#DO MORE CLINICAL TRIALS. MORE TESTING. JESUS CHRIST
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froggiewrites · 2 months ago
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ONE IN TEN??? THAT'S SUCH A BAD RATIO SEND THAT SHIT BACK TO THE LAB
the fact that even kaido is going "wow this is sick" about this execution and the laughter
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fandom-hoarder · 3 years ago
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Ok moc!Dean is good with deaged sambut what about late season 7 Sam finding out he's pregnant and Dean is lost in purgatory. What about Sam going to term with their daughter and being only 3 months pp with her when dean comes back and all dean see's is Sam and a baby and he just KNOWS.
Omg! I have so many questions. Are we talking a/b/o here?? Would Dean have any doubts about the baby? Does this completely change the perceived betrayal of s8 or exacerbate it? Is Amelia still a thing?
Maybe Sam still meets (beta) Amelia, but at the free clinic where Sam has his pregnancy test confirmed? (He'd been in a fugue state of grief over Dean and didn't believe the otc test once he took it.) They form a bond that's more for support and companionship than romance. Then the beginning of s8 basically happens the same way, and Sam and Dean meet at the cabin, but here's this baby cooing from a carrier to break up their embrace--
And Dean's heart clenches with guilt and regret--Sammy was alone the whole pregnancy! Dean should've been there!
Would Dean still be jealous of Amelia? Fuck yes. Would he blame Sam for not looking for him? 🤔 hmm.. idk. Maybe vocally, in the heat of the moment, but I think really he'd be stewing about all the time he missed caring for Sam and their daughter. Not being a proper Alpha. Maybe even guilt about how "pure" purgatory felt. Some dissonance about how time passed there--he doesn't know at first how long he was gone.
(Oh god, dean could be really awful and suggest he's not the father, out of spite over Amelia. Why does my brain do this!!)
Sam's jealousy over Benny would depend on how Dean handles the situation.
Imagine: Dean's guilt over leaving Castiel in purgatory gets completely overshadowed by his guilt over leaving Sam and their child behind. He doesn't want Sam hunting, though, because their child needs a parent, needs safety and stability (and Sam's out of practice), so he ends up hunting more with Benny ~~jealousy ensues.
So Sam finds out about Benny and leaves their daughter with Amelia (ahahahahaaaa crazymaking!!) to go on the next hunt with Dean (Southern Comfort). Instead of Dean being the one overcome with the green ectoplasm, it's Sam, and he says a lot of the bitter thoughts that have been stewing over Benny and Purgatory and Dean putting him on the sidelines just because he had their daughter.
Everything culminates to Dean determined to close the gates to hell through the trials so they can retire and raise their daughter TOGETHER.
So--Dean could actually be the one to do the trials this time and I could explore how that would effect this situation.
BUT ACTUALLY I would still have Sam do the trials. Omgggg the way it would crank up the Winchester Angst exponentially, especially in the handfasting church  scene. Sam's confessions would involve holding anger and jealousy against Dean for being in purgatory and leaving him alone and pregnant.
Jesus imagine they finally make up before the 3rd trial, when Sam is really too weak to take a knot, but he insists on it because he knows the trials will kill him. 💔💔💔
Goddd imagine Dean clutching their daughter to himself as he prays for an angel to save Sam! Jesus fucking Christ. My heart!
(Imagine Dean finds out coma!Sam is pregnant again--cuz apparently i need to make Dean even more unhinged!)
Jfc the way this ask made my head spin O.O the way I'm thinking about Sam's chunks of missing time from Zeke/Gadreel in s9 and how that would affect Sam's relationship with their daughter/seeing milestones. Fuck dude.
ETA: AND NOW I'm thinking about how Sam being possessed by an angel would affect their fetus. 😱
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mrskeithgreen-blog · 7 years ago
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Pressing On
What word do I hate most in the English language? Cancer. To be honest, I don’t think anyone likes cancer; except maybe pharmaceutical companies.  But as I sit here reading the last brain scan results I am wondering how in the world this has become the norm?  When my kids were babies, or at least the first baby, every cough made me call the doctor.  That’s how cancer makes you feel every day of your life.  No cough or ache or pain goes unnoticed.  I would say I was born to be a caretaker.  It comes naturally to me which is why I wanted to be a nurse at a young age and wanted to have a lot of kids.  While I did not finish nursing school, I did end up with a lot of kids and a husband with cancer 4 times.  I think I get on his nerves being to motherly so he ‘forgets’ to tell me when something feels off.  He told me a few months ago that he is not going to live his life worrying about every little cough.  While I agree worry is not something I waste time on, I do take notice and get things taken care of.
It was about that time that we were preparing for the routine 6-month post brain tumor scans and doctor visits.  During that 6-month period after surgery, his vision had improved quite a bit and it seemed that he had about 75 percent vision.  When I would say I still didn’t think it was a good idea to drive, he would point out every old driver in every parking lot and tell me how terrible they were at parking and that compared to them his vision was stellar.  Did he think I enjoyed driving Miss Daisey around every day?  It’s a wonder I knew how to drive at all when I was alone in the car since he is such a great backseat driver.  I just smiled and said pretty soon you will be able to drive again and then I promise you will get 100 percent of the errands to run and kids to take to school and run to dance, soccer, baseball, football, basketball and friends’ houses.  Until then, I will be doing all of the driving.  
 It turns out you don’t know what you can’t see.  At the 6-month follow up scan and appointment we were told there was a significant change in the brain activity compared to 3 months prior.  After some more tests it appeared that he had again lost more vision.  The 75 percent that he had in November was down to 50 percent by February.  He had no idea.  The only way I can imagine it is if someone is standing behind you or at 5 o’clock, you don’t know they are there because that is beyond your scope of vision.  For Keith, regardless of which eye is closed, he couldn’t see you until you are between 9 and 1.  In the last few weeks, that has dropped even further and his window of clarity is only from 10-11 with some fuzzy pockets and some completely black pockets.  I honestly can’t comprehend it and I am with him 24 hours a day.  He does amazingly well for having limited vision.  Today he described what he sees as having a slow refresh rate of a tv.  For someone so intelligent and so hard working, I can see the frustration on his face when trying to read a text or an email. Thankfully he had a good typing teacher in high school; you’re not supposed to look at the keys when typing 😊
Since that discovery on the scan in February, the doctors were optimistic that this was a minor setback and that it’s not cancer coming back.  They called it radio necrosis, which basically means that the radiation he had done after surgery is causing some tissue to die and it is making the area inflamed and there are some leaky vessels.  Nothing a steroid taper couldn’t take care of and the vision should start to come back.  So, started the dreaded steroids.  On most days, he has an incredible optimistic outlook and a great sense of humor. Other days, he says or does something and refers to the third person steroid saying things like, “you’re not going to believe what the steroids said to Bob last night…” naturally I just shake my head because what can you do.  After a few days of steroids, the headaches stopped but the vision seemed to be getting worse.  The doctors said to give it more time and set another appointment.  By the next appointment his vision was down even further and when asked what side effects he was experiencing with the steroids he started with his list and they said, “wow, you have every one and then some!” Since the steroids didn’t seem to be working, they suggested a clinical trial for a new drug that is designed to cut off flow to the blood vessels causing the problem.  Since they seemed confident this drug would work, we asked if it was only available in the trial or could we just get the drug.  First of all, the drug is over $100,000 per dose and he would need at minimum 2 doses.  If we got into the trial, the drug is covered.  The down side is that it is a double-blind study so you have a 50/50 chance of getting the real thing.  Since his vision seemed to be getting worse and this seemed the best option, we signed up for it.  After doing all of the necessary tests and scans to prep for the trial, we received the response back that he was denied.  
It was about this time that we received a call that Keith’s ex-wife had suddenly passed away so all medical appointments and decisions were put on hold as we had to begin planning a funeral and going through all of the legal issues not to mention trying to figure out how to tell a 10-year-old and 14-year-old that their mom had passed away.  These two kids are absolutely amazing to say the least. Most people don’t have to deal with addiction, divorce, cancer, or death of a parent until much, much later in life and they have been dealing with this most of their lives.
The day after the funeral Keith had a few ‘episodes’ of confusion and memory loss that was extremely concerning.  He snapped out if it within about 20 minutes.  He convinced me that it was just all of the stress of the funeral and the lack of sleep and everything involved in going non-stop for the past week and that he was fine.  When he told me that he was freezing cold and he had a metallic taste in his mouth I said I am calling the doctor.  The doctor on call said to increase the steroid and keep a close eye on him.  Trust me, he doesn’t get far out of my sight.
The doctors called in another brain scan and scheduled us to meet with the team.  Yesterday, what I thought was going to be a quick visit and maybe a change of meds turned into a 6 hour, 7 doctors, a chest x-ray, 2 blood draws and surgery prep. It seems the cancer is back in the brain.  Surgery is scheduled in 10 days.  There is a chance they get in there and it is just the radio necrosis, but all signs point to cancer.  
To say the wind is knocked out of his sails would be an understatement.  Keith is one of the most upbeat optimistic people I have ever met so to see him with anything less than a smile makes my heart hurt.  He is not afraid of death, he has complete faith that our heavenly father is waiting for him when the time comes.  Being the selfless person that he is, he is worried about me and the kids. While it feels like we have known each other for much longer, we have only been married for two and a half years. In our short-married life, we have experienced cancer 3 times now.  We are not promised that tomorrow will be easy or even that we will have a tomorrow. That said, I do not believe that means you give up trying.  Trying to be better, and do better, and love those around you.  Sure, there are days where I would love to stay in bed all day but then I look at my husband and kids and see the hope and love in their eyes and press on.  Philippians 3:13b says “But one thing I do: Forgetting what is behind and straining toward what is ahead, I press on toward the goal to win the prize for which God has called me heavenward in Christ Jesus.” Rather than showing our kids a ‘life sucks’ attitude and ‘why is this happening to us?” we choose to wake up every day thankful for one more day here.  We chose to turn the “why is this happening?” into “what is God trying to teach me right now?”
I think the hardest part of all of this for me right now is seeing the change in my husband.  He has lost the sparkle in his eye that made me smile.  The loving, compassionate, sweet man I fell in love with is still in there but this cancer monster keeps taking over and I have to remind myself that this isn’t him and keep hope that this is temporary.  Of course, the thoughts of him waking up from surgery and not knowing who I am crosses my mind.  The possibility that with surgery his vision may worsen and stay that way permanently is on his mind.  My heart is heavy this week and the tears are many; I can’t seem to get them under control right now and I’m usually pretty good at that.  I know we will get through this and it will make us that much stronger, but a little sunshine and a nice boring stretch would be ok too…
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nolongeriwholive · 8 years ago
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Three years on (and on)
One week ago, the day before Easter, I spoke before our monthly men’s breakfast and told them that there is a difference between facts and truth. “The facts were,” I said, “that Jesus was dead. They took his body down off the cross, wrapped it, and put it in a tomb, rolled the stone across the entrance – and left him for dead. That's all they knew. The Truth was something much greater and even unimaginable.”
Then I said, “Two years and 51 weeks ago, the doctors at the Mayo Clinic told me that the facts were that I had ALS and I had 3 years to live, and the last year was not going to be a very pleasant one. They said the facts were that my body was going to deteriorate, I was going to be in a wheelchair, and need an oxygen tube and feeding tube until I ultimately wasted away.”
I stepped out from behind the lectern - on my own two feet (no cane, no braces)  - so the men could see me in full, and far from being wasted away. I smiled, inviting them to laugh, and they did, softly at first and then louder as I looked down and regarded myself as well. 
“The Truth,” I said, “is something more. God healed me of ALS,” and then they were clapping, cheering and stomping their feet. 
Three years ago today, April 22, 2014, my wife and I received that diagnoses, and the apparent death sentence. To say that the rest of that week was the most surreal in my life would not be an exaggeration. Faith and family, as you know, were the key pillars then and going forward, as you can see if you back through this blog. To some extent, a blunt diagnoses such as that can be extremely clarifying. “If the doctors say there is nothing man can do,” I reasoned to myself, “then that only leaves God.” Galatians 2:20 came to me: “I have been crucified with Christ; it is no longer I who live, but Christ lives in me; and the life which I now live in the flesh I live by faith in the Son of God, who loved me and gave Himself for me.” If I was as good as dead, then it truly was “no longer I who lived” and that became both my focus and the name of this blog that I started a few days after the diagnosis. 
If you’ve been following along here, you’ll know that 13 months after I was diagnosed I was undiagnosed, also at the Mayo. I still had some symptoms, but I was too healthy. Since then I’ve continued the story here sporadically. There were additional miracles to report (as you can scroll down to read), but also a life to live. My youngest daughter moved to Prague in late 2015 and we flew over there for 9 weeks as she transitioned, and we returned there last fall with our oldest daughter and newest grandchild. These and many other things were blessings we could barely have foreseen while sitting in that doctor’s office 3 years ago. 
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There has been great joy in our lives since that sentence was lifted, but I have also known some pain and some sadness. The sadness stems from the fact that ALS still has a spectral hold on me. Several people that I came to know during my time with the disease have since succumbed, and new people have been added. A friend and former co-worker has been diagnosed and is fading rapidly. Another man I had met and known when he was the radio voice of the Minnesota Vikings in the 90s died of ALS last month, and I was greatly moved (and saddened) to read recently of the University of Minnesota scheduling a special one-person graduation ceremony in March so a PALS father could watch his son graduate because he was not likely to live long enough for the May ceremony.  
These things touch me on a deep and personal level that is hard to explain. It frustrates me to know that others suffer, and more than once in the last year I have asked the question that I never asked  in that first year: “Why me?” I take no pride and put no stock in my own piety as having anything to do with it. There are likely people with more faith than me, and as many (and more) good reasons to live as I have, who have died, or are dying of this brutal disease.It is hard not to dwell on this at times, but I resist trying to “figure it out”. Man trying to “figure out” the ways of God is responsible for a lot of bad doctrine and pop theology out there because we insist that God’s ways make sense to us. I came to the realization that my healing was really not much different from my salvation. In both instances i had done nothing to deserve such boons, yet God had moved on my behalf, even before I knew what I needed or could ask for it. I can only trust and assume that there is a reason for it, and that reason (or reasons) will be evident in time. And, perhaps, it already is. 
I mentioned the pain I’ve experienced. I wasn’t referring to emotional pain or spiritual unrest, but severe, even crippling pain like I had never known in my experience of knee surgeries, abdominal surgery and back surgery. Late last year I ended up with a case of severe carpal tunnel in both my right and left hands and wrists. Nobody has ever died of this, but I never felt so much like I wanted to. I couldn’t move my hands or arms without pain, and I couldn’t sleep for more than 20 minutes or so before I had to move my hands again, causing me to wake up. I prayed, I struggled, I ultimately ended up getting a cortisone short in my left wrist and surgery on my right one; the recovery, too, was more painful and longer-lasting than anything I’d previously experienced. I even dipped into the prescription opiods that I’d been able to do without after previous surgeries. I was pretty miserable, and even asked God a couple of times why this was such a challenge after what I’d already received and experienced. No answer was forthcoming, until I went back to the Mayo for a post-op follow-up with my orthopedic surgeon. 
The Mayo Clinic is a huge campus; the main exam buildings are 15 stories, and when my wife and I came out of my appointment in the orthopedic section we saw a couple from Iowa in the waiting room that we had met at my son-in-law’s first church out of seminary. They had been real sweethearts to Faith and Ben and the kids, which is how we got to know them. They also knew my testimony, and as we talked to them that day in the waiting room they described the tests the wife had been undergoing for numbness in her feet. The tests and symptoms sounded all-to-familiar to us. My wife said we should pray for them, and they were all in favor of it. Without any self-consciousness, we held hands right there and I prayed. I don’t remember what words I used, but I know I asked God to bring them peace and to do what He had done in my life. As we were praying my wife noticed that a woman sitting in the row in front of us was leaning back toward us to listen, and was crying. When we finished my wife asked that woman if she would like prayer for anything as well. 
“Oh, yes,” she said, still in tears. “I was diagnosed this morning with ALS.”
“God healed my husband of ALS,” my wife said. Along with our friends from Iowa, we poured out even more for her right then and there. There was peace in her face when we finished and as we talked more about what she was going through and what I had experienced. Her mother was with her; they had driven up from Arkansas to see the doctors at the Mayo - and just so happened to be sitting in that row, in that waiting room, at that time. We exchanged phone numbers and later that evening she called me to talk some more. She told me that she had just been saved a few weeks prior to coming to the Mayo. I told her that when I was diagnosed I didn’t know  just what God was going to do, but I believed He would do something. “I don’t know exactly what God will do for you, or how,” I said, “but the fact that He could so orchestrate things so that we could meet today, right when you needed to hear this, gives me a lot of hope and confidence.” Since then we have been checking in with each other every 4 to 6 weeks. (Oh, and the first person we prayed for that day ended up getting very good news from her tests: no ALS, just a  neuropathy in her foot that could be treated with therapy.)
I addressed this in similar fashion with the men at the breakfast last week; mist of whom are going through life-altering trials and challenges of their own. “I don’t know why I am still here today, but I’m pretty sure that speaking to you is a big part of it.”
- April 22, 2017
One of my favorite songs is “The Sea” by the 80s group, The Waterboys.. I listened to this song often in the year after I was diagnosed, and in the time since then. Land-locked all of my life, I have always been mesmerized by the sea whenever I had a chance to look upon it. Similarly, this song always helped calm my mind whenever I tried to get too much into “figure it out” mode during this adventure, and brought me peace. The music critics often describe the song-writer, Mike Scott as a “mystic”, but the meaning of these verses has always been clear to me. This life is the river, and it leads to the sea. All the things I know, or think I know, as I navigate this river pale when I have glimpsed the sea and what awaits. 
I am not afraid of the shore. 
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clemency-for-the-heathen · 8 years ago
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‘To know and not to act is not to know.’ - Wang Yangmin
I’ll try not to repeat myself. I forced myself asleep as soon as I sat down on the plane to China Wednesday night, to banish the pulsing headache that was making me retch, and when I woke up we were about to land and it was 3 p.m. the next day. I was meant to be going to Tianjin, but that’s not where we landed. It turned out I had to transfer. It wasn’t specified during the booking process, it didn’t say on the ticket, the scarlet-nailed thick-as-a-pig-shit fake-tan bitch who checked me in at Gatwick didn’t tell me, and the stewardesses didn’t know whether I had to collect my luggage and re-check-in. It was then that I met a 21 year-old Chinese girl who’d been in London for a month and whose name I couldn’t pronounce, also bound for Tianjin, and she sorted out everything. Before our next flight she spent 3 hours teaching me Chinese. Explaining the 3 characters that comprise ‘airport terminal’ took about twenty minutes in itself. Why was I learning about arable farming in school instead of this? Out on the runway, the dusk was rose and dust, the land flat past the mind’s eye. When I got to Tianjin it was 9 p.m. and I had a sleepless 11 hour wait in the deserted airport without food. I read and thought and watched the night disappear hour by hour. China is a scary place and no one ever talks about it. Three times I had to stand around and wait whilst they called the airline to check I was really traveling on to Korea. Mate, why would I be trying to sneak into your shithole country? When I landed at Incheon, it was approaching midday on Friday and the sky was powder blue. 
 One of those big luxury purple buses took me back to Bundang - Jeongja specifically, right on the river, an affluent area I’d rarely frequented in the past. Sarah was waiting at the bus stop, a merry and porky South Carolinian in her early thirties who’d been responsible for hiring me. She took me to our nearby apartment complex. My room was on the 10th and top floor, freezing from vacancy but decent - wouldn’t have mattered much anyway, for the mind is its own place, and in itself can make a heaven of hell, a hell of heaven. She let me stay in her cramped place all day sucking up wifi, watching Netflix and eating junk until showing up again at 8 with her 10 month-old baby and her husband, Tom, who was from Taunton. They’d actually both been to Portishead last year to get fingerprints done for visa applications at the Police HQ. Tom spent an hour telling me about his trip to North Korea a few years back and I spent an hour asking him questions relating to it. That’s my next destination, without a doubt, one hundred percent (to visit, not to live). Sarah stuffed an air-mattress, blankets, and a a plastic basket full of cutlery, detergent, and household cleaning products into my arms, and I went up to bed. 
 The next day I had burgers with them and Anthony, a giant body-building black guy (coworker, just like Tom and Sarah) who’d thrown his back out deadlifting stupidly heavy weights and could barely walk. If anyone had any beef with him, then was the time to strike. All three of them spoke less Korean than Chris, who’s been here three times for an aggregate total of about a month, which disgusted me, but they were all so funny and friendly and interesting and I was thinking, Don’t give me more grey areas, life, please. Their baby was eating macaroni cheese; the sight was revolting and cut down the half of my appetite that the jetlag hadn’t. 
 After lunch, in a fugue state from that very same horrendous jetlag, I walked down the river to Seohyeon, where the language exchange centre I first learned Korean at is, for one of my six goals this year is to sort my Korean out by studying with a man. The centre was beset by gloom what with all its East-facing windows, and empty but for one Korean man in his twenties sat studying alone. He introduced himself as Tony, and said that he was also looking for a language exchange partner. Oh serendipity, you little cunt, only showing up when you’re not prayed for, like football miracles and cool funny women with eyes so pretty I could kill myself. Just one thing: Don’t fuck me, Tony; don’t you ever try to fuck me, I successfully resisted the urge to say. 
 I don’t remember how I spent the Sunday, but all of last week I had training, which meant sitting in on Sarah’s classes and teaching parts of them. All you have to do is follow the syllabus, standing beside the interactive screen, having the children perform videos in front of a separate green screen at the culmination of each chapter (weekly or fortnightly). The marking is time consuming but effortless. I met the boss, Minnie, a scrawny women presumably named after her round protruding ears, who had that strange empty affability that suits labour camp leaders just as well as it does businessmen. I ended up going to immigration three times in five days, a nauseating Eastern Blocesque abomination 90 minutes away on the subway staffed by utter utter cunts (I know I say cunt too much, but if there ever were a bunch of cunts, it’s at Omogkyo immigration) thanks to her fuck ups, first not booking an appointment, and secondly booking the wrong one. It became apparent that Sarah was the actual boss, had hired me, was training me, had worked in other academies connected to this in China, Japan, and Malaysia, spoke to Minnie with the freedom of a Shakespearean Fool. For instance, Minnie came into the room and asked Sarah to finish some reports by the end of the day. Sarah replied, ‘Nah I don’t think I’ll be doing that.’ Minnie’s face went blank with seething consternation for a good two seconds before she clocked that Sarah was joking, at which point Sarah broke into her Southern cackle. 
 A man came with a bed and constructed it for me; a man came with wifi and installed it for me. I’m borrowing a bike off of Anthony for six weeks until the girl he’s already sold it to comes back to Korea. I bought a TV in order to use my Mac from an American girl for thirty dollars thanks to a Facebook group called Bundang Buy and Sell, which I’d never been able to use before, as I’ve never technically lived in Bundang. She’d told me to meet her at Seohyeon station, and that she might be a bit late. She was an hour late. Her apartment was 800 or so yards from the station. The TV was huge and weighed about five kilos, the transformer I needed in order to use it that she hadn’t mentioned weighed about ten. Encumbered to an infuriating degree, I waddled back to the station like a gullible cunt, sweating through my jacket and swearing through my teeth a serpentine hiss of fuck, fuck . . for fuck’s sake … for the love of fucking Christ. Why? Why? What did I expect for thirty dollars. However, her apartment was small and filthy, and I felt staggeringly fortunate by comparison, and not only because the attractive woman in the apartment across from me walks around naked every morning with the shades drawn up. I noticed by chance, but what am I supposed to do now that I’ve noticed, not look? Come now. She must know what she’s doing. She must know. 
 Got shouted to halt by a policeman who caught me jaywalking. I was so annoyed at Korea having adopted the stupidest of American offences that when he came up to me I belligerently said, ‘What?’ He pointed to the traffic light and said, ‘What colour is that?’ like a patronising school teacher with a hard-on for authority. ‘Red.’ ‘So don’t cross.’ ‘But I’m late.’ ‘Don’t be late.’ Yes sir, sorry sir. Next time I’ll make sure you’re not looking, sir. 
 I met Tony last weekend for our first language exchange session - an hour of Korean, an hour of English. His English is already fluent so there isn’t a lot I can do except help him to sound more natural. He’s been going to the language exchange centre for 4 years and somehow we’d never met, though as it happens my friend Brian who’s back in America right now knows him. He’d helped Brian get a suit fitted last year. I told Tony that Brian had described him as a ‘playa’, at which point he held up his left hand to show me an engagement ring. I asked him why he’d stopped ‘playing’ and he told me that it was because he’d met a girl who likes to get up early and exercise every day. I thought, Jesus Christ, yeh, that’ll do it. So he’s two days older than me, already engaged, has some lucrative job to do with clinical trials in Gangnam, and dresses immaculately as a gay - in short, puts me to shame, even though that’s not the life for me. He confessed that actually he thought I might be gay, seeing as when I first met him I’d specified I wanted to study with a man. It hadn’t even crossed my mind. I said, ‘But even if I were, why would I have presumed that you were gay too?’ He said, ‘Good point.’ With regard to my Korean ability, he thought it was really ok, better by a mile than most foreigners he’d met, but said that lots of bad habits have been allowed to get engrained from studying by myself for so long. As a consequence, we spend most of the time working on my pronunciation and the cadence of my speech, which is a horribly humbling process but only because its happening three years later than it should have. 
 My confidence is being boosted, on the other hand, by all the things I have to do alone, not having a girlfriend to thoroughly administrate my life anymore. I had to go into the phone shop and explain my situation and get my phone reconnected; I had to instruct the moron wifi installation guy on where to install it in the room and why; I had to go back to my old climbing gym today and rejoin as a member. They remembered me and asked where my girlfriend was. I explained that we’d broken up before traveling. They recognised me as a man no longer suffering GBH of the ear’ole and it seemed like we could have a fresh start, having never really been in the mood to make friends with them before. On top of all this, my ego was tested at the hagwon when I was advised by Sarah to pretend not to speak any Korean, because if Minnie cottoned on to me being even halfway decent, she’d try to make me do phone conferences with the mums. 
 Korean tutor - found; climbing gym - rejoined; hapkido - impossible, at least for the time being, since Master Kim no longer teaches past 9 p.m.; football - found and joined a team of ex-pats and Koreans that trains 25 minutes south of me on the Bundang subway line. My stint in Korea was put in perspective when I found out the ginger guy from Sheffield who’s captain and his Irish best mate have lived here for 9 years and one of them’s got a car. Considering I’ve not played with anything close to regularity since my teens, and laden with clunky running shoes, training went alright. Out of the twelve there, I’d say I was probably the fourth best overall. Twenty people showed up to the first game this weekend, though the captain told me that’ll fast shrink down to the low teens. Half the starting lineup are Korean, and none of them were at training in the week, nor apparently ever come. I think it showed, but the other team were so shit we won 5-0 anyway. I was quite abysmal for the duration of my 30 minute runout in borrowed boots at left wing forward, but I think I’ll soon shake the rustiness off. I also think there’s a place up for grabs in the midfield trio alongside the reliable captain and this short fat Korean guy who no one forces to lose weight or stop smoking cigarettes at half time because he’s got the first touch, vision, and intelligence of Zinedine Zidane.  
 Working on my novel and a sub 1 hour 20 half marathon - these pursuits are reserved for the mornings, my droogies. I’m getting up as early as I can and staring at the naked Korean woman for as short a time as possible, and then I get cracking. With all my stress and resentment channeled into my job, which really isn’t bad (one class was a nightmare, conducted by four wild rude arrogant boys, but Anthony came to my rescue, having suffered at their hands during his first month a few months back. I was to stare at the rudest one for as long as it took for him to stop grinning and mouthing off and eventually cry, and that would break all four of them. ‘You’ve gotta nip this in the bud now, man, or you’ll be suffering for a year,’ Anthony said. God was he right. From this day forward, I will be someone who nips things in the bud.), the hopelessness, depression, regret, and lack of appetite that have marked my last twelve months or so is really starting to drain. The sky is frequently blue and the food is oh so tasty, but that can’t be presumed to be enough. To keep them away, I’ve written five rules on five post-it notes and stuck them to my fridge: 
1: Do not concern yourself with that which you cannot change and/or does not matter.
2: Exercise every day.
3: Write for at least two hours every day; read for at least one.
4: Do not dwell on regret. If you learned from it, then that’s enough.
5: Do your best to make that which is not enjoyable as enjoyable as possible. 
 I look at them every morning. This might be considered a pretty cliched thing to do, but then again one of the important points David Foster Wallace was making with his titanic Infinite Jest is that Postmodernism has a lot of orphans to answer for, that its irony and chaos and catatonic realism are redundant, that saying, ‘Oh how banal,’ to anything remotely sentimental or ‘cliched’ in an emotional sense no longer gets us anywhere and perhaps never it. That’s why I eventually decided to also affix on post-it notes to the wall by my bed the story of the two wolves: 
An old Cherokee is teaching his grandson about life. ���A fight is going on inside me,’ he said to the boy. ‘It is a terrible fight and it is between two wolves. One is evil – he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.’ He continued, ‘The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same fight is going on inside you – and inside every other person, too.’
 The grandson thought about it for a minute and then asked his grandfather, ‘Which wolf will win?’
 The old Cherokee simply replied, ‘The one you feed.’
 If you’re wondering why this blog is called Clemency for the Heathen, it comes from one of my favourite speeches in all literature, delivered by the Judge to the kid in Blood Meridian: ‘There’s a flawed place in the fabric of your heart. Do you think I could not know? You alone were mutinous. You alone reserved in your soul some corner of clemency for the heathen.’ The more I think about this book, the higher the regard I hold it in. It’s up there with the best of the best of the best, sir, with honours. The heathen in question are threefold, as far as I can surmise, but what’s most amazing is that to my mind the line could be levelled at any human being (you have to read Blood Meridian, have to have to fucking have to). Anyway, Clemency for the Heathen has been the title of the novel I’m completely rewriting ever since luscious Nicaragua. 
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marymosley · 5 years ago
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Case Summaries–Fourth Circuit Decisions (Sept. 2019)
This post summarizes published decisions from the Fourth Circuit of interest to state practitioners from September, 2019.
