Randall Mills v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 19, 2013 Session

RANDALL MILLS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County

No. 15471 Robert G. Crigler, Judge

No. M2011-00620-CCA-R3-PC - Filed November 19, 2013

The Petitioner-Appellant, Randy Mills, appeals the partial denial of his “Motion to Reopen

Post[-]Conviction Petition and Other Relief.” On appeal, he argues: (1) the trial court erred

in denying him a new trial on all of the charges in this case for which he was convicted; (2)

the general sessions counsel’s and trial counsel’s 2003 post-conviction testimony regarding

his admission of guilt as to some of the charges is inadmissible as substantive evidence of

his guilt on retrial; and (3) the trial court erred in failing to adjudicate the merits of his state

and federal constitutional law claims. Although not raised by the Petitioner, the State argues

that the trial court’s agreed order, which was entered after the filing of the Petitioner’s notice

of appeal, is null and void because the court no longer had jurisdiction of the case. Upon

review, we affirm the trial court’s judgment granting a new trial in count 2, the conviction

for rape of a child–penile penetration, in light of the newly discovered DNA evidence;

however, we reverse the judgment denying a new trial on the remaining charges for which

he was convicted, and we remand the case to the trial court for entry of an order also granting

the Petitioner a new trial on counts 1, 4, 5, and 6.

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

Part, Reversed in Part, and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,

J R., and J EFFREY S. B IVINS, JJ., joined.

Bryce Benjet (on appeal, pro hac vice), New York, New York; Hershel Koger (on appeal and

at trial), Pulaski, Tennessee; Craig M. Cooley, (at trial, pro hac vice), New York, New York,

for the Petitioner-Appellant, Randall Mills.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;

Charles F. Crawford, Jr., District Attorney General; and Weakley E. Barnard, Assistant

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

OPINION

Trial and Procedural History Prior to 2010 Evidentiary Hearings. A Marshall

County Grand Jury charged the Petitioner with the following offenses:

count 1 rape of a child–digital penetration

count 2 rape of a child–penile penetration

count 3 aggravated sexual battery–defendant’s mouth on victim’s vagina

count 4 aggravated sexual battery–defendant’s hand on victim’s vagina

count 5 aggravated sexual battery–defendant’s hand on victim’s breast

count 6 casual exchange of controlled substance to a minor

State v. Randall Ray Mills, No. M2000-01065-CCA-R3-CD, 2001 WL 1246387, at *3 (Tenn.

Crim. App. Oct. 17, 2001), perm. app. denied (Tenn. Mar. 4, 2002).

Much of the pertinent evidence presented at trial was outlined in the direct appeal:

On March 15, 1999, the victim, twelve-year-old C.M., lived in a duplex

apartment in Lewisburg with her mother, Penny Martin, and her sister, Jennifer

Hastings. The victim’s residence was on one side of the duplex, and the

defendant lived with his two sons on the other side of the duplex. On the day

in question, Martin was visiting her father at St. Thomas Hospital in Nashville

and had left Hastings in charge of C.M. During the afternoon, C.M. had spent

time talking with the defendant’s sons, “Little Randy” Mills and Dale Mills.

At approximately 4:00 p.m., while C.M. was sitting in the yard outside

the duplex, the forty-three-year-old defendant, “Big Randy” Mills, approached

her. The defendant told C.M. that “he had dope over at his house and to come

over later.” C.M. understood that the defendant was offering to smoke

marijuana with her. C.M. returned to her home where she listened to the radio

and watched television with Hastings and Hastings’ boyfriend, Robert Hodge.

At approximately 8:45 p.m., Hastings told C.M. that she needed to go to bed

in order to be rested for school the next day. C.M. chose to sleep in the living

room because she was afraid to sleep in her own bedroom while her mother

was out of town. Hastings and Hodge went to Hastings’ room to listen to the

radio.

Soon thereafter, C.M. slipped out of the residence and went next door

to the defendant’s residence. After the defendant answered her knock on the

-2-

door, C.M. followed the defendant into his living room where he was watching

television and ironing clothes. Both of the defendant’s sons were in their

bedrooms. After approximately five minutes, the defendant told C.M. that “it

was in his room,” and C.M. and the defendant went into the defendant’s

bedroom where the defendant locked the door. C.M. noted that the room was

lit by three candles, and the bedroom window was completely open.

C.M. sat on the bed with her feet touching the floor. The defendant

pulled a marijuana cigarette from his shirt pocket and lit it. He “took a puff”

and passed the marijuana cigarette to C.M. who also smoked it. After C.M.

had taken three “puffs” from the marijuana cigarette, she did not want to

smoke any more. She tossed the remainder of the marijuana cigarette out the

bedroom window. The defendant then pulled a second, shorter marijuana

cigarette from his shirt pocket and smoked that cigarette himself. C.M.

testified that the marijuana made her feel “dizzy and light headed. I couldn’t

see or feel or anything.”

C.M. related that, while her head was spinning from the effects of the

marijuana, the defendant pushed her back onto his bed. With his hand, the

defendant rubbed C.M.’s vagina through her blue jeans. The defendant then

slipped a hand inside C.M.’s shirt, unclasped her bra, and fondled her bare

right breast. The defendant removed his hand from her breast and, using both

hands, pulled her blue jeans and her panties down to her ankles. At this point,

the defendant kneeled in front of C.M., put his mouth over her vagina, and

licked her. The defendant proceeded to repeatedly penetrate the victim’s

vagina with his finger. C.M. estimated that this action continued for

approximately five minutes. C.M. knew the defendant had penetrated her with

his finger “[b]ecause it hurt.” The defendant then vaginally penetrated the

victim with his penis. C.M. knew the defendant had penetrated her with his

penis “because it hurt worse” than the digital penetration. C.M. asserted that

she was “high” throughout the incident and, although she tried to tell the

defendant to stop, she was unable to speak.

Hastings, who had heard C.M. leave the duplex, began to search for

C.M. When she was unable to locate C.M. in the backyard, she asked Hodge

to join the search. They got into Hodge’s car and drove around the area for

approximately five minutes, searching for C.M. When he heard Hodge’s car

start, the defendant stopped his actions, and C.M. immediately dressed. As

C.M. left the defendant’s residence, he put a twenty-dollar-bill in C.M.’s blue

jeans pocket and said, “Here is $20, thanks.” The defendant further told C.M.,

-3-

“If you tell anybody I am just going to deny it.” C.M. estimated that the events

occurred during a one-hour period of time.

C.M. left the defendant’s residence and immediately returned home.

C.M. said she was so “high” on her way home that, “I couldn’t hardly walk

and I fell when I went out of his door.” C.M. had to wait on the front porch

of her apartment until Hastings and Hodge returned to the residence because

the front door of the duplex was locked and she did not have a key. Afraid of

getting into trouble, C.M. initially told Hastings that she had been in the

backyard. When Hastings revealed that she had looked for C.M. in the

backyard, C.M. confessed that she had been at the defendant’s home and told

Hastings what had occurred. C.M. gave Hastings the twenty-dollar-bill the

defendant had placed in her jeans. The trio then went to the defendant’s

residence, and Hastings knocked on the door, which was answered by one of

the defendant’s sons. Hastings entered the residence and, finding the

defendant coming out of the bathroom, loudly confronted him about the

incident. Hastings threw the money at the defendant, returned home, and

called the police.

The police arrived and began their investigation. They were unable to

locate the defendant for several days. Later that night, Hastings, Hodge, and

C.M. decided to drive to Nashville to pick up Martin but, due to car trouble,

had to wait for Martin’s return the next morning. When Martin arrived, she

took C.M. to the emergency room at the Marshall Medical Center where Dr.

Phillip Roberts performed a “rape kit” on C.M., sending the rape kit and

C.M.’s panties to the Tennessee Bureau of Investigation (TBI) laboratory for

testing. Although no semen or sperm was found on the vaginal swabs

performed on C.M., both substances were found in the crotch area and near the

rear waistband of the victim’s panties.

Id. at *1-2 (internal footnote omitted).

Additionally, at the Petitioner’s trial, Sharon Jenkins, an expert in the fields of

serology and DNA analysis, testified that when she tested the vaginal swabs taken from the

victim at the hospital, she was unable to find any semen or sperm. However, she stated that

the absence of semen and sperm did not mean that no penetration had occurred. Jenkins said

her testing revealed that semen and sperm were present on the crotch area and the rear

waistband area of the victim’s underwear. She acknowledged that she had no way of

knowing whether the semen and sperm was from one person or more than one person.

Jenkins’s testing showed that some of the DNA from the underwear came from the victim.

-4-

However, because semen and sperm were found on the underwear, she knew that at least one

male’s DNA would also be found on the underwear. Jenkins then summarized her findings

for the court:

Based on these results, the non-sperm fraction of the DNA profile is consistent

with a mixture of genetic material. The major contributor of the profile

matches Exhibit Number 90020204, the victim, [C.M.].

The minor contributor of the DNA profile includes the gender marker,

which indicates a male contributor. And locus 01 or TH[]01 matches Exhibit

Number 90045636, Randall Mills. All other loci were inconclusive. The

probability in an unrelated individual having the same DNA profile from the

African/American population is approximately one in 270.

The [C]aucasian population is approximately one in 290. What this

simply means is that when I compared the DNA samples, I was able to find

one locus–one marker of the DNA which matched the evidence material and

I was also able to determine that it was a male contributor.

That is what I found.

Jenkins stated that she ruled some areas inconclusive because they had some markers that

were consistent with the victim and the Petitioner. She also ruled some areas inconclusive

because she was unable to get complete DNA profiles. She confirmed that she was unable

to exclude the Petitioner based on her DNA analysis. On cross-examination, Jenkins

admitted that 12 of the 13 markers she tested were inconclusive.

