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. e du/thir dc ir c uit_2001/137Filed June 22, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-5429

CLARENCE MOORE, Appellant

v.

WILLIS MORTON, ADMINISTRATOR;
PETER G. VERNIERO, ATTORNEY GENERAL

OF THE STATE OF NEW JERSEY

On Appeal from the United States District Court for the District of New Jersey
D.C. Civil Action No. 97-cv-02087 (Honorable Stephen M. Orlofsky)

Argued September 16, 1999

Before: SCIRICA, RENDELL and GREENBERG, Circuit Judges

(Filed: June 22, 2001)

PAUL J. CASTELEIRO, ESQUIRE (ARGUED)
86 Hudson Street Hoboken, New Jersey 07030

Attorney for AppellantNANCY A. HULETT, ESQUIRE

(ARGUED) Office of Attorney General of
New Jersey Department of Law & Public Safety Division of Criminal Justice, Appellate Bureau
P.O. Box 086 Richard J. Hughes Justice Complex Trenton, New Jersey 08625

Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Clarence Moore, who was convicted of rape and robbe ry and sentenced as a persistent offender to life impr isonment with twenty-five years of parole ineligibility, app eals from the denial of his petition for a writ of habeas cor pus under 28 U.S.C. S 2254. The principal issue at trial was the identity of the rapist. The principal evidence was the victim's post-hypnotic identification. The state pr osecutor made certain improper arguments during jury summati on which were addressed by the trial judge with curati ve instructions. The issue on appeal is whether these improper arguments deprived Moore of his right to a fair tri al.

I.

On March 5, 1987, a jury convicted Moor e of second degree burglary, second-degree r obbery, robbery wi th intent to commit aggravated sexual assault, and thr ee cou nts of aggravated sexual assault. These essential facts we r e established at Moore's trial.

On January 14, 1986, some time after 1:20 a. m., 25- year-old M.A. was viciously assaulted by a m an in the bedroom of her cottage in Somers Point. M.A. went to bed that night only to be awakened by a male who grabbed her by the neck. The male demanded m oney,

2and M.A. removed $8 from her purse and gave it to

him. When M.A. could produce no more money, the man became angry. He ordered her to undr ess . Despite
the man's assurance she would not be hurt if she did as she was told, the man penetrated her anal ly after she complied with his directions to roll ove r on her

stomach and then kneel on her hands and knee s. The man then ordered her to roll over and he pen etrated her vaginally. He then forced her to per for m fellatio on him until he ejaculated. Still angered by la ck of money, the man forced her to again perfor m oral se x until he
achieved an erection. He then order ed her t o kneel on
the bed and "shake" her rear in the air whil e someone outside watched. He warned her if she did no t do this "he would come back and do it again or kill" her. M.A.
remained in her bed for four hours fear ful the man was
still in the house.

Finally, she arranged to have the police cal led and, when the police arrived, M.A. described her attacker . She described him as a black male, about 5'8 " to 5'10" tall, late twenties to early thirties, very muscular and strong. . . . She also said her attacker had been wearing blue jeans. Further, she described h im as having some facial hair on the sides of his face.

While the bedroom was dark, there was enough outside light "to see a face." Also, although she wa s not wearing her contact lenses that corrected he r nearsightedness, she stated the attacker was "very close" to her, close enough for her to see h im and his face . . . . However, M.A. testified she cou ld see without her contacts, that she had driven without th em, and her vision did not prevent her from seeing t hings close

to her.

When M.A. could not give the police composit e artist sufficient information to develop a composit e sketch, she suggested hypnosis, thinking it "might h elp[her] remember, in more detail, his face." With th e aid of hypnotically enhanced memory, she could vivi dly r ecall
her attacker's facial features. She ther eaf ter was able to positively identify the defendant as her assailant
both in court and on three occasions in out- of-court

3photographic arrays. She described the hypno tic

enhancement as making her attacker's face "m uch
clearer" with "the features . . . more detai led." She also testified she initially could not positively r ecognize her assailant without the hypnosis. There is not hing in the record to suggest either the police or the d octor assisting the hypnosis in any way suggested what the assailant might look like.

As a result of the hypnosis, M.A. also r eca lled her assailant wore a tan suede jacket with dirt ar ound the pockets. A subsequently executed search warr ant at defendant's residence turned up a tan suede sweater jacket with pockets along with several pairs of blue jeans.

State v. Moore, 641 A.2d 268, 270-71 (N.J. App. Div . 1994) ("Moore II") (alterations in original). At trial, M .A., a Caucasian woman, testified and identified the jacke t as the one worn by her attacker.

A portion of the trial consisted of expert testimon y on hypnosis.1 The State's witness, Dr. Samuel Babcock, justified his methodology and maintained that M.A.' s memory was enhanced through hypnosis.2 Defense witn ess Dr. William A. Miller testified about the shortcomi ngs of using hypnosis to enhance a victim's memory.

___________________________________________________ ______________

1. Under New Jersey law, "testimony enhanced throug h hypnosis is
admissible in a criminal trial if the trial courtfi nds that the use of hypnosis in the particular case was reasonably like ly to result in recall comparable in accuracy to normal human memory . . . . The trier of fact must then decide how much weight to accord the hypn otically refreshed testimony." State v. Hurd, 432 A.2d 86, 95 (N.J. 19 81).

2. As required under State v. Hur d, a pre-trial he aring was held to determine the admissibility of M.A.'s testimony. 43 2 A.2d at 95. The Appellate Division affirmed the trial court's rulin g that the testimony

was admissible, explaining that it was "satisfied the u se of hypnosis was appropriate for the victim's fear-induced traumatic neurosis, . . . and that the trial judge's findings as to the pr ocedur es employed and adherence to the Hurd requir ements were supported by substantial
credible evidence in the record." Moore has not rai sed a federal constitutional challenge, in either state or federa l court, to the
admission at trial of M.A.'s post-hypnotic testimony.

4Clarence Moore, an African-American male , did not

testify. His wife Cheryl Moore, a Caucasian woman, testified
on his behalf. Mrs. Moore testified that she and he r husband lived about forty-five minutes from M.A.'s home. Although not recalling the night of the rape in par ticular,
Mrs. Moore testified she would have noticed if her husband were missing for a period of two and a half to thre e hours in the early morning hours. She testified her baby suffered
from a condition called "failure to thrive" which r equired frequent nursing and that Mr. Moor e assisted her i n nursing the baby. Mrs. Moore also testified that at the time of the rape, she was suffering from mastitis, a typ e of
breast infection.

The state trial court observed, "[T]he only r eal q uestion in this case is that of identity." There was no disput e that the victim was sexually assaulted and robbed, and the o nly "real question" for the jury was whether Moore was the culprit. As the trial court found, the answer tur n ed on "whether or not the [hypnotically] enhanced or refr eshed recollection [of the victim] [wa]s of sufficient re liable character and with such probative value that the ju ry should believe [the victim] beyond a r easonable do ubt."

The trial lasted more than two weeks and at the conclusion, both the defense and the prosecution de livered
summations that lasted two to three hours. In his summation, the prosecutor sought to explain why Mrs

. Moore's testimony buttressed the State's case stati ng, "Based on the testimony of Cheryl Moore, the case i s stronger than ever, that the odds ar e that this de fendant is the perpetrator [and] . . . you have mor e reason t o convict Clarence McKinley Moore now that she has testified than ever." The prosecutor noted that ther e were in fac t "three important things" that the jury should lear n from Mrs. Moore's "appearance" as a defense witness.

Here's where I ask you to really concentrate on my words because if you misunderstand what I'm saying right now, I am going to feel real bad and f oolish, and you are too. So let's all understand it like adults.

Race has nothing whatsoever to do with this case, right? Right. We all know that the race of t he people

5involved does not at all dictate whether he' s guilty or

anything like that. I mean, let's hope that we all feel that way, whether we are white or black or a nything. Okay? So let's clear the air that the statem ent that I'm about to make has nothing whatsoever to do - - and I hope this machine hears this-- has nothing w hatsoever
to do with race.

This has to do with selection, okay? Here's what I mean. All of us select people in life to be with based on whatever reason, whether it's people to marr y, whether it's friends, whether it's people to associa te with, whether it's business people. We all make ch oices in life that lead us to relationships with othe rs, and those choices may or may not be significant.

Let me show you what I mean. What if you as an individual, whether you're male or a female, decide in your life that you want to live your life wi th a blonde? You know, you see all of these ads about blo ndes have more fun and this and that and, again, wheth er you are male or female or whatever--it can work both ways --and so you become interested in being with blondes because you prefer them. Right? Gentlemen pr efer

blondes.

Well, that can be seen, can't it, because ma ybe the people that you choose to date or marry or b e with all appear to be blondes or it might be redheads or it might be green hair. You know, nowadays I gu ess green is one of the popular colors. It could be an ything. You could substitute any color hair or you could substitute any particular trait. Right? It needn't even be color of hair. It could be the color of eyes. It coul d be a person who likes tall people. I think whoever I sho uld be with
should be six foot four. It would make me fe el terrific to be with a woman six foot four, or vice ve rsa, a woman could think of a man like that.

You see my point? It's not a statement of ra ce; it's a question of choice, selection of who you mig ht want to be with, whether it is as a mate or a boyfri end or girlfriend or victim. How about that? How ab out that some people might choose a victim according to the

6way they look, whether they be blonde or blu e or

anything else?

So I ask you this: What did we learn when we found out that Cheryl Moore was the wife of the de fendant? I suggest to you in a nonracist way that wha t we found out was that Clarence McKinley Moore made a choice
to be with a Caucasian woman --

Moore's counsel objected at that point and moved fo r a mistrial arguing the reference to race was irreleva nt, inflammatory and prejudicial.3 The trial court deni ed the motion for a mistrial but admonished the prosecutor at
sidebar not to refer to race.4 The court sustained the objection and instructed the jury:

___________________________________________________ ______________

3. At sidebar, Moore's counsel ar gued,

Your honor, I'm going to ask for a mistrial because if there's no reason that race should be brought into this thing at all, there's nothing probative because of the fact that h e's married to a white woman that would suggest that he would then necessarily go out
and attack and assault a white woman.

