United States Court of Appeals
For the First Circuit
No. 09-2665
EDWARD G. WRIGHT,
Petitioner, Appellant,
v.
JOHN J. MARSHALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Selya, and Thompson,
Circuit Judges.
Matthew A. Kamholtz, with whom Feinberg & Kamholtz was on
brief, for appellant.
Annette C. Benedetto, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.
September 1, 2011
THOMPSON, Circuit Judge. In the early morning hours of
May 14, 1984, Penny Anderson was murdered at her Springfield,
Massachusetts apartment. In 1985, a Superior Court jury convicted
the petitioner, Edward Wright, of the crime. Although Wright
admitted that he had spent time with Anderson the night before her
death, he claimed to have left her apartment before she was killed.
After a lengthy foray through the Massachusetts state
courts unsuccessfully challenging his conviction, Wright filed a
habeas corpus petition in federal court. The district court
initially denied relief but later granted a motion for
reconsideration and held an evidentiary hearing to permit Wright to
introduce new evidence. This new evidence showed that according to
a witness, another man, Allen Smalls, had made self-incriminating
statements about Anderson’s murder. After considering the new
evidence, the district court denied habeas relief. Wright filed a
timely appeal, arguing that his trial counsel was ineffective
because he failed to make two specific arguments when objecting to
the admission at trial of the prior grand jury testimony of a key
witness, Arthur Turner,1 and because he failed to request that the
jury be instructed to take into account the possibility of mistaken
1
As discussed infra, Wright contends that his trial
counsel should have argued that the testimony failed to satisfy the
third and fourth prongs of the test for admissibility set forth in
Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984),
overruled on other grounds by Commonwealth v. Le, 444 Mass. 431,
828 N.E.2d 501 (2005).
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identification in determining whether the commonwealth had proven
guilt beyond a reasonable doubt. Because Wright has failed to
demonstrate ineffective assistance of counsel, we affirm the denial
of his habeas petition.
BACKGROUND
We begin with the facts, reviewed as described by the
Massachusetts Supreme Judicial Court (SJC) in Commonwealth v.
Wright, 411 Mass. 678, 678-80, 584 N.E.2d 621, 623 (1992),
“supplemented with other record facts consistent with the SJC’s
findings.” Shuman v. Spencer, 636 F.3d 24, 27 (1st Cir. 2011)
(quoting Yeboah-Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir. 2009))
(internal quotation marks omitted).
The Crime
Wright and Anderson left a nightclub together on May 13,
hours before Anderson was murdered. After stopping to pick up her
infant son and run some errands, they had sex in the car and then
went to Anderson’s apartment, arriving around midnight. Wright was
driving a car borrowed from a friend. According to Wright, he and
Anderson talked for about an hour and she let him out of the
apartment at about 1:30 a.m. He said he then went to a friend’s
house but because he did not want to wake the friend, Wright slept
in the car. At about 8 a.m. on May 14, Wright left for a
previously planned visit to his sister’s house in Delaware.
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Sometime in the early morning hours of May 14, Anderson
died from multiple stab wounds. A neighbor heard a woman screaming
shortly before 4 a.m., and then heard a car drive away. The
medical examiner estimated Anderson’s time of death to be between
12:15 a.m. and 6:15 a.m.
Anderson’s body was discovered that afternoon, after her
family contacted the building maintenance supervisor and gained
access to her apartment. Investigation of the crime scene yielded
evidence including a bloody imprint made by a shoe on the tiled
kitchen floor of the victim’s apartment.
Phone Call and Turner’s Testimony
Perhaps the key testimony at trial came from Arthur
Turner, the son of Wright’s on-and-off-again girlfriend, Thelma.
Wright and Turner had known each other for several years prior to
the crime, living in the same house in Delaware for part of that
time.
On the night of the murder, Turner got into a car
accident while returning from a trip. He arrived home in
Springfield at around 1 p.m. on May 14, tired from having been up
all night dealing with the accident. At about 4:30 in the
afternoon, he received a phone call from someone who identified
himself as “Ed.” The caller said he had killed someone, provided
Anderson’s address, and described the victim as a “white bitch” who
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was “on TIC.”2 He provided additional details about the murder
weapon and added that Turner should watch the news or go get the
newspaper and then he would know who the victim was.
