This post summarizes criminal decisions released by the Supreme Court of North Carolina on August 13, 2021.
Tag Archives: MAR
We get a lot of questions about motions for appropriate relief (“MARs”). Post-conviction can be a daunting area for practitioners and judges alike. On the state and federal levels, the procedural issues alone can feel like a maze. A recent(ish) case from the Court of Appeals, State v. Blake, ___ N.C. App. ___, 853 S.E.2d 838 (Dec. 31, 2020), shines some light on aspects of the procedural bar in state post-conviction proceedings and is the subject of today’s post. Continue reading →
Category: Procedure | Tags: gatekeeping orders, MAR, motions for appropriate relief, post-conviction, procedural bar, State v. Blake
Last month, the Supreme Court of North Carolina decided State v. Stubbs, an important case regarding appellate review of orders granting motions for appropriate relief. Continue reading →
Category: Procedure, Uncategorized | Tags: appeals, certiorari, MAR, motions for appropriate relief, starkey, stubbs
They are gone. In a blog post here I wrote about 2012 North Carolina legislation imposing tight new timelines for judges handling post-conviction motions for appropriate relief. When I had to tell the judges about those new rules at last year’s judges’ conference, I was tempted to bring a riot shield. Folks were upset about the rules for a number of reasons. In jurisdictions with heavy caseloads and high volumes of post-conviction motions, judges reported difficulty complying with the new timelines. Also, the new rules didn’t account for common scenarios that might require action other than that specified in the statute, such as when a defendant files a pro se motion for appropriate that raises a colorable issue. In that scenario it may make sense for the trial judge to appoint counsel and have counsel file an amended motion before requiring the State to respond or holding a hearing. By handling the motion this way, all relevant issues are flagged on the front end and the case is handled more efficiently. Perhaps most significantly, the new rules effectively gave court date priority to post-conviction challenges by convicted defendants over just about every other matter before the trial court, including capital cases, serious felony trials, and complex civil cases with special 2.1 designation. Of course, the new timelines didn’t have a lot of teeth, G.S. 15A-1420(b2) (“failure to meet a deadline under this subsection is not a ground for the summary granting of a motion for appropriate relief or other summary relief, including without limitation, ordering the release of the prisoner”), so it wasn’t clear what they actually accomplished anyway.
I don’t know the details of how it happened but the rules are gone. Stuck into Session Law 2013-385, a bill dealing with a host of other criminal matters, was a total repeal of those tight timelines for the judge’s action on non-capital motions for appropriate relief.
So where does that leave us? First, the repeal of the timelines is effective December 1, 2013 and applies to “motions filed on or after that date.” After the effective date, the only statutory requirement as to processing of motions for appropriate relief is in G.S. 15A-1420(b1). That subsection provides that when the motion is filed, the clerk is to place the motion on the criminal docket and “promptly” bring it to the attention of the senior resident superior court judge or chief district court judge for assignment. The assigned trial judge then presumably will decide:
- whether the motion is frivolous and should be dismissed on that basis;
- if the motion challenges a plea, whether a verbatim transcript of the plea proceeding is required;
- whether the defendant should be appointed counsel;
- whether counsel should file an amended motion;
- when the State should respond; and
- whether a hearing (on questions of law or fact) should be held.
But as indicated, the timelines for action are now gone. If you have thoughts on their merits or on the merits of their repeal, please share them.
In a bulletin here I wrote about NC’s procedure for post-conviction motions for appropriate relief (MARs). Among other things, that bulletin explains the types of claims that can be raised in a MAR. One of those claims is that “[t]here has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required.” G.S. 15A-1415(b)(7). In a recent case, State v. Harwood, the NC Court of Appeals took a restrictive view of this MAR ground.
In Harwood, the defendant pleaded guilty to 19 counts of felon in possession of a firearm. He later filed a MAR seeking to vacate 18 of the 19 counts. In support of his motion he asserted that the court’s decision in State v. Garris, 191 N.C. App. 276 (2008), constituted a significant change in the law that retroactively applied to his case and entitled him to relief. In Garris, the court held that a defendant may be convicted and sentenced only once for simultaneous possession of more than one firearm.
