Michael Ward v. Hugh Wolfenbarger

342 F. App'x 134
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 17, 2009
Docket07-2424
StatusUnpublished
Cited by8 cases

This text of 342 F. App'x 134 (Michael Ward v. Hugh Wolfenbarger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael Ward v. Hugh Wolfenbarger, 342 F. App'x 134 (6th Cir. 2009).

Opinions

BOYCE F. MARTIN, JR., Circuit Judge.

The district court denied Michigan prisoner Michael Ward’s pro-se “Emergency Motion to Re-Open Case and Grant Immediate Habeas Corpus Release from Confinement.” We AFFIRM.

I.

Michael Ward is a Michigan prisoner serving a life sentence for a 1981 cocaine conviction. In 2003, he filed a habeas petition in federal district court alleging that the presence of two 1971 drug convictions on his record “harm[ed] his chances for parole.” The district court agreed, and held that the State had deprived Ward of his Sixth Amendment right to the assistance of counsel in connection with his 1971 convictions because the trial court did not advise him of his rights to appeal and to appellate counsel. Ward v. Wolfen-barger, 323 F.Supp.2d 818 (E.D.Mich.2004) (“Ward I ”). The court ordered his application for writ of habeas corpus “conditionally granted [u]nless the state takes immediate action to afford petitioner a new appeal of right with counsel....” Michigan appealed to this Court, and Ward asked the district court to reconsider or clarify its order.

The district court granted Ward’s motion for reconsideration and clarification. Ward v. Wolfenbarger, 340 F.Supp.2d 773, 778 (E.D.Mich.2004) (“Ward II”). The court reiterated its earlier finding that the 1971 convictions were unconstitutionally obtained and went on to find that “these 1971 convictions are being used, in part, to deny petitioner parole on his 1981 conviction.” Id. at 776. The district court stated that Ward was “entitled to have these 1971 convictions and all of the effects stemming from them completely expunged from his record.” Id. at 776-77. It ordered the Clerk of the Circuit Court for [136]*136Huron County to expunge the conviction and to forward a copy of the Ward II order “to any person or agency that was notified of [Ward’s] arrest or conviction involved with these offenses.” Id. at 777.

In November 2004, while Ward’s “Motion to Hold State of Michigan/Huron County Circuit Court in Contempt ... and for a Special Order of Specific Direction” was pending, the Parole Board granted his parole. Following Ward’s release, the State voluntarily withdrew its appeal of the order in Ward I and the district court dismissed Ward’s contempt motion as moot.

Ward’s parole was short-lived; he was rearrested in 2005 and charged with accosting children for immoral purposes, indecent exposure, selling or furnishing alcohol to a minor, and malicious destruction of a building after he allegedly attended a hotel party involving the perilous combination of teenagers, alcohol, and pornography. The State eventually dropped the criminal charges against him, but Ward remained in prison while the Parole Board considered the merits of several parole violation charges in connection with the incident.

Before the Board could rule, Ward filed an “Emergency Motion to Re-Open Case and Grant Immediate Habeas Corpus Release from Confinement” in federal district court in May 2006, arguing that the State had failed to comply fully with the September 2004 order in Ward II by leaving references to Ward’s 1971 drug convictions in his parole file. In support of his motion, Ward attached Michigan Department of Corrections documents including a “Basic Information Sheet” that referenced his 1971 convictions without any accompanying notation signifying their expungement. This motion was still pending when, in July 2006, the Michigan Parole Board formally revoked Ward’s parole after he signed an agreement pleading “no contest” to some of the alleged parole violations. In exchange, the Department of Corrections Office of Field Programs recommended an eighteen-month revocation continuance, which resulted in a reconsideration of his parole eligibility in September 2007. The agreement stated that the recommendation was “not binding” on the Parole Board and that “[t]he final decision of the Parole Board may exceed the recommendation.”

Ward moved for summary judgment on his motion to reopen his habeas case. The district court then ordered the State to show cause “why the State of Michigan has failed to fully comply with the Court’s order directing the expungement of 1971 convictions for Possession of LSD and Possession of Marijuana from [Ward’s] records.” After the State responded, the district court denied both Ward’s motion to reopen his habeas case, Ward v. Wolfenbarger, 2007 WL 1009729 (E.D.Mich. Mar.29, 2007) and his later motion for reconsideration, Ward v. Wolfenbarger, No. 03-72701/7258 (E.D.Mich. Oct. 23, 2007). In August 2007, contrary to the Office of Field Program’s recommendation that Ward be paroled in September 2007, the Parole Board stated it had “no interest in taking action at this time” and scheduled Ward’s next parole hearing for September 2012.

Ward filed a motion for a certificate of appealability and permission to proceed in forma pauperis in this Court in November 2007. He sought review of the district court’s denial of his motion to reopen his habeas petition. The Court issued a certificate of appealability on April 7, 2008 and appointed him counsel. This appeal followed.

II.

A district court retains jurisdiction in a habeas proceeding “to determine whether [137]*137a party has complied with the terms of a conditional order.” Patterson v. Haskins, 470 F.3d 645, 667 (6th Cir.2006) (citation omitted). “[T]he conditional nature of the writ also places within the district court the power to determine that its order has been substantially complied with and release is not warranted.” McKitrick v. Jef-freys, 255 Fed.Appx. 74, 76 (6th Cir.2007). When a district court does not hold an evidentiary hearing or make factual findings as to the State’s actions since the grant of a conditional writ, we “conduct a de novo review of the district court’s legal conclusion that the state has complied with the terms of the writ.” Patterson, 470 F.3d at 668.

Here, the same district court judge who issued the conditional writ in Ward II later concluded that Ward was not entitled to further enforcement of it. The court’s 2004 order was predicated on its finding that Ward’s “1971 convictions are being used, in part, to deny [Ward] parole release on his 1981 conviction.” Ward II, 340 F.Supp.2d at 776. The remedy the court fashioned in Ward II was this:

IT IS FURTHER ORDERED THAT Petitioner’s 1971 convictions for Possession of LSD and Possession of Marijuana be expunged from his records by the Clerk of the Circuit Court for Huron County, Michigan in accordance with the terms outlined in this opinion.

Id. at 778. In the accompanying memorandum opinion, the court described that the 1971 convictions were “vacated and the record of conviction shall be expunged,” id. at 777, and it further directed the Clerk of the Circuit Court of Huron County 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.

In later assessing Ward’s enforcement motion — brought after Ward had been granted parole and later rearrested — the court was not convinced that the State was still impermissibly considering the now-expunged convictions.

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Bluebook (online)
342 F. App'x 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-ward-v-hugh-wolfenbarger-ca6-2009.