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Kikuchi v. Perry

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

January 31, 2017

MASAO KIKUCHI, Petitioner,
v.
MITCH PERRY, Respondent.

         OPINION 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 APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         This 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 proceed anonymously.

         The 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.

         I. BACKGROUND

         Petitioner 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.

         On 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 sentenced.[1]

         Several 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).

         Petitioner 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).

         On 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.

         The 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).

         Meanwhile, on March 29, 2016, Petitioner signed his habeas corpus petitions and on March 31, 2016, the Clerk of this Court filed the petitions.[2] 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.

         II. DISCUSSION

         A. The Motion for Appointment of Counsel

         Petitioner 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.

         Petitioner 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).

         Petitioner 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. # 9).

         B. The Motion to Amend

         Petitioner 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.”

         Petitioner's 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).

         C. The Motion to ...


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