Moore v. Dickhaut, 14-1400

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: HOWARD, Chief Judge.
• Citation: Moore v. Dickhaut, 842 F.3d 97 (1st Cir. 2016)
• Decision Date: 22 November 2016
• Docket Number: No. 14-1400,14-1400
• Parties: Anthony Moore, Petitioner, Appellant, v. Thomas Dickhaut, Respondent, Appellee.

842 F.3d 97

Anthony Moore, Petitioner, Appellant,

v.Thomas Dickhaut, Respondent, Appellee.

No. 14-1400

United States Court of Appeals, First Circuit.

November 22, 2016

Edward J. O'Brien , with whom O'Donnell, Trossello & O'Brien, LLP , Quincy, MA, was on brief, for appellant.

Argie K. Shapiro , Assistant Attorney General, Criminal Appeals Division, with whom Maura Healey , Attorney General, was on brief, for appellee.

Before Howard, Chief Judge, Torruella and Barron, Circuit Judges.

HOWARD, Chief Judge.

Appellant Anthony Moore filed the instant habeas petition seeking to set aside his 2006 Massachusetts conviction for unarmed robbery. See28 U.S.C. § 2254. Moore's sole contention on appeal is that the admission of certain identification evidence at his trial violated due process. Because the Massachusetts Appeals Court's adjudication of this issue did not constitute an unreasonable application of Supreme Court precedent, we affirm the district court's denial of Moore's petition.

I.

Moore was convicted in connection with the robbery of a Sovereign Bank branch located on Causeway Street in Boston. Shortly after Moore's arrest on this charge, law enforcement arranged for several bank employees to view a photo array. The array included Moore's photograph, as well as seven other photos selected by a computerized imaging system for their resemblance to Moore. Two witnesses provided a positive identification of Moore.

About two months later, law enforcement conducted a lineup for bank employees. A police officer who was not part of the investigation selected seven "fillers" to be included along with Moore. Defense counsel attended the lineup and made no objection to the process. Four bank employees positively identified Moore.

Moore filed a motion seeking to preclude the Commonwealth 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. See458 Mass. 1104, 934 N.E.2d 826 (2010) (unpublished table decision).

The federal district court subsequently denied Moore's § 2254 habeas petition, and we granted a certificate of appealability. See28 U.S.C. § 2253(c) ; Fed. R. App. P. 22.

II.

We review the district court's denial of Moore's petition de novo. SeeTeti v. Bender, 507 F.3d 50, 56 (1st Cir. 2007). But, like the district court, we must afford a high degree of deference to the Massachusetts Appeals Court's decision. Indeed, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we may grant Moore's petition only if we find that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting 28 U.S.C. § 2254(d)(1) ). Because Moore develops no argument that the challenged decision was "contrary to" Supreme Court precedent,¹ we restrict our inquiry to the issue of unreasonable application.

A state court unreasonably applies federal law where it "identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495. 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, –––U.S. ––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (citation omitted). Critically, state courts do not act unreasonably by declining to extend Supreme Court precedent. Id. at 1706. Where, as here, the highest state court, namely, the Massachusetts Supreme Judicial Court, denies review, we "look through to the last reasoned decision" issued by the Massachusetts Appeals Court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (citation omitted).

In ruling on Moore's petition, we must also defer to the state court's fact-finding, meaning its determination of "basic, primary, or historical facts, such as witness credibility and recitals of external events." Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007) (citation omitted). This deference extends to factual determinations made by a trial court and affirmed on direct appeal. SeeJohn 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, see28 U.S.C. § 2254(d)(2) and (e)(1), both "express the same fundamental principle of deference." John, 561 F.3d at 92 (citation omitted). For purposes of this appeal, we accept Moore's position that the challenged factual findings are merely reviewed for reasonableness under § 2254(d)(2). SeeWood v. Allen, 558 U.S. 290, 300–01, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010) ; cf.28 U.S.C. § 2254(e)(1) (establishing presumption of correctness that may be rebutted only by clear and convincing evidence).

In an effort to avoid the narrow constraints of AEDPA review, Moore suggests that the deferential standards outlined above do not apply because his claims were not "adjudicated on the merits" in state court. 28 U.S.C. § 2254(d). A claim is "adjudicated on the merits" so long as "there is a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Clements, 592 F.3d at 52 (citation omitted). In other words, AEDPA requires only "adjudication, not explanation." Id. at 55.

Here, Moore argues that the Massachusetts Appeals Court only considered his state constitutional claims and did not adjudicate the federal constitutional claims raised in his petition. Where a state court is presented with both state and federal claims and "does not expressly apply the federal standard but resolves the issue under a state law standard that is more favorable to defendants," we "presume the federal law adjudication to be subsumed within the state law adjudication." Sleeper, 510 F.3d at 38 (citation omitted); see alsoJohnson v. Williams, ––– U.S. ––––, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013) ("[I]f the state-law rule ... is at least as protective as the federal standard ... then the federal claim may be regarded as having been adjudicated on the merits"). Here, the Massachusetts Supreme Judicial Court has expressly described the state standard for due process challenges to identification procedures as "more favorable" to defendants than the federal standard discussed below. SeeCommonwealth v. Walker, 460 Mass. 590,953 N.E.2d 195, 205 n.13 (2011). Accordingly, we presume that the Massachusetts court adjudicated Moore's federal claims and review its decision under AEDPA's deferential standard.²

III.

Moore principally argues that the pre-trial identification procedures were impermissibly suggestive because he was the only person in the photo array or lineup with a facial scar. Moore does not point to any additional physical or other features that set him apart from the other participants. We have little difficulty concluding that the Massachusetts Appeals Court did not unreasonably apply Supreme Court precedent in rejecting this claim.

The Supreme Court has held that pre-trial 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, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) ; see alsoNeil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Where the likely mistake is "irreparable," subsequent courtroom identifications may be similarly prohibited. Simmons, 390 U.S. at 384, 88 S.Ct. 967. 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, ––– U.S. ––––, 132 S.Ct. 716, 720, 181 L.Ed.2d 694 (2012).³

It bears emphasis that the issue of reliability "comes into play only after the defendant establishes improper police conduct." Id. at 726. Absent unnecessarily suggestive procedures, reliability is ensured through traditional trial protections, such as "the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt." Id. at 721; see alsoUnited States v. Melvin, ...