Court of Criminal Appeals of Tennessee, Nashville
Session: February 13, 2018
from the Criminal Court for Davidson County No. 2011-C-2109
Steve R. Dozier, Judge No. M2017-00834-CCA-R3-PC
a trial, a Davidson County jury convicted the Petitioner,
Ugenio Dejesus Ruby-Ruiz, of three counts of sexual
exploitation of a minor; five counts of aggravated sexual
battery; nine counts of rape of a child; one count of
especially aggravated sexual exploitation of a minor; and two
counts of rape, for which the trial court imposed an
effective sentence of 121 years in the Department of
Correction. The Petitioner subsequently filed a petition for
post-conviction relief, which was denied following a hearing.
Upon review, we conclude that the pro se petition was filed
outside the one-year statute of limitations applicable to
post-conviction proceedings. However, because we are unable
to determine from the record whether due process requires the
tolling of the statute of limitations, we vacate the
post-conviction court's order and remand the case to the
post-conviction court for a determination of whether due
process tolling applies.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Vacated and Remanded
B. Russ, Nashville, Tennessee, for the appellant, Ugenio
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas S. Bolduc, Assistant Attorney General; Glenn R.
Funk, District Attorney General; and Tammy Meade, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J.,
L. HOLLOWAY, JR., JUDGE
and Procedural Background
opinion filed May 12, 2015, this court affirmed the
Petitioner's judgments of conviction. State v. Ugenio
Ruby-Ruiz, No. M2013-01999-CCA-R3-CD, 2015 WL 2227933,
at *1-4 (Tenn. Crim. App. May 12, 2015), perm. app.
dismissed (Tenn. Mar. 23, 2016). On August 21, 2015, the
Petitioner filed an untimely application for permission to
appeal to the Tennessee Supreme Court pursuant to Tennessee
Rule of Appellate Procedure 11, along with a motion to accept
the late-filed application. See Tenn. R. App. P.
11(b). In the motion to accept the late-filed application,
appellate counsel explained the delay in filing the
application by stating, "I for the last few months I
have been dealing with a private issue concerning my son
which has taken almost all my attention." On March 23,
2016, the Tennessee Supreme Court entered an order dismissing
the untimely application for discretionary review. State
v. Ugenio Ruby-Ruiz, No. M2013-01999-SC-R11-CD (Tenn.
Mar. 23, 2016) (order dismissing the Petitioner's
application for permission to appeal). Specifically, the
supreme court's order stated:
The Tenn. R. App. P. 11 application for permission to appeal
filed on behalf of [the Petitioner] is untimely. [The
Petitioner] has filed a motion to accept a late-filed
application. Upon due consideration, the motion is denied.
The Court declines to waive the time limit in the interest of
justice. See Tenn. R. App. P. 11(b). Accordingly,
the application is dismissed.
27, 2016, the Petitioner filed a pro se petition for
post-conviction relief, along with a motion to late-file the
petition. In an initial order filed June 30, 2016, the
post-conviction court noted that the petition was untimely,
but the court set the matter for a hearing to determine
whether due process required the tolling of the one-year
statute of limitations. However, in an amended order filed
July 13, 2016, the post-conviction court found that the
petition was filed within the statute of limitations based on
"the Tennessee Supreme Court's denial of the
[P]etitioner's Rule 11 application filed on March 23,
2016[.]" Following the appointment of counsel, the
Petitioner filed an amended petition, asserting that the
Petitioner was denied the effective assistance counsel at
trial and on appeal. At the ...