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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