21-1531 Steele v. US
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of April, two thousand twenty-three.
PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________
JOSEPH STEELE,
Petitioner-Appellant,
v. No. 21-1531
UNITED STATES OF AMERICA,
Respondent-Appellee. _________________________________________
FOR APPELLANT: LAWRENCE D. GERZOG, Law Offices of Lawrence Gerzog, New York, NY. FOR APPELLEE: JILAN KAMAL, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Marrero, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order entered on June 11, 2021, is
AFFIRMED.
Petitioner-Appellant Joseph Steele appeals from the district court’s denial
of his petition for relief pursuant to 28 U.S.C. § 2255, in which he argued that he
received ineffective assistance of counsel when his trial counsel (1) failed to call a
forensic expert who would have testified about her gunshot residue testing that
found no residue on the jacket Steele was wearing when he allegedly fired the
gun; (2) failed to introduce into evidence the glove allegedly recovered from his
possessions when he was arrested, along with the forensic report finding that his
DNA was not identified on the glove, and failed to call the police officer who
claimed to have found the glove in Steele’s possession, in order to show
irregularities in the police investigation. We assume the parties’ familiarity with
2 the underlying facts, procedural history, and arguments on appeal, to which we
refer only as necessary to explain our decision to affirm.
To establish ineffective assistance of counsel, Steele must show that his
attorney’s performance, considering the totality of the evidence before the jury,
was both objectively unreasonable and prejudicial to his defense. See Strickland v.
Washington, 466 U.S. 668, 669, 687–88, 692 (1984). To satisfy the first prong, Steele
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness in light of “prevailing professional norms.” 1 Id. at 688. To satisfy
the second prong, Steele must demonstrate a “reasonable probability that, but for
[his] counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. When determining whether counsel was ineffective, a
court need not address both prongs if the movant fails to make a showing on
either one. See id. at 697. Both the performance and prejudice prongs of the
ineffectiveness inquiry are mixed questions of law and fact, and we review a
district court’s conclusions as to each without deference to the district court.
Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).
1 In quotations from caselaw and the parties’ briefing, this order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.
3 1. Gunshot Residue Testimony
Shortly before trial, Steele moved to admit a gunshot residue report by a
Forensic Criminalist from the New York Police Department Laboratory that
detected no gunshot residue on the burgundy jacket worn by Steele when he
allegedly fired the gun. On the basis of various deficiencies in the report’s
analysis, the government opposed the motion, arguing that the report would be
misleading without the necessary explanation and context from the criminalist.
Specifically, the government had learned that the criminalist used a low-power
microscope that can adequately identify residue only on victims’ clothing or
surfaces actually struck by a bullet. The NYPD laboratory does not use the
higher-powered industry-standard microscope on clothing due to resource-
allocation issues. The government also learned from the criminalist that gunshot
residue is not commonly found on the shooter unless the shooter’s clothes were
burned or singed by the gunfire; certain materials are more efficient than others
at retaining residue; environmental conditions and the act of running can easily
brush gunshot residue from clothing; and the passage of time can reduce the
likelihood that gunshot residue will persist on a surface.
4 The district court ruled that the report was not admissible without the
testimony of the criminalist—a ruling we affirmed on appeal. See United States v.
Steele, 729 F. App’x 47, 49-50 (2d Cir. 2018).
At trial, Steele’s counsel initially planned to call the criminalist to testify in
order to introduce the report. However, as he explained to the district court later
in the trial, he made a strategic decision not to call the criminalist because he
concluded that the testimony of other witnesses about how gunshot residue may
land on a shooter was sufficient to enable him to make an argument about
gunshot residue. As it turned out, the district court sustained the government’s
objection to Steele’s counsel’s attempt to make an argument about gunshot
residue in closing.
In seeking relief under § 2255, Steele argues that counsel was ineffective
for failing to call the criminalist as a witness and ensure admission of her
conclusion that there was no gunshot residue detected on Steele’s jacket. He
contends that the jury’s question to the court in the midst of deliberations
highlights the prejudice to his case arising from his counsel’s misjudgment. In
particular, the jury asked, “was the jacket [Steele was wearing] checked for gun
powder residue?” App’x 144. The court ultimately informed the jury that no
5 evidence in testimony or any exhibits indicates whether the jacket was checked
for gunshot residue.
