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Michael James Coluccio v. Attorney of Appealability

February 8, 2011


The opinion of the court was delivered by: Jeremiah C. Lynch United States Magistrate Judge



On June 7, 2010, Petitioner Michael James Coluccio filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2254. Coluccio is a state prisoner. At the time his petition was filed, he was proceeding pro se.

On July 16, 2010, in response to an Order, Respondents ("the State") filed the trial transcript. Following preliminary screening of the Petition in light of the transcript, Rule 4, Rules Governing § 2254 Cases, counsel was appointed to represent Coluccio, and an Amended Petition was filed on October 25, 2010. The State filed an Answer and a motion to dismiss on December 16, 2010. The motion to dismiss was fully briefed on January 21, 2011.

Based on the parties' written consent to magistrate judge jurisdiction, the matter was reassigned to the undersigned on January 26, 2011. Clerk's Notice (doc. 25); Consents (doc. 25-1).

I. Overview

Johnsrud Park, off Highway 200 in Missoula County, Montana, is a popular location for rafters and floaters to park and launch into the cool Blackfoot River on hot summer days. July 14, 2007, was a Saturday. The temperature was right around 100 degrees.

On that day, at about 4:35 p.m., Petitioner Coluccio was driving east in a Chevrolet Suburban when he turned left into Johnsrud Park in front of a motorcyclist, John Troyer, in the westbound lane. Troyer was killed in the collision. Coluccio was charged with a felony, vehicular homicide while under the influence, a violation of Mont. Code Ann. § 45-5-106(1) (2007), and two misdemeanors. He pled guilty to the misdemeanors and went to trial on the vehicular homicide charge.

Under Montana law, "[a] person commits the offense of negligent homicide if the person negligently causes the death of another human being." Mont. Code Ann. § 45-5-104. The maximum penalty for negligent homicide is twenty years in prison.

Id. § -104(3). Vehicular homicide while under the influence carries a maximum penalty of thirty years and is committed if the defendant "negligently causes the death of another human being while the person is operating a vehicle in violation of 61-8-401." Mont. Code Ann. § 45-5-106(1), (3).

Section 61-8-401 of the Montana Code defines the offense of driving under the influence of alcohol or drugs.*fn1 It is an "absolute liability" offense and is proven if "a person's ability to safely operate a vehicle is diminished," to any extent, by alcohol or drugs. Id. § 61-8-401(3)(a), (7). "In order to be convicted of negligent vehicular homicide, a defendant must be found to be both under the influence and criminally negligent." State v. Coluccio, 214 P.3d 1282, 1286 ¶ 18 (Mont. 2009) (emphases added); see also State v. Condo, 182 P.3d 57, 60-61 ¶¶ 15-17 (Mont. 2008). Criminal negligence is defined as follows:

A person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care.

Mont. Code Ann. § 45-2-101(43) (emphases added).

At trial, Coluccio admitted he drank before he drove on July 14 and failed to yield to Troyer. He disputed the amount the State claimed he drank and contested the State's theory that he was under the influence. He also asserted that he simply did not see Troyer before turning into Johnsrud Park. He testified on his own behalf.

If persuaded to draw inferences in Coluccio's favor, a reasonable juror could have found that, although Coluccio's ability to drive was diminished, he did not drink so much that his decision to drive was a gross deviation from the standard of care a reasonable person would observe.*fn2 A reasonable juror could have believed that Coluccio would not have turned in front of Troyer if he had seen him. A juror who found these facts could have found that Coluccio met the elements of DUI, and caused Troyer's death, without finding that Coluccio was criminally negligent.

The trial court's instructions defined negligence as follows: In a criminal case, a person acts negligently when an act is done with conscious disregard of the risk, or when the person should be aware of the risk by driving a motor vehicle after consuming alcohol and failing to yield the right of way to oncoming traffic . . . .

Trial Tr. (doc. 6-1) at 446:5-10 (emphasis added).

The jury found Coluccio guilty. He was sentenced to serve 30 years in prison, with 15 years suspended. Am. Pet. (doc. 14) at 2 ΒΆ 5. On direct appeal, he challenged the trial court's instruction defining negligence and the sufficiency of the evidence to support findings of DUI and criminal negligence. The Montana Supreme Court ...

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