The Newsletter of North Carolina Prisoner Legal Services, Inc. Volume 1, Issue 2, January 2000

NCPLS ACCESSLimitations on Federal Habeas CorpusThe Anti-Terrorism and Effective Death Penalty Act of1996

Despite its title, this act has majorimplications for all those convictedof crimes. Signed into law on April24, 1996, The Antiterrorism andEffective Death Penalty Act [Pub.L.104-132,llOStat.1214(1996)](AEDPA) made many changes tothe federal habeas corpus statutes.

Availability of Federal HabeasCorpus Relief

The Fourteenth Amendment pro­hibits the states from deprivinga person of "life, liberty, orproperty," without due pro- cess oflaw. Since the adoption 0 fthe Fourteenth Amendment,the United States SupremeCourt has held that, in acriminal proceeding, "dueprocess" incorporates manyof the protections of the Billof Rights, including the rightto counsel, the right to a trialby jury, and others. When at.state court's determination of guiltor the imposition of a sentence restson a violation of these due processrights, a defendant can file a petitionfor a writ of habeas corpus to obtainfederal court review.

AEDPA was a congressionalresponse to popular opinion thatthe federal court system was beingabused by criminal defendants todelay executions, a view supported

by complaints that a large numberof federal habeas corpus filingswere frivolous. In large part, theAEDPA simply codified many ofthe limitations on habeas corpusactions that had been imposed byjudicial decisions over the past twodecades. But the Act also containsimportant new provisions.

Supreme Court Restrictions onFederal Habeas Corpus Relief

In Rose v. Lundy, 455 U.S, 509(1982), the U.S. Supreme Courtannounced that habeas corpus peti­tions must contain all of the claimsa prisoner wishes to present in a

single petition. The holding ofthe case is known as the "totalexhaustion" rule. In Teague v.Lane, 489 U.S. 288 (1989), theU.S. Supreme Court held that

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changes in the law since convic­tion, favorable to the defendant,could not be applied retroac­

tively in federal habeas corpusproceedings.

In 1991, the U.S. Supreme Courtheld that, when a petitioner filesa second or successive petition,the government may allege thatpetitioner has abused the writof habeas corpus. Claims previ­ously raised, having already beenadjudicated, can be summarilydismissed, and the government

may move for dismissal of claimsappearing for the first time hecausethey could have been raised in theearlier petition. The burden thenshifts to petitioner to show cause forfailing to raise the claim previously,and he must also demonstrate thatactual prejudice or a fundamentalmiscarriage of justice will result ifthe court fails to address the meritsof his claim. McLesky v. Zant, 499U.S. 467 (1991).

In Brecht v. Abrahamson, 507 U.S.619 (1993), the Court held that apetitioner could not obtain federalhabeas corpus relief unless the elTorhad a "substantial and injuriouseffect or influence in determiningthe jury's verdict," unless the errorresulted from a structural defect inthe trial that undermined the entireprocess. [The previous standard

Continued on page 3

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Page 2 NCPLS ACCESS Volume 1, Issue 2

can clear up some misconceptionsabout this type of release.

We hope to use this newsletter asa way to better inform our clientsand to provide accurate informationabout new developments. Pleasefeel free to drop us a line withcomments or suggestions for futurearticles.

While it is very difficult to obtainrelief from a conviction or sentence,the cases that are highlighted inthis issue illustrate that it can bedone, even though the law hasbecome more "unfriendly" to suchchallenges in recent years.

NCPLS ACCESS also examinesPost-Release Supervision. We havereceived many letters recently aboutthis provision of the Structured Billy Sanders, CLASSentencing Act, and we hope we Editor

NCPLS wins three federal habeas cases

Message fromthe EditorIn this issue, NCPLS looks at thechanges in federal habeas corpusstatutes and examines three casesin which our office was able tosuccessfully litigate such cases.Though offenders are concernedwith many issues they face in prison,their convictions and sentences areoften of paramount importance tothem.

Success Story:that a federal issue existed that case entirely rested on the credibilitymight entitle the defendant to relief of defendant's step-daughter, he wasfrom his conviction. convicted.

