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Colbert v. McCullick

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

July 23, 2019

DESHAWN MAURICE COLBERT, JR., #728086, Petitioner,
MARK McCULLICK, Respondent.



         Petitioner Deshawn Maurice Colbert, Jr., has filed a pro se habeas corpus petition challenging his state convictions for first-degree, felony murder, Mich. Comp. Laws § 750.316(1)(b), and armed robbery, Mich. Comp. Laws § 750.529. He argues as grounds for relief that his right of confrontation was violated when a non-testifying co-defendant's statement was admitted in evidence, his trial attorney was ineffective for failing to make a timely objection to the error, and his post-arrest silence was erroneously used against him as an admission of guilt and for impeachment purposes. Respondent argues that petitioner's claims are procedurally defaulted and meritless. The Court agrees. Accordingly, the petition will be denied.

         I. Background

         Petitioner was tried before a jury in Calhoun County Circuit Court where the testimony established that --

[i]n the evening hours of August 10, 2012, defendant and his father and two other cohorts entered the home of the victim, Larry Evans, to steal marijuana and/or money that they believed was inside the home. Ehabb Kelly, one of the victim's sons, was downstairs when the men entered the house. He called 911 because he heard a commotion upstairs. He testified that someone yelled “[w]here's the bag” multiple times. Kelly, who hid behind a cabinet, testified that defendant came downstairs at one point, then went upstairs and told his cohorts that someone was hiding in the basement. Thereafter, defendant's father and another accomplice went downstairs to look for him, with one man indicating that he would “shoot [the] whole basement up.” When the police arrived, defendant's father hid in the basement underneath a bed.
When police officers were outside the house, they heard one of the occupants of the house demanding to know “where's the bag[?]” Defendant and his accomplices ran from the home when they realized the police were there. Two of the officers chased and tackled defendant. Defendant's clothes were covered in what appeared to be blood. Laboratory tests later revealed that the victim's blood was on defendant's tennis shoes. When the officers went inside the victim's home, they found the victim on the floor, surrounded by blood. The victim had been the recipient of a savage beating and a single gunshot wound to the head. Officers found two handguns in the home; testing confirmed that the victim's blood was on both handguns and that one of the handguns fired the bullet that killed the victim.
Officer Jim Blocker of the Battle Creek Police Department interviewed defendant shortly after his arrest. Defendant waived his Miranda[1] rights and proceeded to give conflicting versions of what occurred at the victim's house. At first, he admitted to being at the victim's house, but denied knowing any of the other individuals who were present. Later, when confronted with the fact that one of the other individuals at the house was his father, defendant admitted to knowing his father was at the house. Later still, despite initially denying knowing anyone else who was at the house or knowing why they were there, defendant eventually admitted that he knew all of the men who went to the victim's house. He also admitted to knowing that one of the men, Deven Nelson, was known as a “shooter, ” and that Deven had a gun that evening. He also admitted that, before going to the house, Deven and his brother, Corey Nelson, told him that they were going to the victim's house because “this guy owed ‘em money” and that they went there to “get n* * * * * some money, so everybody gonna get his money.”

People v. Colbert, No. 319452, 2015 WL 1227657, at *1 (Mich. Ct. App. Mar. 17, 2015) (unpublished) (footnote in original).

         Petitioner waived his right to testify and did not present any witnesses. His defense was that he was merely present during the crime.

         On October 16, 2013, the jury found petitioner guilty of felony murder and armed robbery. On November 21, 2013, the trial court sentenced petitioner to life imprisonment for the murder and to a concurrent term of thirty to sixty years for the armed robbery. The Michigan Court of Appeals affirmed petitioner's convictions, see id., and on September 29, 2015, the Michigan Supreme Court denied leave to appeal. See People v. Colbert, 498 Mich. 886; 869 N.W.2d 601 (2015). On January 3, 2017, petitioner filed his habeas corpus petition pursuant to 28 U.S.C. § 2254.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that

(d) [a]n 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 proceeding.

28 U.S.C. § 2254. When deciding “whether a state court's decision ‘involved' an unreasonable application of federal law or ‘was based on' an unreasonable determination of fact, ” a federal habeas court must “train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims, and . . . give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018) (citations omitted). Further, “[w]hen the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion, . . . a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Id. at 1192.

         The Michigan Court of Appeals reviewed petitioner's claims for “plain error affecting substantial rights.” Colbert, 2015 WL 1227657, at *2 and *4. However, because the Court of Appeals also elaborated on the issues under federal law when addressing petitioner's claims, its decision is entitled to deference under AEDPA. Stewart v. Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017), cert. den., 138 S.Ct. 1998 (2018).

         AEDPA“imposes a ‘highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt,' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). To succeed on habeas review of his claims, a state prisoner must show that the state court's ruling on his claims “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits, ” Cullen v. Pinholster, 563 U.S. 170, 181 (2011), and “state findings of fact are presumed to be correct unless the defendant can rebut the presumption by clear and convincing evidence.” Baze v. Parker, 371 F.3d 310, 318 (6th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).

         III. Analysis

         Petitioner's first ground for relief alleges that his right to confront the witnesses against him was violated by his trial attorney's ineffectiveness. This claim consists of two components. Petitioner is alleging that his rights under the Confrontation Clause were violated and that he was denied the effective assistance of trial counsel because counsel did not object to the constitutional error.

         A. The Confrontation Clause

         Petitioner argues that his right of confrontation was violated when Detective Brad Wise testified about out-of-court statements made by petitioner's father, Deshawn Maurice Colbert, Sr. Mr. Colbert was one of petitioner's co-defendants, but the two of them were tried separately, and because Mr. Colbert did not testify at petitioner's trial, petitioner was unable to cross-examine him.

         The Michigan Court of Appeals reviewed petitioner's claim for “plain error affecting substantial rights” because he did not object at trial to Detective Wise's testimony about Mr. Colbert's statements to Wise. The Court of Appeals went on to conclude that petitioner's right of confrontation was, in fact, violated, but that petitioner was not entitled to a reversal of his convictions because the alleged error did not affect the outcome of the trial or result in the conviction of an innocent person.

         1. Procedural ...

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