The case was first before the Honorable James T. Giles. 1

On September 9, 2009, upon Judge Giles’s retirement from the

bench, the case was reassigned to the undersigned.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

JONATHAN TAYLOR, : NO. 05-359

:

Plaintiff, :

:

v. :

:

UNITED STATES OF AMERICA, :

:

Respondent. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JUNE 22, 2010

Before the Court is Jonathan Taylor’s (“Petitioner”)

motion to vacate, set aside or correct his sentence (“Motion”),

pursuant to 28 U.S.C. § 2255, alleging the following two grounds:

(1) that a “show-up” identification violated his due process

rights; and (2) ineffective assistance of trial and appellate

counsel. For the reasons that follow, the Motion will be denied

and the petition will be dismissed.1

I. FACTUAL BACKGROUND

On March 10, 2006, Petitioner was convicted by a jury

of the following three criminal charges: one count of armed

carjacking, in violation of 18 U.S.C. § 2119; one count of

knowingly carrying a firearm, during and in relation to a crime

of violence, in violation of 18 U.S.C. § 924(c); and one count of
When Petitioner proceeded to trial, the Court 2

bifurcated Count Three, the felon-in-possession charge, from

Counts One and Two. On March 9, 2006, after a four-day trial,

the jury found Petitioner guilty of Counts One and Two. In a

separate proceeding later that day, Petitioner was found guilty

of Count Three. See Gov’t’s Resp. at 3.

Petitioner was charged with taking a 1997 Ford Taurus 3

with vehicle identification number 1FALP52UXVG174362. See

Indictment, Gov’t’s Ex. A.

Petitioner was charged with carrying an Astra .22 4

caliber revolver, bearing serial number 30711, that was loaded

with five live rounds of ammunition. See id. 

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possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1).

The facts established at trial are as follows. On the 2

afternoon of September 11, 2002, Petitioner walked up to a white

Ford Taurus parked at the intersection of Susquehanna and 3

Fairhill Streets in Philadelphia, and used a loaded revolver to 4

shoot through the driver’s side window. See Gov’t’s Resp. 2-3. 

Petitioner pulled the driver, Pablo Cruz (“Cruz”), out of the

car; went through his pockets, taking his money; told the

passengers to get out of the car; and drove away in the vehicle. 

Id. at 3-4. Cruz called 911 two times, stating that a black male

had shot through the driver’s side window and stolen his vehicle. 

Id. at 4. 

Two Philadelphia police officers heard a police radio

call about the incident, located the car, and pursued it. 

Petitioner led the police on a high-speed chase, which ended when

Petitioner crashed the stolen car into another vehicle. Id. at
A “show-up” identification is where a single individual 5

who arguably fits a witness’s description is presented to the

witness for identification. See United States v. Brownlee, 454

F.3d 131, 137-38 (3d Cir. 2006).

The Government notes in its Response that at trial, 6

Cruz was “an argumentative and reluctant witness, even after

being granted immunity [from drug charges related to marijuana

found in his car], claiming that he had suffered a head injury

that made him unable to remember most of the details of the

carjacking.” See Gov’t’s Resp. at 6 n.2. Cruz further claimed

that he could not remember what he had said when he called 911

after the carjacking, or what he had said to police at the scene

of the accident during the “show-up” identification. Id. at 8. 

While Cruz testified before the grand jury as to many more

details surrounding the carjacking, at trial he said he could not

definitively identify Petitioner as the carjacker. Id. at 9. 

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4-5. Petitioner then ran out of the car and the officers, joined

by back-up, followed him on foot. When one of the officers

tripped Petitioner, Petitioner got up, drew a gun, and swung it

in the direction of the officers following him. The officers

testified that Petitioner then attempted to discard the gun by

throwing it in the direction of a train trestle overpass, beneath

which Petitioner was attempting to run. The gun fell to the

ground, however, and one officer retrieved the gun while other

officers caught up with Petitioner and arrested him. Id. at 6.

