Campbell v. Sheahan

Filing 21

-CLERK TO FOLLOW UP- DECISION AND ORDER denying petitioner's request for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Copy of Decision and Order sent by first class mail to petitioner. Signed by Hon. Michael A. Telesca on 11/16/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHANNON V. CAMPBELL,
No. 6:14-CV-06585 (MAT)
DECISION AND ORDER

Petitioner,
-vsMICHAEL SHEAHAN, Superintendent,
Respondent.

I.

Introduction
Shannon

V.

Campbell

(“petitioner”),

proceeding

pro

se,

petitions this Court for a writ of habeas corpus pursuant to
28

U.S.C.

§

2254.

Petitioner

is

incarcerated

pursuant

to

a

judgment of conviction entered in New York State Supreme Court,
Erie County, following a jury verdict convicting him of sexual
abuse in the first degree (N.Y. Penal Law § 130.65(3)), and three
counts

each

of:

rape

in

the

first

degree

(N.Y.

Penal

Law

§ 130.35(3)), endangering the welfare of a child (N.Y. Penal Law
§

260.10(1)),

sodomy

in

the

first

degree

(N.Y.

Penal

Law

§ 130.50(3)), and incest (N.Y. Penal Law § 255.25). Petitioner was
originally sentenced in a judgment dated May 31, 2000, but was
resentenced

pursuant

to

New

York

Correction

Law

§

601-d

on

January 24, 2012. The judgment of resentencing is the judgment
petitioner challenges in the instant habeas proceeding.
II.

Factual Background and Procedural History
By indictment number 99-0777, an Erie County grand jury

charged petitioner with eleven counts of varying sexual abuse

charges against his daughter and two nieces. At trial, petitioner’s
daughter, Shanna, and niece, Shamika (both age eight at the time of
the incidents), testified that on separate occasions he raped and
sodomized them, and his niece, Shakia (age six at the time of the
incident),

testified

that

he

raped

her.

Medical

evidence

established that all three girls exhibited physical characteristics
consistent
admitted

at

with

their

trial

accounts

corroborated

of

abuse,

their

and

various

other

evidence

statements.

See

Campbell v. Poole, 555 F. Supp. 2d 345, 351-56 (W.D.N.Y. 2008)
(discussing trial evidence in detail).
The jury convicted petitioner as outlined above. On May 31,
2000, petitioner was sentenced to an aggregate term of 75 years.1
That sentence did not include any term of post-release supervision
(“PRS”). On January 24, 2012, petitioner was resentenced pursuant
to New York Correction Law § 601-d, which resentence added five
years of PRS to the rape and sodomy counts. See generally People v.
Sparber, 10 N.Y.3d 457 (2008) (holding that New York’s procedural
law required judicial pronouncement of PRS).
Petitioner filed a counseled direct appeal and a pro se
supplemental brief to the New York State Supreme Court, Appellate

1

As the New York State Supreme Court, Appellate Division,
Fourth Department noted in petitioner’s direct appeal of the
original conviction as well as in his appeal of his resentence,
that sentence was reduced by operation of law (see see N.Y. Penal
Law § 70.30(1)(e)(vi)) to 50 years. See People v. Campbell, 111
A.D.3d 1253, 1254 (4th Dep’t 2013), lv. denied, 23 N.Y.3d 1018
(2014).
2

Division, Fourth Department. The Fourth Department unanimously
affirmed the conviction and denied reargument, and the New York
State Court of Appeals denied leave to appeal. See People v.
Campbell, 286 A.D.2d 979 (4th Dep’t 2001), rearg. denied, 2001 WL
1656991 (4th Dep’t 2001), lv. denied, 97 N.Y.2d 702 (2002).
Petitioner filed four post-conviction motions to vacate the
conviction pursuant to New York Criminal Procedure Law (“CPL”)
§§ 440.10 and 440.20. The Court will address the arguments raised
in those motions only as relevant to its discussion of petitioner’s
claims in the instant habeas proceeding. The first motion was filed
on January 10, 2002, denied by the trial court on June 11, 2002,
and leave to appeal was denied on December 16, 2002. The second was
filed on October 21, 2003, denied by the trial court on January 29,
2004, and leave to appeal was denied on March 29, 2004. The trial
court also denied petitioner’s motion for reconsideration of the
second motion on April 6, 2004, and leave to appeal that decision
was denied on May 24, 2004.
Petitioner then brought his first petition for habeas corpus
relief in this Court, which petition was dated June 8, 2004. That
petition raised six grounds: (1) trial counsel was ineffective;
(2) prosecutorial misconduct occurred before the state grand jury;
(3) various errors occurred at the trial court level; (4) the
admission of child testimony was error; (5) petitioner’s sentences
violated the state sentencing law; and (6) defects existed in the
indictment. This Court denied petitioner’s claims and dismissed the
3

