1. Introduction

This guide is intended to provide helpful information about post-conviction legal procedures for North Carolina prisoners. We have included basic background information about the criminal courts, as well as tips for the more advanced pro se (meaning, "self-represented") litigator. The most relevant statutes and forms are available from our office. The guide deals only with procedures, and we do not try here to explain all the possible criminal and constitutional law grounds for post-conviction challenges.

By "post-conviction procedures," we are talking about the main legal procedures available to challenge a conviction after the direct appeal has been lost. These are (1) the Motion for Appropriate Relief (MAR) in state court (followed by a Petition for Certiorari to the North Carolina appellate courts), and (2) the Petition for Habeas Corpus (PHC) in federal court (followed by an appeal to the Fourth Circuit Court of Appeals). We will not discuss the "habeas corpus" procedure in state court (which has a very limited purpose and is completely unrelated to federal habeas corpus).

In both state and federal courts, self-represented persons will be appointed a lawyer if the court finds that the case has enough merit to require an in-court hearing with witnesses. Therefore, this memo will focus on how to present your case in writing so as to maximize your chances of obtaining a hearing -- and court-appointed counsel -- but we will not deal with the conduct of the hearing itself. We recommend that you read this guide and gather all the forms you will need before filing any court papers.

2. The Trial Court

Trials and guilty pleas occur in the District Court and Superior Courts, located in every county of the state. The state trial court is where the witnesses for and against the defendant testify in front of a judge and jury. The defendant has the right to the assistance of a lawyer to cross-examine the witnesses of the prosecution, to present evidence that the defendant is not the one who committed the crime (such as evidence that another person did it, or that the defendant was somewhere else at the time -- an "alibi"), or to suggest that what the defendant did was not really a crime (such as evidence that a killing was done in self-defense or that the alleged rape victim consented to sex). Often, there is no good defense evidence available, and the defendant simply tries to show that the state's case is so weak that it does not meet the requirement of "proof beyond a reasonable doubt."

The jury's decision about guilt or innocence is final, unless the defendant can show that there was something wrong with the trial court proceedings that violated the defendant's legal rights and made the procedure unfair. A written record is kept of the trial evidence, including witness testimony and exhibits, so that it can later be determined if there was any error.

However, even though a court reporter records all the testimony, most of the time no record is made of the jury selection process or the lawyers' arguments to the jury. The court reporter's record consists only of stenographic notes or audio tapes -- a written transcript of the trial is not prepared unless there is an appeal. Where the defendant pleads guilty in Superior Court or pleads guilty to a felony in District Court, the court reporter also keeps a record of what is actually said in court. Since there is usually no right to appeal from a guilty plea, a written transcript ordinarily is not prepared.

3. The Direct Appeal

The Appellate Division of the North Carolina court system has two levels, the North Carolina Court of Appeals and the North Carolina Supreme Court, both of which are located in Raleigh. These courts do not hold trials or hear evidence, but simply review the written record of the trial court. If the trial court did anything wrong that made the conviction unfair or illegal, the appellate courts can order the trial court to conduct the trial over again, to have a new sentencing hearing, or to set the defendant free. However, it is not enough to argue that the jury convicted an innocent person--the appellate courts will accept the verdict of the jury unless there is a serious error in the written record of the trial. Even if there is an error, the appellate court might still affirm the conviction if it finds that the error was "not prejudicial," that is, that the error didn't make any difference to the outcome of the trial.

A defendant who pled not guilty and was convicted by a jury has an absolute right to appeal and to be represented by a lawyer on the appeal.

A defendant who pled guilty does not have the right to appeal except in several limited situations. These rights differ for defendants who pled guilty under structured sentencing and for defendants who pled guilty prior to structured sentencing. In all guilty plea cases, a defendant has the right to appeal when he filed a motion to suppress evidence that was denied prior to the guilty plea, or when the defendant asked to withdraw his guilty plea but the judge would not allow it.

A defendant who pled guilty under the Fair Sentencing Act has the right to appeal his sentence if it was greater than the presumptive sentence for that crime. The issue to be appealed is the judge's finding of aggravating factors or his failure to find mitigating factors. However, if the defendant agreed to a specific sentence as part of a plea bargain, there is no right to appeal the sentence.

