United States District Court, E.D. Michigan, Southern Division
ALAN C. LOON, #882652, Petitioner,
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
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.
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.
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
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
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
People v. Loon, 2014 WL 6088673, at *1 (Mich. Ct.
App. Nov. 13, 2014).
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).
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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented