Ricardo Rodriguez v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 19, 2012 Session

RICARDO RODRIGUEZ v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2002-B-1129 Seth Norman, Judge

No. M2011-02068-CCA-R3-PC - Filed September 27, 2012

The petitioner, Ricardo Rodriguez, brings a post-conviction challenge to his 2004 guilty plea

for sale of a controlled substance based on the United States Supreme Court’s decision in

Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), in which the Court concluded that trial

counsel’s failure to advise a defendant that his guilty plea would result in deportation

amounted to deficient representation. In this case, the post-conviction petition was not filed

within the one-year limitations period specified by the Tennessee Post-Conviction Procedure

Act, and it was dismissed by the post-conviction court based on the statute of limitations at

Tennessee Code Annotated § 40-30-102(a). The petitioner contends that Padilla should be

retroactively applied and that his claim falls into an exception to the statute of limitations for

new constitutional rules with retrospective application. See T.C.A. § 40-30-102(b)(1) (2006).

Alternatively, the petitioner claims that due process tolls the statute of limitations or that the

rule is an old rule with retroactive application. The petitioner also challenges the knowing

and voluntary nature of his plea and brings a habeas corpus challenge based on his

incomplete knowledge of English. We conclude that, because Padilla does not warrant

retroactive application and because due process does not require the statute of limitations to

be tolled, the petition was time-barred. We further conclude that the post-conviction court

properly denied relief on the petitioner’s remaining claims and affirm the judgment of the

post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON

and T HOMAS T. W OODALL, JJ., joined.

Sean Lewis and Patrick G. Frogge, Nashville, Tennessee, for the appellant, Ricardo

Rodriguez.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney

General; Victor S. Johnson III, District Attorney General; and Renee Erb, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural History

The petitioner’s post-conviction appeal stems from his April 28, 2004 guilty plea to

sale of a controlled substance in violation of Tennessee Code Annotated section 39-17-417,

a Class B felony. The petitioner asserts that his trial attorneys knew that he was not a United

States citizen and that they nevertheless advised him to plead guilty without informing him

of the potential adverse immigration consequences of his plea, despite readily available

information showing that such a conviction would result in automatic deportation. One of

his trial lawyers submitted an affidavit attached to a supplement to the petition, confirming

that trial counsel did not discuss any immigration consequences with the petitioner. At the

time the petitioner entered his guilty plea, the trial court asked him if he was suffering from

any mental illness. Because of his imperfect understanding of the English language, the

petitioner responded that he was, although he suffered from no mental illness at the time.

Approximately two months later, at his sentencing hearing, the petitioner’s counsel asserted

he did not need a translator; however, the trial court determined during cross-examination

that he was in need of a translator. He was sentenced to eight years on community

corrections and was required to serve twenty-six weekends in prison.

The petitioner, a legal resident of the United States, left the country to visit relatives

in Cuba on October 11, 2010, and was detained by immigration officials on November 23,

2010, when he was served notice that deportation proceedings were being commenced

against him. This was when he discovered the adverse immigration consequences of his

plea. The petitioner asserts that, had his counsel informed him of these consequences, he

would not have pled guilty. In support of this, he includes with his petition various sources

citing human rights violations in Cuba and asserts that, as an opponent to the current regime,

he would be subject to such abuses. On March 30, 2011, the petitioner brought the instant

petition. He contends that he is entitled to relief based on the ineffective assistance of his

counsel and asserts that the statute of limitations should be tolled both under statute and

based on due process. The petitioner further asserts that his plea was neither knowing nor

voluntary because of his counsel’s deficiency and because he did not understand the judge

at his plea hearing due to his imperfect English. Alternatively, he requests that his petition

be treated as a petition for a writ of error coram nobis or habeas corpus. The post-conviction

court denied relief, finding that the action was time-barred. The post-conviction court also

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concluded that no habeas corpus relief was warranted because the judgment was not void on

its face and that the coram nobis action would not lie.

The petitioner appeals the denial of his post-conviction petition, asserting that he is

entitled to relief because: (1) Padilla created a new rule of constitutional law which applies

retroactively as a matter of state and not federal law, and his post-conviction claim is,

therefore, not barred by the statute of limitations; (2) alternatively, Padilla did not announce

a new rule for the purposes of Teague v. Lane, 489 U.S. 288 (1989) and, therefore, the rule

applies retroactively; (3) due process requires the statute of limitations to be tolled based on

counsel’s alleged deficiency; (4) his plea was not knowing or voluntary due to his inability

to comprehend the proceedings, which were conducted in English; and (5) he is entitled to

habeas corpus relief based on his inability to comprehend the proceedings. The State

responds that Padilla announced a new rule of constitutional law that does not apply

retroactively and that due process does not require tolling the statute of limitations because

his claims are not “later-arising.” The State also asserts that his claims related to his inability

to understand English are time-barred under the post-conviction statutes and not appropriate

for habeas corpus relief.

I. Post-Conviction Padilla Claim

A. Timely Filing Under the Statutory Exception

A post-conviction petition must be brought within one year of the date of the final

action of the appellate court (if an appeal is taken) or within one year of the date the

judgment becomes final, and failure to file within the limitations period bars relief and

removes the case from the court’s jurisdiction. T.C.A. § 40-30-102(a). However, the statute

allows the filing of a petition that would otherwise be time-barred when, as pertinent here:

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[.]

T.C.A. § 40-30-102(b)(1). The petition was filed within one year of the United States

Supreme Court’s decision in Padilla; accordingly, the statute of limitations does not bar

relief if Padilla established a new constitutional right and if retroactive application is

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required. We note that the issue we must decide is currently before United States Supreme

Court. See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, Chaidez v.

United States, 132 S. Ct. 2101 (2012) (No. 11-820).

1. Retroactivity Under Teague

In Tennessee, prior to the Padilla decision, Bautista v. State, 160 S.W.3d 917 (Tenn.

Crim. App. 2004) governed a claim of ineffective assistance of counsel based on counsel’s

failure to advise the defendant of deportation consequences of a plea. In Bautista, this court

concluded that deportation was a collateral consequence of a guilty plea and that counsel’s

failure to advise a defendant regarding such a collateral consequence did not constitute

ineffective assistance of counsel. Id. at 922.

In Padilla, however, noting that it had never applied a distinction between direct and

collateral consequences when determining constitutionally effective representation, the

United States Supreme Court concluded that deportation, which was “intimately related” to

criminal proceedings, was uniquely difficult to classify and that the distinction did not apply.

Padilla, 130 S. Ct. at 1481-82. The Court concluded that counsel had a duty to advise the

defendant of possible deportation where the consequence was “truly clear” and that counsel

had a duty to advise the defendant that the charges may carry adverse immigration

consequences when the law was “not succinct and straightforward.” Id. at 1483.

The Padilla Court confronted concerns that the decision would result in a flood of

litigation by noting the difficulty of proving both deficiency and prejudice under Strickland.

Id. at 1485. The Court recalled that it had confronted similar concerns in Hill v. Lockhart,

474 U.S. 52, 59-60 (1985) (holding that Strickland applied to a challenge to a guilty plea

based on ineffective assistance of counsel), but “[a] flood did not follow in that decision’s

wake.” Padilla at 1484-85. The Court further asserted that relief would require “a petitioner

[to] convince the court that a decision to reject the plea bargain would have been rational

under the circumstances.” Id. at 1485.

We initially examine whether an appellate court decision announces a new rule of law

under the principles laid out in Teague. See Van Tran v. State, 66 S.W.3d 790, 810-11

(Tenn. 2001). Under Teague, “a case announces a new rule when it breaks new ground or

imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at

301. An alternative formulation is that a rule is new “if the result was not dictated by

precedent existing at the time the defendant’s conviction became final.” Id. A new rule will

be applied retroactively if “it places ‘certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to proscribe.’” Id. at 311 (quoting

Mackey v. United States, 401 U.S. 667, 692 (1971)). The new rule may also be applied

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retroactively if it is a watershed rule of criminal procedure, and it requires the observance of

procedures that are “implicit in the concept of ordered liberty.” Id. (quoting Mackey, 401

U.S. at 693). Teague quoted Mackey for the proposition that typically, a proceeding free

from constitutional error at the time it becomes final is fundamentally fair, but an occasional

altering of the understanding of necessary bedrock procedural elements will render a

conviction unfair. Id. In deciding whether a rule is “new,” Teague requires a court to first

determine the date the defendant’s conviction became final, and then analyze whether a court

would have felt compelled under existing precedent to recognize the constitutional rule.

O’Dell v. Netherland, 521 U.S. 151, 156 (1997). If not, the rule is new and may only be

applied retroactively under one of the circumstances mentioned above. Id. at 156-57.

The Teague standard for retroactivity is difficult to satisfy. See Whorton v. Bockting,

549 U.S. 406, 407 (2007) (noting that Gideon v. Wainwright, 372 U.S. 335 (1963) was the

only case the Court had identified as a watershed rule meriting retroactive application).

Although the Padilla opinion, in rejecting an argument that the floodgates of litigation would

be opened, seems to anticipate some sort of retroactive application, we, nonetheless,

conclude that, under Teague, retroactive application is not warranted. See Chaidez, 655 F.3d

at 694 (“[W]e are hesitant to depart from our application of the test set forth in Teague and

its progeny – which points clearly in the direction of new rule – based on inferences from

indirect language.”). While the rule was not, previous to the Padilla decision, dictated by

precedent, see Padilla, 130 S. Ct. at 1491 (noting that “the Court’s view has been rejected

by every Federal Court of Appeals to have considered the issue thus far”) (Alito, J., and

Roberts, C.J., concurring), neither is it a watershed rule along the lines of Gideon.

Many appellate decisions in Tennessee which have examined the issue have

concluded that Padilla announced a new rule which should not be applied retroactively under

Teague. See Lopez v. State, No. M2011-02349-CCA-R3-PC, 2012 WL 2394148, at *2-3

(Tenn. Crim. App. June 26, 2012); Cantu v. State, No. M2011-02506-CCA-R3-PC, 2012 WL

2323243, at *2 (Tenn. Crim. App. June 18, 2012);Guevara v. State, No. W2011-00207-CCA-

R3-PC, 2012 WL 938984, at *3 (Tenn. Crim. App. Mar. 13, 2012); Stamegna v. State, No.

E2011-00107-CCA-R3-PC, 2011 WL 5971275, at *5 (Tenn. Crim. App. Nov. 29, 2011);

Diotis v. State, No. W2011-00816-CCA-R3-PC, 2011 WL 5829580, at *2-3 (Tenn. Crim.

App. Nov. 17, 2011).

We adhere to the prior decisions of this Court finding that, under Teague, Padilla

established a new rule that neither placed conduct beyond the power of the criminal

law-making authority nor announced a watershed rule of criminal procedure that implicated

the fundamental fairness of the trial. E.g., Guevara v. State, 2012 WL 938984, at *3; see

also, e.g., United States v. Amer, 681 F.3d 211, 214 (5th Cir. 2012); United States v. Mathur,

No. 11-6747, 2012 WL 2819603, at *4 (4th Cir. July 11, 2012); Figuereo-Sanchez v. United

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States, 678 F.3d 1203 (11th Cir. 2012) (assuming that Padilla announced a new rule and

concluding it was not a watershed rule warranting retroactivity); United States v. Chang

Hong, 671 F.3d 1147, 1159 (10th Cir. 2011); Chaidez, 655 F.3d at 694 (concluding Padilla

announced a new rule). But see United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011)

(finding that Padilla announced an old rule under Teague).

2. Retroactivity Under State Law

Although we conclude that Padilla does not apply retroactively under Teague, the

petitioner correctly states that states are not bound by the retroactivity analysis of Teague.

See Danforth v. Minnesota, 552 U.S. 264, 282 (2008) (holding that Teague “does not in any

way limit the authority of a state court, when reviewing its own state criminal convictions,

to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague”). While

we have concluded that Padilla does not require retroactive application under federal

constitutional law, the state of Tennessee is free to give the new rule broader retroactive

application.

Tennessee Code Annotated section 40-30-122 provides:

For purposes of this part, a new rule of constitutional criminal

law is announced if the result is not dictated by precedent

existing at the time the petitioner’s conviction became final and

application of the rule was susceptible to debate among

reasonable minds. A new rule of constitutional criminal law

shall not be applied retroactively in a post-conviction proceeding

unless the new rule places primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe or requires the observance of fairness safeguards that

are implicit in the concept of ordered liberty.

