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Colbert v. Brown

United States District Court, S.D. Indiana, Terre Haute Division

September 22, 2017

RICHARD BROWN Superintendent, Respondent.



         Once convicted and after exhaustion or waiver of any right to appeal, a defendant is presumed to stand “fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982).

         For the reasons explained in this Entry, the effort of Hezekiah Joel Colbert to show otherwise with respect to his Hendricks County convictions fails. His petition for a writ of habeas corpus will therefore be denied. In addition, the Court finds that a certificate of appealability should not issue.

         I. Background

         An Indiana jury found Colbert guilty of attempted murder and burglary. The facts and pertinent procedural history were recited in Colbert's direct appeal:

At the time relevant to this appeal, Jarrod Wilson (“Jarrod”) and Misty Wilson (“Misty”) had been married, divorced, and remarried. In the summer of 2008, they had been married for seven years, but by the following summer, they were estranged. Misty had started a romantic relationship with her high school boyfriend, Colbert. Jarrod moved out of the marital residence on Murray Street in Indianapolis and began to live at his parents' home on Sycamore Street in Brownsburg, Indiana. Colbert then moved in with Misty and her children. Although Misty and Colbert had discussed the prospect of marriage, she later informed Colbert that she wanted to reunite her family and return to her husband Jarrod. After learning this, Colbert said that he would kill Jarrod, and began to wear in his waistband a butcher knife that he had taken from Misty's house. In August of 2009, Jarrod went to Misty's home to help her repair plumbing, and met Colbert at the house.
On August 28, 2009, three days after Colbert threatened to kill Jarrod, Misty saw Colbert carrying the butcher knife. That same day, Jarrod returned from work to his parents' house. While on the computer, he received an instant message from Colbert, who was using Misty's account. The message stated, “Ha ha, nice try. She's playing both of us.” Tr. p. 404. Jarrod did not respond, but did inform Misty about the message. Jarrod then opened the garage door in anticipation of his parents' return home, and fell asleep on the living room couch.
Jarrod awoke as Colbert was stabbing him. Colbert wrapped his arm around Jarrod from behind, held him down, and stabbed him repeatedly in the side and chest. Jarrod broke free from Colbert and ran to the other side of the table in front of the couch and “[g]ot a good look” at Colbert, who was only a few feet away. He saw the knife Colbert was holding, which he recognized as a butcher knife from Misty's house, and also noticed that Colbert had a tattoo on his neck. Jarrod managed to escape to a neighbor's house, where the neighbor called the police and an ambulance. Jarrod was taken to Wishard hospital in Indianapolis, where he underwent emergency surgery to repair his injuries, which included wounds to his chest, abdomen, stomach, and diaphragm. Jarrod lost over one liter of blood and has suffered from long-term loss of feeling in his fingers. Jarrod told the police investigating the stabbing that Colbert was his attacker. When the police went to Colbert's residence, he crashed his van into a neighbor's garage while attempting to flee.
The State subsequently charged Colbert with Class A felony attempted murder, Class A felony burglary, Class B felony aggravated battery, and Class C felony battery. The State also alleged that Colbert was an habitual offender. During the jury trial, the State called as a witness Sergeant Jennifer Barnes (“Sgt. Barnes”), who worked for the cyber crimes unit of the Indiana State Police. Sgt. Barnes testified that she conducted a forensic search of the computer at Misty's home and found evidence that someone had used the Yahoo! maps website to look for directions from Misty's house, where Colbert had been staying, to Jarrod's parents' house, where Jarrod was attacked. Colbert objected to this testimony on hearsay grounds, but the trial court overruled his objection.
The jury ultimately found Colbert guilty as charged and found him to be an habitual offender. At the sentencing hearing, the trial court vacated Colbert's convictions for aggravated battery and battery, and reduced the burglary conviction from a Class A felony to a Class C felony, all on double jeopardy grounds. The court then concluded that the aggravating factors outweighed the mitigating factors and sentenced Colbert to forty-eight years for the attempted murder conviction, enhanced by thirty years for the habitual offender determination, and to a consecutive twelve years for the burglary conviction, for an aggregate sentence of ninety years.

Colbert v. State, 2010 WL 5456977, *1-2 (Ind.Ct.App. Dec. 30, 2010), reh'g denied, trans. denied.

         In the foregoing appeal, the Indiana Court of Appeals rejected Colbert's arguments that: (1) the trial court erred by admitting evidence regarding an internet search for directions from Colbert's house to the victim's house; and (2) his aggregate sentence of ninety years was inappropriate. The denial of post-conviction relief, in which Colbert claimed that he had been denied ineffective assistance from both his trial counsel and counsel in his direct appeal, was affirmed in Colbert v. State, 2016 WL 7398208 (Ind.Ct.App. 2016), transfer denied, 80 N.E.3d 181 (Ind. 2017).

         Colbert now seeks relief pursuant to 28 U.S.C. § 2254(a). The respondent opposes issuance of the writ Colbert seeks, arguing against it in part based on the merits of Colbert's claims and in part based on procedural default. The action is fully at issue and the record has been appropriately expanded.

         II. ...

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