The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume IV, Issue 1, March 2004

ACCESS

NCPLS CELEBRATES 25TH ANNIVERSARY
WITH OPEN HOUSE AT NEW OFFICE
The twenty-five year history of
North Carolina Prisoner Legal
Services, Inc., can be traced in a
record of
important
and successful litigation
in cases such
as Small v.
Martin, 85987-CRT
(EDNC
1985) (class
action challenge to
living conditions in 48
of the state’s
“road-camp”
prison units,
which led to
a legislatively im-posed prison
cap and structured
sentencing); West v. Atkins, 487
U.S. 42 (1988), and Medley v. N.C.
Dept. of Correction, 412 S.E.2d
654 (N.C. S.Ct. 1992) (affirming
the state’s non-delegable duty to
provide medical care to prisoners);
Simeon v. Hardin, 92-CV-04318
(Durham Co. Superior Court, 1992)
(challenging docketing practices
of the district attorney); Law, v.
Britt, 93-300-CT-BR (EDNC 1993)
(class action challenging living
conditions in state-run juvenile
detention centers); Hamilton v.
Freeman, 96-CVS-06321 (Wake

Co. Superior Court 1996) (class
action requiring DOC to honor
facially valid judgment and com-

NCPLS’s New Office

mitment orders); Thebaud v. Jarvis,
5:97-CT-463-BO(3) (EDNC 1997)
(class action challenging medical
services at Women’s Correctional
Institution), and hundreds of other
lawsuits brought on behalf of prisoners to remedy inhumane living
conditions or to correct illegal
convictions or sentences.
After 25 years, NCPLS has begun
to write a new chapter in the
program’s history. Beginning in
August 2003, we re-examined our
operations to develop a structure

that will allow us to provide more
efficient and timelier service to
our clients. In the past, our advocates were
generally
expected to
master the
law governing all of
the areas of
our practice.
Based upon
our reassessment,
we concluded that
specialization would
promote
efficiency
and improve
the quality
of services we offer.
So, capitalizing on
our experience and strengths, we
(Continued on Page 2)

In this Issue:
NCPLS Celebrates 25th Anniversary
with Open House at New Office

1

Goals Lead to Action

3

HIV Diagnosis and Testing: What
You Should Know

4

Spotlight on Paralegals

6

Another NCPLS Paralegal Earns
Certification

7

U.S. Supreme Court Report

8

Puruse Learning

10

State v. Jones Update

11

NCPLS ACCESS

Page 2

ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the North Carolina
Association of Black Lawyers, the
North Carolina Association of Women
Attorneys, and law school deans at
UNC, Duke, NCCU, Wake Forest and
Campbell.
NCPLS serves a population of more
than 33,500 prisoners and 14,000 pretrial detainees, providing information
and advice concerning legal rights and
responsibilities, discouraging frivolous
litigation, working toward administrative resolutions of legitimate problems,
and providing representation in all
State and federal courts to ensure
humane conditions of confinement and
to challenge illegal convictions and
sentences.
Board of Directors
President, Gary Presnell
Jim Blackburn
James A. Crouch, Esq.
Barry Nakell, Esq.
Susan Olive, Esq.
Professor Grady Jessup
Marilyn G. Ozer, Esq.
Professor Michelle Robertson
Lou Ann Vincent, C.P.A.
Fred Williams, Esq.
Professor Ronald F. Wright

Volume IV, Issue 1, March 2004

NCPLS CELEBRATES 25TH ANNIVERSARY
(CONTINUED)

(Continued from Page 1)

created the Support Team, the
Intake Team, the Civil Team, and
the Post-Conviction Team. The
development of these specialty
teams will allow our staff to focus
their time and energy on matters
within their particular knowledge
and areas of expertise.
In addition, our tenancy at 224
South Dawson Street was terminated and the relocation of our
office became a priority. New
office space was located and, late
last year, renovations of the building at 1110 Wake Forest Road were
undertaken. In a project supervised
by NCPLS Finance Officer Rick
Lennon, and with the assistance
of Executive Assistant Brenda M.
Richardson, the space was specifically designed and fitted to accommodate the needs of the program.
Major renovations were completed
and the office moved mid-February. But, we have not changed our
phone number – (919) 856-2200
– or our mailing address (P.O. Box
25397, Raleigh, NC 27611). In

short, our clients and their families
can contact us as they always have.
As you can imagine, despite careful
preparation and planning, the move
was disruptive. Moving office furniture, files, books, computers, and
equipment took time away from
providing services to our clients.
Consequently, we are scrambling
to catch up. If you have written to
NCPLS in recent months, or if you
write to us soon, you may experience a longer delay than usual in
receiving a response. (Generally,
we try to answer every request
for assistance and all client correspondence within 30 days.) Your
understanding and patience are
much appreciated.
Meanwhile, we are adding the
finishing touches to our building in
preparation for an Open House and
25th Anniversary Celebration on
March 26. The public is invited
and (for those who cannot attend)
the event will be the subject of an
article in the next issue of ACCESS.

