UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

ANTONIO ANDRE COLBERT, 

 Petitioner, 

 Case No. 15-10167 

v. Honorable Arthur J. Tarnow 

CATHLEEN STODDARD, 

 Respondent. 

________________________________/ 

OPINION AND ORDER 

DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, 

DENYING A CERTIFICATE OF APPEALABILITY, 

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 Petitioner Antonio Andre Colbert, a state prisoner at the Carson City 

Correctional Facility in Carson City, Michigan, has filed a pro se petition for the 

writ of habeas corpus under 28 U.S.C. § 2254. The habeas petition challenges 

Petitioner’s convictions and sentence of ten to fifteen years for two counts of thirddegree criminal sexual conduct. See Mich. Comp. Laws § 750.520d(1)(a) (sexual 

penetration of a person at least thirteen years old, but less than sixteen years old). 

Petitioner’s six grounds for relief challenge (1) an amendment to the criminal 

information, (2) a witness’s testimony regarding Petitioner’s other acts of criminal 

sexual conduct, (3) the trial court’s denial of his motion for a mistrial, (4) the trial 

court’s jury instruction on the criminal-sexual-conduct charges, (5) the trial court’s 
 2

denial of his motion for new trial, and (6) the trial court’s scoring of offense 

variable 13 of the Michigan sentencing guidelines. The State urges the Court to 

deny the petition on grounds that Petitioner’s claims are meritless or not 

cognizable on habeas review and that the state courts’ decisions were not contrary 

to federal law, unreasonable applications of federal law, or unreasonable 

determinations of the facts. The Court agrees with the State’s position on 

Petitioner’s claims. Accordingly, the petition will be denied. 

I. Background

 Petitioner initially was charged in Macomb County, Michigan with two 

counts of first-degree criminal sexual conduct under Mich. Comp. Laws § 

750.520b(1)(c ) (sexual penetration of an individual during the commission of 

another felony), one count of kidnapping, Mich. Comp. Laws § 750.349, and 

driving while license suspended, second offense, Mich. Comp. Laws § 257.904(1). 

On the day set for trial in Macomb County Circuit Court, Petitioner pleaded guilty 

to the driving offense, and the prosecutor moved to amend the criminal information 

to include two counts of third-degree criminal sexual conduct (sexual penetration 

of an individual thirteen, fourteen, or fifteen years of age). The prosecutor asked to 

have the third-degree charges listed as separate charges, not alternative counts, to 

the first-degree charges. Defense counsel objected to the motion on the basis of 
 3

the late notice, but the trial court granted the prosecutor’s motion, and the case 

proceeded to trial on two counts of first-degree criminal sexual conduct, one count 

of kidnapping, and two counts of third-degree criminal sexual conduct. 

 The first prosecution witness was complainant, who testified that, on June 8, 

2011, she was fourteen years old and an eighth-grader at Lincoln Middle School in 

Warren, Michigan. Previously, she had gotten into trouble for frequently being 

late to school, and on June 8, 2011, she missed the bus to school because she could 

not find a book bag. As she was walking to school later that morning, Petitioner 

approached her in a white minivan and asked if he could talk to her. She looked at 

him, but kept walking because she did not know him. As she crossed the street, 

she saw Petitioner a second time. He asked her what her name and age were and 

where she went to school. She told him that she was fourteen years old and that 

she attended Lincoln School. Petitioner subsequently got out of his vehicle, 

grabbed her, and put her in the passenger seat of his vehicle. She did not try to get 

out of the vehicle because she was scared and she did not want to risk her life if he 

had a weapon. Petitioner then drove to a side street and stopped in front of a house 

where he picked her up and placed her in the back of his vehicle. He took off her 

clothes, put her hands over her head so that she could not move, grabbed her 

throat, and put his penis in her vagina. She cried, but Petitioner kissed her and put 
 4

his penis in her vagina a second time. Later, Petitioner got back in the front seat of 

the vehicle and asked a passerby what time it was. He then took her to school and 

told her not to tell anyone about the incident because his little sister attended the 

school and he would know if the complainant had reported the incident. The 

complainant, nevertheless, walked into the school and told a teacher that she had 

been raped. She also informed a police officer what had happened. 

 At trial, the complainant stated that she had told school officials the truth 

and that she did not fabricate the incident as an excuse for being late for school. 

On cross examination, however, she admitted that school officials had warned her 

the day before the incident with Petitioner that, if she were late again, she or her 

mother could be charged with truancy. 

