The opinion of the court was delivered by: Bartle, C.J.
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 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.
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 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 "well-groomed" 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 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 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 ...