                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6679


THOMAS MOORE, JR.,

                Petitioner - Appellee,

           v.

MICHAEL A. HARDEE; REUBEN FRANKLIN YOUNG,

                Respondents - Appellants.



                            No. 12-6727


THOMAS MOORE, JR.,

                Petitioner – Appellant,

           v.

MICHAEL A. HARDEE; ALVIN WILLIAM KELLER, JR.,

                Respondents – Appellees.



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:   May 16, 2013                      Decided:   July 22, 2013


Before DUNCAN and KEENAN, Circuit Judges, and David C. NORTON,
District Judge for the District of South Carolina, sitting by
designation.
Reversed in part and affirmed in part by published opinion.
Judge Duncan wrote the opinion, in which Judge Keenan and Judge
Norton joined.


ARGUED: Clarence Joe DelForge, III, NORTH CAROLINA DEPARTMENT OF
JUSTICE,   Raleigh,   North   Carolina,  for   Appellants/Cross-
Appellees.    Laura Celeste Grimaldi, NORTH CAROLINA PRISONER
LEGAL    SERVICES,   INC,    Raleigh,   North    Carolina,   for
Appellee/Cross-Appellant.     ON BRIEF: Roy Cooper, Attorney
General of the State of North Carolina, Raleigh, North Carolina,
for Appellants/Cross-Appellees.




                               2
DUNCAN, Circuit Judge:

       A North Carolina jury convicted petitioner-appellee Thomas

Moore, Jr. of first-degree burglary and assault with a deadly

weapon with intent to kill inflicting serious injury.                                      After

Moore    exhausted      his       direct    appeals        and   state     post-conviction

remedies, he petitioned the district court for a federal writ of

habeas corpus under 28 U.S.C. § 2254.

       The district court granted the writ.                          It found that the

North    Carolina      post-conviction            court     unreasonably        applied      the

Supreme Court’s holding in Strickland v. Washington, 466 U.S.

668    (1984),       when    it    rejected           Moore’s    claim   that    his       trial

counsel rendered ineffective assistance by failing to present an

expert on the fallibility of eyewitness identification, and that

the    post-conviction            court     denied       Moore    relief      based    on     an

unreasonable factual determination.

       The    State    of        North    Carolina,       acting     through     Reuben       F.

Young,    Secretary         of    the     North       Carolina    Department     of    Public

Safety, and Michael Hardee, Administrator of Hyde Correctional

Institution (collectively, “the State”), now seeks reversal of

the district court’s order granting Moore‘s writ.                             Moore cross-

appeals       from    the        district       court’s     denial       of   one     of     the

additional claims of ineffective assistance he asserted below,

that    his    trial        counsel       was    ineffective       for     stipulating        to


                                                  3
irrelevant and prejudicial evidence.

       Given     the     deference       required        by        Strickland     and     the

Antiterrorism      and    Effective       Death    Penalty          Act    of   1996    (“the

AEDPA”)    to    the   post-conviction          court,        we    are    constrained    to

disagree with the district court’s decision to grant the writ.

We    therefore    reverse       the   district     court’s          judgment     granting

Moore’s petition on his claim of ineffective assistance based on

his    counsel’s       failure      to    call      an        expert       in   eyewitness

identification, and affirm the portion of the district court’s

judgment        rejecting    Moore’s        other        claims           of    ineffective

assistance.



                                           I.

       Although     the     North      Carolina      Court           of    Appeals      aptly

summarized       the     facts     when     it    directly            reviewed       Moore’s

convictions, we briefly restate them here.

                                           A.

       In 2003, Richard and Helen Overton were robbed at gunpoint

at home.       They accused Moore and his brother, Linwood Moore, of

committing the masked, armed robbery.                         In 2004, the Overtons

testified against the Moore brothers in court.                            The state court

dismissed the charges against Thomas Moore; Linwood Moore was

acquitted.

       On June 7, 2006, Helen and Richard Overton were at their

                                           4
Macclesfield,          North   Carolina       home.         Around    11:00   pm,      Helen

Overton noticed an African-American male she later identified as

Thomas Moore standing outside the storm door; Richard Overton

was asleep in another room.                Helen Overton conversed with Moore,

who was “[two] feet face to face” with her.                           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.        Helen Overton then noticed a second African-American

male running toward the house.                    She pushed the door shut and

attempted to lock it to stop the second person from entering,

but Moore began hitting her hands to prevent her from doing so.

