Assigned on Briefs at Knoxville January 18, 2017
from the Criminal Court for Shelby County No. 96-10669 John
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.
R. App. P. 3; Judgment of the Criminal Court Affirmed.
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
Curwood Witt, Jr., J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
CURWOOD WITT, JR., JUDGE
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.
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.
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.
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.
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
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