Executive Director
Michael S. Hamden, Esq.
Editor
Patricia Sanders, CLA
PLEASE NOTE: ACCESS is published

four (4) times a year.

Articles, ideas and suggestions are
welcome: tsanders@ncpls.org

The Back of NCPLS’s New Office

NCPLS ACCESS

Volume IV, Issue 1, March 2004

Page 3

GOALS LEAD TO ACTION
By Michael G. Santos
(Reg. No. 16377-004) FCI Fort Dix, New Jersey
Editor’s Note: The following articles,
“Goals Lead to Action,” and “Pursue
Learning,” follow articles that appeared
in our last edition, “Choose Success,”
and “Use Goals to Guide.” They are
republished by permission of the author,
Michael G. Santos. Mr. Santos was convicted of drug distribution and sentenced
to serve 45 years in Federal prison. He is
scheduled for release in 2013. While in
prison, he has earned Bachelors and Masters Degrees. He has also written three
books available for review and purchase
on his web site: www. MichaelSantos.net.
Although Mr. Santos does not have direct
access to the internet, he can be reached
by email at: info@michaelsantos.net. He
can also be reached by writing to him at:
Michael G. Santos, Reg. No. 16377-004,
FCI – Fort Dix, P.O. Box 38, Fort Dix, NJ
08640.

________________

When a man walks into prison and
hears steel gates lock behind him,
he has to make a choice. He can
choose the loser’s path of immersing himself into the prison society,
or he can choose success. The
choice begins with how he thinks.
Many will blame informants, prosecutors, or incompetent attorneys
for their woes. Doing so, however,
is a recipe for continued failure.
Those who choose success acknowledge their own responsibility
for their station in life. Then they
set a series of goals that will push
them toward the point in their
journey where they envision themselves in years to come. Those
goals lead to action. And with
the long sentences being imposed
today, action is more important
than ever.

Society has become considerably
more punitive. Judges now routinely cast felons into an ocean of
time, and it is incumbent upon each
prisoner who chooses success to
use goals as his guide. Those goals
lead successful prisoners home.
They prepare prisoners to overcome the obstacles they expect to
encounter upon release.

cern for continuing problems with
law enforcement, for difficulties in
finding employment, for trouble in
maintaining family relationships
can languish. They can waste their
time however they choose because
they are content to float along in
the sea of misdirection, unconcerned with currents that keep them
immersed in a cycle of failure.

Like anyone who chooses success,
a prisoner must leave the past
behind and focus on the future. He
must drop the weight of bad decisions and negative thinking which
led to his confinement. He must
transform himself into the man he
wants to become. Instead of allowing himself to drown in the sea of
time, the prisoner who chooses
success learns to float and then sail
through the gales and hurricanes of
confinement.

Those who choose success, on the
other hand, have clearly defined
long-term goals, and a series of
shorter-term goals against which
they measure themselves every day.
Those who choose success know
that every day brings opportunities
to make further progress. As time
passes, they develop more confidence in their ability to navigate
their way through seas of adversity.

The successful prisoner pictures
himself with his feet standing on
the firm ground of happiness. And
as Ghandi said, happiness will only
come when everything we think
and everything we say and everything we do are in harmony. Those
who choose success know exactly
where they want to go, and then
implement strategies that will help
them reach their destination. Success does not come by accident,
but requires conscious choice and
commitment.
The goals we set must match the
picture we have of ourselves in
years to come. Those without con-

My experience suggests that prisoners can do well by establishing a
ten-year goal. Rather than saying,
“My goal is to be very successful,”
the successful prisoner knows that
he must clearly define his goals in
order to hold himself accountable.
For example, he might say, “In ten
years I will speak and write both
Spanish and English with fluency
and eloquence. I will weigh 170
pounds and have the endurance
to run 40 miles each week. I will
not eat fried or fatty foods. I will
live as a faithful, loving husband
who nurtures love with my wife
every day. I will have prepared
myself to bring value to prospective employers. I will live as a man
(Continued on Page 10)

