Campbell v. Lempke

Filing 19

-CLERK TO FOLLOW UP- DECISION AND ORDER dismissing the petition for a writ of habeas corpus as untimely. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/15/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHAWN M. CAMPBELL,
No. 1:14-CV-06551 (MAT)
DECISION AND ORDER

Petitioner,
-vsSUPERINTENDENT JOHN LEMPKE,
Respondent.

I.

Introduction
Proceeding pro se, Shawn M. Campbell (“petitioner”) seeks a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis
that he is being detained in respondent’s custody in violation of
his federal

constitutional

rights.

Petitioner

is

incarcerated

pursuant to a judgment entered on March 24, 2006, in Steuben County
Court (Latham, J.), following his plea of guilty to two counts of
murder

in

the

second

degree

(N.Y.

Penal

Law

§§

125.25(01),

125.25(03)), two counts of burglary in the first degree (N.Y. Penal
Law §§ 140.30(02), 140.30(03)), and two counts of grand larceny in
the fourth degree (N.Y. Penal Law §§ 155.30(01), 155.30(07)).
II.

Factual Background and Procedural History
In a November 1, 2004 indictment, petitioner was charged as

described above. The allegations of the indictment stemmed from an
incident in which petitioner broke into the home of Rhonda and
Rawlin Bilby, with the intent to commit a burglary therein. While
in the house, petitioner, who believed the Bilbys were at work and
would

not

be

home,

unexpectedly

encountered

Rhonda

Bilby.

Petitioner struck Ms. Bilby in the head with a socket wrench,
killing her. Petitioner fled the scene with stolen property and
discarded the murder weapon. Ultimately, petitioner confessed the
crime to police and told them where to find the murder weapon.
Stolen property from the Bilby residence was found in petitioner’s
possession.
On October 17, 2005, a jury trial commenced before Steuben
County Court Judge Joseph W. Latham. Petitioner was represented by
William Kelley, Esq., of the Steuben County Public Defender’s
Office. Prior to the close of the People’s case, petitioner agreed
to plead guilty to the indictment and accept a maximum sentence of
25 years to life in prison, with sentences on all counts to be
served concurrently. The plea agreement covered uncharged acts
committed in Steuben County and a pending bribery charge in Bath
Town Court, and petitioner agreed to waive appeal.
By pro se motion dated November 15, 2005, which was later
renewed by appointed counsel (James Ferratella, Esq.) on March 17,
2006, petitioner moved to withdraw his guilty plea, claiming that
his trial counsel, Mr. Kelley, had coerced him into accepting the
agreement. County Court denied that motion. On March 24, 2006,
petitioner

was

sentenced,

as

a

second

felony

offender,

to

concurrent indeterminate terms of 25 years to life on each of the
murder counts, determinate sentences of 25 years with five years
post-release supervision on each of the burglary counts, and

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indeterminate terms of two to four years on each of the grand
larceny counts.
Petitioner filed a counseled brief on direct appeal with the
New

York

State

Supreme

Court,

Appellate

Division,

Fourth

Department, in which he argued various grounds centering on his
challenge to the plea. The Fourth Department unanimously affirmed
the judgment of conviction, finding that while petitioner’s waiver
of appeal was invalid, his remaining claims failed on the merits.
See People v. Campbell, 62 A.D.3d 1265, 1266 (4th Dep’t 2009),
lv denied, 13 N.Y.3d 795. The New York State Court of Appeals
denied leave to appeal. Id.
On

November

27,

2006,

petitioner

filed a pro

se

motion

pursuant to New York Criminal Procedure Law (“CPL”) § 440.10,
arguing ineffective assistance of counsel, alleging for the first
time that

trial counsel, Mr. Kelley, had withheld exculpatory

information by failing to inform petitioner of letters from a Wende
Correctional Facility inmate, Loral R. Huffman, and by failing to
investigate Huffman’s allegations. Petitioner argued that he would
not

have

pled

guilty

if

he

had

known

about

the

allegations

contained within Huffman’s letters.
Petitioner attached various documents to his 440 motion,
including correspondence between Huffman and the Steuben County
District Attorney, John Tunney. Beginning with a letter dated
twelve days prior to the Rhonda Bilby murder, Huffman alleged that
he had knowledge of a murder plot to occur in Steuben County and
3

