Steele v. United States of America

Filing 25

DECISION AND ORDER re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Joseph Steele. Accordingly, for the reasons stated above, it is hereby ORDERED that petitioner Joseph Steele's motion to vacate, set aside, or correct hi s sentence pursuant to 28 U.S.C. § 2255 (United States v. Steele, No. 15 CR 836 (the "Criminal Docket"), Dkt. No. 84; Steele v. United States, No. 20 Civ. 1151 (the "Civil Docket"), Dkt. No. 1.) is DENIED. The Clerk of Court is hereby directed to mail this Order to Joseph Steele, Register Number 73353-054, at F.C.I. Hazelton, P.O. Box 5000, Bruceton Mills, WV 26525 and note service in the docket. Because Steele has failed to demonstrate a denial of a constitutional right, a certificate of appealability will not issue. SO ORDERED. (Signed by Judge Victor Marrero on 6/4/2021) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
JOSEPH STEELE,
:
Petitioner,
:
:
15 CR 836(VM)
-against:
20 Civ. 1151 (VM)
:
DECISION AND ORDER
UNITED STATES OF AMERICA,
:
:
Respondent.
:
---------------------------------X
VICTOR MARRERO, United States District Judge:
On October 28, 2016, petitioner Joseph Steele (“Steele”)
was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and (2). Now before the
Court is Steele’s pro se motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. (See
“Motion,”

United

States

v.

Steele,

No.

15

CR

836

(the

“Criminal Docket”), Dkt. No. 84; Steele v. United States, No.
20 Civ. 1151 (the “Civil Docket”), Dkt. No. 1.) The Government
opposes the Motion. (“Opposition,” Criminal Docket, Dkt. No.
89, at 9.) For the following reasons, the Motion is DENIED.
I.
A.

BACKGROUND

PROCEDURAL HISTORY
On February 19, 2016, Steele was charged with one count

of being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 2. The indictment alleged that
Steele had three predicate felonies subjecting him to a
sentencing enhancement under the Armed Career Criminal Act,

1

18 U.S.C. § 924(e)(1). The charges stemmed from an incident
that took place on October 10, 2015 in which Steele pulled
out a gun and fired it during an argument with three other
men. On October 28, 2016, following a four-day jury trial,
Steele was convicted of this charge. Steele was sentenced to
180 months’ imprisonment, followed by five years’ supervised
release.
1. The Government’s Case
According to the Government’s case, Steele pulled out a
gun and fired it during an argument with three other men on
the corner of West 175th Street and Macombs Road in the Bronx,
New

York.

The

Government’s

evidence

included

eyewitness

testimony that a man in a burgundy jacket pointed a gun at a
man wearing a black sweater and a gunshot sounded after the
eyewitness
introduced,

turned

away.

which

showed

Surveillance
a

man

in

video
a

was

burgundy

also
jacket

brandishing an object in his left hand and pointing it toward
the feet of a darkly clothed man in front of him, followed by
what appeared to be a muzzle flash from the object.
New York Police Department (“NYPD”) Officers Burgos,
Pineda, and Guzman drove to the scene of the shooting in
response to the eyewitness’s 911 call. There, Officer Burgos
saw a group of three or four men, with one man standing
slightly apart from the others clutching something inside his

2

jacket pocket. When Officer Burgos ordered the men to stand
still, the man holding something inside his jacket pocket -who the Government contended was Steele -- fled. Officer
Burgos gave chase and observed a black object in Steele’s
left hand. During the pursuit, he saw Steele make a swinging
motion across his body with his left hand followed by a
metallic clatter coming from the line of cars parked along
the sidewalk.
A second group of officers, including Officer Perdomo,
intercepted Steele further up the block. After Steele was
under control, Officer Burgos returned to the spot where he
had heard the metallic clatter and found a loaded .380
semiautomatic pistol between the curb and the tire of a parked
car. Officer Guzman testified that he found a spent .380 shell
casing near the corner of West 175th Street and Macombs Road.
Officer Pineda corroborated Officer Burgos’s account and
added that Steele had been wearing a burgundy jacket, which
he subsequently vouchered at the precinct. The officers’
testimony was also corroborated by surveillance footage.
Furthermore, a ballistics expert testified that the .380
casing had been fired from the same .380 semiautomatic pistol
recovered by the officers that night, approximately twenty
feet from where Steele was arrested.
DNA

