Thomas Moore, Jr. v. Michael Hardee

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 5:11-hc-02148-F. [999155253]. [12-6679, 12-6727]

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 1 of 28

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.

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 2 of 28

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/CrossAppellees.
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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 3 of 28

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.
Moore

exhausted

his

direct

appeals

and

state

After

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.
North

Carolina

post-conviction

court

It found that the

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

Reuben

F.

unreasonable factual determination.
The
Young,

State

of

Secretary

of

North
the

Carolina,
North

acting

Carolina

through

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

one

from

the

district

court’s

denial

of

of

the

additional claims of ineffective assistance he asserted below,
that

his

trial

counsel

was

ineffective

3

for

stipulating

to

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 4 of 28

irrelevant and prejudicial evidence.
Given

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

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
summarized

the

the

North

facts

Carolina

when

it

Court

of

directly

Appeals

reviewed

aptly
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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Macclesfield,

North

Carolina

Pg: 5 of 28

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

shooting”;

Overton

Richard

shoulder and hand.

entered

Overton

the

J.A. 495.

“[Moore]

gunshot

suffered

room,

wounds

started
to

the

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.”
Two

days

photographic

later,

lineup,

when
Helen

J.A. 554.

officers
Overton
5

presented

identified

her
Moore

with
as

a
the

Appeal: 12-6679

Doc: 45

shooter.

Filed: 07/22/2013

Pg: 6 of 28

When officers asked Richard Overton who had shot him,

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

J.A.

584.

[Moore’s] face.”

Richard

Overton

indicated

that

he

“saw

Id. at 585.

Moore was indicted for first-degree burglary and assault
with

a

deadly

weapon

with

intent

to

kill

inflicting

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

serious

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,
6

Richard

Overton

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 7 of 28

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.
Overton

characterized

his

Although Richard

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.
examination

of

the

state’s

crime

J.A. 524.

scene

On cross-

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.
in

his

own

defense,

explaining

Finally, Moore testified

that

on

the

burglary, he had been at home with his mother.

night

of

the

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

motion

sentenced

and

the

evidence
Moore

grounds.
to

The

court

seventy-three

to

denied

the

ninety-seven

months of imprisonment for the assault conviction and sixty-four
to

eighty-six

months

of

imprisonment

1

for

the

burglary

“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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 8 of 28

conviction, to be served consecutively. 2

Moore appealed.

B.
The

North

convictions.

Carolina

Court

of

Appeals

affirmed

Moore’s

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

admission of the evidence did not constitute plain error.

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

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.
can

affect

the

Her affidavit detailed several factors which
reliability

of

2

eyewitness

identifications,

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

Appeal: 12-6679

Doc: 45

including

the

transference.” 5

Filed: 07/22/2013

“weapon

Pg: 9 of 28

focus

effect” 4

and

“unconscious

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-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

“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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 10 of 28

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
corpus

in

filed
the

his

United

federal

petition

for

States

District

Court

District of North Carolina in August 2011.
that

the

MAR

court

unreasonably

7

applied

a

writ
for

of

the

habeas
Eastern

In it, he argued
clearly

established

Therefore, the MAR court was the last state court to
address Moore’s claims of ineffective assistance of counsel.
10

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 11 of 28

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,
11

the

district

court

primarily

Appeal: 12-6679

relied

Doc: 45

on

Filed: 07/22/2013

two

out-of-circuit

Pg: 12 of 28

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.
concluded

that,

embracing

the

given

Moore, 2012 WL 6839929, at *11.
that

numerous

“there

factors

were

no

jury

potentially

It

instructions

affecting

the

reliability of the eyewitness identifications, and that there is
no

other

evidence

testimony,

expert

of

[Moore’s]

testimony

on

guilt”
the

besides

fallibility

the

Overtons’

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,

correlating

a

witness’s

as

supposed

identification with accuracy.”
After
dispute”

determining
that

unreasonable

the

that
MAR

application

well

as

the

“danger

confidence

in

of

their

Id. at *13-14.
“‘fair-minded

court’s
of

jurists’

judgment

Strickland

as

could

not

represented

an

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

Appeal: 12-6679

at

Doc: 45

*18,

Filed: 07/22/2013

the

appropriate
Strickland”

court
expert

found

“counsel’s

witness

despite

Pg: 13 of 28

.