Turner learned of Anderson’s murder through media reports
and told his sister about the phone call, which he attributed to
Wright. His sister told their brother, who notified the police.
Turner provided information consistent with what he had told his
sister to the police and he signed a police statement on May 16.
During grand jury proceedings on June 4, Turner’s police statement
was read into the record, and Turner reaffirmed the truth of
everything in it.
Some six months later, after Turner’s mother and Wright
had reconciled, Turner changed his story. He still said he had
received a telephone call from a person who identified himself as
“Ed” and that the caller provided information about the murder, but
he said he was no longer positive that the caller was in fact
Wright.
Still, Wright’s first name is Edward, and Wright was the
only person Turner knew named “Ed.” Phone records confirmed that
a 36-minute phone call was made from Wright’s sister’s home in
Delaware to Turner’s number in Springfield at 4:41 p.m. on May 14.
Wright’s sister testified that she made all phone calls in question
that day, but the commonwealth rebutted with testimony from
2
“TIC” is apparently a street term for illegal drugs.
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Turner’s aunt, who said that Wright called her that day and asked
for Turner’s telephone number.
Given Turner’s partial recantation, the commonwealth
moved in limine to admit Turner’s prior inconsistent grand jury
testimony for its truth under Commonwealth v. Daye, 393 Mass. 55,
469 N.E.2d 483 (1984). Wright’s counsel filed a written opposition
arguing that Turner’s grand jury testimony was inadmissible, citing
Daye and requesting a voir dire. The trial judge conducted a voir
dire and concluded that Turner’s prior inconsistent grand jury
testimony was admissible for its truth under Daye.
Other Evidence
Following Turner’s disclosure of information to the
Springfield police, Wright was arrested in Delaware on May 16.
During interrogation he told a Delaware police detective that he
was with Anderson on the night in question and described her as a
“whore” who was “on TIC.”
Traces of blood were found inside the car Wright drove
the night of Anderson’s murder. However, the commonwealth called
the owner of the car, Vernal Archie, as a witness, and he testified
that a few weeks before the murder, Wright had been stabbed and
Archie had driven him to the hospital in the same car.
Additionally, a bloody shoe print found at the murder
scene could have been made by Wright’s sneakers, which police
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confiscated on May 16. But the sneakers were a popular style and
no traces of blood were detected on them.
How We Got to This Point
Wright was convicted of murder by a jury on April 10,
1985, and sentenced to life in prison. Wright filed two separate
motions for a new trial, both based in part on allegations of newly
discovered evidence (primarily, an affidavit by Lee Britt, mother
of Smalls, implicating Smalls in the murder). After holding an
evidentiary hearing, the trial court denied both motions. The SJC
consolidated Wright’s appeal from the denial of his motions with
his direct appeal of the conviction, and affirmed everything.
Wright, 411 Mass. at 679, 584 N.E.2d at 623. The SJC specifically
noted that the trial judge did not abuse his discretion in denying
Wright’s first motion for a new trial based on a finding that the
newly discovered evidence “lacked probative value.”
In September of 1992, Wright sought relief in federal
court, filing a petition for a writ of habeas corpus in the
District of Massachusetts pursuant to 28 U.S.C. § 2254. In 1993,
Wright moved for voluntary dismissal of his first federal habeas
petition and returned to state court.
Wright filed a third motion for a new trial, in which he
first raised the ineffective assistance of counsel claims at issue
in this appeal. The motion was denied by the trial court in March
of 1996. The SJC denied leave to appeal, holding that all of the
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claims asserted were procedurally defaulted because they had
already been addressed or could have been addressed during trial or
on direct review. Commonwealth v. Wright, No. SJ-96-0262, slip op.
at 2 (Mass. Aug. 12, 1997).
