Steele v. United States of America
Filing
31
SUMMARY ORDER For the reasons stated above, it is hereby ORDERED that the motion of defendant Joseph Steele to vacate his sentence pursuant to 28 U.S.C. Section 2255 (Dkt. No. 109) is DENIED. The Clerk of Court is respectfully directed to mail a copy of this Order to Joseph Steele, Reg. No. 73353-054, F.C.I. Hazelton, P.O. Box 5000, Bruceton Mills, WV 26525. SO ORDERED. (Signed by Judge Victor Marrero on 9/16/2022) (jca) Modified on 9/16/2022 (jca).
Case 1:20-cv-01151-VM Document 31 Filed 09/16/22 Page 1 of 4
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
JOSEPH STEELE,
:
Petitioner,
:
:
-against:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
---------------------------------X
VICTOR MARRERO, U.S.D.J.:
9/16/2022
15 CR 836 (VM)
20 Civ. 1151 (VM)
SUMMARY ORDER
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. Sections 922(g)(1) and (2). On February
5, 2020, he filed a motion to vacate his sentence pursuant to
28
U.S.C.
Section
2255
(“Section
2255”).
(See
“Original
Motion,” Dkt. No. 83.) After full briefing, the Court denied
that motion on June 4, 2021. See Steele v. United States,
Nos. 15 Crim. 836, 20 Civ. 1151, 2021 WL 2292604 (S.D.N.Y.
June 4, 2021) (“Steele I”). On June 7, 2022, Steele filed
another pro se motion to vacate under Section 2255. (See “June
2022 Motion,” Dkt. No. 105.) The Court deemed that filing a
second or successive motion under Section 2255 and denied the
motion on July 29, 2022. Steele appealed that decision.
On September 7, 2022, the Second Circuit transferred the
petition back to this Court, noting that Steele’s appeal in
Steele I was still pending, meaning the adjudication of that
motion was not final. Per the Second Circuit’s decisions in
Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) and
1
Case 1:20-cv-01151-VM Document 31 Filed 09/16/22 Page 2 of 4
Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005), this
Court should have construed the June 2022 Motion “as a motion
to amend the pending [Section] 2255 motion.” Ching, 298 F.3d
at 177. The Court now so-construes the June 2022 Motion as a
motion to amend Steele’s Original Motion. For the reasons
below, the motion to amend is denied as futile.
On June 7, 2022, Steele filed the June 2022 Motion.1
Steele argues that his sentence should be vacated because,
following the Supreme Court’s decision in United States v.
Borden, his prior conviction for robbery in the first degree,
in violation of New York Penal Law Section 160.15(4) (“Section
160.15(4)”) no longer qualifies as a crime of violence and
can
no
longer
provide
the
predicate
for
a
sentencing
enhancement under the Armed Career Criminal Act (“ACCA”).
(See June 2022 Motion at 4.) He asks to be resentenced without
the sentencing enhancement under ACCA. (See id. at 13.)
In Borden, a plurality of the Supreme Court held that a
criminal offense with a requisite mens rea of “recklessness”
does
not
qualify
as
a
violent
felony
triggering
ACCA’s
sentencing enhancement. See 141 S. Ct. 1817, 1825 (2021). A
1
The Court did not order a reply to the Second 2255 Motion. Per the Rules
Governing Section 2255 Proceedings, a district court is permitted to
“review and deny a Section 2255 motion prior to directing an answer
‘[i]f it plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not entitled
to relief.’” Carrasco v. United States, 190 F. Supp. 3d 351, 353
(S.D.N.Y. 2016) (quoting Rule 4(b), Rules Governing Section 2255
Proceedings for the United States District Courts).
2
Case 1:20-cv-01151-VM Document 31 Filed 09/16/22 Page 3 of 4
majority of the Court held that the particular crime at issue,
a reckless aggravated assault conviction under Tennessee law,
did not qualify as a prior violent-felony conviction for ACCA
purposes. See id. at 1834 (Thomas, J., concurring in the
judgment). Steele argues that this decision means firstdegree robbery under New York law is no longer a violent
felony under ACCA.
However, recklessness is not the requisite mens rea for
robbery in the first degree under New York law. See N.Y.P.L.
§ 160.15. Robbery is a crime of intent, or purpose, under New
York law, see N.Y.P.L. §§ 160.00; 155.05, meaning it requires
a higher degree of culpability. See Borden, 141 S. Ct. at
1823. Thus, Borden has no impact on ACCA convictions in which
first-degree robbery under Section 160.15(4) was one of the
prior crimes. Because Borden is inapplicable to Steele’s
conviction under ACCA, the Court finds permitting amendment
of his Section 2255 motion would be futile. See United States
v.
Ramirez,
No.
13
Crim.
135,
2022
WL
2703596,
at
*17
(S.D.N.Y. July 11, 2022) (denying a motion to amend a Section
2255 petition as futile where the authoritative case upon
which the purported amendment was based has no impact on the
petitioner’s case).
IV.
ORDER
For the reasons stated above, it is hereby
ORDERED that the motion of defendant Joseph Steele to
3
Case 1:20-cv-01151-VM Document 31 Filed 09/16/22 Page 4 of 4
vacate his sentence pursuant to 28 U.S.C. Section 2255 (Dkt.
No. 109) is DENIED. The Clerk of Court is respectfully
directed to mail a copy of this Order to Joseph Steele, Reg.
No.
73353-054,
F.C.I.
Hazelton,
P.O.
Box
5000,
Bruceton
Mills, WV 26525.
SO ORDERED:
Dated:
New York, New York
September 16, 2022
_______________________
__
___
___
_ _
__
_____
___
_ __
__
_______
___
___
_
Victor
Vic
Vi
ct
t
tor
or
o
r Marrero
Mar
arrero
rer
re
ro
o
U.S.D.J.
U.
U
.S
S.
.D.
D.J.
J.
4
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