PD-0611-24 09/25/2024
“Is it enough under Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006) for an applicant to show that a ‘breakdown in the system’ prevented him from timely filing a notice of appeal in order to be afforded his right of appeal under the Due Process Clause?”
Griffin was convicted and placed on community supervision. His conviction was affirmed and he filed an application for writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. art. 11.072. The application was denied on October 20 and the order was uploaded to the online case files but never sent to defense counsel. Counsel found out about it when he called the clerk’s office December 14. It is unclear when Griffin found out about the denial, but he signed an affidavit on January 11 for inclusion in a second 11.072 application. That was filed by the same attorney on March 16—93 days after receiving actual notice of the denial of the first application. It reraised an ineffective assistance of counsel (IAC) claim related to trial counsel’s performance and requested an out-of-time appeal on the denial of the first writ. It did not allege IAC related to the potential loss of the right to appeal. The trial court denied relief.
The court of appeals affirmed. It noted the two ways an out-of-time appeal is justified: when IAC deprives an applicant of meaningful review, and when the failure to timely file was not caused by him or his attorney but resulted from “a breakdown in the system,” citing Riley. In Riley, the court of criminal appeals granted an out-of-time petition for discretionary review where counsel did not receive the court of appeals opinion within 30 days but informed Riley as soon as it was discovered. Due to the “unusual circumstances” of that case, the court granted relief without a finding of IAC. Ex parte Riley, 193 S.W.3d at 902. In this case, IAC was foreclosed because Griffin did not raise it. And the majority held that Riley was inapplicable because there was no explanation for the 93-day delay from when counsel had actual knowledge of the denial of the first application. See id. at 902 (“There are now procedures available to attorneys to reduce the chances that this type of breakdown will occur. . . . Thanks to technology, attorneys no longer have the excuse that they didn’t know when their client’s case was decided.”). Griffin argued that “it does not matter whether trial counsel slumbered on his client’s rights, was merely lazy,” or had a good excuse; all that mattered was the clerk’s mistake. The majority rejected this, as the consequence would be the ability to use any systemic breakdown that lasted through the expiration of a deadline to excuse any amount of delay for any or no reason. The dissent argued that, in the absence of a statutory deadline for requesting an out-of-time appeal, the absence of explanation for not requesting it sooner is insufficient to deny relief for a 93-day delay.
Griffin argues that, while appeals from judgments have deadlines the derogation of which deserve inquiry, applications for habeas relief have no deadlines. He claims this fundamental distinction went ignored. He also complains about the lack of guidance on what (unexplained) delay is too long. Griffin also argues that his case compares favorably to Riley, as it took years for Riley to file an application requesting an out-of-time PDR. However, some of this argument relies on counsel’s failure even though IAC is not properly before the court.
