State v. Martinez: Cryan’s Two-Part Certiorari Test Is Mandatory in Criminal Cases; Dismissal “Without Prejudice” Permits Refiling

I. Introduction

In State v. Martinez (N.C. Aug. 14, 2026), the Supreme Court of North Carolina reviewed—by the State’s petition for writ of certiorari—an order of the Court of Appeals that had allowed defendant Dustin J. Martinez’s petition for certiorari to obtain a belated direct appeal. The defendant alleged that appointed trial counsel’s deficient performance caused him to lose his right to timely appeal his burglary conviction and aggravated-range sentence.

The case presented two procedural issues with systemic consequences for North Carolina appellate practice:

  • Whether a second panel of the Court of Appeals “overruled” a first panel in the same case (prohibited by the “law of the case” doctrine) when the first panel dismissed a certiorari petition without prejudice and invited refiling.
  • Whether the Court of Appeals must apply the Cryan two-part test when deciding whether to issue a writ of certiorari in criminal cases—particularly where a defendant claims counsel’s failure to perfect an appeal.

II. Summary of the Opinion

The Supreme Court affirmed the Court of Appeals’ order allowing defendant’s petition for writ of certiorari. The Court held:

  • The second Court of Appeals panel did not violate North Carolina National Bank v. Virginia Carolina Builders because the first panel had dismissed defendant’s petition without prejudice and expressly permitted refiling; the later petition also included additional legal argument.
  • The Court reaffirmed that Cryan v. Nat’l Council of YMCAs supplies a mandatory two-part framework for certiorari decisions in all cases, including criminal matters: (1) merit/probable error below, and (2) extraordinary circumstances.
  • On this record—especially counsel’s sworn affidavit acknowledging he understood defendant wanted to appeal yet took no steps to perfect it—the Court held the Court of Appeals acted within its discretion in finding both prongs satisfied.

III. Analysis

A. Precedents Cited

1. The controlling certiorari framework: Cryan v. Nat’l Council of YMCAs

The Court treated Cryan v. Nat’l Council of YMCAs, 384 N.C. 569 (2023), as the central authority. Cryan “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.” In Martinez, the Supreme Court did more than restate this test; it emphasized that the test must be applied consistently by the Court of Appeals in criminal cases, not treated as optional guidance.

2. Certiorari review standard: State v. Ricks, Slattery v. Appy City, LLC

The Court applied abuse-of-discretion review under State v. Ricks, 378 N.C. 737, 740 (2021). It then linked “abuse of discretion” to legal error via Slattery v. Appy City, LLC, 385 N.C. 726, 729 (2024): failure to apply the correct legal test (here, Cryan) constitutes “[a]n error of law” and therefore an abuse of discretion. This pairing matters because it converts what might otherwise be portrayed as purely discretionary certiorari practice into a discipline constrained by mandatory legal criteria.

3. Consistency across cases: State v. Mincey

The Court cited State v. Mincey, 929 S.E.2d 582, 588 (N.C. 2026), reinforcing that the Supreme Court has “repeatedly affirmed” that the two-part Cryan standard governs issuance of certiorari. Martinez thus positions itself as a corrective opinion aimed at uniformity in the Court of Appeals.

4. The “law of the case” / intra-panel nonreviewability: North Carolina National Bank v. Virginia Carolina Builders; In re Civil Penalty

The State’s first argument invoked North Carolina National Bank v. Virginia Carolina Builders, 307 N.C. 563 (1983), which holds that once a Court of Appeals panel decides a question, that decision becomes the law of the case and later panels may not review or overrule it on the same question in the same case. The Court also cited In re Civil Penalty, 324 N.C. 373, 384 (1989), for the principle that whether one panel “overruled” another depends on the effect of the later decision, not magic words.

The Court distinguished Virginia Carolina Builders on its facts: in that case, the first panel denied certiorari, and a second panel effectively granted review anyway by treating a notice of appeal as a certiorari petition—an end-run around the first panel’s discretionary denial. In Martinez, by contrast, the first panel dismissed the petition without prejudice and explicitly invited refiling with additional content; thus, the second panel did not negate an earlier “no review” decision.

