United States District Court, E.D. Michigan, Southern Division
LEON J. SETTY, 142227, Petitioner,
SHERRY BURT, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
Setty, (“Petitioner”), incarcerated at the
Muskegon Correctional Facility in Muskegon, Michigan, seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254
[docket entry. In his pro se application, petitioner
challenges his conviction for four (4) counts of third-degree
criminal sexual conduct (“CSC III”), Mich. Comp.
Laws § 750.520(1)(b). For the reasons stated below, the
Court will deny petitioner's application.
was convicted following a jury trial in the Oakland County
Circuit Court. This Court recites verbatim the relevant facts
relied upon by the Michigan Court of Appeals, which are
presumed correct on habeas review pursuant to §
[T]he victim testified that over the course of her stay in
defendant Bennett's cabin, both defendants committed
repeated acts of physical abuse, repeatedly uttered threats
of death or physical harm toward her, her family members, and
others, and that the threats kept the victim from leaving the
cabin and kept her from disclosing or seeking help to escape
defendants' physical and sexual abuse.
With respect to the intent element, given the consistent
nature of both defendants' physical abuse of the victim,
threats of death and physical harm to the victim and others,
and repeated acts of penetration of the victim (separately
and together) in the cabin's mostly open space, the
juries could reasonably find that at the time defendants gave
aid and encouragement, they knew that their codefendant
intended to unlawfully sexually penetrate the victim.
People v. Bennett, No. 299829, 2012 WL 6097317, at
*2-3 (Mich. App. Dec. 6, 2012). Petitioner's conviction
was affirmed on direct appeal. Id.; lv.
den. 832 N.W.2d 235 (Mich. 2013).
filed a post-conviction motion for relief from judgment,
which was denied. People v. Setty, No. 10-230357-FH
(Oakland Cty. Cir. Ct., June 17, 2014). The Michigan
appellate courts denied petitioner leave to appeal.
People v. Setty, No. 324955 (Mich. Ct. App. Mar. 12,
2015); lv. den. 873 N.W.2d 563 (Mich. 2016).
seeks a writ of habeas corpus on the following grounds:
I. Mr. Setty's Fourteenth Amendment right to due process
of law was violated where the prosecution did not present
sufficient evidence to prove beyond a reasonable doubt that
Mr. Setty was guilty of aiding and abetting criminal sexual
II. The trial court should not have instructed on the theory
of aiding and abetting. The prosecution never raised that
claim until after the proofs were in. From the day of his
arrest until after the proofs were closed, Mr. Setty was
notified and defended against a charge that he directly
committed the offense of criminal sexual conduct third
degree. This instruction resulted in a compromise verdict
where the jury convicted Mr. Setty because he was merely
III. The prosecutor's argument violated Mr. Setty's
Fourteenth Amendment right to due process of law because it
encouraged the jury to convict him based on sympathy for the
alleged victim rather than to return a verdict based on the
evidence presented at trial.
IV. Mr. Setty was denied effective assistance of trial
counsel where his counsel failed to call as a witness a woman
named Carol, who would have supported the defense theory that
alleged victim [J. G.] should not be believed.
V. Mr. Setty was denied effective assistance of counsel on
appeal where appellate counsel failed to investigate and
raise on appeal the claim of ineffective assistance of trial
Standard of Review
2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), imposes the
following standard of review for habeas cases:
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;
(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.
state-court decision is “contrary to” clearly
established federal law if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
Supreme Court has explained that “a federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). 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 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n.7 (1997); 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, ...