petition. See Campbell, 555 F. Supp. 2d 345, reconsideration
denied, 2008 WL 2561998 (W.D.N.Y. June 26, 2008). On August 22,
2008, petitioner filed a pro se motion for a certificate of
appealability

to

the

Second

Circuit,

which

was

denied

on

October 29, 2008. On January 23, 2009, petitioner filed a pro se
petition for a writ of certiorari from the United States Supreme
Court, to which petitioner did not receive a response.
Petitioner filed his third CPL §§ 440.10/440.20 motion on
June 4, 2009, which was denied by the trial court on September 22,
2009,

and

leave

to

appeal

was

denied

on

December

17,

2009.

Petitioner’s motion for reargument of that motion was denied on
February 24, 2010, and leave to appeal was denied on May 6, 2010.
Petitioner appealed his January 12, 2012 resentence in a
counseled appeal filed March 5, 2013. He also filed a pro se
supplemental

brief

on

June

18,

2013.

The

Fourth

Department

unanimously affirmed petitioner’s conviction on November 8, 2013,
and the Court of Appeals denied leave. See People v. Campbell, 111
A.D.3d 1253 (4th Dep’t 2013), lv. denied, 23 N.Y.3d 1018 (2014).
Petitioner then filed a fourth CPL §§ 440.10/440.20 motion on
January 23, 2013, which was denied by the trial court on May 17,
2013, and leave to appeal was denied on October 21, 2013.
D.

The Federal Habeas Proceeding

This habeas petition followed, in which petitioner contends:
(1) he

has

established

actual

innocence;

(2)

the

verdict

is

unsupported by legally sufficient evidence and is against the
4

weight of the evidence; (3) he was denied a fair trial as a result
of prosecutorial misconduct; (4) he was denied effective assistance
of trial counsel; (5) judicial misconduct occurred at the original
sentencing and at resentencing; and (6) his sentence is harsh and
excessive.

Respondent

contends

that

this

petition

should

be

dismissed for lack of jurisdiction as a second and successive
petition under 28 U.S.C. § 2244(b)(3), or alternately as untimely
as to every ground except ground six.
For the reasons discussed below, the request for a writ of
habeas corpus is denied and the petition is dismissed.
III. Second and Successive Petition
Initially, the Court addresses respondent’s argument that this
is a second and successive petition within the meaning of 28 U.S.C.
§ 2244(b)(3). That statute provides that before a district court
may entertain a second or successive application for a writ of
habeas corpus filed pursuant to § 2254, the petitioner must have
first requested and obtained an order from the appropriate court of
appeals which authorizes the filing of such a second or successive
petition. Petitioner in this case did not seek such authorization.
However, the petition in this case challenges the judgment of
January 24, 2012, which resentenced petitioner pursuant to New York
Corrections Law § 601-d. Where there is a “new judgment intervening
between the two habeas corpus petitions, an application challenging
the resulting new judgment is not ‘second or successive’ at all.”
Magwood v. Patterson, 561 U.S. 320, 341-42 (2010). Therefore, even
5

though this petition raises various claims which could have been –
or were – brought in the prior habeas proceeding,

based upon the

Supreme Court’s ruling in Magwood, the petition is not successive.
See id. at 353 (criticizing majority for “allow[ing] a challenger
in Magwood’s position to raise any challenge to the guilt phase of
the criminal judgment against him in his second application, since
a ‘new’ judgment – consisting of both the conviction and sentence
– has now been reentered and all of the errors have (apparently)
occurred anew”) (Kennedy, J., dissenting); see also Hibbert v.
Lempke, 2015 WL 5022352, *2 (W.D.N.Y. Aug. 24, 2015) (noting Second
Circuit’s determination that resentencing pursuant to N.Y. Corr. L.
§ 601-d was not successive).
This case thus “falls squarely within the category of cases
which the Magwood majority specifically declined to address, and
which the dissent warned about, that is, a petitioner who has
obtained relief solely as to one aspect of the case, resulting in
the entry of a new judgment and sentence, who then files a second
section 2254 application challenging not only his new sentence, but
his original, undisturbed convictions.” Mills v. Lempke, 2012 WL
1574749, *7 (W.D.N.Y. May 3, 2012) (quoting Arenas v. Walker, 2012
WL 294688, *3 (C.D. Cal. Feb. 1, 2012)). Because this is not a
second and successive petition, the Court will proceed to consider
petitioner’s grounds.
The

