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