         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 22, 2011

                  MANNAKA OUNG v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2000-B-666    Seth W. Norman, Judge


                No. M2010-02076-CCA-R3-PC - Filed December 15, 2011


The Petitioner, Mannaka Oung, appeals the Davidson County Criminal Court’s summary
dismissal of his petition for post-conviction relief from his 2000 conviction for aggravated
assault and resulting three-year suspended sentence. Oung filed a petition for post-
conviction relief, alleging that he received ineffective assistance of counsel based on
counsel’s failure to advise him of the plea’s possible effects on his immigration status and
potential deportation. The post-conviction court concluded that the petition was barred by
the statute of limitations and dismissed the petition. On appeal, Oung argues that his claim
is based on a constitutional right that did not exist at the time of his plea, such that the statute
of limitations does not bar his claim. Upon 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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and R OBERT W. W EDEMEYER, J., joined.

Patrick G. Frogge, Nashville, Tennessee for the Petitioner-Appellant, Mannaka Oung.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel,
Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan
Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

       In August 2010, Oung filed a petition for post-conviction relief, asserting that his
2000 guilty plea was entered involuntarily because his counsel failed to inform him of the
plea’s possible effects on his immigration status. Based on Padilla v. Kentucky, 130 S. Ct.
1473 (2010), he argued that this failure amounted to the ineffective assistance of counsel.
See Padilla, 130 S. Ct. at 1483, 1486 (holding that counsel must inform a client when a plea
risks deportation). He further argued that Padilla established a new rule that should be
applied retroactively to his plea. In its order denying relief, the post-conviction court
reasoned that Padilla, even if it established a new rule, did not require retroactive application.
Consequently, it ruled that Oung’s petition was barred by the statute of limitations and
dismissed the petition.

        Analysis. On appeal, Oung argues that the post-conviction court erred in dismissing
his petition. He again asserts that Padilla established a new rule that dictates he receive post-
conviction relief based on his counsel’s ineffective assistance. Implicit in this argument is
the proposition that the rule in Padilla should apply retroactively to this case, though Oung
does not argue why it should apply retroactively. The State counters that although Padilla
created a new rule, it does not apply retroactively, and the petition is untimely as a result.

        A petitioner must petition for post-conviction relief within one year of the date of the
final action of the highest state appellate court to which an appeal is taken or, if no appeal
is taken, within one year of the date on which the judgment becomes final. T.C.A. § 40-30-
102 (Supp. 1996). In the absence of an appeal, a judgment generally becomes final thirty
days after it is entered. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996) (citing
Tenn. R. App. P. 4(a), (c)). The statute stresses that “[t]ime is of the essence of the right to
file a petition for post-conviction relief or motion to reopen established by this chapter, and
the one-year limitations period is an element of the right to file the action and is a condition
upon its exercise.” T.C.A. § 40-30-102 (a) (2006). A trial court shall not have jurisdiction
to consider a petition filed after the expiration of the limitations period unless:

       (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 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;

       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case


                                               -2-
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.

T.C.A. § 40-30-102(b)(1)-(3).

        Here, Oung’s petition was filed outside the standard one-year limitations period. He
argues, however, that the first exception under Tennessee Code Annotated section 40-30-
102(b)(1) applies because his petition is based on a new rule. His petition was filed on
August 3, 2010, less than five months after Padilla. Next, then, we must consider whether
Padilla “established a constitutional right that was not recognized as existing” when Oung
pled guilty and, if so, whether “retrospective application of that right is required” under
section 40-30-102(b)(1). Id. Regarding the first inquiry, whether a case establishes a new
constitutional rule, a rule has been defined as “new” to include when the rule “breaks new
ground or imposes a new obligation on the States or the Federal Government,” or when the
rule “was not dictated by precedent existing at the time the defendant’s conviction became
final.” Teague v. Lane, 489 U.S. 288, 301 (1989). Courts also consider whether the case
establishing the rule was “susceptible to debate among reasonable minds,” as evidenced by
conflicting case law in different jurisdictions. Butler v. McKellar, 494 U.S. 407, 415 (1990).
Regarding the second inquiry, whether a new rule should be applied retroactively to cases
on collateral review, a new rule will apply retroactively only if (1) the rule “places certain
kinds of primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe,” or (2) the rule is a “watershed rule of criminal procedure” that is
“central to an accurate determination of innocence or guilt.” Teague, 489 U.S. at 311-13.


