Dorrougn v. Olson

Filing 8

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. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAPHEL DORROUGH, #868539,
Petitioner,
CASE NO. 16-CV-10308
HONORABLE MARK A. GOLDSMITH

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
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

1 

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(unpublished).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

2 

(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

3 

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 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 proceeding.

8 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16
(2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v.
Cone, 535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits
a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court but unreasonably applies that principle to the facts of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at
413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s
application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have
been more than incorrect or erroneous. The state court’s application must have been ‘objectively
unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at
409. The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’
and ‘demands that state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559
4 

U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19,
24 (2002) (per curiam)).
A state court’s determination that a claim lacks merit “precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments
or theories supported or ... could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order to
obtain habeas relief in federal court, a state prisoner must show that the state court’s rejection of
his claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id.; see also
White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014). Federal judges “are required to afford
state courts due respect by overturning their decisions only when there could be no reasonable
dispute that they were wrong.” Woods v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A
habeas petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S.
Ct. 1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the
state court’s decision comports with clearly established federal law as determined by the Supreme
Court at the time the state court renders its decision. Williams, 529 U.S. at 412. Section 2254(d)
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“does not require a state court to give reasons before its decision can be deemed to have been
‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require
citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The requirements of
clearly established law are to be determined solely by Supreme Court precedent. Thus, “circuit
precedent does not constitute ‘clearly established Federal law as determined by the Supreme
Court’” and it cannot provide the basis for federal habeas relief. Parker v. Matthews, 567 U.S.
37, 48-49 (2012) (per curiam); see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per
curiam). The decisions of lower federal courts, however, may be useful in assessing the
reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493
(6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v.
Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas review. See
28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and
convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas
review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
IV.

Analysis
Petitioner raises two jury instruction claims in his pleadings. In order for habeas relief to

be warranted on the basis of incorrect jury instructions, a petitioner must show more than the
instructions are undesirable, erroneous or universally condemned. Rather, taken as a whole, they
must be so infirm that they infected the entire trial, such that the conviction violated due process.
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Estelle v. McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If
an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there
is a reasonable likelihood that the jury improperly applied the instruction. Binder v. Stegall, 198
F.3d 177, 179 (6th Cir. 1999). A jury instruction is not to be judged in artificial isolation, but
must be considered in the context of the instructions as a whole and the trial record. Jones v.
United States, 527 U.S. 373, 391 (1999). Generally, the failure to give an instruction on lesserincluded offenses does not justify habeas relief. See Bagby v. Sowders, 894 F.2d 792, 797 (6th
Cir. 1990). Rather, the failure to instruct must have rendered the trial fundamentally unfair. Cupp
v. Naughten, 414 U.S. 141, 147 (1973); Daniels v. Lafler, 501 F.3d 735, 741 (6th Cir. 2007). “An
omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the
law.” Henderson, 431 U.S. at 155. State law instructional errors rarely form the basis for federal
habeas relief. Estelle, 502 U.S. at 71-72.
A.

Contributory Negligence Claim

Petitioner first asserts that the trial court erred and violated his due process rights by
refusing to instruct the jury on contributory negligence. In particular, he believes that the jury
should have determined whether Stevens was grossly negligent in jumping in front of Petitioner’s
vehicle and whether the alleged gross negligence was an intervening, superseding cause that
displaced Petitioner’s driving as the proximate cause of Stevens’s death. The Michigan Court of
Appeals considered this claim on direct appeal and denied relief. The court explained in relevant
part:
A defendant is entitled to have a properly instructed jury consider the evidence
against him. People v. Riddle, 467 Mich. 116, 124; 649 N.W.2d 30 (2002). The
trial court must instruct the jury not only on all the elements of the charged offense,
but also on material issues, defenses, and theories that are supported by the
evidence. People v. Anstey, 476 Mich. 436, 453; 719 N.W.2d 579 (2006). The trial
court is only required to give an instruction if it is supported by the evidence.
7 

