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Delpiano v. Bergh

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

July 17, 2019

NINO DELPIANO, Petitioner,
DAVID BERGH, Respondent.



         Petitioner Nino Delpiano was convicted of second-degree murder and felony traffic offenses after his vehicle struck and killed a Taylor city police officer who was assisting a motorist on the shoulder of a freeway. The trial court sentenced him as an habitual offender to concurrent prison terms totaling 45 to 67-½ years. Delpiano challenges his convictions in a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254, alleging claims concerning the sufficiency of evidence and the effectiveness of his trial and appellate counsel. Because Delpiano has not demonstrated that his convictions violate the Constitution or applicable federal law, the Court will deny his petition.


         Delpiano struck and killed a police officer who was assisting a couple on the right shoulder of I-94 in Taylor, Michigan on September 7, 2010. The Michigan Court of Appeals summarized the facts in its opinion on direct appeal as follows:

At trial, Delpiano's trial lawyer conceded that Delpiano struck and killed [Lieutenant Daniel] Kromer while driving without a valid license, failed to stop at the scene of the accident, and failed to use due caution when passing a stationary emergency vehicle. He even conceded that the jury might reasonably find that Delpiano's actions were grossly negligent and, therefore, warranted finding Delpiano guilty of the lesser offense of vehicular manslaughter. However, he argued that the evidence would show that Delpiano's actions did not amount to second-degree murder and, as such, he asked the jury to find Delpiano not guilty on that count.
Timothy Justice testified that he was an auxiliary police officer with the Taylor Police department and that, on the day at issue, he was riding with Kromer in a fully marked police cruiser. They were on IB94 at around 8:45 pm when Kromer, who was driving, noticed a car parked on the shoulder of the opposite side of the highway. Kromer left the highway at the next exit and reentered IB94 on the same side as the stranded car. Justice said that he activated the cruiser's emergency lights after Kromer pulled up behind the car. Justice explained that their police cruiser was the “most lit up vehicle on our line”; it had red and blue strobe lights overhead, white strobe lights on the trunk, and flashing break lights.
After they parked, they both approached the passenger's side. The car had a driver and a passenger who were both foreign. Justice said that he surmised that they were trying to get to the airport, but he was having difficulty understanding them because of their broken English and the traffic noise. At some point, Kromer walked behind the car to the driver's side. Justice explained that the stranded car was parked “approximately three feet away from the first line of traffic”; indeed, Justice stated that he was standing in the weeds as he tried to speak with the passenger and he agreed that there was a “good strip of shoulder” for Kromer to stand on.
Karen Schmitt testified that she and her husband, Greg Schmitt, were driving on IB94 at around 8:45 pm: “it was not dark, but it was getting [to be] dusk.” She was driving in the rightmost lane and noticed that there was an emergency vehicle with its lights on about 2 to 3 hundred feet ahead. She stated that the traffic was “busy, ” but after a semi flashed his lights, she was able to merge into a middle lane. She stated that the traffic was moving at about 75 miles per hour. Gregg Schmitt testified that, after they saw the emergency lights, his wife slowed and merged into a middle lane. He said he could see a police officer standing by the driver's side door of a car parked on the shoulder.
Steven Digna testified that he was driving behind a car that he later learned was occupied by the Schmitts. As he entered IB94, he noticed an emergency vehicle with its lights on up ahead. He said that the emergency vehilce was about “100 yards” ahead. There was a semi coming up on their side, which merged over so that they could get onto the highway. Digna said that the Schmitts then merged over and, after they moved ahead, he too merged over. They were both in front of the semi. He then set his cruise control to 75 miles per hour. He could see a police officer hunched over with his hand on the window of a car parked on the side of the highway.
Digna testified that he saw a white car that was two lanes from the right. That car merged over behind the semi and into the rightmost lane - directly behind Digna - just as Digna was merging over to the semi's lane. That car then accelerated past him in the rightmost lane: “Within a matter of seconds he had gained three to four car lengths, maybe more.” Digna saw the driver pass him “in a dead open straight line, ” but he then “swerved at the officer quite directly” and struck him. Digna said that he had “seen absolutely no brake lights”; the white car just ran into the officer “and then corrected its path.” Justice testified that he could see Kromer's white shirt through the driver's window and then “he didn't see the white shirt” anymore. He also noticed that the driver's side mirror was “just gone.” He looked and saw that Kromer was lying on the shoulder approximately thirteen to fifteen feet in front of the stranded car. Karen and Gregg Schmitt both testified that they saw a car hit Kromer and that he flew into the air and landed on the side of the road.
Karen Schmitt testified that, after she saw Kromer get hit, she immediately pulled over. She was able to do so because there was no one driving in the lane behind the white car. Digna also pulled over and both Karen Schmitt and Digna saw the white car exit at the next ramp.
Testimony established that Kromer's body left scuff marks along the side of the stranded car from his “uniform and equipment striking the vehicle” and that there weren't any pre-crash skid marks. Another witness testified that she saw Delpiano driving shortly after the accident and noticed that his right headlight was out, his windshield was “completely shattered” and the A-arm, which is the part that “goes from the roof to the hood, was actually bent and crinkled.” (The witness explained that she knew what an A-arm was because she worked in quality control at the Dearborn Truck Plant.) She said she took down his license, which later testimony established was used to identify Delpiano as the driver.
The medical examiner testified that Kromer died instantly. He stated that Kromer had injuries from head to toe, including tearing to the scalp that made his skull visible with the naked eye, trauma to the skin that was consistent with “the body violently jackknifing and overstretching of the skin, ” numerous abrasions and scrapes, tears in the left ventricle, the spleen, and bronchia. The medical examiner also observed that Kromer had broken leg bones, that his rib cage was completely broken on the right, and that his spine was broken in two places. He said that “the base of the skull was completely separated from the upper neck” in a way that was typical of “a violent type of whiplash injury.” The medical examiner listed the cause of death as “multiple injuries.”

People v. Delpiano, No. 304037, 2012 WL 3046157, at *1-3 (Mich. Ct. App. July 26, 2012) (footnote omitted).

         A Wayne County, Michigan jury convicted Delpiano of second-degree murder, Mich. Comp. Laws § 750.317, operating a motor vehicle while his license was suspended or revoked causing death, Mich. Comp. Laws § 257.904(4), failure to stop at the scene of an accident resulting in death, Mich. Comp. Laws § 257.617(3), and failure to use due caution when passing a stationary emergency vehicle causing death, Mich. Comp. Laws § 257.653a(4).

         Following his convictions and sentencing, Delpiano filed a direct appeal arguing that the evidence was not sufficient to support the convictions. The Michigan Court of Appeals affirmed his convictions and sentences, Delpiano, 2012 WL 3046157, and the state supreme court denied leave to appeal, People v. Delpiano, 493 Mich. 967, 829 N.W.2d 220 (2013). Delpiano then filed a motion for relief from judgment in the trial court alleging ineffective assistance of trial and appellate counsel. Citing Michigan Court Rule 6.508(D)(3), the trial court found that the petitioner did not establish good cause for his failure to raise the ineffective assistance of trial counsel claim on direct appeal as he did not show that appellate counsel was ineffective. The court denied the motion, People v. Delpiano, No. 10-010022-01-FC (Wayne Cty. Cir. Ct. June 25, ...

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