testing

of

the

firearm

3

was

conducted,

and

criminalist Asako Ishii testified that Steele’s DNA was not
detected on the gun (though other peoples’ DNA was). The
criminalist

testified

about

how

skin

cells

and

the

DNA

contained therein may be left on surfaces, noting that some
people shed skin cells more than others, some surfaces like
metal

retain

DNA

poorly,

and

environmental

factors

like

application of physical force to the surface by wiping or
brushing may affect whether an individual’s DNA persists on
the surface.
2. Evidence Not Introduced
As

relevant

to

the

instant

motion,

three

pieces

of

evidence were not introduced at trial. First is the testimony
of Vanessa Martinez, a Forensic Criminalist with the NYPD
Police Laboratory, as well as the NYPD Gunshot Residue report
Martinez prepared. Before trial, Steele moved to admit this
report. Steele sought to introduce the report through the
hearsay exception for “a record or statement of a public
office.” The report concluded that no gunshot residue had
been detected on the burgundy jacket worn by Steele.
Upon further discussion with Martinez, the Government
learned that Martinez used a low power microscope and not a
Scanning Electron Microscope (“SEM”). A SEM is the industry
standard tool for identifying gunshot residue because a lowpowered microscope can adequately identify residue only on

4

victims’ clothing or surfaces actually struck by a bullet.
The NYPD laboratory does not use a SEM on clothing due to
resource-allocation issues. The Government also learned from
Martinez that gunshot residue is not commonly found on the
shooter unless the shooter’s clothes were burned or singed by
the gunfire, and certain materials are more efficient than
others

at

retaining

residue.

Moreover,

environmental

conditions and the act of running can easily brush gunshot
residue from clothing. The passage of time can also reduce
the likelihood that gunshot residue will persist on a surface.
The Government opposed the introduction of the gunshotresidue report because it contained expert opinion that had
not been admitted under Rule 702; because it was unreliable
in that it failed to disclose serious deficiencies concerning
the circumstances of the analysis it purported to carry out;
and

without

the

necessary

explanation

and

context

from

Martinez, admission of the report would mislead the jury and
was therefore more prejudicial than probative. The Court
agreed

that

the

report

was

not

admissible

without

the

testimony of Martinez as well, a ruling which was affirmed by
the Second Circuit. United States v. Steele, 729 F. App’x 47,
49-50 (2d Cir. 2018).
Ultimately, the defense called no witnesses, not even
Martinez, even though she was present at trial. Defense

5

counsel explained that he did not do so because “[l]ooking
over the record as it came in, I had Ms. Martinez here today,
we made a strategic decision not to call her because the
record, as I just read it to the Court, allowed me to make
that argument about gunshot residue” as part of a larger
argument

about

the

inadequacy

of

the

investigation

(for

failure to do testing at the scene). (Trial Tr. at 304.) The
Court

rejected

the

defense’s

attempt

to

argue

that

an

inadequate investigation can be inferred based on the failure
to

do

gunshot-residue

testing

at

the

scene.

The

Court

concluded that such an inference would be unfair for two
reasons. First, the two witnesses the defense sought to rely
on, Officer Burgos and Detective Fox, were not experts.
Second, the surveillance footage showed officers pursuing
Steele and the other individuals present drifting away, so
there was no opportunity for the officers to conduct further
testing on other individuals at the scene.
The jury began deliberations on October 27, 2016. One of
the jury’s requests was for clarification on whether the
burgundy jacket had been checked for gunpowder residue. While
defense counsel argued that the jury should be referred to
Officer

Burgos

and

Detective

Fox’s

testimony,

the

Court

ultimately informed the jury that “the trial record contains
no evidence in testimony or any exhibit that states whether

6

or not the jacket was checked for gun powder residue,” with
the closest testimony coming from Officer Burgos, who said
that the jacket “was sent to the lab. I don’t know what kinds
of testings were done on it.” (Trial Tr. at 362-63.)
B.

