                                                                                        05/06/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                             September 25, 2019 Session

       MARIO HERNANDEZ CASTILLO v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Grainger County
                         No. 7855    O. Duane Slone, Judge
                     ___________________________________

                            No. E2018-00748-CCA-R3-PC
                       ___________________________________


Petitioner, Mario Hernandez Castillo, appeals the denial of his petition for post-
conviction relief in which he challenged his convictions for first degree premeditated
murder, felony murder, especially aggravated robbery, and theft of property valued at less
than $500, for which he received an effective sentence of life imprisonment. On appeal,
Petitioner contends that he is entitled to a new post-conviction hearing based upon the
unconstitutional delay in the post-conviction proceedings and the inadequacy of
interpreter services. We affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Brennan M. Wingerter (on appeal), Knoxville, Tennessee, and Derreck Whitson (at
hearing), Newport, Tennessee, for the appellant, Mario Hernandez Castillo.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Jimmy B. Dunn, District Attorney General; and Joann Sheldon,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Factual and Procedural History

       Petitioner’s convictions stem from his shooting, killing, and robbing the victim,
Jackie Petitt, at the victim’s home in January 2000. See State v. Mario Hernandez
Castillo, No. E2003-01250-CCA-R3-CD, 2004 WL 1149497, at *1-3 (Tenn. Crim. App.
May 21, 2004). The shooting was captured on the victim’s video surveillance system,
and the recording was presented at trial. Id. at *3. Petitioner presented a claim of self-
defense, which the jury rejected, and the jury convicted Petitioner of first degree
premeditated murder, felony murder, especially aggravated robbery, and theft of property
valued at less than $500. The trial court merged the murder convictions and imposed an
effective sentence of life imprisonment. Petitioner raised multiple issues on direct
appeal, including a claim that the State failed to prove beyond a reasonable doubt that he
did not act in self-defense. Id. at *9. On direct appeal, this court ordered the theft
conviction to be merged into the conviction for especially aggravated robbery, and this
court otherwise affirmed the judgments. Id. at *12.

       Petitioner filed a pro se petition for post-conviction relief in August 2005, raising
claims of ineffective assistance of counsel, a double jeopardy violation, and the
unconstitutional selection of the grand jury. The proceedings were delayed until January
2006 because the trial court clerk’s office inadvertently assigned the case to the wrong
judge. The appellate record does not include a preliminary order from the post-
conviction court finding that Petitioner established a colorable claim and appointing
counsel to represent him, but it includes multiple letters from Petitioner’s initial post-
conviction counsel (“first counsel”) to Petitioner, informing him that the evidentiary
hearing had been continued.

       We have ascertained from the appellate record the following timeline of events:

    February 2, 2006. First counsel sent a letter to Petitioner, informing him that
     counsel had prepared an amended petition and that the hearing was scheduled for
     September 7. The post-conviction court subsequently entered an order appointing
     an interpreter for Petitioner.
    April 17, 2006. Petitioner’s amended petition, raising essentially the same issues
     raised in his pro se petition, was filed.
    September 7, 2006. The hearing was scheduled for this date, but the hearing was
     continued. The appellate record does not include a motion to continue or an order
     continuing the hearing. A letter from first counsel to Petitioner stated that the
     hearing was reset “[d]ue to delays in subpoenas being served.” Heather Hayes,
     who served as Petitioner’s interpreter at trial and who was subpoenaed as a
     witness for the post-conviction hearing, wrote a letter to the governor complaining
     about the delay in the service of the subpoenas.
    December 4, 2006, and April 16, 2007. The hearing was scheduled for these
     dates but was continued. The appellate record does not include motions to
     continue or orders continuing the hearing. According to letters from first counsel
     to Petitioner, the hearings were reset because the prosecutor believed that some of
     the issues raised could be resolved and he needed additional time to review the
     case.
                                           -2-
 September 6 or 9, 2007. First counsel informed Petitioner through a letter that
  his hearing was scheduled for this date, and subpoenas were issued for a hearing
  on September 6. There is no other information in the appellate record regarding
  this hearing date.
 February 5, 2008. First counsel sent a letter to Petitioner that the hearing had
  been reset to May 22, 2008.
 May 22, 2008. The hearing was scheduled for this date. Subpoenas were issued
  and served, and the post-conviction court entered orders appointing an interpreter
  for Petitioner and requiring the sheriff’s department to transport Petitioner from
  prison to attend the hearing. However, the appellate record does not include any
  pleadings, orders, or other information regarding the continuance of this hearing.
 September 4, 2008. The hearing was schedule for this date, but an agreed order
  was entered continuing the case to October 20 due to the unavailability of first
  counsel for the September 4 hearing. However, first counsel sent a letter to
  Petitioner stating that the hearing was continued due to difficulties in obtaining a
  copy of the trial transcript.
 October 20, 2008. The hearing was scheduled for this date, but first counsel filed
  a motion to continue, stating that Petitioner’s interpreter was unavailable for the
  hearing. The post-conviction court entered an order, granting the motion and
  resetting the hearing for December 8.
 December 8, 2008. The hearing was scheduled for this date, but the appellate
  record does not include any information as to why the hearing was not held.
 February 2, 2009. Subpoenas were issued and served to witnesses for a hearing
  on this date. According to a letter from first counsel to Petitioner, the hearing was
  reset to September 14 “due to issues obtaining the trial record from the Court of
  Criminal Appeals.” The appellate record does not include a motion to continue or
  a corresponding order from the post-conviction court.
 September 14, 2009. While the hearing was scheduled for this date, there is no
  information in the appellate record regarding the reason that the hearing was not
  held.
 October 15, 2010. Petitioner filed an amended pro se petition for post-conviction
  relief. Petitioner stated that he had not been in contact with first counsel since
  counsel wrote a letter informing him that his hearing was scheduled for September
  14, 2009. While Petitioner stated that the date of the letter was July 14, 2008, the
  record reflects that the letter was dated February 5, 2009. Petitioner noted that the
  State failed to file a response to his petition and the first amended petition.
  Petitioner raised additional claims of ineffective assistance of counsel, as well as
  numerous stand-alone claims alleging errors by the trial court. He requested that
  first counsel be removed and new counsel be appointed to represent him. He also
  maintained that the four-year delay in the post-conviction proceedings was
  prejudicial, constituted an “abuse of law,” and violated his right to access to the
                                       -3-
    courts. The appellate record does not include any response from first counsel or
    the State or any action taken by the post-conviction court on this petition.
   November 10, 2010. Petitioner filed a pro se “Notice of Filing of Docket” in
    which he stated that he had not been in contact with first counsel for more than
    two years and requested that first counsel be removed and new counsel be
    appointed. The appellate record does not include any response from first counsel
    or the State or any action taken by the post-conviction court on this petition.
   December 1, 2010. Petitioner filed a pro se petition for writ of mandamus,
    complaining about first counsel’s inaction. He maintained that the delay in the
    post-conviction proceedings was excessive and violated multiple constitutional
    rights and Tennessee statutory law. While the pleading was addressed to the
    chancery court, the pleading was filed by the circuit court clerk under the case
    number assigned for the post-conviction action. The appellate record does not
    include any response from first counsel or the State or any action taken by the
    post-conviction court on this pleading.
   January 21, 2011. Petitioner filed a pro se motion requesting leave to file a
    federal habeas corpus petition without exhausting his State court remedies. While
    the motion was addressed to the federal district court, it was filed by the circuit
    court clerk under the case number assigned for the post-conviction action.
    Petitioner again complained about the excessive delay and first counsel’s failure to
    communicate.
   March 11, 2011. The State filed an “Answer to Amended Petition,” in which it
    made a general denial of Petitioner’s claims. The certificate of service provided
    that the answer was sent to Petitioner and his new post-conviction counsel
    (“second counsel”). The appellate record does not include an order removing first
    counsel and appointing second counsel.
   April 25 and October 24, 2011. The post-conviction court entered orders
    requiring that Petitioner be transported for hearings scheduled for April 25 and
    October 24. However, there is no other information in the appellate record about
    the hearings or the reason they were continued.
   January 30, 2012. A hearing was scheduled for this date, but an agreed order was
    entered continuing the hearing scheduled from “June 30, 2012,” and setting a
    status hearing for June 18, 2012, and an evidentiary hearing for December 3, 2012.
   June 18, 2012. A status hearing was set for this date, but the record does not
    reflect the result of the hearing.
   December 3, 2012. An evidentiary hearing was scheduled for this date.
    However, an agreed order was entered continuing the hearing until June 17, 2013.
   June 17, 2013. A hearing was scheduled for this date, and neither a motion to
    continue the hearing nor an order granting a continuance are included in the
    appellate record. The post-conviction court entered an order rescinding a prior
    order of transport because the hearing had been continued.
                                        -4-
    July 5, 2013. An order, which had been signed by the post-conviction court on
     June 25, was filed, requiring that Petitioner be transported from prison for a
     hearing scheduled for August 15 and 16 of 2013. The order required that
     Petitioner be transported seven days prior to the hearing in order to assist second
     counsel in preparing the case.
    July 16, 2013. The State filed its response to Petitioner’s motion for discovery.
     Petitioner’s motion is not included in the appellate record.