People v. McKinney, 258 Mich. App. 157, 163; 670 N.W.2d 254 (2003). “Even if
the instructions are imperfect, there is no error if they fairly presented the issues
to be tried and sufficiently protected the defendant's rights.” People v. Milton, 257
Mich. App. 467, 475; 668 N.W.2d 387 (2003).
Causation is an issue for the finder of fact. People v. McKenzie, 206 Mich. App.
425, 431; 522 N.W.2d 661 (1994). “In criminal jurisprudence, the causation
element of an offense is generally comprised of two components: factual cause
and proximate cause.” People v. Schaefer, 473 Mich. 418, 435; 703 N.W.2d 774
(2005), modified on other grounds by People v. Derror, 475 Mich. 316 (2006). A
defendant's conduct is a factual cause of an injury if the injury would not have
occurred but for the defendant's conduct. Schaefer, 473 Mich. at 436. For a
defendant's conduct to be regarded as a proximate cause, the victim's injury must
be a direct and natural result of the defendant's actions. Id. In determining whether
proximate causation exists, “it is necessary to examine whether there was an
intervening cause that superseded the defendant's conduct such that the causal link
between the defendant's conduct and the victim's injury was broken.” Id. at 436–
437. “The standard by which to gauge whether an intervening cause supersedes,
and thus severs the causal link, is generally one of reasonable foreseeability.” Id.
at 437.
“Proximate causation ‘is a legal construct designed to prevent criminal liability
from attaching when the result of the defendant's conduct is viewed as too remote
or unnatural.’” People v. Feezel, 486 Mich. 184, 195; 783 N.W.2d 67 (2010),
quoting Schaefer, 473 Mich. at 436. “Ordinary negligence is considered
reasonably foreseeable, and it is thus not a superseding cause that would sever
proximate causation.” Id. Gross negligence is “more than an enhanced version of
ordinary negligence” and means “ ‘wantonness and disregard of the consequences
which may ensue....’” Id., quoting People v. Barnes, 182 Mich. 179, 198; 148 N.W.
400 (1914).
The contributory negligence instruction requested by defendant, CJI2d 16.20,
provides: “If you find that [the deceased] was negligent, you may only consider
that negligence in deciding whether the defendant's conduct was a substantial
cause of the accident.” Both crimes for which defendant was charged contain an
element of causation. The court instructed the jury according to CJI2d 15.11,
operating while intoxicated causing death, and specifically recited the causation
element relevant to the issue:
Fifth, that the defendant's operation of the vehicle caused the
victim's death. To “cause” the victim's death, the defendant's
operation of the vehicle must have been a factual cause of the death,
that is, but for the defendant's operation of the vehicle the death
would not have occurred. In addition, operation of the vehicle must
have been a proximate cause of death, that is, death or serious
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injury must have been a direct and natural result of operating the
vehicle. [Emphasis added.]
Likewise, the court instructed the jury according to CJI2d 15.16, reckless driving
causing death, including the causation requirement of that offense:
Third, that the defendant's operation of the vehicle caused the
victim's death. To “cause” the victim's death, the defendant's
operation of the vehicle must have been a factual cause of the death,
that is, but for the defendant's operation of the vehicle the death
would not have occurred. In addition, operation of the vehicle must
have been a proximate cause of death, that is, death or serious
injury must have been a direct and natural result of operating the
vehicle. [Emphasis added.]
Stevens's alleged contributory negligence was only relevant, if at all, to the issue
of whether defendant's driving was a proximate cause of Stevens's death. The
record shows that Stevens remained inside his disabled car until Bradford arrived
with the gasoline necessary to get the vehicle running again. Stevens got out of the
car as Bradford filled the gas tank for him. When Bradford noticed defendant's car
approaching from behind at a high rate of speed, Bradford told Stevens, “[W]e got
to move out of the road.” This statement was presumably made with great urgency.
The record shows that, while Bradford sought protection from Stevens's car,
Stevens “made a run for it” in reaction to the imminent danger.
Applying the reasoning of Feezel and Schaefer to the facts of this case, it is clear
that the factual cause of Stevens's death was defendant's conduct, because the death
would not have occurred but for defendant's driving. Schaefer, 473 Mich. at 436.
In addition, Stevens's death was the direct and natural result of defendant's driving;
therefore, defendant's driving constituted the proximate cause of Stevens's death
as well. Id. Even viewing the evidence in a light most favorable to defendant,
reasonable minds could not logically conclude that Stevens's actions, in attempting
to flee the imminent danger posed by defendant's rapidly approaching vehicle,
were grossly negligent or in “wanton disregard of the consequences.” To the
contrary, Stevens was reacting to Burton's warning and likely his own perception
of the danger when he tried to avoid it. Thus, Stevens's actions were not a
superseding, intervening cause sufficient to break the causal chain between
defendant's conduct and Stevens's death, Schaefer, 473 Mich. at 438, and did not
support the requested contributory-negligence jury instruction. And even if
Stevens's actions could be viewed as rising to the level of ordinary negligence,
those actions were reasonably foreseeable by defendant under the circumstances
and accordingly not a superseding cause that would sever proximate causation.
Feezel, 486 Mich. at 193, citing Schaefer, 473 Mich. at 437–438. Because the
record does not show that the actions of Stevens rose to the level of gross
negligence, as is required to constitute an intervening, superseding cause sufficient
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to break the causal chain, the trial court properly declined to give the contributory
negligence instruction.
Dorrough, 2014 WL 5361721 at *1-3.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. First, to the extent that Petitioner challenges
the jury instructions under state law, he is not entitled to habeas relief. See Pulley v. Harris, 465
U.S. 37, 41 (1984). It is well-settled that “a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting on habeas
review.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005). State courts are the final arbiters of state
law and federal courts generally will not intervene in such matters. Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). Habeas relief does not lie
for perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Second, Petitioner fails to establish that an instruction on contributory negligence was
warranted as a matter of due process. The United States Supreme Court has not clearly
established a constitutional right to have a jury instructed on a defense theory at a criminal trial.
While a defendant “is entitled to an instruction as to any recognized defense for which there exists
evidence sufficient for a reasonable jury to find in his favor” as a matter of federal criminal
procedure, Mathews v. United States, 485 U.S. 58, 63 (1988), such a right is not constitutionally
guaranteed. Therefore, the Michigan Court of Appeals’ ruling cannot be contrary to or an
unreasonable application of clearly established federal law as determined by the Supreme Court.
See Lopez v. Smith, 135 S. Ct. 1, 4 (2014); Carey v. Musladin, 549 U.S. 70, 77 (2006); Phillips
v. Million, 374 F.3d 395, 397-398 (6th Cir. 2004).
Nonetheless, even assuming that a criminal defendant has a constitutional right to an
instruction on a defense theory supported by sufficient evidence, Petitioner cannot prevail on this
10 