Under structured sentencing, a defendant who pled guilty has the right to appeal his sentence if he received a minimum sentence that does not fall within the presumptive range for the defendant's prior record level and class of offense. A defendant who pled guilty also has a right to appeal whether the sentence he received results from an incorrect finding of his prior record level or is an unauthorized sentence for his prior record level or class of offense.

To appeal, the defendant or the defense attorney must give oral notice of appeal in open court, or file a written notice of appeal which must be received by the clerk of Superior Court within ten days of the conviction. There is an exception to the ten day appeal deadline -- if the defendant filed a Motion for Appropriate Relief (MAR), within ten days of the conviction, the appeal deadline does not expire until ten days after the MAR is decided.

If you missed the deadline for filing notice of appeal, it may be possible to obtain appellate review of your case by filing a "Petition for Certiorari" in the NC Court of Appeals or NC Supreme Court. Petitioning for "Certiorari" means simply that you are asking the appellate court to consider your case even though you don't have an absolute right to take an appeal. In a Petition for Certiorari, you explain the reason you missed the deadline (for instance, that you were not advised of the procedure and time deadline for filing an appeal).

For most felonies, the appeal goes to the NC Court of Appeals, which meets in panels of three judges at a time. At the present time, only first-degree murder convictions in which a death sentence was imposed go to the NC Supreme Court, where all seven judges consider each case.

The appeal process can take a long time because there are many things that must get done before the appellate court announces its decision. The court reporter must prepare a transcript of the proceedings, the attorneys for the state and the defendant must prepare the record on appeal (a collection of the documents and transcripts for the appellate court to examine), and they must study the record, research the law, and prepare legal briefs. The appellate court judges must then become familiar with the record, the briefs and the applicable law. While the NC Supreme Court always hears oral argument by the lawyers, the NC Court of Appeals usually does not have oral argument in criminal cases. A criminal defendant does not have a right to be present at the oral argument of his appeal if he is in prison. Finally, the judges must prepare a written opinion announcing the decision and explaining the legal reasons for it. The whole appeal process is made even slower by the great number of criminal cases awaiting decision, and it can easily take one year from filing an appeal to issuance of a decision.

If the NC Court of Appeals affirms your conviction, you may seek further review in the NC Supreme Court in one of three different ways, depending on the circumstances:

1. You can file an appeal to the NC Supreme Court, but only if (a) there was a dissent by one of the three Court of Appeals judges, or (b) the appeal raises a question about the NC or United States constitutions. If one of these circumstances exists, you should be able to get help from the same lawyer who represented you in the Court of Appeals.

2. You can file a "Petition for Discretionary Review" ("PDR"), asking that the NC Supreme Court exercise its discretion to consider the decision of the NC Court of Appeals because the case has "significant public interest," involves important legal principles, or conflicts with a decision of the NC Supreme Court. A PDR must be received in the NC Supreme Court within thirty-five days from the date of the opinion of the NC Court of Appeals.

3. If the deadline for filing a PDR has passed, you can file a "Petition for Certiorari." Such a petition must be filed in the NC Supreme Court "without unreasonable delay."

An attorney will probably not be appointed to represent you on a PDR or Petition for Certiorari. There is conflict among the federal courts in North Carolina about the need to file a PDR or Petition for Certiorari in order to exhaust your claims in preparation for going to federal court. It is in your best interest to file a PDR or Petition for Certiorari with the NC Supreme Court because some federal courts require that you file your case with the highest state court in order to exhaust your claim, and because some claims will not be considered by the federal courts. For example, federal courts ordinarily will not hear claims based on state law rather than the U.S. Constitution, and cases involving some federal issues that were fully and fairly addressed in the state trial court (such as search and seizure questions arissing under the Fourth Amendment). If such claims have been decided against you in the NC Court of Appeals, a PDR or Petition for Certiorari to the NC Supreme Court is the only procedure available to pursue that claim. If you win in the NC Court of Appeals, the state can seek review in the NC Supreme Court.

If you lose in the NC Supreme Court, it is possible to ask the U.S. Supreme Court to review your case by means of a Petition for Certiorari filed in the U.S. Supreme Court. However, the U.S. Supreme Court rarely reviews state court criminal cases, even when the petition is written by a lawyer -- and the U.S. Supreme Court will only consider legal arguments based upon the U.S. Constitution. It will not consider questions of state law.

The arguments that are raised in the direct appeal can affect your ability to get into federal court. For this reason, you might want to specifically request that your appellate lawyer include not only state law arguments, but also arguments based on the U.S. Constitution. See the section below on "Planning Ahead for Federal Court."

