Estate of Sedley Alley v. State of Tennessee

05/07/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 3, 2021 Session

ESTATE OF SEDLEY ALLEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
Nos. 85-05085, 85-05086 & 85-05087 Paula L. Skahan, Judge

No. W2019-02046-CCA-R3-PC

The Appellant, the Estate of Sedley Alley (“the Estate”), appeals from the Shelby County
Criminal Court’s dismissal of its petition for post-conviction DNA analysis. The 2019
petition sought DNA testing of items from the Defendant’s trial despite the fact that the
Defendant, who had received the death penalty, was executed in 2006. The Estate argued
that the Post-Conviction DNA Analysis Act (“the DNA Act”) permitted the Estate to
petition for DNA testing because the civil right of survivorship statute applied. The Estate
additionally argued that United States and Tennessee Constitutions require that the Estate
be allowed to petition for DNA testing under the DNA Act, citing to principles of due
process and a “reputational guarantee.” Following our review of the applicable authorities,
we hold that the Estate is not a “person” within the purview of the DNA Act and that neither
due process nor any reputational guarantee require a remedy under these facts.
Accordingly, we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Stephen Ross Johnson, Knoxville, Tennessee; Josie S. Holland and William D. Massey,
Memphis, Tennessee; Andra J. Hedrick, Nashville, Tennessee; Paul D. Clement, George
W. Hicks, Jr., Megan M. Wold, and Sara S. Tatum, Washington, D.C.; and Barry C. Scheck
and Vanessa Potkin, Innocence Project, New York, New York, for the appellant, Estate of
Sedley of Alley.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein; Solicitor
General; Andrew C. Coulam, Senior Assistant Attorney General; Amy P. Weirich, District
Attorney General; and Stephen P. Jones, Assistant District Attorney General, for the
appellee, State of Tennessee.
 OPINION
FACTUAL BACKGROUND

In July 1985, nineteen-year-old Marine Lance Corporal Suzanne Collins’ life was
ended after being beaten, raped, and impaled with a thirty-one-inch long tree branch. See
State v. Alley, 776 S.W.2d 506, 508-09 (Tenn. 1989), cert. denied, 483 U.S. 1036 (1990).
Thereafter, a Shelby County grand jury charged the Defendant as the assailant.

At trial, the State produced evidence establishing the following facts. The almost
thirty-year-old Defendant, Sedley Alley, was a civilian married to a member of the military,
and they lived on the Millington Naval Base in Millington, Tennessee. Alley, 776 S.W.2d
at 508. The victim lived on the same base. Id. During the late evening hours of July 11,
1985, the Defendant abducted the victim while she was jogging on the base. Id. Two
marines jogging near where the victim was abducted heard the victim scream and ran
toward the sound. Id. at 509. However, before they reached the scene, they saw the
Defendant’s car drive off. Id. They reported to base security and accompanied officers on
a tour of the base, unsuccessfully looking for the car they had seen; they returned to their
barracks. Id. Soon after returning to their quarters, however, the marines were called back
to the security office, where they identified the Defendant’s car, which had been stopped
by officers. Id. The Defendant and his wife gave statements to the base security personnel
accounting for their whereabouts. Id. The security personnel were satisfied with the
Defendant’s story, and the Defendant and his wife returned to their on-base housing. Id.
A few hours later the next morning on July 12, 1985, the victim’s body was found in a
nearby park. Id. at 508. The Defendant was immediately arrested by military police. Id.
at 509. He gave a “lengthy statement of his activities that resulted in the death of Suzanne
Collins to officers of the Naval Investigating Service on the morning of 12 July 1985.” Id.
at 508. After completing the statement, the Defendant voluntarily accompanied officers
“over the route he had taken the night before and to the location of the murder and
accurately identified various things, including the tree where he had left the body and where
it was found by others and from which the limb he used had been broken.” Id. at 509.

The Defendant relied upon an insanity defense at trial. Alley, 776 S.W.2d at 510.
The Defendant presented the testimony of two psychologists who diagnosed the Defendant
as suffering from a multiple personality disorder. Id. However, neither doctor could verify
whether an alternate personality was in control at the time of the offense. Id. The State’s
psychologist also examined the Defendant and determined that psychological tests
administered to the Defendant in May 1986 suggested that he was exaggerating or
malingering. Id. at 510-11. The State’s psychologist further noted that Defendant had no
history of mental health treatment prior to the murder and that it was “improbable that a
condition of insanity had taken control of his actions on the evening of the murder.” Id. at
511. In sum, the State’s psychologist, while diagnosing a borderline personality disorder

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with a chronic history of drug and alcohol abuse, found no evidence of multiple personality
disorder or psychosis. Id.

A Shelby County jury rejected the Defendant’s insanity defense and found the
Defendant guilty of the kidnapping, aggravated rape, and premeditated first-degree murder
of the victim. Alley, 776 S.W.2d at 508. In addition, the jury found two aggravating
circumstances, i.e., the murder was especially heinous, atrocious, or cruel, and the murder
was committed during a kidnapping and rape, and sentenced the Defendant to death. Id.
“He was sentenced to [forty] years on each of the other offenses, all sentences consecutive.”
Id.

This case was the subject of extensive appellate review prior to the Defendant’s June
28, 2006 execution.1 After the guilty verdict, the Defendant’s convictions and sentences
were affirmed on direct appeal. Alley, 776 S.W.2d at 519. Thereafter, the Defendant
sought post-conviction relief, which was denied by the trial court. See Alley v. State, 882
S.W.2d 810, 813 (Tenn. Crim. App. 1994). On appeal, this court reversed the trial court’s
denial, ordered the recusal of the trial judge, and remanded the case for a new hearing. Id.
at 818-23. Upon remand, the Defendant was again denied relief. See Alley v. State, 958
S.W.2d 138, 141 (Tenn. Crim. App. 1997), perm. app. denied (Tenn. Sept. 29, 1997). This
time on appeal, this court affirmed the trial court’s denial of post-conviction relief. Id. at
156. In 1998, the Defendant filed a petition for writ of habeas corpus in the United States
District Court for the Western District of Tennessee. The district court denied the petition.
See Alley v. Bell, 101 F. Supp. 2d 588, 601-73 (W.D. Tenn. 2000). The Sixth Circuit
affirmed the district court’s denial of relief. See Alley v. Bell, 307 F.3d 380, 384 (6th Cir.
2002), cert. denied, 540 U.S. 839 (2003), reh’g denied, 540 U.S. 1086 (2003).

Relative to the Defendant’s previous requests for DNA testing, on May 4, 2004,
which was a month before his scheduled execution date at the time, the Defendant filed a
petition in the Shelby County Criminal Court seeking DNA analysis pursuant to the DNA
Act. See Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *1
(Tenn. Crim. App. May 26, 2004), perm. app. denied (Tenn. Oct. 4, 2004), cert. denied,
544 U.S. 950 (2005) (“Alley I”); see also Tenn. Code Ann. §§ 40-30-304, -305. In his
petition, the Defendant requested the production of eleven biological samples for DNA
testing: (1) vaginal swabs from the victim; (2) a swab taken from the victim’s right inner
thigh; (3) a swab taken from the victim’s left inner thigh; (4) nasopharyngeal swabs from
the victim; (5) oral swabs from the victim; (6) rectal swabs from the victim; (7) head hairs
from an African-American individual found on the victim’s socks; (8) a Caucasian body
hair found on the victim’s waistband; (9) a Caucasian pubic hair found on the victim’s left

1
For the sake of brevity, we do not provide in this opinion an exhaustive list of all the Defendant’s filings
and appeals. We will only cite to those we deem relevant here.
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shoe; (10) a hair on a stick found in the victim; and (11) the victim’s blood and hair
samples. Id. at *3.

The Defendant argued that the samples contained biological evidence that would
have established the identity of the person or persons who committed the sexual assault
and murder of the victim. Alley I, 2004 WL 1196095, at *3. In essence, the Defendant
asserted that he was not the perpetrator of these offenses despite his prior confession. Id.
He contended that “certain evidence tend[ed] to implicate one of the victim’s romantic
partners.” Id. Additionally, the Defendant maintained that certain trial evidence should be
disregarded as unreliable because (1) the Defendant’s confession was coerced; (2) recently
discovered documents from the medical examiner revealed that the victim’s time of death
was later than originally thought; (3) the description of the perpetrator provided by a
witness did not match the Defendant’s description; (4) the description of the vehicle
provided by witnesses did not match that of the Defendant’s vehicle; (5) tire tracks at the
abduction scene did not match the Defendant’s vehicle; (6) fingerprints on a beer bottle
recovered near the victim’s body were not identical to the Defendant’s; and (7) shoe prints
at the abduction scene did not match the shoes the Defendant was wearing on the night in
question. Id.

Following a hearing, the trial court, on May 17, 2004, denied the Defendant’s
petition for DNA testing, finding that the Defendant had “failed to demonstrate that a
reasonable probability exist[ed] that . . . he would not have been prosecuted or convicted
if exculpatory results had been obtained through DNA analysis of the requested samples.”
Alley I, 2004 WL 1196095, at *1. The trial court further found that the Defendant had
“failed to demonstrate that a reasonable probability exist[ed] that analysis of said evidence
w[ould have] produce[d] DNA results which would have rendered the [Defendant’s]
verdict or sentence more favorable if the results had been available at the proceeding
leading to the judgment of conviction.” Id.

On appeal of the 2004 post-conviction DNA proceeding, this court noted the
following additional testimony that was presented at the Defendant’s trial that was germane
to the issue of DNA testing. Dr. Craig Lahren, an expert in hair analysis, and Paulette
Sutton,2 an expert in forensic serology, testified at the Defendant’s trial. Alley I, 2004 WL
1196095, at *6. Dr. Lahren examined a hair collected from inside the victim’s shoe and
determined this hair to be a “Caucasian pubic hair.” Id. He stated that “[t]here was nothing
unusual or unique about the item, and the sample was too limited to actually do a fair
comparison with the . . . known pubic hair.” Id. A hair found on the victim’s waistband
was examined and determined to be a “medium-brown Caucasian body hair, probably from
the arm or the leg.” Id. Again, there was not “enough consistent microscopic

2
Though this witness’s last name was spelled Sims in this court’s 2004 opinion, subsequent opinions
indicate that the correct spelling is Sutton.
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characteristics” to “do a successful comparison on those.” Id. Two strands of hair collected
from the victim’s socks were identified as being from an African-American. Id. Dr. Lahren
testified that the presence of these hairs on the victim’s socks would be consistent with the
victim’s walking around in her “sock feet.” Id. Four hairs found on the victim’s shirt were
“light-brown Caucasian head hair,” ranging from two to seven inches in length; these hairs
were determined to belong to the victim. Id. Finally, hair found on the driver’s side of the
Defendant’s 1972 Mercury station wagon “appeared to be the same as [the victim’s] head
hair.” Id.

Paulette Sutton examined blood specimens found at the crime scene. Alley I, 2004
WL 1196095, at *7. Blood was found on the driver’s side door and near the headlight of
the Defendant’s vehicle. Id. The blood found on the driver’s side door revealed “ABO”
type blood, the same type as the victim. Id. The stain was found to be consistent with
bloody hair’s having been swiped across the surface just above the door handle going
downward toward the road. Id. Ms. Sutton also examined a bloody napkin found on the
floorboard of Defendant’s car, but she was not able to determine the species origin for the
sample. Id. Similarly, there was blood on a screwdriver found at the scene, but Ms. Sutton
could not identify the source. Id. There were no blood or seminal stains found on the
victim’s clothing. Id. Blood was found on the Defendant’s shorts, but a blood type could
not be determined. Id.

