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Transou v. Leiback

Court of Criminal Appeals of Tennessee, Nashville

June 9, 2017

MACK TRANSOU
v.
BLAIR LEIBACK, WARDEN

          Assigned on Briefs November 8, 2016.

         Appeal from the Circuit Court for Trousdale County No. 16-CV-4528 John D. Wootten, Jr., Judge

         Petitioner, Mack Transou, appeals the summary dismissal of his fifth pro se petition for habeas corpus relief. In 1999, Petitioner pleaded guilty to driving after being declared a habitual motor vehicle offender and was subsequently incarcerated. Based on a blood sample taken from Petitioner as part of the intake process, Petitioner was later convicted, in two separate cases, of two counts of rape, one count of sexual battery, and one count of aggravated burglary. In this appeal, Petitioner argues that the habeas corpus court erred in summarily dismissing his petition. Following a review of the record, we conclude that Petitioner is collaterally estopped from challenging the validity of his blood draw. None of Petitioner's other claims state a cognizable claim for habeas corpus relief. Accordingly, we affirm the court's denial of relief.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Mack Transou, Hartsville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; and Tom P. Thompson, Jr., District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.

          OPINION

          THOMAS T. WOODALL, PRESIDING JUDGE.

         Procedural history

         In 1999, Petitioner, Mack Transou, pleaded guilty to driving after being declared a habitual motor vehicle offender and received a two-year sentence with all but 90 days to be served on Community Corrections. "During intake processing at the prison, [the petitioner] signed a consent form and submitted to a blood draw. A DNA analysis was performed and the results were submitted to CODIS." Mack Transou v. Jerry Lester, Warden, No. W2013-00293-CCA-R3-HC, 2013 WL 5745704, at *1 (Tenn. Crim. App., Oct. 21, 2013), perm. app. denied (Tenn., Jan. 14, 2014). Petitioner's DNA profile matched profiles developed from two unsolved rape crimes reported in 2001 and 2002, and Petitioner was charged in two separate cases. Id. Petitioner was convicted of two counts of rape, one count of sexual battery, and one count of aggravated burglary. Petitioner challenged the constitutionality of his blood draw on direct appeal. Id. The Tennessee Supreme Court found that Petitioner "validly consented to the blood draw and its subsequent analysis." State v. Scarborough, 201 S.W.3d 607, 622-23 (Tenn. 2006).

         "At this point, the petitioner began filing multiple pleadings and motions in which he consistently asserted that his DNA profile had been unlawfully obtained." Transou, 2013 WL 5745704, at *1. In 2005, Petitioner filed his first petition for writ of habeas corpus, alleging that "the convictions for which he was currently confined were obtained as a result of the illegal action of the Department of Correction in obtaining the blood sample used to identify him as the perpetrator of the crimes in the later cases" and that his 1999 conviction for driving after being declared a habitual motor vehicle offender was illegal based upon a revocation of the probated portion of his sentence. Id. (citing Mack Transou v. State, No. W2005-01935-CCA-R3-HC, 2006 WL 561401, at *2 (Tenn. Crim. App., Mar. 7, 2006), perm. app. denied (Tenn., May 30, 2006)). The trial court denied Petitioner's request for relief, and a panel of this court affirmed. Id. at *2.

         Petitioner filed a second petition for writ of habeas corpus relief in 2008. Transou, 2013 WL 5745704, at *3 (citing Mack Transou v. State, No. W2008-02713-CCA-R3-HC, 2009 WL 1956826, at *1 (Tenn. Crim. App., July 9, 2009), perm. app. denied (Tenn., Oct. 26, 2009)). The trial court dismissed the petition in part because Petitioner attempted to relitigate his DNA blood draw claim. Id. A panel of this court affirmed the trial court's dismissal, stating that Petitioner's "argument that the collection of his DNA was improper or unconstitutional had been previously adjudicated to be without merit." Id. The panel also determined that the admissibility of DNA evidence rendered a judgment voidable, not void, and did not constitute a ground for habeas corpus relief. Id.

         Petitioner filed a third petition for writ of habeas corpus relief in 2012. Transou, 2013 WL 5745704, at *3 (citing Mack Transou v. Dwight Barbee, Warden, No. W2012-00258-CCA-R3-HC, 2012 WL 1813115, at *1-2 (Tenn. Crim. App., May 17, 2012), perm. app. denied (Tenn., Sept. 19, 2012)). In that petition, Petitioner alleged that the judgments regarding the probation revocation proceedings in 1999 and 2000 were illegal and void and that the State violated his constitutional rights by subjecting him to DNA testing. Id. The trial court dismissed the petition, in part, because the petition again raised issues previously determined. Id. A panel of this court affirmed the dismissal of the petition. Id.

         Petitioner filed a fourth petition for writ of habeas corpus in late 2012. The trial court summarily dismissed the petition. Transou, 2013 WL 5745704, at *4. ...


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