THE PARTIES’ ARGUMENTS
In his Section 2255 motion, Steele alleges that he was

denied effective assistance of counsel when his trial counsel
(1) failed to call Vanessa Martinez, a Forensic Criminalist
with the NYPD Police Laboratory, to testify; (2) failed to
call Officer Perdomo to testify about a glove that Perdomo
had recovered from Steele following Steele’s arrest; and (3)
failed to introduce the glove into evidence. Steele contends
that had defense counsel called Martinez, the report finding
no residue on his jacket could have been introduced. (Motion
at 5.) Steele also contends that introduction of the glove,
and the related report finding that his DNA was not identified
on the glove, would have proven that Officer Perdomo had
planted

the

glove.

Steele

believes

this

evidence

was

exculpatory and would have changed the outcome of his trial
in light of the jury’s question about whether gunshot residue
was found on the jacket, and because casting doubt on Officer
Perdomo’s

credibility

would

have

been

enough

to

sow

reasonable doubt of Steele’s guilt.
The Government responds that Steele received effective

7

assistance of counsel and that any alleged errors were not
prejudicial. The Government argues that Martinez’s testimony
would

have

exposed

scientifically
Similarly,

the

flawed,

that
so

Government

the
its

gun-residue

conclusion

argues

that

was

the

test

was

worthless.

testimony

of

Officer Perdomo regarding the glove and the DNA results would
have harmed, not helped, Steele’s defense. Because Officer
Perdomo was not involved in the collection of the key, direct
evidence, such as the surveillance video and the firearm or
shell casing, the relevant evidence would not have been
affected. Moreover, the DNA analysis only excluded Steele as
the primary contributor of DNA on the firearm, but there were
multiple unidentified secondary DNA contributors, so Steele
could

have

been

a

secondary

contributor.

Given

this

possibility, the evidence would likely have harmed Steele’s
defense, because it would have provided an explanation for
why Steele’s DNA was not found on the firearm. For these
reasons, the Government argues that defense counsel’s actions
were sound strategic decisions that the Court should not
second guess, and that in any event, the failures were not
prejudicial.
In his reply memorandum of law, Steele argues that
Martinez’s testimony would have been nonetheless valuable in
furthering his inadequate-investigation defense, because the

8

fact that a purported expert had used a scientifically flawed
test suggests that the investigation was subpar. Steele also
contends that the DNA report of the glove excluded him as a
contributor of the DNA samples found on the glove. Steele
further argues that the failure to call experts and admit the
scientific

exhibits

at

issue

constitutes

ineffective

performance under United States v. Nolan, 956 F.3d 71 (2d
Cir. 2020), and Bell v. Miller, 500 F.3d 149 (2d Cir. 2007).
II.

LEGAL STANDARD

“In order to establish an ineffective assistance claim,
a

petitioner

must

show

that

counsel’s

performance

was

deficient, and that the deficiency prejudiced the defense.”
Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). With
respect to the performance prong, “counsel should be strongly
presumed to have rendered adequate assistance and made all
significant
professional

decisions
judgment.

in

the

exercise

To

overcome

that

of

reasonable

presumption,

a

defendant must show that counsel failed to act reasonably
considering all the circumstances.” Cullen v. Pinholster, 563
U.S. 170, 189 (2011) (internal quotation marks, brackets, and
citations omitted). While courts are thus deferential to
defense counsel’s strategic decisions, those decisions must
be

within

“the

wide

range

of

reasonable

professional

assistance.” Strickland v. United States, 466 U.S. 668, 689

9

(1984).
Not all strategic decisions are insulated. The Second
Circuit recently held that defense counsel’s failure to bring
a pretrial motion to exclude eyewitness testimony -- even
when done for the strategic decision to impeach the witnesses
at trial instead -- was ineffective assistance of counsel,
primarily because of the known deficiencies of eyewitness
testimony, the Government’s heavy reliance on the eyewitness
testimony, and the lack of any disadvantage in bringing such
a motion. United States v. Nolan, 956 F.3d 71, 81 (2d Cir.
2020). In terms of counsel’s failure to call an expert witness
to cast doubt on the reliability of eyewitnesses, the Second
Circuit