Inmate-plaintiff’s complaint about lack of medical care presented sufficient claim for deliberate indifference by prison officials and can proceed; summary judgment reversed
Gordon v. Schilling, 937 F.3d 348 (Sept. 4, 2019). The plaintiff, an inmate in the Western District of Virginia, sued the Health Services Director and Chief Physician of the Virginia Department of Corrections (“VDOC”) for Eighth Amendment violations under 42 U.S.C. § 1983. He claimed that the officials acted with deliberate indifference in denying him treatment for Hepatitis C. The VDOC had a policy whereby inmates eligible for parole were “categorically excluded” from receiving treatment for Hepatitis C (among other exclusions). Inmates meeting the VDOC treatment policy requirements were provided testing and medication as needed, including a liver biopsy and “baseline workup.” Inmates not eligible under the policy were assigned to a clinic where they could be examined and have liver function tested twice annually, but did not receive the medication, biopsy, or baseline workup. The plaintiff was diagnosed in prison with the disease in 2008. His ultimate parole date was in 2028. Although he became eligible for discretionary parole in 2002, he never sought a hearing before the parole board. Because he was parole eligible, he was excluded from treatment pursuant to the policy and was provided only the lesser clinic care. His clinic tests showed possible liver damage in 2011, and he filed complaints within the prison system to alert officials to his need for more significant treatment. Meanwhile, the prison changed the clinic treatment policy to reduce the number of liver function tests for the clinic patients to one per year. The plaintiff again complained, pointing to medical standards from the Centers for Disease Control and Prevention that recommend multiple examinations each year for patients with this condition. The grievances were denied and those decisions affirmed on appeal to the Health Services Director. In 2012, the plaintiff was moved to a different facility and did not receive even the clinic care for at least 18 months. When he complained, the complaint was again denied and affirmed on appeal to the administration.  The plaintiff then requested the prison system policies on Hepatitis treatment, which was denied. By October 2013, he filed a new grievance, which was again denied, this time with the explanation that the plaintiff’s condition no longer qualified for even the clinic care.
In 2014, the Chief Physician suspended the treatment policy based on the advice of national medical groups (which recommended use of different medications). This decision had the effect of stopping all treatment of all inmates with the condition until a new policy could be implemented. The treatment policy remained suspended for one year. When new guidelines were instituted, the plaintiff was no longer excluded from receiving treatment on the basis of his parole eligibility. A few months later the plaintiff received proper testing, which showed the onset of cirrhosis of the liver. He sued pro se, alleging an Eighth Amendment violation. The district court granted summary judgment to the defendants, finding they played no direct role in treatment decisions affecting the plaintiff. On appeal, the Fourth Circuit appointed counsel to the plaintiff and reversed.
When prison officials are deliberately indifferent to an inmate’s serious medical condition, the Eighth Amendment is violated. “In context of a claim related to denial of medical treatment, a defendant ‘acts with deliberate indifference if he had actual knowledge of [the plaintiff’s] serious medical needs and the related risks, but nevertheless disregarded them.’” Slip op. at 16.  As to the Director of Health Services, he had knowledge of the plaintiff’s condition and need for treatment by way of the plaintiff’s repeated administrative complaints. He was also aware of the risks, which were also detailed in the institution’s policies. As the person that denied the complaints and reviews the healthcare policies each year, there was sufficient evidence of the health director’s personal involvement for the matter to proceed. As to the Chief Physician, he was aware that the plaintiff’s condition affected a large percentage of the prison system and was likewise aware of the risks of failing to treat the disease. The physician failed to change the policy for nearly a year after assuming office and then ceased all treatment for inmates with the disease when the policy was suspended without instituting a replacement policy for another full year. The physician offered no explanation of why the plaintiff stopped receiving even the minimal clinic care for more than a year beginning in 2012. While the physician offered medical explanations for some of his decisions, there were at least genuine issues of material fact in dispute, making summary judgment improper.  The trial court’s decision was therefore unanimously vacated and remanded for disposition in the trial court. “To rule otherwise would encourage prison official to turn a blind eye to the real-world consequences of their policymaking and permit them to escape liability for constitutional harms caused by their decisions.” Id. at 26.
Exigent circumstances supported stop and flashlight search of defendant where officers responded to gunshots in a residential area within seconds; grant of suppression motion reversed
U.S. v. Curry, 937 F.3d 363 (Sept. 5, 2019). This case from the Eastern District of Virginia involved a felon in possession of a firearm charge. Police responded within seconds to the sound of gunshots in a neighborhood. The defendant and several other men were walking away from the area when police arrived, and officers pointed lit flashlights at them, instructing the men to stop, show their hands, and raise their shirts. The defendant did not comply and was frisked, leading to the discovery of a gun on his person. The trial court granted the defendant’s motion to suppress finding that the government lacked reasonable suspicion supporting the seizure of the defendant. The trial court expressly found that the lack of particularized suspicion was fatal and that any exigencies of the situation could not excuse the lack of reasonable suspicion. The Fourth Circuit reversed.
The court identified exigent circumstances as a subset of the special needs doctrine of the Fourth Amendment. “Even without suspicion of criminal activity, a search or seizure may still be reasonable when ‘special governmental needs, beyond the normal need for law enforcement’ justify the intrusion.” Slip op. at 10. This exception is limited and applies where the government’s interest is something more than “ordinary crime control,” such as responding to the threat of a terrorist attack. These special governmental interests may overlap with general crime prevention interests, and often do. To determine whether special needs apply, the court must consider the primary goal of the officers’ actions at the time of the seizure by looking at the totality of circumstances.
Reviewing exigent circumstances cases in the circuit, the court observed that “the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.” Id. at 13. Whether a situation rises to the level of an exigent circumstance is a fact-driven question but typically requires the need for immediate action to prevent harm. The U.S. Supreme Court has recognized exigent circumstances where the was an imminent threat of harm to people or an imminent threat of destruction of evidence, among others. Here, the officers were faced with exigent circumstances. The shots had been fired in a “densely populated residential neighborhood” only seconds before officers arrived. The officers’ primary purpose in shining flashlights on the men was to protect themselves and the public from the shooter. Further, these actions were reasonable under the factors in Brown v. Texas, 443 U.S. 47 (1979): Grave public interests for public safety and officer safety were implicated by the situation; the officers’ actions were narrowly tailored to deal with the urgency of the situation; and the intrusion was limited in time and scope—the flashlight search was complete in under a minute, and asking the men to expose their waistbands was a less intrusive way to determine if the men were armed. The flashlight search occurred within the area and close in time to the gunshots. The stop and flashlight search were therefore reasonable. The grant of the motion to suppress was consequently reversed and the case remanded for a determination whether the frisk of the defendant following the flashlight search was justified.
A dissenting judge would have affirmed the trial court and criticized the majority opinion for expanding exigent circumstances doctrine and conflating it with the special needs doctrine.
Death verdict vacated for juror misconduct in penalty-phase deliberations
Barnes v. Thomas (Barnes II), ___F.3d ___, 2019 WL 4308636 (Sept. 12, 2019). This habeas case from the Middle District of North Carolina involved juror misconduct in the penalty phase of a capital murder case. The petitioner and two co-defendants were jointly tried for murder in 1994. One of the co-defendant lawyers made an extended, overtly religious argument during the penalty phase to the jury, strongly implying that the jurors’ souls would be jeopardized if they voted for death:
Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. . .All of us will stand in judgement one day. . .[d]oes a true believer want to explain to God, yes, I did violate one of your commandments. Slip op. at 3.
No objections to this argument were lodged. The jury returned a death recommendation the next day. The defense lawyer immediately notified the trial court of information that one juror had contacted her pastor to discuss the death penalty and had discussed his advice with the other jurors during deliberations. The trial court denied the request to investigate the matter, and the state supreme court denied relief on the claim.
During state post-conviction proceedings, the petitioner again raised his juror misconduct claim, but the state court rejected that claim as procedurally barred since the matter was addressed on direct appeal. The petitioner then filed for habeas relief in federal district court. The district court ultimately denied relief without a hearing, and the petitioner appealed. In Barnes I, the Fourth Circuit reversed, finding the state court’s disposition of the juror misconduct claim to be an unreasonable application of federal law. Under Remmer v. U.S., 347 U.S. 227 (1954), where the petitioner credibly alleges third-party contact with jurors, he is entitled to an evidentiary hearing and a presumption of prejudice applies. The petitioner’s claims plausibly alleged such improper third-party contact, and the trial court erred in failing to conduct a hearing. The case was therefore remanded for a hearing on the habeas petition to determine whether this error and the trial court’s failure to investigate the alleged juror misconduct impacted the verdict.
On remand, a hearing was held where the petitioner presented several witnesses (including former jurors from the trial), who testified that the juror at issue read from the Bible and discussed with the jury her pastor’s view that the jury should “live by the laws of the land” for up to 30 minutes during the penalty deliberations. The district court ultimately found that this error likely had no impact on the verdict and again denied the petition. The petitioner again appealed (in the present case), and the Fourth Circuit again reversed, this time granting the petition and vacating the death verdict.
While the state post-conviction court unreasonably applied Remmer to the petitioner’s claims, the court may not grant a habeas petition unless that error resulted in actual prejudice. To show prejudice, the petitioner must demonstrate that the external influence impacted the verdict. Courts deciding this question will consider “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Id. at 11. When the court finds itself conflicted over whether or not the error impacted the verdict, it should err on the side of the petitioner:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand. However, ‘[I]f the federal court is ‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or influence’ on the verdict and finds itself ‘in virtual equipoise’ about the issue, the error is not harmless.’ Id. at 12-13.
Reviewing the petitioner’s evidence, the court found that this error was not harmless. The court discussed the quandary of juror misconduct claims in light of Federal Rule of Evidence 606, which prohibits inquiry into the deliberative processes of jurors. An exception to that rule exists allowing jurors to testify about outside influences or communications, but the rule still prohibits jurors from testifying to the impact of such outside contact on the deliberations. The parties hotly debated the application of Rule 606 at the habeas hearing in district court. In light of the limitations imposed by the evidentiary rule in this context, “it is especially important for us to view the record practically and holistically when considering the effect that a juror’s misconduct ‘reasonably may be taken to have had upon the jury’s decision.’” Id. at 13. Here, the pastor’s advice was unquestionably an outside influence. That advice, passed on to the rest of the jury, acted to undercut the defense attorney’s religious argument and to convince any reluctant jurors of the propriety of a death sentence.
It is reasonable to conclude, especially coming from a figure of religious authority, [the pastor’s] message assuaged reservations about imposing the death penalty that the attorney’s comments may have instilled. Further, the length of [the juror’s] conversation with the jury—up to 30 minutes in less than two full days of deliberations—counsels against concluding that the discussion had no effect on the jury’s decision. Id. at 16-17.
The court being “in virtual equipoise” over the impact of this outside communication, the district court was reversed and the petition granted. A dissenting judge would have affirmed the district court and denied the petition.
North Carolina conditional discharge plea of guilty does not qualify as a conviction for purposes of the federal felon in possession statute where no final judgment had been entered, despite violations of the terms of the discharge
U.S. v. Smith, ___ F.3d ___, 2019 WL 4724052 (Sept. 27, 2019). In this case from the Western District of North Carolina, the defendant pled guilty to felony larceny in state court and received a conditional discharge. Under the conditional discharge statute, the defendant enters a plea of guilty and judgment is withheld during a period of probation, during which the defendant demonstrates good conduct by avoiding further charges and abiding by the terms of probation. Upon successful completion of the period of probation, the plea is vacated and the matter dismissed by the court without conviction. If the terms of the conditional discharge agreement are violated, the court may enter judgment on the plea and sentence the defendant normally.
After entering into the agreement, the defendant was twice found in violation by possessing guns. A probation violation was filed in state court, but prior to its resolution, the federal government sought and obtained an indictment for felon in possession of a firearm. He was convicted at trial and appealed, arguing that the state court plea and deferred judgment did not qualify as a conviction for purposes of the felon in possession statute. The Fourth Circuit agreed and reversed.
Under Rehaif v. U.S., 139 S. Ct. 2191 (2019), to be convicted of the federal crime of felon in possession, a person must knowingly possess a gun and must be aware that he or she is not entitled to possess it—the defendant must know he or she had a conviction that disqualified them from possessing the firearm. While either a state or federal conviction will suffice, under 18 U.S.C. 921(a)(20), convictions are determined by reference to the relevant law of the jurisdiction where the underlying proceedings occurred. The court therefore examined whether North Carolina law would treat this circumstance as a conviction.
The word “conviction” in North Carolina law means different things in different contexts. Looking by analogy to the state crime of firearm by felon, the court observed that statute defines “conviction” as “a final judgment . . .”  See N.C.G.S. 14-415.1(b). Because final judgment was withheld here pending the outcome of the conditional discharge agreement, there was no final judgment in the case, and therefore no conviction.
The court was unpersuaded by the government’s argument that North Carolina’s sentencing law treats a plea of guilty as a conviction from the moment of the plea. For one, the definition of “conviction” in the sentencing statutes is limited by the statute’s plain language—it applies only “for the purpose of imposing sentence.” And while a “convicted offender” may be sentenced for up to five years of probation, probation imposed pursuant to a conditional discharge is limited to two years, further suggesting that state law distinguishes between a true conviction and a conditional discharge plea.
The court likewise rejected the government’s analogy that this scenario was like a prayer for judgment continued (“PJC”). Citing Friend v. North Carolina, 609 S.E.2d 476 (N.C. Ct. App. 2005), the government argued that North Carolina would treat this situation like the conviction in Friend—there, the defendant was found to have been convicted following a guilty plea where he received a PJC, and such conviction sufficed to serve as a basis for the subsequent charges of possession of firearm by felon. The Fourth Circuit disagreed for two reasons. One, the holding in Friend conflicts with earlier decisions by the North Carolina Supreme Court where a true PJC was found to be not a judgment at all:
 Only if a judge also ‘imposes conditions amounting to punishment (fine or imprisonment)’ does a prayer for judgement order become a ‘final judgment.’ For when the prayer and punishment occur at the same time, the court must treat the prayer as surplusage because the punishment creates a final judgment, subject to appeal. Since punishment has already been inflicted, ‘the court has exhausted its power and cannot thereafter impose additional punishment. Thus, a key predicate of Friend’s holding—that a ‘prayer for judgment continued’ constitutes ‘judgment’ appears to be inconsistent with North Carolina law. Slip op. 8-9.
However, even if Friend was correctly decided, conditional discharges in this posture are nonetheless different. Under the wording of the conditional discharge statute, probation is imposed “without entering a judgment of guilt.” This materially distinguishes the situation from cases involving sentencing.
This procedure permits the court to impose consequences in the form of conditions and fines as a part of the conditional-discharge probation while leaving open the possibility of [further] punishment. As a result, even if a prayer for judgment is properly treated as a ‘judgment’ (as Friend held) and thus a conviction, the governing statute tells us that a conditional discharge is not a ‘judgment.’ Id. at 9-10.
Finally, where the law is unclear, the rule of lenity would apply. In light of the state case law and Rehaif, the court concluded that a plea of guilty in the conditional discharge process at this stage did not qualify as a conviction for purposes of the federal felon in possession statute. The conviction was therefore unanimously vacated and reversed. [Author’s note: The Fourth Circuit’s interpretation of state law is not binding on North Carolina courts.]
The post Case Summaries–Fourth Circuit Decisions (Sept. 2019) appeared first on North Carolina Criminal Law.
Case Summaries–Fourth Circuit Decisions (Sept. 2019) published first on https://immigrationlawyerto.tumblr.com/
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conners-clinic · 6 years ago
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I pray that the eyes of my heart may be enlightened that I may know the hope of His calling and what are the riches of His glorious inheritance. (Ephesians 1:18) I need HIM to reveal this to me, to remind me, daily. Hourly. This may be news to some of you but the riches of His glorious inheritance is NOT fully experienced in this life. Paul’s prayer for the Ephesians, and my prayer for both myself and you is for us to understand our true calling as believers – it is the hope in the riches of eternity.