stated that his “sole requirement [was] that [DA Tunney] not
contact [him] other than via a letter and [Huffman would] respond
via a letter.” T. 271.1 DA Tunney responded to this letter and
requested more information. In a follow-up “affidavit” dated eight
days prior to the murder, Huffman requested appointment of counsel.
Next, in a letter dated the day after the murder, Huffman again
requested appointed counsel “to assist [him] to stop (P) (BFDF) in
getting (c) to Kill (Roda Biby) in a deal with (R) to rob + make it
look like a robbery.” T. 274. Huffman sent three more letters,
culminating in a statement, in a letter dated approximately a week
after the murder, that he had “learned . . . that [he] failed [in]
his attempt to stop the murder for hire plot.” T. 279.
County Court held petitioner’s 440 motion in abeyance, and
appointed petitioner new counsel, Joe Valley, Esq., to represent
him on the motion. On April 1, 2008, Mr. Valley filed a superseding
440 motion, asserting that both Mr. Kelley and Mr. Ferratella had
been ineffective. This motion again revolved around the Huffman
letters, and petitioner claimed that he would not have pled guilty
had he been aware of them. On June 27, 2008, Judge Latham denied
the motion without a hearing. After granting leave to appeal, the
Fourth Department reserved decision and remitted the case to County
Court for an evidentiary hearing on petitioner’s 440 motion,
directing

that

the

hearing

be

conducted

“to

determine

what

1
References to “T.” are to the state court transcript filed with the
court. (Doc. 9).

4

[petitioner’s] trial counsel knew about the alleged potentially
exculpatory evidence and whether he related that information to
[petitioner].” People v. Campbell, 81 A.D.3d 1251, 1252 (4th Dep’t
2011).
Prior to the hearing on the 440 motion, petitioner moved for
Judge Latham’s recusal, arguing that the court had prejudged the
case with its prior decision denying the 440 motion. The court
denied the recusal motion.
After a full evidentiary hearing, at which petitioner, Kelley,
and Assistant District Attorney Brooks Baker (who presented the
People’s case at petitioner’s trial) testified, County Court denied
the 440 motion. In the decision dated January 6, 2012, Judge Latham
found

both

Kelley’s

and

Baker’s

testimony

to

be

credible.

Specifically, Judge Latham found that the testimony confirmed that
Kelley had been advised by the prosecution of the existence of the
Huffman letters, and had in a timely fashion shared the existence
and significance of the letters with petitioner. The Court also
found that evidence at the hearing established that the “Huffman
source had been investigated by law enforcement” and found to be
unreliable, and that it was “devoid of concrete information helpful
to either prosecution or defense.” T. 1396. The court rejected
petitioner’s claims of ineffective assistance against both Kelley
and Ferratella.
On May 3, 2013, the Fourth Department unanimously affirmed the
denial of the 440 motion and the judgment of conviction. See People
5

v. Campbell, 106 A.D.3d 1507 (4th Dep’t 2013), lv denied 21 N.Y.3d
1002. In so doing, the Fourth Department specifically rejected
petitioner’s ineffective assistance claims. Id. at 1507-08. The
Court

found

that

County

Court’s

credibility

findings

were

“supported by the record and [] entitled to deference” (id. at
1508), noting that ADA Baker testified that the Huffman letters
were discussed in a plea conference between him, Kelley, and
petitioner, and that County Court therefore declined to credit
petitioner’s testimony that he was unaware of the letters until
after his sentencing. The Fourth Department also found that County
Court “did not abuse its discretion in refusing to recuse itself
from conducting the hearing on remittal,” as the “determination
that it could be impartial was solely a matter of discretion, and
there [was] no basis on this record to determine that the court
abused its discretion.” Id. On June 25, 2013, the Court of Appeals
denied leave to appeal. People v. Campbell, 21 N.Y.3d 1002 (2013).
On July 19, 2014, petitioner filed a pro se coram nobis
motion,

arguing

that

appellate

counsel

on

direct

appeal

was

ineffective. The Appellate Division summarily denied that motion.
People v. Campbell, 120 A.D.3d 1610 (4th Dep’t 2014).
This habeas petition followed, in which petitioner asserts the
following grounds for relief: (1) ineffective assistance of trial
counsel due to trial counsel’s alleged failure to disclose and
failure to investigate the Huffman letters; and (2) violation of

6

due process as a result of County Court Judge Latham’s refusal to
recuse himself prior to the evidentiary hearing on the 440 motion.
Respondent answered the petition, arguing primarily that the
petition is untimely, but also asserting that petitioner’s claims
fail on the merits. For the reasons discussed below, the Court
agrees with respondent that the petition is untimely, and therefore
will not address the merits.
III.

