|||UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
|||January 23, 2002
|||JAMES HARVEY, PLAINTIFF-APPELLEE,
ROBERT F. HORAN, JR., COMMONWEALTH'S ATTORNEY, COUNTY OF FAIRFAX, DEFENDANT-APPELLANT. JENNIFER THOMPSON; KAREN R. POMER; JERI ELSTER, AMICI CURIAE.
|||Appeal from the United States District Court for the Eastern District
of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge.
|||Counsel Argued: Jack L. Gould, Fairfax, Virginia, for Appellant. Peter
J. Neufeld, The Innocence Project, New York, New York, for Appellee. ON
Brief: Barry C. Scheck, The Innocence Project, New York, New York; Lisa
B. Kemler, Zwerling & Kemler, P.C., Alexandria, Virginia, for Appellee.
John D. Cline, Freedman, Boyd, Daniels, Hollander, Goldberg & Cline,
P.A., Albuquerque, New Mexico, for Amici Curiae.
|||Before Wilkinson, Chief Judge, and Niemeyer and King, Circuit Judges.
|||The opinion of the court was delivered by: Wilkinson, Chief Judge
|||Argued: September 26, 2001
|||Reversed and remanded by published opinion. Chief Judge Wilkinson wrote
the opinion, in which Judge Niemeyer joined. Judge King wrote an opinion
concurring in part and concurring in the judgment.
|||James Harvey, a Virginia prisoner, seeks a constitutional right of access
to DNA evidence under 42 U.S.C. § 1983. The district court found that Harvey
had a due process right of access to the DNA evidence and a right to conduct
testing upon the evidence using technology that was unavailable at the time
of his trial and at the time his conviction became final. The district court
also concluded that Harvey's claim was not in effect a petition for a writ
of habeas corpus. We disagree. Because substantively Harvey fails to state
a claim under § 1983, and because procedurally his claim amounts to a successive
petition for a writ of habeas corpus brought without leave of court, we
reverse the judgment of the district court and remand the case with directions
to dismiss it.
|||On April 30, 1990, James Harvey was convicted of rape and forcible sodomy
by a jury in Fairfax County Circuit Court. He was sentenced to consecutive
terms of twenty-five years for the rape and fifteen years for the forcible
sodomy. Harvey did not appeal his conviction but did file a state petition
for a writ of habeas corpus which was rejected by the Virginia Supreme Court
|||Conventional serology testing on the items recovered from the rape kit
revealed the presence of spermatozoa on the victim's mouth smear, vaginal
smear, and thigh smear, as well as in two swab samples and on the victim's
pantyhose. Neither Harvey nor his co-defendant, who was also convicted,
could be excluded as a result of the Restriction Fragment Length Polymorphism
("RFLP") DNA testing available at the time of the trial. And there
was other substantial evidence of Harvey's guilt.
For example, Harvey's co-defendant testified that Harvey instigated the
attack and that Harvey admitted he did not ejaculate while raping the victim.
The victim heard one perpetrator call the other "Harv." Another
prosecution witness, Curtis Ivy, told the police that Harvey confessed his
involvement in the attack.
|||Ivy testified that Harvey owned the maroon shirt identified as belonging
to one of the assailants and that Harvey wore the shirt on the date of the
attack. Harvey also threatened Ivy shortly before his trial, further suggesting
|||On February 25, 1994, Harvey filed an action in federal district court
against the Governor of Virginia pursuant to 42 U.S.C. § 1983. Harvey alleged
that the state's failure to retest the biological evidence in his case violated
his rights under the Due Process Clause. The district court ruled that Harvey's
claim for additional DNA testing had to be refiled as a petition for a writ
of habeas corpus under 28 U.S.C. § 2254. On July 25, 1995, the district
court dismissed Harvey's petition. The court found that Harvey had failed
to exhaust state remedies and had failed to raise his claim for DNA testing
in his state petition for habeas corpus. Therefore, the district court concluded
that any attempt by Harvey to raise his claim would be barred by Va. Code
§ 8.01-654(B)(2) and that Harvey's claim was procedurally defaulted.
|||Because Harvey had not shown cause for his default in the state courts
or prejudice resulting therefrom, the district court concluded that Harvey's
claim had to be dismissed. Harvey did not appeal the district court's ruling.
|||In 1996, the Innocence Project contacted the Virginia Division of Forensic
Science on Harvey's behalf in an attempt to obtain the biological evidence
at issue for Short Term Repeat ("STR") DNA testing. STR DNA testing
was unavailable at Harvey's trial and at the time his conviction became
final. The Division of Forensic Science recommended that the evidence be
requested from the Fairfax County Commonwealth's Attorney's office. In February
1998 and July 1999, the Innocence Project requested the biological evidence
from the Commonwealth's Attorney.
|||In October 1999, an Assistant Commonwealth's Attorney denied Harvey's
request for access to the evidence. The attorney stated that even if Harvey
was excluded as a contributor of the genetic material, it would not prove
his innocence because the victim had stated that only one perpetrator had
ejaculated. The attorney concluded that post-conviction DNA testing was
not warranted because there was no reasonable likelihood that it would establish
|||Harvey then filed this action in the district court pursuant to 42 U.S.C.
§ 1983. Harvey alleged, inter alia, that Commonwealth's Attorney Robert
Horan had deprived him of a due process right of access to the DNA evidence.
Harvey stated that at trial, the prosecution identified him as the first
assailant. The victim testified that the first assailant was the only one
who orally sodomized her. And the victim was unsure whether the first assailant
had ejaculated. Therefore, Harvey argued that if the STR DNA test showed
that he was not the source of sperm on the victim's mouth smear, or if it
showed two genetic profiles other than his on the victim's vaginal swabs
or pantyhose, the test would provide a basis for Harvey to prove his innocence.
|||The district court found Harvey's arguments persuasive, holding that he
had a due process right of access to the DNA evidence under Brady v. Maryland,
373 U.S. 83 (1963), and a right to conduct DNA testing on the biological
evidence using the new STR technology. The court also concluded that Harvey's
claim was not in effect a petition for a writ of habeas corpus because Harvey
was not seeking immediate release from prison or challenging his conviction.
