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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MASAO KIKUCHI,

Petitioner,

Civil No. 2:20-CV-l 1142

HONORABLE SEAN F. COX

UNITED STATES DISTRICT JUDGE

v.

CATHERINE BAUMAN,

Respondent,

OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Masao Kikuchi, (“petitioner”), confined at the Newberry Correctional Facility in

Newberry, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in

which he challenges the Michigan Parole Board’s decision to deny him release on parole for his

conviction for first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b, and one

count of possessing child sexually abusive material, Mich. Comp. Laws § 750.145c(2). For the

reasons that follow, the petition for writ of habeas corpus is SUMMARILY DENIED.

I. Background

Petitioner was sentenced to ten to thirty years in prison after pleading guilty in the Wayne

County Circuit Court to one count of first-degree criminal sexual conduct and one count of

possessing child sexually abusive material. The victim in this case is petitioner’s daughter.

Petitioner has been denied parole several times, most recently on February 21, 2020.

Petitioner seeks habeas relief on the following grounds:

I. Whether the substantive due process bars Michigan Parole Board from denying

foreign-national inmates, who are to be deported, by the reasons relating to the

safety of society while the safety of the societies outside the United States is not

part of Michigan’s interest for the purpose of parole release.

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II. Whether mandatory and automatic consequence of parole denial resulted from

failure to participate in a treatment program establishes the existence of a

protected liberty interest under Sandin [v. Comer], 515 U.S. 472 [(1995)] and

Vitek [v. Jones], 445 U.S. 480 [(1995)], and furthermore substantive due process

bars such a coercive program recommendation, which does not apply to petitioner

unless its reasons are rationally related to legitimate state interests.

III. Whether the unconstitutional conditions doctrine prohibits Parole Board from

denying the benefit of parole on a basis that the applicant refuses to meet the

condition which infringes on his constitutionally protected interests.

II. Discussion

The petition for writ of habeas corpus must be dismissed because petitioner fails to state

a claim upon which habeas relief can be granted.

A petition for a writ of habeas corpus must set forth facts that give rise to a cause of

action under federal law or it may summarily be dismissed. Perez v. Hemingway, 157 F. Supp.

2d 790, 796 (E.D. Mich. 2001). Federal courts are also authorized to dismiss any habeas petition

that appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). A

federal district court is authorized to summarily dismiss a habeas corpus petition if it plainly

appears from the face of the petition or the exhibits that are attached to it that the petitioner is not

entitled to federal habeas relief. See Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules

Governing § 2254 Cases, Rule 4, 28 U.S.C. foil. § 2254. The Sixth Circuit, in fact, long ago

indicated that they “disapprove the practice of issuing a show cause order [to the respondent]

until after the District Court first has made a careful examination of the petition.” Allen v. Perini,

424 F. 3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to screen out any

habeas corpus petition which lacks merit on its face. Id. at 141. No return to a habeas petition is

necessary when the petition is frivolous, or obviously lacks merit, or where the necessary facts

can be determined from the petition itself without consideration of a return by the state. Id; See

also Mahaday v. Cason, 222 F. Supp. 2d 918, 919 (E.D. Mich. 2002)(“Under the federal statutes

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governing habeas corpus proceedings, an answer to a petition for habeas corpus is not required

unless the court orders one.”).

After undertaking the review required by Rule 4, this Court concludes, for reasons stated

in greater detail below, that petitioner’s parole denial claims do not entitle him to habeas relief,

such that the petition must be summarily denied. See McIntosh v. Booker, 300 F. Supp. 2d 498,

499 (E.D. Mich. 2004).

As an initial matter, there is no indication that petitioner has exhausted his claims with

the state courts. However, in light of the fact that Michigan law does not permit a prisoner to

appeal an adverse decision by the Michigan Parole Board, petitioner’s failure to exhaust his

parole denial claims with the state courts is excusable. See Jackson v. Jamrog, 411 F. 3d 615,

618 (6th Cir. 2005).

Petitioner’s primary claim is that he has wrongfully been denied release on parole.