Upon arrest, Petitioner was handcuffed and placed in a

police van at the scene of the accident. See Pet’r’s Mot. 6. 

Cruz was then brought to the scene. See Gov’t’s Resp. 6. During

this “show-up” identification, Cruz identified Petitioner, the 5

stolen car, the money that Petitioner was carrying, and the gun

he had used to shoot the window of the car. Id. 6
However, Cruz also testified at trial that his testimony during

the grand jury proceeding must have been true, as he made such

statements under oath. Id.

Petitioner also told police that they likely would find 7

drugs in the carjacked vehicle and, after police obtained a

search warrant for the car, they found marijuana inside. Id. at

7. Cruz was arrested on marijuana charges, for which he served a

sentence of two years probation. See Gov’t’s Resp. at 9.

On his direct appeal to the Third Circuit Court of 8

Appeals, Petitioner claimed that this Court: (1) improperly

denied his motion to suppress his written statement to police;

(2) gave an erroneous charge to the jury on the conditional

intent element of carjacking, when it instructed that in order

for Petitioner to be found guilty of carjacking, the government

needed to prove, beyond a reasonable doubt, that at the moment

Petitioner took the vehicle, he intended to cause death or

serious bodily injury to the driver if necessary to take the car;

and (3) failed to properly consider the sentencing factors set

forth in 18 U.S.C. § 3553(a) when it imposed its below-guidelines

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Petitioner was then taken to the Philadelphia Police

Department’s East Detective Division. He was interviewed that

evening after being given his Miranda warnings, which he waived

in writing. Petitioner gave a detailed confession, which was

reduced to writing and signed by Petitioner. Id. 7

At trial, the jury found Petitioner guilty on all

charges. On July 31, 2006, the Court sentenced Petitioner to a

total prison sentence of 240 months imprisonment; five years of

supervised release; and a $300 special assessment.

II. PROCEDURAL HISTORY

After trial, Petitioner filed a timely appeal to the

Third Circuit, which, on May 14, 2008, affirmed the judgment of

this Court in all respects. Id. at 10. Petitioner sought 8
sentence of 240 months. See Gov’t’s Resp. at 10.

Petitioner’s petition for writ of certiorari was denied 9

on October 6, 2008. See 3d Cir. Docket No. 06-3627. Although

Petitioner filed his § 2255 motion more than one year later, the

one-year statute of limitations set forth in 28 U.S.C. § 2255(f)

did not time-bar his motion, because the Court granted

Petitioner’s motion for an extension of time to file on October

5, 2009. See id.

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certiorari, which was denied. Id. 9

On October 10, 2009, Petitioner filed the instant

habeas corpus motion, pursuant to 28 U.S.C. § 2255, challenging

this Court’s sentence and requesting that the Court vacate, set

aside or correct his sentence, alleging (1) an impermissibly

suggestive “show-up” identification; and (2) ineffective

assistance of counsel. See Pet’r’s Mot. 1.

In the Motion, Petitioner first alleges that his due

process rights were violated because the “show-up”

identification, during which Cruz identified him as the carjacker

at the scene of the accident, was impermissibly suggestive. See

id. at 6. Petitioner claims that the process was overly

suggestive because he was handcuffed inside a police van when

Cruz was brought to the scene; was the only suspect; and was

neither brought to the scene of the carjacking, nor brought to

the police station and placed in a lineup, to be identified. See

Pet’r’s Reply 3-4. 

Second, Petitioner alleges ineffective assistance of

trial and appellate counsel, Christopher G. Furlong, Esq.
Petitioner mailed an undated letter to the Court, 10

postmarked June 15, 2010 and received on June 17, 2010, seeking

leave to amend his Motion, pursuant to Fed. R. Civ. P. 15.

