16-3423-pr(L)
     United States of America v. Ralph Nolan


 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, 

, 228 (1967); see

 7   also Simmons v. United States, 

, 383-84 (1968); Manson v. Brathwaite,

 8   

(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 c