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Posted by: Tanja Trezise on Jan 7, 2013

Head Comment: With Dissenting Opinion

Court: TN Court of Criminal Appeals

Attorneys 1:

Sean Lewis and Patrick G. Frogge, on appeal, and Patrick T. McNally, Nashville, Tennessee, at trial, for the appellant, Jose Rodriguez a.k.a Alex Lopez.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge(s): WILLIAMS

The petitioner, Jose Rodriguez, brings a post-conviction challenge to his guilty plea, asserting that he received the ineffective assistance of counsel. The petitioner claims that, under Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), his counsel was deficient in failing to advise him regarding the deportation consequences of his guilty plea. The petition was filed more than one year after the guilty plea, and the post-conviction court denied relief based on the statute of limitations pursuant to Tennessee Code Annotated section 40-30-102(a). We conclude that a post-conviction action does not lie when the petitioner’s record has been expunged and no conviction exists. In addition, the trial court was correct in concluding the petition was time-barred. Accordingly, we affirm the post-conviction court’s summary dismissal.