may please the court my name is gabriel snyder and our present the petitioner marc anthony miller at this time i respectfully request of five minutes be reserved were reserved for a bottle of good government with reasonable claim processing procedures requires this havey his petition be declared timely i have to start by mentioning that the briefs while encapsulating everything we need to settle this case don't quite do a sufficient job of keeping it's the same and so today in this first argument i want to make sure that we keep our arguments to sink to the point and not spend time addressing the state's arguments until later twenty eight u s c two two four four made in your brief that's precise argument yes that precise are there was never in other words there's never a state law i finally state law decision for at the purposes that's the argument that i'm going to find in your brief i'm sorry review the question there is never a final state law determination for and purposes triggering at the is that is that your argument there was a there was a there was a final determination from the court of appeals if you mean that they dismissed here to address why that argument does not defeat us on these on being time with today so i'm now going to get get to that question of why mr miller the petitioners appeal actually lacked jurisdiction to even enter an order because when they looked to the record they found no motion to dismiss and no order granting a motion to dismiss thus the defendant's appeal in that case was still pending even four years later just as in brown miller's appeal was still pending until an order granting dismissal was entered the superior court actions in two thousand and eleven give effect to these correct procedural rules the superior court in two thousand and eleven did as it should the state superior court failed to take action on these motions superior court actions prove that miller's appeal was still pending in two thousand and eleven when the court put it miller deal back on track these are what we argue are good claim processing or processing rules and the rules of north carolina because miller appeal was still pending director view continued until that order that appeal was ordered dismissed meaning as of february twenty ninth two thousand and twelve court of appeals of february ninth of two thousand and twelve dismissed milledge appeal granting the state's motion to dismiss ordering quote appeal dismissed appeal dismissed means as of that date further illustrating that point the state's motion the underlying motion to dismiss on the rule twenty five the not at request of dismissal as of a certain date in the past only as of that day thus director view continued from two thousand and on to every twenty first two thousand and twelve and we filed within the one year's dash limitations on murder fourteenth two thousand and thirteen so i now want to address the the state's arguments the state has argued multiple dates as to when mr miller last appeal at some time in the past first they argue that it was that director you conclude on the twelfth of june of two thousand and one meaning that mr miller lost his appeal upon timely notice of appeal and because he did nothing his appeal was lost as of that day that he entered notice of appeal and then one year from then to this stash limitations concluded next they argue that the appeal ended on july seventeenth of two thousand in effect because mr miller was entitled to an attorney in north carolina provides that when mr miller was entitled to an attorney it was the clerk's job to order the transcript at that point and not mr miller so he cannot be seen t fall because it was the state's actions that kept him from pursuing his appeal he cannot be viewed to have default in sometime in the past only when the state finally put his appeal back on track and dismisses appeal would have director of you concluded until you continue for  so in responding not being around the bush would respond to states argue the petitioner losses right to an appeal in two thousand we say two things he didn't because petitioner remain in director view and to the state's assertion in any event is irrelevant put an appeal back on track and said when the state put the appeal back on track they said that that restarted the deadlines the director view and thus he was timely to be for the united states court of protection just as that happened then and in amenas it but at the m a r proceeding he told the court that he had talked to mr lively and lively kept reassuring him that he was going to get his appeal as far as what mr miller should have done other than that it seems to me that when an attorney that you've used in the past use him for a past trial he used them for this one tells you you're going to get your appeal is that he was he was told in the context of the process of appealing you're going to get you that this what you're saying his lawyer told him yes and this is all again this is all coming from the context of someone who doesn't know the law well yes and so on you know the right hala genic for this you hold theory that is when you say listen i know it's been a long time but you're going to get your appeal i mean also and this kind of brings me to our next point we argue that the the state should we send it back we're finding that by some court about whether in fact that happen judge that was coming i was kind of coming to that point that was my first answer was kind of a bonus in saying that he did ask but my real answer and the one that i think the the constitution require entries and certain things like that