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Ward v. Wolfenbarger

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

August 7, 2019

MICHAEL CHARLES WARD, Petitioner,
v.
HUGH WOLFENBARGER, Respondent,

          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, 350)

          HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE

         This 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.

         For the reasons that follow, the Court modifies the terms and conditions of the original grant of the petition for writ of habeas corpus.

         I. Background

         On June 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.

         Petitioner 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.

         The 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.

         Petitioner 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 Petitioner.

         In 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.

         Nonetheless, 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).

         The 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).

         The Sixth Circuit remanded the matter to this Court for further findings of ...


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