Decided: July 22, 2013
The Fourth Circuit reversed the district court’s judgment granting Defendant’s petition on his claim of ineffective assistance based on his counsel’s failure to call an expert in eyewitness identification, and affirmed the portion of the district court’s judgment rejecting Defendant’s other claims of ineffective assistance.
On April 23, 2007, a North Carolina jury convicted Thomas Moore, Jr. (“Defendant”) of first-degree burglary and assault with a deadly weapon with intent to kill inflicting serious injury. Richard and Helen Overton identified Moore as the assailant before the jury. However, the Overtons had also falsely accused Moore and his brother of armed robbery back in 2003. The Overtons saw and testified against the brothers in the earlier case, but those charges were dismissed. In 2007, Helen Overton confirmed that she had identified Moore from the photographic lineup based on his involvement in the 2006 incident, not because she had seen Moore in court during the 2004 proceedings. The state also presented into evidence a revolver recovered several miles from the Ovetons’ home, which was connected neither to Moore nor to the incident at the Overtons’ home. Further, Richard Overton’s testimony identifying both “Moore boys,” rather than just Defendant, was significantly impeached by evidence that Linwood Moore was incarcerated on the night of the assault and could not have been present. The jury nonetheless convicted Defendant of both charges.
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. The State of North Carolina then sought reversal of the district court’s order granting Moore’s writ. Moore cross-appealed 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 irrelevant and prejudicial evidence.
The Fourth Circuit first addressed the district court’s conclusion that, under § 2254 (d)(1), the MAR court unreasonably applied the Supreme Court’s precedent in Strickland. The court reviewed the claim through the strictures of the Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”). Under 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…or (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.” The Court also reviewed the claim through the lens of Strickland and its progeny. Stricklandsets forth a two part standard: First, the petitioner must show that “counsel’s representation fell below an objective standard of reasonableness. 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.” In two recent Supreme Court 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.” Under the AEDPA standard, “a state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fair-minded jurists could disagree on the correctness of the state court’s decision.” In other words, a writ may issue only “where there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts with the Court’s precedents.” The court concluded that there was at least a reasonable argument that Moore’s counsel satisfied Strickland’s deferential standard, and therefore reversed the district court’s order granting Moore the writ. The court noted that expert testimony on eyewitness identifications is not automatically admitted and, when allowed, its admissibility is generally at the court’s discretion, both under federal and North Carolina law. The court declined to hold that by failing to call a witness whose testimony the state trial court had full discretion to exclude, Moore’s counsel rendered constitutionally deficient performance.
The Court of Appeals then addressed 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). 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. Here, the state found there was no evidence to justify or require an expert on identification. The state court considered Moore’s submission and reached a conclusion with which “fair-minded jurists could disagree.” Therefore, the Fourth Circuit Court of Appeals found that Moore failed to meet his burden under § 2254 (d)(2).
The Court of Appeals then addressed Moore’s cross-appeal, in which he contested 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. In addressing this issue, the court asked whether, had Moore’s counsel objected to the evidence in question, “fair-minded jurists could disagree” as to whether that objection would have created a reasonable probability of affecting the outcome of Moore’s trial. The court declined to find plain error because it could not conclude that “absent the error the jury probably would have reached a different verdict.” 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, the court affirmed the district’ court’s denial of the writ on that ground.
– Sarah Bishop