         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 19, 2005

                 MICHAEL LINDSEY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                        No. P-27883 Carolyn Wade Blackett, Judge



                     No. W2004-01169-CCA-R3-PC - Filed April 25, 2005


The petitioner, Michael Lindsey, appeals the dismissal of his petition for DNA testing pursuant to
the Post-Conviction DNA Analysis Act, Tennessee Code Annotated section 40-30-301, et seq. On
appeal, he argues that the post-conviction court erred in dismissing the petition without holding an
evidentiary hearing. Following our review, we affirm the dismissal of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOSEPH
M. TIPTON , J., joined.

Michael Lindsey, Hardeman County Correctional Facility, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michael Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        The petitioner was convicted by a Shelby County Criminal Court jury of second degree
murder in 1989 and sentenced as a Range II offender to seventy years imprisonment. His conviction
and sentence were affirmed by this court on direct appeal, and no application for permission to
appeal to the supreme court was filed. See State v. Michael Lindsey, No. 35, 1990 WL 14557, at
*1 (Tenn. Crim. App. Feb. 21, 1990), no perm. to appeal filed. The circumstances surrounding the
crime are set forth in our direct appeal opinion, which reveals that the victim, the nephew of a drug
dealer, was fatally shot in the back by the petitioner after the petitioner and a female accomplice had
gone to the drug dealer’s house to rob him and the victim engaged in a struggle with the petitioner
over his gun. Id. In 1993, the petitioner filed a petition for post-conviction relief, which was denied,
followed by a second petition for post-conviction relief in 2003, which was also denied.
        On January 30, 2004, the petitioner filed a pro se petition for DNA testing under the Post-
conviction DNA Analysis Act of 2001, requesting that DNA testing be performed on the “human
biological evidence” collected in the case, specifically, the “bullets, clothing’s [sic], hair samples,
blood and finger prints [sic].” In response, the State filed a motion to dismiss on the basis that no
DNA evidence was collected in the petitioner’s case. On April 16, 2004, the post-conviction court
entered an order denying the request for DNA analysis, finding that the petitioner had failed to
demonstrate a basis under Tennessee Code Annotated section 40-30-304 for the court to order DNA
analysis. Thereafter, the petitioner filed an appeal to this court, arguing that the post-conviction
court erred in denying his petition without holding an evidentiary hearing.

                                            ANALYSIS

       The Post-Conviction DNA Analysis Act of 2001 allows a defendant convicted of certain
crimes, including second degree murder, to petition the court at any time for DNA analysis of
evidence in the possession or control of the State. See Tenn. Code Ann. § 40-30-303 (2003).
Section 40-30-304 provides that the court shall order DNA analysis if it finds the following:

               (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. Similarly, section 40-30-305 permits the trial court to order DNA
analysis if it finds that “[a] reasonable probability exists that analysis of the evidence will produce
DNA results which would have rendered the petitioner’s verdict or sentence more favorable” and
when other requirements, identical to subsections (2) through (4) of section 40-30-304, are met. This
court has held that “[t]he 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), perm. to appeal dismissed (Tenn. Sept. 2, 2003).

       On appeal, the petitioner asserts that “the bullet introduced at his trial that allegedly killed
the victim was not subjected to DNA analysis” and contends that “had he been afforded the
opportunity to show that this important piece of the State’s evidence was not even related to the case,


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the verdict in this case would have been more favorable to him.” The State responded to the petition,
however, by asserting that there was never any evidence for DNA analysis in the case, “either
collected at the crime scene or after.” We observe, moreover, that there is nothing in the record to
indicate how DNA testing of the bullet that killed the victim would have resulted in a more favorable
outcome to the petitioner. In this respect, we note our characterization in the direct appeal opinion
of the evidence of the petitioner’s guilt as “overwhelming.” Michael Lindsey, 1990 WL 14557, at
*2. Thus, we conclude that the post-conviction court did not err in denying the petition for DNA
analysis without an evidentiary hearing.

                                         CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the post-conviction court’s
denial of the petition for DNA analysis.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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