United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
BERNARD A. FRIEDMAN SENIOR U.S. DISTRICT JUDGE.
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.
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
Officer Jim Blocker of the Battle Creek Police Department
interviewed defendant shortly after his arrest. Defendant
waived his Miranda 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
People v. Colbert, No. 319452, 2015 WL 1227657, at
*1 (Mich. Ct. App. Mar. 17, 2015) (unpublished) (footnote in
waived his right to testify and did not present any
witnesses. His defense was that he was merely present during
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.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
(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.
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).
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)).
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.
The Confrontation Clause
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.
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.