Michael Coluccio v. State of Montana

FILED
NOT FOR PUBLICATION MAR 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL JAMES COLUCCIO, No. 11-35138
Petitioner - Appellant, D.C. No. 9:10-cv-00064-JCL
v.
MEMORANDUM *
STATE OF MONTANA; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted February 7, 2012
Seattle, Washington
Before: SCHROEDER and GOULD, Circuit Judges, and BEISTLINE, Chief
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ralph R. Beistline, Chief District Judge for the United
States District Court for Alaska, sitting by designation.
Petitioner, Michael Coluccio, is a state prisoner who was convicted of
vehicular homicide in a jury trial. He filed a § 2254 habeas corpus petition in the
district court claiming faulty jury instructions and insufficiency of the evidence.
The district court concluded that the petition was procedurally barred because
Coluccio did not exhaust the claims in so far as he did not fairly present them as
federal to the state court and alternatively held that the sufficiency of the evidence
claim was meritless. Coluccio also argues that any procedural default should be
excused because failure to consider his claims will result in a fundamental
miscarriage of justice. Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). We
review de novo the district court’s decision to grant or deny a habeas corpus
petition for failure to exhaust. Fields v. Washington, 401 F.3d 1018, 1020 (9th Cir.
2005).
Coluccio turned in front of a motorcyclist who was killed in the ensuing
collision. He admitted that he had been drinking but claims he had only had three
to four light beers. His blood alcohol level, taken just under two hours after the
accident and more than two hours after his last drink, was .07. Coluccio was
convicted by a jury of vehicular homicide while under the influence. Coluccio
appealed his conviction to the Montana Supreme Court, raising the issues of
improper jury instructions and sufficiency of the evidence.
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Coluccio argues that his claims were not procedurally defaulted because the
state claims of improper jury instruction and sufficiency of the evidence are
identical to federal claims and that we should hold that where claims are identical
the federal claims have been fairly presented to a state court to satisfy exhaustion.
We decline to reach that question because Coluccio’s first state claim is not
identical to a federal claim, and his second claim does not present a colorable
question of federal law and so we deny it on the merits.
Coluccio’s first claim related to his jury instructions. The state claim
presented to the state court was not identical to a federal claim. Coluccio argues
that because of a faulty jury instruction the prosecution was relieved of its burden
of proof on every element of the crime, in violation of due process. In re Winship,
397 U.S. 358 (1970). He further argues that the Montana Supreme Court and
federal law treat Winship claims identically. However, he did not present a
Winship claim or its identical state equivalent to the state court.
Coluccio’s second claim is a sufficiency of the evidence claim that the
district court determined was procedurally barred but also found meritless. A
federal court may “deny an unexhausted petition on the merits only when it is
perfectly clear that the applicant does not raise even a colorable federal claim.”
Cassett v. Stewart, 406 F.3d 614, 623–624 (9th Cir. 2005). There is no colorable
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claim that the state court unreasonably applied clearly established federal law.
DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). The Montana Supreme
Court determined that “viewing the evidence in a light most favorable to the
prosecution, there is no evidence upon which a rational trier of fact could find the
essential elements of the crime exist beyond a reasonable doubt.” This correctly
identified the governing rule of Jackson v. Virginia, 443 U.S. 307 (1979) for
sufficiency of the evidence claims. It did not apply it to a new set of facts in a way
that was objectively unreasonable. DeWeaver, 556 F.3d at 997.
Coluccio drank at least three beers just before getting behind the wheel of
his car. On a clear, sunny day, he turned his car directly into the path of a bright
yellow motorcycle with its headlight on. There were two vehicles behind
Coluccio; the drivers and passengers in those vehicles saw the victim coming down
the road. Coluccio had more than eight seconds to see and respond to the victim’s
motorcycle. Coluccio’s blood alcohol level was .07 two hours after the accident.
There was sufficient evidence of actual impairment from that evidence. Also, there
was sufficient evidence for a jury to disbelieve that Coluccio had only three to four
drinks and to determine that Coluccio grossly deviated from ordinary care by
getting behind the wheel of a car after drinking. A jury was not required to find
Coluccio guilty. But, viewing the evidence in the light most favorable to the
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prosecution, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. The state court did not unreasonably apply
clearly established federal law.
Coluccio also argues that if there was procedural default it should be
excused. Procedural default may be excused for a fundamental miscarriage of
justice, Schriro, 538 F.3d at 1028, such as where a petitioner can show that a
constitutional violation probably caused the conviction of one innocent of the
crime, Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc). However,
“[t]o be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eye-witness accounts, or critical physical
evidence—that was not presented at trial.” Schriro, 538 F.3d at 1028 (quoting
Schlup v. Delo, 513 U.S. 298, 324 (1995)). No new evidence was presented here.
This is a tragic case for all involved. But the punishment was for a state
crime and was imposed under state law. The issues presented to the Montana
Supreme Court were state law issues. Its denial of relief on those issues prevents
us from acting when no issue of federal law was properly preserved for the federal
district court in Coluccio’s habeas corpus petition.
AFFIRMED.
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