claim. Petitioner has not met his burden of showing, by clear and convincing evidence, that the
evidence at trial supported a contributory-negligence instruction. See Warren v. Smith, 161 F.3d
358, 360-61 (6th Cir. 1998). The record indicates that when Stevens ran out of gas, he put on his
flashers and called Bradford for help. As they were putting gas in the car, Petitioner’s vehicle
came speeding toward them. Contrary to Petitioner’s claim that Stevens “jumped in front of his
car,” the trial testimony indicated that Bradford saw Petitioner’s car coming toward Stevens’ car,
that he yelled out a warning, and that he and Stevens were running toward safety when Petitioner
swerved into the lane closer to the curb and struck them. The testimony also showed that
Petitioner was under the influence of drugs and alcohol and was driving at a relatively high rate
of speed at the time of the crash. There was no evidence that Stevens acted in a grossly negligent
manner or in wanton disregard of the consequences such that his actions were an intervening,
superseding cause of the accident. Rather, the evidence showed that the accident and Stevens’s
death were the result of Petitioner’s impaired and reckless driving. A contributory negligence
instruction was not required under state or federal law. Moreover, the trial court properly
instructed the jury on the elements of the charged offenses, including causation. Such instructions
were sufficient to satisfy due process. Petitioner fails to establish that the jury instructions,
considered as a whole, rendered his trial fundamentally unfair. Habeas relief is not warranted on
this claim.
B.