That is precisely what [the prosecutor] is t rying to infer here,

that
because he's married to a white woman and be cause a white woman has been assaulted, that that necessarily wa s the selection process
that went on in his mind because he couched the question in terms
of choice of victims.

There is absolutely no reason to inject race in this case. I stayed away from it, and up until this point in tim e everybody stayed away from it. The comments that were just elicite d by [the prosecutor],
it's only done for one purpose entirely, and that 's to inflame this jury and to improperly put before them the fact o f race as an issue in terms of how this defendant, if in fact he w as the perpetrator,
selected the victim.

There was no testimony as to that. Ther e wa s no testimony that he
has assaulted other white victims before or anything of that
nature, and all of the sudden, only because his wife is white, [the prosecutor] is now trying to infer to this j ury that this is a selection, that that is something probative that they c an use in making a determination, and I mean, it has no part in this trial. It is highly prejudicial, has no purpose for being other than the purpose that[the prosecutor] is trying to do, an impr op er inference to this

jury,
and I would ask the court to declare a mistr ial. 4. At sidebar, the trial judge stated:

I will instruct this jury that they are not to consider for any

purpose

7Ladies and gentlemen of the jury, I am order ing you to

disregard what the prosecutor said in refere nce to the testimony, the appearance of Mrs. Moore, she being a white person, a Caucasian, and Mr. Moor e be ing a black person, and that the reason, the selec tive process, was that he did this aggravated ass ault because he selected a white or Caucasian per son. Disregard that. That's an unfair and unr eas onable inference to be drawn from the testimony and I'm convinced that it's not proper argument to t he jury.

The prosecutor then argued:

I say to you that there are two other r easo ns why you should find that the State's case gets str o nger with the testimony of Cheryl Moore. We lear ned that on December 4, 1985, the defendant's wife gives birth to a child. She further tells you that from tha t time on up until the time he's arrested, she's disabled . I mean, she has bleeding breasts.

I ask you to consider that and infer that th at would give believability to the fact that during t hat period of time, that is, on January 14, 1986, right in the middle
of the time after the birth of the child and the disability of the wife, I ask you to infer that that is a period of time when this individual would have his gre atest need

for sexual release.

Moore's counsel objected and renewed his motion for a mistrial. He noted that there was no evidence in th e record

___________________________________________________ ______________

any suggestion of any racial impropriety, th ey are not to decide
this matter on prejudice, bias or . . . anything to do with race. I am

also going to tell this jury to disregard that ar gument and I'm going to tell the prosecutor that you are not to r ef er to that area.

I am convinced that summation is to argue th e facts that were
adduced from the witness stand. I am also co nvinced that it is not
a reasonable inference to draw from the fact that this defendant is married to a white women that he selectively made that decision to rape or rob, [and] . . . sexual[ly] assault, a white woman. I don't
think that's a reasonable inference that can be drawn from the selective process, and I'm going to so instr uct the jury.

8"to even suggest that [Moore] couldn't have had sex ual

relations with" his wife during the period of time in question. The trial court denied the motion for a m istrial, and repeated its warning to the pr osecutor "to sta y away from the area of white/black because I don't think that's in the case."5 The court sustained the objection to th e inference and instructed the jury:

Ladies and gentlemen of the jury, I'm going to or der you to disregard that last statement of the prosecutor.
I don't believe a reasonable inference can b e drawn in that vein, that because there was not access --and I'm

not even sure there was--but because Mrs. Mo ore testified that she had this mastitis, that t hat would give the defendant that impetus to do someth ing. That's an improper inference. You are to dis regard

that.

Undeterred, the prosecutor concluded with a third improper remark6 to the jury:

___________________________________________________ ______________

5. At sidebar, the trial judge stated:

I want you to stay away from the areas of wh ite/black because I don't think that's in the case; two, the rea son that he could possibly rape some woman because of the wife or anyth ing dealing with the reason the wife-which would give reason fr o m him to do something because he was unable to satisfy his needs a t home or anything in that vein. I don't think it's part of this c ase.

6. Prior to this third remark, the pr osecutor told the jury that M.A. had been victimized beyond her rape by the investigativ e and trial process. Defense counsel objected to this comment and also o bjected to a perceived implication that Moore did not testify in his defense. After another sidebar conference, the trial judge issued the following curative
instruction:

Ladies and gentlemen of the jury, there has been some reference to the fact that [the defendant] only called tw o defense witnesses. I want to tell you -- and I'll tell you in the general context of my charge later on -- that the defendant is und er an obligation to do nothing. The defendant need not call any wit nesses.

I indicated that to you earlier on when we f irst got here. The defendant can stand mute and not say anythin g and you are not to take any unreasonable -- any inference from that at all.

9The last thing I have to say is that if you don't believe

[M.A.] and you think she's lying, then you'v e probably perpetrated a worse assault on her.

The court dismissed the jury for the day, advising counsel it would charge the jury the next mor ning. Immediately thereafter, Moore's counsel raised an o bjection and renewed his motion for a mistrial, ar guing the comment regarding "perpetrating a worse assault" on M.A., particularly when viewed in connection with the prosecutor's earlier comments, requir ed a mistrial

.

The trial court denied the motion for a mistrial, explaining the comment about "perpetrating a worse assault" on M.A. was "tangentially dealing with cre dibility." But the court informed counsel that, "in or der to insure fairness," it would nevertheless instruct the jury to disregard the remark. The court issued the followin g instruction the next morning:

Before I [charge you], I want to tell you I' m going to order you--I generally don't order people. I 'm going to order you to disregard that last r emark mad e by [the prosecutor] to the effect that the last thin g I have to say to you is that if you don't believe her and you think she's lying, then you're probably perpetrati ng a worse assault on her.

Disregard that remark. I have deter mined th at's improper and you are not to consider that fo r any purpose in this case.

The court charged the jury without objection. The j ury returned a verdict of guilty on all counts. At sent encing, the trial court granted the State's motion to tr eat Mo ore as a "persistent offender," and imposed an extended term of life imprisonment with twenty- five years of par ole ine ligibility. See N.J. Stat. Ann. S 2C:44-3a (W est 2001). Moore' s sentence was predicated on a 1968 conviction for ca rnal abuse, eight convictions in 1970 for burglary, and a 1976 conviction for distribution and possession with the intent to distribute marijuana. These prior convictions, alon g with his immediate conviction for burglary, r obbery and three separate counts of aggravated sexual assault, place d him under New Jersey's persistent offender category. St ate v.

10Moore, A-1910-87Ta, slip op. at *7-8 (N.J. Super. C t. App.

Div. April 1, 1991) ("Moore I").

On direct appeal to the Appellate Division, Moore, now represented by the public defender , claimed among other things, that "the prosecutor's summation exceeded t he bounds of propriety making it impossible for the de fendant to receive a fair trial." Id. at *2. In support, Mo ore cited the
references in the state's summation about the "sele ction process," the "need for sexual release," and the re mark about "perpetrating a worse assault on the victim." The Appellate Division rejected Moore's claim on the me rits. Although it found the prosecutor's "outrageous cond uct violated ethical principles" and "showed a disregar d of the obligation of the prosecutor to play fair and see t hat justice is done," the Appellate Division ruled that, within the context of the trial, the trial judge's "for ceful" instructions to the jury cured the harm that was done. Id. at *4 . Moore received new counsel from the public defender's off ice, and filed a petition for certification to the New Jerse y Supreme Court presenting his due process claim and addition al allegations of prosecutorial misconduct. The New Je rsey Supreme Court declined review, and denied Moore's m otion
for reconsideration.

In 1992, still represented by the public defender w ho filed the petition for certification, Moore filed a motio n for state post-conviction review claiming, inter alia , he wa s denied his Sixth Amendment right to effective assistance o f counsel on direct appeal because counsel failed to raise due process claims resulting from the following allegat ions of prosecutorial misconduct: (1) improper r eference t o matters outside the evidence and stating his personal opini on on the veracity of witnesses and the defendant's guilt ; (2) misstating the law and diluting the burden of proof by informing the jury that reasonable doubt meant "the odds are" the defendant did it; and (3) disparaging and ridiculing the defense and defense counsel. The trial court, w ithout holding an evidentiary hearing, denied the petition as procedurally barred and without merit. On appeal, t he Appellate Division highlighted some of the pr ocedu ral infirmities, but chose to reject Moor e's claim on the merits. The Appellate Division ruled that, even if Moor e's counsel

11had properly raised every instance of alleged prose cutorial

misconduct on direct appeal, it would have conclude d that Moore had a fair trial, and was not denied ef fecti ve assistance of counsel. Moore II, 641 A.2d at 268. T he New Jersey Supreme Court denied Moore's petition for
certification.

In April 1997, no longer represented by the public defender's office, Moore timely filed a counseled h abeas corpus petition under 28 U.S.C. S 2254 in the Unite d States District Court for the District of New Jersey. He r aised the following claim:

The deliberate and continuous misconduct by the prosecutor which included racist rationales to justify the conviction of the African-American petit ioner of raping a white woman, statements that reason able doubt meant that the `odds are' that the pet itioner committed the offense, statements that defen se counsel didn't care about justice and was only tryin g to `sell' reasonable doubt and a warning to the jury t hat if they acquit the petitioner they will have perpetr ated an assault upon the victim, worse than her rape , deprived petitioner of his right to a fair trial.7

After reviewing the record, and finding the prosecu tor's conduct "offensive and unprofessional," the Distric t Court held that "the Appellate Division's opinions on dir ect appeal

___________________________________________________ ______________

7. In this appeal we will only address Moor e's fed eral due process claim with respect to the instances of prosecutorial misc onduct that he raised at each level of review before the New Jersey court s (i.e. the prosecutor's "selection" argument, the "sexual r elease" argumen t, and the comment regarding "perpetrating a worse assault on the vict im"). The remaining factual predicates were not fairly pr esented to th e New Jersey courts in support of his due process claim. Therefor e to the extent Moore seeks relief based on other allegations of pr osecutorial misconduct, these claims are unexhausted, and now procedurally defaul ted. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("Before a feder al court may grant habeas relief to a state prisoner, the prisoner mus t exhaust his remedies in state court."); McCandless v. Vaughn, 172 F.3d 2 55, 261 (3d Cir. 1999) (to "fairly present" a federal constitutional claim, a petitioner

must present the claim's "factual and legal substance to the state courts in a manner that puts them on notice that a federal clai m is being asserted") (citing Anderson v. Harless, 459 U.S. 461 (1982)).