4. Getting A Lawyer After Your Direct Appeal

Although prisoners have the right to hire an attorney to represent them in post-conviction procedures, there is no absolute right to court-appointed counsel after the direct appeal is over. However, North Carolina Prisoner Legal Services, Inc. (NCPLS), will provide you with a free evaluation, by a lawyer, of your chances for successfully challenging your conviction. If you write to NCPLS, we will send you a "Post-Conviction Request for Assistance" form, which asks you questions about your case. We will also ask you and the clerk of court for documents needed to understand your case. An attorney will then review your case and give you a written opinion about the chances for a successful post-conviction motion. NCPLS will not review any case in which there has been a direct appeal until the direct appeal has been decided.

NCPLS provides lawyers to represent prisoners in state and federal courts, but only if we think your case has a reasonable chance of succeeding. Post-conviction challenges are almost always a long shot. By definition, a case coming to NCPLS for post-conviction evaluation has already lost at trial and on direct appeal, or involves an admission of guilt through a guilty plea. It is a rare case that has the kind of unusual circumstances that offer a reasonable chance of convincing yet another court to overrule all the judges that have already looked at the case. For this reason, NCPLS offers representation in only a small number of post-conviction cases.

If you have a death sentence, you should contact the Center for Death Penalty Litigation.

5. Self-Help and Help From Non-Lawyers

If NCPLS does not agree to represent you, you still have the right to represent yourself. lthough the procedures can be difficult and success is rare, a few prisoners have gained new trials by filing their own post-conviction papers. However, NCPLS will not provide legal research, copying or other support services. NCPLS serves prisoners best if we put our limited time and resources into representing inmates that have the best chances of winning, rather than providing support services in marginal cases.

It used to be that prisoners could prepare legal papers for each other. However, there is now a Department of Correction regulation that makes it a disciplinary infraction for prisoners to prepare legal papers for other prisoners. If your case has been rejected by NCPLS and you were not able to get help from other inmates because they were threatened with a write-up, please write to NCPLS and let us know. We are concerned that the regulation can be applied in a manner that would be unfair to inmates who have difficulty reading and writing, or who otherwise need help in order to proceed with a pro se post-conviction challenge.

North Carolina prisoners may be able to get some assistance from North Carolina law students. Also, several helpful books are available from Oceana Publications: The Prisoner Self-Help Litigation Manual ($17 last time we checked), and Post-Conviction Remedies:- A Self-Help Manual (price not known). (Addresses are collected at the end of this guide).

6. Motion for Appropriate Relief (MAR) in State Court

If your direct appeal is denied, the first decision you need to make is whether to file a Motion for Appropriate Relief ("MAR") in state court or to go directly into federal court with a Petition for Habeas Corpus ("PHC").

A. When Is An MAR Necessary?

If all of your post-conviction arguments are based on facts that were revealed at trial, and the legal arguments were all presented to the state appellate court, then you don't need to file an MAR before going to federal court. But, if your argument is based on facts not presented at trial that can only be proved with additional evidence, or if you want to raise a legal argument that for some reason was not raised on direct appeal, then an MAR in the Superior Court in which you were convicted is the next step after an unsuccessful appeal.

For instance, if the problem is that your attorney failed to get an important witness to testify at your trial, that issue can't be raised on direct appeal because the missing testimony of the witness will not be part of the written record. Remember, the appellate courts don't hear evidence, but only review the record from the trial court. You will have to file an MAR and get the testimony of the missing witness into the record.

An MAR is also the way to go if you want to challenge the validity of a guilty plea based on your misunderstanding of the law, bad advice, or a broken plea bargain. Since you usually can't appeal from a conviction based on a guilty plea, the correct procedure would be to file an MAR and ask for a hearing so you can take the witness stand and testify about what happened, why you pled guilty, and maybe call other witnesses, too.

An MAR might also be the way to go if you are trying to exhaust a federal constitutional claim that has not already been considered by the state courts. For instance, if your direct appeal argued that evidence was admitted in violation of the state rules of evidence, but the Federal Constitution was not mentioned, then the Federal constitutional claim might not have been "exhausted," and the federal court will not consider your claim until you have fairly presented your federal constitutional argument to the state courts in an MAR.

