Ward v. Wolfenbarger

Filing 418

IT IS HEREBY ORDERED: (1)The motion for an extension of time to file a motion for a certificate of appealability and leave to appeal in forma pauperis 404 is GRANTED; (2) The motion to strike 407 is DENIED; (3) The motion for reconsideration [408 ] is DENIED; (4)The motion for bond reduction 410 is DENIED;(5) The motion to order the Michigan Department of Corrections to photocopy requested portions of petitioners prison file 411 is GRANTED;(6) The motion to show cause 413 is GRANTED. R espondent has thirty days to show whether or not the Michigan Department of Corrections has fully complied with the order to remove all references to petitioners 1971 convictions from their file; (7)The remaining motions 412 , 414 are DENIED WITHOUT PREJUDICE signedby District Judge Arthur J. Tarnow. (McColley, N)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,
Petitioner,

Civil Nos. 03-CV-72701-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
HUGH WOLFENBARGER,
Respondent,
____________________________/

OPINION AND ORDER GRANTING THE MOTION FOR AN EXTENSION OF
TIME TO FILE A CERTIFICATE OF APPEALABILITY AND LEAVE TO
APPEAL IN FORMA PAUPERIS (ECF No. 404), DENYING THE MOTION TO
STRIKE (ECF No. 407), DENYING THE MOTION FOR RECONSIDERATION
(ECF No. 408), DENYING THE MOTION FOR BOND (ECF No. 410),
GRANTING THE MOTION TO ORDER THE MICHIGAN DEPARTMENT OF
CORRECTIONS TO PHOTOCOPY DOCUMENTS FROM PETITIONER’S
INSTITUTIONAL FILE (ECF No. 411), GRANTING THE MOTION FOR THE
RESPONDENT TO SHOW CAUSE (ECF No. 413), AND DENYING WITHOUT
PREJUDICE PETITIONER’S REMAINING MOTIONS (ECF Nos. 412, 414)
Pending before the Court are numerous motions filed by petitioner.
I. Background
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
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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.
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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).
On March 12, 2020, this Court denied several motions filed by petitioner
although the Court granted petitioner’s motion to order the Michigan Department
of Corrections to permit petitioner to review his prison files. Of relevance to this
order, the Court denied petitioner’s motion for bond and his motion to consolidate
this case with Case # 19-12543, in which petitioner challenges the denial of
parole in his 1981 case. (ECF No. 403).
II. Discussion
A. The motion for an extension of time to file a certificate of
appealability and leave to appeal in forma pauperis is GRANTED.
A court has the discretion to grant a habeas petitioner an extension of time
to file a motion for a certificate of appealability. See Maile v. Lafler, No. 04-CV74806-DT, 2006 WL 1374045, at * 1 (E.D. Mich. May 17, 2006). In light of the
ongoing issues with the Coronavirus Pandemic, the Court grants petitioner a
sixty day extension of time to file his motion for a certificate of appealability and a
motion to proceed in forma pauperis on appeal.

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B. The motion to strike is DENIED.
Petitioner filed a motion to strike respondent’s notice of compliance.
Petitioner claims that the Michigan Department of Corrections has failed to redact
all references to his 1971 expunged convictions from his prison files.
Although Fed. R. Civ. P. 12 allows for the striking of pleadings, a response
to a petition for writ of habeas corpus is not an answer within the meaning of Fed.
R. Civ. P. 12. See Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970). Petitioner
cannot avail himself of this provision to strike any portion of the responsive
pleading or other documents filed by respondent.
C. The motion for reconsideration is DENIED.
Petitioner moves for this Court to reconsider its earlier order to deny his
request to consolidate this case with his parole denial case in # 19-12543.
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 at 550-51 (citing L.R. 7.1(g)(3)). A motion for reconsideration which
merely presents “the same issues ruled upon by the Court, either expressly or by
reasonable implication,” shall be denied. Ward, 340 F. Supp. 2d at 774.

