IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

NOLAN HUGH : NO. 03-829

MEMORANDUM

Bartle, C.J. January 28, 2009

Before the court is the motion of defendant Nolan Hugh

under 28 U.S.C. § 2255 to correct, vacate, or set aside his

conviction and sentence. 

On February 4, 2005, a jury found Hugh guilty of (1)

conspiracy to interfere with interstate commerce by robbery, in

violation of 18 U.S.C. § 1951(a); (2) interference with

interstate commerce by robbery, in violation of 18 U.S.C.

§ 1951(a); and (3) carrying and using a firearm during and in

relation to a crime of violence, in violation of 18 U.S.C.

§ 924(c). The court imposed a within-guidelines sentence of 180

months' imprisonment, five years' supervised release, restitution

of $28,777.27, and a special assessment of $300. Our Court of

Appeals affirmed Hugh's conviction on July 18, 2007. After the

Court rejected his petition for rehearing en banc, the mandate

was issued on November 7, 2007. The instant motion, filed on

September 15, 2008, is timely.

Hugh now maintains that he is entitled to a new trial

because of ineffective assistance of trial counsel under the

Case 2:03-cr-00829-HB Document 69 Filed 01/29/09 Page 1 of 12
standard set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). He faults his

counsel for failing to (1) move to suppress the victim's

identification of Hugh as one of her assailants from a photo

spread prepared by police; (2) move into evidence the record of

an interview with the victim; and (3) rebut adequately the

government's fingerprint expert. He also raises for the first

time a new alibi in support of his contention that he is actually

innocent of the crimes for which he was convicted.

I.

On May 24, 2003, Ms. Alyia Hasan was working alone at a

check cashing agency in west Philadelphia. Around 11:30 a.m., a

man entered the business and approached the counter area behind

which Ms. Hasan was protected by a plexiglas window and locked

security doors. The man, who appeared "antsy" and was behaving

"erratically," asked Ms. Hasan for change. She denied his

request. The man was plainly agitated by Ms. Hasan's refusal but

eventually left the location.

At about 1:00 p.m. that same day, a different man

wearing a mail carrier's uniform entered the agency and indicated

that a package in his possession was for Ms. Hasan. As she

exited the secured area to receive the package, a second man

struck her in the head with a handgun. The two men moved to the

now-accessible secured area and demanded money. Each displayed a

handgun at that point. The man in the mail carrier's uniform

pressed the barrel of his gun against Ms. Hasan's face. This

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forced her to look in the direction of the other man who now

seemed to be serving as a lookout. Ms. Hasan immediately

recognized the latter as the same individual who had asked her

for change earlier in the day. After striking Ms. Hasan again

and threatening to lock her inside a safe, the robbers fled the

agency in possession of several of Ms. Hasan's personal

belongings and over $28,000 in cash. Left behind was the empty

package they had employed in their ruse.

Shortly after the robbery, Ms. Hasan made a statement

to Philadelphia police in which she described the intruders. In

particular, she noted that the man serving as lookout was "wellgroomed" and had "nice hair" and a "Muslim-type" beard. That

statement was typed onto a Philadelphia Police Department

Investigation Interview Record form (the "Interview Record") and

signed by Ms. Hasan. Over the course of several follow-up visits

to the police station, Ms. Hasan reviewed hundreds of photographs

of potential suspects but did not recognize her assailants among

them.

In the meantime, police technicians recovered a latent

fingerprint from the package abandoned at the crime scene. An

experienced fingerprint identification expert, Clifford Parson,

determined that the recovered print was an exact match with a

print already on file belonging to the defendant, Nolan Hugh. 

Six days after the robbery, the police arranged another photo

spread for Ms. Hasan consisting of eight pictures of bearded men,

among which was a photograph of defendant. Ms. Hasan confidently

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identified him as the man who had asked for change before the

robbery and as the one not wearing the mail carrier's uniform

during the robbery itself.

At trial, Ms. Hasan described the events of May 24,

2003 and her subsequent identification of Hugh in the photo

spread. Mr. Parson, the government's fingerprint expert, then

testified that he was "100 percent, without a doubt" certain that

"the latent print is that of Nolan Hugh." Defense counsel

aggressively cross-examined Mr. Parson and presented a competing

expert on fingerprint methodology, Dr. Ralph Haber, who testified

that Mr. Parson's methods and conclusions were unsound. 

The prosecution also introduced evidence that Hugh, a

welfare recipient, made conspicuous purchases and began giving

money to relatives in the days following the robbery. Hugh's

girlfriend and her sister testified that he had made statements

to them indicating he had been involved in illegal activity as a

lookout and that he believed he had received less than his share

of the proceeds from the enterprise.