Rule 15(a) allows a court to “freely give leave when

justice so requires,” Fed. R. Civ. P. 15(a), but “where, as here,

the movant seeks leave to amend a petition for writ of habeas

corpus under 28 U.S.C. § 2255, [the Court] must consider whether

the proposed amendment would be appropriate under § 2255’s [oneyear] statute of limitations[,]” especially after Petitioner

already received one extension of time to file his habeas

petition. United States v. Cabiness, 278 F. Supp. 2d 478, 484

(E.D. Pa. 2003) (Robreno, J.) (citing United States v. Duffus,

174 F.3d 333, 336-38 (3d Cir. 1999)).

If the Court were to consider Petitioner’s motion to

amend well over a year after the applicable statute of

limitations expired, it would “frustrate[] the intent of Congress

that claims under 28 U.S.C. § 2255 be advanced within one year

after a judgment of conviction becomes final . . . .” Duffus,

174 F.3d at 337. Furthermore, although § 2255 “provides certain

circumstances under which a motion filed thereunder may be filed

outside of the statute of limitations discussed above[,]” no such

circumstances are present here. Cabiness, 278 F. Supp. 2d at 485

n.2.

The judgment of Petitioner’s conviction became final on

October 6, 2008, when the Supreme Court denied certiorari. See

supra note 9; see also Reinhold v. Rozum, 604 F.3d 149, 154 (3d

Cir. 2010) (“[A] conviction becomes final . . . ‘on the date the

Supreme Court denies certiorari’”) (citing Kapral v. United

States, 166 F.3d 565, 572 (3d Cir. 1999)). Therefore, the oneyear statute of limitations provided in § 2255 had long expired

by the time the Court received Petitioner’s letter seeking leave

to amend. See 28 U.S.C. § 2255(f). (The Court granted

Petitioner’s October, 2009 motion for an extension of time to

file, so his original habeas petition was not barred by the oneyear statute of limitations. See supra note 9.) 

Moreover, Petitioner cannot benefit from the equitable

tolling doctrine in this case, because “the principle of equity

would [not] make the rigid application of a limitation period

unfair.” McAleese v. Brennan, 483 F.3d 206, 219 (3d Cir. 2007)

(quoting Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003)). 

-6-

(“Furlong”), on the following two grounds: (1) trial counsel was

ineffective in failing to move to dismiss the indictment; and (2)

trial and appellate counsel was ineffective by failing to move to

suppress the allegedly suggestive identification. See Pet’r’s 10
Petitioner did not allege facts in his letter to the Court that

would demonstrate “(1) that he ‘has in some extraordinary way

been prevented from’ raising his claims . . . in a timely manner

and (2) that he ‘exercised reasonable diligence’ in bringing

these claims.” Cabiness, 278 F. Supp. 2d at 485 n.2 (quoting

Merritt, 326 F.3d at 168). In fact, Petitioner did not raise any

claims in his letter, except to say that he has “an additional

issue for ineffective assistance of counsel[,]” without

addressing the specific “issue” at all.

Thus, for the above reasons, the Court declines to

consider Petitioner’s letter. 

Here, Petitioner is not entitled to an evidentiary 11

hearing because it is clear from the record that his habeas

petition should be denied for the reasons herein.

-7-

Reply 3; Pet’r’s Mot. 6.

III. LEGAL PRINCIPLES

A. Standard of Review

Section 2255 allows a prisoner in federal custody to

attack his sentence if any of the following conditions are met:

(1) the court lacked jurisdiction to impose the sentence; (2) it

exceeds the maximum allowed by law; or (3) it is otherwise

subject to collateral attack. See 28 U.S.C. § 2255. A

petitioner is entitled to an evidentiary hearing as to the merits

of his claim unless it is clear from the record that he is not

entitled to relief. See Palmer v. Hendricks, 592 F.3d 386, 393 11

(3d Cir. 2010) (“[I]f the record refutes the applicant’s factual

allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing”) (quoting

Schriro v. Landrigan, 550 U.S. 465, 474 (2007)); see also United

States v. Nino, 878 F.2d 101, 103 (3d Cir. 1989) (“[T]he district
-8-

court is required to grant the prisoner an evidentiary hearing on

the matter unless the motion and the files and the records of the

case conclusively show that the prisoner is entitled to no

relief.”) (citations and internal quotations omitted).