NCPLS attorney]. Phillip Griffin(pictured above) argued the Lovev. Freeman case in the Fourth Cir­cuit. NCPLS attorney Linda Weiselbriefed the case for the Fourth Cir­cuit and litigated the case in Fed­eral District Court.

Three NCPLS clients recently wonrelief in separate petitions for writsof federal habeas corpus. Two ofthese cases were won at the FourthCircuit Court of Appeals, and inthe third case, relief was grantedat the Federal District Court level.It is rare to prevail on a petitionfor a federal writ of habeas corpus,and these three cases illustratethe time-consuming and difficultpath of obtaining post-convictionrelief.

Love v. Freeman

After an eight-year legal battle,NCPLS won a new trial for a NorthCarolina inmate. The defendantwas granted a new trial after theFourth Circuit Court of Appealsruled that evidence improperlywithheld by the State had preventedDefendant from receiving a fairtrial.

NCPLS's involvement in this casecame after the defendant's appealsin North Carolina Courts had beenexhausted, when he wrote to ask forlegal help from our office. NCPLSreviewed the case and determined

The defendant had been chargedwith first degree rape of his step­daughter, then ten years of age.His trial counsel believed thatexculpatory evidence was containedin documents in the control of WakeMedical Center, Wake County PublicSchools, Wake County MentalHealth Center, and the WakeCounty Department of Social Ser­vices. The trial attorney sUbpoe­naed these documents prior totrial, but thetrial courtgranted theprosecutor'soral motionto quash allof the sub­poenas, withthe excep­tion ofrecords relat­ing to amedicalexaminationof the victim.Although the

In 1989, NCPLS filed a petition fora federal writ of habeas corpus chal­lenging the trial court's refusal toreview the subpoenaed documentsas a violation of due process, basedupon Pennsylvania v. Ritchie, 480U.S. 39, 107 S.Ct. 989 (1987). TheRitchie Case involved similar factsand was decided two years beforedefendant's trial. In Ritchie, theU.S. Supreme Court held that,once an accused makes a showingthat evidence would be both mate­

rial and favorable, thetrial court must reviewthe information and deter­mine whether it must bedisclosed.

Nonetheless, in this case,the U.S. Federal DistrictCourt rejected the petitionfor a writ of habeas corpus.NCPLS appealed to theFourth Circuit Court ofAppeals. In 1995, theFourth Circuit ruled thatContinued on page 4

Page 3 NCPLS ACCESS Volume 1, Issue 2

Post-Release Supervision: What is it and how does it affect inmates?Because the penalties for thoseoffenses involve substantial sen­tences, inmates who received con­victions in those classes of felonieshave only recently become eligiblefor release from prison, and somewho have been released are nowfacing revocation proceedings basedupon alleged violations of theconditions of Post-Release Supervi­SIon.

Inmates frequently write NCPLS toinquire about Post-Release Supervi­sion. Post-Release Supervision is aterm that applies to those sentencedunder the Structured Sentencing Act(SSA). It does not apply to thosesentenced under the Fair SentencingAct, or under previous sentencingstatutes. The SSA applies onlyto those defendants whose offensedates occurred on or after October1, 1994. Post-Release Supervisionis available only to r-- ~~~~~~1'~

those inmates whowere convicted ofcrimes in the classof felonies from B1through E.

General Structured SentencingProvisions

Under SSA, the first step insentencing a convicted defendantis to establish the minimum sen­tence. The minimum sentence isdetermined by a grid that matchesa Prior Offense Level to the felonyclass of the conviction.

There are three ranges of possibleminimum sentences; 1) mitigated,2) presumptive, and 3) aggravated.The range chosen is determinedby the presence or absence ofmitigating or aggravating factors, asestablished by case law or statute,Continued on page 4

Limitations on Federal Habeas Corpus Continued from page 1

was whether the eITor was harmlessbeyond reasonable doubt.

These restrictions, and other judi­cially created doctrines, now appearin the language of the federal habeascorpus statutes, 28 U.S.c. 2241 and28 u.s.c. 2254.