In 1998, Wright filed a second petition for a writ of
habeas corpus in federal district court, the case from which this
appeal has arisen.3 The district court denied the petition in
1999, rejecting Wright’s invitation to reach the merits of his
procedurally defaulted claims based on new evidence of actual
innocence.4 The evidence included Britt’s testimony during the
state court hearing on Wright’s first motion for a new trial, in
which she claimed that Smalls had admitted the murder to his
girlfriend (who then relayed the statement to Britt), and Britt’s
claim that on the day of the murder, Smalls had tried to sell a
knife possibly similar to the murder weapon. The district court
stated that “[i]f properly corroborated, this information would
provide troubling new evidence of actual innocence.” But because
the Massachusetts trial court had rejected the new evidence as
either hearsay or not credible, the district court accorded its
finding a presumption of correctness.
3
Wright originally asserted thirteen grounds for relief,
only two of which he pursues on appeal.
4
Neither party challenged the district court’s finding
that Wright’s claims had been procedurally defaulted.
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Wright sought reconsideration and an evidentiary hearing,
bolstering his contentions with additional evidence including an
affidavit from Smalls’ former girlfriend, Maria Rivera Ramos,
reciting that he had threatened to kill her “like I did
[Anderson].” The district court appointed counsel for Wright and
held a hearing on his motion for reconsideration. In 2001, at the
parties’ request, the district court stayed federal proceedings
without prejudice so Wright could present the new affidavit to the
state court and seek forensic testing of the knife sold by Smalls,
which was in the possession of the state court clerk’s office.
Forensic testing of the knife was inconclusive. In 2003,
Wright filed a fourth motion for new trial in state court, arguing
that trial counsel was ineffective for failing to locate Ramos
earlier. The state trial court denied the motion and the SJC
declined to allow an appeal.
Wright returned once more to federal court in 2006, to
resume the proceedings which had been stayed five years earlier.
After conducting an evidentiary hearing, the district court in 2008
allowed Wright’s motion for reconsideration based on evidence of
actual innocence and permitted him to proceed on the merits of his
procedurally defaulted claims. See House v. Bell, 547 U.S. 518
(2006).
Both parties briefed and argued the merits of those
claims and, in an order dated November 9, 2009, the district court
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denied Wright’s petition, finding that he had failed to demonstrate
that his trial was tainted by constitutional error. With respect
to the ineffective assistance of counsel claims, the district court
found that Wright failed to show a reasonable probability that the
result of his trial would have been different if trial counsel had
launched a more focused attack on the admissibility of Turner’s
grand jury testimony. Similarly, the district court found that
Wright had not been prejudiced by trial counsel’s failure to
request a misidentification instruction.
The district court granted a certificate of appealability
limited to two claims of ineffective assistance of counsel based on
trial counsel’s failure to object to the admission of Turner’s
grand jury testimony pursuant to Daye and failure to request a jury
instruction on misidentification. On appeal, Wright argues that
trial counsel’s performance was deficient because he failed to
argue specifically that Turner’s grand jury testimony was a mere
confirmation of a statement by an interrogator (which would make it
inadmissible under the third prong of Daye) and that the
commonwealth failed to introduce sufficient corroborating evidence
(which would make it inadmissible under the fourth prong of Daye).
Wright asserts a second claim of ineffective assistance based on
trial counsel’s failure to request a jury instruction on
misidentification.
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DISCUSSION
We review a district court’s denial of a habeas petition
de novo. Schuman, 636 F.3d at 30. When we conduct such a review,
the Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254(d), requires that we assume a highly deferential
posture toward a state court decision rejecting a federal claim on
the merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir.
2010). Here, however, the district court determined that Wright’s
claims were not adjudicated on the merits in state court and
consequently evaluated them de novo. See Fortini v. Murphy, 257
F.3d 39, 47 (1st Cir. 2001) (“[W]e can hardly defer to the state
court on an issue that the state court did not address.”). The
parties do not challenge that determination on appeal, and we
therefore also proceed to review Wright’s ineffective assistance
claims de novo.
