        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 24, 2010

                  LUIS CASTANON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                       No. 98-C-2056     Seth Norman, Judge


                No. M2009-01324-CCA-R3-PC - Filed December 8, 2010


Petitioner, Luis Castanon, filed a petition pursuant to the Post-Conviction DNA Analysis Act
of 2001, Tennessee Code Annotated sections 40-30-301-313. Petitioner sought DNA testing
of evidence in the trial resulting in his convictions for four counts of aggravated rape and one
count of aggravated burglary. The State filed a response in opposition to the petition, and
the trial court summarily dismissed the petition, concluding that Petitioner had not satisfied
the statutory requirements to authorize DNA testing. In this appeal, Petitioner asserts that
the trial court erred by summarily dismissing the petition and by failing to require the State
to submit proof that “DNA evidence” no longer existed. After a thorough review of the
record and the briefs of the parties, we affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

Luis Castanon, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm,
Assistant District Attorney General, for the appellant, the State of Tennessee.

                                          OPINION

        A detailed summary of the facts which led to Petitioner’s convictions can be found
in the opinion of this Court in the direct appeal of the convictions. See State v. Luis
Castanon, M2003-01491-CCA-R3-CD, 2005 WL 544724 (Tenn. Crim. App., at Nashville,
Mar. 8, 2005) perm. to app. denied (Tenn. Aug. 22, 2005). For the purposes of this appeal,
it is sufficient to note that the victim, after coming home in the early morning hours, was
repeatedly raped vaginally, anally, and orally over a period of two hours in her apartment on
May 17, 1998, by two men, one of whom was taller than the other. Both men had their faces
concealed by wearing pantyhose and underwear on their heads. The shorter of the two men
picked up a bottle of grape juice during the period of the rapes. Petitioner’s fingerprints
matched latent fingerprints lifted from a grape juice bottle as well as latent prints taken from
the inside windowsill where entry was made into the victim’s apartment through a cut
window screen in the victim’s bedroom window. DNA testing of semen collected from the
victim’s neck and hair matched Petitioner’s DNA. The victim testified that the shorter of the
two men (Petitioner, as evidenced by the shorter man’s fingerprints being lifted from the
grape juice bottle) ejaculated in the victim’s hair and on her neck.

        Petitioner testified at trial and admitted that he was inside the apartment during the
sexual assaults, but he denied that he had participated in the rapes. He admitted that he got
something to drink while in the apartment. He testified that he followed a friend into the
front door of the victim’s apartment and went into a bedroom where he went to sleep. He
awoke and saw his friend’s brother sitting in another bedroom. He saw his friend engaged
in oral sex with a naked woman, and finally noticed his friend had a knife in his hand.
Petitioner claimed that he then became afraid and upset. Petitioner claimed that after his
friend forced the woman into the bathroom at knife point, he set off the fire alarm and exited
through the victim’s bedroom window.

       In his petition, Petitioner asserts that “there is no way of determining what method of
DNA [a]nalysis was performed of the evidence taken from the victim and Petitioner.”
Petitioner alleges that only blood was taken from him for DNA testing. He further asserts
that samples from the victim for DNA testing were taken from her neck, breast, mouth, and
her vaginal and anal areas. Petitioner alleges in the petition that DNA testing resulted in
“[c]omplete exoneration” of Petitioner as to tests run on the samples taken from the victim’s
vaginal, anal, and oral swabs. Petitioner alleges that the only DNA sample taken from the
victim which did not exclude Petitioner was the sample taken from the victim’s neck.
Petitioner alleges that if mitochondrial DNA testing is done to the semen sample taken from
the victim’s neck and compared with DNA results of Petitioner’s semen, the results would
“conclusively exonerate” Petitioner.

       Petitioner specifically alleges in his petition that he is entitled to relief pursuant to
Tennessee Code Annotated section 40-30-305, and he quotes verbatim from that code
section, which states in full as follows:

        40-30-305. Court order if probable that results would have resulted in
        a more favorable verdict or sentence. -- After notice to the prosecution



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        and an opportunity to respond, the court may order DNA analysis if it finds
        that:

        (1) A reasonable probability exists that analysis of the evidence will
        produce DNA results that would have rendered the petitioner’s verdict or
        sentence more favorable if the results had been available at the proceeding
        leading to the judgment of conviction;
        (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 not resolved by previous analysis; and
        (4) The application for analysis is made for the purpose of demonstrating
        innocence and not to unreasonably delay the execution of sentence or
        administration of justice.

Tenn. Code Ann. § 40-30-305 (italicized emphasis added).