There is no constitutional right of a convicted person to be conditionally released before

the expiration of a valid sentence. Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7 (1979); see also Board of Pardons v. Allen, 482 U.S. 369, 377, n. 8

(1987). Stated more succinctly, there is no federal constitutional right to be paroled. See Gavin

v. Wells, 914 F. 2d 97, 98 (6th Cir. 1990); Lee v. Withrow, 16 F. Supp. 2d 789, 792 (E.D. Mich.

1999). The Sixth Circuit has repeatedly held that Michigan’s parole statute does not create a

liberty interest for a prisoner to be paroled prior to the expiration of his or her sentence. See

Crump v. Lafler, 657 F. 3d 393, 404-05 (6th Cir. 2011); Foster v. Booker, 595 F.3d 353, 368 (6th

Cir. 2010); Caldwell v. McNutt, 158 F. App’x. 739, 740-41 (6th Cir. 2006), Ward v. Stegall, 93

F. App’x. 805, 806-07 (6th Cir. 2004); Carnes v. Engler, 76 F. App’x. 79, 80 (6th Cir. 2003);

Sweeton v. Brown, 27 F.3d 1162, 1164-165 (6th Cir. 1994)(en banc).

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Petitioner initially argues that he is entitled to habeas relief because there is a conflict

between two of Michigan’s statutes regarding parole release. Petitioner notes that Mich. Comp.

Laws § 791.233(l)(a) indicates that a prisoner cannot be released on parole unless the Parole

Board has a reasonable assurance that the prisoner will not be a menace to society or public

safety, but that Mich. Comp. Laws § 791.234b permits the Parole Board to place a prisoner on

parole and deliver him or her to the Immigrations and Customs Enforcement (ICE) for

deportation without any evaluation as to that prisoner’s dangerousness. Petitioner appears to

argue that because he is a Japanese national, the Parole Board should have released him without

considering whether or not he would be a danger to society.

Petitioner ignores the fact that under Mich. Comp. Laws § 791.234b(2)(c)(ii), a prisoner

who has been convicted of first-degree criminal sexual conduct, as petitioner was, is ineligible to

be paroled for deportation, thus, the Parole Board was required to use the standards contained

within Mich. Comp. Laws § 791.233(l)(a) to determine petitioner’s eligibility for parole.

Petitioner further contends that the Michigan Parole Board violated his rights by ignoring

the Michigan Parole Guidelines, which gave petitioner a high probability score for being

paroled.

The fact that petitioner had been given a high probability score for being paroled did not

give rise to a protected liberty interest in petitioner being paroled. See Crump v. Lajler, 657 F. 3d

at 403-04. The Sixth Circuit in Crump noted:

While Petitioner may have been classified as a “high probability of parole,” a

probability does not equal a presumption. As defined by the Oxford English

Dictionary, probability means “[t]he property or fact of being probable, esp. of

being uncertain but more likely than not.” Oxford English Dictionary (3d ed.

2007). Everyday parlance is quite consistent with this definition: “probability”

lies at some distance from certainty. Neither can a probability, incorporating as it

does that degree of uncertainty, rise to the significance of a mandated result, or a

presumption. Even if a grant of parole were viewed as “more likely than not” to

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occur, the outcome nonetheless remains “uncertain,” and therefore “more likely

than not” cannot create a presumption’s “entitlement” to that result; there can be

no legitimate expectation or entitlement properly founded on the basis of an event

the occurrence of which is merely “likely.”

Crump, 657 F. 3d at 404 (emphasis original).

In addition, the fact that Michigan’s parole scheme requires the Michigan Parole Board

to provide substantial and compelling reasons to depart above the parole guidelines range, as

required by Mich. Comp. Laws § 791.233e, does not create a protected liberty interest in

petitioner being released on parole. See Carnes v. Engler, 16 F. App’x. at 80.

Where an inmate has no legitimate expectation of, and thus no liberty interest in,

receiving parole, as is the case here, a parole board’s failure to set an inmate’s release date in

accordance with parole guidelines does not give rise to a due process claim. Johnson v. Renico,

314 F. Supp. 2d 700, 713 (E.D. Mich. 2004); see also Coleman v. Martin, 63 F. App’x. 791, 79293 (6th Cir. 2003)(prisoner could not maintain § 1983 action based upon the erroneous scoring

of his parole guidelines).

