         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   March 19, 2013 Session

                   RANDALL MILLS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Marshall County
                        No. 15471     Robert G. Crigler, Judge


               No. M2011-00620-CCA-R3-PC - Filed November 19, 2013


The Petitioner-Appellant, Randy Mills, appeals the partial denial of his “Motion to Reopen
Post[-]Conviction Petition and Other Relief.” On appeal, he argues: (1) the trial court erred
in denying him a new trial on all of the charges in this case for which he was convicted; (2)
the general sessions counsel’s and trial counsel’s 2003 post-conviction testimony regarding
his admission of guilt as to some of the charges is inadmissible as substantive evidence of
his guilt on retrial; and (3) the trial court erred in failing to adjudicate the merits of his state
and federal constitutional law claims. Although not raised by the Petitioner, the State argues
that the trial court’s agreed order, which was entered after the filing of the Petitioner’s notice
of appeal, is null and void because the court no longer had jurisdiction of the case. Upon
review, we affirm the trial court’s judgment granting a new trial in count 2, the conviction
for rape of a child–penile penetration, in light of the newly discovered DNA evidence;
however, we reverse the judgment denying a new trial on the remaining charges for which
he was convicted, and we remand the case to the trial court for entry of an order also granting
the Petitioner a new trial on counts 1, 4, 5, and 6.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                      Part, Reversed in Part, and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and J EFFREY S. B IVINS, JJ., joined.

Bryce Benjet (on appeal, pro hac vice), New York, New York; Hershel Koger (on appeal and
at trial), Pulaski, Tennessee; Craig M. Cooley, (at trial, pro hac vice), New York, New York,
for the Petitioner-Appellant, Randall Mills.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Charles F. Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the Appellee, State of Tennessee.
                                        OPINION

      Trial and Procedural History Prior to 2010 Evidentiary Hearings. A Marshall
County Grand Jury charged the Petitioner with the following offenses:

      count 1       rape of a child–digital penetration
      count 2       rape of a child–penile penetration
      count 3       aggravated sexual battery–defendant’s mouth on victim’s vagina
      count 4       aggravated sexual battery–defendant’s hand on victim’s vagina
      count 5       aggravated sexual battery–defendant’s hand on victim’s breast
      count 6       casual exchange of controlled substance to a minor


State v. Randall Ray Mills, No. M2000-01065-CCA-R3-CD, 2001 WL 1246387, at *3 (Tenn.
Crim. App. Oct. 17, 2001), perm. app. denied (Tenn. Mar. 4, 2002).

      Much of the pertinent evidence presented at trial was outlined in the direct appeal:

             On March 15, 1999, the victim, twelve-year-old C.M., lived in a duplex
      apartment in Lewisburg with her mother, Penny Martin, and her sister, Jennifer
      Hastings. The victim’s residence was on one side of the duplex, and the
      defendant lived with his two sons on the other side of the duplex. On the day
      in question, Martin was visiting her father at St. Thomas Hospital in Nashville
      and had left Hastings in charge of C.M. During the afternoon, C.M. had spent
      time talking with the defendant’s sons, “Little Randy” Mills and Dale Mills.

             At approximately 4:00 p.m., while C.M. was sitting in the yard outside
      the duplex, the forty-three-year-old defendant, “Big Randy” Mills, approached
      her. The defendant told C.M. that “he had dope over at his house and to come
      over later.” C.M. understood that the defendant was offering to smoke
      marijuana with her. C.M. returned to her home where she listened to the radio
      and watched television with Hastings and Hastings’ boyfriend, Robert Hodge.
      At approximately 8:45 p.m., Hastings told C.M. that she needed to go to bed
      in order to be rested for school the next day. C.M. chose to sleep in the living
      room because she was afraid to sleep in her own bedroom while her mother
      was out of town. Hastings and Hodge went to Hastings’ room to listen to the
      radio.

              Soon thereafter, C.M. slipped out of the residence and went next door
      to the defendant’s residence. After the defendant answered her knock on the

                                            -2-
door, C.M. followed the defendant into his living room where he was watching
television and ironing clothes. Both of the defendant’s sons were in their
bedrooms. After approximately five minutes, the defendant told C.M. that “it
was in his room,” and C.M. and the defendant went into the defendant’s
bedroom where the defendant locked the door. C.M. noted that the room was
lit by three candles, and the bedroom window was completely open.

        C.M. sat on the bed with her feet touching the floor. The defendant
pulled a marijuana cigarette from his shirt pocket and lit it. He “took a puff”
and passed the marijuana cigarette to C.M. who also smoked it. After C.M.
had taken three “puffs” from the marijuana cigarette, she did not want to
smoke any more. She tossed the remainder of the marijuana cigarette out the
bedroom window. The defendant then pulled a second, shorter marijuana
cigarette from his shirt pocket and smoked that cigarette himself. C.M.
testified that the marijuana made her feel “dizzy and light headed. I couldn’t
see or feel or anything.”

        C.M. related that, while her head was spinning from the effects of the
marijuana, the defendant pushed her back onto his bed. With his hand, the
defendant rubbed C.M.’s vagina through her blue jeans. The defendant then
slipped a hand inside C.M.’s shirt, unclasped her bra, and fondled her bare
right breast. The defendant removed his hand from her breast and, using both
hands, pulled her blue jeans and her panties down to her ankles. At this point,
the defendant kneeled in front of C.M., put his mouth over her vagina, and
licked her. The defendant proceeded to repeatedly penetrate the victim’s
vagina with his finger. C.M. estimated that this action continued for
approximately five minutes. C.M. knew the defendant had penetrated her with
his finger “[b]ecause it hurt.” The defendant then vaginally penetrated the
victim with his penis. C.M. knew the defendant had penetrated her with his
penis “because it hurt worse” than the digital penetration. C.M. asserted that
she was “high” throughout the incident and, although she tried to tell the
defendant to stop, she was unable to speak.

         Hastings, who had heard C.M. leave the duplex, began to search for
C.M. When she was unable to locate C.M. in the backyard, she asked Hodge
to join the search. They got into Hodge’s car and drove around the area for
approximately five minutes, searching for C.M. When he heard Hodge’s car
start, the defendant stopped his actions, and C.M. immediately dressed. As
C.M. left the defendant’s residence, he put a twenty-dollar-bill in C.M.’s blue
jeans pocket and said, “Here is $20, thanks.” The defendant further told C.M.,

                                      -3-
       “If you tell anybody I am just going to deny it.” C.M. estimated that the events
       occurred during a one-hour period of time.

               C.M. left the defendant’s residence and immediately returned home.
       C.M. said she was so “high” on her way home that, “I couldn’t hardly walk
       and I fell when I went out of his door.” C.M. had to wait on the front porch
       of her apartment until Hastings and Hodge returned to the residence because
       the front door of the duplex was locked and she did not have a key. Afraid of
       getting into trouble, C.M. initially told Hastings that she had been in the
       backyard. When Hastings revealed that she had looked for C.M. in the
       backyard, C.M. confessed that she had been at the defendant’s home and told
       Hastings what had occurred. C.M. gave Hastings the twenty-dollar-bill the
       defendant had placed in her jeans. The trio then went to the defendant’s
       residence, and Hastings knocked on the door, which was answered by one of
       the defendant’s sons. Hastings entered the residence and, finding the
       defendant coming out of the bathroom, loudly confronted him about the
       incident. Hastings threw the money at the defendant, returned home, and
       called the police.

               The police arrived and began their investigation. They were unable to
       locate the defendant for several days. Later that night, Hastings, Hodge, and
       C.M. decided to drive to Nashville to pick up Martin but, due to car trouble,
       had to wait for Martin’s return the next morning. When Martin arrived, she
       took C.M. to the emergency room at the Marshall Medical Center where Dr.
       Phillip Roberts performed a “rape kit” on C.M., sending the rape kit and
       C.M.’s panties to the Tennessee Bureau of Investigation (TBI) laboratory for
       testing. Although no semen or sperm was found on the vaginal swabs
       performed on C.M., both substances were found in the crotch area and near the
       rear waistband of the victim’s panties.

Id. at *1-2 (internal footnote omitted).

       Additionally, at the Petitioner’s trial, Sharon Jenkins, an expert in the fields of
serology and DNA analysis, testified that when she tested the vaginal swabs taken from the
victim at the hospital, she was unable to find any semen or sperm. However, she stated that
the absence of semen and sperm did not mean that no penetration had occurred. Jenkins said
her testing revealed that semen and sperm were present on the crotch area and the rear
waistband area of the victim’s underwear. She acknowledged that she had no way of
knowing whether the semen and sperm was from one person or more than one person.
Jenkins’s testing showed that some of the DNA from the underwear came from the victim.

                                             -4-
However, because semen and sperm were found on the underwear, she knew that at least one
male’s DNA would also be found on the underwear. Jenkins then summarized her findings
for the court:

       Based on these results, the non-sperm fraction of the DNA profile is consistent
       with a mixture of genetic material. The major contributor of the profile
       matches Exhibit Number 90020204, the victim, [C.M.].

             The minor contributor of the DNA profile includes the gender marker,
       which indicates a male contributor. And locus 01 or TH[]01 matches Exhibit
       Number 90045636, Randall Mills. All other loci were inconclusive. The
       probability in an unrelated individual having the same DNA profile from the
       African/American population is approximately one in 270.

              The [C]aucasian population is approximately one in 290. What this
       simply means is that when I compared the DNA samples, I was able to find
       one locus–one marker of the DNA which matched the evidence material and
       I was also able to determine that it was a male contributor.

              That is what I found.