Timeliness
AEDPA requires that a federal habeas corpus petition be filed

within one year of the date on which the petitioner's state court
conviction

becomes

final.

28

U.S.C.

§

2241(d)(1).

A

habeas

petitioner's conviction generally becomes final for AEDPA purposes
upon, “either the completion of certiorari proceedings in the
United States Supreme Court, or—if the prisoner elects not to file
a petition for certiorari—the time to seek direct review via
certiorari has expired.” Williams v. Artuz, 237 F.3d 147, 151 (2d
Cir. 2001). In this case, petitioner’s state court conviction
became final on December 9, 2009, 90 days after the New York Court
of Appeals denied his leave application on direct appeal. See
Campbell, 13 N.Y.3d 795 (issued Sept. 10, 2009).
The limitations period under AEDPA was tolled, however, during
the pendency of petitioner’s overlapping CPL § 440.10 motions. All
three of these motions – dated April 1, 2008, August 3, 2008, and
November 3, 2009 – were filed before petitioner’s conviction became
final. The limitations period in this case thus began to run upon
7

completion of petitioner’s 440 motions. See Carey v. Saffold, 536
U.S. 214, 219-20 (2002) (“[A]n application is pending [for AEDPA
tolling purposes] as long as the ordinary state collateral review
process is ‘in continuance’ — i.e., ‘until the completion of’ that
process.”). The Court of Appeals denied leave to appeal on the
longest-running of petitioner’s 440 motions on June 25, 2013. See
Campbell, 21 N.Y.3d 1002 (2013).
Petitioner claims that the limitations period was then tolled
for

an

additional

90

days,

i.e.,

his

time

to

petition

for

certiorari in the United States Supreme Court. Doc. 1 at 9-10. As
respondent points out, however, the Supreme Court has expressly
held that the limitations period runs for one year following the
last state court action on the case, and is not tolled for an
additional time period during which the petitioner could have
sought certiorari in the Supreme Court. See Lawrence v. Florida,
549

U.S.

327,

332-33

(2007)

(“By

contrast

[to

the

general

limitations period found in § 2244(d)(1)], § 2244(d)(2) [which
addresses tolling] refers exclusively to ‘State post-conviction or
other

collateral

include

review,’

participation

by

language
a

not

federal

easily

interpreted

court.’”).

to

Petitioner’s

limitations period thus began to run when the New York Court of
Appeals denied leave on June 25, 2013, and the time period expired
one year later, on June 25, 2014.
Petitioner filed his petition with this Court 89 days after
that date, on September 22, 2014. He has presented no reason for
8

this delay and thus is not entitled to equitable tolling. See
Washington v. Taylor, 2013 WL 2147415, *3 (W.D.N.Y. May 15, 2013)
(“To qualify for equitable tolling of the limitations period, a
habeas petitioner ‘bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and prevented him
from timely filing.”); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (finding no equitable tolling where petitioner filed his
petition “only 87 days after the state denied collateral relief”).
Therefore, this petition is untimely.2
CONCLUSION
For the foregoing reasons, the petition (Doc. 1) is dismissed
as untimely. A certificate of appealability shall not issue because
petitioner has not made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2); Lucidore v. New
York State Div. of Parole, 209 F.3d 107, 112–13 (2d Cir. 2000). The
Clerk of the Court is requested to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 15, 2015
Rochester, New York.

2

The Court notes that petitioner filed his pro se coram nobis motion on
July 19, 2014. This filing came after the limitations period had expired on June
25, 2014, and therefore had no effect on tolling. See Smith, 208 F.3d at 17 (2d
Cir. 2000).

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