THOMAS L. LUDINGTON, District Judge.
Petitioner Roderick Harold Person, confined at the Michigan Reformatory in Ionia, Michigan, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, through his attorneys Kristoffer W. Tieber and F. Martin Tieber. Petitioner was convicted by a jury in the Alpena County Circuit Court of second-degree murder, Mich. Comp. Laws § 750.317, and operating a vehicle under the influence of liquor (OUIL) causing death, Mich. Comp. Laws § 257.625(4).
Petitioner was convicted following a jury trial in the Alpena County Circuit Court. The facts of the case were recited by the Michigan Court of Appeals and are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). The court of appeals reports:
People v. Person, No. 286057, 2009 WL 3930576, at* 1-2 (Mich. Ct. App. Nov. 19, 2009) (per curiam).
Petitioner's conviction was affirmed on appeal. Id. Petitioner now seeks a writ of habeas corpus on a single ground, asserting: "Petitioner's conviction for second degree murder should be vacated as the prosecution failed to present legally sufficient evidence that Mr. Person possessed the essential malice element required to support a conviction for second degree murder, contrary to his constitutional right to due process law."
In his sole claim for relief, Petitioner asserts that there was insufficient evidence to convict him of second-degree murder because the prosecutor failed to establish malice. In other words, the prosecutor did not establish that Petitioner's conduct rose to the level of wanton and willful disregard of the likelihood that his actions would cause death or great bodily harm. The Michigan Court of Appeals rejected Petitioner's claim, explaining:
Person, 2009 WL 3930576, at * 4-5 (internal footnotes omitted).
State courts are to be given great leeway in adjudicating sufficiency of evidence claims. Thompson v. Bock, 215 F. App'x 431, 437 (6th Cir. 2007) (citing Yarborough, 541 U.S. at 663-64)). When reviewing the sufficiency of the evidence to support a criminal conviction, the inquiry is "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318 (1979). "[T]his inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. at 319 (internal quotation marks and emphasis omitted) (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)). Rather, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis omitted) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
Under Michigan law, the elements of second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification or excuse. Stewart v. Wolfenbarger, 595 F.3d 647, 654 (6th Cir. 2010) (citing People v. Goecke, 579 N.W.2d 868 (Mich. 1998)). "[M]alice is defined as the intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful disregard of the likelihood that the natural tendency of such behavior is to cause death or great bodily harm." Id. (citing People v. Aaron, 299 N.W.2d 304 (Mich. 1980)). Additionally, "[t]he offense of second-degree murder `does not require an actual intent to harm or kill, but only the intent to do an act that is in obvious disregard of life-endangering consequences.'" Stewart, 595 F. 3d at 658 (quoting People v. Aldrich, 631 N.W.2d 67 (Mich. Ct. App. 2001)).
Petitioner is correct that not every drunk driving case that results in a death constitutes second-degree murder. See People v. Werner, 659 N.W.2d 688, 692-93 (Mich. Ct. App. 2002) (per curiam). Instead, to satisfy the malice requirement for second-degree murder, the evidence must show "`a level of misconduct that goes beyond that of drunk driving.'" Id. (quoting Goecke, 579 N.W.2d at 880).
In this case, the evidence was sufficient for a rational trier of fact to conclude that the petitioner acted with malice. Petitioner was intoxicated; his blood alcohol level was more than twice the legal limit. See Mich. Comp. Laws § 257.625(1)(b). Petitioner was first observed by Officer Gohl stopping well beyond an intersection's cross-walk. Petitioner then made a sweeping turn onto another street, switched lanes without signaling, and again abruptly changed lanes. Officer Gohl activated his lights and sirens, but Petitioner did not pull over. He sped up. His passenger, Jean Anderson, told him to pull over, but he refused, telling her that he did not want to go to jail. On a road with a twenty-five mile an hour speed limit, Petitioner began driving at least fifty miles an hour and perhaps as fast as eighty-seven miles an hour. Entering a dimly lit area, Petitioner did not reduce his speed. (Officer Gohl testified that the area was so dimly lit he had to activate the spotlight in order to be able to see Petitioner's vehicle.) Petitioner continued driving at a high rate of speed through a curve in the road, ultimately losing control of the vehicle, crashing into a creek bottom. The force of the crash propelled his victim from the vehicle, killing him.
Driving a vehicle erratically and at a high rate of speed while intoxicated evinces a wanton and willful disregard of the likelihood of death or great bodily harm. The malice aforethought element of second-degree murder can be inferred from such conduct. See Hoskinson v. Bock, 8 F. App'x 558, 560-61 (6th Cir. 2001); Aldrich v. Bock, 327 F.Supp.2d 743, 763 (E.D. Mich. 2004); People v. Miller, 499 N.W.2d 373 (Mich. Ct. App. 1993).
The Michigan Court of Appeals reasonably determined that a rational trier of fact could have found the elements of second degree murder, including the element of malice, beyond a reasonable doubt. Petitioner is not entitled to habeas relief.
Before Petitioner may appeal this Court's dispositive 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 rejects a habeas claim on the merits, the substantial showing threshold is met if Petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. See 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). In applying that standard, a district court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id. at 336-37. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
Petitioner has not demonstrated a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability is not warranted in this case. The Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed. R. App. P. 24(a).
Accordingly, it is
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