Colbert v. McCullick, 2:17-cv-10012

Background

On August 10, 2012, Colbert Jr. and others entered Larry Evans’s home; a savage beating and a single gunshot killed Evans. Colbert was arrested nearby with the victim’s blood on his shoes.
At trial Colbert waived testifying; his defense was that he was merely present, not the shooter.
A detective testified about out-of-court admissions by Colbert’s co-defendant and father, Deshawn Colbert Sr., who did not testify at Colbert Jr.’s trial.
Colbert made post-arrest statements to police admitting presence and identifying others (the Nelsons) as armed and motivated by money owed; a videotaped custodial interview was played for the jury.
Defense counsel did not contemporaneously object to the detective’s testimony about Sr.’s statements on Confrontation Clause grounds, nor raise a Fifth Amendment objection to certain testimony about Colbert’s silence when apprehended.
The Michigan Court of Appeals affirmed; the Michigan Supreme Court denied leave. Colbert filed a § 2254 habeas petition raising (1) Confrontation Clause violation, (2) ineffective assistance for failure to object, and (3) improper use of his post-arrest silence. The district court denied relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation Clause — admission of co-defendant’s out-of-court statements	Colbert: admission of Sr.’s statements through Detective Wise violated his Sixth Amendment right because Sr. did not testify and Colbert could not cross-examine him.	State: claim was procedurally defaulted for lack of contemporaneous objection; alternatively, error was harmless given other evidence.	Court: procedurally defaulted (no cause shown); on the merits the admission violated the Confrontation Clause but was harmless beyond a reasonable doubt.
Ineffective assistance — failure to object to Sr.’s statements	Colbert: counsel’s failure to object was constitutionally deficient and prejudiced the defense.	State: even if deficient, there was no prejudice because evidence of guilt was substantial.	Court: assuming deficiency, no Strickland prejudice; claim denied.
Use of post-arrest silence	Colbert: prosecutors impermissibly used his silence at apprehension as substantive evidence and for impeachment, violating Due Process/Fifth Amendment.	State: claim procedurally defaulted (no proper trial objection); use of pre-Miranda or pre-arrest silence is not necessarily prohibited by Supreme Court precedent.	Court: procedurally defaulted; on the merits, Doyle protects post-Miranda silence but not pre-Miranda/pre-arrest silence here, so no relief.
Certificate of appealability / IFP on appeal	Colbert: (implicit) seeks permission to appeal in forma pauperis and COA.	State: issues are not debatable among reasonable jurists; appeal not taken in good faith.	Court: COA denied and leave to proceed IFP on appeal denied.

Key Cases Cited

Bruton v. United States, 391 U.S. 123 (1968) (admission of non-testifying co-defendant’s confession in joint trial violates Confrontation Clause)
Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires warnings about right to remain silent and counsel)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance test: deficiency and prejudice)
Doyle v. Ohio, 426 U.S. 610 (1976) (post-Miranda silence generally cannot be used against a defendant)
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Confrontation Clause errors are subject to harmless-error analysis)
Brecht v. Abrahamson, 507 U.S. 619 (1993) (on habeas, an error warrants relief only if it had a substantial and injurious effect on the verdict)
Richardson v. Marsh, 481 U.S. 200 (1987) (Confrontation Clause and jury instructions; limits of limiting instructions)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA review is highly deferential; state-court decisions must be given the benefit of the doubt)