Jenkins stated that she ruled some areas inconclusive because they had some markers that
were consistent with the victim and the Petitioner. She also ruled some areas inconclusive
because she was unable to get complete DNA profiles. She confirmed that she was unable
to exclude the Petitioner based on her DNA analysis. On cross-examination, Jenkins
admitted that 12 of the 13 markers she tested were inconclusive.

       Following the jury trial, the Petitioner was found not guilty in count 1 of the charge
of rape of a child–digital penetration but was convicted of the lesser included offense of
aggravated sexual battery–digital touching of victim’s vagina. Id. at *3. He was convicted
in count 2 of the charged offense of rape of a child–penile penetration. Id. He was found
not guilty in count 3 of the charged offense of aggravated sexual battery–defendant’s mouth
on victim’s vagina. Id. He was convicted in count 4 of the charged offense of aggravated
sexual battery–defendant’s hand on victim’s vagina. Id. He was convicted in count 5 of the
charged offense of aggravated sexual battery–defendant’s hand on victim’s breast. Id.
Finally, the Petitioner was convicted in count 6 of the charged offense of casual exchange
of a controlled substance to a minor. Id.

       On direct appeal, this court affirmed these convictions but reversed and remanded the
case for a new sentencing hearing because the convictions had been improperly merged and

                                             -5-
because the judgment in count 1 showed that the Petitioner had been found not guilty of the
charged offense but did not show that the jury had found him guilty of the lesser included
offense of aggravated sexual battery–digital touching of victim’s vagina. Id. at *10. In
determining that the evidence was sufficient to support the convictions, this court noted that
the victim’s testimony “constituted the bulk of the evidence against the defendant at trial”
and that DNA expert Sharon Jenkins’s testimony that semen and sperm were found on the
victim’s underwear corroborated the victim’s testimony. Id. at *4. The Tennessee Supreme
Court denied the Petitioner’s application for permission to appeal. Id. at *1.

        Following the Tennessee Supreme Court’s denial of permission to appeal, the
Petitioner timely filed a petition for post-conviction relief, alleging that trial counsel was
ineffective in failing to adequately investigate his case, in stipulating to the chain of custody,
in failing to ask for expert assistance regarding the DNA analysis, and in failing to make a
special request on a lesser included offense. Randall Mills v. State, No. M2003-01770-CCA-
R3-PC, 2004 WL 1621690, at *5 (Tenn. Crim. App. July 20, 2004), perm. app. denied (Tenn.
Nov. 8, 2004). On appeal, this court summarized the testimony by general sessions counsel
and trial counsel at the post-conviction hearing:

       Trial counsel . . . testified that he had talked with the attorney who had
       represented the petitioner during the preliminary hearing stage in the general
       sessions court, learning that the petitioner had admitted his guilt. After trial
       counsel had been appointed, the petitioner again acknowledged his guilt to the
       charges. The petitioner admitted to his trial counsel that he had smoked
       marijuana with the victim, had fondled her, and had digitally penetrated her,
       but denied any penile penetration. He stated that it was only later, after the
       petitioner learned that there could be no probation in the event of a conviction,
       that the story changed and the petitioner alleged that it was “actually his son
       who had had sex with the . . . victim”; thus, it was only after learning that the
       charges carried between 15 and 25 years at 100% that he proclaimed his
       innocence. Trial counsel testified that he then questioned the son, who denied
       having sex with the victim, and thereafter informed the petitioner that if his
       son testified otherwise, he faced the possibility of a perjury charge. It was his
       recollection that the petitioner, after learning of the potential jeopardy of his
       son, informed him that he did not want either of his sons to testify at the trial
       ....

              The attorney who represented the petitioner until the matter was heard
       in the general sessions court testified that the petitioner had admitted digital
       penetration but denied penile penetration. He recalled having informed trial
       counsel of his conversation with the petitioner.

                                               -6-
Id. at *4. On appeal, this court summarized the post-conviction court’s findings of fact and
conclusions of law in denying relief:

              At the conclusion of the evidentiary hearing, the trial court first
       accredited the testimony of . . . trial counsel, and [general sessions counsel],
       who represented the petitioner through the preliminary hearing, specifically
       determining that the petitioner had admitted digital penetration at the very
       least. It also accredited trial counsel’s testimony that the petitioner had
       withdrawn his request to utilize either of his sons as witnesses. Next, the trial
       court specifically found that there was adequate investigation by the public
       defender’s office and that the defense strategy was that the petitioner was not
       guilty and the victim was not a credible witness, having admitted smoking
       marijuana since she was 10 years old. The trial court also found that the
       testimony of young Randy Mills and his girlfriend, Jennifer Hastings, was
       untruthful for the most part and that neither witness was entitled to
       accreditation. It was the court’s further finding that Randy Mills had failed to
       provide information that would have been helpful to trial counsel. It ruled that
       the petitioner had been unable to show any prejudice by virtue of trial
       counsel’s failure to challenge the chain of custody and that there was no
       showing by the petitioner of any need for independent testing or expert
       assistance. Other than the charged crime, there was no indication that a lesser
       offense was appropriate from the evidence provided at trial. Specifically, the
       post-conviction court found that if the petitioner had pushed the victim to the
       bed, that offense would have been separate and distinct, and not lesser to the
       charged crimes.

Id. This court affirmed the denial of post-conviction relief. Id. at *7.

        On November 7, 2005, the Petitioner filed a petition for writ of habeas corpus relief
in United States District Court for the Middle District of Tennessee challenging his
convictions in this case. In amended petitions, he alleged ineffective assistance of counsel
and a Brady violation. The district court granted him discovery regarding these claims and
in connection with this discovery, the Petitioner hired his own expert, Gary Harmor of the
Serological Research Institute (SERI), who conducted another round of DNA testing on the
incriminating evidence presented against him at trial. Harmor reported that he found DNA
on the victim’s underwear and that both the victim and the Petitioner were excluded as
contributing this DNA. The Petitioner again amended his petition to include a claim of
actual innocence based on newly discovered DNA evidence. On March 13, 2009, the State
filed a “Motion to Stay Proceedings and Hold in Abeyance Pending Exhaustion of State
Court Remedies.” In this motion, the State acknowledged that the Petitioner’s claim of

                                              -7-
newly discovered evidence regarding the new DNA test results entitled him to error coram
nobis review:

                Mills’ newly added claim has not been exhausted, so this case should
       be held in abeyance pending state court exhaustion. Mills has not presented
       his claim based on new evidence to the state courts for review. He does not
       fit within the exceptions to the exhaustion requirement because he has
       available a state-court remedy in the form of a petition for error coram nobis
       through which he could litigate this new evidence claim. A petition for error
       coram nobis in state court may be the basis for relief where a defendant shows
       the existence of newly discovered evidence relating to matters litigated at trial
       if the defendant shows he was without fault in failing to present the evidence
       at the proper time and the trial court determines the evidence may have
       resulted in a different judgment had it been presented to the jury. Tenn. Code
       Ann. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 668 (Tenn. 1999). Here,
       the petitioner’s claim of newly discovered evidence is the precise basis for his
       unexhausted Claim 3. Because this evidence was not available at trial and
       Mills has claimed its unavailability would have resulted in a different verdict
       at trial, this claim meets the criteria for state error coram nobis review.

The State, citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001), and State v. Ratliff,
71 S.W.3d 291 (Tenn. Crim. App. 2001), asserted that the “Petitioner’s claim of newly
discovered evidence is sufficient to toll the applicable statute of limitations for bringing this
claim in state court, so this remedy remains available.”

        On May 29, 2009, based on this newly discovered DNA evidence, the Petitioner filed
a pro se “Motion to Reopen Post[-]Conviction Petition and Other Relief,” wherein he moved
to reopen his post-conviction petition and moved for a writ of error coram nobis. In the
motion, he argued that SERI’s new DNA evidence undermined the credibility of the victim’s
testimony as to all of the charges for which he was convicted, not just the rape of a
child–penile penetration charge. Specifically, the Petitioner moved to reopen his post-
conviction petition based on his claim that new scientific evidence in the form of new DNA
evidence established his actual innocence of the charges for which he was convicted and that
this claim, if true, would establish by clear and convincing evidence that he was entitled to
have the convictions set aside or the sentences reduced. See T.C.A. § 40-30-117(a)(2), (4).
He also asked for the court to issue a writ of error coram nobis based on the new DNA
evidence because his failure to present this exculpatory evidence was no fault of his own,
therefore requiring the tolling of the one-year statute of limitations. See T.C.A. § 27-7-103.
In his motion, the Petitioner noted that the State, in its motion to stay the federal habeas



                                               -8-
corpus case, “indicated that at the very least [he] is entitled in these circumstances to litigate
his error coram nobis claim in the state courts.”

       On July 2, 2009, the trial court appointed counsel for the Petitioner and continued his
“Motion to Reopen Post[-]Conviction Petition and Other Relief” to July 10, 2009, for the
entry of a scheduling order. After several continuances, evidentiary hearings on the
aforementioned motion were conducted on May 7, 2010, and July 9, 2010.

        May 7, 2010 Evidentiary Hearing. At the beginning of the hearing, defense counsel
reminded the court that the Petitioner’s case had been remanded from federal district court
to exhaust state remedies regarding the newly discovered DNA evidence. The State noted
that this case was not really a “standard post[-]conviction matter” because the case had been
filed as a motion to reopen the post-conviction petition. It added that the case was “just more
or less a continuation of an already opened post[-]conviction [case]” and that it was opposing
the reopening of the post-conviction proceeding. Petitioner’s counsel asserted that the newly
discovered DNA evidence allowed the Petitioner to reopen the case.