Lesser Offenses Claim

Petitioner also asserts that the trial court erred by failing to instruct the jury on the lesser
offenses of impaired driving and/or reckless driving. The Michigan Court of Appeals considered
this claim on direct appeal and denied relief. The court explained:
Whether an offense is a lesser-included offense is a question of law that this Court
reviews de novo. People v. Heft, 299 Mich. App. 69, 73; 829 N.W.2d 266 (2012).
11 

“[A] trial court's determination whether a jury instruction is applicable to the facts
of the case is reviewed for an abuse of discretion.” Gillis, 474 Mich. at 113.
Whether instructional error violates a defendant's constitutional rights is a question
of law that this Court reviews de novo. Heft, 299 Mich. App. at 73.
The trier of fact may find a defendant guilty of a lesser offense if the lesser offense
is necessarily included in a greater offense. Heft, 299 Mich. App at 73. To be a
lesser included offense, the elements necessary for commission of the greater
offense must subsume the elements necessary for commission of the lesser
offense. Id. The elements of the lesser offense are subsumed when all the elements
of the lesser offense are included in the greater offense. Id. If the trial court does
not instruct the jury on a lesser included offense, the error requires reversal if the
evidence at trial clearly supported the instruction. Id. “However, the trier of fact
may only consider offenses that are ‘inferior to the greater offense charged.’ The
trier of fact may not consider cognate offenses.” Heft, 299 Mich. App. at 74, citing
People v. Cornell, 466 Mich. 335, 354–355; 646 N.W.2d 127 (2002). Cognate
offenses share several elements, and are of the same class or category as the greater
offense, but the cognate lesser offense has some elements not found in the greater
offense. People v. Mendoza, 468 Mich. 527, 532 n. 4; 664 N.W.2d 685 (2003).
A requested instruction on a necessarily included lesser offense is proper if the
charged greater offense requires the jury to find a disputed factual element that is
not part of the lesser included offense and a rational view of the evidence would
support it. Cornell, 466 Mich. at 357. To be supported by a rational view of the
evidence, a lesser included offense must be justified by the evidence. People v.
Steele, 429 Mich. 13, 20; 412 N.W.2d 206 (1987), overruled in part on other
grounds by Cornell, 466 Mich. at 335. Proof of an element differentiating the two
crimes must be in dispute sufficiently to allow the jury to consistently find the
defendant not guilty of the charged offense but guilty of the lesser offense. Steele,
429 Mich. at 20; Heft, 299 Mich. App. at 77.
Defendant was charged with operating a vehicle while intoxicated causing death,
MCL 257.625(4), which is made up of the following elements:
(1) the defendant was operating his or her motor vehicle in violation
of MCL 257.625(1), (3), or (8); (2) the defendant voluntarily
decided to drive, knowing that he or she had consumed an
intoxicating agent and might be intoxicated; and (3) the defendant's
operation of the motor vehicle caused the victim's death. [Schaefer,
473 Mich. at 434.]
The lesser offense of operating a vehicle while intoxicated, MCL 257.625(1), is
made up of the following elements:
(1) A person, whether licensed or not, shall not operate a vehicle
upon a highway or other place open to the general public or
12 