Rejecting the defendant’s argument, the Court of Appeals determined that it didn’t even need to reach the question of whether Garris applied retroactively (a tricky question; if you need information about retroactivity, I discuss the relevant analysis here). Instead, the court concluded that Garris didn’t constitute a “significant change in the law” as contemplated by the MAR statute. It explained:
At the time that this Court decided Garris, no reported decision of this Court or the Supreme Court had addressed the issue of whether the possession of multiple firearms by a convicted felon constituted a single violation or multiple violations . . . . For that reason, our decision in Garris resolved an issue of first impression in this jurisdiction. Instead of working a change in existing North Carolina law, Garris simply announced what North Carolina law had been since the enactment of the relevant version of [G.S] 14-415.1(a). As a result, a decision which merely resolves a previously undecided issue without either actually or implicitly overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief made pursuant to [G.S.] 15A-1415(b)(7).
Slip op. at 13-15 (citation omitted). Since Garris didn’t effect a significant change in the law, the court held that the trial court lacked jurisdiction to grant relief on the defendant’s MAR. It went on to note that since the relevant law was unsettled at the time of the defendant’s plea, the defendant could have—like the defendant in Garris—gone to trial, contested the issue in superior court and, if unsuccessful, raised the issue on direct appeal.
So what’s the take away? To state a “significant change in law” MAR claim under G.S. 15A-1415(b)(7), a case of first impression won’t cut it; the defendant needs to offer a decision changing the law by, for example, overruling prior cases. Here’s another somewhat ironic point. The Harwood court skirted the state law retroactivity issue by deciding the case on statutory MAR grounds. But the standard the court articulated for the statutory MAR issue seems suspiciously similar to some aspects of the “new rule” analysis under federal retroactivity analysis. And as anyone who has ever dabbled in federal retroactivity knows, the new rule analysis ain’t always easy! If you need information on that, you’re not without a resource—my paper on retroactivity noted above discusses the new rule prong of federal retroactivity analysis.
Category: Crimes and Elements, Procedure, Uncategorized | Tags: MAR, motion for appropriate relief, retroactivity
A lot of defendants plead guilty. And many of those defendants later try to challenge their pleas through the post-conviction process. Not surprisingly then, I get a lot of questions about what types of claims can be asserted in a motion for appropriate relief (MAR) challenging an unconditional guilty plea.
As a general rule, a defendant who voluntarily and intelligently enters an unconditional guilty plea waives all defects in the proceeding, including constitutional defects that occurred before entry of the plea. See State v. Reynolds, 298 N.C. 380, 395 (1979). Thus, for example, once a defendant enters an unconditional guilty plea, he or she is barred from challenging the constitutionality of the stop that lead to his or her arrest. There are however several exceptions to this general rule.
First, a defendant who enters an unconditional guilty plea isn’t barred from challenging “the very power of the State to bring the defendant into court to answer the charge brought against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974); Reynolds, 298 N.C. at 395 (discussing Perry). Thus, a defendant who has pleaded guilty still can assert a jurisdictional defect, such as a fatal defect in the indictment or that no part of the crime occurred in North Carolina. See, e.g., State v. Neville, 108 N.C. App. 330, 333 (1992) (guilty plea does not waive a jurisdictional defect) (citing State v. Stokes, 274 N.C. 409, 412 (1968). See generally G.S. 15A-1415(b)(2) (MAR may assert jurisdictional issues).
Second, a defendant who enters an unconditional guilty plea isn’t barred from a claim that the plea itself wasn’t knowing, voluntary, and intelligent. A plea waives a wheelbarrow full of constitutional rights, including the right to a trial by jury and the right to confront witnesses. Waivers of constitutional rights must be knowing, voluntary, and intelligent. If a plea isn’t knowing, voluntary, and intelligent, it isn’t valid. Thus, a defendant who enters an unconditional guilty plea isn’t barred from claiming, for example, that the trial judge failed to inform him or her of the maximum punishment or that defense counsel rendered ineffective assistance in connection with the plea. See generally G.S. 15A-1415(b)(3) (MAR may assert claim that conviction was obtained in violation of constitutional law). Challenges to the knowing, voluntary, and intelligent nature of the plea are commonly known as Boykin challenges. See Boykin v. Alabama, 395 U.S. 238, 242 (1969) (articulating the constitutional requirements of a plea).
And finally, a defendant who enters an unconditional guilty plea isn’t barred from challenging the legality of the sentence imposed. For example, if a trial judge imposes a sentence after an unconditional guilty plea using the wrong Structured Sentencing Act grid, the defendant isn’t barred from challenging the sentence by way of a MAR. See generally, G.S. 15A-1444(a2) (defendants who plead guilty have an appeal as a matter of right with respect to listed sentencing issues); G.S. 15A-1415(b)(8) (MAR may challenge sentence imposed).