Defense counsel attempted to impeach Ms. Hasan's trial

testimony with her statement from the Interview Record that she

was unable to remember specifically what Hugh had requested at

her first encounter with him at 11:30 a.m. on the day of the

robbery. Counsel also tried to impeach Ms. Hasan's trial

testimony that she had noticed Hugh's "nice hair" on the day of

the robbery with her statement in the Interview Record that Hugh

had been wearing a hood or a cap during his appearances in the

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agency. Defense counsel did not, however, move to admit either

statement into evidence.

During his closing argument, defense counsel argued to

the jury that Ms. Hasan's identification of the defendant from

the photo spread should be disregarded because he was the only

person in the included photographs who matched the description

initially provided by Ms. Hasan to the police. At the conclusion

of closing arguments, defense counsel requested that the

Interview Record and another police report be sent back to the

jury room. The court denied this request on the grounds that the

reports had not been admitted into evidence and in any event

constituted inadmissible hearsay.

II.

In the motion now before us, Hugh argues generally that

his trial counsel provided him with ineffective assistance in

violation of his rights under the Sixth Amendment to the United

States Constitution. In order to establish a claim of

ineffective assistance of counsel Hugh must demonstrate that: 

(1) "counsel's representation fell below an objective standard of

reasonableness," and (2) "there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland v. Washington,

466 U.S. 668, 687, 694 (1984). With respect to the first

Strickland prong, the Supreme Court has refused to "articulate

specific guidelines for appropriate attorney conduct" and has

instead emphasized that the proper measure of attorney

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performance "remains simply reasonableness under prevailing

professional norms." Wiggins v. Smith, 539 U.S. 510, 521 (2003). 

Nonetheless, "[b]ecause of the difficulties inherent in making

the evaluation, a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy." Strickland, 466 U.S.

at 689 (quotation omitted). 

To overcome that presumption, "a habeas petitioner must

show either that: (1) the suggested strategy (even if sound) was

not in fact motivating counsel or, (2) that the actions could

never be considered part of a sound strategy." Thomas v. Varner,

428 F.3d 491, 499 (3d Cir. 2005). Our Court of Appeals has

recently described the complex framework as follows:

At first, the presumption is that counsel's

conduct might have been part of a sound

strategy. The defendant can rebut this

"weak" presumption by showing either that the

conduct was not, in fact, part of a strategy

or by showing that the strategy employed was

unsound. In cases in which the record does

not explicitly disclose trial counsel's

actual strategy or lack thereof (either due

to lack of diligence on the part of the

petitioner or due to the unavailability of

counsel), the presumption may only be

rebutted through a showing that no sound

strategy posited by the [government] could

have supported the conduct. However, if the

[government] can show that counsel actually

pursued an informed strategy (one decided

upon after a thorough investigation of the

relevant law and facts), the "weak"

presumption becomes a "strong" presumption,

which is "virtually unchallengeable."

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Id. (citations omitted).

It is Hugh's first contention that his trial counsel

should have moved to suppress Ms. Hasan's identification of him

in a police-prepared photo spread. We must therefore determine

whether this act of potential nonfeasance "might have been part

of a sound strategy." Because the record is silent as to

counsel's actual strategy, the burden is on defendant to show

that "no sound strategy posited by the [government] could have

supported the conduct." Id.

The government proposes that defense counsel

intentionally eschewed a motion to suppress the photo spread as

part of a reasonable but ultimately unsuccessful gambit. 

Counsel's strategy, according to the government, was to convince

the jury that the entirety of Ms. Hasan's identification

testimony should be discounted because of her exposure to what he

contended was an unduly suggestive photo spread.

Even assuming that defense counsel had no sound basis

for his strategy, defendant cannot prevail here. Under the

second Strickland prong, Hugh must show that he "would likely

have prevailed on the suppression motion and that, having

prevailed, there is a reasonable likelihood that he would not

have been convicted." Id. at 503. In ruling on a motion to

suppress of this sort, our first question would have been whether

the contested identification procedure was unnecessarily

suggestive. Id. The United States Supreme Court has explained

that even if the photo spread was unduly suggestive, however, the

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court must still examine the totality of the circumstances to

determine whether the identification itself was reliable. Neil

v. Biggers, 409 U.S. 188, 199-200 (1972). Relevant factors

include:

(1) the opportunity of the witness to view

the criminal at the time of the crime, (2)

the witness' degree of attention, (3) the

accuracy of the witness' prior description of

the criminal, (4) the level of certainty

demonstrated by the witness at the

confrontation, and (5) the length of time

between the crime and the confrontation.

Id.

Here, it is unnecessary for us to address whether the

photo spread was unduly suggestive because we find under the 1

circumstances that Ms. Hasan's identification was reliable. 