See Harvey v. Horan, 119 F. Supp. 2d 581 (E.D. Va. 2000); Harvey v. Horan,
No. Civ.A. 00-1123-A, 2001 WL 419142 (E.D. Va. Apr. 16, 2001). Commonwealth's
Attorney Horan appeals.
|||Commonwealth's Attorney Horan contends both that § 1983 is not an appropriate
vehicle for Harvey's action and that procedural flaws require dismissal
of Harvey's claim because it is in reality a successive petition for a writ
of habeas corpus brought without leave of court. Harvey responds that his
fundamental right to prove his innocence by retesting the DNA evidence in
his case is protected by the Due Process Clause and that § 1983 is an appropriate
avenue to vindicate his claim.
|||While we agree with Harvey that the question of guilt or innocence lies
at the heart of the criminal justice system, we also believe that the proper
process for raising violations of constitutional rights in criminal proceedings
cannot be abandoned. Because the substance of a claim cannot be severed
from the proper manner of presenting it, we find Harvey's § 1983 action
to be deficient.
|||Substantively, Supreme Court precedent makes clear that Harvey has failed
to state a claim under § 1983. In Heck v. Humphrey, 512 U.S. 477 (1994),
the Supreme Court held that a convicted criminal defendant cannot bring
a § 1983 action that would "necessarily imply the invalidity of his
conviction or sentence" unless he proves that his "conviction
or sentence has already been invalidated." Heck, 512 U.S. at 486-87.
|||In Heck, the Supreme Court concluded that bringing a § 1983 action for
damages arising from a still valid state conviction would be jumping the
gun. In reaching its conclusion, the Court analogized a § 1983 claim that
challenges the legality of a state conviction to the common law cause of
action for malicious prosecution. The Court stated that "[o]ne element
that must be alleged and proved in a malicious prosecution action is termination
of the prior criminal proceeding in favor of the accused." Heck, 512
U.S. at 484. The Court emphasized that civil tort actions are simply "not
appropriate vehicles for challenging the validity of outstanding criminal
judgments." Id. at 486. Allowing them to be used for that purpose would
undercut the long-standing concern not to undermine the finality of criminal
convictions through civil suits. Id. at 484-86. The Court noted in conclusion:
|||We do not engraft an exhaustion requirement upon § 1983, but rather deny
the existence of a cause of action. Even a prisoner who has fully exhausted
available state remedies has no cause of action under § 1983 unless and
until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus. Id. at 489.
|||While Heck dealt with a § 1983 claim for damages, the Court did not limit
its holding to such claims. And we see no reason why its rationale would
not apply in a situation where a criminal defendant seeks injunctive relief
that necessarily implies the invalidity of his conviction. See Edwards v.
Balisok, 520 U.S. 641, 648-49 (1997) (leaving issue open). Harvey's § 1983
claim does just that. He seeks access to biological evidence to challenge
the fact or duration of his confinement. Harvey claims that he is innocent
and that further DNA testing will lead to his exoneration. Because he seeks
to use § 1983 to invalidate a final state conviction whose lawfulness has
in no way been impugned, his suit fails under Heck. It must be dismissed
for failure to state a claim.*fn1
|||Harvey relies on the fact that DNA testing may also conclusively prove
his guilt in arguing that his claim does not necessarily imply the invalidity
of his conviction. However, this attempt to avoid Heck fails. Harvey is
seeking access to DNA evidence for one reason and one reason only - as the
first step in undermining his conviction. He believes that the DNA test
results will be favorable and will allow him to bring a subsequent motion
to invalidate his conviction. As such, an action under 42 U.S.C. § 1983
|||The implications of circumventing Heck are no small matter. Harvey would
have this court fashion a substantive right to post-conviction DNA testing
out of whole cloth or the vague contours of the Due Process Clause. We are
asked to declare a general constitutional right for every inmate to continually
challenge a valid conviction based on whatever technological advances may
have occurred since his conviction became final.
|||The Supreme Court has made clear that the finality of convictions cannot
be brought into question by every change in the law. For example, under
Teague v. Lane, a new rule cannot be applied retroactively to cases on collateral
review unless the rule "falls within one of two narrow exceptions to
the general rule of non-retroactivity." Tyler v. Cain, 121 S. Ct. 2478,
2483 (2001) (discussing Teague v. Lane, 489 U.S. 288, 310-13 (1989)). Similarly,
we believe that finality cannot be sacrificed to every change in technology.
The possibility of post-conviction developments, whether in law or science,
is simply too great to justify judicially sanctioned constitutional attacks
upon final criminal judgments.
|||In so holding, we acknowledge that finality is not a value that trumps
all others. In some circumstances newly discovered evidence may warrant
a new trial. See, e.g., United States v. Christy, 3 F.3d 765, 768 (4th Cir.
1993). But there is no newly discovered evidence in this case. Instead,
Harvey seeks to subject existing biological evidence to new DNA testing.
This evidence was already subjected to DNA testing using the best technology
available at the time Harvey's conviction became final. Establishing a constitutional
due process right under § 1983 to retest evidence with each forward step
in forensic science would leave perfectly valid judgments in a perpetually
unsettled state. This we cannot do. In Teague, the Court stressed that finality
"is essential to the operation of our criminal justice system,"
and that "[w]ithout finality, the criminal law is deprived of much
of its deterrent effect." 489 U.S. at 309 (plurality opinion). See
also McCleskey v. Zant, 499 U.S. 467, 491-92 (1991). While finality is not
the sole value in the criminal justice system, neither is it subject to
the kind of blunt abrogation that would occur with the recognition of a
due process entitlement to post-conviction access to DNA evidence.
|||Furthermore, Heck teaches that § 1983 does not exist to provide an open-ended
assault on the finality of criminal judgments. See Heck, 512 U.S. at 486-87.
Instead, § 1983 exists for the more limited purpose of redressing violations
of the Constitution and federal statutes. Harvey has made no argument that
his conviction violates the Constitution or any federal law. In fact, at
oral argument Harvey conceded that he received due process under the law
and under the science in existence when he was convicted in 1990. To confer
upon Harvey a wide-ranging constitutional right in the absence of any argument
that his underlying conviction violated the Constitution or a federal statute
is simply beyond judicial competence.
|||In holding that Harvey has failed to state a claim under § 1983, we do
not declare that criminal defendants should not be allowed to avail themselves
of advances in technology. Rather, our decision reflects the core democratic
ideal that if this entitlement is to be conferred, it should be accomplished
by legislative action rather than by a federal court as a matter of constitutional
right. Permitting Harvey's § 1983 claim to proceed would improperly short-circuit
legislative activity by allowing judges, rather than legislatures, to determine
the contours of the right.
|||This is not an area in which legislatures have been inactive. For example,
the Innocence Protection Act of 2001 has been introduced in both houses
of Congress. See S. 486, 107th Cong. (2001), 147 Cong. Rec. S1999 (Mar.