We can grant habeas relief only if we identify an error
which had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Frye v. Pliler, 551 U.S. 112, 116
(2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993))
(internal quotation marks omitted); Foxworth v. St. Amand, 570 F.3d
414, 425 (1st Cir. 2009).
To prevail on a claim of ineffective assistance of
counsel, Wright must show both that counsel’s performance was
deficient and that it resulted in prejudice. See Strickland v.
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Washington, 466 U.S. 668, 687 (1984); Shuman, 636 F.3d at 31. If
he falls short on either requirement, his claim fails. See
Strickland, 466 U.S. at 697.
Deficient performance means that trial counsel’s
representation failed to meet “an objective standard of
reasonableness.” Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir.
2010) (quoting Strickland, 466 U.S. at 688) (internal quotation
marks omitted). Counsel’s performance is deficient only if no
competent attorney would have acted as he did. Id. “[C]ounsel is
strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690; see also Harrington v.
Richter, 131 S. Ct. 770, 788 (2011).
Wright also must demonstrate prejudice to show
ineffective assistance of counsel. He must show a “reasonable
probability” that if counsel had acted differently, his trial would
have had a more favorable outcome. Tevlin, 621 F.3d at 66 (quoting
Porter v. McCollum, 130 S. Ct. 447, 453 (2009) (per curiam))
(internal quotation marks omitted).
I. Admission of Turner’s Grand Jury Testimony
Wright’s first ineffective assistance claim is based on
trial counsel’s failure to advance certain specific arguments when
arguing that Turner’s grand jury testimony was inadmissible. We
elaborate. At the time of Wright’s trial, whether a prior
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inconsistent statement made before a grand jury could be admitted
for its probative value was governed by Daye, 393 Mass. at 75, 469
N.E.2d at 495-96. Daye spells out a four-point test: a prior
inconsistent statement made before a grand jury is admissible for
its truth when (1) the statement was made under oath before a grand
jury; (2) the witness could be effectively cross-examined as to its
accuracy; (3) it was not coerced and was more than a mere
confirmation or denial of an allegation by the interrogator; and
(4) other evidence was presented which tended to prove the issue.5
Id.
Wright hones in on Daye’s third and fourth requirements.
He contends that counsel erred by failing to argue the
inadmissibility of Turner’s testimony because it fell short on the
third Daye factor (i.e., because it was a mere confirmation of an
allegation made by an interrogator – the prosecutor who questioned
Turner in front of the grand jury – rather than Turner’s own
statement) and the fourth Daye factor (i.e., the commonwealth
failed to introduce sufficient corroborative evidence).
To be clear, this is not a case in which trial counsel
failed to object at all. Wright’s attorney repeatedly objected to
the admission of Turner’s grand jury testimony. In fact, he filed
5
Although the SJC later reformulated the requirements for
admission of prior inconsistent statements made to a grand jury,
see Commonwealth v. Clements, 436 Mass. 190, 192-93, 763 N.E.2d 55,
57-58 (2002), we review counsel’s performance using the law as it
existed at the time of trial. See Strickland, 466 U.S. at 689-90.
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a five-page opposition to the commonwealth’s motion in limine which
sought to introduce the grand jury testimony. The opposition began
with a summary of Daye, recited the four Daye factors, and
repeatedly cited to Daye. Although the opposition chiefly focused
on state constitutional grounds, it cited to Daye in support of a
request that the court conduct a voir dire before admitting
Turner’s testimony into evidence, a request which the trial judge
granted.
After the voir dire, when the trial court ruled that it
would admit Turner’s grand jury testimony, trial counsel again
cited Daye in his objection. So Wright’s argument is not that
counsel failed to object, but that his objection was not properly
focused on the third and fourth Daye factors. We examine each in
turn.
Turner’s Testimony Was More Than a Confirmation
The third Daye factor precludes the admission of a prior
inconsistent statement made to a grand jury if it is the statement
of the interrogator rather than the statement of the witness.