Under the statute, the rule announced is a new one “if the result is not dictated by precedent

existing at the time the petitioner’s conviction became final” and if “application of the rule

was susceptible to debate among reasonable minds.” T.C.A. § 40-30-122. Tennessee

precedent prior to Padilla, in the form of Bautista, 160 S.W.3d at 922, in fact dictated the

opposite result, and Tennessee was not alone in rejecting this claim. See Padilla, 130 S. Ct.

at 1481 n.9. We conclude that the rule is new.

Retroactivity under the statutory analysis then requires that the new rule either

“place[] primary, private individual conduct beyond the power of the criminal law-making

authority to proscribe” or “require[] the observance of fairness safeguards that are implicit

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in the concept of ordered liberty.” T.C.A. § 40-30-122. The first avenue to retroactivity is

essentially the same as the test elaborated in Teague, and the rule announced in Padilla does

not warrant retroactive application under this analysis. The second avenue differs from

Teague in that it does not explicitly require a “watershed rule”; however, like Teague, it

implicates the “concept of ordered liberty” and fundamental fairness. The Tennessee

Supreme Court has previously described the standard as “virtually identical” to the federal

standard. See State v. Gomez, 163 S.W.3d 632, 651 n.16 (Tenn. 2005), overruled on other

grounds by Gomez v. Tennessee, 549 U.S. 1190 (2007). We conclude that this standard is

not so different from the standard in Teague as to warrant a different conclusion in this

instance.

As noted above, appellate decisions in Tennessee which have examined the issue have

concluded that Padilla announced a new rule which should not be applied retroactively. We

are persuaded by the reasoning and uniformity of the Tennessee authority cited above, and

we conclude that Padilla announced a new rule of constitutional law which should not be

applied retroactively under either state or federal retroactivity analysis. We note that if we

were to accept the petitioner’s alternative argument that Padilla did not announce a new rule,

there would be no statutory basis for tolling the statute of limitations because Tennessee

Code Annotated section 40-30-102(b)(1) requires an appellate decision “establishing a

constitutional right that was not recognized as existing at the time of trial,” and his action

would consequently be time-barred.

Although Tennessee Code Annotated section 40-30-122 outlines the retroactive

application of a new rule to post-conviction proceedings, we have previously recognized that

Van Tran, 66 S.W.3d at 811, analyzed retroactivity without relying on the statutory language.

In Bush v. State, the court noted that “the standard utilized in Van Tran varies somewhat

from the statutory language,” and that the Tennessee Supreme Court used a common law

analysis in determining whether to apply a rule retroactively under state law. Bush v. State,

No. M2011-02133-CCA-R3-PC, 2012 WL 2308280, at *5, 7 (Tenn. Crim. App. June 15,

2012) (noting that “the Van Tran court did not explain its reliance on Meadows, a case that

predates the relevant provision of the Act, as opposed to the relevant statutory language now

set forth in section -122”). Van Tran announced a new rule of state constitutional law and

relied on Meadows v. State, 849 S.W.2d 748, 755 (Tenn. 1993), for the standard of

retroactivity on post-conviction review. Meadows predated Danforth and concluded that

“states are bound by federal retroactivity analysis when a new federal rule is involved.” Id.

at 754. Nevertheless, because it appears that any variation from the statutory analysis under

either Van Tran or Meadows only applies to a new rule of state constitutional law, we are not

compelled to undertake the dual analysis of the Court in Bush. However, we note that the

result would be the same under the common law analysis in Van Tran.

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Regardless of whether the Van Tran analysis tracks the statutory language, the court

there also examined whether the result was dictated by precedent at the time the defendant’s

conviction became final, Van Tran, 66 S.W.3d at 811, and, as we have noted above, Padilla

created a new rule under this standard. According to Van Tran, “‘a new state constitutional

rule is to be retroactively applied to a claim for post-conviction relief if the new rule

materially enhances the integrity and reliability of the fact finding process of the trial.’” Id.

at 811 (quoting Meadows, 849 S.W.2d at 755). In Bush v. State, 2012 WL 2308280, at *8,

this court held that “many factors enter into a defendant’s choice to plead guilty.” Bush

examined the retroactivity of the rule announced in Ward v. State, 315 S.W.3d 461 (Tenn.

