Colbert v. Jones

• Docket Number: 19 C 2851
• Decision Date: 22 July 2024
• Parties: LAPOLEON COLBERT (#M23358), Petitioner, v. CHANCE JONES,[1] Respondent.
• Court: U.S. District Court — Northern District of Illinois

1

LAPOLEON COLBERT (#M23358), Petitioner, v. CHANCE JONES,^[1]Respondent.

No. 19 C 2851

United States District Court, N.D. Illinois

July 22, 2024

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, UNITED STATES DISTRICT CHIEF JUDGE

PetitionerLapoleon Colbert is serving a 32-year sentence for the September 2009 murder of Derrion Albert.Now in custody at the Illinois River Correctional Center, Colbert brings this pro se habeas corpus action pursuant to 28 U.S.C § 2254, challenging his murder conviction from the Circuit Court of Cook County.For the reasons explained here the court denies the petition on the merits and declines to issue a certificate of appealability.

BACKGROUND

The court draws its factual account from the state-court record [10]^[2]and state appellate court opinions.State-court factual findings, including facts set forth in state-court opinions, have a presumption of correctness, and Petitioner has the burden of rebutting the presumption by clear and convincing evidence.28 U.S.C § 2254(e)(1);Tharpe v. Sellers, 583 U.S. 33, 34(2018)(per curiam);Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1(7th Cir.2020)(citations omitted).Petitioner has not made such a showing.

On September 24, 2009, Albert was fatally beaten during a street brawl in Chicago's Roseland neighborhood.People v. Colbert, 2013 IL App (1st) 112935, ¶¶ 2-3, 1 N.E.3d 610, 613(hereinafter “Direct Appeal”).The brawl stemmed from an ongoing feud between two factions of students at nearby Fenger Academy High School.Id.¶ 2, 1 N.E.3d at 613.An autopsy revealed that Albert suffered abrasions and bruises to his face, lips, hands, chest, abdomen, and back during the brawl.Id.¶ 4, 1 N.E.3d at 613.The autopsy ruled the manner of death a homicide; Albert died from cerebral hemorrhaging caused by blunt-force trauma to his head.Id.

The brawl was captured on video by a community center's surveillance camera and a bystander's cellphone camera.Id.¶ 3, 1 N.E.3d at 613.The videos, which were shown to the jury at trial, depicted a group of young men striking the victim.Id.They also showed Petitioner kicking Albert in the head and stomping on Albert's torso while he lay motionless on the ground.Id.Petitioner told detectives that he kicked Albert “in the heat of the moment” because he was “[t]ired of everything that's going on” between the rival student groups.Id.¶ 15, 1 N.E.3d at 615.

The prosecution initially charged Petitioner with three counts of first-degree murder: (1) intentional murder, (2)“strong probability” murder, and (3) felony murder predicated on mob action.^[3]Id.¶ 5, 1 N.E.3d at 613.Over the defense's objection, the prosecution dropped the first two murder charges and proceeded to trial on only the felony murder count.Id.Dismissal of the first two charges had the effect of barring Petitioner from seeking a second-degree murder conviction based on a theory of “imperfect self-defense.”^[4]Id.¶ 6, 1 N.E.3d at 613.In defense to the felony murder charge, Petitioner argued that he did not participate in mob action and that although he kicked the victim in the head, he did not inflict the fatal blow.Id.¶ 7, 1 N.E.3d at 613.

The jury found Petitioner guilty of first-degree felony murder predicated on mob action in connection with the fatal beating.Id.Petitioner was sentenced to 32 years in prison.Id.¶ 1, 1 N.E.3d at 612-13.On direct appeal, Petitioner argued: (1) that his felony-murder conviction should be vacated because he did not commit mob action with an independent felonious purpose; (2) that the trial court erred in failing to instruct the jury that the underlying mob action felony required an independent felonious purpose to qualify for felony murder; and (3) that his 32-year sentence was excessive [10-1].

Petitioner's conviction and sentence were affirmed on direct appeal.Direct Appeal, 2013 IL App (1st) 112935, ¶ 26, 1 N.E.3d at 616.In reaching this conclusion, the state appellate court found in reviewing the record that Petitioner did commit the mob action with “an independent felonious purpose other than the murder itself”-namely, “physically intimidating and harassing fellow students from a rival neighborhood.”Id.¶ 15, 1 N.E.3d at 615.The Supreme Court of Illinois denied his petition for leave to appeal.People v. Colbert, No. 117032, 3 N.E.3d 797(Ill.Jan. 29, 2014)(Table).

