            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs June 19, 2012

             FRANCISCO MIQUEL JOSE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Putnam County
                        No. 11-0255    Leon C. Burns, Jr., Judge


                No. M2011-00295-CCA-R3-PC - Filed September 28, 2012


The Petitioner, Francisco Miquel Jose,1 appeals from the Putnam County Criminal Court’s
denial of his petition for post-conviction relief. On appeal, he contends that his 2004 guilty
plea to misdemeanor theft of property was not knowingly made because he was not advised
of the immigration consequences of his guilty plea, that the statute of limitations should be
tolled because Padilla v. Kentucky, 130 S. Ct. 1473 (2010), announced a new rule of
constitutional law that did not exist at the time of his plea, and that due process requires
tolling of the statute of limitations due to the circumstances surrounding his guilty plea. We
affirm the judgment of the trial court.\

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.

William F. Roberson, Jr., Cookeville, Tennessee, for the appellant, Francisco Miguel Jose.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Randall A. York, District Attorney General; and Beth Willis and Douglas E. Crawford,
Assistant District Attorneys General, for the appellee, State of Tennessee.




        1
         The Petitioner’s name appears as Francisco Miquel Jose on the warrant for the conviction offense,
which also contains the general sessions court’s judgment. His name appears as Francisco Jose on the guilty
plea documents. His name appears as Francisco Miguel Jose on the post-conviction petition. His
immigration attorney’s affidavit identifies him as Francisco Miquel Jose and Miquel Jose Francisco. We
have used the Petitioner’s name as it appears on the charging instrument and judgment document.
                                         OPINION

       The Petitioner states that his first language is Acateco, a Mayan language. He
pleaded guilty, pro se, in general sessions court on December 20, 2004. A Spanish-speaking
interpreter was present at the hearing. The court did not advise him of any immigration
consequences that might result from his guilty plea. He filed his post-conviction petition on
March 30, 2011, alleging that his guilty plea was not knowing because he was not
represented by counsel, did not have an interpreter who spoke his language, and was not
advised of the immigration consequences of his plea.

        At the post-conviction hearing, Lee Wiant, a certified Spanish-language interpreter,
testified that there were approximately twenty-three or twenty-four Mayan languages spoken
in Guatemala. He said that he listened to the Petitioner speak the Petitioner’s native
language at a previous court appearance and that the language was not Spanish. He said that
Acateco and Spanish were different languages and that numerous indigenous languages
existed in Latin America before the arrival of Spanish explorers in the 1500s. He said that
a person who spoke Acateco would understand only a few words of Spanish.

       Mr. Wiant testified that Chelsea Smith, the interpreter at the Petitioner’s guilty plea
hearing, was a certified Spanish-language interpreter and a native of Cuba. He doubted that
she spoke Acateco, which he said was spoken in Guatemala and Mexico. He said there were
only 40,000 to 50,000 people in the world who spoke Acateco. On cross-examination, he
conceded that he did not know whether the Petitioner could speak some Spanish, although
he thought it was unlikely.

       The Petitioner testified, aided by a person who spoke Acateco and Spanish, who in
turn was aided by a certified Spanish interpreter. The Petitioner testified that he did not
understand what he was doing in 2004 when he pleaded guilty to theft. He said he thought
he was just saying he was guilty. He said he did not have an Acateco interpreter at the
hearing, only a Spanish interpreter. He said he could understand very little Spanish in 2004.
He said he did not understand anything during the plea process. He stated he could only
answer “yes, yes, yes” to the questions asked at the hearing. He said that he may have been
advised in Spanish of his right to an attorney but that he did not understand it. He said no
one advised him of any immigration consequences of his guilty plea. He said he would have
looked for an attorney if someone had explained the immigration consequences. He did not
understand the right to have his case presented to the grand jury or to a preliminary hearing.
 He said that he could now understand a few words in Spanish and English but that he better
understood things if they were explained to him in Acateco.



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       The Petitioner testified that he had an immigration lawyer in Atlanta and an Acateco-
language interpreter, through whom he communicated with the immigration lawyer and the
judge. He said he was seeking residency status in the United States in order to be with his
children. He said that although he was legally in the United States, he was in danger of
losing this status because of the theft conviction.

       After receiving the proof, the trial court ruled that the petition was not filed within
the one-year statute of limitations and that the Padilla ruling did not require retroactive
application. The court denied relief. This appeal followed.

        A petition for post-conviction relief must be filed within one year of the final action
by the highest state appellate court to which an appeal is made or within one year of the trial
court’s judgment becoming final. T.C.A. § 40-30-102(a) (2006). The statute provides for
tolling of the post-conviction statute of limitations in limited circumstances, one of which is
if:

              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 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[.]

