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No. 12-6679
No. 12-6727
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:11-hc-02148-F)
Argued:
Decided:
exhausted
his
direct
appeals
and
state
After
post-conviction
Carolina
post-conviction
court
unreasonably
applied
the
(1984),
when
it
rejected
Moores
claim
that
his
trial
post-conviction
court
denied
Moore
relief
based
on
an
Reuben
F.
State
of
Secretary
of
North
the
Carolina,
North
acting
Carolina
through
Department
of
Public
Moore cross-
appeals
one
from
the
district
courts
denial
of
of
the
his
trial
counsel
was
ineffective
for
stipulating
to
the
Antiterrorism
AEDPA)
to
deference
and
the
required
Effective
Death
post-conviction
by
Strickland
Penalty
court,
we
and
1996
the
Act
of
(the
are
constrained
to
therefore
reverse
the
district
courts
judgment
granting
counsels
failure
to
call
an
expert
in
eyewitness
rejecting
Moores
other
claims
of
ineffective
assistance.
I.
Although
summarized
the
the
North
facts
Carolina
when
it
Court
of
directly
Appeals
reviewed
aptly
Moores
Macclesfield,
North
Carolina
home.
Around
11:00
pm,
Helen
J.A. 492.
Moore
asked if he could use her phone because his car had broken down.
When Helen Overton grew suspicious, backed away from the door,
and attempted to shut it, he drew a gun and pushed his way
inside.
Richard
shooting;
Overton
Richard
entered
Overton
the
suffered
J.A. 495.
room,
[Moore]
gunshot
wounds
started
to
the
Helen Overton and threatened to kill her, but she pushed him
away.
The
assailants
fled
the
scene,
and
Helen
Overton
Instead,
she told officers that her husband had told her the intruder
was the same man as last time.
Two
days
photographic
later,
lineup,
when
Helen
J.A. 554.
officers
Overton
5
presented
identified
her
Moore
with
as
a
the
shooter.
J.A.
584.
[Moores] face.
Richard
Overton
indicated
that
he
saw
Id. at 585.
deadly
weapon
with
intent
to
kill
inflicting
serious
Richard and
lineup
based
on
his
involvement
in
the
2006
incident, not because her husband had told her it was the same
man as last time or because she had seen Moore in court during
the
2004
proceedings.
The
state
also
presented,
without
case.
On
cross-examination,
6
Richard
Overton
characterized
his
Although Richard
identification
as
referring
to
[Thomas Moore], for one rather than both Moore boys, counsel
significantly
impeached
Richard
Overtons
testimony
with
of
the
states
crime
J.A. 524.
scene
On cross-
investigator,
defense
his
own
defense,
explaining
that
on
the
night
of
the
After a three-
sentencing,
Moore
filed
motion
for
appropriate
of
motion
sentenced
and
the
evidence
Moore
grounds.
to
The
court
seventy-three
to
denied
the
ninety-seven
eighty-six
months
of
imprisonment
for
the
burglary
Moore appealed.
B.
The
North
convictions.
Carolina
Court
of
Appeals
affirmed
Moores
the firearm and forensic report for plain error, it found the
challenged evidence irrelevant and prejudicial, but remained
unconvinced that absent the error the jury probably would have
reached
different
verdict,
ultimately
concluding
that
the
J.A.
214-15.
In 2009, Moore filed a third MAR with the Edgecombe County
Superior
Court
(the
MAR
court).
For
the
first
time,
he
asserted that his trial counsel was ineffective for failing to:
(1)
move
to
suppress
the
Overtons
in-
and
out-of-court
of
the
firearm
and
the
forensic
report. 3
Moore
affect
the
of
eyewitness
identifications,
including
the
transference. 5
weapon
focus
effect 4
and
unconscious
J.A. 121-22.
court concluded:
The court finds that evidence as to the out-ofcourt and in-court identification of the defendant was
fully presented to the jury, including evidence that
one of the two persons identified by a witness for the
state was not present at the time of the commission of
the crimes.
The jury also heard evidence that at an
earlier time the defendant was acquitted of crimes
4
denied. 7
C.
Moore
corpus
in
filed
the
his
United
federal
petition
for
States
District
Court
the
MAR
court
unreasonably
applied
writ
for
of
the
habeas
Eastern
In it, he argued
clearly
established
to
the
MAR
court--that
his
trial
counsel
provided
The State
district
court
granted
Moores
petition
after
more
evidence
concerning
the
identifications
and
MAR
court
unreasonably
applied
the
Supreme
Courts
reach
this
conclusion,
11
the
district
court
primarily
relied
on
two
out-of-circuit
cases--Ferensic
v.
Birkett,
501
F.3d 469 (6th Cir. 2007) and Bell v. Miller, 500 F.3d 149 (2d
Cir. 2007)--as well as Dr. Wallendaels affidavit.
