United States Court of Appeals 

For the First Circuit 

No. 14-1400 

ANTHONY MOORE, 

Petitioner, Appellant, 

v. 

THOMAS DICKHAUT, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. F. Dennis Saylor IV, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Barron, Circuit Judges. 

Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien, 

LLP was on brief, for appellant. 

Argie K. Shapiro, Assistant Attorney General, Criminal 

Appeals Division, with whom Maura Healey, Attorney General, was on 

brief, for appellee. 

November 22, 2016 
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HOWARD, Chief Judge. Appellant Anthony Moore filed the 

instant habeas petition seeking to set aside his 2006 Massachusetts 

conviction for unarmed robbery. See 28 U.S.C. § 2254. Moore's 

sole contention on appeal is that the admission of certain 

identification evidence at his trial violated due process. Because 

the Massachusetts Appeals Court's adjudication of this issue did 

not constitute an unreasonable application of Supreme Court 

precedent, we affirm the district court's denial of Moore's 

petition. 

I. 

Moore was convicted in connection with the robbery of a 

Sovereign Bank branch located on Causeway Street in Boston. 

Shortly after Moore's arrest on this charge, law enforcement 

arranged for several bank employees to view a photo array. The 

array included Moore's photograph, as well as seven other photos 

selected by a computerized imaging system for their resemblance to 

Moore. Two witnesses provided a positive identification of Moore. 

About two months later, law enforcement conducted a 

lineup for bank employees. A police officer who was not part of 

the investigation selected seven "fillers" to be included along 

with Moore. Defense counsel attended the lineup and made no 

objection to the process. Four bank employees positively 

identified Moore.

Moore filed a motion seeking to preclude the Commonwealth 
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from introducing evidence of these pre-trial identifications, as 

well as in-court identifications by the same witnesses. After an 

evidentiary hearing, the state trial court denied Moore's motion. 

With respect to the array, the court found that the "photos all 

appear similar enough to each other so that no single individual 

stands out." Along the same lines, the court also concluded that 

the eight individuals in the lineup were "all similar in 

appearance." In connection with both the array and the lineup, 

the court found "that the police did not do or say anything" to 

influence the witnesses to identify Moore. For these reasons, it 

held that the identification procedures were not suggestive and 

allowed the evidence to go to the jury. Ultimately, the jury 

returned a guilty verdict. 

The Massachusetts Appeals Court affirmed Moore's 

conviction, rejecting the claim that the identification procedures 

violated his constitutional rights. It held that those procedures 

were "not so impermissibly suggestive as to give rise to a very 

substantial likelihood of irreparable misidentification." 

Commonwealth v. Moore, 929 N.E.2d 1001, 2010 WL 2773260, at *2 

(Mass. App. Ct. July 15, 2010) (unpublished table decision) 

(citation omitted). The Massachusetts Supreme Judicial Court 

subsequently denied review. See 934 N.E.2d 826 (Mass. Sept. 16, 

2010) (unpublished table decision). 
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The federal district court subsequently denied Moore's 

§ 2254 habeas petition, and we granted a certificate of 

appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22. 

II. 

We review the district court's denial of Moore's 

petition de novo. See Teti v. Bender, 507 F.3d 50, 56 (1st Cir. 

2007). But, like the district court, we must afford a high degree 

of deference to the Massachusetts Appeals Court's decision. 

Indeed, under the Antiterrorism and Effective Death Penalty Act of 

1996 ("AEDPA"), we may grant Moore's petition only if we find that 

the state court's decision "was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States." Williams 

v. Taylor, 529 U.S. 362, 376 (2000) (quoting 28 U.S.C. § 

2254(d)(1)). Because Moore develops no argument that the 

challenged decision was "contrary to" Supreme Court precedent,1 we 

restrict our inquiry to the issue of unreasonable application. 

A state court unreasonably applies federal law where it 

"identifies the correct governing legal rule . . . but unreasonably 

applies it to the facts of the particular state prisoner's case." 