Peter begins his first letter this way, “3 Blessed be the God and Father of our Lord Jesus Christ! According to His great mercy, He has caused us to be born again to a living hope through the resurrection of Jesus Christ from the dead, 4 to an inheritance that is imperishable, undefiled, and unfading, kept in heaven for you, 5 who by God’s power are being guarded through faith for a salvation ready to be revealed in the last time.” (1 Peter 1:3-5)
That is so powerful. Just pause and read that again. Right now.
He has caused us to be born again to a living hope, to an inheritance that is imperishable. He is speaking of that future portion of our salvation when sin is finally put away and we will experience that undefiled, unfading unity in Christ. There’s so much in these verses to unpack but first we need to expose a lie.
There is a lie, from the pit of hell that encourages us to hold fast to this life. It’s like a virus that can infect our soul. It promises us riches and happiness, health and wealth, peace and prosperity – that this is your best life now; that this life deserves to be fought for. We are taught, by the world, to do everything possible to hold on to NOW. You have cancer? Your job is to get rid of it; your number one concern should be to heal, to be cured. You deserve healing; it’s your right, your privilege, your purpose.
You’re told that God doesn’t want you to be sick, it’s the work of the enemy. You’re offered everything your flesh desires; yet the Gospel calls sinners to deny self and flee the things of this world. The lie defines success as gaining all that your flesh desires, fulfilling your hopes and wants and dreams. The lie teaches you that you can change your life now; it’s void of God, void of the cross, void of Christ. It ignores eternity and gets you to focus on yourself, your life, and this world; being happy, fulfilled, successful, healthy, wealthy, and satisfied is called ‘purpose’.
If you truly are a child of God, this is NOT your best life now. Oh, we can have joy, love, peace, and even many pleasures, praise God. But, the longer I live, I’ve come to realize that if this life was what I was to put my hope in, I am lost! And understand, it sorrows me, as a doctor caring for cancer patients, many of whom are in the last months or weeks, or even days of their lives, to see professing Christians angry that God isn’t healing them. Oh, I know that grief runs deep but I thank GOD for the cancer in my body that reminds me of the fallen world in which I live, that drives my hope in the riches of the inheritance to come. Let’s just be clear, If my hope is in this life, there is no guarantee of my salvation. If I’m so distraught that God isn’t healing me, He’s not my God. My god is what I want.
This is a bitter pill to swallow but let us praise God for trials and struggles and disease and financial collapse and cancer. These things prove our faith in a culture of plenty where it’s easy to profess a love to a god that keeps us safe and blesses us with cars and jobs and vacations and everything we want. Try praying for pain; pray for a grave diagnosis if need be. Pray that God, in His great mercy, would rather walk you through the fire of suffering to purify you from the lie that you can be fulfilled without Him, than to leave you perish for eternity. Oh, the mercy of God does truly appear to be cruel to the unregenerate soul, yet to those being saved it is the glory of God.
Do you know what you should really want out of this life?
Peter tells us in 1 Peter 1:6: “In this you rejoice (in the salvation he discussed in verses 1-5), though now for a little while, if necessary, you have been grieved by various trials, 7 so that the tested genuineness of your faith—more precious than gold that perishes though it is tested by fire—may be found to result in praise and glory and honor at the revelation of Jesus Christ.” Praise God for testing and trials that serve as the bitter medicine to purge the soul.
James also writes, “Count it all joy, my brothers, when you meet trials of various kinds, 3 for you know that the testing of your faith produces steadfastness. 4 And let steadfastness have its full effect, that you may be perfect and complete, lacking in nothing.” (James 1:3-4)
May we welcome trials and testing, suffering and persecution; may we pray for difficulties and hardships. Because, when we go through such things, though shaken and beaten by the storm, yet, standing strong in the faith that God is sovereign and our hope is in Him and eternity, we know that we are secure, held not by our ability to endure but by His love that keeps us safe unto salvation, to experience our calling – the riches of eternity.
Peter again says, “being sober-minded, set your hope fully on the grace that will be brought to you at the revelation of Jesus Christ.14 As obedient children, do not be conformed to the passions of your former ignorance.” (1 Peter 1:13b-14) Peter infers that it is disobedient to be conformed to the passions of our former ignorance – that is, that ‘self’, ‘now’, temporal happiness, getting what I want, my selfish desires, on and on, are important. We once served these idols in ignorance. These are evidence of a self-centered, Godless life. Regardless of one’s verbal profession of faith in Christ, if not getting what I want disturbs me, it’s an idol and I am worshiping a false god! Repent!
And later, “12 Beloved, do not be surprised at the fiery trial when it comes upon you to test you, as though something strange were happening to you. 13 But rejoice insofar as you share Christ’s sufferings, that you may also rejoice and be glad when his glory is revealed.” (4:12-13) And, “19 Therefore let those who suffer according to God’s will entrust their souls to a faithful Creator while doing good.”
Beloved, choose this day whom you will serve.
Dr. Kevin Conners
via News – – Conners Clinic
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Having Faith in the Future
Last month, one of the most capable women I know was diagnosed with Parkinson’s Disease.  Ann* is one of 60,000 people this year who will be given this  life changing diagnosis.  At age 60, she is looking for hope and solutions for this next phase of her life. I remember Ann telling me, “You can take away my ability to walk, but please don’t take away my ability to think”.  How do we find faith in Ann’s future?
At AKOTA Home Care, we see patients and their families struggling with the realities of memory and movement disorders.  If you are reading this blog, you probably know the statistics: one in ten people age 65 and older has Alzheimer’s dementia. Mrs. B* refuses to be discouraged by her disease.  “Although I see how Alzheimer’s is affecting me, I have faith that something good will come out of this.”
In the past month, I have realized there are many ways to look at the memory and movement disorders epidemic. Some look at the problem as a business opportunity. They build more and more memory care facilities; they anticipate the growth in Senior services, they look for a niche in the market. Others look at the epidemic with despair.  The PBS documentary about Alzheimer’s Disease, Every Minute Counts, spends an hour outlining the despair, the anguish, and the expense that families face as they care for their parents. 
It doesn’t have to be this way.
Faith in Christ means that we have faith in the future.
Alzheimer’s and Parkinson’s don’t have to be met with resignation and hopelessness. In Matthew 13, Jesus tells us:
The Kingdom of Heaven is like a mustard seed that a person took and sowed in a field.  It is the smallest of all the seeds, yet when full-grown it is the largest of plants.  It becomes a large bush, and the birds of the sky come and dwell in its branches. (Mt. 13:31-32)
Our faith is a small seed of hope in the midst of discouragement. If we focus on a future of hope and healing, rather than disease and disability we can find the possibility of growth; the large bush that is the resting place for life.
Where are these seeds of faith planted?
One place these small seeds of faith are growing is at Georgetown University’s Clinics for both Movement and Memory Disorders.  Their ground-breaking research is showing marked improvements for Parkinson’s and Dementia patients.  Dr. Yaghi, a researcher for movement disorders said to me, “Others are building memory care facilities to house patients. We are working so that there is no need for these facilities.” Ann has already made an appointment with the Movement Disorders Clinic. Mrs. B. is excited to give the Memory Disorder Clinic a try. “If I can help someone else, and even help myself, it would be a gift to all of us.” This is what we call Faith in the Future.
At AKOTA Home Care, we celebrate organizations like Georgetown University Medical Center; organizations that see hope where others see despair. We see our company as an opportunity to love and serve people as they deal with the day to day realities of memory and movement disorders.  Like you, we look forward to the day that our patients experience healing rather than disease.
Right now, your faith in the future may be the size of a mustard seed.  If this is true, please remember Christ’s hope:  surrounded by a community who want to love and serve you, that small seed can grow and flourish into the largest of plants.
Just like Dr. Yaghi, we believe there is faith in your future.
For more information about Georgetown Medical Center’s research, please see the following:
For the Memory Disorders Clinic: https://memory.georgetown.edu/#_ga=2.200498925.275986980.1499886330-1388207157.1499694662
https://gumc.georgetown.edu/news/Georgetown-clinical-trial-testing-nilotinib-in-alzheimers-disease-begins
 For the Movement Disorders Clinic:  https://neurology.georgetown.edu/patientcare/centers/movementdisorders
https://gumc.georgetown.edu/news/Georgetown-announces-phase-II-clinical-trial-of-nilotinib-for-parkinsons-disease
 To learn more about AKOTA Home Care visit: www.AKOTAhc.com
 *Names have been changed to protect privacy
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dailyaudiobible · 8 years ago
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03/12/2017 DAB Transcript
Numbers 16:41-18:32 ~ Mark 16:1-20 ~ Psalm 55:1-23 ~ Proverbs 11:7
Today is the 12th day of March.  Welcome to the Daily Audio Bible.  I’m Brian.  Here we are, stepping together into a brand new week and I love the fresh start of that. As is our tradition around here, we’ll read from a different translation this week than we did the week before. This week we’ll read from the Expanded Bible.  So back out into the wilderness we go where there is some drama going on.  Numbers chapter 16, verse 41 through 18 verse 32 today.
Prayer
Father, we thank you for this new week.  Every time we cross the threshold of a new day, a new week, a new month, a new year, a new decade, we are reminded that what has gone before us is a result of the choices that we have made, whether or not we have chosen to walk with you.  Every time we cross the threshold, we realize that our future will be made up of similar choices and we’re reminded that there is no life outside of you.  We must walk with you.  This is how we were created.  So we thank you for this new week and we long to be in your presence every moment of it.  We offer it to you for your service and for your glory and may your glory shine down and reflect off of us into this world.  And may we do your work as sons and daughters of the kingdom.  Come Holy Spirit.  We offer this week in advance because we love you and the fact that we’re even going to have this week is a gift from you.  So come Holy Spirit into all of our thoughts, words and deeds, changing us and letting us be your hands and feet to be agents of change in return. Come Holy Spirit, we pray in the mighty name of Jesus, amen.  
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And that's it for today.  I'm Brian. I love you and I’ll be waiting for you here tomorrow.  
Community Prayer Requests and Praise Reports
Hello, this is Miguel from California.  James, teacher from LA, I am calling to pray with you and to pray for you.  So let's just jump right in and whoever else is listening, please pray with me.  Father God, thank you for James.  I thank you for where you’ve placed him, that you are leading him, that you are guiding him to the work that you have for him.  Father, I thank you for the softening of the heart of the student that he had mentioned in his prayer request.  And God, we appeal for this soul.  We appeal for this child of God.  We appeal for his salvation.  We come before you and we ask for this seed to take root in this heart.  May this seed find soft soil in his heart and take root and blossom into a beautiful tree of salvation, a tree that yields even more fruit for the glory of God that this gospel will not just stop here with just this one student, but it will spread throughout his classmates, throughout his friends and his family.  He has a story, as we hear, but God, your gospel, your good news is more powerful than any other story that is imaginable.  In Jesus’ name we ask for this boy, this student of James.  God, may you just continue to flourish in James’ work for you.  God, we thank you.  We praise you for what you’re doing.  We ask this in Jesus’ powerful and mighty name.  Amen.  
Hey Dabbers.  This is Derrick in Atlanta, here with my wife and we just want to say thank you for being a community that supports one another through Jesus Christ.  And we just want to support you all with our prayers and hope that you pray for us and our family and our future endeavors. Thanks so much, Brian, for what you do. We love you guys.  Bye.  
Hey DAB family.  Jonathon calling here from Kentucky.  I wanted to update you on my father, Pastor Ted, who was recently diagnosed with prostate cancer.  For those who don’t know, he has been a pastor for 43 years, just a deep, deep lover of God who brings so much joy and vitality and Christian life into the church. We just got back from the Cleveland Clinic and the general report is yes, you do have prostate cancer.  The good news is no, it has not spread all throughout your body.  It was like maybe one or two lymph nodes are affected.  It is still pretty serious because it is Gleason scale 9 cancer and it is a large tumor in his prostate.  But I'm calling because I wanted to ask you all to pray about something specific.  On March 16th, so in a few days he is going to be going to Vanderbilt.  They are going to put a couple of gold markers in his prostate and that is to show the radiologist where to direct the radiation. We are praying that as soon as they put those markers in, they have to do two scans, CT scan and an MRI, just to see if the gold markers got put in correctly.  Would you all pray with us?  We just believe God is big.  He can do this.  Would you pray with us that when they go to look at those scans after they have placed those markers in, they’ll just see no trace of cancer and they’ll just come back and say ‘we don’t know what is going on, but we don’t see any cancer anymore in your prostate.  So we put these gold markers in and we don’t see any prostate cancer.’  We believe God can do that.  He is big.  He is able. He is awesome.  I just wanted to reach out to the DAB family and ask would you all join us and raise up a canopy of prayer over this and let's all together ask if God would be gracious and willing to just remove and eradicate this cancer for his glory?  And we’ll praise his name.  Love you all. Thank you so much and we’re praying for each and every one of you.  God bless you.  
Hi, this is an encouragement for __________.  My name is Charlotte from the UK and this is about your allergies. It says put on all the armor of God, all the armor that God gives you so that you will be able to stand up against the devil's evil tricks, for we are not fighting against human beings but against the wicked spiritual forces in the heavenly world, __________ and constant perils of this age.  So put on God's full armor now and when the evil day comes you will be able to resist the enemy's attack enough to fight him to the end.  You will still hold your ground.  So this is just an encouragement to say put on every single piece of armor that God's given you and he will give it to you if you ask him.  The theme for this year is margin, so I encourage you that before the trials and tribulations come, that you will put on all the armor so you will be able to stand on the day.  Thank you Audio Bible.  Bye.
Be not dismayed, what’er betide, God will take care of you.  Beneath his wings of love abide, God will take care of you. Through days of toil when heart dost fail, God will take care of you.  When dangers fierce your path assail, God will take care of you.  All you may need he will provide, God will take care of you.  Nothing you ask will be denied, God will take care of you.  No matter what may be the test, God will take care of you.  Lean, weary one, upon his breast,  God will take care of you.  [Singing] God will take care of you through every day, throughout the way, God will take of you.  God will take care of you.  
Greetings Daily Audio Bible.  This is Tillman from Evans, GA and I know it's been a while since you’ve heard from me, but I guess the Lord has been __________ that I just don’t feel like being a burden on anyone.  But I call with a heavy heart simply because I love my mother-in-law.  She is physically going through right now.  She had major surgery last Wednesday and she came out of that okay, but she has had a setback and she is in ICU.  She is not having much urine output and she is having issues with her heart.  So I just ask that you all would lift her up, pray for her, that she would be healed and that her body be whole for he is the God that heals thee.  I would also ask that you pray for my wife in this time where she feels confused because her mother does not live in our town, so with all the logistics and everything it gets a little difficult.  Just pray to encourage her, that she would trust in the Lord with all of her heart, all of her soul and with all of her mind.  I thank you very much Daily Audio Bible.  We’re praying for you.  Bye.  
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marymosley · 5 years ago
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Case Summaries–Fourth Circuit Decisions (Sept. 2019)
This post summarizes published decisions from the Fourth Circuit of interest to state practitioners from September, 2019.
