07/02/2020 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs May 19, 2020, at Knoxville MIGUEL SAENZ v. STATE OF TENNESSEE Appeal from the Criminal Court for Shelby County Nos. 11-04210, 11-04211 James M. Lammey, Judge ___________________________________ No. W2019-01665-CCA-R3-PC ___________________________________ The petitioner, Miguel Saenz, appeals the dismissal of his post-conviction petition, arguing the post-conviction court erred in dismissing the petition as time-barred. Following our review, we affirm the post-conviction court’s dismissal of the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and CAMILLE R. MCMULLEN, JJ., joined. Sofia Aranda, New York, New York, for the appellant, Miguel Saenz. Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; Amy Weirich, District Attorney General; and Leslie Byrd, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Facts and Procedural History On January 9, 2013, the petitioner pleaded guilty to two counts of attempted aggravated sexual battery and received an effective sentence of six years to be served on probation. No appeal was taken from the petitioner’s convictions and sentence. Approximately eleven months later, removal proceedings were initiated against the petitioner by the United States Department of Homeland Security (“DHS”). On January 8, 2014, the petitioner’s wife retained coram nobis counsel to “represent [the petitioner] pertaining to an immigration matter and a criminal matter, to wit: preparing, filing, and presenting a motion to set aside [the petitioner’s] criminal convictions for aggravated sexual battery.” A petition for writ of error coram nobis was then filed on August 18, 2016, in which the petitioner argued his guilty plea was not knowing and voluntary because trial counsel failed to inform the petitioner of the potential immigration consequences of his guilty plea. This Court upheld the trial court’s denial of the petition in a memorandum opinion. Miguel Saenz v. State, W2016-0259-CCA-R3-ECN, 2018 WL 1989622 (Tenn. Crim. App. April 26, 2018), no perm. app. filed. On July 15, 2019, the petitioner filed a petition for post-conviction relief, arguing trial counsel was ineffective for failing to argue the petitioner’s “actual innocence,” claiming the victims had recanted, and failing to advise the petitioner regarding the immigration consequences of his guilty plea. The petitioner acknowledged his petition was untimely but argued he was entitled to equitable tolling because coram nobis counsel misled him “to believe that efforts were underway to vacate the criminal conviction which was the basis for his removal from the United States.” More specifically, the petitioner argued coram nobis counsel should have filed a petition for post-conviction relief rather than a petition for error coram nobis. The post-conviction court dismissed the petition in a written order finding the petition was time-barred and no exceptions existed which prevented the petitioner from pursuing his claims in a timely manner. Specifically, the post-conviction court noted that the petitioner did not diligently pursue his post-conviction claims, waiting ...
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