We conclude that even if Steele could show that counsel’s performance
was objectively unreasonable in light of prevailing norms, he has not shown a
reasonable probability of prejudice. The evidence against him was strong, and
the probative value of the gunshot residue evidence—qualified by evidence of all
the deficiencies and limitations in that analysis—would have been minimal.
The government’s evidence against Steele was robust. In particular, the
government introduced the following evidence:
• An eyewitness saw a man wearing a burgundy jacket point a gun and heard the sound of a gunshot.
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21-1531 Steele v. US
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of April, two thousand twenty-three.
PRESENT: GUIDO CALABRESI, RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________
JOSEPH STEELE,
Petitioner-Appellant,
v. No. 21-1531
UNITED STATES OF AMERICA,
Respondent-Appellee. _________________________________________
FOR APPELLANT: LAWRENCE D. GERZOG, Law Offices of Lawrence Gerzog, New York, NY. FOR APPELLEE: JILAN KAMAL, Assistant United States Attorney (Hagan Scotten, Assistant United States Attorney, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Marrero, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order entered on June 11, 2021, is
AFFIRMED.
Petitioner-Appellant Joseph Steele appeals from the district court’s denial
of his petition for relief pursuant to 28 U.S.C. § 2255, in which he argued that he
received ineffective assistance of counsel when his trial counsel (1) failed to call a
forensic expert who would have testified about her gunshot residue testing that
found no residue on the jacket Steele was wearing when he allegedly fired the
gun; (2) failed to introduce into evidence the glove allegedly recovered from his
possessions when he was arrested, along with the forensic report finding that his
DNA was not identified on the glove, and failed to call the police officer who
claimed to have found the glove in Steele’s possession, in order to show
irregularities in the police investigation. We assume the parties’ familiarity with
2 the underlying facts, procedural history, and arguments on appeal, to which we
refer only as necessary to explain our decision to affirm.
To establish ineffective assistance of counsel, Steele must show that his
attorney’s performance, considering the totality of the evidence before the jury,
was both objectively unreasonable and prejudicial to his defense. See Strickland v.
Washington, 466 U.S. 668, 669, 687–88, 692 (1984). To satisfy the first prong, Steele
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness in light of “prevailing professional norms.” 1 Id. at 688. To satisfy
the second prong, Steele must demonstrate a “reasonable probability that, but for
[his] counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. When determining whether counsel was ineffective, a
court need not address both prongs if the movant fails to make a showing on
either one. See id. at 697. Both the performance and prejudice prongs of the
ineffectiveness inquiry are mixed questions of law and fact, and we review a
district court’s conclusions as to each without deference to the district court.
Bennett v. United States, 663 F.3d 71, 85 (2d Cir. 2011).
1 In quotations from caselaw and the parties’ briefing, this order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.
3 1. Gunshot Residue Testimony
Shortly before trial, Steele moved to admit a gunshot residue report by a
Forensic Criminalist from the New York Police Department Laboratory that
detected no gunshot residue on the burgundy jacket worn by Steele when he
allegedly fired the gun. On the basis of various deficiencies in the report’s
analysis, the government opposed the motion, arguing that the report would be
misleading without the necessary explanation and context from the criminalist.
Specifically, the government had learned that the criminalist used a low-power
microscope that can adequately identify residue only on victims’ clothing or
surfaces actually struck by a bullet. The NYPD laboratory does not use the
higher-powered industry-standard microscope on clothing due to resource-
allocation issues. The government also learned from the criminalist that gunshot
residue is not commonly found on the shooter unless the shooter’s clothes were
burned or singed by the gunfire; certain materials are more efficient than others
at retaining residue; environmental conditions and the act of running can easily
brush gunshot residue from clothing; and the passage of time can reduce the
likelihood that gunshot residue will persist on a surface.
4 The district court ruled that the report was not admissible without the
testimony of the criminalist—a ruling we affirmed on appeal. See United States v.
