United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ON REMAND MODIFYING THE TERMS OF
THE GRANT OF THE WRIT OF HABEAS CORPUS AND RESOLVING
PETITIONER'S PENDING MOTIONS (Doc. 347, 349,
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
matter is on remand from the United States Court of Appeals
for the Sixth Circuit. Petitioner seeks enforcement of this
Court's order of September 13, 2004 granting petitioner
habeas relief on his 1971 convictions for possession of
marijuana, M.C.L.A. 335.153; and possession of lysergic acid
diethylamide (LSD), M.C.L.A. 335.341(4)(c) and ordering that
these two convictions be expunged from his record.
reasons that follow, the Court modifies the terms and
conditions of the original grant of the petition for writ of
30, 2004, this Court granted a writ of habeas corpus to
Petitioner, on the ground that he had been deprived of his
right to appeal and his Sixth Amendment right to appellate
counsel on his 1971 convictions, because the state trial
court failed to advise Petitioner that he had a right to
appeal and had a right to the appointment of appellate
counsel if he was indigent. See Ward v.
Wolfenbarger, 323 F.Supp.2d 818, 828-30 (E.D. Mich.
2004). The Court conditioned the granting of the writ upon
respondent taking immediate action to afford Petitioner an
appeal of right to the Michigan Court of Appeals with the
assistance of appellate counsel. Id.
filed a motion for reconsideration and/or clarification of
the Court's opinion and order. On September 14, 2004, the
Court granted Petitioner's motion for reconsideration and
ordered that an unconditional writ of habeas corpus issue in
this case. See Ward v. Wolfenbarger, 340 F.Supp.2d
773 (E.D. Mich. 2004). This Court believed that it erred in
granting a conditional writ of habeas corpus, rather than an
unconditional writ of habeas corpus, in light of the
prejudice that Petitioner would suffer from any further
delays in adjudicating his claims in the state appellate
courts. Petitioner had been deprived of his Sixth Amendment
right to the assistance of counsel on appeal when he was not
advised on the record by the state trial court of his right
to appeal or his right to the appointment of appellate
counsel. Thirty three years had elapsed since the time of
Petitioner's conviction. Because of the substantial
delay, this Court determined that there was no way that
granting Petitioner a new appeal of right with the Michigan
Court of Appeals would vitiate any prejudice arising from the
denial of Petitioner's right to appeal his 1971
convictions. Id. at 775-76.
Court declined to order Petitioner's release from
incarceration on these convictions, because the sentences on
his 1971 convictions had expired. Instead, the Court
concluded that Petitioner was entitled to have these 1971
convictions and all of the effects stemming from them
expunged from his record. Ward, 340 F.Supp.2d at
776-77. The Court vacated the judgment of conviction against
Petitioner for the offenses of possession of LSD and
possession of marijuana from the Huron County Circuit Court
from January 20, 1971 and ordered that the record of
conviction be expunged. Id. The Court further
ordered the Clerk of the Circuit Court of Huron County,
Michigan to forward a copy of this Court's order to any
person or agency that was notified of Petitioner's arrest
or conviction involved with these offenses. Id.
has several times come before this Court, claiming that
respondent failed to fully comply with the terms of the writ.
Petitioner specifically claimed that his 1971 convictions
were being used to deny him parole on his 1981 conviction for
possession with intent to deliver 650 or more grams of
cocaine, contrary to M.C.L.A. 333.7401 (1) and (2)(a)(i).
This Court several times denied Petitioner permission to
reopen his case, concluding that Petitioner presented
insufficient evidence to show that the Michigan Parole Board
(MPB) was using these 1971 convictions to deny parole to
2009, the Sixth Circuit affirmed one of the Court's
decisions to deny Petitioner permission to reopen his habeas
petition. See Ward v. Wolfenbarger, 342 Fed.Appx.
134 (6th Cir. 2009); cert. den. 130 S.Ct. 1291
(2010). The Sixth Circuit concluded at that time that
Petitioner had offered “nothing other than
speculation” that the Michigan Parole Board took into
account the vacated 1971 convictions in a way that prejudiced
his shot at parole. Id., at 137.
on July 14, 2014, after this Court had again denied
Petitioner's request to enforce the writ, this case was
remanded by another panel of the United States Court of
Appeals from the Sixth Circuit for a determination of whether
Petitioner's 1971 convictions, which this Court had
ordered expunged, were still being used by the Michigan
Department of Corrections (M.D.O.C.) to classify Petitioner
and to determine his parole eligibility on his 1981
conviction. Ward v. Wolfenbarger, No. 10-2287/2313,
11-2043 (6th Cir. July 14, 2014)(ECF 162). The Sixth Circuit
noted that both parties had presented evidence to that court
involving several documents from the M.D.O.C. concerning
Petitioner's current incarceration on his 1981
conviction. These documents still listed Petitioner's
1971 convictions and also list Petitioner as having a
“B” prefix, suggesting that the M.D.O.C. is still
using the 1971 convictions against Petitioner in establishing
his security classification. Id. at * 3-4 (ECF 162,
Pg ID 22478-79).
Sixth Circuit then noted the following:
We will not consider new facts in the first instance on
appeal and deny the motions to supplement the record on
appeal. See Fed. R. App. P. 10(a); United States v.
Husein, 478 F.3d 318, 335-36 (6th Cir. 2007).
Nonetheless, these documents raise unanswered factual
questions about whether Ward is still being classified based
on the expunged 1971 convictions and whether his eligibility
for parole has been adversely affected by the expunged
convictions. The problem, as we see it, stems in part from
the wording of the district court's order in Ward
II [340 F.Supp.2d 773 (E.D. Mich. 2004], which did not
explicitly instruct the State of Michigan to remove
references to the expunged convictions in any document that
might be used against Ward or instruct the State to
reclassify him without using the expunged convictions.
However, although the State of Michigan was not specifically
ordered to remove the notation from documents viewable by the
MPB [Michigan Parole Board], the State was certainly on
notice that it was expected to do so and that it was under a
duty to ensure that Ward suffered no collateral consequences
from the expunged convictions. See Ward III [342 F.
App'x.] at 136-37.
Id. at * 4 (ECF 162, Pg ID 2579).
Sixth Circuit remanded the matter to this Court for further
findings of ...