Following the jury trial, the Petitioner was found not guilty in count 1 of the charge

of rape of a child–digital penetration but was convicted of the lesser included offense of

aggravated sexual battery–digital touching of victim’s vagina. Id. at *3. He was convicted

in count 2 of the charged offense of rape of a child–penile penetration. Id. He was found

not guilty in count 3 of the charged offense of aggravated sexual battery–defendant’s mouth

on victim’s vagina. Id. He was convicted in count 4 of the charged offense of aggravated

sexual battery–defendant’s hand on victim’s vagina. Id. He was convicted in count 5 of the

charged offense of aggravated sexual battery–defendant’s hand on victim’s breast. Id.

Finally, the Petitioner was convicted in count 6 of the charged offense of casual exchange

of a controlled substance to a minor. Id.

On direct appeal, this court affirmed these convictions but reversed and remanded the

case for a new sentencing hearing because the convictions had been improperly merged and

-5-

because the judgment in count 1 showed that the Petitioner had been found not guilty of the

charged offense but did not show that the jury had found him guilty of the lesser included

offense of aggravated sexual battery–digital touching of victim’s vagina. Id. at *10. In

determining that the evidence was sufficient to support the convictions, this court noted that

the victim’s testimony “constituted the bulk of the evidence against the defendant at trial”

and that DNA expert Sharon Jenkins’s testimony that semen and sperm were found on the

victim’s underwear corroborated the victim’s testimony. Id. at *4. The Tennessee Supreme

Court denied the Petitioner’s application for permission to appeal. Id. at *1.

Following the Tennessee Supreme Court’s denial of permission to appeal, the

Petitioner timely filed a petition for post-conviction relief, alleging that trial counsel was

ineffective in failing to adequately investigate his case, in stipulating to the chain of custody,

in failing to ask for expert assistance regarding the DNA analysis, and in failing to make a

special request on a lesser included offense. Randall Mills v. State, No. M2003-01770-CCA-

R3-PC, 2004 WL 1621690, at *5 (Tenn. Crim. App. July 20, 2004), perm. app. denied (Tenn.

Nov. 8, 2004). On appeal, this court summarized the testimony by general sessions counsel

and trial counsel at the post-conviction hearing:

Trial counsel . . . testified that he had talked with the attorney who had

represented the petitioner during the preliminary hearing stage in the general

sessions court, learning that the petitioner had admitted his guilt. After trial

counsel had been appointed, the petitioner again acknowledged his guilt to the

charges. The petitioner admitted to his trial counsel that he had smoked

marijuana with the victim, had fondled her, and had digitally penetrated her,

but denied any penile penetration. He stated that it was only later, after the

petitioner learned that there could be no probation in the event of a conviction,

that the story changed and the petitioner alleged that it was “actually his son

who had had sex with the . . . victim”; thus, it was only after learning that the

charges carried between 15 and 25 years at 100% that he proclaimed his

innocence. Trial counsel testified that he then questioned the son, who denied

having sex with the victim, and thereafter informed the petitioner that if his

son testified otherwise, he faced the possibility of a perjury charge. It was his

recollection that the petitioner, after learning of the potential jeopardy of his

son, informed him that he did not want either of his sons to testify at the trial

....

The attorney who represented the petitioner until the matter was heard

in the general sessions court testified that the petitioner had admitted digital

penetration but denied penile penetration. He recalled having informed trial

counsel of his conversation with the petitioner.

-6-

Id. at *4. On appeal, this court summarized the post-conviction court’s findings of fact and

conclusions of law in denying relief:

At the conclusion of the evidentiary hearing, the trial court first

accredited the testimony of . . . trial counsel, and [general sessions counsel],

who represented the petitioner through the preliminary hearing, specifically

determining that the petitioner had admitted digital penetration at the very

least. It also accredited trial counsel’s testimony that the petitioner had

withdrawn his request to utilize either of his sons as witnesses. Next, the trial

court specifically found that there was adequate investigation by the public

defender’s office and that the defense strategy was that the petitioner was not

guilty and the victim was not a credible witness, having admitted smoking

marijuana since she was 10 years old. The trial court also found that the

testimony of young Randy Mills and his girlfriend, Jennifer Hastings, was

untruthful for the most part and that neither witness was entitled to

accreditation. It was the court’s further finding that Randy Mills had failed to

provide information that would have been helpful to trial counsel. It ruled that

the petitioner had been unable to show any prejudice by virtue of trial

counsel’s failure to challenge the chain of custody and that there was no

showing by the petitioner of any need for independent testing or expert

assistance. Other than the charged crime, there was no indication that a lesser

offense was appropriate from the evidence provided at trial. Specifically, the

post-conviction court found that if the petitioner had pushed the victim to the

bed, that offense would have been separate and distinct, and not lesser to the

charged crimes.

Id. This court affirmed the denial of post-conviction relief. Id. at *7.

On November 7, 2005, the Petitioner filed a petition for writ of habeas corpus relief

in United States District Court for the Middle District of Tennessee challenging his

convictions in this case. In amended petitions, he alleged ineffective assistance of counsel

and a Brady violation. The district court granted him discovery regarding these claims and

in connection with this discovery, the Petitioner hired his own expert, Gary Harmor of the

Serological Research Institute (SERI), who conducted another round of DNA testing on the

incriminating evidence presented against him at trial. Harmor reported that he found DNA

on the victim’s underwear and that both the victim and the Petitioner were excluded as

contributing this DNA. The Petitioner again amended his petition to include a claim of

actual innocence based on newly discovered DNA evidence. On March 13, 2009, the State

filed a “Motion to Stay Proceedings and Hold in Abeyance Pending Exhaustion of State

Court Remedies.” In this motion, the State acknowledged that the Petitioner’s claim of

-7-

newly discovered evidence regarding the new DNA test results entitled him to error coram

nobis review:

Mills’ newly added claim has not been exhausted, so this case should

be held in abeyance pending state court exhaustion. Mills has not presented

his claim based on new evidence to the state courts for review. He does not

fit within the exceptions to the exhaustion requirement because he has

available a state-court remedy in the form of a petition for error coram nobis

through which he could litigate this new evidence claim. A petition for error

coram nobis in state court may be the basis for relief where a defendant shows

the existence of newly discovered evidence relating to matters litigated at trial

if the defendant shows he was without fault in failing to present the evidence

at the proper time and the trial court determines the evidence may have

resulted in a different judgment had it been presented to the jury. Tenn. Code

Ann. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 668 (Tenn. 1999). Here,

the petitioner’s claim of newly discovered evidence is the precise basis for his

unexhausted Claim 3. Because this evidence was not available at trial and

Mills has claimed its unavailability would have resulted in a different verdict

at trial, this claim meets the criteria for state error coram nobis review.

The State, citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001), and State v. Ratliff,

71 S.W.3d 291 (Tenn. Crim. App. 2001), asserted that the “Petitioner’s claim of newly

discovered evidence is sufficient to toll the applicable statute of limitations for bringing this

claim in state court, so this remedy remains available.”

On May 29, 2009, based on this newly discovered DNA evidence, the Petitioner filed

a pro se “Motion to Reopen Post[-]Conviction Petition and Other Relief,” wherein he moved

to reopen his post-conviction petition and moved for a writ of error coram nobis. In the

motion, he argued that SERI’s new DNA evidence undermined the credibility of the victim’s

testimony as to all of the charges for which he was convicted, not just the rape of a

child–penile penetration charge. Specifically, the Petitioner moved to reopen his post-

conviction petition based on his claim that new scientific evidence in the form of new DNA

evidence established his actual innocence of the charges for which he was convicted and that

this claim, if true, would establish by clear and convincing evidence that he was entitled to

have the convictions set aside or the sentences reduced. See T.C.A. § 40-30-117(a)(2), (4).

He also asked for the court to issue a writ of error coram nobis based on the new DNA

evidence because his failure to present this exculpatory evidence was no fault of his own,

therefore requiring the tolling of the one-year statute of limitations. See T.C.A. § 27-7-103.

In his motion, the Petitioner noted that the State, in its motion to stay the federal habeas

-8-

corpus case, “indicated that at the very least [he] is entitled in these circumstances to litigate

his error coram nobis claim in the state courts.”

On July 2, 2009, the trial court appointed counsel for the Petitioner and continued his

“Motion to Reopen Post[-]Conviction Petition and Other Relief” to July 10, 2009, for the

entry of a scheduling order. After several continuances, evidentiary hearings on the

aforementioned motion were conducted on May 7, 2010, and July 9, 2010.

May 7, 2010 Evidentiary Hearing. At the beginning of the hearing, defense counsel

reminded the court that the Petitioner’s case had been remanded from federal district court

to exhaust state remedies regarding the newly discovered DNA evidence. The State noted

that this case was not really a “standard post[-]conviction matter” because the case had been

filed as a motion to reopen the post-conviction petition. It added that the case was “just more

or less a continuation of an already opened post[-]conviction [case]” and that it was opposing

the reopening of the post-conviction proceeding. Petitioner’s counsel asserted that the newly

discovered DNA evidence allowed the Petitioner to reopen the case.

At the beginning of the hearing, the Petitioner called TBI Agent Joe Minor. Agent

Minor, an expert in the field of serology and DNA analysis, testified that he was the DNA

technical manager for the TBI’s DNA division. He stated that as a part of his job, he was

responsible for “overseeing the technical operations of the laboratories in Nashville,

Memphis, and Knoxville” and was required to review “case files, technical reviews, and

administrative reviews of both serology and DNA-related cases.” Agent Minor stated that

he was familiar with SERI, the laboratory where Gary Harmor was employed.

