Lead Opinion
Danny Joe Bradley, an Alabama prisoner under sentence of death, appeals the district court’s dismissal of his suit to compel the government to produce evidence for DNA testing. The court held that Bradley’s suit, which was filed pursuant to 42 U.S.C. § 1983, was the “functional equivalent” of a petition for habeas corpus, and should therefore be dismissed as a second or successive habeas petition filed without the requisite authorization from the Court of Appeals. Bradley now appeals that ruling and argues that his suit was properly brought pursuant to § 1983 because his request for the production of evidence neither directly, nor by necessary implication, attacks the validity of his conviction and sentence. We agree, and accordingly reverse the decision of the district court.
BACKGROUND
Bradley was convicted of the murder of his stepdaughter, Rhonda Hardin, in 1983 and sentenced to death. He has unsuccessfully pursued relief from his conviction and sentence through a direct appeal, see Bradley v. State,
The magistrate judge recommended dismissing Bradley’s § 1983 action, concluding that because Bradley was seeking evidence that might eventually exonerate him, his suit was the “functional equivalent” of a second habeas petition, over which the district court could not exercise jurisdiction because it did not satisfy the procedural prerequisites of 28 U.S.C. § 2244. The magistrate also denied Bradley’s motion for discovery. The district court adopted the magistrate’s report and recommendation in its entirety and dismissed the action. The court then issued a certificate of appealability on the sole question now before us
Whether a 42 ILS.C. § 1983 action initiated by a state prisoner sentenced to death which seeks to compel the state to produce physical evidence for DNA testing and/or to account for such evidence for the purpose of later asserting a claim of actual innocence or a due process claim under Brady v. Maryland, [373 U.S. 83 ,83 S.Ct. 1194 ,10 L.Ed.2d 215 (1963),] or Arizona v. Youngblood, [488 U.S. 51 ,109 S.Ct. 333 ,102 L.Ed.2d 281 (1988),] is the “functional equivalent” of a petition for federal habeas corpus.
We review de novo the dismissal of an action for lack of subject matter jurisdiction. Carter v. Rodgers,
DISCUSSION
The Supreme Court first considered the potential overlap between § 1983 actions and habeas corpus petitions in Preiser v. Rodriguez,
Bradley argues that his § 1983 suit should be allowed to proceed because success in his suit will not demonstrate the invalidity of his conviction or sentence. We agree. Bradley seeks access, for the purpose of DNA testing, to evidence that he believes is in the State’s possession. He prevails in this lawsuit once he has access to that evidence or an accounting for its absence. Nothing in that result necessarily demonstrates or even implies that his conviction is invalid. As Bradley points out, it is possible that the evidence will not exculpate him, or the proof will show that any unavailable evidence was lost innocently. In that case, he would have no grounds subsequently to pursue a challenge to his conviction or sentence. But even if the evidence, after testing, permits Bradley to challenge his sentence, that challenge is no part of his § 1983 suit. He would have to initiate an entirely different lawsuit, alleging an entirely different constitutional violation, in order to demonstrate that his conviction and sentence are invalid.
The State argues that the only reason Bradley wishes to test the evidence is to mount a subsequent challenge to his conviction and sentence, and that his § 1983 suit is therefore the functional equivalent of a habeas corpus proceeding. That argument finds support in a recent Fourth Circuit decision holding that, in a suit to produce. evidence for DNA testing, the fact that the plaintiff intends to use the results of the DNA testing to undermine his conviction means that, under Heck, the evidence is properly sought in a habeas corpus proceeding rather than in a suit pursuant to § 1983. See .Harvey v. Hor-an,
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. That act alone — providing Harvey with access to the biological evidence relating to his rape conviction — does not “necessarily imply” the invalidity of Harvey’s conviction or sentence. [Heck,]512 U.S. at 487 ,114 S.Ct. 2364 . 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.
Id. at 382-83 (King, J., concurring in part). Moreover, although a subsequent change in state law permitted Harvey to obtain the evidence he sought, Judge Luttig wrote in his concurrence to the denial of rehearing en banc that, were the federal proceedings not rendered moot by the change in state law, he would have voted
I do not believe it even arguable that a post-conviction action merely to permit access to evidence for the purpose of STR DNA testing “necessarily implies” invalidity of the underlying conviction. Indeed, such necessarily implies nothing at all about the plaintiffs conviction. It certainly implies nothing more (and arguably it implies a good deal less) than does an assertion of constitutional right to material and exculpatory information producible under Brady v. Maryland,373 U.S. 83 ,83 S.Ct. 1194 ,10 L.Ed.2d 215 (1963), which has never been thought necessarily to imply the invalidity of the underlying conviction. The results of any DNA tests that are' eventually performed may be inconclusive, they may be insufficiently exculpatory, or they may even be inculpatory. That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access is not a direct, or for that matter even an indirect, attack on one’s conviction or sentence. But if this were not enough to estabhsh the point, then it should be that, in order to overturn a conviction based on exculpatory evidence that might appear from any DNA testing, the petitioner would have to initiate an entirely separate action at some future date, in which he would have to argue for his release upon the basis of a separate constitutional violation altogether.
Id. at 308. For the reasons expressed by Judges King and Luttig, we disagree with the Fourth Circuit panel that Heck does not permit a § 1983 suit for the production of evidence for the purpose of DNA testing. On the contrary, Heck explicitly authorizes a § 1983 action that does not “necessarily imply” the invalidity of the plaintiffs conviction, see Heck,
The State also contends that a number of Eleventh Circuit decisions support its position that Bradley’s suit may proceed only as a habeas corpus petition. First, it notes that in Felker v. Turpin,
The other case cited by the State is similarly distinguishable. In Abella v. Ru-bino,
We note again that Bradley’s suit seeks only the production of evidence. There has been no discovery regarding the State’s claim that certain items of evidence are missing, but in any event, that claim does not alter the nature of Bradley’s suit. We therefore reverse the decision of the district court and remand for further proceedings.
REVERSED AND REMANDED.
Notes
. The State submitted an affidavit stating that the items Bradley seeks are missing, but Bradley points out that the affidavit evidence is hearsay, and he has not been provided with any opportunity for discovery to develop contrary evidence regarding the availability of the items he seeks.
. We note that this case does not address the question of whether Bradley's claim states a cause of action, or of whether a different result would obtain if a federal stay of execution were implicated. Although the Alabama Supreme Court subsequently stayed Bradley's execution pending the outcome of these proceedings, that is a matter for the state court’s discretion, and a stay was not part of the relief that Bradley sought in his § 1983 suit.
Concurrence Opinion
specially concurring:
Although I know that other federal circuit courts have reached conclusions inconsistent with my view, I — largely for the reasons stated by Judge Barkett — agree that Bradley’s 42 U.S.C. § 1983 action is not the functional equivalent of a petition for habeas corpus. I write separately to stress that Bradley has at no time in this federal case asked a federal court to enjoin Alabama from executing him or even to stay his execution until his section 1983 case is decided. The lack of a request for a federal court to stop or to postpone the State execution is important to my decision.
I hint at no view about whether Bradley’s lawsuit actually states a claim upon which relief can be granted.
specially concurring:
I concur dubitante. If a district court’s decision is correct for any reason, then it is due to be affirmed, even though the particular reason given by the district court is erroneous. See Hempel v. United States,