12and on post-conviction relief clearly consider ed t he weight

of the evidence in evaluating Moore's claim." State v. Moore, No. 97-2087, slip op. at *17 (D.N.J. Aug. 12, 1998) ("Moore III"). The District Court concluded it was not an "unreasonable application of clearly established fe deral law" for the Appellate Division to hold the evidence cou ld support the jury's verdict and "the pr osecutor's c onduct,
considered within the context of the entir e trial -- including the judge's curative instructions, the evidence and the correct jury charge -- did not `infect the trial wi th unfairness.' " Id. at *18 (citing 28 U.S.C. S 2254( d)(1) (as amended by the Anti-Terrorism and Ef fective Death Penalty Act)). The District Court noted,

Were I sitting as an Appellate Court judge o n direct review of the trial below, I might well have concluded that the prosecutor's misconduct deprived Mo or e of his right to a fair trial. Congress, however , h as imposed a much more demanding standard of review on fe deral habeas corpus courts. The Appellate Division considered the issue presented to me on two occasions
and concluded that Moore was not denied a fa ir trial. After a complete review of the trial recor d , I cannot conclude that the state court's analyses wer e "an unreasonable application of clearly establis hed federal

law."

Id. at *19.

II.

The District Court had jurisdiction under 28 U.S.C. S 2254(a) and granted a certificate of appealabilit y under 28 U.S.C. S 2253. We have jurisdiction under 28 U.S.C. SS 1291, 2253. Because the District Court r elied e xclusively
on the state court record and did not hold an evide ntiary hearing, our review of its decision is plenary. Har tey v. Vaughn, 186 F.3d 367, 371 (3d Cir . 1999), cert. de nied, 528 U.S. 1138 (2000).

III.

A state prisoner's habeas corpus petition "shall no t be granted with respect to any claim that was adjudica ted on

13the merits in State court proceedings unless the

adjudication of the claim-- (1) resulted in a decis ion that was contrary to, or involved an unreasonable applic ation of, clearly established Federal law, as determined by t he Supreme Court of the United States." 28 U.S.C. S 2254(d)(1). "[S]ection 2254(d) fir mly establishe s the state court decision as the starting point in habeas r ev iew." Matteo v. Superintendent, SCI Albion, 171 F .3d 877 , 885 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999).

In Williams v. Taylor, 529 U.S. 362, 404-06 (2000), the Supreme Court held that "contrary to" and"unreasona ble application of " have independent, if overlapping m eanings. To hold a state court decision is "contrary to . . . clearly established Federal law, as determined by the Supre me Court of the United States," a federal court mustfi nd the state court arrived "at a conclusion opposite to th at reached by [the Supreme] Court on a question of law," or th at the state court confronted facts "materially indistingu ishable from a relevant Supreme Court pr ecedent" but arriv ed "at a result different from" that reached by the Suprem e Court. Id. at 404-09. The Court explained that "a run-of-t he-mill state-court decision applying the correct legal rul e from our cases to the facts of a prisoner's case would notfi t comfortably within S 2254(d)(1)'s `contrary to clau se,' " but that, as an example, a state court decision applyin g a burden of proof other than that required by Supreme Court precedent would be contrary to clearly established federal law as determined by the Supreme Court. Id. at 406.

Even if a state court judgment is not contrary to Supreme Court precedent, it may be an unr easonable application of that precedent. Id. at 407-08. To ho ld that a state court's decision is an unreasonable applicati on of "clearly established Federal law, as deter mined by the Supreme Court of the United States," we mustfind th at (1) the state court identified "the correct governing l egal rule from [the Supreme] Court's cases but unreasonably applie[d] it to the facts" of the particular case, or (2) the state court unreasonably extended or failed to exte nd a legal principle from the Supreme Court's precedent. Id. at 407. "[A] federal habeas court making the`unreasona ble application' inquiry should ask whether the state c ourt's

14application of clearly established federal law was objectively

unreasonable." Id. at 409. The federal court "may n ot issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable." Id. at 411.

"[C]learly established Federal law, as deter mined by the Supreme Court of the United States" r efers to Supr eme Court "holdings, as opposed to the dicta," as of th e time of
the relevant state court decision.8 Id. at 412. Su preme

___________________________________________________ ______________

8. In determining whether a state court unr easonab ly failed to apply federal law, the Supreme Court instructed,

[T]he "unreasonable application" inquiry sho uld ask whether the state court's application of clearly establi shed federal law was objectively unreasonable. The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact tha t at least one of the Nation's jurists has applied the relevant fe deral law in the same manner the state court did in the habeas pet itioner's case.

* * *

The term "unreasonable" is no doubt difficul t to define. That said,
it is a common term in the legal world and, acc or dingly, federal judges are familiar with its meaning. For purposes of today's opinion, the most important point is that an unreasonable application of federal law is different from an incorr ect applicat ion of federal law.

Williams, 529 U.S. at 409-10 (emphasis in original)

.

In interpreting the Anti-Terrorism and Effective De ath Penalty Act ("AEDPA") in a different context we recently stated , "We find no
indication that AEDPA eliminated the r ole of the l ower federal courts in interpreting the effect of Supreme Court pronouncem ents." West v. Vaughn, 204 F.3d 53, 62 n.10 (3d Cir. 2000) (discus sing traditional retroactivity analysis in light of AEDPA). Similarl y in Matteo, 171 F.3d 890, we held,

[A]lthough AEDPA refers to "clearly establis hed Federal law, `as determined by the Supreme Court of the Unite d States,' " (citation omitted), we do not believe federal habeas c ourts ar e precluded

from considering the decisions of the inferior fe deral courts when evaluating whether the state court's applica tion of the law was15Court precedent which would have been consider ed a n "old

rule" under Teague v. Lane, 489 U.S. 288 (1989), is also "clearly established Federal law, as deter mined by the Supreme Court of the United States."9 Id.

IV.

With this standard of review in mind, we will exami ne Moore's claims that the prosecutor's summation depr ived
him of a fair trial.

A.

The conduct of the trial, including closing ar gume nts, is regulated under the sound discretion of the trial j udge. Herring v. New York, 422 U.S. 853, 862 (1975). But prosecutorial misconduct may "so infect[ ] the tria l with unfairness as to make the resulting conviction a de nial of due process." Donnelly v. DeChristofor o, 416 U.S. 637, 643

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reasonable. See O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) ("To the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue.") . . . . [I]n certa in cases it may be appropriate to consider the decisions of inf erior federal courts as helpful amplifications of Supreme Court pr e cedent.

9. In Hameen v. State of Delaware, we recently appl ied the Supreme Court's Williams test. 212 F.3d 226 (3d Cir. 2000), cert. denied, 121

S.Ct. 1365 (2001). In Hameen we determined the Delaware S upreme Court's application of a retroactive amendment to the state death penalty law
was not a violation of the Ex Post Facto Clause of the United States Constitution because it was not "contrary to" clear ly established federal law. In coming to this determination we detailed at length the Supreme Court's ex post facto precedent and stated we"simpl y cannot find . . . the decision of the Supreme Court of Delawar e . . . contrary to any [of these cases]. . . . In the circumstances, if we fou nd an ex post facto violation here, we surely would be unfaithful to ou r obligations under the AEDPA." Id. at 246. After reviewing Supreme Court j urisprudence in this
area we also determined there was"no basis to hold that the Delaware Court unreasonably applied the Supreme Court's ex p ost facto cases to the facts of this case or unreasonably r efused to extend ex post facto principles to this case." Id. (citing Williams, 529 U.S. 362).

16(1974). Such misconduct must constitute a " `failur e to

observe that fundamental fairness essential to the very concept of justice.' " Id. at 642 (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Where "speci fic guarantees of the Bill of Rights are involved,[the Supreme] Court has taken special care to assure that prosecu torial conduct in no way impermissibly infringes them," id . at 643, but the test remains the same. See Dar den v. Wainwright, 477 U.S. 168, 182 (1986), reh'g denied, 478 U.S. 1036 (1986).

In Donnelly, a first-degree mur der prosecution, th e Court addressed an improper remark by a state prosecutor during jury summation. The trial court later gave the foll owing curative instruction as part of the jury char ge:

Closing arguments are not evidence for your consideration . . . . Now in his closing, th e District Attorney, I noted, made a statement: "I don' t know what they want you to do by way of a verdict . They said they hope that you find him not guilty. I quite frankly think that they hope you find him gu ilty of something a little less than first-degree mu r der." There is no evidence of that whatsoever, of course , you are instructed to disregard that statement made by the District Attorney. Consider the case as thou gh no such

statement was made.

Id. at 641.

The Supreme Court rejected the defendant's claim fo r federal habeas relief, finding that an "examination of the entire proceeding" did not support the contention t hat the "prosecutor's remark . . . by itself so infected th e trial with unfairness as to make the resulting conviction a de nial of due process." Id. at 643. The Court noted that, alt hough the prosecutor's statement was improper , it was no t so prejudicial that its effect could not be mitigated by a curative instruction. Finding the trial court had i ssued a "strong" instruction, twice stating the prosecutor' s arguments were not evidence and dir ecting the jury to disregard the offensive statement in particular, th e Court held any prejudice had been cured. Id. at 643-44. The Court further explained the prosecutor's comment wa s

17"admittedly an ambiguous one," id. at 645, and the case

was not one "in which the prosecutor's r emarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a de nial of that right." Id. at 643 (citing Griffin v. Californ ia, 380 U.S. 609 (1965)).

In Darden, the prosecutor made several improper remarks during closing argument, including using de fense
counsel's term "animal" to refer to the defendant a nd making "several offensive comments r eflecting an e motional
reaction to the case." 477 U.S. at 180 & nn. 9-12. The state jury convicted the defendant of murder and assault with
intent to kill and recommended a death sentence. Th e Supreme Court affirmed the denial of the defendant' s federal habeas petition. Although the Court found t he closing "deserve[d] the condemnation it has receive d from every court to review it," id. at 179, the Court co ncluded that, when viewed in context, the comments "did not manipulate or misstate the evidence, nor . . . impl icate other specific rights of the accused." Id. at 182. The Court noted the trial court had "instructed the jur ors s everal
times that their decision was to be made on the bas is of the evidence alone, and that the arguments of counsel w ere not evidence." Id. Moreover, the Supreme Court found "[ t]he weight of the evidence against petitioner was heavy ; the overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges, .. . red uced the likelihood that the jury's decision was influenced by the argument." Id. (internal quotes omitted).

