IN THE SUPREME COURT OF NORTH CAROLINA
No. 101PA25
Filed 14 August 2026
STATE OF NORTH CAROLINA
v.
DUSTIN J. MARTINEZ
On writ of certiorari pursuant to N.C.G.S. § 7A-32(b) to review a unanimous
order of the Court of Appeals, No. P24-254 (N.C. Ct. App. Mar. 31, 2025) (order),
allowing defendant’s petition for writ of certiorari to review judgments entered on 18
February 2021 by Judge Craig Croom in Superior Court, Wilson County. Heard in
the Supreme Court 16 April 2026.
Jeff Jackson, Attorney General, by Caden William Hayes, Assistant Attorney
General, and Benjamin Szany, Special Deputy Attorney General, for the State.
North Carolina Prisoner Legal Services, by Kristen L. Todd, for defendant.
The Law Office of Christopher J. Heaney, PLLC, by Christopher J. Heaney, for
Advocates for Justice, and Ivy Johnson, for American Civil Liberties Union of
North Carolina Legal Foundation, amici curiae.
BERGER, Justice.
North Carolina’s appellate courts must apply a two-part test when
determining whether a writ of certiorari should issue. Cryan v. Nat’l Council of
YMCAs, 384 N.C. 569 (2023). This straightforward test “examines (1) the likelihood
that the case has merit or that error was committed below and (2) whether there are
extraordinary circumstances that justify issuing the writ.” Id. at 570. Here,
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Opinion of the Court
defendant filed a petition for writ of certiorari with the Court of Appeals alleging that
his counsel’s deficient performance caused him to lose his right to direct appeal to
that court. A panel below determined that Cryan was met and issued a writ of
certiorari in its discretion. We affirm.
I. Factual and Procedural Background
In October 2019, defendant was indicted for felony larceny and two counts of
burglary. Attorney Christopher Lusby was appointed to represent defendant, and in
February 2021, defendant was convicted of first-degree burglary and sentenced in the
aggravated range to 96 to 128 months in prison.
Following sentencing, defendant failed to timely file a notice of appeal but
thereafter filed a petition for writ of certiorari at the Court of Appeals. According to
Mr. Lusby’s sworn affidavit attached thereto, while defendant was being escorted by
the bailiff from the courtroom due to his “overt reaction to the conviction,” defendant
said aloud, “[T]his isn’t right, I’m going to take it up, I’m going to take it up.” Mr.
Lusby “understood [defendant] to mean he wanted to enter a direct appeal.”
Nevertheless, Mr. Lusby did not enter an oral notice of appeal at that time because
he “believed [he] was going to have a chance to talk with [defendant] prior to the
bailiffs taking [defendant] out of the back hallway of the courtroom into the jailed
section below the courthouse.” But defendant “was directly escorted into the jailed
section” and Mr. Lusby did not speak with him. Mr. Lusby admits he “did not discuss
[defendant’s] desire to appeal with [defendant] directly, or explain appeals to
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[defendant] directly.”
On 15 April 2024, North Carolina Prisoner Legal Services filed a petition for
writ of certiorari on defendant’s behalf in the Court of Appeals seeking a belated
appeal because defendant’s right to direct appeal was lost by Mr. Lusby’s failure to
take timely action to perfect the appeal. The Court of Appeals entered an order
dismissing the petition “without prejudice to petitioner’s right to refile a petition for
writ of certiorari with [the Court of Appeals] that includes any issues of potential
merit petitioner believes would be raised on appeal.”
Defendant refiled his petition for writ of certiorari in November 2024, and in
addition to arguing that Mr. Lusby rendered ineffective assistance of counsel,
defendant also argued that he was prejudiced by counsel’s failure to perfect the
appeal. According to defendant, he was not required to brief issues of potential merit
because Garza v. Idaho, 586 U.S. 232 (2019), requires that prejudice be presumed in
these circumstances. The Court of Appeals allowed defendant’s petition and
remanded the matter to superior court to hold a hearing to determine whether
defendant was entitled to appointment of counsel and a copy of the trial transcript at
the State’s expense.
The State thereafter filed a petition for writ of certiorari with this Court to
review the order of the Court of Appeals allowing defendant’s petition. The State
argued the panel below erred by (1) allowing defendant’s petition after the initial
panel dismissed without prejudice, in violation of North Carolina National Bank v.
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Virginia Carolina Builders, 307 N.C. 563, 566–67 (1983), and (2) failing to properly
apply the standard for granting certiorari articulated in Cryan, 384 N.C. 569. We
granted certiorari, and based upon precedent from this Court, we affirm, reinforcing
that the test articulated in Cryan is applicable to all petitions for writ of certiorari,
including those advanced by parties in criminal cases.
