IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2011

RENE S. GUEVARA v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 94-05661 John Fowlkes, Judge

No. W2011-00207-CCA-R3-PC - Filed March 13, 2012

Petitioner, Rene S. Guevara, pled guilty in March 1995 to the felony offense of possession

of marijuana with intent to sell. A little more than fifteen years later, he filed a petition for

post-conviction relief attacking the 1995 conviction. Petitioner asserted he was entitled to

relief because his trial counsel rendered ineffective assistance of counsel by failing to advise

him regarding “immigration consequences of a guilty plea.” Petitioner claimed that this right

was a new constitutional rule of law announced in Padilla v. Kentucky, _____ U.S. _____,

130 S. Ct. 1473 (2010), and that this new constitutional rule of law should be retroactively

applied to Petitioner’s case. The post-conviction court entered an order dismissing the

petition because it was filed beyond the one-year statute of limitations contained in

Tennessee Code Annotated section 40-30-102(a), and because the rule of law was not

required to be applied retroactively. After a thorough review, we affirm the judgment of the

post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which JOSEPH M. TIPTON,

PJ., and NORMA MCGEE OGLE, J., joined.

Neil Amstead, Memphis, Tennessee, for the appellant, Rene S. Guevera.

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

General; William L. Gibbons, District Attorney General; and Garland Erguden, Assistant

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

Obviously the petition for post-conviction relief in this case was filed more than one

year after Petitioner’sjudgment based upon a guilty plea to felonious possession of marijuana

became a final judgment. Tennessee Code Annotated section 40-30-102(a) provides that a

petition for post-conviction relief must be filed within one year of when the judgment of

conviction becomes final. An untimely petition is subject to summary dismissal. Tenn. Code

Ann. § 40-30-106(b). “[N]o court shall have jurisdiction” to consider a time barred petition

unless (1) it falls within one of the enumerated statutory exceptions of Tennessee Code

Annotated section 40-30-102(b), or (2) tolling is mandated by constitutional due process

concerns. Tenn. Code Ann. § 40-30-102(b); see also William v. State, 44 S.W.3d 464 (Tenn.

2001). The portion of Tennessee Code Annotated section 40-30-102(b) relied upon by

Petitioner states that the one-year statute of limitations is tolled if,

(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 the 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 the

trial;

Tenn. Code Ann. § 40-30-102(b)(1).

Petitioner argues that he is entitled to post-conviction relief because his trial counsel

failed to advise him of the possible adverse consequencesto his immigration status that could

result from his plea of guilty to felonious possession of marijuana. He relies upon the

opinion in Padilla v. Kentucky, _____ U.S. _____, 130 S. Ct. 1473 (2010), which held for

the first time that a trial counsel’s failure to advise a client about potential adverse

immigration consequences of a guilty plea constitutes deficient performance by trial counsel.

Padilla, 130 S.Ct. at 1483. Petitioner asserts that the new constitutional rule in Padilla must

be applied retroactively to his guilty plea in 1995. Therefore, Petitioner argues, Tennessee

Code Annotated section 40-30-102(b)(1) tolls the one-year statute of limitations contained

in Tennessee Code Annotated section 40-30-102(a), because he filed his post-conviction

petition on September 15, 2010, within one year of March 31, 2010, the date Padilla was

filed. The State asserts that the holding in Padilla does not warrant retroactive application.

In determining whether Padilla announced a new rule of law, we note that “a case

announces a new rule when it breaks new ground or imposes a new obligation on the States

-2-
or Federal Government.” Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060 (1989). Thus,

if a “result was not dictated by precedent existing at the time the defendant’s conviction

became final,” then a new rule of law has been established. Id. While “[t]he explicit

overruling of an earlier holding no doubt creates a new rule; it is more difficult, however, to

determine whether [a new rule has been established] when a decision extends the reasoning

of [ ] prior cases.” Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257 (1990). Thus, in

determining whether Padilla has established a new rule, we must determine whether a court

considering the Petitioner’s claim prior to the holding in Padilla would have felt compelled

to conclude that trial counsel was deficient for failing to advise the Petitioner regarding the

deportation consequences of his guilty plea. Id.; see also Beard v. Banks, 542 U.S. 406, 411,

124 S. Ct. 2504 (2004) (stating that in determining whether a new rule of law has been

established, the court must “ask whether the Constitution, as interpreted by the precedent

then existing, compels the rule”).