However, an MAR will do you no good at all if your claims are based on evidence that can be seen in the record of your trial, and all your legal and constitutional arguments have already been presented to the state courts at trial and on direct appeal. In that case, your claim is already "exhausted," and you can go directly into federal court with a PHC.

It is common for some claims to be exhausted and some not. In that case, you need to exhaust the claims that have not been addressed by the state courts by raising them in an MAR. This must be done before you take any of your claims into federal court, otherwise, you will have a "mixed petition." (See below.) You should not take the exhausted claims into federal court right away, thinking you will exhaust the others and bring them into federal court later, because you may be precluded from filing a second PHC by the "abuse of the writ" doctrine. (See below.)

B. Obtaining A Guilty Plea Transcript

If you pled guilty in Superior Court or pled guilty to a felony in District Court and had no direct appeal, the clerk of court will have a copy of the "Transcript of Plea" form that you signed. It will contain the terms of any plea bargain that you made. At the time you pled guilty, this form should have been read out-loud by the judge, and everything that was said, including your answers to the judge's questions, will have been recorded by a court reporter. However, the recording of what was actually said in open court is not usually transcribed since there is usually no right to appeal from a guilty plea.

Sometimes it's important to get the guilty plea hearing transcribed so you can use it as evidence in an MAR. There are three ways to get the transcript: (1) You can write to the clerk of court and ask for the court reporter's name and address, then write to the court reporter and offer to pay for the transcript preparation -- usually payment in advance of approximately $150.00 is required, but it varies among court reporters, or (2) You can file a "Motion for Preparation of a Transcript," requesting the court to provide the transcript free of charge, since you can't afford to pay the court reporter, or (3) You can go ahead and file your MAR and include a request for the transcript in the MAR, itself.

We recommend that prisoners either (1) pay for the transcript, or (2) include the request in the MAR. We do not recommend that you waste time asking for a court order for a free transcript. Free guilty plea transcripts are almost never granted before an MAR is filed, but sometimes the court will order a transcript prepared after the MAR is filed in order to see what actually happened at the time the defendant pled guilty. There is no legal right to a free guilty plea transcript just to look through it and see if there are any errors. Since you were present at the time you pled guilty, you have first-hand knowledge of what happened in court. In addition, much of what is said in open court is read right from the "Transcript of Plea" form that you signed. For these reasons, most judges will deny a request for a free transcript, since the prisoner can file an MAR based on the "Transcript of Plea" form and the prisoner's personal knowledge of what happened in court.

C. How To File An MAR

The MAR is filed in the Superior Court in which you were indicted and convicted. There is no filing fee. You must also send a copy of the MAR (and any other papers that you send to the court) to the District Attorney by mailing it to him with a "certificate of service" attached. (The certificate of service form attached to the MAR form can be copied for use when serving other documents.)

It is most important that your MAR include a clear statement of all the facts that you think are relevant to the claim that your conviction should be overturned. If the MAR is based on facts that can't be determined from the record of the court, then you must attach one or more affidavits from witnesses in order to show the court that you can offer evidence to prove your statement of facts. You can be one of your own witnesses and you can attach your own affidavit. Affidavits should consist of simple statements of fact about which the witness has personal knowledge. Affidavits must be notarized and you should submit to the court the original with the notary's stamp. You can also attach other relevant papers to the MAR as exhibits.

In addition to stating the facts and presenting supporting affidavits and documents, the MAR should state one or more legal arguments showing why the facts require the court to overturn your conviction. The legal argument can be simple, for instance, "these facts show that my constitutional rights to due process of law and to the effective assistance of counsel were violated." You should clearly state the specific constitutional rights you are asserting. The more common grounds are listed on the MAR form, but that is not a complete list of all the possible constitutional arguments that can be made. Arguments based on the state laws of North Carolina can also be made.

Because of the requirement that claims be exhausted, and because of the danger of "procedural default," a well-drafted MAR should include all available factual and legal arguments, particularly all arguments based on the U.S. Constitution. It is better to spend extra time to prepare an MAR that contains all available grounds and legal arguments, rather than to rush into court with the first argument that you can think of. You might not get a second chance.

Note: There is a one-year time-limit for filing a Petition for Writ of Habeas Corpus in federal court. You must file your MAR within one year from the final state court affirmance of your conviction and sentence on direct review if you want to preserve your right to file a Petition for Writ of Habeas Corpus.