Agent Minor stated that he had reviewed the May 29, 2008 and September 8, 2008

reports issued by Harmor. When asked by the Petitioner’s counsel if there was anything in

Harmor’s reports with which he disagreed, he stated:

No. There is a reference to the vaginal swabs and Mr. Mills being

excluded, but that technically–it is her DNA anyway. There wasn’t any semen

on there. Of course, he wouldn’t be considered as an exclusion on that.

But as far as the stains on the underwear, the panties, the waistband [of

the panties] and everything, I did review the tables and the contents of the

report. And with the stipulation that I have not reviewed any electronic data,

I have not seen any electropherograms or any raw data in this, but just

reviewing the report, I would not disagree with the findings, his conclusions.

-9-

When Petitioner’s counsel asked if there was anything in Harmor’s report or his conclusions

that made him believe that Harmor’s genetic markers were invalid, Agent Minor responded,

“Based on the table and his presentation of the markers, the alleles that are present, his

conclusions about these alleles [that they] did not come from Mr. Mills would be correct.”

On cross-examination, Agent Minor acknowledged that before he would testify that

Harmor’s findings were accurate, he would have to review Harmor’s raw data to ensure that

the raw data supported Harmor’s conclusions. On re-direct examination, Agent Minor stated

that he did not request Harmor’s raw data because he was asked by the State to simply review

Harmor’s report. He admitted that Harmor’s raw data could have been transferred to him if

he had contacted Harmor at SERI; however, he stated that the State never asked him to

request this raw data. On re-cross, Agent Minor admitted that Petitioner’s counsel never

showed him the raw data from Harmor’s report.

Gary Harmor, an expert in field of serology and DNA analysis, testified that he was

the Assistant Director of the Serological Research Institute (SERI) in Richmond, California.

He stated that his job responsibilities required him to supervise the laboratory. He also said

he had the title of Senior Forensic Serologist, which meant that he “selectively work[ed] on

cases” and did “technical reviews of cases” and was responsible for “quality control[,]”

“testing the staff for proficiency tests[,]” and “testif[ying] in court.” Harmor estimated that

eight-five to ninety percent of SERI’s casework was criminal, with sixty percent of the DNA

analysis requested by the prosecution and forty percent requested by the defense. He said

that although most of his DNA analysis was conducted for cases that were going to trial, as

compared to post-conviction cases with older samples to test, he had previously conducted

post-conviction DNA analysis for the state and the defense. Harmor said that he had been

retained by the Innocence Project to work on this case and had been retained by the

Innocence Project on other cases in the past.

Harmor stated that he first became involved in the Petitioner’s case when the federal

public defender’s office in Nashville contacted him to review the evidence in this case. The

assistant federal public defender asked him to “look over some data, and then decide whether

or not retesting was necessary on the evidence that was collected.” Harmor stated that after

he concluded that a retest was necessary, an employee at the Marshall County Courthouse

forwarded the evidence in this case to him on March 31, 2008. He was sent two pieces of

evidence, item 1, the victim’s underwear, and item 2, the sexual assault evidence collection

kit from the victim and the sexual assault evidence collected from the suspect.

Harmor stated that the victim’s underwear was examined visually and under an

ultraviolet light to find any stains. He said the underwear was fairly heavily stained with a

tan substance on the inside. He stated that the underwear had been previously sampled in

-10-

two different locations, the crotch area and the rear waistband area. He made note of those

prior samples and took pictures of the areas where the samples had been taken. Then an acid

phosphatase test, a presumptive test for determining whether or not a stain could be seminal

fluid on the crotch and waistband of the panties, was conducted, which was negative. He

stated that the fact that the acid phosphatase test was negative did not mean that there was

no male DNA on the evidence. He then took samples of the crotch of the underwear in three

different locations and of the waistband in one location.

Harmor stated that he used the P-30 test, which indicates whether seminal fluid is

present, on the evidence. When he used the P-30 test on the waistband cutting, item 1-1, it

was positive. He also stated that one of the crotch cuttings, item 1-4, was positive for P-30,

but the other three crotch cuttings, items 1-2 and 1-3, were negative for P-30. He stated that

the fact that 1-2 and 1-3 were negative did not mean that no male DNA was present. After

receiving positive results from the P-30 test on items 1-1 and 1-4, he was able to identify

sperm on items 1-1 and 1-4. He then performed a differential extraction for DNA

processing, which resulted in two pots of DNA, the epithelial DNA and the sperm cell DNA

or sperm fraction DNA. Once the DNA was concentrated to a drop of liquid, part of that

liquid was taken and subjected to quantification. Harmor stated that when he subjected the

liquid in this case to quantification, he was able to identify a sufficient amount of DNA to

perform amplification and genetic marker analysis.

Harmor stated that he did the extraction, quantification, amplification for the 1-1, 1-2,

1-3, and 1-4 items. He then placed a portion of the amplified product into an instrument that

separated out the pieces of copied DNA by size. Once the data was collected, “it [was] put

through a program that identifies the size of the pieces that came through and what marker

they belong to.” He stated that the genetic marker analysis was short tandem repeat, or STR

testing, which is the generally accepted method of DNA testing. He stated that the unknown

samples that were tested were taken from the victim’s underwear and the known samples that

were tested were taken from the Petitioner and the victim.

Harmor stated that he had to request a second sample from the Petitioner because the

first sample that was taken from him prior to trial “had degraded” and he was unable “to get

all the markers out of it that should have been there.” He stated that he obtained the second

sample to confirm the fifteen markers, plus the amelogenin. Harmor stated that he went

through the standard procedures for obtaining a DNA sample from a prisoner. He said that

he was able to get a partial profile from the Petitioner’s original sample but was able to get

a full profile from the Petitioner’s second sample.

Harmor stated that he identified male DNA on unit 1-1, a cutting from the underwear

waistband. He then compared the genetic marker profile in unit 1-1 with the genetic marker

-11-

profile from the Petitioner and determined that he was excluded as the source of the DNA.

He also identified male DNA on unit 1-2, a cutting from the crotch of the underwear. When

he compared the genetic marker profile in unit 1-2 with the genetic marker profile from the

Petitioner, he determined that the Petitioner was excluded as a source of this DNA as well.

Harmor stated that he reviewed Sharon Jenkins’s November 2, 1999 report and her

raw data but never received the electronic data from her DNA analysis. He stated that

Jenkins identified a 13,14 type at the D8S1179 locus for the Petitioner’s known sample.

However, Harmor stated that he identified a 13, 13 type from the Petitioner’s known sample

at the D8S1179 locus. He stated that he believed Jenkins incorrectly reported the Petitioner

as a 13, 14 based on an artifact rather than a true peak at 14 in her analysis. He also stated

his belief that Jenkins “over amplified” the sample from the Petitioner, which caused the

sample to have artifacts rather than true peaks at the markers. He explained that “[w]hen you

over amplify a sample and add too much DNA to it, then the artifacts start to happen along

the baseline” and the “software will label it as a type 14, even though it is an artifact.” He

said, “In [Jenkins’s] results, there is an extremely high 13 peak, well off scale, and then a real

minute 14 peak next to it that is amongst the jittering of the baseline.” He added, “I think

that it was missed as an artifact rather than a real type.”

Harmor stated that Jenkins identified sperm cells on the underwear crotch and on the

waistband, which was consistent with his results. He said that his sample 1-3 was adjacent

to the sample that Jenkins’s took from the crotch of the victim’s underwear. He stated that

his other two samples were in another part of the crotch area. He was unable to retest what

Jenkins had tested because her cutting from the victim’s underwear was gone. Harmor said

that he was able to identify more genetic material than Jenkins because of his preparation of

the sample. He noted that Jenkins “should have seen some kind of signal from the sperm

DNA fraction, based upon the number of sperm that were there; maybe not a complete

profile, but there should have been some signal of some sort from that, and they were totally

negative.” He also noted that Jenkins only drew “conclusions about the epithelial or non-

sperm fraction of the crotch of the pair of panties and not the sperm fraction.” However, he

would have included the conclusions regarding the sperm fraction “to give a more complete

result of the analysis[.]” He asserted that the difference in his results and Jenkins’s results

was not attributable to advances in technology because he had been using the same method

of preparation for over twenty years.

On cross-examination, Harmor stated that he was not saying that the test where

Jenkins found one marker that she said could have come from the Petitioner was wrong. He

explained:

-12-

I looked at what I was provided, as far as her electropherograms, and

the results are very difficult to see because the scale that it was printed at only

shows the two types that she detected from is consistent with Randy Mills is

very tiny on the baseline.

So I would prefer to have looked at the electronic data and then

analyzed it myself, with spreading the scale out, so that I could see what the

peaks themselves looked like, to make sure they weren’t artifacts.

I wasn’t able to do that because I was provided with no electronic data.

But from what I see that was provided to me, I can’t say that she doesn’t have

the right answer.

Harmor confirmed that SERI was accredited in the same manner as the TBI laboratories. He

acknowledged that an assistant, Heather Parsons, did the examination sampling under his

direction and performed the testing and that he analyzed the data. He also acknowledged that

Parsons gathered the raw data, but he asserted that he reviewed the raw data. He agreed that

if Parsons was inaccurate in her testing procedures, this could skew the results.

Harmor admitted that he did not contact the TBI crime laboratory to see if the liquid

sample that Jenkins tested was still in existence because he did not think of doing that and

assumed it was not in existence. Harmor acknowledged that his May 28, 2008 report and his

September 8, 2008 report were basically the same except for the addition of the Petitioner’s

new known sample for the later report.

