James Harvey v. Robert F. Horan, Jr., Commonwealth's Attorney, County of Fairfax, Jennifer Thompson Karen R. Pomer Jeri Elster, Amici Curiae

opinion Judge Chief Wilkinson filed be considered hold. That issue should rehearing and concurring in the denial of by the District Court the first instance rehearing en banc. may require regard- information because interpret administrators prison how Luttig opinion respecting filed an Judge Pro- Disciplinary of the Inmate scope en rehearing the denial of banc. cedures, System, Inmate Grievance petition denied the for re- The Court them. and the interaction between rehearing Entered at hearing and en banc. Judge of Chief for

the direction Wilkinson IV. the Court. WILKINSON, Judge, concurring Chief

CONCLUSION rehearing en rehearing in the denial of and forth, re- For the reasons set we will banc. of the District Court the decision verse Harvey There is no doubt that should dismissing Ray’s complaint. in this case biological receive the testing using technology that was for Virginia his convic- unavailable the time fact, panel opin- final. In tion became suggested ion that the state courts could Horan, testing. Harvey order DNA See v. Cir.2002) (4th (stating F.3d ways courts are free in that we “state HARVEY, Plaintiff-Appellee, James ground are not to set the rules further collateral attacks state convic- Harvey’s may be enter- tions such HORAN, Jr., Robert F. Commonwealth’s tained”). precisely And that is what the Attorney, County Fairfax, Defen state courts have now done. The dant-Appellant. before us is thus not whether should or will receive the DNA evidence. Thompson; Pomer; Karen R. Jennifer Rather, He should and he will. the issue Elster, Amici Curiae. Jeri brought is whether a 1983 action fed- No. 01-6703. appro- eral court the first instance is the for him to that evi- priate vehicle Appeals, Court of United States dence. Fourth Circuit. myself puzzled nonetheless confess Filed: March over the discussion herein. issues extensively in the have been addressed ORDER majority concurring opinions. and earlier requested poll No member of the court filed a for Appellee petition rehearing banc, suggestion rehearing on the en rehearing banc. en my agrees “that a denial of brother Judge King grant panel voted to rehear- rehearing proper dispo- en banc is now the ing. Judge Judge Wilkinson and Chief particular of this case.” Post at 326. sition Niemeyer deny. voted to However, my colleague inasmuch as a undertaken an extended of his requested No member of the Court discussion own, I poll petition rehearing response. on the en banc. tender this brief I. offenders prey any will have assurance of

justice. A. panel The opinion the multiple identifies procedural problems Harvey’s § 1983 by Har- posed The threshold claim faces. See Harvey, 278 F.3d at 374- § vey’s 1983 action relates to the nature of separate 80. Yet the opinion would throw right the constitutional he asserts. There each every and one of these considerations here, possibilities procedural are one two shows, to the Harvey’s winds. As case procedural and the other substantive. The courts, chance, state if given a can rise to right is the to and right press proclaim responsibilities. their my good Yet col- one’s innocence a federal forum in the league would only deny not them that seeking first instance when access to DNA chance, but do so in unprecedented fash- testing, judgment even where the to be ion, encouraging prisoners press state challenged is a state conviction. their initially claims federal court while justice system The American criminal all disregarding procedures state court rightly sets the ascertainment of truth and legislative all state avenues of redress. protection of innocence as highest its say This is not to that the federal courts goals. average school child is aware are uncharitable with respect to claims of (or hope) so we the accused is clothed innocence. For example, Rule 33 of the presumption with a of innocence and that Federal Rules of Criminal Procedure au- prosecutor prove beyond must a rea- thorizes motions for a new trial on the sonable doubt that a crime was committed. newly basis of discovered evidence. And Moreover, the concern with innocence does Virginia, seminal case of Jackson v. not end at trial. Elaborate 99 S.Ct. 61 L.Ed.2d 560 procedures rightly place are to ensure (1979), a prisoner press allows state a fair, not trial that a was but also that claim of innocence in federal court wrongly no individual has been convicted. ground that “the evidence in support of his fairly state conviction cannot character- system any Our however does not allow ized as sufficient to have led a rational person press any a claim of innocence at guilt beyond trier of fact to find a reason- time, any and in place, manner. able doubt.” 443 U.S. 99 S.Ct. innocence, just The assertion of as the Collins, 2781. See also Herrera v. any right, assertion of is intertwined with 390, 404, 853, 122 L.Ed.2d matters, orderly It process. example, “ (1993) (stating ‘actual innocence’ that a Virginia prisoner sought has here to claim,” is not itself a constitutional but that bypass Virginia’s system justice of criminal it can “gateway” through serve as altogether, proceed directly into feder- petitioner a habeas can his other- “have al disregard court under 1983. Such wise barred constitutional claim considered process anomaly an area where merits”). on the defendants, all, above rely on proper protect rights. important their It is however claims entertained, Bickel What Alexander termed “the moral- innocence should be where court, ity process” political system possible, in the the first instance application justice system, to criminal as well. Al- or at least that initial- court Bickel, rule, exander M. The Morality ly ostensibly Con- heard the case. Such a (1975). process, sent 123 Shorn neither directed to considerations of venue or com- public ity, the innocent nor the actually larger purpose. whom serves a It such kept in the dark about what underlying conviction not We in the recogniz'es just actually look like would infallibility, presump- but a conclusion of scope defining the because presumption That of legitimacy. tion at 321. It is “imprudent.” Post the would be rendering if the court be lost one imprudent no more define disregarded and simply could conviction its than it is to assert declared to exist will, Harvey has is what bypassed at impru- It begin to with. existence fashioning his claim of to do in sought silence, but that accounts for this dence By design, § as a 1983 suit. innocence reality may humbling rather in criminal cases of conviction judgments judge-qua-judge to impossible for efforts of well casually reached. .The are not why this task this feat. That is witnesses, accomplish judges, prosecutors, jurors, legislatures. left to appropriately is one a considerable attorneys represent defense jus- achieving and conscientious effort would have to be myriad questions A if would be lost tice—an effort which parame- define the answered order to rendering judgment system or court right post-convic- ters of a constitutional respect or even so entitled to no were in- For tion access to DNA evidence. acknowledgment thereafter. much as stance, would have to decide who could we testing particu- to DNA right claim a —in B. lar, apply to all right whether such a would or those who committed prisoners procedural In to the difficulties addition serving were some certain crimes or who poses Harvey’s presents, claim this case Further, we would prison minimum term. identifying problem the intractable showing what threshold have to determine of the substantive precise scope nature and prisoner for a required was order that a court right federal testing. For receive Harvey in order have to bestow on would to have been example, identity does have Both the proceed. his 1983 claim to prisoner if the an issue at trial? What the concur- panel majority opinion and addition, we would pleaded guilty? Harvey, this. 278 F.3d recognized rence post- request have to decide to whom a Indeed, 375-77, 380, n. 387-88 & 7. made and on testing conviction would be acknowledges just as well separate opinion the decision-maker the standard identifying the task of how “formidable” determining testing whether would use right precise parameters of such must a appropriate. example, was For accordingly at 321. It would be. Post only that the untested evi- prisoner show specify rough even the contours declines might possibly assist his claim of dence post-convic- right of the constitutional innocence, probability or that a reasonable it di- tion access to DNA evidence that the outcome of his trial would exists separate opinion vines. Post at 321. The different if the test results had have been states, explanation, without merely some stricter been available? Or does “narrowly would con- such a Moreover, we would apply? standard governed by “strict and limit- fine[d]” whether there was a have to determine end, left standards. Id. In the we are ing” bringing of limitations for the re- statute guess whether even himself place. in the first quest testing qualify would for additional DNA Next, would have to work out details newly minted we separate opinion’s under the First, system itself. we testing evidence. identify have to who would bear would Post at 325. here, it be the testing. of the DNA Would come the advances costs in DNA final — government, prisoner, testing technology. state or federal who can afford the test- only prisoners or certainly It is true and cause for cele- if ing? we wait to determine DNA Would bration that DNA testing holds much proved wholly arguably had or suc- promise. And there is no requesting prisoner for the before cessful inmates, accused individuals and convicted determining who bears the cost? And we prosecutors, well as should reap the laboratory would have to decide a state Indeed, many benefits of it. scientific ad- prisoner conduct the test or if a promise vances advantages. substantial could judge private select lab. We But this does not mean that we are free to specify have to whether counsel would also constitutionalize a of access to the appointed every indigent per- would be for fruits of scientific discoveries. There are addition, seeking testing. son we would often trade-offs be faced when science long have to determine how DNA evidence progress frequently advances. Scientific preserved would have to be and decide allocation, presents questions of resource was automatic or preservation whether interpretation, application, privacy, and upon prisoner. conditioned motion from a ethics. Balances must be struck between Further, benefits, we would have establish who societal risks and between alter- would evaluate the DNA test results and ways understanding native and employ- enough when a result was conclusive techniques, permissi- new and between to warrant further relief. Final- innocence ble and uses. impermissible ly, lay we would have to out the relief that precipitously The courts should not offer granted. could be Is a new trial or a questions. answers to these The issue pardon appropriate? more And Harvey’s raised in case is one we will result, test could a prisoner favorable many again: confront times Should the bring monetary a claim for relief for a through conversation-stopping courts wrongful conviction? process of constitutionalization decide for society what uses will be made of scientific Harvey would have federal courts progress, input or should we await the disregard the fact that both Congress legislative weighing in bodies before our- and the United States various state legislative selves? The case for bodies legislatures presently wrestling with retaining control advances science is exactly these of questions. Only sorts powerful because scientific discoveries aggressive judicial most view of federal potential society have the in ways affect power preempt could lead us to both a that may profoundly pro- beneficial or coordinate branch of federal govern- foundly harmful. As science marches for- ment and the legislatures state courts and courts, ward in it our is not remiss to with prescriptive what would essence be respect ability political process making law of our own. many implications. its address my Thus brother asks that we take a big II.