       Second counsel filed a motion to continue the hearing scheduled for August 15
and 16 of 2013, stating that although the post-conviction court ordered that Petitioner be
transported to the local jail seven days prior to the evidentiary hearing, Petitioner was not
transported until August 13, two days prior to the hearing. The motion stated that second
counsel had arranged for an interpreter to meet with second counsel and Petitioner on
August 8 at the jail but had to cancel the meeting because Petitioner was not transported
as ordered.

       During the August 15, 2013 hearing, second counsel informed the post-conviction
court that he had first met with Petitioner and an interpreter “face to face” the previous
day and that after speaking to Petitioner, second counsel’s “perception in how to proceed
has changed.” Second counsel stated that he had not had the opportunity to show the
video recordings of the shooting to Petitioner and that he needed to view them with
Petitioner so that Petitioner could explain the events to him. Second counsel stated that
he and an interpreter had a telephone conference with Petitioner in February and that
“you have the legal issues and trying to get those legal issues with the translation issue
together is very difficult.” He also stated that meetings had been difficult to arrange and
noted that the interpreter did not live in the area. He noted that the State did not provide
him with discovery until June of 2013 and that after meeting with Petitioner, it was
possible that an amended post-conviction petition would need to be filed. The post-
conviction court recessed for more than three hours to allow second counsel and the
interpreter to meet with Petitioner.

        Following the recess, second counsel reported that he needed additional time to
review the evidence with Petitioner, and the post-conviction court recessed for an
additional three hours. Following the second recess, second counsel affirmed that he was
ready to proceed with the hearing. The post-conviction court questioned Petitioner about
whether he wanted to move forward with the hearing, and Petitioner responded that he
was “eager” to proceed and that if another extension would not be granted, he was willing
to proceed with the hearing. Petitioner stated that he would like additional time because
he left his “papers” at the jail, he had not had many meetings with second counsel, and he
would like to conduct research. The post-conviction court stated that it would move
forward with the hearing but would entertain a continuance for any additional matters.
                                            -5-
        Second counsel informed the post-conviction court that the only issue was whether
trial counsel was ineffective in failing to adequately investigate Petitioner’s claim of self-
defense and advance the defense in an effective manner. Second counsel agreed that all
other issues previously raised were waived. The post-conviction court and second
counsel discussed the claims of a double jeopardy violation and the impaneling of the
grand jury that had been raised in the original and an amended petition, and second
counsel affirmed that the two issues were withdrawn. The post-conviction court clarified
as follows:

            THE COURT: Any other issue raised in any petition or subsequent
       amended are—

              [SECOND COUNSEL]: Waived.