Time Restrictions on HabeasCorpus Relief

The most novel and perhaps mostdramatic change in the federalhabeas corpus statutes is the unprec­edented imposition of a time-limitfor filing a petition for a writ ofhabeas corpus. 28 U.S.c. §l24I(d)requires that an inmate file a petitionwithin one year after a triggeringevent. For example, when there hasbeen a jury trial and a direct appeal(and providing the prisoner has nounexhausted claims to present), thepetition must be filed within one

year of the decision of the state'shighest court.

If there is an unexhausted claim(in other words, one that has notpreviously been presented to thestate court), a defendant must firstexhaust that claim in state post­conviction proceedings. In NorthCarolina, the defendant must filea motion for appropriate relief topresent such a claim to the superiorcourt. If the defendant receivesan adverse decision to the motionfor appropriate relief, the decisioncould then be appealed to the courthaving jurisdiction over the directappeal, by means of filing a petitionfor a writ of certiorari. If theNorth Carolina Court of Appeals isthe court having jurisdiction overthe appeal, the defendant wouldnot have to appeal an adversedecision to the N.C. Supreme Court,because it is not permissible to

seek further review under State law.N.C.Oen.Stat. §15A-1422 (c) (3);Rule 2I(e), North Carolina Rules ofAppellate Procedure.

The periods of time during whichstate post-conviction proceedingsare "pending," are excluded from theone-year statute of limitations. Thisterm has been interpreted in differ­ent ways by federal courts. Underone interpretation, the governmentwould be allowed to count the"gaps" in state post-conviction pro­ceedings. Under the "gap" theory,the time from the denial of themotion for appropriate relief untilan appeal or a petition for awrit of certiorari is filed, and thetime required for preparation of thetranscript of any state court hearingon the claim, would count againstthe one-year statute of limitation.

COlltinuued Oil page 5

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Post-Release Supervision Continuedfrom page 3

while on post-release superVIsion,which is very similar to the serviceof a sentence while on parole.

As noted above, there seems to besome confusion about the purposeof Post-Release Supervision. Itmay seem that those convicted ofa more serious felony are receivinga benefit. However, the purposeof Post-Release Supervision is notto provide an early exit for thoscconvicted of the most seriousoffenses. The maximum term ofa sentence for all felony offendergroups IS about 120% of themlllll1lUrn, but the more senous

The Purpose of Post-ReleaseSupervision

Continued on page 5

Those convicted in the group offelonies from B 1 through E, have am~\ximum release date that is gener­ally about 120% of their minimumsentence, plus nine months. Achart that contains those computa­tions appears at N.C.G.S.§ 15A­1340. 17(e).

There are some inmates that believethat Post-Release Supervision con­stitutes some type of early release.That is not the case. Thereare no SSA provisions that allowfor early release of a convictedfelon. Instead, every inmate isrequired to serve an active termof imprisonment which can neverbe less than his mimimum termof imprisonment. The last ninemonths of a felony class B 1 throughE sentence is served by the offender

NCPLS wins three habeas cases Continlled./i·on page 2

Post-Release supervIsion has noeffect on defendants convicted forfelony classes F through I. Themaximum sentence given in eachcase computes to about 120% of theminimum sentence. Once an inmatesentenced for that class of felonyreaches the end of their maximumsentence, as reduced by earnedti me, they, aresimply releasedfrom the Depart­ment ofCOITection, withno rcstrictionsother than thoseimposed by lawas the result of a felony conviction.

and found by the trial court atsentencing.

defendant's due process rights hadbeen violated and ordered theFederal District Court to review thedocuments and determine whetherthe evidence was material. Lovev. Johnson, 57 F.3d 1305 (4thCir. 1995).

On remand, the Federal DistrictCourt ordered that the parties reviewthe documents in issue. Arter argu­ments from the parties, the Courtruled that the withheld documentswere not material, and the Lovecase was once again appealed tothc Fourth Circuit. On August 30,1999, the Fourth Circuit reversedthe District Court and held that someof the information in the withhelddocuments constituted evidence thatwas material to defendant's convic­tion, and ordered a new trial.