       At the beginning of the hearing, the Petitioner called TBI Agent Joe Minor. Agent
Minor, an expert in the field of serology and DNA analysis, testified that he was the DNA
technical manager for the TBI’s DNA division. He stated that as a part of his job, he was
responsible for “overseeing the technical operations of the laboratories in Nashville,
Memphis, and Knoxville” and was required to review “case files, technical reviews, and
administrative reviews of both serology and DNA-related cases.” Agent Minor stated that
he was familiar with SERI, the laboratory where Gary Harmor was employed.

       Agent Minor stated that he had reviewed the May 29, 2008 and September 8, 2008
reports issued by Harmor. When asked by the Petitioner’s counsel if there was anything in
Harmor’s reports with which he disagreed, he stated:

              No. There is a reference to the vaginal swabs and Mr. Mills being
       excluded, but that technically–it is her DNA anyway. There wasn’t any semen
       on there. Of course, he wouldn’t be considered as an exclusion on that.

              But as far as the stains on the underwear, the panties, the waistband [of
       the panties] and everything, I did review the tables and the contents of the
       report. And with the stipulation that I have not reviewed any electronic data,
       I have not seen any electropherograms or any raw data in this, but just
       reviewing the report, I would not disagree with the findings, his conclusions.




                                               -9-
When Petitioner’s counsel asked if there was anything in Harmor’s report or his conclusions
that made him believe that Harmor’s genetic markers were invalid, Agent Minor responded,
“Based on the table and his presentation of the markers, the alleles that are present, his
conclusions about these alleles [that they] did not come from Mr. Mills would be correct.”

        On cross-examination, Agent Minor acknowledged that before he would testify that
Harmor’s findings were accurate, he would have to review Harmor’s raw data to ensure that
the raw data supported Harmor’s conclusions. On re-direct examination, Agent Minor stated
that he did not request Harmor’s raw data because he was asked by the State to simply review
Harmor’s report. He admitted that Harmor’s raw data could have been transferred to him if
he had contacted Harmor at SERI; however, he stated that the State never asked him to
request this raw data. On re-cross, Agent Minor admitted that Petitioner’s counsel never
showed him the raw data from Harmor’s report.

        Gary Harmor, an expert in field of serology and DNA analysis, testified that he was
the Assistant Director of the Serological Research Institute (SERI) in Richmond, California.
He stated that his job responsibilities required him to supervise the laboratory. He also said
he had the title of Senior Forensic Serologist, which meant that he “selectively work[ed] on
cases” and did “technical reviews of cases” and was responsible for “quality control[,]”
“testing the staff for proficiency tests[,]” and “testif[ying] in court.” Harmor estimated that
eight-five to ninety percent of SERI’s casework was criminal, with sixty percent of the DNA
analysis requested by the prosecution and forty percent requested by the defense. He said
that although most of his DNA analysis was conducted for cases that were going to trial, as
compared to post-conviction cases with older samples to test, he had previously conducted
post-conviction DNA analysis for the state and the defense. Harmor said that he had been
retained by the Innocence Project to work on this case and had been retained by the
Innocence Project on other cases in the past.

        Harmor stated that he first became involved in the Petitioner’s case when the federal
public defender’s office in Nashville contacted him to review the evidence in this case. The
assistant federal public defender asked him to “look over some data, and then decide whether
or not retesting was necessary on the evidence that was collected.” Harmor stated that after
he concluded that a retest was necessary, an employee at the Marshall County Courthouse
forwarded the evidence in this case to him on March 31, 2008. He was sent two pieces of
evidence, item 1, the victim’s underwear, and item 2, the sexual assault evidence collection
kit from the victim and the sexual assault evidence collected from the suspect.

       Harmor stated that the victim’s underwear was examined visually and under an
ultraviolet light to find any stains. He said the underwear was fairly heavily stained with a
tan substance on the inside. He stated that the underwear had been previously sampled in

                                             -10-
two different locations, the crotch area and the rear waistband area. He made note of those
prior samples and took pictures of the areas where the samples had been taken. Then an acid
phosphatase test, a presumptive test for determining whether or not a stain could be seminal
fluid on the crotch and waistband of the panties, was conducted, which was negative. He
stated that the fact that the acid phosphatase test was negative did not mean that there was
no male DNA on the evidence. He then took samples of the crotch of the underwear in three
different locations and of the waistband in one location.

        Harmor stated that he used the P-30 test, which indicates whether seminal fluid is
present, on the evidence. When he used the P-30 test on the waistband cutting, item 1-1, it
was positive. He also stated that one of the crotch cuttings, item 1-4, was positive for P-30,
but the other three crotch cuttings, items 1-2 and 1-3, were negative for P-30. He stated that
the fact that 1-2 and 1-3 were negative did not mean that no male DNA was present. After
receiving positive results from the P-30 test on items 1-1 and 1-4, he was able to identify
sperm on items 1-1 and 1-4. He then performed a differential extraction for DNA
processing, which resulted in two pots of DNA, the epithelial DNA and the sperm cell DNA
or sperm fraction DNA. Once the DNA was concentrated to a drop of liquid, part of that
liquid was taken and subjected to quantification. Harmor stated that when he subjected the
liquid in this case to quantification, he was able to identify a sufficient amount of DNA to
perform amplification and genetic marker analysis.

       Harmor stated that he did the extraction, quantification, amplification for the 1-1, 1-2,
1-3, and 1-4 items. He then placed a portion of the amplified product into an instrument that
separated out the pieces of copied DNA by size. Once the data was collected, “it [was] put
through a program that identifies the size of the pieces that came through and what marker
they belong to.” He stated that the genetic marker analysis was short tandem repeat, or STR
testing, which is the generally accepted method of DNA testing. He stated that the unknown
samples that were tested were taken from the victim’s underwear and the known samples that
were tested were taken from the Petitioner and the victim.

        Harmor stated that he had to request a second sample from the Petitioner because the
first sample that was taken from him prior to trial “had degraded” and he was unable “to get
all the markers out of it that should have been there.” He stated that he obtained the second
sample to confirm the fifteen markers, plus the amelogenin. Harmor stated that he went
through the standard procedures for obtaining a DNA sample from a prisoner. He said that
he was able to get a partial profile from the Petitioner’s original sample but was able to get
a full profile from the Petitioner’s second sample.

      Harmor stated that he identified male DNA on unit 1-1, a cutting from the underwear
waistband. He then compared the genetic marker profile in unit 1-1 with the genetic marker

                                              -11-
profile from the Petitioner and determined that he was excluded as the source of the DNA.
He also identified male DNA on unit 1-2, a cutting from the crotch of the underwear. When
he compared the genetic marker profile in unit 1-2 with the genetic marker profile from the
Petitioner, he determined that the Petitioner was excluded as a source of this DNA as well.

        Harmor stated that he reviewed Sharon Jenkins’s November 2, 1999 report and her
raw data but never received the electronic data from her DNA analysis. He stated that
Jenkins identified a 13,14 type at the D8S1179 locus for the Petitioner’s known sample.
However, Harmor stated that he identified a 13, 13 type from the Petitioner’s known sample
at the D8S1179 locus. He stated that he believed Jenkins incorrectly reported the Petitioner
as a 13, 14 based on an artifact rather than a true peak at 14 in her analysis. He also stated
his belief that Jenkins “over amplified” the sample from the Petitioner, which caused the
sample to have artifacts rather than true peaks at the markers. He explained that “[w]hen you
over amplify a sample and add too much DNA to it, then the artifacts start to happen along
the baseline” and the “software will label it as a type 14, even though it is an artifact.” He
said, “In [Jenkins’s] results, there is an extremely high 13 peak, well off scale, and then a real
minute 14 peak next to it that is amongst the jittering of the baseline.” He added, “I think
that it was missed as an artifact rather than a real type.”

        Harmor stated that Jenkins identified sperm cells on the underwear crotch and on the
waistband, which was consistent with his results. He said that his sample 1-3 was adjacent
to the sample that Jenkins’s took from the crotch of the victim’s underwear. He stated that
his other two samples were in another part of the crotch area. He was unable to retest what
Jenkins had tested because her cutting from the victim’s underwear was gone. Harmor said
that he was able to identify more genetic material than Jenkins because of his preparation of
the sample. He noted that Jenkins “should have seen some kind of signal from the sperm
DNA fraction, based upon the number of sperm that were there; maybe not a complete
profile, but there should have been some signal of some sort from that, and they were totally
negative.” He also noted that Jenkins only drew “conclusions about the epithelial or non-
sperm fraction of the crotch of the pair of panties and not the sperm fraction.” However, he
would have included the conclusions regarding the sperm fraction “to give a more complete
result of the analysis[.]” He asserted that the difference in his results and Jenkins’s results
was not attributable to advances in technology because he had been using the same method
of preparation for over twenty years.

       On cross-examination, Harmor stated that he was not saying that the test where
Jenkins found one marker that she said could have come from the Petitioner was wrong. He
explained:




                                               -12-
              I looked at what I was provided, as far as her electropherograms, and
       the results are very difficult to see because the scale that it was printed at only
       shows the two types that she detected from is consistent with Randy Mills is
       very tiny on the baseline.

              So I would prefer to have looked at the electronic data and then
       analyzed it myself, with spreading the scale out, so that I could see what the
       peaks themselves looked like, to make sure they weren’t artifacts.

              I wasn’t able to do that because I was provided with no electronic data.
       But from what I see that was provided to me, I can’t say that she doesn’t have
       the right answer.

Harmor confirmed that SERI was accredited in the same manner as the TBI laboratories. He
acknowledged that an assistant, Heather Parsons, did the examination sampling under his
direction and performed the testing and that he analyzed the data. He also acknowledged that
Parsons gathered the raw data, but he asserted that he reviewed the raw data. He agreed that
if Parsons was inaccurate in her testing procedures, this could skew the results.