In 2004, this Court held that deportation was a collateral consequence of a guilty plea

and that trial counsel was not deficient for failing to inform the petitioner of such a collateral

consequence. Bautista v. State, 160 S.W.3d 917, 921-22 (Tenn. Crim. App., 2004). In so

concluding, this Court considered similar cases in which courts held that failing to advise a

petitioner of the deportation consequences of a guilty plea was not deficient. Id. at 921

(citing People v. Huante, 143 Ill. 2d 61, 156 Ill. Dec. 756, 571 N.E.2d 736 (Ill. 1991)). This

Court also considered cases in which courts held that erroneously advising a petitioner of the

deportation consequences of a guilty plea was deficient. Id. (citing People v. Correa, 108

Ill. 2d 541, 92 Ill. Dec. 496, 485 N.E.2d 307 (Ill. 1985)). However, prior to Padilla, the

United States Supreme Court had not considered this issue.

In Padilla, the Supreme Court concluded that deportation resulting from a petitioner’s

guilty plea was neither a direct nor a collateral consequence of pleading guilty. Padilla, 130

S. Ct. at 1482. Instead, the Court held that the “collateral versus the direct distinction [was]

ill-suited to evaluating a [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984)] claim concerning the specific risk of deportation.” Id. The Court

ultimately held that “counsel must inform [their] client whether [a] plea carries a risk of

deportation” and that failure to advise their client of such a consequence was deficient. Id.

at 1486. The ruling was not limited to requiring counsel to refrain from offering affirmative

misadvice on the issue but established that when the deportation consequence is not “succinct

and straightforward,” counsel must still advise the client that “pending criminal charges may

carry a risk of adverse immigration consequences.” Id. at 1483.

We conclude that Padilla established a new rule of law. In so concluding, we are

guided by the Supreme Court’s decisions in O’Dell v. Netherland, 521 U.S. 151, 117 S. Ct.

1969 (1997), and Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822 (1990). In O’Dell, the

-3-
Supreme Court concluded that while Simmons v. South Carolina, 512 U.S. 154, 164, 114 S.

Ct. 2187 (1994) had established a new rule of law, the rule should not be retroactively

applied. O’Dell, 521 U.S. at 167-68. In Simmons, the Court concluded that the trial court’s

refusal to instruct the jury that the defendant would not be eligible for parole if he were given

a life sentence violated the Fourteenth Amendment. 512 U.S. at 164. The Supreme Court

stated, “The trial court’s refusal to apprise the jury of information so crucial to its sentencing

determination, particularly when the prosecution alluded to the defendant’s future

dangerousness in its argument to the jury, cannot be reconciled with our well-established

precedents interpreting the Due Process Clause.” Id. In determining whether Simmons had

established a new rule of law, the Supreme Court assessed the “legal landscape existing at

the time [the] petitioner’s conviction and sentence became final” and ultimately stated “that

a reasonable jurist in 1988 would not have felt compelled to adopt the rule later set out in

Simmons.” O’Dell, 521 U.S. at 160-64. The Supreme Court stated, “The array of views

expressed in Simmons itself suggests that the rule announced there was, in light of this

Court’s precedent, ‘susceptible to debate among reasonable minds.’” Id. at 159-60 (quoting

Butler v. McKellar, 494 U.S. 407, 415, 110 S. Ct. 1212 (1990)).

While we conclude that the requirement established in Padilla was a new rule of law,

retroactive application of the rule announced in Padilla is not warranted. 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.

Teague, 489 U.S. at 311. Requiring counsel to advise a petitioner about the deportation

consequences of pleading guilty does not implicate either exception.

First, the rule does not exempt those subject to deportation from the criminal

lawmaking authority. Second, the rule was not a watershed rule of criminal procedure

essential to the fairness of a proceeding. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.

792 (1963) (establishing the right to counsel in felony criminal proceedings). At issue in

Padilla was whether the petitioner had received the effective assistance of counsel in

determining whether he should plead guilty. The Supreme Court held that counsel must

inform their clients of the deportation consequences of pleading guilty. While this

established a new requirement for counsel to comply with, it did not establish a right for

defendants like the right established in Gideon, the right to counsel. Moreover, the rule did

not relate to the overall fairness of the proceeding itself. Although the Court’s decision in

Padilla established a new rule of law, the rule of law should not be retroactively applied.

Accordingly, we conclude that Petitioner is not entitled to relief in this appeal.

-4-
CONCLUSION

The judgment of the post-conviction court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

-5-