[Pnews] North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some Still Incarcerated
ppnews at freedomarchives.org
Wed Jul 16 15:37:32 EDT 2014
North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some
Loaded on July 10, 2014 by Derek Gilna
<https://www.prisonlegalnews.org/news/author/derek-gilna/> published in
Prison Legal News July, 2014
<https://www.prisonlegalnews.org/news/issue/25/7/>, page 48
North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some
by Derek Gilna
Following a 2011 federal appellate court ruling, the U.S. Department of
Justice (DOJ) initially tried to delay the release of federal prisoners
who were wrongly convicted in North Carolina. The government later
announced that it would halt such tactics, but has continued to oppose
challenges filed by some offenders who are legally innocent.
The DOJ's actions followed a review of prosecutions in three federal
courts in North Carolina. DOJ spokesman Wyn Hornbuckle said "many more"
cases could surface when all of the state's federal court cases are
The prisoners were convicted of possessing firearms in what the Fourth
Circuit Court of Appeals held was a misapplication of the sentencing
criteria, a circumstance unique to North Carolina due to the state's
system of "structured sentencing." Adopted by the state legislature in
1993, the system mandates that the maximum prison term for any given
crime is based on the offender's criminal record. As a result, sentences
for even minor crimes can extend for years if a defendant has numerous
Federal law provides that anyone convicted of a crime punishable by more
than a year in prison is considered a felon, and thereby prohibited from
possessing a firearm or ammunition. However, that provision of federal
law, as imposed by North Carolina federal courts, conflicted with the
state's structured sentencing.
For example, an offender convicted of a minor crime in a North Carolina
state court -- writing a bad check, for example -- would be considered a
felon under federal law if his or her prior record was serious enough to
warrant a prison sentence longer than a year. Federal courts proceeded
under the notion that if one person convicted of writing a bad check was
considered a felon, then all offenders convicted of writing bad checks
were felons ... even if a defendant's record warranted a sentence of
less than one year under the state's structured sentencing system.
Consequently, offenders found in possession of a firearm were charged
with violating federal law even if their prior state offenses should not
have been considered felonies.
The Fourth Circuit held in August 2011, in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc), that federal courts had been
misapplying the law. Only those offenders who could have actually faced
a prison sentence of longer than a year, the appellate court held,
should be considered felons under federal law. As a result, scores of
federal defendants should not have been prosecuted for being felons in
possession of a firearm, because they didn't meet the legal definition
of "felon" at the time they were charged.
The ruling in Simmons meant that about half of the convictions in North
Carolina state courts over the past decade should no longer be
considered felonies under federal law. A 2012 investigation by USA Today
concluded that "none of them [prisoners serving time for firearm
possession] had criminal records serious enough to make them felons
under federal law."
USA Today'sinvestigation examined firearm possession convictions in
western North Carolina between 2005 and 2011, and "was limited to people
who had been convicted only of gun possession and included only those
cases in which federal prosecutors had specifically identified the prior
offense that made possession a crime."
In the wake of Simmons, the DOJ initially did little to address the
problem of offenders serving federal prison terms despite being legally
innocent. In fact, the Department of Justice did not try to identify or
notify the affected prisoners, and even argued in individual prisoners'
cases that they should not be released.
DOJ officials claimed it wasn't their responsibility to inform prisoners
who were serving sentences for what the Fourth Circuit had determined
was no longer a crime. While federal prosecutors conceded the prisoners
were innocent, they maintained that offenders affected by Simmons had to
follow federal court rules and file motions challenging their
convictions and sentences.
"We can't be outcome driven," said Anne Tompkins, the U.S. Attorney in
Charlotte. "We've got to make sure we follow the law, and people should
want us to do that." She added that her office was "looking diligently
for ways, within the confines of the law, to recommend relief for
defendants who are legally innocent."
That effort apparently was not a high priority, however. Ripley Rand,
the U.S. Attorney in Greensboro who conducted the DOJ's review of cases
affected by Simmons, conceded that more than a third of the firearm
cases prosecuted by his office might be called into question. "We're
going to be addressing this for a while," he remarked. In fact, the 20
prosecutors in his office were so inundated by prisoners challenging
their sentences that other prosecutions were placed on hold. "It's
definitely been a huge burden," Rand said.
"No one wants anyone to spend time in jail who should not be there,"
noted one prosecutor in Raleigh, but convictions that are already final
"are in a totally different posture and require us to follow the
existing statutory habeas law." Rand added that he was "not aware of any
procedural mechanism by which [the affected prisoners] can be afforded
Defense attorneys disagreed, saying federal prosecutors should assume a
greater role in identifying cases for review. "We're doing it with our
hands tied," said Eric Placke, a Greensboro public defender. "I
appreciate the compelling considerations they have to deal with. But I
do think in cases of actual innocence that it would be nice, to say the
least, if they would be a little more proactive." He said his office was
handicapped by limited access to records in closed cases.