 Forensic scientist Melinda Jackson testified that she detected the presence of 

semen on vaginal and anal swabs that were presented to her and that she sent the 

swabs to a laboratory for DNA analysis. Brian Schloff analyzed those swabs and 

buccal swabs taken from Petitioner and the complainant. He determined that the 

sperm fraction of the DNA found on the vaginal and anal swabs taken from the 

complainant matched Petitioner. The likelihood that the DNA belonged to anyone 

besides Petitioner was in the quintillions. 
 5

 Jason Scholz testified that, on June 8, 2011, he was a school resource officer 

for the Van Dyke Public School District. After the assistant principal at Lincoln 

Middle School informed him about a possible rape of a student, he spoke with the 

complainant who was crying and upset. The complainant claimed that she had 

been sexually assaulted on her way to school that day. The complainant described 

her assailant, the man’s vehicle, and where the assault occurred. When Officer 

Scholz checked the school surveillance videos, he saw the vehicle pull into the 

parking lot and the complainant get out of the vehicle. He handed a photograph of 

the vehicle to Officer Pylak and instructed Pylak to check for the vehicle later that 

day in case someone arrived at the school in the same vehicle to pick up someone 

at the elementary school. After students at the elementary school were released for 

the day, police officer Sciullo made a traffic stop involving the suspect vehicle. 

Officer Scholz responded to the scene and saw Petitioner in the driver’s seat of the 

vehicle. Petitioner was wearing clothing similar to what had been described to 

Officer Scholz. 

 Police Officer Ryan Pylak of the Warren Police Department testified that 

Officer Scholz had contacted him on June 8, 2011, and described a person of 

interest and a vehicle possibly involved in a sex crime. He (Pylak) was told that 
 6

the suspect might return to the school to pick up his little sister. He forwarded this 

information and a photograph of the vehicle to Officer Sciullo. 

 Police officer Timothy Sciullo testified that, after acquiring information 

from Officer Pylak, he eventually saw the vehicle in question. He stopped the 

vehicle, and with the help of another officer, he arrested the driver of the vehicle, 

who matched the description that Sciullo had been given. Petitioner was the 

driver, but he was unable to produce a driver’s license or vehicle registration card. 

 Gail Lippert testified that she was the sexual assault nurse examiner who 

examined the complainant. The complainant was soft-spoken, somewhat 

withdrawn, and slow to respond to some questions, but according to Ms. Lippert, 

this type of response can be expected from someone who had just experienced a 

traumatic event. The complainant described what had happened to her, and even 

though Ms. Lippert saw no injuries, the complainant indicated that there was some 

tenderness or soreness on her genitalia. 

 Police officer Mark Smith testified that he was an evidence technician for 

the Warren Police Department and that, on June 8, 2011, he executed a search 

warrant on a white minivan. He identified photographs that he took of the interior 

and exterior of the vehicle. One of the photographs depicted the contents of a 

backpack found in the vehicle. He did not find any fingerprints on the vehicle. 
 7

 The final prosecution witness was NB who testified about an incident that 

occurred in Wayne County, Michigan in 2010 when she was fifteen years old.1 She 

testified that when she first saw Petitioner on the day in question, he was with two 

other people. He approached her and asked her whether she want to “chill” with 

him. When she responded that she did want to be with him, but not with the other 

two people in the vehicle, Petitioner dropped off his friends and returned for her in 

his van. She got in his vehicle and went to his house where they watched a movie 

and had sex. Afterward, they went to a McDonald’s restaurant and then back to 

Petitioner’s house. Petitioner’s two friends were there, but she and Petitioner went 

upstairs and started watching a movie. Petitioner went downstairs when someone 

called him. He came back upstairs, and they had sex again, but he started to choke 

her when his light-skinned friend came into the room and tried to have oral sex 

with her as Petitioner was penetrating her from behind. Petitioner left the room, 

but then a dark-skinned boy came in the room and held her down on the bed. She 

tried fighting the two boys, but both of them managed to penetrate her. When they 

finally left the room, she was able to get dressed and leave the house. 

 

1

 The Court is referring to the witness by her initials because of the nature of her 

testimony and because she was a minor at the time of the incident that she 

described to the jury. 
 8

 NB admitted at trial that she willingly went with Petitioner and had sex with 

him and that she did not report the rapes to the police until three weeks after the 

incident with Petitioner and his friends. She also admitted that she did not appear 

in court when given an opportunity to testify against Petitioner and that she 

currently was facing a charge of armed robbery. However, she denied fabricating 

the incident, and she claimed that nobody had offered her a deal or promised her 

anything in her armed robbery case in return for her testimony against Petitioner. 

 Petitioner did not testify, and the only defense witness was retired police 

officer Robert Krist, who testified that he was the former officer in charge of the 

case and that he interviewed the complainant on the day after the assault. Defense 

counsel was permitted to treat Mr. Krist as an adverse witness, and he attempted to 

impeach Krist with inconsistencies in the complainant’s statements to Krist and 

Officer Scholz. But Krist’s testimony about his and Officer Scholz’ interviews 

with the complainant tended to confirm what the complainant had said at trial. 

 The prosecutor maintained during closing arguments that Petitioner was 

guilty, as charged, of all five charges against him. Petitioner’s defense was that the 

complainant and NB were liars and troubled girls who sought out older men. 