First, Ms. Hasan had ample opportunity to view defendant before

and during the robbery itself. She testified that the building's

secured area was well-lighted and that she was able to view

defendant for several minutes during his initial visit to the

agency and for almost half an hour during the second. Second,

Ms. Hasan testified that she paid particular attention to

defendant during his first visit because of his odd behavior and

1. Defense counsel's primary argument in this respect was that

Hugh was the only individual displayed in the photo spread who

matched Ms. Hasan's initial description of a "well-groomed" man

having "nice hair" and a "Muslim-type" beard. We note that all

eight men in the photos presented to Ms. Hasan were, like

defendant, bearded.

 Moreover, there is no indication that police behavior was 

unduly suggestive. During her trial testimony Ms. Hasan stated

that an officer called her in, presented her with the pictures,

and told her to "just sit there, take [your] time, and look at it

and ... let us know if any of these people look familiar to you."

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that she paid rapt attention to him throughout the later robbery. 

Third, she described him with a considerable level of detail to

police immediately after the incident. Fourth, upon seeing the

photo of defendant Ms. Hasan demonstrated a high degree of

certainty that he was one of the robbers. She made that

association based on "his features, his eyes, just everything

about him," and not simply on the fact that the individual in the

photo was bearded and well-groomed. Finally, she selected

defendant from the photo spread within a week of the incident.

Under the totality of the circumstances, Ms. Hasan's

identification of Nolan Hugh as the unmasked individual who

visited the agency in the late morning of May 24th, 2003 and

returned later that same day to threaten and assault her at

gunpoint was manifestly reliable. We would not have suppressed

her identification of defendant from a police-provided photo

spread. Consequently, the outcome of the trial would not have

been different even if defense counsel had made the appropriate

motion in limine. We will deny Hugh's § 2255 motion insofar as

it is based upon his counsel's failure to move to suppress

evidence of the photo spread.

Hugh next contends that his counsel unreasonably failed

to move the Interview Record into evidence. We need not address

whether this failure was objectively unreasonable in violation of

Strickland because Hugh cannot establish prejudice. Our Court of

Appeals has already affirmed the district court's ruling that the

Interview Record was inadmissible hearsay. See Hugh, 236 Fed.

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App'x at 799-801. No possibility exists, therefore, that "the

result of the proceedings would have been different" if Hugh's

counsel had moved for the admission of the Interview Record. 

Strickland, 466 U.S. at 694. The jury would still not have been

permitted to view it during deliberations. We will deny Hugh's

motion in this respect.

Hugh also alleges that his counsel failed to rebut

adequately the conclusions of the government's fingerprint

expert, Mr. Parson. The record belies Hugh's claim. Defense

counsel vigorously contested the state's fingerprint evidence

through cross-examination. Counsel obtained a private expert,

Dr. Haber, to dispute the methodology employed by the government

witness. Hugh is not entitled to relief simply because the jury

apparently chose to credit the testimony of the government expert

rather than that of Dr. Haber.

Lastly, Hugh claims that he is entitled to collateral

relief under § 2255 because he is actually innocent of the crimes

for which he is imprisoned. In the instant motion, Hugh asserts

for the first time that he was an inpatient at a local drug

treatment facility on the date of the robbery. He seeks

discovery of the facility's records in support of this alibi.

The Supreme Court has held squarely that a claim of

"actual innocence" is not cognizable on habeas review unless it

is predicated on a denial of some constitutional right. Herrera

v. Collins, 506 U.S. 390, 404 (1993); see also United States v.

Dill, 555 F. Supp. 2d 514, 519 (E.D. Pa. 2008). Hugh does not

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allege that he was denied due process, that is, that he was

denied an opportunity to present his alibi evidence at the time

of trial. He likewise offers no explanation for his failure to

avail himself of Rule 33 of the Federal Rules of Criminal

Procedure, which permits a district court to grant a new trial on

the basis of "newly discovered evidence" where the defendant

makes such a motion "within 3 years after the verdict." Because 2

Hugh's motion is not the proper channel for his claim of actual

innocence, we will deny his motion in that respect.

For the reasons stated above, the motion of Nolan Hugh

pursuant to 28 U.S.C. § 2255 will be denied.

2. The jury returned its verdict against Hugh on February 4,

2005. Consequently, Hugh's time for filing a motion under Rule

33 appears to have elapsed.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

v. :

:

NOLAN HUGH : NO. 03-829

ORDER

AND NOW, this 28th day of January, 2009, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that:

(1) the motion of defendant Nolan Hugh to correct,

vacate, or set aside his conviction and sentence pursuant to 28

U.S.C. § 2255 is DENIED; and

(2) a certificate of appealability will not issue.

BY THE COURT:

/s/ Harvey Bartle III 

C.J.

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