          United States Court of Appeals
                     For the First Circuit

No. 14-1400

                         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]



                             Before

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



     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.


                        November 22, 2016
             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


                                       - 2 -
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).




                                        - 3 -
              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.   §

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."



      1 Any argument on this point would, in any event, be
unavailing. Moore appears to concede that the Massachusetts court
applied the correct legal standard, and he points to no Supreme
Court precedent involving facts "materially indistinguishable"
from those at issue here. Williams, 529 U.S. at 405.


                                            - 4 -
Id. at 407.      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, 134 S. Ct. 1697, 1702 (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.     See John 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, see 28

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


                                   - 5 -
challenged factual findings are merely reviewed for reasonableness

under § 2254(d)(2).       See Wood v. Allen, 558 U.S. 290, 300-01

(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 also Johnson v. Williams, 133


                                   - 6 -
S. Ct. 1088, 1096 (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.                  See Commonwealth v. Walker,

953 N.E.2d 195, 205 n.13 (Mass. 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



        2
       Moore also suggests that the Massachusetts Appeals Court's
decision was limited to the photo array and did not consider the
lineup.    This contention is belied by the opinion's express
acknowledgement   that   Moore's   challenge  applied   to   both
identification procedures. See Moore, 929 N.E.2d 1001, at *2 n.3.


                                          - 7 -
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 (1968); see also Neil v. Biggers, 409

U.S. 188, 198 (1972).    Where the likely mistake is "irreparable,"

subsequent courtroom identifications may be similarly prohibited.

Simmons, 390 U.S. at 384.     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, 132 S. Ct. 716, 720 (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


     3 It is on this point that Massachusetts law diverges from
the   federal   standard.      Under   the   state   constitution,
identifications resulting from impermissibly suggestive procedures
are "per se excluded." Walker, 953 N.E.2d at 205 n.13.


                                - 8 -
doubt."   Id. at 721; see also United States v. Melvin, 730 F.3d

29, 34 (1st Cir. 2013) ("Jurors should not be treated as gullible

dupes, and . . . identification evidence should be withheld from

them only in extraordinary cases." (citations omitted)).          In the

present case, for the reasons discussed below, the Massachusetts

Appeals Court reasonably concluded that the procedures used were

not impermissibly suggestive.      Accordingly, we need not consider

the reliability of the identifications.

          The   Supreme   Court    has    applied   its    rule   against

suggestive identification procedures to restrict the "practice of

showing suspects singly to" witnesses rather than showing them "as

part of a lineup."   Stovall v. Denno, 388 U.S. 293, 302 (1967);

see also Biggers, 409 U.S. at 195-99 (implying that one-man

"showup," in which the police walked the defendant by the victim,

may have been suggestive); Manson v. Brathwaite, 432 U.S. 98, 107-

09 (1977) (noting state's concession that "display of a single

photograph" of the defendant was suggestive).             The Court has,

however, suggested that, in some circumstances, the rule may extend

beyond one-man showups or the use of single photos.         See Simmons,

390 U.S. at 383 (noting that the danger of misidentification is

also increased where witnesses are shown "the pictures of several

persons among which the photograph of a single such individual

recurs or is in some way emphasized"); Foster v. California, 394

U.S. 440, 442-43 (1969) (holding that series of identification


                                  - 9 -
procedures, including a three-person lineup where the defendant

"stood out" due to his height and leather jacket, a subsequent

"one-to-one confrontation" between the witness and the defendant,

and a third lineup, was impermissibly suggestive).

             The facts of the present case are far removed from these

Supreme   Court    precedents.        Indeed,   rather    than    a   showup   or

presentation of a single photo, the police conducted a photo array

and a lineup, each involving Moore and seven other individuals.

The Massachusetts trial court expressly found that all of the

participants generally had a similar appearance, and Moore does

not seriously challenge this finding on appeal.              With respect to

the photo array, our review of the record confirms the state

court's conclusion. Moore and the other seven individuals depicted

all appear to be African-American males with comparable ages, skin

tones, and hairstyles.        Moore's facial scar, while visible, is

relatively small.     The Massachusetts court also found that Moore's

scar "is a characteristic which is difficult to replicate in

individuals who otherwise resemble the defendant."                Again, Moore

makes no effort to challenge this factual determination.                Indeed,

a scar is different than other potentially distinguishing features

that   can    be   easily   removed    or   changed      (e.g.,   clothing     or

accessories). While the police could conceivably have made efforts

to conceal Moore's scar, this practice might itself have undermined

the reliability of the identification by artificially altering


                                  - 10 -
Moore's facial features.    In any event, we need not opine on the

permissibility or advisability of such precautions.         For present

purposes, it suffices that the state court reasonably concluded

that the police were not required to conceal Moore's scar.          See,

e.g., United States v. Holliday, 457 F.3d 121, 126 (1st Cir. 2006)

(rejecting challenge to photo array based on the defendant's

distinctive "skin discoloration"); United States v. Moore, 115

F.3d 1348, 1360 (7th Cir. 1997) (finding that photo array was not

suggestive despite the defendant's "distinctive eyebrow"); Taylor

v. Swenson, 458 F.2d 593, 596-98 (8th Cir. 1972) (holding that

lineup was admissible even where the defendant stood out because

of a facial scar and a "filed down" tooth).

          Moore relies almost exclusively on United States Court

of Appeals decisions to argue that his facial scar rendered the

identification procedures impermissibly suggestive.    As an initial

matter, to the extent these lower federal court rulings stray

beyond   the   applicable   Supreme   Court   precedents,    they    are

insufficient to demonstrate an unreasonable application of federal

law under 28 U.S.C. § 2254(d)(1).     See Lopez v. Smith, 135 S. Ct.

1, 4 (2014).    In any event, the cases Moore cites are largely

distinguishable.   See, e.g., United States v. Castro-Caicedo, 775

F.3d 93, 98 (1st Cir. 2014) (noting that the defendant was "far

older" and had "darker skin" than anyone else in the photo array

and was the only person whose "sagging belly" (matching the


                               - 11 -
witness's description) was shown); Raheem v. Kelly, 257 F.3d 122,

137 (2d Cir. 2001) (finding lineup suggestive where the defendant

was the only participant wearing a leather coat, which was "the

most prominent feature" of the witnesses' prior descriptions).

          Moore's other contentions are meritless.        First, he

argues that the identification procedures were unduly suggestive

because he was the only person to appear in both the photo array

and lineup.   But we have held on direct appeal that "[a] suspect's

inclusion in two photospreads . . . is not constitutionally

impermissible."   United States v. Maguire, 918 F.2d 254, 263 (1st

Cir. 1990).   It follows that Moore's inclusion in both the photo

array and the lineup similarly does not offend due process.   Next,

Moore points to evidence that the police described the array to

witnesses as "photos of suspects."     Again, Maguire forecloses his

claim.   See id. at 264 (noting that we have "condone[d] . . .

suggesting that the suspect is one of those shown in the array").

Third and finally, Moore contends that the identifications were

impermissibly suggestive because he was number six in both the

array and the lineup.   This argument is contradicted by the state

trial court's express finding that "[n]one of the witnesses paid

attention to the order in which the photos or the individuals in

the lineup were presented."     Moore's record citations fail to

convince us that this determination was unreasonable.




                              - 12 -
                             IV.

          For the foregoing reasons, we AFFIRM the denial of

Moore's § 2254 petition.




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