step. If were Harvey’s we to vindicate claim, because, it would have to be as the I repeat my hope that inmates such as conclude, post separate opinion appears testing. will receive DNA And I there was some substantive due repeat my system faith that the American process right to the fruits of scientific dis- will provide to them. This is not an area coveries made after a conviction had be- in which legislative gone bodies have into Evidence, 108 contrary, Challenges recess. On

permanent of Scientific (1995). 1481, 1573 And Harv. L. Rev. the fact opinion detailed majority panel country are cur- across the legislatures considering legis- actively Congress enacting initiatives. rently considering and Harvey, in this area. See initiatives lative alone, passed states In 2001 seventeen 376-77, 380. The Innocence F.3d at criminals with provide “to convicted laws Act, introduced which has been Protection testing.” Always access to DNA improved increase Congress, in both houses Economist, eye?, The Jan. eye an DNA availability post-conviction for have set legislatures at 26-27. State convicted of a for an individual testing types for these ground rules detailed Further, the Act would crime. federal actions, answering questions the numerous of federal funds grant condition DNA discussed above on an assur- programs DNA-related state legislatures have testing raises. post-con- make the state would ance that the circumstances spelled out in certain testing available viction DNA which a motion additional 101-104, §§ See S. 486 types of cases. made, but also where such motions can be S1999, (2001), Cong. Rec. Cong. 107th also have identi- brought. They must (Mar. 7, 2001); §§ 101- H.R. 2001-03 parameters that control whether fied (2001). 104,107th Cong. available, made testing additional will be in- passed legislation Virginia has also deny testing grant a decision to whether availability post-conviction creasing the bear the cost of appealable, who must testing, which himself suc- DNA and what relief is available testing, the following court cessfully invoked in state petitioner. are favorable to the the results Harvey, argument in this case. See oral See, § Proc. Law 440.30 e.g., N.Y.Crim. Virginia n. 3. Code 278 F.3d 2001); Ann. (McKinney Fla. Stat. Supp. to § allows a convicted felon 19.2-327.1 (West 2001); 925.11, Supp. §§ '943.3251 circuit court for DNA apply to the state 2002). (West Supp. § Cal.Penal Code alia, if, biological inter the evi- testing many reveal that there are The statutes subjected not to the current dence was resolving to these is- approaches different testing is testing DNA method and the alone, the Fourth Circuit sues. Within relevant, noncumulative, and “materially in ap- variation the there is substantial necessary may prove and the convicted by Virginia, Maryland, taken proaches Ann. person’s actual innocence.” Va.Code Carolina, already which have enact- North (Michie 2001). In addi- Supp. § 19.2-327.1 testing provisions. post-conviction ed DNA tion, Virginia the details what statute example, Virginia applies the statute For must set forth in his motion for petitioner people felony, to convicted of a does testing, DNA sets a timeta- post-conviction pays testing, who for the DNA specify hearing circuit court to hold a ble for the testing performed states that the will be motion, the prisoner’s on a and structures Virginia the Division of Forensic Sci- decision-making process on circuit court’s §Ann. In ence. See Va.Code 19.2-327.1. Id. petition. the contrast, Maryland applies only the statute crimes, and the Com- government The federal people spec- to convicted of certain are far from alone Virginia pay monwealth of that the shall the costs petitioner ifies In the testing in this area. New York was the unless the results are favor- (in pays), and pass addressing state to a statute which case the state first able judge reviewing petition the testing. Develop- DNA allows testing from a laboratory New select a for Confronting ments in the Law: Ann., list of accredited labs. See Md.Code judgment of conviction. But Harvey never (Michie 2001). § Crina. Proc. 8-201 presented his claim in the Virginia courts contrast, further the North until after panel Carolina stat- had heard oral argu applies any defendant, ute re- ment this case. quires pay the defendant to the cost of the This court recognized Hamlin (in unless he is indigent reality of such a situation when we held cost),

which case the state bears the and that a prisoner’s § 1983 claim had pro- does not 'will indicate lab conduct ceed under the habeas framework when the testing. § N.C. See Gen.Stat. ISA- the prisoner was seeking to establish “ev- ery predicate” for a subsequent request release. 664 F.2d at 32. We con- area,

To constitutionalize this sep- as the cluded that when a complaint all “has would, opinion arate in the face of all this earmarks of a attempt deliberate to sub- legislative activity and variation vert requirement [exhaustion] of [28 nothing evince than less a loss of faith 2254(b),” U.S.C.] petitioner must ob- democracy. It is to believe that democrat- serve the habeas requirements, “notwith- ic processes incapable are of rising to the standing the any request absence of challenge, and federal courts do must release.” Id. at 32. the governing end, for us. In the this will deaden the of democracy. lifeforee It will This fundamental doctrine ensures that legislatures cause across our nation to sim- states will given at least the initial ply surrender impulse to innovate chance to review their judgments own be- based on assumption that the federal fore a federal court jumps into fray. courts prepared step time. As the Supreme emphasized Court It encourage will elected officials to sit on Preiser, requirement exhaustion “is their hands and turn over their responsi- rooted in considerations of federal-state judges. sure, bilities to federal To be the comity,” and it “wholly would frustrate displacement of judicial elected officials by explicit congressional intent” to allow state authority always pleases some peo- prisoners to evade the exhaustion require- ple some of activism, the time. But with “by ment simple expedient” the of putting goes what around comes Today’s around. §a 1983 label on their pleadings. 411 merriment becomes tomorrow’s mourning. 10, U.S. at n. 489-92 & 93 S.Ct. 1827. separate opinion contends that Heck

III. 477, 114 v. Humphrey, 512 U.S. To post-con constitutionalize a (1994), 129 L.Ed.2d 383 actually a “was viction DNA testing in decision,” federal court quite narrow Heck first instance would have unfortunate con Harvey’s proceed allow claim to un sequences for our federalism § as well. To However, der 1983. Post at 308. recognize here, §a claim we would point whole of Heck keep was to a state effectively have to overrule this prisoner court’s challenging from his conviction in Warren, decision in v. Hamlin 664 F.2d 29 federal through court the first instance (4th Cir.1981), and the Supreme Court’s masquerad unexhausted habeas claim decision in Rodriguez, v. Indeed, Preiser § as a 1983 claim. the re (1973). 93 S.Ct. 36 L.Ed.2d quirement that a state prisoner exhaust The lesson of Hamlin and Preiser state remedies before his challenging con the state courts should have the first viction in federal court has such basic chance challenges to review to a place state Supreme jurisprudence Court this to rehear authority not have the See, do e.g., Rose mentioning. hardly needs

it much be- less panel, case even before Lundy, However, were (1982) the court en banc. fore (explaining 1198, 71 L.Ed.2d action, court intervening state long existed not for doctrine exhaustion “[t]he been would have case Congress my in in view this codification its before For court review. for full 1948”). appropriate Heck inconceivable It procedural the threshold that both Supreme believe long line displace this meant appellee asserts whether question re the exhaustion precedent Court U.S.C. propo of action under for the cause it stands or that quirement, question of Harvey’s may the fundamental such as that claims sition under the Constitu- there whether exists court. initio federal ab proceed post- right, States tion of the United IV. conviction, previously-produced to access fur- purposes for the forensic sought he relief achieved the questions important ther courts and state the state through question that each law. And believe in his case our decision And legislatures. panel incorrectly decided was the federal role of proper respects into drawn have been whose .decisions system. The the federal within courts for rehear- petition by appellee’s just opposite. opinion does separate banc. ing en hesitation, colleague disre- my little With actors in of all the other the roles gards oppor- other having no believing, and So over- approach His system. American impor- on these my views tunity express prece- Supreme Court longstanding turns opinion now con- panel questions tant —the judges and even dent, lower to which court forth the law of our Circuit —I set stituting deference. themselves owe Justices views herein. those Congress of Unit- makes the His view very on the player a subordinate ed States I. determining questions involved difficult to the fruits entitlements individuals in the advances of scientific Because approach His treats advances. of scientific acid, particular- deoxyribonucleic testing of sys- and state court legislatures both state (STR) DNA test- Repeat ly Tandem Short respect with junior partners tems as law important ing, one of most judgments. own trials and their exists whether there day our is issues of way. is a better respect, all there the United With of the Constitution to access right, post-conviction, States LUTTIG, Judge, respecting the Circuit for evidence forensic previously-produced rehearing en banc. denial related, such, test- and DNA purposes exec- in order to ing establish —before judgment deny I concur in the court’s utive, the courts —one’s banc, if not before I do also en but so rehearing of this case for which of the crime innocence, complete Har- appellee appears because it and sentenced. he has been convicted will, court order state pursuant vey where decision, especial importance This issue is of be af- panel’s our after entered who, capi- by one for is asserted subject the forensic chance to forded death, offense, has been sentenced tal to further DNA at stake is no different principle from but that he seeks same relief tests —the been sentenced order,, for one who has we likely of this light court. this death, a term of but to extended incarcera- to a certainty fish virtual whether a given tion. individual did or did partic- not commit a ular crime.1 techniques