Defense counsel argued to the jury that the complainant made up her version of the 

facts to avoid being taken into custody for her tardiness at school on June 8, 2011, 
 9

and that NB was blaming Petitioner for what happened to her in 2010. Defense 

counsel maintained that the prosecution had failed to prove its case beyond a 

reasonable doubt because there was a lack of corroborating evidence. 

 On February 9, 2012, the jury acquitted Petitioner of first-degree criminal 

sexual conduct and kidnapping, but found him guilty of two counts of third-degree 

criminal sexual conduct. On March 15, 2012, the trial court sentenced Petitioner to 

prison for two concurrent terms of 120 to 180 months (ten to fifteen years). 

Petitioner moved for a new trial, but the trial court denied his motion. 

 Petitioner raised his habeas claims in an appeal as of right. The Michigan 

Court of Appeals affirmed his convictions and sentences, but remanded his case to 

the trial court to correct an error in the pre-sentence investigation report. See 

People v. Colbert, No. 310813 (Mich. Ct. App. Oct. 15, 2013). On April 28, 2014, 

the Michigan Supreme Court denied leave to appeal because it was not persuaded 

to review the questions presented to it. See People v. Colbert, 495 Mich. 991; 845 

N.W.2d 108 (2014).2

 

 On January 14, 2015, Petitioner filed his habeas petition. The State filed an 

answer to the petition, and Petitioner filed a reply. 

 

2

 Justice David V. Viviano did not participate in the case due to a familial 

relationship with the presiding circuit court judge in the case. 
 10

II. Standard of Review

 28 U.S.C. § 2254(d) imposes the following standard of review for habeas 

cases: 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be granted 

with respect to any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the claim – 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United 

States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence 

presented in the State court proceedings. 

28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of 

state court factual determinations. 28 U.S.C. § 2254(e)(1). 

 A decision of a state court is “contrary to” clearly established federal law if 

the state court arrives at a conclusion opposite to that reached by the Supreme 

Court on a question of law or if the state court decides a case differently than the 

Supreme Court has on a set of materially indistinguishable facts. Williams v. 

Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application occurs” when 

“a state-court decision unreasonably applies the law of [the Supreme Court] to the 

facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the 
 11

writ simply because that court concludes in its independent judgment that the 

relevant state-court decision applied clearly established federal law erroneously or 

incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 

III. Analysis

A. Amendment of the Criminal Information 

 Petitioner alleges first that the trial court abused its discretion by permitting 

the prosecutor to amend the criminal information at trial to add two counts of 

criminal sexual conduct in the third degree. Petitioner contends that there was no 

justification or excuse for the late amendment and that it unfairly surprised and 

prejudiced him because he had planned to defend against the prosecutor’s theory 

that the criminal sexual conduct occurred during a kidnapping. The Michigan 

Court of Appeals determined on review of this claim that the amendment did not 

result in unfair surprise, inadequate notice, or an insufficient opportunity to defend 

and that the trial court did not abuse its discretion in granting the motion to amend. 

1. Legal Framework

 In Michigan, the document known as a criminal information “advise[s] an 

accused of the offense with which he is charged.” People v. Gould, 237 Mich. 

156, 164; 211 N.W.2d. 346, 348 (1926). Before, during, or after trial, a trial court 

“may permit the prosecutor to amend the information . . . unless the proposed 
 12

amendment would unfairly surprise or prejudice the defendant.” Mich. Ct. R. 

6.112(H); see also Mich. Comp. Laws Ann. § 767.76 (“The court may at any time 

before, during or after the trial amend the indictment in respect to any defect, 

imperfection or omission in form or substance or of any variance with the 

evidence.”). Furthermore, when, as initially argued here, the gravamen of the 

petitioner’s claim is that state law was violated by amendment of the information, 

the claim is not cognizable in a habeas corpus proceeding. King v. Girubino, 538 

F. Supp.2d 1269, 1271, 1278-79 (C.D. Cal. 2008). 

 But the Sixth Amendment to the United States Constitution provides that, 

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed 

of the nature and cause of the accusation.” U.S. CONST., amend. VI. Petitioner 

also had a constitutional right to “a meaningful opportunity to present a complete 

defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). 

The due process clause of the Fourteenth Amendment mandates that 

whatever charging method the state employs must give the criminal 

defendant fair notice of the charges against him to permit adequate 

preparation of his defense. In Re Ruffalo, 390 U.S. 544, 88 S.Ct. 

1222, 20 L.Ed.2d 117 (1968); Blake v. Morford, 563 F.2d 248 (6th 

Cir. 1977); Watson v. Jago, 558 F.2d 330, 338 (6th Cir. 1977). This 

requires that the offense be described with some precision and 

certainty so as to apprise the accused of the crime with which he 

stands charged. Such definiteness and certainty are required as will 

enable a presumptively innocent man to prepare for trial. Combs v. 

