### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON Ass ig ne d o n B rie fs Aug us t 6 , 20 13

MACK TRANSOU V


### . JE RRY LEST ER, WARDEN

D i r e c t A p p e a l f

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T h e p e t i t i o n e r , M a c k T r a n s o u , a p p e a l s t h e s u m m a r y d e n i a l o f h i s f o u r t h p r o s e p e t i t i o n f

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- y e a r s e n t e n c e , w h i c h w a s t o b e s e r v e d i n C o m m u n i t y C o r r e c t i o n s a f t e r n i n e t y d a y s i n c a r c e r a t i o n

. B a s e d u p o n a b l o o d s a m p l e t a k e n f r o m t h e p e t i t i o n e r a s p a r t o f t h e i n t a k e p r o c e s s , h e w a s l a t e r c o n v i c t e d
, i n t w o s e p a r a t e c a s e s , o f t w o c o u n t s o f r a p e , o n e c o u n t o f s e x u a l b a t t e r y , a n d o n e c o u n t o f a g g r a v a t e d b u r g l a r y

. H e i s c u r r e n t l y s e r v i n g a n e f f e c t i v e t h i r t y

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o u r y e a r s e n t e n c e i n t h e D e p a r t m e n t o f C o r r e c t i o n o n t h o s e c o n v i c t i o n s

. O n a p p e a l
, h e c o n t e n d s t h a t t h e h a b e a s c o r p u s c o u r t e r r e d i n s u m m a r i l y d e n y i n g h i s p e t i t i o n

. F o l l o w i n g r e v i e w o f t h e r e c o r d
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. 3 A p p e a l a s o f R i g h t ; J u d g m e n t o f t h e C i r c u i t C o u r t A f f i r m e d

J O H N E V E R E T T W ILL IA M S , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h T H O M A S T

. W O O D A LL a n d C A M ILL E R

. M C M U LLE N , J J

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M a c k T r a n s o u , W h i t e v i l l e , T e n n e s s e e , P r o s e

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R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r ; a n d S o p h i a S

. L e e , S e n i o r C o u n s e l
, f o r t h e a p p e l l e e , J e r r y L e s t e r , W a r d e n

.

O P I N I O N

P r o c e d u r a l H i s t o r y

As previously noted by this c ourt, “[t] his case is pr ocedur ally complex, due in la rg e part to the petitioner’s numerous and varie d pro se motions and pleading s in which he repe atedly raises the

same claims.” Mack Transou v. State
, No. W2010-01313-CCA-R3-PC, 2011 T enn. Crim. App. L EXI S 247, at *1 (Tenn. Crim. App., Mar. 31, 2011), perm. app. denied
, (Tenn., J une 1, 2011). Thepetition filed in the instant case appea rs to b e y et another challeng e to issues which have been previously

resolved.

On Marc h 22, 1999, the petitioner enter ed a g uilty plea to driving afte r being decla red a habitual motor vehicle o ff en d er , a Class E felony

. There afte r, he was sentenc ed to a term of two
y ear s , which was to be serve d on Communi ty Correc tions following service of ninety day s. I n a previous appea l to our supreme court, it was noted that the petitioner was subsequently incar cer ated following a re vocation of tha t sentence and that:

During intake proce ssing at the prison, [t he petitioner] signe d a co n s ent form and submitt ed to a blood draw

. A DNA analy sis was perf ormed and the results wer e submitt ed to CODI S. [The petitioner’s] DNA p ro fi l e was eventua lly matched to profiles develope d from fore nsic evidenc e in two unsolved crimes: the repor ted rape of S.K. in Dec ember

2001 and the r eporte d rape of C.T. in Marc h 2002.

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

. As a result, the petit ioner was char g ed with ag g rava ted burglar

y and rape for his involvement in the 2001 i ncident. He was also char g ed with rape and sexual battery arising from the incident i n 2002. I n eac h of the c ases, the pe titioner filed a motion to suppress the evidenc e obtained pursuant to the 1999 blood draw taken while he was in prison

. Id

. Following convictions in both case s, the petitioner was sentenc ed to an eff ective
sentenc e of thirty -four y ear s. The petitioner appea led, challeng ing the constitutionalit y of the DNA collection statute and the sufficie ncy of the evidenc e. The convictions wer e aff irmed on appea l by this court and the Te nnessee Supreme Court. Id

.

