IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 23, 2013

RUBEN PIMENTEL v. STATE OF TENNESSEE

Appeal from the Circuit Court for Warren County

No. F-9586 Larry B. Stanley, Jr., Judge

No. M2011-01309-CCA-R3-PC - Filed August 21, 2013

On June 3, 2005, Petitioner, Ruben Pimentel, pled guilty to first degree murder and two

counts of aggravated arson. He filed a petition for post-conviction relief almost four years

later on March 9, 2009. The trial court summarily dismissed the petition because it was filed

outside the applicable statute of limitations of one year. On appeal, a panel of this court

reversed and remanded the case to the trial court for the appointment of counsel and for a

hearing to determine if due process concerns tolled the statute of limitations. See Ruben

Pimentel v. State, No. M2009-00668-CCA-R3-PC, 2010 WL 271160 at *2 (Tenn. Crim.

App. Jan. 22, 2010). In addition, this court instructed the trial court to determine whether the

filing of the petition in 2009 was within the reasonable opportunity allowed by due process

tolling of the statute of limitations if due process concerns required a reasonable tolling of

the statute of limitations. Id. Upon remand, counsel was appointed, a hearing was held, and

the trial court again dismissed the petition, from which order Petitioner appeals pro se, after

waiving his right to counsel. After review, we affirm the judgment of the trial court.

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

THOMAST.WOODALL,J., delivered the opinion of the court, in which JOSEPH M.TIPTON, P.J.

and NORMA MCGEE OGLE, J., joined.

Ruben Pimentel, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; Rodney Strong, District Attorney General Pro Tem, for the appellee, State of

Tennessee.
OPINION

In the prior opinion of this court in Petitioner’s case, the following history of the case

and summary of relevant allegations of the post-conviction petition were set forth as follows.

The petitioner pleaded guilty to the three felony offenses in 2005, agreeing

to an effective sentence of life imprisonment without the possibility of

parole plus 25 years. The lengthy post-conviction petition, filed in 2009,

raised issues of ineffective assistance of counsel, involuntary and knowing

[sic] guilty pleas, the withholding of exculpatory evidence, newly

discovered scientific evidence, and other issues. In addition, the sworn

petition alleged that, due to his mental illness or defect, the petitioner was

unable to file his petition within the one-year statute of limitations imposed

by Tennessee Code Annotated section 40-30-102(a). He identified the

location of medical records in as many as six healthcare facilitiesin addition

to the records held by the Tennessee Department of Correction and the

names of seven prospective affiants who could “support [his] inability to

understand [his] legal rights and liabilities at relevant time periods

associated with the plea submission hearing and filing of this postconviction petition.” He alleged a history of psychosis and of various

mental disabilities.

Id. at *1

At the subsequent hearing in the trial court, Petitioner and the two attorneys (“lead

counsel” and “second counsel”) testified. There was minimal testimony concerning the

explicitly described issue for determination on remand, i.e., whether the statute of limitations

should be tolled. Lead counsel testified that Petitioner understood what lead counsel said to

him when discussing particular aspects of the negotaited plea offer. He also testified that

Petitioner was “a very bright individual” and that Petitioner understood the explanations

given for the forty or so pre-trial motions filed by trial counsel. Lead counsel stated that

Petitioner fully understood the constitutional rights he was going to waive by entering into

the plea agreement.

Lead counsel added that a mental evaluation of Petitioner was performed because that

was a standard procedure in all cases where the State had filed notice of its intent to seek the

death penalty. Lead counsel was asked if there was a “mental health issue” which raised a

question whether Petitioner could understand or comprehend what was “going on.” Lead

counsel responded, “No, sir.”

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Second counsel testified that he recalled that the defense team’s very experienced

investigator “had uncovered a period of time, a short period of time that [Petitioner] was

hospitalized for either some type of drug and alcohol treatment or mental health treatment

sometime, as I recall, near 1999 to 2000 and that was in the documents we were provided.”

He and lead counsel took this information into consideration when considering whether a

plea of insanity was a viable defense and then concluded it would not be a successful

defense.

Petitioner wasthe third and final witness who testified during his presentation of proof

at the post-conviction hearing. Petitioner testified that at the time of his arrest for the

offenses which resulted in his convictions, he was taking Zoloft, Paxil, Effexor, Valium, and

hydrocodone 7.5 pursuant to prescriptions. He said “the county jail” took him off those

medications and prescribed other psychotropic medications, which caused the “days and the

events” to be a “blur.” Petitioner answered affirmatively when asked if he did not recall what

he was doing and was not in the right state of mind to enter into his guilty pleas.

On cross-examination by the State, Petitioner admitted that at the time he pled guilty

in June 2005, he remembered many details of the facts leading to the crimes he was charged

with committing. Petitioner testified that he was not aware that he could challenge the

convictions through post-conviction proceedings until another inmate (Petitioner called him

the “law practitioner”) told him so in 2007 or 2008. Petitioner admitted that he waited

approximately two years after this to file his petition for post-conviction relief.

As to his own personal condition when he was transported to the state penitentiary in

June 2005, Petitioner testified he was “not okay.” Petitioner elaborated that he was seeing

“the psychiatrist at the penitentiary” (otherwise unidentified) who “made statements” that

Petitioner was “suffering from psychosis at the time.”

After the conclusion of presentation of the proof, the trial court dismissed the postconviction petition, and, as pertinent to this appeal, stated as follows:

I find nothing in front of me that says that there are due process

principles that were not met in this case or that were avoided or occurred

that would keep [Petitioner] from filing a post-conviction, petition for postconviction relief within the appropriate time frame.