              THE COURT: --withdrawn and waived?

              [SECOND COUNSEL]: Yes, Your Honor.

             [PROSECUTOR]: So that includes the defendant’s October 15th,
       2010 amendment to post conviction as well.

              THE COURT: Talking about his own written motion petition?

             [PROSECUTOR]: His own written. Because he had done one that
       was just—it had 13, 14 issues or something in it.

              [SECOND COUNSEL]: He did that on his own—

       ….

               THE COURT: My question to [Petitioner] and [second counsel] is
       that all issues raised in any petition for post conviction relief or amendment
       to any petition for post conviction relief, whether filed by [second counsel]
       or [Petitioner], or any issues raised in any reported habeas corpus petitions
       are withdrawn and waived?

              [PETITIONER through an interpreter]: If he’s going to be the one
       who’s representing me here, I think he’s going to do something that will
       benefit me.

                                            -6-
       ….

              [SECOND COUNSEL]: Your Honor, we—that is the issue as I
       have looked through this that I can frame.

              [THE COURT]: So all other issues are withdrawn?

              [SECOND COUNSEL]: Yes, Your Honor.

       Petitioner and trial counsel testified regarding Petitioner’s claim of ineffective
assistance of counsel for failing to adequately investigate and present the defense of self-
defense at trial. At the conclusion of the hearing, the post-conviction court made oral
findings, denying Petitioner’s claim. The court gave Petitioner additional time to file an
amended petition to raise any additional issues and set a time frame for Petitioner to do
so. The post-conviction court entered an “Interim Order” the following day.

        On August 22, 2013, Petitioner, through counsel, filed a motion to amend his post-
conviction petition to include a claim that trial counsel was ineffective in failing to have
Petitioner evaluated for his ability to stand trial. At the beginning of the hearing on
September 17, 2013, the post-conviction court swore in the interpreters and questioned
them about their ability to understand and communicate with Petitioner. Petitioner stated
that he spoke Spanish but that his dialect was of “the Aztec language in Mexico.” Both
interpreters indicated that they were not familiar with this language and asked for an
opportunity to speak with Petitioner. The post-conviction court granted a recess to allow
them to speak with Petitioner. Following the recess, both interpreters affirmed that they
could understand Petitioner and that Petitioner could understand them. One interpreter
stated that Petitioner “asked us to be as slow as we can” and that he would let them know
if he had any questions. During the hearing, trial counsel and Petitioner testified
regarding Petitioner’s claim of ineffective assistance of counsel for failing to have him
evaluated regarding his competency to stand trial. At the conclusion of the hearing, the
post-conviction court made oral findings, rejecting Petitioner’s claim.

       The appellate record reflects that following the September 17, 2013 hearing, the
following events occurred:

    April 24, 2015. The post-conviction court entered a one-page “Final Order,”
     dismissing Petitioner’s petition and adopting its oral findings at the hearing that
     occurred approximately one year and seven months prior to the order. The order
     was signed as approved for entry by the prosecutor and second counsel. However,
     second counsel did not file a motion to withdraw as counsel and did not file a
     notice of appeal.
                                           -7-
    December 11, 2017. Petitioner filed a pro se motion seeking to ascertain the
     status of the post-conviction proceedings.
    February 28, 2018. An “Order of Dismissal,” which was signed by the post-
     conviction court on February 1, was filed. The order stated that the court entered
     an order dismissing the petition in April 2015 and that “there is nothing pending
     before this Court.”

       On April 24, 2018, the Petitioner filed a pro se motion requesting that this court
accept his late-filed notice of appeal, which this court granted on May 23, 2018. The
appellate record was not filed until January 16, 2019, after the trial court clerk requested
numerous extensions, made numerous defects in the preparation of the record, and failed
to adhere to the deadlines set by this court. This court entered an order appointing
appellate counsel to represent Petitioner, noting that Petitioner was apparently not
provided a copy of the post-conviction court’s April 24, 2015 order denying post-
conviction relief and that second counsel abandoned Petitioner by failing to take any
additional action after entry of the order by filing a notice of appeal in this court. This
appeal was submitted to this court for a decision after completion of the briefs and oral
arguments.