Tennessee, 530 F.2d [695, 698 (6th Cir. 1976)]. 
 13

Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984). 

2. Application

 The amendment in this case added two counts of third-degree criminal 

sexual conduct to the information. This crime requires the prosecutor to prove that 

the defendant penetrated someone thirteen, fourteen, or fifteen years of age for a 

sexual purpose. Mich. Comp. Laws § 750.520d(1)(a); People v. Hunt, 442 Mich. 

359, 364; 501 N.W.2d 151, 154 (1993). 

 Defense counsel was present at Petitioner’s preliminary examination where 

the complainant testified that, on June 8, 2011, Petitioner put his penis in her 

vagina two times and she was fourteen years old at the time. (7/26/11 Prelim. 

Examination Tr. at 3-19.) The police reports also included the complainant’s 

allegations and age. (1/31/12 Trial Tr. at 6.) Furthermore, on more than one 

occasion, defense counsel suggested to the assigned prosecutor that she offer 

Petitioner an opportunity to plead guilty to third-degree criminal sexual conduct. 

(Id. at 9-10). And the prosecutor sent the DNA analysis to defense counsel on 

December 28, 2011, or more than a month before trial. (4/26/12 Mot. Hr’g Tr. at 

29.) 

 Although the prosecutor did not inform defense counsel of her intent to 

charge Petitioner with third-degree criminal sexual conduct until trial, defense 
 14

counsel knew all the relevant facts needed to prove the elements of third-degree 

criminal sexual conduct at least a month before trial. And because he previously 

had suggested to the prosecutor that Petitioner should be permitted to plead guilty 

to third-degree criminal sexual conduct, he had reason to believe that the 

prosecutor would charge Petitioner with that offense. He could not have been 

unfairly surprised or prejudiced when the prosecutor actually charged Petitioner 

with the offense, because he had suggested that Petitioner was guilty of the offense 

and because state law allows amendments to the information during trial. 

 To conclude, the amendment to the criminal information did not deprive 

Petitioner of his right to notice of the charges or an opportunity to defend himself. 

Therefore, he has no right to relief on his claim. 

B. Other Acts Evidence 

 Petitioner alleges next that the trial court abused its discretion by allowing 

NB to testify about Petitioner’s sexual penetration of her in Wayne County in 2010 

when she was fifteen years old. Petitioner claims that the evidence was admitted in 

violation of Michigan Rule of Evidence 404(b) to show that he had a propensity to 

commit crimes and that he acted in conformity with this propensity during the 

incident with the complainant on June 8, 2011. The Michigan Court of Appeals 
 15

held on review of this issue that the trial court did not abuse its discretion by 

admitting the evidence. 

1. Legal Framework

 “[E]rrors in the application of state law, especially rulings regarding the 

admission or exclusion of evidence, [usually may not] be questioned in a federal 

habeas corpus proceeding.” Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). 

“Ultimately, states have wide latitude with regard to evidentiary matters under the 

Due Process Clause,” Wilson v. Sheldon, __ F.3d __, __, No. 16-3981, 2017 WL 

4820300, at *3 (6th Cir. Oct. 26, 2017) (citing Seymour v. Walker, 224 F.3d 542, 

552 (6th Cir. 2000)), and “[t]o the extent that any testimony and comments 

violated Michigan’s rules of evidence, such errors are not cognizable on federal 

habeas review.” Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In 

conducting habeas review, a federal court is limited to deciding whether a 

conviction violated the Constitution, laws, or treaties of the United States.” Estelle 

v. McGuire, 502 U.S. 62, 68 (1991). 

 A state trial court’s evidentiary error can rise to the level of a federal 

constitutional claim warranting habeas corpus relief if the error was “so 

fundamentally unfair as to deprive the petitioner of due process under the 

Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) 
 16

(citing McGuire, 502 U.S. at 69-70). In Michigan, however, when a defendant is 

accused of committing criminal sexual conduct against someone less than eighteen 

years of age, the prosecutor may introduce evidence that the defendant committed 

criminal sexual conduct against another minor, and the evidence may be admitted 

for any relevant purpose. Mich. Comp. Laws § 768.27a; People v. Watkins, 491 

Mich. 450, 455, 471; 818 N.W.2d 296, 298-99, 307 (2012). The only restriction 

on the use of such evidence is that the danger of unfair prejudice must not 

outweigh the probative value of the evidence. Watkins, 491 Mich. at 456; 818 

N.W.2d at 299 (citing the balancing test found in Mich. R. Evid. 403). 

2. Application

 The Michigan Court of Appeals correctly pointed out on review of 

Petitioner’s claim that there were considerations weighing both in favor of and 

against admission of the other acts evidence. 