7, 2001); H.R. 912, 107th Cong. (2001). The Act would increase the availability
of post-conviction DNA testing for a person convicted of a federal crime.
The Act would also condition the grant of federal funds for state DNA-related
programs on an assurance that the state will make post-conviction DNA testing
available in specified types of cases. And the Act would require states
to increase the availability of post-conviction DNA testing for death row
inmates. See S. 486 §§ 101-104, 147 Cong. Rec. at S2001-03; H.R. 912 §§
|||Virginia has also passed legislation that increases the availability of
post-conviction DNA testing. Currently, Va. Code § 19.2-327.1 (Michie Supp.
2001) allows a convicted felon to apply to the circuit court for DNA testing
if, inter alia, the biological evidence was not previously subjected to
the current DNA testing method and the testing is "materially relevant,
non-cumulative, and necessary and may prove the convicted person's actual
innocence." Id. Additional statutory sections, scheduled to become
effective on November 15, 2002, would allow the Supreme Court of Virginia
to issue writs of actual innocence based on the results of post conviction
DNA testing. See Va. Code §§ 19.2-327.2 to -327.6 (Michie Supp. 2001).
|||Allowing Harvey's action to proceed under § 1983 would judicially preempt
legislative initiatives in this area. At oral argument, Harvey urged us
to use the balancing test of Mathews v. Eldridge to fashion a broad constitutional
due process right of access to DNA testing. See 424 U.S. 319, 334-35 (1976).
When identifying the specific dictates of due process, Mathews states that
a court should balance three factors: (1) "the private interest that
will be affected by the official action," (2) "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 (3) "the Government's interest, including the . . . administrative
burdens that the additional or substitute procedural requirement would entail."
Id. Harvey urges us to balance, under Mathews, an inmate's need for post-conviction
DNA testing against the administrative burden to the state of providing
it. However, this very balance is the one that legislative bodies are currently
trying to strike. Establishing a federally supervised right of access via
Mathews would cut off this on-going process and place the federal courts
in a distinctly legislative posture.
|||We thus hold that Harvey fails to state a claim under § 1983. We now explain
why his claim is more properly pressed as a habeas corpus petition - and
as such, why his claim fails. Recognition of the courts' obligation to the
habeas corpus process reinforces the substantive point that the district
court should have dismissed Harvey's § 1983 claim.
|||In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that
when a state prisoner challenges the fact or duration of his confinement
and the relief he seeks is immediate or speedier release from imprisonment,
"his sole federal remedy is a writ of habeas corpus." 411 U.S.
at 500. The Court emphasized that despite the literal applicability of §
1983's broad, general terms, the federal habeas corpus statute is "explicitly
and historically designed to provide the means for a state prisoner to attack
the validity of his confinement." Id. at 489-90. The Supreme Court
was especially concerned that the habeas corpus exhaustion requirement not
be circumvented. Id.See also 28 U.S.C. § 2254(b) (requiring exhaustion of
state remedies before a federal habeas action challenging a state conviction
can proceed). The Court stressed that the exhaustion requirement "is
rooted in considerations of federal-state comity," and that Congress
has decided that exhaustion of state remedies in cases where a state prisoner
challenges the fact or duration of his confinement "will best serve
the policies of federalism." Preiser, 411 U.S. at 491-92 & n.10.
|||In contrast to habeas corpus claims, § 1983 claims can come immediately
to federal court, without any need for the exhaustion of state remedies.
See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 500-01, 516 (1982). The
Preiser Court stressed that"[i]t would wholly frustrate explicit congressional
intent" to allow state prisoners to evade the exhaustion requirement
"by the simple expedient" of putting a § 1983 label on their pleadings.
411 U.S. at 489-90. Harvey was convicted by the Commonwealth of Virginia.
If remedial steps are to be taken, the courts of the Commonwealth must have
the first shot at them. Allowing Harvey to bypass the exhaustion requirement
of § 2254(b) would, by contrast, give federal courts the right to initial
review of innumerable state judgments.
|||Harvey argues, however, that he is not bound by Preiser because he is
not presently challenging the fact or duration of his confinement. He claims
that he is seeking access to DNA evidence that will hopefully allow him
to challenge his conviction at a later date. This claim is unavailing. We
have squarely held that a state prisoner's label for his claim cannot be
controlling, even when the prisoner does not request immediate release.
See Hamlin v. Warren, 664 F.2d 29, 30, 32 (4th Cir. 1981). In Hamlin, we
held that a prisoner's § 1983 claim had to proceed under the habeas framework
because he was seeking to establish "every predicate" for a subsequent
request for release. Id.
|||We concluded that when a complaint calls into question the validity of
a state court conviction and "has all the earmarks of a deliberate
attempt to subvert the [exhaustion] requirement of § 2254(b)," the
petitioner must observe the habeas requirements, "notwithstanding the
absence of any request for release." Id. at 32. To hold otherwise would
sanction an end run around the exhaustion requirement by "anyone who
could state a viable civil rights claim." Id.See also Pressly v. Gregory,
831 F.2d 514, 518 (4th Cir. 1987). Therefore, we must examine whether a
state prisoner's claim falls within the federal habeas corpus statute. If
it does, the claim cannot proceed under § 1983.
|||Under Preiser and Hamlin, Harvey's sole federal remedy is a writ of habeas
corpus. Like the prisoner in Hamlin, Harvey is challenging the validity
of his conviction even though he is not seeking immediate release. Harvey
seeks access to DNA evidence to attempt to prove that he is innocent. He
is trying to use a § 1983 action as a discovery device to overturn his state
conviction. The Supreme Court has made clear that habeas corpus relief is
available "to attack future confinement and obtain future releases."
