         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs August 14, 2013

            ANTONIO ANGEL ONATE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                         No. 2010-C-1773 Monte Watkins, Judge



                   No. M2013-00531-CCA-R3-PC - Filed August 28, 2013


Petitioner, Antonio Angel Onate, appeals from the Davidson County Circuit Court’s
summary dismissal of his petition for post-conviction relief after a 2011 guilty plea to
facilitation to sell cocaine weighing less than .5 grams. Petitioner argues that the trial court
erred by concluding that the petition was untimely and that the one-year statute of limitations
was not tolled. We affirm the judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and R OBERT W. W EDEMEYER, JJ., joined.

Melissa Anderson, Nashville, Tennessee, for the appellant, Antonio Angel Onate.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson, District Attorney General, and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                           OPINION

                                      Factual Background

        Petitioner, a foreign national from Mexico, pled guilty to facilitation of the sale of less
than .5 grams of cocaine on September 15, 2011, and received a four-year sentence. He filed
a petition for post-conviction relief on January 3, 2013, alleging that he was denied effective
assistance of counsel because counsel did not advise him of immigration consequences that
might result from his guilty plea. In the petition he argued that Padilla v. Kentucky, 559 U.S.
356 (2010), retroactively applied in post-conviction proceedings. Also, he claimed that due
process principles required tolling the statute of limitations for post-conviction relief. The
post-conviction court dismissed the petition as untimely and concluded that Padilla did not
apply retroactively. This appeal followed.

        Under the Post-conviction Procedure Act, a petition for post-conviction relief must
be filed 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 became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. § 40-
30-102(b). Tennessee Code Annotated section 40-30-102(b) states:

       (b) No court shall 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
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.


       In addition to the exceptions set out in the statute, the courts in this State have found
that due process concerns can toll the statute of limitations in certain factual situations. See
Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d 297 (Tenn.
1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). In this line of cases, the court
focused on the fact that the pervasive theme in the petitioner’s grounds for relief is that
circumstances beyond a petitioner’s control prevented the petitioner from filing the petition

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for post-conviction relief within the statute of limitations. Smith v. State, 357 S.W.3d 322,
358 (Tenn. 2011).

        Recently in Padilla, the United States Supreme Court held that an attorney rendered
deficient performance when the attorney failed to advise a defendant about the fact that his
guilty plea to an offense provided for deportation under federal immigration law. Padilla,
559 U.S. at ___, 130 S.Ct. at 1483-84. This is the first prong of an ineffective assistance of
counsel claim. Id.; see Strickland v. Washington, 466 U.S. 668 (1984). Padilla also noted
that in cases where the consequences of criminal charges are not clear, an attorney must
advise his client of the risk of adverse immigration consequences. 559 U.S. at ___, 130 S.Ct.
at 1483. The Court rejected the notion that a distinction could be drawn between direct and
collateral consequences of criminal proceedings in cases involving immigration issues for
the purposes of defining counsel’s obligation to provide effective assistance.1 Id. 559 U.S.
at ___, 130 S. Ct. at 1481. Before the Padilla decision, Tennessee was one of the
jurisdictions which held that deportation was a collateral consequence of a guilty plea, and
therefore 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).

        The Supreme Court recently clarified that although Padilla announced a new rule of
law, it was not to be applied retroactively. Chaidez v. United States, ___ U.S. ___, 133 S.
Ct. 1103, 1107 (2013). Thus, because Padilla 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)(1).

        If Petitioner herein is entitled to have his claim considered on its merits, due process
must require tolling the statute of limitations. In order to determine if due process requires
tolling of the statute of limitations we must weigh 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 make that determination 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




       1
           Several state courts and federal circuits subscribe to this line of reasoning.

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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 specifically rejected arguments that the statute of limitations should
be tolled on due process grounds for a Padilla claim because it is not “later arising” when
it exists at the time of a defendant’s guilty plea. See, e.g., Clayton Bezuidenhout v. State, No.
M2012-01114-CCA-R3-PC, 2013 WL 1965992 (Tenn. Crim. App., at Nashville, May 13,
2013); Ivano Stamegna v. State, No. E2011-00107-CCA-R3-PC, 2011 WL 5971275, at *6-7
(Tenn. Crim. App., at Knoxville, Nov. 29, 2011). Moreover, lack of knowledge or late
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). In other words, if Petitioner herein is entitled to due
process tolling, it must be on a basis other than his Padilla claim.

        Considering the Sands factors, we note that the Petitioner entered his guilty plea on
September 15, 2011, and the judgment became final thirty days later on October 15, 2011.
Petitioner’s claim for ineffective assistance existed at the time of the guilty plea, and nothing
prevented him from filing his petition for post-conviction relief within the limitations period.
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. See Ricardo Rodriguez v. State, No. M2011-02068-CCA-R3-PC, 2012 WL 4470675,
at *7-8 (Tenn. Crim. App., at Nashville, Sept. 27, 2012) (concluding that although the
petitioner was unaware of the deportation consequences of his guilty plea, the claim existed
at the time he entered his guilty plea and was not later-arising). To the contrary, Petitioner
entered his plea post-Padilla. We conclude that Petitioner herein has failed to show a
later-arising ground for relief that permitted the post-conviction court’s tolling of the statute
of limitations on due process grounds. Consequently, the judgment of the post-conviction
court is affirmed.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE

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