5. Nonprecedential nature of certiorari grants/denials: Jenkins v. Aetna Cas. & Sur. Co.

The Court acknowledged that decisions to allow or deny certiorari carry “no precedential value” under Jenkins v. Aetna Cas. & Sur. Co., 324 N.C. 394, 400 (1989). But it drew a critical distinction: while outcomes are nonprecedential, the legal standard employed must be consistent. This is the opinion’s institutional thrust—policing not the result in a particular certiorari petition, but the method.

6. The historic nature of certiorari: Womble v. Moncure Mill & Gin Co. and statutory authority

Citing Womble v. Moncure Mill & Gin Co., 194 N.C. 577, 579 (1927), the Court reiterated that certiorari is “discretionary” and “not one to which the moving party is entitled as a matter of right.” It also grounded the Court of Appeals’ power in N.C.G.S. § 7A-32(c) (2025), describing certiorari as a “prerogative writ” issued “in aid of its own jurisdiction,” while observing the statute does not itself supply the criteria—leaving that job to Supreme Court case law.

The Court cited State v. Ledbetter, 371 N.C. 192, 196-97 (2018), to emphasize that the applicable legal test is a question of law governed by Supreme Court precedent.

7. Ineffective assistance for lost appeals: Garza v. Idaho and the “cold record” concern; State v. Fair

The defendant relied on Garza v. Idaho, 586 U.S. 232 (2019), for the proposition that prejudice is presumed where counsel’s constitutionally deficient performance deprives a defendant of an appeal he otherwise would have taken. The Supreme Court agreed that counsel’s failure to perfect an appeal upon a client’s expressed desire to appeal constitutes deficient performance, quoting Garza at 243-44.

The State argued the affidavit was not part of the “objective ‘cold record’ that Fair and its progeny contemplate.” The Court responded by separating two inquiries:

  • Whether the petition shows merit/probable error for Cryan purposes (a threshold, screening inquiry).
  • Whether ineffective assistance is conclusively established on direct appeal.

The Court cited State v. Fair, 354 N.C. 131, 167 (2001), to explain that when IAC claims are “prematurely asserted on direct appeal,” reviewing courts should dismiss them without prejudice to being raised later in a Motion for Appropriate Relief (MAR), where an evidentiary hearing may be held. In Martinez, counsel’s affidavit could properly support the Cryan “probable error” assessment, even if it would not always suffice to finally resolve IAC.

8. Court of Appeals variability highlighted: State v. Hannah, State v. Gardner, State v. Owens

The opinion called out inconsistent certiorari standards in the Court of Appeals, citing three same-day published opinions:

  • State v. Hannah, 299 N.C. App. 266, 271-72 (2025) (treating Cryan as a “mandatory framework”).
  • State v. Gardner, 299 N.C. App. 251, 254 (2025) (reading Cryan more as reaffirmation of broad discretion guided by equity).
  • State v. Owens, 299 N.C. App. 290, 296 (2025) (allowing certiorari where a defendant showed “good faith effort” to appeal).

While the Supreme Court reiterated that certiorari outcomes are nonprecedential (Jenkins), it used these cases to justify its corrective clarification: the Court of Appeals must apply Cryan’s two-part test rather than a shifting set of equitable formulations.

B. Legal Reasoning

1. No intra-panel “overruling” when the first dismissal is “without prejudice”

The Court treated the first issue as a straightforward application of Virginia Carolina Builders’ boundary: later panels may not undo a prior panel’s decision on the same question. But the key move was characterizing the first panel’s disposition accurately. A dismissal “without prejudice” that explicitly allows refiling is not a decision that review should never occur; it is a decision that the petition as filed is procedurally inadequate while preserving the petitioner’s ability to return with an augmented showing.

The Court also credited that the second petition included additional “argument and law” (notably defendant’s reliance on Garza), further reducing any claim that the second panel revisited “the same question” on “the same arguments and evidence.”

2. Cryan must be applied; discretion exists only after the test is satisfied

The Court’s most important doctrinal clarification is the relationship between “discretion” and the Cryan factors. Certiorari remains discretionary (Womble), but the Court stressed that:

  • A reviewing court must apply Cryan; failure to do so is legal error and thus an abuse of discretion (Slattery).
  • Only after both prongs are satisfied may the court decide—within discretion—whether to grant or deny.