Preiser, 411 U.S. at 487. This is precisely what Harvey is attempting to
do - use his claim for access to evidence to set the stage for a future
attack on his confinement. Therefore, his claim is effectively a petition
for a writ of habeas corpus.
|||The district court found that under Brady v. Maryland, 373 U.S. 83 (1963),
Harvey had a due process right of access to the DNA evidence and a right
to conduct new testing on the evidence. The district court concluded that
Harvey had a valid Brady claim because the DNA testing "could constitute
material exculpatory evidence." Harvey v. Horan, No. Civ.A. 00-1123-A,
2001 WL 419142, at *5 (E.D. Va. Apr. 16, 2001). We are not persuaded. Harvey
does not state a valid Brady claim because he is not challenging a prosecutor's
failure to turn over material, exculpatory evidence that, if suppressed,
would deprive the defendant of a fair trial. See United States v. Bagley,
473 U.S. 667, 675-76 (1985). Harvey received a fair trial and was given
the opportunity to test the DNA evidence during his trial using the best
technology available at the time. However, even were we to accept Harvey's
analogy to Brady, it would only reinforce the conclusion that Harvey is
bringing a habeas action rather than a § 1983 claim because Brady claims
are typically raised in habeas petitions. See, e.g., Williams v. Taylor,
529 U.S. 420, 437-40 (2000) (addressing state prisoner's Brady claim brought
in a federal habeas proceeding); Strickler v. Greene, 527 U.S. 263 (1999)
(same); Gray v. Netherland, 518 U.S. 152, 161-62 (1996) (same); Wood v.
Bartholomew, 516 U.S. 1 (1995) (same).
|||We thus proceed to consider Harvey's claim as one brought in habeas corpus.
As a habeas petition, Harvey's action must be dismissed as a successive
petition brought without leave of court. In 1994, Harvey brought his claim
for access to DNA evidence as a federal petition for a writ of habeas corpus
in the district court. The district court dismissed Harvey's claim as procedurally
defaulted. The court found that, even though Harvey had knowledge of the
factual basis for his claim at the time he filed a state habeas petition,
he failed to raise his claim in state court. Therefore, pursuant to Va.
Code § 8.01-654(B)(2), which states that "[n]o writ [of habeas corpus]
shall be granted on the basis of any allegation the facts of which the petitioner
had knowledge at the time of filing any previous petition," Virginia
would bar Harvey's claim. Because Harvey failed to show cause for his default
or prejudice resulting therefrom, the district court dismissed Harvey's
|||The Supreme Court in another case subsequently reinforced the district
court's approach by stating that a state procedural bar "provides an
independent and adequate state-law ground for [a] conviction and sentence,
and thus prevents federal habeas corpus review of the defaulted claim, unless
the petitioner can demonstrate cause and prejudice for the default."
Gray, 518 U.S. at 161-62 (addressing application of Va. Code § 8.01-654(B)(2)).
Harvey had the opportunity to show cause for his default and demonstrate
prejudice. But he never appealed the district court's decision.
|||Harvey has now brought the same claim for access to DNA evidence in this
action. Pursuant to 28 U.S.C. § 2244(b)(3), successive habeas petitions
may only be filed with leave of court.*fn2
In order to qualify as a successive petition, the dismissal of the first
habeas petition must be on the merits. See Slack v. McDaniel, 529 U.S. 473,
|||Our sister circuits have held that dismissal of a habeas petition for
procedural default is a dismissal on the merits for purposes of determining
whether a habeas petition is successive. See, e.g., In re Cook, 215 F.3d
606, 608 (6th Cir. 2000); Carter v. United States, 150 F.3d 202, 205-06
(2d Cir. 1998); Hawkins v. Evans, 64 F.3d 543, 547 (10th Cir. 1995); Bates
v. Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994); Howard v. Lewis, 905 F.2d
1318, 1322-23 (9th Cir. 1990). We agree. By every reckoning, a dismissal
for procedural default is a dismissal on the merits. It is critically different
from a dismissal for failure to exhaust which does not prevent federal habeas
review at a later date.
|||In light of this, the district court's dismissal of Harvey's original
habeas petition for procedural default was a dismissal on the merits. Harvey's
current petition is accordingly a successive petition for a writ of habeas
corpus. And because Harvey did not obtain leave to file this petition, his
claim must be dismissed pursuant to 28 U.S.C. § 2244(b)(3). In addition,
even if Harvey had sought leave of court, it could not have been granted
in view of the unambiguous language of 28 U.S.C. § 2244(b)(1), which states:
"A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed."
This is reinforced by the language of Rule 9(b) of the Rules Governing §
2254 Cases, which states that "[a] second or successive petition may
be dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits."
See also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988); Turner v.
Artuz, 262 F.3d 118, 122-24 (2d Cir. 2001).
|||Appellant Horan points to strong evidence of Harvey's guilt in arguing
that there is no prejudice from the denial of post-conviction DNA testing
in this case. But in Harvey's case, the issue of prejudice has already been
adjudicated by the district court's dismissal of Harvey's first habeas petition
as procedurally defaulted. Harvey has never appealed this. This does not
mean that there can be no relief for Harvey. What it does mean, however,
is that any such relief must be conferred by either state or federal legislation
or by the state courts acting under their own constitutions. Federal and
state legislatures and state courts are free in ways that we are not to
set the ground rules by which further collateral attacks on state convictions
such as Harvey's may be entertained. For example, the proposed Innocence
Protection Act of 2001 contains a provision explicitly stating that an application
by a state death-row inmate for post-conviction DNA testing under the Act
"shall not be considered an application for a writ of habeas corpus
under [28 U.S.C. § 2254] for purposes of determining whether it or any other
application is a second or successive application under section 2254."