D. After The MAR Is Filed

Many MARs are dismissed as soon as they are read by the Superior Court Judge. Sometimes the District Attorney will file an answer to the MAR, and then it is dismissed. If the court thinks your MAR has possible merit, the court will appoint an attorney to represent you at further proceedings, such as an evidentiary hearing. If you have not heard anything from the court after a reasonable time (say, six to eight weeks), you may want to write to the clerk of court and ask about the status of your MAR. If four months goes by and your MAR still has not been considered, you might try writing directly to the Senior Resident Superior Court Judge for that county and ask for help in getting a ruling on your MAR. In cases of extreme delay, you have the option of filing a Petition for a Writ of Mandamus in the Court of Appeals, asking the Court of Appeals to order the Superior Court to decide the MAR.

E. Petition For Certiorari

If the Superior Court dismisses your MAR, the next step is to file a petition for certiorari with the appellate courts. Like a direct appeal, the petition is filed in the NC Court of Appeals (unless it involves a death sentence for a first degree murder conviction, in which case, it is filed in the NC Supreme Court.) A petition for certiorari is required in order to exhaust the arguments in your MAR for presentation to the federal court. There is no right to appointed counsel to help prepare a petition for certiorari.

The petition should include all the factual and legal arguments that were in the MAR -- to make sure, you can attach a copy of the MAR to your petition for certiorari. The petition should be filed "without unreasonable delay." There is no specific time deadline, except if the case involves a death sentence. However, because your MAR may contain federal claims that would serve as a basis for a habeas petition, you should file your certiorari petition as soon as possible after your MAR is denied. A copy should be served on the NC Attorney General's Office.

7. Planning Ahead For Federal Court

Before filing anything, it is important to understand the relationship between state and federal courts -- the handling of your case in state court can affect your rights when you finally get to federal court.

A. Stating A Federal Claim Under The U.S. Constitution

The North Carolina courts have the most power over state criminal proceedings -- they apply laws and procedures from the North Carolina Constitution, North Carolina statutes, North Carolina rules of court, and case precedents from the opinions of the North Carolina appellate courts. State courts are also supposed to follow the United States Constitution, but they have a lot of other things to think about too.

On the other hand, the federal courts are courts of the national government, so they are only concerned with national laws, such as the U.S. Constitution. If you can convince the federal court that the state courts failed to protect your rights under the U.S. Constitution, the federal court can order the state to release you or give you a new trial. Federal courts have the power to overrule even the North Carolina Supreme Court on claims involving the U.S. Constitution. However, the federal courts will not do anything about errors of state law, so it does no good at all to complain in a federal PHC that the state court violated a North Carolina statute or other state law.

Because of this power, federal court is often where you want to go with your post-conviction challenge, but it is not easy to get there. You can only make arguments based upon the U.S. Constitution, and you must first present these arguments to the state courts in the same constitutional terms that you want the federal court to consider.

B. Exhaustion

Before federal courts will consider claims that state convictions violated the U.S. Constitution, the claims must be "fairly presented" to the state courts, including an appeal to highest state court. In other words, the prisoner must "exhaust" state remedies.

Failure to exhaust state remedies is the number one reason for dismissal of federal habeas corpus petitions. One reason this is such a problem is that the federal courts will not consider a "mixed petition" -- that is, a PHC that includes both exhausted and unexhausted claims. If the PHC includes five arguments and all but one have already been presented to the state courts, the federal court will still dismiss the whole PHC because of the one unexhausted claim. As a general rule, you must not only tell the state court about the factual basis of each claim, but you must also inform the state court of the specific constitutional right that you think was violated. For this reason, when you are preparing your state MAR, you should also be thinking about your federal PHC, and you should include in your MAR all available claims under the federal constitution, mentioning as specifically as possible the constitutional rights that you think were violated.

C. Procedural Default

Even if you have a good argument that your conviction violated the U.S. Constitution, the federal court will not consider that claim if the state courts rejected your claim on the grounds that you failed to follow proper procedures. Such a claim is said to be "procedurally defaulted." If that happens, you have not only lost your legal right to have the state court consider the error, you may also have lost the right to have the federal court review that claim in a PHC.

Following are some common ways that claims can become procedurally defaulted. (1) There was a possible error during the trial, but the defendant made no objection at the time. Look at the appellate opinion to see if the court rejected the argument on the grounds that there was no timely objection. (2) There was a possible error that could have been raised on direct appeal, but it was not. A state court ruling on an MAR might say that you lost the right to complain about the error by failing to raise it on direct appeal. (3) There was a possible error that could have been raised in a previous MAR, but it was not. A state court ruling on a second MAR might refuse to consider the error because you should have raised all your arguments in the first MAR.