Further, § 2255 is “expressly limited to challenges to

the validity of the petitioner’s sentence.” United States v.

Eakman, 378 F.3d 294, 297 (3d Cir. 2004) (citations omitted). A

petitioner may be granted relief “for an error of law or fact

only where the error constitutes a fundamental defect which

inherently results in a complete miscarriage of justice.” Id. at

298 (citations and internal quotations omitted). In order to be

entitled to relief, a petitioner must allege “(1) that the

district court received misinformation of a constitutional

magnitude and (2) that the district judge relied at least in part

on that misinformation.” Id. 

B. Applicable Law

1. Procedural Default

Generally, if a claim has not been raised on direct

review, “it is procedurally defaulted and the habeas court will

not adjudicate it absent countervailing equitable

considerations[,]” such as “actual innocence or cause and

prejudice[.]” Withrow v. Williams, 507 U.S. 680, 721 (1993)

(Scalia, J., concurring); see also Hodge v. United States, 554

F.3d 372, 378-79 (3d Cir. 2009) (“Because collateral review under
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§ 2255 is not a substitute for direct review, a movant ordinarily

may only raise claims in a 2255 motion that he raised on direct

review.”) (citing Bousley v. United States, 523 U.S. 614, 621

(1998)). Thus, a movant will be deemed to have procedurally

defaulted on all of the claims that he failed to raise on direct

appeal. Id. However, a petitioner will be excused from

procedural default for failure to raise an issue on direct appeal

if he can prove either (1) that he is “actually innocent of the

crime for which he was convicted,” or (2) that there was a valid

“cause” for the default, and that “prejudice” resulted from the

default. Hodge, 554 F.3d at 379. 

To establish actual innocence, a petitioner must show

that, in light of all of the evidence in the case, “it is more

likely than not that no reasonable juror would have convicted

him.” United States v. Davies, 394 F.3d 182, 191 (3d Cir. 2005)

(internal quotations and citations omitted); see also Bousley,

523 U.S. at 623 (noting that a petitioner’s collateral claim may

be reviewed if he can establish that a “constitutional error . .

. ‘has probably resulted in the conviction of one who is actually

innocent.’”) (quoting Murray v. Carrier, 477 U.S. 478, 496

(1986)). If a petitioner can demonstrate actual innocence, his

procedural default will be excused. If a petitioner cannot make

such a showing, he must meet the “cause and prejudice”

requirement in order to proceed with his collateral claim. 
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The “cause and prejudice” requirement is two-pronged. 

To obtain collateral relief “based on trial errors to which no

contemporaneous objection was made, a convicted defendant must

show both ‘cause’ excusing his double procedural default, and

‘actual prejudice’ resulting from the errors of which he

complains.” United States v. Frady, 456 U.S. 152, 168 (1982)

(citations omitted). This standard requires a petitioner to

“clear a significantly higher hurdle than would exist on direct

appeal.” Id. at 166; see also Reed v. Farley, 512 U.S. 339, 354 

(1994) (“Where the petitioner . . . failed properly to raise his

claim on direct review, the writ [of habeas corpus] is available

only if the petitioner establishes ‘cause’ for the waiver and

shows ‘actual prejudice resulting from the alleged . . .

violation.’”) (quoting Wainwright v. Skyes, 433 U.S. 72, 84

(1977)).

To demonstrate “cause,” a petitioner must show “that

some objective factor external to the defense” interfered with

Petitioner’s ability to meet his procedural deadline. Johnson v.

Pinchak, 392 F.3d 551, 563 (3d Cir. 2004) (quoting Murray, 477

U.S. at 488). The Supreme Court has held that “cause” for

failure to raise an issue on direct review exists “where a

constitutional claim is so novel that its legal basis is not

reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16

(1984). However, “[w]here the basis of a constitutional claim is

available, and other defense counsel have perceived and litigated
The constitutional right to effective assistance of 12

counsel applies to both the trial and appellate levels. See

Evitts v. Lucey, 469 U.S. 387, 394 (1985) (“[The] right to

counsel is limited to the first appeal as of right[.]”). 

