        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  April 17, 2012 Session

                     JUAN CANTU v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Putnam County
                     No. 06-0704A     David A. Patterson, Judge


                  No. M2011-02506-CCA-R3-PC - Filed June 18, 2012


In June of 2008, petitioner, Juan Cantu, entered a guilty plea to conspiracy to sell more than
twenty-nine grams of cocaine. The trial court suspended petitioner’s sentence and placed him
on probation for ten years. Agents from the United States Immigration and Customs
Enforcement (“ICE”) detained petitioner at his home on May 17, 2011, before transferring
him to a detention facility in Louisiana. Petitioner filed a petition for post-conviction relief
on September 30, 2011, alleging ineffective assistance of counsel for trial counsel’s failure
to advise him that pleading guilty would result in deportation. On the State’s motion, the
post-conviction court dismissed the petition based on the one-year statute of limitations set
forth in Tennessee Code Annotated section 40-30-102(a). In summarily dismissing the
petition, the post-conviction court determined that the United States Supreme Court’s
decision in Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473 (2010), was inapplicable to
petitioner’s case, and as such, the petition was untimely filed. To overcome the statute of
limitations, petitioner argues on appeal that Padilla should be applied retroactively.
Discerning no error, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
A LAN E. G LENN, JJ., joined.

Bawer J. Tayip, Nashville, Tennessee, for the appellant, Juan Cantu.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Randall A. York, District Attorney General; and Douglas E. Crawford,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                        OPINION

        Petitioner clearly filed his petition for post-conviction relief outside the one-year
statute of limitations established by Tennessee Code Annotated section 40-30-102(a). The
pivotal question before us is whether the United States Supreme Court’s opinion in Padilla
excuses the untimeliness of his petition and mandates consideration of his claim of
ineffective assistance of counsel.

        Our legislature has emphasized the importance of a timely-filed petition for post-
conviction relief, stating 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.” Tenn. Code Ann. § 40-30-102(a) (2006). A court cannot consider a petition filed
after the expiration of the limitations period unless it falls within one of the statutorily-
defined exceptions found in Tennessee Code Annotated section 40-30-102(b) or due process
concerns mandate tolling of the statute. Tenn. Code Ann. § 40-30-102(b) (2006); Williams
v. State, 44 S.W.3d 464, 471 (Tenn. 2001).

       Petitioner’s claim for post-conviction relief is based upon trial counsel’s alleged
failure to inform him, prior to entering the guilty plea, of the ensuing possibility of
deportation. The Padilla Court held that counsel rendered deficient performance by failing
to advise Padilla that his guilty plea would subject him to deportation. Padilla, — U.S. at
—, 130 S. Ct. at 1483. Relying on Teague v. Lane, 489 U.S. 288 (1989), petitioner argues
that Padilla announced an “old” rule of law and that “old” rules of law require retroactive
application. See Williams v. Taylor, 529 U.S. 362, 390-91 (2000) (“[I]t can hardly be said
that recognizing the right to effective counsel ‘breaks new ground or imposes a new
obligation on the States.’”).

        We need not employ an analysis of whether Padilla announced a new rule of law or
simply extended an old rule. Neither must we determine whether, if Padilla is a new rule of
law, retroactive application is necessary. We emphasize and adhere to our recent holding that
“[w]hile we conclude that the requirement established in Padilla was a new rule of law,
retroactive application of the rule . . . is not warranted.” Rene S. Guevara v. State, No.
W2001-00207-CCA-R3-PC, 2012 WL 938984, at *3 (Tenn. Crim. App. March 13, 2012).
We further held:

       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. Requiring

                                             -2-
       counsel to advise a petitioner about the deportation consequences of pleading
       guilty does not implicate either exception.

Id. (internal citations omitted). Based on our prior holding, petitioner is not entitled to relief
pursuant to Padilla.

       Even if Padilla applied to preserve the claims in petitioner’s untimely petition for
collateral review, the petition in this case would nevertheless be subject to summary
dismissal. One of the statutory exceptions to strict application of the statute of limitations
is invoked when a “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[.]”
Tenn. Code Ann. § 40-30-102(b)(1) (2006). The United States Supreme Court issued the
Padilla opinion on March 31, 2010. Petitioner did not file the instant petition until
September 30, 2011. Any relief from the statute of limitations that Padilla could have
provided petitioner is obviated by his failure to file the petition for post-conviction relief in
a timely manner. See Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996)
(“Ignorance of the statute of limitations is not an excuse for late filing,” even when the
petitioner claims that he did not know about the change in the law due to incarceration in
another state); Passarella v. State, 891 S.W.2d 619, 624-25 (Tenn. Crim. App. 1994),
superseded by statute on other grounds as stated in State v. Steven S. Newman, No. 02C01-
9707-CC00266, 1998 WL 104492 (Tenn. Crim. App . March 11, 1998) (“This Court refuses
to engraft a discovery rule over the statute of limitations in post-conviction cases.”).

       After a thorough review of the briefs filed and applicable case law, we hold that
petitioner is not entitled to relief. Accordingly, we affirm the judgment of the post-
conviction court.


                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




                                               -3-