Harmor acknowledged that DNA experts, when conducting analysis, have to make a

“partially subjective determination.” He said, “The analysts, once they have their data run

through the software programs, then look[] at the data and make[] a judgment on the data that

is present, as to whether or not it is an artifact or real.” He added, “Once that is determined,

then they develop a profile from that evidence that is used for comparison to the known

samples.”

He acknowledged that he made a subjective call when he concluded that Jenkins

mistakenly identified the Petitioner’s known sample as a 13, 14 at the D8S1179 locus. He

agreed that Jenkins machine would have printed out a graph, just as his machine did. He

acknowledged that Jenkins machine probably printed out a 13, 14 even though he looked at

her graph and reached a different conclusion. However, Harmor asserted that he had two

other results showing that the Petitioner’s known sample was a 13 rather than a 14 at that

locus.

-13-

Harmor acknowledged that the newer machines and chemicals allow analysts to detect

DNA at a lower level. He acknowledged that the Y STR test would target just the Y

chromosome and would give more information on the sample regarding what the male donor

types were. He admitted that the Y STR would give a more definitive indicator that the

sample had been over amplified. He stated that he did not conduct the Y STR test, even

though it was available at SERI, because he determined that he had enough information from

which to draw conclusions after looking at his results from the regular STR tests, “which are

more of a powerful discriminator.”

July 9, 2010 Evidentiary Hearing. Sharon Jenkins, who was qualified as an expert

in the field of serology and DNA testing, testified that she began working at the TBI in 1996

and left the TBI in 2008 to become the primary caregiver to her ill husband. Jenkins stated

that she examined the underwear from the victim and the known samples from the victim and

the Petitioner. She said she made three or four cuttings from the underwear for testing.

Jenkins acknowledged that it was possible for evidence to become contaminated before it

arrives at a lab if it is not sealed. She also stated that touching or talking over evidence could

contaminate the evidence because it could deposit DNA. She acknowledged that the

container holding evidence of the victim’s underwear had been opened prior to her receiving

it during trial. She stated that in the Petitioner’s post-conviction petition, he complained that

the container holding the victim’s underwear had been opened prior to trial.

Jenkins stated that the victim’s underwear tested positive for semen and sperm. After

getting a request for DNA testing from the district attorney’s office, she did cuttings from the

underwear. With these cuttings, she did a differential extraction to separate the epithelial

cells from the sperm cells. She then ran those samples in the instrument that was calibrated

and tested. She stated that when the results came off the instrument, she looked at the results

and did a comparison of the DNA profiles that were presented in the unknown sample with

the DNA profiles from the victim’s and the Petitioner’s known samples. She stated that the

instrument prints out a chart of data with specific peaks for the alleles, otherwise known as

loci or markers. Jenkins stated that sometimes the instrument shows peaks that are not

numbered “because it is not a true peak.” She stated that some unreliable peaks are “stutter

peaks,” “pull-up peaks,” or “general artifact[s], something that is really not a peak.” She

explained the meaning of an artifact or a pull up:

[Sometimes], due to the level of the DNA in these cases, you have [an] artifact,

meaning it is not a true peak, but it might be a line that shows up in a region

that may be an allele. Pull up would be because the region directly above a

peak is so high, it is going to cause the peak below it to become actually higher

than it really is. So it is an artificial peak, for lack of a better term.

-14-

She also explained that stutter is “the appearance of a peak, or maybe a peak within four base

pairs of what is a true peak[,]” which you can see on the data.

She stated that all scientists look for 13 different areas on the DNA, as well as the

amelogenin marker, which determines whether the DNA is male or female. Jenkins

explained that if the instrument numbered an allele as a 14, then she would compare that to

her known sample to determine if the person who contributed that sample had a 14 in that

area of the DNA. If so, then that allele could belong to that individual.

Jenkins stated that the TBI required her to use a baseline of 150 RFU (relative

fluorescence units) for the instrument to recognize peaks because “[t]hat baseline would have

been what you call the optimal or the best area to call a peak if it is a true peak or not.” At

the time that she did her original tests in 1999, she did not look below 150 RFU because that

was against TBI’s policy, which was based on the manufacture’s recommended standards at

that time.

Jenkins stated that of the 13 areas she was looking at in the DNA, she found one

location that she used not to exclude the Petitioner. She stated that this area was TH01 and

she found male and female chromosomes in that area. She acknowledged that at the

Petitioner’s trial, she testified that at the area of TH01, in the nonsperm fraction, she found

alleles 5, 9, which were both consistent with the Petitioner at that area. She concluded at trial

that an unrelated individual having the same DNA profile from the African-American

population was 1 in 270 and in the Caucasian population was 1 in 290. Jenkins stated that

her testimony would be the same today, that she was unable to rule the Petitioner out in the

TH01 area. To explain her statement that the other loci were inconclusive, she said, “[E]ither

I had markers that didn’t give me any peaks, or I had markers that were in common with the

victim’s standard, or I had markers that could have been pull up, or they could have been

stutter or just not attributable to the victim and subject markers.”

Jenkins stated that everyone, except identical twins, would have different DNA.

However, she acknowledged that a father and a son would have similar DNA because DNA

is inherited from a person’s mother and father.

Jenkins stated that a few days before testifying at the July 9, 2010 hearing, she

returned to the TBI lab, with TBI’s permission, to review her original data on the computer.

She explained that her original data was on a compact disk, and when she placed it in the

computer, it printed up “just like the day I examined it, gosh, back in 1999.” She then

reviewed the old data at the baseline level of 150 RFU to check all of the peaks that were

called and to refresh her memory as to the peaks she did not call or that she determined to be

inconclusive. She then dropped the baseline level to between 50 and 150 RFU. At that

-15-

point, she began trying to locate all of the markers that were presented on the SERI data.

Jenkins stated that when she originally examined the crotch area of TH01 in 1999, she did

not notice any false peaks. When she reexamined them a few days before this hearing and

dropped the baseline to between 50 and 150 RFU, she did not find any other markers in that

area. Jenkins stated that when she lowered the baseline, she found no sperm fraction on the

crotch area and no sperm fraction on the waistband of the underwear at the locus TH01.

However, she noted that SERI found in the TH01 locus an allele number 8 on the sperm

fraction of the waistband in item 1-1 and on the sperm fraction of the crotch of the panties

in item 1-4, but she was unable to find an 8 there. She explained that the difference could

be because of the “technology, the sensitivity of their instruments” or because they may have

been able to find something different because they had a different cutting or because of

contamination. She said that after dropping the baseline, she still could not exclude the

Petitioner on TH01.

Jenkins acknowledged that SERI found in the area D135317 alleles 12, 14 in item 1-1

that were male. She stated that SERI used these alleles to exclude the Petitioner because his

known markers at that location were 8, 12. In addition, SERI found in the area D135317 a

12, 14 in the sperm fraction for item 1-2 as male, which SERI used to exclude the Petitioner

because his known markers at that location are 8, 12. In area D165539, SERI found alleles

9, 11 in item 1-2, which SERI used to exclude the Petitioner because his known markers at

this location were 10, 13. Jenkins said that after reviewing SERI’s reports and data and after

conducting additional analysis of her data, she stated that there was nothing that would

change the testimony that she gave at the Petitioner’s trial.

On cross-examination, Jenkins stated that she had never committed an error on any

casework and had never committed an error on any of her DNA proficiency tests. She stated

that she identified two alleles, a 13 and a 14 at the D8S1179 region from the Petitioner’s

known sample. She admitted that Harmor at SERI identified a 13, 13 at the D8S1179 region

for the Petitioner’s known sample and that even after SERI got a new sample from the

Petitioner, SERI still got a 13, 13 at that region for him upon retest. When asked who was

correct, Jenkins stated:

I can answer that by saying there is a peak at 13 and then there is a

lower peak at the 14, which is one of those peaks that may or may not be a

peak. If you look at my data, which is over there now. And the instrument has

indicated a peak. So we recorded it.

When asked if she mistyped that region, Jenkins said, “Again, it is not mistyped. The

instrument does that. It is there. And because it was there, both I and the technical reviewer

marked it, because it was there.”

-16-

Jenkins admitted that there were two alleles consistent with the Petitioner at the TH01

region, which meant that 1 in 290 Caucasians could have this allele. She acknowledged that

her STR testing produced very little human DNA, despite the fact that she identified semen

and sperm on the underwear. She said that there was not an abundance of sperm in that area.

Looking at SERI’s results, Jenkins acknowledged that in item 1-1, which was the stain

on the waistband of the underwear, SERI identified 13 out of 16 alleles in the nonsperm

fraction and all sixteen alleles in the sperm fraction. She also acknowledged that in item 1-4,

one of the cuttings taken from the crotch of the underwear, SERI identified 14 of the 16

alleles in the nonsperm fraction and identified 15 of the 16 alleles in the sperm fraction. She

acknowledged that when she examined both of these areas of the underwear, she was unable

to get as much DNA.

Jenkins acknowledged that when she tested the evidence in 1999, she identified a lot

of alleles that excluded the Petitioner, but she did not call them. When she conducted her

new test just before this hearing, she stated that she wanted to compare SERI’s results with

her results to see if SERI’s markers were really markers or if they were “false peaks” or “pull

up, . . . stutter, [or] artifacts[,]” which are unreliable.

Jenkins stated that she did not report foreign alleles in her 1999 report because she

deemed them inconclusive:

[A]fter looking at all of the data in all of the different locations and ruling out

the ones that weren’t clear cut peaks that I could testify to were peaks, they

were denoted as inconclusive. So the report reflects what was found on the

underwear. It didn’t go so far as to say the underwear crotch, the underwear

waistband. That is the data itself, in my notes.