However, on appeal, a defendant does not have a right to have

counsel present all nonfrivolous claims that defendant has

identified. Id. at 394 (“[An indigent appellant’s] attorney need

not advance every argument, regardless of merit, urged by the

appellant”) (emphasis in original). Rather, counsel may use his

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that claim, the demands of comity and finality counsel against

labeling alleged unawareness of the objection as cause for a

procedural default.” Engle v. Isaac, 456 U.S. 107, 134 (1982). 

Ineffective assistance of counsel can constitute “cause” for a

procedural default; however, “the attorney’s ineffectiveness must

rise to the level of a Sixth Amendment violation.” Cristin v.

Brennan, 281 F.3d 404, 420 (3d Cir. 2002). To demonstrate

“prejudice,” a petitioner must show “not merely that the errors

at his trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” Frady,

456 U.S. at 170 (emphasis in original).

2. Ineffective Assistance of Counsel

Under the Sixth Amendment, criminal defendants are

entitled to the “‘effective assistance of counsel’ -- that is,

representation that does not fall ‘below an objective standard of

reasonableness’ in light of ‘prevailing professional norms.’” 

Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (quoting Strickland

v. Washington, 466 U.S. 668, 686 (1984)).12
professional judgment to focus on the most worthy issues. See

Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999) (“One

element of effective appellate strategy is the exercise of

reasonable selectivity in deciding which arguments to raise.”). 

The Frady “cause and prejudice” standard, supra, “does 13

not apply to an ineffective assistance of counsel claim asserted

in a [§] 2255 motion,” which is appropriately brought in the

first instance in a § 2255 motion. United States v. DeRewal, 10

F.3d 100, 101-03 (3d Cir. 1993) (citations omitted); see also

Davies, 394 F.3d at 188 n.5 (“Sixth Amendment claims of

ineffective assistance of counsel should ordinarily be raised in

a collateral proceeding pursuant to 28 U.S.C. § 2255 rather than

on direct appeal.”) (quoting United States v. Jake, 281 F.3d 123,

132 n.7 (3d Cir. 2002)).

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The Strickland two-pronged standard governing

ineffective assistance of counsel claims is now well

established. First, a petitioner must show that his counsel’s 13

performance was deficient (i.e., “fell below an objective

standard of reasonableness”). Id. The Court judges counsel’s

performance based on the case-specific facts, viewed as of “the

time of counsel’s conduct.” Id. at 690. The petitioner must

identify counsel’s “acts or omissions” that allegedly were

outside the bounds of “reasonable professional judgment.” The

Court then must decide whether the acts or omissions “were

outside the wide range of professionally competent assistance.” 

Id. Under this first prong, a petitioner “must overcome the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689 (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). 

Second, after showing that his counsel’s performance
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was unreasonable, a petitioner must show “that the deficient

performance prejudiced the defense[,]” meaning that “counsel’s

errors were so serious as to deprive the defendant of a fair

trial” with a reliable result. Id. at 687. The petitioner must

show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A reasonable

probability is defined as “a probability sufficient to undermine

confidence in the outcome.” Id. at 669.

IV. ANALYSIS

A. Procedural Default

Here, Petitioner’s first claim is that the “show-up”

identification violated his due process rights. The Government

argues that, because Petitioner failed to raise his first claim

before the trial court or on appeal, it is defaulted. See

Gov’t’s Resp. 11; see also supra note 8. In his reply,

Petitioner argues that his first claim is not defaulted, and that

the Frady “cause and prejudice” standard does not apply. 

Further, Petitioner asserts that his second claim of ineffective

assistance of counsel is properly brought in the first instance

in a § 2255 motion. Id. at 1-3.

1. Failure to Show “Cause and Prejudice”

Generally, if a claim was not raised on direct review,
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“it is procedurally defaulted and the habeas court will not

adjudicate it absent countervailing equitable considerations”

such as “actual innocence or cause and prejudice[.]” Id. In

order to obtain collateral relief “based on trial errors to which

no contemporaneous objection was made, a convicted defendant must

show both (1) ‘cause’ excusing his double procedural default, and

(2) ‘actual prejudice’ resulting from the errors of which he

complains.” Frady, 456 U.S. at 168.