Inmate-plaintiff’s complaint about lack of medical care presented sufficient claim for deliberate indifference by prison officials and can proceed; summary judgment reversed
Gordon v. Schilling, 937 F.3d 348 (Sept. 4, 2019). The plaintiff, an inmate in the Western District of Virginia, sued the Health Services Director and Chief Physician of the Virginia Department of Corrections (“VDOC”) for Eighth Amendment violations under 42 U.S.C. § 1983. He claimed that the officials acted with deliberate indifference in denying him treatment for Hepatitis C. The VDOC had a policy whereby inmates eligible for parole were “categorically excluded” from receiving treatment for Hepatitis C (among other exclusions). Inmates meeting the VDOC treatment policy requirements were provided testing and medication as needed, including a liver biopsy and “baseline workup.” Inmates not eligible under the policy were assigned to a clinic where they could be examined and have liver function tested twice annually, but did not receive the medication, biopsy, or baseline workup. The plaintiff was diagnosed in prison with the disease in 2008. His ultimate parole date was in 2028. Although he became eligible for discretionary parole in 2002, he never sought a hearing before the parole board. Because he was parole eligible, he was excluded from treatment pursuant to the policy and was provided only the lesser clinic care. His clinic tests showed possible liver damage in 2011, and he filed complaints within the prison system to alert officials to his need for more significant treatment. Meanwhile, the prison changed the clinic treatment policy to reduce the number of liver function tests for the clinic patients to one per year. The plaintiff again complained, pointing to medical standards from the Centers for Disease Control and Prevention that recommend multiple examinations each year for patients with this condition. The grievances were denied and those decisions affirmed on appeal to the Health Services Director. In 2012, the plaintiff was moved to a different facility and did not receive even the clinic care for at least 18 months. When he complained, the complaint was again denied and affirmed on appeal to the administration.  The plaintiff then requested the prison system policies on Hepatitis treatment, which was denied. By October 2013, he filed a new grievance, which was again denied, this time with the explanation that the plaintiff’s condition no longer qualified for even the clinic care.
In 2014, the Chief Physician suspended the treatment policy based on the advice of national medical groups (which recommended use of different medications). This decision had the effect of stopping all treatment of all inmates with the condition until a new policy could be implemented. The treatment policy remained suspended for one year. When new guidelines were instituted, the plaintiff was no longer excluded from receiving treatment on the basis of his parole eligibility. A few months later the plaintiff received proper testing, which showed the onset of cirrhosis of the liver. He sued pro se, alleging an Eighth Amendment violation. The district court granted summary judgment to the defendants, finding they played no direct role in treatment decisions affecting the plaintiff. On appeal, the Fourth Circuit appointed counsel to the plaintiff and reversed.
When prison officials are deliberately indifferent to an inmate’s serious medical condition, the Eighth Amendment is violated. “In context of a claim related to denial of medical treatment, a defendant ‘acts with deliberate indifference if he had actual knowledge of [the plaintiff’s] serious medical needs and the related risks, but nevertheless disregarded them.’” Slip op. at 16.  As to the Director of Health Services, he had knowledge of the plaintiff’s condition and need for treatment by way of the plaintiff’s repeated administrative complaints. He was also aware of the risks, which were also detailed in the institution’s policies. As the person that denied the complaints and reviews the healthcare policies each year, there was sufficient evidence of the health director’s personal involvement for the matter to proceed. As to the Chief Physician, he was aware that the plaintiff’s condition affected a large percentage of the prison system and was likewise aware of the risks of failing to treat the disease. The physician failed to change the policy for nearly a year after assuming office and then ceased all treatment for inmates with the disease when the policy was suspended without instituting a replacement policy for another full year. The physician offered no explanation of why the plaintiff stopped receiving even the minimal clinic care for more than a year beginning in 2012. While the physician offered medical explanations for some of his decisions, there were at least genuine issues of material fact in dispute, making summary judgment improper.  The trial court’s decision was therefore unanimously vacated and remanded for disposition in the trial court. “To rule otherwise would encourage prison official to turn a blind eye to the real-world consequences of their policymaking and permit them to escape liability for constitutional harms caused by their decisions.” Id. at 26.
Exigent circumstances supported stop and flashlight search of defendant where officers responded to gunshots in a residential area within seconds; grant of suppression motion reversed
U.S. v. Curry, 937 F.3d 363 (Sept. 5, 2019). This case from the Eastern District of Virginia involved a felon in possession of a firearm charge. Police responded within seconds to the sound of gunshots in a neighborhood. The defendant and several other men were walking away from the area when police arrived, and officers pointed lit flashlights at them, instructing the men to stop, show their hands, and raise their shirts. The defendant did not comply and was frisked, leading to the discovery of a gun on his person. The trial court granted the defendant’s motion to suppress finding that the government lacked reasonable suspicion supporting the seizure of the defendant. The trial court expressly found that the lack of particularized suspicion was fatal and that any exigencies of the situation could not excuse the lack of reasonable suspicion. The Fourth Circuit reversed.
The court identified exigent circumstances as a subset of the special needs doctrine of the Fourth Amendment. “Even without suspicion of criminal activity, a search or seizure may still be reasonable when ‘special governmental needs, beyond the normal need for law enforcement’ justify the intrusion.” Slip op. at 10. This exception is limited and applies where the government’s interest is something more than “ordinary crime control,” such as responding to the threat of a terrorist attack. These special governmental interests may overlap with general crime prevention interests, and often do. To determine whether special needs apply, the court must consider the primary goal of the officers’ actions at the time of the seizure by looking at the totality of circumstances.
Reviewing exigent circumstances cases in the circuit, the court observed that “the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.” Id. at 13. Whether a situation rises to the level of an exigent circumstance is a fact-driven question but typically requires the need for immediate action to prevent harm. The U.S. Supreme Court has recognized exigent circumstances where the was an imminent threat of harm to people or an imminent threat of destruction of evidence, among others. Here, the officers were faced with exigent circumstances. The shots had been fired in a “densely populated residential neighborhood” only seconds before officers arrived. The officers’ primary purpose in shining flashlights on the men was to protect themselves and the public from the shooter. Further, these actions were reasonable under the factors in Brown v. Texas, 443 U.S. 47 (1979): Grave public interests for public safety and officer safety were implicated by the situation; the officers’ actions were narrowly tailored to deal with the urgency of the situation; and the intrusion was limited in time and scope—the flashlight search was complete in under a minute, and asking the men to expose their waistbands was a less intrusive way to determine if the men were armed. The flashlight search occurred within the area and close in time to the gunshots. The stop and flashlight search were therefore reasonable. The grant of the motion to suppress was consequently reversed and the case remanded for a determination whether the frisk of the defendant following the flashlight search was justified.
A dissenting judge would have affirmed the trial court and criticized the majority opinion for expanding exigent circumstances doctrine and conflating it with the special needs doctrine.
Death verdict vacated for juror misconduct in penalty-phase deliberations
Barnes v. Thomas (Barnes II), ___F.3d ___, 2019 WL 4308636 (Sept. 12, 2019). This habeas case from the Middle District of North Carolina involved juror misconduct in the penalty phase of a capital murder case. The petitioner and two co-defendants were jointly tried for murder in 1994. One of the co-defendant lawyers made an extended, overtly religious argument during the penalty phase to the jury, strongly implying that the jurors’ souls would be jeopardized if they voted for death:
Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. . .All of us will stand in judgement one day. . .[d]oes a true believer want to explain to God, yes, I did violate one of your commandments. Slip op. at 3.
No objections to this argument were lodged. The jury returned a death recommendation the next day. The defense lawyer immediately notified the trial court of information that one juror had contacted her pastor to discuss the death penalty and had discussed his advice with the other jurors during deliberations. The trial court denied the request to investigate the matter, and the state supreme court denied relief on the claim.
During state post-conviction proceedings, the petitioner again raised his juror misconduct claim, but the state court rejected that claim as procedurally barred since the matter was addressed on direct appeal. The petitioner then filed for habeas relief in federal district court. The district court ultimately denied relief without a hearing, and the petitioner appealed. In Barnes I, the Fourth Circuit reversed, finding the state court’s disposition of the juror misconduct claim to be an unreasonable application of federal law. Under Remmer v. U.S., 347 U.S. 227 (1954), where the petitioner credibly alleges third-party contact with jurors, he is entitled to an evidentiary hearing and a presumption of prejudice applies. The petitioner’s claims plausibly alleged such improper third-party contact, and the trial court erred in failing to conduct a hearing. The case was therefore remanded for a hearing on the habeas petition to determine whether this error and the trial court’s failure to investigate the alleged juror misconduct impacted the verdict.
On remand, a hearing was held where the petitioner presented several witnesses (including former jurors from the trial), who testified that the juror at issue read from the Bible and discussed with the jury her pastor’s view that the jury should “live by the laws of the land” for up to 30 minutes during the penalty deliberations. The district court ultimately found that this error likely had no impact on the verdict and again denied the petition. The petitioner again appealed (in the present case), and the Fourth Circuit again reversed, this time granting the petition and vacating the death verdict.
While the state post-conviction court unreasonably applied Remmer to the petitioner’s claims, the court may not grant a habeas petition unless that error resulted in actual prejudice. To show prejudice, the petitioner must demonstrate that the external influence impacted the verdict. Courts deciding this question will consider “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Id. at 11. When the court finds itself conflicted over whether or not the error impacted the verdict, it should err on the side of the petitioner:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand. However, ‘[I]f the federal court is ‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or influence’ on the verdict and finds itself ‘in virtual equipoise’ about the issue, the error is not harmless.’ Id. at 12-13.
Reviewing the petitioner’s evidence, the court found that this error was not harmless. The court discussed the quandary of juror misconduct claims in light of Federal Rule of Evidence 606, which prohibits inquiry into the deliberative processes of jurors. An exception to that rule exists allowing jurors to testify about outside influences or communications, but the rule still prohibits jurors from testifying to the impact of such outside contact on the deliberations. The parties hotly debated the application of Rule 606 at the habeas hearing in district court. In light of the limitations imposed by the evidentiary rule in this context, “it is especially important for us to view the record practically and holistically when considering the effect that a juror’s misconduct ‘reasonably may be taken to have had upon the jury’s decision.’” Id. at 13. Here, the pastor’s advice was unquestionably an outside influence. That advice, passed on to the rest of the jury, acted to undercut the defense attorney’s religious argument and to convince any reluctant jurors of the propriety of a death sentence.
It is reasonable to conclude, especially coming from a figure of religious authority, [the pastor’s] message assuaged reservations about imposing the death penalty that the attorney’s comments may have instilled. Further, the length of [the juror’s] conversation with the jury—up to 30 minutes in less than two full days of deliberations—counsels against concluding that the discussion had no effect on the jury’s decision. Id. at 16-17.
The court being “in virtual equipoise” over the impact of this outside communication, the district court was reversed and the petition granted. A dissenting judge would have affirmed the district court and denied the petition.
North Carolina conditional discharge plea of guilty does not qualify as a conviction for purposes of the federal felon in possession statute where no final judgment had been entered, despite violations of the terms of the discharge
U.S. v. Smith, ___ F.3d ___, 2019 WL 4724052 (Sept. 27, 2019). In this case from the Western District of North Carolina, the defendant pled guilty to felony larceny in state court and received a conditional discharge. Under the conditional discharge statute, the defendant enters a plea of guilty and judgment is withheld during a period of probation, during which the defendant demonstrates good conduct by avoiding further charges and abiding by the terms of probation. Upon successful completion of the period of probation, the plea is vacated and the matter dismissed by the court without conviction. If the terms of the conditional discharge agreement are violated, the court may enter judgment on the plea and sentence the defendant normally.
After entering into the agreement, the defendant was twice found in violation by possessing guns. A probation violation was filed in state court, but prior to its resolution, the federal government sought and obtained an indictment for felon in possession of a firearm. He was convicted at trial and appealed, arguing that the state court plea and deferred judgment did not qualify as a conviction for purposes of the felon in possession statute. The Fourth Circuit agreed and reversed.
Under Rehaif v. U.S., 139 S. Ct. 2191 (2019), to be convicted of the federal crime of felon in possession, a person must knowingly possess a gun and must be aware that he or she is not entitled to possess it—the defendant must know he or she had a conviction that disqualified them from possessing the firearm. While either a state or federal conviction will suffice, under 18 U.S.C. 921(a)(20), convictions are determined by reference to the relevant law of the jurisdiction where the underlying proceedings occurred. The court therefore examined whether North Carolina law would treat this circumstance as a conviction.
The word “conviction” in North Carolina law means different things in different contexts. Looking by analogy to the state crime of firearm by felon, the court observed that statute defines “conviction” as “a final judgment . . .”  See N.C.G.S. 14-415.1(b). Because final judgment was withheld here pending the outcome of the conditional discharge agreement, there was no final judgment in the case, and therefore no conviction.
The court was unpersuaded by the government’s argument that North Carolina’s sentencing law treats a plea of guilty as a conviction from the moment of the plea. For one, the definition of “conviction” in the sentencing statutes is limited by the statute’s plain language—it applies only “for the purpose of imposing sentence.” And while a “convicted offender” may be sentenced for up to five years of probation, probation imposed pursuant to a conditional discharge is limited to two years, further suggesting that state law distinguishes between a true conviction and a conditional discharge plea.
The court likewise rejected the government’s analogy that this scenario was like a prayer for judgment continued (“PJC”). Citing Friend v. North Carolina, 609 S.E.2d 476 (N.C. Ct. App. 2005), the government argued that North Carolina would treat this situation like the conviction in Friend—there, the defendant was found to have been convicted following a guilty plea where he received a PJC, and such conviction sufficed to serve as a basis for the subsequent charges of possession of firearm by felon. The Fourth Circuit disagreed for two reasons. One, the holding in Friend conflicts with earlier decisions by the North Carolina Supreme Court where a true PJC was found to be not a judgment at all:
 Only if a judge also ‘imposes conditions amounting to punishment (fine or imprisonment)’ does a prayer for judgement order become a ‘final judgment.’ For when the prayer and punishment occur at the same time, the court must treat the prayer as surplusage because the punishment creates a final judgment, subject to appeal. Since punishment has already been inflicted, ‘the court has exhausted its power and cannot thereafter impose additional punishment. Thus, a key predicate of Friend’s holding—that a ‘prayer for judgment continued’ constitutes ‘judgment’ appears to be inconsistent with North Carolina law. Slip op. 8-9.
However, even if Friend was correctly decided, conditional discharges in this posture are nonetheless different. Under the wording of the conditional discharge statute, probation is imposed “without entering a judgment of guilt.” This materially distinguishes the situation from cases involving sentencing.
This procedure permits the court to impose consequences in the form of conditions and fines as a part of the conditional-discharge probation while leaving open the possibility of [further] punishment. As a result, even if a prayer for judgment is properly treated as a ‘judgment’ (as Friend held) and thus a conviction, the governing statute tells us that a conditional discharge is not a ‘judgment.’ Id. at 9-10.
Finally, where the law is unclear, the rule of lenity would apply. In light of the state case law and Rehaif, the court concluded that a plea of guilty in the conditional discharge process at this stage did not qualify as a conviction for purposes of the federal felon in possession statute. The conviction was therefore unanimously vacated and reversed. [Author’s note: The Fourth Circuit’s interpretation of state law is not binding on North Carolina courts.]
The post Case Summaries–Fourth Circuit Decisions (Sept. 2019) appeared first on North Carolina Criminal Law.
Case Summaries–Fourth Circuit Decisions (Sept. 2019) published first on https://immigrationlawyerto.tumblr.com/
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marymosley · 5 years ago
Text
Case Summaries–Fourth Circuit Decisions (Sept. 2019)
This post summarizes published decisions from the Fourth Circuit of interest to state practitioners from September, 2019.