STR DNA and related rep- resent historic scientific in- developments, advances, These scientific which have creasing exponentially reliability rendered literally possible it to confirm forensic identification over earlier tech- guilt beyond or innocence any question niques. whatsoever, now widespread agree- There is least some categories of cases, ment community within the scientific are no ordinary developments, even technology, requires literally this for science. And neither they can samples cellular-size can only, distinguish ordinary law, treated as developments for any between two plan- fully individuals on the as temptation understandable is the et, twins, than identical other the statisti- to do so because of exceedingly diffi- cal of STR DNA probabilities matches cult issues otherwise are brought billions, ranging Instead, the hundreds of if not forth. permitting they as do the words, In other trillions. STR DNA generation of evidence qualitatively like no can, circumstances, tests certain previously known, estab- other these scientific ad- unnecessary impossible While it is both probability found that the two unre- to canvass the now (the vast literature on the new specific lated individuals match at 9 loci technology, technology forensic DNA "matching this is probability") approximately 1 in qualitatively proceeded al., different from all that 740 billion. See Lucia Sacchetti et Effi- techniques yield it. Current can often reli- ciency of Two Nine-Loci Different Short Tan- cell, single able results from even a see I. Repeat Systems dem Typing for DNA Pur- al., Findlay Fingerprinting et DNA from Sin- poses, (1999); Chemistry 45 Clinical Cells, (1997). Thus, gle 389 Nature 555 for al., Stephen see also J. Ciña et 21 Am. J. example, single sperm one cell recovered in a (2000) Pathology Forensic Medical (report- (or sexual assault case could exonerate incul- ing matching probability of 1 in 643 billion in pate) generally, the defendant. And a mere women). system among 8 loci white Because 50-100 cells suffice. See National Institute (not 9), probes the standard test 13 loci 8 or Justice, Testing: Postconviction DNA Rec- correspondingly should be powerful. more Handling Requests ommendations xv Even the most conservative estimates have (1999). Identifications have been made based placed matching probability high as 1 handles, keys, cells left on briefcase car billion, Improved Analysis in 100 see at 15. It telephone suspects. handsets used See noting gener- is also worth that some current Jones, van Roland Oorschot & Maxwell DNA systems matching ation STR probabili- have Fingerprints from Fingerprints, 387 Nature quadrillion. ties on the order of in 1 See Moreover, (1997). capable STR Benecke, Typing Mark in Forensic Medi- producing samples information even when Investigations: cine and in Criminal A Cur- severely degraded. Lucia See Sacchetti et Survey, rent Naturwissenschaften al., Efficiency of Two Nine-Loci Different (1997). purposes understanding For Repeat Systems Tandem Typ- Short for DNA magnitude figures probability, these it is Purposes, Chemistry 45 Clinical 181 only persons estimated that there 6 billion (1999). planet. the See http://www.un.org/esa/population/demobase. The current standard test STR examines 13 independent ("loci"), that, regions cases, of see Na- Thus does it follow in certain Justice, Improved Analysis tional Institute for capable STR DNA evidence is of exonerating (2001), (or Repeats convicted) DNA Short Tandem wrongly al- defendants those to a of though testing just usually practical 8-10 loci certainty. is generally See David J. distinguish any to per- Balding sufficient between Donnelly, Inferring two & Peter Identity Evidence, sons who are not identical twins. See Devlin from DNA Profile 92 Proc. Nat’l al., et Finger- (1995) Statistical of DNA (developing Evaluation Acad. Sci. 11741 a frame- printing: Critique A Report, analysis NRC's work for statistical of DNA evidence (1993). fact, factors). Science researchers have that includes non-DNA the convicted that objective proof where singu- for the recognized be must vanees offense later commit the did not actually they that developments larly significant of through progress the they becomes available for which of cases the class are—in that, a Indeed, agreed if it is innocence, science. the factual prove can actually to cases, possible it would be of given class “watershed” of evidentiary equivalent through such fur- certainty ato Teague v. establish law. See of constitutional rules in fact not com- one did analysis that ther Lane, convicted he was for which mit the crime (1989). questions the And L.Ed.2d 334 sentenced, harm grave then and must beget developments significant these be it to were to Constitution con- come serious for the recognized in turn be foreclosing ac- dismissively interpreted they are. that questions stitutional and all any under cess to such recognition of this judicial that I believe purposes and all and for circumstances science, questions profound of new and executive). The Constitu- (judicial or even should, foun- occasions, given law’s that static. tion is not so for determination concern dational say to, not at all this is innocence, As allude unbegrudging. It and guilt for to evidence instance, access warranted, in the first fully is advance light of scientific further to our over the burdens all to be concerned be) constitutionally required (or ought to recogni- is will justice that attend system or of course even as a matter permitted or right of tion of a constitutional be, only not It should not frequently. If such a post-conviction. DNA evidence correctness presumption exist, because of thereafter it is right is determined of con- by judgments final enjoyed rightly over to be concerned warranted equally in- indisputable separate, first, viction and entitlement governing the standards judgments, finality of such second, terest access, the use to such reality only but also because from courts, results obtained any, out the testing hold further rarely will DNA tests. can actually convicted that the possibility one, political, his regardless But no Rather, the crime. innocent of proven disposi- jurisprudential or philosophical, unwise to hold say that it is it is that a tion, be troubled should otherwise not, our that there is categorically in accordance convicted who person was be, a Constitution, post- can and never free, set ei- might thereafter be with law access to evidence right of conviction courts, the executive ther which, tests, it is conducting purpose provides absolute of evidence because inno- definitively establish agreed, can commit the did not fact proof he no holding is categorical cence. Such Such is he was convicted. crime for which categorical hold- than a less to be avoided justice system of of our an indictment not, can is innocence ing that actual high very which, insisting upon while be, freestanding never not, conviction, does proof for degree of simply confer To hold either right. doubt, all, beyond all proof require after finality not even that sanctity upon erro- capable producing and therefore deserves. interest concededly substantial and in- guilt of both neous determinations contrary, it would be a nocence. To II. justice of it system our high credit to is or is there of, of whether for, questions imperative need and recognizes the right post-conviction not a constitutional rare instances in those safety valve purposes access for of DNA evidence test- there such a right is of access ing, right, and there is such a the cir- evidence under the Constitution assertable cumstances under right may which that under section but that right asserted, are not ones that courts should abridged would be in this case were the particularly upon, relish decision so diffi- requested access denied. delicate, believe, cult and are the an- court, The majority of our in a holding However, questions. swers to these these significance of in its own right, reversed avoided, questions cannot long be now that the district court’s threshold judgment, And, indeed, the science is available. de- concluding that the assertion of a post- pending upon how one answers the thresh- conviction right to evidence for the pur question old whether assertion of pose testing STR DNA “necessarily right such a challenge access is direct implfies] the invalidity of [Harvey’s] con or, instead, to one’s conviction indepen- viction,” Horan, 278 F.3d dent constitutional claim under 42 U.S.C. (4th Cir.2002) (quoting Heck v. Hum these ultimate ques- constitutional phrey, 477, 486-87, (and, may

tions well be for the reasons (1994)). 129 L.Ed.2d 383 Conse are) below, recited directly believe pre- quently, not, it appellee held that did sented case before us. not, could state a claim for relief under applicable Under Supreme prece- Court Thereafter, section 1983. Id. although dent, if the post-conviction assertion of a so, need not have done majority pro right of access to for STR DNA hold, ceeded also to on the underlying testing is herein by appellee made fundamental question, constitutional “necessarily implies” invalidity of his right there is no under the Constitution to sentence, conviction or right then that post-conviction access evidence for STR adjudicated must be corpus; habeas testing DNA any circumstance, under lie, section 1983 claim does not aas matter any purpose. law; and, given that in this case leave sought was not to raise the issue succes- I would prefer not to have to address sively, the delicate question of whether threshold, even the much less the funda- such right exists under the Constitution constitutional, mental the pos- be, only not ought can but inbe inter- ture of an opinion respecting a denial prudence, est of avoided. On the other rehearing However, en banc. the panel’s hand, if the assertion of this does not constituting decision now the law of our necessarily imply invalidity-of the un- Circuit, proper and only context sentence, derlying but, conviction or rath- in which express my views on the im- er, properly understood as independent portant matters decided. being This on the underlying attack conviction case, I believe that the court erred in both sentence, then the instant directly case and, (if of its holdings, at least in the first unavoidably presents the exceedingly second), not also in fairly so. clearly difficult questions and delicate of whether such a I do not that the previ- constitutional believe assertion of a ously-produced forensic evidence post-con- access to evidence purposes viction of STR even arguably implies, let and, does, does if it exist alone “necessarily implies,” circumstances the invalidity For, under may which it petitioner’s sentence, asserted. conviction or review, judgment the distin- itas must in order to be foreclosed under guished district judge court held concludes, Heck v. Humphrey. If one argue to date, would have which he prop- is one I, access claim that the

would for 1983, separate basis a upon the then the his release under section erly brought of altogether. there is a of whether violation constitutional fundamental right to evi- post-conviction sum, understanding would on no testing DNA of STR purposes for dence evi- mere access to action for plaintiffs question, this As to decided. must be successful,” dence, “demonstrate “even majority, that believe, contrary to the also outstanding criminal any invalidity the residual, liberty interest core ais there 487, Heck, judgment.” Clause of Due Process by the protected Therefore, au- on the direct S.Ct. which, in cer- Amendment Fourteenth the Heck, was actual- properly thority of which circumstances, tain, gives rise limited very decision, “the action narrow ly quite right to access procedural ato ab- proceed to the be allowed should for evidence forensic previously-produced Id. bar to the suit.” of some other sence testing. of STR DNA purposes only to of a an assertion Such A. the is, wholly principle, unlike access question, procedural threshold As to the assertedly Heck for an asserted in claims arguable it not believe even do and arrest. Those illegal investigation merely permit ac- action reasoned, claims, were Supreme Court the purpose the of STR evidence for cess to common-law cause analogous the most invalidi- “necessarily implies” DNA prosecution, action for malicious id. Indeed, underlying conviction. ty 2364, required which 114 S.Ct. nothing at all necessarily implies such prove allege plaintiff-accused It certain- plaintiffs conviction. about proceed- prior termination (and arguably nothing more ly implies Indeed, the almost in his favor. Id. less) than does an good deal implies the claims between polar difference material right to of constitutional assertion unlawfulness for whose Heck “actions un- producible information exculpatory in- or render a sentence conviction Maryland, 373 U.S. Brady v. der valid,” and the id. at (1963), 10 L.Ed.2d merely to access evidence claim of im- thought necessarily to been has never tests, the of further results purpose underlying convic- invalidity of the ply the may prove even defendant’s of which any DNA tests that The results tion. confir- any is virtual guilt beyond question, may inconclu- eventually performed challenge not a mation that the latter is exculpato- sive, insufficiently they may be rather, sentence, but, or one’s conviction inculpatory. That they may or even be ry, constitu- independent of an an assertion exist, in and of possibilities these scientific right. tional itself, that the assert- suffices establish Supreme that the specific examples direct, not a or mere ed the line of dis- offered to illustrate Court indirect, attack on even that matter an a cause of action tinction between But if one’s conviction sentence. invalidity of a con- necessarily implies point, to establish enough were not, any does viction and one that remove that, in order to overturn it should be then As an illustration on this doubt score. exculpatory a conviction based former, example offered testing, Court appear might from was convicted a state who initiate defendant would have to an petitioner brings arrest and resisting a lawful at some entirely separate future action action section 1983 for an under unreason- such a claim from the one that the Court in able seizure violation of Fourth the said in its footnote 6 would necessarily Heck, Amendment. See n. imply the invalidity of the conviction. The 6, 114 S.Ct. 2364. Such an action would be plaintiff presents who a claim of constitu- barred, because, Court, explained the “[i]n right tional of access to evidence does not action, prevail order to in this [the even have rely upon an exception in law negate state would have to defendant] to avoid what would otherwise be the un- element of the offense of he has avoidable plaintiffs conclusion that the added)— convicted,” (emphasis been id. complaint of an unlawful search nec- being that element the arrest was essarily into draw his underlying lawful. conviction; the plaintiff who merely continuum,