but i'm saying that it's a constitutional requirement that mr miller was entitled to counsel and getting the wainright of its view lucy and he should have been given counsel back in two thousand to pursue his appeal i think what's easy for us to know the law to talk about is as judge gregory was saying you're going to get your appeal made sense to him we would know better he thought that he had done everything even filed  pro se notice of appeal and did everything that he needed to do gives appeal on the state just didn't follow through and give it to them and it was ultimately their fault the other argument that i want to dress from the state and the district judge in the magistrate they talk about how mr miller law says appeal these words interchangeably a matter of law and operation of wall back in two thousand we argue that  for especially for violation of non truths diction rules such as the rules of mr miller's allegedly violated here following the preparation the transcript selling the record on appeal and following the record the court states in that case and dogwood we have therefore emphasized the noncompliance with the rules does not it so facto mandate dismissal of an appeal thus any assertion by the state that miller lost his appeal sometime in two thousand as a matter of law or option of all or as to a certainty is just not law this last argument kind of loops into what we were talking about earlier with the state of latches and otherwise blaming the petitioner for losing his appeal  assuming that petitioner did the fall and state proceedings miller did not have counsel to pursue appeal when the court failed in two thousand home of the thompson says that the fall is a tribute to the state for any procedural to fall they say quote where petitioner defaults a claim as a result of the denial of the right to effect of a sense of county council the state which is responsible for the denial as a constitutional matter must bear the cost of any resulting to fall and the harm to state interests that federal havey this review entails thus any prejudice to the state in the brief they argue that they don't they won't be able to talk to mr lively anymore and that the transcript is gone which we argue  mr snyder with regard to mr miller's testimony i've understood your argument to suggest that he kept contacting mr lively and this is true i believe he said don't worry don't worry you're going to get an appeal i don't going to get an appeal that's all he kept saying if mr lively ever do anything else you know did you write to him did you did mr lively respond to you he said he wrote to him and he said no we didn't so there wasn't this continual assurance over a period of time you're referring to is there i'm just worried about whether you're accurately saving a record here i'm out of time may i answer your question  all for ten years is what i'm saying mr miller's he said i wrote to mr lively never heard back from him there's no indication here in his testimony that i can find him perhaps you can help me but there's no unreasonable the prejudice to the respondents is the loss of the corp order stenographic notes we can't produce the trial transcript and unfortunately the trial attorneys now dead so the respondent t timely filed federal paid his petition there can be no equitable tolling in this case at all period because there's no due diligence there's one hundred eighty degrees opposite of diligence in this case he sat on his rights for ten years and there's no extraordinary circumstance external to the deep fancy that has prevented him from making his timely filing council gets lucky i mean  woods versus shelton and mcguinness versus mcginnis those are published north carolina court of appeals decisions that the appeal that if you fail to perfect your appeal it works a loss of the appeal and the case is no longer properly before the court of appeals there's a no decision that the petitioner has cited in his brief or in his supplemental authorities that overrule those decisions or even purport to overrule those decisions that state versus brown case he points out is on a post conviction motion for appropriate relief that had it in a did not have a ten year delay or twelve year delay between the they notice  the peel and then taking any further a action macalso estis now those things that you are saying that indeed his appeal like failure to perfect is there any entry on the court records that they dismissed when that when those forty five days exhausted that's not the way the north carolina appellate procedure works judge there does not work this way but you just do nothing when a person makes a motion for a new full counsel that is that the way you do in north carolina well motion for appointment of counsel at the trial court and a poet appointed him counsel the defendant had an equal obligation to make some kind of motion himself to get the motion before the court for an adjudication it's not a it's all the state's fault situation here you know it's the defendant's obligation to he had retained counsel in trial and he told his lawyer in the record shows he didn't want his trial counsel to handle his appeal he has an obligation to go out and get an attorney or to file an affidavit of end and see to get is appellate counsel he just can't drop the ball and sit on it of the court i thought this shirt i hear the case everybody i mean everybody wanted this appeal to go through i mean religion is yeah doesn't seem to be anything on the state side it would indicate there for nine years it did nothing well the defendant oh well we got motions here i guess we'll