Inmate-plaintiff’s complaint about lack of medical care presented sufficient claim for deliberate indifference by prison officials and can proceed; summary judgment reversed
Gordon v. Schilling, 937 F.3d 348 (Sept. 4, 2019). The plaintiff, an inmate in the Western District of Virginia, sued the Health Services Director and Chief Physician of the Virginia Department of Corrections (“VDOC”) for Eighth Amendment violations under 42 U.S.C. § 1983. He claimed that the officials acted with deliberate indifference in denying him treatment for Hepatitis C. The VDOC had a policy whereby inmates eligible for parole were “categorically excluded” from receiving treatment for Hepatitis C (among other exclusions). Inmates meeting the VDOC treatment policy requirements were provided testing and medication as needed, including a liver biopsy and “baseline workup.” Inmates not eligible under the policy were assigned to a clinic where they could be examined and have liver function tested twice annually, but did not receive the medication, biopsy, or baseline workup. The plaintiff was diagnosed in prison with the disease in 2008. His ultimate parole date was in 2028. Although he became eligible for discretionary parole in 2002, he never sought a hearing before the parole board. Because he was parole eligible, he was excluded from treatment pursuant to the policy and was provided only the lesser clinic care. His clinic tests showed possible liver damage in 2011, and he filed complaints within the prison system to alert officials to his need for more significant treatment. Meanwhile, the prison changed the clinic treatment policy to reduce the number of liver function tests for the clinic patients to one per year. The plaintiff again complained, pointing to medical standards from the Centers for Disease Control and Prevention that recommend multiple examinations each year for patients with this condition. The grievances were denied and those decisions affirmed on appeal to the Health Services Director. In 2012, the plaintiff was moved to a different facility and did not receive even the clinic care for at least 18 months. When he complained, the complaint was again denied and affirmed on appeal to the administration.  The plaintiff then requested the prison system policies on Hepatitis treatment, which was denied. By October 2013, he filed a new grievance, which was again denied, this time with the explanation that the plaintiff’s condition no longer qualified for even the clinic care.
In 2014, the Chief Physician suspended the treatment policy based on the advice of national medical groups (which recommended use of different medications). This decision had the effect of stopping all treatment of all inmates with the condition until a new policy could be implemented. The treatment policy remained suspended for one year. When new guidelines were instituted, the plaintiff was no longer excluded from receiving treatment on the basis of his parole eligibility. A few months later the plaintiff received proper testing, which showed the onset of cirrhosis of the liver. He sued pro se, alleging an Eighth Amendment violation. The district court granted summary judgment to the defendants, finding they played no direct role in treatment decisions affecting the plaintiff. On appeal, the Fourth Circuit appointed counsel to the plaintiff and reversed.
When prison officials are deliberately indifferent to an inmate’s serious medical condition, the Eighth Amendment is violated. “In context of a claim related to denial of medical treatment, a defendant ‘acts with deliberate indifference if he had actual knowledge of [the plaintiff’s] serious medical needs and the related risks, but nevertheless disregarded them.’” Slip op. at 16.  As to the Director of Health Services, he had knowledge of the plaintiff’s condition and need for treatment by way of the plaintiff’s repeated administrative complaints. He was also aware of the risks, which were also detailed in the institution’s policies. As the person that denied the complaints and reviews the healthcare policies each year, there was sufficient evidence of the health director’s personal involvement for the matter to proceed. As to the Chief Physician, he was aware that the plaintiff’s condition affected a large percentage of the prison system and was likewise aware of the risks of failing to treat the disease. The physician failed to change the policy for nearly a year after assuming office and then ceased all treatment for inmates with the disease when the policy was suspended without instituting a replacement policy for another full year. The physician offered no explanation of why the plaintiff stopped receiving even the minimal clinic care for more than a year beginning in 2012. While the physician offered medical explanations for some of his decisions, there were at least genuine issues of material fact in dispute, making summary judgment improper.  The trial court’s decision was therefore unanimously vacated and remanded for disposition in the trial court. “To rule otherwise would encourage prison official to turn a blind eye to the real-world consequences of their policymaking and permit them to escape liability for constitutional harms caused by their decisions.” Id. at 26.
Exigent circumstances supported stop and flashlight search of defendant where officers responded to gunshots in a residential area within seconds; grant of suppression motion reversed
U.S. v. Curry, 937 F.3d 363 (Sept. 5, 2019). This case from the Eastern District of Virginia involved a felon in possession of a firearm charge. Police responded within seconds to the sound of gunshots in a neighborhood. The defendant and several other men were walking away from the area when police arrived, and officers pointed lit flashlights at them, instructing the men to stop, show their hands, and raise their shirts. The defendant did not comply and was frisked, leading to the discovery of a gun on his person. The trial court granted the defendant’s motion to suppress finding that the government lacked reasonable suspicion supporting the seizure of the defendant. The trial court expressly found that the lack of particularized suspicion was fatal and that any exigencies of the situation could not excuse the lack of reasonable suspicion. The Fourth Circuit reversed.
The court identified exigent circumstances as a subset of the special needs doctrine of the Fourth Amendment. “Even without suspicion of criminal activity, a search or seizure may still be reasonable when ‘special governmental needs, beyond the normal need for law enforcement’ justify the intrusion.” Slip op. at 10. This exception is limited and applies where the government’s interest is something more than “ordinary crime control,” such as responding to the threat of a terrorist attack. These special governmental interests may overlap with general crime prevention interests, and often do. To determine whether special needs apply, the court must consider the primary goal of the officers’ actions at the time of the seizure by looking at the totality of circumstances.
Reviewing exigent circumstances cases in the circuit, the court observed that “the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.” Id. at 13. Whether a situation rises to the level of an exigent circumstance is a fact-driven question but typically requires the need for immediate action to prevent harm. The U.S. Supreme Court has recognized exigent circumstances where the was an imminent threat of harm to people or an imminent threat of destruction of evidence, among others. Here, the officers were faced with exigent circumstances. The shots had been fired in a “densely populated residential neighborhood” only seconds before officers arrived. The officers’ primary purpose in shining flashlights on the men was to protect themselves and the public from the shooter. Further, these actions were reasonable under the factors in Brown v. Texas, 443 U.S. 47 (1979): Grave public interests for public safety and officer safety were implicated by the situation; the officers’ actions were narrowly tailored to deal with the urgency of the situation; and the intrusion was limited in time and scope—the flashlight search was complete in under a minute, and asking the men to expose their waistbands was a less intrusive way to determine if the men were armed. The flashlight search occurred within the area and close in time to the gunshots. The stop and flashlight search were therefore reasonable. The grant of the motion to suppress was consequently reversed and the case remanded for a determination whether the frisk of the defendant following the flashlight search was justified.
A dissenting judge would have affirmed the trial court and criticized the majority opinion for expanding exigent circumstances doctrine and conflating it with the special needs doctrine.
Death verdict vacated for juror misconduct in penalty-phase deliberations
Barnes v. Thomas (Barnes II), ___F.3d ___, 2019 WL 4308636 (Sept. 12, 2019). This habeas case from the Middle District of North Carolina involved juror misconduct in the penalty phase of a capital murder case. The petitioner and two co-defendants were jointly tried for murder in 1994. One of the co-defendant lawyers made an extended, overtly religious argument during the penalty phase to the jury, strongly implying that the jurors’ souls would be jeopardized if they voted for death:
Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. . .All of us will stand in judgement one day. . .[d]oes a true believer want to explain to God, yes, I did violate one of your commandments. Slip op. at 3.
No objections to this argument were lodged. The jury returned a death recommendation the next day. The defense lawyer immediately notified the trial court of information that one juror had contacted her pastor to discuss the death penalty and had discussed his advice with the other jurors during deliberations. The trial court denied the request to investigate the matter, and the state supreme court denied relief on the claim.
During state post-conviction proceedings, the petitioner again raised his juror misconduct claim, but the state court rejected that claim as procedurally barred since the matter was addressed on direct appeal. The petitioner then filed for habeas relief in federal district court. The district court ultimately denied relief without a hearing, and the petitioner appealed. In Barnes I, the Fourth Circuit reversed, finding the state court’s disposition of the juror misconduct claim to be an unreasonable application of federal law. Under Remmer v. U.S., 347 U.S. 227 (1954), where the petitioner credibly alleges third-party contact with jurors, he is entitled to an evidentiary hearing and a presumption of prejudice applies. The petitioner’s claims plausibly alleged such improper third-party contact, and the trial court erred in failing to conduct a hearing. The case was therefore remanded for a hearing on the habeas petition to determine whether this error and the trial court’s failure to investigate the alleged juror misconduct impacted the verdict.
On remand, a hearing was held where the petitioner presented several witnesses (including former jurors from the trial), who testified that the juror at issue read from the Bible and discussed with the jury her pastor’s view that the jury should “live by the laws of the land” for up to 30 minutes during the penalty deliberations. The district court ultimately found that this error likely had no impact on the verdict and again denied the petition. The petitioner again appealed (in the present case), and the Fourth Circuit again reversed, this time granting the petition and vacating the death verdict.
While the state post-conviction court unreasonably applied Remmer to the petitioner’s claims, the court may not grant a habeas petition unless that error resulted in actual prejudice. To show prejudice, the petitioner must demonstrate that the external influence impacted the verdict. Courts deciding this question will consider “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Id. at 11. When the court finds itself conflicted over whether or not the error impacted the verdict, it should err on the side of the petitioner:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand. However, ‘[I]f the federal court is ‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or influence’ on the verdict and finds itself ‘in virtual equipoise’ about the issue, the error is not harmless.’ Id. at 12-13.
Reviewing the petitioner’s evidence, the court found that this error was not harmless. The court discussed the quandary of juror misconduct claims in light of Federal Rule of Evidence 606, which prohibits inquiry into the deliberative processes of jurors. An exception to that rule exists allowing jurors to testify about outside influences or communications, but the rule still prohibits jurors from testifying to the impact of such outside contact on the deliberations. The parties hotly debated the application of Rule 606 at the habeas hearing in district court. In light of the limitations imposed by the evidentiary rule in this context, “it is especially important for us to view the record practically and holistically when considering the effect that a juror’s misconduct ‘reasonably may be taken to have had upon the jury’s decision.’” Id. at 13. Here, the pastor’s advice was unquestionably an outside influence. That advice, passed on to the rest of the jury, acted to undercut the defense attorney’s religious argument and to convince any reluctant jurors of the propriety of a death sentence.
It is reasonable to conclude, especially coming from a figure of religious authority, [the pastor’s] message assuaged reservations about imposing the death penalty that the attorney’s comments may have instilled. Further, the length of [the juror’s] conversation with the jury—up to 30 minutes in less than two full days of deliberations—counsels against concluding that the discussion had no effect on the jury’s decision. Id. at 16-17.
The court being “in virtual equipoise” over the impact of this outside communication, the district court was reversed and the petition granted. A dissenting judge would have affirmed the district court and denied the petition.
North Carolina conditional discharge plea of guilty does not qualify as a conviction for purposes of the federal felon in possession statute where no final judgment had been entered, despite violations of the terms of the discharge
U.S. v. Smith, ___ F.3d ___, 2019 WL 4724052 (Sept. 27, 2019). In this case from the Western District of North Carolina, the defendant pled guilty to felony larceny in state court and received a conditional discharge. Under the conditional discharge statute, the defendant enters a plea of guilty and judgment is withheld during a period of probation, during which the defendant demonstrates good conduct by avoiding further charges and abiding by the terms of probation. Upon successful completion of the period of probation, the plea is vacated and the matter dismissed by the court without conviction. If the terms of the conditional discharge agreement are violated, the court may enter judgment on the plea and sentence the defendant normally.
After entering into the agreement, the defendant was twice found in violation by possessing guns. A probation violation was filed in state court, but prior to its resolution, the federal government sought and obtained an indictment for felon in possession of a firearm. He was convicted at trial and appealed, arguing that the state court plea and deferred judgment did not qualify as a conviction for purposes of the felon in possession statute. The Fourth Circuit agreed and reversed.
Under Rehaif v. U.S., 139 S. Ct. 2191 (2019), to be convicted of the federal crime of felon in possession, a person must knowingly possess a gun and must be aware that he or she is not entitled to possess it—the defendant must know he or she had a conviction that disqualified them from possessing the firearm. While either a state or federal conviction will suffice, under 18 U.S.C. 921(a)(20), convictions are determined by reference to the relevant law of the jurisdiction where the underlying proceedings occurred. The court therefore examined whether North Carolina law would treat this circumstance as a conviction.
The word “conviction” in North Carolina law means different things in different contexts. Looking by analogy to the state crime of firearm by felon, the court observed that statute defines “conviction” as “a final judgment . . .”  See N.C.G.S. 14-415.1(b). Because final judgment was withheld here pending the outcome of the conditional discharge agreement, there was no final judgment in the case, and therefore no conviction.
The court was unpersuaded by the government’s argument that North Carolina’s sentencing law treats a plea of guilty as a conviction from the moment of the plea. For one, the definition of “conviction” in the sentencing statutes is limited by the statute’s plain language—it applies only “for the purpose of imposing sentence.” And while a “convicted offender” may be sentenced for up to five years of probation, probation imposed pursuant to a conditional discharge is limited to two years, further suggesting that state law distinguishes between a true conviction and a conditional discharge plea.
The court likewise rejected the government’s analogy that this scenario was like a prayer for judgment continued (“PJC”). Citing Friend v. North Carolina, 609 S.E.2d 476 (N.C. Ct. App. 2005), the government argued that North Carolina would treat this situation like the conviction in Friend—there, the defendant was found to have been convicted following a guilty plea where he received a PJC, and such conviction sufficed to serve as a basis for the subsequent charges of possession of firearm by felon. The Fourth Circuit disagreed for two reasons. One, the holding in Friend conflicts with earlier decisions by the North Carolina Supreme Court where a true PJC was found to be not a judgment at all:
 Only if a judge also ‘imposes conditions amounting to punishment (fine or imprisonment)’ does a prayer for judgement order become a ‘final judgment.’ For when the prayer and punishment occur at the same time, the court must treat the prayer as surplusage because the punishment creates a final judgment, subject to appeal. Since punishment has already been inflicted, ‘the court has exhausted its power and cannot thereafter impose additional punishment. Thus, a key predicate of Friend’s holding—that a ‘prayer for judgment continued’ constitutes ‘judgment’ appears to be inconsistent with North Carolina law. Slip op. 8-9.
However, even if Friend was correctly decided, conditional discharges in this posture are nonetheless different. Under the wording of the conditional discharge statute, probation is imposed “without entering a judgment of guilt.” This materially distinguishes the situation from cases involving sentencing.
This procedure permits the court to impose consequences in the form of conditions and fines as a part of the conditional-discharge probation while leaving open the possibility of [further] punishment. As a result, even if a prayer for judgment is properly treated as a ‘judgment’ (as Friend held) and thus a conviction, the governing statute tells us that a conditional discharge is not a ‘judgment.’ Id. at 9-10.
Finally, where the law is unclear, the rule of lenity would apply. In light of the state case law and Rehaif, the court concluded that a plea of guilty in the conditional discharge process at this stage did not qualify as a conviction for purposes of the federal felon in possession statute. The conviction was therefore unanimously vacated and reversed. [Author’s note: The Fourth Circuit’s interpretation of state law is not binding on North Carolina courts.]
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marymosley · 5 years ago
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Case Summaries–Fourth Circuit Decisions (Sept. 2019)
This post summarizes published decisions from the Fourth Circuit of interest to state practitioners from September, 2019.