On other end the seeks access to evidence for testing cer- an illustration of a cause of action that tainly required is not “negate an ele- proceed would be allowed to under section ment of the offense of which he has been Court offered the of a example the convicted,” Heck, 512 U.S. at 486 n. plaintiff brings who a section 1983 action order to prevail. in damages for an unlawful search The conclusion inescapable from these produced the evidence on the basis of (even examples if it were not from the which the plaintiff was Id. at convicted. itself) reasoning the n.7, opinion the 114 S.Ct. 2364. Because the fruits claim of of that (possibly illegal) might search ulti- access to evidence is not mately one in any respect admissible under the indepen- implies the invalidi- dent source or inevitable discovery ty doc- of the claimant’s conviction and sen- trines, their or admission be deemed tence. error, harmless the explained, Court Not does such a conclusion seem action, plaintiffs section 1983 “even if suc- unassailable under Heck v. but Humphrey, cessful, would not necessarily imply that sure, but, a twist to be it is all if not plaintiffs the conviction was unlawful.” fully, (frankly established two striking)

Id. (emphasis original). passages the majority’s from opinion. own That snugly the Court drew the fault first, In the majority the writes as follows: line to necessity that the success of the [Section] exists for the more limit- depend upon 1983 action proof that purpose ed underlying redressing conviction is invalid if violations it is to be foreclosed, is evident from its Constitution and federal insistence statutes. negation Harvey an offense made no argument element that his example first revealing its own itali- conviction violates the Constitution or imperative cization of the fact, the latter. law. argu- oral federal ment conceded that he received implications for the present case of under the law and so drawing the line tightly apparent. science in existence when he was con-

In the extent to which it implies invalidity victed in 1990. To upon Harvey confer conviction, underlying a claim of a wide-ranging constitutional of access to evidence any argument for DNA absence that his approach does not even that was said conviction underlying claim in its violated the Con- Court footnote 7 not necessarily imply stitution simply statute is federal conviction; invalidity beyond judicial further still is competence. added). B. (emphasis at 376 278 F.3d

Harvey, second, passage, combined And in the appellee’s understanding On the that, states, tellingly, equally majority contends, brought is, properly he claim as believe, 1983, I for 42 U.S.C. under evi- access to DNA seeking Harvey is identified, there is an that I have reasons reason and one for reason dence one the funda- to decide obligation affirmative undermining step in the first —as presented question constitutional mental believes that He his conviction. not, as the question That is by this case. bewill favorable DNA test results it, we are whether majority characterizes bring subsequent to allow him will right constitutional general “to declare conviction. his to invalidate motion challenge a continually inmate to every for ... his to use attempting ... is techno- whatever based on valid conviction set to evidence to claim access since may occurred advances have logical attack on his stage confine- future Harvey, 278 became final.” his conviction ment. added). it Nor is (emphasis F.3d 375 at added). 375, Stand- (emphases Id. 378 a consti- ] are to “[e]stablish[ whether we do, alone, against what they § 1983 to right under due tutional majority by the only eonclusory statements in step with forward retest evidence each pas- that these contrary, believe to the (emphasis Id. at forensic science.” that, beyond any question sages establish added). questions beauty of these own understand- majority’s even on the not) (whether they car- or is intended “nec- claim does not access ing, appellee’s answers, answers to easy them ry with invalidity of his convic- essarily imply” the likely not even be dis- there would tion, properly he has and therefore sent. of action section a cause alleged that we are The far narrower 1983. decide, considerably which is asked to more diffi consequently majority more difficult entirely clear how I am not hand, cult dismiss with back ap- It contrary conclusion. comes to a constitutional whether there exists however, mistakenly it effect pears, previously- right, post-conviction, one claim as it were analyzed appellee’s purpose for the forensic evidence produced to be right not alleging a constitutional particular, retesting light innocence of actual punished upon proof repre advance extra-ordinary scientific re- of the STR DNA (proof the form techniques, its STR and related emerge will from sented hopes appellee sults potential agreed it is have the if his which performed to have he tests wishes prove beyond all doubt instances This certain right accepted). to access is asserted Heck, person fact com requesting whether be foreclosed claim would indeed he was convict the crime for which “necessarily imply” the mitted it because would right The asserted sentenced. and sen- ed and conviction invalidity appellee’s material, exculpatory not one ap- issue is But is not claim tence. a fair trial. rather, necessary to ensure His, evidence is an anteced- makes. pellee 83, Brady Maryland, v. innocence See a factual ent claim to such It is not recited, 10 L.Ed.2d such a S.Ct. reasons claim. For the Herrera See right “factual innocence.” much “neces- way implies, in no less claim Collins, 506 U.S. invalidity appellee’s sarily implies,” the (1993). is it one of L.Ed.2d 203 Nor conviction sentence. preservation potentially exculpa conceptual to the and constitutional fact that un eluded, derstandably at the tory Young evidence. See Arizona v. same time that confounded, the majority and the blood, con currence, appellant, and appellee. even (1988). classically L.Ed.2d 281 At least as understood, it is not a of procedural As to this fundamental process. And neither it a typical question, understand majority process right. substantive due But it is a hold that there exists no such right of legitimately draws access to post-conviction, regard- principles underlay all of these —a less of the circumstance.2 But regardless any question ing 2. I do not believe that there is conviction violated the or a Constitution majority’s rejection right that the of a to ac- simply beyond federal judicial statute is com- post-conviction testing cess evidence for DNA (“In petence.”); holding Harvey id. holding, expression is a rather than a mere 1983, § failed to state a claim under we do opinion certainly litigants in dicta. And must not declare that criminal defendants should proceed understanding now on the that this not be allowed to avail themselves of ad- rejected right. majori- court has such a The Rather, technology. vances in our decision ty's rejecting any right statements such reflects the core democratic ideal that See, many unequivocal. e.g., Harvey, 278 conferred, entitlement is to be it should be (“The F.3d at 372 district court found that accomplished by legislative action rather than Harvey process right had a due of access to by a court as a matter constitutional federal right the DNA evidence and a to conduct added)); ("Har- right." (emphases id. at 377 testing upon using technology the evidence vey urged balancing us to use the test of that was unavailable at the time of his trial Eldridge v. Mathews to fashion a broad consti- and at the time his conviction became fi- process right tutional due of access to DNA (“In disagree.”); nal.... We at id. 375 n.l testing.... Establishing federally supervised a sum, concurring the second section of our right of via Eldridge] access Mathews [v. which, opinion according [in brother’s to the ongoing process would cut off legisla- th[e] [of n.3, majority, Harvey, see 278 F.3d at 380 place tive consideration] and the federal rejects variety concurrence ‘addresses and (ci- distinctly legislative posture.” courts in a § may of theories under which a 1983 action omitted)); tations ("Fashioning id. 380 government’s lie' for the permit refusal to right new federal constitutional that would testing] access evidence for DNA govern prisoners all in all states is not why broad-ranging right underscores inti- permissible way addressing exist.”); in the mated first section cannot id. post-conviction testing.”); ("Harvey id. 380 n.3 at 375-76 would have this court ("The opinion post-conviction concurring colleague of our fashion a substantive vague DNA out of whole cloth or the likewise underscores limitations of a § contours of the Due by prisoner Process Clause.... The 1983 action a state to secure possibility post-conviction developments, (emphasis evidence in federal courts.” add- science, simply great whether in law or ed)); J., too (King, concurring see id. at also justify judicially sanctioned constitutional (not- part concurring judgment) in the upon judgments.”); attacks final criminal id. ing agreement his majority's with the conclu- (“Establishing at 376 a constitutional due sions that "the district court erred in conclud- process right under 1983 to retest evidence Harvey's post-conviction denial of step with each forward in forensic science biological relating access to the perfectly judgments would leave valid in a rape require- his conviction contravened the perpetually unsettled state. This we cannot 83, Brady Maryland, ments of v. 373 U.S. do.”); ("While finality id. is not the sole 1194, (1963), 10 L.Ed.2d 215 and that justice system, value neither is Harvey's process rights due were violated subject abrogation to the kind of blunt the conduct of the Commonwealth Attor- recognition with occur of a due ney.”). post-conviction entitlement to access evidence.”); ("To majority begins its Part IIA treatment id. confer Harvey wide-ranging appellee's evidentiary merits of argument underly- merely absence that his claim as if to follow were a discussion v. (citing Ingraham security personal majority’s one understands whether 1401, 651, 673, 97 S.Ct. dicta,31 Wright, 430 U.S. or as mere holding as a conclusion (1977) Finney, and Hutto v. L.Ed.2d 711 no that, in its conclusion believe 2565, 678, 57 L.Ed.2d 522 98 S.Ct. 437 U.S. exists post-conviction to evidence of access Jones, 491- (1978))); Vitek Constitution, also the court (1980) L.Ed.2d 552 100 S.Ct. erred. a lib convicted felon retains (holding that interest, by his con extinguished erty to a finement, being transferred in not hold, that there believe, and would process); due without mental institution cf. right of such a does exist 78-79, Louisiana, 504 U.S. Foucha v. evidence. access to (1992) L.Ed.2d liberty retains residual (insanity acquitee have been society who Even those our in not interest, process, protected retain them freedom lawfully deprived of after to mental institution being committed residual, liberty pro interests substantive longer ill and no mentally longer he is no Fourteenth Amendment. by tected others); or Mor danger to himself poses a Romeo, See, 457 U.S. Youngberg v. e.g., 482, Brewer, 471, 92 408 U.S. rissey v. 2452, 28 307, 315, 73 L.Ed.2d 102 S.Ct. (1972) 2593, (holding L.Ed.2d 484 33 S.Ct. (“The (1982) [petitioner] fact that mere liberty has an “indeterminate” parolee that proper procedures under been committed many the core “includes interest which him of all substantive deprive does not liberty”). unqualified values of the Fourteenth interests under liberty (citation omitted)); And, indeed, liberty id. at interest the core Amendment.” that Anend- 315-16, (noting by the Fourteenth protected 2452 102 S.Ct. food, bodily from restraint —it- in ment —freedom liberty have interest incarcerated and in- self, conviction residually that survives shelter, holding and clothing, and Foucha, See, U.S. at e.g., 504 in liberty interest carceration. also retain prisoners great a to the come at too cost that lion implications allowing actions would does the finality And for that reason interest. underlying actually challenges to one's Id. majority hold that no such exists. proceed sec- to or sentence conviction ("In holding...."). so ("The Harvey, 278 at 375 See F.3d tion 1983. circumventing Heck are no implications of theory argue, that suppose one could 3. I However, matter."). follows what small holding possibly on a render a court cannot all, but, rather, a discussion not this absolutely to the question unless it is essential recognizing post-conviction implications of case, major- that the disposition of tire court’s evidence for right of access to rejection and ity’s discussions extensive testing, purpose in turn of DNA followed However, as a right can be dicta. such a possi- majority’s "[t]he conclusion that panel, never on a court I would member developments, wheth- bility liberty today, regard myself after in the as at science, great simply too er law or clear, in repeated, and majority’s face of the at- judicially sanctioned constitutional justify statements, supra, see 2 unequivocal note judgments.” Id. at tacks final criminal right of hold there is a constitutional is, majority its dis- That summarizes pur- post-conviction for recogniz- conclusion consign not with the testing. cussion poses I would never where, here, dicta, 1983 to they cause of action under section such statements challenges or sen- importance, to one's conviction as to raise on an issue of this are made finality, but detrimental of the court have obvious- tence would be which members different, signifi- To significantly ly given and the most careful consideration. with the would, view, cant, disrespect the par- my be to recognition of the do so in conclusion that my colleagues. precedent established post-convic- to access evidence ticular (“Freedom 80, bodily imprisonment from term of S.Ct. to death. See id. (“There always 283, at the core of restraint has been 118 S.Ct. is no sub liberty protected by the Due Process expectation stantive clemency.”). An arbitrary governmental from ac- Clause release, by executive, interest tion.”); Greenholtz v. Nebraska Penal In- commutation, through parole, pardon or he 1, 18, 2100, mates, 442 99 S.Ct. “is explained, indistinguishable from the (1979) (POWELL, J., concur- L.Ed.2d 668 confined, initial resistance to being and ring part dissenting part) (noting and already interest has been extin “[liberty bodily always from restraint guished by the conviction and sentence.” recognized has been as the core of the (internal Id. at quota S.Ct. liberty protected by the Due Process omitted); tions and citations see also id. at arbitrary governmental Clause from ac- 282, 1244 (quoting Connecticut tion”); Youngberg, see also 457 U.S. at Dumschat, Bd. Pardons v. Greenholtz, (quoting 102 S.Ct. 2452 465, 101 (1981)). 69 L.Ed.2d 158 (POWELL, 442 U.S. at 99 S.Ct. 2100 However, it is not entirely clear that a J., concurring part dissenting majority agrees of the Court that there is part), noting “[t]his interest [in liberty no interest at all in bodily freedom from survives one’s freedom restraint] incarceration”). post-conviction. criminal conviction and from confinement Justice O’Connor, for herself and three different slate, writing Were on a clean joined Justices from those who the Chief retains, conclude that one even after con Justice, separately wrote in Ohio Adult sentence, only protected viction and a Authority, Parole in concurring part and liberty interest in his core to freedom in concurring judgment only. Al restraint, bodily from but also a protected though disagreeing with the Chief Justice liberty pursue interest to his freedom from prisoner that a under sentence of death no confinement, though obviously after con longer retains a life cognizable interest viction these interests are residual and Clause, id.;4, under the Due Process see (to least) considerably say reduced 290-95, id. at (opinion also 118 S.Ct. 1244 from existing pre-conviction. those There STEVENS, J., concurring in part and in may even be an interest freedom from dissenting part) in (agreeing liberty itself, confinement although such a conclu interest in “extinguished” upon release is arguably sion is foreclosed precedent. lawful conviction and sentence and that Rehnquist Chief in writing Justice Ohio cognizable life Woodard, interest continues for one Authority Adult Parole death), 272, sentenced to 1244, Justice O’Connor did 118 S.Ct. 140 L.Ed.2d 387 (1998), appear agree to with the Chief Justice that opinion in an for four Members of Court, liberty being one’s interest “in -said that an individual who free from has lawfully “extinguished” been no confinement” is once he longer convicted possess cognizable sentenced, es a lawfully interest in his been convicted and see actual through release from Adult Authority, confinement Ohio Parole 523 U.S. at clemency, 288, 289, 118 whether he is sentenced to a S.Ct. 1244. STEVENS, J., Believing capital (opinion concurring part that the life of the interest in sentence, prisoner survives his conviction and dissenting part) (agreeing and in with Justice Justice O'Connor would have held that “some “only O’Connor that the most basic elements procedural safeguards apply minimal to clem- procedures required” clemency fair 289, ency proceedings.” Id. at 118 S.Ct. proceedings). 1244; see also id. at 118 S.Ct. 1244 But, noncapital prisoner’s if the even agree

