United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DISCUSSING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING CERTIFICATE OF APPEALABILITY
JANE MAGNUS-STINSON, CHIEF JUDGE.
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).
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.
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
Colbert v. State, 2010 WL 5456977, *1-2 (Ind.Ct.App.
Dec. 30, 2010), reh'g denied, trans. denied.
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).
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