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North Carolina “Felon in Possession of Firearm” Conviction Overturned, Others May be Eligible for Release

Last year in United States v. Simmons, the U.S. Court of Appeals for the Fourth Circuit ruled that certain state felony convictions in North Carolina would not trigger federal “felon-in-possession” gun laws. The ruling raised many questions about what would become of those hundreds or potentially thousands of people who had already been convicted and imprisoned under the federal law, but who were no longer guilty of the crime under the court’s new interpretation. Last week, Terrell McCullum’s federal gun conviction was thrown out by a federal judge in the Eastern District of North Carolina because of the change in the law. Although it appears many more may potentially be freed, it is far from clear how or when that will happen.

Federal law makes it a felony for a felon to be in possession of a gun. But because the same acts may not be felonies under the laws of every state, the federal government established that for the felon-in-possession law, a felon was anyone convicted of a crime with a potential sentence of more than one year incarceration. But under North Carolina law, many “felony” offenses can only carry sentences of greater than a year if the defendant has certain previous convictions. When federal prosecutors charged defendants under the felon-in-possession law, however, they simply treated all defendants with North Carolina “felony” convictions as felons under federal law, whether or not they were ever actually subject to more than one year incarceration. In many cases, it turns out, defendants were charged and convicted as felons in possession of firearms when possession of the weapon was not actually illegal. And for quite a long time, no one noticed.

After the Fourth Circuit ruled last year in Simmons that only those who actually faced sentences of more than one year in state courts could be considered “felons” under the federal law, the problem arose of what to do about all the bad convictions. How many were there? Could the convictions be reversed? While there were initially questions about whether the courts could actually reverse the improper convictions, the federal courts in North Carolina immediately dropped all the improper charges that were pending at that time. And now, Terrell McCullum’s petition has been granted and his conviction has been reversed, paving the way for more reversals.

But problems remain. Inmates improperly serving sentences as felons in possession don’t automatically find out about the change in the law. Federal prosecutors have not taken steps to identify the affected inmates or to ensure that they are provided with lawyers to petition for reversal of their sentences. The courts have insisted that instead federal public defenders should identify the men and women wrongfully imprisoned, even though the government has far more complete records of inmates’ criminal histories and ready access to that information.

USA Today has reported that approximately half of the felony convictions in North Carolina in the past ten years now would not qualify as felonies under federal law. The American Civil Liberties Union has estimated that over 3,000 inmates currently incarcerated in federal prison may have been wrongfully convicted or are entitled to shorter sentences. While the courts and the Department of Justice sort out the mess, thousands of innocent inmates will continue to sit in prison, many not even knowing their rights have been violated.