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Petitioner’s motion is denied, because petitioner is once again presenting
issues which were already ruled upon by this Court, either expressly or by
reasonable implication, when the Court denied his prior request to consolidate.
D. The motion for bond is DENIED.
Petitioner moved for release on bond.
Petitioner is no longer in custody on his 1971 convictions. This Court has
no power in this case to order his release on his 1981 conviction for which he is
currently incarcerated. Petitioner is currently separately challenging the denial of
parole in his 1981 conviction in Case # 19-12543. This Court has ordered
respondent to respond to petitioner’s bond motion in that case and will decide
after receiving that answer whether or not to release petitioner on bond.
E. The motion to order photocopies of the prison file is GRANTED.
Petitioner claims that he has reviewed his prison file as per this Court’s
prior ruling and has discovered numerous references to his 1971 expunged
convictions which he alleges remains in his file. Petitioner has asked the
M.D.O.C. to make copies of these documents so that he can present them to the
Court to show that the respondent has not complied with this Court’s order.
A court has the power to order a department of corrections to photocopy
documents or materials necessary for a prisoner to prosecute a legal action. See
Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir.1991)(finding that “litigation
necessarily requires some means of accurate duplication because the courts and
the parties need to refer to the same documents”); Allen v. Sakai, 48 F.3d 1082,
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1089 (9th Cir.1994)(upholding prisoner’s right to have photocopies of court
papers); Giles v. Tate, 907 F. Supp. 1135, 1138 (S.D. Ohio 1995)(“although a
prisoner does not have an unlimited right to free copying, some reasonable
means of access to a photocopy machine will be necessary to protect an
inmate’s right of access to the courts”). This Court orders respondent to
photocopy those portions of petitioner’s prison file that are requested by
petitioner, to permit him to attempt to show that the M.D.O.C. has not complied
with this Court’s order. Respondent has thirty days to comply with the order.
F. The motion for an order to show cause is GRANTED.
Petitioner has moved for this Court to show cause respondent whether or
not the Michigan Department of Corrections has complied with this Court’s prior
order to expunge all references of the 1971 convictions from petitioner’s file.
A district court that grants a conditional writ of habeas corpus retains
jurisdiction to execute a lawful judgment which grants a writ of habeas corpus
when it becomes necessary. See Gentry v. Deuth, 456 F. 3d 687, 692 (6th Cir.
2006). If, on the other hand, the respondent meets the terms of the habeas
court's condition, thereby avoiding the writ’s actual issuance, the habeas court
does not retain any further jurisdiction over the matter. Id.
Respondent is ordered to show cause within thirty days of this order
whether or not the M.D.O.C. has fully complied with the Court’s prior order of
expungement.

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G. The remaining motions are denied without prejudice.
Petitioner in his remaining motions seeks to reopen the case and/or obtain
relief from judgment, claiming that respondent failed to comply with the Court’s
order.
Petitioner has made no showing at this time that the respondent did not
comply with the terms of this Court’s order to grant relief. Accordingly, there is
no basis at this time to reopen the case. The motions are denied without
prejudice.
IT IS HEREBY ORDERED that:
(1) The motion for an extension of time to file a motion for a certificate of
appealability and leave to appeal in forma pauperis (ECF No. 404) is
GRANTED.
(2) The motion to strike (ECF No. 407) is DENIED.
(3) The motion for reconsideration (ECF No. 408) is DENIED.
(4) The motion for bond reduction (ECF No. 410) is DENIED.
(5) The motion to order the Michigan Department of Corrections to
photocopy requested portions of petitioner’s prison file (ECF No. 411) is
GRANTED.
(6) The motion to show cause (ECF No. 413) is GRANTED. Respondent
has thirty days to show whether or not the Michigan Department of
Corrections has fully complied with the order to remove all references to
petitioner’s 1971 convictions from their file.
(7) The remaining motions (ECF Nos. 412,414) are DENIED WITHOUT
PREJUDICE.
_s/Arthur J. Tarnow___________
Hon. Arthur J. Tarnow
United States District Judge
Dated: May 21, 2020

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