Legal experts agreed that the procedural approach to such cases was not
an easy one. Saying "I'm innocent" may not be sufficient for a
successful challenge, according to Nancy King, a law professor at
Vanderbilt University. Nevertheless, she noted, "innocent people should
be able to get out of prison."
Following Simmons, federal judges have freed numerous prisoners and
removed others from post-release supervision. Some had been incarcerated
for up to eight years. Since Simmons was decided, it has been cited in
over 200 Fourth Circuit decisions and more than 960 rulings in North
Carolina district courts as of July 1, 2014.
One of the first federal prisoners to have his conviction vacated was
Terrell McCullum. Prosecutors had opposed his release. "At most,
[McCullum] has become legally innocent of the charges against him,"
federal prosecutors stated in an April 2012 court filing, arguing that
he still had a criminal record and possessed a gun, and should not be freed.
In August 2012, U.S. District Court Judge James Fox rejected the
prosecution's arguments and reversed McCullum's conviction "in the
interests of justice," even though he had already completed his sentence
and been released a month earlier.
"After careful consideration, the Department of Justice has decided to
take a litigating position designed to accelerate relief for defendants
in these cases who, by virtue of a subsequent court decision, are no
longer guilty of a federal crime," DOJ spokeswoman Adora Andy said
shortly before the court ruled in McCullum's case. "We are working with
the court, the probation office and the federal public defenders to
ensure that these matters are addressed as effectively and quickly as
Another federal prisoner, Marion Howard, was freed on December 5, 2012
after appealing to the court in a letter to "please rule on my case
before the holidays" so he could be home with his family. Many other
prisoners have since been released as a result of the Simmons decision,
and cases are still working their way through the court system.
On May 23, 2014, for example, U.S. District Court Judge Martin Reidinger
ruled on a pro se habeas petition filed by federal prisoner Marvin
Barnette. "The Government concedes that the Petitioner's motion has
merit, and although the motion was untimely presented, the Government
agrees to waive the defense of the statute of limitations to
Petitioner's claims," the court said.
"Petitioner's sentence was enhanced based on his prior convictions for
breaking and entering.... As the Government concedes, and as reflected
by the state-court judgments relevant to these convictions, these
offenses were Class H felonies, and at the time Petitioner was convicted
of these offenses, Petitioner was a prior record level II," Judge
Reidinger wrote. "As such, the maximum sentence Petitioner could have
received for either of these offenses was 10 months. Because Petitioner
could not have received a sentence of more than one year in prison based
on these convictions under North Carolina law, Simmons dictates that
these convictions no longer qualify as 'violent felonies' for purposes
of the ACCA [Armed Career Criminal Act]."
Judge Reidinger vacated Barnette's sentence and granted a resentencing
hearing. See: Barnette v. United States, U.S.D.C. (W.D. NC), Case No.
3:08-cr-00124-MR-1; 2014 U.S. Dist. LEXIS 71118.
On April 8, 2014, the Fourth Circuit held that a defendant sentenced as
a career offender before Simmons was decided, but who could not be
designated a career offender after Simmons, constituted a "fundamental
miscarriage of justice" that warranted equitable tolling of the statute
of limitations and habeas relief. See: Whiteside v. United States, 748
F.3d 541 (4th Cir. 2014).
However, others have not been as fortunate. Federal prisoner Clyde Dial,
Jr. filed a motion to vacate under 28 U.S.C. § 2255 challenging his
guilty plea to two charges with an Armed Career Criminal Act
enhancement, arguing that "the convictions used to apply the enhancement
no longer qualify as felonies" after Simmons. He had received a
176-month prison sentence. However, as part of his plea agreement Dial
waived his right to challenge his conviction or sentence under 28 U.S.C.
The DOJ opposed Dial's motion and sought to enforce the terms of the
plea agreement. The district court agreed with the government, finding
in a June 18, 2014 order that Dial had knowingly waived his right to
seek relief -- even though he was legally innocent with respect to the
ACCA enhancement. See: Dial v. United States, U.S.D.C. (E.D. NC), Case
No. 7:02-cr-00090-F1; 2014 U.S. Dist. LEXIS 83017.
The ACLU of North Carolina estimated in 2012 that more than 3,000
federal prisoners may be entitled to relief as a result of Simmons,
including reduced sentences or release from prison, because they are
legally innocent. In some cases, though, such innocence means little to
Sources: USA Today, www.whiteandhearne.com, www.reason.com, Associated
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415
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