        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                 Assigned on Briefs, May 8, 2012 Session

                 MIKE DWAYNE RAHMING v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2007-1-928    Monte Watkins, Judge


                 No. M2011-01574-CCA-R3-PC - Filed August 1, 2012


The petitioner, Mike Dwayne Rahming, appeals the Davidson County Criminal Court’s
summarily dismissal of his petition for post-conviction relief as time-barred. The petitioner
pled guilty to Class D felony burglary and received a two-year probated sentence in 2007.
In 2011, he filed the instant petition for relief asserting ineffective assistance of counsel. On
appeal, he contends that the post-conviction court’s summary dismissal resulted in a violation
of his due process rights. Because the petitioner has failed to establish that the petition was
timely filed or that a recognized exception to the statute of limitation applies, we find no
error in the post-conviction court’s dismissal.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, JR., J., and J EFFREY S. B IVINS, J., joined.

Mike Dwayne Rahming, Pro Se, Oakdale, Louisiana, appellant

Robert E. Cooper, Jr., Attorney General and Reporter; Camerson L. Hyder, Assistant
Attorney General; Tory Johnson, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee

                                          OPINION




                                     Procedural History
       On July 27, 2007, the petitioner pled guilty to burglary and received a two-year

sentence, which was suspended to probation. However, the petitioner subsequently violated

the terms of his probation and, on May 27, 2009, was ordered to serve his sentence. The

record before us indicates that no direct appeal has ever been filed in the case.




       On June 17, 2011, the petitioner filed the instant pro se petition for post-conviction

relief. In the petition, he asserts that he was denied the effective assistance of counsel.

Specifically, he finds fault with his trial counsel’s failure to inform him of the consequences

his guilty plea would have upon his immigration status. According to the petitioner, who

asserts he is a citizen of the Bahamas, trial counsel failed to inform him that the burglary

conviction would result in deportation from the United States. The record does support that

the petitioner is presently incarcerated at the Federal Detention Center in Oakdale, Louisiana

where he faces removal proceedings before an immigration judge.




       The post-conviction court, by written order, summarily dismissed the petition for post-

conviction relief as untimely on June 22, 2011. The petitioner has timely appealed that

dismissal.




                                          Analysis




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       A person convicted of a crime must petition for post-conviction relief within one year

of the final action of the highest state court that has considered the claim. T.C.A. § 40-30-

102(a) (2010). Time is of the essence when asserting a claim for post-conviction relief, and

a petitioner’s compliance with the statute of limitations is an element of the right to file a

petition. Id. at (b). However, pursuant to Tennessee Code Annotated section 40-30-

102(b)(1)-(3), this court may consider a petition for post-conviction relief filed outside the

one-year statute of limitations if the petitioner’s claim: (1) is based upon a final ruling of an

appellate court establishing a new constitutional right which is to be retroactively applied;

(2) is based upon new scientific evidence establishing that petitioner is actually innocent; or

(3) seeks relief from a sentence that was enhanced because of a prior conviction that was

found to be invalid. In addition, this court will also consider an untimely petition if due

process considerations require tolling of the post-conviction statute of limitations. Seals v.

State, 23 S.W.3d 272, 278-79 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 210 (Tenn.

1992). “To determine if due process requires the tolling of the statute of limitations, a court

must weigh the petitioner’s interest in having an opportunity to present his claims in a

meaningful time and manner against the state’s interest in preventing the litigation of stale

and fraudulent claims.” Gerald Wayne Carter v. State, No. W2008-00652-CCA-R3-PC

(Tenn. Crim. App., at Jackson, Nov. 13, 2008) (citing Burford, 845 S.W.2d at 208).




       There is no question in this case that the instant petition was filed outside the one-year



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statute of limitations period. Because there was no direct appeal taken, the petitioner’s

judgment became final on August 27, 2007, thirty days after its entry. Therefore, pursuant

to the one-year statute of limitations applicable, the petitioner had until August 27, 2008, to

timely file his petition for relief. Indeed, the petitioner, in both the petition and his brief,

acknowledges that the petition was untimely. For the first time on appeal, he now argues that

the summary dismissal of his petition violated his due process rights because he was not

provided the opportunity to present his claim at a meaningful time and in a meaningful

manner.