The other act was similar to the charged crime in that defendant 

approached both girls in his white van, the girls were 14 and 15 years 

old, defendant had sexual intercourse with each twice, and defendant 

choked or grabbed both of their necks. However, there were also 

substantial differences between the acts. The sexual intercourse 

between defendant and NB was initially consensual, defendant and 

NB went back to defendant’s house, and there were other individuals 

involved in the alleged assault. Contrarily, according to the victim in 

this case, the sexual intercourse was not consensual, the act took place 

in defendant’s van, and there were no other individuals involved. 
 17

Colbert, 2013 WL 5629639, at *2. Also, there were no intervening acts in the 

complainant’s case. Id. 

 The Michigan Court of Appeals went on to conclude that it was a close 

question as to whether the probative value of the evidence was outweighed by the 

danger of unfair prejudice. The Court of Appeals noted that “[t]here was a need 

for evidence beyond the victim’s testimony because the victim’s credibility was 

questioned,” but “NB’s testimony was questionable because she did not appear to 

testify in the case against [Petitioner] and she was facing charges for armed 

robbery.” Id. Additionally, “[a]ccording to [Petitioner], the evidence affected his 

decision to testify and forced him to defend the Wayne County case,” even though 

he “was not convicted of the other acts.” Id. Because it was a close question, 

however, the Court of Appeals ruled that the trial court’s decision did not 

constitute an abuse of discretion. 

 On habeas review, “a state prisoner must show that the state court’s ruling 

on the claim being presented in federal court was so lacking in justification that 

there was an error well understood and comprehended in existing law beyond any 

possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 

(2011). “[E]ven a strong case for relief does not mean the state court’s contrary 
 18

conclusion was unreasonable.” Id. at 102. This is particularly true here for a few 

reasons. 

 First, the prosecutor presented the “other acts” evidence, in part, to show 

Petitioner’s modus operandi. (2/8/12 Trial Tr. at 34, 50.) This is a proper use of 

“other acts” evidence. See United States v. Perry, 438 F.3d 632, 648 (6th Cir. 

2006) (stating that, because two crimes of sufficient similarity can create a pattern 

or modus operandi, the district court admitted evidence of a similar act for a proper 

purpose). 

 Second, defense counsel was able to thoroughly cross-examine NB and 

attack her credibility in his closing argument to the jury. Third, the trial court 

charged the jurors not to let sympathy or prejudice influence their decision. 

(2/8/12 Trial Tr. at 116.) 

 Finally, the trial court gave a specific jury instruction on evidence that 

Petitioner had committed a crime for which he was not on trial. The trial court 

instructed the jurors to think about whether this evidence tended to show 

Petitioner’s criminal sexual behavior towards minors. The court charged the jurors 

not to consider the evidence for any other purpose, such as whether he was likely 

to commit crimes, and not to convict Petitioner because they thought he was guilty 

of other bad conduct. (Id. at 123.) A trial court does not abuse its discretion by 
 19

admitting “other acts” evidence when the court gives the jury an appropriate 

limiting instruction. Perry, 438 F.3d at 649. 

 The Court concludes that the trial court’s decision to allow NB to testify 

about her encounter with Petitioner and his friends was not so fundamentally unfair 

as to deprive Petitioner of a fair trial. And the state appellate court’s decision 

upholding the trial court’s ruling was not so lacking in justification that there was 

an error beyond any possibility for fairminded disagreement. 

 Even if the state trial court erred in admitting NB’s testimony, “[t]here is no 

clearly established Supreme Court precedent which holds that a state violates due 

process by permitting propensity evidence in the form of other bad acts evidence.” 

Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Petitioner cites Huddleston v. 

United States, 485 U.S. 681 (1988), in his reply brief and argues that district courts 

must apply four evidentiary safeguards when addressing the admissibility of “other 

acts” evidence. But the Supreme Court did not explicitly address the issue of 

“other acts” evidence in constitutional terms. Bugh, 329 F.3d at 513. Therefore, 

the state appellate court’s rejection of Petitioner’s claim was not contrary to, or an 

unreasonable application of, any Supreme Court decision under § 2254 (d)(1), and 

Petitioner has no right to relief on the basis of his evidentiary claim. 
 20

C. Denial of the Motion for Mistrial 

 In his third habeas claim, Petitioner asserts that the trial court abused its 

discretion when it denied his motion for a mistrial, which was based on the 

prosecutor showing excluded evidence to the jury. The disputed evidence 

consisted of a photograph of a magazine found in a backpack taken from 

Petitioner’s minivan during a search of the vehicle. The cover of the magazine 

bore the following caption: “Steamy Sex Games, 118 exotic cards equals lots of 

hot scenarios and all sorts of naughty things to do with your lover.” In the jury’s 

absence, the prosecutor made an oral motion in limine to admit a picture of the 

magazine, but the trial court ruled that the prosecutor could not admit the evidence 

because it did not prove an element of the crimes and because the evidence was 

more prejudicial than probative. The prosecutor then agreed to redact or to 

exclude the questionable photograph from the set of photographs she planned to 

show to the jury. (2/3/12 Trial Tr. at 135-40). 