        When    Richard     Overton       entered     the    room,    “[Moore]    started

shooting”;       Richard       Overton       suffered       gunshot    wounds     to     the

shoulder and hand.             J.A. 495.          Moore then pointed the gun at

Helen Overton and threatened to kill her, but she pushed him

away.          The     assailants     fled     the    scene,     and    Helen     Overton

contacted emergency services.

        When Helen Overton spoke with police on the night of the

assault, she did not identify Moore as the shooter.                              Instead,

she told officers that her husband had told her the intruder

“was the same man as last time.”                  J.A. 554.

        Two     days     later,     when     officers       presented     her     with     a

photographic         lineup,      Helen    Overton      identified      Moore     as     the

                                              5
shooter.       When officers asked Richard Overton who had shot him,

he replied, “those damn Moore boys that robbed me three years

ago.”       J.A.     584.       Richard       Overton        indicated   that     he   “saw

[Moore’s] face.”         Id. at 585.

       Moore was indicted for first-degree burglary and assault

with    a   deadly     weapon    with    intent         to   kill   inflicting     serious

injury and tried before a jury on April 23, 2007.                          Richard and

Helen Overton identified Moore as the assailant before the jury.

Helen Overton confirmed that she had identified Moore from the

photographic       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

objection from the defense, a .22 caliber revolver that officers

performing a separate investigation had recovered several miles

from the Overtons’ house two weeks after the incident, along

with a forensic report analyzing the revolver and the bullets

recovered from the Overtons’ house.                     The report was inconclusive

with regard to any connection between the admitted firearm and

the assault.

       Defense counsel cross-examined the Overtons regarding the

fact that they had previously accused Moore and his brother of

robbery and had seen and testified against the brothers in the

earlier        case.        On      cross-examination,               Richard       Overton

                                              6
acknowledged that on the night of the assault, he had referred

to the two assailants as the “Moore boys” even though he himself

had only seen one assailant--Thomas Moore.                            Although Richard

Overton     characterized         his    identification          as     “referring        to

[Thomas Moore], for one” rather than both “Moore boys,” counsel

significantly          impeached     Richard        Overton’s          testimony         with

evidence that Linwood Moore was incarcerated on the night of the

assault and could not have been present.                    J.A. 524.             On cross-

examination       of   the   state’s     crime    scene    investigator,            defense

counsel elicited testimony that the revolver recovered several

miles from the Overtons’ home was connected neither to Moore nor

to the incident at the Overtons’ home.                   Finally, Moore testified

in   his    own    defense,      explaining      that     on     the    night       of    the

burglary, he had been at home with his mother.                          After a three-

day trial, the jury convicted Moore of both charges.

     Before       sentencing,      Moore    filed    a    motion       for    appropriate

relief (“MAR”) 1 requesting the court to set aside the verdict on

sufficiency       of   the   evidence      grounds.        The    court       denied      the

motion     and    sentenced      Moore   to     seventy-three          to    ninety-seven

months of imprisonment for the assault conviction and sixty-four

to   eighty-six         months     of      imprisonment        for          the    burglary

     1
       “A motion for appropriate relief is a post-verdict motion
. . . made to correct errors occurring prior to, during, and
after a criminal trial” in North Carolina. State v. Handy, 391
S.E.2d 159, 160-61 (N.C. 1990).


                                            7
conviction, to be served consecutively. 2                     Moore appealed.

                                             B.

      The       North       Carolina    Court       of     Appeals      affirmed     Moore’s

convictions.            Reviewing Moore’s challenge to the admission of

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     a    different       verdict,”      ultimately        concluding        that    the

admission of the evidence did not constitute plain error.                                  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

identifications of him; (2) consult with and call an expert in

the fallibility of eyewitness testimony; and (3) object to the

admission        of     the   firearm    and       the    forensic      report. 3      Moore

attached the affidavit of Dr. Lori Van Wallendael, an expert in

eyewitness memory.             Her affidavit detailed several factors which

can   affect          the     reliability      of        eyewitness      identifications,


      2
       Moore also filed a second MAR, contesting the credibility
of Richard Overton’s testimony, which the state court denied.
     3
       Moore later amended his third MAR to include an allegation
of ineffectiveness based on his trial counsel’s failure to
cross-examine Richard Overton on the quality of his eyesight.


                                               8
including    the    “weapon   focus   effect” 4   and   “unconscious

transference.” 5   Dr. Wallendael also presented evidence about the

less reliable nature of cross-racial identifications, 6 as well as

the weak correlation between an eyewitness’s confidence in his

or her identification and the accuracy of that identification.

