United States District Court, E.D. Michigan, Southern Division
AND ORDER DENYING PETITIONER'S MOTION TO APPOINT COUNSEL
[Dkt. # 9], GRANTING PETITIONER'S MOTION TO AMEND [Dkt. #
10], DENYING PETITIONER'S MOTION TO PROCEED ANONYMOUSLY
[Dkt. # 11], GRANTING RESPONDENT'S MOTION TO DISMISS
[Dkt. # 12], DISMISSING THE HABEAS CORPUS PETITIONS [Dkt. # 1
and # 3], AND DECLINING TO ISSUE A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE.
matter has come before the court on petitioner Masao
Kikuchi's pro se habeas corpus petition under 28
U.S.C. § 2254 and respondent Mitch Perry's motion to
dismiss the petition. Also pending before the court are
Petitioner's motion for appointment of counsel, his
motion to amend the habeas petition, and his motion to
court agrees with Respondent that substantive review of
Petitioner's claims is barred by the statute of
limitations, 28 U.S.C. § 2244(d). Accordingly,
Respondent's motion to dismiss will be granted, and the
habeas petition will be dismissed as untimely. Additionally,
for the reasons given below, the motions to appoint counsel
and to proceed anonymously are denied, and the motion to
amend is granted.
was charged in Wayne County, Michigan with three counts of
criminal sexual conduct in the first degree, see
Mich. Comp. Laws § 750.520b(1), three counts of child
sexually abusive activity, see Mich. Comp. Laws
§ 750.145c(2), and three counts of possession of child
sexually abusive material, see Mich. Comp. Laws
§ 750.145c(4). On March 16, 2007, Petitioner pleaded
guilty in Wayne County Circuit Court to one count of
first-degree criminal sexual conduct and one count of child
sexually abusive activity. In return, the prosecutor dropped
the other seven charges, and the parties agreed to a sentence
of ten to thirty years.
April 2, 2007, the trial court sentenced Petitioner to
concurrent terms of ten to thirty years in prison for the
criminal sexual conduct and ten to twenty years in prison for
the child sexually abusive activity. Petitioner did not
appeal his convictions or sentence, and the deadline for
doing so expired on April 2, 2008, one year after he was
years later, in March of 2013, Petitioner filed a motion for
relief from judgment in the state trial court. He alleged
that his trial attorney failed to explain the ramifications
of his guilty plea, that his guilty plea was not voluntary
and knowing, and that his sentence exceeded the sentencing
guidelines. The trial court denied Petitioner's motion,
stating that Petitioner was aware of the direct consequences
of pleading guilty, that his plea was voluntary and
understanding, and that his sentence was valid. See
People v. Kikuchi, No. 07-004084-01 (Wayne Cty. Cir. Ct.
June 12, 2013) (unpublished).
appealed the trial court's decision on the basis that his
sentencing agreement was misleading and, therefore, his
guilty plea was not knowing and voluntary. The Michigan Court
of Appeals denied leave to appeal due to Petitioner's
failure to establish entitlement to relief under Michigan
Court Rule 6.508(D). See People v. Kikuchi, No.
316979 (Mich. Ct. App. Oct. 18, 2013) (unpublished). On May
27, 2014, the Michigan Supreme Court denied leave to appeal
for the same reason. See People v. Kikuchi, 846
N.W.2d 562 (Mich. 2014).
December 8, 2014, Petitioner filed a second motion for relief
from judgment. He claimed that the prosecutor arbitrarily
picked a sentence of ten to thirty years and also deceived
him by stating that the plea agreement was “less than
standard.” Additionally, Petitioner claimed that he was
denied his right to counsel at a critical stage due to
defense counsel's ineffectiveness and that his guilty
plea was invalid because the trial court did not advise him
of his rights on the record.
trial court denied Petitioner's motion, see People v.
Kikuchi, No. 07-004084-01-FC (Wayne Cty. Cir. Ct. Feb.
9, 2015) (unpublished), and the Michigan Court of Appeals
dismissed Petitioner's subsequent appeal for lack of
jurisdiction. The Court of Appeals stated that
Petitioner's motion for relief from judgment was a
successive motion and that Petitioner was not entitled to
appeal the denial of a successive motion for relief from
judgment. See People v. Kikuchi, No. 326263 (Mich.
Ct. App. May 19, 2015) (unpublished order citing Michigan
Court Rule 6.502(G)). On May 2, 2016, the Michigan Supreme
Court likewise denied leave to appeal because
Petitioner's motion for relief from judgment was
prohibited by Michigan Court Rule 6.502(G). See People v.
Kikuchi, 878 N.W.2d 282 (Mich. 2016).
on March 29, 2016, Petitioner signed his habeas corpus
petitions and on March 31, 2016, the Clerk of this Court
filed the petitions. Petitioner alleges as grounds for relief
that (1) the prosecution's arbitrary actions and
deception during the plea process deprived him of due
process, and (2) his right to counsel was violated during the
plea process because defense counsel agreed with the
prosecutor's assessment of the plea agreement and failed
to explain the elements and nature of the crimes to him. In
May and June of 2016, Petitioner filed his pending motions,
and on October 5, 2016, Respondent filed his motion to
dismiss the petition.
The Motion for Appointment of Counsel
alleges in his motion for appointment of counsel that he
cannot afford to retain counsel and that he could be
transferred to the custody of immigration officials and
deported to Japan in the near future. He asserts that he
needs an attorney because he will not have access to a law
library or to American legal materials if he is deported.
has no right to appointment of counsel in a collateral attack
on his convictions. Pennsylvania v. Finley, 481 U.S.
551, 555 (1987). “[T]he right to appointed counsel
extends to the first appeal of right, and no further.”
Id. Appointment of counsel in a civil proceeding
such as this one “is justified only in exceptional
circumstances.” Lanier v. Bryant, 332 F.3d
999, 1006 (6th Cir. 2003).
has ably represented himself thus far, having filed a habeas
petition with a supporting brief and multiple exhibits, three
motions, and a reply to Respondent's motion to dismiss.
Furthermore, he remains in the custody of Michigan
correctional officials, and “the interests of
justice” do not require appointment of counsel. 18
U.S.C. § 3006A(a)(2)(B). The court therefore denies
Petitioner's motion for appointment of counsel (Dkt. #
The Motion to Amend
seeks permission to amend his habeas petition to reflect the
fact that, after he filed his petition, the Michigan Supreme
Court denied leave to appeal the trial court's decision
on his second motion for relief from judgment. Under Federal
Rule of Civil Procedure 15(a)(1)(B), a party may amend his or
her pleading once as a matter of course within twenty-one
days after service of a responsive pleading. And under Rule
15(d), the Court may “permit a party to serve a
supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.”
habeas petition was filed on March 31, 2016, and on May 2,
2016, the Michigan Supreme Court denied Petitioner's
final application for leave to appeal. Respondent
subsequently served Petitioner with his responsive pleading.
Because Petitioner had not yet been served with the
responsive pleading when he moved to amend his habeas
petition, he was entitled to amend his habeas petition under
Rule 15(a)(1)(B) to reflect the fact that he no longer has an
appeal pending in any state court. And under Rule 15(d),
Petitioner is entitled to supplement his habeas petition with
a copy of the state supreme court's order dated May 2,
2016. Accordingly, the court grants Petitioner's motion
to amend his habeas petition (Dkt. # 10).
The Motion to ...