Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs October 21, 2014
Appeal from the Criminal Court for Sullivan County No. C63543 Robert H. Montgomery, Jr., Judge
Houston Isley, Clifton, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; and Barry Staubus, District Attorney General, for the appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., J., joined. Robert H. Holloway, Jr., J., not participating.
JAMES CURWOOD WITT, JR., JUDGE
On February 2, 2012, the petitioner pleaded guilty to one count each of aggravated sexual battery, incest, and attempted rape of a child, and the trial court imposed an effective sentence of 10 years' incarceration. The petitioner filed a timely petition for post-conviction relief alleging ineffective assistance of counsel and an unlawfully induced guilty plea, and, following a November 18, 2013 evidentiary hearing, the post-conviction court denied relief. The petitioner did not appeal the post-conviction court's order.
On May 5, 2014, the petitioner filed a petition for post-conviction relief requesting DNA analysis pursuant to Tennessee Code Annotated section 40-30-303, claiming that his due process rights were violated due to trial counsel's failure to investigate; that a detective involved in the case had committed perjury; that trial counsel failed to call witnesses; that the petitioner did not receive an expeditious hearing; and that his Miranda rights were violated. In its order summarily dismissing the petition, the post-conviction court found that the petitioner "failed to identify any item that [p]etitioner believes should be subjected to DNA analysis" and "failed to set out a basis for the Court to order DNA analysis." In addition, the court stated that the petitioner had "previously filed a petition for post-conviction relief" which had been resolved on the merits following a hearing and which therefore necessitated dismissal of the petition.
On appeal, the petitioner challenges the summary dismissal of his 2014 petition, contending that the post-conviction court erred by denying his request for DNA analysis.
The Post-Conviction DNA Analysis Act of 2001 ("the Act") applies only to certain felonies, which include, among others, aggravated sexual battery, rape of a child, and the attempted commission of either of those offenses. T.C.A. § 40-30-303. The petitioner "may at any time, file a petition requesting the forensic DNA analysis of any evidence that is in the possession or control of the prosecution, law enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence." Id.
The Act provides no statutory time limit and gives petitioners the opportunity to request analysis at "any time, " whether or not such a request was made at trial. Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006). A post-conviction court is obligated to order DNA analysis when the petitioner has met each of the following four conditions:
(1)A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
(2)The evidence is still in existence and in such a condition that DNA analysis may be conducted;
(3) The evidence was never previously subjected to DNA analysis or was not subjected to the analysis that is now requested which could resolve an issue ...