NCPLS ACCESS

Page 4

Volume IV, Issue 1, March 2004

HIV DIAGNOSIS AND TESTING:
WHAT YOU SHOULD KNOW
By Will Hawkins, Staff Medical Paralegal

The number of chronic illnesses
and infectious diseases among
inmates continues to increase in our
state’s penitentiaries. On a weekly
basis, our office receives a substantial number of complaints from
inmates with chronic ailments, such
as HIV and Hepatitis C infection.
Inmates afflicted with these viral
infections are often misinformed or
not informed at all about their particular illness. When an individual
suffers from long-term, life-threatening disease, information about
the condition can be one of the
most effective tools for treatment.
With this article, we hope to better
inform our clients about some
common chronic health issues and
possibly explain why health professionals take the measures they do
when providing treatment for a particular disease process. The focus
of this article will be HIV/AIDS.
Inmates receive a lot of general
information regarding the transmission and risk factors involved with
HIV infection. However, it may be
useful to provide information about
the testing and diagnosis of these
diseases.
HIV testing can be especially confusing for an HIV patient. Often,
an individual initially tests negative
for HIV on a blood screen test, and
then a month later, tests positive for
HIV on a second test. The result of
a positive test is stressful enough
for any patient, but even more so
for a patient that recently tested
negative. A patient who previously
tested negative, has since had no

form of sexual contact, and has not
engaged in any other risky behavior that may lead to transmission, is
overwhelmed to learn that a second
test is positive. How can this be
possible?

First, an important thing to remember is this; HIV infection is not the
same thing as AIDS. AIDS is the
clinical presentation of any number
of infections or complications that
result from a breakdown of a person’s immune system as a result of
HIV activity. Just because you are
HIV positive does not mean that
you have AIDS. With the development of newer and stronger antiviral drug combinations, HIV
positive patients can sometimes go
several decades, or even a lifetime,
without ever experiencing the
actual disease process of AIDS.
However, an HIV positive result
means you will always be a carrier of the virus and will have the
ability to transmit it to others, even
though you are not actively experiencing AIDS complications.

The reason a patient might test
negative at one point and positive
in a subsequent test a short time
afterward is simple: timing. A
person who is infected with HIV
does not immediately test positive. Unfortunately, an individual
may be able to transmit the virus to
others during the time it takes for
the current tests to detect the virus.
It may take as long as 12 weeks
after exposure to develop the HIV
virus to a level that can be detected
by the tests commonly available.
So, it is possible for a person to
test negative for three months and
fall into a false sense of security.
The individual then returns to
normal activities, including sexual
contacts, and unknowingly places
other people at risk for infection.
This is why DOC, hospitals, and
the military to name a few, conduct
HIV screenings on a regular and
continual basis.
The reason the virus can’t be
detected immediately has to do
with the method currently used in
testing. As it stands now, testing
for HIV is based on the immunological response by the body of
the infected individual. What does
immunological response mean?
When our body is invaded by
destructive foreign material (such
as bacteria, viruses, protists, etc.)
our body defends itself by activating antibodies against the invading
organism. An antibody then has
the responsibility for “labeling”
an invader for destruction by the
immune system. We can equate
(Continued on Page 5)

NCPLS ACCESS

Volume IV, Issue 1, March 2004

Page 5

HIV DIAGNOSIS AND TESTING
(Continued from Page 4)

it to modern laser guided “smart
bomb” systems. The laser (or
antibody) identifies a target (the
invader) while the bomb (immune
system agent) destroys it.
It is through the detection of
antibodies produced by the patient
through blood screening tests that
HIV infection is diagnosed. With
bacteria and some other microbes,
antibody response is rather fast.
Anyone who has experienced a
whitehead (zit) or cyst has seen
first-hand that rate of the body’s
immunological response to bacteria. It is not uncommon to wake
up in the morning with a pimple
that you did not see the night
before. However, viruses are a
different sort of creature. (In fact,
there remains a friendly controversy among microbiologists as to
whether viruses should be considered living organisms in light of the
criteria we use to define something
as living.)
Like bacteria, viruses enter the
person in several ways. All viruses
undergo a period of replication.
During replication, a single virus
can enter the host, tear itself apart,
mass produce each of its unassembled parts by using the host
cells, and reassemble them within
the host. That process leads to a
systemic infection of the host by
the virus. In some cases, a single
virus can replicate itself to produce
hundreds of thousands of viruses
during reassembly. It is due to the
virus tearing itself apart that it
often evades the initial detection by
antibodies. Not until after reassembly of the numerous “new”

