Update: COVID-19 and State Habeas Corpus

In an earlier bulletin, I discussed the possibility that state habeas petitions could emerge as a remedy for medically vulnerable prisoners in North Carolina, as they have in other states (most notably New York). While it remains too early to tell how North Carolina courts will respond, there have been some important developments in recent weeks, as a number of prisoners have asked courts to consider their petitions. This post explores the status of two of those cases and related legal issues regarding the viability of state habeas as a remedy for prisoners uniquely endangered by COVID-19.

Pending Cases. In State v. Daw, 39-year-old Philip Daw petitioned a Wake County judge for a writ of habeas corpus, citing serious respiratory issues that recently required his hospitalization and the risk posed to his life from COVID-19. According to state records, Daw has a projected release date in late 2021 for a fraud conviction. His petition, the first known COVID-19 habeas action to be filed in the state’s superior courts, was denied by the judge, who relied on the portion of G.S. 17-4 stating that a petition for writ of habeas corpus “shall be denied where a person is held pursuant to a valid final judgment in a criminal case entered by a court with proper jurisdiction.”

Daw filed a petition for writ of certiorari in the Court of Appeals to review the trial court’s decision. He relied on State v. Leach, 227 N.C. App. 399 (2013) and Hoffman v. Edwards, 48 N.C. App. 559 (1980), among others, for the authority of the courts under G.S. 17-33(2) to grant habeas relief when “some subsequent . . . event has caused the applicant to become entitled to be discharged.” The interrelationship between G.S. 17-4 and G.S. 17-33(2) is discussed in greater detail in my bulletin. See also Jamie Markham, FAQs about Coronavirus and the Correctional System (Mar. 26, 2020) (observing that additional pathway for release “could be a petition for a writ of habeas corpus, arguing that, ‘though the original imprisonment was lawful,’ the pandemic is ‘some event, which has taken place afterwards’ that entitles the defendant to release. G.S. 17-33”). On July 9, 2020, the Court of Appeals granted Daw’s request for certiorari. Briefing in the case is likely to extend into the fall.

Elsewhere, attorneys for a prisoner who was convicted in the 17th District obtained a hearing in the 14th District, where her spouse now lives. This was possible because the habeas statute permits a prisoner to bring a petition before “any” superior court judge. See G.S. 17-6(2); State v. Herndon, 12 S.E. 268, 269 (N.C. 1890) (stating that “we cannot interfere with [a prisoner’s] statutory right to select the judge to whom he shall apply”). The court held a hearing during the last week of July on the petition, which alleged that the woman’s medical issues entitled her to a temporary release from prison to home confinement, possibly accompanied by electronic monitoring. Serving a life sentence since 1992, she will become parole eligible later this year. Her attorneys argued that she faces a risk of death if she contracts COVID-19, an outcome that would be constitutionally unreasonable under the Eighth Amendment and Article I, Section 27 of the N.C. Constitution. At the hearing (which I attended at a safe social distance), they offered evidence of her unique vulnerabilities due to a variety of pre-existing medical conditions, including an affidavit from a UNC physician with a background in prison medicine attesting to the dangerousness of her situation.

In response, the State’s attorneys argued that G.S. 17-4 precluded habeas relief, including home confinement. The court questioned the position that the prohibition in G.S. 17-4 could be read absolutely and referred to cases that invoked G.S. 17-33 as a ground for releasing people from custody. The court deferred ruling, however, granting the State’s request for additional time to brief the issue. A further hearing is scheduled for August 17.

COVID-19 and State Habeas in Other Jurisdictions. A question arose in the second case about how courts in other states have responded to COVID-related challenges to incarceration as violative of the Eighth Amendment and state constitutional prohibitions on cruel or unusual punishment. I looked into this question further, as the rulings of courts elsewhere may be instructive here. Courts in at least five states—Connecticut, Massachusetts, Montana, New York, and Washington—have issued opinions on the subject. All five states appear to recognize that a convicted prisoner may obtain early release based on what might be called a COVID-19 habeas claim, although some of the decisions rest in part on state law and procedure, and relief was denied in most cases due to the insufficiency of the petitioners’ evidence. See Smith v. State, No. OP 20-0185, 2020 WL 1660013, at *2 (Mont. Mar. 31, 2020) (denying habeas relief where prisoner failed to demonstrate circumstances of incarceration violated Eighth Amendment); Commonwealth v. Delgado, 147 N.E.3d 1126, at *1 & n.6 (Mass. App. 2020) (unpublished) (denying habeas relief because prisoners did not establish the conditions of incarceration violated the Eighth Amendment or Massachusetts Declaration of Rights); Matter of Pauley, 466 P.3d 245, 259–61 (Wash. Ct. App. 2020) (denying personal restraint petition, the state equivalent of habeas corpus, because, among other things, prisoner did not present sufficient evidence of officials’ “deliberate indifference in tackling COVID-19”); McGraw v. Comm’r of Correction, No. CV2050000631S, 2020 WL 3790738, at *4–5 (Conn. Super. Ct. June 10, 2020) (unpublished) (denying habeas relief and finding petitioner failed in his burden of proof after doctor asserted it was not “medically necessary to release the petitioner”); People ex rel. Coleman v. Brann, No. 260252/20, 2020 WL 1941972 (N.Y. Sup. Ct. Apr. 21, 2020) (finding risk of harm from COVID-19 infection entitled prisoners to habeas proceeding but denying relief because officials had “made substantial efforts to ameliorate th[e] risk . . . of COVID-19” and “petitioners pose[d] a high risk of flight”).

