United States v. Ralph Nolan, 956 F.3d 71

Ralph Nolan was convicted (jury trial, S.D.N.Y.) of Hobbs Act conspiracy and attempted robbery and of brandishing a firearm; convictions rested almost entirely on four eyewitness identifications and a Facebook photo.
The four adult victims (granted immunity) identified Nolan weeks after the robbery from a photo array that initially did not include his picture; identifications followed viewing Nolan’s Facebook photos and discussion among witnesses.
Multiple well‑established reliability problems were present: partial disguises, presence of weapons (weapon‑focus), cross‑racial/ethnic identifications, delay between event and identification, and suggestive police procedures including cowitness contamination and Facebook viewing.
Trial counsel withdrew a pretrial motion to exclude the in‑court identifications, relied instead on impeachment at trial, did not consult or call an eyewitness‑identification expert, and did not move to exclude or obtain a limiting instruction for a prejudicial Facebook photo of Nolan holding a gun (a BB gun).
Nolan filed a §2255 habeas petition alleging ineffective assistance of counsel under Strickland; the district court denied relief, and the Second Circuit reversed, vacating Nolan’s convictions and remanding for further proceedings.

Issue	Nolan's Argument	Government's/Defense Argument	Held
1) Abandoning pretrial motion to exclude eyewitness IDs	Trial counsel unreasonably withdrew motion and should have sought exclusion	Strategy: better to impeach witnesses at trial; jury instructions suffice	Counsel ineffective; withdrawal unreasonable and prejudicial
2) Failure to consult/call eyewitness‑ID expert	Counsel had duty to consult/call expert given counterintuitive reliability factors	No requirement to call particular witnesses; strategic choice	Counsel ineffective for failing to consult/call expert under these facts
3) Failure to move to exclude Facebook gun photo and seek limiting instruction	Counsel should have sought exclusion or limiting instruction to avoid strong prejudice	Admitting the post‑arrest video under Rule 106 was reasonable fallback strategy	Counsel ineffective; no adequate strategic basis and prejudice likely
4) Prejudice: whether errors altered outcome	Identification evidence and photo were core to government’s case; without them acquittal likely	Jury instructions and other evidence cured potential errors	Prejudice shown under Strickland; reasonable probability of different result

United States v. Wade, 388 U.S. 218 (U.S. 1967) (Sixth Amendment concerns and need to scrutinize identification procedures)
Simmons v. United States, 390 U.S. 377 (U.S. 1968) (due process bars identifications produced by impermissibly suggestive procedures)
Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977) (test for admissibility of identification testimony under due process)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard: performance and prejudice)
Massaro v. United States, 538 U.S. 500 (U.S. 2003) (ineffective assistance claims normally brought in collateral proceedings)
Bell v. Miller, 500 F.3d 149 (2d Cir. 2007) (counsel ineffective for failing to consult expert on eyewitness reliability in comparable circumstances)
Young v. Conway, 698 F.3d 69 (2d Cir. 2012) (survey of scientific factors affecting eyewitness accuracy)
State v. Henderson, 27 A.3d 872 (N.J. 2011) (adopting approach that incorporates social‑science findings on eyewitness reliability)
State v. Lawson, 291 P.3d 673 (Or. 2012) (same; recognizing factors that impair eyewitness accuracy)