(CONTINUED)

viruses is complete can antibodies
begin to detect viral infection. This
period during which antibodies
cannot detect the virus is known as
a period of incubation.
The ELISA (enzyme-linked immunosorbent assay) test is the most
commonly used test in determining
HIV infection. This test is very
accurate in determining whether
HIV has been present in the host
for 12 weeks or more. ELISA is a
blood test that detects the antibodies produced by the body in
response to HIV infection. But
because it is based on the antibody
response, it is ineffective in detecting HIV in its initial and earliest
stages. That is because the body
has not yet had time to respond to
the viral infection and has not yet
produced the antibodies ELISA
measures.
ELISA has a very low chance of
giving a “false negative” after 12
weeks of infection; conversely, it
has a very high chance of yielding
a negative in people who have
been infected for less than 12
weeks. The Western Blot Test is an
immunofluorescence assay that is
used with the ELISA test to verify
a positive result. This test has a
different method for virus detection and therefore is used mainly

as a confirmation test for a positive
ELISA result, even though ELISA
has been proven to be very accurate
on its own accord after 12 weeks of
infection.
Science has recently developed a
way to detect HIV in as little as
two weeks after initial infection.
This latest test is known as the p24
Antigen Capture Assay. The p24
antigen test does not detect the
antibody response by the host, but
rather seeks to detect a protein
found on the coat of the HIV virus
itself. This is the first direct
method for identifying HIV infection to date. This protein has been
found to be specific to HIV. By
detecting the protein, the virus is
identified. Usually, this test can
identify HIV presence in the blood
from 2 – 6 weeks after infection.
This is a much more useful diagnostic tool than the current ELISA/
Western Blot method, both in terms
of speed and accuracy. Hopefully this method for detection
will become readily available in
the near future to help in the fight
against HIV and AIDS.
Finally, when testing for HIV, there
are interfering factors that need
to be understood – false positive
results and false negative results.
A false positive result can occur
in patients that have any one of
several disorders. These disorders include complications such
as lupus, leukemia, lymphomas,
syphilis, and alcoholism. There are
other conditions that may cause
a false positive, as well. Just be
(Continued on Page 9)

Page 6

NCPLS ACCESS

SPOTLIGHT ON PARALEGALS

With training, experience, and
proper supervision, paralegal professionals enhance the efficiency
and effectiveness of lawyers and
the legal system for the benefit of
clients and the general public. In
recognition of their contribution
to the legal profession, Governor Michael F. Easely designated
March 14-20, 2004 as Paralegal
Week. Paralegals at NCPLS exemplify the qualities deserving of such
recognition.
NCPLS paralegals have taken a
leading role to promote professionalism and to enhance understanding
of the important role of legal assistants in the justice system. For
instance, Sharon Robertson, CLAS,
presently serves as a Regional
Director for the National Association of Legal Assistants (NALA).
Additionally, she has served as
President and Chairman of the
Board of the North Carolina Paralegal Association, and Chair of the
Legal Assistants Division (LAD)
of the North Carolina Bar Association. She continues to serve as a
member of LAD’s governing council, together with another NCPLS
paralegal, Yvonne Lewis, CLA.

Our paralegals provide leadership
in our program, as well. Billy
Sanders, CLAS, headed the project
to restructure our office and was
recently promoted to Office
Administrator. Kady McDonald,
CLA, has provided initiative and
continuity in the development of
our family law work. And, Patricia
Sanders, CLA, is the editor of our
newsletter.
NCPLS employs 14 paralegals who
continually strive to increase their
knowledge, enhance their skills,
and deliver excellent services to
our attorneys and our clients. For
example, eight of our paralegals
have earned certification from
NALA, including two who earned
certification as specialists in criminal law and/or civil trial work.
Certification provides objective
assurance that the recipient has a
command of fundamental legal
principles and a mastery of basic
paralegal skills.
All of these activities demonstrate
the importance and value of the
work performed and the leadership provided by our paralegals.

