The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume 1, Issue 2, January 2000

ACCESS

Limitations on Federal Habeas Corpus
The Anti-Terrorism and Effective Death Penalty Act of 1996
Despite its title, this act has major
implications for all those convicted
of crimes. Signed into law on April
24, 1996, The Antiterrorism and
Effective Death Penalty Act [Pub.
L.104-132,llOStat.1214(1996)]
(AEDPA) made many changes to
the federal habeas corpus statutes.

Availability of Federal Habeas
Corpus Relief
The Fourteenth Amendment prohibits the states from depriving
a person of "life, liberty, or
property," without due pro- cess of
law. Since the adoption
0 f
the Fourteenth Amendment,
the United States Supreme
Court has held that, in a
criminal proceeding, "due
process" incorporates many
of the protections of the Bill
of Rights, including the right
to counsel, the right to a trial
by jury, and others. When at.
state court's determination of guilt
or the imposition of a sentence rests
on a violation of these due process
rights, a defendant can file a petition
for a writ of habeas corpus to obtain
federal court review.
AEDPA was a congressional
response to popular opinion that
the federal court system was being
abused by criminal defendants to
delay executions, a view supported

by complaints that a large number
of federal habeas corpus filings
were frivolous. In large part, the
AEDPA simply codified many of
the limitations on habeas corpus
actions that had been imposed by
judicial decisions over the past two
decades. But the Act also contains
important new provisions.

Supreme Court Restrictions on
Federal Habeas Corpus Relief
In Rose v. Lundy, 455 U.S, 509
(1982), the U.S. Supreme Court
announced that habeas corpus petitions must contain all of the claims
a prisoner wishes to present in a
single petition. The holding of
the case is known as the "total
exhaustion" rule. In Teague v.
Lane, 489 U.S. 288 (1989), the
U.S. Supreme Court held that
changes in the law since conviction, favorable to the defendant,
/
could not be applied retroactively in federal habeas corpus
proceedings.

may move for dismissal of claims
appearing for the first time hecause
they could have been raised in the
earlier petition. The burden then
shifts to petitioner to show cause for
failing to raise the claim previously,
and he must also demonstrate that
actual prejudice or a fundamental
miscarriage of justice will result if
the court fails to address the merits
of his claim. McLesky v. Zant, 499
U.S. 467 (1991).
In Brecht v. Abrahamson, 507 U.S.
619 (1993), the Court held that a
petitioner could not obtain federal
habeas corpus relief unless the elTor
had a "substantial and injurious
effect or influence in determining
the jury's verdict," unless the error
resulted from a structural defect in
the trial that undermined the entire
process.
[The previous standard
Continued on page 3

.inside ·thiS 'Issue.:
l.im~h$

In 1991, the U.S. Supreme Court
held that, when a petitioner files
a second or successive petition,
the government may allege that
petitioner has abused the writ
of habeas corpus. Claims previously raised, having already been
adjudicated, can be summarily
dismissed, and the government

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•

Page 2

Message from
the Editor
In this issue, NCPLS looks at the
changes in federal habeas corpus
statutes and examines three cases
in which our office was able to
successfully litigate such cases.
Though offenders are concerned
with many issues they face in prison,
their convictions and sentences are
often of paramount importance to
them.

NCPLS ACCESS
While it is very difficult to obtain
relief from a conviction or sentence,
the cases that are highlighted in
this issue illustrate that it can be
done, even though the law has
become more "unfriendly" to such
challenges in recent years.
NCPLS ACCESS
also examines
Post-Release Supervision. We have
received many letters recently about
this provision of the Structured
Sentencing Act, and we hope we

Volume 1, Issue 2
can clear up some misconceptions
about this type of release.
We hope to use this newsletter as
a way to better inform our clients
and to provide accurate information
about new developments. Please
feel free to drop us a line with
comments or suggestions for future
articles.
Billy Sanders, CLAS
Editor

Success Story: NCPLS wins three federal habeas cases
Three NCPLS clients recently won
relief in separate petitions for writs
of federal habeas corpus. Two of
these cases were won at the Fourth
Circuit Court of Appeals, and in
the third case, relief was granted
at the Federal District Court level.
It is rare to prevail on a petition
for a federal writ of habeas corpus,
and these three cases illustrate
the time-consuming and difficult
path of obtaining post-conviction
relief.

that a federal issue existed that
might entitle the defendant to relief
from his conviction.

case entirely rested on the credibility
of defendant's step-daughter, he was
convicted.