II. Discussion
“We review the Court of Appeals’ decision to allow a petition for writ of
certiorari . . . for an abuse of discretion.” State v. Ricks, 378 N.C. 737, 740 (2021). An
abuse of discretion occurs when the court below made “[a]n error of law,” Slattery v.
Appy City, LLC, 385 N.C. 726, 729 (2024), or when the decision “was manifestly
unsupported by reason, or so arbitrary that it could not have been the result of a
reasoned decision,” Cryan, 384 N.C. at 573 (cleaned up).
The State makes two arguments on appeal. First, the State contends the
second panel at the Court of Appeals impermissibly overruled the first in violation of
Virginia Carolina Builders. Second, the State asserts that even if the second panel
did not overrule the first, the second panel abused its discretion by failing to apply
Cryan. We address each argument in turn.
A. Virginia Carolina Builders
It is well-established “that once a panel of the Court of Appeals has decided a
question in a given case that decision becomes the law of the case and governs other
panels which may thereafter consider the case.” Virginia Carolina Builders, 307 N.C.
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at 567. “[S]ince the power of one panel of the Court of Appeals is equal to and
coordinate with that of another, a succeeding panel of that court has no power to
review the decision of another panel on the same question in the same case.” Id. This
determination is often straightforward, but these types of inquiries can be nuanced.
To determine whether one panel has overruled another, “the Court will examine the
effect of the subsequent decision, rather than whether the term ‘overrule’ was
actually employed.” In re Civil Penalty, 324 N.C. 373, 384 (1989).
In Virginia Carolina Builders, the plaintiff sought to appeal a nonappealable
interlocutory order—namely, the trial court’s order setting aside default judgment.
Virgina Carolina Builders, 307 N.C. at 565. Although plaintiff did not have an appeal
of right because the order was interlocutory, plaintiff filed a notice of appeal at the
Court of Appeals. Id. Plaintiff also petitioned the court for a writ of certiorari, which
was denied. Id. Following the denial, plaintiff filed a record on appeal pursuant to
its prior notice of appeal, and the defendant moved to dismiss the appeal because the
order was nonappealable. Id.
A different panel at the Court of Appeals ignored the procedural defect to
reach what it characterized as a “serious error regarding a matter of great
importance” contained in the trial court’s order. Id. To do so, the panel exercised its
“discretion” to treat the notice of appeal like a petition for writ of certiorari and
allowed review. Id. This Court reversed, reasoning that
[t]he first panel determined in its discretion not to review
the case. Later, the second panel determined to exercise
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its discretion in favor of review. Thus, on the question of
reviewability, the second panel of the Court of Appeals in
effect overruled the first.
Although we have never considered the question,
well-established analogies in our law lead us to conclude
that the second panel of the Court of Appeals was without
authority to overrule the first on the same question in the
same case. Once an appellate court has ruled on a
question, that decision becomes the law of the case and
governs the question not only on remand at trial, but on a
subsequent appeal of the same case.
Id. at 566. In such circumstances, the petitioning party should instead file a motion
for rehearing or seek review by a higher court.
Here, the State argues that the second panel of the Court of Appeals violated
Virginia Carolina Builders by allowing defendant’s petition “[w]hen presented with
the same arguments and evidence” that the initial panel “rejected.” But contrary to
the State’s assertion and unlike in Virgina Carolina Builders, the initial panel here
did not “reject” defendant’s petition. Instead, it dismissed the petition without
prejudice, giving defendant explicit license to refile. Further, defendant’s second
petition contained additional argument and law which the second panel was
permitted to consider in its discretion. We therefore reject the State’s argument that
the second panel of the Court of Appeals here overruled the prior panel.
B. Application of Cryan
This Court has repeatedly affirmed that “[t]o issue a writ of certiorari, we
require petitioners to ‘show merit or that error was probably committed below’ and
‘extraordinary circumstances.’ ” State v. Mincey, 929 S.E.2d 582, 588 (N.C. 2026)
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(quoting Cryan, 384 N.C. at 572). Despite this clear directive, our Court of Appeals
has failed to consistently apply this standard in criminal cases. For example, as the
State aptly notes in its primary brief to this Court, “three different panels at the
Court of Appeals applied three different standards for certiorari in published opinions
on the same day.”1 While decisions to allow or deny certiorari have no precedential
value, see Jenkins v. Aetna Cas. & Sur. Co., 324 N.C. 394, 400 (1989), the standard
reviewing courts employ must remain consistent.
“Certiorari is a discretionary writ, to be issued only for good or sufficient cause
shown, and it is not one to which the moving party is entitled as a matter of right.”
