        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs March 3, 2015

                 TOMMY NUNLEY v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 9610669     John Wheeler Campbell, Judge




                No. W2014-01776-CCA-R3-PC - Filed April 13, 2015




Petitioner, Tommy Nunley, appeals the denial of his petition for relief under the Post-
Conviction DNA Analysis Act of 2001. Because the post-conviction court properly
determined that the evidence sought for analysis had been lost or destroyed, Petitioner is
not entitled to relief. Accordingly, the decision of the post-conviction court is affirmed.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Tommy Nunley, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; Amy P. Weirich; District Attorney General; and G. Kirby May,
Assistant District Attorney General, for the respondent, State of Tennessee.

                                       OPINION

                          Factual and Procedural Background

       Petitioner was convicted of the aggravated rape, a Class A felony, of his thirteen-
year-old cousin. As a Range I, standard offender, Petitioner received a twenty-five year
prison sentence. The conviction and sentence were affirmed on direct appeal. State v.
Tommy Nunley, No. 02C01-9804-CR-00114, 1999 WL 135044, at *1 (Tenn. Crim. App.
Mar. 12, 1999), perm. app. denied (Tenn. Sept. 13, 1999).
       Petitioner then filed a timely petition for post-conviction relief, alleging that his
trial counsel provided ineffective assistance for failing to seek state-funded expert
assistance for DNA testing of various pieces of evidence that comprised the rape kit
collected during the investigation of the case. During the course of the post-conviction
proceedings, the State reported to the post-conviction court that the rape kit, while in the
possession of the Memphis Sexual Assault Resource Center, had been either lost or
destroyed and was unavailable for testing. Consequently, the post-conviction court
granted relief. The State appealed, and this Court reversed the post-conviction court’s
decision, determining that Petitioner had failed to prove his claim of ineffective
assistance of counsel because he had not shown prejudice, i.e., that the DNA results of
the rape kit, if tested, would have affected the outcome of the trial. Tommy Nunley v.
State, No. W2003-02940-CCA-R3-PC, 2006 WL 44380, at *6 (Tenn. Crim. App. Jan. 6,
2006), application for perm. app. dismissed (Tenn. June 26, 2006).

       On May 16, 2014, Petitioner filed a pro se petition for relief under the Post-
Conviction DNA Analysis Act of 2001 (“the Act”), requesting that DNA analysis be
performed on all available evidence within the State’s possession. See T.C.A. § 40-30-
303. Petitioner also alleged that, “had the Rape Kit in this case been subjected to the [
]Short Tandem Repeat (“STR”) testing,” “there is a reasonable probability . . . that
Petitioner would not have been prosecuted or convicted.” The post-conviction court
appointed private counsel to assist Petitioner on June 26, 2014. 1 See T.C.A. § 40-30-307.
The State filed a response on July 7, 2014, and the post-conviction court entered an order
on July 17, 2014, denying the petition without a hearing. The post-conviction court
found that Petitioner was not entitled to relief because the evidence at issue is not “still in
existence and in such a condition that DNA analysis may be conducted,” as required by
Section 40-30-304(2). Petitioner filed a notice of appeal on August 14, 2014.

                                                 Analysis

        On appeal, Petitioner raises the following issue:

        Whether the [p]ost-[c]onviction [c]ourt erred by summarily dismissing [the
        petition] without making a determination as to whether the State’s failure to
        preserve potentially exculpatory evidence, [specifically] the victim’s Rape
        Kit, prior to trial rendered [Petitioner]’s trial to be fundamentally unfair
        under [A]rticle I, [section] 8 of the Tennessee Constitution . . . .



        1
          Although there is an order appointing counsel, there is no indication in the record that Petitioner
was ever assisted by counsel. There is no motion filing with counsel’s signature or a motion to withdraw.
Petitioner’s notice of appeal and appellate brief were filed pro se.
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Petitioner cites State v. Merriman, 410 S.W.3d 779 (Tenn. 2013), as supporting his
argument that the post-conviction court erred in denying his petition without conducting a
due process hearing, as required by State v. Ferguson, 2 S.W.3d 912 (Tenn. 1999).

        The State responds that the post-conviction court properly exercised its discretion
in denying the petition because the evidence from the record and the previous
proceedings establish that Petitioner is not entitled to relief under the Act as the Rape Kit
is no longer available for DNA testing. Additionally, the State cites several cases for the
proposition that the post-conviction court was not required to follow the requirements of
Ferguson.

