Ward v. Wolfenbarger

• Citation: 323 F.Supp.2d 818
• Decision Date: 30 June 2004
• Docket Number: No. CIV.03-CV-72701.,No. CIV.03-CV-72858-DT.,CIV.03-CV-72701.,CIV.03-CV-72858-DT.
• Parties: Michael Charles WARD, Petitioner, v. Hugh WOLFENBARGER, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

323 F.Supp.2d 818

Michael Charles WARD, Petitioner, v. Hugh WOLFENBARGER, Respondent,

No. CIV.03-CV-72701.

No. CIV.03-CV-72858-DT.

United States District Court, E.D. Michigan, Southern Division.

June 30, 2004.

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Michael Ward, New Haven, MI, pro se.

Raina I. Korbakis, Brenda E. Turner, Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Respondent.

OPINION AND ORDER GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS¹

TARNOW, District Judge.

Michael Charles Ward, ("petitioner"), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. In his habeas application, filed pro se, petitioner challenges his 1971 convictions for possession of marijuana, M.C.L.A. 335.153; and possession of lysergic acid diethylamide (LSD), M.C.L.A. 335.341(4)(c). Petitioner also seeks the expungement of a carrying and concealing weapons (C.C.W.) charge from his arrest record. For the reasons stated below, petitioner's application for writ of habeas corpus is CONDITIONALLY GRANTED.

I. Background

Petitioner was stopped by the police in 1970 for an alleged traffic violation. Police searched his vehicle and recovered some marijuana seeds and a hunting knife from the vehicle. Petitioner was arrested for carrying a concealed weapon and taken to the Huron County Jail. During a subsequent inventory search, police recovered some marijuana and LSD from the vehicle. Petitioner was charged with possession of LSD and possession of marijuana, but not with any C.C.W. charge. At the time of petitioner's arrest, possession of LSD and possession of marijuana were both felonies in Michigan. On January 20, 1971, a jury found petitioner guilty of both offenses. On February 10, 1971, petitioner was sentenced to 2 1/2-10 years in prison on the possession of marijuana conviction and 2 1/2-4 years on the possession of LSD conviction. At the time of sentencing, the trial court did not advise petitioner of his right to appeal or his right to the appointment of appellate counsel if he were unable to retain appellate counsel, in spite of the fact that petitioner had been represented by a court appointed attorney at trial.² Petitioner was discharged from these sentences on February 15, 1972.³ Petitioner never filed a direct appeal from these convictions, claiming that he failed to do so because the trial court never informed him of his right to appeal or his right to the appointment of appellate counsel.

On April 7, 1981, petitioner was found guilty in the Washtenaw County Circuit Court of possession with intent to deliver 650 or more grams of cocaine, contrary to M.C.L.A. 333.7401(1) and (2)(a)(i)(i). On May 8, 1981, petitioner was sentenced to life imprisonment without parole on this conviction. In 1998, Michigan Legislature's amended Michigan's drug statutes. M.C.L.A. 791.234(6), as amended by P.A.1998, No. 314, effective October 1, 1998, indicates that a defendant convicted of violating or conspiring to violate section 7401(2)(a)(i) of the public health code, the section under which petitioner was convicted, shall be eligible for parole after serving seventeen and one half (17 1/2) years in prison. Under M.C.L.A. 791.234(9), a defendant's sentence under section 7401(2)(a)(i) may be further reduced another two and one half (2 1/2) years if the sentencing judge or his or her successor determines that the defendant cooperated with law enforcement. If the defendant had no relevant or useful information, the judge is required to conclude that the defendant cooperated with the police. Petitioner is currently incarcerated in prison on this conviction.

In 1980, petitioner filed a pro se post-conviction petition in the Huron County Circuit Court, alleging ineffectiveness of counsel on the ground that he had not been informed of his right to appeal these convictions. After being denied state post-conviction relief, petitioner filed a civil action in federal court, in which he requested equitable relief in the form of a declaratory judgment and an order compelling the Huron County Circuit Court to recognize his right to take a direct appeal to the Michigan Court of Appeals and to appoint the State Appellate Defender's Office at county expense to represent him in that appeal. Petitioner named as defendants the Huron County Circuit judge and the Michigan Attorney General. See Ward v. Knoblock, 738 F.2d 134, 136 (6th Cir.1984); cert. den. 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985). The Michigan Attorney General's Office filed a motion to dismiss, or in the alternative, a motion for summary judgment, arguing that petitioner's complaint should be construed as a petition for habeas corpus under 28 U.S.C. § 2254 and dismissed for failure of petitioner to allege that he was in custody on this conviction. The magistrate judge ruled that petitioner's complaint "was most closely analogous to a habeas corpus petition" since petitioner's claim that his allegedly unconstitutional conviction adversely affected his parole eligibility should be viewed as a challenge to the duration of his present incarceration. Id. The magistrate judge went on to recommend that petitioner's action be dismissed because his sentences had expired on his 1971 convictions. The federal district court adopted the magistrate judge's recommendation and dismissed the petition. Id. at 137. On appeal, the Sixth Circuit affirmed the dismissal of the lawsuit on the grounds that the district court lacked jurisdiction to entertain a habeas petition brought by petitioner in light of the fact that his sentences on his 1971 convictions had expired. Ward, 738 F.2d at 138-39.