At this point, the petitioner beg an filing mult i p l e p l eading s and motions in which he consistently asser

ted that his DNA profile had been unlawfully obtained. On J uly 15, 2005, the petitioner filed an application for writ of habea s co rp u s re l i ef, alleg ing that he was entitled to immediate relief from confine ment. Mack Transou v. State
, No. W2005-01935-CCA-R3-HC, 2006 T enn. Crim. App. L EXI S 205, at *4 (Tenn. Crim. App., Mar. 7, 2006). The petitioner’s s p ec i fi c complaint was that the convictions for which he was curr ently confine d wer e obtained as a result of the illega l action of the Depa rtment of Correc tion in obtaining the blood sample used to identify him

as the perpe trator of the crimes in the later case s. Id

. The petitioner also asser ted that: (1) the 1999 conviction for driving afte r being decla red a habi t u al motor vehicle was illega l based upon a

revoc ation of the “proba ted” portion of that sentenc e; and (2) the policies of the Tenne ssee Depa rtment of Corre ction violated his rig hts to due proce ss. Id.

I n deny ing relief

, the habea s corpus court conclude d that: (1) the court in which the petition

was filed lacke d venue; (2) the issue of the leg ality of the DNA evidenc e co u l d not be raised in a petition for habea s corpus; (3) the issue of the DNA evidenc e had been previously deter mined as the evidenc e had been ruled admissible in the trial court, a ruling aff irmed upon ap p ea l ; an d (4) the petition f or relief had not be en verifie d by the petitioner and that he had failed to include a copy of the judgme nt which was b ei n g challeng ed. Id

. at *5-6 The petitioner appea led, and this court aff irmed the denial concluding that: (1) the petitioner had failed to comply wi th the mandatory

-2-p ro ce d u ral requireme nts for habeas corpus petit ions; (2) the petitioner failed to state a g round fo r

habea s corpus relief

; and (3) that the issue of the admissibili ty of the DNA evidenc e had been raised on direc t appea l and was pe nding r eview. Id . at *7-9.

On Aug ust 1, 2005, while his direct appe al was still pending , the petitioner filed a petition for post-conviction relief from his 2003 convictions for ag g rava ted burg lary and rape , alleg ing that the DNA profile linking him to the crimes had been illega lly obtained and that he was denied pretria l jail cre dits that would have resulted in the expiration of his sentenc e prior to the time that his blood

was draw n. Mack Transou v. State
, No. W2010-01378-CCA- R 3 -C O, 2 0 1 1 Tenn. Crim. App. L EXI S 393, at *3 (Tenn. Crim. App., J une 1, 2011). The trial court summarily dism i ssed the petition on August 31, 2005, on the ba sis that the DNA is sue had been pre viously deter mined and beca use a post-conviction petition was not the appropr iate avenue for challeng ing the calc ulation of pretria l jail cre dits that had been awa rded toward the petitioner’s sentenc e in an unrela ted case

. Id

. at *3-4. The petitioner, in 2 0 0 8
, fi l ed a petition to reope n in which he essentially reiter ated the
arg uments raised in the orig inal petition. Id

. The court enter ed an order dismiss ing the petition to
reopen, finding
, among other things, that the petitioner had failed to comply with the st at u t o ry require ments for filing a motion to reope n a pos t -c o n v iction petition and that the petitioner’s alleg ations reg arding the DNA evidenc e had be en pre viously litigated a

nd decide d on appea l. Id

. The dismissal was af

firmed on dire ct appe al. Id . at *5.

I n 2009, the pet i t ioner filed y et another motion to reope n his petition for post-conviction relief

. Id

. The motion wa s appar ently not pursued, as there is nothing in the rec ord with r eg ard to this motion. Howeve r, in 2010, the petitioner filed a “Motion to Re consider Post[ -]Convi ction Or in the Alterna tive, Petition For A Delay ed Appea l,” in which he ag ain contende d that the blood draw had been illega l. Id

. The post-conviction court subsequently enter ed a detailed order dismiss ing the petition. Id