I’m not aware of any other MAR claims that survive an unconditional guilty plea. If you are, please post a comment.
In 2012, the N.C. General Assembly enacted new case processing rules for motions for appropriate relief. See S.L. 2012-168. The new rules put the judges on a pretty tight leash in terms of ruling on these motions. Here’s a visual of how they operate:
Footnotes:
1. G.S. 15A-1420(b1)(2); see also G.S. 15A-1413(d).
2. G.S. 15A-1420(b2)(1). Assignment is for an “initial review.” Id. Assignment is in the discretion of the assigning judge. G.S. 15A-1413(e). The statutory deadline for assignment is within “30 days.” G.S. 15A-1420(b2)(1). Other subsections of the new law specify “working days,” G.S. 15A-1420(b2)(2); (b2)(5), suggesting that “30 days” includes weekends and holidays. For judges who may hear and determine MARs, see G.S. 15A-1413, as amended by S.L. 2012-168.
3. G.S. 15A-1420(b2)(2).
4. Id.
5. Id. If a hearing is ordered, the court must provide notice of the date of the hearing to the parties (or the defendant if unrepresented) no less than five working days before the hearing. G.S. 15A-1420(b2)(5).
6. G.S. 15A-1420(b2)(3); (4). Other provisions of the new law specify “working days.” G.S. 15A-1420(b2)(2); (b2)(5). This section however specifies the period as “days,” suggesting that weekends and holidays are included.
7. G.S. 15A-1420(b2)(5). For an explanation of “good cause” this section refers to G.S. 15A-1420(b2)(6), which does not actually use that term; instead, that provision talks about “extraordinary circumstances.”
A couple of additional notes:
AGREEMENTS TO DEVIATE FROM THE STATUTORY TIMETABLE: G.S. 15A-1420(e) provides that “[n]othing in this section shall prevent the parties to the action from entering into an agreement for appropriate relief, including an agreement as to any aspect, procedural or otherwise, of a [MAR].” This seems to suggests that if the parties agree, the judge may deviate from the statutory timetable. However, the language stating that nothing prevents the parties from entering into an agreement for appropriate relief should not be read to authorize “consent MARs” when no statutory basis for relief exists. For more on that issue, see Jessica Smith, Motions for Appropriate Relief, Admin. of Justice Bull. 2010/03, at p. 13 (June 2010).
EXTENSIONS OF TIME: Extensions of time may be requested by a party or the MAR judge.
Party’s Request. On request by a party, the court may grant an extension of time of up to 30 days to comply with the statutory deadlines. G.S. 15A-1420(b2)(6). No other extension request by a party may be granted unless the court enters a written order with “detailed findings of fact of extraordinary circumstances.” Id. The term “extraordinary circumstances” is not defined.
Judge’s Request. Upon request of the MAR judge, the senior resident superior court judge or chief district court judge may grant the MAR judge an extension of time of up to 30 days to comply with the statutory deadlines. Id. No other extension request by the MAR judge may be granted unless the senior resident superior court judge or the chief district court judge enters a written order with “detailed findings of fact of extraordinary circumstances.” Id. The term “extraordinary circumstances” is not defined.
FAILURE TO COMPLY WITH STATUTORY DEADLINES: The failure of the court to comply with the statutory deadlines (1) is grounds for any party to petition the senior resident superior court judge or chief district court judge to reassign the motion to a different judge and (2) entitles any party to seek a writ of mandamus to obtain compliance with the deadline. G.S. 15A-1420(b2)(6). However, failure to meet a deadline is not a ground “for the summary granting of a [MAR] or other summary relief, including without limitation, ordering the release of the prisoner.” G.S. 15A-1420(b2)(7).
EFFECTIVE DATE: The relevant portions of S.L. 2012-168 become effective December 1, 2012 and apply to MARs “pending, and for which no answer has been filed, or filed on or after that date.”
CONCLUDING THOUGHTS: It will be interesting to see how the new rules play out. I’ve already heard one worry: That the pressure to adhere to the new rules will result in more denials. Chime in if you have thoughts on the changes.
I’m guessing that the criminal defense bar thinks that they have more strikes than hits in post-conviction proceedings. But a recent Court of Appeals case reminds us that it is possible to score on a motion for appropriate relief (MAR). In State v. Rhodes, the court affirmed a trial court ruling ordering a new trial on a MAR asserting a claim of newly discovered evidence. In a longer paper here about MARs generally I wrote about newly discovered evidence claims. But given the recent case, it seems a good time for a refresher. Rhodes is a great vehicle for that purpose.