The district
that,
embracing
the
given
numerous
there
factors
were
no
jury
potentially
It
instructions
affecting
the
other
evidence
testimony,
expert
of
[Moores]
testimony
on
guilt
the
besides
fallibility
the
Overtons
of
eyewitness
Id.
court found that expert testimony could have exposed the jury to
the
concepts
of
the
weapon
focus
effect
and
unconscious
identifications,
correlating
witnesss
as
supposed
determining
that
unreasonable
the
that
MAR
application
well
as
the
danger
confidence
in
of
their
Id. at *13-14.
fair-minded
courts
of
jurists
judgment
Strickland
as
could
not
represented
an
well
as
an
Id. at *17.
at
*18,
the
appropriate
Strickland
court
expert
found
counsels
witness
despite
failure
counsels
to
deficient
obtain
an
pursuant
to
cross-examination
of
the
The
tandem
with
expert
testimony,
and
that
there
was
no
appropriate
expert
testimony
or
vigorously
cross
Id. at *20.
that
no
one
else
had
offered
the
jury.
Id.
and
prejudicial),
reasonable
probability
proceeding
would
expert
eyewitness
in
have
.
been
the
.
district
[that]
different
fallibility.
the
had
Id.
court
result
counsel
at
found
of
a
the
called
an
*20
(citations
of
ineffective
omitted).
The
court
assistance.
rejected
Moores
other
claims
report,
the
MAR
court
did
not
unreasonably
apply
counsel
successfully
demonstrated
that
none
of
this
Id. at
*25.
The
State
certificate
appealed,
of
and
Moore,
appealability,
after
cross-appealed
receiving
the
district
II.
We first address the States contention that the district
court erred in granting Moores writ. We begin our de novo review
of the district courts grant of habeas corpus with the AEDPA,
which
guides
our
corpus petition.
consideration
of
state
prisoners
habeas
writ
of
habeas
corpus
shall
not
be
Under the
granted
with
(2)
Supreme
claim.
Court
precedent
to
the
facts
of
the
petitioners
in
2254(d)(2).
For
state
courts
factual
than
merely
sufficiently
against
incorrect
the
objectively unreasonable.
or
weight
erroneous.
of
the
It
evidence
must
that
it
be
is
limited
scope
of
federal
review
of
state
sovereignty.
Richardson,
668
F.3d
at
138
(citing
U.S.
538,
555-56
(1998)),
Section
2254(d)
is
designed
to
confirm that state courts are the principal forum for asserting
constitutional challenges to state convictions, id.
With these background principles in mind, we turn first to
the district courts conclusion that, under 2254(d)(1), the
MAR court unreasonably applied the Supreme Courts precedent in
Strickland.
based
its
under 2254(d)(2).
on
an
unreasonable
factual
determination
Where
habeas
corpus
petition
alleges
ineffective
The
that
counsel
satisfied
Stricklands
deferential
Strickland
sets
forth
two-part
standard:
First,
the
688.
deficient,
When
a
determining
court
must
whether
indulge
counsels
strong
behavior
was
presumption
that
Id. at 689.
Id. at 694.
Court
emphasized
that
when
state
In both cases,
prisoners
present
Determining whether
asking
Stricklands
whether
defense
standard,
application
of
federal
application
of
federal
in
law
counsels
part
is
because
law.
different
Richter,
state
courts
performance
determination
an
from
131
S.
fell
below
unreasonable
an
incorrect
Ct.
at
785
claim
lacks
merit
could
disagree
decision.
Alvarado,
Strickland
on
the
correctness
of
the
state
courts
U.S.
claim
652,
may
664
have
(2004)).
had
merit
That
does
not
petitioners
alone
justify
awarding habeas; even a strong case for relief does not mean
the state courts contrary conclusion was unreasonable under
the AEDPA.
Id.
Id.
2.
despite
to
[it]
in
the
considerable
support
of
the
amount
claim
of
that
evidence
counsel
was
district
lenses
of
courts
AEDPA
decision
and
Strickland
by
the
dual,
asking
the
overlapping
following
[it]
existing
was
law
disagreement?
an
error
beyond
well
understood
any
and
possibility
comprehended
for
in
fairminded
argument
[Moores]
counsel
satisfied
so
holding,
we
do
not
contest
the
fallibility
of
expert
testimony
on
the
hazards
of
eyewitness
v.
Knox,
337
S.E.2d
154,
156
(N.C.
Ct.
App.