      Harmor admitted that he did not contact the TBI crime laboratory to see if the liquid
sample that Jenkins tested was still in existence because he did not think of doing that and
assumed it was not in existence. Harmor acknowledged that his May 28, 2008 report and his
September 8, 2008 report were basically the same except for the addition of the Petitioner’s
new known sample for the later report.

        Harmor acknowledged that DNA experts, when conducting analysis, have to make a
“partially subjective determination.” He said, “The analysts, once they have their data run
through the software programs, then look[] at the data and make[] a judgment on the data that
is present, as to whether or not it is an artifact or real.” He added, “Once that is determined,
then they develop a profile from that evidence that is used for comparison to the known
samples.”

       He acknowledged that he made a subjective call when he concluded that Jenkins
mistakenly identified the Petitioner’s known sample as a 13, 14 at the D8S1179 locus. He
agreed that Jenkins machine would have printed out a graph, just as his machine did. He
acknowledged that Jenkins machine probably printed out a 13, 14 even though he looked at
her graph and reached a different conclusion. However, Harmor asserted that he had two
other results showing that the Petitioner’s known sample was a 13 rather than a 14 at that
locus.



                                              -13-
       Harmor acknowledged that the newer machines and chemicals allow analysts to detect
DNA at a lower level. He acknowledged that the Y STR test would target just the Y
chromosome and would give more information on the sample regarding what the male donor
types were. He admitted that the Y STR would give a more definitive indicator that the
sample had been over amplified. He stated that he did not conduct the Y STR test, even
though it was available at SERI, because he determined that he had enough information from
which to draw conclusions after looking at his results from the regular STR tests, “which are
more of a powerful discriminator.”

        July 9, 2010 Evidentiary Hearing. Sharon Jenkins, who was qualified as an expert
in the field of serology and DNA testing, testified that she began working at the TBI in 1996
and left the TBI in 2008 to become the primary caregiver to her ill husband. Jenkins stated
that she examined the underwear from the victim and the known samples from the victim and
the Petitioner. She said she made three or four cuttings from the underwear for testing.
Jenkins acknowledged that it was possible for evidence to become contaminated before it
arrives at a lab if it is not sealed. She also stated that touching or talking over evidence could
contaminate the evidence because it could deposit DNA. She acknowledged that the
container holding evidence of the victim’s underwear had been opened prior to her receiving
it during trial. She stated that in the Petitioner’s post-conviction petition, he complained that
the container holding the victim’s underwear had been opened prior to trial.

        Jenkins stated that the victim’s underwear tested positive for semen and sperm. After
getting a request for DNA testing from the district attorney’s office, she did cuttings from the
underwear. With these cuttings, she did a differential extraction to separate the epithelial
cells from the sperm cells. She then ran those samples in the instrument that was calibrated
and tested. She stated that when the results came off the instrument, she looked at the results
and did a comparison of the DNA profiles that were presented in the unknown sample with
the DNA profiles from the victim’s and the Petitioner’s known samples. She stated that the
instrument prints out a chart of data with specific peaks for the alleles, otherwise known as
loci or markers. Jenkins stated that sometimes the instrument shows peaks that are not
numbered “because it is not a true peak.” She stated that some unreliable peaks are “stutter
peaks,” “pull-up peaks,” or “general artifact[s], something that is really not a peak.” She
explained the meaning of an artifact or a pull up:

       [Sometimes], due to the level of the DNA in these cases, you have [an] artifact,
       meaning it is not a true peak, but it might be a line that shows up in a region
       that may be an allele. Pull up would be because the region directly above a
       peak is so high, it is going to cause the peak below it to become actually higher
       than it really is. So it is an artificial peak, for lack of a better term.



                                              -14-
She also explained that stutter is “the appearance of a peak, or maybe a peak within four base
pairs of what is a true peak[,]” which you can see on the data.

       She stated that all scientists look for 13 different areas on the DNA, as well as the
amelogenin marker, which determines whether the DNA is male or female. Jenkins
explained that if the instrument numbered an allele as a 14, then she would compare that to
her known sample to determine if the person who contributed that sample had a 14 in that
area of the DNA. If so, then that allele could belong to that individual.

        Jenkins stated that the TBI required her to use a baseline of 150 RFU (relative
fluorescence units) for the instrument to recognize peaks because “[t]hat baseline would have
been what you call the optimal or the best area to call a peak if it is a true peak or not.” At
the time that she did her original tests in 1999, she did not look below 150 RFU because that
was against TBI’s policy, which was based on the manufacture’s recommended standards at
that time.

        Jenkins stated that of the 13 areas she was looking at in the DNA, she found one
location that she used not to exclude the Petitioner. She stated that this area was TH01 and
she found male and female chromosomes in that area. She acknowledged that at the
Petitioner’s trial, she testified that at the area of TH01, in the nonsperm fraction, she found
alleles 5, 9, which were both consistent with the Petitioner at that area. She concluded at trial
that an unrelated individual having the same DNA profile from the African-American
population was 1 in 270 and in the Caucasian population was 1 in 290. Jenkins stated that
her testimony would be the same today, that she was unable to rule the Petitioner out in the
TH01 area. To explain her statement that the other loci were inconclusive, she said, “[E]ither
I had markers that didn’t give me any peaks, or I had markers that were in common with the
victim’s standard, or I had markers that could have been pull up, or they could have been
stutter or just not attributable to the victim and subject markers.”

       Jenkins stated that everyone, except identical twins, would have different DNA.
However, she acknowledged that a father and a son would have similar DNA because DNA
is inherited from a person’s mother and father.

       Jenkins stated that a few days before testifying at the July 9, 2010 hearing, she
returned to the TBI lab, with TBI’s permission, to review her original data on the computer.
She explained that her original data was on a compact disk, and when she placed it in the
computer, it printed up “just like the day I examined it, gosh, back in 1999.” She then
reviewed the old data at the baseline level of 150 RFU to check all of the peaks that were
called and to refresh her memory as to the peaks she did not call or that she determined to be
inconclusive. She then dropped the baseline level to between 50 and 150 RFU. At that

                                              -15-
point, she began trying to locate all of the markers that were presented on the SERI data.
Jenkins stated that when she originally examined the crotch area of TH01 in 1999, she did
not notice any false peaks. When she reexamined them a few days before this hearing and
dropped the baseline to between 50 and 150 RFU, she did not find any other markers in that
area. Jenkins stated that when she lowered the baseline, she found no sperm fraction on the
crotch area and no sperm fraction on the waistband of the underwear at the locus TH01.
However, she noted that SERI found in the TH01 locus an allele number 8 on the sperm
fraction of the waistband in item 1-1 and on the sperm fraction of the crotch of the panties
in item 1-4, but she was unable to find an 8 there. She explained that the difference could
be because of the “technology, the sensitivity of their instruments” or because they may have
been able to find something different because they had a different cutting or because of
contamination. She said that after dropping the baseline, she still could not exclude the
Petitioner on TH01.

        Jenkins acknowledged that SERI found in the area D135317 alleles 12, 14 in item 1-1
that were male. She stated that SERI used these alleles to exclude the Petitioner because his
known markers at that location were 8, 12. In addition, SERI found in the area D135317 a
12, 14 in the sperm fraction for item 1-2 as male, which SERI used to exclude the Petitioner
because his known markers at that location are 8, 12. In area D165539, SERI found alleles
9, 11 in item 1-2, which SERI used to exclude the Petitioner because his known markers at
this location were 10, 13. Jenkins said that after reviewing SERI’s reports and data and after
conducting additional analysis of her data, she stated that there was nothing that would
change the testimony that she gave at the Petitioner’s trial.

       On cross-examination, Jenkins stated that she had never committed an error on any
casework and had never committed an error on any of her DNA proficiency tests. She stated
that she identified two alleles, a 13 and a 14 at the D8S1179 region from the Petitioner’s
known sample. She admitted that Harmor at SERI identified a 13, 13 at the D8S1179 region
for the Petitioner’s known sample and that even after SERI got a new sample from the
Petitioner, SERI still got a 13, 13 at that region for him upon retest. When asked who was
correct, Jenkins stated:

              I can answer that by saying there is a peak at 13 and then there is a
       lower peak at the 14, which is one of those peaks that may or may not be a
       peak. If you look at my data, which is over there now. And the instrument has
       indicated a peak. So we recorded it.

When asked if she mistyped that region, Jenkins said, “Again, it is not mistyped. The
instrument does that. It is there. And because it was there, both I and the technical reviewer
marked it, because it was there.”

                                             -16-
       Jenkins admitted that there were two alleles consistent with the Petitioner at the TH01
region, which meant that 1 in 290 Caucasians could have this allele. She acknowledged that
her STR testing produced very little human DNA, despite the fact that she identified semen
and sperm on the underwear. She said that there was not an abundance of sperm in that area.

        Looking at SERI’s results, Jenkins acknowledged that in item 1-1, which was the stain
on the waistband of the underwear, SERI identified 13 out of 16 alleles in the nonsperm
fraction and all sixteen alleles in the sperm fraction. She also acknowledged that in item 1-4,
one of the cuttings taken from the crotch of the underwear, SERI identified 14 of the 16
alleles in the nonsperm fraction and identified 15 of the 16 alleles in the sperm fraction. She
acknowledged that when she examined both of these areas of the underwear, she was unable
to get as much DNA.

         Jenkins acknowledged that when she tested the evidence in 1999, she identified a lot
of alleles that excluded the Petitioner, but she did not call them. When she conducted her
new test just before this hearing, she stated that she wanted to compare SERI’s results with
her results to see if SERI’s markers were really markers or if they were “false peaks” or “pull
up, . . . stutter, [or] artifacts[,]” which are unreliable.