Petitioner further contends that he is being penalized by the Michigan Parole Board for

refusing to participate in a Sex Offender Treatment Program before they will consider him for

parole release.

The Supreme Court has ruled that “States ... have a vital interest in rehabilitating

convicted sex offenders” and “acceptance of responsibility for past offenses” is a “critical first

step” in a prison’s rehabilitation program for such offenders. McKune v. Lile, 536 U.S. 24, 33

(2002).

Petitioner claims that the Parole Board’s requirement violates his First Amendment right

to freedom of speech because it compels him to speak and admit that he is a sex offender.

Numerous courts have rejected such claims, concluding that parole boards do not infringe upon a

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prisoner’s First Amendment rights by requiring them to admit their guilt in order to participate in

a sex offender treatment program as a prerequisite to parole consideration. See Newman v.

Beard, 617 F.3d 775, 781 (3d Cir. 2010); Morris v. Berghuis, No. 2:12-CV-10417, 2013 WL

1874872, at * 6 (E.D. Mich. Mar. 28, 2013)(Komives, M.J.), report and recommendation

adopted sub nom. Morris v. McQuiggin, No. 12-10417, 2013 WL 1914099 (E.D. Mich. May 8,

2013)(Cohn, J.), Ralph v. Simpson, No. 11-15097, 2012 WL 4498293, at * 5 (Aug. 16,

2012)(Whalen, M. J.), magistrate judge's report and recommendation adopted, 2012 WL

4476540 (E.D. Mich. Sept. 28, 2012)(Hood, J.); Spencer v. Atterberry, No. l:10-cv-735, 2011

WL 65866, at * 9-10 (W.D. Mich. Jan. 10, 2011).

To the extent that petitioner claims that participation in the Sex Offender Treatment

Program as a condition of his parole violates his Fifth Amendment right against selfincrimination, he would not be entitled to relief.

In McKune v. Lile, supra, the Supreme Court held that requiring a convicted sex offender

to admit responsibility for his criminal conduct as part of a prison rehabilitation program did not

violate the prisoner’s Fifth Amendment right against self-incrimination. Id. at 29, 48, In that

context, the Court noted that “rehabilitation is a legitimate penological interest that must be

weighed against the exercise of an inmate’s liberty.” Id. at 36.

The Fifth Amendment right

against self-incrimination is not implicated by the alleged compulsion on a prisoner to admit, in

order to improve his chances for parole, that he is guilty of the crime for which he is

incarcerated. Hawkins v. Morse, No. 1999 WL 1023780, * 2, 194 F.3d 1312 (6th

Cir.l999)(Table)(“[I]t cannot be said that the alleged pressure to admit that he committed the

crime for which he is incarcerated in order to improve his chances for parole forces [petitioner]

to incriminate himself in violation of the Fifth Amendment.”). The Parole Board’s consideration

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of the fact that petitioner did not participate in sex offender programing, and refuses to admit his

guilt for the crimes of which he already has been convicted, does not violate his Fifth

Amendment rights.

Petitioner lastly claims that it would violate his daughter’s right of privacy to require him

to participate in the Sex Offender Treatment Program.

A habeas petitioner lacks standing to assert the constitutional rights of other persons. See

Bowers v. Michigan, No. 16-2325, 2017 WL 1531958, at * 2 (6th Cir. Apr. 28, 2017); see also

United States v. Grigsby, 784 F. App’x 592, 595 (10th Cir. 2019)(criminal defendant in case

involving sexual exploitation of minor victim lacked standing to assert victim’s right to privacy

when moving to seal the case). In any event, petitioner does not allege that he would be required

to divulge his daughter’s name or other identifying information while participating in the Sex

Offender Treatment Program.

Petitioner does not offer any caselaw that a sex offender’s

participation in a sex offender treatment program violates a victim’s right to privacy. Petitioner

is not entitled to relief on his claim.