1985))
could
not
have
been
present
on
the
night
of
the
claims,
counsels
particularly
representation
given
was
within
Even
if,
in
some
cases,
the
strong
the
presumption
wide
range
of
would
be
deemed
In Ferensic, a case in
held that where the record reflects the doubts of the jury
itself as to the identification of the perpetrator, 501 F.3d at
484, the petitioner was denied his Sixth Amendment right to
20
purposes
and
identifications
that
do
not
other
means
effectively
of
attacking
substitute
for
Id. at 481-
of
counsel
to
hire
an
expert
in
eyewitness
noting
that
the
failure
to
retain
an
expert
as
an
Id. at 483-84.
We
defendant
by
excluding
different
from
requiring
prepared
counsel
to
present
in
for
render
expert
far
assistance.
judicial
to
an
is
identification
reasonable
order
testimony
eyewitness
in
expert
the
state
effective
court
to
Richter,
131 S. Ct. at
heavily
relied,
victim-eyewitness
distinguishable.
identified
the
In
Bell,
single
petitioner
after
suffering
counsel constitutionally
ineffective
for
failing
to
consider
Id. at 157.
Bell is
that Bells claim had never been decided on the merits in state
court, allowing the panel to conduct its Strickland analysis de
novo.
In addition to reliance on Bell and Miller, the district
court also concluded that no reasonable strategy could explain
counsels
failure
identification.
to
call
an
expert
in
eyewitness
wide
latitude
counsel
must
have
in
making
tactical
Vinson
(quoting
Counsel
Wiggins
assault.
been
an
evidence
436
Smith,
539
both
for
F.3d
U.S.
419
(4th
510,
not
and
be
showed
Cir.
521-24
victim-eyewitnesses,
Moore,
could
412,
(2003)).
attempted
that
the
to
Moore
connected
2005)
to
admitted
or
the
identification
omitted)
v.
alibi
presented
effects
True,
cross-examined
establish
physical
v.
of
along
must
with
not
hindsight.
(explaining
be
expert
testimony
on
eyewitness
analyzed
through
the
distorting
Winston,
that
592
[d]efense
F.3d
at
544
counsels
(citation
strategy
of
ineffective
assistance,
as
[c]ross-
415
U.S.
308,
316
(1974).
Because
Davis v.
deficiencies
or
to
challenge
the
Overtons
credibility
holding
standard,
we
otherwise
reverse
contravenes
the
district
the
AEDPAs
courts
deferential
judgment
granting
Moores writ.
B.
We next address the district courts holding that the MAR
court
reached
its
decision
based
upon
an
unreasonable
Tucker v.
Ozmint, 350 F.3d 433, 439 (4th Cir. 2003) (quoting 28 U.S.C.
2254(e)(1)).
992,
1000
(9th
Cir.
2004).
Yet,
does
not
by
ignores,
claim,
the
state
Taylor,
366
F.3d
determination
deference
evidence
court
at
that
fact-finding
1001
under
supports
(finding
process
an
2254(d)(2)
[the]
petitioners
is
defective.
unreasonable
where
the
factual
state
court
as
to
the
consider
presented
to
district
to
consider
ignores the
and
entirety
court
weigh
[it],
Dr.
of
found
relevant
Taylor,
Wallendaels
the
MAR
that
366
the
court
evidence
that
F.3d
1001,
at
affidavit,
courts
MAR
its
order.
was
by
holding
Immediately
after concluding that Moore d[id] not suggest that there [was]
any more evidence regarding the identification--a determination
the district court found unreasonable--the MAR court explained
that there was no showing to justify or require an expert on
identification.
treatment
of
J.A.
the
153.
issue
While
makes
the
MAR
review
courts
challenging,
terse
its
with
131
S.
which
Ct.
at
fairminded
786.
In
jurists
light
of
could
disagree.
North
Carolinas
an
ineffective
assistance
claim
to
determine
both
We
deficient
in
failing
to
object
to
the
admission
of
the
the
same
doubly
deferential
review
discussed
of
ineffective
merit represented
J.A. 153.
an
assistance
unreasonable
of
counsel
application
[were]
of
without
Strickland.
as
to
whether
probability
that
of
objection
affecting
the
would
have
outcome
created
of
Moores
trial.
In this regard, we find the reasoning of the North Carolina
Court of Appeals and district court persuasive.
After finding
different
verdict.
J.A.
214-15
(citing
We agree.
State
v.
Even given
the
error
the
jury
probably
would
have
reached
different
outcome--the
MAR
courts
conclusion
does
demonstrated
through
cross-examination
not
Counsel
that
the
could
disagree
evidence
ultimately
as
to
prejudiced
whether
Moore,
the
we
As reasonable
admission
affirm
the
of
the
district
III.
For the foregoing reasons, we reverse the district courts
judgment granting Moores petition on his claim of ineffective
assistance based on his counsels failure to call an expert in
eyewitness identification and affirm the district courts denial
of Moores additional claims of ineffective assistance.
28