Analysis

       On appeal, Petitioner does not challenge the post-conviction court’s findings
regarding Petitioner’s claim of ineffective assistance of counsel raised during the
hearings. Rather, he maintains that he is entitled to a new post-conviction hearing based
upon an unconstitutional delay in the post-conviction proceedings and the inadequacy of
interpreter services.

       A petitioner is entitled to post-conviction relief when a conviction of sentence is
“void or voidable because of the abridgement of any right guaranteed by the Constitution
of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. The
petitioner bears the burden of proving the allegations of fact in the petition by clear and
convincing evidence. T.C.A. § 40-30-110(f). Evidence is clear and convincing when the
correctness of the conclusions drawn from the evidence admits no serious or substantial
doubt. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009).

       This court reviews the post-conviction court’s conclusions of law, its decisions
involving mixed questions of law and fact, and its application of law to its factual
findings de novo without a presumption of correctness. Whitehead v. State, 402 S.W.3d
615, 620 (Tenn. 2013) (citing Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Calvert
v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). However, the post-conviction court’s
findings of fact are conclusive on appeal unless the evidence preponderates against them.
                                           -8-
Ward v. State, 315 S.W.3d 461, 465 (Tenn. 2010). This court may not substitute its own
inferences for those drawn by the post-conviction court, and questions concerning the
credibility of witnesses, the weight and value of the evidence, and the factual issues
raised by the evidence are to be resolved by the post-conviction court. State v.
Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001).

        The Post-Conviction Procedure Act sets forth actions that must be taken by the
parties and the post-conviction court and time periods in which they must be taken. Once
a petition for post-conviction relief is filed, the post-conviction court shall, upon
examination of all records and documents pertinent to the case, dismiss the case or enter a
preliminary order. T.C.A. § 40-30-106. In the preliminary order, the post-conviction
court shall appoint counsel if the petitioner is indigent and require within thirty days the
filing of an amended petition or a written notice that no amendment will be filed. T.C.A.
§ 40-30-107(b). The thirty-day deadline may be extended for “good cause,” which is not
met by “a routine statement that the press of other business prevents the filing of the
appropriate pleadings within the designated time.” Id. § 40-30-107(b)(2). The State shall
file an answer within thirty days, unless extended for good cause, but the State’s failure
to timely respond does not entitle the petition to relief pursuant to the Post-Conviction
Procedure Act. T.C.A. § 40-30-108(a). The post-conviction court shall review the case
after the State files its response, and if the court does not dismiss the petition, the court
shall enter an order within thirty days after the State files its response setting an
evidentiary hearing. T.C.A. § 40-30-109(a). The evidentiary hearing shall be within four
calendar months of the entry of the court’s order. Id. This deadline may be extended
only by order of the court based upon a finding that unforeseeable circumstances render a
continuance a manifest necessity, and such extension shall not exceed sixty days. Id.
Upon conclusion of the evidentiary hearing, the post-conviction court shall enter an order
within sixty days. T.C.A. § 40-30-111(d). This deadline may be extended only by order
of the court based upon a finding that unforeseeable circumstances render a continuance a
manifest necessity, and such extension shall not exceed thirty days. Id.

       The State, Petitioner’s counsel, and the post-conviction court did not comply with
these deadlines. In fact, the appellate record does not include any indication of an
attempt to comply with these statutory deadlines. However, “nothing in the Post-
Conviction Procedure Act prescribes either a remedy or a sanction for a post-conviction
court’s failure to comply with the time limits set out in the Act.” Paul Graham Manning
v. State, No. M2005-02876-CCA-R3-PC, 2007 WL 4116487, at *13 (Tenn. Crim. App.
Nov. 13, 2007) (citing Kelvin Wade Cloyd v. State, No. E2003-00125-CCA-R3-PC, 2003
WL 22477866, at *17 (Tenn. Crim. App. Nov. 3, 2003); Johnny O. Clark v. State, No.
W2001-02856-CCA-R3-PC, 2002 WL 1841630, at *10 (Tenn. Crim. App. Aug. 8,
2002)).