The defendant had been charged In 1989, NCPLS filed a petition for
with first degree rape of his step- a federal writ of habeas corpus chaldaughter, then ten years of age. lenging the trial court's refusal to
His trial counsel believed that review the subpoenaed documents
exculpatory evidence was contained as a violation of due process, based
in documents in the control of Wake upon Pennsylvania v. Ritchie, 480
Medical Center, Wake County Public U.S. 39, 107 S.Ct. 989 (1987). The
Schools, Wake County Mental Ritchie Case involved similar facts
Health Center, and the Wake and was decided two years before
County Department of Social Ser- defendant's trial. In Ritchie, the
Love v. Freeman
vices. The trial attorney sUbpoe- U.S. Supreme Court held that,
naed these documents prior to once an accused makes a showing
After an eight-year legal battle, trial, but the
that evidence would be both mateNCPLS won a new trial for a North trial
court
rial and favorable, the
Carolina inmate. The defendant granted the
trial court must review
was granted a new trial after the prosecutor's
the information and deterFourth Circuit Court of Appeals oral motion
mine whether it must be
ruled that evidence improperly to quash all
disclosed.
withheld by the State had prevented of the subDefendant from receiving a fair poenas, with
Nonetheless, in this case,
trial.
the excepthe U.S. Federal District
tion
of
Court rejected the petition
NCPLS's involvement in this case records relat- NCPLS attorney]. Phillip Griffin
for a writ of habeas corpus.
came after the defendant's appeals ing to a (pictured above) argued the Love
NCPLS appealed to the
in North Carolina Courts had been medical v. Freeman case in the Fourth Cir- Fourth Circuit Court of
exhausted, when he wrote to ask for examination cuit. NCPLS attorney Linda Weisel Appeals.
In 1995, the
briefed the case for the Fourth Cirlegal help from our office. NCPLS of the victim.
Fourth Circuit ruled that
cuit and litigated the case in Fedreviewed the case and determined Although the eral District Court.
Continued on page 4

Page 3

NCPLS ACCESS

Volume 1, Issue 2

Post-Release Supervision: What is it and how does it affect inmates?
Inmates frequently write NCPLS to
inquire about Post-Release Supervision. Post-Release Supervision is a
term that applies to those sentenced
under the Structured Sentencing Act
(SSA). It does not apply to those
sentenced under the Fair Sentencing
Act, or under previous sentencing
statutes. The SSA applies only
to those defendants whose offense
dates occurred on or after October
1, 1994. Post-Release Supervision
is available only to r--