To the extent that we may discern, ther efore, Supr eme Court precedent counsels that the reviewing court m ust examine the prosecutor's offensive actions in conte xt and in light of the entire trial, assessing the severity o f the conduct, the effect of the curative instructions, a nd the quantum of evidence against the defendant. Ther e a re "some occurrences at trial [that] may be too clearl y prejudicial for . . . a curative instruction to mit igate their effect."10 Donnelly , 416 U.S. at 644; cf. Bruton v . United

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10. Other courts of appeals have set forth tests fo r determining whether prosecutorial misconduct violates a defendant's rig ht to due process.

18States, 391 U.S. 123, 135 (1968) (admission of

codefendant's inculpatory confession too prejudicia l to be cured through jury instruction). In making this determination, Supreme Court precedent requires the reviewing court to weigh the prosecutor's conduct, the effect of the curative instructions and the strength of th e evidence. Darden, 477 U.S. at 182; Donnelly, 416 U. S. at
163.

B.

1.

We now examine whether the Appellate Division's judgment was contrary to clearly established federa l law as determined by the Supreme Court of the United State s or an unreasonable application of federal law as deter mined by the Supreme Court of the United States. Williams , 529 U.S. at 404-09. The Supreme Court has noted that in addressing whether or not prosecutorial misconduct has denied a defendant of a fair trial, "the pr ocess o f constitutional line drawing . . . is necessarily im precise." Donnelly, 416 U.S. at 645. Here, the New Jersey App ellate Division examined each of the prosecutor's challeng ed arguments and, although finding them impr oper, hel d that when examined in light of the entire trial and the trial court's curative instructions, Moore had not been d eprived of a fair trial. This was the correct analysis unde r Supreme Court precedent. Darden, 477 U.S. at 183; Donnelly, 416

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See, e.g., United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995) (examining severity of misconduct, curative instruc tions and evidence); United States v. Capone, 683 F.2d 582, 585 (1st Cir . 1982) (looking at severity of conduct, whether it was purposeful, ef fect of curative instruction, and strength of evidence). Some courts have also discussed "incurable errors." See, e.g.,Floyd v. Meachum, 907 F.2d 347, 356 (2d Cir. 1990) (granting habeas petition under pr e-AED PA standard in part because prosecutor's remarks that defendant was a l iar and her repeated
references to the Fifth Amendment wer e incurable e rror under Donnelly). But under Williams, 529 U.S. 362, we must determine whether the reviewing courts unreasonably applied federal law a s determined by the Supreme Court.

19U.S. at 163. Furthermore, because we have found no

Supreme Court cases with facts "materially indistinguishable" from those at hand, we hold the state court's decision was not contrary to clearly establ ished federal law. Williams, 529 U.S. at 404-09.

2.

Whether the Appellate Division unreasonably failed to apply clearly established federal law as deter mine d by the Supreme Court is a more difficult question. The App ellate
Division twice concluded that there was sufficient evidence to support Moore's conviction. See Moor e I, slip o p. at *11 ("In ruling on the motion for a new trial the trial judge made a careful analysis of the evidence with r espe ct to the ability of the victim to have seen and identify her assailant. An examination of the record fully substantiates hi s recital and satisfies us that the conviction is supported b y substantial credible evidence . . . ."). Specifical ly addressing the credibility of M.A.'s post-hypnotic identificat ion, the Appellate Division stated, "There is nothing in the record to suggest either the police or the doctor assisting t he hypnosis in any way suggested what the assailant mi ght look like." Moore II, 641 A.2d at 271.

Addressing the prosecutorial misconduct claims in particular, the Appellate Division held,"An examina tion of the [prosecutor's] summation in its entir ety shows that the complained of comments represented a small portion of an extremely lengthy summation, are too br oadly chara cterized by defendant and were in each case promptly and appropriately dealt with by a forceful curative ins truction." Moore I, slip op. at *4. As to the pr osecutor's ar gument that the jury should infer that Moore selected a white w oman to rape because his wife is white, the Appellate Divis ion explained that "the impropriety of the suggestion w as forcefully expressed" by the trial judge when he to ld the prosecutor at sidebar that the inference was unreas onable. Id. The Appellate Division noted the trial judge"im mediately gave a forceful and complete curative instruction w hich not only told the jury to disregard the pr osecutor's r emarks but
told them it was an unfair and unreasonable inferen ce and an improper argument." Id. at *5. The court was "sa tisfied

20that [the trial judge's action] prevented the prose cutor's

statement from substantially prejudicing defendant' s right
to a fair trial." Id.

As to the prosecutor's argument that Moor e committ ed the rape because he had his "greatest need for sexu al release" while his wife was ill, the Appellate Divi sion noted that the trial judge issued a "curative instruction in which he told the jury to disregard the pr osecutor's sta tement; that it was an unreasonable and improper inference. " Id. at *5-6. The Appellate Division was "satisfied that an y possible prejudice was fully removed by the trial judge's pr ompt
action." Id. at *6. And as to the final remark-- th at the jury would probably perpetrate a "worse assault" on M.A. if they failed to believe her testimony-- the Appellate Div ision noted that "[o]nce again the jury was instructed to disregard the comment, that it was impr oper." Id. at *6-7. The court was "satisfied the judge's action her e, as with the previous improprieties, prevented the prosecutor's statements from substantially prejudging the defend ant."

Id. at *7.

In conclusion, the Appellate Division noted the fol lowing:

Although we are persuaded that the prosecuto r's comments did not deprive defendant of a fair trial, we would be derelict if we did not express our disapproval in the strongest terms. The summation showed a disregard of the obligation of the pr osecut or to play fair and see that justice is done. [citation omit ted]. Our role, however, is not to supervise or punish prosecutorial misconduct. It is to examine t he trial for fairness. Fortunately, the judge, unlike the prosecutor,
was sensitive to the need for a fair trial a nd pr omptly and forcefully delivered curative instructio ns to the jury.

Id. The Appellate Division noted its view that "the prosecutor's outrageous conduct violated ethical principles," and "urge[d] the Attorney General to b ring the matter to the attention of the appropriate ethics b ody." Id.

The State maintains the Appellate Division's judgme nt "cannot be seen as unjustified" or unr easonable un der Donnelly and Darden. Br. for Appellee at 37. Althou gh the

21Appellate Division correctly identified the governi ng federal

law for prosecutorial misconduct claims, see Darden , 477 U.S. at 182; Donnelly, 416 U.S. at 644, the questio n is whether it failed to reasonably apply that law to t he facts of
this case.

The sole issue at trial was the identity of the rap ist. It is undisputed that M.A.'s initial description of her a ttacker was vague. The morning after the rape she told poli ce that she had only seen him "from the light outside" her apartment which came from street lights on the road and from lights in a hospital parking lot half a block away. M.A. acknowledged at trial that she had her eyes closed most of the time during the attack and that she was "scar e d to
death." She also testified that her attacker told h er to keep her eyes closed and that he "kept telling me that h e had a
knife and if I didn't do what he said that he would hurt me." She noted that she only had a "very fleeting opportunity" to see her attacker, but at"one point when he was standing over the bed, I saw his face." M.A. st ated he was "close enough to see, but not in detail." She s tated that even though she was not wearing her contact lenses during the attack, her attacker was "very close" to her - close enough for her to see him and his face. She stated that she could see certain things without her contact lenses - that
she had driven without them and that her vision did not prevent her from seeing things close to her.

Although in her initial statement to police the day after the rape she stated her attacker "may have been bla ck," in a written statement to police that same day she des cribed her attacker as "black, about 5'10", 175 lbs., late 20's to mid 30's. Short hair, short beard close to his face . He was wearing blue jeans." She also stated, "Y ou could t ell he was black" because of his "tough street talk." She desc ribed her attacker's build as "medium, muscular. Not bulky, j ust
muscular."

Because of her limited opportunity to view her atta cker, M.A. suggested to police that she might be able to remember him in more detail if she wer e hypnotized . Three weeks after the rape, the Somers Point Police arran ged an appointment with Dr. Samuel Babcock, a clinical psychologist, for M.A. to be hypnotized. Befor e th e hypnotic

22session with Dr. Babcock, M.A. had not identified M oore as

her attacker. M.A. testified that the police did no t show her photographs of potential suspects before the hypnot ic session. In accordance with New Jersey law, Dr . Ba bcock taped his meeting with M.A. The transcript of his m eeting was produced at trial and portions of the audio tap e were played for the jury. Part of this evidence consiste d of M.A.'s pre-hypnotic description to Dr. Babcock of her limi ted ability to see her attacker. She said, "There's not much [light], some, a little bit of light comes thr ough the window but there was no light in my house, no lights were on it's pretty dark." When asked how much light came throug h her window she stated, "Ah, not very much, its enou gh to see like shadows and stuff, but not . . . . Like ou tlines of things, you know, but uhm, nothing really you know, not like ahm, nothing in detail." In her pre-hypnotic i nterview with Dr. Babcock, she also stated that her attacker 's face was "round, . . . he had a short bear d, meaning fa cial hair as though he hadn't shaved in a few days. He was ab out
five-foot-eleven."

After undergoing hypnosis, M.A. was able to r ecall that
her attacker's skin color was "medium." She testifi ed that "[w]hen I was hypnotized, I saw his face again just like I had seen it, but it was much clearer." Immediately after the hypnotic session, M.A. met with a state police sket ch artist
and described her attacker. The sketch artist testi fied that as a result of the hypnosis, M.A.'s memory was"defi nitely enhanced" and she was "surer of particular . . . in formation
. . . . [S]he told me that she remember ed better." He said

M.A.

described the person or the perpetrator of t he crime as being a Negro male, approximately twenty-eig ht years old, approximately one hundred eighty pounds
, approximately five[-]foot[-]eleven, muscular build, medium complexion. She remembered his eyes a s approximately being dark. She remember[ed] s tubble on his face and the hair as being black and short with tight texture.

