Michael Mileski v. Eddie Washington

Filing

OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr; Jeffrey S. Sutton and Raymond M. Kethledge (authoring) , Circuit Judges.

Case: 11-1069

Document: 006111264027

Filed: 04/04/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0357n.06
No. 11-1069
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED

Apr 04, 2012
LEONARD GREEN, Clerk

MICHAEL MILESKI,
Plaintiff-Appellant,
v.
COL. EDDIE WASHINGTON, in his capacity as
Director of the Michigan State Police,
Defendant-Appellee.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

Before: MARTIN, SUTTON, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Michael Mileski seeks his removal from Michigan’s sex
offender registry. He argues that the catch-all provision of the Sex Offender Registration Act, Mich.
Comp. Laws § 28.722(e)(xi), is facially unconstitutional. The district court granted summary
judgment in favor of the defendant, Colonel Washington. We affirm.
I.
During a stormy August night in 2002, Battle Creek police officers approached a naked 17year-old girl who was running down a residential street. She told them that Mileski, wielding a
knife, had chased her out of his house. Mileski, who was 30 at the time, had picked up the girl that
night. They shared a half-pint of vodka and engaged in vaginal and anal sex. When Mileski found

Case: 11-1069

Document: 006111264027

Filed: 04/04/2012

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No. 11-1069
Mileski v. Washington
out about her age, they began to argue. Eventually he threatened her with a knife and threw her out
of his house.
Mileski was convicted of criminal sexual conduct in Michigan state court, but his conviction
was reversed because of an evidentiary error. On remand, Mileski pleaded no contest to the charge
of assault with intent to do great bodily harm. See Mich. Comp. Laws § 750.84. Mileski stipulated
that his plea was based in part on facts set forth in the police complaint, in which the girl stated that
he had threatened her with a knife during sex. The presentence report recommended that Mileski
register as a sex offender. Over Mileski’s objection, the state trial court determined that his offense
fell within the catch-all provision of the Michigan Sex Offender Registration Act, which required
him to register as a sex offender for 25 years. See Mich. Comp. Laws § 28.722(e)(xi). (The Act has
since been amended, and the current catch-all provision is § 28.722(s)(vi).) The Michigan Court of
Appeals affirmed Mileski’s sentence.
Mileski then brought this action in federal court under 42 U.S.C. § 1983. He seeks a
declaratory judgment that the catch-all provision is facially unconstitutional, arguing that it violates
his substantive and procedural due process rights and denies him equal protection of the law.
Mileski also seeks injunctive relief, asking the court to order Mileski’s name removed from the
registry. The district court granted summary judgment to the defendant. This appeal followed.
II.
“We review de novo the district court’s grant of summary judgment.” Cherry Hill Vineyards,
LLC v. Lilly, 553 F.3d 423, 431 (6th Cir. 2008).

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Case: 11-1069

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Mileski argues that the catch-all provision, on its face, violates his right to procedural due
process. In support, he contends that the statute provides no guidance as to who determines whether
an offense fits within the provision. And he says that the statute fails to state whether a court should
hold a hearing before requiring an offender to register.
The statute requires that a defendant register as a sex offender for “[a]ny other violation of
a law of this state . . . that by its nature constitutes a sexual offense against an individual who is less
than 18 years of age.” Mich. Comp. Laws § 28.722(e)(xi). The sentencing court determines if the
crime fits within the catch-all provision and “shall include the basis for that determination on the
record.” Mich. Comp. Laws § 769.1(13). Courts should consider the particular facts of a violation
when determining whether it fits within the provision. See People v. Anderson, 772 N.W.2d 792,
795 (Mich. Ct. App. 2009)
Here, Mileski’s presentence report, which he received before his sentencing, recommended
his placement on the registry. And a state court heard his argument against registration. The court
considered the specific facts of Mileski’s offense—that he had sex with a 17-year-old girl and
threatened her with a knife—and found that the offense “by its nature” constituted a sexual offense
against a minor. The court stated the basis for its determination on the record, and the Michigan
Court of Appeals affirmed the lower court’s decision. Mileski received all the process he was due.
Mileski next argues that he has a substantive due process right not to register when he was
convicted of an offense that lacks a sexual element on its face. But we have already rejected this
argument. See Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 500 (6th Cir. 2007).

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Case: 11-1069

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Mileski also argues that the statute is void for vagueness, since it lacks standards as to what
“by its nature” constitutes a sexual offense against a minor. But the statute applies to his own
conduct clearly enough, so his vagueness challenge fails. See Parker v. Levy, 417 U.S. 733, 756
(1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for
vagueness”).
Finally, Mileski argues that, by treating him differently than other people convicted of assault
with intent to do great bodily harm, the statute denies him equal protection of the laws. That claim
too is meritless, since the statute’s application to sex offenders plainly is not irrational. See Cutshall
v. Sundquist, 193 F.3d 466, 482-83 (6th Cir. 1999).
The district court’s judgment is affirmed.

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