Slip Opinion
N.D. Ga.Jun 4, 2019Background
- Movant Eddie Sylvester Steele was convicted after jury trial of Hobbs Act robbery (18 U.S.C. § 1951) and brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)) for a cell-phone store robbery in East Point, Georgia.
- District court sentenced Steele to 108 months; the Eleventh Circuit affirmed on direct appeal.
- Steele filed a 28 U.S.C. § 2255 motion asserting ineffective assistance of counsel during closing: (1) counsel failed to argue the gun was fake, (2) counsel said it did not matter whether the gun was real or fake, and (3) counsel failed to hire a firearms expert to opine the gun was fake.
- The Magistrate Judge recommended denial of the § 2255 motion, finding counsel’s tactical choices were reasonable given the evidence and that Steele’s only evidence the gun was fake was his own inconsistent testimony; the clerk testified the gun looked real.
- The Magistrate also found any misleading closing argument was cured by the court’s jury instruction defining "firearm," and an expert could not examine a gun that had not been recovered.
- The district court reviewed Steele’s objections, adopted the R&R, denied the § 2255 motion and appointment of counsel, and declined a certificate of appealability.
Issues
| Issue | Steele's Argument | United States' Argument | Held |
|---|---|---|---|
| Whether counsel was deficient for not arguing the gun was fake in closing | Counsel should have argued the gun was fake to negate brandishing | Reasonable strategy to emphasize coercion and avoid unreliable claim that gun was fake; evidence favored it looked real | Denied — tactical choice reasonable given record |
| Whether counsel misstated law by saying it did not matter if gun was real or fake | Statement undermined defense; prejudiced jury | Any confusion cured by correct jury instruction on "firearm" definition | Denied — jury instruction cured any error |
| Whether counsel was ineffective for failing to call a firearms expert | An expert could have shown the gun was fake and created reasonable doubt | Gun was not recovered; expert testimony unavailable and speculative | Denied — expert unavailable without the gun |
| Whether § 2255 proceedings warrant appointment of counsel or COA | Steele requested counsel and COA to appeal denial | No arguable merit; appointment unnecessary; COA not warranted | Denied — no COA; counsel not appointed |
Key Cases Cited
- United States v. Raddatz, 447 U.S. 667 (1980) (district court may accept, reject, or modify magistrate judge recommendations and reviews objections de novo)
- Marsden v. Moore, 847 F.2d 1536 (11th Cir. 1988) (objections to a magistrate's report must be specific; frivolous or general objections need not be considered)
- United States v. Almanzar, 634 F.3d 1214 (11th Cir. 2011) (presumption that juries follow proper jury instructions)
- Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001) (a proper jury instruction can cure an inaccurate attorney statement during closing argument)