In addition to recalling more specific features of her attacker during hypnosis, M.A. remember ed her atta cker had worn jeans and a tan suede jacket with a zipper

.

23Several days later she also recalled ther e was dir t or a stain

near one of the pockets of her attacker's jacket.

With the assistance of M.A.'s "sketch," the police arranged a photo line-up of possible suspects that included a photograph of Clarence Moore. Police included Moo re in this line-up because he was a suspect in two other sexual
assault cases in Somers Point. Moore was also await ing trial on sexual assault charges in Cape May County.

M.A. immediately recognized the photograph of Clare nce Moore during the photo line-up. But the two other s exual
assault victims from Somers Point could not identif y him. In a written statement to police following this pho to line-up, M.A. stated,

On February 5, 1986, at 12:40 A.M., I was sh own a photo line-up consisting of six photographs of black men by Capt. Lukasiewicz and Sgt. Kaufman. A fter carefully viewing these photographs, I picke d photo #2 [the photo of Clarence Moore] as the man who sexually assaulted me. I am absolutely sure of this
identification.

After this initial photo identification, the police executed a search warrant at Moore's home. They found a pair of jeans and a jacket with a suede front and "sweater material" on the collar, back and sleeves. The jack et had stains on the front. M.A. had not mentioned to poli ce that her attacker's jacket had sweater material on the s leeves. Additionally, M.A. described the jacket as "tan," b ut a state police laboratory that conducted tests on the jacke t said it contained "orange fibers."

On October 9, 1986, almost nine months after the in itial identification of Moore, M.A. again met with the So mers Point Police and the Atlantic County Prosecutor's o ffice and was shown a series of different photographs of susp ects including a more recent photograph of Clar ence Moo re (the previous photograph had been taken two years earlie r). The officers present at this viewing testified that M.A

. immediately identified Clarence Moore as her attack er. After this identification, the officers showed M.A. a thi rd series of photographs from a live line-up of suspects that we re in a different order from the suspects in the previous

24photographs. M.A. again identified Clarence Moore a s her

attacker.

The investigating officers and those present during M.A.'s
out of court identifications testified at trial. De fense counsel
cross-examined these witnesses about the identifica tion procedures. The officer who conducted the first pho to lineup described the procedures he employed in selectin g photographs for the identification stating,

I obtained five other photographs of people that appeared similar in physical appearance [to Moore]. With those I then photographed all six separ ately so they would all be of the same general size a nd color hue. I then placed them into a folder that h as squar es cut out so that only the face was showing.

He also testified that he chose the photographs in the lineup by going through a large stack of photographs at the police station and that he "tried to pick out the p ictures that most closely resembled Mr. Moor e." He testifi ed that during the identification, M.A. immediately picked out Moore's photo and said, " `I'm sur e that's him. I' ll never forget his face. I see it every time I close my eye s.' "

Dr. Samuel Babcock testified at trial about the procedures he employed in hypnotizing M.A. During c rossexamination, Dr. Babcock was questioned about his methodology, specifically whether his procedure rel ied on suggestive forms of questioning to enhance r ecall. 11

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11. Defense counsel questioned Dr. Babcock about co nfabulation, where a person under hypnosis may unconsciously fill in m emory gaps with suggested information. Defense counsel suggested th at authorities within the scientific community believed the mor e assertive and dominant the hypnotist, the greater likelihood the hypnotized subject would experience confabulation. Defense counsel que stioned Dr. Babcock about how assertive he was with his patient s. He also questioned Dr. Babcock about the age r egression te chnique of hypnosis he employed in hypnotizing his clients, and whether he was aware that some authorities believed this technique resulted i n a greater number of subjects experiencing confabulation. Dr. Babcock re sponded to these questions by acknowledging the scholarly criticism of suggestive questioning and its impact on confabulation. Howeve r , he stated,

25At trial M.A. testified that when she was sexually

assaulted she was able to look at the person who at tacked
her and was able to see his face. She stated she wa s able to see him "clearly," and that after being hypnotiz ed, "I saw his face again just like I had seen it, but it was much clearer." In describing her identification of Moore at the initial photo line-up, M.A. testified, "As soon as I saw number two [Moore], I recognized him." In testifyin g about the second photo identification, M.A. said, "I imme diately recognized the man who assaulted me." She testified that the other photographs in the line-up did not look v ery different from Moore but she knew Moore because "th at is the same face that I saw that night. I recognize th at face, everything about it." Finally, M.A. identified Moor e during an in-court identification stating there was no que stion
whatsoever in her mind that he was her attacker .

The state recovered physical evidence, including va rious articles of clothing and blankets from M.A.'s apart ment, and sent this evidence to a crime laboratory for DN A testing. The laboratory also examined hair, saliva and blood samples from both M.A. and Moore. After testing thi s material, the laboratory issued a report stating, " An insufficient amount of high molecular weight human DNA was isolated from the vaginal swabs, fitted sheet, beige blanket, yellow blanket and the light blue comforte r therefore no comparisons could be made with blood f rom Clarence Moore."

C.

As noted, the quantum or weight of the evidence is crucial to determining whether the prosecutor's arg uments during summation were so prejudicial as to result i n a denial of due process. Darden, 477 U.S. at 182; Don nelly,

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I keep low key, I do not lead the person. I only ask them to
continue their own narrative, asking questions within their narrative but without pressure. If I feel that they'r e no t giving an answer,

I'll back off the question. Perhaps I may come back to it later, but I do not do it in any kind of a pressure situation.

26416 U.S. at 644. The Appellate Division analyzed th e

"incurability" of the prosecutor's r emarks within the context of the entire trial and specifically examined the w eight of the evidence.12 Moore I, slip op. at *11; Moore II, 641 A.2d at 124. Although M.A.'s identification of Moor e wa s posthypnotic, the New Jersey courts have validated this form of identification.13 The New Jersey courts reviewed th is

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12. M.A.'s description of Moore as her attacker can not be corroborated by other witnesses. But corroborating witnesses are usually unavailable in cases involving sexual assault. It is the duty o f the fact finder to assess the credibility and reliability of the victi m's testimony. Moore's attorney cross-examined M.A. on her identification and the jury found her identification reliable. The trial court and Ap pellate Division held,

if the jury found M.A.'s identification reliable, ther e was sufficient
evidence to sustain Moore's conviction. Moor e II, 641 A.2d at 124-25.

13. As recently as 1996, the New Jersey Supr eme Co urt declined to adopt a per se rule prohibiting hypnotically induce d testimony. State v. Fertig, 668 A.2d 1076, 1081-82 (N.J. 1996). The cou rt reasoned that although many state courts prohibit hypnotically in duced testimony, other courts have evaluated post-hypnotic testimony under a totality of
the circumstances test or have consider ed other fa ctors, including "procedural safeguards similar to those in Hurd to determine case-bycase whether hypnotically-refreshed testimony is ad missible." Id. at 1081. The court noted that twenty-six courts have f ound hypnotically refreshed testimony per se inadmissible while only four states, North Dakota, Oregon, Tennessee and Wyoming, find it gene rally admissible. The court also noted that the expert whose r ecomme ndations they relied upon in Hurd to determine the admissibility of hypn otically induced testimony now believes that "procedural safeguards cannot fully protect against the admission of [some improper] testimony . . . . [Therefore] hypnosis should not be used to prepare a witness to testify in court, . .

. in an attempt to improve the recall of a previously unreliable or uncertain witness." Id. (quoting Martin T . Orne, e t al., Hypnotically Induced Testimony in Eyewitness Testimony: Psycholo gical Perspective 171, 205 (Gary L. Wells & Elizabeth F . Loftus, eds . 1984)). But the New Jersey Supreme Court commented that many federal co urts, including the Courts of Appeals for the Fourth, Fifth, Sevent h, Eighth and Eleventh Circuits, and several state courts, includ ing courts in Alabama, Colorado, Florida, Mississippi, New Mexico, South D akota and Wisconsin, determine on a case-by-case basis whethe r hypnotically refreshed testimony is sufficiently r eliable to be admissible. Id. at

1081. The New Jersey Supreme Court stated, "These courts recognize, as we did in Hurd, that a per se inadmissible rule may ex clude otherwise

27evidence and found nothing in the recor d suggested that

either the police or Dr. Babcock suggested what the assailant looked like. Moore I, slip op. at *10. Th e Appellate Division noted,

Following a thorough Hurd hearing, the trial judge found that all the standards set forth by th e[New Jersey] Supreme Court had been fully complie d with. We are satisfied the use of hypnosis was app ropriate
for the victim's fear-induced traumatic neur osis, and that the trial judge's findings as to the pr ocedures employed and adherence to the Hurd requirem ents were supported by substantial credible evide nce in the

record.

Id.

The Appellate Division concluded the evidence was"m ore than sufficient" to support a finding of guilt. Moo re I, slip op. at *11; Moore II, 641 A.2d at 124. But finding the
evidence "more than sufficient" for conviction does not necessarily end the constitutional inquiry. Althoug h the jury found Moore guilty beyond a reasonable doubt, the Supreme Court requires the reviewing court to facto r the prejudicial effect of the prosecutor's improper rem arks into the jury's finding of guilt and then assess its imp act. Taking into consideration the quantum of evidence p roperly presented, the due process inquiry r equires the re viewing court to determine whether the prosecutor's remarks were so prejudicial, even in light of the curative instr uctions, as to result in the denial of the right to a fair tria l. When the evidence is strong, and the curative instructions a dequate,

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reliable evidence." Id. In Fertig, however the cour t added an additional procedural safeguard stating, "When trial courts ad mit hypnoticallyrefreshed testimony, they should instruct the jury of the effect that hypnosis may have on that testimony." Id. at 1082.

In this case, the trial court conducted the appr op riate Hurd hearing to determine the admissibility of M.A.'s post-hypnotic identification and instructed the jury that they could consider this t estimony if they found it reliable. Of course, Fertig's requirement that t he jurors be instructed about the effect hypnosis may have on testimony was inapplicable at the
time of Moore's trial.

