IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2013

DANIEL EDUARDO GONZALEZ v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

Nos. 2011-A-709, 2011-B-1110 Steve R. Dozier, Judge

No. M2013-00298-CCA-R3-PC - Filed February 24, 2014

The petitioner, Daniel Eduardo Gonzalez, appeals the dismissal of his petition for

post-conviction relief as time-barred. He argues that his trial counsel provided ineffective

assistance for failing to advise him of the deportation consequences of his guilty plea as

required by Padilla v. Kentucky, 559 U.S. 356 (2010), and that due process considerations

should operate to toll the statute of limitations. Following our review, we affirm the

summary dismissal of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the Court, in which JERRY L. SMITH and

CAMILLE R. MCMULLEN, JJ., joined.

Melissa Anderson, Nashville, Tennessee, for the appellant, Daniel Eduardo Gonzalez.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Victor S. Johnson, III, District Attorney General; and Rachel Sobrero, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

On March 7, 2011, the petitioner and a co-defendant were indicted for aggravated

burglary in case number 2011-A-709. On April 19, 2011, the petitioner and same codefendant were indicted for aggravated burglary and theft of property in case number 2011-

B-1110. Pursuant to a plea agreement, on July 1, 2011, the petitioner pled guilty to two

counts of aggravated burglary in exchange for concurrent terms of three years on each count

and dismissal of the theft of property charge. The petitioner was sentenced and judgments
entered on September 6, 2011.

On December 4, 2012, the petitioner filed a petition for post-conviction relief. In an

affidavit attached to his petition, the petitioner stated that he is a foreign national of Mexico,

currently detained by the United States Immigration and Customs Enforcement (“ICE”). He

claimed that his trial attorney did not advise him that his “guilty plea could cause [him] to

be deported from the United States” or “mention[] any immigration consequences that may

result from [his] plea[.]” He stated that he did not discover that his attorney was ineffective

until he met with his immigration attorney after being detained on September 13, 2012. He

said that he had lived in the United States since he was four years old and that his removal

would separate him from his friends, family, and community.

On January 4, 2013, the post-conviction court found that the petitioner did not allege

a valid basis for tolling the one-year statute of limitations and that the petition was timebarred. The court noted that the petitioner’s allegation of “lack of knowledge about the then

existing immigration laws[] [was] not ‘later arising’ because they existed at the time of the

entry of the plea.”

ANALYSIS

The petitioner argues that the post-conviction court should have tolled the statute of

limitations because counsel failed to advise him that he could be deported as a result of his

guilty plea. He asserts that he “did not discover [c]ounsel’s ineffectiveness until after the

statutory period ha[d] expired.”

Post-conviction relief is warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. Tenn.

Code Ann. § 40-30-103. The burden in a post-conviction proceeding is on the petitioner to

prove the factual allegations in support of his or her grounds for relief by clear and

convincing evidence. Id. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.

2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we

conclude that the evidence in the record preponderates against those findings. Fields v. State,

40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law, however,

are subject to de novo review with no presumption of correctness. Id. at 457.

Under the Post-Conviction Procedure Act, a claim for post-conviction relief must be

filed “within one (1) year of the date of the final action of the highest state appellate court

to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which

the judgment became final, or consideration of the petition shall be barred.” Tenn. Code

Ann. § 40-30-102(a). Unless one of the enumerated exceptions applies, a court does not have

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jurisdiction to consider an untimely petition. See id. § 40-30-102(b).

Tennessee Code Annotated section 40-30-102(b) states:

(b) No court shall have jurisdiction to consider a petition filed after the

expiration of the limitations period unless:

(1) The claim in the petition is based upon a final ruling of an appellate

court establishing a constitutional right that was not recognized as existing at

the time of trial, if retrospective application of that right is required. The

petition must be filed within one (1) year of the highest state appellate court

or the United States supreme court establishing a constitutional right that was

not recognized as existing at the time of trial;

(2) The claim in the petition is based upon new scientific evidence

establishing that the petitioner is actually innocent of the offense or offenses

for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that

was enhanced because of a previous conviction and the conviction in the case

in which the claim is asserted was not a guilty plea with an agreed sentence,

and the previous conviction has subsequently been held to be invalid, in which

case the petition must be filed within one (1) year of the finality of the ruling

holding the previous conviction to be invalid.

