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Dorrougn v. Olson

United States District Court, E.D. Michigan, Southern Division

November 15, 2017

RAPHEL DORROUGH, #868539, Petitioner,
v.
KATHY OLSON, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Raphel Dorrough (“Petitioner”) was convicted of operating a motor vehicle while intoxicated causing death, Mich. Comp. Laws § 257.625(4), and reckless driving causing death, Mich. Comp. Laws § 257.626(4), following a jury trial in the Genesee County Circuit Court. He was sentenced to concurrent terms of 86 months to 15 years imprisonment on those convictions in 2013. In his pleadings, Petitioner raises jury-instruction claims. For the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from an impaired driving accident on June 7, 2011 in Genesee County, Michigan. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

During the early morning hours of June 7, 2011, Jaryn Stevens asked his best friend, Larenzo Bradford, for help because Stevens's car had run out of gas. Bradford responded to Stevens's plight, and Stevens got out of his car as Bradford filled the gas tank for him. Bradford noticed a car approaching from behind Stevens's car “faster than normal.” Bradford, concerned that the oncoming vehicle was going to hit Stevens's car, told Stevens, “[W]e got to move out of the road.” Just as the oncoming car was about to hit Stevens's disabled car, it swerved into the lane where both men were standing, hitting them. Bradford was injured and Stevens was killed.

People v. Dorrough, No. 315763, 2014 WL 5361721, *1 (Mich. Ct. App. Oct. 21, 2014) (unpublished).

         At trial, Bradford provided an eyewitness account of the events leading up to the crash. He stated that he could see lights approaching them from a distance but “thought nothing of it.” 2/13/2013 Trial Tr., pp, 223-24 (Dkt. 6-8). When he realized that Petitioner's car was traveling faster than normal, he chose to step back toward Stevens's car. Id. at 226. Bradford stated that just before the car hit the back of Stevens's car, it swerved into the curb lane hitting him and Stevens. Id. at 227. Bradford was struck in the left leg; he managed, however, to hobble over to where Petitioner's car had stopped and found Stevens laying in front of the car, near death. Id. at 228-29. Both Bradford and Petitioner called 911, and Bradford remained at Stevens's side until the paramedics arrived. Id. at 232, 234. The paramedic testified that, on arrival, Stevens exhibited no signs of life. Id. at 286. Even so, he tried to resuscitate Stevens using CPR and a cardiac monitor, but Stevens flat-lined at approximately 3:30 a.m. Id. at 285-87.

         Medical testimony revealed that at the time of the crash, Petitioner's blood alcohol level was between 0.091 and 0.137. 2/14/2013 Trial Tr., pp. 131-32 (Dkt. 6-9). Petitioner's blood also tested positive for tetahydrocannabinol (THC), a compound found in marijuana, and Alprazolam (Xanax). Id. at 136, 138. A biochemistry and toxicology expert testified that Petitioner was impaired when he struck the two young men. Id. at 138.

         An accident reconstruction expert testified that when he arrived on the scene, Stevens's flashers were still on. 10/17/2012 Trial Tr., p. 8 (Dkt. 6-4). Based on his calculations, Petitioner was traveling approximately 65 miles per hour and he failed to apply the brakes until the very last second before swerving into the two young men. Id. at 11-12. The expert opined that if Petitioner was traveling at the speed limit of 35 miles per hour and had applied his brakes, he would not have hit Stevens. Id. at 55-56. The expert ultimately determined that Petitioner was at fault for the crash and that speed was the main factor. Id. at 62-63.

         Following his convictions and sentencing, Petitioner pursued an appeal of right with the Michigan Court of Appeals raising the same claim presented on habeas review. The court denied relief on his claims and affirmed his convictions. Dorrough, 2014 WL 5361721 at *1-5. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which that Court denied in a standard order. People v. Dorrough, 497 Mich. 984, 861 N.W.2d 4 (2015).

         Petitioner thereafter filed his federal habeas petition. He raises the following claims:

I. The trial court violated his Fourteenth Amendment Due Process Clause right by not instructing the jury on contributory negligence.
II. The trial court erred by failing to instruct the jury on the lesser offenses of impaired driving and/or reckless driving.

         Respondent has filed an answer to the petition contending that it should be denied for lack of merit.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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 ...

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