But, appeared while she his pursuing both liberty between interest distinguish did not she point, ul- free from actually being her and in noncapital prisoners and freedom capital that “some minimal extin completely conclusion timate confinement were clemency apply sentence, safeguards I procedural upon conviction guished 118 S.Ct. 523 U.S. proceedings.” that, constituting clemency would hold also id. original); see (emphasis justice safety net of our distinguishing (observing, again without miscarriag prevention for the system noncapital prisoners, capital between Herrera v. justice, generally see es of in or- might be judicial intervention 390, 411-15, Collins, whereby “in face of a scheme der noncapital 122 L.Ed.2d to determine flipped a coin state official (as capital pris retains does the prisoner in a case clemency, or grant .whether to residual, believe), oner, sub least arbitrarily pris- denied where State ac meaningful liberty stantive interest clemency process”). to its oner existing executive mechanisms cess as the Chief Jus- importantly, And more him would enable clemency, which access his re- through implicitly recognized tice freedom from confinement pursue his between fusal to draw distinction claim upon the from the executive based constitutionally-protected, crime factually innocent of the that he is noncapital capital and the interests of id. at which he was convicted. See capital the “life interest” prisoner, (explaining 411-12 n. 113 S.Ct. 853 & (or not) to continue prisoner would seem mecha clemency is the “historic “liberty extent does the to the same relief based obtaining nism” for Just noncapital prisoner. interest” innocence). exists, interest factual This pos- capital prisoner continues as the believe, indepen no even there is he is in his life because sess interest liberty in these mecha dent interest alive, noncapital pris- so also does the still themselves; pro particular in the nisms in liberty to have a interest oner continue exercises by which the executive cesses freedom, days that at least for those his deny clemency; grant discretion to or his (Of on his sentence. remain to be served in that would result from or the freedom concludes, course, while the Chief Justice executive action obtained favorable that both the life and plurality, for his mechanisms, such as through these “extinguished,” be- liberty interests are under the Constitution would entitle one is.). Thus, I arguably neither lieve clemency procedure, particular a that, the issue am not convinced were clemency procedure, a processes within O’Connor, the before squarely put Justice to a clem pursuant or to actual release joined opinion who her three Justices See, e.g., Connecticut ency procedure. Authority, Parole and Justice Ohio Adult Dumschat, v. 452 U.S. Bd. Pardons Stevens, would con- these five Justices 2460, 458, L.Ed.2d 158 S.Ct. noncapital prisoner possess- that the clude (1981); Nebras v. Inmates Greenholtz in his liberty es no interest whatsoever Complex, ka Penal and Correctional confinement, con- having freedom from 1, 2100, 60 L.Ed.2d 668 99 S.Ct. capital prison- they cluded as did that (1979); Authority v. Adult Parole Ohio a interest possess er continues to life 272, 1244, Woodard, 118 S.Ct. 523 U.S. Due clemency cognizable that is under the (1998); v. L.Ed.2d 387 Olim Waki Process Clause. nekona, 238, 1741, prove beyond 461 U.S. 75 could any doubt that (1983).5 L.Ed.2d 813 crime, individual fact did not commit the constitutionally believe, required, as a that, I would further hold at least in matter of basic fairness. See Mathews v. circumstances, limited this substantive lib- 319, Eldridge, 893, 424 U.S. 96 S.Ct. erty protected through proce- interest is a (1976); 334, L.Ed.2d 18 id. at 96 S.Ct. 893 process right dural due previously- have (holding that produced process requires forensic evidence due either released “such STR, procedural to the convicted individual for protections as the particular related, at his or demands”); her own situation v. Greenholtz Ne- expense, by government or submitted Inmates, 13-14, braska Penal 442 U.S. at testing, for such with the test results to be 99 S.Ct. 2100 (applying Mathews in deter- provided thereafter to the convicted indi- mining procedures whether -surrounding vidual. parole decision process); satisfied due id. (“It 99 S.Ct. 2100 is axiomatic that

A right of access to evidence for tests process due which, ‘is flexible and calls for given particular such crime for which procedural protections particular the individual was as the convicted and the evi- ” dence that was offered situation government [requires].’ (quoting Morrissey Brewer, in support 2593)).6 trial guilt, defendant’s 408 U.S. at 92 S.Ct. Supreme proper analytical Court has held that the con determining framework for independent liberty victed does not have an procedural whether there exists a due (that is, parole apart interest in itself from one to such access. The asserted Greenholtz, procedure), created state see challenge access does not entail to the un- 668; 60 L.Ed.2d conviction, (at derlying and neither least com- itself, a commutation see Connecticut Bd. of fortably) is the equiva- state's denial of access Dumschat, 464(holding Pardons v. 452 U.S. at procedure lent to a state rule of criminal that "an inmate has 'no constitutional or in governing process by which one is tried right' herent tence”); to commutation of his sen guilty and found or innocent of criminal of- itself, pardon or in see id. at fense. (holding expec 101 S.Ct. 2460 that a "felon's However, demanding even were the more lawfully imposed that a tation sentence will pardoned applicable, be commuted or that he standard of Medina will I would come that, no expecta more substantial than an inmate's to the same conclusion in the limited tion, example, described, that he will not be trans circumstances I have access to the prison; simply ferred another it is a unilat constitutionally required evidence is as a mat- Moreover, hope”). eral the Court has also procedural process. ter of possess liberty held that does one inter Medina, reviewing state's allocation process, est in mere in the absence of competency of burden on the Wakinekona, substantive interest. See Olim v. trial, stand, inquired the Court whether "fun- 238, 1741, 813; 461 U.S. 103 S.Ct. 75 L.Ed.2d required damental fairness” a different allo- Authority see also Ohio Adult Parole v. Wood cation from the one made the state. In the 272, ard, 2, 1244, 523 U.S. 279 n. 118 S.Ct. inquiry, course of this the Court examined (1998) (noting 140 L.Ed.2d 387 that the asser whether the state's burden allocation "of- merely process tion of an interest in itself "is principle[s] justice fend[ed] ... of so rooted in cognizable (citing not a claim” Olim v. Waki people the traditions and conscience of our nekona, 249-50, 1741)). 461 U.S. at 103 S.Ct. 445, to be ranked as fundamental.” Id. at (internal quotations 112 S.Ct. 2572 and cita- Largely for the same reasons that I con- omitted). may tions be a There sufficient clude that a claimed constitutional of tradition, history appropri- defined at the access to evidence states a 1983, generality, support ate level of to exis- cause the of action under 42 U.S.C. procedural tence of Eldridge, process due under believe that Mathews v. rather than 437, California, Medina v. 505 U.S. Medina like that that I would hold 112 S.Ct. exists 2572, (1992), Mathews, provides 120 L.Ed.2d presence 353 the under were the vel non of 316 remark Sobeloffs Solicitor General half-century, pie, of a part the better