In 2001, petitioner filed a post-conviction motion for relief from judgment with the trial court pursuant to M.C.R. 6.500, et. seq., which was denied. People v. Ward, 70-2478-FH (Huron County Circuit Court, July 3, 2001). In lieu of granting leave to appeal, the Michigan Court of Appeals remanded the matter to the Huron County Circuit Court to enter an amended judgment of sentence nunc pro tunc to show that petitioner received a maximum sentence of no more than one year in jail for the marijuana conviction, pursuant to People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972). In all other aspects, the application for leave to appeal was denied pursuant to M.C.R. 6.508(D). People v. Ward, 238813 (Mich.Ct.App. June 11, 2002). On remand, petitioner's sentence on the possession of marijuana charge was amended nunc pro tunc to one year, with 159 days jail credit. People v. Ward, (Huron County Circuit Court, July 2, 2002). The Michigan Court of Appeals rejected petitioner's motion for rehearing as being untimely.⁴ The Michigan Supreme Court denied petitioner leave to appeal on February 28, 2003 pursuant to M.C.R. 6.508(D). People v. Ward, 468 Mich. 851, 658 N.W.2d 490 (2003). The Michigan Supreme Court denied reconsideration on May 30, 2003. People v. Ward, 468 Mich. 851, 662 N.W.2d 755 (2003).

On June 16, 2003, petitioner filed the instant application for habeas relief with this Court.⁵ Petitioner seeks habeas relief on the following grounds:

I. The state courts deprived petitioner of his right to due process and equal protection in violation of the state and federal constitution, and laws, when not vacating/setting aside and expunging petitioner's arrest, conviction and sentence for possession of marijuana, when the Michigan Supreme Court in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), and its progeny, vacated numerous other similarly situated offender convictions, holding as "unconstitutional", the same "statute" (M.C.L. 335.153; M.S.A. 18.1123), [that] petitioner was arrested, charged, convicted, and sentenced under. U.S. Const. Am. 5, 14, Mich. Const. Art. 1, §§ 2, 17.

II. In the event this Federal Court believes a "remand" for resentencing was proper; the resentencing violated double jeopardy. U.S. Const. Am. 5, 14, Mich. Const. Art. 1, § 15.

III. If resentencing was permissible, the resentencing process, as applied to this petitioner, was prejudicial, and violated his rights under both state and federal constitution(s) and law; access to the court, due process, and equal protection clause(s). U.S. Const. Am. 5, 14, Mich. Const. Art. 1, §§ 2, 3, 5, 17, and 20.

IV. Petitioner's rights under the Due Process and Equal Protection Clause(s) of both state and federal constitution(s), under the law, was violated when petitioner was prosecuted, convicted, and sentenced on the "LSD" count 2, as a felony, and a sentence of 2 1/2 to 4 years was imposed.

V. The state courts deprived petitioner of due process and equal protection under both the state and federal constitution (s), when refusing to adequately address, and order the expungement, of a "bogus" CCW arrest record, that never resulted in formal charges or prosecution, but is prejudicial.

VI. The trial court judge violated petitioner's rights under both the state and federal constitution (s) and law, to due process, access to the court, and equal protection of law, when demonstrating or giving the appearance of personal bias, and did impose a maximum sentence on [the] amended judgment of sentence, after remand, in retaliation for having successfully appealed, requiring that judge's disqualification/recusal, retroactive; petitioner to be resentenced before a different judge, in a different venue.

VII. Petitioner was denied his appeal of right, due to trial court negligence and defense counsel's ineffective representation, and he is therefore entitled to an appeal of right, retroactive to February 10, 1971, for time purposes, as to deny him such appellate right, violates the state and federal constitution(s) and laws.

VIII. Petitioner was denied "fair play", due process and access to the court, under both the state and federal constitutional standards, when the clerk for the Michigan Court of...