Bell v. Jarvis

The issue in the Bell case involvedthe defendant's right to a publictrial. Before defendant's trial oncharges of sexual offenses againsta minor, the prosecution movedthat the courtroom be closed duringtestimony of the minor prosecutingwitness. The court granted themotion wi thout inqu iring into theneed to close the courtroom.

Howevcr, Waller v. Georgia, 467U.S. 39 (1984), held that "theexplicit Sixth Amcndment right ofthe accused is no less protectiveof a public trial than the implicitFirst Amendment right of the pressand public." The Waller courtheld that, before a courtroom couldbe closed, the judge had to makecertain specific inquiries. This was

not done in the Bell case.

Defendant raised numerous claimson direct appeal. Althoughdefendant's counsel assigned errorto the closing of the courtroom,shc did not brief the issue beforethe Court of Appeals. Deemingthe claim abandoned, the Courtof Appeals did not discuss it andfound no merit in the contentionscounsel had briefed. See Statev. Bell, 1 I7 N.C. App. 732, 453S.E.2d ~77 (1995) (table).

After defendant's appeal wasdccided, he contacted NCPLS.After evaluation of his claim,NCPLS agreed to providerepresentation and filed a motionfor appropriate relief in the PittContillues Oil page 6

Page 5 NCPLS ACCESS Volume 1, Issue 2

Post-Release Supervision Continued/rom page 5

offenders have an additional ninemonths added to their maximumsentences, to be served on Post­Release Supervision.

Post-Release Supervision is, tosome extent, designed to assist inthe adjustment back into societyafter a long period of incarceration.But the major purpose seems tobe to assure the public that thoseconvicted of serious offenses are notreleased into society without anyrestrictions on their conduct.

How to Qualify

This is pretty simple. Everyonesentenced on a B1 through E felonyqualifies. No provision of thestatute allows the Parole Commis-

sion to deny an inmate release onPost-Release Supervision. Oncean inmate reaches his maximumsentence, as reduced by earnedtime, he is automatically released.Also, an inmate cannot refuse Post­Release Supervision.

This differs from parole under FairSentencing on both counts. UnderFair Sentencing, the "man­datory" ninety-day parolecould be denied if the ParoleCommission made certainfindings. Also, under FairSentencing, an inmate couldrefuse parole.

Conditions of Post-Release

Many of the same conditions

of parole under former law arecarried over into the conditionswhich can be imposed in Post­Release Supervision. The Post­Release statute, however, containsseveral new conditions categorizedas "reintegrative" and "controlling."There are 6 reintegrative condi­tions, and 14 controlling conditions.Under the former parole statute,

there were only 12 condi­tions, total. Interestingly, theParole Commission cannotrequire community service asa condition of post-releasesupervIsIOn.

A sex offender has additional condi­tions (5) to comply with, includingone that forbids the offender fromContinued on page 6

(2) resulted in a decision that wasbased on an unreasonable deter­mination of the facts in light ofthe evidence presented in the Statecourt proceeding.

(1) resulted in a decision thatwas contrary to, or involved anunreasonable application of, clearlyestablished Federal law, as deter­mined by the Supreme Court of theUnited States; orOther New Restrictions on Habeas

Corpus Relief

One of the newest restrictions onobtaining habeas corpus relief canbe found in the language of 28U.S.C.§ 2254(d) which providesthat:

Limitations on Federal Habeas Corpus Continued from page 3

Recently, the Fourth Circuit has of habeas corpus, or until April adjudicated on the merits in Stateheld that these "gaps" do not count 23, 1997. Brown v. Angelone, court proceedings unless the adju-against the one-year statute, at least 150 F.3d 370, 374 (4th Cir. 1998). dication of the claim--in capital cases where state post- Since that date has passed, andconviction proceedings had been absent extraordinary extenuatinginitiated prior to the enactment of circumstances, those defendants nothe AEDPA. Taylor v. Lee, 186 F.3d longer have a right to seek federal557 (1999). Other federal courts habeas corpus review.that have considered this issue haverejected the "gap" theory in allhabeas cases. See, for example,Gaskins v. Duval, 183 F.3d 8(1st Cir. 1999); Mills v. Norris,187 F.3d 881 (8th Cir. 1999).The broader question is presentlypending on appeal in the FourthCircuit. Hernandez v. Caldwell[No. 98-7640, (1999)].