S. 486 § 104(d), 147 Cong. Rec. at S2003; H.R. 912 § 104(d). But under the
current rules, a successive petition in habeas corpus will not lie in Harvey's
|||However strong the evidence of Harvey's guilt may be, Virginia can reopen
his case if it so chooses. But what is open to Virginia is presently foreclosed
in federal court. Fashioning a new federal constitutional right that would
govern all prisoners in all states is not a permissible way of addressing
the question of post-conviction DNA testing. It is not merely that solutions
which rely on the democratic process and on the experimental possibilities
inherent in our federal system are practically superior. Those solutions
alone are constitutionally sound.*fn3
|||For the foregoing reasons, we reverse the judgment of the district court
and remand the case with directions to dismiss it.
|||REVERSED AND REMANDED
|||KING, Circuit Judge, concurring in part and concurring in the judgment:
|||The issue of how or whether our criminal justice system should utilize
technological and scientific improvements in the post-conviction context
implicates the balancing of finality - a necessity in our judicial process
- with our hallmark commitment to fair and impartial justice. I find myself
in agreement with Chief Judge Wilkinson and the panel majority that, except
for the broad parameters mandated by the Due Process Clause, such issues
are more properly resolved by the legislative process. I also agree that
the district court erred in concluding that Harvey's denial of post-conviction
access to the biological evidence relating to his rape conviction contravened
the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and that Harvey's
due process rights were violated by the conduct of the Commonwealth's Attorney.
|||I part company, however, with the majority's conclusion that Harvey's
complaint must be construed as a petition for habeas corpus. To the contrary,
under the Supreme Court's mandate in Heck v. Humphrey, 512 U.S. 477 (1994),
his complaint should be analyzed as it is framed, that is, as a civil action
initiated under 42 U.S.C. § 1983. Thus, the failing of this proceeding is
not that it represents a successive petition for habeas corpus on a claim
previously adjudicated, but that Harvey is unable to demonstrate that a
state actor somehow deprived him of a federally protected right. Therefore,
although I agree with our good Chief Judge that the award of relief to Harvey
should be reversed, I write separately to explain my rationale.
|||The proper approach to analyzing Harvey's claim is to first determine
whether it is cognizable under § 1983 or whether, in the alternative, it
may only be brought in habeas corpus. If that determination is made in favor
of § 1983, we must then decide whether Harvey has sufficiently alleged and
demonstrated the requirements of a § 1983 action. Having undertaken this
analysis, I view Harvey's complaint as cognizable under § 1983, but I conclude
that he has failed to demonstrate that any of his federally protected rights
|||The majority, relying on Heck v. Humphrey, has decided that Harvey fails
to state a claim under § 1983, and that his action is only cognizable, if
at all, as a petition for habeas corpus. It observes that proceedings which,
if successful, would necessarily imply the invalidity of a defendant's conviction
or sentence must be brought, pursuant to Heck, in habeas corpus. Ante at
5. The majority therefore concludes that, because Harvey seeks access to
the biological evidence to challenge his underlying rape conviction, his
claim is not cognizable under § 1983. Ante at 6.
|||Although the relevant inquiry is whether a § 1983 proceeding explicitly
or implicitly attacks the fact or length of a prisoner's confinement, the
Heck decision does not compel the majority's conclusion. In Heck, the Court
affirmed the principle that "habeas corpus is the exclusive remedy
for a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release, even though such a claim may come
within the literal terms of § 1983." Heck, 512 U.S. at 481. In furtherance
of this principle, the Court held that, in any § 1983 action in which a
state prisoner seeks damages, "the district court must consider whether
a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence." Id. at 487 (emphasis added).*fn4
If such a necessary implication exists, then the complaint, according to
Justice Scalia's opinion for the Court, "must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated." Id. By the same token, Justice Scalia observed that "if
the district court determines that the plaintiff's action, even if successful,
will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed, in the absence
of some other bar to the suit." Id.
|||In this proceeding, Harvey seeks access to the biological evidence held
by the Commonwealth's Attorney, and his suit, if successful, would merely
result in the Commonwealth's Attorney making the evidence available to him.*fn5
That act alone - providing Harvey with access to the biological evidence
relating to his rape conviction - does not, in the words of Justice Scalia,
"necessarily imply" the invalidity of Harvey's conviction or sentence.
Id. at 487.*fn6 Although Harvey might
use the evidence, at some future date, to initiate a separate action challenging
his conviction, future exculpation is not a necessary implication of Harvey's
claim in this case. Indeed, Harvey's capable counsel acknowledged at oral
argument that state-of-the-art DNA testing often inculpates rather than
exculpates, and at other times it simply is inconclusive.*fn7
Thus, it is also possible - and the Commonwealth would say likely - that
such testing will provide more conclusive evidence of Harvey's guilt. Put
simply, we do not know whether providing Harvey with access to the evidence
would assist or hinder his attempts at exculpation; therefore, his civil
action requesting access to the biological evidence does not "necessarily
imply" the invalidity of his conviction.
|||Our good Chief Judge, writing for the majority, maintains that, because
Harvey is seeking access to the biological evidence in order to challenge
his confinement, his complaint must in fact be considered as an effort to
seek habeas corpus relief. Ante at 6. A prisoner's underlying rationale,
however, for bringing his § 1983 suit is not relevant under Heck. The applicable
standard is an objective one, and the only relevant question is whether
the prisoner's legal proceeding, if successful, would "necessarily
imply the invalidity of his conviction or sentence." Heck, 512 U.S.
at 487 (emphasis added). Therefore, even assuming Harvey's lawsuit is part
of a long-term strategy to vacate his conviction, that fact has no bearing
on whether his proceeding is cognizable under § 1983, or whether it may
only be brought in habeas corpus. The issue, rather, is simply whether the
claim made by Harvey would "necessarily imply" that his conviction
should be reversed. In this situation, that is plainly not the case, and
Harvey may therefore properly proceed under § 1983.
|||Having concluded that Harvey's claim is cognizable under § 1983, I must
address whether it passes muster as such an action. Under § 1983, a plaintiff
must demonstrate the deprivation of "rights, privileges, or immunities
secured by the Constitution and laws" by a state actor. It is indisputable
that the Commonwealth's Attorney is a state actor within the meaning of
§ 1983; therefore, in order for Harvey to prevail, he must demonstrate that
his denial of access to the biological evidence relating to his rape conviction
deprived him of a federally protected right. Harvey seeks to satisfy this
requirement by contending that the denial of access constitutes a violation
of his rights under the Due Process Clause of the Fourteenth Amendment.*fn8
|||Before addressing the merits of Harvey's allegation that his due process
rights have been violated, we must determine whether his § 1983 action is
time-barred. The statute of limitations for § 1983 proceedings is borrowed
from a state's general personal injury statute of limitations. Jersey Heights
Neighborhood Ass'n v. Glendening, 174 F.3d 180, 187 (4th Cir. 1999). In
Virginia, the applicable limitations period is two years from the time the
cause of action accrues. Va. Code Ann. § 8.01-243(A) (Michie 2000). The
determination of when a cause of action accrues, however, is a federal question
and, under federal law, a cause of action accrues when "the plaintiff
possesses sufficient facts about the harm done to him that reasonable inquiry
will reveal his cause of action." Jersey Heights, 174 F.3d at 187 (quoting
Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995)
|||We must therefore examine the allegations and the record to assess when
Harvey suffered the alleged deprivation of his due process rights, and when
Harvey possessed sufficient facts about such deprivation that reasonable
inquiry would have revealed his cause of action. Harvey asserts multiple
theories for how his denial of access to the biological evidence relating
to his rape conviction violated due process. Under several of those theories,
he contends that due process requires that he have access to the biological
evidence, and, as such, the relevant constitutional harm occurred when Harvey
was first denied access by the Commonwealth's Attorney.
