United States District Court, W.D. New York
July 6, 2004.
MICHAEL CAMPBELL, Petitioner,
BURGESS, Superintendent, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Petitioner, Michael Campbell ("Campbell"), filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his conviction in Monroe County Court on three counts
of second degree murder, one count of attempted second degree
murder, one count of first degree assault, and one count of
fourth degree criminal possession of a weapon. The parties have
consented to disposition of this matter by the undersigned
pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Campbell's convictions arise from four shooting incidents
(three murders and one attempted murder) in the City of Rochester
between August 22, 1994, and April 15, 1995. All of the shootings
stemmed from an argument in which Campbell became involved, which
in turn led to a feud between Campbell and his associates on the
one side, and Levi Wright, a/k/a "Poochie", and his gang on the
In mid-August 1994, Campbell was in the vicinity of Parsells
and Denver Streets when he received a message on his pager which
he wanted to answer. There was a pay telephone on the corner, but
a woman was using it. By Campbell's estimate, the woman had been
talking for about 45 minutes. Campbell asked the woman if he
could use the phone, but she refused. He informed her that she
had better get off the phone or he would hang it up. The woman
swore at him, which led to an altercation between Campbell and
the woman's boyfriend, who happened to be one of Poochie's
cousins. The fight escalated with more individuals becoming
involved, but no one was shot. Eventually, everyone dispersed.
Later that evening or early the next morning, while Campbell
and some friends were in the vicinity of Webster Avenue and
Ferndale Crescent, a group of armed individuals led by Poochie
emerged from the bushes at the end of a cul-de-sac and started
firing at Campbell. Campbell and his friends returned fire. Over
the next several days, Campbell had shots fired at him three more
times by Poochie or members of his gang.
On August 22, 1994, Campbell was shot at again, and this
apparently was "the straw that broke the camel's back." Campbell
took his gun and went out looking for Poochie. Upon seeing the
tan Honda Accord that Poochie normally drove, Campbell and
another man fired about ten rounds into the car, killing the two
teenaged occupants, Peniel Bedell ("Bedell") and Byron Whyte
("Whyte"), both of whom sold drugs for Poochie. Poochie, however,
was not in the car at the time. After the shooting, Campbell left
Rochester to lie low in Florida for a few months.
Shortly after returning to Rochester, on December 3, 1994,
Campbell went into a grocery store at the corner of Jefferson
Avenue and Clifton Streets to buy some beer. Upon entering the
store, Campbell, who happened to be drunk and stoned, spotted
Jeremiah Thomas ("Thomas") standing over a cooler. Thomas was a
member of Poochie's gang and one of the people whom Campbell
believed had been involved in the Webster Avenue gun fight and
subsequent attempts to kill him. Seeing Thomas refreshed the
memory of those incidents in Campbell's mind and, when Thomas
reached down into the cooler, Campbell fatally shot him.
The final shooting occurred at about 2:00 a.m. on April 15,
1995, when Campbell approached Michael Lewis ("Lewis"), a/k/a
"Tank", outside of the High Chaparral Club on Portland Avenue and
asked whether Lewis's cousins had made statements to the police
about Campbell. Lewis denied knowing anything about this
although, in fact, he was aware that his cousin had given a
statement to police implicating Campbell in the Bedell-Whyte
killing. During this conversation, a car operated by unknown
individuals drove by Campbell twice, nearly striking him.
Campbell reached under his shirt to draw his gun, whereupon Lewis
fled on foot. As Lewis was climbing a metal fence about a block away, Campbell
caught up to him and shot him five times, causing
life-threatening injuries and temporary partial paralysis. Lewis
survived, however, and filed a felony complaint with the
Rochester Police Department against Campbell.
Based upon the complaint and other information received
concerning Campbell, Investigator Sheridan of the Rochester
Police Department obtained a warrant for Campbell's arrest on
charges of second degree attempted murder and first degree
assault with respect to the Lewis shooting. The police executed
the warrant on June 2, 1995, bringing Campbell into custody at
about 10:00 p.m. that evening. Rather than immediately arraign
Campbell, Investigators Sheridan and his partner, Investigator
Schultz, interrogated Campbell for several hours. During this
time, Campbell gave a statement admitting to the murders of
Whyte, Bedell, Thomas, and the attempted murder of Lewis.