She stated that she did not call the 9, 16 at the D8S1179 locus because in 1999, they were

below her calling level of 150 RFU.

Jenkins stated that she did not call the 19, a weak result at 150 RFU, at the VWA

locus that excluded the Petitioner because she determined that it was a false peak even

though the instrument called it. She also stated that the 19 allele that she identified at the

FGA locus was not from the victim or the Petitioner; however, she said she did not call it

because it was a female allele based on the height of the peak.

Jenkins stated that she had a problem with some of SERI’s conclusions because

Harmor “got a combination of weak mixtures, so it may or may not be there and it may or

may not be male[.]” She added, “I can’t tell if all of these [alleles found by SERI] are [from

-17-

a female donor or] all of these are [from a male donor] because it wasn’t stated either,

because some of them are similar to the victim.” She stated that she was unable to review

SERI’s raw data, even though it had been provided, because the TBI uses a different type of

platform for its testing.

Jenkins acknowledged that her testimony at this hearing was not different than her

testimony at trial, where she testified that she found one allele that was consistent with the

Petitioner’s DNA profile at the TH01 marker, meaning that 1 in 290 Caucasians would have

that allele at that location.

On re-direct examination, Jenkins stated that while Harmor had reviewed an

assistant’s testing, her report was based on her own testing. Jenkins stated that for item 1-1

at least half of SERI’s alleles were identified at under 150 RFU. She acknowledged the

possibility that contamination could affect SERI’s results. She also acknowledged that two

different men could have deposited two different sets of DNA to the underwear:

“Remembering we did a differential extraction, where you are looking at nonsperm cells and

sperm cells, and since we didn’t find the sperm cells, it is more than likely that those are

nonsperm cells, or skin cells, epithelial cells. And, yes, they could be deposited on the

panties.” In addition, she admitted that these skin cells could have been deposited on the

underwear during trial if someone sneezed near them, if someone’s dandruff landed on them,

if someone talked over the underwear, or if someone came in contact with the underwear

during the normal course of the trial. She stated that this could account for SERI having to

go below 150 RFU to find the alleles.

On re-cross examination, Jenkins admitted that the underwear could have been

contaminated prior to receipt by the TBI lab. She also acknowledged the possibility that

some DNA was on the underwear before the assault and that it belonged to someone other

than the assailant in this case.

The State recalled Agent Minor at the conclusion of this hearing. Agent Minor

testified that he found it unusual that the alleles that were typed from the sperm and

nonsperm fractions of SERI’s 1-1 cutting from the waistband of the victim’s underwear had

alleles that were not attributable to either the victim or the Petitioner. He said that based on

his experience, he would expect these nonsperm alleles to match the victim and the fact that

they did not suggested “that there is either some type of contamination or the panties didn’t

belong to [the victim] or had been worn by someone else.” He explained that when testing

a sample, you are typing a nonsperm fraction and a sperm fraction, and the sperm fraction

could contain sperm cells or nonsperm cells. He acknowledged that both the nonsperm

fraction and the sperm fraction could contain skin cells if it was contaminated. Agent Minor

-18-

explained that the TBI laboratories have a policy of not reexamining evidence that has been

examined by another lab because there are “no guarantees of how it has been handled.”

Agent Minor stated that he had an issue with SERI’s conclusion in paragraph 2 that

“the genetic profile [in item 1-2 of the crotch of the underwear] is not consistent with the

genetic profile obtained from Randy Mills, therefore, Randy Mills is excluded . . . as a donor

to the genetic marker profile from the sperm fraction for item [1-2], major and minor donor

profiles are from unknown individuals.” Agent Minor stated, “I am really kind of puzzled

why they would take something that is negative for sperm and divide it into sperm and

nonsperm fraction, and then report in their report that he is excluded from the sperm fraction.

It is a little bit misleading in that regard and not clear.”

Agent Minor stated that the problem he had with SERI’s conclusion in paragraph 3

that items 1-2, 1-3, and 1-4, where item 1-4 was the only one that tested positive for semen,

were consistent with the victim but were not consistent with the Petitioner. He stated, “It is

a little unclear . . . that we have two negative samples and a positive sample being reported

as epithelial fractions and excluding Mr. Mills.” He stated that he would have separated the

conclusions for items 1-2, 1-3, and 1-4.

Agent Minor’s problem with SERI’s conclusion in paragraph 4 was similar to his

issue with paragraph 3. He stated that although the Petitioner was excluded as a donor to the

sperm fraction in the items of 1-2, 1-3, and 1-4, SERI implied that items 1-2 and 1-3 had a

sperm fraction. He stated, “[T]o say that [the Petitioner] is excluded from a sperm fraction

where there is no sperm is just a little confusing.”

Agent Minor stated that the issue he had with SERI’s conclusion in paragraph 6 was

that SERI stated that the Petitioner was excluded even though no alleles were found on the

vaginal swabs other than the victim’s. He stated that SERI’s conclusion was prejudicial

because it implied “that there was [genetic material] there that is excluding him” even though

the only genetic material belonged to the victim.

Agent Minor stated that the victim’s underwear could have been contaminated at the

SERI lab and that contamination could explain why SERI’s findings were different from

TBI’s findings. He also acknowledged that sperm transfer could have occurred if the

victim’s sister or mother had sexual relations with an individual and their underwear got

placed on top of or under the victim’s underwear.

Agent Minor stated that TBI’s detection threshold was set at 150 RFU because it was

shown “that people [got] more callable types as a whole from that particular level.” He

stated that if you go too low you may get false peaks. He said that around the year 2000,

-19-

when scientists realized that you could detect and see profiles below 150 RFU, the TBI set

a new policy stating “that we would drop the threshold only to benefit the defense in an effort

to possibly exclude someone from alleles.” However, he stated that the TBI labs “don’t

make calls from that, because of the accuracy of the validation levels that we have set at a

particular number. Again, for us, it is 150 RFU’s.”

Agent Minor stated that his concern in comparing the TBI results with the SERI

results was that SERI found “some alleles that weren’t present in 1999[.]” He explained:

[T]he only way that I can account for [SERI] getting additional alleles that

didn’t exist in 1999 is because there is potential there that those alleles came

after they left TBI. Whether that was in the courtroom, as you talked about

earlier, or within the laboratory itself, that did the testing. And certainly there

could be some precontamination, like [Petitioner’s counsel] brought up, as

well.”

Agent Minor stated that after reviewing Jenkins’s report, he believed that the information that

Jenkins testified to in court in this case was correct.

On cross-examination, Agent Minor acknowledged that because TBI now goes below

150 RFU, Jenkins’s new findings would be reported by the TBI. He acknowledged that the

alleles that excluded the Petitioner that were not reported by the TBI in 1999 would now be

reported. Agent Minor stated that had the Petitioner’s case been tried today, “you would

have results that said you have mixtures, and then you would have loci that would define

which ones were not consistent with Mr. Mills.”

On re-direct examination, Agent Minor agreed that when Jenkins went below 150

RFU last week, she still did not find all of these alleles that SERI found. He acknowledged

that Jenkins did not find anything exculpatory but stated that there were some alleles that

were not consistent with the Petitioner. Agent Minor agreed that the trial court had to decide

why SERI found exculpatory alleles that the TBI did not find. He also agreed that these

differences could be the result of contamination. Agent Minor admitted that the 19 and 25

at the FGA locus in TBI’s results, which showed that there was a male contributor in the

nonsperm fraction, probably resulted from skin cells from another male.

On re-cross, Agent Minor admitted that at the D8S1179 locus for the Petitioner’s

known sample, Jenkins called a 13, 14, and SERI called a 13, 13. He stated that after

reviewing the data, he would call it a 13, 13 at that locus just as SERI did.

-20-

Procedural History Following Evidentiary Hearings. On November 24, 2010, the

Petitioner filed a “Post-Hearing Brief Regarding [His] Writ of Error Coram Nobis Pursuant

to Tenn. Code Ann. § 40-26-105(a) and Petition to Re-Open Pursuant to Tenn. Code Ann.

§ 40-30-117.” In this brief, the Petitioner requested that the court grant his writ of error

coram nobis, vacate his conviction, and grant him a new trial “because the newly discovered

DNA results may have resulted in a different judgment had they been presented to the jury.”

On January 26, 2011, the post-conviction court entered a memorandum order granting

a new trial on the charge of rape of a child–penile penetration but denying relief on the

remaining charges in counts 1, 4, 5, and 6:

The only DNA evidence the jury had to consider was that of Agent

Jenkins. The conclusion is inescapable that had the jury had before it SERI’s

results to compare with the results of Agent Jenkins, their [sic] verdict might

well be different as to the [rape of a child–]penile penetration charge. This is

not to say that a jury’s verdict would be different after hearing SERI’s results

only that it might be different. The DNA post-conviction court understands

that to be the correct legal standard: Whether new evidence may have led to

a different result. Whether a reasonable basis exists for concluding that had

the evidence been presented at trial, the result of the proceedings might have

been different. House v. Bell, 547 U.S. 518 (2006); State v. Vasques, 221

S.W.3d 514 (Tenn. 2007).

