        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 4, 2011

             KONSTANTINOS DIOTIS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                           No. P-35627   Chris Craft, Judge




               No. W2011-00816-CCA-R3-PC - Filed November 17, 2011


The petitioner, Konstantinos Diotis, appeals from the dismissal of his petition for post-
conviction relief as time-barred. In this appeal, the petitioner contends that application of
the statute of limitations in his case is inappropriate because (1) the United States Supreme
Court decision in Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010), should be applied
retroactively and (2) principles of due process require the tolling of the statute of limitations.
The petitioner waived his claim of due process tolling by failing to present it to the post-
conviction court. Further, because we conclude that Padilla should not be applied
retroactively, we affirm the judgment of the post-conviction court dismissing the petition as
untimely.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Leslie I. Ballin and Richard S. Townley, Memphis, Tennessee, for the appellant,
Konstantinos Diotis.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                           OPINION

               From the facts averred in his January 2011 petition for post-conviction relief,
we are informed the petitioner, a native citizen of Greece then holding lawful permanent
resident status in the United States, pleaded guilty to misdemeanor possession of a controlled
substance in the Shelby County General Sessions Court on September 18, 2002. He was
given a sentence of “approximately 28 days” and ordered to pay a $750 fine. Apparently as
a result of his guilty plea and conviction, the petitioner “now faces adverse immigration
consequences including, but not limited to, removal from the United States.” Citing Padilla
v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473 (2010), the petitioner asserted that his counsel’s
failure to inform him of the potential for deportation rendered his guilty plea unknowing and
involuntary. The petitioner acknowledged that his petition was filed outside the one-year
statute of limitations applicable to petitions for post-conviction relief, but he contended that
his action was not time-barred because it fit within one of the statutory exceptions to the rule.
Specifically, he claimed that Padilla recognized a new constitutional right requiring
retroactive application. See T.C.A. § 40-30-102(b)(1) (2006).

              In its response to the petition, the State asserted that retroactive application of
the Padilla ruling was not warranted under the reasoning of Teague v. Lane, 489 U.S. 288
(1989). Because Padilla should not be applied retroactively, the State argued, the petition
was time-barred.

              The post-conviction court determined that retroactive application of Padilla
was not warranted because the ruling neither placed conduct “beyond the power of the
criminal law-making authority” nor represented a “watershed rule[] of criminal procedure.”
The court concluded that because retroactive application of Padilla was not warranted, the
petitioner had “failed to satisfy any applicable exception” to the post-conviction statute of
limitations.

                In this appeal, the petitioner contends that Padilla recognized a new
constitutional right not recognized at the time of his guilty plea and that the ruling should be
applied retroactively. He also asserts, for the first time, that principles of due process require
the tolling of the statute of limitations in his case. The State maintains that Padilla is not
entitled to retroactive application and that the petitioner has waived his claim of due process
tolling by raising the issue for the first time on appeal.

               We need not tarry long over the petitioner’s claim of due process tolling
because he has presented the claim for the first time on appeal. See State v. Johnson, 970
S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are
considered waived.”); see also State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) (“[I]t is
incumbent upon a petitioner to include allegations of fact in the petition establishing either
timely filing or tolling of the statutory period,” and the “[f]ailure to include sufficient factual
allegations of either compliance with the statute or [circumstances] requiring tolling will
result in dismissal.”). As a result, the petitioner has waived our consideration of whether
principles of due process require the tolling of the statute of limitations in this case.

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               Code section 40-30-102 also provides statutory exceptions to the statute of
limitations:

               (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 [s]upreme [c]ourt 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.

Id. § 40-30-102(b). The petitioner claims that the ruling in Padilla satisfies the requirements
of Code section 40-30-102(b)(1) and that his petition, filed within one year of the Padilla
ruling, is thus timely.

               In Padilla, the United States Supreme Court concluded for the first time “that
counsel must inform her client whether his plea carries a risk of deportation” and that the
failure to do so is deficient performance under the standard announced in Strickland v.
Washington, 466 U.S. 668 (1984). Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1486
(2010). Recently, another panel of this court concluded that although Padilla established a
new rule of law, see Gerardo Gomez v. State, No. E2010-01319-CCA-R3-PC, slip op. at 5
(Tenn. Crim. App., Knoxville, May 12, 2011), the ruling was not entitled to retroactive
application because it did not “exempt those subject to deportation from the criminal
lawmaking authority” and “was not a watershed rule of criminal procedure essential to the
fairness of a proceeding,” id., slip op. at 6. We see no grounds to depart from this reasoning.



                                               -3-
               Because the ruling in Padilla is not entitled to retroactive application, the
petitioner has failed to establish that his otherwise untimely petition for post-conviction relief
fits within one of the statutory exceptions to the statute of limitations for filing a petition for
post-conviction relief. Accordingly, the judgment of the post-conviction court summarily
dismissing the petition is affirmed.

                                                      _________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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