State v. Daw

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Opinion Filed May 04, 2021
Attorney for the Case Jim Melo Rob Heroy
Amicus Brief Writers Erwin Byrd
Court NC Court of Appeals
Docket No. 20-680

In its amicus brief to the North Carolina Court of Appeals, NCAJ argued that the writ of habeas corpus in North Carolina is available to prisoners who are subjected to unconstitutional conditions of confinement. NCAJ contended that the spread of COVID-19 through North Carolina’s prisons, the demonstrated inability of the Department of Public Safety to protect inmates from the deadly virus, and the particular susceptibility to coronavirus of habeas petitioner Philip Daw, who suffers from asthma and other severe respiratory illnesses, are a sufficient basis for granting habeas review.  Rather than granting such review, or any hearing of any kind, the Superior Court of Wake County summarily denied Mr. Daw’s habeas petition, on the grounds that NC General Statute section 17-4 prohibits habeas relief for anyone confined pursuant to a final judgment of a competent court with jurisdiction.

NCAJ argued that the Superior Court erred by failing to follow another provision of the habeas corpus statute, N.C. Gen. Stat. section 17-33(2), which mandates release when, “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.” This argument is supported by a plain reading of the statute, by appellate opinions of several other states, including states with habeas statutes that mirror North Carolina’s and states that have particularly considered habeas corpus relief for prisoners during COVID-19, and by state and federal constitutional law, which prohibit cruel or unusual punishment. The Court of Appeals will be hearing the case pursuant to its grant of a writ of certiorari to review the trial court’s order denying habeas corpus to Mr. Daw, who will be finished serving his sentence for nonviolent offenses in 2021. NCAJ’s amicus brief ultimately contended that the Court should follow the lead of many other states that have, for decades, expanded the use of habeas corpus beyond the severely limited inquiry into whether a person’s initial imprisonment was lawful, and consider relief for prisoners subjected to State-imposed cruel or unusual punishment, particularly during this global pandemic.