        The State’s response to the petition, which was not filed until eleven months after the
trial court entered an order granting “a reasonable amount of time” to respond, is sparse. The
response was filed by the Assistant District Attorney General, and asserted as follows:

        (1) The State presented DNA evidence at the trial of this cause, matching
        the [Petitioner], Luis Castanon, to the crime;
        (2) The [Petitioner] admitted being present during the rape and the
        fingerprint evidence and identification by the victim confirmed this;
        (3) According to the Assistant District Attorney General, Pam Anderson,
        who tried this matter, no DNA evidence is left.

         Despite the fact that Petitioner clearly filed his petition pro se, the State did not
provide a copy of its response to Petitioner, but, according to the certificate of service, sent
a copy to counsel who represented Petitioner in his direct appeal from the convictions. The
trial court entered an order summarily dismissing the petition on the day after the State’s
response was filed. The trial court implicitly found that the facts were as alleged by the State
in its response and concluded Petitioner was not entitled to relief.

       The scope of our review is limited, as the post-conviction court is given considerable
discretion in deciding whether Petitioner is entitled to relief under the DNA Act. See Jack
Jay Shuttle v. State, No. E2003-00131-CCA-R3-PC, 2004 WL 199826, at *4 (Tenn. Crim.
App., at Knoxville, Feb. 3, 2004), perm. app. denied (Tenn. Oct. 4, 2004). Therefore, this

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Court will not reverse the post-conviction court unless its judgment is not supported by
substantial evidence. Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL
1868647, at *4 (Tenn. Crim. App., at Nashville, Apr. 11, 2003), no perm. app. filed; see State
v. Hollingsworth, 647 S.W.2d 937, 938 (Tenn. 1983).

        When our General Assembly enacted the Post-Conviction DNA Analysis Act of 2001,
it placed upon the trial courts of this state the onus to determine if DNA analysis is
authorized under the statutory provisions once a petition is filed. Tennessee Code Annotated
section 40-30-305 (under which Petitioner filed his petition) provides that the trial court
“may” order DNA analysis without a hearing if the trial court finds the factors listed in the
statute. DNA analysis is discretionary and may be ordered if the trial court finds that the
requirements of -304(2), (3), and (4) are met and that “[a] reasonable probability exists that
analysis of the evidence will produce DNA results which would have rendered the
petitioner’s verdict or sentence more favorable if the results had been available at the
proceeding leading to the judgment of conviction.” Tenn. Code Ann. § 40-30-305.

        In this case, there is nothing in the trial court’s order dismissing the petition which
indicates the trial court did anything on its own to ascertain whether or not the statutory
factors existed. The skeletal response by the State was followed the very next day by the trial
court’s order summarily dismissing the petition. We note that both the State’s response and
the trial court’s order imply that one reason Petitioner was not entitled to relief was because
there was direct evidence of the victim’s identification of Petitioner as one of the rapists;
however, the opinion of this Court on direct appeal states that while, shortly after the
incident, the victim was shown a photo line-up that included a picture of Petitioner, “she was
unable to positively identify anyone.”

        Nevertheless, we conclude that the petition, as submitted, was properly summarily
dismissed. As noted above, one of the factors which must be shown for Petitioner to be
entitled to relief under Tennessee Code Annotated section 40-30-305 is that “[a] reasonable
probability exists that analysis of the evidence will produce DNA results that would have
rendered the petitioner’s verdict or sentence more favorable if the results had been available
at the proceeding leading to the judgment of conviction.” Tenn. Code Ann. § 40-30-305(1).

       Petitioner alleged in his petition that only the DNA of the semen removed from the
victim’s neck was linked to him at trial, and that mitochondrial DNA testing of his semen,
compared with mitochondrial DNA testing of the semen removed from the victim’s neck
would exclude him as the donor of that semen. Even accepting this allegation as true (which
also assumes a sample of the semen taken from the victim’s neck still exists - which is denied
by the State’s response), Petitioner has not shown the existence of the first factor under
Tennessee Code Annotated section 40-30-305.

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        The victim testified that two men, one short and one tall, came out of her bedroom
after she arrived home in the early morning hours and repeatedly raped her over a period of
two hours. The shorter assailant, circumstantially identified as Petitioner by his fingerprints
on a glass of grape juice and the windowsill where unauthorized entry was made, participated
in the sexual assaults upon the victim. At most, if the DNA evidence had shown at trial what
Petitioner now asserts it would have shown, the victim’s testimony that it was Petitioner’s
ejaculation which deposited the semen on her neck would have been impeached. It is not
reasonably probable that the purported DNA analysis would have rendered Petitioner’s
verdict or sentence more favorable. Petitioner is not entitled to relief in this appeal.

                                      CONCLUSION

       The judgment of the post-conviction court is affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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