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Ward v. Wolfenbarger

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

January 9, 2020

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

         OPINION AND ORDER DENYING THE MOTION FOR A COPY OF THE COMPLETE FILE/RECORD (ECF NO. 356), DENYING THE MOTION FOR RECONSIDERATION (ECF NO. 357), DENYING AS MOOT THE MOTION FOR LEAVE TO EXCEED PAGE LIMIT ON MOTION FOR RECONSIDERATION (ECF NO. 358), DENYING THE RENEWED MOTION FOR THE APPOINTMENT OF COUNSEL (ECF NO. 359), CONSTRUING THE MOTION FOR COURT CERTIFICATION AS A TIMELY FILED NOTICE OF APPEAL AND DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION (ECF NO. 365) TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, DENYING AS MOOT THE MOTION FOR AN EXTENSION OF TIME TO FILE A NOTICE OF APPEAL (ECF NO. 365), GRANTING THE MOTION TO WITHDRAW THE HABEAS PETITION (ECF NO. 369), DENYING AS MOOT THE MOTION TAKE ADJUDICATIVE ACTION ON STRICKEN MOTIONS (ECF NO. 371), DENYING THE MOTION TO SANCTION RESPONDENT (ECF NO. 373), GRANTING IN PART RESPONDENT'S MOTION FOR RELIEF FROM JUDGMENT (ECF NO. 375), AND DENYING THE MOTION TO STRIKE THE MOTION FOR RELIEF FROM JUDGMENT (ECF NO. 378).

          Hon. Arthur J. Tarnow United States District Judge

         Pending before the Court are numerous motions filed by petitioner and respondent.

         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.

         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). 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. Id. 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.

         On August 7, 2019, following a remand by the United States Court of Appeals for the Sixth Circuit, this Court modified the terms of the grant of the writ of habeas corpus to include the following conditions:

The State of Michigan shall remove all references to the expunged 1971 convictions from any and all records submitted to the Michigan Parole Board. The Michigan Department of Corrections shall also remove any references to the expunged 1971 convictions from any records regarding Petitioner's security and institutional classification. The M.D.O.C. shall reassign Petitioner an “A” prefix to his institutional record. A certificate of compliance shall be filed with this Court within 30 days of the receipt of this order.

         Ward v. Wolfenbarger, No. 03-CV-72701-DT, 2019 WL 3714517, at * 4 (E.D. Mich. Aug. 7, 2019).

         On September 6, 2019, respondent filed a notice of compliance with the Court's order. (ECF No. 364).

         II. Discussion

         A. The motion for a complete copy of the file/record (ECF No. 356) is DENIED.

         Petitioner has requested the Court to provide him with the entire court file in his case, going back to 2004.

         28 U.S.C. § 2250 states:

“If on any application for a writ of habeas corpus an order has been made permitting the petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office as may be required by order of the judge before whom the application is pending.”

         As of today, there are currently 381 docket entries in petitioner's case, going back to when he initially filed his habeas petition in 2003. The Court will deny petitioner's motion for the entire record, because petitioner has not specified which of the documents or pleadings in the record are needed by him, particularly when this Court has granted petitioner all the relief he is entitled to in this case. A “blanket and noncommittal request” for documents by a habeas petitioner is insufficient to enable a federal court to make a determination of necessity pursuant to § 2250. See Cassidy v. United States, 304 F.Supp. 864, 867 (E.D Mo. 1969); See also Morton v. Warren, No. 2008 WL 4386840, * 5 (E.D. Mich. Sept. 24, 2008); See also United States v. Chambers, 788 F.Supp. 334, 338 (E.D. Mich. 1992)(federal criminal defendant not entitled to production of trial transcripts on his “bald assertion” that he needed them to prepare § 2255 post-conviction motion to vacate sentence). In light of the conclusory nature of petitioner's motion for the production of the entire record, the motion is denied. Id.

         B. The motion for reconsideration (ECF No. 357) is DENIED.

         Petitioner has moved for reconsideration of this Court's opinion and order modifying the terms of the grant of the writ of habeas corpus. Petitioner in his motion and in several supplemental briefs argues that this Court should have ordered his release on his 1981 possession with intent to deliver over 650 grams of cocaine conviction for which he is currently incarcerated.

         U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for reconsideration. A motion for reconsideration should be granted if the movant demonstrates a palpable defect by which the court and the parties have been misled and that a different disposition of the case must result from a correction thereof. Ward v. Wolfenbarger, 340 F.Supp.2d at 774; Hence v. Smith,49 F.Supp.2d 547, 550-51 (E.D. Mich. 1999 (citing L.R. 7.1(g)(3)). A motion for reconsideration which merely presents “the ...


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