This court affirmed the trial court’s denial of the DNA petition. Alley I, 2004 WL
1196095, at *13. In rendering its decision to affirm, this court initially remarked,

The purpose of the [DNA] Act is to establish the innocence of the
[Defendant] and not to create conjecture or speculation that the act may have
possibly been perpetrated by a phantom defendant. Where the allegation is
of recent origin and the evidence otherwise supports the identity of the
[Defendant] as the perpetrator, a prior confession may be sufficient to deny
DNA testing.

Id. at *9. After stating this principle, this court indicated that it would proceed to review
the evidence in light of the possible results of DNA testing. Id. However, before doing so,
this court added,

[T]he [DNA] Act only permits “the performance of a DNA analysis which
compares the [Defendant’s] DNA samples to DNA samples taken from
biological specimens gathered at the time of the offense.” See Earl David
Crawford v. State, No. E2002-02334-CCA-R3-PC, 2003 WL 21782328, at
*3 (Tenn. Crim. App. Aug. 4, 2003), perm. app. denied (Tenn. Dec. 22,

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 2003). Thus, the [DNA] Act does not permit DNA analysis to be performed
upon a third party. Rather, the results of the DNA testing must stand alone.

Id. at *10.

This court then engaged in analysis of the eleven biological samples the Defendant
desired to test and detailed the trial evidence used to convict the Defendant. Alley I, 2004
WL 1196095, at *10-12. Ultimately, this court determined that even if any of the samples
of which the Defendant sought testing revealed the presence of a third-party’s DNA, the
Defendant had still failed

to establish that (1) a reasonable probability exist[ed] that the [Defendant]
would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA analysis and (2) a reasonable probability exist[ed]
that analysis of the evidence w[ould have] produce[d] DNA results which
would have rendered the [Defendant’s] verdict or sentence more favorable if
the results had been available at the proceedings leading to the judgment of
conviction.

Id. at *13 (citing Tenn. Code Ann. §§ 40-30-304(1), -305(1)).

With his execution postponed, the Defendant filed an action under 42 United States
Code Annotated section 1983 in the United States District Court for the Western District
of Tennessee requesting injunctive relief in the form of access to certain evidence3
introduced in his criminal trial for purposes of DNA testing. See Alley v. Key, 431 F.
Supp. 2d 790, 793 (W.D. Tenn. 2006). He claimed that his Eighth, Ninth, and Fourteenth
Amendment rights had been violated because he was not allowed to obtain DNA testing of
the physical evidence taken from the crime scene. Id. Relative to his due process
allegations, he incorporated a procedural due process claim, a substantive due process
claim, and a due process right to the production of exculpatory evidence. Id. 800-03.
Ultimately, the district court dismissed the Defendant’s petition for failing to state a claim
upon which relief could be granted. Id. at 804.

Specifically, regarding procedural due process, the Defendant argued that his right
to procedural due process under the Fourteenth Amendment required release of the
requested evidence and that because he possessed a fundamental interest in his life, due
process required that he be allowed access to evidence that might have allowed him to
3
In the Sixth Circuit’s subsequent opinion, it was noted that the Defendant sought DNA testing of a stick
found inside the victim’s body, the victim’s underwear found at the scene, another set of purportedly men’s
underwear also found at the scene, and the victim’s shorts, bra, shirt, shoes, and a sock. See Sedley Alley
v. William R. Key, No. 06-5552, 2006 WL 1313364, at *1 (6th Cir. May 14, 2006), reh’g en banc denied
(6th Cir. May 16, 2006), cert. denied, 548 U.S. 921 (2006).
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preserve that life interest by demonstrating his innocence of the crime for which he was
sentenced. Alley, 431 F. Supp. 2d at 800. Rejecting the Defendant’s procedural due
process allegation, the district court reasoned that the Defendant had no state law right to
release of the evidence and that “no court of binding or persuasive authority ha[d]
concluded that federal law encompasse[d] such a right.” Id. at 801. Thus, because the
Defendant could not articulate any established legal right to access the evidence, he was
not entitled to due process before being deprived of the evidence. Id.

Relative to substantive due process, the Defendant argued: (1) it “shock[ed] the
conscience” to withhold the evidence arbitrarily in this matter; and (2) the Defendant’s life
interest included the right to obtain evidence of his innocence for presentation in clemency
proceedings. Alley, 431 F. Supp. 2d at 801. The district court also found this claim to be
without merit. The district court first determined that “[b]ecause there [was] no
demonstrable state or federal entitlement to post-conviction release of the evidence on
demand, [the court clerk’s] refusal to do so [could] not ‘shock the conscience[,]’” and
second, that there was “no substantive due process right of access to evidence to present
claims in executive clemency proceedings or otherwise[.]” Id. at 801-02.

Finally, the Defendant contended that due process required that the requested
evidence be released to him because of his right to the disclosure of exculpatory evidence,
citing Brady v. Maryland, 373 U.S. 83 (1963). Alley, 431 F. Supp. 2d at 802. Once again,
the district court found the Defendant’s due process claim to be without merit. Id. at 802-
03. The district court reasoned that the Defendant did not allege that the State failed to
satisfy its Brady obligations regarding this evidence during his prosecution or that he had
been denied a fair trial based on the refusal to grant access to the evidence. Id. at 803. The
district court further concluded that the Defendant could not show that the evidence would
have been favorable to his defense at trial because it remained “purely a matter of
speculation” whether the evidence he requested would “tend to exculpate or otherwise
prove favorable to him.” Id. The district court also said, “Brady and the due process
principle it vindicates [were] not implicated and d[id] not provide [the Defendant] with a
due process right to the post-conviction release of evidence related to his conviction.” Id.

The Sixth Circuit affirmed the district court’s dismissal of the Defendant’s petition.
See Alley, 2006 WL 1313364, at *1. The Sixth Circuit agreed with the district court that
there was no general constitutional right to post-conviction DNA testing. Id.

Relative to the Defendant’s procedural due process claim, the Sixth Circuit
specifically held,

[W]e concur with the district court’s finding that [the Defendant] enjoys no
procedural due process right to post-conviction DNA testing. Nor does [the
DNA Act] create such a right. . . . The state-imposed requirements for
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 securing DNA analysis under the [DNA] Act do not themselves create any
unconstitutional deprivation. Finally, [the Defendant] was not deprived of
his right under state law to petition for DNA analysis. His petition was
simply denied under state law.

See Alley, 2006 WL 1313364, at *2. As for substantive due process, the Sixth Circuit
agreed with the district court that the court clerk’s denial of the Defendant’s request for
access to the evidence did not “shock the conscience,” observing that the court clerk had
acted consistently with state law. Id. The court further held that there was no error of
constitutional proportions because it was “neither arbitrary nor capricious for [the district
attorney general] to defend legally what ha[d] to date been viewed as valid state practice
in the handling of extremely belated requests for examination of alleged DNA evidence.”
Id. Also, the Sixth Circuit confirmed that the Defendant did not have a substantive due
process right to clemency proceedings and that, therefore, no such right could attach to
procedures like the access and testing desired by the Defendant. Id. Finally, the Sixth
Circuit concurred with the district court’s analysis rejecting the Defendant’s separate due
process claim under Brady. Id.

On May 19, 2006, the Defendant filed a second petition for post-conviction DNA
analysis in the Shelby County Criminal Court. See Sedley Alley v. State, No. W2006-
01179-CCA-R3-PD, 2006 WL 1703820, at *2 (Tenn. Crim. App. June 22, 2006), perm.
app. denied (Tenn. June 27, 2006), cert. denied, 548 U.S. 922 (2006) (“Alley II”). In this
petition, the Defendant requested testing of several items omitted from his first petition
under the DNA Act, including: (1) skin cells/sweat from the men’s red underwear that were
found next to the victim’s body and believed to have been worn by the assailant; (2) blood
or skin cells on a stick used to violate the victim, including the paper in which the stick
was wrapped; and (3) material from underneath the fingernails of the victim. Id. at *2-3.
The Defendant asserted that “these items,” “in addition to the swabs from the victim
possibly containing semen, could be subjected to STR DNA testing to conclusively prove
(or disprove) [the Defendant’s] innocence.” Id. at *3. He also requested DNA testing on
“blood and a hair found on and in his car that were directly linked to the victim at trial
using primitive ABO testing and microscopic hair analysis.” Id.

According to the Defendant, DNA testing of these items had the potential of
identifying the real perpetrator of the crime. Alley II, 2006 WL 1703820, at *3.
Specifically, the Defendant “asserted that ‘redundant results’ (DNA tests results that
established the same genetic profile on a number of probative items of evidence) could
have established the true perpetrator of the crime and exclude[d] him as the perpetrator.”
Id. While he asserted that testing of the aforementioned items would have most clearly
exonerated him, “he further argued that testing of additional items should [have] be[en]
subjected to examination as these items could [have] contain[ed] additional evidence and

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create[d] additional redundant results.” Id. Those items included: (1) a sleeveless jersey-
type shirt; (2) one white tube-sock belonging to the victim; (3) one pair of jogging shorts
belonging to the victim; (4) the victim’s bra; (5) the victim’s white cotton panties; (6) a
blue exercise belt belonging to the victim; (7) a left jogging shoe belonging to the victim;
(8) a right jogging shoe belonging to the victim; (9) Styrofoam drinking cups; (10)
bloodstained grass collected from beneath the victim’s vaginal area; and (11) beer bottles.
Id.

Furthermore, the Defendant maintained that testing of these items could have “very
well established” a DNA match to the victim’s boyfriend, John Borup, who admitted to
being with the victim on the night of her murder. Alley II, 2006 WL 1703820, at *3.
According to the Defendant, Mr. Borup more closely matched the description of the
abductor, and Mr. Borup drove a dark, wood-paneled Dodge Aspen station wagon at the
time of the murder. Id. The Defendant asserted that DNA testing results could have been
entered into CODIS4 or a state DNA database, and “score[d] a ‘hit’ to a convicted offender,
thus not only exonerating [the Defendant], but also identifying the actual assailant.” Id. In
this regard, the Defendant maintained that he had “the right to do DNA testing of the crime
scene evidence to prove third-party guilt, whether that c[ame] about by linking DNA from
the crime scene evidence to a convicted offender in the CODIS database or directly to Mr.
Borup.” Id.

The Defendant further contended that in making the determination of whether he
would have been prosecuted in light of exculpatory DNA results, the reviewing court was
not limited to the evidence introduced at trial, but was required to consider all of the
evidence, including factual allegations developed by the Defendant post-judgment. Alley
II, 2006 WL 1703820, at *3. In that regard, the Defendant contended that the court must
consider the following: (1) evidence that the medical examiner had determined that the
victim had died between 1:30 a.m. and 3:30 p.m., contrary to the State’s theory at trial that
the victim had died at 11:30 p.m.; (2) the Defendant had no motive to kill the victim, while
her boyfriend did; (3) an expert, Dr. Richard Leo, had determined that the Defendant’s
confession was unreliable and not true; (4) the victim’s boyfriend fit the description of the
abductor as 5′8″, medium build, short dark brown hair, dark complexion, and no facial hair;
(5) the victim’s boyfriend drove a dark-colored Dodge Aspen station wagon; (6) the tire
tracks and shoe prints from the abduction scene were not from the Defendant’s station
wagon or from his shoes; and (7) hairs and fingerprints found on items near the victim’s
body did not belong to the Defendant. Id. at *3-4.