28the Supreme Court has held the prosecutor's prejudi cial

conduct does not deprive a defendant of a fair tria l. Greer v. Miller, 483 U.S. 756, 767 n.8 (holding evidence "primarily consisting of detailed testimony [of a co-conspirat or who had confessed to the crime] which was corr oborated by physical and other testimonial evidence" was str on g enough to support conviction despite prejudicial comments) , reh'g denied, 483 U.S. 1056 (1987); Darden , 477 U.S. at 182 (holding "the weight of evidence against the[defend ant] was heavy; the overwhelming eyewitness and circumstanti al evidence to support a finding of guilt on the char ges . . . reduced the likelihood that the jury's decision was influenced by the [prosecutor's] impr oper argument "). We must assess then the prosecutor's improper remarks, the curative instructions and the weight of the evidenc e.

D.

The prosecutor's challenged arguments at the very l east were irrelevant, illogical and offensive. His "sele ction" argument appeared to be based on the per ception th at rape is an expression of sexual desire rather than viole nce.14 In fact it is generally understood the opposite is tru e, Lieberman v. Washington, 128 F .3d 1085, 1098 (7th Cir. 1997) (citing authorities), and the trial court adv ised the jury of the invalidity of the prosecutor's theory i n its curative instruction. To the extent the pr osecutor 's theory implicitly represented that a black man's attractio n to a white woman is an identifying characteristic, the t rial court
countered it was "unfair and unreasonable" to infer that the selection of a white victim would help identify Moo r e. The trial court also invalidated the prosecutor's"sexua l release" argument by instructing the jury that the inference was unreasonable and improper and ther e was no evidenc e of

lack of sexual access.

The prosecutor's "selection" argument cited Moore's marriage to a white woman, arguably raising biases against miscegenation and ugly stereotypes. Racially or eth nically

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14. The State acknowledges, "The Appellate Division properly saw this remark as an ignorant and uninformed statement abou t the true nature of sexual assault." Br. for Appellees at 40.

29based prosecutorial arguments have no place in our system

of justice. See McClesky v. Kemp, 481 U.S. 279, 309 -10, reh'g denied, 482 U.S. 920 (1987). In this regard, courts applying Supreme Court precedent have found that improper racial and ethnic references can be so pre judicial as to result in a denial of due process. 15 But not all racial

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15. We recognize there ar e instances where trial c ourts immediately grant a defendant's motion for mistrial because of a prosecutor's prejudicial comments. Typically a trial judge's gra nt of a defendant's motion for a mistrial is not reviewed on appeal, un less double jeopardy concerns are present. See generally United States v . Dinitz, 424 U.S. 600 (1976). Therefore, the following sampling of appell ate cases may not accurately reflect the range of cases wher e a pros ecutor's improper
racial references constituted due process violations. We a lso note that some of the following cases predate Donnelly. But to the ex tent these cases examine the prejudicial effect of impr oper racial arguments we find them helpful in illustrating the curability of impr oper racial arguments. See, e.g., United States v. Cannon, 88 F .3d 1495, 1503 (8th Cir. 1996) (prosecutor's reference to African-American defenda nts as "bad people" in case where evidence was not overwhelming"gave [t he] jury an improper and convenient hook on which to hang their conduct," resulting in due process violation); United States v. Doe, 903 F.2d 16,

27- 28 (D.C. Cir. 1990) (prosecutor's statement that "J amaican[s] [are] . . . coming in and they're taking over" and r epeated re ferences to "they" and "them" in a drug case involving Jamaican defendants was improper where evidence was not "overwhelming"); McFarland v . Smith, 611 F.2d 414, 416, 419 (2d Cir. 1979) (prosecutor's statemen t that AfricanAmerican officer's testimony about African-American defendant should
be believed because it is "someone she knows and th at's a member of her own race" was "constitutionally imper missible" because it invoked race for an illogical purpose and created "a distin ct risk of stirring racially prejudiced attitudes"); Withers v. United States, 602 F.2d 124, 125, 127 (6th Cir. 1979) (prosecutor's statement th at "not one white witness has been produced" to support African-Ameri can defendant's case was prejudicial and required new trial where e vidence was not so overwhelming as to create an "open and shut case" a gainst defendant); Miller v. North Carolina, 583 F.2d 701, 707 (4th Ci r. 1978) (prosecutor's statement that "I argue to you that the average whi te woman abhors anything of this type . . . with a black man" in a rape case involving African-American defendants was due process violati on where no curative instructions were given); Kelly v. Stone, 514 F.2d 18, 19 (9th Cir. 1975) (prosecutor's asking jury to"[t]hink abo ut the consequences of a letting a guilty man . . . go free. Because ma ybe the next time it won't be a little black girl from the other side of the tracks; maybe it

will be somebody that you know," operated to deny Africa n-American

30and ethnic references are so pr ejudicial as to con stitute due

process violations. Darden, 477 U.S. at 182; Donnel ly, 416 U.S. at 644. In other instances, courts applying Su preme Court precedent have held the prejudicial effect of a prosecutor's improper references to race or ethnici ty can be cured with judicial instructions charging the jury to disregard the improper statements. 16

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defendant accused of rape the right to fair trial w hen combined with two other inappropriate comments); United States ex rel . Haynes v. McKendrick, 481 F.2d 152, 155, 161 (2d Cir. 1973) ( prosecutor's statements about defense counsel's "experience with the people of the colored race" and his knowledge of "their weaknesse s and inability to do certain things that maybe are commonplace for the o rdinary person to do," combined with his statement about "the custom and habit of many colored people" to have "exotic hair dos" denied Af rican-American
defendants fair trial where evidence in case was no t "overwhelmingly persuasive"); United States v. Grey, 422 F.2d 1043, 1045-46 (6th Cir.) (prosecutor's statement about African-American defe ndant's AfricanAmerican character witness "running around with a w hite go-go dancer" was sufficiently prejudicial to warrant new trial), cert. denied, 400 U.S. 967 (1970).

16. The following is a sampling of federal cases ap plying Supreme Court precedent, see supra note 8, that have found improp er prosecutorial references to race were not so pr ejudicial as to r esult in the denial of

due process. Again, some of these cases predate Donnell y. But to the extent they illustrate the prejudicial effect of improper racial arguments, we
find them helpful. See, e.g., Thomas v. Gilmore, 144 F.3 d 513, 518 (7th Cir. 1998) (prosecutor's statement that African-American defendant had prior arrests for sexual offenses with "young white women " was "too fleeting and isolated" to have denied defendant fair trial), cert. denied, 525 U.S. 1123 (1999); Smith v. Farley, 59 F.3d 659, 663-64 ( 7th Cir. 1995) (prosecutor's reference to African-American witness as "shucking and jiving on the stand" and reference to African-Ameri can defendants as "boys" did not interfere with the impartiality of t he jurors because the "evidence of guilt in the case was overwhelming"), cert. denied, 516 U.S. 1123 (1996); Russell v. Collins, 944 F .2d 202, 204 n.1 (5th Cir.) (prosecutor's statement asking jury to imagine the fear of white murder victim as "three black strangers" attacked her was an "isolated reference to the race of the defendant" and did not deny defe ndant fair trial),

cert. denied, 501 U.S. 1278 (1991); United States v. Chas e, 838 F.2d 743, 750 (5th Cir. 1988) (prosecutor's statement about "Colo mbians [sic] with their cautiousness" in a drug case involving Colombian de fendant was not

31In this case, the trial court commendably attempted to

cure any possible harm and prejudice resulting from the prosecutor's improper arguments. After refuting the prosecutor's "selection" argument, the court specif ically instructed the jury to disregard the pr osecutor's remarks, declaring that such racial references wer e invalid . As noted, the trial judge instructed the jury,

I am ordering you to disregard what the pros ecutor said in reference to the testimony, the appe arance of Mrs. Moore, she being a white person, a Cauc asian, and Mr. Moore being a black person, and that the

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"harmful error"); United Statesv. Cardenas, 778 F.2 d 1127, 1131-32(5th Cir. 1985) (prosecutor's statement that defendant i n a drug case was Colombian did not warrant a new trial); United Stat es v. Harvey, 756 F.2d 636, 649 (8th Cir.) (prosecutor's statement th at attributed the use of the term "honky" to African-American defendant a ccused of crimes involving white victims was prejudicial but was cur ed by cautionary instructions), cert. denied, 474 U.S. 831 (1985); G riffin v. Wainwright, 760 F.2d 1505, 1513, 1515 (11th Cir. 1985) (prosecu tor's reference to victim of crime as "white" in case involving black defendant did not deny defendant fair trial), cert. denied, 476 U.S. 1123 (1986); United States

v. Yonn, 702 F.2d 1341, 1349 (11th Cir.) (prosecutor's statement that defendant in drug case was Colombian did not warran t new trial), cert. denied, 464 U.S. 917 (1983); Thornton v. Beto, 470 F.2d 657, 659 (5th Cir.) (prosecutor's reference to African-American d efendants as "niggers" during re-direct examination of victim did not deny defendants fair trial because defense counsel objected when remark was ma de and court instructed jury to disregard reference), cert. deni ed, 411 U.S. 920 (1973); United States v. Horne, 423 F.2d 630, 631-32 (9th C ir. 1970) (prosecutor's statement that "I am tir ed of [defen se counsel] trying to

let these people hide behind their race" and statement during closing that "[r]emember first, that he is a Negr o" was imprope r but did not affect African-American defendant's "substantial rights" w hen viewed in context of whole record); Brent v. White , 398 F.2d 503, 505 (5th Cir. 1968) (prosecutor's reference to rape victim as "white gi rl" in case where defendant was African-American was not due pr ocess violation because victim took the stand as a witness and it was appar ent to jury she was white), cert. denied, 393 U.S. 1123 (1969); United States v. Douglas, 862 F. Supp. 521, 530-31 (D.D.C. 1994) (pr osecutor's r eference to Jamaican defendant's ethnicity in drug case did not r esult in due process violation), aff 'd, 70 F.3d638 (D.C. Cir. 1995), ce rt. denied, 516 U.S. 1098 (1996).

32reason, the selective process, was that he d id this

aggravated assault because he selected a whi te or Caucasian person. Disregard that. That's an unfair and
unreasonable inference to be drawn fr om the testimony and I'm convinced that it's not proper ar gu ment to the jury.