The National Association of
Legal Assistants (NALA)
is the leading professional
association for legal assistants and paralegals, providing continuing education and
professional development
programs. Incorporated
in 1975, NALA works to
improve the quality and
effectiveness of the delivery of legal services.

Volume IV, Issue 1, March 2004

But, nothing could speak more
eloquently about the work these
individuals do than a measure of
some of the outcomes they have
achieved for our clients. For
example, during the period of
January 1 through December 31,
2003, NCPLS paralegals succeeded
in having at least 38,709 days of
credit applied against our clients’
sentences. (This credit was owed
due to a failure to properly calculate or apply credit for time spent
in a jail, or credit for participation
in correctional programs such as
DART (Drug and Alcohol Rehabilitation Treatment) or IMPACT
(Intensive Motivational Program
of Alternative Correctional Treatment).) Consequently, our clients
enjoyed more than 106 years of
freedom. At an average cost of
$57.92 (DOC 2003 Annual Report,
p. 6), North Carolina taxpayers
saved more than $2 million dollars.
The paralegal professionls employed by NCPLS have increased
the efficiency and effectiveness
of our organization and the legal
system for the benefit of our clients
and the citizens of North Carolina.

Founded in 1980, the
North Carolina Paralegal
Association (NCPA) is a
self-governing organization run by paralegals to
provide its membership
with current national
information. Through
its educational and informational network, NCPA
helps its members better assist the legal community
in fulfilling its duty to clients and the public.

NCPLS ACCESS

Volume IV, Issue 1, March 2004

Page 7

ANOTHER NCPLS PARALEGAL
EARNS CERTIFICATION
Bruce Creecy, an NCPLS Paralegal, recently earned the Certified
Legal Assistant credential from
the National Association of Legal
Assistants (NALA). Bruce, who
studied at Shaw University and the
American Institute for Paralegal
Studies, spent the first decade of
his career working with troubled
youth. His interest in children and
the law intersected in an internship
with the Civil Rights Division of
the North Carolina Office of the
Attorney General in the summer of
1995. Afterward, Bruce accepted
a position with Carolina Legal
Assistance, a mental disability law
project. He provided support for
staff attorneys, conducting legal
research, interviewing clients,
attending depositions, drafting
legal documents, and providing
litigation support.
Beginning in 1995, Carolina
Legal Assistance partnered
with NCPLS in bringing
litigation that challenged the
adequacy of training and education provided by the DOC to
young people who had special
educational needs. Anthony
D., et al., v. Freeman, et al., 5:
95-CV-1053-BR(1) (EDNC
1995). Bruce’s work on that class
action lawsuit helped achieve
comprehensive reforms which
substantially improved the chance
that incarcerated youths in need of
special educational services will be
prepared to lead productive lives
when they return to their communities.

NCPLS hired Bruce as a paralegal
in 1998. With the resolution of the
Anthony D. case, Bruce became
involved in the Safe & Humane
Jail Project. The Project monitors

Bruce Creecy, CLA

conditions in detention facilities
across North Carolina and provides
legal advice and assistance to pretrial detainees. However, Bruce
also had an interest in criminal law,
which drew him to the work that
has become his passion; the law

governing collateral challenges to
convictions. Now, Bruce spends
most of his time reviewing court
documents and records, interviewing clients and witnesses, and
conducting research to determine
the validity of our clients’ criminal
convictions and sentences.
In an effort to further develop his
knowledge and skills, and in order
to deliver comprehensive support
services to NCPLS attorneys and
clients, Bruce resolved to seek
certification. NALA administers
an examination of legal competency that includes legal research,
ethics, interviewing techniques,
and substantive law, among other
subjects. Successful completion of
the two-day examination confers
the credential of “Certified Legal
Assistant (CLA).” Certification provides objective assurance that the recipient has
a command of fundamental
legal principles and a mastery
of basic paralegal skills. More
than two years of preparation
and study paid off for Bruce
this January, when he successfully completed that exam and
earned the CLA credential.
In passing that milestone, he
joins seven other NCPLS paralegals who have earned the CLA
distinction.

