UGENIO RUBY RUIZ v. STATE OF TENNESSEE

11/30/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Remanded on August 7, 2020
UGENIO DEJESUS RUBY-RUIZ v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2011-C-2109 Steve Dozier, Judge
No. M2019-00062-CCA-R3-PC
The Tennessee Supreme Court has remanded this case for reconsideration in light of
Howard v. State, 604 S.W.3d 53 (Tenn. 2020). See Ugenio Dejesus Ruby-Ruiz v. State,
No. M2019-00062-CCA-R3-PC, 2019 WL 4866766 (Tenn. Crim. App. Oct. 2, 2019)
(“Ruby-Ruiz I”), case remanded (Tenn. Aug. 7, 2020). Upon further review, we conclude
that the supreme court’s holding in Howard does not apply to the untimely filing of an
application for permission to appeal to the supreme court. Consistent with the holding of
the majority in our previous opinion in this case, we reverse the judgment of the post-
conviction court and remand the case for the entry of an order granting the Petitioner a
delayed appeal for the limited purpose of filing an application for permission to appeal to
our supreme court. The Petitioner’s remaining allegations shall be held in abeyance in the
post-conviction court until the resolution of the delayed appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
Case Remanded
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., joined. JOHN EVERETT WILLIAMS, P.J., filed a dissenting opinion.
Manuel B. Russ, Nashville, Tennessee, for the appellant, Ugenio Dejesus Ruby-Ruiz.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Glenn Funk, District Attorney General; and Tammy Meade, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
On June 27, 2016, the Petitioner filed a petition for post-conviction relief, alleging,
in relevant part, that he received the ineffective assistance of appellate counsel. At the
post-conviction hearing, the parties did not dispute that counsel filed an untimely
application for permission to appeal to our supreme court pursuant to Tennessee Rule of
Appellate Procedure 11. Although counsel filed a motion requesting that the supreme court
accept a late-filed application for permission to appeal, along with the proposed
application, the supreme court entered an order stating that the application for permission
to appeal was untimely, that the motion to accept the late-filed application was denied, and
that the application was dismissed after the court declined to waive the time limit in the
interest of justice. See Ruby-Ruiz I, 2019 WL 4866766, at *9; see also State v. Ugenio
Ruby-Ruiz, No. M2013-01999-SC-R11-CD (Tenn. Mar. 23, 2016) (order). Although the
post-conviction court determined that appellate counsel provided deficient performance by
failing to file a timely application for permission to appeal to the supreme court, the court
determined that the Petitioner was required but failed to establish prejudice by clear and
convincing evidence. The post-conviction court, likewise, denied relief in connection with
the Petitioner’s remaining ineffective assistance of counsel allegations. See Ruby-Ruiz I,
2019 WL 4866766, at *7.
On appeal, a majority of this panel, relying upon Wallace v. State, 121 S.W.3d 653(Tenn. 2003), determined that the Petitioner was not required to show prejudice and that
presumptive prejudice entitled the Petitioner to a delayed appeal for the limited purpose of
filing a timely application for permission to appeal to the supreme court and held the
Petitioner’s remaining ineffective assistance allegations in abeyance pending the outcome
of the delayed appeal. See Ruby-Ruiz I, 2019 WL 4866766, at *10; see also Wallace, 121
S.W.3d at 658. The majority, likewise, concluded that the supreme court’s order denying
the motion to accept the late-filed application for permission to appeal did not reflect that
the court engaged in any substantive review of the allegations raised by appellate counsel.
Id. at *9. The supreme court’s order merely stated that the application was untimely, that
the court denied the motion to accept the proposed late-filed application, and that the court
would not waive the timely filing in the interest of justice. Id. The State sought permission
to appeal to the supreme court, arguing that the Petitioner should be required to establish
that prejudice resulted from appellate counsel’s deficient performance pursuant to
Strickland v. Washington, 466 U.S. 668 (1984). On August 7, 2020, the supreme court
entered an order granting the State’s application for review pursuant to Tennessee Rule of
Appellate Procedure 11. The order stated that the case was remanded to this court “for
reconsideration in light of this Court’s opinion in Antonio Howard v. State, No. W2018-
00786-SC-R11-PC, [2020 WL 4013131] (Tenn. July 16, 2020).” Ugenio Ruby Ruiz v.