Dr. Wallendael explained that these issues “are not apparent to

a ‘common sense’ appraisal” of eyewitness testimony, and that

“the testimony of an expert witness could have assisted the jury

in evaluating the reliability of the identifications in this

case.”   J.A. 121-22.

     The MAR court denied Moore’s third MAR without conducting a

hearing.    Regarding Moore’s claims of ineffectiveness, the MAR

court concluded:

          The court finds that evidence as to the out-of-
     court 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
       “Weapon focus” occurs “when a weapon is visible during a
crime” and “can affect a witness’ ability to make a reliable
identification and describe what the culprit looks like if the
crime is of short duration.” United States v. Greene, 704 F.3d
298, 308 (4th Cir. 2013) (citation and internal quotation marks
omitted).
     5
       “Unconscious transference occurs when a witness confuses a
person in one situation with someone seen in a different
situation.” United States v. Harris, 995 F.2d 532, 535 n.2 (4th
Cir. 1997) (citation omitted).
     6
       Moore is African-American and the Overtons are white.



                                  9
       allegedly committed against the victims of these
       offenses.     The jury heard all of the evidence
       surrounding the identification of the defendant and
       the weight of that evidence was for the jury.    The
       witnesses were examined and cross examined regarding
       the identifications.  The defendant does not suggest
       that there is any more evidence regarding the
       identification.   The Court concludes any error in
       failing to request a voir dire on the identification
       was harmless and not prejudicial; and that there was
       no showing to justify or require an expert on
       identification.

            The Court finds that claims of ineffective
       assistance of counsel are without merit; that the
       defendant   has   failed   to  show   that   counsel’s
       performance fell below an objective standard of
       reasonableness; that the defendant has failed to[]
       show that there is a reasonable probability that, but
       for any alleged errors of trial counsel, there would
       have been a different result in the trial; that the
       defendant has failed to overcome the presumption that
       counsel’s failure to request a voir[] dire on
       identification falls within the range of reasonable
       professional assistance and sound trial strategy; and
       that any alleged errors in the failure to request a
       voir[] dire by defendant’s trial counsel and to
       stipulating to the admission of evidence were harmless
       beyond a reasonable doubt.

J.A. 153.        On August 2, 2011, Moore’s request for certiorari was

denied. 7

                                          C.

       Moore      filed   his   federal   petition   for     a    writ    of    habeas

corpus      in   the   United    States   District   Court       for   the     Eastern

District of North Carolina in August 2011.                   In it, he argued

that       the   MAR   court    unreasonably   applied     clearly       established

       7
       Therefore, the MAR court was the last state court to
address Moore’s claims of ineffective assistance of counsel.


                                          10
federal law and based its decision on an unreasonable factual

determination, entitling him to the writ under 28 U.S.C. § 2254.

Moore made the same ineffective assistance of counsel claims he

presented     to     the   MAR   court--that       his    trial   counsel    provided

ineffective assistance by failing to: (1) prepare and call an

expert in the fallibility of eyewitness testimony; (2) move to

suppress the Overtons’ in- and out-of-court identifications; (3)

cross-examine Richard Overton on his eyesight; and (4) object to

the admission of the firearm and forensic report.                           The State

moved for summary judgment, and Moore filed a cross-motion for

the same.

      The     district        court   granted         Moore’s     petition        after

concluding that his counsel rendered ineffective assistance by

failing to consult and call an expert on the fallibility of

eyewitness testimony.            The court first determined that when the

MAR court found that Moore “failed to allege the existence of

any   more    evidence       concerning    the     identifications     and    .    .   .

failed to demonstrate even a justification for such an expert,”

the   MAR      court       “unreasonably        applied    the    Supreme     Court’s

Strickland decision to the facts” and “based its decision on an

unreasonable determination of the facts in light of the evidence

presented.”        Moore v. Keller, ---F.Supp.2d---, No. 5:11-HC-2148-

F, 2012 WL 6839929, at *17 (E.D.N.C. March 30, 2012).

      To     reach    this    conclusion,       the   district    court     primarily

                                           11
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. Wallendael’s affidavit.                                  The district

court highlighted the expert’s utility in light of the “unique

facts” of Moore’s case.                  Moore, 2012 WL 6839929, at *11.                           It

concluded      that,       given    that    “there         were    no    jury       instructions

embracing       the        numerous      factors           potentially         affecting           the

reliability of the eyewitness identifications, and that there is

no    other    evidence       of   [Moore’s]          guilt”      besides          the    Overtons’

testimony,      expert       testimony      on       the    fallibility            of    eyewitness

identifications would have been particularly useful to Moore’s

defense.       Id.       Based on Dr. Wallendael’s affidavit, the district

court found that expert testimony could have exposed the jury to

the    concepts       of    the    “weapon       focus       effect”      and       “unconscious

transference,” while alerting the jury to problems inherent in

cross-racial         identifications,            as        well     as    the           “danger     of

correlating          a      witness’s        supposed             confidence             in    their

identification with accuracy.”                  Id. at *13-14.