The Appellate Division held that in the context of the entire trial, these curative instructions remedied the har ms caused by the prosecutor's improper comments.17 We are not convinced. The prosecutor's approach in advanci ng his "selection" argument was direct and deliberate. His own words demonstrate the purpose of his appeal was to bolster the State's identification evidence. Specifically h e stated,

Based on the testimony of Cheryl Moore, the case is stronger than ever, that the odds ar e that this defendant is the perpetrator [and] . . . you have more reason to convict Clarence McKinley Moor e n ow that
she has testified than ever.

The prosecutor noted there were "three important th ings" the jury should learn from Mrs. Moor e's "appearanc e" as a
defense witness. He stated:

What did we learn when we found out that Che ryl Moore was the wife of the defendant? I sugge st to you in a nonracist way that what we found out wa s that Clarence McKinley Moore made a choice to be with a
Caucasian woman.

In other words, the prosecutor argued Moore's "pref erence" for white women was probative evidence of whether h e raped M.A. His disclaimer, "It's not a statement of race; it's a question of choice," does not mitigate his inject ion of race into the jury's deliberations ("the case is str ong er than ever"). The trial judge immediately understood the

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17. See, e.g., Greer, 483 U.S. at 767 n.8 ("We norm ally presume that a jury will follow an instruction to disregar d inadm issible evidence inadvertently presented to it, unless ther e is an `overwhelming probability' that the jury will be unable to follow the court's instructions.") (quoting Richardson v. Marsh, 481 U .S. 200, 218 (1987)). Here, the prosecutor's improper ar guments were not inadvertently presented.

33implications of the prosecutor's argument. Calling the

argument "unfair," the trial judge recognized the prosecutor's "selection" argument was prejudicial b ecause it

declared that Mrs. Moore's race was r elevant to th e issue of Moore's guilt and could play to bias against interr acial couples. The argument gave the jury an illegitimate "hook"
on which to base their decision.18

The "selection" argument had no basis in the eviden ce. In a case involving a black defendant accused of rapin g a white woman we believe this argument, although pres ented with a disclaimer, was highly prejudicial and invit ed the jury to decide the case on bias. See Miller, 583 F. 2d at 707 (prosecutor's statement that "I argue to you that t he average white woman abhors anything of this type . .. with a black man" in a rape case involving African-Ameri can defendant was due process violation wher e no curat ive instructions were given). As noted, the trial judge had little doubt about the argument's impact when he admonishe d the prosecutor at sidebar to "stay away fr om the a rea of white/black because I don't think that's in the cas e."

The prosecutor's "sexual release" ar gument was als o improper. The comment implied that Moor e was guilt y of raping M.A. because he was unable to have sexual intercourse with his wife. While improper , we beli eve it is the kind of remark usually remedied by appropriate curative instructions. The trial judge immediately cautioned the jury that there was no evidentiary basis for th is inference. We believe the trial judge ef fectively remedied any possible prejudice stemming from the r emark.

As noted, the prosecutor commented at the end of hi s summation that, "if you don't believe . . . [M.A.] and you think she's lying, then you've probably perpetrated a worse

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18. See, e.g., McCleskey, 481 U.S. at 309 n.30 ("If the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requir es questi oning as to such bias.") (citing Ristaino v. Ross, 424 U.S. 589 (1976)); Can non, 88 F.3d at 1503 (prosecutor's reference to African-American defenda nts as "bad people" in case where evidence against them was not overwhe lming "gave [the] jury an improper and convenient hook on which to ha ng their conduct," resulting in due process violation).

34assault on her." This was an improper appeal to the jurors'

passions.19 As the Supreme Court held in Berger v. United States, 295 U.S. 78, 85-88 (1935), overruled on oth er grounds, Stirone v. United States, 361 U.S. 212 (19 60),

The United States Attorney is the repr esent ative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is .

. . compelling . . . . He may prosecute with ear nestness and vigor - indeed he should do so. But, whi le he may strike hard blows, he is not at liberty to s trike foul

ones.

M.A. suffered a brutal attack and rape. By asking t he jury to factor their understandable sympathy for th e victim of this horrible crime into deciding Moore's guilt or innocence, the prosecutor made an imper missible re quest to decide guilt on something other than the evidenc e. Courts applying Supreme Court precedent have found that similar appeals for jurors to decide cases based on passion and emotion were improper.20 See supra note 8. But other

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19. See, e.g., Viereck v. United States, 318 U.S. 2 36, 247 (1943) (prosecutor's statement to jury during W orld War I I that "the American people are relying upon you . . . for their protect ion against this sort

of crime, just as much as they are relying upon the me n who man the guns" was an improper appeal to passion); United St ates v. Cunningham, 54 F.3d 295, 300-01 (7th Cir.) (pr osecutor's state ment to jury that "[c]ollectively you can go back there and stop [the defendants]. You can make sure that [the victim] isn't going to get beat up again. Heaven forbid, for the witnesses that came in this courtr oom the last couple of days if these guys are found not guilty. Heaven for bid. Don't let that happen," was improper appeal to jury's emotions), c ert. denied, 516 U.S. 883 (1995); United States v. North, 910 F .2d 843, 895 (D.C. Cir. 1990) (prosecutor's statement comparing defendant to Adol f Hitler was improper appeal to passion), opinion withdrawn and superseded in part on reh'g, 920 F.2d 940 (D.C. Cir. 1900) (per curiam order), cert. denied, 500 U.S. 941 (1991).

20. See, e.g., United States v. Payne , 2 F.3d 706, 712 (6th Cir. 1993) (prosecutor's reference to defendant taking advanta ge of children at Christmas was improper appeal to emotion); United S tates v. Lee, 743 F.2d 1240, 1253 (8th Cir. 1984) (pr osecutor's stat ement that "[w]hat you do as jurors is going to be watched her e. You can better believe that each and every drug smuggler is watching what happe ns here today," was an improper appeal to emotion).

35courts applying Supreme Court precedent have recogn ized

that improper appeals to passion can be cur ed.21 I d.

As noted, the trial court here instructed the jury,

I want to tell you I'm going to order you-- I generally don't order people. I'm going to order you t o disregard that last remark made by [the prosecutor] to the effect that the last thing I have to say to you is that if you don't believe her and you think she's lying, then you're probably perpetrating a worse assault on her

. Disregard that remark. I have deter mined th at's improper and you are not to consider that fo r any purpose in this case.

Given the graphic evidence of a brutal rape, we bel ieve the prosecutor's "perpetrating a worse assault" comment was likely to improperly influence the jury's decision by implying that a not-guilty verdict would compound M .A.'s suffering.22

Furthermore, the prosecutor's ar gument mischaracterized M.A.'s testimony. The principal is sue at trial was never M.A.'s credibility in ter ms of her truthfulness or sincerity. In fact, there can be no doubt about M.A.'s sincerity. The principal issue was the reliability of M.A.'s identification, her opportuni ty to observe

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21. See, e.g., Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) (prosecutor's statement asking jurors to put themse lves in shoes of murder victim's family was not so prejudicial as to deny defendant right to fair trial when curative instructions wer e give n); Walker v. Gibson,

228 F.3d 1217, 1243 (10th Cir. 2000) (pr osecutor's ref erence to murder victim as "cold in his grave" was impr oper appeal to emotion but not
sufficient to render trial unfair because it was "l ikely the crime itself produced sympathy before [the] pr osecutor made [th e] comments").

22. See, e.g., Kelly, 514 F.2d at 19 (prosecutor's asking jury to "[t]hink about the consequences of a letting a guilty man . .. go free. Because maybe the next time it won't be a little black girl from the other side of the tracks; maybe it will be somebody that you know ," operated to deny African-American defendant accused of rape the righ t to fair trial when combined with two other inappropriate comments); bu t see Walker, 228 F.3d at 1243 (prosecutor's refer ence to murder vic tim as "cold in his grave" was improper appeal to emotion but not suffi cient to render trial unfair).

36and remember her assailant. To the extent that impl ying a

not-guilty verdict required finding M.A. lied, the prosecutor manipulated the identification testimony into a que stion of veracity when the real issue was reliability. To th e extent it was intended to buttress M.A.'s credibility (in ter ms of her ability to observe or to refute the confabulation a rgument), the argument was improper because it played to the jurors' emotions and suggested a not-guilty verdict r equir ed finding M.A. lied.

Were this the only improper ar gument, we do not be lieve Supreme Court precedent would requir e finding a de nial of due process. Taken in isolation, any pr ejudice ste mming from the "perpetrating a worse assault" argument co uld be cured with strong instructions like those the trial judge issued here. But when viewed in light of the pr ose cutor's "selection" argument, we believe due pr ocess conce rns are implicated. Together, the prosecutor's "selection" argument and the "perpetrating a worse assault" ar gument we re not only improper but prejudicial. Thr ough these argum ents, the prosecutor asked the jury to decide the case on bias and emotion rather than on the evidence presented.

Specifically, his "selection" argument asked the ju ry to infer from Mrs. Moore's race, and not fr om the cre dibility or reliability of her alibi testimony, that her husban d was guilty. As noted by the Supreme Court in Darden, wh en a prosecutor's argument manipulates or misstates the evidence, the argument can be so prejudicial as to result in the denial of due process. 477 U.S. at 182. Her e, the prosecutor manipulated testimony to bolster identif ication
evidence.

We believe the trial court properly attempted to cu re any resulting prejudice from the pr osecutor's argument s. As noted, its instructions directly charged the jury t o disregard the prosecutor's improper refer ences to race and a ppeals to their emotions.23 Despite the trial court's strong instructions, the issue remains whether in the cont ext of the entire trial and in view of all the evidence, t he prosecutor's prejudicial remarks r esulted in a den ial of due

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23. We do not believe the delay occasioned by the o vernight adjournment is especially relevant here.

37process. As recognized by the Supr eme Court in Dar den,

when looking at the entire trial, the r eviewing co urt should examine the strength of the evidence against the de fendant.

477 U.S. at 182.

E.

Most of the evidence presented at trial focused on M.A.'s identification of Moore. The New Jersey courts foun d the
identification evidence "more than sufficient" to s upport a finding of guilt beyond a reasonable doubt. Absent the prosecutorial misconduct here, we would agree. But whether the quantum of evidence against Moor e was sufficiently strong to support his conviction in li ght of the prosecutor's prejudicial arguments is a more diffic ult question.