State, No. M2019-00062-SC-R11-PC (Tenn. Aug. 7, 2020) (order).
Upon remand, the parties were directed to file supplemental briefs addressing the
issue of whether the holding in Howard applies in the context of counsel’s failure to file a
timely application for permission to appeal to the supreme court. The parties were likewise
directed to address a petitioner’s burden in establishing prejudice pursuant to Strickland if
this court were to conclude that Howard applies in this context. See Ugenio Dejesus Ruby-
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Ruiz v. State, No. M2019-00062-CCA-R3-PC (Tenn. Crim. App. Aug. 17, 2020) (order).
The Petitioner argues that Howard does not apply in this context and that the presumptive
prejudice standard espoused in United States v. Cronic, 466 U.S. 648 (1984), which was
the basis for our supreme court’s holding in Wallace, should apply. The State, however,
argues that Howard applies and that a petitioner should be required to establish prejudice
pursuant to Strickland by showing that the supreme court would have granted the
application for permission to appeal if it had been timely.
At the time Ruby-Ruiz I was filed, our supreme court had granted the State’s
application for permission to appeal in Howard but had not yet released its opinion. See
Antonio Howard v. State, No. W2018-00786-SC-R11-PC (Tenn. June 24, 2019) (order).
In Howard, the petitioner sought post-conviction relief on the basis that trial counsel had
failed to file a timely motion for new trial, which resulted in waiver of appellate review of
multiple issues raised on appeal from the conviction proceedings. See T.R.A.P. 3(e). The
post-conviction court determined that although counsel had provided deficient
performance by failing to file a timely motion, the petitioner failed to show he had been
prejudiced by the deficiency. Howard, 604 S.W.3d at 54-55.
On appeal, this court concluded pursuant to Wallace, binding precedent at the time,
that the failure to file a timely motion for new trial resulted in presumptive prejudice as
delineated in Cronic, and that the petitioner was entitled to a delayed appeal. Id.; see
Strickland, 466 U.S. at 668. In Howard, our supreme court, however, overturned its
previous holding in Wallace. The Howard court concluded that a petitioner is not entitled
to presumptive prejudice and must establish prejudice pursuant to Strickland when counsel
fails to file a timely motion for a new trial. Howard, 604 S.W.3d at 63; see Wallace, 121
S.W.3d at 658. The Howard court determined, “Where a failure by trial counsel of this
type occurs, a subsequent claim of ineffective assistance of counsel should be analyzed
under the Strickland analysis,” requiring a petitioner to establish that prejudice resulted
from counsel’s deficient performance. Howard, 604 S.W.3d at 63. Our review is limited
to whether this holding in Howard applies when counsel fails to file a timely Rule 11
application for permission to appeal to our supreme court.1
The Howard court expressed “consternation” with the presumptive prejudice
standard in the context of an untimely motion for new trial. Id. at 62. The court reasoned
that although counsel’s failure to file a timely motion for new trial results in waiver of
1
For the first time, the State raises in its supplemental appellate brief the allegation that the Petitioner’s
claim of ineffective assistance of appellate counsel is not cognizable for post-conviction relief. The State
is not permitted to raise an issue for the first time at this juncture and has waived appellate consideration of
the issue for failure to litigate it in the post-conviction court. See T.R.A.P. 36(a). Furthermore, the issue is
beyond the scope of the supreme court’s order remanding this case for consideration in light of Howard.
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plenary review of issues other than sufficiency of the evidence and sentencing, this “less-
than-full” appellate review is not a complete forfeiture of an appeal. Id., But cf. Roe v.