Defendants whose convIctIOnsbecame final prior to April 24,1996, generally had one year tofile a federal petition for a writ

(d) An application for a writ ofhabeas corpus on behalf of a personin custody pursuant to the judgmentof a State court shall not be grantedwith respect to any claim that was

With respect to 28 U.S.C.§2254(d) (1), the Fourth Circuit hasheld that habeas relief is authorized

Continued on page 7

Page 6 NCPLS ACCESS

NCPLS wins three habeas cases Continlledfrompage4

Volume 1, Issue 2

Continued on page 7

Bates v. Jackson

An appeal followed, and onDecember 2, 1999, the FourthCircuit Court of Appeals reversedand ordered a new appeal ordefendant's release. Critical to theCourt's decision was its findingthat the trial judge had not satisfiedthe requirements in Waller byinquiring into the need to close thecourtroom, or evaluating any lessrestrictive alternative measures.

Our client was indicted andtried for conspiracy to traffic acontrolled substance by possession

NCPLS will undoubtedly receivemany questions from inmatesas more individuals sentencedfor more serious crimes becomeeligible for Post-Release Supervi­sion.

Supervision would receive nocredit for such time. Shouldthe inmate violate the conditionsof his release, he could berequired to serve the remainder ofhis maximum sentence, calculatedfrom the time of his release.

One interesting difference betweenparole under Fair Sentencing andPost-Release Supervision, is thatwhile on parole, a parolee receivedcredit against his sentence for thetime he spent in compliance with theconditions of his parole, except thelast six months. However, it appearsthat a person on Post-Release

The Commission must hold ahearing within 45 days from thearrestee's confinement to determinewhether to revoke, but that provisioncan be, and often is, waived.

Revocation

County Superior Court. The issuebefore that court was whetherdefendant's counsel on direct appealwas ineffective for failure to raisethe public trial claim. The SuperiorCourt summarily denied the motion,State v. Bell, No. 92 CRS 12536 et al.(N.C. Sup. Ct. Pitt County, Nov. 8,1996), and the North Carolina Courtof Appeals rejected the subsequentpetition for certiorari. State v. Bell,No. COAP96-591 (N.C. Ct. App.Dec. 31, 1996).

Both the former parole statute andthe Post-Release Supervision statutecontain a "catch-all" provision thatallows the Commission to imposeother conditions in their discretionif, "they reasonably believe it neces­sary to ensure that the [supervisee]will lead a law-abiding life or toassist the [supervisee] to do so."

District of North Carolina. TheMagistrate Judge concluded thatdefendant's counsel had providedineffective assistance due to thefailure to present a meritoriouspublic trial claim. The MagistrateJudge recommended that defendantbe granted a new direct state appeal.The State objected to that findingand the District Court rejected theMagistrate Judge's recommendation,holding that appellate counsel wasnot ineffective because the trialcourt did not err in closing the

On April 9, 1997, having exhausted courtroom. The District Courtthis federal claim through the state granted summary judgment in favorcourt system, NCPLS filed a petition of the State, dismissing the habeasfor a writ of habeas corpus in petition. Bell v. Jarvis, F. Supp. 2dthe District Court for the Eastern 699 (E.D.N.C. 1998).

Post-Release Supervision continuedfrmn page 4

residing in any household where a arrested, a preliminary hearing mustminor resides, if he was convicted of be held within seven working daysa sex offense involving a child. to determine if there is probable

cause to believe that a violationhas occurred. The superviseecan request a continuance, or theCommission may hold a hearingprior to the arrest, but otherwise,that seven-day period cannot bewaived.