In Rhodes, the police suspected that the defendant and his father were involved with drugs. While executing a search warrant at the home of the defendant’s parents, officers found controlled substances in a closet and dresser in one room of the house. The defendant had identified the room as his and his identification, which listed the house as his residence, was found on the dresser. At the defendant’s trial on drug charges, defense evidence tended to show that the defendant was not living at the residence at the time. The defendant’s mother testified that he lived in another city, was just visiting on the night in question, and that he had been in the house only 5-10 minutes before the officers arrived. The defendant’s mother further testified that the drugs did not belong to her or the defendant. The defendant’s father also testified that the drugs did not belong to the defendant, and he admitted having been convicted of various drug-related offenses. But when asked whether the drugs were his, the defendant’s father replied: “I plead the Fifth.” The defendant was convicted.
After an unsuccessful appeal, the defendant filed a MAR based on newly discovered evidence. Specifically, the defendant alleged that after his conviction the defendant’s father confessed to a probation officer that the drugs were his. At a hearing on the MAR, the defendant testified when his father accompanied him to the probation office, his father told a probation officer that the drugs were his. The probation officer corroborated the defendant’s testimony. The trial court determined that the confession was newly discovered evidence clearly pointing to the guilt of another and awarded the defendant a new trial. The State appealed and the N.C. Court of Appeals affirmed.
The court began by setting out the standard for a MAR based on newly discovered evidence. To prevail on such a claim, a criminal defendant must establish that:
(1) a witness or witnesses will give newly discovered evidence;
(2) the newly discovered evidence is probably true;
(3) the evidence is material, competent and relevant;
(4) due diligence was used and proper means were employed to procure the testimony at trial;
(5) the evidence is not merely cumulative or corroborative;
(6) the evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and
(7) the evidence is of such a nature that a different result will probably be reached at a new trial.
Turning to the case at hand, the court rejected the State’s argument that the confession could have been obtained through due diligence at trial. The court concluded that the defense exercised diligence by calling the defendant’s father at trial and asking him whether the drugs were his. When the defendant’s father exercised his right against self-incrimination, the trial court excused him as a witness, making further inquiry impossible. The defense also called the defendant’s mother, but she was unwilling to implicate her husband and thus, the court concluded, any attempt to elicit this information would have been futile. Next the court rejected the State’s argument that there was insufficient evidence to support the trial court’s determination that the confession was probably true. The court noted that the trial court assesses the credibility and because the MAR judge had presided over the trial, he was “intimately familiar with the circumstances of the case.” Additionally, it noted, the defendant’s father had admitted a history of drug violations. Finally, the court rejected the State’s argument that the confession would not exculpate the defendant at a new trial. It noted that at the original trial, the jury had no evidence other than the circumstances under which the drugs were recovered to determine who owned or possessed them. The new evidence, however, constituted an affirmative statement that the father alone possessed the drugs.
So there you have it: a rubric for a successful newly discovered evidence claim. If you’re interested in looking at cases going both ways on this type of claim, take a look at the paper noted above. That paper also discusses the standard that applies when the new evidence is recanted testimony.
Category: Procedure, Uncategorized | Tags: MAR, motion for appropriate relief, newly discovered evidence, rhodes
I’ve been asked a couple of times recently whether the state can obtain appellate review of a judge’s order granting a defendant’s motion for appropriate relief, or MAR. The questions have come up in the context of superior court proceedings, so that’s what this post will address. The answer might be different for district court cases, as Jessie Smith notes in this paper.
The crucial, and confusing, case in this area of law is State v. Starkey, 177 N.C. App. 264 (2006). In Starkey, the defendant was charged with possession of a miniscule amount of cocaine and with being a habitual felon. He was convicted, and the trial judge sentenced him to 70 to 93 months. The judge then sua sponte granted his own MAR, finding the sentence unconstitutionally harsh, and resentenced the defendant to 8 to 10 months. The state sought to review the judge’s order by (1) appeal and (2) petition for a writ of certiorari.