       A defendant convicted of aggravated rape “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.” T.C.A. § 40-30-303. There is “no statutory time limit on
requests for testing . . . .” Powers v. State, 343 S.W.3d 36, 48 (Tenn. 2011) (citing
Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006)).

       A petitioner under this statute is entitled to a mandatory DNA analysis if the
following four requirements are satisfied:

       (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.

T.C.A. § 40-30-304. However, “all four elements must be met before DNA analysis will
be ordered by the court.” Powers, 343 S.W.3d at 48. 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.” William D. Buford v. State, No.
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M2002-02180-CCA-R3-PC, 2003 WL 1937110, at *3 (Tenn. Crim. App. Apr. 24, 2003)
(citing T.C.A. § 40-30-312). Accordingly, a post-conviction court may summarily
dismiss the petition if “it is apparent that each prerequisite cannot be established.” Id. at
*6. When assessing the merits of a claim for DNA analysis, a post-conviction court may
consider “the opinions of this [C]ourt on either the direct appeal of the conviction or the
appeals in any previous post-conviction or habeas corpus actions.” Mark. A. Mitchell v.
State, No. M2002-01500-CCA-R3-PC, 2003 WL 1868649, at *4 (Tenn. Crim. App. Apr.
11, 2003), perm. app. denied (Tenn. Oct. 13, 2003).

       Based on this Court’s previous decisions in Petitioner’s case, the post-conviction
court concluded that the Rape Kit that Petitioner seeks to have analyzed is either
nonexistent, lost, or unable to be tested. See Tommy Nunley, 2006 WL 44380, at *6
(accepting that evidence in the Rape Kit has been either lost or destroyed). In its
response to the petition, the State asserted that it is still unable to locate the Rape Kit.
Accordingly, the post-conviction court determined that Petitioner had not and could not
make a prima facie showing of relief. Because this Court has previously determined that
the Rape Kit is no longer available for testing, the post-conviction court properly denied
relief on the basis that Petitioner cannot satisfy the statutory requirements for DNA
analysis.

        On appeal, Petitioner argues that the post-conviction court erred by failing to
conduct a Ferguson inquiry as to whether the State had a duty to preserve the evidence at
issue after Petitioner was convicted. This Court specifically declined to consider that
question in Petitioner’s appeal on his initial petition for post-conviction relief because it
was not necessary for resolution of the case. See Tommy Nunley, 2006 WL 44380, at *6
n.3 (noting that the “issue begs the additional question of whether the loss or destruction
of evidence by the State is even relevant in the context of a post-conviction claim,
[Edward] Thompson v. State, No. E2003-01089-CCA-R3-PC[, 2004 WL 911279] (Tenn.
Crim. App. at Knoxville, Apr. 29, 2004)[, perm. app. denied (Tenn. Oct. 4, 2004)], or if
the State has a duty to preserve the evidence following a defendant’s conviction[,] State
v. Ferguson, 2 S.W.2d 912, 917 (Tenn. 1999)”). The State argues that this question, as it
applies to Petitioner, has been decided in Tennessee, citing William D. Buford, 2003 WL
1937110, at *6 (concluding that, “because the DNA Analysis Act did not become
effective until August 1, 2001, some 20 years after the convictions at issue, the rationale
of our supreme court in Ferguson as to the pre-trial obligation of the prosecution to
preserve evidence, would not apply”), and Clinton Wayne Lynch v. State, No. M2002-
02801-CCA-R3-PC, 2003 WL 21349919, at *1 (Tenn. Crim. App. June 10, 2003) (“The
pre-trial obligation of the prosecution to preserve evidence necessary to assure a fair trial
is not applicable.”). See also Brandon Mobley v. State, No. E2010-00379-CCA-R3-PC,
2011 WL 3652535, at *20 (Tenn. Crim. App. Aug. 18, 2011) (“Our courts have not
extended the application of Ferguson to post-conviction proceedings.”), rev’d on other
                                             -4-
grounds, 397 S.W.3d 70 (Tenn. 2013). Regardless, this issue was not presented to the
post-conviction court and thus is waived. Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn.
2005) (“Issues not addressed in the post-conviction court will generally not be addressed
on appeal.” (citing Rickman v. State, 972 S.W.2d 687, 691 (Tenn. Crim. App. 1997))).

                                      Conclusion

      Based on the foregoing, we affirm the decision of the post-conviction court.




                                                 _________________________________
                                                 TIMOTHY L. EASTER, JUDGE




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