Because the penalties for those
offenses involve substantial sentences, inmates who received convictions in those classes of felonies
have only recently become eligible
for release from prison, and some
who have been released are now
facing revocation proceedings based
upon alleged violations of the
conditions of Post-Release SuperviSIon.
~~~~~~1'~

those inmates who
were convicted of
crimes in the class
of felonies from B 1
through E.

General Structured Sentencing
Provisions
Under SSA, the first step in
sentencing a convicted defendant
is to establish the minimum sentence. The minimum sentence is
determined by a grid that matches
a Prior Offense Level to the felony
class of the conviction.
There are three ranges of possible
minimum sentences; 1) mitigated,
2) presumptive, and 3) aggravated.
The range chosen is determined
by the presence or absence of
mitigating or aggravating factors, as
established by case law or statute,
Continued on page 4

Limitations on Federal Habeas Corpus Continued from page 1
was whether the eITor was harmless
beyond reasonable doubt.

year of the decision of the state's
highest court.

These restrictions, and other judicially created doctrines, now appear
in the language of the federal habeas
corpus statutes, 28 U.S.c. 2241 and
28 u.s.c. 2254.

If there is an unexhausted claim
(in other words, one that has not
previously been presented to the
state court), a defendant must first
exhaust that claim in state postconviction proceedings. In North
Carolina, the defendant must file
a motion for appropriate relief to
present such a claim to the superior
court. If the defendant receives
an adverse decision to the motion
for appropriate relief, the decision
could then be appealed to the court
having jurisdiction over the direct
appeal, by means of filing a petition
for a writ of certiorari. If the
North Carolina Court of Appeals is
the court having jurisdiction over
the appeal, the defendant would
not have to appeal an adverse
decision to the N.C. Supreme Court,
because it is not permissible to

Time Restrictions on Habeas
Corpus Relief
The most novel and perhaps most
dramatic change in the federal
habeas corpus statutes is the unprecedented imposition of a time-limit
for filing a petition for a writ of
habeas corpus. 28 U.S.c. §l24I(d)
requires that an inmate file a petition
within one year after a triggering
event. For example, when there has
been a jury trial and a direct appeal
(and providing the prisoner has no
unexhausted claims to present), the
petition must be filed within one

seek further review under State law.
N.C.Oen.Stat. §15A-1422 (c) (3);
Rule 2I(e), North Carolina Rules of
Appellate Procedure.
The periods of time during which
state post-conviction proceedings
are "pending," are excluded from the
one-year statute of limitations. This
term has been interpreted in different ways by federal courts. Under
one interpretation, the government
would be allowed to count the
"gaps" in state post-conviction proceedings. Under the "gap" theory,
the time from the denial of the
motion for appropriate relief until
an appeal or a petition for a
writ of certiorari is filed, and the
time required for preparation of the
transcript of any state court hearing
on the claim, would count against
the one-year statute of limitation.
COlltinuued Oil page 5

Page 4

N CPLS ACCESS

Post-Release Supervision
and found by the trial court at
sentencing.
Post-Release supervIsion has no
effect on defendants convicted for
felony classes F through I. The
maximum sentence given in each
case computes to about 120% of the
minimum sentence. Once an inmate
sentenced for that class of felony
reaches the end of their maximum
sentence, as reduced by earned
ti me, they, are
simply released
from the Department
of
COITection, with
no rcstrictions
other than those
imposed by law
as the result of a felony conviction.

Continuedfrom page 3

Those convicted in the group of
felonies from B 1 through E, have a
m~\ximum release date that is generally about 120% of their minimum
sentence, plus nine months.
A
chart that contains those computations appears at N.C.G.S.§ 15A1340. 17(e).
There are some inmates that believe
that Post-Release Supervision constitutes some type of early release.
That is not the case.
There
are no SSA provisions that allow
for early release of a convicted
felon.
Instead, every inmate is
required to serve an active term
of imprisonment which can never
be less than his mimimum term
of imprisonment. The last nine
months of a felony class B 1 through
E sentence is served by the offender

NCPLS wins three habeas cases
defendant's due process rights had
