Ward v. Howes et al

Filing 72

ORDER Granting in Part and Denying in Part Certificate of Appealability. Signed by District Judge David M. Lawson. (DTof)

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

Case Number 08-13051
Honorable David M. Lawson

v.
CAROL HOWES,
Respondent,
________________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
CERTIFICATE OF APPEALABILITY
The petitioner filed a petition for a writ of habeas corpus on July 15, 2008. On September
29, 2011, the Court entered an opinion and order denying the petition, determining that the
petitioner’s constitutional challenge to Michigan Compiled Laws section 600.2963(8) had already
been raised and adjudicated in a previous habeas proceeding, the Parole Board’s decision to revoke
his parole complied with due process requirements and was supported by sufficient evidence, the
petitioner has not demonstrated that the hearing officer was biased, the petitioner had not
demonstrated that a signature waiving his rights to a probable cause hearing was forged, the
Michigan Department of Corrections and the Michigan Parole Board had jurisdiction over the
petitioner, the petitioner’s claim that the Parole Board failed to follow proper procedures or to give
the petitioner credit for time spent in the county jail were state law issues not subject to federal
habeas review, that the petitioner’s plea agreement was valid and that the Parole Board did not
breach the agreement, that the petitioner failed to show that the Parole Board relied on two expunged
convictions in their decisions to take no interest in taking action in his case, that the petitioner
cannot establish that his parole violation attorney was constitutionally ineffective, that the state court

decisions summarily dismissing his petition for judicial review of the Parole Board’s decision was
a state law issue not cognizable on habeas review, and that the petitioner did not establish that the
judge issuing the decision summarily dismissing the petition for judicial review was biased. On this
basis, the Court entered judgment against the petitioner.
Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, which was amended
as of December 1, 2009:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2). If the court denies a certificate, a party may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.
Rule 11, Rules Governing Section 2254 Proceedings.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
Concerning the issue of the use of the petitioner’s expunged 1971 convictions, the Court
finds that reasonable jurists could debate whether the state’s continued reference to those
convictions in the Michigan Department of Correction’s papers harmed the petitioner’s case before
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the Parole Board. Therefore, the Court will grant a certificate of appealability on this issue.
However, the Court finds that reasonable jurists could not debate the resolution of any of the other
claims raised by the petitioner. Therefore, the Court will deny a certificate of appealability on the
remaining claims.
Accordingly, it is ORDERED that a certificate of appealability is GRANTED on the
petitioner’s claim that Parole Board continues to rely on his expunged convictions when deciding
to take no interest in taking action in his case.
It is further ORDERED that a certificate of appealability is DENIED as to the petitioner’s
remaining claims.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 29, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 29, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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