NCPLS ACCESS

Page 8

Volume IV, Issue 1, March 2004

U.S. SUPREME COURT REPORT
By Senior Attorney J. Phillip Griffin

Crawford v. Washington
On March 8, the U.S. Supreme
Court announced its decision in
Crawford v. Washington. Crawford
overruled a line of prior decisions that allowed out-of-court
statements to be used to obtain a
conviction when the statements either fell within an
historic exception to the
hearsay rule or had independent indicia of reliability. In Crawford, when
the defendant and his
wife were in the victim’s
residence, the defendant
stabbed the victim. The
defendant testified that
during a heated discussion, the victim reached
into his pocket. The
defendant believed the
victim had a weapon in his pocket
and stabbed him in self-defense.
However, Crawford’s wife had told
police that the victim was holding
out his hands when her husband
stabbed him. The defendant’s wife
did not testify at trial because of
the marital privilege. (The marital
privilege can be used by a spouse
to prevent the other party to a marriage from testifying in court.) The
prosecution used that statement to
defeat the self-defense claim. The
defendant was convicted of assault
and attempted murder.
On appeal, the Washington
Supreme Court held that the wife’s
statement was admissible even
though it had not been given under
oath, and although there had been
no opportunity for the defense to
cross-examine the wife. The court

found the statement was reliable
because it was nearly identical to
the defendant’s version of events
and was given to a “neutral police
officer.”
The U.S. Supreme Court agreed to
review the case. In a 7-2 opinion

written by Justice Scalia, the U.S.
Supreme Court reversed the Washington Supreme Court (and in so
doing, overruled Ohio v. Roberts,
448 US 56). The Court relied on
the Confrontation Clause of the
Sixth Amendment, which provides
in pertinent part, that “In all criminal prosecutions, the accused shall
enjoy the right to ... be confronted
with the witnesses against him... .”
According to the Court, the Confrontation Clause prohibits the state
from using “testimonial” statements against the defendant unless
the defendant has had an opportunity to cross-examine the declarant
(the person who made the statement). The Court did not define
“testimonial,” other than to say it is
a statement that the person making
it could reasonably assume would
be used in a trial. That sort of

statement would include, but would
not be limited to, statements
made to the police, grand jury testimony, and testimony from depositions and prior trials. However, the
Court indicated that there might be
some exceptions, which would be
governed by the rules of evidence,
such as business records
or off-hand comments
to an acquaintance. The
Court left those questions
for another day.
This case is very important to criminal law
because, until now, courts
have routinely allowed the
states to use the very kinds
of statements that Crawford excludes. However, it is unclear whether
Crawford will benefit
prisoners whose convictions are
already final. The reason is the
rule in Teague v. Lane, 489 U.S.
288 (1989). In Teague, the U.S.
Supreme Court held that, absent
specific exceptions, a new rule of
constitutional law should not be
applied on collateral review to convictions that were final when the
decision setting forth the rule was
announced. A conviction is final
under Teague when the state court
appeals are complete and the period
for seeking a writ of certiorari in
the Supreme Court has expired.
Baldwin v. Reese
The federal courts have jurisdiction
to grant a writ of habeas corpus to
prisoners convicted in state courts
if the conviction was obtained
(Continued on Page 9)

NCPLS ACCESS

Volume IV, Issue 1, March 2004

U.S. SUPREME COURT REPORT
(CONTINUED)

(Continued from Page 8)

through a violation of the prisoner’s rights under federal law. 28
USC §2254(a). However, the
federal court cannot grant the writ
unless the prisoner has “exhausted
the remedies available in the courts
of the state.” 28 USC §2254(b). In
order to exhaust state court remedies, the prisoner must present to
the state courts his claim that his
federal rights were violated. The
exhaustion requirement is satisfied when the prisoner presents the
federal claim to the state’s highest
appellate court, either in a direct
appeal or in collateral proceedings. In a recent decision reviewing an Oregon conviction, the U.S.
Supreme Court re-emphasized the
importance of this requirement.
In Baldwin v. Reese, decided
March 2, 2004, the Supreme Court
reversed a ruling of the Court of
Appeals for the Ninth Circuit. The
Ninth Circuit held that a prisoner
had fairly presented his federal
claim of ineffective assistance of
appellate counsel to the Oregon
Supreme Court. Although the
prisoner’s petition to the Oregon
Supreme Court did not cite federal
law in connection with the claim of
ineffective assistance of appellate
counsel, the Ninth Circuit held that
the Oregon Court would have realized the federal basis for the claim
because the basis for the claim
was clear in lower court opinions.
The Supreme Court ruled that the
problem with the Ninth Circuit’s
analysis was that it would force an
appellate court to read the lower
court’s opinion to understand the

