                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0357n.06

                                           No. 11-1069
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  Apr 04, 2012
                                                                                LEONARD GREEN, Clerk
MICHAEL MILESKI,                                          )
                                                          )
       Plaintiff-Appellant,                               )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR
v.                                                        )    THE WESTERN DISTRICT OF
                                                          )    MICHIGAN
COL. EDDIE WASHINGTON, in his capacity as                 )
Director of the Michigan State Police,                    )
                                                          )
       Defendant-Appellee.                                )
                                                          )




       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 17-

year-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
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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Mileski v. Washington

        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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Mileski v. Washington

        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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