The court of appeals first analyzed the state’s right to appeal. The court treated the MAR as if it had been made under G.S. 15A-1414, which allows virtually any error to be the subject of a defendant’s MAR so long as the motion is filed within 10 days of the entry of judgment. Technically, this wasn’t correct, since the MAR at issue in Starkey was the court’s motion, not the defendant’s, but since this post is concerned with MARs filed by defendants, that doesn’t matter. The court noted that G.S. 15A-1422(b) governs appeals in proceedings concerning MARs filed under G.S. 15A-1414. That subsection provides that “[t]he grant or denial of relief sought pursuant to G.S. 15A-1414 is subject to appellate review only in an appeal regularly taken.”
The court stated that an appeal “regularly taken,” as applied to appeals by the state, means an appeal under G.S. 15A-1445. Fair enough, since that’s the section captioned “Appeal by the State.” Further, the court stated that “it is the underlying judgment and not the order granting [the MAR] from which the State must have the right to take an appeal.” I’m not so sure that’s right. As authority for that statement, the court cited State v. Howard, 70 N.C. App. 487 (1984). In Howard, a defendant filed an MAR and won a new trial, but was denied outright dismissal. He tried to appeal the trial court’s refusal to dismiss, but the court of appeals ruled that he couldn’t because (a) the order denying dismissal was interlocutory until after the new trial took place, and (b) G.S. 15A-1444, which governs a defendant’s right to appeal, expressly states that a defendant may appeal when “final judgment has been entered.” Note that there’s no similar “final judgment” language in G.S. 15A-1445. In fact, G.S. 15A-1445 explicitly allows at least some appeals that are interlocutory in nature: G.S. 15A-1445(a)(2) provides for appeals “[u]pon the granting of a motion for a new trial on the ground of newly discovered . . . evidence.” And the law generally allows interlocutory appeals by the state more freely than by the defense because double jeopardy often prevents appeals by the state after an acquittal. Because appeals by the state under G.S. 15A-1445 are so different from appeals by the defendant under G.S. 15A-1444, I’m not sure that Howard really support’s the court’s conclusion in Starkey that G.S. 15A-1445 doesn’t encompass appeals of orders granting MARs.
Whether it does or doesn’t, of course, Starkey is the law on this point. And interpreting an appeal “regularly taken” to mean an appeal of the underlying judgment, not of the order granting the MAR, the Starkey court found that the state had no right to an appeal regularly taken because the underlying judgment – the original one that imposed a sentence of 70 to 93 months – did not dismiss charges, grant a new trial, or impose an unlawful sentence, which are the only grounds for appeal by the state as provided in G.S. 15A-1445.
The court next analyzed the state’s right to seek review through a petition for a writ of certiorari. Such writs are governed by N.C. R. App. P. 21, which states that a writ may issue:
to permit review of the judgments and orders of trial tribunals when [1] the right to prosecute an appeal has been lost by failure to take timely action, or [2] when no right of appeal from an interlocutory order exists, or [3] for review pursuant to G.S. 15A-1422(c)(3) of an order of the trial court denying a motion for appropriate relief.
The state conceded, and the court of appeals found, that none of those three conditions obtained. The court also declined to exercise its authority to suspend its own rules. Concluding that the state had neither a right to appeal nor a right to certiorari review, the court dismissed the state’s appeal. Judge Hunter’s concurrence emphasized that the trial judge’s order contradicted settled Eighth Amendment law, and suggested that the state supreme court could review the order under that court’s general supervisory authority. See generally State v. Norris, 360 N.C. 507 (2006). However, the supreme court declined to review the case. Starkey has since been applied in the factually identical case of State v. Griffin, 2011 WL 3890856 (N.C. Ct. App., Sept. 6, 2011) (unpublished) (following Starkey and dismissing the state’s appeal; rejecting the state’s argument that in Griffin it sought to appeal the second judgment rather than the order granting the MAR).
Although the state conceded in Starkey that none of the conditions of Rule 21 were present, it may be otherwise in cases where a judge grants an MAR and orders a new trial or a new sentencing hearing, as opposed to entering a final order such as a new judgment, as was apparently done in Starkey, or a dismissal. The argument would be that the order granting a new trial or a new sentencing hearing is an interlocutory order from which there is no right of appeal, and so meets the second condition for certiorari review.
So where does that leave us? Here’s my short summary.
For MARs filed pursuant to G.S. 15A-1414 (almost any grounds, within 10 days after entry of judgment):
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
For MARs filed pursuant to G.S. 15A-1415 (limited grounds, any time after entry of judgment except in capital cases):
Remember that Starkey analyzed G.S. 15A-1422(b), while appeals in MAR proceedings under G.S. 15A-1415 are governed by G.S. 15A-1422(c). That subsection provides that rulings on MARs may be reviewed:
(1) If the time for appeal from the conviction has not expired, by appeal.