Court

notes,

however,

that

it

“reads

the

Magwood

majority’s comment in footnote 15 as sanctioning the summary
6

dismissal

of

previously-raised

habeas

claims

in

a

subsequent

petition when such claims have already been analyzed by the federal
court in an earlier petition.” Mills v. Lempke, 2013 WL 435477, *6
(W.D.N.Y. Feb. 4, 2013) (internal citation omitted). Here, various
issues raised by petitioner were already addressed in the Court’s
decision on the first petition. The following grounds are therefore
summarily dismissed: under ground two, petitioner’s claim that the
indictment was insufficient (see Campbell, 555 F. Supp. 2d at 37880); and under ground four, petitioner’s claims that defense
counsel was ineffective for failing to investigate the People’s
evidence and failing to independently test forensic evidence (see
id. at 360-67).2
For the sake of clarity, the Court notes that the only “new”
(i.e., relating

to

the

second

judgment

and not

the

original

proceeding) claims brought in this petition are petitioner’s claim
that counsel was ineffective for failing to obtain an updated
presentence investigation report (“PSI”) prior to resentencing,
petitioner’s claim that the court committed judicial misconduct by
failing to order and provide petitioner with an updated PSI, and
petitioner’s claim that imposition of five years PRS to various
counts of his sentence resulted in an unduly harsh and severe
sentence.

2

These particular claims regarding ineffective assistance of
counsel are also procedurally defaulted as more fully discussed
below.
7

IV. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Superior Court for Judicial
Dist.

of

Danbury,

316

F.3d

103,

106

(2d

Cir.

2003)

(citing

28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

or

Court

of

involved

the
an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
V. Grounds Asserted in the Petition
A.

Actual Innocence (Ground One)

Petitioner contends that he is actually innocent of the crimes
for which he was convicted, stating simply that he “showed clear
and convincing evidence of actual/factual innocence based on a
violation of [the] State and Federal Constitution.” Doc. 1 at 5.
Petitioner raised actual innocence in his pro se supplemental brief
on his direct appeal from the June 24, 2012 judgment resentencing
him, and also raised the claim in his fourth motion to vacate the
conviction which was brought pursuant to CPL §§ 440.10 and 440.20.
In support of his argument, petitioner claimed that the prosecution
8

elicited perjured testimony from law enforcement witnesses, and
that “test results signal[ed] defendant’s innocence.” See doc. 6,
Exh. S, T. More specifically, petitioner alleged that two police
witnesses testified that they could not recall whether certain
lubricants obtained from defendant’s residence were tested for DNA
evidence. Petitioner argued that because the prosecutor was aware
that those items were tested, and were negative for DNA evidence,
the prosecutor elicited perjured testimony. The Court notes that
petitioner has presented no evidence that perjured testimony was
actually presented, but rather imputes the prosecutor’s knowledge
of testing onto the police witnesses, and concludes that perjury
occurred. Petitioner has also not alleged that any newly discovered
evidence

exists;

he

merely

offers

his

interpretation

of

the

evidence that was known to exist at the time of his trial.
Even if petitioner had presented newly discovered evidence,
this claim would be dismissed. Petitioner’s stand-alone claim of
“actual innocence” is not cognizable in this habeas proceeding. “A
claim ‘based on newly discovered evidence ha[s] never been held to
state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal
proceeding.’” Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir. 2003)
(quoting Herrera v. Collins, 506 U.S. 390 400 (1993)); see also
Greene v. Walker, 205 F.3d 1322 (2d Cir. 1999). As the Supreme
Court reasoned in Herrera, “[f]ew rulings would be more disruptive
of our federal system than to provide for federal habeas review of
9

freestanding claims of actual innocence.” 506 U.S. at 401. This
rule is grounded in the principle that habeas courts do not sit to
correct errors of fact, but rather to ensure that individuals are
not imprisoned in violation of their federal constitutional rights.
Herrera, 506 U.S. at 400; see also Taylor v. Poole, 2010 WL 419968,
*8 (W.D.N.Y. Jan. 29, 2010); Ortiz v. Woods, 463 F. Supp. 2d 380,
393-94 (W.D.N.Y. 2006).
B.