Daye, 393 Mass. at 75, 469 N.E.2d at 496. “[A] judge should
exercise discretion in admitting a witness’s ‘yes’ or ‘no’ answer
to a leading, fact-filled question posed at the grand jury
proceeding as probative evidence regarding the facts alluded to in
the question.” Id. at 74, 469 N.E.2d at 495. Wright claims that
his trial counsel’s performance was deficient because he did not
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specifically argue that Turner’s testimony was a mere confirmation
of a statement made by the Assistant District Attorney (ADA).6
Turner’s grand jury testimony began with the ADA
eliciting from Turner his name, address, that he had known Wright
for several years, and that he had spoken with Wright on the phone
on May 14, the day of the murder. The ADA then showed Turner his
police statement, had him identify it by his signature, and then
read it into the record.
The ADA asked no leading or fact-filled questions.
Before and after she read Turner’s statement into the record, she
told Turner that he could “change, add, correct or delete”
anything. Turner did not change anything. Instead, he affirmed
the truth of the statement. We have no trouble concluding on these
facts that Turner’s grand jury testimony was his own statement and
not a mere confirmation of a statement made by the ADA.
Trial counsel’s failure to argue against the admission of
Turner’s testimony based specifically on the third Daye factor was
thus not deficient performance under Strickland. See Tevlin, 621
F.3d at 66.
6
Wright also complains that Turner’s grand jury testimony
is flawed because it is based on his police statement, which Turner
signed while exhausted and only after the police told him they
already knew that Wright committed the murder. These were proper
areas of inquiry during Turner’s testimony at trial, but they did
not make the grand jury testimony inadmissible under Daye.
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Corroborating Evidence
The remainder of Wright’s Daye argument fares no better.
He claims that trial counsel erred by not arguing specifically that
Turner’s grand jury testimony was inadmissible under the fourth
Daye factor because it was not supported by corroborating evidence.
Wright contends that the commonwealth was required to introduce
evidence corroborating that he was the caller who confessed to
Turner. On the other hand, the commonwealth claims Daye obligates
it to introduce evidence corroborating Wright’s commission of the
crime. We need not resolve this issue, because the commonwealth
introduced evidence (which we detail below) which sufficiently
corroborated both propositions.
The evidence showed that Wright was seen entering
Anderson’s apartment with her in the early morning on the day she
was murdered, that traces of blood were found in the car he was
driving that night, that he owned shoes of a type consistent with
the bloody shoe print found at the scene of the crime, and that in
his statement to the Delaware police he described the victim in
similar terms as did the person who called Turner. Additionally,
the commonwealth introduced phone records showing that a call was
made from Wright’s sister’s home in Delaware (where Wright was
staying) to Turner’s home on the afternoon in question. Although
Wright and his sister claimed that Wright did not make the call,
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Turner’s aunt testified that he called her that day and asked for
Turner’s phone number.
To perform effectively, trial counsel is not required to
make every possible objection to the admission of evidence, and the
decision not to make this particular argument was within the range
of decisions a competent attorney could make under these
circumstances. See Tevlin, 621 F.3d at 66.
Because Wright has failed to show deficient performance
under Strickland, his ineffective assistance claim fails to the
extent it relies on trial counsel’s failure to address Daye
adequately. See Tevlin, 621 F.3d at 66.
II. Failure to Request a Misidentification Instruction
Wright next complains of his trial counsel’s failure to
request a jury instruction on misidentification. He contends that
such an instruction was necessary for the jury to understand that
the caller who confessed to the murder might not have been Wright.
Clearly Turner’s testimony about the phone confession was
a crucial piece of evidence in the case. Wright claims that Turner
may have misidentified the caller because of pressure from the
police to name Wright and because Turner was exhausted – he had
been in a car accident and slept very little the night before he
signed the police statement. Therefore, Wright argues that trial
counsel’s failure to request a jury instruction on
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misidentification amounted to deficient performance that affected
the outcome of his trial.