 Evidence technician Mark Smith subsequently testified about photographs 

that he took of Petitioner’s minivan during his investigation of the case. As the 

prosecutor displayed the photographs to the jury in a slide presentation, Mr. Smith 

explained what the photographs depicted. He noted that one of the photographs 

showed the contents of the book bag found in Petitioner’s minivan. (Id. at 151-53.) 
 21

 After Mr. Smith testified, defense counsel pointed out in the jury’s absence 

that the prosecutor had shown a photograph of the disputed magazine to the jury 

while Smith testified. The prosecutor admitted that she had inadvertently showed 

the photograph to the jury, but defense counsel moved for a mistrial on grounds 

that the prosecutor had violated the trial court’s evidentiary ruling and that the 

photograph was prejudicial. The trial court denied defense counsel’s motion, but 

offered to read a cautionary instruction to the jury. (Id. at 168-72; 2/7/12 Trial Tr. 

at 21). Defense counsel declined the offer of a cautionary jury instruction because 

he thought that it would draw more attention to the evidence and make matters 

worse. (2/8/12 Trial Tr. at 114.) 

1. Clearly Established Federal Law

 A trial judge’s decision to declare a mistrial is entitled to great deference. 

Arizona v. Washington, 434 U.S. 497, 514 (1978). But 

a constitutionally protected interest is inevitably affected by any 

mistrial decision. The trial judge, therefore, “must always temper the 

decision whether or not to abort the trial by considering the 

importance to the defendant of being able, once and for all, to 

conclude his confrontation with society through the verdict of a 

tribunal he might believe to be favorably disposed to his fate.” In 

order to ensure that this interest is adequately protected, reviewing 

courts have an obligation to satisfy themselves that . . . the trial judge 

exercised “sound discretion” in declaring a mistrial. 

Thus, if a trial judge acts irrationally or irresponsibly, his action 

cannot be condoned. 
 22

Id. (internal citations omitted). 

2. Application

 On direct appeal, Petitioner raised his claim under People v. Spencer, 130 

Mich. App. 527; 343 N.W.2d 607 (1983), which states that, 

where error and mistake are egregious, the trial court maintains a duty 

upon proper motion to declare a mistrial in order to control the trial 

and to protect the rights of the defendant. The test to be used in 

determining whether a mistrial should be declared is not whether there 

were some irregularities but whether defendant had a fair and 

impartial trial. 

 . . . . 

Denial of a mistrial motion is within the sound discretion of the trial 

judge and will not be reversed by this Court unless such denial 

constituted an abuse of discretion. People v. Robertson, 87 Mich. 

App. 109, 273 N.W.2d 501 (1978); People v. Denmark, 74 Mich. 

App. 402, 254 N.W.2d 61 (1977). In order to find reversible error, the 

trial court’s denial of defendant’s mistrial motion must be found to 

have deprived defendant of a fair trial and to have resulted in a 

miscarriage of justice. People v. Ritholz, 359 Mich. 539, 559, 103 

N.W.2d 481 (1960); M.C.L. § 769.26; M.S.A. § 28.1096. 

Id., 130 Mich. App. at 540-41; 343 N.W.2d at 613–14. 

 The alleged violation of this test and standard is not a basis for habeas relief 

because a federal habeas court is limited to deciding whether a conviction violated 

the Constitution, laws, or treaties of the United States.” McGuire, 502 U.S. at 68. 

And even though Petitioner argues in his reply brief, that he had a constitutional 

right to a fair trial, the Michigan Court determined that the prosecutor’s error did 
 23

not prejudice Petitioner or deny him a fair trial. The Court of Appeals opined that 

the trial court’s decision to deny Petitioner’s motion for a mistrial was within the 

range of principled outcomes. 

 This conclusion was objectively reasonable because, even though defense 

counsel, maintained that the jurors saw the disputed photograph and the words 

“Steamy Sex Games,” the prosecutor stated that the picture was visible for only 

“half a second.” (2/3/12 Trial Tr. at 169-71.) Neither the officer in charge of the 

case, nor the trial court, saw the picture. (Id. at 170, 172.) And, as the Michigan 

Court of Appeals pointed out, there was overwhelming evidence of third-degree 

criminal sexual conduct, given the complainant’s testimony and the DNA results. 

 The Court concludes that the photograph in question did not deprive 

Petitioner of his constitutional right to a fair trial, and the trial court did not abuse 

its discretion or act irrationally or irresponsibly when denying Petitioner’s motion 

for a mistrial. Therefore, habeas relief is not warranted on Petitioner’s claim. 