just let them sit there until somebody just waits nine years or do nothing no we take our own motions that's why we have clerk offices and what i would say your honor with all due respect is that what you've just said is a ground for relief that he could and should have filed in a timely file federal hate b s corpus petition you cannot  underlying grounds for relief as a reason for tolling it's no reason to everything if everything you say is true yes assuming everything you say is true that's something he could have should have raised in a correct are you aware any better ok finding direct review concluded in the state court for purposes by operation of law as opposed to an actual decision and you know that's what they're at the district court relied on here i believe the district court relied on the state law cases it's up to the north carolina court of appeals to determine first answer my question are you aware of any such case no now ok flash vs pergi easy the marilyn case is points out the distinction and why judge schroeder got this case exactly right the marilyn case the petitioner pled guilty he had no right to appeal under maryland appellate procedure he didn't file it he sat on his rights for ten years did and then the maryland court of appeals dismissed the appeal now in that case the court opened reopened and restarted the appeal that didn't happen here than the judge the trial judge appointed appellate counsel and made appellate entries but that could not overrule mcginest versus mcginnis and woods versus shelton which hold that the appeal was lost by operation of law for failing to perfect the appeal those are the cases in those cases there was a notice very appeal filed in those cases yes yes it's so you're saying as a matter of state law you know if airline on these exact facts well those were several cases i don't see how you could say now i don't exactly they were exact that as far as the relevant facts were they were exact it was a civil case it was a civil case big difference and that north carolina rules of appellate procedure apply equally to both civil and criminal cases and less the rules themselves otherwise and and that and that's why we're in a federal court to some degree to look at whether or not you have a fair and appropriate means of handling cases and and in doing justice there in these twenty to fifty four type cases where they're not seen me you have a system and after nine years if you do nothing then automatically it's it goes away right is that awhile and went ha ha long would have to wait if you waited a year that it would be gone when it at he had filed i have to be nine here but a year would have been gone if he had had had filed his motion or filed a cert taish court of appeals and any kind of reasonable period of time he would have gotten his appeal the transcript would have been transcribed and we wouldn't be here but he didn't he what you know ten years is just too long he has ten year  case and one day in prison he means well me in prison he had nine hundred ninety eight cases which he got appeals from he filed not one but two state post conviction motions for appropriate relief during this same period of time under any circumstances particularly a man who knows had a litigator pro se post conviction motions but on the other hand it's illegal for the state to do what it did so right his appeal should have been process i mean i can't back why it was illegal the facts are the facts that's why we're here you know you got the state's arguable is state's error here and then you've got the defendant's ten year delay here and this ten year delay has severely prejudiced the state in the federal hate b s case say what he tries to bring up is he calmed flights the grounds for relief it's basic hey this law that you can have a valid claim for relief and if you wait too long you lose it and that's what happened here you know he had arguable what my point being that he had arguably valid claims for relief that were way that were out of time and barred by the one year period limitations just like this petitioner has arguable claims that he could have raised in a timely filed federal hate this petition and he did not and he knew how to file pro se motions because the record shows he filed not one but two in the  thirty one of two thousand and one and would have been timely then his transcript would have been ordered and the case would have been heard and he would have gotten his appeal and the t say that this man's appeal is been pending for ten years is to stretch a legal fiction to the point of absurdity this man forgot for whatever reason chose not to pursue his appeal he led his appeal drop for a decade and then decided oh well now i'm going to restart it try to reopen it and that is me he needs one yes judge this one yes just want to clarify that from the last and i also and given due respect to my to my colleague i think that the attitude portrayed today is h has kind of been the state's attitude towards mr miller's rights all along when i just graduated from law school last year and when i first started working with my graduation thank you thank you judge and when i first started working on my dad on this case i was in my first year of law school and so i'm doing all this research not knowing what i'm doing and i come to find out you know obviously all these rules of law and i could not believe that mr miller has been sitting in jail all this time without ever having been given his appeal and i i think it's it think it's do time that mr miller gets the constitutional rights that he was entitled to back in two thousand and