For is “chief business government’s re- that government been longer, not jus- victory to establish but not to achieve pro- due procedural of as a matter quired, Agurs, 427 tice”); States v. see also United fairness, Albright v. cess, Oli- see or basic 2392, 110-11, L.Ed.2d 807, 97, 49 96 266, n.6, S.Ct. ver; 114 S.Ct. 273 & 510 U.S. (1976) govern- that (explaining (1994), 342 produce to 114 127 L.Ed.2d ‘justice that “overriding [is] interest ment’s exculpatory evi- potentially all defendant prosecutor] that the done’[] [and shall be that the defen- to ensure in order dence law, the twofold aim of the ‘servant fair, Maryland, Brady see v. trial is dant’s escape not or 215; guilt shall 1194, of which is 83, 10 L.Ed.2d 83 S.Ct. 373 U.S. ” Berger v. (quoting Holohan, 103, innocence suffer’ 55 294 U.S. Mooney v. cf. 78, 88, States, 55 S.Ct. 295 U.S. (1935), 340, require- United 791 L.Ed. S.Ct. 7$ (1935))); 629, L.Ed. 1314 79 recognition that emerged out of ment California 485, 479, Trombetta, 104 S.Ct. justice system criminal of our the interest (1984) 2528, (noting L.Ed.2d 413 also 81 convicting guilty but is not might loose- of “what development are not Court’s the innocent ensuring constitutionally called the area of ly be Brady, 373 U.S. convicted. See wrongfully evidence” and ex- guaranteed as illustrative (quoting, 83 S.Ct. 1194 at ex- “deliver[ ] privileges these plaining disclo- principle requiring of fundamental the hands of the evidence culpatory into sure, of Justice inscription Department accused, the innocent thereby protecting point wins its United States “[t]he ensuring conviction from erroneous its citizens justice done whenever (also justice sys- criminal integrity of our courts”); 1194 at n. 83 S.Ct. id. omitted)). (citation tem” controlling prinei- of as reflective quoting, implicated). See already nongovernmental interest dispositive. We have that tradition (O’CONNOR, S.Ct. 2572 exculpatory also id. J., production required J., SOUTER, concurring joined by Brady) longer (per for a defendant to the quo, ("Against status judgment) the historical required at period time such had been than decided, opinion allow some Court’s Brady I read the see note the time was infra— countervailing weight given consider- to be Court confirms either that the will a fact that operation, considerations history support ations of fairness in require scant evidence, (more in Mathews. likely) like those evaluated that the much we access to reading the Court’s Brady Any charitable right recognized less process was due many put with of our general opinion would it at odds to be a level more than understood cases, we have in which discovery. pre-trial that of mere Medina, procedures that required states to institute regardless, in determin- But law nor required at common required were neither fairness whether fundamental allocation, by the text of the Con- explicitly commanded the Court federally-defined burden (citations omitted)); County stitution.” in addition whether considered factors cf. 833, 857, Lewis, 523 U.S. allocating Sacramento v. the burden there was a tradition of (1998) (KEN- L.Ed.2d 1043 S.Ct. the defendant. See to either the state or O'CONNOR, J., NEDY, J., 2572; 447-54, joined by concur- id. at U.S. at said, ("That that histo- ring) be added ("Discerning ba- must no historical starting point, ry but concluding and tradition are the that the allocation sis for ending point of all the substantive incompetence to the defen- cases the proving burden of upon process inquiry.”). Based the bal- due process, we turn to due consider dant violates upon ancing factors relied transgresses any recognized of all of these whether the rule Medina, I would conclude opera- the Court in principle of ‘fundamental fairness' omitted)); required under the stan- (citation of access is id. at 112 tion.” well, likewise in the precedent of that as contemporary practice); dard (analyzing id. 2572 fairness. (considering strength name of fundamental 112 S.Ct. 2572 that the convicted has been found There was a time when Given concealment and by jury, deprived liberty by a of his guilty were gamesmanship accepted, part and law, process longer and thus no parcel of the adversarial of the innocence, enjoys presumption no justice system. As Professor fairness, contend that in the one would wrote, Wigmore colorfully in discussion of sense, post-con- a requires civil discovery both and criminal at com- viction of access or a to disclo- mon law: anything approaching scope sure require To the disclosure to an adver- instance, required pre-trial. For sary of the evidence that pro- is to be it could never be maintained that fairness duced, repugnant sports- would be to all requires provided the convicted be manlike instincts. Thus the common law material, any potentially with and all ex- permitted litigant a to reserve his evi- culpatory information comes forth (tactics, documents, dential resources But, post-trial, required pre-trial. as is witnesses) moment, until the final mar- government previ- least where the holds shaling them at the trial before his sur- evidence, ously-produced forensic the test- prised dismayed antagonist. and Such concededly prove of which could be- law; was the spirit of the common and yond any doubt that the defendant did not in part such it still is. It did not defend commit the crime for which he con- was trickery or condone and deception; but victed, very principle same of elemen- regard it did the concealment of one’s tal fairness that dictates pre-trial produc- evidential preserva- resources and the tion potentially exculpatory of all opponent’s tion of the igno- defenseless post-trial production dictates infi- this rance as a fair and irreproachable ac- nitely category narrower of evidence. And companiment of the game litigation. recognition does so out of of the same

systemic fairness and ultimate See interests Wigmore, Discovery 1845 at 490 (3d 1940).7 But, truth. ed. in the interests of Holland, jurisdictions, 7. See also observing Rex v. 4 Durn. & E. of other and that if it (K.B. 1792) Eng. Rep. (reject evidence, grant were to access to the defen ing request discovery pros in a criminal reason, dant could "for like and observing prin ecution and that there is "no principle, same have asked the court to re ciple precedent granting to warrant” such quire produce the state to its witnesses before it, request grant and "if we were to it would counsel, regard his for their examination in law”) system subvert the whole of criminal case, knowledge might their of the that he (Lord C.J.); ("The Kenyon, practice id. at 694 thereby prepared be better to make his de indictments, law common and on informa fense; something lawyer for which no statutes, particular tion on shews it to be contend”) (citations omitted); State ex. rel. clear that this defendant is not entitled to Steele, 384, 385, Robertson v. 117 Minn. evidence, inspect prosecu on which the (1912) ("Shall county attorney, N.W. 1128 founded, trial.”) (Bul tion is till the hour of trial, prior compelled to disclose the ler, J.); ("It id. is clear that neither at com against person? evidence he has an indicted law, statutes, mon or under is the It must admitted that under the common right, defendant entitled as a matter of done.”); Wendling law it could not be v. Com application granted. have his And if we were monwealth, (1911) Ky. 137 S.W. 205 discretionary power granting to assume a ("We practice know of no that makes it in request, dangerous it would be in the upon the cumbent commonwealth to submit extreme, totally prece unfounded on inspection before the trial for the and exami dent.”) (Grose, J.); Hall, State v. 325 Mo. 102, 105, (1930) nation of the accused or his counsel articles (denying S.W.2d 1027 possession pre-trial in the that it request discovery, noting commonwealth disposition proposes such is consistent with will decisions introduce as incrimina 318 exonerating for truth, form a basis de could we fairness

both elemental defendant”). long ago, system this cidedly rejected full instead that insists favor of one might prove of all evidence disclosure above, right of the claimed suggest As See, Maryland; Brady v. e.g., innocence. proce partakes of both to evidence access 108, 96 427 U.S. at Agurs, v. States United And process. due dural and substantive had in that the Court (noting 2392 S.Ct. this, de the line of a claim such as “ with rejected” ‘sporting