D. The Trial Court’s Jury Instructions 

 Petitioner contends that the trial court’s instruction to the jury on the 

criminal-sexual-conduct charges was so erroneous, misleading, and confusing as to 

deny him a fair trial and due process of law. The Michigan Court of Appeals 
 24

disagreed with Petitioner and concluded that the trial court’s instruction was not 

erroneous. 

1. Clearly Established Federal Law

 A jury instruction that is incorrect under state law is not a basis for habeas 

relief. McGuire, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 

438 n.6 (1983)). The only question on habeas review of jury instructions is 

whether the ailing instruction infected the entire trial with such unfairness as to 

deprive the petitioner of due process. Id. at 72 (quoting Cupp v. Naughten, 414 

U.S. 141, 147 (1973)). In other words, “[t]o warrant habeas relief, ‘jury 

instructions must not only have been erroneous, but also, taken as a whole, so 

infirm that they rendered the entire trial fundamentally unfair.’ ” Buell v. Mitchell, 

274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell, 209 F.3d 854, 882 

(6th Cir. 2000)). 

2. Application

 Petitioner objects to the following instruction, which the trial court read to 

the jury at the close of the parties’ proofs: 

 The Defendant is charged with five separate counts, that is, with 

the crimes of criminal sexual conduct first degree, criminal sexual 

conduct first degree, kidnapping and criminal sexual conduct third 

degree and criminal sexual conduct third degree. These are separate 

crimes and the prosecutor is charging that the defendant committed all 

of them. You must consider each crime separately in light of all of 

the evidence in this case. 
 25

You may find the defendant guilty of all or any one or any 

combination of these crimes or not guilty. 

(2/8/12 Trial Tr. at 128-29.) 

 Petitioner contends that it was reversible error to instruct the jury that it 

could consider the two counts of criminal sexual conduct in the third degree as 

separate and additional charges. He argued in state court that, under People v. 

Gould, 241 Mich. App. 333; 615 N.W.2d 794 (2000), the trial court should have 

instructed the jurors that the two counts of third-degree criminal sexual conduct 

were alternative counts to the two counts of first-degree criminal sexual conduct. 

 The Michigan Court of Appeals stated that Petitioner’s reliance on Gould

was misplaced because Gould did not involve a prosecution under two separate 

statutes, as in Petitioner’s case. And, under People v. Garland, 286 Mich. App. 1; 

777 N.W.2d 732 (2009), a defendant may be charged, tried, and convicted of two 

counts of first-degree criminal sexual conduct and two separate counts of thirddegree criminal sexual conduct even though the charges pertain to the same two 

acts of sexual penetration. The reasons for this conclusion are that each offense is 

codified in the Michigan Compiled Laws as a separate statute, and each offense 

contains an element that the other offense does not. Id., 286 Mich. App. at 5-6; 

777 N.W.2d at 735. 
 26

 “[I]t is not the province of a federal habeas court to reexamine state-court 

determinations on state-law questions,” McGuire, 502 U.S. at 67–68, and the state 

court’s interpretation of state law binds this Court sitting in habeas corpus, 

Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The Court, therefore, concludes that 

the state trial court’s jury instruction was not erroneous or so infirm as to render 

Petitioner’s trial unfair. Petitioner has no right to habeas relief on the basis of his 

challenge to the jury instructions. 

E. Denial of the Motion for New Trial 

 Petitioner alleges that the trial court committed reversible error when the 

court denied his motion for new trial. The motion was based on the (1) the 

prosecutor’s amendment of the criminal information to include two counts of 

criminal sexual conduct in the third degree, (2) the use of “other acts” to show 

criminal propensity, and (3) the trial court’s instructions to the jury that it could 

consider whether Petitioner was guilty of criminal sexual conduct in the first 

degree and in the third degree. 

 The trial court found no merit in Petitioner’s argument about the jury 

instructions because, in the court’s opinion, first-degree criminal sexual conduct 

and third-degree criminal sexual conduct were different offenses for which 

Petitioner could be separately prosecuted, convicted, and sentenced. The trial 
 27

court rejected Petitioner’s remaining arguments about the late amendment of the 

information and the use of “other acts” evidence because the court had previously 

considered and decided the issues against Petitioner. See People v. Colbert, No. 

2011-2574-FC, Op. and Order (Macomb Cty. Cir. Ct. May 14, 2012). 

 On appeal, Petitioner argued that the trial court’s decision to deny his motion 

for new trial was clearly erroneous under Michigan Court Rule 6.431(B), under 

People v. English, 302 Mich. 463; 4 N.W.2d 727 (1942), and under People v. 

Grainger, 117 Mich. App. 740; 324 N.W.2d 762 (1982). The Michigan Court of 

Appeals determined that the trial court did not abuse its discretion in denying 

Petitioner’s motion for new trial because none of the underlying grounds supported 

reversal on appeal. 