Flores-Ortega, 528 U.S. 648 (1984) (concluding that counsel’s failure to file a notice of
appeal resulted in a complete forfeiture of an appeal and that the petitioner was entitled to
relief). In essence, counsel’s failure to file a timely motion for new trial “limited the scope
of the . . . appeal, but . . . it did not deprive him of [the] right to . . . appeal.” Howard, 604
S.W.3d at 62. The court noted that in the absence of plenary review, a defendant is
“permitted to seek plain error review on additional issues not properly raised in the motion
for new trial,” although the appellate courts may decline to engage in a plain error analysis.
Id. The Howard court noted that a post-conviction court is “perfectly equipped to apply
the Strickland analysis” when counsel fails to file a timely motion for new trial because the
relevant issues are identified in the untimely motion for new trial and in the intermediate
appellate court’s opinion. Id. at 63.
However, an application for permission to appeal to our supreme court is not an
appeal as of right, as was the case in Howard. See T.R.A.P. 3. An appeal to the supreme
court is only by permission, and the court has full discretion whether to review a case from
an intermediate appellate court. See T.R.A.P. 11(a) (“An appeal by permission may be
taken . . . only on application and in the discretion” of the court.). The court has provided
limited guidance about its general focus in determining whether to grant an application for
permission to appeal, including the need for uniformity of decisions, to settle important
questions of law and of public interest, and to exercise the court’s supervisory authority.
Id. However, the guidance is “neither controlling nor fully measuring the court’s
discretion.” Id. Furthermore, only two of the five justices need to be “satisfied that the
application should be granted.” Id. at (e). We note that in Howard, the State sought
permission to appeal and “urged” the supreme court to “reconsider” the application of the
presumptive prejudice standard espoused in Wallace. Howard, 604 S.W.3d at 61.
As noted by the Howard court, a post-conviction court is well-suited to analyze the
issues for which plenary review was waived in an appeal from the conviction proceedings
as a result of an untimely motion for new trial. Determining whether a petitioner suffered
prejudice as a result of deficient performance in this context is a question of law that,
generally, can be determined by analyzing the previously waived issues pursuant to
Strickland. However, counsel’s failure to file a timely application for permission to appeal
to the supreme court is quite distinguishable. The supreme court has full discretion whether
to grant an application for permission to appeal. Determining whether the supreme court
will grant an application for permission to appeal is not a question of law that can be
determined after careful analysis. Although Tennessee Appellate Procedure Rule 11(a)
provides guidance regarding the reasons the court might grant an application for permission
to appeal, the reasons are neither absolute nor controlling. The supreme court has the
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authority to grant and to deny an application for permission to appeal for any reason. The
court has the authority to deny an application even though the application might raise a
relevant reason reflected in Rule 11(a). The court, furthermore, has the authority to grant
an application and to subsequently direct the parties to address an issue not raised in the
application or by the parties. The critical point is that the supreme court, and only the
supreme court, can determine whether it will grant or deny an application pursuant to Rule
11, and requiring a petitioner to show prejudice by establishing that the supreme court
would have granted an application for permission to appeal if it had been timely is an
impossible task. Likewise, requiring a post-conviction court or an intermediate appellate
court to attempt to determine whether the supreme court would have granted an application
if it had been timely is an exercise in speculation. The Tennessee Court of Criminal
Appeals is an intermediate, error-correction court. Unless the supreme court directs
otherwise, this court lacks the authority to substitute its judgment for that of the supreme
court relative to the grant or denial of an application for permission to appeal. Because we
may not properly speculate about the supreme court’s discretionary decision-making
processes, we conclude that the holding in Howard does not extend to an untimely
application for permission to appeal to our supreme court.
Because we conclude that the holding in Howard does not extend to an untimely
application for permission to appeal to the supreme court, the conclusions and
determinations in the previous majority and dissenting opinions remain the law of the case.
The judgment of the post-conviction court is reversed, and the case is remanded for the
entry of an order granting the Petitioner a delayed appeal for the purpose of filing an
application for permission to appeal pursuant to the Tennessee Rule of Appellate Procedure
11. The Petitioner’s remaining ineffective assistance of counsel allegations shall be held
in abeyance in the post-conviction court until the resolution of the delayed appeal.
_____________________________________
ROBERT H. MONTGOMERY, JR., JUDGE
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