The trial court denied post-conviction DNA testing, determining that the Defendant
had “failed to meet the statutory requirements which would mandate DNA Analysis as

4
“CODIS” stands for Combined DNA Index System, and it is a federal database containing multiple DNA
profiles from convicted felons.
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outlined in Tenn[essee] Code Ann[otated section] 40-3[0]-304 and ha[d] not convinced
th[e] court that discretionary analysis should [have] be[en] granted under” Code section
40-30-305. Alley II, 2006 WL 1703820, at *4. Specifically, the trial court held,

With regard to requirements of Tenn[essee] Code Ann[otated section]
40-3[0]-304, the court finds that [the Defendant] has failed to demonstrate
that a reasonable probability exists that . . . he would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA analysis of the requested samples; has failed to demonstrate that some
of the samples sought are still in existence and/or are in a condition that is
suitable for testing; and [the Defendant] has failed to demonstrate that the
purpose of the petition is to determine actual innocence and not merely to
delay the execution of his sentence. See Tenn. Code Ann. § 40-30-304(1),
(2), and (4). Thus, testing is not mandated in this case.

Additionally, this court finds that the [Defendant] has failed to
demonstrate that a reasonable probability exists that analysis of said evidence
will produce DNA results which would have rendered the [Defendant’s]
verdict or sentence more favorable if the results had been available at the
proceeding leading to the judgment of conviction. See Tenn. Code Ann. §
40-30-305. Thus, this court is not inclined to order testing under the
discretionary portion of the [DNA] Act[.]

Id.

On appeal, this court affirmed. Alley II, 2006 WL 1703820, at *24. At the outset,
this court addressed the Defendant’s request “to discredit or ignore certain evidence
introduced at trial and to consider newly discovered evidence tending to exculpate the
Petitioner, that is, the same evidence argued in the 2004 petition.” Id. at *7. In denying
this request, this court stated,

The [DNA] Act does not require nor permit the lower court to re-evaluate the
credibility or validity of the evidence submitted at trial. Nor does the [DNA]
Act permit the court to consider new evidence, aside [from] DNA test results,
supporting a different theory than the one relied upon by the [Defendant].
The [DNA] Act is not the proper vehicle to seek review of evidence other
than results available from DNA testing of biological specimens recovered
during the course of the investigation or prosecution of the petitioner. See
generally Tenn. Code Ann. § 40-30-302. Other avenues exist for

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 consideration of newly discovered evidence in both the state and federal
courts.

Id.

This court next discussed the Defendant’s argument “that he [was] entitled to have
the results of the DNA testing compared to a third-party person and the results checked
against known violators in a public DNA database,” CODIS. Alley II, 2006 WL 1703820,
at *8. The court noted the holding of Alley I that the purpose of the DNA Act was to
establish the innocence of a petitioner and not to create conjecture or speculation that the
act may have possibly been perpetrated by a phantom defendant. Id. at *9. The court then
continued,

The [DNA] Act’s reach is limited to the performance of DNA analysis which
compares the petitioner’s DNA to samples taken from biological specimens
gathered at the time of the offense. . . . This [c]ourt rejects any implied testing
of third-party individuals or the need to “run” DNA testing results through a
DNA database for “hits.” . . . Nor can this [c]ourt endorse the [Defendant’s]
argument that Tennessee created a “liberty interest” in using DNA testing to
prove third-party guilt. . . . And, while there may be a liberty interest in
testing biological samples for DNA created by enactment of statutory
provisions, such right to access potentially exculpatory evidence does not
remain unconditional. . . . Any interest created by enactment of the [DNA]
Act created a limited interest of a defendant in establishing his/her innocence
and did not create an interest in establishing the guilt of a speculative and
unknown third party.

Id. (internal citations omitted). The court concluded, “The results of DNA testing must
stand alone and do not encompass a speculative nationwide search for the possibility of a
third-party perpetrator. Thus, the DNA analysis is limited to showing that the biological
specimen did not belong to either the [Defendant] or the victim.” Id. Despite this holding,
the court again engaged in an analysis of the evidence and the possibility of a match to
third-party individual.

First, the court determined that the record supported the trial court’s conclusion that
several items were no longer in existence for DNA testing or in a condition suitable for
DNA testing: (1) blood and hair found in the Defendant’s vehicle; (2) broken fingernail
obtained from the victim; (3) samples taken from the victim and the Defendant; and (4)
swabs taken from the victim’s body. Alley II, 2006 WL 1703820, at *13. The court
proceeded with analysis of the remaining items, those being (1) men’s red underwear; (2)
a stick and paper in which the stick was wrapped; (3) a sleeveless jersey-type shirt; (4) one
white tube-sock belonging to the victim; (5) one pair of jogging shorts belonging to the
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victim; (6) the victim’s bra; (7) the victim’s white cotton panties; (8) a blue exercise belt
belonging to the victim; (9) a left jogging shoe belonging to the victim; (10) a right jogging
shoe belonging to the victim; (11) Styrofoam drinking cups; (12) bloodstained grass
collected from beneath the victim’s vaginal area; and (13) beer bottles. Id.

In analyzing these items, this court noted the trial court’s findings that the Defendant
had not established that biological specimens were present on many of the items of
evidence for which he sought testing. Alley, 2006 WL 1703820, at *16-22. The court also
found that there was an issue of contamination of certain physical evidence because it had
been in the custody of the Shelby County Criminal Court Clerk’s Office for twenty or more
years. Id. at *17, *22-23. Regardless, this court agreed with the trial court that even if
testing of these items did reveal the presence of a third-party’s DNA, the Defendant had
failed to establish, in light of the evidence of his guilt, that (1) a reasonable probability
existed that the Defendant would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA analysis or (2) a reasonable probability existed that
analysis of the evidence would have produced DNA results which would have rendered the
Defendant’s verdict or sentence more favorable if the results had been available at the
proceedings leading to the judgment of conviction. Id. at *15-24. Lastly, the court held
that the belated DNA requests shortly before the dates of his scheduled execution “were
made for the purpose of delaying the execution of the sentence.” Id. at *24.

Relative to the Defendant’s request for consideration of “redundant” test results that
would have established his innocence of the murder, this court remained unpersuaded by
such argument. Alley II, 2006 WL 1703820, at *16. We reasoned,

This [c]ourt is not inclined to disregard the overwhelming evidence against
the [Defendant] and, at this late date, embrace an entirely new theory of the
crime. Even assuming that DNA testing of the numerous items requested by
the [Defendant] would generate results indicating an absence of the
[Defendant’s] DNA from these items, this would not, with consideration of
the plethora of credible evidence against the [Defendant], establish his
innocence of the murder or convince this [c]ourt that he would have been
neither prosecuted nor convicted if this DNA evidence had been revealed to
the jury.

Id. Thereafter, the Defendant was executed on June 28, 2006.

Almost five years later in 2011, our supreme court specifically overruled the holding
of Alley II that the DNA Act did not encompass matching DNA results to third-party via
law-enforcement databases. Powers v. State 343 S.W.3d 36, 47-53 (Tenn. 2011). In
Powers, the petitioner argued that exculpatory results would have created a reasonable
probability that he would not have been prosecuted or convicted if “the DNA profile
- 12 -
developed from the evidence was uploaded into a DNA database and matched another
profile in the system.” Id. at 39. On appeal, this court affirmed the denial of relief, relying
on our previous holding in Alley II. Id. at 43. However, our supreme court reversed,
holding that DNA results obtained under the provisions of the DNA Act may be compared
with profiles contained in a database. Id. at 49-50. Our supreme court reasoned that this
court’s limited interpretation of “DNA analysis” was incorrect and that “[t]here [was]
nothing in the[] provisions [of the DNA Act] limiting the DNA analysis” to a comparison
between crime scene evidence and only a petitioner’s DNA samples. 343 S.W.3d at 49.
Instead,

[i]f the comparison between a DNA profile developed from crime scene
evidence and a petitioner’s DNA profile d[id] not return a match, and
uploading the crime scene DNA profile into a database ha[d] the potential to
establish a petitioner’s innocence and identify the true perpetrator of the
crime, then the trial court [could] issue an order providing for such a
comparison.

Id.

On April 30, 2019, the Estate, with the Defendant’s daughter as the Estate’s
representative, filed the instant petition for post-conviction DNA testing. In the petition,
the Estate sought testing of the following items: (1) men’s red underwear; (2) the victim’s
t-shirt; (3) a stick used to murder the victim and the wrapping in which the stick was placed;
(4) blood-stained grass; (5) the victim’s bra; (6) the victim’s shoes; (7) a white tube-sock;
(8) Styrofoam cups; (9) the victim’s shorts; (10) the victim’s underwear; (11) the victim’s
exercise belt; (12) a beer bottle; (13) the Defendant’s shorts; (14) the screwdriver found at
the scene; and (15) napkins discovered near the victim’s body.5 According to the Estate,
given the holding of Powers and the reversal of Alley II, “there [was] no legitimate question
that [the Defendant] would [have] be[en] entitled to DNA testing to determine actual
innocence and the identity of the real killer under” the DNA Act. The Estate continued,

Both the law and DNA science have evolved since 2006. The evidence to be
tested is still in existence and is preserved by the Shelby County Criminal
Court Clerk’s Office. And there is a reasonable probability that [the
Defendant] would not have been convicted or executed if DNA testing results
are exculpatory on the material items of evidence recovered from the crime
scene.

5
Only three items in this 2019 petition were not the topic of the prior two petitions or Section 1983 action—
(1) the Defendant’s shorts; (2) the screwdriver found at the scene; and (3) napkins discovered near the
victim’s body.
- 13 -
The Estate contended that the Defendant’s daughter, as personal representative of the
Estate, now stood “in the shoes of her father, seeking the truth.”

The Estate asserted that the DNA Act also contemplated advancements in science
that might necessitate a re-testing of the evidence. The Estate indicated that the DNA
testing available in 2004 and 2006 would have required a larger amount of DNA to produce
reliable results and that improvements in STR testing allowed for results to be obtained
even where sample sizes were very small. The Estate cited advancements in “mini-STR
testing,” “Y-STR testing,” and “Mega-Plex STR testing” that could potentially be helpful
in the analysis of the evidence in the case. The Estate further proposed using genealogy
services to conduct additional third-party investigation in addition to the CODIS or other
third-party databases.

The Estate contended that this court should consider the following post-judgment
evidence in its analysis: (1) Dr. Richard Leo’s report, wherein he had determined that the
Defendant’s confession was unreliable and not true; (2) autopsy records showing that the
Defendant never hit the victim with a screwdriver or impaled her head with a screwdriver;
(3) the tire tracks and shoe prints from the abduction scene were not from the Defendant’s
station wagon or from his shoes; (4) the victim’s fingerprints were not found inside the
Defendant’s car; (5) the description of the perpetrator provided by a witness did not match
the Defendant’s description. The Estate maintained that it had never received a full and
fair hearing on the Defendant’s guilt or innocence, especially noting that “when there was
an opportunity to do DNA testing that would [have] determine[d] whether [the Defendant]
or someone else committed this crime, the post-conviction and appellate courts in [the
Defendant’s] case, as admitted by the Tennessee Supreme Court in 2011 in Powers, got the
analysis wrong.”

The Estate asserted that there was a possibility that DNA analysis of the evidence
would show that Thomas Bruce was in fact the perpetrator of the victim’s beating, assault,
and murder. The Estate indicated, “Thomas Bruce, now under indictment in St. Louis,
Missouri for homicide and rape, might be a serial offender, and Bruce was taking courses
from the same Avionics Training School in Millington, Tennessee that [the victim]
attended in the months prior to the homicide.”