recognized

that

“Strickland

ordinarily

does

not

require defense counsel to call any particular witness.” Id.
at 82. However, the Nolan Court held that the failure to call
or

even

consult

an

expert

about

the

unreliability

of

eyewitness identification was ineffective assistance given an
expert’s

ability

to

identify

unreliability

“in

ways

not

readily apparent to a lay jury.” Id. at 92. Similarly, in
Bell v. Miller, the Second Circuit found that counsel rendered
ineffective assistance in failing to introduce expert medical
testimony to impeach a key witness “without any appreciable
downside.” 500 F.3d 149, 157 (2d Cir. 2007).
With respect to the prejudice prong, a “defendant must

10

show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Cullen, 563 U.S. at 189 (internal
quotation

marks

omitted).

This

standard

“requires

a

substantial, not just conceivable, likelihood of a different
result.” Id. (internal quotation marks omitted).
III. DISCUSSION
The

Court

is

not

persuaded

that

trial

counsel

was

ineffective in failing to call Martinez or Officer Perdomo as
witnesses or introduce the glove and its DNA analysis into
evidence.

Under

the

circumstances,

Steele

has

failed

to

demonstrate that these decisions prejudiced him as required
for a successful claim of ineffective assistance of counsel.
Officer Perdomo’s testimony, the glove, and the DNA
analysis of the glove do not raise a “substantial, not just
conceivable, likelihood of a different result,” Cullen, 563
U.S. at 189 (internal quotation marks omitted), for two
primary reasons. First, the evidence does not compel the
conclusion that Officer Perdomo planted the glove, as Steele
contends. Although the DNA analysis excludes Steele from
being “a possible contributor of the major component DNA
profile obtained” (Dkt. No. 89-1, at 8 (emphasis added)),
there was DNA evidence of three individuals on the glove. No
conclusion was made “on the minor alleles present,” however.

11

(Id.) Thus, Steele was not excluded as a possible secondary
contributor, so the jury could still have found that Steele
had worn the glove.
Second, and more importantly, introduction of the glove
evidence would likely have bolstered the Government’s, rather
than Steele’s, case at trial. Steele’s DNA was not found on
the recovered firearm. In order to explain away the absence
of Steele’s DNA on the firearm, the Government introduced
expert testimony about how and why DNA is not always fully
captured

on

surfaces.

Had

evidence

of

the

glove

been

introduced, though, the Government would have had a much
stronger explanation for why Steele’s DNA was not found on
the firearm -- because Steele had been wearing the glove. For
this reason, evidence of the glove created a serious risk of
harm to Steele’s case. This risk differentiates Steele’s case
from Nolan and Bell, in which the Second Circuit found no
drawback

in

filing

a

pretrial

motion

or

calling

expert

testimony. See Nolan, 956 F.3d at 81; Bell, 500 F.3d at 157.
Given the risk of harm to Steele’s defense, the Court cannot
conclude

that

exclusion

of

the

glove

evidence

was

prejudicial.1

1

The Court is further unpersuaded that the glove evidence would have
likely changed the outcome of the trial because even if the jury doubted
Officer Perdomo’s veracity, the more probative evidence of the firearm
and shell casing was collected by Officers Burgos and Guzman. It is thus
not clear whether the weight of this evidence would have been affected by

12

Nor is there a substantial likelihood or reasonable
probability of a different outcome had the jury been presented
with Martinez’s testimony and the gunshot-residue report
finding

no

residue

on

Steele’s

jacket.

