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 examined.
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’s investigation 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 relief.”
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 possible.”
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
(Published by Prison Legal News; used by permission)