§15A‑1419. When motion for appropriate relief denied.
(a) The following aregrounds for the denial of a motion for appropriate relief, including motionsfiled in capital cases:
(1) Upon a previousmotion made pursuant to this Article, the defendant was in a position toadequately raise the ground or issue underlying the present motion but did notdo so. This subdivision does not apply when the previous motion was made within10 days after entry of judgment or the previous motion was made during the pendencyof the direct appeal.
(2) The ground or issueunderlying the motion was previously determined on the merits upon an appealfrom the judgment or upon a previous motion or proceeding in the courts of thisState or a federal court, unless since the time of such previous determinationthere has been a retroactively effective change in the law controlling suchissue.
(3) Upon a previousappeal the defendant was in a position to adequately raise the ground or issueunderlying the present motion but did not do so.
(4) The defendant failedto file a timely motion for appropriate relief as required by G.S. 15A‑1415(a).
(b) The court shalldeny the motion under any of the circumstances specified in this section,unless the defendant can demonstrate:
(1) Good cause forexcusing the grounds for denial listed in subsection (a) of this section andcan demonstrate actual prejudice resulting from the defendant's claim; or
(2) That failure toconsider the defendant's claim will result in a fundamental miscarriage ofjustice.
(c) For the purposes ofsubsection (b) of this section, good cause may only be shown if the defendantestablishes by a preponderance of the evidence that his failure to raise theclaim or file a timely motion was:
(1) The result of Stateaction in violation of the United States Constitution or the North CarolinaConstitution including ineffective assistance of trial or appellate counsel;
(2) The result of therecognition of a new federal or State right which is retroactively applicable;or
(3) Based on a factualpredicate that could not have been discovered through the exercise ofreasonable diligence in time to present the claim on a previous State orfederal postconviction review.
A trial attorney's ignorance of aclaim, inadvertence, or tactical decision to withhold a claim may notconstitute good cause, nor may a claim of ineffective assistance of priorpostconviction counsel constitute good cause.
(d) For the purposes ofsubsection (b) of this section, actual prejudice may only be shown if thedefendant establishes by a preponderance of the evidence that an error duringthe trial or sentencing worked to the defendant's actual and substantialdisadvantage, raising a reasonable probability, viewing the record as a whole,that a different result would have occurred but for the error.
(e) For the purposes ofsubsection (b) of this section, a fundamental miscarriage of justice onlyresults if:
(1) The defendantestablishes that more likely than not, but for the error, no reasonable factfinder would have found the defendant guilty of the underlying offense; or
(2) The defendantestablishes by clear and convincing evidence that, but for the error, noreasonable fact finder would have found the defendant eligible for the deathpenalty.
A defendant raising a claim ofnewly discovered evidence of factual innocence or ineligibility for the deathpenalty, otherwise barred by the provisions of subsection (a) of this sectionor G.S. 15A‑1415(c), may only show a fundamental miscarriage of justiceby proving by clear and convincing evidence that, in light of the new evidence,if credible, no reasonable juror would have found the defendant guilty beyond areasonable doubt or eligible for the death penalty. (1977, c. 711, s. 1; 1995(Reg. Sess., 1996), c. 719, s. 2.)
§15A‑1419. When motion for appropriate relief denied.
(a) The following aregrounds for the denial of a motion for appropriate relief, including motionsfiled in capital cases:
(1) Upon a previousmotion made pursuant to this Article, the defendant was in a position toadequately raise the ground or issue underlying the present motion but did notdo so. This subdivision does not apply when the previous motion was made within10 days after entry of judgment or the previous motion was made during the pendencyof the direct appeal.
(2) The ground or issueunderlying the motion was previously determined on the merits upon an appealfrom the judgment or upon a previous motion or proceeding in the courts of thisState or a federal court, unless since the time of such previous determinationthere has been a retroactively effective change in the law controlling suchissue.
(3) Upon a previousappeal the defendant was in a position to adequately raise the ground or issueunderlying the present motion but did not do so.
(4) The defendant failedto file a timely motion for appropriate relief as required by G.S. 15A‑1415(a).
(b) The court shalldeny the motion under any of the circumstances specified in this section,unless the defendant can demonstrate:
(1) Good cause forexcusing the grounds for denial listed in subsection (a) of this section andcan demonstrate actual prejudice resulting from the defendant's claim; or
(2) That failure toconsider the defendant's claim will result in a fundamental miscarriage ofjustice.
(c) For the purposes ofsubsection (b) of this section, good cause may only be shown if the defendantestablishes by a preponderance of the evidence that his failure to raise theclaim or file a timely motion was:
(1) The result of Stateaction in violation of the United States Constitution or the North CarolinaConstitution including ineffective assistance of trial or appellate counsel;
(2) The result of therecognition of a new federal or State right which is retroactively applicable;or
(3) Based on a factualpredicate that could not have been discovered through the exercise ofreasonable diligence in time to present the claim on a previous State orfederal postconviction review.