 A claim that the state trial court abused its discretion and misapplied state 

law when denying a petitioner’s motion for new trial is not subject to habeas 

review if it was clearly premised on issues of state law. Pudelski v. Wilson, 576 

F.3d 595, 610–11 (6th Cir.2009). And “[t]o establish a constitutional due process 

claim, [a habeas petitioner] must demonstrate that the trial court’s denial of his 

motion for new trial was ‘so egregious’ that it violated his right to a fundamentally 

fair trial.” Id. at 611 (citing Fleming v. Metrish, 556 F.3d 520, 535 (6th Cir. 2009), 

and Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004)). 
 28

 Petitioner’s underlying claims about the amendment to the criminal 

information, the “other acts” evidence, and the jury instructions lack merit and did 

not deprive Petitioner of his right to a fair trial for the reasons given above. 

Therefore, the trial court did not abuse its discretion or violate Petitioner’s due 

process rights by denying his motion for new trial, and habeas relief is not 

warranted on Petitioner’s claim. 

F. The Sentencing Guidelines 

 Petitioner’s sixth and final habeas claim alleges that the trial court abused its 

discretion when it scored twenty-five points for offense variable thirteen of the 

Michigan sentencing guidelines. The Michigan Court of Appeals disagreed with 

Petitioner and concluded that the trial court properly scored offense variable 

thirteen at twenty-five points. 

 This Court finds no merit in Petitioner’s claim because a challenge to the 

state court’s application and interpretation of state sentencing guidelines is “a 

matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 

2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis 

v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s claim is not 

cognizable on habeas review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 

2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson 
 29

v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). A sentencing claim based 

on an alleged violation of Michigan law simply fails to state a claim on which 

habeas relief may be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 

2000). 

 Petitioner accurately points out in his reply brief that a trial court may not 

sentence a defendant on untrue assumptions or on an extensively and materially 

false foundation. Townsend v. Burke, 334 U.S. 736, 741 (1948). In this case, 

however, the Court finds for the following reasons that the trial court did not rely 

on untrue assumptions or on extensively and materially false information. 

 State courts apply offense variable thirteen when determining whether a 

defendant engaged in a “continuing pattern of criminal behavior.” Mich. Comp. 

Laws § 777.43(a). Twenty-five points is a proper score if “[t]he offense was part 

of a pattern of felonious criminal activity involving 3 or more crimes against a 

person.” Mich. Comp. Laws § 777.43(1)(c). “[A]ll crimes within a 5-year period, 

including the sentencing offense, shall be counted regardless of whether the 

offense resulted in a conviction.” Mich. Comp. Laws § 777.43(2)(a). 

 Petitioner was convicted of two counts of criminal sexual conduct in the 

2011 criminal case under consideration here. And NB testified at Petitioner’s trial 

that Petitioner sexually penetrated her two times in 2010 when she was fifteen 
 30

years old. The 2010 incident constituted two additional crimes against a person 

even though the incident apparently did not result in a conviction against 

Petitioner. Thus, Petitioner’s offense was part of a pattern of felonious criminal 

activity involving three or more crimes against a person, and the trial court did not 

rely on extensively and materially false information when scoring twenty-five 

points for offense variable thirteen. 

 Finally, although Petitioner implies that his sentence is invalid because it 

was based on facts that were not submitted to a jury and proved beyond a 

reasonable doubt, he made this argument for the first time in his reply brief. Thus, 

his argument regarding judicial fact-finding is not properly before the Court, 

Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir. 2009), and the Court need not address 

it, Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005). 

IV. Conclusion and Certificate of Appealability

 Petitioner’s state-law claims are not cognizable on habeas review, and the 

state courts’ rejection of his constitutional claims did not result in decisions that 

were contrary to clearly established federal law, unreasonable applications of 

federal law, or unreasonable determinations of the facts. The Court, therefore, 

denies the habeas petition with prejudice. 
 31

 Petitioner may not appeal this opinion without first obtaining a certificate of 

appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1), and a 

certificate of appealability may issue “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A 

petitioner satisfies this standard by demonstrating that jurists of reason could 

disagree with the district court’s resolution of his constitutional claims or that 

jurists could conclude the issues presented are adequate to deserve encouragement 

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack 

v. McDaniel, 529 U.S. 473, 484 (2000)). 

 Reasonable jurists could not disagree with the Court’s resolution of 

Petitioner’s constitutional claims. Nor could they conclude that Petitioner’s claims 

deserve encouragement to proceed further. Accordingly, the Court declines to 

grant a certificate of appealability on any of Petitioner’s claims. The Court 

nevertheless grants Petitioner permission to appeal this decision in forma pauperis, 

because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3). 

 S/Arthur J. Tarnow 

 Arthur J. Tarnow 

 Senior United States District Judge 

Dated: December 18, 2017 

I hereby certify that a copy of the foregoing document was served upon counsel of record on 

December 18, 2017, by electronic and/or ordinary mail. 

 S/Catherine A. Pickles 

 Judicial Assistant