 1 Any argument on this point would, in any event, be 

unavailing. Moore appears to concede that the Massachusetts court 

applied the correct legal standard, and he points to no Supreme 

Court precedent involving facts "materially indistinguishable" 

from those at issue here. Williams, 529 U.S. at 405. 
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Id. at 407. Under this "highly deferential" standard, it is not 

enough for the state court to have reached a decision that is 

"incorrect or erroneous." Teti, 507 F.3d at 56-57. Rather, the 

error must be clear "beyond any possibility for fairminded 

disagreement." White v. Woodall, 134 S. Ct. 1697, 1702 (2014) 

(citation omitted). Critically, state courts do not act 

unreasonably by declining to extend Supreme Court precedent. Id. 

at 1706. Where, as here, the highest state court, namely, the 

Massachusetts Supreme Judicial Court, denies review, we "look 

through to the last reasoned decision" issued by the Massachusetts 

Appeals Court. Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) 

(citation omitted). 

In ruling on Moore's petition, we must also defer to the 

state court's fact-finding, meaning its determination of "basic, 

primary, or historical facts, such as witness credibility and 

recitals of external events." Sleeper v. Spencer, 510 F.3d 32, 38 

(1st Cir. 2007) (citation omitted). This deference extends to 

factual determinations made by a trial court and affirmed on direct 

appeal. See John v. Russo, 561 F.3d 88, 91 n.4 (1st Cir. 2009). 

While the Supreme Court has yet to clarify the relationship between 

the two AEDPA subsections relating to factual findings, see 28 

U.S.C. § 2254(d)(2) and (e)(1), both "express the same fundamental 

principle of deference." John, 561 F.3d at 92 (citation omitted). 

For purposes of this appeal, we accept Moore's position that the 
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challenged factual findings are merely reviewed for reasonableness 

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

(2010); cf. 28 U.S.C. § 2254(e)(1) (establishing presumption of 

correctness that may be rebutted only by clear and convincing 

evidence). 

In an effort to avoid the narrow constraints of AEDPA 

review, Moore suggests that the deferential standards outlined 

above do not apply because his claims were not "adjudicated on the 

merits" in state court. 28 U.S.C. § 2254(d). A claim is 

"adjudicated on the merits" so long as "there is a decision finally 

resolving the parties' claims, with res judicata effect, that is 

based on the substance of the claim advanced, rather than on a 

procedural, or other, ground." Clements, 592 F.3d at 52 (citation 

omitted). In other words, AEDPA requires only "adjudication, not 

explanation." Id. at 55. 

Here, Moore argues that the Massachusetts Appeals Court 

only considered his state constitutional claims and did not 

adjudicate the federal constitutional claims raised in his 

petition. Where a state court is presented with both state and 

federal claims and "does not expressly apply the federal standard 

but resolves the issue under a state law standard that is more 

favorable to defendants," we "presume the federal law adjudication 

to be subsumed within the state law adjudication." Sleeper, 510 

F.3d at 38 (citation omitted); see also Johnson v. Williams, 133 
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S. Ct. 1088, 1096 (2013) ("[I]f the state-law rule . . . is at 

least as protective as the federal standard . . . then the federal 

claim may be regarded as having been adjudicated on the merits"). 

Here, the Massachusetts Supreme Judicial Court has expressly 

described the state standard for due process challenges to 

identification procedures as "more favorable" to defendants than 

the federal standard discussed below. See Commonwealth v. Walker, 

953 N.E.2d 195, 205 n.13 (Mass. 2011). Accordingly, we presume 

that the Massachusetts court adjudicated Moore's federal claims 

and review its decision under AEDPA's deferential standard.2 

III. 

 Moore principally argues that the pre-trial 

identification procedures were impermissibly suggestive because he 

was the only person in the photo array or lineup with a facial 

scar. Moore does not point to any additional physical or other 

features that set him apart from the other participants. We have 

little difficulty concluding that the Massachusetts Appeals Court 

did not unreasonably apply Supreme Court precedent in rejecting 

this claim. 