A trial attorney's ignorance of aclaim, inadvertence, or tactical decision to withhold a claim may notconstitute good cause, nor may a claim of ineffective assistance of priorpostconviction counsel constitute good cause.
(d) For the purposes ofsubsection (b) of this section, actual prejudice may only be shown if thedefendant establishes by a preponderance of the evidence that an error duringthe trial or sentencing worked to the defendant's actual and substantialdisadvantage, raising a reasonable probability, viewing the record as a whole,that a different result would have occurred but for the error.
(e) For the purposes ofsubsection (b) of this section, a fundamental miscarriage of justice onlyresults if:
(1) The defendantestablishes that more likely than not, but for the error, no reasonable factfinder would have found the defendant guilty of the underlying offense; or
(2) The defendantestablishes by clear and convincing evidence that, but for the error, noreasonable fact finder would have found the defendant eligible for the deathpenalty.
A defendant raising a claim ofnewly discovered evidence of factual innocence or ineligibility for the deathpenalty, otherwise barred by the provisions of subsection (a) of this sectionor G.S. 15A‑1415(c), may only show a fundamental miscarriage of justiceby proving by clear and convincing evidence that, in light of the new evidence,if credible, no reasonable juror would have found the defendant guilty beyond areasonable doubt or eligible for the death penalty. (1977, c. 711, s. 1; 1995(Reg. Sess., 1996), c. 719, s. 2.)
§15A‑1419. When motion for appropriate relief denied.
(a) The following aregrounds for the denial of a motion for appropriate relief, including motionsfiled in capital cases:
(1) Upon a previousmotion made pursuant to this Article, the defendant was in a position toadequately raise the ground or issue underlying the present motion but did notdo so. This subdivision does not apply when the previous motion was made within10 days after entry of judgment or the previous motion was made during the pendencyof the direct appeal.
(2) The ground or issueunderlying the motion was previously determined on the merits upon an appealfrom the judgment or upon a previous motion or proceeding in the courts of thisState or a federal court, unless since the time of such previous determinationthere has been a retroactively effective change in the law controlling suchissue.
(3) Upon a previousappeal the defendant was in a position to adequately raise the ground or issueunderlying the present motion but did not do so.
(4) The defendant failedto file a timely motion for appropriate relief as required by G.S. 15A‑1415(a).
(b) The court shalldeny the motion under any of the circumstances specified in this section,unless the defendant can demonstrate:
(1) Good cause forexcusing the grounds for denial listed in subsection (a) of this section andcan demonstrate actual prejudice resulting from the defendant's claim; or
(2) That failure toconsider the defendant's claim will result in a fundamental miscarriage ofjustice.
(c) For the purposes ofsubsection (b) of this section, good cause may only be shown if the defendantestablishes by a preponderance of the evidence that his failure to raise theclaim or file a timely motion was:
(1) The result of Stateaction in violation of the United States Constitution or the North CarolinaConstitution including ineffective assistance of trial or appellate counsel;
(2) The result of therecognition of a new federal or State right which is retroactively applicable;or
(3) Based on a factualpredicate that could not have been discovered through the exercise ofreasonable diligence in time to present the claim on a previous State orfederal postconviction review.
A trial attorney's ignorance of aclaim, inadvertence, or tactical decision to withhold a claim may notconstitute good cause, nor may a claim of ineffective assistance of priorpostconviction counsel constitute good cause.
(d) For the purposes ofsubsection (b) of this section, actual prejudice may only be shown if thedefendant establishes by a preponderance of the evidence that an error duringthe trial or sentencing worked to the defendant's actual and substantialdisadvantage, raising a reasonable probability, viewing the record as a whole,that a different result would have occurred but for the error.
(e) For the purposes ofsubsection (b) of this section, a fundamental miscarriage of justice onlyresults if:
(1) The defendantestablishes that more likely than not, but for the error, no reasonable factfinder would have found the defendant guilty of the underlying offense; or
(2) The defendantestablishes by clear and convincing evidence that, but for the error, noreasonable fact finder would have found the defendant eligible for the deathpenalty.
A defendant raising a claim ofnewly discovered evidence of factual innocence or ineligibility for the deathpenalty, otherwise barred by the provisions of subsection (a) of this sectionor G.S. 15A‑1415(c), may only show a fundamental miscarriage of justiceby proving by clear and convincing evidence that, in light of the new evidence,if credible, no reasonable juror would have found the defendant guilty beyond areasonable doubt or eligible for the death penalty. (1977, c. 711, s. 1; 1995(Reg. Sess., 1996), c. 719, s. 2.)
