[Pnews] North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some Still Incarcerated

Prisoner News ppnews at freedomarchives.org
Wed Jul 16 15:37:32 EDT 2014

  North Carolina: Hundreds of Federal Prisoners Legally Innocent, Some
  Still Incarcerated

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 
Still Incarcerated

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 
prior offenses.

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. 
§ 2255.

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 
federal prosecutors.

Sources: USA Today, www.whiteandhearne.com, www.reason.com, Associated 
Press, www.pagepate.com

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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