       After    determining         that     “‘fair-minded           jurists’            could     not

dispute”       that        the     MAR     court’s          judgment          represented           an

unreasonable          application          of        Strickland          as        well       as    an

unreasonable factual determination, the district court turned to

the merits of Moore’s ineffective assistance claim.                                     Id. at *17.

Recognizing that its decision could “be considered novel,” id.

                                                12
at   *18,        the    court     found     “counsel’s              failure          to     obtain    an

appropriate            expert    witness        .       .     .    deficient             pursuant     to

Strickland”            despite     “counsel’s                cross-examination                of     the

Overtons” and “attempt to establish an alibi,” id. at *20.                                           The

court reasoned that cross-examination could have been presented

in   tandem        with    expert       testimony,            and        that       “there    was     no

overarching ‘strategy’ that required counsel to choose between

sponsoring        appropriate        expert         testimony            or     vigorously         cross

examining the witnesses and establishing an alibi.”                                       Id. at *20.

Such testimony would have provided “‘a scientific, professional

perspective        that     no    one    else       had       offered         the    jury.’”         Id.

(quoting Ferensic, 501 F.3d at 477).                              Because no other evidence

connected Moore to the crime (and other admitted evidence was

“irrelevant        and     prejudicial”),               the       district          court    found     a

“reasonable        probability          .   .       .       [that]       the     result       of     the

proceeding        would     have   been     different”              had       counsel       called    an

expert      in     eyewitness       fallibility.                   Id.     at       *20     (citations

omitted).

     The     court        rejected      Moore’s         other        claims         of    ineffective

assistance.            As relevant to this appeal, the court concluded

that even if Moore’s counsel was deficient for failing to object

to the admission of the “irrelevant and prejudicial” firearm and

forensic     report,        the    MAR      court           did    not        unreasonably         apply

Strickland when it concluded that the admission of the evidence

                                                13
did not prejudice Moore.              This was particularly the case because

Moore’s      counsel    successfully       demonstrated       “that      none    of   this

evidence could be linked with [Moore] or the crime.”                              Id. at

*25.

       The     State        appealed,     and     Moore,      after      receiving       a

certificate       of    appealability,           cross-appealed          the     district

court’s denial of his ineffective assistance of counsel claim

based on his counsel’s failure to object to the admission of the

firearm and forensic report.


                                           II.

       We first address the State’s contention that the district

court erred in granting Moore’s writ. We begin our de novo review

of the district court’s grant of habeas corpus with the AEDPA,

which    guides   our       consideration        of   a   state    prisoner’s      habeas

corpus petition.            See Richardson v. Branker, 668 F.3d 128, 138

(4th Cir. 2012).             The provisions of the AEDPA “substantially

constrain our review of an underlying state court decision.”

Wolfe v. Johnson, 565 F.3d 140, 159 (4th Cir. 2009).                            Under the

AEDPA,    a   writ     of    habeas     corpus    “shall     not    be   granted      with

respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication”:

       (1)    resulted in a decision that was contrary to, or
              involved an unreasonable application of, clearly
              established Federal law, as determined by the
              Supreme Court of the United States; or

                                           14
        (2)   resulted in a decision that was based on an
              unreasonable determination of the facts in light
              of the evidence presented in the State court
              proceeding.

28 U.S.C. § 2254(d); see also Harrington v. Richter, 131 S. Ct.

770, 783-84 (2011); Richardson, 668 F.3d at 138.

       In practice, “[a] decision is an ‘unreasonable application’

of clearly established federal law if it ‘unreasonably applies’

a   Supreme     Court   precedent     to    the       facts    of   the    petitioner’s

claim.”       Buckner v. Polk, 453 F.3d 195, 198 (4th Cir. 2006)

(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).                                    “A

similar analysis naturally applies to the analogous and adjacent

language      in    §   2254(d)(2).         For        a    state   court’s          factual

determination to be unreasonable under § 2254(d)(2), it must be

more     than      merely    incorrect      or        erroneous.          It     must      be

sufficiently       against    the    weight      of    the    evidence     that       it   is

objectively unreasonable.”            Winston v. Kelly, 592 F.3d 535, 554

(4th Cir. 2010) (citation omitted).