                                            -9-
       Petitioner maintains that the delay violated his due process rights. Due process in
the post-conviction setting requires that the petitioner have “‘the opportunity to be heard
at a meaningful time and in a meaningful manner.’” Stokes v. State, 146 S.W.3d 56, 61
(Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)). Although
Petitioner argued in multiple pro se pleadings, including his amended post-conviction
petition, that the delay in the proceedings was unconstitutional, he, through second
counsel, expressly withdrew all claims raised in all pleadings filed both pro se and
through counsel other than those claims specifically addressed during the evidentiary
hearings. At no time during the evidentiary hearings did Petitioner argue that the
proceedings were unreasonably delayed and that this delay constituted a due process
violation which resulted in prejudice.

       While the olfactory perception of the multiple delays is unpleasant, Petitioner’s
withdrawal of the claim and the failure to litigate the claim in the post-conviction court
results in waiver of the issue on appeal. See State v. Martin E. Hughes, No. E2006-
01415-CCA-R3-PC, 2017 WL 2423162, at *5 (Tenn. Crim. App. June 5, 2017) (holding
that the petitioner waived his claim that the delay in the post-conviction proceedings
violated his due process rights by failing to raise the claim in the post-conviction court).
We generally do not consider issues not presented to the post-conviction court and which
are raised for the first time on appeal. See Butler v. State, 789 S.W.2d 898, 902 (Tenn.
1990); Johnny O. Clark, 2002 WL 1841630, at *7; State v. Townes, 56 S.W.3d 30, 35
(Tenn. Crim. App. 2000), overruled on other grounds by State v. Terry, 118 S.W.3d 355,
359 (Tenn. 2003). The post-conviction court was not given the opportunity to make any
factual findings regarding the reasons for the delay or regarding any prejudice that may
have accrued to Petitioner. See Martin E. Hughes, 2017 WL 2423162, at *5.
Accordingly, we must conclude that this issue is waived.

        Petitioner asserts that “[t]he unusual circumstances of this case require the unusual
remedy of remanding for a new post-conviction hearing with the assistance of a Spanish-
speaking attorney.” He maintains that the translation services afforded to him during the
trial and post-conviction proceedings were inadequate. However, Petitioner did not raise
any issues in the post-conviction court challenging the adequacy of his interpreters at
either the trial proceedings or the post-conviction proceedings. He presented no evidence
at the post-conviction hearing regarding the interpreters’ ability to understand and
communicate with him during the trial and post-conviction proceedings, and the post-
conviction court did not have the opportunity to make factual findings regarding the
adequacy of such services. Therefore, this issue is waived. See, e.g. Butler, 789 S.W.2d
at 902.

       To the extent that Petitioner challenges second counsel’s failure to raise the issues
in the post-conviction court, we note that “‘there is no constitutional right to effective
                                           - 10 -
assistance of counsel in post-conviction proceedings.’” Stokes, 146 S.W.3d at 60
(quoting House, 911 S.W.2d at 712). In Stokes, our supreme court held that due process
does not entitle the petitioner to a second post-conviction petition raising additional
issues based on a claim that petitioner’s initial post-conviction counsel was ineffective in
failing to raise the issues during the first post-conviction proceedings. Id. at 60-61.
Likewise, in the present case, due process principles do not require a remand to allow
Petitioner to raise issues that were not raised by second counsel based upon a claim that
second counsel was ineffective in failing to do so. Petitioner is not entitled to relief
regarding this issue.

                                     CONCLUSION

       Upon reviewing the record, the parties’ briefs, and the applicable law, we affirm
the judgment of the post-conviction court.

                                              ____________________________________
                                              THOMAS T. WOODALL, JUDGE




                                           - 11 -