Petitioner seems to have confused the Government’s

argument. The Government argues that Petitioner’s first claim,

regarding the “show-up” identification, is procedurally

defaulted. In responding to the Government’s argument,

Petitioner argues that his second claim, regarding ineffective

assistance of counsel, is not procedurally defaulted. He does

not refute that his first claim is procedurally defaulted, and

the Government does not dispute that an ineffective assistance of

counsel claim is properly brought for the first time in a § 2255

motion, as is the case here. See supra note 13. Thus,

Petitioner has failed to address the issue of procedural default

as to his claim that the “show-up” identification was so

impermissibly suggestive as to violate his due process rights. 

In addressing the equitable considerations, the Court finds that

Petitioner has failed to satisfy the “cause and prejudice” test

or to demonstrate actual innocence.
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First, Petitioner has not satisfied the “cause” prong. 

Petitioner has failed to allege facts regarding his counsel’s

performance that rise to a Sixth Amendment violation of the right

to effective assistance of counsel. See Brennan, 281 F.3d at 420

(noting that, although ineffective assistance of counsel can

constitute “cause” for a procedural default, “the attorney’s

ineffectiveness must rise to the level of a Sixth Amendment

violation.”). Moreover, Petitioner did not show that “some

objective factor external to [his] defense” prevented him from

raising his “show-up” identification claim before the trial court

or on direct appeal, such that he could show “cause” for his

default. See Johnson, 392 F.3d at 563. For example, Petitioner

did not allege that his constitutional claim was “so novel that

its legal basis [was] not reasonably available” to his counsel. 

See Ross, 468 U.S. at 16; see also Engle, 456 U.S. at 134

(stating that a claim is not novel if “other defense counsel have

perceived and litigated” the claim). Therefore, Petitioner has

not demonstrated “cause.”

Second, Petitioner has not satisfied the “prejudice”

prong. Petitioner alleges that the “show-up” procedure was

“unnecessarily suggestive and violated petitioner’s due process.” 

See Pet’r’s Reply 4. However, Petitioner has failed to show that

if he moved to suppress the “show-up” identification as unduly

suggestive and his motion were granted, the outcome of his case
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would be different. Further, he has failed to allege that “the

errors at his trial [not only] created a possibility of

prejudice, but [also] worked to his actual and substantial

disadvantage . . . .” Frady, 456 U.S. at 170. Therefore,

Petitioner has not demonstrated “prejudice.”

2. Failure to Allege Actual Innocence 

Petitioner has not alleged that he was actually

innocent. See Bousley, 523 U.S. at 623 (finding that a

petitioner’s collateral claim may be reviewed, despite his

failure to show “cause and prejudice,” if he can show that a

constitutional error probably led to the conviction of an

innocent person). As discussed supra, “[t]o establish actual

innocence, petitioner must demonstrate that, in light of all the

evidence, it is more likely than not that no reasonable juror

would have convicted him.” Id. (citations and internal quotation

marks omitted). Petitioner has failed to make a single argument

that it is more likely than not that a reasonable juror could

have found him innocent. See id.; see also Davies, 394 F.3d at

191. Therefore, the Court need not reach this issue.

Under these circumstances, the Court finds that

Petitioner procedurally defaulted his first claim for failure to

show either “cause and prejudice,” see Frady, 456 U.S. at 168, or

“actual innocence,” see Davies, 394 F.3d at 191. 

B. Ineffective Assistance of Counsel
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Here, Petitioner contends that his trial and appellate

counsel, Mr. Furlong, was ineffective on the following two

grounds: (1) counsel failed to move to dismiss the indictment;

and (2) counsel failed to move to suppress the allegedly

suggestive identification.