been violated and ordered the
Federal District Court to review the
documents and determine whether
the evidence was material. Love
v. Johnson, 57 F.3d 1305 (4th
Cir. 1995).
On remand, the Federal District
Court ordered that the parties review
the documents in issue. Arter arguments from the parties, the Court
ruled that the withheld documents
were not material, and the Love
case was once again appealed to
thc Fourth Circuit. On August 30,
1999, the Fourth Circuit reversed
the District Court and held that some
of the information in the withheld
documents constituted evidence that
was material to defendant's conviction, and ordered a new trial.

Volume 1, Isssue 2

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

The Purpose
Supervision

of

Post-Release

As noted above, there seems to be
some confusion about the purpose
of Post-Release Supervision.
It
may seem that those convicted of
a more serious felony are receiving
a benefit. However, the purpose
of Post-Release Supervision is not
to provide an early exit for thosc
convicted of the most serious
offenses. The maximum term of
a sentence for all felony offender
groups IS about 120% of the
mlllll1lUrn, but the more senous
Continued on page 5

Continlled./i·on page 2

Bell v. Jarvis

not done in the Bell case.

The issue in the Bell case involved
the defendant's right to a public
trial. Before defendant's trial on
charges of sexual offenses against
a minor, the prosecution moved
that the courtroom be closed during
testimony of the minor prosecuting
witness.
The court granted the
motion wi thout inqu iring into the
need to close the courtroom.

Defendant raised numerous claims
on direct appeal.
Although
defendant's counsel assigned error
to the closing of the courtroom,
shc did not brief the issue before
the Court of Appeals. Deeming
the claim abandoned, the Court
of Appeals did not discuss it and
found no merit in the contentions
counsel had briefed. See State
v. Bell, 1 I7 N.C. App. 732, 453
S.E.2d ~77 (1995) (table).

Howevcr, Waller v. Georgia, 467
U.S. 39 (1984),
held that "the
explicit Sixth Amcndment right of
the accused is no less protective
of a public trial than the implicit
First Amendment right of the press
and public."
The Waller court
held that, before a courtroom could
be closed, the judge had to make
certain specific inquiries. This was

After defendant's appeal was
dccided, he contacted NCPLS.
After evaluation of his claim,
NCPLS
agreed
to
provide
representation and filed a motion
for appropriate relief in the Pitt
Contillues

Oil

page 6

Post-Release Supervision
offenders have an additional nine
months added to their maximum
sentences, to be served on PostRelease Supervision.
Post-Release Supervision is, to
some extent, designed to assist in
the adjustment back into society
after a long period of incarceration.
But the major purpose seems to
be to assure the public that those
convicted of serious offenses are not
released into society without any
restrictions on their conduct.
How to Qualify
This is pretty simple. Everyone
sentenced on a B 1 through E felony
qualifies.
No provision of the
statute allows the Parole Commis-

Continued/rom page 5

sion to deny an inmate release on
Post-Release Supervision.
Once
an inmate reaches his maximum
sentence, as reduced by earned
time, he is automatically released.
Also, an inmate cannot refuse PostRelease Supervision.
This differs from parole under Fair
Sentencing on both counts. Under
Fair Sentencing, the "mandatory" ninety-day parole
could be denied if the Parole
Commission made certain
findings. Also, under Fair
Sentencing, an inmate could
refuse parole.

Defendants whose convIctIOns
became final prior to April 24,
1996, generally had one year to
file a federal petition for a writ

of parole under former law are
carried over into the conditions
which can be imposed in PostRelease Supervision. The PostRelease statute, however, contains
several new conditions categorized
as "reintegrative" and "controlling."
There are 6 reintegrative conditions, and 14 controlling conditions.
Under the former parole statute,
there were only 12 conditions, total. Interestingly, the
Parole Commission cannot
require community service as
a condition of post-release
supervIsIOn.

Conditions of Post-Release

A sex offender has additional conditions (5) to comply with, including
one that forbids the offender from

Many

Continued on page 6

of the

same

Limitations on Federal Habeas Corpus
Recently, the Fourth Circuit has
held that these "gaps" do not count
against the one-year statute, at least
in capital cases where state postconviction proceedings had been