     Jenkins stated that she did not report foreign alleles in her 1999 report because she
deemed them inconclusive:

       [A]fter looking at all of the data in all of the different locations and ruling out
       the ones that weren’t clear cut peaks that I could testify to were peaks, they
       were denoted as inconclusive. So the report reflects what was found on the
       underwear. It didn’t go so far as to say the underwear crotch, the underwear
       waistband. That is the data itself, in my notes.

She stated that she did not call the 9, 16 at the D8S1179 locus because in 1999, they were
below her calling level of 150 RFU.

       Jenkins stated that she did not call the 19, a weak result at 150 RFU, at the VWA
locus that excluded the Petitioner because she determined that it was a false peak even
though the instrument called it. She also stated that the 19 allele that she identified at the
FGA locus was not from the victim or the Petitioner; however, she said she did not call it
because it was a female allele based on the height of the peak.

      Jenkins stated that she had a problem with some of SERI’s conclusions because
Harmor “got a combination of weak mixtures, so it may or may not be there and it may or
may not be male[.]” She added, “I can’t tell if all of these [alleles found by SERI] are [from

                                              -17-
a female donor or] all of these are [from a male donor] because it wasn’t stated either,
because some of them are similar to the victim.” She stated that she was unable to review
SERI’s raw data, even though it had been provided, because the TBI uses a different type of
platform for its testing.

        Jenkins acknowledged that her testimony at this hearing was not different than her
testimony at trial, where she testified that she found one allele that was consistent with the
Petitioner’s DNA profile at the TH01 marker, meaning that 1 in 290 Caucasians would have
that allele at that location.

        On re-direct examination, Jenkins stated that while Harmor had reviewed an
assistant’s testing, her report was based on her own testing. Jenkins stated that for item 1-1
at least half of SERI’s alleles were identified at under 150 RFU. She acknowledged the
possibility that contamination could affect SERI’s results. She also acknowledged that two
different men could have deposited two different sets of DNA to the underwear:
“Remembering we did a differential extraction, where you are looking at nonsperm cells and
sperm cells, and since we didn’t find the sperm cells, it is more than likely that those are
nonsperm cells, or skin cells, epithelial cells. And, yes, they could be deposited on the
panties.” In addition, she admitted that these skin cells could have been deposited on the
underwear during trial if someone sneezed near them, if someone’s dandruff landed on them,
if someone talked over the underwear, or if someone came in contact with the underwear
during the normal course of the trial. She stated that this could account for SERI having to
go below 150 RFU to find the alleles.

       On re-cross examination, Jenkins admitted that the underwear could have been
contaminated prior to receipt by the TBI lab. She also acknowledged the possibility that
some DNA was on the underwear before the assault and that it belonged to someone other
than the assailant in this case.

        The State recalled Agent Minor at the conclusion of this hearing. Agent Minor
testified that he found it unusual that the alleles that were typed from the sperm and
nonsperm fractions of SERI’s 1-1 cutting from the waistband of the victim’s underwear had
alleles that were not attributable to either the victim or the Petitioner. He said that based on
his experience, he would expect these nonsperm alleles to match the victim and the fact that
they did not suggested “that there is either some type of contamination or the panties didn’t
belong to [the victim] or had been worn by someone else.” He explained that when testing
a sample, you are typing a nonsperm fraction and a sperm fraction, and the sperm fraction
could contain sperm cells or nonsperm cells. He acknowledged that both the nonsperm
fraction and the sperm fraction could contain skin cells if it was contaminated. Agent Minor



                                              -18-
explained that the TBI laboratories have a policy of not reexamining evidence that has been
examined by another lab because there are “no guarantees of how it has been handled.”

         Agent Minor stated that he had an issue with SERI’s conclusion in paragraph 2 that
“the genetic profile [in item 1-2 of the crotch of the underwear] is not consistent with the
genetic profile obtained from Randy Mills, therefore, Randy Mills is excluded . . . as a donor
to the genetic marker profile from the sperm fraction for item [1-2], major and minor donor
profiles are from unknown individuals.” Agent Minor stated, “I am really kind of puzzled
why they would take something that is negative for sperm and divide it into sperm and
nonsperm fraction, and then report in their report that he is excluded from the sperm fraction.
It is a little bit misleading in that regard and not clear.”

         Agent Minor stated that the problem he had with SERI’s conclusion in paragraph 3
that items 1-2, 1-3, and 1-4, where item 1-4 was the only one that tested positive for semen,
were consistent with the victim but were not consistent with the Petitioner. He stated, “It is
a little unclear . . . that we have two negative samples and a positive sample being reported
as epithelial fractions and excluding Mr. Mills.” He stated that he would have separated the
conclusions for items 1-2, 1-3, and 1-4.

       Agent Minor’s problem with SERI’s conclusion in paragraph 4 was similar to his
issue with paragraph 3. He stated that although the Petitioner was excluded as a donor to the
sperm fraction in the items of 1-2, 1-3, and 1-4, SERI implied that items 1-2 and 1-3 had a
sperm fraction. He stated, “[T]o say that [the Petitioner] is excluded from a sperm fraction
where there is no sperm is just a little confusing.”

       Agent Minor stated that the issue he had with SERI’s conclusion in paragraph 6 was
that SERI stated that the Petitioner was excluded even though no alleles were found on the
vaginal swabs other than the victim’s. He stated that SERI’s conclusion was prejudicial
because it implied “that there was [genetic material] there that is excluding him” even though
the only genetic material belonged to the victim.

       Agent Minor stated that the victim’s underwear could have been contaminated at the
SERI lab and that contamination could explain why SERI’s findings were different from
TBI’s findings. He also acknowledged that sperm transfer could have occurred if the
victim’s sister or mother had sexual relations with an individual and their underwear got
placed on top of or under the victim’s underwear.

       Agent Minor stated that TBI’s detection threshold was set at 150 RFU because it was
shown “that people [got] more callable types as a whole from that particular level.” He
stated that if you go too low you may get false peaks. He said that around the year 2000,

                                             -19-
when scientists realized that you could detect and see profiles below 150 RFU, the TBI set
a new policy stating “that we would drop the threshold only to benefit the defense in an effort
to possibly exclude someone from alleles.” However, he stated that the TBI labs “don’t
make calls from that, because of the accuracy of the validation levels that we have set at a
particular number. Again, for us, it is 150 RFU’s.”

        Agent Minor stated that his concern in comparing the TBI results with the SERI
results was that SERI found “some alleles that weren’t present in 1999[.]” He explained:

       [T]he only way that I can account for [SERI] getting additional alleles that
       didn’t exist in 1999 is because there is potential there that those alleles came
       after they left TBI. Whether that was in the courtroom, as you talked about
       earlier, or within the laboratory itself, that did the testing. And certainly there
       could be some precontamination, like [Petitioner’s counsel] brought up, as
       well.”

Agent Minor stated that after reviewing Jenkins’s report, he believed that the information that
Jenkins testified to in court in this case was correct.

        On cross-examination, Agent Minor acknowledged that because TBI now goes below
150 RFU, Jenkins’s new findings would be reported by the TBI. He acknowledged that the
alleles that excluded the Petitioner that were not reported by the TBI in 1999 would now be
reported. Agent Minor stated that had the Petitioner’s case been tried today, “you would
have results that said you have mixtures, and then you would have loci that would define
which ones were not consistent with Mr. Mills.”

       On re-direct examination, Agent Minor agreed that when Jenkins went below 150
RFU last week, she still did not find all of these alleles that SERI found. He acknowledged
that Jenkins did not find anything exculpatory but stated that there were some alleles that
were not consistent with the Petitioner. Agent Minor agreed that the trial court had to decide
why SERI found exculpatory alleles that the TBI did not find. He also agreed that these
differences could be the result of contamination. Agent Minor admitted that the 19 and 25
at the FGA locus in TBI’s results, which showed that there was a male contributor in the
nonsperm fraction, probably resulted from skin cells from another male.

      On re-cross, Agent Minor admitted that at the D8S1179 locus for the Petitioner’s
known sample, Jenkins called a 13, 14, and SERI called a 13, 13. He stated that after
reviewing the data, he would call it a 13, 13 at that locus just as SERI did.




                                              -20-
       Procedural History Following Evidentiary Hearings. On November 24, 2010, the
Petitioner filed a “Post-Hearing Brief Regarding [His] Writ of Error Coram Nobis Pursuant
to Tenn. Code Ann. § 40-26-105(a) and Petition to Re-Open Pursuant to Tenn. Code Ann.
§ 40-30-117.” In this brief, the Petitioner requested that the court grant his writ of error
coram nobis, vacate his conviction, and grant him a new trial “because the newly discovered
DNA results may have resulted in a different judgment had they been presented to the jury.”

      On January 26, 2011, the post-conviction court entered a memorandum order granting
a new trial on the charge of rape of a child–penile penetration but denying relief on the
remaining charges in counts 1, 4, 5, and 6:

               The only DNA evidence the jury had to consider was that of Agent
       Jenkins. The conclusion is inescapable that had the jury had before it SERI’s
       results to compare with the results of Agent Jenkins, their [sic] verdict might
       well be different as to the [rape of a child–]penile penetration charge. This is
       not to say that a jury’s verdict would be different after hearing SERI’s results
       only that it might be different. The DNA post-conviction court understands
       that to be the correct legal standard: Whether new evidence may have led to
       a different result. Whether a reasonable basis exists for concluding that had
       the evidence been presented at trial, the result of the proceedings might have
       been different. House v. Bell, 547 U.S. 518 (2006); State v. Vasques, 221
       S.W.3d 514 (Tenn. 2007).

