Ward v. Wolfenbarger
Filing
454
OPINION and ORDER DENYING THE MOTION FOR BOND PENDING APPEAL 449 filed by Michael Ward. Signed by District Judge Arthur J. Tarnow. (McColley, N)
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 DENYING THE MOTION
FOR BOND PENDING APPEAL (ECF No. 449)
Before the Court is Petitioner’s motion for bond pending appeal. For the
reasons that follow, the motion is DENIED.
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 for possession of LSD and marijuana,
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.
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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.
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.
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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. (ECF No. 403).
On May 21, 2020, this Court issued an order granting and denying several
motions. Of relevance to this case, the Court ordered respondent to photocopy
portions of petitioner’s prison file for him to review to determine whether all
references to petitioner’s 1971 convictions had been expunged and his
classification changed from a B prefix to an A prefix. The Court granted
petitioner’s motion to show cause and ordered respondent to show whether or
not they had complied with the modified conditional writ. (ECF No. 418).
Respondent filed a response to the show cause order (ECF No. 423) and
petitioner filed a reply (ECF No. 426).
On September 23, 2020, this Court granted petitioner an extension of time
to file a motion for a certificate of appealability and for leave to appeal in forma
pauperis. The Court denied petitioner’s remaining motions. (ECF No. 443). The
Court directed petitioner to file all future pleadings in the Sixth Circuit. (Id.) The
Court indicated:
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As this Court previously stated, “[T]his Court granted petitioner all the
relief that he is possibly entitled to.” Ward v. Wolfenbarger, No. 03CV-72701-DT, 2020 WL 1181484, at *2 (E.D. Mich. Mar. 12,
2020)(ECF No. 403, PageID. 6881).
After seventeen years,
numerous published and unpublished opinions, and over 442 docket
entries, there is nothing more that this Court can do for petitioner for
his 1971 convictions.
(Id.).
Petitioner has now filed a motion for release on bond pending appeal.
In order to receive bond pending a decision on the merits of a habeas
corpus petition, a petitioner must show a substantial claim of law based on the
facts and exceptional circumstances justifying special treatment in the interest of
justice. Lee v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993)(quoting Dotson v. Clark,
900 F.2d 77, 79 (6th Cir. 1990)); See also Nash v. Eberlin, 437 F. 3d 519, 526, n.
10 (6th Cir. 2006). There will be few occasions where a habeas petitioner meets
this standard. Dotson, 900 F. 2d at 79. This Court has granted Petitioner all the
relief he is possibly entitled to. In light of the fact that Petitioner has failed to
establish at this time that he would prevail on the merits of his claims on appeal,
he is not entitled to release on bail. See e.g. Greenup v. Snyder, 57 F. App’x.
620, 621-22 (6th Cir. 2003).
Petitioner, however, seeks release on bond, claiming that his health is in
danger because of the current historic Coronavirus pandemic and the risks that
the virus poses to inmates. Petitioner, in fact, claims that he tested positive for
the virus.
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The Court is sympathetic to Petitioner’s concerns. Nonetheless, Petitioner
is not entitled to emergency release on bond.
Petitioner’s request to be released due to COVID-19 is completely
unrelated to the claims that he raised in his habeas petition. As such, the claims
and relief requested in petitioner’s motion for release are “outside the scope of
this lawsuit.” Ross v. Chapman, No. 2:19-CV-13729, 2021 WL 148020, at * 4
(E.D. Mich. Jan. 15, 2021). “Petitioner may not “piggy-back” a separate,
unrelated claim to his habeas petition.” Id.
There is no allegation that petitioner has been exposed again to the
Coronavirus, nor has he shown that the State of Michigan is unable or unwilling
of protecting him and other inmates through precautionary measures. Titus v.
Nagy, No. 2:18-CV-11315, 2020 WL 1930059, at * 3 (E.D. Mich. Apr. 21, 2020),
reconsideration denied, No. 2:18-CV-11315, 2020 WL 2733882 (E.D. Mich. May
26, 2020). The Director of the Michigan Department of Corrections (MDOC)
issued a memorandum, listing in detail the numerous steps undertaken by the
MDOC to protect staff and prisoners from the spread of COVID-19. The
Director’s memorandum outlines various precautionary measures that staff
should take to prevent the spread of COVID-19. These precautionary measures
include: developing isolation areas for the placement and treatment of prisoners
who (i) have tested positive for COVID-19, (ii) are under investigation for having
COVID-19, or (iii) have had close contact with known-positive COVID-19
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individuals; the wearing of protective gear; the screening of individuals entering
correctional facilities; and social distancing. Id.
Governor Gretchen Whitmer also promulgated certain protocols to mitigate
the spread of COVID-19 among state prisoners and employees who work in state
prisons. Executive Order 2020-119 requires MDOC to continue the risk-reduction
protocols already in place and implemented in its facilities. These protocols
include: screening persons entering and departing facilities; restricting visitors;
limiting off-site appointments; developing and implement protocols for inmates
with COVID-19 symptoms; providing personal protective equipment for staff;
stringently cleaning areas and surfaces; ensuring access to personal hygiene
products; practicing social distancing; and minimizing crowding. Id.
The extensive precautionary measures undertaken by the MDOC to limit
inmates’ exposure to Covid-19 at the direction of the Governor and the Director
of the MDOC rebut petitioner’s argument that exceptional circumstances exist to
justify his release on bond.
Based on the foregoing, the Motion for Release on Bond Pending Appeal
(ECF No. 449) is DENIED.
Dated: June 28, 2021
s/Arthur J. Tarnow___________________
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
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