Petitioner then brought a postconviction petition raising numerous challenges to his felony murder conviction.(See[10-13]at 165-87.)The petition also raised multiple ineffective assistance of trial and appellate counsel arguments-including, as relevant to this case, failing to challenge the prosecution's introduction of pictures of codefendants, offered to show that Petitioner was part of the mob.The petition was denied by the state trial court.People v. Colbert, No. 2018 IL App (1st) 152414-U, ¶ 6, 2018 WL 2200622, at *2(hereinafter “Postconviction Appeal”).The appellate court affirmed the denial of the postconviction petition, id.¶ 17, and the state supreme court denied his petition for leave to appeal, completing the postconviction proceedings, People v. Colbert, No. 124044, 111 N.E.3d 957(Ill.Nov. 28, 2018)(Table).Petitioner now brings the instant habeas corpus petition in this court.

DISCUSSION

A federal court may grant a petition for a writ of habeas corpus by “a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”28 U.S.C. § 2254(a).Where such grounds for relief have already been “adjudicated on the merits in State court proceedings,” the federal court may not grant the petition unless the state court's decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law,” or else was based on an unreasonable determination of the facts.Id.§ 2254(d).Where, however, the only asserted grounds for relief are errors of state law, the federal court lacks power to grant the petition altogether since habeas corpus relief is available only for violations of federal law.Brown v Eplett, 48 F.4th 543, 552(7th Cir.2022)(citingEstelle v. McGuire, 502 U.S. 62, 67-68(1991)).

The pending petition here: (1) challenges the sufficiency of the evidence supporting the felony murder conviction; (2) alleges a jury instruction error as to the felony murder conviction; and (3) claims the state trial court failed to comply with 725 ILCS 5/122-2.1(a)(2) when it denied his postconviction petition.The court assesses each asserted ground for relief in turn.

A.Claim One

Petitioner first alleges the prosecution violated his due process rights by failing to prove him guilty beyond a reasonable doubt of having an independent felonious purpose when he committed the killing.In support of this claim, he argues that the underlying conduct constituting the mob action was inherent in the murder itself and thus could not have been committed with an independent felonious purpose.As a result, he argues his actions cannot constitute felony murder.

The Fourteenth Amendment's Due Process Clause requires all elements of a crime to be proven beyond a reasonable doubt before a defendant is convicted.Brown, 48 F.4th at 552(citingIn re Winship, 397 U.S. 358, 364(1970));seeApprendi v. New Jersey, 530 U.S. 466, 47677(2000).^[5] Thus, while “[e]rrors of state law in and of themselves are not redressable in habeas corpus . . . wholly omit[ting] an essential element of the charged offense could give rise to a due process violation.”Id. at 552-53.In addition, under Illinois law, “the predicate felony underlying a charge of felony murder must have an independent felonious purpose.”People v. Davison, 236 Ill.2d 232, 240, 923 N.E.2d 781, 786(2010)(citingPeople v. Morgan, 197 Ill.2d 404, 429, 758 N.E.2d 813, 844(2001)).“‘[W]here the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder.'”Id.236 Ill.2d at 240, 923 N.E.2d at 786(quotingMorgan, 197 Ill.2d at 447, 758 N.E.2d at 844).The independent-felonious-purpose requirement is a judicially created rule rooted in the recognition that most murders also involve some other type of felony.A conviction of felony-murder without a showing of independent purpose might “improperly allow the State to both eliminate the offense of second degree murder and avoid the burden of proving an intentional or knowing murder ....”Id.(distinguishing between murders that “g[i]ve rise to the predicate felonies, rather than the predicate felonies resulting in the murders.”).

Determining whether the independent felonious purpose requirement is satisfied, however, is reserved to the trial judge under Illinois law.Evans v. Dorethy, 833 F.3d 758, 761(7th Cir.2016)(per curiam)(citingMorgan, 197 Ill.2d at 443-47, 758 N.E.2d at 836-38).In other words, “ ‘independent felonious intent' is not an element of Illinois felony murder” that the jury must find beyond a reasonable doubt, but rather a “legal assessment of the separateness of two events” to be performed by the judge.Id. at 761-62;see alsoDirect Appeal, 2013 IL App (1st)112935 ¶ 21, 1 N.E.3d at 616(“[T]he trial court, rather than the jury, must examine the factual context surrounding the murder and determine whether the evidence is sufficient to show that the predicate felony has an independent felonious purpose apart from the murder itself.”).Mob action is a proper predicate felony for felony murder under Illinois law.See People v. Bush, 2023 IL 128747 ¶¶ 51-52, 234 N.E.3d 754, 770.

Indeed this court has previously applied the principle in E...