        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 21, 2014

                  HOUSTON ISLEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                  No. C63543     Robert H. Montgomery, Jr., Judge


               No. E2014-00969-CCA-R3-PC - Filed November 24, 2014


The petitioner, Houston Isley, appeals pro se from the summary dismissal of his petition for
post-conviction relief, which challenged his 2012 convictions of aggravated sexual battery,
incest, and attempted rape of a child and which was styled as requesting deoxyribonucleic
acid (“DNA”) analysis. Because the petitioner failed to allege any basis to support an order
for DNA analysis and because his petition for post-conviction relief is otherwise procedurally
barred, the judgment of the trial court is affirmed.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., J., joined. R OBERT H. H OLLOWAY, JR., J., not participating.

Houston Isley, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; and Barry Staubus, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

               On February 2, 2012, the petitioner pleaded guilty to one count each of
aggravated sexual battery, incest, and attempted rape of a child, and the trial court imposed
an effective sentence of 10 years’ incarceration. The petitioner filed a timely petition for
post-conviction relief alleging ineffective assistance of counsel and an unlawfully induced
guilty plea, and, following a November 18, 2013 evidentiary hearing, the post-conviction
court denied relief. The petitioner did not appeal the post-conviction court’s order.

              On May 5, 2014, the petitioner filed a petition for post-conviction relief
requesting DNA analysis pursuant to Tennessee Code Annotated section 40-30-303, claiming
that his due process rights were violated due to trial counsel’s failure to investigate; that a
detective involved in the case had committed perjury; that trial counsel failed to call
witnesses; that the petitioner did not receive an expeditious hearing; and that his Miranda
rights were violated. In its order summarily dismissing the petition, the post-conviction court
found that the petitioner “failed to identify any item that [p]etitioner believes should be
subjected to DNA analysis” and “failed to set out a basis for the Court to order DNA
analysis.” In addition, the court stated that the petitioner had “previously filed a petition for
post-conviction relief” which had been resolved on the merits following a hearing and which
therefore necessitated dismissal of the petition.

               On appeal, the petitioner challenges the summary dismissal of his 2014
petition, contending that the post-conviction court erred by denying his request for DNA
analysis.

                The Post-Conviction DNA Analysis Act of 2001 (“the Act”) applies only to
certain felonies, which include, among others, aggravated sexual battery, rape of a child, and
the attempted commission of either of those offenses. T.C.A. § 40-30-303. The petitioner
“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 court, and
that is related to the investigation or prosecution that resulted in the judgment of conviction
and that may contain biological evidence.” Id.

              The Act provides no statutory time limit and gives petitioners the opportunity
to request analysis at “any time,” whether or not such a request was made at trial. Griffin v.
State, 182 S.W.3d 795, 799 (Tenn. 2006). A post-conviction court is obligated to order DNA
analysis when the 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



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               (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.

T.C.A. § 40-30-304; see also Griffin, 182 S.W.3d at 798. Additionally, if DNA analysis
would have produced a more favorable verdict or sentence if the results had been available
at the proceedings leading up to the conviction or sentence, then the post-conviction court
may order DNA analysis when the petitioner meets the same conditions. T.C.A. § 40-30-
305; see also Griffin, 182 S.W.3d at 798. In either instance, some physical evidence must
be available and in a proper condition to enable DNA analysis. T.C.A. §§ 40-30-304(2), -
305(2).

               A petitioner’s failure to meet any of the qualifying criteria is fatal to the action.
See William D. Buford v. State, No. M2002-02180-CCA-R3-PC, slip op. at 6 (Tenn. Crim.
App., Nashville, Apr. 24, 2003). Moreover, the Act does not specifically provide for a
hearing as to the qualifying criteria and, in fact, authorizes a hearing only after DNA analysis
produces a favorable result. See T.C.A. § 40-30-312.

                The post-conviction court has considerable discretion in determining whether
to grant relief under the Act, and the scope of appellate review is limited. See Sedley Alley
v. State, No. W2006-01179-CCA-R3-PD, slip op. at 7 (Tenn. Crim. App., Jackson, June 22,
2006). In making its decision, the post-conviction court must consider all the available
evidence, including the evidence presented at trial and any stipulations of fact made by either
party. Id. The lower court may also consider the opinions of this court and the Tennessee
Supreme Court on direct appeal of the petitioner’s convictions or the appeals of the
petitioner’s prior post-conviction or habeas corpus actions. Id. On appellate review, this
court will not reverse unless the judgment of the lower court is not supported by substantial
evidence. Id.

               In interpreting the scope of the Act, this court has ruled that the Act’s reach “is
limited to the performance of DNA analysis which compares the petitioner’s DNA to . . .
biological specimens gathered at the time of the offense.” Sedley Alley, slip op. at 11. In
other words, the Act “does not authorize the trial court to order the victim to submit new
DNA samples years after the offense, nor does the statute open the door to any other
comparisons the petitioner may envision.” Id. The Act, at most, creates “a limited interest
of a defendant in establishing his/her innocence and [does] not create an interest in
establishing the guilt of a speculative and unknown third party.” Id.

              In the instant case, we find no abuse of discretion in the post-conviction court’s
dismissal of the petition for post-conviction relief. The petitioner utterly failed to identify

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anything that would entitle him to DNA analysis under the Act and instead sought relief for
issues that could have been raised in his original petition for post-conviction relief.
Moreover, as to the other claims stated in the petition, the law is clear that under no
circumstances “may more than one (1) petition for post-conviction relief be filed attacking
a single judgment . . . . [i]f a prior petition has been . . . resolved on the merits.” T.C.A. § 40-
30-102(c). Because the instant petition for post-conviction relief is the second such petition
sought in this case, summary dismissal of the petition was appropriate.

               Accordingly, the judgment of the post-conviction court is affirmed.

                                                      _________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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