Michael Coluccio v. State of Montana

MEMORANDUM

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. Waddington, 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,…