grounds for a petition. Because of
the workload of appellate courts,
the Supreme Court found it unreasonable to require appellate judges
to read lower court opinions in
all the cases they must review.
Instead, the Supreme Court ruled
that, in order to exhaust a federal
claim in state court, the prisoner
must show the federal nature of
the claim with a specific citation to
federal law, or by simply labeling
the claim as “federal.”
Although the rules for exhaustion
seem straight forward and easy to
follow, sometimes a habeas petitioner discovers a federal claim that
did not seem important earlier in
the case. However, after the state
courts have refused relief on state
law claims (for which there is no
federal review), the federal claim
may become the only viable basis
for relief. For example, sometimes
hearsay testimony offered by the
prosecution can be the basis for an
appeal alleging a violation of the
state rules of evidence. The same
facts may support a federal claim
under the Confrontation Clause of
the Constitution. But to bring a
federal petition alleging a Confrontation Clause violation, the facts
must have been argued to the state
courts as a federal question under
the U.S. Constitution. Therefore, it
is important at each stage of litigation that federal claims are set forth
explicitly so that when a federal
petition is brought, the claim will
not be dismissed for failure to
exhaust state remedies.

Page 9

HIV DIAGNOSIS
AND TESTING
(CONTINUED)

(Continued from Page 5)

aware that some pre-existing conditions may lead to an inaccurate
positive result. Because many of
these disorders cause an antibody
response like HIV does, ELISA
and Western Blot sometimes yield
invalid results. Regarding false
negative results, remember what
we have previously discussed.
During the incubation stage of HIV
infection (usually up to 12 weeks)
a negative result does not necessarily mean you are not infected. It
is important that additional regular blood screens be performed to
ensure that you are not infected.
For those who have been diagnosed with HIV, do not lose hope.
Modern medicine is proving to be
very effective in providing treatment that continues a quality of life
for an infected individual. Follow
your treatment regimens to the
letter and protect others from contracting your virus.

Page 10

NCPLS ACCESS

MICHAEL SANTOS’ ARTICLES

Volume IV, Issue 1, March 2004

(CONTINUED)

GOALS LEAD TO ACTION

PURSUE LEARNING

(Continued from Page 3)

of character and integrity.” There
are so many goals we can set for
ourselves, but no matter how many
we set, we must hold ourselves
accountable. Prisoners who choose
to succeed pursue excellence.
With ten-year goals in place, those
who choose success can work their
way backwards. When they know
where they want to be in ten years,
then they know where they should
be in five years, three years, and in
one year. If they know the progress
they must make by year-end, and
they know how much they must
accomplish in six months, in three
months, and in one month. Now
they have a series of short-term
goals against which they can measure their daily progress. Those
goals, then, lead to action. And that
is a recipe for success.
Those who want to see how goals
help me succeed may visit the
BIOGRAPHY section of
MichaelSantos.net, where I list my
short and long term goals. The
next article will describe the importance of learning.

No one wants to live in confinement. Even so, more than two million people will eat their meals in
American prisons today, and sleep
under the watchful eyes of guards
tonight. Our country has a growing subculture of felons, and it is
in the interest of every one of them
to use the time wisely, to make
the most of every day. A constant
pursuit of learning will help each
prisoner overcome the obstacles
that follow imprisonment and
reduce the likelihood of a return
trip to daily census counts and strip
searches.
The prisoner experience confines
our bodies. Guards assign our
living quarters, dictate when we
eat, sleep, or even use the bathroom. They tell us what to wear
and they choose the people with
whom we share space. Prisons are
total institutions, restricting our
physical movements and our ability to interact with others. Despite
the bars and fences, the rules and
regulations, prisons cannot seize
control of our minds. Inside we
are free and we can build upon
that freedom to prepare ourselves
for happiness upon release. The
pursuit of knowledge can become
our solace. It is like a magic carpet
that lifts us above the filth and ugliness of prison, delivering us to the
freedom and purity of the mind.

