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Nunley v. State

Court of Criminal Appeals of Tennessee, Jackson

March 3, 2017

TOMMY NUNLEY
v.
STATE OF TENNESSEE

          Assigned on Briefs at Knoxville January 18, 2017

         Appeal from the Criminal Court for Shelby County No. 96-10669 John Campbell, Judge.

         The petitioner, Tommy Nunley, appeals the summary denial of his petition for writ of error coram nobis, which petition challenged his 1998 Shelby County Criminal Court jury conviction of aggravated rape, claiming that the trial court erred by treating his petition for writ of error coram nobis as a petition for DNA testing and by summarily dismissing the petition. Discerning no error, we affirm.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

          Tommy Nunley, Whiteville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Kirby May, Assistant 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., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE

         A Shelby County Criminal Court jury convicted the petitioner of one count of the aggravated rape of the victim, his 13-year-old cousin. See State v. Tommy Nunley, No. 02C01-9804-CR-00114, slip op. at 1-3 (Tenn. Crim. App., Jackson, Mar. 12, 1999) (summarizing the evidence adduced at the petitioner's trial) (Nunley I). This court affirmed the conviction and accompanying 25-year sentence on direct appeal. See id.

         The petitioner later filed a timely petition for post-conviction relief, alleging, among other things, that his "trial counsel was ineffective for failing to move for state-funded expert assistance for DNA testing of various items collected during the investigation of the case." Tommy Nunley v. State, No. W2003-02940-CCA-R3-PC, slip op. at 2 (Tenn. Crim. App., Jackson, Jan. 6, 2006) (Nunley II). At the conclusion of the evidentiary hearing on the petition for post-conviction relief, "the post-conviction court sua sponte entered an order directing that the TBI conduct DNA testing on biological samples obtained from the [p]etitioner and biological samples contained in the rape kit." Id., slip op. at 4. Nearly two years later, "the State reported that the rape kit at issue in this case had been in the possession of the [Memphis Sexual Assault Resource Center] where it was either lost or destroyed" during "'a flood at U.T. Bowld.'" Id., slip op. at 5. The post-conviction court granted post-conviction relief on grounds that the challenged "evidence could and should have been tested at the time of the [p]etitioner's trial, and that because said evidence has been lost and/or destroyed, petitioner's constitutional right to a fair trial was violated." Id.

         On appeal, this court reversed the grant of post-conviction relief, concluding that the post-conviction court erred by ordering DNA testing on the challenged evidence in the absence of a request from the petitioner and by granting post-conviction relief after learning that the evidence was not available for testing. See id., slip op. at 5-7. We determined that "the lost evidence may not be imputed to trial counsel's" failure to seek pretrial DNA testing and that the petitioner had failed to establish that, had counsel sought pretrial DNA testing, the results of his trial would have been different. See id., slip op. at 7.

         In 2014, the pro se petitioner filed a petition for relief under the Post-Conviction DNA Analysis Act of 2001, asking "that DNA analysis be performed on all available evidence within the State's possession." Tommy Nunley v. State, No. W2014-01776-CCA-R3-PC, slip op. at 2 (Tenn. Crim. App., Jackson, Apr. 13, 2015), perm. app. denied (Tenn. Sept. 21, 2015) (Nunley III). The post-conviction court appointed counsel, and, after the State filed a response, the court denied relief, concluding that the 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)." Id. On appeal, this court affirmed the denial because the record established that "the Rape Kit is no longer available for testing." Id., slip op. at 4.

         On May 31, 2016, the pro se petitioner filed a petition for writ of error coram nobis, claiming entitlement to relief on grounds that the State had violated his constitutional rights by withholding exculpatory evidence. He argued that reports in the possession of the State prior to his trial established that forensic testing conducted by Cellular and Molecular Forensics Laboratory prior to trial exonerated him. In support of his claims, the petitioner appended to his petition a copy of reports generated by Cellular and Molecular Forensics Laboratory that indicated that testing on the rape kit, the bedsheets, and the victim's slacks was negative for the presence of "sperm components"; letters from the assistant district attorney general requesting DNA or serology testing by the Tennessee Bureau of Investigation ("TBI"); a report from the TBI indicating that no testing would be performed on the victim's clothing "per laboratory policy"; and a memo addressed to the petitioner's file from David Shapiro, an assistant district attorney general, that included a photocopy of a hand-written telephone message addressed to Mr. Shapiro and Johnny McFarland, another assistant district attorney general, along with a type-written statement that "[t]he local lab . . . determined that there was no match between the defendant and the victim."

         The trial court entered an order denying relief on June 9, 2016. The trial court found that the claims alleged in the petition for writ of error coram nobis had been raised and litigated and that the petitioner had failed to establish the existence of ...


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