State v. Daw

Erwin Byrd

Amicus Consultant

Erwin Byrd started working with NCAJ in January 2020. Her legal career began with a seven-year stint at Legal Aid of North Carolina, where she was a staff attorney for its statewide project, Advocates for Children’s Services. There, she represented children in matters involving special education, access to a constitutionally adequate education, school discipline and Medicaid. Byrd taught school discipline law as an adjunct at North Carolina Central University School of Law and clerked from 2017-2019 for Justice Samuel J. Ervin IV at the Supreme Court of North Carolina.

She is an avid reader, loves writing and enjoys researching all areas of law (with the possible exception of taxation and trusts and estates law). At NCAJ, she is the contracted amicus consultant, who writes and assists in the drafting and filing of amicus briefs in North Carolina state and federal appellate courts. This year, she is the president of her children’s elementary school PTA, and has found that’s about all the extracurricular work she can sustain. Byrd is a graduate of the University of the South in Sewanee in Tennessee and the University of North Carolina School of Law. She, her husband and their two children live in Durham and can often be found at a soccer field or in a lake or river.

Case Link View Now
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.