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North Carolina Court of Appeals Addresses Availability of Habeas Remedy for Prisoners Affected by COVID-19

Last week, the North Carolina Court of Appeals issued its opinion about the availability of state habeas corpus to obtain release from custody by an inmate particularly susceptible to COVID-19. Below is an analysis of the decision prepared by Ian Mance, who has worked on several topics related to COVID-19, available here, with the School of Government’s Public Defense Education group.

In State v. Daw, the North Carolina Court of Appeals reviewed a trial court’s summary denial of a habeas corpus petition that alleged the petitioner’s continued confinement in a state prison violated state and federal prohibitions against cruel and/or unusual punishment in light of the COVID-19 pandemic and the petitioner’s history of respiratory issues. State v. Daw, No. COA20-680, slip op. (N.C. App. May 4, 2021). The petitioner, Phillip Brandon Daw, who was serving an active sentence for obtaining property by false pretenses, had asked a superior court judge to find he was entitled to release under G.S. 17-33(2), which provides that “though the original imprisonment was lawful, yet by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged.” Id. at 1.

Daw argued COVID-19’s presence in his facility was an “event” that warranted his discharge in light of his alleged medical vulnerabilities. His petition was summarily denied by a Wake County Superior Court Judge, whose written order cited G.S. 17-4(2) as the reason for the denial. Id. at 17. This statute, the court explained, “provides the general rule that summary denial of a petition is proper if a party is ‘committed or detained by virtue of the final order, judgment or decree of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such final order, judgment or decree.’” Id. at 17 n.7.

The Court of Appeals granted Daw’s petition for certiorari and expedited oral arguments in the case. Id. at 2. Less than a week after the case was argued, the state released Daw from custody early through the Department of Public Safety’s Extended Limits of Confinement program. Id. at 5. Although his early release mooted the case, the Court of Appeals elected to proceed with deciding the issues, concluding “that the public interest exception to the mootness doctrine applies” and noting that “a number of petitions with our Court . . . have been held in abeyance until we issue an opinion in this case.” Id. at 8.

In its opinion, the court held that “summary denial of such a petition is permissible” and affirmed the trial court’s denial of Daw’s petition. Id. at 9. However, it did so “for a different reason than the one provided in the trial court’s order, N.C. Gen. Stat. § 17-4(2).” Id. at 19. Summary denial under G.S. 17-4, the court held, was not the appropriate response to a constitutional Eighth Amendment claim raised by way of G.S. 17-33(2). The court explained that “[r]eading § 17-4 without reference to § 17-33 could lead a court reviewing a habeas petition to mistakenly conclude” that a prisoner “was ‘prohibited from prosecuting the writ[,]’ . . . resulting in summary denial of the petition without resolving whether because of ‘some act, omission or event, . . . the party has become entitled to be discharged[.]’” Id. at 30–31. The court concluded that is “what appears to have happened here,” noting that “[i]n the section of the current version of the North Carolina Superior Court Judges’ Benchbook related to habeas corpus [issued in 2014], only the general rule cited by the trial court in its order—N.C. Gen. Stat. § 17-4—is mentioned.” Id. at 10 n.5 & 31. The court observed that a more recent School of Government bulletin, which specifically addresses the impact of COVID-19, noted “‘exceptions to [this] general rule[,]’ including N.C. Gen. Stat. § 17-33(2)[.]” Id. at 10 n.5. [You can find that bulletin here.] These exceptions, the court held, were “implied by [the] holdings in In re Stevens, Hoffman, and Leach[.]” Id. at 31. In Daw, the Court recognized the exception under 17-33(2) “expressly” and held “that [it] provides an exception to the general rule provided by § 17-4(2).” Id.

In reaching this conclusion, the court engaged in a four-part analysis. Id. at 9. First, it reviewed the “origins, evolution, and limits of the writ of habeas corpus under North Carolina law.” Id. Tracing the history of the writ, both in English law and throughout the history of the state, the court concluded that the “scope of habeas corpus jurisdiction has . . . evolved” as a result of acts of the legislature, which “broade[ned]” the reach of the writ beyond its traditional uses at common law. Id. at 14–15. Next, the court “parse[d] the language of the statutory scheme governing petitions for habeas corpus in [the] General Statutes.” Id. at 10. It noted that there appeared to be a conflict between G.S. 17-4(2) and G.S. 17-33(2) and that the provisions “must be construed in pari materia, and harmonized, if possible, to give effect to each.” Id. at 31 (quoting Hoffman v. Edwards, 48 N.C. App 559, 564 (1980)). After that, the court “review[ed] the trial court’s order, which summarily denied the habeas petition without expressly stating whether an evidentiary proceeding was necessary.” Id. at 10.

Lastly, the court evaluated the necessity of an evidentiary hearing in light of the materials submitted with the petition. Id. “Notably absent from the materials,” the court concluded, “was any affidavit, declaration, or other report of any kind of an expert Petitioner had retained to offer an opinion or testify about Petitioner’s elevated risk of severe illness or other medical complications from COVID-19 based on an examination of Petitioner or review of his medical records.” Id. at 36. “Nor did Petitioner provide any medical records in support of his petition that predated his time in the custody of DPS that documented the diagnosis, treatment, and severity of the medical conditions from which he allegedly suffers.” Id. The court found the absence of this information “fatal” to Daw’s claim that he was entitled to a hearing, because the same information “could have supported similar claims raised by any prisoner in DPS custody experiencing medical conditions or other COVID-19 comorbidities.” Id. at 36–37.

While the individual petitioner in Daw was unsuccessful, the Court of Appeals’ opinion affirmed that, upon a proper showing of evidence, prisoners may be entitled to a habeas remedy, to include early release from custody, based on the existence of medical conditions that make them uniquely vulnerable to COVID-19. The opinion is likely to prove consequential to a number of current and former prisoners around the state who either sought or secured their early release by way of petitions that advanced similar theories, and whose cases are now on appeal.