Under Strickland, to succeed on an ineffective

assistance of counsel claim, a petitioner first must show that

his counsel’s performance was deficient, i.e., that it “fell

below an objective standard of reasonableness.” 466 U.S. at 687. 

First, a petitioner must overcome the “strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance[,]” and that counsel “rendered adequate

assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 688-90. Second, a

petitioner must show that counsel’s errors were prejudicial. Id.

at 697 (finding that the court need not address the quality of

counsel’s performance where a defendant failed to establish

prejudice). To demonstrate prejudice, the petitioner must

establish a “reasonable probability” that without counsel’s

unprofessional errors, the proceedings would have led to a

different result. Id. at 692.

1. Failure of Trial Counsel to Move to Dismiss the

Indictment

Petitioner argues that trial counsel failed to move to
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dismiss the indictment, in violation of his Sixth Amendment

rights. See Pet’r’s Mot. 4-5. Specifically, Petitioner argues

that Cruz, the carjacking victim, “was unable to identify the

petitioner as the person who committed the crime” during the

grand jury proceeding, and that Cruz testified that he did not

remember “anything about the crime except for a big bang.” Id. 

Petitioner states that Cruz could not even recall definitively

whether the person who had stolen his car was a black male. Id.;

see also Pet’r’s Mot., Ex. A, Cruz Tr. Test. 7.

Petitioner’s argument is not clear. Petitioner asserts

that because Cruz did not explicitly identify Petitioner as the

perpetrator during the grand jury proceeding, and testified that

he did not remember “any of the events that took place” on the

day of the crime, Petitioner was incorrectly named in the

indictment as the defendant. See Pet’r’s Mot. 4-5. Therefore,

Petitioner seemingly argues that counsel was ineffective for

failing to object to the indictment. However, Petitioner’s

allegations are muddled and fail to show that his trial counsel’s

performance contained errors “‘so serious that counsel was not

functioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.’” Palmer, 592 F.3d at 394 (quoting Strickland, 466

U.S. at 687); see also Strickland, 466 U.S. at 689 (noting that

there is a strong presumption that counsel’s decision to focus on

some issues and not others could be considered “sound trial
-19-

strategy”). 

First, Petitioner seems to argue that, because Cruz

testified at trial that he could not remember most details of the

crime, he did not accurately identify the perpetrator. Yet,

Petitioner fails to mention that Cruz already had identified

Petitioner to police as the perpetrator at the time of the crime. 

In addition, tape-recorded 911 calls that Cruz made immediately

after the carjacking, in which he identified the carjacker as a

black male, were played for the jury at trial. See Gov’t’s Resp.

4. This undermines Petitioner’s argument that Cruz did not know

whether the carjacker was a black male. See Gov’t’s Resp. 4; see

also supra note 6. Further, Petitioner’s trial counsel chose not

to focus on the identification, but rather attempted to suppress

his client’s extensive written, inculpatory statement given to

police shortly after the crime. See id. at 10. Thus, Petitioner

has not overcome the presumption that counsel’s actions could be

considered “sound trial strategy.” Strickland, 466 U.S. at 689

(citation and internal quotations omitted).

Second, Petitioner fails to allege that there would be

a reasonable probability that the outcome of Petitioner’s trial

would have been different had counsel employed a different trial

strategy. Petitioner states only that “[t]he identification was

a major issue from the arrest to the indictment to trial, [and if

a motion to suppress the “show-up” identification were granted,]
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then counsel could have attacked the indictment.” See Pet’r’s

Reply 5. However, even if counsel “attacked the indictment[,]”

Petitioner has failed to demonstrate that the outcome of the

proceedings would have been different, especially given the

admission of his extensive confession. 

Therefore, where Petitioner’s trial counsel acted

reasonably in not moving to dismiss the indictment, and where

Petitioner has not shown that his defense was prejudiced by

counsel’s actions, the Court finds that Petitioner has not

demonstrated that his trial counsel’s failure to suppress the

indictment rendered counsel’s assistance ineffective. 