When you draft your first MAR, be sure to include all the claims that have a reasonable chance of success, and make sure that all the claims make specific reference to the U.S. Constitution. If you fail to include a claim in your first MAR, you probably will be procedurally barred from raising it in a second MAR, and this will also probably prevent you from ever raising it in a PHC in federal court.

The applicable statute, G.S. 15A-1419 requires the court to find procedural default for a non-capital defendant in the following situations: (1) upon a previous motion made pursuant to this Article, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so; (2) the ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion in the courts of this state or federal court, unless there has been a retroactively effective change in the law controlling such issue; and (3) upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so. If one of these grounds exists, your claim will be procedurally defaulted and the merits of your motion will not be addressed unless you can demonstrate actual prejudice resulting from your claim, or that failure to consider your claim will result in a fundamental miscarriage of justice.

Another notable exception to the procedural default rule is the principle that a finding of procedural default by the state court is only binding on the federal court if the last state court to rule on the claim unambiguously based its decision on procedural default. For instance, if the Superior Court denies your MAR in an order that says "the claim could have been raised on direct appeal, and is without merit," but the court never explicitly says "the claim is procedurally defaulted," the claim is probably not procedurally barred in federal court. Harris v. Reed, 109 S.Ct. 1038 (1989). However, if the Superior Court writes, "The claim is without merit and is procedurally defaulted," and then the N.C. Appellate Court simply denies certiorari, the claim is procedurally barred in federal court. Felton v. Barnett, 912 F.2d 92 (4th Cir. 1990).

It may be possible to avoid the procedural default rule if your lawyer's failure to object at trial or to raise an issue on direct appeal is determined to have been the result of ineffective assistance of counsel. A criminal defendant has a Sixth Amendment right to the effective assistance of counsel.

Finally, if the state court holds that your claim is procedurally barred, the federal court can still consider the claim if it finds that the state court was wrong as a matter of state law in applying the procedural bar to your situation, or if the federal court finds that the procedural bar applied by the state court in your case is not one which is regularly applied to all cases similar to yours.

8. The Petition for Habeas Corpus (PHC) in Federal Court

IMPORTANT: Your PHC must be filed within one year from the final state court affirmance of your conviction and sentence on direct review, or from the expiration of time for seeking such review. The one-year time-limit excludes periods during which a motion for appropriate relief or petition for writ of certiorari is pending in state court.

A. Preparing the PHC

The federal courts have an official PHC form for prisoners to use. The form includes directions that are pretty much self-explanatory. By the time you sit down to write your PHC, all your claims will have already been written down and presented to the state courts (if a claim hasn't been explained to the state court in writing, it is probably not exhausted and you are not yet ready for a PHC). Therefore, writing the PHC usually involves copying the relevant claims from your state court papers. The first step in writing your PHC is to obtain:

a) The State court appellate brief
b) The opinion of the state appellate court (There usually will not be an appellate brief or an appellate opinion in guilty plea cases.)
c) Copies of all state MARs you filed
d) The state court orders on the MARs

These papers can usually be obtained from your attorneys or from the clerk of court. Sometimes there will be a copying fee. Your legal papers, including your transcript, belong to you, even if they are in the possession of your lawyer. The Rules of Professional Conduct for Attorneys require the lawyer to return these papers to the client at the end of the representation upon the client's request. However, if your attorney does not have your transcript or other papers, or has already provided them to you, the attorney is not required to obtain them for you or to send you duplicate copies.

Make sure that: (1) your PHC includes all the claims that you want the federal court to consider; (2) all the claims are stated in terms of the Federal Constitution; and (3) all claims have been presented to the state courts, either on direct appeal (look in your appellate brief and the appellate opinion), or in an MAR followed by a certiorari petition.

Like the state MAR, it is most important that your PHC include a clear statement of all the relevant facts, in addition to the statement of the constitutional rights that you think were violated. You can attach additional sheets to the PHC form, but you should not attach more than the minimum necessary to fully explain the facts. Long, rambling PHCs and MARs are generally not very effective. If you have affidavits or documents that support your case, you should attach them to the PHC.

