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Colbert v. Stoddard

United States District Court, E.D. Michigan, Southern Division

December 18, 2017



          Arthur J. Tarnow, Senior United States District Judge

         Petitioner Antonio Andre Colbert, a state prisoner at the Carson City Correctional Facility in Carson City, Michigan, has filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's convictions and sentence of ten to fifteen years for two counts of third-degree criminal sexual conduct. See Mich. Comp. Laws § 750.520d(1)(a) (sexual penetration of a person at least thirteen years old, but less than sixteen years old). Petitioner's six grounds for relief challenge (1) an amendment to the criminal information, (2) a witness's testimony regarding Petitioner's other acts of criminal sexual conduct, (3) the trial court's denial of his motion for a mistrial, (4) the trial court's jury instruction on the criminal-sexual-conduct charges, (5) the trial court's denial of his motion for new trial, and (6) the trial court's scoring of offense variable 13 of the Michigan sentencing guidelines. The State urges the Court to deny the petition on grounds that Petitioner's claims are meritless or not cognizable on habeas review and that the state courts' decisions were not contrary to federal law, unreasonable applications of federal law, or unreasonable determinations of the facts. The Court agrees with the State's position on Petitioner's claims. Accordingly, the petition will be denied.

         I. Background

         Petitioner initially was charged in Macomb County, Michigan with two counts of first-degree criminal sexual conduct under Mich. Comp. Laws § 750.520b(1)(c) (sexual penetration of an individual during the commission of another felony), one count of kidnapping, Mich. Comp. Laws § 750.349, and driving while license suspended, second offense, Mich. Comp. Laws § 257.904(1). On the day set for trial in Macomb County Circuit Court, Petitioner pleaded guilty to the driving offense, and the prosecutor moved to amend the criminal information to include two counts of third-degree criminal sexual conduct (sexual penetration of an individual thirteen, fourteen, or fifteen years of age). The prosecutor asked to have the third-degree charges listed as separate charges, not alternative counts, to the first-degree charges. Defense counsel objected to the motion on the basis of the late notice, but the trial court granted the prosecutor's motion, and the case proceeded to trial on two counts of first-degree criminal sexual conduct, one count of kidnapping, and two counts of third-degree criminal sexual conduct.

         The first prosecution witness was complainant, who testified that, on June 8, 2011, she was fourteen years old and an eighth-grader at Lincoln Middle School in Warren, Michigan. Previously, she had gotten into trouble for frequently being late to school, and on June 8, 2011, she missed the bus to school because she could not find a book bag. As she was walking to school later that morning, Petitioner approached her in a white minivan and asked if he could talk to her. She looked at him, but kept walking because she did not know him. As she crossed the street, she saw Petitioner a second time. He asked her what her name and age were and where she went to school. She told him that she was fourteen years old and that she attended Lincoln School. Petitioner subsequently got out of his vehicle, grabbed her, and put her in the passenger seat of his vehicle. She did not try to get out of the vehicle because she was scared and she did not want to risk her life if he had a weapon. Petitioner then drove to a side street and stopped in front of a house where he picked her up and placed her in the back of his vehicle. He took off her clothes, put her hands over her head so that she could not move, grabbed her throat, and put his penis in her vagina. She cried, but Petitioner kissed her and put his penis in her vagina a second time. Later, Petitioner got back in the front seat of the vehicle and asked a passerby what time it was. He then took her to school and told her not to tell anyone about the incident because his little sister attended the school and he would know if the complainant had reported the incident. The complainant, nevertheless, walked into the school and told a teacher that she had been raped. She also informed a police officer what had happened.

         At trial, the complainant stated that she had told school officials the truth and that she did not fabricate the incident as an excuse for being late for school. On cross examination, however, she admitted that school officials had warned her the day before the incident with Petitioner that, if she were late again, she or her mother could be charged with truancy.

         Forensic scientist Melinda Jackson testified that she detected the presence of semen on vaginal and anal swabs that were presented to her and that she sent the swabs to a laboratory for DNA analysis. Brian Schloff analyzed those swabs and buccal swabs taken from Petitioner and the complainant. He determined that the sperm fraction of the DNA found on the vaginal and anal swabs taken from the complainant matched Petitioner. The likelihood that the DNA belonged to anyone besides Petitioner was in the quintillions.

         Jason Scholz testified that, on June 8, 2011, he was a school resource officer for the Van Dyke Public School District. After the assistant principal at Lincoln Middle School informed him about a possible rape of a student, he spoke with the complainant who was crying and upset. The complainant claimed that she had been sexually assaulted on her way to school that day. The complainant described her assailant, the man's vehicle, and where the assault occurred. When Officer Scholz checked the school surveillance videos, he saw the vehicle pull into the parking lot and the complainant get out of the vehicle. He handed a photograph of the vehicle to Officer Pylak and instructed Pylak to check for the vehicle later that day in case someone arrived at the school in the same vehicle to pick up someone at the elementary school. After students at the elementary school were released for the day, police officer Sciullo made a traffic stop involving the suspect vehicle. Officer Scholz responded to the scene and saw Petitioner in the driver's seat of the vehicle. Petitioner was wearing clothing similar to what had been described to Officer Scholz.

         Police Officer Ryan Pylak of the Warren Police Department testified that Officer Scholz had contacted him on June 8, 2011, and described a person of interest and a vehicle possibly involved in a sex crime. He (Pylak) was told that the suspect might return to the school to pick up his little sister. He forwarded this information and a photograph of the vehicle to Officer Sciullo.

