There is a one year statute of limitations in Tennessee for filing a petition for post-conviction relief (challenging the constitutionality of the underlying conviction) from a final judgment in a criminal case. There are statutory and due process exceptions to strict application of the limitations period in cases where circumstances beyond a petitioner’s control prevented the petitioner from having a reasonable opportunity to file a claim within the limitations period. However, lack of knowledge of the basis of a claim does not create such an exception, where the basis for the claim has not been concealed. In the recent Tennessee case of Onate v. State, M2013-00531-CCA-R3-PC (Tenn.Crim.App. 8-28-2013), the Court of Criminal Appeals affirmed the trial court ruling that a petition was untimely, where the petitioner asserted he had not been made aware of the immigration consequences of his guilty plea in time to file a petition within the limitations period.

In the Onate case, the petitioner, who was not a citizen of the United States, had pled guilty to facilitation to sell less than .5 grams of cocaine. The judgment became final in October 2011. Felony drug convictions can have consequences to the residency and immigration status of non U.S. citizens. In 2010, the United States Supreme Court ruled in Padilla v. Kentucky, 559 U.S. 356 (2010) that effective assistance counsel may require a criminal defense attorney to advise a client if a guilty plea may result in immigration consequences. The petitioner in the Onate case claimed he was not advised about the immigrations consequences of his guilty plea and did not find out about those consequences until it was too late to file a post-conviction claim within the statutory limitations period.

Though the Padilla holding may support a claim of ineffective assistance of counsel where the attorney does not advise a client of the possibility of immigration consequences of a conviction arising from a guilty plea, Tennessee courts have not treated lack of knowledge of immigration consequences as an exception to the limitations period for filing a post-conviction claim.

For more information on the legal consequences of a specific criminal conviction, contact The Lanzon Firm.