initiated prior to the enactment of
the AEDPA. Taylor v. Lee, 186 F.3d
557 (1999). Other federal courts
that have considered this issue have
rejected the "gap" theory in all
habeas 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 presently
pending on appeal in the Fourth
Circuit. Hernandez v. Caldwell
[No. 98-7640, (1999)].

Volume 1, Issue 2

NCPLS ACCESS

Page 5

conditions

Continued from page 3

of habeas corpus, or until April
23, 1997.
Brown v. Angelone,
150 F.3d 370, 374 (4th Cir. 1998).
Since that date has passed, and
absent extraordinary extenuating
circumstances, those defendants no
longer have a right to seek federal
habeas corpus review.
Other New Restrictions on Habeas
Corpus Relief
One of the newest restrictions on
obtaining habeas corpus relief can
be found in the language of 28
U.S.C.§ 2254(d) which provides
that:
(d) An application for a writ of
habeas corpus on behalf of a person
in custody pursuant to the judgment
of a State court shall not be granted
with respect to any claim that was

adjudicated on the merits in State
court proceedings unless the adjudication of the claim-(1) resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented in the State
court proceeding.

With respect to 28 U.S.C.§2254
(d) (1), the Fourth Circuit has
held that habeas relief is authorized
Continued on page 7

Page 6

NCPLS ACCESS

NCPLS wins three habeas cases
County Superior Court. The issue
before that court was whether
defendant's counsel on direct appeal
was ineffective for failure to raise
the public trial claim. The Superior
Court 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 Court
of Appeals rejected the subsequent
petition for certiorari. State v. Bell,
No. COAP96-591 (N.C. Ct. App.
Dec. 31, 1996).
On April 9, 1997, having exhausted
this federal claim through the state
court system, NCPLS filed a petition
for a writ of habeas corpus in
the District Court for the Eastern

residing in any household where a
minor resides, if he was convicted of
a sex offense involving a child.
Both the former parole statute and
the Post-Release Supervision statute
contain a "catch-all" provision that
allows the Commission to impose
other conditions in their discretion
if, "they reasonably believe it necessary to ensure that the [supervisee]
will lead a law-abiding life or to
assist the [supervisee] to do so."

Revocation
Post-Release supervision may only
last for nine months, unless the
conviction is for a sex offense listed
in N.C.O.S.§ 14-208.6(5). For those
offenses, the period of Post-Release
Supervision is five years. The procedures for revoking Post-Release
Supervision and the procedures for
revoking parole are almost identical. After the parolee/supervisee is

Continlledfrompage4

District of North Carolina. The
Magistrate Judge concluded that
defendant's counsel had provided
ineffective assistance due to the
failure to present a meritorious
public trial claim. The Magistrate
Judge recommended that defendant
be granted a new direct state appeal.
The State objected to that finding
and the District Court rejected the
Magistrate Judge's recommendation,
holding that appellate counsel was
not ineffective because the trial
court did not err in closing the
courtroom.
The District Court
granted summary judgment in favor
of the State, dismissing the habeas
petition. Bell v. Jarvis, F. Supp. 2d
699 (E.D.N.C. 1998).

Post-Release Supervision

Volume 1, Issue 2

An appeal followed, and on
December 2, 1999, the Fourth
Circuit Court of Appeals reversed
and ordered a new appeal or
defendant's release. Critical to the
Court's decision was its finding
that the trial judge had not satisfied
the requirements in Waller by
inquiring into the need to close the
courtroom, or evaluating any less
restrictive alternative measures.

Bates v. Jackson
Our client
was indicted and
tried for conspiracy to traffic a
controlled substance by possession
Continued on page 7

continuedfrmn page 4

arrested, a preliminary hearing must
be held within seven working days
to determine if there is probable
cause to believe that a violation
has occurred.
The supervisee
can request a continuance, or the
Commission may hold a hearing
prior to the arrest, but otherwise,
that seven-day period cannot be
waived.
The Commission must hold a
hearing within 45 days from the
arrestee's confinement to determine
whether to revoke, but that provision
can be, and often is, waived.
One interesting difference between
parole under Fair Sentencing and
Post-Release Supervision, is that
while on parole, a parolee received
credit against his sentence for the
time he spent in compliance with the
