IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 17, 2012 Session

JUAN CANTU v. STATE OF TENNESSEE

Appeal from the Criminal Court for Putnam County

No. 06-0704A David A. Patterson, Judge

No. M2011-02506-CCA-R3-PC - Filed June 18, 2012

In June of 2008, petitioner, Juan Cantu, entered a guilty plea to conspiracy to sell more than

twenty-nine grams of cocaine. The trial courtsuspended petitioner’ssentence and placed him

on probation for ten years. Agents from the United States Immigration and Customs

Enforcement (“ICE”) detained petitioner at his home on May 17, 2011, before transferring

him to a detention facility in Louisiana. Petitioner filed a petition for post-conviction relief

on September 30, 2011, alleging ineffective assistance of counsel for trial counsel’s failure

to advise him that pleading guilty would result in deportation. On the State’s motion, the

post-conviction court dismissed the petition based on the one-year statute of limitations set

forth in Tennessee Code Annotated section 40-30-102(a). In summarily dismissing the

petition, the post-conviction court determined that the United States Supreme Court’s

decision in Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473 (2010), was inapplicable to

petitioner’s case, and as such, the petition was untimely filed. To overcome the statute of

limitations, petitioner argues on appeal that Padilla should be applied retroactively.

Discerning no error, we affirm the judgment of the post-conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ALAN E. GLENN, JJ., joined.

Bawer J. Tayip, Nashville, Tennessee, for the appellant, Juan Cantu.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant

Attorney General; Randall A. York, District Attorney General; and Douglas E. Crawford,

Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

Petitioner clearly filed his petition for post-conviction relief outside the one-year

statute of limitations established by Tennessee Code Annotated section 40-30-102(a). The

pivotal question before us is whether the United States Supreme Court’s opinion in Padilla

excuses the untimeliness of his petition and mandates consideration of his claim of

ineffective assistance of counsel.

Our legislature has emphasized the importance of a timely-filed petition for postconviction relief, stating that “[t]ime is of the essence of the right to file a petition for

post-conviction relief or motion to reopen established by this chapter, and the one-year

limitations period is an element of the right to file the action and is a condition upon its

exercise.” Tenn. Code Ann. § 40-30-102(a) (2006). A court cannot consider a petition filed

after the expiration of the limitations period unless it falls within one of the statutorilydefined exceptions found in Tennessee Code Annotated section 40-30-102(b) or due process

concerns mandate tolling of the statute. Tenn. Code Ann. § 40-30-102(b) (2006); Williams

v. State, 44 S.W.3d 464, 471 (Tenn. 2001).

Petitioner’s claim for post-conviction relief is based upon trial counsel’s alleged

failure to inform him, prior to entering the guilty plea, of the ensuing possibility of

deportation. The Padilla Court held that counsel rendered deficient performance by failing

to advise Padilla that his guilty plea would subject him to deportation. Padilla, — U.S. at

—, 130 S. Ct. at 1483. Relying on Teague v. Lane, 489 U.S. 288 (1989), petitioner argues

that Padilla announced an “old” rule of law and that “old” rules of law require retroactive

application. See Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (“[I]t can hardly be said

that recognizing the right to effective counsel ‘breaks new ground or imposes a new

obligation on the States.’”).

We need not employ an analysis of whether Padilla announced a new rule of law or

simply extended an old rule. Neither must we determine whether, if Padilla is a new rule of

law, retroactive application is necessary. We emphasize and adhere to our recent holding that

“[w]hile we conclude that the requirement established in Padilla was a new rule of law,

retroactive application of the rule . . . is not warranted.” Rene S. Guevara v. State, No.

W2001-00207-CCA-R3-PC, 2012 WL 938984, at *3 (Tenn. Crim. App. March 13, 2012).

We further held:

Such a rule would only apply retroactively to cases on collateral review when

either (1) the rule placed conduct beyond the power of the criminal

law-making authority or (2) the rule established a watershed rule of criminal

procedure that implicated the fundamental fairness of the trial. Requiring

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counsel to advise a petitioner about the deportation consequences of pleading

guilty does not implicate either exception.

Id. (internal citations omitted). Based on our prior holding, petitioner is not entitled to relief

pursuant to Padilla.

Even if Padilla applied to preserve the claims in petitioner’s untimely petition for

collateral review, the petition in this case would nevertheless be subject to summary

dismissal. One of the statutory exceptions to strict application of the statute of limitations

is invoked when a “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 ruling 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[.]”

Tenn. Code Ann. § 40-30-102(b)(1) (2006). The United States Supreme Court issued the

Padilla opinion on March 31, 2010. Petitioner did not file the instant petition until

September 30, 2011. Any relief from the statute of limitations that Padilla could have

provided petitioner is obviated by his failure to file the petition for post-conviction relief in

a timely manner. See Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996)

(“Ignorance of the statute of limitations is not an excuse for late filing,” even when the

petitioner claims that he did not know about the change in the law due to incarceration in

another state); Passarella v. State, 891 S.W.2d 619, 624-25 (Tenn. Crim. App. 1994),

superseded by statute on other grounds as stated in State v. Steven S. Newman, No. 02C01-

9707-CC00266, 1998 WL 104492 (Tenn. Crim. App . March 11, 1998) (“This Court refuses

to engraft a discovery rule over the statute of limitations in post-conviction cases.”).

After a thorough review of the briefs filed and applicable case law, we hold that

petitioner is not entitled to relief. Accordingly, we affirm the judgment of the postconviction court.

_________________________________

ROGER A. PAGE, JUDGE

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