 The Supreme Court has held that pre-trial 

 2 Moore also suggests that the Massachusetts Appeals Court's 

decision was limited to the photo array and did not consider the 

lineup. This contention is belied by the opinion's express 

acknowledgement that Moore's challenge applied to both 

identification procedures. See Moore, 929 N.E.2d 1001, at *2 n.3. 
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identifications resulting from procedures "so impermissibly 

suggestive as to give rise to a very substantial likelihood of 

. . . misidentification" may offend due process. Simmons v. United 

States, 390 U.S. 377, 384 (1968); see also Neil v. Biggers, 409 

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

subsequent courtroom identifications may be similarly prohibited. 

Simmons, 390 U.S. at 384. But, even where this standard is met, 

the federal constitution does not require automatic exclusion of 

the identification. Rather, "if the indicia of reliability are 

strong enough to outweigh the corrupting effect of the . . . 

suggestive circumstances, the identification evidence ordinarily 

will be admitted, and the jury will ultimately determine its 

worth." Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).3

It bears emphasis that the issue of reliability "comes 

into play only after the defendant establishes improper police 

conduct." Id. at 726. Absent unnecessarily suggestive procedures, 

reliability is ensured through traditional trial protections, such 

as "the presence of counsel at postindictment lineups, vigorous 

cross-examination, protective rules of evidence, and jury 

instructions on both the fallibility of eyewitness identification 

and the requirement that guilt be proved beyond a reasonable 

 3 It is on this point that Massachusetts law diverges from 

the federal standard. Under the state constitution, 

identifications resulting from impermissibly suggestive procedures 

are "per se excluded." Walker, 953 N.E.2d at 205 n.13. 
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doubt." Id. at 721; see also United States v. Melvin, 730 F.3d 

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

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

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

present case, for the reasons discussed below, the Massachusetts 

Appeals Court reasonably concluded that the procedures used were 

not impermissibly suggestive. Accordingly, we need not consider 

the reliability of the identifications. 

The Supreme Court has applied its rule against 

suggestive identification procedures to restrict the "practice of 

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

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

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

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

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

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

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

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

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

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

also increased where witnesses are shown "the pictures of several 

persons among which the photograph of a single such individual 

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

U.S. 440, 442-43 (1969) (holding that series of identification 
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procedures, including a three-person lineup where the defendant 

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

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

and a third lineup, was impermissibly suggestive). 

The facts of the present case are far removed from these 

Supreme Court precedents. Indeed, rather than a showup or 

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

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

The Massachusetts trial court expressly found that all of the 

participants generally had a similar appearance, and Moore does 

not seriously challenge this finding on appeal. With respect to 

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

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

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

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

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

scar "is a characteristic which is difficult to replicate in 

individuals who otherwise resemble the defendant." Again, Moore 

makes no effort to challenge this factual determination. Indeed, 

a scar is different than other potentially distinguishing features 

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

accessories). While the police could conceivably have made efforts 

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

the reliability of the identification by artificially altering 
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Moore's facial features. In any event, we need not opine on the 

permissibility or advisability of such precautions. For present 

purposes, it suffices that the state court reasonably concluded 

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

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

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

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

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

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

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

lineup was admissible even where the defendant stood out because 

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

Moore relies almost exclusively on United States Court 

of Appeals decisions to argue that his facial scar rendered the 

identification procedures impermissibly suggestive. As an initial 

matter, to the extent these lower federal court rulings stray 

beyond the applicable Supreme Court precedents, they are 

insufficient to demonstrate an unreasonable application of federal 

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

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

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

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

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

and was the only person whose "sagging belly" (matching the 
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witness's description) was shown); Raheem v. Kelly, 257 F.3d 122, 

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

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

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

Moore's other contentions are meritless. First, he 

argues that the identification procedures were unduly suggestive 

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

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

inclusion in two photospreads . . . is not constitutionally 

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

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

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

Moore points to evidence that the police described the array to 

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

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

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

Third and finally, Moore contends that the identifications were 

impermissibly suggestive because he was number six in both the 

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

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

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

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

convince us that this determination was unreasonable. 
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IV. 

For the foregoing reasons, we AFFIRM the denial of 

Moore's § 2254 petition.