In the petition, the Estate asked to test for DNA on the existing evidence against
preserved samples of the Defendant’s, as well as those contained in CODIS. According to
the Estate, the absence of the Defendant’s DNA on the tested items would have undermined
the State’s theory that the Defendant was the person who committed this murder. The
Estate continued, “If a number of these items . . . produced a male DNA profile that
matched each other, but excluded [the Defendant], these redundant results would further
strengthen the inference that a man other than [the Defendant] committed this crime.”
Furthermore, in the Estate’s opinion, “[i]f testing of these items of evidence produced a
- 14 -
DNA profile that produced a ‘hit’ or matched a profile of an offender in the FBI’s CODIS
DNA database, that would be powerful exculpatory evidence that a person other than [the
Defendant] committed the murder.”

The State filed its response to the petition for DNA testing on May 31, 2019. The
State initially raised several procedural claims, arguing that the Estate lacked standing
under both the DNA Act and the doctrine of justiciability. First, the State argued that the
Estate was not a “person convicted of and sentenced for first degree murder” within the
meaning of Tennessee Code Annotated section 40-30-303. The State asserted that an estate
did not qualify as a “person” within the meaning of other sections of state law, nor did an
estate qualify as a “person” within the meaning of the DNA Act. The State asserted the
DNA Act contemplated actions filed by a petitioner whose sentence had not been fully
executed, not by the estate of a deceased petitioner. Second, the State argued that any
rights the Defendant might have had to post-conviction DNA testing did not survive his
death. Specifically, the State contended that the DNA Act did not contain a provision
authorizing the survivability of such a claim. Other sections of Tennessee law explicitly
provided for the survivability of certain actions on behalf of deceased litigants, the State
claimed, but the right to bring a post-conviction claim was not so enumerated. Third, the
State alleged that the present petition was not “otherwise justiciable.” In addition to the
lack of standing, the State argued the Estate had not suffered any injury, nor could the
courts provide any redress to the Estate given that the Defendant had been executed.
Furthermore, the State claimed that the Defendant’s execution (and the court’s inability to
provide relief) rendered the petition for relief moot. Fourth, the State submitted that the
current petition was untimely. While Tennessee Code Annotated section 40-30-303
allowed a petition for post-conviction DNA testing to be filed “at any time,” the State
claimed that the phrase “at any time” did not encompass a period beyond a petitioner’s
death or the expiration of his sentence (which in this case were one and the same). Fifth,
the State argued that the current petition was precluded by the principles of res judicata and
collateral estoppel.

Responding to the Defendant’s substantive claims, the State speculated that certain
evidence might be tainted after years in the State’s custody and claimed that the Estate had
“not shown that much of the evidence [was] still in existence or in a condition that DNA
analysis could be conducted.” The State further opposed the Estate’s proposal to use
genealogy services to conduct additional third-party investigation, contending that such
testing went “well beyond the scope of the [DNA] Act.” Finally, the State argued that even
if DNA testing produced exculpatory results, the Defendant would still have been
prosecuted and convicted based on his confession and other evidence, and there was no
“reasonable probability” of a different result even if the DNA on all of the physical
evidence did not match the Defendant.

- 15 -
 Following the post-conviction court’s June 20196 hearing, the Estate filed a
memorandum of law responding to the State’s assertions. In its response, the Estate
contended: (1) The authority to which the State cited actually supported the Estate’s
contention that civil rules of procedure apply to this case and that; therefore, the
Defendant’s right to DNA testing was not abated by his death; (2) The plain language of
the post-conviction DNA testing statute did not preclude the Estate’s right to DNA testing,
as the DNA Act did not require that the “person” seeking testing be in custody or subject
to supervised release and the DNA Act allowed the “person” to bring the claim “at any
time”; (3) The plain language of other statutes, including statutes dealing with exoneration,
expunction, compensation, and the like, made clear that the legislature intended such
claims to survive death; (4) The Estate did meet traditional standing requirements because
the Defendant’s daughter did suffer “distinct and palpable injuries” as a result of her
father’s execution; these injuries were traceable to state action, and these injuries could be
redressed by a favorable decision, which would in turn entitle the Estate to compensation;
and (5) Collateral estoppel, res judicata, and law of the case doctrines did not bar litigation
of the current petition; and (6) The Estate had a constitutional right to DNA testing.

The State filed an additional responsive pleading on September 12, 2019. In the
response, the State asserted, among other things, that post-conviction proceedings were not
bound by the Tennessee Rules of Civil Procedure or statutes governing survivorship of tort
actions and that the Estate had no constitutional right to bring a post-conviction action.
The Estate filed a final sur-reply, arguing that the State’s position misunderstood the nature
of collateral review and failed to account for vital constitutional interests at stake.

A hearing was held on October 14, 2019, where both sides presented argument.
Thereafter, on November 18, 2019, the post-conviction court entered an order dismissing
the petition, finding that the Estate did not have standing to file a petition for DNA analysis
under the DNA Act and that, therefore, the post-conviction court was without subject
matter jurisdiction to consider the petition. The post-conviction court found that the plain
language of the DNA Act restricted petitioners to “person[s] convicted of and sentenced
for the commission of” certain offenses and that the DNA Act did not include a
survivability provision so that an estate of a deceased individual could request DNA
testing. The post-conviction court also concluded that the statutes, court rules, and caselaw
relevant to civil proceedings were generally inapplicable to post-conviction proceedings
and rejected the contention that survivability provisions found in another part of the
Tennessee Code regarding civil actions applied to the DNA Act. The post-conviction court
further ruled that the statutes relevant to exoneration did not confer any right of exoneration
or exoneration-based compensation to deceased persons or their estates. Finally, the post-
conviction court determined that the Estate had no due process right, either in the form of
6
There is no transcript of this hearing included in the appellate record. This hearing is referenced in the
post-conviction court’s order denying relief.
- 16 -
property rights or in the form of a liberty interest in proving innocence, to DNA testing and
that the Defendant had been provided with the opportunity to raise his claim in a
meaningful time and in a meaningful manner, his having had multiple attempts to raise
post-conviction DNA claims before his execution. This appeal followed.

ANALYSIS

On appeal, the Estate argues that the DNA Act authorizes the estate of an deceased
defendant to petition for DNA testing. According to the Estate, the Defendant’s right to
petition for DNA testing passed to his Estate after his execution under the applicable civil
survivorship statutes.

I. Plain Language of the DNA Act

The Estate argues that Tennessee law empowers courts to supply rules of procedure
where none are specified and notes that under Watkins v. State, 903 S.W.2d 302, 305
(Tenn. 1995), post-conviction proceedings are “a hybrid affair, involving an appeal from a
criminal prosecution which is considered under the civil rules of procedure.” The Estate
extrapolates that the DNA Act, which does not address survivability, should be held to
authorize the Estate to petition for DNA testing by applying Tennessee’s civil rules of
survivorship. Specifically, the Estate requests that this court view a DNA petition under
the DNA Act as a civil action and apply the right of survivorship found in Tennessee Code
Annotated section 20-5-102. That section provides,

No civil action commenced, whether founded on wrongs or contracts,
except actions for wrongs affecting the character of the plaintiff, shall abate
by the death of either party, but may be revived; nor shall any right of action
arising hereafter based on the wrongful act or omission of another, except
actions for wrongs affecting the character, be abated by the death of the party
wronged; but the right of action shall pass in like manner.

Tenn. Code Ann. § 20-5-102.

We agree with the State that the Estate weaves several arguments throughout its first
issue, intertwining the facts of the Defendant’s case with the language of the DNA Act and
the applicability of procedural rules in other post-conviction arenas, as well as arguing
principles of fairness given that the Defendant was twice denied DNA testing based upon
reasoning that was later overruled in part. In addition, we disagree with the Estate that the
“relevant legal question” is not whether the Estate is a “person convicted of and sentenced
for” first-degree murder, but whether the cause of action created by the DNA Act survives
a person’s death. The language of the DNA Act confers standing to a “person convicted
of and sentenced for” certain offenses, here, first-degree murder. Merely because
- 17 -
survivability is not specifically discussed in the DNA Act does not mean that the DNA Act
is unclear or ambiguous regarding standing. We believe the threshold question here is a
simple one, being one of statutory construction—whether the plain language of the DNA
Act gives a deceased person’s estate standing to bring a DNA petition. Accordingly, a
review of the statutes at issue, as well as a review of principles of statutory interpretation,
are paramount to this decision.

Issues of statutory construction are questions of law, which this court reviews de
novo with no presumption of correctness. State v. Henderson, 531 S.W.3d 687, 692 (Tenn.
2017) (citing State v. Springer, 406 S.W.3d 526, 532-33 (Tenn. 2013)). Our supreme court
has given guidance with regard to the interpretation of statutes, stating,

The overriding purpose of a court in construing a statute is to ascertain
and effectuate the legislative intent, without either expanding or contracting
the statute’s intended scope. Legislative intent is first and foremost reflected
in the language of the statute. We presume that the [l]egislature intended
each word in a statute to have a specific purpose and meaning. The words
used in a statute are to be given their natural and ordinary meaning, and,
because words are known by the company they keep, we construe them in
the context in which they appear and in light of the general purpose of the
statute. We endeavor to construe statutes in a reasonable manner which
avoids statutory conflict and provides for harmonious operation of the laws.
When a statute’s text is clear and unambiguous, we need look no further than
the language of the statute itself. We simply apply the plain meaning without
complicating the task.

When, however, the language of a statute is ambiguous, we resort to
rules of statutory construction and external sources in order to ascertain and
give effect to the legislative intent. These external sources may include the
broader statutory scheme, the history and purpose of the legislation, public
policy, historical facts preceding or contemporaneous with the enactment of
the statute, and legislative history. The language of a statute is ambiguous
when it is subject to differing interpretations which yield contrary results.
This proposition does not mean that an ambiguity exists merely because the
parties proffer different interpretations of the statute. A party cannot create
an ambiguity by presenting a nonsensical or clearly erroneous interpretation
of a statute.

Wallace v. Metro. Gov’t of Nashville, 546 S.W.3d 47, 52-53 (Tenn. 2018) (quotation
marks and citations omitted).

- 18 -
 On July 18, 2001, our state passed the DNA Act. See Tenn. Code Ann. §§ 40-30-
301 to -313. After reviewing the legislative history, our supreme court observed that the
purpose of the DNA Act was two-fold: (1) to exonerate the wrongfully convicted who are
still imprisoned and (2) to identify the true perpetrators of their crimes. See Powers, 343
S.W.3d at 51. Toward this end, the main operative provision of the DNA Act, Tennessee
Code Annotated section 40-30-303, provides:

Notwithstanding part 1 of this chapter, or any other provision of law
governing post-conviction relief to the contrary, a person convicted of and
sentenced for the commission of first degree murder, second degree murder,
aggravated rape, rape, aggravated sexual battery or rape of a child, the
attempted commission of any of these offenses, any lesser included offense
of these offenses, or, at the direction of the trial judge, any other offense, may
at any time, file a petition requesting the forensic DNA analysis of any
evidence that is in the possession or control of the prosecution, law
enforcement, laboratory, or court, and that is related to the investigation or
prosecution that resulted in the judgment of conviction and that may contain
biological evidence.

Tenn. Code Ann. § 40-30-303.

After notice to the prosecution and an opportunity to respond, the court shall order
DNA analysis if it finds the following:

(1) A reasonable probability exists that the petitioner would not have
been prosecuted or convicted if exculpatory results had been obtained
through DNA analysis;

(2) The evidence is still in existence and in such a condition that DNA
analysis may be conducted;

(3) The evidence was never previously subjected to DNA analysis or
was not subjected to the analysis that is now requested which could resolve
an issue not resolved by previous analysis;

(4) The application for analysis is made for the purpose of
demonstrating innocence and not to unreasonably delay the execution of
sentence or administration of justice.

