concurring in part and dissenting in part.
I concur in affirming the trial court’s denial of the first 28-110 motion without a hearing, but not, as the majority does, based on lack of Strickland prejudice. With respect to the second 23-110 motion, which was filed during the pendency of the direct appeal, I disagree that the trial court need not have considered it on the merits on the ground that it was a “second or successive motion for similar relief.” D.C.Code § 23-110(e) (1996 Repl.) (permitting trial court not to entertain such a motion). Therefore, I would remand for the trial court’s consideration of the merits of the second 28-110 motion.
First 23-110 motion
In his first 23-110 motion, Thomas claimed that his trial counsel was ineffective because he failed to obtain and present a toxicology report on the percentage of alcohol in the complainant’s blood and to present a toxicologist who would explain to the jury how such a level of blood alcohol would be likely to affect the complainant’s ability to perceive accurately and to recall those perceptions. The majority disposes of the claim of ineffectiveness on the ground that there was no Strickland prejudice because of the purported strength of the complainant’s identification of Thomas as his attacker.
Unlike the majority, I do not think that the government’s case, nor the identification, was particularly strong. The only issue in contention before the jury was whether Thomas was the person who struck the complainant, Roberts, with a pipe for no apparent reason. The only evidence to that effect was provided by Roberts, who identified Thomas from a photo array and then picked him from a line-up several weeks after the incident. Roberts did not know Thomas personally, nor his name, but testified that he “remembered his face” from seeing him “all up and down Georgia Avenue.” There was serious doubt, however, about Roberts’ ability to accurately perceive, and later identify, Thomas. First, Roberts testified that, at the time of the incident, he was operating on 1 lh to 2 hours’ sleep after a night of drinking twenty-four beers. In addition to being inebriated when he was attacked, an equally serious doubt about Roberts’s credibility was raised by the fact that, right after the attack, he had identified by name a co-worker as involved in his attack — a fact that the majority fails to mention. This statement was made to the police officer who visited Roberts at the Washington Hospital Center where he was being treated for the injuries from the attack. Roberts then changed his mind and identified Thomas several weeks later as his assailant.1 The weakness of Roberts’s identification, when coupled with the randomness of the attack, and no apparent motive on the part of Thomas to attack Roberts, whom Thomas did not know, hardly makes for an overwhelming government case.
*826This weakness must be viewed in the context of Thomas’s argument that, had his trial counsel attacked Roberts’s credibility by presenting to the jury expert testimony on how impaired his perceptual abilities would have been from his heavy drinking, he would not have testified in order to present an alibi. As a result of taking the stand, Thomas was impeached with prior convictions including possession of an unregistered firearm, possession of unregistered ammunition, and carrying a pistol without a license (CPWL).2 I would therefore not dispose of the first 23-110 motion on a lack of Strickland prejudice grounded on the strength of the government’s case. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (defining prejudice as reasonable probability, that, but for counsel’s unreasonable performance, outcome of trial would be different, or confidence in verdict is lacking).3
Instead, I would affirm the trial court’s denial of the first 23-110 motion because, as the trial court determined, the allegedly deficient performance of counsel, the failure to introduce a toxicology report and to call a toxicology expert, was not so unreasonable as to fall below the range of acceptable performance by counsel in a case where Roberts had testified to drinking a case of beer and having almost no sleep the night before. As jurors are presumed to know the effects of such heavy drinking, see Harris v. District of Columbia, 601 A.2d 21 (D.C.1991), counsel reasonably could decide that they were able to evaluate the accuracy of a drunk Roberts’s identification of Thomas without expert assistance.
Second 23-110 motion
The trial court determined that it had no obligation to consider the second 23-110 motion because Thomas had not shown “cause and prejudice” for his failure to raise those claims of ineffective assistance of counsel during his first collateral attack See Head v. United States, 489 A.2d 450, 451 (D.C.1985) (“Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.”). The majority affirms on the same basis, relying on Matos v. United States, 631 A.2d 28, 30 (D.C.1993). I disagree that Matos answers the question presented by this appeal because Matos concerned a situation where appellant “failed to raise an available challenge to his conviction on direct appeal,” yet “launched several similar collateral attacks on his conviction.” Id. Here, on the other hand, Thomas’s two 23-110 motions were filed while the direct appeal was pending and had been stayed, pursuant to our direction in Shepard v. United States, 533 A.2d 1278, 1280 (D.C.1987) (indicating that an appellant who is aware of a basis for alleging ineffective assistance of trial counsel should file .a § 23-110 motion during the pendency of a *827direct appeal). Thomas’s second 23-110 motion was filed after the trial court had denied his first motion alleging ineffectiveness (which concerned different claims of deficient performance) but before any of the claims concerning his trial and collateral attacks had been briefed, argued or addressed by this court. Whether such a claim is procedurally defaulted is a question of first impression. It is to that issue that I turn my analysis.