Procedural Default as to Various Claims

For the following reasons, the Court determines that the
following

claims are

procedurally

defaulted:

(1)

petitioner’s

claims as to weight and sufficiency of the evidence supporting the
verdict; (2) petitioner’s claims of prosecutorial misconduct in the
original proceeding; and (3) petitioner’s claims that counsel was
ineffective for failing to investigate the People’s evidence,
failing to independently test forensic evidence, failing to object
to the prosecutor’s remarks on summation, and failing to object to
an alleged ex parte communication by the trial judge prior to the
original sentencing.
Petitioner contends that the prosecutor committed misconduct,
such that he was denied a fair trial, when the prosecutor elicited
perjured testimony, “offered prefatory remarks [in the opening
statement] regarding the quantum of evidence intended to be laid
out before the jury and what the evidence would prove,” failed to
disclose “exculpatory DNA evidence” to the defense, and intimidated
defense witnesses such that the jury was denied the “chance to hear
10

exculpatory testimony.” Doc. 1 at 8. Petitioner also contends that
the verdict was unsupported by legally sufficient evidence and was
against the weight of the evidence, and raises various claims as to
ineffective assistance of counsel.3
Petitioner raised all of these arguments in his direct appeal
of his resentence. He raised the prosecutorial misconduct and
ineffective assistance arguments in his fourth CPL §§ 440.10/440.20
motion. The trial court denied that motion on the basis that his
prosecutorial misconduct and ineffective assistance claims were
considered and rejected on direct appeal. However, the Court notes
that the

Fourth

petitioner’s

Department

claims

which

did

not

challenged

actually
the

consider

original

any

of

proceeding,

noting:
We do not address any of the contentions raised by defendant
in his pro se supplemental brief inasmuch as they concern
matters related to the original proceeding. Where, as here,
the resentence is conducted for the purpose of rectifying a
Sparber error—that is, an error in failing to impose a
required period of PRS—[t]he defendant's right to appeal is
limited to the correction of errors or the abuse of discretion
at the resentencing proceeding[.]
Campbell, 111 A.D.3d at 1254 (emphasis added) (internal citation
and quotation marks omitted).
These claims are procedurally defaulted. See Cunningham v.
Conway, 717 F. Supp. 2d 339, 347 (W.D.N.Y. June 15, 2010) (adopting
report and recommendation). As the Cunningham court noted, “[a]

3

As noted above, petitioner’s challenge to the sufficiency of
the indictment has already been summarily dismissed because it was
decided in petitioner’s prior habeas proceeding.
11

federal claim is procedurally defaulted when a prisoner has ‘failed
to meet the State's procedural requirements’ for presenting it and
has therefore ‘deprived the state courts of an opportunity to
address [the claim] in the first instance.’” 717 F. Supp. 2d at 347
(quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)). Here,
because petitioner failed to raise these claims on his first appeal
of the original proceeding, he deprived the state courts of the
opportunity to address them at any later time. As the Fourth
Department explained, because these claims were raised in the
context of a direct appeal of a resentence, they were outside of
petitioner’s limited rights of appeal in that proceeding. Thus,
these claims are “deemed exhausted because [they are] procedurally
barred from presentation to a state court.” Id.
Petitioner has not alleged cause and prejudice to overcome the
procedural

default.

Moreover,

for

purposes

of

the

miscarriage-of-justice exception, he has made no factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
622

(1998)).

Accordingly,

the

above-enumerated

claims

are

procedurally defaulted from habeas review and dismissed on that
basis.

12

D.

Remaining Claim of Ineffective
Counsel (Ground Four)

Assistance

of

Trial

Petitioner’s only remaining claim as to ineffective assistance
is that counsel at resentencing failed to obtain a new PSI prior to
resentencing. Petitioner raised this claim in his fourth CPL
§§ 440.10/440.20 motion. In his May 17, 2013 order denying that
motion,

