Colbert v. Jones

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

LAPOLEON COLBERT (#M23358), )

)

Petitioner, )

)

v. )

) No. 19 C 2851

)

CHANCE JONES,1 ) Hon. Rebecca R. Pallmeyer

)

Respondent. )

)

MEMORANDUM OPINION AND ORDER

Petitioner Lapoleon 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.

1 Petitioner’s current custodian, Chance Jones, Day-to-Day Warden, Illinois River

Correctional Center, is substituted for the prior Respondent Justin Hammers pursuant to FED. R.

CIV. P. 25(d).

2 Bracketed numbers refer to docket entries in this proceeding and are followed by page

and/or paragraph numbers. Page numbers refer to the CM/ECF page number.

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

3 First-degree murder, under Illinois law, includes actions resulting in the death of a victim

where the perpetrator either (1) “intends to kill or to do great bodily harm” to the victim or another

individual, (2) knows that his or her acts “create a strong probability of death or great bodily harm,”

or (3) is in the course of committing a “forcible felony other than second degee murder.” 720

ILCS 5/9-1(a)(1)–(3). Mob action, defined as a felony under Illinois law, consists of the “use of

force or violence disturbing the public peace by 2 or more persons acting together and without

authority of law.” 720 ILCS 5/25-1(a)(1).

2

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

4 An individual who commits murder under the unreasonable belief that the circumstances

would justify or exonerate the killing (for example, as a matter of self-defense) is guilty of second-

degree murder under Illinois law. 720 ILCS 5/9-2(a)(2).

3

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) (citing Estelle 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

4

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

(citing In re Winship, 397 U.S. 358, 364 (1970)); see Apprendi v. New Jersey, 530 U.S. 466, 476–

77 (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) (citing People 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 (quoting Morgan, 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

5 To avoid procedural default on habeas review, a habeas petitioner “must first give the

State the opportunity to address and correct any alleged violation of his federal rights, which

means that he must fairly present his federal claim through one complete round of review in state

court, thereby alerting that court to the federal nature of the claim.” Brown, 48 F.4th at 552

(citation and internal quotation marks omitted). Here, Petitioner argued on direct appeal that the

State’s failure to prove an independent felonious purpose was both an error of state law and a

violation of his due process rights. (See [10-1] at 19 (citing Winship, 397 U.S. at 364, and

Apprendi, 530 U.S. at 476–77).) That was “enough to alert the state court to the basis for his

constitutional claim,” even if the state appellate decision did not explicitly address due process.

Brown, 48 F.4th at 555.

5

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) (citing Morgan, 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 also Direct 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 Evans to deny a petition for

habeas relief filed by another individual convicted of felony murder for his participation in the very

same mob action at issue in this case, on substantially the same grounds as presented here, and

the Seventh Circuit upheld this denial. Riley v. Lashbrook, No. 13 C 8866, 2017 WL 1105389,

at *5 (N.D. Ill. Mar. 23, 2017), aff’d sub nom. Riley v. Dorethy, 733 F. App’x 838, 840 (7th Cir.

2018) (nonprecedential opinion), cert. denied, 139 S. Ct. 918 (2019). As this court found in Riley,

while the petitioner’s constitutional claims were cognizable on habeas review, the embedded

question of “whether a particular predicate act has an independent felonious purpose” was a

question of Illinois state law that did not implicate his constitutional rights. Id. (citing Evans, 883

F.3d at 761).

While the decisions in Evans and Riley both addressed the Sixth Amendment right to a

jury trial, their logic applies with equal force to Petitioner’s due process claim under the Fourteenth

6

Amendment. The elements of an offense must be proven to the jury beyond a reasonable doubt,

but what constitutes these elements is a question of state law. Coleman v. Johnson, 566 U.S.

650, 655 (2012) (per curiam) (citing Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979)); Bates v.

McCaughtry, 934 F.2d 99, 103 (7th Cir. 1991). Thus, as the independent-felonious-purpose

requirement is not an element of the felony murder offense, there is no constitutional right to a

finding of such purpose by a jury beyond a reasonable doubt.6 Evans, 833 F.3d at 762. The

state court already found on direct appeal that this requirement was satisfied under Illinois law,

and this court lacks the power to review that determination now. Direct Appeal, 2013 IL App (1st)

112935 ¶¶ 9–11, 1 N.E.3d at 616. Petitioner cannot “transform a state-law issue . . . into a federal

one merely by asserting a violation of due process.” Cal v. Dorethy, 430 F. Supp. 3d 482, 490

(N.D. Ill. 2019) (citation and internal quotation marks omitted), aff'd sub nom. Cal v. Garnett, 991

F.3d 843 (7th Cir. 2021); see also Estelle, 502 U.S. at 71–72. Claim One is therefore denied.

B. Claim Two

Petitioner’s second argument is closely related to his first one. Specifically, Petitioner

argues that the trial court erred by failing to instruct the jury about the need to find he had an

independent felonious purpose when committing the killing. He claims this failure deprived him

of his Sixth Amendment right to have the jury find him guilty of every element of the offense. See

Apprendi, 530 U.S. at 476–77.

This argument, however, is squarely foreclosed by Evans and Riley. As explained above,

an independent felonious purpose is not an element of the crime that had to be found by the jury

6 Beyond the point that Petitioner had no right for the issue to be found by the jury beyond

a reasonable doubt, the state appellate court also noted that there was ample evidence of

Petitioner’s independent felonious purpose of his separate intent to engage in a mob action.

Direct Appeal, 2013 IL App (1st) 112935, ¶ 15, 1 N.E.3d at 615. It noted that Petitioner had the

intent of physically intimidating and harassing the rival students, as shown by his statement to

investigating detectives of a history of confrontations with the rival students, being “tired of

everything that is going on,” and believing he was attacking a rival when assaulting the victim.

