GAGNE v. BOOKER

No. 07-1970.

606 F.3d 278 (2010)

Lewis Rodney GAGNE, Petitioner-Appellee, v. Raymond BOOKER, Warden, Respondent-Appellant.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 25, 2010.


Attorney(s) appearing for the Case

ARGUED: Janet A. Van Cleve, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: William C. Campbell, Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Amici Curiae. Lewis Gagne, Detroit, Michigan, pro se.

NORRIS, J., delivered the opinion of the court, in which KETHLEDGE, J., joined, with Judge KETHLEDGE (pp. 289-92), also delivering a separate concurring opinion. BATCHELDER, C.J. (pp. 292-301), delivered a separate dissenting opinion.


AMENDED OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner Lewis Gagne and his co-defendant, Donald Swathwood, were each charged with three counts of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with Gagne's ex-girlfriend, Pamela Clark. All of the charges arose out of events occurring over the course of one night. The key question at trial was one of consent. The jury convicted Gagne of two counts, and Swathwood...

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