However, he advised the officers that he was "not going to sign
shit." Investigator Sheridan typed up this statement and had
Campbell read it over. True to his word, Campbell refused to sign
The investigators then questioned Campbell about the August 14,
1994 murder of Akinwumi Vincent ("Vincent"). Campbell initially
denied responsibility, but he later admitted that he had a
problem with Vincent and shot him in the stomach. A second
statement was transcribed regarding the Vincent killing, but
Campbell refused to sign this one as well. Investigator Sheridan
then pressed Campbell about the killing of Eddie West, telling
him that the handgun used in that crime was the same one used to
shoot Lewis. Campbell consistently denied being involved in the
West killing, claiming that after he shot Lewis, he exchanged the
gun he had used for a 9-mm rifle.
Campbell subsequently was indicted by a Monroe County Grand
Jury and charged with three counts of second degree murder, one
count of attempted second degree murder, one count of first
degree assault, and one count of fourth degree criminal
possession of a weapon.*fn1 A hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 78 (1965)
("Huntley"), was held before Judge Donald Mark in Monroe County
Court to determine the voluntariness and admissibility of
Campbell's statements to the police. Defense counsel argued that
Campbell's statements should be suppressed because Campbell's
right to counsel was violated by virtue of the fact that (1) a
felony complaint already had been filed against Campbell charging
him with the Lewis shooting; (2) Campbell was questioned
following his arrest instead of being arraigned immediately upon
the Lewis charge; and (3) the Whyte-Bedell-Thomas homicides were
related to, or inextricably intertwined with the Lewis shooting
for which Campbell's right to counsel had attached, making any
questioning regarding the uncharged incidents unconstitutional.
At the hearing, Investigator Sheridan testified that after
Campbell waived his Miranda*fn2 rights, they began
discussing, in general terms, the feud between Campbell's
associates and the gang led by Poochie and Lewis, as well as the
recent spate of gang-related shootings in Rochester. 1/8/96
Transcript of Huntley Hearing at 30. About thirty minutes into
the interrogation, Campbell spontaneously confessed to the murder
of Lewis. 12/15/95 Transcript of Huntley Hearing at 59. This
was the first murder to which Campbell confessed. Id.
Investigator Sheridan testified that neither he nor his partner
had asked Campbell any questions relative to the Lewis murder.
1/8/96 Transcript of Huntley Hearing at 60. Investigator
Sheridan talked generally about the fact that there had been a
lot of shootings, and said that he wanted Campbell's side of the
story. Investigator Sheridan denied mentioning the Lewis
shooting, however. Id.
According to the investigator, Campbell acknowledged that he
was aware of the shootings but said that the only one in which he
was involved was the Lewis shooting. Id. at 32, 34.
Investigator Sheridan testified that "[they] moved right on"
after Campbell made that statement and that they did not pursue
the subject. Id. at 34. Investigator Sheridan testified that
they did not ask Campbell anything about Lewis, knowing that they could
not question him on that matter due to the issuance of the
warrant relating to the Lewis shooting. Id. at 35, 38.
The court issued a written decision on February 29, 1996,
finding that Campbell knowingly waived his Miranda rights at
the outset of questioning and that he was not threatened or
tricked into waiving his rights or giving a confession. See
2/29/96 County Court Order, App. at 112-34.*fn3 The court
did not find the interrogation, which began at about midnight and
lasted until 4:33 a.m., to be coercive.
The court further found that suppression was not warranted
simply because a felony complaint had been filed against
Campbell. Under New York state law, the court observed, "where a
defendant is arrested pursuant to an arrest warrant, he cannot be
questioned without counsel relative to the charges contained in
that warrant, but can be questioned without counsel present
relative to any other unrelated crimes." Id. at 13, App. at 124
(citing, e.g., People v. Ruff, 81 N.Y.2d 330 (1993); People v.
West, 81 N.Y.2d 370 (1993)) (emphasis in original). The court
concluded that this was precisely what happened in Campbell's
case, since the police specifically refrained from questioning
him about the Lewis shooting. Id., App. at 124.
Similarly, the court rejected Campbell's argument relying on a
slightly different line of state precedent that the
Whyte-Bedell-Thomas murders were so "intertwined" with the Lewis
shooting as to render the questioning on the former violative of
his right to counsel which had attached with regard to the Lewis
attack. Id. at 16-17, App. at 127-28. Concluding that the fact
that all of the shootings "shared a common motive did not violate
defendant's right to counsel[,]" id. at 20, App. at 131, the
court denied the suppression motion.
Campbell was tried before a jury in Monroe County Court (Mark,
J.). Campbell did not testify in his behalf. The jury returned a
verdict convicting Campbell of all counts in the indictment.
Campbell was sentenced as a persistent violent felony offender to
consecutive indeterminate terms of imprisonment of 25 years to life on each
of the murder convictions; 25 years to life on each of the
attempted murder and assault convictions, to run concurrently
with each other but consecutively to the murder convictions; and
a definite term of one year on the weapons conviction, to run
concurrently with the attempted murder and assault convictions
but consecutively to the murder convictions, for a total of 100
years to life in prison. See Sentencing Transcript at 20-22.
On direct appeal, Campbell argued that the court improperly
refused to suppress his statements on the basis that he was
denied his Sixth Amendment right to counsel, and that the jury's
rejection of his defense of extreme emotional disturbance was
against the weight of the evidence. The Appellate Division,
Fourth Department, unanimously affirmed his conviction on
September 29, 2000. People v. Campbell, 275 A.D.2d 984 (4th
Dept. 2000). With regard to his right-to-counsel claim, the court
held that "[a]lthough defendant's right to counsel had attached
with respect to the attempted murder [of Lewis], questions
concerning that charge were not impermissibly intermingled with
questions concerning the uncharged matters on which defendant was
not represented (see, People v. Miller, 54 N.Y.2d 616, 618-19
[(1981)]; People v. Ermo, 47 N.Y.2d 863, 865 [(1979)]; cf.,
People v. Cohen, [90 N.Y.2d], 640-42 [(1997)])." Id. The New
York Court of Appeals denied leave to appeal on January 29, 2001.
People v. Campbell, 96 N.Y.2d 732 (2001).
Campbell filed this federal habeas petition on January 20,
2002. He claims only that his statements were admitted in
violation of his Sixth Amendment right to counsel, the same issue
that he raised on direct appeal.*fn4 For the reasons set
forth below, Campbell's § 2254 petition is denied.
I. Standard of Review To prevail under 28 U.S.C. § 2254, as amended in 1996, a
petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
III. Merits of the Petition
A. Violation of Sixth Amendment Right to Counsel
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence." In McNeil v. Wisconsin,
501 U.S. 171 (1991), the Supreme Court explained when this right
The Sixth Amendment right [to counsel] . . . is
offense specific. It cannot be invoked once for all
future prosecutions, for it does not attach until a
prosecution is commenced, that is, at or after the
initiation of adversary judicial criminal proceedings
whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.
Id. at 175 (citations and internal quotation marks omitted).
Accordingly, the McNeil court held that a defendant's
statements regarding offenses for which he had not been charged
were admissible notwithstanding the fact that his Sixth Amendment
right to counsel had attached with respect to other charged
offenses. See id. at 176. Revisiting this issue in Texas v.
Cobb, 532 U.S. 162
(2001), the Supreme Court observed that some
state courts and federal Courts of Appeals have read into the
offense-specific definition outlined in McNeil "an exception
for crimes that are `factually related' to a charged offense."
Id. at 168 & n. 1 (citing United States v. Covarrubias,
179 F.3d 1219
, 1223-24 (9th Cir. 1999) ("An exception to the
offense-specific requirement of the Sixth Amendment occurs when
the pending charge is so inextricably intertwined with the charge
under investigation that the right to counsel for the pending
charge cannot constitutionally be isolated from the right to
counsel for the uncharged offense.) (quotations omitted); United
States v. Melgar, 139 F.3d 1005
, 1013 (4th Cir. 1998);
United States v. Doherty, 126 F.3d 769, 776 (6th Cir. 1997); United States v. Arnold, 106 F.3d 37
, 41 (3rd
Cir. 1997); United States v. Williams, 993 F.2d 451
(5th Cir. 1993); Commonwealth v. Rainwater,
681 N.E.2d 1218
, 1229 (Mass. 1997); In re Pack, 616 A.2d 1006, 1010-1011
(Pa. Super. 1992)). The majority opinion in Cobb observed
that "several of these courts have interpreted Brewer v.
Williams, 430 U.S. 387
, 97 S.Ct. 1232, 51 L.Ed.2d 424
and Maine v. Moulton, 474 U.S. 159
106 S.Ct. 477, 88 L.Ed.2d 481 (1985)*fn6
both of which were decided
well before McNeil to support this view, which [petitioner]
now invites us to approve. We decline to do so." Id.