Let me state at the outset that I would have deferred our decision in this case until the en banc court considers the statutory and constitutional obligations of appellate counsel and the continued validity of the Shepard rule in Williams v. United States, 760 A.2d 205 (D.C.2000), reh’g granted, 770 A.2d 560 (D.C.2001). In that case, the en banc court is faced with the question whether appellate counsel’s failure to file a notice of appeal from the denial of a 28-110 motion filed contemporaneously with direct appeal prevents appellate review of the claim of ineffectiveness of trial counsel. The issue in this case, though not identical, also presents a question about the performance of appellate counsel who procedurally defaults his Ghent’s claim of ineffectiveness of trial counsel. In Williams, the defendant argues that the trial court’s denial of his claim on the merits for ineffective assistance of trial counsel is entitled to appellate review, whereas here, the defendant’s claim of ineffectiveness of trial counsel presented in his second 23-110 motion has not been reviewed by any court, at any level. The full court’s consideration of the issues in Williams would undoubtedly be helpful to our consideration of this case.4
In Shepard, we established that appellants who are “aware of a basis for alleging ineffective assistance of trial counsel” should file 23-110 motions alleging such ineffectiveness during the pendency of the direct appeal as a way of “making a record regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct appeal.” 533 A.2d at 1280. To provide some “teeth” to that requirement, we also announced the prospective application of a new rule that if an appellant does not do so, “that procedural default will be a barrier to this court’s consideration of appellant’s claim.” Id. at 1280 (emphasis added).5 We did not address whether consideration by the trial court would be similarly precluded, but Shepard’s focus on the pendency of direct appeal suggests that 23-110 motions filed during the pendency of direct appeal comply with Shepard requirements. Both the language of Shepard, as well as its purpose of developing a record on the ineffectiveness claims to supplement the record on *828direct appeal, argue against the majority’s position that Thomas’s second 23-110 claim has been procedurally defaulted.
The trial court and the majority rely on D.C.Code § 2S-110(e), which provides that the trial court “shall not be required to entertain a second or successive motion for similar relief.” Thomas’s second 23-110 motion, which raised claims of ineffectiveness different than those raised in his first motion, was not a “successive” motion. See Junior v. United States, 634 A.2d 411, 417 n. 15 (D.C.1993) (citing McCleskey v. Zant, 499 U.S. 467, 487, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), for the proposition that a “successive motion is identical to the first motion”); see also Hurt v. St. Elizabeths Hospital, 366 A.2d 780, 781 (D.C.1976) (noting that allegations that “merely repeat the previously rejected contentions ... need not have been considered by the trial judge”).
The question, therefore, is whether Thomas’s second 23-110 motion need not be entertained as a “second ... motion for similar relief.” D.C.Code § 23-110(e). Although we have not previously expressly interpreted the meaning of a “second” motion for purposes of 23-110(e), we have suggested that it is one that would constitute an “abuse of the writ.” See Junior, 634 A.2d at 417 n. 15 (indicating that a second motion that alleges a new ground might be considered an abuse of writ); cf. McCleskey, 499 U.S. at 487-88, 111 S.Ct. 1454 (importing court-made “abuse of the writ” jurisprudence in defining when a second or subsequent habeas petition by a state prisoner under 28 U.S.C. § 2244(b) (1994) “need not be entertained by” a federal court).6 In interpreting the statutory reference to “second” motions we should do so with the interests in finality that animate “abuse of the writ” jurisprudence. 499 U.S. at 491, 111 S.Ct. 1454. The Supreme Court has identified those interests as preservation of the deterrent effect of convictions and protection of the government’s interest in prosecuting criminal behavior by avoiding the “ ‘erosion of memory and ‘dispersion of witnesses’ ” that can occur with delayed retrials. Id. (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)).7 Efficiency is another interest protected by the doctrine of finality, for “collateral litigation places a heavy burden on scarce judicial resources, and threatens the capacity of the system to resolve primary disputes.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 260, 93 S.Ct. 2041 (1973) (Powell, J., concurring)).8
To balance those concerns against a prisoner’s interest in judicial review of *829meritorious claims, the Court settled on “cause and prejudice,” and defined “cause” as requiring a showing that “some objective factor external to the defense impeded counsel’s efforts” to raise the claim in the first petition. Id. at 493, 111 S.Ct. 1454 (quoting Murray, 477 U.S. at 488, 106 S.Ct. 2689). In addition, the Court specified, “constitutionally ‘ineffective assistance of counsel ... is cause’ ” for this purpose. Id. at 494, 111 S.Ct. 1454 (quoting Murray, 477 U.S. at 488, 106 S.Ct. 2639). Once “cause” is established, the petitioner must show “actual prejudice” resulting from the claimed errors.9