conditions of his parole, except the
last six months. However, it appears
that a person on Post-Release

Supervision would receive no
credit for such time.
Should
the inmate violate the conditions
of his release, he could be
required to serve the remainder of
his maximum sentence, calculated
from the time of his release.
NCPLS will undoubtedly receive
many questions from inmates
as more individuals sentenced
for more serious crimes become
eligible for Post-Release Supervision.

Page 7

NCPLS

NCPLS wins three habeas cases
on or about January 4, 1995. At
his trial in October of 1995, the
defendant's motion for a dismissal
based on the insufficiency of the
evidence was granted. However,
before the defendant was released
from custody, a new warrant
was issued for his arrest on the
charge of conspiracy to traffic a
controlled substance by possession,
transportation, manufacture, and
sale and delivery. An indictment was
returned charging the conspiracy,
which allegedly occurred between
September 1993 and December 29,
1994.
Prior to his second trial in January
of 1996, defendant made a motion
on grounds of double jeopardy to
dismiss the second charge, which
was based on the same facts as
the earlier conspiracy charge. The
motion was denied, defendant was
convicted of the conspiracy in the
second trial, and the conviction was
upheld by the North Carolina Court
of Appeals.

Continuedfrom page 6

NCPLS, on behaJf of our client, filed
a petition for a writ of habeas corpus
in the United States District Court,
Eastern Division of North Carolina.
The District Court found that the
dismissal for the insufficiency of
the evidence in the first trial was
functionally equivalent to a verdict
of not guilty.
That dismissal
precluded the State from trying
defendant for the same offense a
second time. The issue then before
the District Court was whether
the conspiracy charged in the first
indictment (of which the client was
functionally acquitted) was the same
conspiracy alleged in the second
indictment. If the conspiracies were
the same alleged offense, then the
Double Jeopardy Clause of the Sixth
Amendment of the United States
Constitution prohibited the State
from re-trying the client.
On November 18,1999, the District
Court, after a thorough and extensive
review of the record, determined
that there was only one alleged

Limitations on Federal Habeas Corpus
only when the state courts have
decided the question by interpreting
or applying the relevant precedent
in a manner that reasonable jurists
would all agree is unreasonable.
Green v. French, 143 F.3d 865,
870 (4th Cir. 1998). This standard,
seemingly impossible to meet, is
now being considered by the U.S.
Supreme Court in Williams v.
Taylor, 1999 WL 566136 (4th Cir.
1999).

Carolina

Prisoner

Legal

conspiracy, which spanned the dates
in both indictments.
Since the
conspiracy charged in the first
indictment was in fact the same
conspiracy charged in the second
indictment, the District Court found
that the defendant's right to be free
from being tried twice for the same
offense had been violated and issued
its writ of habeas corpus.
Since the basis of the ruling was
double jeopardy, our client was set
free. In most cases, a victory in
habeas corpus results in a new
trial, rather than immediate release.
from prison.

NCPLS attorney James lV, Carter
represented Timothy Bates.

Continuedfromfrompage5

Services, Inc., (NCPLS), evaluates
post-conviction issues upon request
from inmates incarcerated in the
North Carolina Department of Correction. Inmates wishing to have
their cases evaluated should write
to our office and request a postconviction questionnaire. Inmates
that have previously had their cases
evaluated should be aware that,
in the absence of a new issue,
NCPLS will not conduct a second
evaluation.

Review of Habeas Corpus Issues
North

Volume 1, Issue 2

ACCESS

Seeking post-conviction relief is a
complicated legal task, involving

difficult substantive and procedural
legal issues. Even those inmates
who choose to proceed on their
own should first write to NCPLS.
An attorney will review the case
for possible representation, and if
representation is declined, a detailed
explanation of the relevant legal
issues will be provided to the
inmate. Inmates should request
assistance as soon as possible after
their direct appeal or entry of a
guilty plea.

.. 4

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

224 S. Dawson Street
PO Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: bsanders@ncpls.org

Visit our website at:
http://www.ncpls.org

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