        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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M.T IPTON, P.J.
and N ORMA M CG EE O GLE, 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 facilities in 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 post-
            conviction 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 was the 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 post-
conviction 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 post-
        conviction 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 post-
conviction 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 post-
conviction 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) A PPOINTED C OUNSEL FOR INDIGENT D EFENDANT - 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

                                              -5-
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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