3. Application of Cryan to Martinez’s petition

The Court then explained why the Court of Appeals could reasonably find both prongs met:

  • Merit / probable error: Counsel’s affidavit admitted he understood defendant wanted to appeal yet failed to discuss appeal rights with defendant or enter notice. Under Garza, depriving a defendant of an appeal he otherwise would have taken due to deficient performance supports an IAC claim; at minimum, it shows a substantial likelihood of error sufficient for certiorari screening.
  • Extraordinary circumstances: The alleged harm was the loss of the right to direct appeal caused by constitutionally deficient performance. The Court treated that kind of deprivation—implicating “justice and liberty”—as capable of satisfying Cryan’s extraordinary-circumstances prong.

Importantly, the Court emphasized that granting certiorari based on these showings does not predetermine defendant’s ultimate success. It simply permits the belated appellate process to proceed in a structured way, with later stages (including possible MAR litigation under Fair) available if needed.

C. Impact

  • Uniform statewide certiorari methodology in criminal cases: Martinez functions as an administrative correction: the Court of Appeals must employ Cryan’s two-prong test rather than panel-specific formulations (e.g., “good faith effort” alone).
  • Meaningful discipline on discretion: By labeling failure to apply Cryan as an error of law (and thus an abuse of discretion), the opinion increases the likelihood of Supreme Court intervention when the Court of Appeals uses an incorrect standard—even though the ultimate grant/denial remains nonprecedential.
  • Expanded practical utility of affidavits at the certiorari stage: The Court signaled that sworn affidavits from trial counsel may legitimately support the “probable error” assessment, even if they do not conclusively resolve IAC on direct review. This may influence how belated-appeal petitions are built and evaluated.
  • Clarification of “law of the case” boundaries for certiorari practice: Dismissals “without prejudice” (especially those inviting refiling) will not be treated as binding denials that later panels cannot revisit, reducing the State’s ability to invoke Virginia Carolina Builders in that procedural posture.

IV. Complex Concepts Simplified

  • Writ of certiorari: A discretionary appellate order allowing review when ordinary appeal procedures were not properly followed (e.g., missing a deadline). It is not an automatic right.
  • Cryan two-part test: Courts must ask (1) does the petition show likely merit/probable error, and (2) are there extraordinary circumstances that justify bypassing normal appeal rules.
  • “Extraordinary circumstances”: Not a fixed list; generally means the harm from refusing review is substantial (e.g., loss of important rights), or the issue affects justice broadly, or denial would waste major judicial resources.
  • Law of the case / intra-panel nonreviewability: Later appellate panels generally cannot revisit the same question decided earlier in the same case. But a dismissal “without prejudice” does not finally decide the question and may permit refiling.
  • Abuse of discretion vs. error of law: Even discretionary decisions can be reversed if the court used the wrong legal standard. Here, not applying Cryan would be legal error.
  • Ineffective assistance (IAC) and “cold record”: Some claims can’t be fully resolved on the trial transcript alone. Under State v. Fair, if IAC is not ripe on direct appeal, it can be pursued later via an MAR with fact-finding.
  • Motion for Appropriate Relief (MAR): A post-conviction procedure in North Carolina that allows evidentiary hearings to develop facts not in the trial record (commonly used for IAC claims).

V. Conclusion

State v. Martinez reinforces two major principles. First, Cryan v. Nat’l Council of YMCAs supplies a mandatory two-part test for deciding certiorari petitions in all contexts, including criminal cases; discretion operates only after both prongs are satisfied, and failure to apply the test is an error of law. Second, a prior Court of Appeals dismissal without prejudice—especially one inviting refiling—does not bar a later panel from granting certiorari under North Carolina National Bank v. Virginia Carolina Builders.

Practically, the decision promotes uniform certiorari doctrine, legitimizes the use of affidavits at the threshold “probable error” stage, and strengthens appellate access where a defendant plausibly lost a direct appeal due to counsel’s admitted failure to perfect it.