               Accordingly, the DNA post-conviction court finds that the defendant
       should be granted a new trial as to the [rape of a child–]penile penetration
       count so that a jury can consider expert testimony from both sides. The Court,
       however, denies the defendant’s request for a new trial regarding the other
       charges of which he was found guilty because the SERI results do not
       necessarily cast doubt upon these convictions. At the post-conviction hearing,
       the defendant’s trial counsel . . . testified that the defendant told him that he
       had smoked marijuana with the victim, had fondled her, and had digitally
       penetrated her, but denied any penile penetration. Also, at the post-conviction
       hearing, the defendant’s attorney in General Sessions Court . . . testified that
       the defendant admitted digital penetration. The post-conviction court
       accredited the testimony of both of these attorneys and [its] denial of post-
       conviction relief has been affirmed on appeal. In this court’s mind the SERI
       DNA results do not undermine confidence in the outcome of those convictions
       in light of this testimony. Sedley Alley [v]. State, No. W2006-01179-CCA-
       R3-PD, 2006 WL 1703820, at [*]9 (Tenn. Crim. App., at Jackson, June 22,
       2006), perm. to appeal denied, (Tenn. June 27, 2006); Sedley Alley [v]. State,

                                             -21-
       No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at [*]9; see, e.g., State
       v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        On February 23, 2011, the Petitioner filed a notice of appeal. On April 20, 2011, the
post-conviction court entered an “Agreed Order,” which incorrectly claimed that the
Petitioner had been convicted of the following counts: count 2, rape of a child–penile
penetration, for which the Petitioner received a twenty-year sentence; counts 3, 4, and 5,
aggravated sexual battery, which were merged and for which the Petitioner received a
sentence of nine years and six months each; and count 6, casual exchange of a controlled
substance to a minor, for which the Petitioner received a two-year sentence. The order noted
that the trial court ordered each of these sentences be served concurrently. In the agreed
order, the State agreed to do the following:

       a.     The State shall nolle Count Two (Rape of a Child - Penile Penetration).
       b.     Counts Three, Four, and Five (aggravated sexual battery charges) shall
              be merged.
              i.     The sentence for Counts Three, Four, and Five shall be amended
                     from 9 years 6 months to 12 years at 100%.
       c.     The sentence for Count Six (Casual Exchange) shall remain at 2 years.
       d.     The 12 year sentence for Counts Three, Four, and Five shall run
              concurrently with the 2 year sentence for Count Six.
       e.     Petitioner shall receive full credit for the 11 years 3 months he has
              already served in the Tennessee Department of Correction[].

       Also on April 20, 2011, amended judgments were filed reflecting the dismissal of
count 2, rape of a child–penile penetration, and guilty jury verdicts in counts 3, 4, and 5,
aggravated sexual battery, with concurrent sentences of twelve years, and count 6, casual
exchange of a controlled substance to a minor, with a concurrent sentence of two years.

                                         ANALYSIS

        I. Whether the Petitioner is Entitled to Relief if the Motion is Construed as a
Motion to Reopen the Post-Conviction Petition or as a Petition for Writ of Error Coram
Nobis. On appeal, the Petitioner apparently concedes that he is not entitled to relief if his
motion is construed as a motion to reopen the post-conviction petition. However, he argues
that if his motion is construed as a petition for writ of error coram nobis, then the trial court
erred in refusing to grant a new trial on all of the charges for which he was convicted because
the new DNA evidence undermined the victim’s testimony as to all of these counts, not just
the count of rape of a child–penile penetration. In response, the State contends that if the
Petitioner’s motion is construed as a petition for post-conviction relief, the court erred by

                                              -22-
reopening the petition and granting partial relief in the form of a new trial on the child
rape–penile penetration charge because the newly discovered evidence does not satisfy the
requirement that the Petitioner is actually innocent of the charges of which he was convicted.
However, the State concedes that if the motion is treated as a petition for writ of error coram
nobis, then the trial court properly granted relief on the child rape–penile penetration charge
and properly denied relief on the other charges. We conclude that the trial court properly
construed the motion as a petition for writ of error coram nobis, thereby entitling the
Petitioner to relief.

       In order to reopen a petition for post-conviction relief, the appellant must make a
claim falling within the three narrow exceptions outlined in Tennessee Code Annotated
section 40-30-117(a):

       A petitioner may file a motion in the trial court to reopen the first
       post-conviction petition only if the following applies:

       (1) The claim in the motion is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The motion
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial; or

       (2) The claim in the motion is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the motion must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid; and

       (4) It appears that the facts underlying the claim, if true, would establish by
       clear and convincing evidence that the petitioner is entitled to have the
       conviction set aside or the sentence reduced.




                                             -23-
T.C.A. § 40-30-117(a) (Supp. 2009) (emphases added). The Tennessee Supreme Court has
interpreted the “actually innocent” language in subsection (2) to mean that “the person did
not commit the crime.” Keen v. State, 398 S.W.3d 594, 612 (Tenn. 2012).

        Here, in support for his motion to reopen the post-conviction petition, the Petitioner
claimed he had new scientific evidence establishing that he was actually innocent of the
offenses for which he was convicted. The State argues in its brief that the Petitioner is not
entitled to relief on his motion to reopen the post-conviction petition because the newly
discovered evidence did not establish that he was actually innocent of these offenses. We
agree. In Howell v. State, the Tennessee Supreme Court discussed the higher showing that
a defendant must make in filing a motion to reopen a post-conviction proceeding:

       [D]efendants petitioning for post-conviction relief are held to more stringent
       standards as they proceed further along in this process. They must present
       only a “colorable claim” to relief in an original petition, but in a motion to
       reopen a post-conviction proceeding they must present facts which “would
       establish by clear and convincing evidence” that they are entitled to relief.
       These progressively higher standards attempt to balance the State's interest in
       maintaining the finality of judgments with a petitioner’s interest in attacking
       a possibly unconstitutional conviction or sentence.

151 S.W.3d 450, 460 (Tenn. 2004) (internal citation omitted).

        We conclude that the Petitioner’s claim of new scientific evidence in the form of new
DNA evidence fails to present a claim under which a motion to reopen a post-conviction
proceeding may be granted. While SERI was able to exclude the Petitioner as the contributor
of the DNA in two places based on its testing, Jenkins was unable to exclude the Petitioner
at the TH01 locus and concluded that the probability in an unrelated individual having the
same DNA from the African/American population was approximately 1 in 270 and the
probability in an unrelated individual having the same DNA from the Caucasian population
was 1 in 290. At best, SERI’s results merely call into question whether the Petitioner
committed the offenses in this case but fall short of establishing by that the Petitioner was
actually innocent of these charges. Accordingly, the Petitioner has not presented scientific
evidence establishing his actual innocence and has not alleged any of the other statutory
reasons for reopening a post-conviction proceeding.

       Moreover, even if the Petitioner had established that he was actually innocent of the
offenses for which the petitioner was convicted, his appeal of the denial of his relief as to the
other charges was untimely. At the time that the post-conviction court denied his motion to
reopen, the Petitioner had only ten days to file an application for permission to appeal in the

                                              -24-
Court of Criminal Appeals, and the State had only ten days to respond. T.C.A. § 40-30-
117(c) (Supp. 2009). In this case, the trial court filed its memorandum order on January 26,
2011, and the Petitioner did not file his notice of appeal until February 23, 2011, well over
the ten-day time limit for filing an appeal to this court.

       On the other hand, we conclude that the trial court properly construed the Petitioner’s
motion as a writ of error coram nobis. A writ of error coram nobis is available to convicted
defendants. Id. § 40-26-105(a) (Supp. 2009). However, a writ of error coram nobis is an
“extraordinary procedural remedy” that “fills only a slight gap into which few cases fall.”
State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426,
428 (Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

       The Tennessee Supreme Court has distinguished a motion to reopen a post-conviction
petition from a petition for writ of error coram nobis:

       The grounds for seeking a petition for writ of error coram nobis are not limited
       to specific categories, as are the grounds for reopening a post-conviction
       petition. Coram nobis claims may be based upon any “newly discovered
       evidence relating to matters litigated at the trial” so long as the petitioner also
       establishes that the petitioner was “without fault” in failing to present the
       evidence at the proper time. Coram nobis claims therefore are singularly
       fact-intensive. Unlike motions to reopen, coram nobis claims are not easily
       resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

        Tennessee Code Annotated section 40-26-105 explains the relief available through
a petition for writ of error coram nobis. The statute provides, in pertinent part:

               The relief obtainable by this proceeding shall be confined to errors
       dehors the record and to matters that were not or could not have been litigated
       on the trial of the case, on a motion for new trial, on appeal in the nature of a
       writ of error, on writ of error, or in a habeas corpus proceeding. Upon a
       showing by the defendant that the defendant was without fault in failing to
       present certain evidence at the proper time, a writ of error coram nobis will lie
       for subsequently or newly discovered evidence relating to matters which were
       litigated at the trial if the judge determines that such evidence may have
       resulted in a different judgment, had it been presented at the trial.




                                              -25-
               The issue shall be tried by the court without the intervention of a jury,
       and if the decision be in favor of the petitioner, the judgment complained of
       shall be set aside and the defendant shall be granted a new trial in that cause.
       In the event a new trial is granted, the court may, in its discretion, admit the
       petitioner to bail; provided, that the offense is bailable. If not admitted to bail,
       the petitioner shall be confined in the county jail to await trial.