Brady “expressly However, there faint. were marcation is ”). very dif theory justice’ Under process due procedural not the disclosure, it would full system of ferent and related evidence for STR intolerable,” “constitutionally simply be exists, v. that I see believe Graham 419, Collins, at 113 506 U.S. Herrera v. 1865, 386, Connor, 104 490 109 S.Ct. (concurring opinion of O’CON 853 S.Ct. (1989), I believe 443 then L.Ed.2d KENNEDY, J.), J., NOR, joined by prece Supreme Court under established from the con to withhold government straightforward might there well be dent all, victed, very evi no reason at ac process right to such substantive due him of his deprive that it used to dence Williams, v. generally Daniels cess. See in his absolute liberty, persists where he 331, 662, 327, 88 106 S.Ct. 474 U.S. the evidence and further tests of innocence (1986) the Due (holding that L.Ed.2d 662 could, of the crime given the circumstances government “bar[s] Process certain Clause against marshaled and the evidence fairness of the regardless actions trial, certainty to a at establish defendant them”); implement used to procedures factually innocent of actually is whether he Lewis, v. 523 U.S. County Sacramento he was convicted. the crime for which 1708, 856-57, 833, 140 L.Ed.2d 118 S.Ct. in this circumstance of access denial (1998) (KENNEDY, J., joined by 1043 contend, be, equivalent do I the strict O’CONNOR, J., concurring) (noting ex potentially destruction of of bad-faith longer can no be controverted “[i]t Arizona v. culpatory evidence. See component”); has a substantive due 333, Youngblood, 488 U.S. 109 S.Ct. 373 U.S. Brady Maryland, v. cf . system But in a 102 L.Ed.2d 281. 87-88, 1194; Herrera v. Col at 83 S.Ct. else, it (assum truth above all 417, 113 fairness and prizes lins, close to such as not perilously comes so a constitu that there exists ing arguendo (holding that upon proof See id. at 337 permitted. tional not to be executed innocence); preservation id. at process requires of actual (O’CONNOR, J., joined by KENNE police where “the themselves evidence omitted) (not DY, J., concurring; citations indicate that the evidence their conduct him, (1886) request pre (denying a for a against the ac N.W. 226 ting but both copy inspection a convicted co- have full and trial cused and his counsel should confession); People ex. rel. of defendant’s opportunity to examine them when free cf. Court, 24, 32, Howard, evidence.”); Supreme v. 245 N.Y. State v. Lemon fered as (Cardozo, J.) (1921) (accused (1927) (noting “be N.E. 84 N.W. 482 Iowa exhibits, glimmerings” "power ginnings of a inspect such as a or at least not entitled to jurisdiction grand jury); [other of criminal than weapon, in courts murder used Jordan, discovery compel of doc in New York] v. 207 Mass. Commonwealth (1911) justice,” but in the furtherance of (denying request in a homi uments N.E. 809 discovery denying of docu pre-trial inspection of au the motion for cide case for a trial). State, Santry would not be admissible topsy report); 67 Wis. ments that “with the if ing agreement legal satisfactorily fundamental But supported by executing that principle innocent longstanding these legal traditions and es inconsistent with the Constitution” and ob practices, tablished then the of ac serving “[r]egardless of the verbal might very cess grounded well be in the employed ... formula execution of patent of denying arbitrariness access to legally factually person and innocent would such evidence in any the absence of gov event”). constitutionally be a intolerable ernmental interest whatsoever the with yet The Court itself to come to rest holding of such. generally See Daniels v. on the of precise scope the substantive Williams, 474 U.S. at 106 S.Ct. 662 Clause, protections of the Due Process (“[T]he Due Process Clause ... ‘in was times, having rendered at relevant as is to tended to secure the individual from the case, seemingly conflicting opinions on arbitrary exercise of of powers govern protections beyond whether these extend ” ment!,]’ (quoting California, Hurtado v. enjoy respect those matters that in our 516, 527, 110 U.S. 28 L.Ed. 232 traditions, history Nation’s and also to the (1884); omitted)); County citations Sac arbitrary government forbiddanee con- Lewis, 833, 846, ramento v. 523 U.S. duct. And even as to each of these S.Ct. 140 L.Ed.2d (citing Dan strands of substantive due process, iels, describing arbitrary governmental ac engaged ongoing Court debates over tion including “the of power exercise quality history the kind and and tradi- justification without reasonable in the tion that will suffice a right to establish a legitimate governmental objec service of and range arbitrary governmental tive,” and holding “cognizable that the lev against action which the Due Process protects. Clause I would never el of executive abuse attempt power” necessary (or, matter, reconcile for that even to un- process for substantive due claim is “that derstand) all Supreme Court’s own conscience”); County which shocks the precedents this most sensitive area of Lewis, 856-57, Sacramento v. But, jurisprudence. arguably, its (KENNEDY, J., joined S.Ct. 1708 precedents those of access to O’CONNOR, J., concurring) (observing sufficiently evidence is supported by the “history starting tradition are the history and traditions that our criminal point, in all ending point but not cases the justice system be fair and that the inno- of the substantive due inquiry”). cent not wrongfully deprived of their predict am reluctant the Court in this liberty, and by practice, our now-settled subjective highly area of the law. Howev interests, adopted pursuit of the same er, that, excepting believe those Justices potentially exculpatory that all evidence be peculiarly ways inured in what can be the provided accused in advance of trial bureaucracy, it could indeed be (and even to post-trial, the convicted thought shockingly arbitrary gov that the previously government). known to the See ernment literally dispose of the evi supra; note 6 see generally Washington v. (if deny dence used liberty one of his 702, 720-22, Glucksberg, 521 life) not his before it would turn (1997) (holding L.Ed.2d 772 individual, that evidence over to the when traditions, history, legal Nation’s “[o]ur steadfastly he maintains his factual inno practices provide ‘guide- the crucial cence and asks that he be allowed to posts responsible decisionmaking’ subject which, that evidence to tests it is direct and restrain exposition our (citation omitted)). conceded, Due Process Clause” given the evidence introduced at evi- mere access to such conviction, Were prove could available. of support trial in it is in circumstances where dence denied the crime. absolutely innocent of him individual’s innocence prove to the possible doubt, incarcerated would all the beyond 3. to from recourse effectively foreclosed of access to evidence limited that the Su- very processes the executive (whether procedural are, collective- preme has instructed Court substantive) protected that I conclude is safety of our the net ly appropriately, exists, believe, Constitution, irre- I by the precisely in justice system criminal —and tests the results of spective of whether in which the Court itself the circumstances a for issu- could constitute basis performed recourse said that such repeatedly has or even be corpus a of habeas ance of writ lie, system the has namely, should where in the judicial a tribunal admissible before truly the innocent. by convicting failed of to obtain a writ proceeding course of Collins, 411-12, Herrera v. See But, if access to corpus. further habeas “[cjlemency (observing that 113 S.Ct. 853 process is unavailable —either judicial the Anglo-American in deeply rooted our the ultimate procedural of bar or law, remedy because and is the historic tradition freestanding justice rejection miscarriages of a preventing has been exhaust- judicial process inno- where punished actually right not to be (footnotes omitted)); id. at n. ed” of this recognition the case for cent—then “clemency has (noting is all the right of access to evidence mechanism for ob- provided the historic if, indeed, compel- it is not then stronger, of actual inno- taining relief’ on claims ling. judicial after conclusion of cence made 113 S.Ct. 853 proceedings); id. (“Executive clemency provided the ‘fail recognize a That the Constitution would justice system.”). safe’ our previously-pro- to limited of access say It to that further access thing is one should be unsur- duced forensic evidence justice apparatus of the criminal to the in- though Even the incarcerated prising. curtailed in system point must at some liberty deprived dividual has been of his finality. It is indisputable the interest of law, obviously he through that, say having cur- altogether another continuing pur- interest in the still has courts, one will tailed that access to of his freedom from the executive suit denied access to evidence even be pardon, commuta- through mechanisms of government’s present hands that he could tion, parole that have been established prevent in an effort to to the executive (if judi- by the executive not also from the miscarriage justice, after he has been ciary through processes). its At least executive, told that it is the role of the the circumstances where STR or related courts, jus- prevent miscarriages previously-provided foren- which, finality, long- tice because of are no prove sic evidence could the individual’s judicial through process. er remediable doubt, all interest is beyond innocence un- fundamentally Not such be would outweigh government’s sufficient fair; constitute, definition, would, comparatively insubstantial interest arbitrary governmental conduct. wholly withholding of access to the evidence C. I interest which submit is —an here, dispo-

non-existent where further resort the court’s given I need not reconsideration, is, law, deny en de- judicial process longer no sition to banc posed the contours of the on the precision post-conviction right fine with of ac- evidence, to evidence that I believe right of access cess to do not believe that It exists under Constitution. consequences there would be the dire however, that, even enough say, finality majority believes would matter, narrowly very definitional necessarily attend recognition such a Moreover, right. in addition to confine right, and on the of which majori- basis right through the definition at the cabining rejects ty I right. believe that outset, contemplate I would that the stan- majority’s regard fears are the governing may when this right dards failure, result of its I detail fully as more strict correspondingly asserted would below, to understand critical distinc- And, course, say of this is to limiting. tion between question of whether there nothing at all about the issue not before us is a right under the Constitution to access circumstances, today, any, if post-conviction purposes of which an individual whose STR DNA test DNA testing very STR and the different that he prove actually results is innocent of first, set questions relating proce- of to the crime for which he incarcerated and, required protect dures that right avail himself of would be able to of the writ second, to the conditions under which the in order to secure his re- corpus habeas (if all) right will be noticed on a writ of lease. corpus. habeas recognition As with the constitu- right, parameters tional these and stan- D. dards must be fleshed out with care. It ordinarily upon would be incumbent one a Upon careful examination of the ma- right begin who identifies the at least to jority’s opinion, appears it that it rests its specification. these tasks definition and contrary holding, that the Constitution But, write, posture in given the which provide right does not a of access to evi- imprudent would be for me to undertake post-conviction dence for STR DNA test- these formidable tasks herein. ing, largely perceived on the adverse ef- recognition right fects that of such a this,

I would observe however. In light upon finality have of criminal procedur- judg- of the inevitable substantive and al limitations that would have to be im- ments.8 majority rejects right refraining a from such wisdom decision of the grounds, access exists on at least two other important right possi- issue of constitutional portion well. In the latter of its Part IIA ble, they unpersuasive as reason for re- claim, appellee's discussion the merits of jecting right appellee the existence of the the court canvasses the various state and fed- analy- asserts. If conventional constitutional legislation that has eral been introduced to yields right sis the conclusion that there is a provide post-conviction testing, and under the Constitution to access evidence holding concludes that the Constitution post-conviction purpose for the of DNA test- provides right post- of access to evidence ing, pending legis- then the fact that there are judicially legisla- preempt conviction "would proposals lative that would secure the same Harvey, tive initiatives this area.” See irrelevant, right simply except perhaps, as I ("Establishing F.3d at 377. id. See also note, entirely separate pru- to the right federally supervised via Math- Madison, Marbury dential forbearance. See v. Eldridge, 424 U.S. [v. ews Cranch) 137, (1803). (1 2 L.Ed. 60 (1976)] 47 L.Ed.2d 18 would cut off this on- majority's opinion, In Part IIB of the place going process and the federal courts rejects appellee's argument Brady court posture.”). distinctly legislative Maryland establishes the of access for respect, With while these observations are appellee argues: ones, suggesting important perhaps even judicially sanctioned constitutional majority’s justify discus-

