Court of Criminal Appeals of Tennessee, Nashville
Session January 10, 2017.
from the Criminal Court for Wilson County No. 09-CR-522 Brody
N. Kane, Judge.
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
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
D. Baugh, Franklin, Tennessee, for the appellant, David
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.
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ.,
T. WOODALL, PRESIDING JUDGE.
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."
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.
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).
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.
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 ...