In New York, it appears that quite a number of pretrial detainees have secured their release from custody through state habeas. See Bergamaschi v. Cuomo, No. 20 CIV. 2817 (CM), 2020 WL 1910754, at *4 (S.D.N.Y. Apr. 20, 2020) (stating that “numerous” people in mandatory pretrial detention have “petition[ed] for a writ of habeas corpus in [New York’s trial-level courts], . . . and many [have been] granted”). Not all have been pretrial detainees, however, and in a number of cases the courts relied on a more petitioner-friendly state due process standard for granting relief. See People ex rel. Williams v. Brann, 67 Misc. 3d 1232(A), at *8 (N.Y. Sup. Ct. 2020) (denying relief but citing other decisions, not yet available online, that granted relief). In one case involving the Rikers Island Jail, a court released 18 people at once, some of whom were alleged to have violated parole and were incarcerated pursuant to an underlying conviction. See, e.g., People ex rel. Stoughton (Jeffrey) v. Brann, Index No. 451078-2020, April 6, 2020 (Sup Ct., N.Y. County, Dwyer, J.) (finding officials were deliberately indifferent, even if acting in good faith, and granting habeas relief, finding petitioners established due process violation under N.Y. state law and citing Brown v. Plata, 563 U.S. 493 (2011) for authority of courts to order release of prisoners).

Eligibility for Bail. Another question is whether a habeas petitioner, duly convicted and serving a prison sentence, may be entitled to release on bail pending the disposition of his or her claim. The North Carolina Supreme Court long ago said that “[p]roceedings under the writ of habeas corpus, which have for their principal object the release of a party from illegal restraint, must necessarily be summary and prompt to be useful . . . .” State v. Miller, 1 S.E. 776, 778 (1887). Given their purpose, the question arises whether bail may be considered during the pendency of a petition. The answer seems to be yes.

G.S. 17-32 directs the court “to do what to justice appertains in delivering, bailing or remanding [a] party” in a habeas proceeding. See also Ex parte Bailey, 166 S.E. 165, 167 (N.C. 1932) (interpreting predecessor statute), rev’d on other grounds, South Carolina v. Bailey, 289 U.S. 412 (1933). In 1976, the N.C. Supreme Court, citing a different statute, G.S. 17-35, held that a pretrial detainee “may be admitted to bail in a habeas corpus proceeding if the trial judge determines that the prisoner is so entitled.” State v. Parks, 290 N.C. 748, 751 (1976). In addition to this statute, Parks relied on State v. Herndon, 12 S.E. 268, 269 (N.C. 1890), a case also involving pretrial detention but for a capital offense for which bail is ordinarily impermissible. In Herndon, the Supreme Court observed that bail may be appropriate “in very exceptional cases, such as where the prisoner is afflicted with . . . disease, and his continued confinement in prison will probably result in his death.” While the question remains whether our courts will grant habeas relief to a medically vulnerable prisoner serving time pursuant to a conviction, the cases suggest that bail may be permissible while they consider the question.

Although North Carolina case law on the subject is sparse, Parks and Herndon are consistent with the findings of courts that have surveyed other jurisdictions. Those courts have concluded that “courts had inherent authority at common law to grant bail pending a determination on the merits” in habeas and related actions. State v. Feng, 421 A.2d 1258, 1264–65 (R.I. 1980); see also Shamblin v. Hey, 256 S.E.2d 435, 437 (W.V. 1979) (stating that “a large number of state courts conclude this power exists”); Johnston v. Marsh, 227 F.2d 528, 531 (3d Cir. 1955) (stating that “at common law courts had the inherent power to grant bail” and that the “authority was exercised in habeas corpus cases pending decision on the merits”).

I will continue to monitor and post updates on state habeas proceedings during the pandemic. Please feel free to leave a comment or contact me directly if you have information you would like to share.