State v. Daw, ___ N.C. App. ___, 2021-NCCOA-180 (May. 4, 2021)

The defendant, who was serving prison sentences for obtaining property by false pretenses, filed a petition for habeas corpus on June 15, 2020 alleging that his continued imprisonment during the COVID-19 pandemic violated the state and federal constitutional guarantees against cruel and unusual punishment. The trial court summarily denied the petition the same day on the basis that the defendant was held pursuant to a valid final judgment in a criminal case entered by a court with proper jurisdiction, citing G.S. 17-4(2).

The Court of Appeals granted certiorari review. Six days after oral argument, the defendant was released to serve the remainder of his sentence outside of prison. Notwithstanding the defendant’s release, the Court addressed the merits of the petition pursuant to the public interest exception to the mootness doctrine.

Applying de novo review, the Court of Appeals determined that the trial court’s summary denial of the petition was proper even though its reasons for doing so were legally incorrect. After reviewing the origins, evolution and limits of the writ of habeas corpus under state law, the Court concluded that the general rule in G.S. 17-4(2) is subject to the exception in G.S. 17-33(2),which provides that discharge of a lawful term of imprisonment may be based upon “some act, omission or event” that takes place after the judgment is entered.

The Court determined, however, that the defendant failed to make a threshold showing of evidence individualized to the circumstances of his case that such an act, omission or event had occurred. While the defendant averred that he had a “long history of respiratory illness” and submitted information about the risks of COVID-19 for prisoners, he did not submit materials that showed how his medical conditions put him at an elevated risk for serious illness or other medical complications from COVID-19. Affidavits submitted by defendant and his wife in which they opined about the risks COVID-19 posed to the defendant based on his medical history and diagnoses were insufficient to bridge the gap between the defendant’s individual circumstances and the general information regarding the dangers of COVID-19 to people with respiratory conditions and confined in prison since neither defendant nor his wife had the requisite expert qualifications. In addition, the defendant’s medical records, which showed that the Division of Public Safety first learned of the defendant’s history of respiratory illness after news of the pandemic was widespread, did not provide a colorable basis for concluding that the defendant’s claims had merit.