        This court recently answered these questions about Padilla in Gerardo Gomez v. State,
decided while Oung’s case was pending on appeal. No. E2010-01319-CCA-R3-PC, 2011
WL 1797305 (Tenn. Crim. App., at Knoxville, May 12, 2011). This court held that Padilla
did establish a new rule, but that the new rule does not apply retroactively. As a result, this
court concluded that the rule in Padilla does not toll the statute of limitations to allow the
filing of a petition for post-conviction relief beyond the one-year limitations period. Id. at
*3-6. Oung’s case is not materially different from Gerardo Gomez, and nothing compels a
different outcome here. We therefore quote the Gerardo Gomez analysis extensively, and
reach the same conclusion for the same reasons.


       In deciding that Padilla announced a new rule, this court reasoned:


              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


                                               -3-
      petitioner of such a collateral consequence. Bautista v. State, 160 S.W.3d 917,
      921-22 (Tenn. Crim. App. 2004). . . .


              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 (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. . . .


Gerardo Gomez, 2011 WL 1797305, at *3 (alterations in original).


      This court continued:


      While the Court had not addressed this issue prior to Padilla, several states had
      discussed whether counsel’s failure to advise or erroneously advising a
      defendant of the deportation consequences of their guilty plea amounted to
      deficient performance. See Bautista, 160 S.W.3d at 921-22. These states
      came to conflicting conclusions. Id. Additionally, these states focused on a
      determination of whether deportation was either a direct or collateral
      consequence of pleading guilty. Id. Thus, the Supreme Court’s decision in
      Padilla abrogated several state court decisions. See Oyekoya v. State, 558
      So.2d 990 (Ala. Crim. App. [1989]); State v. Rosas, 904 P.2d 1245 (Ariz. Ct.
      App. 1995); Commonwealth v. Fuartado, 170 S.W.3d 384 (Ky. 2005); State
      v. Montalban, 810 So.2d 1106 (La. 2002); Commonwealth v. Frometa, 555
      A.2d 92 (Pa. 1989). The Supreme Court’s decision also abrogated several
      federal court decisions. See Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir.
      2004); United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States
      v. Del Rosario, 902 F.2d 55 (D.C. Cir. 1990); United States v. Yearwood, 863
      F.2d 6 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764 (11th Cir.
      1985).


            While we acknowledge that the Supreme Court’s decision in Padilla
      analyzed Strickland, the Court placed an affirmative duty on counsel to inform


                                             -4-
       their client of the deportation consequences of pleading guilty. [Padilla, 130
       S. Ct.] at 1486. Given the legal landscape of the opinions decided before
       Padilla, such a rule was, at the very least, “susceptible to debate among
       reasonable minds” when the Petitioner pled guilty. See Butler, 494 U.S. at
       415. Indeed, . . . four of the Supreme Court justices in Padilla believed that
       such a rigid requirement was not mandated by Strickland. See Padilla, 130 S.
       Ct. at 1491-97 (Alito, J., concurring) (“[T]he Court’s decision marks a major
       upheaval in Sixth Amendment law.”). Following our review, we conclude that
       the requirement established in Padilla was a new rule of law that was not
       dictated by prior case law and was not a simple extension of Strickland.

Gerardo Gomez, 2011 WL 1797305, at *5.

       In deciding that the new rule of Padilla did not require retroactive application, this
court stated:

              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 (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.


Gerardo Gomez, 2011 WL 1797305, at *6.

       Because the rule does not apply retroactively for the reasons stated in Gerardo Gomez,
it does not fit the exception to the statute of limitations under Tennessee Code Annotated
section 40-30-102(b)(1). Consequently, Oung’s petition was filed untimely, and the trial
court’s summary dismissal of it was proper.

                                       CONCLUSION



                                               -5-
Upon review, we affirm the judgment of the post-conviction court.

                                         ___________________________
                                         CAMILLE R. McMULLEN, JUDGE




                                   -6-