generally accessible to motor vehicles, including an area
designated for the parking of vehicles, within this state if the person
is operating while intoxicated. As used in this section, “operating
while intoxicated” means either of the following:
(a) The person is under the influence of alcoholic liquor, a
controlled substance, or other intoxicating substance or a
combination of alcoholic liquor, a controlled substance or other
intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or more per
100 milliliters of blood, per 210 liters of breath, or per 67 milliliters
of urine, or, beginning October 1, 2018, the person has an alcohol
content of 0.10 grams or more per 100 milliliters of blood, per 210
liters of breath, or per 67 milliliters of urine.
See also Bloomfield Twp v. Kane, 302 Mich. App. 170, 182; 839 N.W.2d 505
(2013).
Defendant was also charged with reckless driving causing death, which requires
that (1) the defendant operates a motor vehicle “in willful or wanton disregard for
the safety of persons or property,” and (2) the defendant's operation “causes the
death of another person.” MCL 257.626(4); see also People v. Jones, 302 Mich.
App. 434, 439; 839 N.W.2d 51 (2013). To be convicted of reckless driving, a
defendant must have operated a vehicle with “willful or wanton disregard for the
safety of persons or property.” MCL 257.626(1). The language of the
misdemeanor reckless driving offense is identical to the more serious offense of
reckless driving causing death, except for the “causing death” element.
Defendant requested that the trial court instruct the jury on the crimes of operating
while intoxicated, CJI2d 15.1, and reckless driving, CJI2d 15.15, as necessarily
included lesser offenses. We agree that operating a motor vehicle while intoxicated
is a necessarily included lesser offense of operating a motor vehicle while
intoxicated causing death, and that reckless driving is a necessarily included lesser
offense of reckless driving causing death. See Heft, 299 Mich. App. at 73.
However, we cannot conclude that the trial court abused its discretion by declining
to give the requested instructions because, as the trial court observed, they were
not supported by a rational view of the evidence:
Since the evidence is overwhelming that the deceased died as a result of
being struck by the motor vehicle in this case—there is definitely a death.
He was struck by a motor vehicle. There is no evidence other than that this
defendant is the one driving the motor vehicle, the Nissan, at the time. I
think a rational view of the evidence does not support the lesser includeds.

13 

The record supports the court's finding in this regard and we perceive no error. The
“causing death” element, which differentiated the charged offenses from the lesser
offenses in question, was not sufficiently in dispute to allow the jury to find
defendant not guilty of the charged offenses but guilty of the lesser offenses.
Steele, 429 Mich. at 20; Heft, 299 Mich. App at 77. The trial court did not err by
determining that the requested instructions were not supported by a rational view
of the evidence. Cornell, 466 Mich. at 357.
Dorrough, 2014 WL 5361721 at *3-5.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. First, to the extent that Petitioner asserts that
the Michigan Court of Appeals erred as a matter of state law, he merely asserts a violation of state
law which does not warrant federal habeas relief. See discussion supra.
Second, Petitioner fails to establish a violation of his federal constitutional rights. The
United States Supreme Court has declined to determine whether due process requires jury
instructions on lesser included offenses in non-capital cases. Beck v. Alabama, 447 U.S. 625,
638 n. 14 (1980). In Hopper v. Evans, 456 U.S. 605, 611 (1982), the Supreme Court ruled that a
capital defendant is entitled to a lesser included offense instruction only when there is evidence
to support it. The Sixth Circuit has interpreted Beck to mean that “the Constitution does not
require a lesser-included offense instruction in non-capital cases.” Campbell v. Coyle, 260 F.3d
531, 541 (6th Cir. 2001) (citing Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir.1990) (en
banc)); see also, e.g., Parker v. Burt, 595 F. App’x 595, 605 (6th Cir. 2015). Neither operating a
vehicle while intoxicated causing death nor reckless driving causing death are capital offenses.
Consequently, the lesser offense instructions were not constitutionally required. Petitioner thus
fails to state a claim upon which habeas relief may be granted as to this issue.
V.

Conclusion

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For the reasons stated, the Court concludes that Petitioner’s claims lack merit and that he
is not entitled to federal habeas relief. Accordingly, the Court denies and dismisses with prejudice
the petition for a writ of habeas corpus.
Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). 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). When a court denies relief on the merits, the substantial showing threshold
is met if the petitioner demonstrates that reasonable jurists would find the court’s assessment of
the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner
satisfies this standard by demonstrating 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). Having conducted the requisite review, the Court concludes that Petitioner fails to make
a substantial showing of the denial of a constitutional right as to his claims. Accordingly, the
Court denies a certificate of appealability. The Court also denies leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a). This
case is closed.
SO ORDERED.
Dated: November 15, 2017
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on November 15, 2017.
s/Karri Sandusky
Case Manager 
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