2. Failure of Trial and Appellate Counsel to Move to

Suppress the Allegedly Suggestive “Show-Up”

Identification

Petitioner argues that he was deprived of effective

assistance of counsel when Mr. Furlong (1) failed to “consult

with [P]etitioner about moving for suppression of the suggestive

identification[;]” and (2) failed to file a motion to suppress

the “show-up” identification. See Pet’r’s Mot. 6; see also

Pet’r’s Reply 5. 

First, Petitioner has failed to demonstrate that his

counsel’s performance was deficient under prong one of

Strickland. In his § 2255 Motion, Petitioner alleges that

“[t]rial counsel failed to consult with petitioner about facts of
Petitioner alleges that counsel “refused” to file the 14

motion to suppress upon Petitioner’s request, but does not allege

that counsel neglected to explain to Petitioner that such a

motion likely would have been denied.

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moving for suppression[.]” See Pet’r’s Mot. 6. Although the

Supreme Court has noted that counsel has a duty to “keep the

defendant informed of important developments in the course of the

prosecution[,]” Petitioner does not state more than conclusory

accusations that counsel failed to discuss the possibility of

moving to suppress the “show-up” identification with him. See

Strickland, 466 U.S. at 688. In his Reply, Petitioner alleges

that counsel refused “to file the motion to suppress show-up upon

petitioner’s request[,]” and that “[c]ounsel was . . .

ineffective for not discussing the matter [of the ‘show-up’

identification] with petitioner.” See Pet’r’s Reply 3, 5. Here,

Petitioner has failed to demonstrate that he was not informed of

important developments throughout the course of his prosecution. 

His accusations do not provide the Court with any details of the

context and factual scenarios in which Petitioner believes he was

deprived of his right to consult with counsel. Petitioner 14

therefore has failed to demonstrate that he was not informed of

important developments in his case. As such, he cannot show that

counsel breached his duty or was ineffective under Strickland. 

Second, Petitioner has not shown that, by failing to

move to suppress the “show-up” identification, counsel’s
The following facts made the Government’s case 15

particularly strong. Petitioner was apprehended minutes after

the carjacking, directly after crashing the car and then

attempting to flee on foot while discarding a firearm. He was

identified shortly thereafter by the carjacking victim, who had

accurately described Petitioner’s appearance in earlier 911

calls. Finally, Petitioner gave a full confession, and signed

each page of the written statement to police.

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performance was deficient (i.e., unreasonable under objective

standards). Petitioner has failed to overcome the presumption

that counsel’s decision not to focus on suppressing the “show-up”

identification could be considered “sound trial strategy.” Id.

at 689. In light of Petitioner’s extensive confession that he

had taken the vehicle from Cruz at gunpoint, counsel chose to

focus on suppressing Petitioner’s written statement to police. 

See supra note 6; see also Strickland, 466 U.S. at 690 (finding

that counsel’s “strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable”). The Court contends that

Petitioner’s counsel’s strategy in the present case was within

the bounds of reasonableness. 

Further, Petitioner has not shown, or even alleged,

that the performance prejudiced his defense under prong two of

Strickland. There is no reasonable probability that the result

of the trial would have been different had the motion to suppress

the “show-up” identification been raised and granted, especially

given the strength of the Government’s case. See Gov’t’s Resp. 15
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29; see also Ditch v. Grace, 479 F.3d 249, 258-59 (3d Cir. 2007)

(noting that “the jury’s [guilty] verdict was supported by

overwhelming evidence of guilt” despite pretrial identification

evidence being a “relatively weak aspect” of the government’s

case).

For the aforementioned reasons, Petitioner did not

demonstrate ineffective assistance of counsel for failure to move

to suppress the “show-up” identification, under Strickland.

V. CONCLUSION

As stated above, Petitioner’s claim that the “show-up”

identification was impermissibly suggestive is procedurally

defaulted, and Petitioner’s ineffective assistance of counsel

claim fails to satisfy the two-prong Strickland test. Therefore,

Petitioner’s § 2255 Motion will be DENIED and the petition will

be DISMISSED.

An appropriate Order follows.