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Setty v. Burt

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

April 5, 2018

LEON J. SETTY, 142227, Petitioner,
v.
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.

         Leon J. 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.

         I. Facts

         Petitioner 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 § 2254(e)(1):

[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).

         Petitioner 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).

         Petitioner 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 conduct.
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 present.
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 counsel.

         II. Standard of Review

         Section 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; 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.

         A 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. at 410-11.

         The 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, ...


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