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Varela v. New6/15/1993
Andres Varela appealed to the district court from his metropolitan court conviction on a charge of driving while intoxicated. When the appeal had not been resolved within the six-month time limit set by SCRA 1986, 7-703(J) (Repl.Pamp.1990), Varela petitioned this Court for an extension and was denied. The district court dismissed and Varela appealed to the Court of Appeals, which affirmed -- refusing to consider an ineffective assistance of counsel claim because it believed that this Court already had decided that claim in reviewing the petition for extension. Under writ of certiorari, we reverse the Court of Appeals and the district court, and we remand to the district court.
Facts. On August 1, 1990 Varela filed his notice of appeal to the district court along with an affidavit of indigency. The district court entered an order granting free process, and in accordance with his right to counsel, see , the public defender entered an appearance on Varela's behalf. Appeals from the metropolitan court to the district court are de novo. SCRA 7-703(I). Four times the case was set for trial and four times the trial was postponed. On September 13 the trial was continued when Varela's court-appointed counsel failed to subpoena a necessary witness. A November 15 setting was vacated on motion of the court because it was presiding over another trial. On December 6 the district attorney requested a continuance; and on December 27 the trial could not be held because a defense witness, who had been subpoenaed, failed to appear. A fifth trial date was set for February 7, 1991. February 2 marked the passage of six months since filing of the notice of appeal, and at the February 7 hearing the court told Varela that it was going to dismiss because the court was without jurisdiction to hear the case. Varela responded with a claim of ineffective assistance of counsel based on the public defender's failure to take action to get an extension of the six-month time limit. The court advised Varela that it would allow him to file a motion for a hearing on his ineffective assistance claim if he filed it by February 15. Varela filed the motion and a hearing was set for March 20.
The lone exception to the six-month limit is a one-time extension of up to ninety days that may be requested by petition to a Justice of the New Mexico Supreme Court.
SCRA 7-703(K). A petition requesting such an extension must be filed within the six-month time period and may be granted upon a showing of good cause. Id. On February 18, Varela filed a petition for an extension with this Court. However, since Varela's petition for an extension was not filed within the six-month limitation period, it was denied.
By the time of the March hearing, the district court was faced not only with the expired time period for the appeal, but also with this Court's denial of an extension. The district court refused to consider the ineffective assistance claim on the grounds that it lacked jurisdiction. The district court dismissed and remanded to the metropolitan court pursuant to Rule 7-703(J). Varela appealed the dismissal to the Court of Appeals, which affirmed in a memorandum opinion.
Habeas corpus is not the appropriate remedy for this case. The attorney general argues that a state habeas corpus action is Varela's appropriate remedy. The United States Supreme Court has said:
If . . . a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights. For instance the Kentucky Supreme Court itself in other contexts ha
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