Id.

7

beyond a reasonable doubt, meaning that there was no Sixth Amendment violation. See Evans,

833 F.3d at 762 (“Because ‘independent felonious intent’ is a legal assessment of the

separateness of two events, the Sixth Amendment did not require a jury to decide the issue.”).

The jury therefore did not need to make such a determination, and the state court did not need to

provide such an instruction. Claim Two is denied.

C. Claim Three

In his final claim, Petitioner contends that the state trial court violated 725 ILCS 5/122-

2.1(a)(2) when dismissing his postconviction petition. When a postconviction petition is filed in

an Illinois court, the trial judge performs an initial review of the petition and may summarily dismiss

the petition if it is frivolous or patently without merit. Postconviction Appeal, No. 2018 IL App

(1st) 152414-U, ¶ 8, 2018 WL 2200622, at *2 (citing People v. Hodges, 234 Ill. 2d 1, 9, 912 N.E.2d

1204, 1208–09 (2009)). When the petition is dismissed at this initial stage, Section 5/122-

2.1(a)(2) requires the trial court to issue a written order specifying the findings of facts and

conclusions of law made in reaching the decision. 725 ILCS 5/122-2.1(a)(2).

The trial court in Petitioner’s case issued a 12-page written order addressing Petitioner’s

postconviction claims when dismissing the petition upon initial review. (See [10-13] at 204–15.)

The ruling explicitly addressed some of Petitioner’s ineffective-assistance arguments, but failed

to overtly discuss his argument that counsel was ineffective in failing to object to the prosecution’s

display of pictures of Petitioner’s codefendants to demonstrate Petitioner was part of the mob

action. (Id. at 212–15.) The ruling also stated, however, as a general matter that “the issues

raised and presented by petitioner are frivolous and patently without merit.” (Id. at 215.) On

appeal, the state appellate court found no error since the “obvious intent of the [trial court’s] written

order was to dismiss the petition in its entirety.” Postconviction Appeal, No. 2018 IL App (1st)

152414-U, ¶ 12–14, 2018 WL 2200622, at *3 (citing People v. Lee, 344 Ill App. 3d 851, 854–55,

801 N.E.2d 969, 972–73 (1st Dist. 2003)).

8

Petitioner’s argument on this score is limited to the contention that the state court failed to

comply with the Illinois Post-Conviction Hearing Act’s requirement of addressing all claims in a

written order. 725 ILCS 5/122-2.1(a)(2). Importantly, Petitioner did not argue before the state

court, nor before this court, that the state court’s ruling on the ineffective assistance of counsel

claim was substantively incorrect. The claim that Petitioner does raise—that the state court failed

to comply with a state procedural requirement—cannot be remedied by this court. See Jones v.

Butler, 778 F.3d 575, 586 (7th Cir. 2015) (allegation of misapplication of Illinois’s Post-Conviction

Hearing Act raised non-cognizable state law issue in federal habeas corpus proceeding); Cal, 430

F. Supp. 3d at 489–90 (same); cf. Coleman v. Thompson, 501 U.S. 722, 739 (1991) (noting that

federal courts have “no power to tell state courts how they must write their opinions.”). Therefore,

Claim Three is denied, and Petitioner’s habeas corpus petition is denied on the merits.

III. Certificate of Appealability and Notice of Appeal Rights

The court declines to issue a certificate of appealability. In light of the controlling caselaw

cited above, Petitioner cannot make “a substantial showing of the denial of a constitutional right”;

i.e., reasonable jurists would not debate, much less disagree, with this court’s resolution of

Petitioner’s claims. 28 U.S.C. § 2253(c)(2); see Arredondo v. Huibregtse, 542 F.3d 1155, 1165

(7th Cir. 2008) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Petitioner is advised that this is a final decision ending his case in this court. If Petitioner

wishes to appeal, he must file a notice of appeal with this Court within 30 days of the entry of

judgment. See FED. R. APP. P. 4(a)(1). Petitioner need not bring a motion to reconsider this

court’s ruling to preserve his appellate rights. However, if Petitioner wishes the court to

reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b).

Any Rule 59(e) motion must be filed within 28 days of the entry of this judgment. See FED. R.

CIV. P. 59(e). The time to file a motion pursuant to Rule 59(e) cannot be extended. See FED.

R. CIV. P. 6(b)(2). A timely Rule 59(e) motion suspends the deadline for filing an appeal until the

9

Rule 59(e) motion is ruled upon. See FED. R. APP. P. 4(a)(4)(A)(iv).. Any Rule 60(b) motion must

be filed within a reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be

filed no more than one year after entry of the judgment or order. See FED. R. Civ. P. 60(c)(1).

The time to file a Rule 60(b) motion cannot be extended. See FED. R. Civ. P. 6(b)(2). A Rule

60(b) motion suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon

only if the motion is filed within 28 days of the entry of judgment. See FED. R. APP. P.

4(a)(4)(A)(vi).

CONCLUSION

Petitioner's habeas corpus petition [1] is denied onthe merits. Any other pending motions

are denied as moot. The court declines to issue a certificate of appealability. The Clerk is

instructed to: (1) terminate Respondent Justin Hammers, and replace him with Petitioner’s current

custodian, Chance Jones, Day-to-Day Warden, Illinois River Correctional Center; (2) alter the

case caption to Colbert v. Jones; and (3) enter a Rule 58 judgment in favor of Respondent and

against Petitioner. Civil case terminated.

ENTERED:

Dated: July 22, 2024 Repreca Hiferdnegpe —

□□□□□□□□□□□□□□□□□□□□□□□□□

United States District Chief Judge

10