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GAGNE v. BOOKER

No. 07-1970.

680 F.3d 493 (2012)

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

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 16, 2012.

Attorney(s) appearing for the Case

ARGUED: Laura Moody , Michigan Attorney General's Office, Lansing, Michigan, for Appellant. Paul L. Nelson , Federal Public Defender's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Laura Moody , B. Eric Restuccia , 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, Margaret Garvin , National Crime Victim Law Institute at Lewis & Clark Law School, Portland, Oregon, Mellissa Fuhrmann , Justice League of Ohio, Powell, Ohio, for Amici Curiae.

BATCHELDER, C.J., announced the judgment of the court and delivered an opinion, in which BOGGS, GIBBONS, SUTTON, COOK, McKEAGUE, and GRIFFIN, JJ., joined. SUTTON (p. 518), and GRIFFIN (pp. 518-20), JJ., delivered separate concurring opinions. MOORE, J. (pp. 520-24), in which COLE, J., joined, CLAY, J. (pp. 524-26), and WHITE, J. (pp. 526-27), delivered separate opinions concurring in the judgment only. MARTIN, J. (p. 527), delivered a separate dissenting opinion. KETHLEDGE, J. (pp. 527-39), also delivered a separate dissenting opinion, in which MARTIN, NORRIS, ROGERS, and STRANCH, JJ., joined.

OPINION

ALICE M. BATCHELDER, Chief Judge.

The respondent, Warden Raymond Booker, represented by the State of Michigan's Attorney General and Solicitor General (hereinafter "the State"), appealed the district court's grant of habeas corpus to petitioner-appellee Lewis Gagne. See Gagne v. Booker, No. 04-60283, 2007 WL 1975035, 2007 U.S. Dist. LEXIS 47616 (E.D.Mich. July 2, 2007). A three-judge panel affirmed. Gagne v. Booker,

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