Accordingly, the DNA post-conviction court finds that the defendant

should be granted a new trial as to the [rape of a child–]penile penetration

count so that a jury can consider expert testimony from both sides. The Court,

however, denies the defendant’s request for a new trial regarding the other

charges of which he was found guilty because the SERI results do not

necessarily cast doubt upon these convictions. At the post-conviction hearing,

the defendant’s trial counsel . . . testified that the defendant told him that he

had smoked marijuana with the victim, had fondled her, and had digitally

penetrated her, but denied any penile penetration. Also, at the post-conviction

hearing, the defendant’s attorney in General Sessions Court . . . testified that

the defendant admitted digital penetration. The post-conviction court

accredited the testimony of both of these attorneys and [its] denial of post-

conviction relief has been affirmed on appeal. In this court’s mind the SERI

DNA results do not undermine confidence in the outcome of those convictions

in light of this testimony. Sedley Alley [v]. State, No. W2006-01179-CCA-

R3-PD, 2006 WL 1703820, at [*]9 (Tenn. Crim. App., at Jackson, June 22,

2006), perm. to appeal denied, (Tenn. June 27, 2006); Sedley Alley [v]. State,

-21-

No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at [*]9; see, e.g., State

v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

On February 23, 2011, the Petitioner filed a notice of appeal. On April 20, 2011, the

post-conviction court entered an “Agreed Order,” which incorrectly claimed that the

Petitioner had been convicted of the following counts: count 2, rape of a child–penile

penetration, for which the Petitioner received a twenty-year sentence; counts 3, 4, and 5,

aggravated sexual battery, which were merged and for which the Petitioner received a

sentence of nine years and six months each; and count 6, casual exchange of a controlled

substance to a minor, for which the Petitioner received a two-year sentence. The order noted

that the trial court ordered each of these sentences be served concurrently. In the agreed

order, the State agreed to do the following:

a. The State shall nolle Count Two (Rape of a Child - Penile Penetration).

b. Counts Three, Four, and Five (aggravated sexual battery charges) shall

be merged.

i. The sentence for Counts Three, Four, and Five shall be amended

from 9 years 6 months to 12 years at 100%.

c. The sentence for Count Six (Casual Exchange) shall remain at 2 years.

d. The 12 year sentence for Counts Three, Four, and Five shall run

concurrently with the 2 year sentence for Count Six.

e. Petitioner shall receive full credit for the 11 years 3 months he has

already served in the Tennessee Department of Correction[].

Also on April 20, 2011, amended judgments were filed reflecting the dismissal of

count 2, rape of a child–penile penetration, and guilty jury verdicts in counts 3, 4, and 5,

aggravated sexual battery, with concurrent sentences of twelve years, and count 6, casual

exchange of a controlled substance to a minor, with a concurrent sentence of two years.

ANALYSIS

I. Whether the Petitioner is Entitled to Relief if the Motion is Construed as a

Motion to Reopen the Post-Conviction Petition or as a Petition for Writ of Error Coram

Nobis. On appeal, the Petitioner apparently concedes that he is not entitled to relief if his

motion is construed as a motion to reopen the post-conviction petition. However, he argues

that if his motion is construed as a petition for writ of error coram nobis, then the trial court

erred in refusing to grant a new trial on all of the charges for which he was convicted because

the new DNA evidence undermined the victim’s testimony as to all of these counts, not just

the count of rape of a child–penile penetration. In response, the State contends that if the

Petitioner’s motion is construed as a petition for post-conviction relief, the court erred by

-22-

reopening the petition and granting partial relief in the form of a new trial on the child

rape–penile penetration charge because the newly discovered evidence does not satisfy the

requirement that the Petitioner is actually innocent of the charges of which he was convicted.

However, the State concedes that if the motion is treated as a petition for writ of error coram

nobis, then the trial court properly granted relief on the child rape–penile penetration charge

and properly denied relief on the other charges. We conclude that the trial court properly

construed the motion as a petition for writ of error coram nobis, thereby entitling the

Petitioner to relief.

In order to reopen a petition for post-conviction relief, the appellant must make a

claim falling within the three narrow exceptions outlined in Tennessee Code Annotated

section 40-30-117(a):

A petitioner may file a motion in the trial court to reopen the first

post-conviction petition only if the following applies:

(1) The claim in the motion is based upon a final ruling of an appellate court

establishing a constitutional right that was not recognized as existing at the

time of trial, if retrospective application of that right is required. The motion

must be filed within one (1) year of the ruling of the highest state appellate

court or the United States supreme court establishing a constitutional right that

was not recognized as existing at the time of trial; or

(2) The claim in the motion is based upon new scientific evidence establishing

that the petitioner is actually innocent of the offense or offenses for which the

petitioner was convicted; or

(3) The claim asserted in the motion seeks relief from a sentence that was

enhanced because of a previous conviction and the conviction in the case in

which the claim is asserted was not a guilty plea with an agreed sentence, and

the previous conviction has subsequently been held to be invalid, in which case

the motion must be filed within one (1) year of the finality of the ruling

holding the previous conviction to be invalid; and

(4) It appears that the facts underlying the claim, if true, would establish by

clear and convincing evidence that the petitioner is entitled to have the

conviction set aside or the sentence reduced.

-23-

T.C.A. § 40-30-117(a) (Supp. 2009) (emphases added). The Tennessee Supreme Court has

interpreted the “actually innocent” language in subsection (2) to mean that “the person did

not commit the crime.” Keen v. State, 398 S.W.3d 594, 612 (Tenn. 2012).

Here, in support for his motion to reopen the post-conviction petition, the Petitioner

claimed he had new scientific evidence establishing that he was actually innocent of the

offenses for which he was convicted. The State argues in its brief that the Petitioner is not

entitled to relief on his motion to reopen the post-conviction petition because the newly

discovered evidence did not establish that he was actually innocent of these offenses. We

agree. In Howell v. State, the Tennessee Supreme Court discussed the higher showing that

a defendant must make in filing a motion to reopen a post-conviction proceeding:

[D]efendants petitioning for post-conviction relief are held to more stringent

standards as they proceed further along in this process. They must present

only a “colorable claim” to relief in an original petition, but in a motion to

reopen a post-conviction proceeding they must present facts which “would

establish by clear and convincing evidence” that they are entitled to relief.

These progressively higher standards attempt to balance the State's interest in

maintaining the finality of judgments with a petitioner’s interest in attacking

a possibly unconstitutional conviction or sentence.

151 S.W.3d 450, 460 (Tenn. 2004) (internal citation omitted).

We conclude that the Petitioner’s claim of new scientific evidence in the form of new

DNA evidence fails to present a claim under which a motion to reopen a post-conviction

proceeding may be granted. While SERI was able to exclude the Petitioner as the contributor

of the DNA in two places based on its testing, Jenkins was unable to exclude the Petitioner

at the TH01 locus and concluded that the probability in an unrelated individual having the

same DNA from the African/American population was approximately 1 in 270 and the

probability in an unrelated individual having the same DNA from the Caucasian population

was 1 in 290. At best, SERI’s results merely call into question whether the Petitioner

committed the offenses in this case but fall short of establishing by that the Petitioner was

actually innocent of these charges. Accordingly, the Petitioner has not presented scientific

evidence establishing his actual innocence and has not alleged any of the other statutory

reasons for reopening a post-conviction proceeding.

Moreover, even if the Petitioner had established that he was actually innocent of the

offenses for which the petitioner was convicted, his appeal of the denial of his relief as to the

other charges was untimely. At the time that the post-conviction court denied his motion to

reopen, the Petitioner had only ten days to file an application for permission to appeal in the

-24-

Court of Criminal Appeals, and the State had only ten days to respond. T.C.A. § 40-30-

117(c) (Supp. 2009). In this case, the trial court filed its memorandum order on January 26,

2011, and the Petitioner did not file his notice of appeal until February 23, 2011, well over

the ten-day time limit for filing an appeal to this court.

On the other hand, we conclude that the trial court properly construed the Petitioner’s

motion as a writ of error coram nobis. A writ of error coram nobis is available to convicted

defendants. Id. § 40-26-105(a) (Supp. 2009). However, a writ of error coram nobis is an

“extraordinary procedural remedy” that “fills only a slight gap into which few cases fall.”

State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426,

428 (Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

The Tennessee Supreme Court has distinguished a motion to reopen a post-conviction

petition from a petition for writ of error coram nobis:

The grounds for seeking a petition for writ of error coram nobis are not limited

to specific categories, as are the grounds for reopening a post-conviction

petition. Coram nobis claims may be based upon any “newly discovered

evidence relating to matters litigated at the trial” so long as the petitioner also

establishes that the petitioner was “without fault” in failing to present the

evidence at the proper time. Coram nobis claims therefore are singularly

fact-intensive. Unlike motions to reopen, coram nobis claims are not easily

resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

Tennessee Code Annotated section 40-26-105 explains the relief available through

a petition for writ of error coram nobis. The statute provides, in pertinent part:

The relief obtainable by this proceeding shall be confined to errors

dehors the record and to matters that were not or could not have been litigated

on the trial of the case, on a motion for new trial, on appeal in the nature of a

writ of error, on writ of error, or in a habeas corpus proceeding. Upon a

showing by the defendant that the defendant was without fault in failing to

present certain evidence at the proper time, a writ of error coram nobis will lie

for subsequently or newly discovered evidence relating to matters which were

litigated at the trial if the judge determines that such evidence may have

resulted in a different judgment, had it been presented at the trial.

-25-

The issue shall be tried by the court without the intervention of a jury,

and if the decision be in favor of the petitioner, the judgment complained of

shall be set aside and the defendant shall be granted a new trial in that cause.

In the event a new trial is granted, the court may, in its discretion, admit the

petitioner to bail; provided, that the offense is bailable. If not admitted to bail,

the petitioner shall be confined in the county jail to await trial.

T.C.A. § 40-26-105 (b), (c) (Supp. 2009). A petition for writ of error coram nobis must

contain the following: “(1) the grounds and the nature of the newly discovered evidence; (2)

why the admissibility of the newly discovered evidence may have resulted in a different

judgment had the evidence been admitted at the previous trial; (3) the petitioner was without

fault in failing to present the newly discovered evidence at the appropriate time; and (4) the

relief sought by the petitioner.” Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App.