. The court found t hat t he petiti oner was “sim ply att empting to re- litigate issues” that had bee n previously

deter mined or wa ived and that he “ha[d] in no way been denied any appea l.” Id

. (citing Mack Transou v. State
, W2010-01313-CCA-R3-PC, 2011 Tenn. Crim. App. L EXI S 247 (Tenn. Crim. App., Mar. 31, 2011)). This court there afte r dismiss ed the petitioner’s appea l beca use he had failed to comply with the statutory require ments for seeking discretionar y revie w of a denial of a motion to reope n a post-conviction petition. Id

. at *6. There afte r, the petitioner filed a motion for writ of cer

tiorari or, in the alterna tive, writ of err or with this court. I n that motion, the petitioner challeng ed his probation revoc ation, claiming that his sentenc e had expired, the leg ality of the blood draw
, the leg ality of his sentenc e, and that he rec eived ineffe ctive assistance of counsel. Id

. The trial
court dismiss ed the petition, and this court aff irmed on appea l. This court ag ree d with trial court’s
statement t h at “t he g ist of the petitioner’s complaints

. . . [are] that his DNA was wrong fully obtained either throug h dece ption or coer cion or that his sentenc e for the orig inal felony conviction for dr iving a fter ha

ving be en dec lare d a habitual of fende r had e x pired be fore his DNA we re ta ken by the Tenne ssee Depa

r tm e n t o f Co r

r e ction [ ]” and that courts have previously decide d these claims. Id ., at *8.

Whil e the above case s wer e still prog ressing throug h the courts, on November 3, 2008, the petitioner ag ain filed a petition for a writ of habea s corpus claiming that his DNA was collecte d

-3-illega lly

. Mack Transou v. State
, No. W2008-02713-CCA-R3-HC, 2009 Tenn. Crim. App. L EXI S

537, at *3 (Tenn. Crim. App., J ul. 9, 2009). The habea s corpus c ourt dismissed the petition based
upon the following : (1) that t h e p et i tioner was seeking to addre ss issues previously litigated “numer ous times [ ] p re t rial, on appea l, during post conviction, and in a previous habea s corpus petition:” (2) that the petition was filed in the wrong county ; and (3) that the petition was not sworn. Id

. This c ourt aff

irmed the dismiss al, noting that his a rg ument that the collec tion of his D NA was improper or unconstitutional had been previ o u s l y adjudicate d to be without merit. Id

. at *8. The court also deter

mined that the admis sibili ty of DNA ev i d en ce wa s an issue which would rende r a judgme nt voidable, not void, and, thus, did not constitute a g round for habea s corpus relief and that the petitioner ha d failed to c omply with the proce dural ha

beas c orpus re quirements. Id

.

I n J anuar y 2012, t h e p et i t i o n er filed a third petition for writ of habea s corpus in which he contende d that “the judgme nts reg ardin g th e p r o b a ti o n r e v ocation proce eding s occur ring on the dates of J uly 29, 1999 and J uly 17, 2000 wer e i l l ega l an d v o id.” Mack Transou v. Dwight Barbee, W arden
, No. W2012-00258-CCA-R3-HC, 2012 Tenn. Crim. App., L EXI S 331, at *4 (Tenn. Crim. App., at J ackson, May 17, 2012). The petitioner also maintained that the State had viola t ed h i s constitutional rig hts by subjecting him to DNA testing when he was incar cer ated following the

revoc ation. Id

. He did acknow ledg e that the petition was his third and “conc ede[d] to raising issues simil ar to those as included there in” previously

. Id

. The habea s court ag ain dismiss ed the petition, finding that: (1) the petitioner failed to attach a copy of the judgme nt ca u s i n g re straint; (2) the petitioner failed to show his sentenc e was illega l; and (3) the is s u es raised had been previously deter mined. Id . On appe al, this court af firmed the dismissal. Id . at *9.

There afte r, on Dec ember 20, 2012, the petitioner filed y et another petition for writ of habea s corpus, the petition which is the subject of the inst an t ap p eal. On J anuar y 11, 2013, the habea s corpus court ag ain enter ed an order summarily dismiss ing the petition. Th e p et i t i oner has timely
appea led.