Judge

Boller

denied

the

claim

pursuant

to

CPL

§ 440.10(2)(a), finding it was previously determined by the Fourth
Department. A review of the Fourth Department’s order, however,
reveals no discussion of this particular issue on its merits.
To establish ineffective assistance of counsel, a defendant
first must show that “counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment” and second, that “there is a reasonable
probability that, absent the errors [by counsel], the fact finder
would have had a reasonable doubt respecting guilt.” Strickland v.
Washington, 466 U.S. 668, 687, 695 (1984). Under Strickland, the
Court is required to consider alleged errors by counsel “in the
aggregate.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).
Although the Fourth Department did not explicitly address this
ineffective assistance argument in its order on the direct appeal,
it

did

explicitly

decide

that

petitioner’s

claim

regarding

resentencing without an updated PSI was without merit. Campbell,
111 A.D.3d at 1253-54. Counsel cannot be faulted for failing to
move

for

an

updated

PSI,

where

13

such

motion

would

have

been

meritless.

See,

e.g.,

Johnson

v.

Conway,

2011

WL

53165,

*5

(W.D.N.Y. Jan. 7, 2011) (“[I]t is well-settled that counsel cannot
be faulted for failing to make a meritless objection.”). This claim
is thus dismissed.
D.

Judicial Misconduct (Ground Five)

Petitioner

contends

that

“the

court”

committed

judicial

misconduct by sentencing him “based on ex parte communication with
a

psychologist,”

and

by

sentencing

him

without

ordering

and

providing to petitioner an updated PSI. Doc. 1 at 16. Petitioner
raised his claims regarding the PSI on direct appeal of his
resentence to the Fourth Department, which held that those claims
were unpreserved for review and were, in any event, meritless. See
Campbell, 111 A.D.3d at 1253-54.
“When a state court has rejected a claim both on the merits
and because it was waived under the state's procedural law, the
procedural holding constitutes an independent and alternate state
ground which bars review of the claim on a federal habeas corpus
petition, unless the petitioner shows cause for his procedural
default and prejudice from the alleged constitutional violation.”
Costello v. Attorney Gen. of State of N. Y., 1999 WL 689335, *2
(S.D.N.Y. Aug. 31, 1999). Petitioner has neither shown nor alleged
such cause or prejudice in this case. Accordingly, petitioner’s
claim of judicial misconduct based on failure to obtain an updated
PSI is dismissed.

14

In his third and fourth CPL §§ 440.10/440.20 motions, which
followed his resentence, petitioner raised his claim regarding the
alleged ex parte communication between the judge and an unspecified
psychiatrist. Petitioner’s claim was based on Judge Tills’ comment
at petitioner’s original May 31, 2000 sentencing, in which Judge
Tills stated that he had “conferr[ed] with psychiatrists before
coming up with [his] decision [as] to how [the trial court] should
punish [petitioner].” Sentencing Minutes, May 31, 2000, at 14. In
considering petitioner’s claim on the CPL §§ 440.10/440.20 motions,
construing this claim as an argument that the sentence was illegal
and noting that the Fourth Department had found that petitioner’s
sentence was not illegal, Judge Boller held that the claim was
barred pursuant to CPL §§ 440.10(2)(a) and 440.30(4)(d). As noted
above, the denial pursuant to CPL § 440.10(2)(a) constituted an
adequate and independent state law ground precluding review by this
Court. See Cruz, 456 F. Supp. 2d at 419–20. The claim is therefore
dismissed.
F.

Severity of Sentence (Ground Six)

Finally, petitioner contends that “[i]t was unduly harsh and
severe

to

impose

the

maximum

[five]

years

of

[PSR]”

upon

resentencing. Doc. 1 at 17. In resentencing petitioner, the trial
court was merely carrying out the mandate of New York Corrections
Law § 601-d, correcting a Sparber error as noted by the Fourth
Department, and imposing the five-year duration of PSR on the
counts for which it was originally legally required. “It is well
15

settled that ‘no federal constitutional issue is presented where .
. . the sentence is within the range prescribed by state law.’”
Robles v. Lempke, 2011 WL 9381499, *18 (E.D.N.Y. Sept. 9, 2011),
report

and

recommendation

adopted,

2012

WL

5507303

(E.D.N.Y.

Nov. 14, 2012) (quoting White v. Keane, 969 F.2d 1381, 1383
(2d Cir. 1992); citing Schreter v. Artuz, 225 F. Supp. 2d 249, 258
(E.D.N.Y. 2002) (collecting cases)). This claim is thus dismissed.
VI.

Conclusion
For the foregoing reasons, petitioner’s request for writ of

habeas corpus is denied, and the petition (Doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. 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:

November 16, 2015
Rochester, New York.

16