B. Filing The PHC

The PHC should be mailed to the federal court district which encompasses the county of your conviction. (There are three federal court districts in North Carolina: the Eastern District, the Middle, and the Western.) The PHC should include a request to proceed in forma pauperis ("IFP"), (literally, "as a poor person"). We recommend that prisoners pay the $5.00 filing fee because there can be months of delay while the court verifies the petitioner's prison trust account. The IFP application should still be made, however, because it is needed for appointment of counsel.

C. Filing Motions With The PHC

A "motion" is a written request aksing the court to do something. You may want to file some of the following motions before the Court rules on your PHC. For example, it is a good idea to submit a separate "Motion for Appointment of Counsel" in addition to your PHC.

In some unusual cases, other motions are worth considering. (1) If some of the evidence needed to support your PHC is in the possession of the prosecutor or the police, you can file a "Motion for Leave to Conduct Discovery." "Discovery" is the legal term for requests for information from the other side in a lawsuit. The request must have attached to it the specific interrogatories (written questions) and documents that you are asking the court to allow. (2) If there are issues involved that require the assistance of an expert, you can file a "Motion for Funds to Hire an Expert." Such a motion should explain why you cannot present your case without the expert's help. For instance, if your PHC involves an insanity defense, you might need the help of a psychiatric expert to help you present your case to the court.

Both the discovery and the expert motions are rarely granted, and almost certainly will not be granted unless the court decides your case has enough merit to appoint a lawyer to represent you. You shouldn't ask for discovery or an expert unless you have a genuine need and can support the motion with a reasonable and specific argument. In most cases, no discovery or expert will be needed.

D. Initial Review By The Court

The court first reads the PHC to see if it states a claim. If so, the court sends a copy of the petition to the North Carolina Attorney General (AG), and orders the AG to file an answer within a certain amount of time, typically 45 days. The court also can dismiss the PHC on the merits without requiring the state to respond.

E. The Answer

The "Answer" is the state's formal response to the allegations in your petition. When the AG files the answer, a copy will be sent to you. From then on, every time the AG sends something to the court, a copy will be sent to you. Similarly, every time you send something to the court, you must send a copy to the AG, with a certificate of service attached. At this time, with the Answer, the AG routinely files a copy of the state court record and trial transcript .

The Answer will usually include the state's version of the facts, which will often conflict with the facts alleged in the PHC. As part of the Answer, or along with it, the AG will usually file a Motion for Summary Judgment. In such a motion, the AG will usually ask the court to dismiss the petition for a variety of reasons, including: (1) one or more claims have not been exhausted in the state courts; (2) one or more of the claims are procedurally barred; (3) the PHC does not contain a specific statement of facts; (4) the facts alleged in the PHC do not amount to a violation of the U.S. Constitution; (5) the PHC is not based on the U.S. Constitution, but on state law; and/or (6) the petitioner has "abused the writ" by filing a "successive petition" -- in other words, the prisoner filed a PHC before this one and could have included the present claims in the previous PHC, but did not.

F. Response To The Answer or Motion

If the AG asks the court to dismiss your PHC, it is generally a good idea to file a document that provides the court with information, argument, or an explanation that responds to whatever defects the AG said were in your PHC. For instance:

If the AG's Answer or Motion contains facts that you think are not true, your response should point out to the court what you think the true facts are, supported by a witness affidavit or document, if available. If the AG says that your claims are not exhausted, but you think they are, you need to explain to the court why you think your claims have been "fairly presented" to the state courts.

If the AG is correct about your PHC containing unexhausted claims, your options are to: (1) ask the court to go ahead and dismiss the unexhausted claims, probably losing them forever, so you can proceed on the exhausted claims; (2) ask the court for a chance to amend the PHC by taking out the unexhausted claims in the event the court agrees with the state that some claims are unexhausted; or (3) voluntarily dismiss your whole PHC (or wait for the federal court to do so), so you can return to state court and exhaust the claims that have not yet been considered by the state courts. The option you choose will depend on your assessment of the strength of the claims that you might lose, and the value to you of the time that it will take to exhaust them.

If the answer says that you have "abused the writ" by not including your present claims in a previous PHC, you should explain to the court why you think that you should be excused from your failure to include the claim in the previous PHC. Arguments that might support such a result might include, for instance, that you were not in a position to know about the claim, that you lacked access to legal materials, or that you only discovered the claim after filing the earlier PHC. A U.S. Supreme Court case called McClesky v. Zant holds that a second PHC which raises claims that were not presented in the first PHC should be dismissed unless there was "cause" for the omission (meaning an extremely good excuse for not including the claim in the first PHC), and "prejudice" in the grounds you are alleging (meaning that you are not just complaining about a technical violation of your rights, but a significant error that made a real difference at your trial).

