You asked whether the number holder is entitled to back payment of disability insurance
benefits (DIB) for the period in which he was incarcerated, where the number holder
was convicted and incarcerated starting in 2007 and released from prison in 2015 after
a court granted the number holder a new trial as habeas relief and the state subsequently
filed a formal declaration that it would not further prosecute the charges on which
the number holder’s incarceration was based.
Because the number holder was confined based on a conviction from June 2007 to May
2015 and the number holder’s conviction was not overturned, the Social Security Administration
(SSA) properly determined NH’s DIB should have been suspended from 2007 to 2015.
According to the information provided, NH started receiving DIB in April 2001. On
June, 2007, the Superior Court of H~ County, Georgia, after a jury trial, found J~,
the number holder (NH), guilty of felony murder and arson. That same day, the court
sentenced NH to a term of life imprisonment. SSA records reveal that NH was incarcerated
beginning in June 2007. NH appealed, after which the Georgia Supreme Court affirmed
the conviction. See Chapman v. State, 724 S.E. 2d 391 (Ga. 2012).
NH subsequently petitioned for habeas relief, asserting actual innocence, ineffective
assistance of trial and appellate counsel, prosecutorial misconduct, and due process
violations relating to the Confrontation Clause, the prosecution’s suppression of
evidence favorable to the defendant, and the prosecution’s failure to inform the jury
of relevant information relating to a witness’ testimony. Upon habeas review, the
court found that NH obtained ineffective assistance of appellate counsel and was subjected
to due process violations relating to the Confrontation Clause, the prosecution’s
suppression of evidence, and the prosecution’s failure to inform the jury of relevant
information relating to a witness’ testimony. As a result, the court granted NH’s
petition and determined he was entitled to a new trial. Both NH and the State appealed,
after which in an order dated April 20, 2015, the Georgia Supreme Court affirmed the
habeas relief the lower court awarded. Neither the habeas court nor the Georgia Supreme
Court addressed NH’s claim of actual innocence. NH was released from prison in May
On June XX, 2016, the State of Georgia filed a “nolle prosequi” motion, or a motion
for a formal entry into the court record declaring the State will not further prosecute
the case against NH. See Atkins v. State, 663 S.E. 2d 286, 288 (Ga. Ct. App. 2008) (defining “nolle prosequi” as “a formal
entry upon the record by the prosecuting officer in a criminal action by which he
declares that he will no further prosecute the case, either as to some of the counts,
or some of the defendants, or altogether”) (internal quotation marks omitted). The
State determined new facts concerning the circumstances under which two witnesses
in the original trial provided testimony and the discovery of statements contradicting
the testimony of one witness negatively impacted the State’s ability to try the case
against NH. The State, however, also stated in its motion that it would continue to
seek new evidence that may result in future prosecution. The H~ County Superior Court
granted the State’s motion the same day.
SSA intended to suspend NH’s DIB during the period of his incarceration, from June
2007 to May 2015, but inadvertently continued to pay DIB to NH from June 2007 through
January 2011. Following the court order granting NH a new trial and NH’s release from
prison, SSA reinstated NH’s DIB payments in June 2015 at a reduced rate to recoup
the overpayment of benefits paid to NH between 2007 and 2011. NH has asked SSA to
reinstate his DIB back to June 2007.
Under section 202(x) of the Act, SSA cannot pay benefits to any individual for any
month (or part of a month) for which he is confined in jail, prison, or other penal
institution or correctional facility for conviction of a criminal offense. See Act § 202(x)(1)(A)(i); 20 C.F.R. § 404.468(a) (2016); Program Operations Manual System (POMS) GN 02607.001A.1. Confinement is defined as residing in a correctional or mental health institution.
See Act § 202(x)(1)(A)(i)-(iii); 20 C.F.R. § 404.468(c); POMS GN 02607.001B.1. Confinement ends with pardon, parole, or end of sentence and an official release.
See 20 C.F.R. § 404.468(c);POMS GN 02607.160A.3.
A conviction is a court verdict that finds a defendant guilty upon conclusion of a
trial or upon accepting a guilty plea or other plea that is equivalent to a guilty
plea the result of a criminal trial that ends in a judgment or sentence that the individual
is guilty as charged. See POMS GN 02607.001B.2; POMS GN 02607.160A.2.a. A beneficiary is not considered “convicted” if a court sets aside his or her guilty
plea or overturns his or her prior conviction. See POMS GN 02607.001B.2. The primary rationale underlying the prisoner suspension-of-payment provision
is that a convicted criminal defendant is maintained at public expense and has no
need for a continuing source of social security income. See POMS PR 06805.012A (PR 00-219, Nov. 16, 1999). If a court overturns a conviction and no additional court
proceedings are required, SSA will reinstate a beneficiary’s suspended benefits and
repay any benefits withheld. See POMS GN 02607.200A.3.a.
Under Georgia law, when a court grants a petition for habeas relief for a defect in
the trial, the effect is not to exonerate the defendant of the charges against him
or entitle him to be released. See State v. Hernandez-Cuevas, 415 S.E.2d 713, 715 (Ga. Ct. App. 1992); Brown v. State, 156 S.E.2d 28, 28 (Ga. 1967). The effect of habeas relief for such purposes is instead
to remand the defendant to the custody of the trial court for a legal trial. See Hernandez-Cuevas, 415 S.E.2d at 715; Brown, 156 S.E.2d at 28.
As previously noted, “nolle prosequi” is a formal entry by the State declaring that
it will not further prosecute a case. See Atkins, 663 S.E.2d at 288. Georgia courts have found that such an entry does not clear the
charges to which it applies, and does not adjudicate innocence or guilt, unless the
defendant has been placed in jeopardy. See Richards v. State, 476 S.E.2d 598, 601 (Ga. Ct. App. 1996). Although the State cannot try a defendant
on charges for which it has already obtained an order of nolle prosequi, the State
may renew prosecution if a court vacates the order of nolle prosequi or re-indicts
the defendant for the same offense. See Buice v. State, 528 S.E.2d 788, 789-91 (Ga. 2000); Bell v. State, 672 S.E.2d 675, 676 (Ga. Ct. App. 2009).
The evidence provided shows that NH was confined in prison for the conviction of a
criminal offense until May 2015. See Act § 202(x)(1)(A)(i); 20 C.F.R. § 404.468(c); POMS GN 02607.001B.1; POMS GN 02607.160A.3. Neither the habeas relief NH obtained that resulted in his release nor the nolle
prosequi order overturned NH’s conviction. While confined, the prison met NH’s basic
living needs, and NH was maintained at public expense until May 2015. Therefore, section
202(x) of the Act required SSA to suspend NH’s DIB until he was released from confinement
and there is no basis to reinstate any benefits to NH during this period of confinement.
Based on the evidence provided, NH was confined in prison based on a conviction of
a criminal offense from June 2007 to May 2015. Because the conviction was not overturned,
SSA properly determined NH’s DIB should have been suspended from June 2007 to May
Mary Ann Sloan
Regional Chief Counsel
By: Natalie Liem
Assistant Regional Counsel