Mack Transou v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2011

MACK TRANSOU v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Madison County

No. C-10-179 Roy B. Morgan, Judge

No. W2010-01378-CCA-R3-CO - Filed June 1, 2011

The pro se petitioner, Mack Transou, appeals the trial court’s denial of his petition for writ

of certiorari or, in the alternative, petition for writ of error. After reviewing the record, the

parties’ briefs, and the applicable law, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE R.

M CM ULLEN, JJ., joined.

Mack Transou, pro se, West Tennessee State Penitentiary, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney

General; James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

The petitioner, Mack Transou, has a long and procedurally complex history in this

court. In a previous opinion, this court summarized the facts surrounding the petitioner’s

case as follows:

The petitioner was convicted in separate jury trials of aggravated burglary and

rape based on a December 23, 2001 criminal episode involving one victim, see

State v. Mack T. Transou, No. W2003-02966-CCA-R3-CD, 2005 WL

1154345, at *1 (Tenn. Crim. App. May 13, 2005), perm. to appeal granted

(Tenn. Oct. 3, 2005), and of rape and sexual battery based on a March 17,

2002 episode involving a different victim. See State v. Mack T. Transou, No.

W2004-01475-CCA-R3-CD, 2005 WL 1541859, at *1 (Tenn. Crim. App. June

30, 2005), perm. to appeal granted (Tenn. Oct. 3, 2005). Our supreme court

set out the background of the cases in the consolidated appeal in which it

affirmed the petitioner’s convictions and sentences:

Defendant Mack Transou was convicted in 1999 of the Class E

felony offense of driving after being declared a motor vehicle

habitual offender. See [Tenn. Code Ann.] § 55-10-613(a), 55-

10-616(b). The offense date was May 14, 1997. Transou was

subsequently incarcerated for his infraction. During intake

processing at the prison, Transou signed a consent form and

submitted to a blood draw. A DNA analysis was performed and

the results were submitted to CODIS. Transou’s DNA profile

was eventually matched to profiles developed from forensic

evidence obtained in two unsolved crimes: the reported rape of

S.K. in December 2001 and the reported rape of C.T. in March

2002. Transou was subsequently charged with both sets of

offenses. In both cases he filed a motion to suppress the

evidence obtained pursuant to the 1999 blood draw taken while

he was in prison.

State v. Scarborough, 201 S.W.3d 607, 612 (Tenn. 2006) (footnote omitted).

In affirming the petitioner’s convictions and sentences, our supreme court held

that the petitioner “consented to having his blood drawn; that the evidence is

sufficient to support [his] convictions of rape and aggravated burglary; and

that his sentences for those crimes are valid.” Id. at 611.

On August 1, 2005, while his direct appeal was still pending, the

petitioner filed a petition for post-conviction relief from his 2003 convictions

for aggravated burglary and rape, alleging that his DNA profile linking him to

the crimes had been illegally obtained and that he was denied pretrial jail

credits that would have resulted in the expiration of his sentence prior to the

time that his blood was drawn. On August 31, 2005, the post-conviction court

entered an order summarily dismissing the petition on the basis that the DNA

issue had been previously determined and a post-conviction petition was not

the appropriate avenue for challenging the calculation of pretrial jail credits

that had been awarded toward the petitioner’s sentence in an unrelated case.

-2-

There is nothing in the record to show that the petitioner ever filed a direct

appeal of the post-conviction court’s order of dismissal.

On May 16, 2008, the petitioner filed a petition to reopen the August

2005 post-conviction petition in which he essentially reiterated the same

arguments he had raised in the original petition. He also asserted that he had

appealed the post-conviction court’s August 31, 2005 order denying the

post-conviction petition to this court but had heard nothing in response.

On May 28, 2008, the post-conviction court entered an order dismissing

the petition to reopen, finding, among other things, that the petitioner had

failed to comply with the statutory requirements for filing a motion to reopen

a post-conviction petition and that the petitioner’s allegations regarding the

DNA evidence had been previously litigated and decided on appeal. The court

further found that the petition could not be treated as a petition for writ of error

coram nobis because the statute of limitations had long since expired. On June

2, 2008, the petitioner filed a notice of appeal document in the post-conviction

court. On February 10, 2009, this court entered an order dismissing the appeal

on the basis that the petitioner had failed to comply with the statutory

requirements governing review of a denial of a motion to reopen.

On July 6, 2009, the petitioner filed a second motion to reopen his

post-conviction petition. There is nothing else in the record with respect to his

second motion.

On June 3, 2010, the petitioner filed a “Motion To Reconsider Post-

Conviction Or In the Alternative, Petition For A Delayed Appeal,” in which

he again challenged the legality of the blood draw from which his DNA profile

had been obtained. On June 14, 2010, the post-conviction court entered a

detailed written order in which it dismissed the motion. Among other things,

the court found that the petitioner was “simply attempting to re-litigate issues”

that had been previously determined or waived and that he “ha[d] in no way

been denied any appeal.” On June 17, 2010, the petitioner filed a notice of

appeal to the trial court.

Mack Transou v. State, No. W2010-01313-CCA-R3-PC, 2011 WL 1220398, at *1-2 (Tenn.