If we follow the Court’s “cause and prejudice” analysis in the context of this appeal, it becomes immediately apparent that a meritorious claim of ineffective assistance of trial counsel will suffice to establish cause and prejudice if there was a constitutional right to effective assistance of appellate counsel. Although there is no constitutional right to counsel on collateral attack, see Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Brown v. United States, 656 A.2d 1133, 1136 (D.C.1995), there is a constitutional right to counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). In discussing the due process right to counsel under the Fourteenth Amendment, the Court distinguishes between appeals as of right and discretionary appeals. See Ross v. Moffitt, 417 U.S. 600, 610, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (holding that neither the Due Process Clause nor the Fourteenth Amendment’s equal protection guarantee requires the appointment of counsel for discretionary appeals where defendant has already had one appeal as of right). It is at this juncture that the filing of the second 23-110 motion during the pendency of direct appeal becomes significant. Thomas’s direct appeal to this court is a matter of right, see D.C.Code § 11-721 (1995 Repl.), and so he has a constitutional right to counsel for that appeal. See Evitts, 469 U.S. at 396, 105 S.Ct. 830. As we have said, the purpose of filing 23-110 motions claiming ineffective assistance of trial counsel during the pendency of direct appeal is to develop a record to supplement the direct appeal, and to consolidate our consideration of all claims into one appeal. See Shepard, 533 A.2d at 1280. Thus, the constitutional right to counsel is *830implicated in the presentation of 23-110 motions which are subsidiary to and supplement the direct appeal. If the failure to include a meritorious claim of ineffective assistance of trial counsel as part of the first 23-110 motion means that the trial court never considers it on the merits under D.C.Code § 23-110(e), and, consequently, is not part of the record on direct appeal, appellate counsel’s failure constitutes “cause” which excuses the procedural default.10 Cf. Coleman v. Thompson, 501 U.S. 722, 756-757, 111 S.Ct. 2546, 2568-2569, 115 L.Ed.2d 640, 672-673 (1991) (holding that appellate counsel’s deficient performance that procedurally defaulted the federal habeas claim by failing to file a timely appeal from state post-conviction proceeding does not constitute “cause” where defendant has already had his “one and only appeal,” which involved a two-day evidentiary hearing in a state court considering ineffectiveness of trial counsel).
Under these circumstances, where a 23-110 motion making a constitutional claim of ineffective assistance of trial counsel is filed during the pendency of the direct appeal, I would conclude that because a merits review may establish “cause,” the motion should not have been dismissed as a “second” motion for purposes of 23-110(e). Thus, I would remand for the trial court’s consideration of the merits.11
. Roberts initially told police that Mr. Carter, a co-worker and associate with whom Roberts had a physical altercation approximately one week prior to the assault, had accompanied his assailant and was involved in the attack. Roberts admitted that he lied about Carter's involvement "because [he] wanted to get” Carter for having assaulted him a week earlier.
. When cross-examining appellant, the prosecutor mistakenly characterized appellant's CPWL conviction as a conviction for carrying a dangerous weapon (CDW) and then argued in closing argument that appellant lied when he denied the CDW conviction. Appellant argued in his second 23-110 motion that trial counsel was ineffective for not objecting to the prosecutor’s cross-examination and closing argument at trial.
. For the same reason, I would not conclude that the claim that the trial court erred in failing sua sponte to prevent or correct the prosecutor’s cross-examination and closing argument made on direct appeal was harmless. See ante at 8. As the majority correctly points out at the beginning of its analysis, those claims were not made to the trial court and our review is limited to plain error. See ante at 7. I conclude there is no plain error.
. The en banc court has requested that the parties in Williams address, inter alia, the following issues:
1. Does an attorney appointed to represent a defendant on appeal tinder the Criminal Justice Act, and who files a contemporaneous motion to vacate sentence under D.C.Code Section 23-110 in accordance with Shepard v. United States, 533 A.2d 1278 (D.C.1987), have a statutory duty to take necessary steps to preserve the denial of that motion for appellate review?
2. If so, does the breach of that duty violate due process, see Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); see also, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), which may constitute “cause” and therefore excuse the failure to note an earlier appeal in a subsequent collateral attack proceeding?