Id. § 40-30-102(b)(1)-(3).

In addition, principles of due process may allow for the tolling of the statute of

limitations in limited circumstances. See Williams v. State, 44 S.W.3d 464, 468 (Tenn.

2001); Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001); Seals v. State, 23 S.W.3d 272,

279 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). To determine

whether due process tolling applies, courts should examine: (1) when the limitations period

would normally have begun to run; (2) whether the grounds for relief arose after the

limitations period normally would have commenced; and (3) if the grounds are later-arising,

would a strict application of the limitations period deny the petitioner a reasonable

opportunity to present the claim. Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

In Padilla, the United States Supreme Court held that an attorney’s performance was

deficient under the Strickland v. Washington, 466 U.S. 668 (1984), test because the attorney

failed to warn the attorney’s non-citizen client that his guilty plea would result in deportation.

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559 U.S. at 369. The Padilla Court also held that in cases where the law regarding

deportation is not “succinct and straightforward,” counsel must advise “a noncitizen client

that pending criminal charges may carry a risk of adverse immigration consequences.” Id.

Noting that it had “never applied a distinction between direct and collateral consequences to

define the scope of constitutionally ‘reasonable professional assistance’ required under

Strickland,” the Padilla Court declined to follow the reasoning of the Kentucky Supreme

Court, which had rejected Padilla’s ineffectiveness claim on the grounds that the advice he

sought from his counsel concerned only “collateral matters.” Id. at 365-66 (citations and

footnotes omitted). Before the Padilla decision, Tennessee was one of the jurisdictions that

held counsel’s failure to advise a defendant of the immigration consequences of a guilty plea

does not constitute ineffective assistance because deportation is a collateral, rather than a

direct, consequence of a defendant’s guilty plea. See Bautista v. State, 160 S.W.3d 917, 921-

22 (Tenn. Crim. App. 2004).

The record shows that none of the statutory exceptions for tolling the statute of

limitations is applicable in the petitioner’s case. Analyzing the Sands factors for due process

tolling, the record shows that the petitioner entered his guilty pleas on July 1, 2011. The

petitioner’s claim for ineffective assistance of counsel existed at the time and nothing

prevented him from filing his petition for post-conviction relief within the limitations period,

yet he did not do so until December 4, 2012. Panels of this court have “specifically rejected

arguments that the statute of limitations should be tolled on due process grounds for a Padilla

claim because it is not ‘later arising’ when it exists at the time of a defendant’s guilty plea.”

Antonio Angel Onate v. State, No. M2013-00531-CCA-R3-PC, 2013 WL 4677697, at *3

(Tenn. Crim. App. Aug. 28, 2013) (citing Clayton Bezuidenhout v. State, No. M2012-01114-

CCA-R3-PC, 2013 WL 1965992, at *2 (Tenn. Crim. App. May 13, 2013); Ivano Stamegna

v. State, No. E2011-00107-CCA-R3-PC, 2011 WL 5971275, at *6-7 (Tenn. Crim. App. Nov.

29, 2011)). These panels have also noted that “lack of knowledge or late discovery of a

claim does not make it ‘later arising.’” Antonio Angel Onate, 2013 WL 4677697, at 3 (citing

Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996)). Although the petitioner

may not have known that his guilty plea might affect his immigration status, he has not

alleged that the relevant immigration law did not exist at the time of his plea. See Ricardo

Rodriguez v. State, No. M2011-02068-CCA-R3-PC, 2012 WL 4470675, at *7-8 (Tenn.

Crim. App. Sept. 27, 2012) (concluding that even though the petitioner was unaware of the

deportation consequences of his guilty plea, the claim existed at the time he entered his guilty

plea and was not later-arising), perm. app. denied (Tenn. Mar. 5, 2013). We conclude that

the petitioner has failed to show a later-arising ground for relief permitting the trial court’s

tolling the statute of limitations on due process grounds.

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CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the summary dismissal

of the petition.

_________________________________

ALAN E. GLENN, JUDGE

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