Tenn. Code Ann. § 40-30-304. The provisions of this section are mandatory, meaning that
if the post-conviction court finds that they are satisfied, it is without discretion to deny
DNA analysis. However, “[t]he failure to meet any of the qualifying criteria is, of course,
- 19 -
fatal to the action.” William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003
WL 1937110, at *6 (Tenn. Crim. App. Apr. 24, 2003). Finally, a related provision provides
for DNA analysis in the post-conviction court’s discretion if the same factors are satisfied,
but the results would only reduce the petitioner’s offense level or sentence rather than
completely exonerating him. See Tenn. Code Ann. § 40-35-305.

The Estate focuses on the non obstante clause that begins section 40-30-303,
“Notwithstanding part 1 of this chapter, or any other provision of law governing post-
conviction relief to the contrary,” seemingly for the proposition that the DNA Act should
be construed broadly. According to the Estate, though the DNA Act itself does not address
whether the right to petition for DNA testing survives death, “it does make clear that any
general rule about post-conviction relief becoming unavailable upon the death or execution
of the inmate does not automatically apply to the DNA Act.” Stated a different way, the
Estate asserts, “The [DNA] Act furnishes rights notwithstanding the ordinary rules that
govern post-conviction relief.”

However, the non obstante clause merely objectifies the legislature’s intention to
allow DNA testing where other provisions might conflict. Such conflicting provisions can
be found in the Chapter 1 and Rule 28, such as the statute of limitations, the presentation
of only constitutional claims, and the filing of multiple petitions. Moreover, the non
obstante clause is not a carte blanche exception for the DNA Act excluding it from all other
provisions governing post-conviction petitions, it merely states that such provisions do not
apply where they conflict. In addition, there is no “general rule” for survivorship in the
post-conviction realm, either for DNA testing or otherwise. Therefore, this clause does not
evidence any intent on the part of the legislature to broaden the meaning of the specific
individual delineated by the DNA Act to seek relief, that being “a person convicted of and
sentenced for the commission” of various enumerated offenses.

“Rather than speculating about the significance of provisions which are not
included in the statute, a more effective method of understanding the intended purpose of
the statute is to consider the words actually used.” Fletcher v. State, 951 S.W.2d 378, 382
(Tenn. 1997). The legislature chose to use “person” in Code section 40-30-303. “We
presume that every word in a statute has meaning and purpose and should be given full
effect if so doing does not violate the legislature’s obvious intent.” In re C.K.G., 173
S.W.3d 714, 722 (Tenn. 2005).

The Tennessee Code generally defines “person” to include “a corporation, firm,
company or association” “unless the context [of the Code section] otherwise requires.” See
Tenn. Code Ann. § 1-3-105(a)(19). Relying on this general provision, the Estate argues
that the context of the term “person” as used in the DNA Act requires that an estate be
included with the definition because an estate steps into the shoes of the decedent. We
disagree. First, the definition of person in Code section 1-3-105(a)(19) makes no reference
- 20 -
to either a criminal defendant or an estate. Moreover, the term as used in the DNA Act
does not exist in isolation. Given the entire context of the phrase, that being “a person
convicted of sentenced for” one of enumerated offenses, it is clear that the legislature
intended only an individual to be able to bring a petition under the DNA Act. In addition,
the term person as it is used in the DNA Act logically does not include “a corporation, firm,
company or association.” Therefore, we are unpersuaded by the Estate’s argument in this
regard that the DNA Act is ambiguous. Importing the general definition of “person” here
from Code section 1-3-105(a)(19) is not logical. We reiterate that the language of a statute
is ambiguous only when it is subject to differing interpretations that yield contrary results,
that an ambiguity does not exist merely because the parties proffer different interpretations
of the statute. Wallace, 546 S.W.3d at 53 (citations omitted).

When the legislature does not provide a specific definition for a statutory term, this
court may look to other sources, including Black’s Law Dictionary, for guidance. State v.
Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007). The word “person” is not a complex legal
term, and we must give the word “person” its “natural and ordinary meaning.” See, e.g.,
State v. Nikia Bowens, No. E2017-02075-CCA-R3-CD, 2018 WL 5279374, at *7 (Tenn.
Crim. App. Oct. 23, 2018) (defining “building” as used in the burglary statute by giving it
is natural and ordinary meaning). In “general usage,” “person” is defined as “a human
being (i.e. natural person).” Black’s Law Dictionary at 1142 (6th ed. 1990); accord
Webster’s Third New International Dictionary at 1686 (1981) (defining “person” as “an
individual human being” and “a living individual unit”). Black’s Law Dictionary
recognizes that “by statute[, the] term may include labor organization, partnerships,
associations, corporations, legal representatives, trustees, trusts in bankruptcy, or
receivers.” Black’s Law Dictionary at 1142. As such, in absence of a specific statutory
term or definition, “person” is “well-understood to be a live human being,” not a legal
entity like a decedent’s estate. See State ex rel. Grant County Commission v. Nelson, ---
S.E.2d ----, 2021 WL 1100165, at *10-11, *11 n.2 (W. Va. Mar. 22, 2021) (J. Wooten,
concurring) (noting Black’s Law Dictionary’s definition of the term “person” and
concluding that when “person” is not defined by statute, it does not include a statutory
entity like the Commission). Likewise, the Tennessee Supreme Court has declined to
expand the definition of “person” beyond its ordinary meaning to include government
entities. See Moreno v. City of Clarksville, 479 S.W.3d 795, 812-14 (interpreting the
relevant provision in the Claims Commission Act, Tennessee Code Annotated section 9-8-
402(b), which stated that the filing of the written notice in the Claims Commission “toll[ed]
all statutes of limitations as to other persons potentially liable” due to the occurrence that
was the subject of the claim, did not apply to governmental entities such as the City of
Clarksville); see also Daniel v. Hardin Co. General Hosp., 971 S.W.2d 21, 25 (Tenn. Ct.
App. 1997) (declining to apply a ninety-day window in the 1993 version of Code section
20-1-119, which extended the expired statute of limitations to add “a person not a party to

- 21 -
the suit,” to the statute of limitations in GTLA claims because Code section 20-1-119 did
not reference GTLA or governmental entities).

In addition, we observe that there are clear instances in our statutes where the
legislature has intended to the expand the ordinary meaning of “person” and provided a
specific statutory definition. For example, Tennessee’s comparative fault statute defines
“person” to mean “any individual or legal entity,” see Tennessee Code Annotated section
20-1-119(f), and the Drug Dealer Liability Act defines a “person” as “individual,
governmental entity, corporation, firm, trust, partnership, or incorporated or
unincorporated association, existing under or authorized by the laws of this state, another
state, or foreign country,” see Tennessee Code Annotated section § 29-38-104(11). The
legislature has not chosen to adopt a specific definition of the term “person” for purposes
of the DNA Act.

The Estate contends that “[s]tatutes do not say that any ‘person or his Estate’ may
pursue a cause of action” and that because an Estate stands in the shoes of a decedent, such
language would be superfluous. We disagree. See Estate of Kuba by Kuba v. Ristow
Trucking Co., Inc., 508 N.E.2d 1 (Ind. 1987) (holding that given the language of the
applicable provision of Indiana’s wrongful death statues, the definition of “person” did not
include an estate and that the estate was precluded from bringing a claim); In re Estate of
Gottier, 475 P.3d 1144, 1147-48 (Ariz. Ct. App. 2020) (concluding that the estate was not
included within the definition of “person” for purposes of Arizona’s Insurance Code); see
also 26 United States Code Annotated § 7701(a)(1) (the Internal Revenue Code’s defining
“person” to include “an individual, a trust, estate, partnership, association, company or
corporation”) (emphasis added)); 29 United States Code Annotated § 1002(9) (the
Employee Retirement Income Security Act of 1974’s defining “person” to include a
“partnership, joint venture, corporation, mutual company, joint-stock company, trust,
estate, unincorporated organization, association, or employee organization” (emphasis
added)); Hyde v. Harrison County, 607 S.W.3d 106, 113 (Tex. Ct. App. 2020) (citing to a
Texas statute that defined “person” as “[a] corporation, organization, government or
governmental subdivision or agency, business trust, estate, trust, partnership, association,
and any other legal entity”) (emphasis added)). The legislature’s omission of a provision
in a statute is deemed intentional and significant. See State v. Whited, 506 S.W.3d 416,
439-40 (Tenn. 2016); State v. Davis, 940 S.W.2d 558, 561-62 (Tenn. 1997).

Finally, we examine this holding in light of the DNA Act’s purposes, which as noted
above are two-fold: (1) to exonerate the wrongfully convicted who are still imprisoned and
(2) to identify the true perpetrators of their crimes. See Powers, 343 S.W.3d at 51. In
Powers, our supreme court observed the following circumstances that led to the enaction
of the DNA Act in this state and others:

- 22 -
 While known for its crime-solving capabilities, “from its earliest
days, DNA typing has also served a second function of equal importance: the
determination of a person’s innocence.” DNA analysis was first used in a
forensic setting in 1986 in an attempt to solve two rape-murders in England.
Although a man confessed to one of the murders, DNA analysis revealed that
the man’s profile did not match the semen collected from either crime scene
and he was eliminated as a suspect. DNA analysis was used three years later
in the United States to exonerate Gary Dotson, a man who had served ten
years in an Illinois prison for a crime that he did not commit. Because of the
lack of available remedies in the state or federal courts when a convicted
defendant sought post-conviction access to DNA analysis, the states began
to enact legislation affording a right to such testing. Illinois and New York
were the first, passing such legislation in 1999. Today, forty-eight states and
the federal government have enacted statutes or rules providing for post-
conviction access to DNA analysis. Since Gary Dotson’s exoneration in
1989, over 250 people have been exonerated through post-conviction DNA
analysis. Of the first two hundred exonerations, almost one-fourth occurred
because the DNA evidence taken from the crime scene matched the profile
of a perpetrator that was already uploaded in a DNA database.

Id. at 46-47 (citations and internal quotation marks omitted)

Thus, we observe that the impetus for the DNA Act, in this state and others, was to
exonerate the wrongfully convicted who were still imprisoned. See id. at 50-51 (noting
Tennessee’s legislative history comments, “I think it’s . . . important . . . to the person
[who] is serving the time [who has] been innocent all along,” and, “If it frees people [who]
are unlawfully and improperly jailed, it’s the best thing we can do, because these people
are having their liberty taken from them unlawfully and unjustly”). When the prisoner has
died, ordering DNA testing no longer serves this function. As for the DNA Act’s secondary
purpose of law enforcement, that being finding the true perpetrator of the crime, a petition
for DNA analysis under the DNA Act is not the State’s only mechanism for DNA testing,
though the State may not frequently choose to do so of its own volition. Nonetheless,
because it is the State and the public at large that benefit from this purpose, not the
wrongfully convicted individual, it is the State that is tasked with achieving the law
enforcement objective, not a deceased prisoner’s estate. Finally, there is no evidence that
the legislature enacted the DNA Act for the purpose of compensating the families of the
wrongfully convicted.

We conclude that it was not the obvious intent of the legislature to include any civil
right of survivorship in the word “person” in Code section 40-35-303. In this court’s view,
had the legislature intended for someone to be able to file a petition for post-conviction

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DNA testing on behalf of a statutorily eligible person who had died, such a provision would
have been placed in the appropriate statutes. This conclusion, we believe, is rooted in
principles of statutory construction. Based upon our holding, there is no need to regress
into an extensive discussion regarding the hybrid nature of post-conviction proceedings
and in what context civil procedure rules might be adopted or to discuss standing-related
caselaw.