T.C.A. § 40-26-105 (b), (c) (Supp. 2009). A petition for writ of error coram nobis must
contain the following: “(1) the grounds and the nature of the newly discovered evidence; (2)
why the admissibility of the newly discovered evidence may have resulted in a different
judgment had the evidence been admitted at the previous trial; (3) the petitioner was without
fault in failing to present the newly discovered evidence at the appropriate time; and (4) the
relief sought by the petitioner.” Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App.
2004) (citing State v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App. 1995)). We note that
“[t]he decision to grant or deny a petition for the writ of error coram nobis on the ground of
subsequently or newly discovered evidence rests within the sound discretion of the trial
court.” Hart, 911 S.W.2d at 375 (citations omitted).

      In State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007) (emphasis added), the
Tennessee Supreme Court reiterated the standard for coram nobis relief:

               In an effort to amplify the standard established in Mixon and confirmed
       by our own decision in Workman, we hold that in a coram nobis proceeding,
       the trial judge must first consider the newly discovered evidence and be
       “reasonably well satisfied” with its veracity. If the defendant is “without fault”
       in the sense that the exercise of reasonable diligence would not have led to a
       timely discovery of the new information, the trial judge must then consider
       both the evidence at trial and that offered at the coram nobis proceeding in
       order to determine whether the new evidence may have led to a different
       result. In the Court of Criminal Appeals opinion in this case, Judge Joseph M.
       Tipton described the analysis as follows: “whether a reasonable basis exists
       for concluding that had the evidence been presented at trial, the result of the
       proceedings might have been different.” Although imprecise, our standard,
       which requires determination of both the relevance and the credibility of the
       discovered information, offers a balance between the position of the State and
       that of the defense. In our view, this interpretation upholds the traditional,
       discretionary authority of our trial judges to consider the new evidence in the
       context of the trial, to assess its veracity and its impact upon the testimony of
       the other witnesses, and to determine the potential effect, if any, on the
       outcome.

                                              -26-
        The statute of limitations for a petition for writ of error coram nobis is one year from
the date the judgment becomes final in the trial court. T.C.A. § 27-7-103 (Supp. 2009);
Mixon, 983 S.W.2d at 671. For the purposes of a petition for writ of error coram nobis, a
judgment becomes final thirty days after the entry of the trial court’s judgment if no post-trial
motions are filed or upon entry of an order disposing of a timely post-trial motion. Mixon,
983 S.W.2d at 670 (citing Tenn. R. App. P. 4(c); State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996)). Due process considerations may toll the one-year statute of limitations when
a petitioner seeks a writ of error coram nobis. Harris v. State, 301 S.W.3d 141, 145 (Tenn.
2010). “[B]efore a state may terminate a claim for failure to comply with procedural
requirements such as statutes of limitations, due process requires that potential litigants be
provided an opportunity for the presentation of claims at a meaningful time and in a
meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).

        The State has the burden of raising the statute of limitations bar as an affirmative
defense in a coram nobis proceeding. Harris, 301 S.W.3d at 144 (citing Harris, 102 S.W.3d
at 593). Whether a claim is barred by the statute of limitations is a question of law, which
this court reviews de novo. Id. (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918,
921 (Tenn. 2007)). Significantly, the State did not raise the bar of the statute of limitations
as an affirmative defense in this case; therefore, we will proceed as if the statute of
limitations does not preclude our consideration of this case.

        We conclude that the trial court properly construed the Petitioner’s motion as a
petition for writ of error coram nobis. In reaching this conclusion, we note that the language
in the Petitioner’s motion shows that he actively pursued relief in the trial court through not
only a motion to reopen a post-conviction petition but also a petition for writ of error coram
nobis. See Harris, 102 S.W.3d at 594 n.9 (holding that a petitioner who is seeking to have
the trial court consider both a motion to reopen and a petition for writ of error coram nobis
as possible avenues for relief “must be required to actively pursue both in the trial court”).
The court’s memorandum order shows that the court was “reasonably well satisfied” with the
veracity of the new DNA evidence and implicitly held that the Petitioner was without fault
in failing to present the new DNA evidence at the proper time. It also held that the newly
discovered evidence related to matters which were litigated at trial. Citing the standard in
Vasques, 221 S.W.3d at 527, the trial court held that “had the jury had before it SERI’s
results to compare with the results of Agent Jenkins, their [sic] verdict might well be
different . . . . ” Consequently, we conclude that the trial court properly construed the motion
as a petition for writ of error coram nobis, thereby entitling the Petitioner to relief.




                                              -27-
        II. Whether the Trial Court Erred in Failing to Grant Coram Nobis Relief on
All of the Petitioner’s Charges. The Petitioner argues that the court erred in failing to grant
him coram nobis relief on all of the charged counts for which he was convicted. The State
responds that the court properly granted relief on the child rape–penile penetration conviction
and properly denied relief on the other charges. Specifically, the State contends that “[t]he
presence of the DNA, even as a single locus, still corroborates the victim’s account of the
facts.” Although the State concedes that the trial court erred in taking into account the
general sessions counsel’s and trial counsel’s 2003 post-conviction testimony stating that the
Petitioner admitted that he smoked marijuana with the victim, fondled her, and digitally
penetrated her, it argues that the court’s decision to deny the writ of error coram nobis on the
remaining counts was proper and should be upheld.

        In his reply brief, the Petitioner argues that he is conclusively excluded by the DNA
on the victim’s underwear and asserts that the trial court implicitly rejected “any speculative
theory that the underwear was contaminated or that there is an existing dispute as to the DNA
results.” He also argues that, given the State’s concession that the trial court erred in
considering prior counsel’s 2003 post-conviction testimony, this court should grant him a
new trial on the remaining charges. We conclude that the trial court erred in denying the
Petitioner a new trial on all of the charges for which he was convicted.

         Initially, we note that the Petitioner failed to include the entire trial transcript in the
record on appeal. The transcripts from the evidentiary hearings show that the State made the
trial transcript an exhibit, and it appears that the trial court considered the trial record when
it granted coram nobis relief in the form of a new trial on count 2. Because the trial court
considered this information and because we must consider it to evaluate the Petitioner’s
claim, we have taken judicial notice of the entire record from the Petitioner’s direct appeal.
State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn. 2009).

       During the evidentiary hearings, the trial court evaluated the veracity of SERI’s new
DNA results and compared them with Jenkins’s DNA results from the Petitioner’s trial. The
court also heard testimony from Agent Minor, the technical manager for the TBI’s DNA
division. Harmor testified that SERI’s results showed that the Petitioner was excluded from
the male DNA from unit 1-1, the sample from the waistband of the victim’s underwear, and
was excluded from the male DNA on unit 1-2, the sample from the crotch of the victim’s
underwear. He noted that he was able to identify more genetic material on the underwear
than Jenkins. He also noted that Jenkins only drew “conclusions about the epithelial or non-
sperm fraction of the crotch of the pair of panties and not the sperm fraction.” Harmon stated
that he would have included the conclusions regarding the sperm fraction “to give a more
complete result of the analysis.” Regarding the one marker that Jenkins asserted could have
been contributed by the Petitioner, Harmon stated, “I would prefer to have looked at the

                                               -28-
electronic data and then analyzed it myself, with spreading the scale out, so that I could see
what the peaks themselves looked like, to make sure they weren’t artifacts.” Finally, he
opined that Jenkins had mistakenly identified the Petitioner’s known sample as a 13, 14
rather than a 13, 13 at the D8S1179 locus and asserted that he had two results showing that
the Petitioner was a 13, 13 at that locus.

         At the evidentiary hearing, Jenkins testified that during the Petitioner’s trial she
concluded that at the locus of TH01, in the non-sperm fraction, she found alleles 5, 9, which
were both consistent with the Petitioner’s known sample at that locus. She further concluded
at trial that an unrelated individual having the same DNA profile from the African-American
population was 1 in 270 and in the Caucasian population was 1 in 290. She confirmed that
her current testimony was the same as at the Petitioner’s trial, namely that she was unable to
rule the Petitioner out at the TH01 locus. Jenkins stated that when she lowered the baseline
to between 50 and 150 RFU, she found no sperm fraction on the crotch area or the waistband
area of the underwear at the TH01 locus. Although she acknowledged that SERI found an
allele number 8 on the sperm fraction of the waistband in item 1-1 and the sperm fraction of
the crotch of the panties in item 1-4, she stated that she was unable to find an 8 there. She
explained that the difference could be because of the “technology, the sensitivity of their
instruments” or because they may have been able to find something different because they
had a different cutting or because of contamination. She said that after dropping the baseline,
she still could not exclude the Petitioner at the locus TH01. Jenkins acknowledged that SERI
found in the area D135317 alleles 12, 14 in item 1-1 that were male. She stated that SERI
used these alleles to exclude the Petitioner because his known markers at that location were
8, 12. In addition, she noted that SERI found a 12, 14 in the sperm fraction for item 1-2 as
male, which SERI used to exclude the Petitioner because his known markers at that location
are 8, 12. In area D165539, SERI found alleles 9, 11 in item 1-2, which SERI used to
exclude the Petitioner because his known markers at this location were 10, 13. Jenkins
denied mistyping the Petitioner as a 13, 14 at the D8S1179 locus. She acknowledged that
her testing produced very little DNA despite the fact that she had identified sperm and semen
on the victim’s underwear and that SERI’s testing produced substantially more DNA in the
non-sperm and sperm fractions in units 1-1 and 1-4. She also acknowledged that when she
tested the underwear in 1999, she identified a lot of alleles that excluded the Petitioner, but
she did not call them because she deemed them inconclusive. Jenkins said that after
reviewing SERI’s reports and data and after conducting additional analysis of her data, she
stated that there was nothing that would change the testimony she gave at the Petitioner’s
trial.