Inmate-plaintiff’s complaint about lack of medical care presented sufficient claim for deliberate indifference by prison officials and can proceed; summary judgment reversed
Gordon v. Schilling, 937 F.3d 348 (Sept. 4, 2019). The plaintiff, an inmate in the Western District of Virginia, sued the Health Services Director and Chief Physician of the Virginia Department of Corrections (“VDOC”) for Eighth Amendment violations under 42 U.S.C. § 1983. He claimed that the officials acted with deliberate indifference in denying him treatment for Hepatitis C. The VDOC had a policy whereby inmates eligible for parole were “categorically excluded” from receiving treatment for Hepatitis C (among other exclusions). Inmates meeting the VDOC treatment policy requirements were provided testing and medication as needed, including a liver biopsy and “baseline workup.” Inmates not eligible under the policy were assigned to a clinic where they could be examined and have liver function tested twice annually, but did not receive the medication, biopsy, or baseline workup. The plaintiff was diagnosed in prison with the disease in 2008. His ultimate parole date was in 2028. Although he became eligible for discretionary parole in 2002, he never sought a hearing before the parole board. Because he was parole eligible, he was excluded from treatment pursuant to the policy and was provided only the lesser clinic care. His clinic tests showed possible liver damage in 2011, and he filed complaints within the prison system to alert officials to his need for more significant treatment. Meanwhile, the prison changed the clinic treatment policy to reduce the number of liver function tests for the clinic patients to one per year. The plaintiff again complained, pointing to medical standards from the Centers for Disease Control and Prevention that recommend multiple examinations each year for patients with this condition. The grievances were denied and those decisions affirmed on appeal to the Health Services Director. In 2012, the plaintiff was moved to a different facility and did not receive even the clinic care for at least 18 months. When he complained, the complaint was again denied and affirmed on appeal to the administration.  The plaintiff then requested the prison system policies on Hepatitis treatment, which was denied. By October 2013, he filed a new grievance, which was again denied, this time with the explanation that the plaintiff’s condition no longer qualified for even the clinic care.
In 2014, the Chief Physician suspended the treatment policy based on the advice of national medical groups (which recommended use of different medications). This decision had the effect of stopping all treatment of all inmates with the condition until a new policy could be implemented. The treatment policy remained suspended for one year. When new guidelines were instituted, the plaintiff was no longer excluded from receiving treatment on the basis of his parole eligibility. A few months later the plaintiff received proper testing, which showed the onset of cirrhosis of the liver. He sued pro se, alleging an Eighth Amendment violation. The district court granted summary judgment to the defendants, finding they played no direct role in treatment decisions affecting the plaintiff. On appeal, the Fourth Circuit appointed counsel to the plaintiff and reversed.
When prison officials are deliberately indifferent to an inmate’s serious medical condition, the Eighth Amendment is violated. “In context of a claim related to denial of medical treatment, a defendant ‘acts with deliberate indifference if he had actual knowledge of [the plaintiff’s] serious medical needs and the related risks, but nevertheless disregarded them.’” Slip op. at 16.  As to the Director of Health Services, he had knowledge of the plaintiff’s condition and need for treatment by way of the plaintiff’s repeated administrative complaints. He was also aware of the risks, which were also detailed in the institution’s policies. As the person that denied the complaints and reviews the healthcare policies each year, there was sufficient evidence of the health director’s personal involvement for the matter to proceed. As to the Chief Physician, he was aware that the plaintiff’s condition affected a large percentage of the prison system and was likewise aware of the risks of failing to treat the disease. The physician failed to change the policy for nearly a year after assuming office and then ceased all treatment for inmates with the disease when the policy was suspended without instituting a replacement policy for another full year. The physician offered no explanation of why the plaintiff stopped receiving even the minimal clinic care for more than a year beginning in 2012. While the physician offered medical explanations for some of his decisions, there were at least genuine issues of material fact in dispute, making summary judgment improper.  The trial court’s decision was therefore unanimously vacated and remanded for disposition in the trial court. “To rule otherwise would encourage prison official to turn a blind eye to the real-world consequences of their policymaking and permit them to escape liability for constitutional harms caused by their decisions.” Id. at 26.
Exigent circumstances supported stop and flashlight search of defendant where officers responded to gunshots in a residential area within seconds; grant of suppression motion reversed
U.S. v. Curry, 937 F.3d 363 (Sept. 5, 2019). This case from the Eastern District of Virginia involved a felon in possession of a firearm charge. Police responded within seconds to the sound of gunshots in a neighborhood. The defendant and several other men were walking away from the area when police arrived, and officers pointed lit flashlights at them, instructing the men to stop, show their hands, and raise their shirts. The defendant did not comply and was frisked, leading to the discovery of a gun on his person. The trial court granted the defendant’s motion to suppress finding that the government lacked reasonable suspicion supporting the seizure of the defendant. The trial court expressly found that the lack of particularized suspicion was fatal and that any exigencies of the situation could not excuse the lack of reasonable suspicion. The Fourth Circuit reversed.
The court identified exigent circumstances as a subset of the special needs doctrine of the Fourth Amendment. “Even without suspicion of criminal activity, a search or seizure may still be reasonable when ‘special governmental needs, beyond the normal need for law enforcement’ justify the intrusion.” Slip op. at 10. This exception is limited and applies where the government’s interest is something more than “ordinary crime control,” such as responding to the threat of a terrorist attack. These special governmental interests may overlap with general crime prevention interests, and often do. To determine whether special needs apply, the court must consider the primary goal of the officers’ actions at the time of the seizure by looking at the totality of circumstances.
Reviewing exigent circumstances cases in the circuit, the court observed that “the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.” Id. at 13. Whether a situation rises to the level of an exigent circumstance is a fact-driven question but typically requires the need for immediate action to prevent harm. The U.S. Supreme Court has recognized exigent circumstances where the was an imminent threat of harm to people or an imminent threat of destruction of evidence, among others. Here, the officers were faced with exigent circumstances. The shots had been fired in a “densely populated residential neighborhood” only seconds before officers arrived. The officers’ primary purpose in shining flashlights on the men was to protect themselves and the public from the shooter. Further, these actions were reasonable under the factors in Brown v. Texas, 443 U.S. 47 (1979): Grave public interests for public safety and officer safety were implicated by the situation; the officers’ actions were narrowly tailored to deal with the urgency of the situation; and the intrusion was limited in time and scope—the flashlight search was complete in under a minute, and asking the men to expose their waistbands was a less intrusive way to determine if the men were armed. The flashlight search occurred within the area and close in time to the gunshots. The stop and flashlight search were therefore reasonable. The grant of the motion to suppress was consequently reversed and the case remanded for a determination whether the frisk of the defendant following the flashlight search was justified.
A dissenting judge would have affirmed the trial court and criticized the majority opinion for expanding exigent circumstances doctrine and conflating it with the special needs doctrine.
Death verdict vacated for juror misconduct in penalty-phase deliberations
Barnes v. Thomas (Barnes II), ___F.3d ___, 2019 WL 4308636 (Sept. 12, 2019). This habeas case from the Middle District of North Carolina involved juror misconduct in the penalty phase of a capital murder case. The petitioner and two co-defendants were jointly tried for murder in 1994. One of the co-defendant lawyers made an extended, overtly religious argument during the penalty phase to the jury, strongly implying that the jurors’ souls would be jeopardized if they voted for death:
Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. . .All of us will stand in judgement one day. . .[d]oes a true believer want to explain to God, yes, I did violate one of your commandments. Slip op. at 3.
No objections to this argument were lodged. The jury returned a death recommendation the next day. The defense lawyer immediately notified the trial court of information that one juror had contacted her pastor to discuss the death penalty and had discussed his advice with the other jurors during deliberations. The trial court denied the request to investigate the matter, and the state supreme court denied relief on the claim.
During state post-conviction proceedings, the petitioner again raised his juror misconduct claim, but the state court rejected that claim as procedurally barred since the matter was addressed on direct appeal. The petitioner then filed for habeas relief in federal district court. The district court ultimately denied relief without a hearing, and the petitioner appealed. In Barnes I, the Fourth Circuit reversed, finding the state court’s disposition of the juror misconduct claim to be an unreasonable application of federal law. Under Remmer v. U.S., 347 U.S. 227 (1954), where the petitioner credibly alleges third-party contact with jurors, he is entitled to an evidentiary hearing and a presumption of prejudice applies. The petitioner’s claims plausibly alleged such improper third-party contact, and the trial court erred in failing to conduct a hearing. The case was therefore remanded for a hearing on the habeas petition to determine whether this error and the trial court’s failure to investigate the alleged juror misconduct impacted the verdict.
On remand, a hearing was held where the petitioner presented several witnesses (including former jurors from the trial), who testified that the juror at issue read from the Bible and discussed with the jury her pastor’s view that the jury should “live by the laws of the land” for up to 30 minutes during the penalty deliberations. The district court ultimately found that this error likely had no impact on the verdict and again denied the petition. The petitioner again appealed (in the present case), and the Fourth Circuit again reversed, this time granting the petition and vacating the death verdict.
While the state post-conviction court unreasonably applied Remmer to the petitioner’s claims, the court may not grant a habeas petition unless that error resulted in actual prejudice. To show prejudice, the petitioner must demonstrate that the external influence impacted the verdict. Courts deciding this question will consider “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Id. at 11. When the court finds itself conflicted over whether or not the error impacted the verdict, it should err on the side of the petitioner:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand. However, ‘[I]f the federal court is ‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or influence’ on the verdict and finds itself ‘in virtual equipoise’ about the issue, the error is not harmless.’ Id. at 12-13.
Reviewing the petitioner’s evidence, the court found that this error was not harmless. The court discussed the quandary of juror misconduct claims in light of Federal Rule of Evidence 606, which prohibits inquiry into the deliberative processes of jurors. An exception to that rule exists allowing jurors to testify about outside influences or communications, but the rule still prohibits jurors from testifying to the impact of such outside contact on the deliberations. The parties hotly debated the application of Rule 606 at the habeas hearing in district court. In light of the limitations imposed by the evidentiary rule in this context, “it is especially important for us to view the record practically and holistically when considering the effect that a juror’s misconduct ‘reasonably may be taken to have had upon the jury’s decision.’” Id. at 13. Here, the pastor’s advice was unquestionably an outside influence. That advice, passed on to the rest of the jury, acted to undercut the defense attorney’s religious argument and to convince any reluctant jurors of the propriety of a death sentence.
It is reasonable to conclude, especially coming from a figure of religious authority, [the pastor’s] message assuaged reservations about imposing the death penalty that the attorney’s comments may have instilled. Further, the length of [the juror’s] conversation with the jury—up to 30 minutes in less than two full days of deliberations—counsels against concluding that the discussion had no effect on the jury’s decision. Id. at 16-17.
The court being “in virtual equipoise” over the impact of this outside communication, the district court was reversed and the petition granted. A dissenting judge would have affirmed the district court and denied the petition.
North Carolina conditional discharge plea of guilty does not qualify as a conviction for purposes of the federal felon in possession statute where no final judgment had been entered, despite violations of the terms of the discharge
U.S. v. Smith, ___ F.3d ___, 2019 WL 4724052 (Sept. 27, 2019). In this case from the Western District of North Carolina, the defendant pled guilty to felony larceny in state court and received a conditional discharge. Under the conditional discharge statute, the defendant enters a plea of guilty and judgment is withheld during a period of probation, during which the defendant demonstrates good conduct by avoiding further charges and abiding by the terms of probation. Upon successful completion of the period of probation, the plea is vacated and the matter dismissed by the court without conviction. If the terms of the conditional discharge agreement are violated, the court may enter judgment on the plea and sentence the defendant normally.
After entering into the agreement, the defendant was twice found in violation by possessing guns. A probation violation was filed in state court, but prior to its resolution, the federal government sought and obtained an indictment for felon in possession of a firearm. He was convicted at trial and appealed, arguing that the state court plea and deferred judgment did not qualify as a conviction for purposes of the felon in possession statute. The Fourth Circuit agreed and reversed.
Under Rehaif v. U.S., 139 S. Ct. 2191 (2019), to be convicted of the federal crime of felon in possession, a person must knowingly possess a gun and must be aware that he or she is not entitled to possess it—the defendant must know he or she had a conviction that disqualified them from possessing the firearm. While either a state or federal conviction will suffice, under 18 U.S.C. 921(a)(20), convictions are determined by reference to the relevant law of the jurisdiction where the underlying proceedings occurred. The court therefore examined whether North Carolina law would treat this circumstance as a conviction.
The word “conviction” in North Carolina law means different things in different contexts. Looking by analogy to the state crime of firearm by felon, the court observed that statute defines “conviction” as “a final judgment . . .”  See N.C.G.S. 14-415.1(b). Because final judgment was withheld here pending the outcome of the conditional discharge agreement, there was no final judgment in the case, and therefore no conviction.
The court was unpersuaded by the government’s argument that North Carolina’s sentencing law treats a plea of guilty as a conviction from the moment of the plea. For one, the definition of “conviction” in the sentencing statutes is limited by the statute’s plain language—it applies only “for the purpose of imposing sentence.” And while a “convicted offender” may be sentenced for up to five years of probation, probation imposed pursuant to a conditional discharge is limited to two years, further suggesting that state law distinguishes between a true conviction and a conditional discharge plea.
The court likewise rejected the government’s analogy that this scenario was like a prayer for judgment continued (“PJC”). Citing Friend v. North Carolina, 609 S.E.2d 476 (N.C. Ct. App. 2005), the government argued that North Carolina would treat this situation like the conviction in Friend—there, the defendant was found to have been convicted following a guilty plea where he received a PJC, and such conviction sufficed to serve as a basis for the subsequent charges of possession of firearm by felon. The Fourth Circuit disagreed for two reasons. One, the holding in Friend conflicts with earlier decisions by the North Carolina Supreme Court where a true PJC was found to be not a judgment at all:
 Only if a judge also ‘imposes conditions amounting to punishment (fine or imprisonment)’ does a prayer for judgement order become a ‘final judgment.’ For when the prayer and punishment occur at the same time, the court must treat the prayer as surplusage because the punishment creates a final judgment, subject to appeal. Since punishment has already been inflicted, ‘the court has exhausted its power and cannot thereafter impose additional punishment. Thus, a key predicate of Friend’s holding—that a ‘prayer for judgment continued’ constitutes ‘judgment’ appears to be inconsistent with North Carolina law. Slip op. 8-9.
However, even if Friend was correctly decided, conditional discharges in this posture are nonetheless different. Under the wording of the conditional discharge statute, probation is imposed “without entering a judgment of guilt.” This materially distinguishes the situation from cases involving sentencing.
This procedure permits the court to impose consequences in the form of conditions and fines as a part of the conditional-discharge probation while leaving open the possibility of [further] punishment. As a result, even if a prayer for judgment is properly treated as a ‘judgment’ (as Friend held) and thus a conviction, the governing statute tells us that a conditional discharge is not a ‘judgment.’ Id. at 9-10.
Finally, where the law is unclear, the rule of lenity would apply. In light of the state case law and Rehaif, the court concluded that a plea of guilty in the conditional discharge process at this stage did not qualify as a conviction for purposes of the federal felon in possession statute. The conviction was therefore unanimously vacated and reversed. [Author’s note: The Fourth Circuit’s interpretation of state law is not binding on North Carolina courts.]
The post Case Summaries–Fourth Circuit Decisions (Sept. 2019) appeared first on North Carolina Criminal Law.
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marymosley · 5 years ago
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Case Summaries–Fourth Circuit Decisions (Sept. 2019)
This post summarizes published decisions from the Fourth Circuit of interest to state practitioners from September, 2019.