2004) (citing State v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App. 1995)). We note that

“[t]he decision to grant or deny a petition for the writ of error coram nobis on the ground of

subsequently or newly discovered evidence rests within the sound discretion of the trial

court.” Hart, 911 S.W.2d at 375 (citations omitted).

In State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007) (emphasis added), the

Tennessee Supreme Court reiterated the standard for coram nobis relief:

In an effort to amplify the standard established in Mixon and confirmed

by our own decision in Workman, we hold that in a coram nobis proceeding,

the trial judge must first consider the newly discovered evidence and be

“reasonably well satisfied” with its veracity. If the defendant is “without fault”

in the sense that the exercise of reasonable diligence would not have led to a

timely discovery of the new information, the trial judge must then consider

both the evidence at trial and that offered at the coram nobis proceeding in

order to determine whether the new evidence may have led to a different

result. In the Court of Criminal Appeals opinion in this case, Judge Joseph M.

Tipton described the analysis as follows: “whether a reasonable basis exists

for concluding that had the evidence been presented at trial, the result of the

proceedings might have been different.” Although imprecise, our standard,

which requires determination of both the relevance and the credibility of the

discovered information, offers a balance between the position of the State and

that of the defense. In our view, this interpretation upholds the traditional,

discretionary authority of our trial judges to consider the new evidence in the

context of the trial, to assess its veracity and its impact upon the testimony of

the other witnesses, and to determine the potential effect, if any, on the

outcome.

-26-

The statute of limitations for a petition for writ of error coram nobis is one year from

the date the judgment becomes final in the trial court. T.C.A. § 27-7-103 (Supp. 2009);

Mixon, 983 S.W.2d at 671. For the purposes of a petition for writ of error coram nobis, a

judgment becomes final thirty days after the entry of the trial court’s judgment if no post-trial

motions are filed or upon entry of an order disposing of a timely post-trial motion. Mixon,

983 S.W.2d at 670 (citing Tenn. R. App. P. 4(c); State v. Pendergrass, 937 S.W.2d 834, 837

(Tenn. 1996)). Due process considerations may toll the one-year statute of limitations when

a petitioner seeks a writ of error coram nobis. Harris v. State, 301 S.W.3d 141, 145 (Tenn.

2010). “[B]efore a state may terminate a claim for failure to comply with procedural

requirements such as statutes of limitations, due process requires that potential litigants be

provided an opportunity for the presentation of claims at a meaningful time and in a

meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).

The State has the burden of raising the statute of limitations bar as an affirmative

defense in a coram nobis proceeding. Harris, 301 S.W.3d at 144 (citing Harris, 102 S.W.3d

at 593). Whether a claim is barred by the statute of limitations is a question of law, which

this court reviews de novo. Id. (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918,

921 (Tenn. 2007)). Significantly, the State did not raise the bar of the statute of limitations

as an affirmative defense in this case; therefore, we will proceed as if the statute of

limitations does not preclude our consideration of this case.

We conclude that the trial court properly construed the Petitioner’s motion as a

petition for writ of error coram nobis. In reaching this conclusion, we note that the language

in the Petitioner’s motion shows that he actively pursued relief in the trial court through not

only a motion to reopen a post-conviction petition but also a petition for writ of error coram

nobis. See Harris, 102 S.W.3d at 594 n.9 (holding that a petitioner who is seeking to have

the trial court consider both a motion to reopen and a petition for writ of error coram nobis

as possible avenues for relief “must be required to actively pursue both in the trial court”).

The court’s memorandum order shows that the court was “reasonably well satisfied” with the

veracity of the new DNA evidence and implicitly held that the Petitioner was without fault

in failing to present the new DNA evidence at the proper time. It also held that the newly

discovered evidence related to matters which were litigated at trial. Citing the standard in

Vasques, 221 S.W.3d at 527, the trial court held that “had the jury had before it SERI’s

results to compare with the results of Agent Jenkins, their [sic] verdict might well be

different . . . . ” Consequently, we conclude that the trial court properly construed the motion

as a petition for writ of error coram nobis, thereby entitling the Petitioner to relief.

-27-

II. Whether the Trial Court Erred in Failing to Grant Coram Nobis Relief on

All of the Petitioner’s Charges. The Petitioner argues that the court erred in failing to grant

him coram nobis relief on all of the charged counts for which he was convicted. The State

responds that the court properly granted relief on the child rape–penile penetration conviction

and properly denied relief on the other charges. Specifically, the State contends that “[t]he

presence of the DNA, even as a single locus, still corroborates the victim’s account of the

facts.” Although the State concedes that the trial court erred in taking into account the

general sessions counsel’s and trial counsel’s 2003 post-conviction testimony stating that the

Petitioner admitted that he smoked marijuana with the victim, fondled her, and digitally

penetrated her, it argues that the court’s decision to deny the writ of error coram nobis on the

remaining counts was proper and should be upheld.

In his reply brief, the Petitioner argues that he is conclusively excluded by the DNA

on the victim’s underwear and asserts that the trial court implicitly rejected “any speculative

theory that the underwear was contaminated or that there is an existing dispute as to the DNA

results.” He also argues that, given the State’s concession that the trial court erred in

considering prior counsel’s 2003 post-conviction testimony, this court should grant him a

new trial on the remaining charges. We conclude that the trial court erred in denying the

Petitioner a new trial on all of the charges for which he was convicted.

Initially, we note that the Petitioner failed to include the entire trial transcript in the

record on appeal. The transcripts from the evidentiary hearings show that the State made the

trial transcript an exhibit, and it appears that the trial court considered the trial record when

it granted coram nobis relief in the form of a new trial on count 2. Because the trial court

considered this information and because we must consider it to evaluate the Petitioner’s

claim, we have taken judicial notice of the entire record from the Petitioner’s direct appeal.

State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn. 2009).

During the evidentiary hearings, the trial court evaluated the veracity of SERI’s new

DNA results and compared them with Jenkins’s DNA results from the Petitioner’s trial. The

court also heard testimony from Agent Minor, the technical manager for the TBI’s DNA

division. Harmor testified that SERI’s results showed that the Petitioner was excluded from

the male DNA from unit 1-1, the sample from the waistband of the victim’s underwear, and

was excluded from the male DNA on unit 1-2, the sample from the crotch of the victim’s

underwear. He noted that he was able to identify more genetic material on the underwear

than Jenkins. He also noted that Jenkins only drew “conclusions about the epithelial or non-

sperm fraction of the crotch of the pair of panties and not the sperm fraction.” Harmon stated

that he would have included the conclusions regarding the sperm fraction “to give a more

complete result of the analysis.” Regarding the one marker that Jenkins asserted could have

been contributed by the Petitioner, Harmon stated, “I would prefer to have looked at the

-28-

electronic data and then analyzed it myself, with spreading the scale out, so that I could see

what the peaks themselves looked like, to make sure they weren’t artifacts.” Finally, he

opined that Jenkins had mistakenly identified the Petitioner’s known sample as a 13, 14

rather than a 13, 13 at the D8S1179 locus and asserted that he had two results showing that

the Petitioner was a 13, 13 at that locus.

At the evidentiary hearing, Jenkins testified that during the Petitioner’s trial she

concluded that at the locus of TH01, in the non-sperm fraction, she found alleles 5, 9, which

were both consistent with the Petitioner’s known sample at that locus. She further concluded

at trial that an unrelated individual having the same DNA profile from the African-American

population was 1 in 270 and in the Caucasian population was 1 in 290. She confirmed that

her current testimony was the same as at the Petitioner’s trial, namely that she was unable to

rule the Petitioner out at the TH01 locus. Jenkins stated that when she lowered the baseline

to between 50 and 150 RFU, she found no sperm fraction on the crotch area or the waistband

area of the underwear at the TH01 locus. Although she acknowledged that SERI found an

allele number 8 on the sperm fraction of the waistband in item 1-1 and the sperm fraction of

the crotch of the panties in item 1-4, she stated that she was unable to find an 8 there. She

explained that the difference could be because of the “technology, the sensitivity of their

instruments” or because they may have been able to find something different because they

had a different cutting or because of contamination. She said that after dropping the baseline,

she still could not exclude the Petitioner at the locus TH01. Jenkins acknowledged that SERI

found in the area D135317 alleles 12, 14 in item 1-1 that were male. She stated that SERI

used these alleles to exclude the Petitioner because his known markers at that location were

8, 12. In addition, she noted that SERI found a 12, 14 in the sperm fraction for item 1-2 as

male, which SERI used to exclude the Petitioner because his known markers at that location

are 8, 12. In area D165539, SERI found alleles 9, 11 in item 1-2, which SERI used to

exclude the Petitioner because his known markers at this location were 10, 13. Jenkins

denied mistyping the Petitioner as a 13, 14 at the D8S1179 locus. She acknowledged that

her testing produced very little DNA despite the fact that she had identified sperm and semen

on the victim’s underwear and that SERI’s testing produced substantially more DNA in the

non-sperm and sperm fractions in units 1-1 and 1-4. She also acknowledged that when she

tested the underwear in 1999, she identified a lot of alleles that excluded the Petitioner, but

she did not call them because she deemed them inconclusive. Jenkins said that after

reviewing SERI’s reports and data and after conducting additional analysis of her data, she

stated that there was nothing that would change the testimony she gave at the Petitioner’s

trial.

Agent Minor also testified at the evidentiary hearings. He stated that based on his

review of SERI’s report, there was nothing in SERI’s findings with which he disagreed.