We also observe that this result is consistent with caselaw in other contexts that
collateral attacks on a prisoner’s criminal judgment ends with the death of the prisoner.
The State aptly cites to caselaw from writ of habeas corpus actions where courts have
concluded that a petitioner’s habeas petition was rendered moot by his death. Keitel v.
Mazurkiewicz, 729 F.3d 278, 280 (3d Cir. 2013) (collecting cases); Bruno v. Sec’y, Fla.
Dep’t of Corr., 700 F.3d 445, 445 (11th Cir. 2012); McMillin v. Bowersox, 102 F.3d 987,
987 (8th Cir. 1996). “[U]nless a judgment and sentence in a capital case is stayed pending
post-conviction proceedings, those post-conviction proceedings would be rendered moot
by carrying out the sentence of death.” State v. Beam, 766 P.2d 678, 682 (Idaho 1988).

The Estate responds to this line of caselaw by arguing that it is not bringing a
collateral attack on the Defendant’s conviction or sentence, but rather, it is petitioning for
DNA testing pursuant to a statutory action that allows for such “at any time” if the relevant
criteria are met. See Tenn. Code Ann. § 40-30-303. However, for the reasons given above,
this is not a cause of action that the legislature intended to survive death. The primary
purpose of the DNA Act is to exonerate the wrongfully convicted who are still imprisoned
via post-conviction relief, and by that very nature, it is a collateral attack on the conviction
and sentence. See Kutzner v. Johnson, 303 F.3d 333, 338 (5th Cir.) (noting that motions
for DNA testing are a collateral attack on the conviction and are subject to the prohibition
of successive habeas petitions), cert. denied, 536 U.S. 978 (2002). The State has a
legitimate interest in finality, and we are not obliged to open the door to posthumous
litigation by probate estates absent a clear directive from our legislature to do so. The
Estate’s argument that the 2011 holding of Powers somehow changes this result does not
persuade us to the contrary for reasons discussed below.

II. Constitutional Claims

Next, the Estate argues that if “the [DNA] Act is incapable of vindication here, then
the DNA Act would be unconstitutional as applied to this case.” The Estate submits that
the United States and Tennessee Constitutions require that the Estate be permitted to
petition for DNA testing under the DNA Act, noting that although the State may not be
required to provide a mechanism for DNA testing, once it makes testing available, the
applicable procedures must comply with constitutional requirements. Specifically, the
Estate argues that extinguishing the deceased Defendant’s right to petition upon his
execution by the State violates due process because it ignores the significant private
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interests in obtaining DNA testing, results in almost certain deprivation of the vital property
and liberty interests at stake, allows the State to cover up its own potential execution of an
innocent person, and is completely at odds with the State’s interest in identifying the
victim’s murderer. In addition, the Estate contends that the Tennessee Constitution’s
“reputational guarantee” requires that the Estate be permitted to petition for DNA testing
on the deceased Defendant’s behalf.

The Estate, citing Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013),
submits that because Tennessee has chosen to provide a post-conviction procedural right
to seek DNA testing, the procedures available for defending that right must conform with
the federal and state constitutions. According to the Estate, the Due Process Clause
requires that the Estate be permitted to petition for DNA on the Defendant’s behalf, thereby
providing adequate protection for the important property and liberty interests at stake. The
Estate asserts that there are three property interests at stake, those being the Defendant’s
reputational guarantee, the procedural rights created by the DNA Act, and in exoneration
and non-discretionary exoneration compensation. The Estate also indicates that the
following liberty interests are at stake—establishing the Defendant’s innocence and
“removing the stigma of a conviction for first-degree murder.” The Estate concludes,
“Whether framed as a property or liberty interest, the Estate’s interest in bringing this
petition is significant, the risk of erroneous deprivation is high, and the State’s contrary
interest is minimal.”

Both the United States Constitution and the Tennessee Constitution protect the right
to due process of law. Section 1 of the Fourteenth Amendment to the United States
Constitution provides, “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law[.]” In addition, article I,
section 8 of the Tennessee Constitution states, “[N]o man shall be taken or imprisoned, or
disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner
destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.” The Tennessee Supreme Court has held that article I, section 8 of the
Tennessee Constitution is “synonymous” with the Due Process Clause of the Fourteenth
Amendment. Gallaher v. Elam, 104 S.W.3d 455, 463 (Tenn. 2003) (citing Riggs v. Burson,
941 S.W.2d 44, 51 (Tenn. 1997)).

“Procedural due process rules are meant to protect persons . . . from the mistaken
or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259
(1978). For procedural due process claims, “the deprivation by state action of a
constitutionally protected interest in life, liberty, or property is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (citations and internal

- 25 -
quotation marks omitted). “Such rules ‘minimize substantively unfair or mistaken
deprivations of’ life, liberty, or property by enabling persons to contest the basis upon
which a State proposes to deprive them of protected interests.” Carey, 435 U.S. at 259-60.
This constitutional guarantee protects an individual from the erroneous exercise of the
State’s authority.

“All that [procedural] due process requires in the post-conviction setting is that the
defendant have ‘the opportunity to be heard at a meaningful time and in a meaningful
manner.’” Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting Mathews v. Eldridge,
424 U.S. 319, 333 (1976)). In determining whether this requirement has been met, we
must consider three factors established by the United States Supreme Court:

First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.

Heyne v. Metro. Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 732 (Tenn. 2012) (quoting
Mathews, 424 U.S. at 335). Within this framework, we are mindful that “due process is
flexible and calls for such procedural protections as the particular situation demands.”
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Though the Estate asserts its claims under the guise of procedural due process, it
intermingles notions of substantive due process throughout its arguments. Substantive due
process claims deal with the reasonableness of the governmental decision. Substantive due
process has been defined in the following way:

In contrast to procedural due process, substantive due process bars
oppressive government action regardless of the fairness of the procedures
used to implement the action. Substantive due process claims are divided
into two categories: (1) deprivations of a fundamental constitutional
guarantee, and (2) government actions that are arbitrary, or conscience
shocking, in a constitutional sense. Appropriate limits on substantive due
process come not from drawing arbitrary lines but rather from careful respect
for the teachings of history [and] solid recognition of the basic values that
underlie our society.

Mansell v. Bridgestone Firestone North Am. Tire, LLC, 417 S.W.3d 393, 409 (Tenn. 2013)
(citations and internal quotations marks omitted).

- 26 -
 Substantive due process prohibits the States from infringing on fundamental liberty
interests, regardless of the procedures provided, unless the infringement is narrowly
tailored to serve a compelling state interest. Chavez v. Martinez, 538 U.S. 760, 775 (2003);
Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Reno v. Flores, 507 U.S. 292, 301-
02 (1993). In order to qualify for such protection, the individual’s fundamental rights and
liberties must be “deeply rooted in this Nation’s history and tradition” and “implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Glucksberg, 521 U.S. at 721 (citations and internal quotation marks omitted).
“A substantive due process inquiry focuses on ‘what’ the government has done, as opposed
to ‘how and when’ the government did it.” See Amsden v. Moran, 904 F.2d 748, 754 (1st
Cir. 1990). Individuals who claim that their right to substantive due process has been
violated must show that the State’s conduct shocks the conscience, interferes with rights
implicit in the concept of ordered liberty, offends judicial notions of fairness, is offensive
to human dignity, or is taken with deliberate indifference to protected rights. See Anderson
v. Larson, 327 F.3d 762, 769 (8th Cir. 2003).

Not all property interests which fall under the protection of the procedural element
of the Due Process Clause are protected under the substantive portion. Reich v. Beharry,
883 F.2d 239, 243-245 (3d Cir. 1989). Caselaw provides relatively little specific guidance
as to what constitutes a property interest worthy of substantive due process protection.
Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 140 (3d Cir. 2000). Property rights
are created and their dimensions are defined by existing rules and understandings that stem
from independent sources such as state law. Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972). However, the courts must look to federal law to determine whether a particular
property right is entitled to substantive due process protection. Memphis Light, Gas &
Water Div. v. Craft, 436 U.S. 1, 9 (1978).

A. DNA Testing

1. Substantive Due Process. Though the Estate specifically denounces any
substantive due process claim, we are not completely persuaded that such is the case given
the co-mingled nature of its arguments and usage of phrases such as “conscious-shocking.”
Accordingly, to any extent that the Estate’s claims can be construed as raising issues of
substantive due process, we briefly note that “there is no freestanding substantive due
process right to DNA testing.” Charles W. Elsea v. Neal Pinkston, et al., 1:19-cv-00287,
2020 WL 4043982, at *2 (E.D. Tenn. June 18, 2020) (quoting In re Frederick J. Smith, 349
F. App’x. 12, 15 (6th Cir. 2009) (citing District Attorney’s Office for Third Judicial Dist.
v. Osborne, 557 U.S. 52, 72 (2009))). We find further guidance in the United States
Supreme Court’s decision in Osborne.

In Osborne, the defendant, while alive and incarcerated in Alaska, unsuccessfully
brought an action to compel release of certain biological evidence so that it could be
- 27 -
subjected to DNA testing. 557 U.S. at 55-62. The Supreme Court held that Alaska law
governing procedures for post-conviction relief did not violate the defendant’s substantive
due process rights, reasoning that enacting a free-standing claim

would take the development of rules and procedures in [the area of DNA
testing] out of the hands of legislatures and state courts shaping policy in a
focused manner and turn it over to federal courts applying the broad
parameters of the Due Process Clause. There is no reason to constitutionalize
the issue in this way.

Id. at 56. The Supreme Court later explained, “Osborne rejected the extension of
substantive due process to this area, and left slim room for the prisoner to show that the
governing state law denies him procedural due process.” Skinner v. Switzer, 562 U.S. 521
(2011) (citing Osborne, 557 U.S. at 71-72). The Defendant simply did not have a
substantive due process right to DNA testing of the evidence while alive, and by extension,
the Estate possesses no such right.

Similar substantive due process claims made by the Defendant while he was still
alive were likewise rejected. In the Defendant’s Section 1983 action in the United District
Court for the Western District of Tennessee, the district court determined that “[b]ecause
there [was] no demonstrable state or federal entitlement to post-conviction release of the
evidence on demand, [the court clerk’s] refusal to do so [could] not ‘shock the
conscience[,]’” and second, that there was “no substantive due process right of access to
evidence to present claims in executive clemency proceedings or otherwise[.]” Alley, 431
F. Supp. 2d at 801-02. On appeal, the Sixth Circuit affirmed. The Sixth Circuit, like the
district court, concluded that the court clerk’s denial of the Defendant’s request for access
to the evidence did not “shock the conscience,” observing that the court clerk had acted
consistently with state law. Alley, 2006 WL 1313364, at *2. The court further held that
there was no error of constitutional proportions because it was “neither arbitrary nor
capricious for [the district attorney general] to defend legally what ha[d] to date been
viewed as valid state practice in the handling of extremely belated requests for examination
of alleged DNA evidence.” Id. We see no reason to depart from these holdings.

