Whitson v. United States, 2021 WL 5585629 (M. D. Ten. 2021)

Petitioner argues that his trial counsel was ineffective in failing to object to the expert testimony provided by a firearm and toolmark examiner under Federal Rule of Evidence 702. Citing to Taylor, Petitioner asserts that firearm and toolmark "analysis has recently come under attack for depending on subjective judgment, rarely using control weapons, and risking an observer effect. However, the trial court found that the expert's opinion on the (lack of) accuracy of firearm identification was inadmissible because the expert's opinion was "not sufficiently reliable to meet the standards set out by Rule 702" finding that the expert misrepresented pertinent data in her study. Id. Thus, Petitioner's citation to Taylor does not support his argument that his counsel was ineffective in failing to object to the firearm identification expert's testimony; if anything, it suggests that the substance of the kinds of attacks on firearm and toolmark identification on which he relies is not necessarily reliable. Nor has Petitioner shown that counsel's failure to object was prejudicial to Petitioner in that such an objection actually would have been sustained had counsel made it. Accordingly, the Court finds that counsel's failure to object to the firearm identification expert's testimony does not reflect deficient performance, and the Court rejects this claim of ineffective assistance of counsel.