       The      “limited     scope    of      federal         review      of     a    state

petitioner’s claims . . . is grounded in fundamental notions of

state     sovereignty.”         Richardson,           668    F.3d   at     138       (citing

Richter, 131 S. Ct. at 787).                    Because federal habeas review

“frustrates both the States’ sovereign power to punish offenders

and their good-faith attempts to honor constitutional rights,”

Richter, 131 S. Ct. at 787 (quoting Calderon v. Thompson, 523

                                           15
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 court’s conclusion that, under § 2254(d)(1), the

MAR court unreasonably applied the Supreme Court’s precedent in

Strickland.         We then address its finding that the MAR court

based   its    decision      on   an   unreasonable        factual    determination

under § 2254(d)(2).       Finally, we turn to Moore’s cross-appeal.

                                           A.

                                           1.

       Where    a     habeas      corpus        petition    alleges     ineffective

assistance of counsel, we review the claim not only through the

strictures of the AEDPA but also “through the additional lens of

Strickland and its progeny.”            Richardson, 668 F.3d at 139.              The

AEDPA and Strickland provide “dual and overlapping” standards

which we apply “simultaneously rather than sequentially.” Id.

(citing Richter, 131 S. Ct. at 788).                 This “doubly deferential”

review requires the court to determine “not whether counsel’s

actions were reasonable,” but “whether there is any reasonable

argument       that    counsel      satisfied        Strickland’s       deferential

standard.”      Richter, 131 S. Ct. at 788.

       Strickland     sets     forth   a    two-part       standard:    First,    the

petitioner must show that “counsel’s representation fell below

                                           16
an objective standard of reasonableness.”                       Strickland, 466 U.S.

at     688.      When      determining       whether     counsel’s          behavior      was

deficient,       a    court    “must    indulge     a    strong       presumption         that

counsel’s representation was within the wide range of reasonable

professional assistance.”               Id. at 689.        Second, the petitioner

must also show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different.”           Id. at 694.

       Two recent Supreme Court cases--Richter, 131 S. Ct. 770,

and Cullen v. Pinholster, 131 S. Ct. 1388 (2011)--clarify the

high bar the AEDPA sets for habeas petitioners.                         In both cases,

the     Court        emphasized     that     when       state     prisoners          present

ineffective assistance of counsel claims under the AEDPA, the

“pivotal question is whether the state court’s application of

the Strickland standard was unreasonable.”                      Richter, 131 S. Ct.

at 785; Pinholster, 131 S. Ct. at 1410-11.                       Determining whether

the state court unreasonably applied Strickland “is different

from    asking       whether   defense      counsel’s      performance           fell   below

Strickland’s          standard,”       in   part    because       “‘an       unreasonable

application          of   federal   law     is    different      from       an    incorrect

application      of       federal   law.’”        Richter,      131    S.    Ct.     at    785

(quoting Williams, 529 U.S. at 410).                    Under the AEDPA standard,

“[a]    state        court’s   determination        that    a    claim       lacks      merit

precludes federal habeas relief so long as ‘fairminded jurists

                                             17
could    disagree’           on     the    correctness         of     the     state      court’s

decision.”           Richter, 131 S. Ct. at 786 (quoting Yarborough v.

Alvarado,       541    U.S.        652,    664    (2004)).          That     a    petitioner’s

Strickland       claim       may    have    had       merit    does    not       alone    justify

awarding habeas; “even a strong case for relief does not mean

the state court’s contrary conclusion was unreasonable” under

the AEDPA.           Id.     Under this high bar, a writ may issue only

“where there is no possibility fairminded jurists could disagree

that the state court’s decision conflicts with th[e] Court’s

precedents.”          Id.

                                                 2.

       The district court held that the MAR court “unreasonably

applied” Strickland when it denied Moore’s claims of ineffective

assistance       “despite           the     considerable            amount        of     evidence

proffered       to    [it]    in     support      of    the    claim      that     counsel    was

ineffective for failing to procure an expert witness . . . .”

Moore, 2012 WL 6839929, at *17.                       We begin our de novo review of

the    district       court’s       decision      “[u]nder      the    dual,        overlapping

lenses     of    AEDPA        and     Strickland”         by    asking        the      following

question: “Was the MAR court’s holding . . . incorrect to a

degree that [its] conclusion ‘was so lacking in justification

that    [it]    was     an    error       well    understood        and     comprehended      in

existing        law         beyond         any        possibility           for        fairminded

disagreement?’”             Richardson, 667 F.3d at 141 (quoting Richter,

                                                 18
131 S. Ct. at 786-87).            We conclude that there is at least a

“reasonable       argument        that        [Moore’s]     counsel       satisfied

Strickland’s deferential standard,” Richter, 131 S. Ct. at 788,

and therefore reverse the district court’s order granting Moore

the writ.