       Because the petitioner failed to raise this specific argument in the post-conviction

court, this court could well find waiver of the issue. See State v. Adkisson, 899 S.W.2d 629,

635 (Tenn. Crim. App. 1994). However, although the characterization of his argument has

changed, the petitioner is essentially still contending the same thing: that the statute of

limitation should not bar his ineffective assistance claim based upon trial counsel’s failure

to inform the petitioner of the consequences to his immigration status as a result of the plea.

As such, we elect to review despite technical waiver.




       In his petition, his entire argument centered wholly on his assertion that the United

States Supreme Court case of Padilla v. Kentucky, excused the untimeliness of his filing

because it established a new rule of constitutional law. See Padilla, ___ U.S. ___, 130 S. Ct.



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1473 (2010) (holding that counsel rendered deficient performance by failing to advise Padilla

that his guilty plea would subject him to deportation). The Court of Criminal Appeals has

recently rejected such arguments made by other defendants and concluded that “[w]hile . .

. the requirement established in Padilla was a new rule of law, retroactive application of the

rule . . . is not warranted.” Juan Cantu v. State, No. M2011-02506-CCA-R3-PC (Tenn.

Crim. App., at Nashville, June 18, 2012); Rene S. Guevara v. State, No. W2001-00207-CCA-

R3-PC (Tenn. Crim. App., at Jackson, Mar. 13, 2012). Thus, had the petitioner again

advanced this argument on appeal, we would have concluded, as did the post-conviction

court, that it was not meritorious.




       The above cited caselaw makes clear that none of the three enumerated statutory

exceptions to the statute of limitations are applicable in this case. Thus, the petitioner was

left with only a claim that application of the statute of limitations violated his due process

rights. However, this argument, which is essentially circular, must also fail. Our supreme

court has stated that when determining whether due process considerations mandate tolling

of the statute of limitations, a court should use a three step process:




       (1) determine when the limitations period would normally have begun to run;

       (2) determine whether the grounds for relief actually arose after the limitations

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



                                              -5-
       arising,” determine if, under the facts of the case, a strict application of the

       limitations period would effectively deny the petitioner a reasonable

       opportunity to present the claim.




Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).




       Looking to these considerations, we again note that the petitioner filed his petition

almost four years after his conviction became final and has included no explanation or reason

for doing so. We must next determine when the grounds alleged by the petitioner occurred,

specifically whether they occurred after the statute of limitations period. If we determine that

they were “later-arising” grounds, only then do we move to consideration of the third factor.

From our reading of these factors, it is apparent that our supreme court intended this remedy

to be used only in limited circumstances. For due process principles to toll the statute of

limitations, a petitioner must have been precluded from seeking relief because the

complained of acts occurred afterwards.




       In this case, the petitioner contends that trial counsel was ineffective by failing to

inform him of certain consequences which would result from accepting the plea. Those acts,

or omissions, occurred well prior to the running of the statute of limitations. The petitioner

attempts to bring his case under the auspice of due process by claiming the grounds were



                                              -6-
“later-arising” because he only became aware of the violations with the Supreme Court’s

ruling in Padilla. However, that exposes the circular nature of the petitioner’s argument, as

that places us squarely back to considering whether Padilla announced a new rule of law

which was to be retroactively applied. As noted above, this court has already concluded that

the rule announced in that case did not warrant retroactive application. As such, we would

be hard pressed to conclude that due process so warranted. Moreover, even if we were to

assume retroactive application to the petitioner’s case of the Padilla rule, his petition for

post-conviction relief would still be untimely. The Supreme Court issued the Padilla opinion

on March 31, 2010. The petitioner did not file his petition for relief until June 17, 2011, well

outside the one-year limitations period. The post-conviction court’s summary dismissal of

the petition as time-barred was proper.




                                       CONCLUSION




       Based upon the foregoing, the summary dismissal of the post-conviction petition is

affirmed.




                                                    _________________________________



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      JOHN EVERETT WILLIAMS, JUDGE




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