         Police officer Timothy Sciullo testified that, after acquiring information from Officer Pylak, he eventually saw the vehicle in question. He stopped the vehicle, and with the help of another officer, he arrested the driver of the vehicle, who matched the description that Sciullo had been given. Petitioner was the driver, but he was unable to produce a driver's license or vehicle registration card.

         Gail Lippert testified that she was the sexual assault nurse examiner who examined the complainant. The complainant was soft-spoken, somewhat withdrawn, and slow to respond to some questions, but according to Ms. Lippert, this type of response can be expected from someone who had just experienced a traumatic event. The complainant described what had happened to her, and even though Ms. Lippert saw no injuries, the complainant indicated that there was some tenderness or soreness on her genitalia.

         Police officer Mark Smith testified that he was an evidence technician for the Warren Police Department and that, on June 8, 2011, he executed a search warrant on a white minivan. He identified photographs that he took of the interior and exterior of the vehicle. One of the photographs depicted the contents of a backpack found in the vehicle. He did not find any fingerprints on the vehicle.

         The final prosecution witness was NB who testified about an incident that occurred in Wayne County, Michigan in 2010 when she was fifteen years old.[1] She testified that when she first saw Petitioner on the day in question, he was with two other people. He approached her and asked her whether she want to “chill” with him. When she responded that she did want to be with him, but not with the other two people in the vehicle, Petitioner dropped off his friends and returned for her in his van. She got in his vehicle and went to his house where they watched a movie and had sex. Afterward, they went to a McDonald's restaurant and then back to Petitioner's house. Petitioner's two friends were there, but she and Petitioner went upstairs and started watching a movie. Petitioner went downstairs when someone called him. He came back upstairs, and they had sex again, but he started to choke her when his light-skinned friend came into the room and tried to have oral sex with her as Petitioner was penetrating her from behind. Petitioner left the room, but then a dark-skinned boy came in the room and held her down on the bed. She tried fighting the two boys, but both of them managed to penetrate her. When they finally left the room, she was able to get dressed and leave the house.

         NB admitted at trial that she willingly went with Petitioner and had sex with him and that she did not report the rapes to the police until three weeks after the incident with Petitioner and his friends. She also admitted that she did not appear in court when given an opportunity to testify against Petitioner and that she currently was facing a charge of armed robbery. However, she denied fabricating the incident, and she claimed that nobody had offered her a deal or promised her anything in her armed robbery case in return for her testimony against Petitioner.

         Petitioner did not testify, and the only defense witness was retired police officer Robert Krist, who testified that he was the former officer in charge of the case and that he interviewed the complainant on the day after the assault. Defense counsel was permitted to treat Mr. Krist as an adverse witness, and he attempted to impeach Krist with inconsistencies in the complainant's statements to Krist and Officer Scholz. But Krist's testimony about his and Officer Scholz' interviews with the complainant tended to confirm what the complainant had said at trial.

         The prosecutor maintained during closing arguments that Petitioner was guilty, as charged, of all five charges against him. Petitioner's defense was that the complainant and NB were liars and troubled girls who sought out older men. Defense counsel argued to the jury that the complainant made up her version of the facts to avoid being taken into custody for her tardiness at school on June 8, 2011, and that NB was blaming Petitioner for what happened to her in 2010. Defense counsel maintained that the prosecution had failed to prove its case beyond a reasonable doubt because there was a lack of corroborating evidence.

         On February 9, 2012, the jury acquitted Petitioner of first-degree criminal sexual conduct and kidnapping, but found him guilty of two counts of third-degree criminal sexual conduct. On March 15, 2012, the trial court sentenced Petitioner to prison for two concurrent terms of 120 to 180 months (ten to fifteen years). Petitioner moved for a new trial, but the trial court denied his motion.

         Petitioner raised his habeas claims in an appeal as of right. The Michigan Court of Appeals affirmed his convictions and sentences, but remanded his case to the trial court to correct an error in the pre-sentence investigation report. See People v. Colbert, No. 310813 (Mich. Ct. App. Oct. 15, 2013). On April 28, 2014, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented to it. See People v. Colbert, 495 Mich. 991; 845 N.W.2d 108 (2014).[2]

         On January 14, 2015, Petitioner filed his habeas petition. The State filed an answer to the petition, and Petitioner filed a reply.

         II. Standard of Review

         28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1).

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application occurs” when “a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         III. Analysis

         A. Amendment of the Criminal Information

         Petitioner alleges first that the trial court abused its discretion by permitting the prosecutor to amend the criminal information at trial to add two counts of criminal sexual conduct in the third degree. Petitioner contends that there was no justification or excuse for the late amendment and that it unfairly surprised and prejudiced him because he had planned to defend against the prosecutor's theory that the criminal sexual conduct occurred during a kidnapping. The Michigan Court of Appeals determined on review of this claim that the amendment did not result in unfair surprise, inadequate notice, or an insufficient opportunity to defend and that the trial court did not abuse its discretion in granting the motion to amend.

         1. Legal Framework

         In Michigan, the document known as a criminal information “advise[s] an accused of the offense with which he is charged.” People v. Gould, 237 Mich. 156, 164; 211 N.W.2d. 346, 348 (1926). Before, during, or after trial, a trial court “may permit the prosecutor to amend the information . . . unless the proposed amendment would unfairly surprise or prejudice the defendant.” Mich. Ct. R. 6.112(H); see also Mich. Comp. Laws Ann. § 767.76 (“The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence.”). Furthermore, when, as initially argued here, the gravamen of the ...

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