Countervailing

evidence would have mitigated any exculpatory effect of this
finding. For instance, the Government would have elicited
testimony from Martinez to contextualize the gunshot-residue
test results and explain that an unreliable methodology was
used, thereby casting doubt on the results.2 In addition, the
Government would in all likelihood have elicited testimony
from Martinez that gunshot residue is not captured on certain
fabrics easily and can be brushed off by running. Given the
type

of

jacket

Steele

was

wearing,

and

because

the

Government’s evidence showed that Steele had been running
after the shot was fired and before he was apprehended,
Martinez’s testimony would have provided multiple plausible
reasons for why no gunshot residue was found on Steele’s
jacket.
Steele

argues

in

his

reply

memorandum

of

law

that

testimony that an unreliable test had been performed would
have bolstered his argument of an inadequate investigation.

the negative implications Steele argues should be drawn from the glove.
While the Court cannot be certain what evidence would have been adduced,
it is highly probable that the full scope of Martinez’s findings and
analysis would have been introduced.

2

13

Steele contends that “[i]f it was proved that the expert NYPD
laboratory examiner had actually used the wrong test on the
defendant’s jacket, then the defense could have offered the
jury

reasonable

doubt

based

on

the

mishandling

of

the

evidence.” (Criminal Docket, Dkt. No. 98, at 3.) Such a
conclusion is possible, but the Court is not persuaded that
it

is

substantially

likely.

A

SEM

was

not

used

due

to

resource-allocation issues, so it is not at all clear that a
jury would have concluded that the evidence was mishandled
simply because a SEM was not used.
Moreover, Steele fails to account for the weight of the
other

evidence

supporting

the

Government’s

case.

In

considering whether a petitioner was prejudiced by trial
counsel’s errors, the strength of the Government’s case must
also be considered. See Henry, 409 F.3d at 66. Courts must
“bear[] in mind that a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support.” Id. at
67 (internal quotation marks and citation omitted). Thus, the
Circuit has considered the prosecution’s case to be weak when
the only evidence connecting the defendant to the crime is a
single identification from an arguably suggestive lineup, see
id. at 66, or when absent potentially unreliable eyewitness
testimony, the probative value of the remaining evidence is

14

“limited at best,” see Nolan, 956 F.3d at 82.
In the case at hand, the Government adduced multiple
other pieces of evidence probative of Steele’s guilt. For
example, an eyewitness testified that he saw a man in a
burgundy jacket point a gun, and the Government established
that Steele was wearing a burgundy jacket. Additionally,
while Steele was being chased, Officer Burgos saw a black
object in Steele’s left hand and observed Steele make a
swinging motion across his body as he fled, followed by a
metallic

clattering

sound.

Officer

Burgos

then

found

a

firearm near where he heard this sound. Furthermore, the shell
casing that was fired by the firearm found by Officer Burgos
was also found near where Steele was arrested. There was also
corroborative surveillance video.
While some of this evidence is circumstantial, it is
nonetheless strong enough for a jury to conclude that: (1)
Steele possessed a firearm and had thrown it aside while
fleeing from the NYPD; and (2) the firearm had been discharged
prior to Steele’s flight. The weight of this evidence -particularly when considered in conjunction with the weak,
and even damaging, nature of the unintroduced evidence at
issue

--

critically

undermines

Steele’s

argument

of

prejudice. Because Steele cannot demonstrate prejudice, his
claim for ineffective assistance of counsel must fail.

15

IV.

ORDER

Accordingly, for the reasons stated above, it is hereby
ORDERED

that

petitioner

Joseph

Steele’s

motion

to

vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (United States v. Steele, No. 15 CR 836 (the
“Criminal Docket”), Dkt. No. 84; Steele v. United States, No.
20 Civ. 1151 (the “Civil Docket”), Dkt. No. 1.)

is DENIED.

The Clerk of Court is hereby directed to mail this Order
to

Joseph

Steele,

Register

Number

73353-054,

at

F.C.I.

Hazelton, P.O. Box 5000, Bruceton Mills, WV 26525 and note
service in the docket.
Because Steele has failed to demonstrate a denial of a
constitutional right, a certificate of appealability will not
issue.
SO ORDERED.
Dated:

New York, New York
4 June 2021

___________________________
Victor Marrero
U.S.D.J.

16