Analysis

On appe al, the petitioner ha s put forth y et another arg ument attacking the validity and constitutionalit y of t he taking of his blood while he was inca rce rate d following a 1999 conviction and the later use of his DNA profile in the CODI S comput er

. I n T en n essee , “[a]ny person imprisoned or re strained of his liber ty , under a

ny prete nse wha tsoever . . . ma y prosec ute a wr it of habea s corpus, to inquire into the cause of such imprisonment.” T.C.A. § 29-21-101 (2010). Fu rt h er, the plain lang uag e of the habea s corpus statute permits petitioners to attack onl y t h o s e judgme nts which cause the petitioner to be “imprisoned or restra ined of his liberty .” Id

. The rig ht
to habea s corpus relief is available “only when ‘it appea rs upon the fac e of the judgme nt or t he

rec ord of the proce eding s upon which the judgme nt is rende red’ that a convicting court was without jurisdiction or authority to sentenc e a defe ndant, or that a defe ndant’s sentenc e of imprisonment or other restra int has expired.” Summers v. State
, 212 S.W .3d 251, 255 (Tenn. 2007) (quoting Archer

v. State
, 851 S.W .2d 1 5 7
, 1 6 4 (Tenn. 1993)). I n contra st to a post-conviction petition, a habea s corpus petition is used to challeng e void and not mere ly voidable judgme nts. Summers
, 212 S.W .3d

-4-at 255-56. A voi dable judgment is one that is facia lly valid and re quires proof

bey ond the face of the record or judgme nt to establish its i n v al idity

. Id

. at 256; Dyk es v. Compton
, 978 S.W .2d 528, 5 29 (Tenn. 1998). A voi d judgme nt “is one in which the judgme nt is fac ially invalid beca us e t h e court lacked jurisdiction or author ity to rende r the judg ment.” Taylor v. State , 995 S.W .2d 78, 83 (Tenn. 1999) ; Dyk

es , 978 S.W .2d at 529.

A petitioner bear s the burden of proving a void judgme nt or illega l conf i n em en t b y a preponde ranc e of the evidenc e. W yatt v. State
, 24 S.W .3d 319, 322 (Tenn. 2000). A trial court may summari l y d ismiss a petition for writ of habea s corpus without the appointment of counsel and without an evidentiar

y hear ing if there is nothing on the fac e of the judgme nt t o i n d i ca t e t hat the convictions addre ssed there in are void. Summers
, 212 S.W .3d at 260; Hickm an v. State
, 153 S.W .3d 16, 20 (Tenn. 2004)

.

The de termination of whe ther ha beas c orpus re lief should be gra nted i s a question of law

. Summers
, 212 S.W .3d at 255; Hart v. State
, 21 S.W .3d 901, 903 (Tenn. 2000). There fore
, our revie w is de novo with no presumption of corr ectne ss g iven to the finding s and conclusions of the lower court. Summers
, 212 S.W .3d at 255; State v. Livingston
, 197 S.W .3d 710, 712 (Tenn. 2006). I t is the petitioner’s burden to de monstrate, by a preponde ranc e of the evidenc e, “that the sentenc e is void or that the confine ment is ill eg al.” W yatt , 24 S.W .3d at 322.

The proce dural r e q

u ir e me n ts f

o r h a b e a s c o r p u s r e li ef are mandatory and must be scr upulously followed. Summers v. State
, 212 S. W

. 3 d at 2 6 0 ; Hickm an , 153 S.W .3d at 19-20; Archer
, 851 S.W .2d at 165. For the benef it of individuals such as the petitioner, our leg islature has expli citly laid
out the formal require ments for a petition for a writ of habea s corpus at Tenne ssee Code Annotated section 29-21- 107.

I n its written order dismiss ing the petition, the habea s corpus court noted that the petitioner had filed his petition “alleg ing the same complain[t] s about the DNA sample which was draw n upon admission to TDOC on probation revoc ation.” The court then briefly noted the history of this case and, specific ally
, that the issue reg arding the admissibili ty of the blood samples had been addre ssed by our supreme court in the direc t ap p ea l of this case when the court aff irmed the denial of the motion to suppress. The habea s corpus court conclude d that the petitioner had failed to establish that his sentenc e was illega l and that “[t] he appellate courts have ruled on t h es e i s s u es

. ” As such, t he petition was summarily

denied.