Steele, 729 F. App’x 47, 49-50 (2d Cir. 2018).
At trial, Steele’s counsel initially planned to call the criminalist to testify in
order to introduce the report. However, as he explained to the district court later
in the trial, he made a strategic decision not to call the criminalist because he
concluded that the testimony of other witnesses about how gunshot residue may
land on a shooter was sufficient to enable him to make an argument about
gunshot residue. As it turned out, the district court sustained the government’s
objection to Steele’s counsel’s attempt to make an argument about gunshot
residue in closing.
In seeking relief under § 2255, Steele argues that counsel was ineffective
for failing to call the criminalist as a witness and ensure admission of her
conclusion that there was no gunshot residue detected on Steele’s jacket. He
contends that the jury’s question to the court in the midst of deliberations
highlights the prejudice to his case arising from his counsel’s misjudgment. In
particular, the jury asked, “was the jacket [Steele was wearing] checked for gun
powder residue?” App’x 144. The court ultimately informed the jury that no
5 evidence in testimony or any exhibits indicates whether the jacket was checked
for gunshot residue.
We conclude that even if Steele could show that counsel’s performance
was objectively unreasonable in light of prevailing norms, he has not shown a
reasonable probability of prejudice. The evidence against him was strong, and
the probative value of the gunshot residue evidence—qualified by evidence of all
the deficiencies and limitations in that analysis—would have been minimal.
The government’s evidence against Steele was robust. In particular, the
government introduced the following evidence:
• An eyewitness saw a man wearing a burgundy jacket point a gun and heard the sound of a gunshot.
• While chasing Steele, a responding officer observed Steele holding a black object in his left hand, and heard a metallic clattering sound after he witnessed Steele make a swinging motion across his body with his left hand.
• That same officer found a firearm near where he heard the clattering sound, approximately twenty feet from where Steele was arrested.
• Ballistics experts determined that a shell casing found near the location where the eyewitness said a man pointed and fired a gun was fired from the firearm the officer found.
• Multiple witnesses observed that Steele was wearing a burgundy jacket when arrested.
• And a surveillance video corroborated this account of events.
6 In contrast, the probative value of evidence that Steele’s jacket did not bear
gunshot residue, qualified by the likely accompanying evidence concerning the
deficiencies in the analysis and the limitations of the conclusion, would have
been marginal. On this record, we conclude that there is no reasonable
probability that any deficiency in counsel’s representation for failing to call the
criminalist affected the outcome of Steele’s case. See Strickland, 466 U.S. at 700.
2. Evidence Relating to the Glove
Steele also argues that trial counsel was deficient because he refused to
open a line of defense designed to show that the glove Steele allegedly had in his
possession at the time of his arrest was planted. In particular, he contends that
trial counsel was ineffective in failing to introduce the glove and the DNA
reports finding that his DNA was not identified on the glove, and then failing to
call the police officer who claimed to have found the glove in Steele’s possession
to raise the inference through cross-examination that the glove had been planted.
Steele’s argument overlooks the critical fact that the jury never learned of
the glove’s existence because the parties both agreed not to introduce the glove
into evidence. As a result of this agreement, Steele lost the ability to pursue his
planted-glove theory, but gained the ability to emphasize to the jury that forensic
experts had not found any of Steele’s DNA or fingerprints on the gun—an
7 argument that would have lost considerable force if the jury concluded that
Steele was wearing a glove when he fired and ran with the gun.
Given this trade-off, even if counsel’s strategic decision to forego the
planted-glove theory fell below professional norms, Steele could not show a
reasonable probability that the trade-off prejudiced him. As noted above, the
evidence against Steele was strong. And had the jury learned about the glove, it
is reasonably likely that that information would have hurt Steele’s case more than
any benefit he could derive from suggesting to the jury that an officer had
planted a glove on him after his arrest. That’s especially true because, although
the DNA testing ruled out Steele as a contributor of the major component of
DNA on the glove, it was inconclusive as to the minor component of DNA on the
glove and thus did not rule Steele out.
* * *
For the above reasons, the district court’s order is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court