Inmate-plaintiff’s complaint about lack of medical care presented sufficient claim for deliberate indifference by prison officials and can proceed; summary judgment reversed
Gordon v. Schilling, 937 F.3d 348 (Sept. 4, 2019). The plaintiff, an inmate in the Western District of Virginia, sued the Health Services Director and Chief Physician of the Virginia Department of Corrections (“VDOC”) for Eighth Amendment violations under 42 U.S.C. § 1983. He claimed that the officials acted with deliberate indifference in denying him treatment for Hepatitis C. The VDOC had a policy whereby inmates eligible for parole were “categorically excluded” from receiving treatment for Hepatitis C (among other exclusions). Inmates meeting the VDOC treatment policy requirements were provided testing and medication as needed, including a liver biopsy and “baseline workup.” Inmates not eligible under the policy were assigned to a clinic where they could be examined and have liver function tested twice annually, but did not receive the medication, biopsy, or baseline workup. The plaintiff was diagnosed in prison with the disease in 2008. His ultimate parole date was in 2028. Although he became eligible for discretionary parole in 2002, he never sought a hearing before the parole board. Because he was parole eligible, he was excluded from treatment pursuant to the policy and was provided only the lesser clinic care. His clinic tests showed possible liver damage in 2011, and he filed complaints within the prison system to alert officials to his need for more significant treatment. Meanwhile, the prison changed the clinic treatment policy to reduce the number of liver function tests for the clinic patients to one per year. The plaintiff again complained, pointing to medical standards from the Centers for Disease Control and Prevention that recommend multiple examinations each year for patients with this condition. The grievances were denied and those decisions affirmed on appeal to the Health Services Director. In 2012, the plaintiff was moved to a different facility and did not receive even the clinic care for at least 18 months. When he complained, the complaint was again denied and affirmed on appeal to the administration.  The plaintiff then requested the prison system policies on Hepatitis treatment, which was denied. By October 2013, he filed a new grievance, which was again denied, this time with the explanation that the plaintiff’s condition no longer qualified for even the clinic care.
In 2014, the Chief Physician suspended the treatment policy based on the advice of national medical groups (which recommended use of different medications). This decision had the effect of stopping all treatment of all inmates with the condition until a new policy could be implemented. The treatment policy remained suspended for one year. When new guidelines were instituted, the plaintiff was no longer excluded from receiving treatment on the basis of his parole eligibility. A few months later the plaintiff received proper testing, which showed the onset of cirrhosis of the liver. He sued pro se, alleging an Eighth Amendment violation. The district court granted summary judgment to the defendants, finding they played no direct role in treatment decisions affecting the plaintiff. On appeal, the Fourth Circuit appointed counsel to the plaintiff and reversed.
When prison officials are deliberately indifferent to an inmate’s serious medical condition, the Eighth Amendment is violated. “In context of a claim related to denial of medical treatment, a defendant ‘acts with deliberate indifference if he had actual knowledge of [the plaintiff’s] serious medical needs and the related risks, but nevertheless disregarded them.’” Slip op. at 16.  As to the Director of Health Services, he had knowledge of the plaintiff’s condition and need for treatment by way of the plaintiff’s repeated administrative complaints. He was also aware of the risks, which were also detailed in the institution’s policies. As the person that denied the complaints and reviews the healthcare policies each year, there was sufficient evidence of the health director’s personal involvement for the matter to proceed. As to the Chief Physician, he was aware that the plaintiff’s condition affected a large percentage of the prison system and was likewise aware of the risks of failing to treat the disease. The physician failed to change the policy for nearly a year after assuming office and then ceased all treatment for inmates with the disease when the policy was suspended without instituting a replacement policy for another full year. The physician offered no explanation of why the plaintiff stopped receiving even the minimal clinic care for more than a year beginning in 2012. While the physician offered medical explanations for some of his decisions, there were at least genuine issues of material fact in dispute, making summary judgment improper.  The trial court’s decision was therefore unanimously vacated and remanded for disposition in the trial court. “To rule otherwise would encourage prison official to turn a blind eye to the real-world consequences of their policymaking and permit them to escape liability for constitutional harms caused by their decisions.” Id. at 26.
Exigent circumstances supported stop and flashlight search of defendant where officers responded to gunshots in a residential area within seconds; grant of suppression motion reversed
U.S. v. Curry, 937 F.3d 363 (Sept. 5, 2019). This case from the Eastern District of Virginia involved a felon in possession of a firearm charge. Police responded within seconds to the sound of gunshots in a neighborhood. The defendant and several other men were walking away from the area when police arrived, and officers pointed lit flashlights at them, instructing the men to stop, show their hands, and raise their shirts. The defendant did not comply and was frisked, leading to the discovery of a gun on his person. The trial court granted the defendant’s motion to suppress finding that the government lacked reasonable suspicion supporting the seizure of the defendant. The trial court expressly found that the lack of particularized suspicion was fatal and that any exigencies of the situation could not excuse the lack of reasonable suspicion. The Fourth Circuit reversed.
The court identified exigent circumstances as a subset of the special needs doctrine of the Fourth Amendment. “Even without suspicion of criminal activity, a search or seizure may still be reasonable when ‘special governmental needs, beyond the normal need for law enforcement’ justify the intrusion.” Slip op. at 10. This exception is limited and applies where the government’s interest is something more than “ordinary crime control,” such as responding to the threat of a terrorist attack. These special governmental interests may overlap with general crime prevention interests, and often do. To determine whether special needs apply, the court must consider the primary goal of the officers’ actions at the time of the seizure by looking at the totality of circumstances.
Reviewing exigent circumstances cases in the circuit, the court observed that “the need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.” Id. at 13. Whether a situation rises to the level of an exigent circumstance is a fact-driven question but typically requires the need for immediate action to prevent harm. The U.S. Supreme Court has recognized exigent circumstances where the was an imminent threat of harm to people or an imminent threat of destruction of evidence, among others. Here, the officers were faced with exigent circumstances. The shots had been fired in a “densely populated residential neighborhood” only seconds before officers arrived. The officers’ primary purpose in shining flashlights on the men was to protect themselves and the public from the shooter. Further, these actions were reasonable under the factors in Brown v. Texas, 443 U.S. 47 (1979): Grave public interests for public safety and officer safety were implicated by the situation; the officers’ actions were narrowly tailored to deal with the urgency of the situation; and the intrusion was limited in time and scope—the flashlight search was complete in under a minute, and asking the men to expose their waistbands was a less intrusive way to determine if the men were armed. The flashlight search occurred within the area and close in time to the gunshots. The stop and flashlight search were therefore reasonable. The grant of the motion to suppress was consequently reversed and the case remanded for a determination whether the frisk of the defendant following the flashlight search was justified.
A dissenting judge would have affirmed the trial court and criticized the majority opinion for expanding exigent circumstances doctrine and conflating it with the special needs doctrine.
Death verdict vacated for juror misconduct in penalty-phase deliberations
Barnes v. Thomas (Barnes II), ___F.3d ___, 2019 WL 4308636 (Sept. 12, 2019). This habeas case from the Middle District of North Carolina involved juror misconduct in the penalty phase of a capital murder case. The petitioner and two co-defendants were jointly tried for murder in 1994. One of the co-defendant lawyers made an extended, overtly religious argument during the penalty phase to the jury, strongly implying that the jurors’ souls would be jeopardized if they voted for death:
Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. . .All of us will stand in judgement one day. . .[d]oes a true believer want to explain to God, yes, I did violate one of your commandments. Slip op. at 3.
No objections to this argument were lodged. The jury returned a death recommendation the next day. The defense lawyer immediately notified the trial court of information that one juror had contacted her pastor to discuss the death penalty and had discussed his advice with the other jurors during deliberations. The trial court denied the request to investigate the matter, and the state supreme court denied relief on the claim.
During state post-conviction proceedings, the petitioner again raised his juror misconduct claim, but the state court rejected that claim as procedurally barred since the matter was addressed on direct appeal. The petitioner then filed for habeas relief in federal district court. The district court ultimately denied relief without a hearing, and the petitioner appealed. In Barnes I, the Fourth Circuit reversed, finding the state court’s disposition of the juror misconduct claim to be an unreasonable application of federal law. Under Remmer v. U.S., 347 U.S. 227 (1954), where the petitioner credibly alleges third-party contact with jurors, he is entitled to an evidentiary hearing and a presumption of prejudice applies. The petitioner’s claims plausibly alleged such improper third-party contact, and the trial court erred in failing to conduct a hearing. The case was therefore remanded for a hearing on the habeas petition to determine whether this error and the trial court’s failure to investigate the alleged juror misconduct impacted the verdict.
On remand, a hearing was held where the petitioner presented several witnesses (including former jurors from the trial), who testified that the juror at issue read from the Bible and discussed with the jury her pastor’s view that the jury should “live by the laws of the land” for up to 30 minutes during the penalty deliberations. The district court ultimately found that this error likely had no impact on the verdict and again denied the petition. The petitioner again appealed (in the present case), and the Fourth Circuit again reversed, this time granting the petition and vacating the death verdict.
While the state post-conviction court unreasonably applied Remmer to the petitioner’s claims, the court may not grant a habeas petition unless that error resulted in actual prejudice. To show prejudice, the petitioner must demonstrate that the external influence impacted the verdict. Courts deciding this question will consider “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” Id. at 11. When the court finds itself conflicted over whether or not the error impacted the verdict, it should err on the side of the petitioner:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and judgment should stand. However, ‘[I]f the federal court is ‘in grave doubt’ about whether the trial error had a ‘substantial and injurious effect or influence’ on the verdict and finds itself ‘in virtual equipoise’ about the issue, the error is not harmless.’ Id. at 12-13.
Reviewing the petitioner’s evidence, the court found that this error was not harmless. The court discussed the quandary of juror misconduct claims in light of Federal Rule of Evidence 606, which prohibits inquiry into the deliberative processes of jurors. An exception to that rule exists allowing jurors to testify about outside influences or communications, but the rule still prohibits jurors from testifying to the impact of such outside contact on the deliberations. The parties hotly debated the application of Rule 606 at the habeas hearing in district court. In light of the limitations imposed by the evidentiary rule in this context, “it is especially important for us to view the record practically and holistically when considering the effect that a juror’s misconduct ‘reasonably may be taken to have had upon the jury’s decision.’” Id. at 13. Here, the pastor’s advice was unquestionably an outside influence. That advice, passed on to the rest of the jury, acted to undercut the defense attorney’s religious argument and to convince any reluctant jurors of the propriety of a death sentence.
It is reasonable to conclude, especially coming from a figure of religious authority, [the pastor’s] message assuaged reservations about imposing the death penalty that the attorney’s comments may have instilled. Further, the length of [the juror’s] conversation with the jury—up to 30 minutes in less than two full days of deliberations—counsels against concluding that the discussion had no effect on the jury’s decision. Id. at 16-17.
The court being “in virtual equipoise” over the impact of this outside communication, the district court was reversed and the petition granted. A dissenting judge would have affirmed the district court and denied the petition.
North Carolina conditional discharge plea of guilty does not qualify as a conviction for purposes of the federal felon in possession statute where no final judgment had been entered, despite violations of the terms of the discharge
U.S. v. Smith, ___ F.3d ___, 2019 WL 4724052 (Sept. 27, 2019). In this case from the Western District of North Carolina, the defendant pled guilty to felony larceny in state court and received a conditional discharge. Under the conditional discharge statute, the defendant enters a plea of guilty and judgment is withheld during a period of probation, during which the defendant demonstrates good conduct by avoiding further charges and abiding by the terms of probation. Upon successful completion of the period of probation, the plea is vacated and the matter dismissed by the court without conviction. If the terms of the conditional discharge agreement are violated, the court may enter judgment on the plea and sentence the defendant normally.
After entering into the agreement, the defendant was twice found in violation by possessing guns. A probation violation was filed in state court, but prior to its resolution, the federal government sought and obtained an indictment for felon in possession of a firearm. He was convicted at trial and appealed, arguing that the state court plea and deferred judgment did not qualify as a conviction for purposes of the felon in possession statute. The Fourth Circuit agreed and reversed.
Under Rehaif v. U.S., 139 S. Ct. 2191 (2019), to be convicted of the federal crime of felon in possession, a person must knowingly possess a gun and must be aware that he or she is not entitled to possess it—the defendant must know he or she had a conviction that disqualified them from possessing the firearm. While either a state or federal conviction will suffice, under 18 U.S.C. 921(a)(20), convictions are determined by reference to the relevant law of the jurisdiction where the underlying proceedings occurred. The court therefore examined whether North Carolina law would treat this circumstance as a conviction.
The word “conviction” in North Carolina law means different things in different contexts. Looking by analogy to the state crime of firearm by felon, the court observed that statute defines “conviction” as “a final judgment . . .”  See N.C.G.S. 14-415.1(b). Because final judgment was withheld here pending the outcome of the conditional discharge agreement, there was no final judgment in the case, and therefore no conviction.
The court was unpersuaded by the government’s argument that North Carolina’s sentencing law treats a plea of guilty as a conviction from the moment of the plea. For one, the definition of “conviction” in the sentencing statutes is limited by the statute’s plain language—it applies only “for the purpose of imposing sentence.” And while a “convicted offender” may be sentenced for up to five years of probation, probation imposed pursuant to a conditional discharge is limited to two years, further suggesting that state law distinguishes between a true conviction and a conditional discharge plea.
The court likewise rejected the government’s analogy that this scenario was like a prayer for judgment continued (“PJC”). Citing Friend v. North Carolina, 609 S.E.2d 476 (N.C. Ct. App. 2005), the government argued that North Carolina would treat this situation like the conviction in Friend—there, the defendant was found to have been convicted following a guilty plea where he received a PJC, and such conviction sufficed to serve as a basis for the subsequent charges of possession of firearm by felon. The Fourth Circuit disagreed for two reasons. One, the holding in Friend conflicts with earlier decisions by the North Carolina Supreme Court where a true PJC was found to be not a judgment at all:
 Only if a judge also ‘imposes conditions amounting to punishment (fine or imprisonment)’ does a prayer for judgement order become a ‘final judgment.’ For when the prayer and punishment occur at the same time, the court must treat the prayer as surplusage because the punishment creates a final judgment, subject to appeal. Since punishment has already been inflicted, ‘the court has exhausted its power and cannot thereafter impose additional punishment. Thus, a key predicate of Friend’s holding—that a ‘prayer for judgment continued’ constitutes ‘judgment’ appears to be inconsistent with North Carolina law. Slip op. 8-9.
However, even if Friend was correctly decided, conditional discharges in this posture are nonetheless different. Under the wording of the conditional discharge statute, probation is imposed “without entering a judgment of guilt.” This materially distinguishes the situation from cases involving sentencing.
This procedure permits the court to impose consequences in the form of conditions and fines as a part of the conditional-discharge probation while leaving open the possibility of [further] punishment. As a result, even if a prayer for judgment is properly treated as a ‘judgment’ (as Friend held) and thus a conviction, the governing statute tells us that a conditional discharge is not a ‘judgment.’ Id. at 9-10.
Finally, where the law is unclear, the rule of lenity would apply. In light of the state case law and Rehaif, the court concluded that a plea of guilty in the conditional discharge process at this stage did not qualify as a conviction for purposes of the federal felon in possession statute. The conviction was therefore unanimously vacated and reversed. [Author’s note: The Fourth Circuit’s interpretation of state law is not binding on North Carolina courts.]
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