Wright cites to United States v. Kavanagh, 572 F.2d 9
(1st Cir. 1978), and to cases from other circuits to support his
argument that a misidentification instruction was necessary. See
United States v. Greene, 591 F.2d 471, 476-77 (8th Cir. 1979);
United States v. Hodges, 515 F.2d 650, 653 (7th Cir. 1975); United
States v. Holley, 502 F.2d 273, 275 (4th Cir. 1974); United States
v. Telfaire, 469 F.2d 552, 555 (D.C. Cir. 1972). These decisions
note the importance of charging the jury on the possibility of
misidentification “in cases where the evidence suggests a possible
misidentification.” See Kavanagh, 572 F.2d at 10. However, these
cases are easily distinguished on the facts, because they all
involve identification of a stranger rather than identification of
a person with whom the witness was well-acquainted. See Greene,
591 F.2d at 473; Kavanagh, 572 F.2d at 10-11; Hodges, 515 F.2d at
651; Holley, 502 F.2d at 274; Telfaire, 469 F.2d at 554-56.
Identification evidence, including voice identifications,
must be “received with caution and scrutinized with care.” United
States v. Angiulo, 897 F.2d 1169, 1204-05 (1st Cir. 1990) (quoting
proposed jury instruction, which the court found to be
substantively correct). These concerns are lessened substantially,
however, when the identification is based on a witness’s pre-
existing relationship with a defendant. See United States v.
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Gilbert, 181 F.3d 152, 163 (1st Cir. 1999) (analyzing admissibility
of voice identification by witnesses familiar with the defendant’s
voice); see also Commonwealth v. Pressley, 390 Mass. 617, 618, 457
N.E.2d 1119, 1120 (1983).
At the time Turner identified Wright as the caller, they
had known each other for more than three years, living in the same
household for part of that time. Although Wright stresses that
their relationship was hostile, that they had never spoken over the
phone, that Turner was exhausted when he received the phone call,
and that Turner eventually expressed doubt about his identification
of Wright as the caller, none of these change the fact that Turner
knew Wright well enough to identify his voice as he had heard
Wright’s voice in person many times. Although by the time of trial
Turner equivocated as to whether he recognized the voice of the
caller, there was enough in the record about his prior contacts
with Wright from which the jury reasonably could infer that Turner
recognized the caller’s voice as Wright’s. But in any event,
Turner testified that he identified the caller as Wright because
the caller said he was “Ed,” and Turner did not know anyone else
with that name.
Jury instructions also must be viewed as a whole, not as
individual provisions in isolation. Estelle v. McGuire, 502 U.S.
62, 72 (1991). We have upheld the refusal to give a
misidentification instruction in a voice identification case when
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the issue was substantially covered in the more general jury
instructions. Angiulo, 897 F.2d at 1205-06. As was true in
Angiulo, the charge in this case included general instructions on
witness credibility and the commonwealth’s burden of proof which
emphasized the requirement that the jury scrutinize all of the
witnesses’ testimony carefully.
Ultimately we need not decide whether trial counsel’s
failure to request a misidentification instruction was deficient
performance because Wright has failed to show a reasonable
probability that it affected the outcome of his trial. See Tevlin,
621 F.3d at 66. If trial counsel had requested a misidentification
instruction, the trial judge would not have been required to give
it because Turner’s identification was based on the caller’s self-
identification and on Turner’s prior relationship with Wright. And
even if the trial court had given such an instruction, Wright has
failed to show a reasonable probability that the jury would not
have convicted him. If the jury had been specifically instructed
to scrutinize identification testimony, most likely he would still
have been convicted based on the strength of the other evidence
against him, including evidence that he had been seen entering
Anderson’s apartment with her on the night she was killed, that
traces of blood were found in the car he drove that night, that a
bloody shoe print at the scene could have been made by his
sneakers, that phone records showed that a call had been made from
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Wright’s sister’s house to Turner’s house that afternoon, and the
similarity between Wright’s description of the victim when he was
arrested and the caller’s description of the victim. Accordingly,
he has failed to show prejudice under the Strickland standard, and
that failure dooms his second ineffective assistance claim.
CONCLUSION
We affirm the district court judgment denying Wright’s
habeas corpus petition.
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