       In   so   holding,    we   do     not    contest   “the    fallibility     of

eyewitness identifications,” Perry v. New Hampshire, 132 S. Ct.

716, 728 (2012), or retrench from our prior recognition of the

fact that expert testimony on eyewitness identification may be

useful in certain “narrow circumstances,” Harris, 995 F.2d at

535.    We do note, however, that expert testimony on eyewitness

identifications is not automatically admitted; when allowed, its

admissibility is generally at the court’s discretion, both under

federal and North Carolina law.                 See Perry, 132 S. Ct. at 729

(“In appropriate cases, some States . . . permit defendants to

present      expert   testimony          on     the    hazards     of    eyewitness

identification evidence.”); Harris, 995 F.2d at 534; State v.

Cotton, 394 S.E.2d 456, 459-60 (N.C. Ct. App. 1990) (quoting

State   v.    Knox,   337    S.E.2d      154,    156   (N.C.     Ct.    App.   1985))

(permitting the admission of expert testimony on the fallibility

of eyewitness identifications at the court’s discretion) aff’d

407 S.E.2d 514 (N.C. 1991).

       We decline to hold that by failing to call a witness whose

testimony the state trial court had full discretion to exclude,

                                          19
Moore’s counsel rendered constitutionally deficient performance.

In light of the fact that Moore’s counsel competently cross-

examined both victim-eyewitnesses, showed that one of the Moore

brothers    could     not    have   been   present    on    the   night       of   the

incident, and attempted to establish Moore’s alibi, it was not

unreasonable for the MAR court to reject Moore’s ineffective

assistance    claims,       particularly    given    the   “strong   presumption

that   counsel’s      representation       was   within    the    wide    range     of

reasonable professional assistance.”                Strickland, 466 U.S. at

689.       Even    if,   “in    some   cases,     counsel    would       be   deemed

ineffective for failing to consult or rely on experts,” “state

courts . . . have wide latitude” to determine when an expert is

necessary.        Richter, 131 S. Ct at 789.          In light of our doubly

deferential standard of review, we are reluctant to disturb the

state court’s conclusion in that regard.

       Nor do the out-of-circuit cases upon which the district

court relied persuade us otherwise.                  In Ferensic, a case in

which the habeas petitioner’s conviction rested entirely on the

victim-eyewitness’s identification, the state court excluded the

defense’s expert on eyewitness fallibility as a sanction for

failing to comply with a scheduling order.                  The Sixth Circuit

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
present a defense” by the exclusion of the expert witness, id.

at 480.     The Sixth Circuit emphasized that “expert testimony on

eyewitness identifications . . . is now universally recognized

as scientifically valid and of aid to the trier of fact for

admissibility      purposes”     and      that    “other       means       of    attacking

eyewitness    identifications        do     not   effectively             substitute     for

expert testimony on their inherent unreliability.”                             Id. at 481-

82 (citations and internal quotation marks omitted).

       Despite this recognition, the Sixth Circuit preserved the

holdings of two unpublished cases in which it held “that the

failure     of     counsel     to      hire       an     expert           in    eyewitness

identification did not prejudice the defendant in a criminal

trial,”   noting     that    “the   failure       to    retain       an    expert   as    an

initial matter presents a somewhat different problem than the

exclusion of an already retained expert.”                       Id. at 483-84.            We

agree.    Finding that the state court unreasonably sanctioned a

defendant     by     excluding      prepared       expert       testimony         is     far

different     from    requiring      counsel       to    present          an    expert   in

eyewitness       identification        in      order      to     render          effective

assistance.      We find that “it would be well within the bounds of

a   reasonable     judicial    determination           for     the    state      court    to

conclude that defense counsel could follow a strategy that did

not require the use of experts . . . .”                  Richter,          131 S. Ct. at

789.