2. Procedural Due Process. Turning to procedural due process, the keystone of the
Estate’s constitutional claims, we note that State laws like Tennessee’s Post-Conviction
DNA Analysis Act may indeed create a liberty interest7 in accessing biological evidence
for testing. See Luis Castanon v. Victor S. Johnson, III, District Attorney for the Twentieth
Judicial Dist. of Tenn., No. 12-5497, 2012 WL 10236221, *1 (6th Cir. Dec. 19, 2012); see
also Elsea, 2020 WL 4043982, at *2. A prisoner may “have a liberty interest in

7
The Estate cites to no caselaw, and we know of none, that creates “a property interest in the procedural
right created” by the DNA Act.
- 28 -
demonstrating his innocence with new evidence under state law” and the state’s procedures
must afford adequate access to information to vindicate that state’s right to post-conviction
relief. Osborne, 557 U.S. at 68-69, 72. Thus, a defendant may challenge a state’s
procedures for post-conviction access to evidence on due process grounds by showing the
procedures are “fundamentally inadequate to vindicate the substantive rights provided.”
Id. at 69 (noting that “the question is whether consideration of [the defendant’s] claim
within the framework of the [s]tate’s procedures for post-conviction relief ‘offends some
principle of justice so rooted in the traditions and conscience of our people as to be ranked
as fundamental,’ or ‘transgresses any recognized principle of fundamental fairness in
operation’”) (quoting Medina v. California, 505 U.S. 437, 446, 448 (1992))); see also Alvin
McLean v. Richard Brown, et al., No. 08 Civ. 5200, 2010 WL 2609341, at *7 (E.D.N.Y.
June 25, 2010) (citing Osborne, 557 U.S. at 69). “A prisoner’s post-conviction due process
right to evidence is limited” and “extends only to the proper application of a state-created
right to such evidence.” McLean, 2010 WL 2609341, at *7.

In this regard, the Estate’s argument is that the procedures of the DNA Act are
themselves fundamentally unfair. Essentially, the Estate argues that it is fundamentally
unfair for the Estate not to be considered a “person” within the parameters of the DNA Act
if we interpret it that way, which we have done so in the section above. The Estate’s
argument focuses on the fact that Powers, after the Defendant’s execution, overruled the
holding in Alley II and that it was unfair to prohibit DNA testing of the evidence in this
case against samples in the CODIS database. According to the Estate, the Defendant had
a liberty interest created by the procedures of the DNA Act to allow access to DNA testing
in order to prove his innocence and remove “the stigma of a conviction for first-degree
murder.”

Just as with the Defendant’s substantive due process allegations, his claim of a
violation of procedural due process was addressed by the federal courts while the
Defendant was still alive. In the Defendant’s action in the United District Court for the
Western District of Tennessee, the district court rejected the Defendant’s procedural due
process allegation, reasoning that the Defendant had no state law right to the evidence and
that “no court of binding or persuasive authority ha[d] concluded that federal law
encompasse[d] such a right.” Alley, 431 F. Supp. 2d at 801. Thus, because the Defendant
could not articulate any established legal right to the evidence, he was not entitled to due
process before being deprived of the evidence. Id. Relative to the Defendant’s procedural
due process claims, on appeal of the district court’s decision, the Sixth Circuit specifically
held,

[W]e concur with the district court’s finding that [the Defendant]
enjoys no procedural due process right to post-conviction DNA testing. Nor
does Tennessee’s Post-Conviction DNA Analysis Act create such a right. . .

- 29 -
 . The state-imposed requirements for securing DNA analysis under the
[DNA] Act do not themselves create any unconstitutional deprivation.
Finally, [the Defendant] was not deprived of his right under state law to
petition for DNA analysis. His petition was simply denied under state law.

See Alley, 2006 WL 1313364, at *2; see also Castanon, 2012 WL 10236221, at *1. Again,
we see no reason to depart from these holdings. We conclude that the State’s procedures
were fundamentally adequate to protect the Defendant’s liberty interest created by the
DNA Act.

Even if the rulings in federal courts did not foreclose the present aspect of the
Estate’s procedural due process claim, the Estate’s complaint fails to show that the DNA
Act, as applied in this case, violates procedural due process. See Castanon, 2012 WL
10236221, at *2. The Estate alleges that the DNA Act deprived the Defendant of his
procedural due process rights because the law was incorrectly applied to him as later
decided in Powers and that due to that incorrect interpretation, the Defendant was not
allowed to compare DNA evidence in his case to CODIS samples. We disagree with the
Estate that the erroneous conclusions in the Alley decisions relative to the Defendant’s
ability to compare DNA evidence with a third-party database so pervaded those decisions
that a procedural due process violation occurred. Though this court in the Alley decisions
incorrectly ruled in that regard, the various courts to analyze the Defendant’s petitions for
DNA testing did not deny testing on that ground alone. Rather, the courts denied post-
conviction DNA testing because it was not reasonably probable that the results of testing
would have affected the jury’s verdict or the Defendant’s sentence.

Multiple courts considered the Defendant’s requests and, after performing a full
analysis of his claims, concluded that he had not shown entitlement to DNA testing under
the DNA Act. Specifically, in 2004, the trial court denied the Defendant’s petition for
DNA testing, finding that the Defendant had “failed to demonstrate that a reasonable
probability exist[ed] that . . . he would not have been prosecuted or convicted if exculpatory
results had been obtained through DNA analysis of the requested samples.” Alley I, 2004
WL 1196095, at *1. The trial court further found that the Defendant had “failed to
demonstrate that a reasonable probability exist[ed] that analysis of said evidence w[ould
have] produce[d] DNA results which would have rendered the [Defendant’s] verdict or
sentence more favorable if the results had been available at the proceeding leading to the
judgment of conviction.” Id.

On appeal, this court affirmed. After stating the purpose of the DNA Act was “not
to create conjecture or speculation that the act may have possibly been perpetrated by a
phantom defendant,” we indicated that we would proceed to review the evidence in light
of the possible results of DNA testing. Alley I, 2004 WL 1196095, at *9. This court then
engaged in analysis of the eleven biological samples the Defendant desired to test and
- 30 -
detailed the trial evidence used to convict the Defendant. Id. at *10-12. Ultimately, this
court determined that even if any of samples of which the Defendant sought testing
revealed the presence of a third-party’s DNA, the Defendant had still failed

to establish that (1) a reasonable probability exist[ed] that the [Defendant]
would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA analysis and (2) a reasonable probability exist[ed]
that analysis of the evidence w[ould have] produce[d] DNA results which
would have rendered the [Defendant’s] verdict or sentence more favorable if
the results had been available at the proceedings leading to the judgment of
conviction.

Id. at *13 (citing Tenn. Code Ann. §§ 40-30-304(1), -305(1)).

In 2006, the trial court, ruling on the Defendant’s second petition for DNA testing,
again denied his request. The trial court determined that the Defendant had “failed to meet
the statutory requirements which would mandate DNA Analysis as outlined in Tenn[essee]
Code Ann[otated section] 40-3[0]-304 and ha[d] not convinced th[e] court that
discretionary analysis should [have] be[en] granted under” Code section 40-30-305. Alley
II, 2006 WL 1703820, at *4. Specifically, the trial court held,

With regard to requirements of Tenn[essee] Code Ann[otated section]
40-3[0]-304, the court finds that [the Defendant] has failed to demonstrate
that a reasonable probability exists that . . . he would not have been
prosecuted or convicted if exculpatory results had been obtained through
DNA analysis of the requested samples; [the Defendant] has failed to
demonstrate that some of the samples sought are still in existence and/or are
in a condition that is suitable for testing; and [the Defendant] has failed to
demonstrate that the purpose of the petition is to determine actual innocence
and not merely to delay the execution of his sentence. See Tenn. Code Ann.
§ 40-30-304(1), (2), and (4). Thus, testing is not mandated in this case.

Additionally, this court finds that the [Defendant] has failed to
demonstrate that a reasonable probability exists that analysis of said evidence
will produce DNA results which would have rendered the [Defendant’s]
verdict or sentence more favorable if the results had been available at the
proceeding leading to the judgment of conviction. See Tenn. Code Ann. §
40-30-305. Thus, this court is not inclined to order testing under the
discretionary portion of the Act[.]

Id.

- 31 -
 Again, this court affirmed on appeal. Despite this court’s holding that the DNA Act
did not create an interest in establishing the guilt of a speculative and unknown third party,
the court again engaged in a thorough analysis of the evidence. After first determining that
the record supported the trial court’s conclusion that several items were no longer in
existence for DNA testing or in a condition suitable for DNA testing, we proceeded with
an analysis of the remaining items. Alley, 2006 WL 1703820, at *13. In analyzing these
items, this court noted the trial court’s findings that the Defendant had not established that
biological specimens were present on many of the items of evidence for which he sought
testing. Id. at *16-22. The court also found that there was an issue of contamination of
certain physical evidence because it had been in the custody of the Shelby County Criminal
Court Clerk’s Office for twenty or more years. Id. at *17, *22-23. Regardless, this court
agreed with the trial court that even if testing of these items did reveal the presence of a
third-party’s DNA, the Defendant had failed to establish, in light of the evidence of his
guilt, that (1) a reasonable probability existed that the Defendant would not have been
prosecuted or convicted if exculpatory results had been obtained through DNA analysis;
and (2) a reasonable probability existed that analysis of the evidence would have produced
DNA results which would have rendered the Defendant’s verdict or sentence more
favorable if the results had been available at the proceedings leading to the judgment of
conviction. Id. at *15-24.

Twice, in reference to this court’s decisions in Alley I and Alley II, the Tennessee
Supreme Court and the United States Supreme Court considered his arguments for
intervention and further review and twice declined to do so. That the Tennessee Supreme
Court later overruled part of the reasoning of the Alley II decision in Powers does not
entitle the Estate years afterward to relitigate the DNA claims under the pretense of due
process.

Moreover, much of the post-judgment evidence the Estate asks us to consider—such
as Dr. Leo’s report regarding the Defendant’s confession, tire tracks and shoe prints from
the abduction scene not matching the Defendant’s belongings, and a witness’s description
of the perpetrator varying from the Defendant’s person—has already been discussed and
rejected by this court in our prior opinions. Given the earlier findings by this court in its
two prior opinions that the Defendant had failed to satisfy all of the criteria for DNA
testing, any advancements in DNA analysis since that time do not entitle the Defendant, or
the Estate on his behalf, another bite of the apple. Also, the Defendant never claimed at
trial that he was actually innocent of the murder but instead raised an insanity defense. We
agree with the State that the Defendant did not lack due process to adjudicate his claims.

The Estate argues that application of the three-pronged balancing test of Mathews—
the private interest that will be affected by the official action; the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any, of

- 32 -
additional or substitute procedural safeguards; and the Government’s interest, including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail—requires that it be permitted to petition for
DNA testing. See 424 U.S. at 335. However, in weighing the Mathews factors in the post-
conviction context, our supreme court has explained that the private interest at stake is “a
prisoner’s opportunity to attack his conviction and incarceration on the grounds that he was
deprived of a constitutional right during the conviction process.” Whitehead, 402 S.W.3d
at 623. The Government’s interest is “the interest in preventing the litigation of stale and
groundless claims,” coupled with concerns about “the costs to the State of continually
allowing prisoners to file usually fruitless post-conviction petitions.” Id. (quoting Burford
v. State, 845 S.W.2d 204, 207 (Tenn. 1992)). The remainder of the analysis focuses on
“the risk of erroneous deprivation” of the prisoner’s interest, and safeguards that may be
necessary to protect that interest. Id.

Here, balancing the competing interests involved, we hold that the Defendant while
alive was provided with the opportunity to raise his claims for DNA testing at a meaningful
time and in a meaningful manner, his having multiple attempts to raise post-conviction
DNA claims before his execution. See Stokes, 146 S.W.3d at 61 (quoting Mathews, 424
U.S. at 333). Accordingly, the Estate has failed to establish any procedural due process
violation by the implementation of the DNA Act’s procedures relative to the Defendant.