I n the pro se petition filed by the petitioner, he seems to arg ue that his two-y ear driving afte r being decla

red a habitual vehicle offe nder sentenc e had expired prior to his being found in violation of the probationary

sentenc e bec ause of incorre ct applica tion of jail credits. He continues with an

asser tion that if h e h ad n o t b een illega lly detained on that sentenc e, he would not have been in custody and consente d to the blood work from which his DNA profile was extracted and which later linked him to other crimes. On appeal, hi s arg ument is somewhat less clea r, wit h the t hree issues he spec ifically

raises pr esente d as follows:

-5-(1 ) Whether by ignor ing the prior offe nse illega l probation confine ment issues[, ]

[t ]here was sufficient e vidence for a finding of guilt of rape and sexual battery and
sentenc e [t he petitioner] to a[n] eff ective term of thirty -four (34) y ear s[; ] (2) Whether [t he petitioner’s] 4th Amendment Right was violated by the draw ing of his blood by prison nurse and/or submissi on of it to t h e T BI ’s Codis Crime L ab Databa se and subsequent analy sis[ ;] [and] (3) Whether assuming the Appellant’s 4th Amendment Right was violated, “then is relief aff orded him by application of the burden shifting analy sis? ”

The petitioner, while acknow ledg ing that the issue of the admission of the DNA evidenc e has been addre ssed, appea

rs to arg ue that both this court and the Tenne ssee Supreme Court “un l aw fu l l y decide d” the issue. The petitioner also appea rs to asse rt t h at previous revie wing courts have mischara cter ized his arg ument, claiming now that his consent to the blood draw was not valid as he

was illega lly detained when it was g iven. Much of the petitioner’s brief is filled with arg uments and law reg arding sufficie ncy of the evidenc e, denial of motions for new trial, constitutionalit y of DNA collection statutes, and pr osecutoria l misconduct.

After revie w of the rec ord, we must ag ree with the habea s corpus court that the defe ndant has failed to establish his entitlement to relief on this issue. Although failing with his repe ated attempts to have the courts re- litigate the issue of t h e ad m i s sibili ty of the DNA evidenc e, the petitioner continues to file additional challeng es to that evidenc e. Howeve r, as the habea s corpus court found,

our supreme court has addre ssed the a dmissibi lity of that evidenc e and conclude d that it was proper ly admitted based upon consent g iven by the petitioner. Scarborough
, 201 S.W .3d at 625. Eac h of the multipl e petitions filed since then have expli citly held that the issue has previously been adjudicate d
ag ainst the petitioner. Continued filing with a slight modification of his arg ument will not result in

a differ ent conclusion. Pursuant to the “law o f the case ” doctrine, an appellate court is g ener ally without authority to rec onsider is sues t hat have been de cided in a prior appea l; “issues previously litigated and decide d by a court of competent jurisdiction ordinarily need not be revisited.” State v. Jefferson
, 31 S.W .3d 558, 561 (Tenn. 2000) (citing Mem phis Publ’g Co. v. Tennessee Petroleum Underground Storage Tank B d

. , 975 S.W .2d 303, 306 (Tenn. 1998)). I n other words, a previous adjudication bar s a petitioner f rom raising the issue ane w in a denia l of habe as cor pus relief

.

Moreove r, as pointed out by the S t ate, the petition was also proper ly dismiss ed beca use it failed to comply with mandatory proce dural require ments of Tenne ssee Code Annotated section 29- 21-107. More importantly
, howeve r, our rea ding of the petitioner’s brief continually ref ers to issues which are not cog nizable in habea s corpus petitions. Admissibil ity o f ev i dence
, prosec utorial misconduct, and sufficie ncy issues are not the ty pe of issues which will rende r a judgme nt void; thus, they do not constitute a g round for habea s corpus relief

. The petitioner’s attack is on a sentenc e long expired, which, ag ain, is not g oing to r esult in ha beas corpus relief

. No arg ument advanc ed by the petitioner attacks the validity of the curr ent convictions direc tly ; r ather
, eac h attack he mounts is a collater al attack on the sentenc e in a completely separ ate case

. The petitioner is entitled to no relief

.

CONCLUSION

-6-Ba sed upon the fore g oing, the summary denial of t h e p et i t ion for writ of habea s corpus is

aff irmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

J O H N E V E R E T T W I L L I A M S
, J U D G E

-7-