                                          21
       We likewise find Bell v. Miller, upon which the district

court   heavily   relied,       distinguishable.          In   Bell,      a    single

victim-eyewitness    identified       the       petitioner     after      suffering

severe trauma, blood loss, and an eleven-day period of heavy

sedation.      500 F.3d at 152.       The Second Circuit found defense

counsel constitutionally         ineffective      for    failing    “to       consider

consulting an expert to ascertain the possible effects of trauma

and pharmaceuticals on the memory of the witness” “where the

memory of [the eyewitness was] obviously impacted by medical

trauma and prolonged impairment of consciousness, and where the

all-important identification [was] unaccountably altered after

the administration of medical drugs.”                   Id. at 157.           Bell is

easily distinguishable both on its facts and in the applicable

standard of review.       In particular, the Second Circuit concluded

that Bell’s 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

counsel’s      failure     to     call      an     expert      in       eyewitness

identification.     Yet, regardless of how counsel determined the

course of Moore’s defense, “[r]are are the situations in which

‘the    wide   latitude    counsel       must    have     in   making         tactical

decisions’ will be limited to any one technique or approach.”

                                      22
Richter, 131 S. Ct. at 789 (quoting Strickland, 466 U.S. at

689).     While “[o]f course[] we would not regard as tactical a

decision by counsel if it made no sense or was unreasonable

‘under prevailing professional norms’ . . . that is not the case

here.”      Vinson      v.     True,       436    F.3d      412,    419    (4th       Cir.    2005)

(quoting    Wiggins          v.     Smith,       539     U.S.      510,    521-24       (2003)).

Counsel    cross-examined               both    victim-eyewitnesses,             attempted      to

establish       an    alibi       for    Moore,       and   showed     that      the    admitted

physical    evidence          could       not    be     connected         to   Moore     or    the

assault.     The fact that counsel’s cross-examination could have

been     presented          along       with     expert      testimony         on     eyewitness

identification         must       not    be     analyzed       “through        the    distorting

effects    of    hindsight.”              Winston,       592    F.3d      at    544    (citation

omitted)    (explaining             that       “[d]efense       counsel’s           strategy    of

attacking [witness] credibility” through “undeniably focused and

aggressive” cross-examination “falls within the wide range of

reasonable professional assistance”).

       Moreover, we decline to deem counsel’s classic method of

cross-examination              ineffective             assistance,             as      “[c]ross-

examination is the principal means by which the believability of

a witness and the truth of his testimony are tested.”                                   Davis v.

Alaska,    415       U.S.    308,       316    (1974).       Because       “deficiencies        or

inconsistencies in an eyewitness’s testimony can be brought out

with skillful cross-examination,” Harris, 995 F.2d at 535, we

                                                 23
cannot say there is no reasonable argument that counsel’s use of

cross-examination      to      challenge      the     Overtons’    credibility

constituted ineffective assistance, even considering the unique

factual circumstances of Moore’s case.

        Although the cases cited by Moore and the district court

support a conclusion that an expert in eyewitness identification

might have provided helpful evidence for the defense, they do

not go so far as to foreclose disagreement over whether failure

to provide such a witness constitutes ineffective assistance.

As   holding      otherwise    contravenes      the     AEDPA’s   deferential

standard,    we   reverse     the   district    court’s    judgment    granting

Moore‘s writ.

                                       B.

     We next address the district court’s holding that the MAR

court     “reached    its     decision      based   upon    an    unreasonable

determination of the facts,” in light of the evidence presented

in the state court proceeding, in violation of § 2254(d)(2).

Moore, 2012 WL 6839929, at *21.                “[W]e are mindful that ‘a

determination on a factual issue made by a State court shall be

presumed correct,’ and the burden is on the petitioner to rebut

this presumption ‘by clear and convincing evidence.’”                 Tucker v.

Ozmint, 350 F.3d 433, 439 (4th Cir. 2003) (quoting 28 U.S.C. §

2254(e)(1)).       “This is a daunting standard--one that will be

satisfied in relatively few cases.”            Taylor v. Maddox, 366 F.3d

                                       24
992,    1000     (9th       Cir.        2004).           Yet,    “deference          does      not    by

definition preclude relief.”                         Miller-El v. Cockrell, 537 U.S.

322, 340 (2003).             “[W]here the state court has before it, yet

apparently      ignores,          evidence          that      supports    [the]          petitioner’s

claim,”    the       state        court          fact-finding      process          is    defective.

Taylor,    366       F.3d        at     1001       (finding      an     unreasonable           factual

determination          under           §     2254(d)(2)          where        the    state       court

“overlooked or ignored” “highly probative” evidence).