.

failure

.

“counsel’s

to

an

pursuant

deficient

obtain

to

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

examining the witnesses and establishing an alibi.”

cross

Id. at *20.

Such testimony would have provided “‘a scientific, professional
perspective

that

no

one

else

had

offered

(quoting Ferensic, 501 F.3d at 477).

the

jury.’”

Id.

Because no other evidence

connected Moore to the crime (and other admitted evidence was
“irrelevant

and

prejudicial”),

“reasonable

probability

proceeding

would

expert

eyewitness

in

have

.
been

.

the
.

district

[that]

different”

fallibility.

the

had
Id.

court
result

counsel
at

found

a

of

the

called

an

*20

(citations

of

ineffective

omitted).
The

court

assistance.

rejected

Moore’s

other

claims

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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

did not prejudice Moore.
Moore’s

counsel

Pg: 14 of 28

This was particularly the case because

successfully

demonstrated

“that

none

of

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

this

Id. at

*25.
The

State

certificate

appealed,

of

and

Moore,

appealability,

after

cross-appealed

receiving
the

a

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

corpus petition.

consideration

of

a

state

prisoner’s

habeas

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).
AEDPA,

a

writ

of

habeas

corpus

“shall

not

be

Under the

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

Appeal: 12-6679

Doc: 45

(2)

Filed: 07/22/2013

Pg: 15 of 28

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

claim.”

Court

precedent

to

the

facts

of

the

petitioner’s

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

sufficiently

against

incorrect
the

objectively unreasonable.”

or

weight

erroneous.
of

the

It

evidence

must

that

it

be
is

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,

Richter, 131 S. Ct. at 787).

668

F.3d

at

138

(citing

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

Appeal: 12-6679

U.S.

Doc: 45

538,

Filed: 07/22/2013

555-56

(1998)),

Pg: 16 of 28

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.
based

its

We then address its finding that the MAR court
decision

under § 2254(d)(2).

on

an

unreasonable

factual

determination

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
standard.”

that

counsel

satisfied

Strickland’s

deferential

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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 17 of 28

an objective standard of reasonableness.”
at

688.

deficient,

When
a

determining

court

“must

whether

indulge

Strickland, 466 U.S.

counsel’s

a

strong

behavior

was

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.
the

Court

emphasized

that

when

state

In both cases,

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

Strickland’s

whether

defense

standard,”

application

of

federal

application

of

federal

in
law

counsel’s
part
is

because

law.’”

different
Richter,

(quoting Williams, 529 U.S. at 410).
“[a]

state

court’s

performance

determination

“‘an
from
131

S.

fell

below

unreasonable
an

incorrect

Ct.

at

785

Under the AEDPA standard,
that

a

claim

lacks

merit

precludes federal habeas relief so long as ‘fairminded jurists
17

Appeal: 12-6679

Doc: 45

disagree’

could

Filed: 07/22/2013

on

decision.”
Alvarado,
Strickland

the

Pg: 18 of 28

correctness

of

the

state

court’s

Richter, 131 S. Ct. at 786 (quoting Yarborough v.
541

U.S.

claim

652,

may

664

have

(2004)).

had

merit

That
does

a

not

petitioner’s
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
proffered

“despite
to

[it]

in

the

considerable

support

of

the

amount

claim

of

that

evidence

counsel

was

ineffective for failing to procure an expert witness . . . .”
Moore, 2012 WL 6839929, at *17.
the

district

lenses

of

court’s

AEDPA

decision

and

We begin our de novo review of
“[u]nder

Strickland”

by

the

dual,

asking

the

overlapping
following

question: “Was the MAR court’s holding . . . incorrect to a
degree that [its] conclusion ‘was so lacking in justification
that

[it]

existing

was
law

disagreement?’”

an

error

beyond

well

understood

any

and

possibility

comprehended
for

in

fairminded

Richardson, 667 F.3d at 141 (quoting Richter,
18

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 19 of 28

131 S. Ct. at 786-87).

We conclude that there is at least a

“reasonable

that

argument

[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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 20 of 28

Moore’s counsel rendered constitutionally deficient performance.
In light of the fact that Moore’s counsel competently crossexamined 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
that

claims,

counsel’s

particularly

representation

given
was

within

reasonable professional assistance.”
689.