The hearing after remand was held May 25, 2011, and on October 26, 2011, the trial

court entered a “Final Order” that states in part, “There is no evidence to support the claim

that due process principles tolled the statute of limitations due to medical issues, therefore,

the Petition for Post-Conviction Relief is denied.”

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No documents or other tangible items were admitted, or offered, into evidence during

the post-conviction hearing. On April 11, 2012, approximately ten and one-half months after

the post-conviction hearing, the trial court held another hearing, per the order of this court,

for a determination of whether Petitioner was knowingly and intelligently waiving his right

to counsel on appeal. At this “waiver of counsel hearing” the trial court allowed Petitioner

to file exhibits to “this hearing.” This collective exhibit contains copies of at least eight

letters from him to his post-conviction counsel, a copy of a complaint, hand-dated December

27, 2011, filed against post-conviction counsel with the Tennessee Board of Professional

Responsibility, copies of appellate decisions (including this court’s prior opinion in

Petitioner’s case), and various other documents. Petitioner relies on this exhibit in his

appellate brief in support of an argument that he is entitled to relief because his postconviction counsel provided deficient representation at the post-conviction hearing.

Petitioner’s argument is misplaced. In Tennessee, petitioners are not entitled to obtain relief

for ineffective assistance of counsel during post-conviction proceedings. See House v. State,

911 S.W.2d 705, 712 (Tenn. 1995) (“There being no constitutional right to counsel in postconviction proceedings, it follows that there is no constitutional right to effective assistance

of counsel in post-conviction proceedings.”) Petitioner asserts that Martinez v. Ryan, 566

U.S. _____ , 132 S.Ct. 1309 (2012) stands for the proposition that he was entitled to

constitutionally effective assistance of counsel in his post-conviction proceedings. Martinez

does not offer relief to Petitioner. As stated in that opinion, the issue determined was limited

to whether ineffective assistance of counsel in a “collateral proceeding on a claim of

ineffective assistance at trial may provide cause for a procedural default in a federal habeas

corpus proceeding.” Id. at 1315. (emphasis added).

Petitioner also raises as issues on appeal that the trial court erred when it “ignored”

his request, contained in his petition for post-conviction relief, that he have a delayed appeal

from his guilty pleas. Petitioner was not entitled to an appeal as of right from his guilty

pleas. Tenn. R. App. P. 3(b); State v. Lane, 254 S.W.3d 349, (Tenn. 2008)(“Unlike civil

litigants, who have an appeal as of right from any final judgment, parties in criminal cases

do not always have an appeal as of right under the Rules of Appellate procedure.”).

Furthermore, this issue was not raised during the hearing in the trial court, and will not be

considered for the first time on appeal. Petitioner is not entitled to relief in this claim. In a

similar vein, Petitioner asserts he is entitled to relief in this appeal because his original trial

counsel did not properly withdraw as counsel following entry of Petitioner’s guilty pleas and

also did not “make any attempt to appeal from the plea agreement.” Petitioner quotes and

relies upon Tennessee Rule of Criminal Procedure 37(e)(3) as authority for his unique theory

for relief. That rule states:

(3) APPOINTED COUNSEL FOR INDIGENT DEFENDANT - Pursuant to Tenn.

Sup. Ct. Rule 13, § 1(e)(5), counsel appointed in the trial court to represent

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an indigent defendant shall continue to represent the defendant throughout

the proceedings, including any appeals, until the case has been concluded

or counsel has been allowed to withdraw by a court.

(emphasis added).

Petitioner’s case concluded upon entry of his guilty pleas pursuant to a negotiated plea

agreement. His complaint about trial counsel is without merit. Petitioner is not entitled to

relief on this issue.

Finally we address Petitioner’s issue which asserts that the trial court erred by again

dismissing his petition because it was filed long after the statute of limitations had expired.

Tennessee Code Annotated section 40-30-102(a) provides that, with three exceptions not

applicable in Petitioner’s case, a petition for post-conviction relief must be filed within one

year of when the judgment attacked becomes final, if no appeal is taken as in Petitioner’s

case. However, while the statute of limitations is constitutional (even though it bars

consideration of any untimely filed petition), the supreme court has recognized that in certain

cases application of the statue of limitations might violate a petitioner’s constitutional right

to due process. See Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001). In Williams the

court remanded a petitioner’s statutorily untimely filed post-conviction case back to the trial

court

for an evidentiary hearing to determine (1) whether due process tolled the

statute of limitations so as to give the appellee a reasonable opportunity

after the expiration of the limitations period to present his claim in a

meaningful time and manner; and (2) if so, whether the appellee’s filing of

the post-conviction petition in October 1996 was within the reasonable

opportunity afforded by the due process tolling.

Id. at 471.

This language from Williams formed the essentially identical instruction for the trial

court’s determination of the statute of limitations issue in Petitioner’s case. Ruben Pimentel,

2010 WL 271160, at *2. From its plain reading, both “prongs” of the inquiry must be

satisfied favorably for a petitioner in order for the statute of limitations to be tolled. In

Petitioner’s case, as the trial court determined, there was no proof offered at the hearing of

any impairment or other factor which triggered a tolling of the statute of limitations.

Furthermore, even if such facts had been proven, by his own testimony, Petitioner recognized

his right to attack his convictions by post-conviction proceedings in 2007. Yet, he delayed

until March 2009 to file a petition attacking the judgments entered as a result of his guilty

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pleas in June 2005. This delay would not have been “within the reasonable opportunity [of

time],” Williams, 44 S.W.3d at 471, afforded by due process tolling, if that tolling had in fact

been necessary.

In conclusion, we determine that Petitioner failed to prove that he was entitled to have

the statute of limitations tolled in his case. The judgment of the trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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