III. Conclusion

The Court will deny the petition for writ of habeas corpus. The Court will also deny a

certificate of appealability to petitioner. In order to obtain a certificate of appealability, a

prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists

could debate whether, or agree that, the petition should have been resolved in a different manner,

or that the issues presented were adequate to deserve encouragement to proceed further. Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a habeas petitioner’s

constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would

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find the district court’s assessment of the constitutional claims to be debatable or wrong. Id. at

484. “The district court must issue or deny a certificate of appealability when it enters a final

order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foil. §

2254.

The Court will deny petitioner a certificate of appealability because he failed to make a

substantial showing of the denial of a federal constitutional right. See also Millender v. Adams,

187 F. Supp. 2d 852, 880 (E.D. Mich. 2002). Because petitioner does not have a protected

liberty interest in being granted parole, he has failed to make a substantial showing of the denial

of a constitutional right and is therefore not entitled to the issuance of a certificate of

appealability on his claims. See Heidelberg v. Illinois Prisoner Review Bd., 163 F. 3d 1025,

1025-1027 (7th Cir. 1998). The Court further concludes that petitioner should not be granted

leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See Fed.R.App.

P. 24(a).

IV. ORDER

Based upon the foregoing, IT IS ORDERED that:

(1) The petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

(2) A certificate of appealability is DENIED.

(3) Petitioner will be DENIED leave to appeal in forma pauperis.

s/Sean F. Cox

Sean F. Cox

United States District Judge

Dated: May 19, 2020

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No. 20-1593

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MASAO KIKUCHI,

Petitioner-Appellant,

v.

CATHERINE S. BAUMAN, Warden,

Respondent-Appellee.

)

)

)

)

)

)

)

)

)

)

Oct 22, 2020

DEBORAH S. HUNT, Clerk

ORDER

Before: COOK, Circuit Judge.

Masao Kikuchi, a pro se Michigan prisoner and citizen of Japan, appeals the judgment of

the district court summarily denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

Kikuchi has fded an application for a certificate of appealability (“COA”). See Fed. R. App.

P. 22(b)(1).

In 2007, Kikuchi pleaded guilty to one count of first-degree criminal sexual conduct against

his daughter and possessing child sexually abusive material. The trial court sentenced Kikuchi to

concurrent terms of ten to thirty years for the criminal-sexual-conduct charge and ten to twenty

years for the abusive-material charge. Kikuchi did not appeal.

In 2013, Kikuchi filed a motion for relief from judgment in state court, asserting that trial

counsel was ineffective during the plea proceedings, his plea was not knowing or voluntary, and

his sentence was excessive. The trial court denied the motion. The Michigan Court of Appeals

and Michigan Supreme Court both denied leave to appeal. See People v. Kikuchi, No. 316979

(Mich. Ct. App. Oct. 18, 2013) (unpublished), Iv. appeal denied, 846 N.W.2d 562 (Mich. 2014).

Kikuchi filed a second motion for relief from judgment in 2014 that was also unsuccessful.

On February 21, 2020, Kikuchi was denied parole for the fourth time by the Michigan

Parole Board on the basis that he “refuses to participate in programming ordered by the department

No. 20-1593

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to reduce the prisoner’s risk [to reoffend].” In April 2020, he filed this § 2254 habeas petition

challenging that denial and raising the following issues:

I. Whether the substantive due process bars Michigan Parole Board from denying

foreign-national inmates, who are to be deported, by the reasons relating to the

safety of society while the safety of the societies outside the United States is not

part of Michigan’s interest for the purpose of parole release.

II. Whether mandatory and automatic consequence of parole denial resulted from

failure to participate in a treatment program establishes the existence of a protected

liberty interest under Sandin [v. Conner], 515 U.S. 472 [(1995)] and Vitek [v.

Jones], 445 U.S. 480 [(1980)], and furthermore substantive due process bars such

a coercive program recommendation, which does not apply to petitioner unless its

reasons are rationally related to legitimate state interests.

III. Whether the unconstitutional conditions doctrine prohibits Parole Board from

denying the benefit of parole on a basis that the applicant refuses to meet the

condition which infringes on his constitutionally protected interests.