      Agent Minor also testified at the evidentiary hearings. He stated that based on his
review of SERI’s report, there was nothing in SERI’s findings with which he disagreed.
However, he said that he had not reviewed SERI’s raw data to ensure that it supported

                                             -29-
SERI’s conclusions. He noted that he had some problems with the wording of SERI’s
conclusions in its reports and that contamination of the evidence could explain why SERI’s
findings were different from TBI’s findings. Agent Minor stated that he, like SERI,
identified the Petitioner’s known sample as a 13, 13 at the D8S1179 locus, even though
Jenkins identified the Petitioner as a 13, 14 at that locus. After considering the evidence
from the coram nobis hearing and the evidence presented at trial, the court granted the
Petitioner a new trial on count 2.

         First, the Petitioner argues that SERI’s exculpatory DNA evidence undermines the
victim’s testimony as to all of the charged counts, not just the charge of rape of a
child–penile penetration. He claims that this court on direct and post-conviction appeal held
that Jenkins’s “incriminating DNA evidence bolstered and corroborated [the victim’s] entire
testimony” and that “the new exculpatory DNA evidence eviscerates [the victim’s] entire
testimony.” He asserts that “the new exculpatory DNA evidence casts substantial doubt on
all of [the victim’s] trial testimony–not just her penile penetration testimony” and “[h]ad the
jury known of the exculpatory DNA evidence, [it] may have acquitted Mills” of the
remaining counts.”

        We believe the new DNA evidence casts at least some doubt on the accuracy of
Jenkins’s results and calls into question not only whether the Petitioner committed the
offense of rape of a child–penile penetration but also whether the Petitioner committed any
of the charged offenses. On direct appeal, this court recognized that the victim’s testimony
“constituted the bulk of the evidence against the defendant at trial” and that Jenkins’s
testimony that semen and sperm were found on the victim’s underwear corroborated the
victim’s testimony. Interestingly, Jenkins testimony at trial was that she found alleles 5, 9
at the locus TH01 that were consistent with the Petitioner and that the probability in an
unrelated individual having the same DNA profile from the African/American population
was 1 in 270 and in the Caucasian population was 1 in 290. However, the alleles that Jenkins
stated were consistent with the Petitioner were found in the non-sperm fraction of the sample,
rather than the sperm fraction of the sample. Moreover, Harmor stated that SERI was able
to identify more genetic material on the underwear than Jenkins and that SERI’s results
showed that the Petitioner was excluded from the male DNA from unit 1-1, the sample from
the waistband of the victim’s underwear, and was excluded from the male DNA on unit 1-2,
the sample from the crotch of the victim’s underwear. We agree with the Petitioner that the
new DNA evidence undermines the victim’s credibility not just as to the child rape–penile
penetration charge but also as to all the charges for which the Petitioner was convicted.
Consequently, we hold that a reasonable basis exists for concluding that had the new DNA
evidence been presented at trial, the result of the proceedings on all of the charges might
have been different. See Vasques, 221 S.W.3d at 527.



                                             -30-
        Second, the Petitioner contends that the court erred in denying relief on his other
convictions based on trial counsel’s and general sessions counsel’s 2003 post-conviction
testimony. He argues that in determining whether the new exculpatory DNA evidence may
have affected the original jury’s verdict, the court was limited to considering “both the
evidence at trial and that offered at the coram nobis proceeding[.]” Vasques, 221 S.W.3d at
527 (emphases added). He claims that because trial counsel’s and general sessions counsel’s
testimony was not presented at the Petitioner’s trial or the coram nobis hearing, the court was
prohibited from considering this testimony when determining whether to grant coram nobis
relief. We agree.

        The law is clear that the coram nobis court should have considered only the evidence
from the trial and the coram nobis hearing. See id. (“If the defendant is ‘without fault’ in the
sense that the exercise of reasonable diligence would not have led to a timely discovery of
the new information, the trial judge must then consider both the evidence at trial and that
offered at the coram nobis proceeding in order to determine whether the new evidence may
have led to a different result.”). We recognize that the evidence the trial court was to
consider in this case was complicated by the fact that the Petitioner’s motion not only asked
for the court to issue a writ of error coram nobis but also asked the court to reopen the post-
conviction petition. However, because the new scientific evidence failed to prove that the
Petitioner was actually innocent, as required in a motion to reopen the post-conviction
proceedings, the trial court should have considered only the evidence presented at trial and
the evidence presented at the coram nobis hearing when determining whether the Petitioner
was entitled to relief.

        Upon review, we conclude that the trial court erred in not granting the Petitioner a
new trial on all the charges for which he was convicted. Consequently, we affirm the trial
court’s judgment granting a new trial on count 2, we reverse the judgment denying a new
trial on counts 1, 4, 5, and 6, and we remand the case to the trial court for entry of an order
also granting the Petitioner a new trial in counts 1, 4, 5, and 6.

        III. Whether Prior Counsel’s 2003 Post-Conviction Testimony Regarding the
Petitioner’s Admissions as to Some of the Charges is Admissible as Substantive
Evidence of the Petitioner’s Guilt on Retrial. The Petitioner claims that the issue of
whether the State can use trial counsel’s and general sessions counsel’s 2003 post-conviction
testimony, which focused on ineffective assistance of counsel, as substantive evidence of
guilt at the defendant’s retrial is an issue of first impression in Tennessee. He asserts that the
implied waiver doctrine, the attorney-client privilege, and the Fifth and Sixth Amendments
preclude admission of such testimony as substantive evidence of guilt on retrial. Although
the State concedes that the trial court erred in considering prior counsels’ 2003 post-
conviction testimony, it does not address the issue of whether prior counsels’ testimony is

                                              -31-
admissible as substantive evidence of the Petitioner’s guilt upon retrial. We note that the
Petitioner is asking this court to decide this issue based on circumstances that have not yet
occurred and may not arise in the future. See State v. Rogers, 703 S.W.2d 166, 169 (Tenn.
Crim. App. 1985) (“An appellate court will not pass on lawsuits when there is no justiciable
controversy presented, or render advisory opinions on questions which are premature and
contingent and may never arise in the future.”). It is well-established that this court cannot
give advisory opinions. See State v. Rodgers, 235 S.W.3d 92, 97 (Tenn. 2007); State ex rel.
Lewis v. State, 347 S.W.2d 47, 48 (Tenn. 1961). Accordingly, we decline to review this
issue.

        IV. Whether the Trial Court Erred in Failing to Adjudicate the Merits of the
Petitioner’s State and Federal Constitutional Claims. First, the Petitioner claims that he
was denied due process because the presentation of false DNA testimony by Jenkins rendered
his trial fundamentally unfair because it may have affected the jury’s decision to convict him
on his remaining counts. Second, he argues that Jenkins’s inaccurate test of the DNA in
1999 prevented him from presenting a complete and meaningful defense because he was
unable to attack Jenkins’ DNA testimony and the victim’s testimony. Third, he contends that
he is entitled to relief because the new exculpatory DNA evidence proves that he is actually
innocent of his remaining counts. See Dellinger v. State, 279 S.W.3d 282, 285 (Tenn. 2009)
(“We hold that a claim of actual innocence based on new scientific evidence is cognizable
in an initial petition for post-conviction relief.”). Finally, he argues that “the cumulative
effect of prejudice from a range of different claims . . . may collectively provide a basis for
relief whether or not the effect of individual deficiencies warrants relief.” The State fails to
address any of these issues. We conclude that the trial court did not err in declining to
address the merits of the Petitioner’s state and federal constitutional claims.

        We note that we have already concluded that the Petitioner was not entitled to reopen
his post-conviction proceeding because the new scientific evidence did not establish that he
was actually innocent of the charges in this case and because he failed to allege any of the
other statutory grounds that would entitle him to reopen his post-conviction proceeding.
Although we have concluded that the Petitioner was entitled to coram nobis relief, we note
that state and federal constitutional claims are inappropriate in a petition for writ of error
coram nobis, and the appropriate vehicle for addressing constitutional violations is in a
petition for post-conviction relief. See T.C.A. § 40-30-203 (“Relief under this part shall be
granted when the conviction or sentence is void or voidable because of the abridgment of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United States.”).
Because the Petitioner failed to allege any statutory ground for reopening his post-conviction
proceeding, we conclude that the trial court did not err in declining to address the merits of
his state and federal constitutional claims.



                                              -32-
        V. Whether the Agreed Order and Amended Judgments are Void. Although not
raised by the Petitioner, the State argues that the trial court’s April 20, 2011 agreed order,
which was entered after the filing of the Petitioner’s notice of appeal, is null and void
because the court did not have jurisdiction of the case at the time of its entry. The Petitioner,
in his reply brief, argues that neither he nor the State has raised the agreed order as a bar to
this appeal and that the agreed order does not waive his appellate rights. He also asks that
this court “refrain from issuing an advisory opinion on the matter” in light of State ex rel.
Lewis v. State, 347 S.W.2d at 48. Initially, we acknowledge that the validity of the agreed
order does not involve “‘a genuine and existing controversy, calling for present adjudication
as involving present rights[.]’” Id. (quoting Southern Pac. Co. v. Eshelman, 227 F. 928, 932
(N.D. Cal. 1914) (No. 29)). Consequently, we cannot give an advisory opinion regarding
whether this agreed order is void. See Rodgers, 235 S.W.3d at 97; State ex rel. Lewis, 347
S.W.2d at 48. Moreover, this issue is moot because we have affirmed the trial court’s grant
of a new trial in count 2 and have reversed the trial court and granted a new trial to the
Petitioner in counts 1, 4, 5, and 6.

                                           CONCLUSION

       Upon review, the trial court’s judgment granting a new trial on count 2 is affirmed,
the judgment denying a new trial on counts 1, 4, 5, and 6 is reversed, and the case is
remanded to the trial court for entry of an order also granting the Petitioner a new trial on
counts 1, 4, 5, and 6.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -33-
