FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. F. Dennis Saylor IV, U.S. District Judge]
J. O'Brien, with whom O'Donnell, Trossello &
O'Brien, LLP was on brief, for appellant.
K. Shapiro, Assistant Attorney General, Criminal Appeals
Division, with whom Maura Healey, Attorney General, was on
brief, for appellee.
Howard, Chief Judge, Torruella and Barron, Circuit Judges.
HOWARD, Chief Judge.
Anthony Moore filed the instant habeas petition seeking to
set aside his 2006 Massachusetts conviction for unarmed
robbery. See 28 U.S.C. § 2254. Moore's sole
contention on appeal is that the admission of certain
identification evidence at his trial violated due process.
Because the Massachusetts Appeals Court's adjudication of
this issue did not constitute an unreasonable application of
Supreme Court precedent, we affirm the district court's
denial of Moore's petition.
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.
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.
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.
Massachusetts Appeals Court affirmed Moore's conviction,
rejecting the claim that the identification procedures
violated his constitutional rights. It held that those
procedures were "not so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable
misidentification." Commonwealth v. Moore, 929
N.E.2d 1001, 2010 WL 2773260, at *2 (Mass. App. Ct. July 15,
2010) (unpublished table decision) (citation omitted). The
Massachusetts Supreme Judicial Court subsequently denied
review. See 934 N.E.2d 826 (Mass. Sept. 16, 2010)
(unpublished table decision).
federal district court subsequently denied Moore's §
2254 habeas petition, and we granted a certificate of
appealability. See 28 U.S.C. § 2253(c); Fed. R.
App. P. 22.
review the district court's denial of Moore's
petition de novo. See Teti v. Bender, 507 F.3d 50,
56 (1st Cir. 2007). But, like the district court, we must
afford a high degree of deference to the Massachusetts
Appeals Court's decision. Indeed, under the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"),
we may grant Moore's petition only if we find that the
state court's decision "was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States." Williams v. Taylor, 529 U.S. 362, 376
(2000) (quoting 28 U.S.C. § 2254(d)(1)). Because Moore
develops no ...