(2) If an appeal is pending when the ruling is entered, in that appeal.
(3) If the time for appeal has expired and no appeal is pending, by writ of certiorari.
The absence of the “regularly taken” language in G.S. 15A-1422(c) might at first seem to open the door to a broader right of appeal. But in fact, MARs filed under G.S. 15A-1415 are usually filed after an unsuccessful appeal, or instead of one, so neither (1) nor (2) will typically apply. In the end, I think the rules are generally the same as they are for MARs filed under G.S. 15A-1414:
- The state may appeal an order granting a new trial on the ground of newly discovered evidence, under G.S. 15A-1445(a)(2)
- The state may seek certiorari review of an order granting a new trial or a new sentencing hearing on any other ground, under N.C. R. App. P 21
- The state cannot obtain review of an order dismissing charges or imposing a new sentence, under Starkey, except perhaps somehow under the supreme court’s general supervisory power
I’m sorry for the long post. As I noted at the beginning, this is a confusing area of the law. I hope that I’ve untangled it correctly.
As noted in an earlier post, I get asked a lot of questions about motions for appropriate relief (MARs). One procedural issue that causes some confusion is procedural default. The MAR statute provides that in order for a court to reach the merits of a defendant’s MAR, the defendant must satisfy certain procedural rules. If the defendant fails to do so, he or she is deemed to have committed a procedural default. When this occurs, the MAR is rejected on grounds of procedural bar. Thus, the procedural default rules—which are mandatory—preclude consideration on the merits when a procedural error has occurred.
G.S. 15A-1419 contains four procedural default rules:
- Claim Not Raised in Previous MAR. A MAR must be denied if upon a previous MAR the defendant was in a position to adequately raise the ground or issue but did not do so. In addition to the general exceptions that apply to all four of the procedural bar rules and are discussed below, the statute prescribes a specific exception that applies only to this bar: it does not apply when the previous MAR was made within ten days after entry of judgment or during the pendency of the direct appeal.
- Issue Determined in Prior Proceeding. A MAR must be denied if the ground or issue was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in North Carolina or federal courts. In addition to the general exceptions that apply to all four of the procedural bar rules and are discussed below, the statute prescribes a specific exception that applies only to this bar: it does not apply if, since the time the previous determination, there has been a retroactively effective change in the law controlling such issue.
- Claim Not Raised in Previous Appeal. A MAR must be denied if upon a previous appeal the defendant was in a position to raise adequately the ground or issue underlying the present motion but did not do so. Case law establishes that this bar does not prohibit a defendant from raising jurisdictional issues that were not raised on appeal. The issue of whether this exception will be extended to the other procedural bar rules has not yet been presented to the appellate courts.
- Failure to Timely File. A MAR must be denied if a capital defendant failed to timely file a MAR. G.S. 15A-1415(a) sets out a 120-day filing period for capital MARs. However, the MAR statute allows for extensions and amendments and exempts claims of newly discovered evidence from the 120-day filing rule.
The statute contains two general exceptions to the procedural default rules. First, a defendant is excused from procedural default if he or she can demonstrate good cause and actual prejudice. “Good cause” is defined in G.S. 15A-1419(c); “actual prejudice” is defined in G.S. 15A-1419(d). Second, a defendant will be excused from procedural default if he or she can show that a failure to consider the claim will result in a fundamental miscarriage of justice. “Fundamental miscarriage of justice” is defined in G.S. 15A-1419(e).
Understanding the procedural bar rules is important for defense lawyers, prosecutors, and judges. Defense lawyers need to be aware of the procedural default rules. If a defense lawyer fires off a MAR or prepares an appeal that does not raise all relevant issues and is not successful, the procedural bar rules later may preclude consideration of otherwise meritorious claims. At the same time, prosecutors should be sure to review MARs for procedural default as a default will preclude the court’s consideration of the claim on the merits. Finally, judges should be cautious about treating pro se filings as MARs, as doing so may inadvertently create a procedural bar issue later on. When a pro se post-conviction filing raises non-frivolous issues, a better practice for the judge would be appoint counsel for an indigent defendant to file a proper MAR raising the claim stated in the pro se filing and any others that are appropriate. Also, because the procedural default rules are mandatory, judges should review all MAR claims for procedural default.