       Insofar       as    the        district      court       found    that       the    MAR   court

“fail[ed]       to    consider             and    weigh       relevant    evidence          that     was

properly    presented            to        [it],”    Taylor,       366    F.3d       at     1001,     by

failing    to    consider             Dr.    Wallendael’s         affidavit,             its   holding

ignores the          entirety         of     the    MAR    court’s       order.           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.”                 J.A.       153.         While    the     MAR       court’s      terse

treatment       of         the        issue        makes        review        challenging,           its

pronouncement that an expert was neither justified nor required

indicates that it considered Moore’s submission and reached a

conclusion       with       which          “fairminded          jurists       could       disagree.”

Richter,    131       S.    Ct.       at     786.        In    light     of    North       Carolina’s

discretion in this regard, see Cotton, 394 S.E.2d at 459, as

                                                    25
well as the fact “that a state-court factual determination is

not unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance,” Wood

v. Allen, 558 U.S. 290, 301 (2010), we find that Moore has

failed to meet his burden under § 2254(d)(2). 8

                                   C.

     We now turn to Moore’s cross-appeal, in which he contests

the district court’s rejection of his ineffective assistance of

counsel claim based on his trial counsel’s failure to object to

the admission of the firearm and forensic report.

     Pursuant to Strickland, “there is no reason for a court

deciding   an   ineffective   assistance   claim”   to   determine   “both

components of the inquiry if the defendant makes an insufficient

showing on one.”      466 U.S. at 697; Merzbacher v. Shearin, 706


     8
       The State also contends that the district court’s judgment
would establish a “new rule” of constitutional adjudication, and
that Teague v. Lane, 489 U.S. 288 (1989), therefore bars Moore’s
appeal from federal habeas review.       “Under Teague, a state
prisoner collaterally attacking his conviction may not rely on a
new constitutional rule announced after his conviction became
final.”   Frazer v. South Carolina, 430 F.3d 696, 704 (4th Cir.
2005). Because the district court explicitly applied Strickland
to Moore’s ineffective assistance claim based on his counsel’s
failure to call an expert witness, and because “the Strickland
test provides sufficient guidance for resolving virtually all
ineffective-assistance-of-counsel claims,” Williams, 529 U.S. at
391, we reject the State’s Teague argument. When a case “simply
crystalizes the application of Strickland to the specific
context” of a petitioner’s claim, it does not create a “new
rule” of constitutional adjudication. Frazer, 430 F.3d at 704-
05.


                                   26
F.3d 356, 365 (4th Cir. 2013).                    Indeed, “[i]f it is easier to

dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice, which we expect will often be so, that

course should be followed.”                  Strickland, 466 U.S. at 697.                     We

assume without deciding, as the district court did, that counsel

was   deficient      in     failing     to   object      to    the   admission        of     the

evidence and turn directly to the prejudice prong.

      Applying       the    same     “doubly      deferential”          review    discussed

above, we ask whether the MAR court’s conclusion that Moore’s

“claims   of       ineffective       assistance      of       counsel    [were]       without

merit” represented           an    unreasonable       application         of    Strickland.

J.A. 153.       Specifically, we ask whether, had Moore’s counsel

objected to the evidence in question, “fairminded jurists could

disagree”     as    to     whether    that    objection         would    have    created      a

reasonable     probability         of    affecting        the    outcome        of    Moore’s

trial.

      In this regard, we find the reasoning of the North Carolina

Court of Appeals and district court persuasive.                            After finding

the challenged evidence “irrelevant and prejudicial,” the Court

of Appeals declined to find plain error because it could not

conclude that “absent the error the jury probably would have

reached   a    different       verdict.”          J.A.    214-15     (citing         State    v.

Walker, 340 S.E.2d 80, 83 (N.C. 1986)).                         We agree.        Even given

that the plain error test the Court of Appeals applied--absent

                                             27
the   error    the    jury   “probably       would   have   reached    a    different

verdict”--differs from Strickland’s test for prejudice--absent

counsel’s errors, there would be a “reasonable probability” of a

different       outcome--the      MAR        court’s     conclusion        does    not

constitute an “unreasonable” application of Strickland.                      Counsel

successfully      demonstrated     through        cross-examination         that   the

admitted firearm and forensic report were connected neither to

Moore nor to the crime against the Overtons.                      As “reasonable

jurists”      could   disagree   as     to     whether   the   admission      of   the

evidence      ultimately     prejudiced      Moore,    we   affirm    the    district

court’s denial of the writ on that ground.


                                        III.

      For the foregoing reasons, we reverse the district court’s

judgment granting Moore’s petition on his claim of ineffective

assistance based on his counsel’s failure to call an expert in

eyewitness identification and affirm the district court’s denial

of Moore’s additional claims of ineffective assistance.



                                   REVERSED IN PART AND AFFIRMED IN PART




                                          28