However, he said that he had not reviewed SERI’s raw data to ensure that it supported

-29-

SERI’s conclusions. He noted that he had some problems with the wording of SERI’s

conclusions in its reports and that contamination of the evidence could explain why SERI’s

findings were different from TBI’s findings. Agent Minor stated that he, like SERI,

identified the Petitioner’s known sample as a 13, 13 at the D8S1179 locus, even though

Jenkins identified the Petitioner as a 13, 14 at that locus. After considering the evidence

from the coram nobis hearing and the evidence presented at trial, the court granted the

Petitioner a new trial on count 2.

First, the Petitioner argues that SERI’s exculpatory DNA evidence undermines the

victim’s testimony as to all of the charged counts, not just the charge of rape of a

child–penile penetration. He claims that this court on direct and post-conviction appeal held

that Jenkins’s “incriminating DNA evidence bolstered and corroborated [the victim’s] entire

testimony” and that “the new exculpatory DNA evidence eviscerates [the victim’s] entire

testimony.” He asserts that “the new exculpatory DNA evidence casts substantial doubt on

all of [the victim’s] trial testimony–not just her penile penetration testimony” and “[h]ad the

jury known of the exculpatory DNA evidence, [it] may have acquitted Mills” of the

remaining counts.”

We believe the new DNA evidence casts at least some doubt on the accuracy of

Jenkins’s results and calls into question not only whether the Petitioner committed the

offense of rape of a child–penile penetration but also whether the Petitioner committed any

of the charged offenses. On direct appeal, this court recognized that the victim’s testimony

“constituted the bulk of the evidence against the defendant at trial” and that Jenkins’s

testimony that semen and sperm were found on the victim’s underwear corroborated the

victim’s testimony. Interestingly, Jenkins testimony at trial was that she found alleles 5, 9

at the locus TH01 that were consistent with the Petitioner and that the probability in an

unrelated individual having the same DNA profile from the African/American population

was 1 in 270 and in the Caucasian population was 1 in 290. However, the alleles that Jenkins

stated were consistent with the Petitioner were found in the non-sperm fraction of the sample,

rather than the sperm fraction of the sample. Moreover, Harmor stated that SERI was able

to identify more genetic material on the underwear than Jenkins and that SERI’s results

showed that the Petitioner was excluded from the male DNA from unit 1-1, the sample from

the waistband of the victim’s underwear, and was excluded from the male DNA on unit 1-2,

the sample from the crotch of the victim’s underwear. We agree with the Petitioner that the

new DNA evidence undermines the victim’s credibility not just as to the child rape–penile

penetration charge but also as to all the charges for which the Petitioner was convicted.

Consequently, we hold that a reasonable basis exists for concluding that had the new DNA

evidence been presented at trial, the result of the proceedings on all of the charges might

have been different. See Vasques, 221 S.W.3d at 527.

-30-

Second, the Petitioner contends that the court erred in denying relief on his other

convictions based on trial counsel’s and general sessions counsel’s 2003 post-conviction

testimony. He argues that in determining whether the new exculpatory DNA evidence may

have affected the original jury’s verdict, the court was limited to considering “both the

evidence at trial and that offered at the coram nobis proceeding[.]” Vasques, 221 S.W.3d at

527 (emphases added). He claims that because trial counsel’s and general sessions counsel’s

testimony was not presented at the Petitioner’s trial or the coram nobis hearing, the court was

prohibited from considering this testimony when determining whether to grant coram nobis

relief. We agree.

The law is clear that the coram nobis court should have considered only the evidence

from the trial and the coram nobis hearing. See id. (“If the defendant is ‘without fault’ in the

sense that the exercise of reasonable diligence would not have led to a timely discovery of

the new information, the trial judge must then consider both the evidence at trial and that

offered at the coram nobis proceeding in order to determine whether the new evidence may

have led to a different result.”). We recognize that the evidence the trial court was to

consider in this case was complicated by the fact that the Petitioner’s motion not only asked

for the court to issue a writ of error coram nobis but also asked the court to reopen the post-

conviction petition. However, because the new scientific evidence failed to prove that the

Petitioner was actually innocent, as required in a motion to reopen the post-conviction

proceedings, the trial court should have considered only the evidence presented at trial and

the evidence presented at the coram nobis hearing when determining whether the Petitioner

was entitled to relief.

Upon review, we conclude that the trial court erred in not granting the Petitioner a

new trial on all the charges for which he was convicted. Consequently, we affirm the trial

court’s judgment granting a new trial on count 2, we reverse the judgment denying a new

trial on counts 1, 4, 5, and 6, and we remand the case to the trial court for entry of an order

also granting the Petitioner a new trial in counts 1, 4, 5, and 6.

III. Whether Prior Counsel’s 2003 Post-Conviction Testimony Regarding the

Petitioner’s Admissions as to Some of the Charges is Admissible as Substantive

Evidence of the Petitioner’s Guilt on Retrial. The Petitioner claims that the issue of

whether the State can use trial counsel’s and general sessions counsel’s 2003 post-conviction

testimony, which focused on ineffective assistance of counsel, as substantive evidence of

guilt at the defendant’s retrial is an issue of first impression in Tennessee. He asserts that the

implied waiver doctrine, the attorney-client privilege, and the Fifth and Sixth Amendments

preclude admission of such testimony as substantive evidence of guilt on retrial. Although

the State concedes that the trial court erred in considering prior counsels’ 2003 post-

conviction testimony, it does not address the issue of whether prior counsels’ testimony is

-31-

admissible as substantive evidence of the Petitioner’s guilt upon retrial. We note that the

Petitioner is asking this court to decide this issue based on circumstances that have not yet

occurred and may not arise in the future. See State v. Rogers, 703 S.W.2d 166, 169 (Tenn.

Crim. App. 1985) (“An appellate court will not pass on lawsuits when there is no justiciable

controversy presented, or render advisory opinions on questions which are premature and

contingent and may never arise in the future.”). It is well-established that this court cannot

give advisory opinions. See State v. Rodgers, 235 S.W.3d 92, 97 (Tenn. 2007); State ex rel.

Lewis v. State, 347 S.W.2d 47, 48 (Tenn. 1961). Accordingly, we decline to review this

issue.

IV. Whether the Trial Court Erred in Failing to Adjudicate the Merits of the

Petitioner’s State and Federal Constitutional Claims. First, the Petitioner claims that he

was denied due process because the presentation of false DNA testimony by Jenkins rendered

his trial fundamentally unfair because it may have affected the jury’s decision to convict him

on his remaining counts. Second, he argues that Jenkins’s inaccurate test of the DNA in

1999 prevented him from presenting a complete and meaningful defense because he was

unable to attack Jenkins’ DNA testimony and the victim’s testimony. Third, he contends that

he is entitled to relief because the new exculpatory DNA evidence proves that he is actually

innocent of his remaining counts. See Dellinger v. State, 279 S.W.3d 282, 285 (Tenn. 2009)

(“We hold that a claim of actual innocence based on new scientific evidence is cognizable

in an initial petition for post-conviction relief.”). Finally, he argues that “the cumulative

effect of prejudice from a range of different claims . . . may collectively provide a basis for

relief whether or not the effect of individual deficiencies warrants relief.” The State fails to

address any of these issues. We conclude that the trial court did not err in declining to

address the merits of the Petitioner’s state and federal constitutional claims.

We note that we have already concluded that the Petitioner was not entitled to reopen

his post-conviction proceeding because the new scientific evidence did not establish that he

was actually innocent of the charges in this case and because he failed to allege any of the

other statutory grounds that would entitle him to reopen his post-conviction proceeding.

Although we have concluded that the Petitioner was entitled to coram nobis relief, we note

that state and federal constitutional claims are inappropriate in a petition for writ of error

coram nobis, and the appropriate vehicle for addressing constitutional violations is in a

petition for post-conviction relief. See T.C.A. § 40-30-203 (“Relief under this part shall be

granted when the conviction or sentence is void or voidable because of the abridgment of any

right guaranteed by the Constitution of Tennessee or the Constitution of the United States.”).

Because the Petitioner failed to allege any statutory ground for reopening his post-conviction

proceeding, we conclude that the trial court did not err in declining to address the merits of

his state and federal constitutional claims.

-32-

V. Whether the Agreed Order and Amended Judgments are Void. Although not

raised by the Petitioner, the State argues that the trial court’s April 20, 2011 agreed order,

which was entered after the filing of the Petitioner’s notice of appeal, is null and void

because the court did not have jurisdiction of the case at the time of its entry. The Petitioner,

in his reply brief, argues that neither he nor the State has raised the agreed order as a bar to

this appeal and that the agreed order does not waive his appellate rights. He also asks that

this court “refrain from issuing an advisory opinion on the matter” in light of State ex rel.

Lewis v. State, 347 S.W.2d at 48. Initially, we acknowledge that the validity of the agreed

order does not involve “‘a genuine and existing controversy, calling for present adjudication

as involving present rights[.]’” Id. (quoting Southern Pac. Co. v. Eshelman, 227 F. 928, 932

(N.D. Cal. 1914) (No. 29)). Consequently, we cannot give an advisory opinion regarding

whether this agreed order is void. See Rodgers, 235 S.W.3d at 97; State ex rel. Lewis, 347

S.W.2d at 48. Moreover, this issue is moot because we have affirmed the trial court’s grant

of a new trial in count 2 and have reversed the trial court and granted a new trial to the

Petitioner in counts 1, 4, 5, and 6.

CONCLUSION

Upon review, the trial court’s judgment granting a new trial on count 2 is affirmed,

the judgment denying a new trial on counts 1, 4, 5, and 6 is reversed, and the case is

remanded to the trial court for entry of an order also granting the Petitioner a new trial on

counts 1, 4, 5, and 6.

______________________________

CAMILLE R. McMULLEN, JUDGE

-33-