M.A. acknowledged that her eyes were closed during most of the attack. She stated that she was only able to see her attacker's face at "one point when he was standing over the bed." During this "mere glimpse," she was not weari ng her contact lenses and was understandably extremely frightened. The room in which the attack occurr ed was dark and was only illuminated by outside str eet li ghts. M.A. stated that although she saw her attacker's face, s he could not see it "in detail" at the time of the rape. She was only able to give a rough physical description of her at tacker including his race, and his approximate height and physical build. It was only after undergoing hypnosis that M .A. was able to give a more detailed description of her att acker including the clothing he was wearing and the color and texture of his hair. The only physical evidence pre sented at trial was the jacket found in Moore's home which M. A. identified as the one her attacker wore the night o f the rape. But the laboratory tests on the fibers on the jacket were unhelpful in the identification.

As noted by the Supreme Court in Dar den, improper and prejudicial prosecutorial arguments generally are c urable when the evidence is strong. 477 U.S. at 182. Where the evidence is not strong, however, the Court has foun d that highly prejudicial arguments may r esult in the den ial of due process. See Greer, 483 U.S. at 765. As noted, there

38was no physical evidence here, with the exception o f the

jacket, to connect Moore to the rape. M.A.'s pr e-h ypnotic identification of her attacker was vague. Her post- hypnotic identification was not strong because it was based on her recollection of her attacker resulting fr om a sing le brief view. While this evidence could properly support a finding of guilt, it is not as strong as those cases in whi ch the Supreme Court has found highly prejudicial prosecut orial arguments curable. Greer, 483 U.S. at 765; Darden, 477
U.S. at 182.

In Darden, the Court found the pr osecutor's improp er arguments curable in part because "the weight of ev idence against [the defendant] was heavy; the overwhelming eyewitness and circumstantial evidence to support a finding of guilt on the charges . . . reduced the likelihoo d that the jury's decision was influenced by [the pr osecutor' s improper] argument." 477 U.S. at 182 (internal quot es omitted). Similarly in Greer, the Supreme Court fou nd the prosecutor's prejudicial comment about the defendan t's post-arrest silence did not infect the trial with u nfairness because the weight of the evidence against the defe ndant was strong. The Greer Court noted the evidence "pri marily consisting of detailed testimony [of a co-conspirat or who had confessed to the crime] which was corr oborated by physical and other testimonial evidence" was import ant in finding no denial of due process. 483 U.S. at 767. In this case, there is no similarly strong physical, circum stantial, testimonial, or corroborating identification eviden ce linking Moore to the rape.

F.

Taking into account the prosecutor's highly prejudi cial comments, the trial judge's curative instructions, and the strength of the evidence, we believe a r easonable application of Supreme Court precedent r equires fi nding
Moore's trial was so infected with unfair ness that it was constitutionally infirm. See Greer, 483 U.S. at 765 ; Darden, 477 U.S. at 182. The Appellate Division impr operly weighed the prejudicial effect of the prosecutor's referenc es to race and his appeals to the jurors' sympathy for the vic tim in light of the strength of the evidence. Although the trial

39judge issued strong curative instructions, the evid ence

against Moore was not sufficiently str ong to ensur e that the jury disregarded the prosecutor's inflammatory and highly prejudicial arguments and decided the case solely o n the evidence. A reasonable application of Supr eme Cour t precedent therefore requir es finding Moore's trial was so infected with unfairness that he was denied due pro cess.

V.

For the foregoing reasons, we will r everse the Dis trict Court's judgment and remand this matter with direct ions to grant the writ of habeas corpus. The State of New J ersey may retry Moore. The writ will be issued conditione d upon a retrial within 180 days from the date on which th e District Court enters its order.

40RENDELL, Circuit Judge, concurring:

I join Judge Scirica's opinion, but I write separat ely to note my view that the prosecutor's remarks in his c losing statement to the jury were not merely, as the Major ity describes them, "irrelevant, illogical, and offensi ve." Maj. Op. at 29. They were, in fact, outrageous in their direct appeal to the jury to decide the case on impr oper grounds and abandon the standards that our system of justic e requires.

The prosecutor's inflammatory remarks clearly were calculated to divert the jury from its swor n duty to focus on the evidence presented in the case. Indeed, her e t he prosecutor not only manipulated and misstated the evidence, but actually attempted to fabricate evide nce that did not exist. And in such circumstances, it goes w ithout saying that it is the defendant who suf fers harm f rom the prosecutor's misconduct, not the state. Certainly, we cannot assume -- as the dissent does -- that given the egregious nature of the prosecutor's remarks, the j ury would automatically recognize the misconduct and therefore be more likely to acquit the defendant. U nder that curious theory, the worse the prosecutorial miscond uct, the better off the defendant, and the less likely there is to be a due process violation. By that reasoning, one is le ft to wonder how prosecutorial misconduct could ever viol ate due process.

Furthermore, it bears emphasis that the curative instructions issued by the trial court were mediocr e at best, and certainly did not cure the prejudicial effect o f the prosecutor's outrageous remarks. Rather than, as in Donnelly, taking "special pains" to corr ect the pr osecutor's improper remarks, Donnelly, 416 U.S. at 644, here t he trial judge made no effort to remove the thin veil from t he prosecutor's racist arguments by telling the jury t hat these arguments were, in fact, improper appeals to racial prejudice, and that such appeals should have no bea ring on the case whatsoever. Moreover , the trial judge never, at any time during the trial, used the word "race" in his instructions to the jury, and the effect of the pro secutor's invidious appeals to racial prejudice, viewed in th e context of the trial as a whole, could in no way be cur ed by

41instructions that made no reference to race as a fa ctor that

the jury must exclude from its deliberations.

Finally, what makes the prejudicial impact of the prosecutor's misconduct in this case so clear is th at the evidence of Clarence Moore's guilt was uniquely underwhelming. Judge Scirica's opinion sets forth i n detail the problems inherent in M.A.'s identification of M oore -- which was the only relevant evidence of guilt in th e entire trial -- and thus I see no need to repeat his excel lent analysis here. However, I think it is worth noting that the use of hypnotically-induced identifications is cont roversial at best, and any concerns that we might have about the use of such identifications is heightened in a case such as this, where the identification is entir ely uncorro borated. E.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1 978) (noting that "[c]enturies of experience in the admi nistration of justice have shown that convictions based solely on testimony that identifies a defendant previously un known to the witness is highly suspect. Of all the variou s kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence"); see also U nited States v. Wade, 388 U.S. 218, 228 (1967) (observing that "[t]he vagaries of eyewitness identification are we ll-known;
the annals of criminal law are rife with instances of mistaken identification").

In sum, viewed through the lens of the Supr eme Cou rt's teachings on the implications of improper pr osecut orial remarks, there is no doubt that Clar ence Moore was denied due process. Indeed, when I consider the facts of t his case -- the egregious prosecutorial misconduct, the lack of effective curative instructions, and the insubstant ial evidence of guilt -- I can hardly imagine a more co mpelling case for reversal given the dictates of established Supreme Court precedent. As such, the trial process was inf ected with unfairness, and the New Jersey courts unr easo nably applied this precedent by not granting Moor e a new trial.

42GREENBERG, Circuit Judge, dissenting:

I respectfully dissent but do so reluctantly as I r ecognize that the court has made a careful study of this cas e and that it has reached its result only after thoughtfu l deliberation. Nevertheless, there can be no doubt t hat the Appellate Division of the Superior Court of New Jer sey on two occasions went through a similar pr ocess with no less an awareness of its obligations and yet r eached a result opposite than that the court reaches her e. In the final analysis, then, this case involves a choice of two different views of the effect of the prosecutor's misconduct and the trial court's efforts to remedy the situation.

I do not reiterate the background of this case as t he court fairly sets it forth. Nor do I discuss the co ntrolling legal authorities at length as the court lays them out. Rather, I merely state the overar ching legal princ iples
involved here. Under the AEDPA when a federal court considers a state prisoner's habeas corpus petition , the underlying decision of the state court with r espec t to any claim that was adjudicated on the merits must contr ol unless, as germane here, it "was contrary to, or in volved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the Unit ed States." 28 U.S.C. S 2254(d)(1). Inasmuch as this c ourt acknowledges that this case does not implicate the "contrary to" prong of section 2254(d)(1), the cour t must
determine whether the state decisions wer e an unreasonable application of Federal law as determin ed by the Supreme Court. I am satisfied that they were no t and, in fact, were correct. Indeed, I believe that, if a nything, the prosecutor's comments which resulted in the admonit ions and directions of the trial court prejudiced the st ate at the trial. After all, the jury could not possibly have failed to recognize that the prosecutor was making an imprope r appeal to it. In this regard, I point out that this is not a situation in which the prosecutor suggested to the jury that he had important evidence pointing to the defendant 's guilt which for some reason he had not presented to the j ury. Thus, while the prosecutor made arguments not suppo rted by the evidence they were merely impr oper on the b asis of the evidence of which the jury was aware. Mor eover , I see

43no reason to believe that the jury would have had a ny

difficulty carrying out the judge's instructions to disregard the improper comments.

It is also important to remember that the Appellate
Division reviewed this matter not once but twice an d thus
the court makes reference to both of its decisions. Actually, two separate panels of the Appellate Division consi sting of five different judges considered this case, once on direct appeal and once in post-conviction relief pr oceedi ngs and came to the unanimous conclusion that the pr osecut or's conduct did not require a reversal of the convictio ns.1 It also is important to recognize that these pr oceedi ngs are remedial, not punitive, so that if, as I think is c learly the case, the verdict was not influenced by the prosecu tor's improper remarks, we should deny Moor e relief.

Finally, I point out that under the AEDPA we are in the unfamiliar position of being obliged to make a high ly
deferential review of a state court's decisions of law for ordinarily our review of legal deter minations is p lenary. Thus, we must guard against the possibility that ou r result is driven by our mere conclusion that the state cou rt erred as the AEDPA requires more for the granting of habe as corpus relief.

For the foregoing reasons I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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1. Moore contended that his right to a fair trial h ad been violated in the post-conviction relief proceedings as an aspect of an argument that he
was entitled to a new trial because counsel had bee n ineffective.

44