|||If the mere denial of access is the relevant constitutional harm, then
Harvey's § 1983 claim is likely time-barred. The record reveals that Harvey
first began seeking the biological evidence from the Commonwealth's Attorney
between November 1996 and February 1998, and he asserts in his complaint
that he was "repeatedly unsuccessful" in his efforts to obtain
access prior to making a formal request in February 1998. Complaint at ¶
34. Harvey also alleged that he had never received a response to his February
1998 request. Id. Therefore, according to Harvey, by the middle of 1998,
he had been pursuing access to the biological evidence for well over a year,
and he had received no access to the evidence and had met with uncooperative
silence from the Commonwealth's Attorney. If, standing alone, the denial
of access to evidence violates due process, then it is likely that, by the
middle of 1998, (1) a "constructive" denial had occurred, and
(2) Harvey possessed sufficient facts to know that his rights were being
violated. Yet Harvey failed to initiate this § 1983 proceeding until July
7, 2000, well over three years after he began seeking the evidence and more
than two years after he failed to receive a response to his formal request
to the Commonwealth's Attorney for access. Thus, if the mere denial of access
by the Commonwealth's Attorney is sufficient to violate Harvey's due process
rights, then Harvey's § 1983 suit is probably time-barred.
|||For one of Harvey's theories of due process violations, however, the relevant
harm is a denial of access to the biological evidence in bad faith, i.e.,
with the purpose and effect of frustrating Harvey's exercise of his constitutional
rights. Under that theory, before Harvey's cause of action under § 1983
would accrue, he would need to possess sufficient facts to trigger a reasonable
inquiry into whether the denial had been in bad faith. It is unclear from
this record whether, assuming that the Commonwealth's Attorney denied Harvey's
request in bad faith, Harvey possessed sufficient information by July 7,
1998, for his cause of action to accrue. Given that ambiguity, and given
the sparseness of the record generally with respect to Harvey's knowledge
of the status of his requests for access, his § 1983 claim cannot be disposed
of solely on limitations grounds. I therefore turn to the merits of Harvey's
§ 1983 proceeding.
|||In contending that he had been deprived of his due process rights, Harvey
offered multiple theories on how the Commonwealth's Attorney's denial of
access violated due process. Specifically, Harvey asserted that the denial
of access violated the rule of Brady v. Maryland, 373 U.S. 83 (1963), and
interfered with his right of meaningful access to the court system. In addition,
he contended in a more general fashion that the denial of access contravened
the requirements of Arizona v. Youngblood, 488 U.S. 51 (1988), and that
it abridged substantive due process. Although the district court granted
summary judgment in Harvey's favor solely on the basis of his Brady claim,
this Court has "consistently recognized that, even [if] we disagree
with the reasoning of the district court, we may affirm the result on different
grounds if fully supported by the record." Brewster of Lynchburg, Inc.
v. Dial Corp., 33 F.3d 355, 361 n.3 (4th Cir. 1994). Therefore, I will address
each of these theories in turn.
|||The district court identified and found a due process deprivation under
Brady v. Maryland, 373 U.S. 83 (1963). Harvey v. Horan, No. Civ.A. 00-1123-A,
2001 WL 419142 at *5 (E.D. Va. Apr. 16, 2001) ("The court finds that,
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the plaintiff has a due
process right of access to the DNA evidence and to conduct DNA testing upon
the biological evidence, as such evidence could constitute material exculpatory
evidence."). On this point, I agree with Judge Wilkinson: Harvey's
denial of access to the biological evidence after his conviction and sentencing,
standing alone, fails to contravene Brady. Ante at 11. As the majority points
out, there is no allegation that Harvey did not receive a fair trial in
the courts of Virginia in 1990. Id. There is also no contention that the
Commonwealth denied Harvey access to Brady material during his prosecution.
As such, the Brady rule has no application to Harvey's claim in this case.*fn9
|||Given that the Brady rule is not applicable, I next evaluate Harvey's
contention that his denial of access to the biological evidence relating
to his rape conviction violates his right of access to the courts. Harvey
asserts that the denial of access by the Commonwealth's Attorney prevented
him from bringing future actions to challenge his conviction, such as a
clemency application or another petition for habeas corpus relief, and thereby
blocked him from obtaining any relief in the court system; therefore, Harvey
maintains that the denial of access contravened his constitutional right
of access to the court system under the Due Process Clause.
|||It is well established that due process requires government officials
to permit prisoners "adequate, effective, and meaningful" access
to the court system to litigate post-conviction legal issues, such as habeas
corpus and civil rights actions. Bounds v. Smith, 430 U.S. 817, 822 (1977);
see also Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Johnson v. Avery,
393 U.S. 483, 485-86 (1969). As such, the government must ensure that prisoners
have the substantive ability to take advantage of post-conviction legal
options, i.e., the ability to file the requisite legal papers is insufficient.
The Court has also observed, however, that a state has no affirmative duty
to "enable the prisoner to discover grievances, and to litigate effectively
once in court." Lewis v. Casey, 518 U.S. 343, 354 (1996). Thus, although
a state must provide prisoners with meaningful access to the legal system,
it is not obligated to maximize the prisoner's chances of prevailing in
his post-conviction action.
|||Under Lewis, the mere fact that the Commonwealth's Attorney denied Harvey
access to the biological evidence is insufficient to abridge Harvey's right
of access to the courts. Even without access to the evidence, Harvey is
fully capable of taking advantage of post-conviction legal options such
as habeas corpus and clemency. He has made no allegation that he lacks an
adequate library or other legal resources such that he is unable to effectively
initiate a post-conviction proceeding. Harvey's contention is essentially
that he needs access to the biological evidence to increase his chance of
success in any future clemency application or habeas corpus proceeding he
might initiate; however, under Lewis, the Commonwealth's Attorney has no
obligation to help Harvey bolster any such future legal efforts. Id. at
354. Thus, the Commonwealth's Attorney's denial of access to Harvey did
not infringe upon Harvey's constitutional right of access to the court system.
|||Harvey also generally contends that his denial of access to the biological
evidence violated due process because it contravened the requirements of
Arizona v. Youngblood, 488 U.S. 51 (1988). The Supreme Court held in Youngblood
that the prosecution violates the Due Process Clause if it fails to preserve
potentially exculpatory evidence in bad faith, even though such material
is outside the scope of Brady v. Maryland. Id. at 58. Harvey contends that
"under Youngblood, blocking access to existing evidence whose potential
exculpatory value is self-evident is no different than, in bad faith, destroying
it," and therefore the denial of access violated his due process rights.