If the AG says that your claim is procedurally defaulted, but you think it isn't, explain why -- for instance, you might argue that the decision of the last state court to review the claim was not explicitly based on a finding of procedural default, or that the state court was wrong to apply the procedural default rule to a claim that your right to counsel was denied.

The habeas rules do not state exactly when a response to an answer must be filed. If the instructions you receive from the court set a specific response time, you should follow those instructions. If not, it is best to file your response as soon as you can, and if at all possible, within ten days of receiving the Answer or motion.

G. Preliminary Ruling

After the PHC, the Answer, any motions and a response have been filed, the federal court (usually a U.S. Magistrate Judge) makes a preliminary ruling. The court may dismiss the PHC, grant an evidentiary hearing, or grant the writ. The court may also decide any pretrial motions. If the court does not dismiss the PHC at this point, it will likely appoint counsel to assist you with further proceedings.

H. Appeal From Magistrate Judge's Recommendation

If the Magistrate Judge recommends that the PHC be dismissed, you will be sent a copy of his Memorandum and Recommendation, together with a notice advising that you have ten days to file "Objections to the Recommendation of the Magistrate Judge." If you file no objections, your case is over and you cannot appeal. If you file objections, the Magistrate Judge's ruling will be reviewed by a federal district court judge, who will affirm, reverse, or modify the ruling of the Magistrate Judge.

I. Appeal To The Fourth Circuit Court Of Appeals

If your case is dismissed by the district court judge, you will be sent a final "Judgment," signed by the judge. You can then begin the process of appeal to the U.S. Court of Appeals for the Fourth Circuit. This is done by filing a "Notice of Appeal" in the district court which denied the PHC, within thirty days of the judgment.

J. Certificate Of Appealability

Before you can appeal to the U.S. Court of Appeals for the Fourth Circuit, you will have to obtain a Certificate of Appealability from a judge. Certificates of Appealability can be issued by a district court judge or by a judge of the Fourth Circuit. At the same time that you file your "Notice of Appeal" in the district court which denied the PHC, you can file a Request for Certificate of Appealability in either the district court or the Fourth Circuit. If you do not file a separate request for a certificate of Appealability, the Fourth Circuit will consider your Notice of Appeal to be a request for a certificate of Appealability.

The Fourth Circuit will then issue an order either allowing you to appeal the denial of your PHC or dismiss your appeal. If the Fourth Circuit allows your appeal, you will be contacted with detailed written instructions on how to handle your appeal, and an "Informal Brief" form on which to present your arguments.

K. Petition For Rehearing

If the U.S. Court of Appeals denies relief, you can file a "Petition for Rehearing" within fourteen days of the judgment. The petition should state the particular points of law or fact which the court overlooked. You also may include a "Suggestion for Rehearing En Banc," which is a request that all the judges of the Fourth Circuit (not just the three-judge panel who denied your appeal), reconsider the case. Such requests are rarely granted, and only when reconsideration en banc is necessary to maintain the uniformity of the court's decisions, or when the case involves a question of "exceptional importance."

L. Petition For Certiorari In The United States Supreme Court

You also have the option of filing a "Petition for a Writ of Certiorari" in the United States Supreme Court, within ninety days of the U.S. Court of Appeals judgment, or within ninety days of the denial of a petition for rehearing, whichever is later. It is not necessary to seek rehearing in the U.S. Court of Appeals before filing a petition for certiorari in the U.S. Supreme Court.

Conclusion

These are the procedures available to you to challenge your conviction. We hope that this guide has been helpful.

Addresses

Lawyers for Prisoners

N.C. Prisoner Legal Services, Inc.
P.O. Box 25397
Raleigh, NC 27611

Center for Death Penalty Litigation
Suite 500, 123 W. Main Street
Durham, NC 27701

N.C. Appellate Defender
Suite 600, 123 W. Main Street
Durham, NC 27701

Lawyers for the State

Office of the Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602

Office of the District Attorney
__________ County Courthouse
__________, NC 2_______

Books

Oceana Publications, Inc.
75 Main Street
Dobbs Ferry, NY 10522