Ward v. Howes
| Decision Date | 29 September 2011 |
| Docket Number | Case Number 08-13051 |
| Parties | MICHAEL WARD, Petitioner, v. CAROL HOWES, Respondent, |
| Court | U.S. District Court — Eastern District of Michigan |
MICHAEL WARD, Petitioner,
v.
CAROL HOWES, Respondent,
Case Number 08-13051
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Dated: September 29, 2011
Honorable David M. Lawson
Petitioner Michael Ward, presently confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se petition for writ of habeas corpus to contest the revocation of his parole and his continued detention on drug charges that originated over 30 years ago. He was convicted in 1981 of possession with intent to deliver more than 650 grams of cocaine, Mich. Comp. Laws § 333.7401(1)(2)(A)(I) (1978), and sentenced to a mandatory life prison term without the possibility of parole. However, he was eventually paroled after a change in the law. The petitioner refers to his habeas petition as a "hybrid petition" because he attempts to invoke the Court's jurisdiction not only under 28 U.S.C. § 2254 (habeas for prisoners in state custody), but several other statutes as well, including 28 U.S.C. §§ 2241 (general habeas power), 2201 (declaratory judgments), 2202 (same), 1651 (All Writs Act), and 42 U.S.C. § 1983 (enforcement of civil rights). In his pro se habeas petition, the petitioner raises twenty grounds for relief, but he states that he is not challenging his conviction or sentence. Instead, he contends that the Michigan Parole Board's procedures and its decisions have been unlawful, particularly the Parole Board's 2006 decision to revoke his parole, and Michigan Compiled Laws section 600.2963(8), which requires that a prisoner
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who pursues a civil action in the Michigan courts must pay any outstanding filing fees and costs, is unconstitutional. Since filing his habeas petition on July 15, 2008, the petitioner has submitted approximately eighteen supplements in support of his petition, including a letter received on September 27, 2011.
On March 31, 2011, the petitioner filed a motion requesting that the Court permit him to supplement his habeas petition, adding additional arguments to his claim that the Parole Board lacked jurisdiction to revoke his parole. On July 28, 2011, he filed a supplemental brief that states that the Parole Board will not review his file for his parole eligibility until September 13, 2012. The Court will grant the petitioner's request to supplement his habeas petition with this new information.
However, after a careful review of the record and the numerous papers submitted, the Court concludes that the petitioner's claims are either barred from habeas review by 28 U.S.C. § 2244(b)(1), non-cognizable, or lack merit. For these reasons, the Court will deny the petitioner's habeas corpus petition.
The procedural history of this case is extensive. On April 7, 1981, the petitioner was convicted by a jury in the Washtenaw County, Michigan circuit court of possession with intent to deliver 650 grams or more of cocaine. On May 8, 1981, he was sentenced to life in prison without parole, the mandatory penalty at that time for the offense. The petitioner's conviction was affirmed on direct appeal. People v. Ward, 133 Mich. App. 344, 351 N.W.2d 208 (1984). The Michigan Supreme Court denied leave to appeal on September 25, 1985.
In 1998, Michigan's legislature amended its drug statutes. One amendment stated that a defendant, such as the petitioner, convicted under Michigan Compiled Laws section 333.7401,
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sentenced to life without parole, and who has not been convicted of another serious crime, shall be eligible for parole after serving 17-1/2 years in prison. Mich. Comp. Laws § 791.234(7)(c). Because of that change, the petitioner became eligible for parole in 1999.
In 1999, an initial interview was conducted to determine the propriety of releasing the petitioner on parole. On November 5, 1999, he received a Notice of Action that stated the Parole Board did not intend to hold a public hearing in his case. A public hearing is necessary before a prisoner can be released on parole in Michigan. Mich. Comp. Laws § 791.234(6)(c). The petitioner's next interview was scheduled for February 17, 2004.