Even

if,

“in

some

cases,

the

“strong
the

presumption

wide

range

of

Strickland, 466 U.S. at
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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 21 of 28

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
eyewitness

purposes”

and

identifications

that

do

not

“other

means

effectively

of

attacking

substitute

expert testimony on their inherent unreliability.”

for

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.”
agree.

Id. at 483-84.

We

Finding that the state court unreasonably sanctioned a

defendant

by

excluding

different

from

requiring

prepared
counsel

to

present

in

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

for

render

expert

far

assistance.

judicial

to

an

is

identification

reasonable

order

testimony

eyewitness

a

in

expert

the

state

effective

court

to

conclude that defense counsel could follow a strategy that did
not require the use of experts . . . .”
789.
21

Richter,

131 S. Ct. at

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 22 of 28

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

heavily

relied,

victim-eyewitness

distinguishable.

identified

Bell,

a

petitioner

the

In

single

after

suffering

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

500 F.3d at 152.

counsel constitutionally

The Second Circuit found defense

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

identification.

to

call

an

expert

in

eyewitness

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

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 23 of 28

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

(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

The fact that counsel’s cross-examination could have

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

counsel’s

(citation

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.”
Alaska,

415

U.S.

308,

316

(1974).

Because

Davis v.

“deficiencies

or

inconsistencies in an eyewitness’s testimony can be brought out
with skillful cross-examination,” Harris, 995 F.2d at 535, we
23

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 24 of 28

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

standard,

we

otherwise
reverse

contravenes
the

district

the

AEDPA’s

court’s

deferential

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.”
24

Taylor v. Maddox, 366 F.3d

Appeal: 12-6679

992,

Doc: 45

1000

Filed: 07/22/2013

(9th

Cir.

2004).

Yet,

definition preclude relief.”
322, 340 (2003).
apparently

“deference

does

not

by

Miller-El v. Cockrell, 537 U.S.

“[W]here the state court has before it, yet

ignores,

claim,”

the

Taylor,

366

F.3d

evidence

state

determination

Pg: 25 of 28

court
at

that

fact-finding

1001

under

§

supports

(finding

process
an

2254(d)(2)

[the]

petitioner’s

is

defective.

unreasonable

where

the

factual

state

court

“overlooked or ignored” “highly probative” evidence).
Insofar
“fail[ed]
properly
failing

as

district

consider

to

the

and

presented
to

to

consider

ignores the

entirety

court

weigh

[it],”

Dr.
of

found

relevant

Taylor,

Wallendael’s
the

MAR

that

the

court

evidence

that

was

F.3d

366

1001,

by

at

affidavit,

court’s

MAR

its

order.

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

court’s

challenging,

terse
its

pronouncement that an expert was neither justified nor required
indicates that it considered Moore’s submission and reached a
conclusion
Richter,

with

131

S.

which
Ct.

at

“fairminded
786.

In

jurists
light

of

could

disagree.”

North

Carolina’s

discretion in this regard, see Cotton, 394 S.E.2d at 459, as
25

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 26 of 28

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 70405.
26

Appeal: 12-6679

Doc: 45

Filed: 07/22/2013

Pg: 27 of 28

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

merit” represented
J.A. 153.

an

assistance
unreasonable

of

counsel

application

[were]
of

without

Strickland.

Specifically, we ask whether, had Moore’s counsel

objected to the evidence in question, “fairminded jurists could
disagree”
reasonable

as

to

whether

probability

that
of

objection

affecting

the

would

have

outcome

created
of

a

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

Walker, 340 S.E.2d 80, 83 (N.C. 1986)).

(citing

We agree.

State

v.

Even given

that the plain error test the Court of Appeals applied--absent
27

Appeal: 12-6679

the

Doc: 45

error

Filed: 07/22/2013

the

jury

“probably

Pg: 28 of 28

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

constitute an “unreasonable” application of Strickland.
successfully

demonstrated

through

cross-examination

not

Counsel
that

the

admitted firearm and forensic report were connected neither to
Moore nor to the crime against the Overtons.
jurists”

could

disagree

evidence

ultimately

as

to

prejudiced

whether
Moore,

the

we

As “reasonable

admission

affirm

the

of

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