2010) that failure to inform a defendant pleading guilty to a sexual offense regarding the

lifetime supervision requirement rendered the plea constitutionally infirm. Ultimately, Bush

concluded that lifetime supervision was “not so onerous that a defendant’s ignorance about

it renders his plea at odds with fundamental fairness or seriously undercuts the integrity and

reliability of the plea process.” Bush, 2012 WL 2308280, at *8. Deportation, involving

potentially permanent separation from loved ones and home, does not present such an easy

case. Nevertheless, we are guided by Bush to conclude that the accuracy of the fact-finding

process – in a guilty plea, typically the trial court’s determination that there is a factual basis

for the plea – is not implicated by the “defendant’s knowledge, or lack thereof” regarding

potential deportation consequences. Id.; see also United States v. Mathur, 685 F.3d 396, 400

(4th Cir. 2012) (finding that lack of awareness of potential deportation, while unjust,

“nevertheless does not cast doubt on the verity of the defendant’s admission of guilt or the

propriety of the sentence imposed pursuant to the plea agreement”).

B. Due Process Tolling

In addition to the statutory exception, our courts have recognized that on occasion, due

process requires that the statute of limitations be tolled. Williams v. State, 44 S.W.3d 464,

468 (Tenn. 2001); Guevara v. State, 2012 WL 938984, at *1 (Tenn. Crim. App. 2012).

Inherent in due process is “‘a reasonable opportunity to have the claimed issue heard and

determined.’” Sands v. State, 903 S.W.2d 297, 300 (Tenn. 1995) (quoting Burford v. State,

845 S.W.2d 204, 208 (Tenn. 1992)). Accordingly, despite statutory language that “the statute

of limitations shall not be tolled for any reason, including any tolling or saving provision

otherwise available at law or equity,” due process may require tolling when circumstances

beyond the petitioner’s control preclude raising the post-conviction claims. T.C.A. §

40-30-102(a); Williams, 44 S.W.3d at 469. In evaluating whether due process should toll the

statute of limitations on a post-conviction action,

courts should utilize a three-step process: (1) determine when

the limitations period would normally have begun to run; (2)

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determine whether the grounds for relief actually arose after the

limitations period would normally have commenced; and (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, 903 S.W.2d at 301. “To determine whether a petitioner was denied a reasonable

opportunity to present a claim, a court must balance the liberty interest in collaterally

attacking the constitutional violations occurring during the conviction process against the

State’s legitimate interest in preventing the litigation of stale and fraudulent claims.” Wright

v. State, 987 S.W.2d 26, 28 (Tenn. 1999).

In Stamegna v. State, 2011 WL 5971275, at *3, the petitioner argued that due process

required tolling the statute of limitations on his claim that his counsel was ineffective in

failing to advise him of the deportation consequences of the plea he had entered fourteen

years before. This court analyzed his claim under Sands and determined that it was not later-

arising. The court noted that “[t]he possibility of deportation existed at the time the

Petitioner entered his plea, and the Petitioner had knowledge of this law due to the

immigration hold placed on him while in federal custody.” Id. at *6. Although the court

mentioned the petitioner’s knowledge of federal deportation law, it also asserted that

“[m]erely discovering that a claim exists, or lacking the knowledge that there may be a claim,

does not make the claim ‘later-arising.’” Id. The court further concluded that the fact that

the decision in Padilla was not issued until March 31, 2010 also did not make the claim

“later-arising.” Id.

Stamegna is not alone in concluding that “mere lack of knowledge that a claim exists

does not toll the statute of limitations.” Jacobs v. State, No. M2009-02265-CCA-R3-PC,

2010 WL 3582493, at *3 (Tenn. Crim. App. Sept. 15, 2010). We have approved the

principle that “lack of knowledge of [a] ground for post-conviction relief [does] not toll the

statute given the state’s interests in preventing litigation of stale and fraudulent claims and

in insuring administrative efficiency and economy.” Brown v. State, 928 S.W.2d 453, 457

(Tenn. Crim. App. 1996). We have also previously “refuse[d] to engraft a discovery rule

over the statute of limitations in post-conviction cases.” Passarella v. State, 891 S.W.2d 619,

625 (Tenn. Crim. App. 1994), superseded by statute as stated in State v. Newman, No.

