                                                                                       04/25/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs April 3, 2018

                  ERIC BLEDSOE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 09-06393       Chris Craft, Judge


                            No. W2017-01399-CCA-R3-PC



The Petitioner, Eric Bledsoe, appeals as of right from the dismissal of his petition for
post-conviction relief, wherein he requested DNA analysis pursuant to Tennessee Code
Annotated section 40-30-303. On appeal, the Petitioner contends that the post-conviction
court erred in dismissing his petition for post-conviction DNA analysis because the
evidence was already tested. Following our review, we affirm the judgment of the post-
conviction court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and J. ROSS DYER, JJ., joined.

Eric Bledsoe, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Marianne L. Bell,
Assistant District Attorney General, for the appellee, State of Tennessee.
                               OPINION
                 FACTUAL AND PROCEDURAL BACKGROUND
        On October 8, 2009, the Shelby County grand jury indicted the Petitioner of one
count of aggravated rape, one count of aggravated burglary, and one count of theft of
property valued at $1,000 or more but less than $10,000. On April 16, 2012, the
Petitioner’s case went to trial, and the jury convicted him as charged. At the subsequent
sentencing hearing, the trial court sentenced the Petitioner to an effective sentence of
sixty-five years to be served in the Tennessee Department of Correction. On direct
appeal, this court affirmed his convictions and sentences. State v. Eric Bledsoe, No.
W2012-01643-CCA-R3-CD, 2013 WL 3968780 (Tenn. Crim. App. July 31, 2013), perm.
app. denied (Tenn. Nov. 14, 2013).
       Thereafter, the Petitioner filed for post-conviction relief alleging ineffective
assistance of counsel. The post-conviction court denied relief, and this court affirmed the
denial on appeal. Eric Bledsoe v. State, No. W2016-00419-CCA-R3-PC, 2017 WL
1380022 (Tenn. Crim. App. April 13, 2017), perm. app. denied (Tenn. Aug. 18, 2017).
        The relevant facts underlying the offenses that were introduced at Petitioner’s jury
trial are as follows:
       On May 18, 2009, the Petitioner came into victim’s townhome through her
       open window and sexually assaulted the victim. When the victim fought
       back, the Petitioner placed both hands around the victim’s neck and choked
       her until she was unconscious. When the victim regained consciousness,
       the [Petitioner] was gone, and she noticed that her underwear had been
       pushed to the side.
       ....
       Dr. Amanda Taylor, a sexual assault nurse examiner at the Rape Crisis
       Center, testified as an expert witness in forensic nursing and sexual assault
       examinations. The victim arrived at the Rape Crisis Center at 9:30 a.m. on
       May 18, 2009…. In this case, the victim had injuries both to her neck and
       thighs, and they were fresh injuries at the time of the physical examination.
       The victim also had a genital examination, which involved both an internal
       and external examination…. Dr. Taylor collected a rape kit consisting of
       four swabs from the victim’s mouth for baseline DNA, four swabs from the
       “vulvar area,” and four swabs from the internal genital area. The kit also
       included the victim’s underwear.
       ....
       Donna Nelson, a special agent forensic scientist assigned to the serology[,
       and] DNA unit with the TBI testified as an expert witness in the area of
       DNA analysis. Her job at the TBI was to process evidence for DNA and
       test any DNA evidence for possible matches. After receiving the rape kit,
       Special Agent Nelson first tested the vaginal swabs for the presence of
       semen. The vaginal swabs tested negative for the presence of semen. The
       vulvar swabs were then tested for the presence of alpha amylase, an enzyme
       found in saliva. The tests returned positive results for the presence of alpha
       amylase. Because the alpha amylase is found in other substances, its
       presence only indicates the possibility of the presence of saliva, and is not
       conclusory. The victim’s underwear tested positive for the presence of
       semen, on the inside of the underwear, in the “front of the crotch area.”
       After these tests were performed, the evidence was returned to the TBI’s
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       evidence vault, and Special Agent Nelson requested a DNA standard from
       the [Petitioner]. The semen found on the victim’s underwear was matched
       to the [Petitioner’s] DNA. Dr. Taylor’s report on the DNA test results
       stated that the “probability of an unrelated individual having the same DNA
       profile from either the African American, Caucasian, Southeastern Hispanic
       or Southwestern Hispanic population exceeds the current world
       population.”
For a full recitation of the facts, see State v. Bledsoe, 2013 WL 3968780, at *1-3 (Tenn.
Crim. App. July 31, 2013).
        While the Petitioner’s post-conviction appeal was pending in this court, the
Petitioner filed a pro se petition for post-conviction relief requesting DNA analysis
pursuant to the Post-Conviction DNA Analysis Act of 2001. Specifically, the Petitioner
sought the testing of the victim’s “panties, bedsheets, and [a] white piece of tissue,” and
he alleged that the DNA testing “would show that the DNA was not that of the
[P]etitioner, thereby establishing the [P]etitioner’s actual innocence.”
       In its June 7, 2017 order denying the petition for DNA testing, the post-conviction
court concluded that the Petitioner failed to establish the third requirement of Tennessee
Code Annotated section 40-30-304. In accordance with those statutory requirements, the
court found that “the DNA evidence ha[d] in fact previously been tested and the results of
those tests were admitted as evidence in the [P]etitioner’s jury trial against him to prove
his guilt.” This appeal followed.
                                       ANALYSIS

