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Moore v. Dickhaut

United States Court of Appeals, First Circuit

November 22, 2016

ANTHONY MOORE, Petitioner, Appellant,
v.
THOMAS DICKHAUT, Respondent, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. Dennis Saylor IV, U.S. District Judge]

          Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien, LLP 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. 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.

         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 934 N.E.2d 826 (Mass. Sept. 16, 2010) (unpublished table decision).

         The 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.

         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 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. ยง 2254(d)(1)). Because Moore develops no ...


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