Appellee's Br. at 9.
|||As an initial matter, Youngblood, like Brady, addresses the prosecution's
constitutional duty prior to conviction, and thus fundamentally concerns
a criminal defendant's due process right to a fair trial. Harvey's reliance
on Youngblood, however, is not entirely misplaced, because Youngblood also
implicates a broader due process concern.
|||Government agents should not actively impede an attempt to exercise a
constitutional right in bad faith, i.e., with the intended purpose of preventing
an individual from exercising the right. In fact, Judge Wilkinson explained
this point with clarity in his opinion in Jean v. Collins, 221 F.3d 656
(4th Cir. 2000).
|||Of course the bad faith manipulation of evidence on the part of the police
cannot be countenanced. Constitutional absolution for the concealment, doctoring,
or destruction of evidence would fail to protect the innocent, fail to assist
the apprehension of the guilty, and fail to safeguard the judicial process
as one ultimately committed to the ascertainment of truth. Id. at 663.
|||In essence, the concept of due process requires that the government treat
its citizens in an evenhanded and neutral manner; thus the targeting of
specific individuals with the purpose of frustrating the exercise of their
lawful rights contradicts the basic premise of the constitutional guarantee.
|||Thus, given that prisoners possess a right of effective access to the
court system, a governmental decision to deny access to evidence with the
intent - and with the effect - of preventing a prisoner from exercising
his right of effective access to the court system would violate due process.
Cf. Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997) (concluding
that police cover-up of evidence which prevented plaintiff from filing §
1983 suit against government officials violated plaintiff's constitutional
right of access to court system); Bell v. City of Milwaukee, 746 F.2d 1205,
1261 (7th Cir. 1984) (holding that constitutional right of access is violated
when police deny plaintiffs information necessary for them to seek redress).
To permit a state official to target a particular prisoner and to deliberately
frustrate that prisoner's ability to take advantage of post-conviction legal
options contravenes the essence of fair and impartial procedural justice.
|||Therefore, in order for Harvey to prevail on his § 1983 claim, he must
demonstrate that the Commonwealth's Attorney denied him access to the biological
evidence in bad faith, i.e., it deliberately blocked his access to the evidence
in order to impede his ability to take advantage of available post-conviction
legal procedures. In the circumstances presented, Harvey cannot prevail
on this claim. He has made no allegation of bad faith on the part of the
Commonwealth or its representatives, and he has presented no evidence of
any bad faith. As such, Harvey has failed to demonstrate that the Commonwealth's
Attorney's conduct violated his due process rights.
|||Finally, Harvey contends that the conduct of the Commonwealth's Attorney
violated his due process rights because the denial of access to the biological
evidence contravened substantive due process. As the majority observes,
Harvey indicated at oral argument that this Court should employ the three-part
balancing test of Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), to craft
a due process right of access to biological evidence for the purpose of
DNA testing. Ante at 9. Harvey asserts that, given a prisoner's substantial
interest in proving his innocence and the minor administrative burden to
the state in providing access, we should find such a due process right.
|||Harvey's reliance on Mathews is misplaced. The Court in Mathews promulgated
the three-part test as a means of evaluating the constitutional adequacy
of administrative procedures used to deprive an individual of a "liberty"
or "property" interest. Mathews, 424 U.S. at 33135. Justice Powell,
writing for the Court, observed that "[p]rocedural due process imposes
constraints on governmental decisions which deprive individuals of `liberty'
or `property' interests within the meaning of the Due Process Clause of
the Fifth or Fourteenth Amendment." Id. at 331. He also noted, however,
that "`[d]ue process,' unlike some legal rules, is not a technical
conception with a fixed content unrelated to time, place, and circumstances,"
and he consequently recognized that different administrative proceedings
could use very different procedures and nonetheless be constitutionally
sufficient. Id. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,
895 (1961)). Justice Powell therefore established the three-part test as
a procedure for analyzing whether a governmental decisionmaking process
complied with constitutional constraints. Id. at 33435.
|||Thus the balancing test of Mathews is only relevant when the government
is depriving an individual of a "liberty" or "property"
interest. Harvey must therefore possess such an interest in accessing or
possessing the biological evidence relating to his rape conviction before
the principles of Mathews come into play. Harvey, however, has no such interest.
He has no post-conviction legal right to access or discover the evidence
relating to his rape conviction, and he certainly has no property interest
in such evidence. As such, the Mathews test is not applicable to Harvey's
|||Harvey therefore is unable to demonstrate that the Commonwealth's Attorney's
denial of access, under any of his theories, violated his due process rights.
As such, Harvey has failed to demonstrate that his federally protected rights
were violated, and his § 1983 proceeding must fail.
|||Our criminal justice system is not infallible, and it has occasionally
convicted an innocent person. Although technological and scientific advances
may well enable our legal system to make more precise judgments of guilt
or innocence, the blanket application of such developments to previously
concluded proceedings raises difficult questions concerning finality. An
appropriate balance must therefore be struck between accuracy and finality,
and the integrity and efficiency of our judicial system must be preserved.
|||Regardless of where I would strike such a balance, it is not, as I have
stated, our role to decide the issue here. Our task is to ensure that the
Commonwealth's Attorney has not, in this case, violated Harvey's federally
protected rights - and he has not done so.
