        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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
PJ., and N ORMA M CG EE O GLE, 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’s judgment 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 consequences to 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

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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

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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.




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                      CONCLUSION

The judgment of the post-conviction court is affirmed.


                                   _________________________________
                                   THOMAS T. WOODALL, JUDGE




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