated on the merits” in state court.
Here, Moore argues that the Massachusetts Appeals Court only considered his state constitutional claims and did not adjudicate the federal constitutional claims raised in his petition. Where a state court is presented with both state and federal claims and “does not expressly apply the federal standard but resolves the issue under a state law standard that is more
III.
Moore principally argues that the pre-trial identification procedures were impermissibly suggestive because he was the only person in the photo array or lineup with a facial scar. Moore does not point to any additional physical or other features that set him apart from the other participants. We have little difficulty concluding that the Massachusetts Appeals Court did not unreasonably apply Supreme Court precedent in rejecting this claim.
The Supreme Court has held that pre-trial identifications resulting from procedures “so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification” may offend due process. Simmons v. United States, 390 U.S. 377, 384 (1968); see also Neil v. Biggers, 409 U.S. 188, 198 (1972). Where the likely mistake is “irreparable,” subsequent courtroom identifications may be similarly prohibited. Simmons, 390 U.S. at 384. But, even where this standard is met, the federal constitution does not require automatic exclusion of the identification. Rather, “if the indicia of reliability are strong enough to outweigh the corrupting effect of the suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012).3
It bears emphasis that the issue of reliability “comes into play only after the defendant establishes improper police conduct.” Id. at 245. Absent unnecessarily suggestive procedures, reliability is ensured through traditional trial protections, such as “the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.” Id. at 233; see also United States v. Melvin, 730 F.3d 29, 34 (1st Cir. 2013) (“Jurors should not be treated as gullible dupes, and ... identification evidence should be withheld from them only in extraordinary cases.” (citations omitted)). In the present case, for the reasons discussed
The Supreme Court has applied its rule against suggestive identification procedures to restrict the “practice of showing suspects singly to” witnesses rather than showing them “as part of a lineup.” Stovall v. Denno, 388 U.S. 293, 302 (1967); see also Biggers, 409 U.S. at 195-99 (implying that one-man “showup,” in which the police walked the defendant by the victim, may have been suggestive); Manson v. Brathwaite, 432 U.S. 98, 107-09 (1977) (noting state‘s concession that “display of a single photograph” of the defendant was suggestive). The Court has, however, suggested that, in some circumstances, the rule may extend beyond one-man showups or the use of single photos. See Simmons, 390 U.S. at 383 (noting that the danger of misidentification is also increased where witnesses are shown “the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized“); Foster v. California, 394 U.S. 440, 442-43 (1969) (holding that series of identification procedures, including a three-person lineup where the defendant “stood out” due to his height and leather jacket, a subsequent “one-to-one confrontation” between the witness and the defendant, and a third lineup, was impermissibly suggestive).
The facts of the present case are far removed from these Supreme Court precedents. Indeed, rather than a showup or presentation of a single photo, the police conducted a photo array and a lineup, each involving Moore and seven other individuals. The Massachusetts trial court expressly found that all of the participants generally had a similar appearance, and Moore does not seriously challenge this finding on appeal. With respect to the photo array, our review of the record confirms the state court‘s conclusion. Moore and the other seven individuals depicted all appear to be African-American males with comparable ages, skin tones, and hairstyles. Moore‘s facial scar, while visible, is relatively small. The Massachusetts court also found that Moore‘s scar “is a characteristic which is difficult to replicate in individuals who otherwise resemble the defendant.” Again, Moore makes no effort to challenge this factual determination. Indeed, a scar is different than other potentially distinguishing features that can be easily removed or changed (e.g., clothing or accessories). While the police could conceivably have made efforts to conceal Moore‘s scar, this practice might itself have undermined the reliability of the identification by artificially altering Moore‘s facial features. In any event, we need not opine on the permissibility or advisability of such precautions. For present purposes, it suffices that the state court reasonably concluded that the police were not required to conceal Moore‘s scar. See, e.g., United States v. Holliday, 457 F.3d 121, 126 (1st Cir. 2006) (rejecting challenge to photo array based on the defendant‘s distinctive “skin discoloration“); United States v. Moore, 115 F.3d 1348, 1360 (7th Cir. 1997) (finding that photo array was not suggestive despite the defendant‘s “distinctive eyebrow“); Taylor v. Swenson, 458 F.2d 593, 596-98 (8th Cir. 1972) (holding that lineup was admissible even where the defendant stood out because of a facial scar and a “filed down” tooth).
Moore relies almost exclusively on United States Court of Appeals decisions to argue that his facial scar rendered the identification procedures impermissibly
Moore‘s other contentions are meritless. First, he argues that the identification procedures were unduly suggestive because he was the only person to appear in both the photo array and lineup. But we have held on direct appeal that “[a] suspect‘s inclusion in two photospreads ... is not constitutionally impermissible.” United States v. Maguire, 918 F.2d 254, 263 (1st Cir. 1990). It follows that Moore‘s inclusion in both the photo array and the lineup similarly does not offend due process. Next, Moore points to evidence that the police described the array to witnesses as “photos of suspects.” Again, Maguire forecloses his claim. See id. at 264 (noting that we have “condone[d] ... suggesting that the suspect is one of those shown in the array“). Third and finally, Moore contends that the identifications were impermissibly suggestive because he was number six in both the array and the lineup. This argument is contradicted by the state trial court‘s express finding that “[n]one of the witnesses paid attention to the order in which the photos or the individuals in the lineup were presented.” Moore‘s record citations fail to convince us that this determination was unreasonable.
IV.
For the foregoing reasons, we AFFIRM the denial of Moore‘s
HOWARD
CHIEF JUDGE