Kikuchi asked that he be granted parole immediately and released to the custody of immigration

officials for his removal to Japan.

The district court summarily dismissed Kikuchi’s petition under Rule 4 of the Rules

Governing § 2254 Cases. The district court explained that there is no constitutional right to be

released on parole and, in the absence of an expectation of receiving parole, even a parole board’s

failure to abide by its own guidelines does not give rise to a due process violation. Further, the

district court found that the parole board’s requirement that Kikuchi admit that he is a sex offender

did not violate his constitutional rights and that he lacked standing to assert a violation of his

daughter’s right to privacy. The district court therefore denied his habeas corpus petition and

denied a COA.

Kikuchi now seeks a COA from this court. In his application, he asserts that the district

court ignored the grounds he raised and replaced them with other grounds. He explains that he

sought to raise a substantive due process claim that his denial of release on parole was not

rationally related to state interests because he is scheduled to be deported upon his release from

prison and would not pose a danger to the citizens of Michigan; a claim that the automatic denial

of parole to a prisoner who does not complete a required treatment program creates a liberty

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interest; and a claim that he had a First Amendment right to avoid disclosure of “private sexual

information” between him and his daughter to other inmates as part of a treatment program. He

also argues that these arguments were sufficient to grant his petition for habeas relief.

To obtain a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). He may do so by demonstrating that “reasonable

jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)). “[A] COA does not require a showing that the appeal will succeed,” id. at 337; it is

sufficient for a petitioner to demonstrate that “the issues presented are adequate to deserve

encouragement to proceed further.” Id. at 327 (citing Slack, 529 U.S. at 484).

The mles governing § 2254 cases provide that the court shall promptly examine a petition

to determine “[i]f it plainly appears from the petition and any attached exhibits that the petitioner

is not entitled to relief.” Rules Governing § 2254 Cases, Rule 4. If the court determines that the

petitioner is not entitled to relief, the court shall summarily dismiss the petition. McFarland v.

Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any habeas

petition that appears legally insufficient on its face . ...”).

Habeas relief is available only to prisoners who are in custody in violation of the

Constitution or laws of the United States. 28 U.S.C. § 2254(a). As a convicted prisoner, however,

Kikuchi has no inherent constitutional right to parole. See Bd. of Pardons v. Allen, 482 U.S. 369,

373 (1987); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Further,

the laws of Michigan do not create a liberty interest in parole. Sweeton v. Brown, 27 F.3d 1162,

1164-65 (6th Cir. 1994) (en banc); see also Bell v. Anderson, 301 F. App’x 459, 461 (6th Cir.

2008) (citing Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235

(6th Cir. 1991)) (noting that “[w]hen an inmate asserts a right to parole premised upon substantive

due process . . . the claim involves a purported liberty interest”). This is true even if a prisoner is

classified as having a “high probability of parole.” See Crump v. Lafler, 657 F.3d 393, 404 (6th

Cir. 2011). Without any right to parole, Kikuchi cannot state a claim that the procedures used by

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the Michigan Parole Board to evaluate him for parole, or the substantive reasons for the denial of

parole itself, violated his right to due process. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983).

Further, as the district court explained, any directive by the parole board that Kikuchi

participate in the Sex Offender Treatment Program as a prerequisite to consideration for parole did

not result in an equal protection violation, a due process violation, a Fifth Amendment violation,

or an Eighth Amendment violation of Kikuchi’s constitutional rights. See Scott v. Ghee, No. 953202, 1995 WL 603281, at *1 (6th Cir. Oct. 12, 1995) (citing cases). Likewise, his rights under

the First Amendment were not implicated. See Newman v. Beard, 617 F.3d 775, 781 (3d Cir.

2010). Kikuchi’s claims do not deserve encouragement to proceed further.

Reasonable jurists would not debate that the district court did not err by dismissing

Kikuchi’s petition under Rule 4 of the Rules Governing § 2254 Cases. His application for a COA

is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

Additional material

from this filing is

available in the

Clerk's Office.