Id. § 40-30-102(b)(2). In addition, principles of due process may allow tolling of the statute
of limitations in limited circumstances. See Burford v. State, 845 S.W.2d 204, 208 (Tenn.
1992) (“[D]ue process requires that potential litigants be provided an opportunity for the
presentation of claims at a meaningful time and in a meaningful manner.”).

        In Padilla, the Court held that an attorney’s failure to advise a defendant that his
guilty plea to an offense for which federal immigration law provided for deportation was
deficient performance, the first prong of an ineffective assistance of counsel claim. Padilla,
130 S. Ct. at 1483-84; see Strickland v. Washington, 466 U.S. 668 (1984) (ineffective
assistance of counsel). Padilla also stands for the proposition that when the consequences
of criminal charges are not clear, an attorney must advise his client of the risk of adverse
immigration consequences. Padilla, 130 S. Ct. at 1483. The Court rejected the notion, to
which several state courts and federal circuits subscribed, that for the purposes of defining
counsel’s obligation to provide effective assistance, a distinction could be drawn between
direct and collateral consequences of criminal proceedings in cases involving immigration

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issues. Id. at 1481. Before the Padilla decision, Tennessee was one of the jurisdictions that
held that because deportation was a collateral consequence of a guilty plea, an attorney’s
performance was not deficient for failing to advise his client of that consequence. See
Bautista v. State, 160 S.W.3d 917, 921-22 (Tenn. Crim. App. 2004).

        This court has said that Padilla announced a new rule of law but that the rule is not
entitled to retroactive application. See, e.g., Rene S. Guevara v. State, No. W2011-00207-
CCA-R3-PC (Tenn. Crim. App. Mar. 13, 2012), perm. app. denied (Tenn. Aug. 16, 2012);
Mike Dwayne Rahming v. State, No. M2011-01574-CCA-R3-PC (Tenn. Crim. App. Aug.
1, 2012), reh’g denied (Mar. 5, 2012); Ivano Stamegna v. State, No. E2011-00197-CCA-R3-
PC (Tenn. Crim. App. Nov. 29, 2011). The issue is presently pending before the United
States Supreme Court. See Chaidez v. United States, 655 F.3d 684 (N.D. Ill. 2011), cert.
granted, 132 S. Ct. 2101 (Apr. 30, 2012). Because this court has said that the Padilla rule
does not apply retroactively, the statutory exception to the post-conviction statute of
limitations for a new rule of constitutional law does not apply. See T.C.A. § 40-30-
102 (b)(2) (2006).

        If the Petitioner is entitled to have his claim considered on its merits, due process
must require tolling of the statute of limitations. The State contends that the Petitioner
waived a claim of due process tolling because he did not raise it in the trial court. The
petition alleged that the statute of limitations should be tolled. Although it did not
specifically allege a due process basis, it sought tolling on the basis of the particular facts
of the Petitioner’s case and the Padilla decision. The Petitioner’s attorney also argued at the
post-conviction hearing that the statute of limitations should be tolled, although due process
was not specifically cited. We conclude that the issue was sufficiently raised in the trial
court. See Seals v. State, 23 S.W.3d 272, 277 (Tenn. 2000) (“‘Due process is flexible and
calls for such procedural protections as the particular situation demands.’”) (quoting Phillips
v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993)).

       Due process requires a weighing of the petitioner’s liberty interest against the State’s
interest in preventing the litigation of stale and fraudulent claims. Sample v. State, 82
S.W.3d 267, 273-74 (Tenn. 2002). To determine if due process requires tolling of the statute
of limitations, our supreme court has provided a three-step test:

              (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



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              (3) if the grounds are “later 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).

       This court has rejected arguments that the statute of limitations should be tolled on
due process grounds for Padilla claims. See., e.g., Ivano Stamegna, slip op. at 8. The
rationale is that a Padilla claim is not “later arising” because it exists at the time of a
defendant’s guilty plea. Id. Lack of knowledge or belated discovery of a claim does not
make it “later arising.” See, e.g., Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App.
1996). If the Petitioner is entitled to due process tolling, it must be on a basis other than his
Padilla claim.

        Viewing the Petitioner’s case in light of the Sands factors, we note that the
Petitioner’s language barrier existed at the time of the guilty plea. Whether or not it was
known to the trial court, it was known to the Petitioner. The fact that the Petitioner was not
represented by counsel also existed at the time of the plea. Although the Petitioner may not
have known that his guilty plea might affect his immigration status, he has not alleged that
the relevant immigration law did not exist when he pleaded guilty. The transcript of the plea
hearing reflects that the court did not advise the Petitioner of any immigration consequences,
but this was likewise a fact that existed at the time of the plea. However unfortunate the
circumstances of the Petitioner’s case were, there were no later-arising grounds for relief that
permitted the trial court to find that the statute of limitations should be tolled on due process
grounds.

       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                                     _________________________________
                                                     JOSEPH M. TIPTON, PRESIDING JUDGE




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