02C01-9707-CC00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App. Mar. 11, 1998). This

court came to a similar conclusion in Hill v. State, No. E2005-00968-CCA-R3-PC, 2006 WL

389667, at *4 (Tenn. Crim. App. Feb. 16, 2006), where the defendant alleged due process

tolling based on his discovery that his conviction could enhance his federal sentence when

it was applied to enhance the sentence.

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The limitations period for the petitioner’s claim began to run thirty days after the entry

of his guilty plea in 2004. See State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996).

While the rule in Padilla had not yet been announced at the time that the statute of limitations

ran on the petitioner’s claim, nothing – including this court’s decision in Bautista – prevented

him from raising the issue and seeking relief from the United States Supreme Court as Mr.

Padilla eventually did. See State v. Gomez, 163 S.W.3d 632, 650-651 (Tenn. 2005) (noting

that the Tennessee Supreme Court was not the final arbiter of federal constitutional law and

that a defendant who is dissatisfied with an unfavorable state decision has the option to file

a federal appeal).1 Although he was not aware of the deportation consequence of his

conviction at the time his plea was entered, precedent dictates that the discovery rule does

not apply to post-conviction claims, and we are constrained to conclude that his claim existed

at the time of his guilty plea and is not later-arising. Accordingly, we do not proceed to step

three of the Sands analysis. Therefore, the petitioner is not entitled to due process tolling of

the statute of limitations.

II. Post-Conviction Claim Based on Inability to Comprehend the Proceedings

Unlike his Padilla claim, the petitioner’s claim that he is entitled to post-conviction

relief due to the fact that his plea was not knowing and voluntary because of his inability to

comprehend the language is not based on any purported change in constitutional law, and he

alleges no basis for tolling the statute of limitations. In addition, a ground for relief is

generally waived if the petitioner personally or through an attorney failed to present it for

determination in any proceeding before a court of competent jurisdiction in which the ground

could have been presented. T.C.A. § 40-30-106(g). A post-conviction court is required to

dismiss a petition “[i]f the facts alleged . . . fail to show that the claims for relief have not

been waived or previously determined.” T.C.A. § 40-30-106(f). We conclude that this claim

is both untimely and waived.

III. Habeas Corpus and Coram Nobis

The petitioner next asserts that he is entitled to habeas corpus relief based on the fact

that he was unable to adequately comprehend the language of the proceedings of his guilty

plea. Although the statutory language authorizing the writ of habeas corpus appears broad,

‘[h]abeas corpus under Tennessee law has always been, and remains, a very narrow

procedure.’” Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993) (quoting Luttrell v. State,

644 S.W.2d 408, 409 (Tenn. Crim. App. 1982)). In order to prevail, the petitioner must

1

Bautista was decided in September 2004, after the petitioner’s April 2004 plea. However, even if

his plea had been entered after Bautista, “criminal defendants routinely raise and preserve for federal review

issues this Court has previously rejected.” Gomez, 163 S.W.3d at 651.

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demonstrate that the judgment is void rather than merely voidable. Hogan v. Mills, 168

S.W.3d 753, 755 (Tenn. 2005). “A void judgment is one in which the judgment is facially

invalid because the court lacked jurisdiction or authority to render the judgment or because

the defendant’s sentence has expired.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A

voidable sentence, on the other hand “is valid on its face and requires evidence beyond the

face of the record or judgment to demonstrate its invalidity.” Hogan, 168 S.W.3d at 755. If

the judgment is not void on its face, the trial court may dismiss it summarily. Id. In this case,

the petitioner shows no reason that his judgment is facially void; to prevail, he would have

to introduce evidence regarding his knowledge of the language. The post-conviction court

did not err in dismissing this claim.

Although the petitioner raised a coram nobis claim in his post-conviction petition,

neither of his briefs to this Court address the claim. Under Tennessee Court of Criminal

Appeals Rule 10(b), claims not supported by argument, citations to authority, or references

to the record are considered waived. Accordingly, we conclude the petitioner has abandoned

this claim.

CONCLUSION

Because Padilla does not warrant retroactive application and due process does not

operate to toll the limitations period, the petitioner’s claims related to his counsel’s failure

to advise him of the deportation consequences of his plea are time-barred, as is his post-

conviction claim based on his inability to understand English. He is furthermore not entitled

to habeas corpus relief. Accordingly, we affirm the judgment of the post-conviction court.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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