3. Other Deeply-Rooted Principles. The Estate contends that the State’s opposition
to DNA testing in this case offends two other deeply-rooted due process principles, those
being, (1) “the Due Process Clause generally prohibits the government from skewing
procedures in its own favor or feathering its own nest”; and (2) “[d]ue [p]rocess also
prohibits the government from undertaking a course of action that offends some principle
of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental, or transgresses any recognized principle of fundamental fairness in
operation.” The Estate’s argument regarding these other deeply-rooted due process
principles focuses on the fact that the Defendant was executed and that the State, as the
“wrongdoer,” should not be allowed to benefit from his death by denying DNA testing to
which the Defendant was entitled. The Estate submits the Defendant would be entitled to
testing if he were alive based upon the Powers holding, testing which he sought while alive
but was denied, and that to deny this testing because of the Defendant’s execution “is
conscious-shocking and inconsistent with basic notions of fairness.”

State court rulings on issues of state law may rise to the level of due process
violations if they “offend[] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.” Seymour v. Walker, 224 F.3d
542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). Such
rulings must be “so egregious that [they] result in a denial of fundamental fairness.” Bugh

- 33 -
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Fundamental fairness under the Due
Process Clause is compromised when the action complained of “violates those fundamental
conceptions of justice which lie at the base of our civil and political institutions and which
define the community’s sense of fair play and decency.” Dowling v. United States, 493
U.S. 342, 352 (1990) (citations and internal quotation marks omitted). Thus, courts “have
defined the category of infractions that violate ‘fundamental fairness’ very narrowly.” Id.

First, we observe that the Estate’s argument in this regard is vague and conclusory.
Moreover, the Estate’s allegation that the Defendant would be entitled to testing if he were
alive based upon the Powers holding is unsubstantiated and not supported by the previous
decisions of this court. Again, the Defendant never argued his actual innocent at trial.
Finally, because the Defendant had, and took advantage of, multiple opportunities, both
state and federal, to challenge his convictions prior to his execution, we simply have no
basis upon which to conclude the various courts’ rulings violated fundamental conceptions
of justice. See, e.g., Matthew Lusane v. Charmaine Bracy, Warden, No. 5:18-cv-0632,
2020 WL 8458807, at *17 (N.D. Ohio Feb. 27, 2020) (reaching a similar conclusion).

B. Exoneration

The Estate argues that the Defendant had a property interest in exoneration and non-
discretionary exoneration compensation, which passed to the Estate upon the Defendant’s
death. Code section 40-27-109(a) establishes the governor’s authority to grant
exoneration:

After consideration of the facts, circumstances and any newly
discovered evidence in a particular case, the governor may grant exoneration
to any person whom the governor finds did not commit the crime for which
the person was convicted. No person may apply for nor may the governor
grant exoneration until the person has exhausted all possible state judicial
remedies.

Tennessee regulations establish the procedure for seeking exoneration. Robert C. Butler
v. Governor Bill Haslam, No. 3:19-cv-00416, 2019 WL 2327523, at *7-8 (M.D. Tenn. May
30, 2019).

Additionally, an exonerated person can seek compensation for the years of
imprisonment served as the result of a wrongful conviction. The Tennessee Board of
Claims is authorized to “hear claims for compensation by persons wrongfully imprisoned,”
but only if such persons have been “granted exoneration pursuant to [Code section] 40-27-
109.” Tenn. Code Ann. § 9-8-108(a)(7).

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 First, we note that this is a petition for DNA testing and not an application for
exoneration pursuant to Tennessee Code Annotated section 40-27-109. The Estate
seemingly claims that the Defendant had a right to exoneration; therefore, due process must
provide the Estate on behalf of the Defendant with the means via the DNA Act to prove
the actual innocence of the Defendant in pursuit of that exoneration.

In the sense in which the Estate is seeking the Defendant’s “exoneration,” it is no
different than a posthumous claim of actual innocence. We, in the section above, have
concluded that the Defendant received procedural due process relative to his petitions for
DNA testing under the DNA Act. As for any potential exoneration claim, the Estate has
not cited any process provided under the exoneration statute, Code section 40-27-109, or
the corresponding regulations, guaranteeing either exoneration or a means by which the
State must conduct an investigation in support of an application for exoneration. Just as
with clemency, an issue addressed prior to the Defendant’s death, there is no substantive
due process right of access to evidence to present claims in executive clemency
proceedings or otherwise, here, exoneration. See Alley, 431 F. Supp. 2d at 801-02; Alley,
2006 WL 1313364, at *2.

Importantly, “[n]o constitutional right to exoneration exists.” Butler, 2019 WL
2327523, at *8; see also United States v. Quinones, 313 F.3d 49, 62 (2d Cir. 2002).
Notably, the Supreme Court has expressly held that while the Due Process Clause protects
against government infringement upon rights that are “so rooted in the traditions and
conscience of our people as to be ranked as fundamental,” there is no fundamental right to
a continued opportunity for exoneration throughout the course of one’s natural life.
Herrera v. Collins, 506 U.S. 390, 407-08, 411 (Tenn. 1993). Moreover, the governor’s
decision whether to grant exoneration is purely discretionary. See Tenn. Code Ann. § 40-
27-109(a). “[U]nder the procedure established by state statute and regulation, the governor
owes no particular process to an individual who seeks exoneration.” Butler, 2019 WL
2327523, at *8.

Because a live defendant has no right to exoneration, it is axiomatic that the Estate
has no such right on the deceased Defendant’s behalf. Moreover, neither the Defendant
nor the Estate could have any claim for exoneration-based compensation until the
Defendant is first exonerated. The Estate’s argument’s regarding exoneration do not entitle
to relief.

C. Reputation

The Estate argues that the Defendant had a property interest in his reputation that
was entitled to due process and that this right passed to his estate upon his death. As a free-
standing claim, the Estate asserts “Tennessee Constitution’s Reputational Guarantee
Requires that the Estate be permitted to petition for DNA Testing” on the Defendant’s
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behalf. According to the Estate, “[t]he DNA Analysis Act, if interpreted to preclude the
Estate from bringing this petition, would impose an unconstitutional limitation on a
procedural right that is essential to protecting one’s reputation.” The Estate, relying on the
decision in Powers, notes that the Defendant was wrongly denied the opportunity to
petition for DNA testing and clear his name of a first-degree murder conviction and death
sentence prior to his execution.

According to the Estate, pursuant to Tennessee Constitution article I, section 17, the
Defendant had a reputation right that mandates the Estate be allowed to bring a petition for
DNA testing. Article I, section 17 of the Tennessee Constitution, known as the Open
Courts Clause, provides,

That all courts shall be open; and every man, for an injury done him
in his lands, goods, person or reputation, shall have remedy by due course of
law, and right and justice administered without sale, denial, or delay. Suits
may be brought against the State in such manner and in such courts as the
Legislature may by law direct.

In making its argument, the Estate observes that “[t]he framers of the Tennessee
Constitution were heavily influenced by the Pennsylvania Constitution, and like many
other provisions of the Tennessee Constitution, this provision has its origins in the
Pennsylvania Constitution, which contains the same language.” See generally State ex rel.
Haynes v. Daugherty, No. M2018-01394-COA-R10-CV, 2019 WL 4277604, at *6 (Tenn.
Ct. App. Sept. 10, 2019) (detailing Pennsylvania’s influence on the Tennessee
Constitution). The Pennsylvania Constitution expressly provides for the right to access the
courts in article I, section 11:

All courts shall be open; and every man for an injury done him in his
lands, goods, person or reputation shall have remedy by due course of law,
and right and justice administered without sale, denial or delay. Suits may
be brought against the Commonwealth in such manner, in such courts and in
such cases as the Legislature may by law direct.

Relying on Pennsylvania jurisprudence interpreting this similar provision, the Estate
submits that the Defendant had “a fundamental enumerated constitutional right” in his
reputation that was entitled to due process of law.

Initially, we note that the Pennsylvania Constitution has an additional provision that
is not present in the Tennessee Constitution, a provision that enumerates certain rights,
including one’s reputation. Specifically, article I, section 1 of the Pennsylvania
Constitution, commonly referred to as the Declaration of Rights, states, “All men are born
equally free and independent, and have certain inherent and indefeasible rights, among
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which are those of enjoying and defending life and liberty, of acquiring, possessing and
protecting property and reputation, and of pursuing their own happiness.” The
Pennsylvania Supreme Court has relied on both provisions of the Pennsylvania
Constitution, article I, sections 1 and 11, as establishing reputation as a fundamental right
that could not be abridged without compliance with state constitutional standards of due
process and equal protection. See In re J.B., 107 A.3d 1, 16 (Pa. 2014) (recognizing that
“the right to reputation, although absent from the federal constitution, is a fundamental
right under the Pennsylvania Constitution” and citing both article I, sections 1 and 11));
Wolfe v. Beal, 384 A.2d 1187, 1189 (Pa. 1978) (citing only article I, section 1); Moyer v.
Phillips, 341 A.2d 441, 443 (Pa. 1975) (citing both provisions, though specifically noting
that “[t]he courts recognized that the Pennsylvania Declaration of Rights placed reputation
‘in the same class with life, liberty and property’”). No such corresponding provision like
Pennsylvania’s Declaration of Rights exists in the Tennessee Constitution.

In addition, “[t]he guarantee of due process, in Pennsylvania jurisprudence,
emanates from a number of provisions of the Declaration of Rights, particularly [a]rticle I,
[s]ections 1, 9, and 11 of the Pennsylvania Constitution.” Khan v. State Bd. of Auctioneer
Examiners, 842 A.2d 936 (Pa. 2004) (citing Lyness v. State Bd. of Medicine, 605 A.2d
1204, 1207 (Pa. 1992)). To the contrary, Tennessee has a specific due process provision
in article I, section 8 and does not enumerate a right to reputation in that section. As noted
above, Tennessee’s due process clause as been held to be “synonymous” with the United
States Constitution, and one’s reputation is not a right, privilege or immunity protected by
the United States Constitution. See Paul v. Davis, 424 U.S. 693, 711-13 (1976)
(concluding that “stigma” to reputation, by itself, is not a liberty interest sufficient to
invoke the Due Process Clause of the United States Constitution). The Estate has cited to
ample caselaw from Pennsylvania establishing reputation as a fundamental right, but not
to a single case from Tennessee holding the same; we also cannot find one.

Regardless, based on the language of article I, sections 1 and 11 of the Pennsylvania
Constitution, the Pennsylvania Supreme Court has also stated, “The redress provided [for
injury to one’s reputation] under our body of substantive law is an action in tort for
defamation.” Sprague v. Walter, 543 A.2d 1078, 1084 (Pa. 1988). Thus, the Pennsylvania
courts would not even take the reputational right to the extremes requested by the Estate,
that being, in a criminal case, creating the means via the DNA Act to investigate based
solely upon a potential injury to one’s reputation.

Finally, any theoretical right to redress harm to the Defendant’s reputation was
extinguished with his death. Even in Pennsylvania, the right does not survive death.
Moyer, 341 A.2d at 443 (citing Anderson v. G.A.C. Consumer Disc. Co., 53 Pa. D. & C.2d
464 (C.P. Lack. 1971); Smith v. Brown, 17 Pa. D. & C. 548 (C.P. Monroe 1933)). The

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Estate has no independent reputation. Accordingly, neither due process nor any stand-
alone reputational right entitle the Estate to the relief it seeks.

CONCLUSION

In accordance with the foregoing, we affirm the post-conviction court’s dismissal
of the Estate’s petition for DNA testing.

D. KELLY THOMAS, JR., JUDGE

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