3.If the answer to question 1 is "no,” does the due process right to effective assistance of counsel on direct appeal, see Evitts, supra, include the obligation of counsel to preserve for appeal the denial of a contemporaneous Section 23-110 motion?
Williams, 770 A.2d 560.
. The barrier is not insurmountable, however, if the appellant can show "cause and prejudice.” Id. at 1282.
.The version of 28 U.S.C. § 2244 interpreted in McCleskey stated that "a subsequent application for a writ of habeas corpus ... need not be entertained by a court of the United States ... unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ." 28 U.S.C. § 2244(b) (1994). In language similar to D.C.Code § 23-110(e), the habeas statute applicable to persons in federal custody, 28 U.S.C. § 2255(b), provided prior to a 1996 amendment that: "[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief." 28 U.S.C. § 2255 (1994). The procedure in federal court to address second or successive motions was amended in 1996 to require a certification by the appeals court in accordance with specified criteria. See 28 U.S.C. §§ 2244, 2255 (2000 Supp.).
. In the federal habeas context, "the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights” are also frustrated. Id. (quoting Murray v. Carrier, 477 U.S. 478, 487, 106 S.Ct. 2639 (1986)). This concern does not apply in the context of our review of 23-110 motions.
. In this case, only the interest in efficiency is implicated by the unexplained three-year lapse in filing the second 23-110 motion, as consideration of that motion would require the trial court to address ineffectiveness of *829trial counsel at two different times. There are no witnesses whose memory was necessary to present or evaluate the claim that counsel was ineffective in failing to object to the prosecutor's cross-examination and closing statement. Further, because the direct appeal was pending, the second 23-110 motion did not delay the deterrent value of a final conviction, nor put off the time when the government would have to retry the defendant in the event of reversal on appeal.
. Of course, even if cause and prejudice are not established, a habeas petition must be entertained if the judge considers that the "ends of justice” require it. Id. at 495, 111 S.Ct. 1454. "The miscarriage of justice exception to cause serves as ‘an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,' guaranteeing that the ends of justice will be served in full.” Id. (quoting Stone v. Powell, 428 U.S. 465, 491, n. 31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).) Because our 23-110 procedures are considered the equivalent of federal collateral attack review, see D.C.Code § 23-110(g) (1996 Repl.) (exempting D.C. prisoner claims from federal habeas review unless D.C. procedures are "inadequate or ineffective to test the legality of his detention”); Garris v. Lindsay, 254 U.S.App. D.C. 13, 17, 794 F.2d 722, 726 (1986), the restriction in 23-110(e) with respect to "second or successive” motions also should be subject, as are the federal procedures, to an "ends of justice” exception. See Diamen v. United States, 725 A.2d 501, 525 (1999) (Ruiz, J., dissenting) (noting that habeas corpus in federal courts is an equitable inquiry that provides a remedy when required by the "ends of justice”).
. I am aware that we have said that "[t]he pendency of a direct appeal does not give appellant any greater right to appointment of counsel for a § 23-110 motion than he would otherwise have.” Kyle v. United States, 759 A.2d 192, 201 (D.C.2000) (citing Doe v. United States, 583 A.2d 670, 675 (D.C.1990)). Those cases dealt with the requirement that there be a threshold showing on the merits before appointment of counsel is required for a 23-110 motion; specifically, counsel is required where a hearing must be held. See Doe, 583 A.2d at 672. Although the issue of entitlement to counsel is certainly related to this appeal and to the en banc court’s consideration of 'Williams, see supra note 4, those cases assume trial court consideration of the merits of a 23-110 motion before deciding whether a hearing and appointment of counsel are called for; and do not deal with the specific issue presented here, where a 23-110 motion presented to the trial court during the pendency of direct appeal receives no consideration by the trial court. Similarly, in Lee v. United States, 597 A.2d 1333 (D.C.1991), in which the court did not focus on the significance that the purpose of filing a 23-110 motion contemporaneously with a direct appeal is to supplement that appeal, the trial court had denied the motion on the merits, not dismissed it under 23-110(e). See id. at 1334.
. Appellant argued in his second 23-110 motion that trial counsel was ineffective for failing to object to the prosecutor's mis-charac-terizing appellant’s CPWL conviction and then unfairly labeling appellant as an "out- and-out li[ar],” who "would do almost anything to avoid conviction.” See supra note 2. While I do not decide whether the claim of ineffective assistance of trial counsel, in the final analysis, would be meritorious, given the earlier discussion about the weakness of the government's case, I cannot say that the trial court could not have found the claim to be meritorious. It is for the trial judge, who observed the trial, to evaluate the impact of counsel’s claimed deficient performance on the jury in the first instance.