|||*fn1 Our good concurring colleague suggests
that Heck might permit a state prisoner to come into federal court when
the state prisoner sought the release of any available evidence. If that
were the case, Heck would allow a broad-ranging post-conviction discovery
right on the part of state prisoners proceeding in the first instance in
federal court. Our concurring colleague recognizes that this cannot be the
case. The whole point of Heck was to protect the finality of state judgments
of conviction from challenge via unexhausted § 1983 actions. As the second
section of our concurring colleague's opinion ably demonstrates, the utilization
of § 1983 by state prisoners to obtain evidence in the first instance in
federal court meets with a variety of obstacles. In sum, the second section
of our concurring brother's opinion underscores why the broad-ranging right
intimated in the first section cannot exist.
|||*fn2 Even though Harvey's first federal
habeas petition was filed in 1994, before the 1996 effective date of the
Antiterrorism and Effective Death Penalty Act ("AEDPA"), his current
petition was filed in July 2000, after AEDPA's effective date. We conclude
that AEDPA's requirements in 28 U.S.C. § 2244(b) for a successive petition
apply based on when the second petition was filed, not the first. See, e.g.,
Tyler v. Cain, 121 S. Ct. 2478 (2001) (requiring compliance with § 2244(b)
when the original habeas petition was filed pre-AEDPA but the successive
one was filed after AEDPA's effective date); Daniels v. United States, 254
F.3d 1180, 1184-88 (10th Cir. 2001) (same). Therefore, § 2244(b) applies
|||*fn3 The opinion of our concurring colleague
likewise underscores the limitations of a § 1983 action by a state prisoner
to secure evidence in federal courts. In Section II of that opinion, Judge
King addresses and rejects a variety of theories under which a § 1983 action
may lie. He dismisses Brady v. Maryland, 373 U.S. 83 (1963), Bounds v. Smith,
430 U.S. 817 (1977), and Mathews v. Eldridge, 424 U.S. 319 (1976), as bases
for bringing a § 1983 action of this type. We appreciate our colleague's
thoughtful analysis of these cases and the insights he has provided with
respect to them. As to Arizona v. Youngblood, 488 U.S. 51 (1988), there
has, as our concurring colleague recognizes, never been any suggestion that
the Commonwealth has concealed, destroyed, or otherwise manipulated potentially
exculpatory evidence in this case. Further, neither Arizona v. Youngblood
nor Jean v. Collins, 221 F.3d 656 (4th Cir. 2000), involved a § 1983 suit
over evidence in a state conviction that had yet to be invalidated. After
oral argument in this case, Harvey's counsel submitted to the panel a copy
of Appellee's Motion For Scientific Analysis of Previously Untested Scientific
Evidence, which was filed in the Fairfax Circuit Court pursuant to Va. Code
§ 19.2-327.1. The filing of this motion reinforces our view that the state
courts are the proper forum for the resolution of this controversy and why
this federal suit must be dismissed.
|||*fn4 As the majority observes, Heck
only dealt with a § 1983 suit for damages. Ante at 6. There is no reason,
however, to believe that the principles of Heck are so limited, and I agree
with the majority that the Heck rationale is also applicable to § 1983 proceedings
by a prisoner seeking injunctive relief that would necessarily imply the
invalidity of his conviction or sentence. Ante at 6. See also Edwards v.
Balisok, 520 U.S. 641, 648-49 (1997) (leaving question unresolved).
|||*fn5 The specific relief requested by
Harvey in his complaint is: Equitable relief, in the form of the search
for and release of all biological evidence, including the rape kit and reference
samples of [Harvey's co-defendant] Steve Lawrence as well as the panty hose
and the maroon shirt collected in connection with the rape for which [Harvey]
was convicted . . . . Complaint at ¶ A.
|||*fn6 Examining conventional dictionary
definitions clarifies the stringent nature of the Heck test. "Necessarily"
means "of necessity" or "inevitably"; thus, a successful
lawsuit by Harvey will "necessarily imply" the invalidity of his
conviction only if it "inevitably" mandates such a conclusion.
See Webster's II New College Dictionary 731 (Houghton Mifflin Co. 1995).
Put simply, if there is any conceivable way in which Harvey can succeed
in this lawsuit and not impair the validity of his conviction, then a successful
prosecution of Harvey's claim does not "necessarily imply" the
invalidity of his conviction.
|||*fn7 This point, i.e., that STR DNA
testing of biological evidence does not always result in future exculpation,
is amply demonstrated by results obtained pursuant to the new Virginia statute,
cited approvingly by the majority, that provides prisoners post-conviction
access to DNA testing. See Va. Code Ann. §§ 19.2-327.1 to -327.6 (Michie
Supp. 2001). Reportedly, the first post-conviction DNA testing accomplished
under the statute, performed for a prisoner serving 42 years for rape, was
inconclusive, and it failed to assist the prisoner in establishing his innocence.
Brooke A. Masters, DNA Test Fails to Vindicate Virginia Inmate, Wash. Post,
November 28, 2001, at B08.
|||*fn8 In his complaint, Harvey also alleged
violations of his Sixth Amendment rights under the Compulsory Process Clause
and the Confrontation Clause and his Eighth Amendment rights under the Cruel
and Unusual Punishment Clause. The district court, however, in denying the
Commonwealth's Attorney's motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), implicitly found these claims to be without merit. The
Commonwealth's Attorney moved to dismiss Harvey's claim pursuant to Rule
12(b)(6), asserting that Harvey had failed to allege a deprivation of a
federally protected right. The district court denied that motion solely
on the ground that Harvey's allegation that he had been denied access to
the biological evidence "states a claim of denial of due process."
Harvey v. Horan, 119 F. Supp. 2d 581, 584 (E.D. Va. 2000). The district
court therefore implicitly determined that Harvey failed to state a claim
with respect to his other allegations of constitutional deprivation. Harvey
has not appealed that ruling, and we need not further address his alternative
|||*fn9 Moreover, under the second prong
of the Brady rule, the prosecution is only required to disclose evidence
that is favorable to the defendant. Brady, 373 U.S. at 87. It is not now
known whether the biological evidence being sought by Harvey would be favorable
or unfavorable to him. As such, even if Harvey had been denied access to
the evidence during his trial, the Brady rule would not have applied.
|||*fn10 As for Harvey's more general
contention that denying him access to the biological evidence violates substantive
due process, it may be that the significant interest of our constitutional
system in ensuring justice requires, under the Due Process Clause, that
prisoners enjoy access to evidence for the purpose of DNA testing. That,
however, in my view, is not an issue within our bailiwick; if any such right
exists, it must be recognized by judges of a higher pay grade than those
of this Court.
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