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Loon v. Burt

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

April 23, 2018

ALAN C. LOON, #882652, Petitioner,
v.
SHERRY L. BURT, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE

         Petitioner Alan C. Loon is a state prisoner in the custody of the Michigan Department of Corrections. On July 9, 2013, a jury in the Wayne County Circuit Court convicted Loon of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(c) (sexual penetration with knowledge or reason to know that the victim is physically helpless) and two counts of fourth-degree criminal sexual conduct, Mich. Comp. Laws § 750.520e(1)(c) (sexual contact with knowledge or reason to know that the victim is physically helpless). The state trial court sentenced Loon to concurrent terms of six years three months to 15 years imprisonment and one to two years imprisonment on those convictions. The Michigan Court of Appeals affirmed Loon's conviction, and the Michigan Supreme Court declined to review that decision.

         On May 24, 2016, Loon filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) Loon raises a single claim in his petition: that the state trial court erred when it failed to instruct the jury on his mistake of fact defense. The Court has reviewed Loon's petition and concludes that he is not entitled to relief. Therefore, for the reasons stated below, the Court DENIES the petition and DENIES Loon a certificate of appealability. However, the Court GRANTS Loon permission to appeal in forma pauperis.

         I

         Loon's convictions arose from his sexual conduct with a patient at Henry Ford Wyandotte Hospital where he worked as a nurse. The Michigan Court of Appeals described the relevant facts as follows:

The victim went to the emergency room at Henry Ford Wyandotte Hospital where she was given medications that can make a person very sedated and drowsy. She was admitted to the Intensive Care Unit at the hospital at 1:45 a.m. Defendant, a registered nurse, was assigned to care for her during the nighttime hours. According to the victim, defendant sexually assaulted her while she was in the ICU. The victim testified that while asleep she felt hands on her “stomach going down to her vagina” and felt something inside her vagina. She then felt a mouth on her breast. When asked whether she was awake or alert at that point, she responded, “No.” When asked if she gave anyone permission to put their mouth on her breast, she said, “[a]bsolutely not.” According to the victim, she then felt someone take her hand and put it on what she believed to be “a penis and like masturbating.” When asked whether she gave anyone permission to move her hand in this way, she responded, “No.” The victim stated that she could see a name tag on the perpetrator that read, “RN Alan.”
Defendant testified that the sexual contact with the victim was consensual. He stated that the victim pulled him toward her and he licked her breast. He then started touching her vagina and she held and stroked his penis. He testified that the victim was alert and receptive. Defendant stated that the victim asked him to come into the bed with her, but he declined because at that point he felt bad for his kids and wife.

People v. Loon, 2014 WL 6088673, at *1 (Mich. Ct. App. Nov. 13, 2014).

         Following his convictions and sentencing, Loon filed an appeal of right with the Michigan Court of Appeals asserting that the trial court when it failed to instruct the jury on his mistake of fact defense. The state appellate court denied relief on that claim and affirmed Loon's convictions. See id. at ** 1-2. Loon then filed an application for leave to appeal with the Michigan Supreme Court. That court denied Loon's application “because [it was] not persuaded that the questions presented should be reviewed.” People v. Loon, 866 N.W.2d 416 (Mich. 2015).

         II

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:

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 ...

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