Crim. App., at Jackson, Mar. 31, 2011). This court dismissed the petitioner’s appeal because

“the petitioner failed to comply with the statutory requirements for seeking discretionary

review of the denial of his motion to reopen the post-conviction petition.” Id. at *3.

-3-

On June 9, 2010, the petitioner filed a motion for writ of certiorari or, in the

alternative, writ of error, which is the subject of this appeal. In the motion the petitioner

challenged his probation revocation, claiming that his sentence had expired. He also

challenged the legality of the blood draw from which his DNA profile had been obtained,

challenged the legality of his sentence, and argued that he received ineffective assistance of

counsel. The trial court dismissed the motion, finding no merit to the petitioner’s claims.

The petitioner timely appealed the trial court’s decision.

Analysis

On appeal, the petitioner argues that the trial court erred when it dismissed his motion.

Specifically, he asserts that “illegal and unlawful proceedings” and the unlawful seizure of

his DNA led to his convictions and sentences for aggravated burglary, rape, and sexual

battery. He further asserts that his counsel were ineffective for failing to raise the issue of

the unlawful proceedings on appeal. The state responds that the trial court properly

dismissed the petitioner’s motion because “there is no provision in criminal law to seek relief

in the trial court via a writ of certiorari,” and the petitioner is attempting to relitigate the

legality of the taking of his DNA. The state further asserts that, even if we were to construe

the motion as a petition for habeas corpus, the petitioner is not entitled to relief.

Tennessee Code Annotated section 27–8–101 codified the common law writ of

certiorari. The statute provides that:

The writ of certiorari may be granted whenever authorized by law, and also in

all cases where an inferior tribunal, board, or officer exercising judicial

functions has exceeded the jurisdiction conferred, or is acting illegally, when,

in the judgment of the court, there is no other plain, speedy, or adequate

remedy. This section does not apply to actions governed by the Tennessee

Rules of Appellate Procedure.

In general, the writ of certiorari is limited in application and a petitioner may not

ordinarily use it “to inquire into the correctness of a judgment issued by a court with

jurisdiction.” State v. Adler, 92 S.W.3d 397, 401 (Tenn. 2002) (citing State v. Johnson, 569

S.W.2d 808, 815 (Tenn. 1978)). However, the writ properly applies when the action of the

trial court is without legal authority and where no other “plain, speedy or adequate remedy”

is available. Id.; Tenn. Code Ann. § 27–8–101. Thus, we conclude that the petitioner may

not invoke a writ of certiorari to secure the trial court’s review of its own judgment.

In its order dismissing the petition, the trial court found that it could not treat the

petition as a writ of error coram nobis because the one year statute of limitations to file such

-4-

a writ had expired. Also, the court found that “the gist of the petitioner’s complaints . . . is

that his DNA was wrongfully obtained either through deception or coercion or that his

sentence for the original felony conviction for driving after having been declared a habitual

offender had expired before his DNA was taken by the Tennessee Department of

Correction[]” and that courts have previously decided these claims. We agree.

Despite the untimeliness of the petition, the petitioner failed to present newly

discovered evidence that may have resulted in a different judgment had it been presented at

trial. Tenn. Code Ann. § 40-26-105; Workman v. State, 41 S.W.3d 100, 104 (Tenn. 2001).

The petitioner’s claim that his DNA was unlawfully obtained is not cognizable in a petition

for writ of error coram nobis. See, e.g., Kenneth C. Stomm v. State, No.

03C01-9110-CR-00342, 1992 WL 97081, at *1 (Tenn. Crim. App., at Knoxville, May 12,

1992) (“The [coram nobis] proceeding is confined to errors outside the record and to matters

which were not and could not have been litigated at trial, the motion for new trial, appeal, or

upon post-conviction petition.”). The petitioner litigated this issue at trial during the motion

to suppress, and the appellate courts affirmed the trial court’s ruling that the DNA evidence

was admissible.

Moreover, we agree that the petitioner is attempting to relitigate issues that the courts

have previously decided. Our supreme court has opined that an appellate court may not

consider issues that have been previously determined on appeal.

[U]nder the law of the case doctrine, an appellate court’s decision on an issue

of law is binding in later trials and appeals of the same case if the facts on the

second trial or appeal are substantially the same as the facts in the first trial or

appeal. The doctrine applies to issues that were actually before the appellate

court in the first appeal and to issues that were necessarily decided by

implication. The doctrine does not apply to dicta.

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998) (internal citations omitted); see also Creech v. Addington, 281 S.W.3d 363,

383 (Tenn. 2009). This doctrine “promotes the finality and efficiency of the judicial process,

avoids indefinite relitigation of the same issue, fosters consistent results in the same

litigation, and assures the obedience of lower courts to the decisions of appellate courts.” Id.

The law of the case doctrine also applies to issues that courts determined necessarily by

implication. Id. The petitioner is clearly attempting to relitigate the same previously

determined issues regarding the DNA evidence that the state used to convict him. Thus, we

conclude that the trial court properly dismissed the petitioner’s petition for writ of certiorari

or, in the alternative, writ of error.

-5-

Conclusion

Based on the foregoing and the record as a whole, we affirm the trial court’s dismissal

of the petition.

___________________________________

J.C. McLIN, JUDGE

-6-