Post-Release supervision may onlylast for nine months, unless theconviction is for a sex offense listedin N.C.O.S.§ 14-208.6(5). For thoseoffenses, the period of Post-ReleaseSupervision is five years. The pro­cedures for revoking Post-ReleaseSupervision and the procedures forrevoking parole are almost identi­cal. After the parolee/supervisee is

NCPLS attorney James lV, Carterrepresented Timothy Bates.

Volume 1, Issue 2

conspiracy, which spanned the datesin both indictments. Since theconspiracy charged in the firstindictment was in fact the sameconspiracy charged in the secondindictment, the District Court foundthat the defendant's right to be freefrom being tried twice for the sameoffense had been violated and issuedits writ of habeas corpus.

Since the basis of the ruling wasdouble jeopardy, our client was setfree. In most cases, a victory inhabeas corpus results in a newtrial, rather than immediate release.from prison.

On November 18,1999, the DistrictCourt, after a thorough and extensivereview of the record, determinedthat there was only one alleged

Prior to his second trial in Januaryof 1996, defendant made a motionon grounds of double jeopardy todismiss the second charge, whichwas based on the same facts asthe earlier conspiracy charge. Themotion was denied, defendant wasconvicted of the conspiracy in thesecond trial, and the conviction wasupheld by the North Carolina Courtof Appeals.

Page 7 NCPLS ACCESS

NCPLS wins three habeas cases Continuedfrom page 6

on or about January 4, 1995. At NCPLS, on behaJf of our client, filedhis trial in October of 1995, the a petition for a writ of habeas corpusdefendant's motion for a dismissal in the United States District Court,based on the insufficiency of the Eastern Division of North Carolina.evidence was granted. However, The District Court found that thebefore the defendant was released dismissal for the insufficiency offrom custody, a new warrant the evidence in the first trial waswas issued for his arrest on the functionally equivalent to a verdictcharge of conspiracy to traffic a of not guilty. That dismissalcontrolled substance by possession, precluded the State from tryingtransportation, manufacture, and defendant for the same offense asale and delivery. An indictment was second time. The issue then beforereturned charging the conspiracy, the District Court was whetherwhich allegedly occurred between the conspiracy charged in the firstSeptember 1993 and December 29, indictment (of which the client was1994. functionally acquitted) was the same

conspiracy alleged in the secondindictment. If the conspiracies werethe same alleged offense, then theDouble Jeopardy Clause of the SixthAmendment of the United StatesConstitution prohibited the Statefrom re-trying the client.

Limitations on Federal Habeas Corpus Continuedfromfrompage5

only when the state courts havedecided the question by interpretingor applying the relevant precedentin a manner that reasonable juristswould all agree is unreasonable.Green v. French, 143 F.3d 865,870 (4th Cir. 1998). This standard,seemingly impossible to meet, isnow being considered by the U.S.Supreme Court in Williams v.Taylor, 1999 WL 566136 (4th Cir.1999).

Review of Habeas Corpus Issues

Services, Inc., (NCPLS), evaluatespost-conviction issues upon requestfrom inmates incarcerated in theNorth Carolina Department of Cor­rection. Inmates wishing to havetheir cases evaluated should writeto our office and request a post­conviction questionnaire. Inmatesthat have previously had their casesevaluated should be aware that,in the absence of a new issue,NCPLS will not conduct a secondevaluation.

difficult substantive and procedurallegal issues. Even those inmateswho choose to proceed on theirown should first write to NCPLS.An attorney will review the casefor possible representation, and ifrepresentation is declined, a detailedexplanation of the relevant legalissues will be provided to theinmate. Inmates should requestassistance as soon as possible aftertheir direct appeal or entry of aguilty plea.

Seeking post-conviction relief is aNorth Carolina Prisoner Legal complicated legal task, involving

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THE NEWSLETTER OF NORTH CAROLINAPRISONER LEGAL SERVICES, INC.

224 S. Dawson StreetPO Box 25397Raleigh, NC 27611

Phone: (919) 856-2200Fax: (919) 856-2223Email: bsanders@ncpls.org

Visit our website at:

http://www.ncpls.org

North Carolina Prisoner Legal Services, Inc.224 S. Dawson StreetPO Box 25397Raleigh, NC 27611