According to the Supreme Court in Cobb, neither Brewer nor
Moulton addressed the precise question before it namely,
whether a criminal defendant's Sixth Amendment right to counsel
attaches not only to the offense with which he is charged, but to
other offenses "`closely related factually'" to the charged
offense. See Cobb, 532 U.S. at 170. To the contrary, the Court
found, to the extent Moulton spoke to the issue at all, it
"expressly referred to the offense-specific nature of the Sixth
Amendment right to counsel[.]" Id. (citing Moulton, 474 U.S.
at 168, 177, 179-80). Thus, the Court found no basis in its prior precedent
for expanding McNeil to create an exception to its
However, the majority in Cobb also recognized that the
definition of an "offense" is "not necessarily limited to the
four corners of a charging instrument." Id. at 173.
Accordingly, it held that "when the Sixth Amendment right to
counsel attaches, it does encompass offenses that, even if not
formally charged, would be considered the same offense under the
Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180.
76 L.Ed. 306 (1932)] test." Id. at 173.*fn7 The majority
opinion in Cobb rejected the dissenters' approach, 532 U.S. at
173, which recommended defining "offense" more broadly "in terms
of the conduct that constitutes the crime that the offender
committed on a particular occasion, including criminal acts that
are `closely related to' or `inextricably intertwined with' the
particular crime set forth in the charging instrument," id. at
186 (dissenting opn.).
Cobb is dispositive of Campbell's right-to-counsel claim. In
Cobb, the victim, Owings, reported to the sheriff's office that
the home he shared with his wife and 16-month-old daughter had
been burglarized. Owings also informed the police that his wife
and daughter were missing. Cobb, the accused, lived across the
street from the victim. Acting on an anonymous tip that Cobb was
involved in the burglary, the police questioned him about that
event. However, Cobb denied any involvement. About eight months
later while under arrest for an unrelated offense, Cobb again was
questioned about the incident, whereupon he confessed to the
burglary but denied any knowledge relating to the disappearances.
A month later, counsel was appointed to represent Cobb on the
burglary charge. See 532 U.S. at 165.
In November 1995, Cobb was free on bond and living with his
father. At that time, Cobb's father contacted the sheriff's
office to report that Cobb had confessed to killing Owings' wife during the burglary. A warrant subsequently was issued for
Cobb's arrest, and he was taken into custody and administered his
Miranda warnings. Cobb waived these rights and admitted
murdering Owings's wife and daughter. Cobb's confession was used
at his trial, where he was found guilty of capital murder for
killing more than one person in the course of a single criminal
transaction. See id. at 165-66.
The Supreme Court noted that at the time Cobb confessed to the
murders, he had been indicted for burglary, but he had not been
charged in the deaths of the wife and daughter. As defined by
Texas law, burglary and capital murder are not the same offense
under Blockburger. Cobb, 532 U.S. at 174 (citations omitted).
Thus, in light of the "offense-specific" rule for determining
attachment of an accused's right to counsel, the Court held that
the Sixth Amendment right to counsel did not bar police from
interrogating Cobb regarding the murders, and his confession was
Here, in contrast to the crimes in Cobb, the
Whyte-Bedell-Thomas murders and the Lewis shooting were entirely
separate spatially and temporally, and each involved a different
victim. The only common link among the four crimes was that they
were motivated by Campbell's animosity toward Lewis and Poochie
and their drug-selling associates. Even under the interpretations
of McNeil which were abrogated by the Supreme Court in Cobb,
Campbell's case still would not have presented a violation of
federal constitutional law. See, e.g., United States v. Melgar,
139 F.3d at 1014-15 ("[T]he fact that the old and new charges
involve the same time, place, and conduct is not enough to invoke
the `closely related' exception."). Courts who previously
recognized the "closely related" exception also required that the
defendant "demonstrate that the interrogation on the new offenses
produced incriminating evidence as to the previously charged
offenses." Id. (citing, e.g., United States v. Arnold,
106 F.3d 37, 41-42 (3d Cir. 1997); United States v. Mitcheltree,
940 F.2d 1329, 1341-42 (10th Cir. 1991); United States v.
Rodriguez, 931 F. Supp. 907, 926-27 (D. Mass. 1996)). Here, the
only questioning concerning the Lewis crime that arguably
occurred was when Investigator Sheridan asked Campbell what he did with the gun used in the Lewis shooting and
informed him that the ballistics evidence proved that it was the
same gun used to kill Eddie West. See supra at pg. 4. Campbell,
however, steadfastly maintained that he had nothing to do with
West's murder, and the police obtained no further incriminating
information regarding the Whyte-Bedell-Thomas shootings or the
West shooting. Upon the factual circumstances present before it,
the Court is unable to find that a violation of Campbell's Sixth
Amendment right to counsel occurred during his pre-arraignment
For the reasons stated above, Michael Campbell's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Campbell has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED