1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 _____________________ 4 5 AUGUST TERM 2019 6 7 (ARGUED: NOVEMBER 4, 2019 DECIDED: APRIL 15, 2020) 8 9 Nos. 16-3423-pr(L), 18-1113-pr(CON) 10 11 _____________________ 12 13 UNITED STATES OF AMERICA 14 15 Appellee 16 17 -v.- 18 19 RALPH NOLAN 20 21 Defendant-Appellant. 22

1 1 Before: SACK and HALL, Circuit Judges, and RAKOFF, District Judge. 1 2 _______________________ 3 Defendant-Appellant Ralph Nolan challenges the denial by the district 4 court (Daniels, J.) of his motion under 28 U.S.C. § 2255 to vacate his conviction on 5 the ground of ineffective assistance of counsel. Nolan argues that he received 6 ineffective assistance because his lawyers did almost nothing to challenge the 7 eyewitness identification testimony that formed the core of the Government’s 8 case, even though the identifications bore glaring indicia of unreliability. Nolan 9 also argues that he received ineffective assistance because his counsel did not 10 seek to exclude or object to the admission of a highly prejudicial and dubiously 11 relevant photo of the defendant posing with what appears to be a handgun. We 12 agree with Nolan as to both arguments. Accordingly, the judgment of the district 13 court is REVERSED, Nolan’s conviction is VACATED, and the case is 14 REMANDED for further proceedings consistent with this opinion. 15 _______________________ 16 17 APPEARING FOR APPELLANT: SUSAN J. WALSH (Yannick Allan Grant, on 18 the brief), Vladeck, Raskin & Clark, P.C., 19 New York, NY 20 APPEARING FOR APPELLEE: RICHARD COOPER, Assistant United States 21 Attorney (Karl Metzner, Assistant United 22 States Attorney, on the brief), for Geoffrey S. 23 Berman, United States Attorney for the 24 Southern District of New York, New York, 25 NY 26 _______________________ 27 28 29 30

1Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. 2 1 RAKOFF, District Judge: 2 3 Eyewitness identification testimony is notoriously prone to error. As the

4 Supreme Court recognized over a half-century ago, “[t]he vagaries of eyewitness

5 identification are well-known; the annals of criminal law are rife with instances

6 of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967); see

7 also Simmons v. United States, 390 U.S. 377, 383-84 (1968); Manson v. Brathwaite,

8 432 U.S. 98 (1977). The results can be devastating. For example, as Appellant here

9 points out, according to the Innocence Project, eyewitness misidentification was 10 present in an astonishing 71 percent of the cases in which subsequent DNA 11 testing established the factual innocence of wrongfully convicted defendants. See 12 Innocence Project, Eyewitness Identification Reform, www.innocenceproject.org/ 13 eyewitness-identification-reform (Last Visited Mar. 16, 2020). 14 In the instant case, even though many of the typical causes of mistaken 15 eyewitness identifications were apparent, defendant’s tri