Assigned on Briefs March 3, 2015
Appeal from the Criminal Court for Shelby County No. 9610669 John Wheeler Campbell, Judge
Tommy Nunley, Whiteville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Amy P. Weirich; District Attorney General; and G. Kirby May, Assistant District Attorney General, for the respondent, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Robert W. Wedemeyer and Robert H. Montgomery, Jr., JJ., joined.
TIMOTHY L. EASTER, JUDGE
Factual and Procedural Background
Petitioner was convicted of the aggravated rape, a Class A felony, of his thirteen-year-old cousin. As a Range I, standard offender, Petitioner received a twenty-five year prison sentence. The conviction and sentence were affirmed on direct appeal. State v. Tommy Nunley, No. 02C01-9804-CR-00114, 1999 WL 135044, at *1 (Tenn. Crim. App. Mar. 12, 1999), perm. app. denied (Tenn. Sept. 13, 1999).
Petitioner then filed a timely petition for post-conviction relief, alleging that his trial counsel provided ineffective assistance for failing to seek state-funded expert assistance for DNA testing of various pieces of evidence that comprised the rape kit collected during the investigation of the case. During the course of the post-conviction proceedings, the State reported to the post-conviction court that the rape kit, while in the possession of the Memphis Sexual Assault Resource Center, had been either lost or destroyed and was unavailable for testing. Consequently, the post-conviction court granted relief. The State appealed, and this Court reversed the post-conviction court's decision, determining that Petitioner had failed to prove his claim of ineffective assistance of counsel because he had not shown prejudice, i.e., that the DNA results of the rape kit, if tested, would have affected the outcome of the trial. Tommy Nunley v. State, No. W2003-02940-CCA-R3-PC, 2006 WL 44380, at *6 (Tenn. Crim. App. Jan. 6, 2006), application for perm. app. dismissed (Tenn. June 26, 2006).
On May 16, 2014, Petitioner filed a pro se petition for relief under the Post-Conviction DNA Analysis Act of 2001 ("the Act"), requesting that DNA analysis be performed on all available evidence within the State's possession. See T.C.A. § 40-30-303. Petitioner also alleged that, "had the Rape Kit in this case been subjected to the [ ]Short Tandem Repeat ("STR") testing, " "there is a reasonable probability . . . that Petitioner would not have been prosecuted or convicted." The post-conviction court appointed private counsel to assist Petitioner on June 26, 2014. See T.C.A. § 40-30-307. The State filed a response on July 7, 2014, and the post-conviction court entered an order on July 17, 2014, denying the petition without a hearing. The post-conviction court found that Petitioner was not entitled to relief because the evidence at issue is not "still in existence and in such a condition that DNA analysis may be conducted, " as required by Section 40-30-304(2). Petitioner filed a notice of appeal on August 14, 2014.
On appeal, Petitioner raises the following issue:
Whether the [p]ost-[c]onviction [c]ourt erred by summarily dismissing [the petition] without making a determination as to whether the State's failure to preserve potentially exculpatory evidence, [specifically] the victim's Rape Kit, prior to trial rendered [Petitioner]'s trial to be fundamentally unfair under [A]rticle I, [section] 8 of the Tennessee Constitution . . . .
Petitioner cites State v. Merriman, 410 S.W.3d 779 (Tenn. 2013), as supporting his argument that the post-conviction court erred in denying his petition without conducting a due process hearing, as ...