       On appeal, the Petitioner contends that the post-conviction court erred in
dismissing his petition for post-conviction DNA analysis. Specifically, the Petitioner
argues that additional DNA testing of the evidence presented at trial would show that the
DNA that was found does not belong to the Petitioner. The State responds that the
Petitioner is not entitled to relief because the post-conviction court correctly concluded
that he failed to meet the four criteria in Tennessee Code Annotated section 40-30-304.

       The Post-Conviction DNA Analysis Act of 2001 provides that:

       [A] person convicted of and sentenced for the commission of first degree
       murder, second degree murder, aggravated rape, rape, aggravated sexual
       battery or rape of a child, the attempted commission of any of these
       offenses, any lesser included offense of these offenses, or, at the direction
       of the trial judge, any other offense, may at any time, file a petition
       requesting the forensic DNA analysis of any evidence that is in the
       possession or control of the prosecution, law enforcement, laboratory, or
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      court, and that is related to the investigation or prosecution that resulted in
      the judgment of conviction and that may contain biological evidence.

Tenn. Code Ann. § 40-30-303.

      A post-conviction court is obligated to order DNA analysis when a petitioner has
met each of the following four conditions:

      (1) A reasonable probability exists that the petitioner would not have been
      prosecuted or convicted if exculpatory results had been obtained through
      DNA analysis;

      (2) The evidence is still in existence and in such a condition that DNA
      analysis may be conducted;

      (3) The evidence was never previously subjected to DNA analysis or was
      not subjected to the analysis that is now requested which could resolve an
      issue not resolved by previous analysis; and

      (4) The application for analysis is made for the purpose of demonstrating
      innocence and not to unreasonably delay the execution of sentence or
      administration of justice.

Tenn. Code Ann. § 40-30-304.

       This court has held that “the failure to meet any of the qualifying criteria is, of
course, fatal to the action.” William D. Buford v. State, No. M2002-02180-CCA-R3-PC,
2003 WL 1937110, at *6 (Tenn. Crim. App. Apr. 24, 2003). The post-conviction court
found the evidence was previously subjected to DNA analysis and conclusively identified
the Petitioner’s DNA in the semen found in the victim’s underwear. Thus, the Petitioner
has failed to establish the third factor required under section 40-30-304 for post-
conviction DNA analysis testing. Accordingly, the Petitioner is not entitled to relief.

                                    CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the post-conviction
court’s dismissal of the petition for post-conviction relief is affirmed.


                                                       __________________________________
                                                      D. KELLY THOMAS, JR., JUDGE

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