In some ways, living in prison
gives us opportunities that many
people outside consider a luxury.
We have the blessing of time. The
key to serving time successfully is
in becoming the master of our minutes, making choices to use them
in ways to help us succeed upon
release. We may lack the freedom
of community, but we can turn our
solitude to advantage by living like
monks in a monastery, coming to
know ourselves, our spirit, and the
world in which we live.
My body has been confined continuously in one prison or another
since 1987, but when I focus my
mind on learning, I could be anywhere. When I am learning I am
far removed from these nicotinestained walls, from the smell of
dried urine, from the cacophony
that clamors with the competing sounds of blaring televisions,
institutional loudspeakers, and
the hundreds of voices constantly
screaming around me. When I am
learning I don’t notice the intrusive guards, the prisoners around
me, the utter lack of privacy. All
I know is the freedom that comes
with an expanding mind. As the
poet Longfellow wrote, the love of
learning brings us to sequestered
nooks, and all the sweet serenity of
books.
When I am alone in my cell,
missing my beloved wife and my
family, I have found that books
can comfort me. During those
moments of despair I read novels,
(Continued on Page 11)

NCPLS ACCESS

Volume IV, Issue 1, March 2004

PURSUE LEARNING
(Continued from Page 10)

(CONTINUED)

stories that introduce me to new
characters and places. Earlier this
year I read the immortal classic
Don Quijote, perhaps the first novel
ever written and certainly the most
beautiful novel I have ever read.
It made me laugh and it made me
cry, it taught me courage and it
taught me love. Through that treasure piece of literature by Miguel
Cervantes I was able to travel
through Spain, to learn legends of
France and England. Those 1,000
plus pages of adventure gave me
a secret key that took me far away
from this caged community in
which I live.
I have read philosophy to help me
learn more about the meaning of
life. I read biographies to help me
learn from the lives of others. I
especially like reading books by

other prisoners and former prisoners, as they know this twisted
world in which I live. Reading of
their experiences helps me through
the struggle. This lengthy sentence
I must serve, like all of life, is a
journey. The pursuit of knowledge,
this learning and more learning,
keeps me moving through it.
Prisoners should pursue the freedom that comes through learning.
They should learn about themselves and they should learn about
the world in which they live. The
more they learn, the more resources
they will have to draw upon as they
battle the challenges that come
with a criminal history. The more
we learn, the better we’re able to
communicate, to persuade others
that despite our past, our futures
have much to offer.

STATE V. JONES UPDATE
NCPLS receives numerous
inquires about the N.C. Court of
Appeals decisions in State v. Jones,
No. COA 02-1404 (Nov. 4, 2003),
and State v. Sneed, No. COA 021746 (N.C. App. Nov. 18, 2003),
which hold that simple possession
of cocaine is a misdemeanor under
North Carolina law. As might be
expected, these cases have received
a considerable amount of attention. They been covered in newspapers throughout the state leaving
many inmates wondering if these
decisions will mean that they can
obtain some form of relief from
their sentences.

In Jones, the defendant pled guilty
to possession with intent to sell
and deliver cocaine, and to being
an habitual felon. Jones entered
his plea conditionally, with the
understanding that he could
appeal three issues, including the
court’s denial of a motion to
suppress evidence. The Court of
Appeals determined that, under
the statutes and rules governing a
criminal defendant’s right to
appeal, it only had jurisdiction to
consider the appeal of the motion
to suppress. Since Jones had
bargained for appellate consideration of three motions and the

Page 11

STATE V. JONES UPDATE
(CONTINUED)

court could only address one, he
could not have received the benefit of his plea bargain. However,
before sending the case back to the
lower court, the Court of Appeals
also addressed the issue of jurisdiction concerning the habitual felon
indictment.
Jones argued that the habitual felon
indictment was invalid because
one of the three convictions used
to classify him as an habitual felon
was a conviction for possession of
cocaine. According to the law as
it existed at the time of the crime,
Jones argued that possession of
cocaine was a misdemeanor and
could not be used as a predicate
offense for an habitual felon indictment. Howevr, the state noted that
N.C. Gen. Stat. 90-95(d)(2) provided that possession of cocaine
“shall be punishable as a Class I
felony,” and argued that this meant
that possession of cocaine was a
felony. After reviewing general
principles of statutory construction, including the principle that
criminal statutes are to be “strictly
construed against the State,” the
Court of Appeals held that possession of cocaine was a misdemeanor
and Jones’ indictment as an habitual felon was defective.
The N.C. Supreme Court has
issued orders staying the Court
of Appeals’ decision in Jones
and Sneed. The Court heard oral
arguments concerning both cases
in February 2004, but has not
rendered a decision. NCPLS will
continue to monitor developments
in this area.

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.
1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: tsanders@ncpls.org

Visit our website at:
http://www.ncpls.org