Womble v. Moncure Mill & Gin Co., 194 N.C. 577, 579 (1927). The writ of certiorari
is one of the “prerogative writs” that the Court of Appeals may issue “in aid of its own
jurisdiction.” N.C.G.S. § 7A-32(c) (2025). However, the authorizing statute does not
provide any criteria for the Court of Appeals’ use of this prerogative writ. See id.
(“The practice and procedure shall be as provided by statute or rule of the Supreme
Court, or, in the absence of statute or rule, according to the practice and procedure of
the common law.”). Thus, the appropriate legal test is a question of law governed by
1 State v. Hannah, 299 N.C. App. 266, 271–72 (2025) (explaining that Cryan “articulated a two-factor test which provides a mandatory framework for how and when to properly exercise our discretion to issue writs of certiorari”); State v. Gardner, 299 N.C. App. 251, 254 (2025) (“In short, Cryan simply reaffirms our discretion to allow petitions for writ of certiorari in appropriate cases—the scope of which is guided by our precedent and our understanding of the equitable concerns in each case.”); State v. Owens, 299 N.C. App. 290, 296 (2025) (allowing certiorari when a defendant “demonstrated a good faith effort to appeal his case”).
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case law from this Court. See State v. Ledbetter, 371 N.C. 192, 196–97 (2018).
We have established a two-part test.
First, a writ of certiorari should issue only if the petitioner
can show merit or that error was probably committed
below. This step weighs the likelihood that there was some
error of law in the case.
Second, a writ of certiorari should issue only if there
are extraordinary circumstances to justify it. We require
extraordinary circumstances because a writ of certiorari is
not intended as a substitute for a notice of appeal. If courts
issued writs of certiorari solely on the showing of some
error below, it would render meaningless the rules
governing the time and manner of noticing appeals.
There is no fixed list of ‘extraordinary
circumstances’ that warrant certiorari review, but this
factor generally requires a showing of substantial harm,
considerable waste of judicial resources, or wide-reaching
issues of justice and liberty at stake.
Id. at 572–73 (cleaned up).
While certiorari is a “discretionary writ,” see Womble, 194 N.C. at 579, we
emphasize that Cryan’s two-part test must be satisfied. The failure to apply Cryan
is “[a]n error of law [that] constitutes an abuse of discretion.” Slattery, 385 N.C. at
729. But when Cryan is satisfied, a reviewing court may grant or deny certiorari in
its discretion.
With this framework in mind, we turn to the crux of the present appeal;
specifically, whether defendant’s petition satisfied Cryan such that the panel below
was within its discretion to grant certiorari. First, we note that defendant’s petition
established merit or probable error below. Mr. Lusby’s affidavit, which was filed
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along with defendant’s petition, acknowledged that he understood defendant wanted
to enter notice of appeal but he nonetheless failed to speak with defendant or
otherwise take the steps necessary to appeal defendant’s case. When an attorney
fails to timely enter notice of appeal for a client who wishes to do so, as defendant’s
counsel admitted under oath, his or her performance is necessarily deficient. Garza,
586 U.S. at 243–44 (“[W]hen counsel’s constitutionally deficient performance deprives
a defendant of an appeal that he otherwise would have taken, the defendant has made
out a successful ineffective assistance of counsel claim[.]” (cleaned up)). The panel
below was within its discretion to find merit or probable error on this record.
The State argues that Mr. Lusby’s affidavit is insufficient because it is not part
of the “objective ‘cold record’ that Fair and its progeny contemplate.” But establishing
ineffective assistance of counsel and establishing probable error are distinct
inquiries. For the latter, a trial counsel’s sworn affidavit may certainly aid the “merit
or probable error” inquiry, even if such evidence, standing alone, is insufficient to
conclusively establish ineffective assistance of counsel on appeal. In such cases, the
reviewing court can and should dismiss the claim without prejudice to defendant’s
right to file an MAR so that an evidentiary hearing may be held. See State v. Fair,
354 N.C. 131, 167 (2001) (“[S]hould the reviewing court determine that IAC claims
have been prematurely asserted on direct appeal, it shall dismiss those claims
without prejudice to the defendant’s right to reassert them during a subsequent MAR
proceeding.”).
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Similarly, the panel below did not abuse its discretion by determining that
defendant also showed extraordinary circumstances. Defendant alleged the loss of
his right to direct appeal due to the constitutionally deficient performance of his
counsel. As with the probable error discussed above, issuance of the writ based upon
an allegation of extraordinary circumstances does not necessarily equate to success
on appeal.
III. Conclusion
“Ultimately, the decision to issue a writ of certiorari rests in the sound
discretion of the presiding court.” Cryan, 384 N.C. at 573. Based upon the foregoing,
we cannot say the decision to allow certiorari under these circumstances was
manifestly unsupported by reason or so arbitrary that it could not have been the
result of a reasoned decision and, we affirm.
AFFIRMED.
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