On February 19, 2003, the petitioner filed a habeas petition in this district, which was assigned to Judge Marianne O. Battani. In that habeas petition, he challenged the Parole Board's decision, claiming that his rights to due process, equal protection, and access to the courts were violated by two letters allegedly in his file: a 1983 letter written by Judge Ross Campbell (the trial judge in his drug case) and a 1985 letter written by former prosecutor Peter Houk of Ingham County. (Apparently, the petitioner was charged with conspiracy to deliver cocaine in Ingham County at the same time he was charged in Washtenaw County. The record does not contain any information about the disposition of that case.) The petitioner claimed those letters were prejudicial and retaliatory. He argued that they were the only reason why a public hearing was not held and why he was not paroled. He requested that the letters be removed and expunged from his record.
Judge Battani denied the petition and the petitioner's motion for reconsideration, finding that "parole eligibility [was] a question of state law" and the "Michigan courts have held that a prisoner serving a parolable life sentence has no right to a public hearing when the parole board indicates that it has no interest in taking further action." Ward v. Stegall, No. 03-60042 (E.D. Mich. May 20,
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2003); Ward v. Stegall, No. 03-60042 (E.D. Mich. June 18, 2003). The Sixth Circuit affirmed. Ward v. Stegall, 93 F.App'x 805 (6th Cir. 2004).
While his habeas petition was pending before Judge Battani, the petitioner filed another habeas petition on June 16, 2003 concerning unrelated 1971 drug convictions for the possession of marijuana and LSD in Huron County, for which he was sentenced to 2-1/2 to 10 years and 2-1/2 to four years in prison, respectively. At the time of sentencing, the trial court did not advise the petitioner of his right to appeal or his right to the appointment of appellate counsel. The petitioner was subsequently discharged from those sentences on February 15, 1972. This habeas case was assigned to Judge Arthur J. Tarnow. The petitioner filed another habeas petition challenging his 1971 convictions on identical grounds on July 20, 2003, which was consolidated with the case before Judge Tarnow. The petitioner alleged in those petitions that the presence of the 1971 drug convictions on his record harmed his chances for parole. Judge Tarnow held that the State's failure to give the required advice at sentencing had deprived the petitioner of his Sixth Amendment right to counsel. Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 829 (E.D. Mich. 2004). Judge Tarnow granted the petitioner a conditional writ unless the State took immediate action to afford the petitioner a new direct appeal and provide counsel. The State appealed and the petitioner asked Judge Tarnow to reconsider or clarify his order.
Judge Tarnow granted the petitioner's motion in part, finding that the court "erred in granting conditional habeas relief to petitioner and determine[d] that justice would be better served by issuing an unconditional writ of habeas corpus in this case. . . ." Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 776 (E.D. Mich. 2004). Judge Tarnow concluded that granting the petitioner a new direct appeal would not "vitiate the prejudice arising from the deprivation of his constitutional right to
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appeal and to appellate counsel on his 1971 convictions." Ibid. Judge Tarnow found that "these 1971 convictions are being used, in part, to deny petitioner parole on his 1981 conviction." Id. at 776. He stated that the petitioner was "entitled to have these 1971 convictions and all of the effects stemming from them completely expunged from his record." Id. at 776-77. Judge Tarnow ordered the Clerk of the Circuit Court for Huron County to expunge the conviction and to forward a copy of the order "to any person or agency that was notified of [the petitioner's] arrest or conviction involved with these offenses." Id. at 777. There is no record whether the State's appeal was ever pursued or decided.
During that time period in 2003, the petitioner also filed a motion for resentencing on his 1981 cocaine case in the Washtenaw County circuit court, which was denied. The Michigan appellate courts denied the petitioner leave to appeal. People v. Ward, No. 252153 (Mich.Ct.App. Mar. 15, 2004); People v. Ward, 471 Mich. 899, 688 N.W.2d 89 (2004).
On September 28, 2004, the petitioner filed yet another habeas petition in this court, challenging his Washtenaw County sentencing on the ground that legislative changes required resentencing and that he was prejudiced by unspecified inaccuracies in his 1981 presentence report. The petition was assigned to Judge Avern Cohn, who transferred the petition to the Sixth Circuit as a second or successive habeas petition.
In November 2004, while the petitioner's motion in the Huron County circuit court was pending, the Parole Board granted his parole. However, the petitioner's parole was...
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