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Echeveria v. State

Court of Criminal Appeals of Tennessee, Nashville

July 25, 2017

DAVID DELGADO ECHEVERIA
v.
STATE OF TENNESSEE

          Session January 10, 2017.

         Appeal from the Criminal Court for Wilson County No. 09-CR-522 Brody N. Kane, Judge.

         Petitioner, David Delgado Echeveria, pled guilty to the possession of 300 grams or more of cocaine with the intent to manufacture, sell, or deliver. Over five years later, he filed a petition for post-conviction relief, asserting that his attorney had failed to advise him of the potential immigration consequences of his plea. The post-conviction court dismissed the petition for failure to file within the statutory limitations period, and Petitioner appeals. We conclude that the petition was filed outside the limitations period and that Petitioner has not shown he is entitled to due process tolling. The judgment of the post-conviction court is affirmed.

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

          Joseph D. Baugh, Franklin, Tennessee, for the appellant, David Delgado Echeveria.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Facts

         Petitioner was indicted in Wilson County on February 10, 2009, and was charged with the possession of 300 or more grams of cocaine with intent to manufacture, sell, or deliver; the sale of 26 or more grams of cocaine; the possession of a firearm during the commission of a dangerous felony; the sale of 0.5 or more grams of cocaine; and two counts of the sale of 15 or more grams of heroin. Petitioner entered a guilty plea to the possession of 300 or more grams of cocaine with the intent to manufacture, sell, or deliver, a Class A felony, on January 11, 2010, and he was sentenced to serve twenty-five years in prison. Under the "Special Conditions" section of the judgment form is a notation: "NOLLE COUNTS 2, 3, 4, 5 & 6."

         Petitioner filed a petition for the writ of habeas corpus in Hickman County on June 18, 2015. He alleged as grounds for relief that the trial court lacked jurisdiction due to the composition of the grand jury; that his plea was not knowing and voluntary because the Spanish version of the guilty plea form was not an exact translation of the English version; and that he was not informed of the potential immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S. 356, 374 (2010). Petitioner also asserted his sentence was illegal and sought relief under Tennessee Rule of Criminal Procedure 36.1.

         The Hickman County Circuit Court appointed counsel to represent Petitioner on November 23, 2015, and counsel amended the petition for the writ of habeas corpus to include a request to allow Petitioner to proceed with a late-filed post-conviction petition pertaining to his claim that trial counsel did not advise him regarding the immigration consequences of his plea. This request was based on the assertion that when Petitioner pled guilty, the remaining charges against him continued pending until May 6, 2013, when the State entered "Nolle and Expungement Orders." While Petitioner implied that his petition was not timely filed due to "possible attorney misrepresentation" or "due to the fact that [counsel] could not effectively communicate with his client, " Petitioner failed to include "full disclosure of the factual basis" of these claims or indeed any detail regarding what the alleged misrepresentation or failure to communicate entailed. See T.C.A. § 40-30-106(d).

         On February 12, 2016, the Hickman County Circuit Court entered an order finding that the judgment was not void, and the court summarily denied habeas corpus relief. The court, however, made a finding that the petition should properly be considered one for post-conviction relief and ordered the State to file an answer as required by the Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-108(a). The Hickman County Circuit Court did not address the issue of timeliness; instead, in the order requiring the State to file a response, the court stated that it would "proceed as though a petition for post-conviction relief ha[d] been filed." The State filed a response arguing that, because the petition was in essence a post-conviction petition, it should be transferred to the Wilson County Criminal Court, as the "court in which the conviction occurred." See T.C.A. 40-30-104(a). The Hickman County Circuit Court ordered Petitioner to respond to the motion to transfer the case by March 25, 2016.

         Instead, on May 16, 2016, Petitioner filed a new petition for post-conviction relief in Wilson County. According to the petition, Petitioner, who was "an undocumented alien, " had "very limited" communication with his trial counsel due to his inability to speak English fluently. Petitioner described the Hickman County order as an order "granting permission" to "late-file[]" a post-conviction petition "pursuant to findings on Petitioner's Petition for Habeas Corpus." The petition filed in Wilson County sought relief based on trial counsel's failure to advise Petitioner regarding potential immigration consequences of his plea pursuant to Padilla. While the petition contains a section entitled "Right to Delayed Filing, " Petitioner presented no facts or arguments related to tolling the statute of limitations but instead primarily ...


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