The lion’s share appellee’s merits of sion of the substantive judgments. attacks final in Part IIA of the court’s appears claim (“While ....”); finality is holding id. so There, having finally concluded opinion. justice value the criminal sole necessarily implies appellee’s action subject the kind of neither is it system, invalidity “[a]s of his conviction and abrogation that would occur with blunt such, under 42 U.S.C. an action [that] a due entitlement to recognition of ],” Harvey, 278 F.3d at lie[ 1983 cannot evidence.”). access to DNA fundamental the court turns to the there exists a consti- question of whether sug- make the hesitate even to While post-con- to access evidence tutional avoid the gestion, impossible it is almost viction, (“Harvey would have this see id. that, in this discussion re- conclusion from post- court fashion a substantive appellee’s asserted constitutional jecting testing out of whole cloth conviction DNA majority fundamentally confused right, the vague the contours of the Due Process or and section or at least section 1983 Clause.”). following pages, In the two the of action interplay the of these two causes exclusively focuses majority’s discussion is, post appears -Heck. That the of such a consequences recognition the of majority underlying conflated the section society’s finality interest in the of right for (not inquiry) the Heck of inquiry judgments. See id. at 375-76. right of access to whether a constitutional focus, with this And consistent exists, post-conviction with explanation of for the court’s sentences merits, rejection appellee’s of claim on altogether inquiry different section 2254 of offered is the adverse the sole rationale cognizable whether a claim is on habeas that would finality effects on the interest Indeed, evidence that corpus.9 right felt if a constitutional were such just compelling. all but court did (“The possibili- id. at 376 recognized. See First, appears to be the case from ty post-conviction developments, wheth- science, rejection simply great in law or too the court’s constitutional er Heck, Brady per Harvey does not state a valid under section 1983 then the consti- [v. Maryland] not chal- right claim because he is tutional does not exist at all. asserted See, ("In lenging prosecutor’s a to turn over Harvey, holding failure e.g., 278 F.3d at 376 that, material, exculpatory evidence Harvey has failed to state a claim under suppressed, deprive would the defendant § we do not declare that criminal de- Harvey a fair trial. received a fair trial fendants should not be allowed to avail them- given opportunity to test the and was Rather, technology. selves advances in our during using the DNA evidence his trial ideal decision reflects the core democratic technology best available at the time. conferred, it that if this entitlement is to be (citations Harvey, 278 F.3d at 378-79 omit- accomplished by legislative should be action ted). rather than a federal court as a matter of words, right.”). constitutional In other fact, times, majority In even seems to majority appears almost to believe that Heck) (under question of whether conflate the resolve the issue under Heck is to resolve the particular right may be asserted under sec- question there is not ultimate of whether is or question tion 1983 and the of whether such right under the Constitution to access evi- right the Constitution at all. exists purposes dence of DNA through majority's There seems to course course, testing. Of such would be to mistake analysis assumption that if a an unexamined as, holding respect cognizance Heck’s with plaintiff's necessarily section 1983 action im- instead, respect holding to ultimate plies invalidity underlying with convic- tion, cognizable right. fails to state a claim thus is,, substantively, of the adverse effect whether there such a right on the basis right necessary have is either of such a warranted. recognition finality criminal convictions. See on the Second, appears the confusion that logi- 375-76; id. at Harvey, 278 F.3d at see also cally foregoing, actually from the appears presented the issue as wheth- (framing explicitly opinion. the court’s a criti- every a constitutional er there is paragraph, cal fear reveals the continually challenge a valid inmate “to majority’s extent of both the misunder- technological based on whatever conviction standing scope of section 1983 and occurred con- may advances have since his its confusion over the difference between final”). If viction became the court had that cause of action and corpus habeas understood the distinction be- properly (perhaps generally, but at post-Heck), least 2254, it tween section 1983 and section the court writes as follows: resolved the of wheth- would have § Heck teaches that 1983 does not exist er there exists a constitutional exclu- provide an open-ended assault on the sively through conventional constitutional Instead, finality judgments. of criminal analysis, rather resort to than exclusive pur- 1983 exists for the more limited finality, considerations such as prudential pose redressing violations of the Con- influence questions cog- which often do stitution and federal statutes.' corpus. nizance on habeas argument has made no that his convic- tion violates the Constitution or In to what is the conventional response fact, argument law. at oral federal legal analysis appellee’s by claim the Harvey conceded that he received due concurrence, majority the adds a footnote process under the law and under the in which it lists the various constitutional in science existence when he was con- the existence of a constitutional bases for in upon Harvey victed 1990. To confer right to evidence that were consid- wide-ranging in rejected by ered and the concurrence. See any argument the absence that his However, Harvey, 278 F.3d at 380 n.3. underlying conviction violated the Con- there, majority even does not embrace simply or a is stitution statute federal analysis either the concurrence’s or its beyond judicial competence. conclusions; statement, in opaque added). Harvey, (emphasis 278 F.3d at 376 says only concurrence “likewise say, Harvey making it to if is no Suffice § underscores the limitations of a argument underlying that his conviction is prisoner action a state to secure evi- unconstitutional, not, then it follows as the dence in federal courts.” Id. concludes, majority that he not assert- has (cid:127) course, if Relatedly, majority had ed a cause of action under section interplay but, rather, understood the between these that he has asserted such a (as post-Heck, two causes of action then it opposed cogniza- cause of action to one habeas). would not even have addressed the merits corpus It is habeas ble For, concluded, appellee’s claim. if it is unconstitution- that exists to relieve one of sentences, majority, as it was that the section al convictions and not section 1983; that a necessarily implies very 1983 action the invalidi- it is for this reason conviction, must, in order to obtain ty underlying petitioner then under habeas (but relief, only, Heck it note 9 show that his conviction resulted follows follows see cognizable from a violation of the Constitution. supra) that there is no section requirement There is no under section inquiry 1983 action. And no further into showing completed 1983 that such a be made. This is in Part IIA. purpose precisely Supreme inquiry reason for the Heck into whether a plaintiffs holding in Heck that a Court’s cause “necessarily section 1983 claim implies” action under section 1983 fails to state a invalidity of the underlying conviction may granted claim for which relief if it is to determine whether that claim is necessarily an attack on conviction or challenging effect one the fact or duration sentence; otherwise, section 1983 could in- confinement, may only and thus deed require- be invoked circumvent the brought It under section 2254. is unsur- ments limitations of section 2254. therefore, prising, majority’s that the rea- soning question and conclusion on this re- Finally, my removing any view re- peats almost in verba the reasoning haec maining question majority’s over con- and conclusion from its discussion of the fusion between section 1983 and section question identical in Part IIA: -Heck, post concluding after in Part IIA of opinion appellee its failed to Warren, Like the prisoner Hamlin [v. state a claim under section 1983 because (4th Cir.1981)], Harvey F.2d 29 necessarily implies his cause of action challenging validity of his conviction conviction, invalidity of his the court none- though even he seeking is not immediate proceeds theless IIS Part to undertake release. seeks access to DNA (to analysis the identical the one that it evidence to attempt prove that he is IIA) undertook in Part order to deter- trying innocent. He is to use a just mine the identical that it had action as a discovery device to overturn answered in Part IIA. It is almost as his state conviction. The Supreme majority had written Part IIB of opin- its Court made clear that habeas cor- Heck, ion unaware of and then added Part pus relief is available “to attack future Thus, IIA subsequently. expressly after confinement and obtain future releases.” reaffirming in the first sentence of Part Preiser, 411 U.S. at 93 S.Ct. 1827. IIB it had held in Part IIA that precisely This is what Harvey is at- “Harvey fails to state a claim under tempting to do—use his claim for access 1983,” § Harvey, 278 F.3d at the ma- to evidence to set stage for a future jority undertakes to determine whether Therefore, attack on his confinement. Harvey’s “claim falls within the federal effectively his claim is a petition for a statute,” because, habeas corpus says, it writ of habeas corpus. does, it the claim cannot un- proceed “[i]f Harvey, 278 F.3d at 378.10 added). § der 1983.” Id. at (emphasis

This, course, inquiry, is the Heck Accordingly, even if majority were just which the majority had undertaken correct that there is no constitutional right IIA, rejecting appellee's In argu- Part 10. lead to his exoneration. Because he seeks proceed ment that he could under section § to use 1983 to invalidate a final state 1983, the court reasoned thus: conviction way whose lawfulness has ‘in no why [W]e see no reason [the] [of rationale impugned, been his suit fails under Heck. apply Heck] would not ain situation where injunctive a criminal defendant seeks relief Harvey seeking ... is access to DNA evi- necessarily implies invalidity of his dence for one reason and one only— reason Harvey's § conviction. 1983 claim does step undermining as the first his convic- just biological that. He seeks access to tion. He believes that the DNA test results challenge evidence to the fact or duration of will be favorable and will allow him to his confinement. claims that he is bring subsequent motion to invalidate his innocent and that further DNA will purpose evidence for the duced forensic evidence for the to access post-conviction conducting possibly testing. it cannot STR testing, of DNA purpose Nei- the reasons that it articulates. be for I appellee’s believe that claim is one that reasons, that is analysis nor the ther may properly pursued under section them, critical can withstand built that, I also believe in limited cir- scrutiny. cumstances, right there is a under the previously-produced Constitution to access III. forensic evidence purpose narrow testing, of STR DNA the results of which that, I it not summary, believe were presented could be for consideration to intervening the state court’s order fol- appropriate executive branch officials— this lowing panel’s opinion, release of our whether or not the claimant would enti- appropriate would have been an one case present tled to such results before a court first, full court to whether for the consider in a petition corpus. for writ of habeas right of access to post-conviction a claimed evidence for previously-produced forensic Therefore, had the entire court under- DNA test- purpose performing STR panel’s taken reconsideration of deci- under 42 properly brought U.S.C. sion, I would have held that appellee prop- second, § properly erly asserted a cause of action under 42 brought provision, under this whether limited, § U.S.C. 1983 and that there is a there is such a under the Constitu- ac- explained tion As United States. previously-produced cess to forensic evi- above, majority the court believe purpose dence for the of STR and related held, incorrectly testing. Having concluded that such asser- DNA so right fails to a claim under proceeded identify precise tion of state have cir- panel and that unanimous section 1983 cumstances and standards under which and, incorrectly right may held that does be asserted11 thereaf- the Constitution ter, post-conviction right, appellee to determine whether provide (judi- any purpose circumstance or for been denied his under the Constitu- executive), previously-pro- cial or to access tion.12 such, newly en- conviction. As an action under 42 fered discovered evidence him, lie. jury U.S.C. 1983 cannot tire before the convicted record (citation omitted). Harvey, 278 F.3d 375 proof of [find] 'no rational trier of fact could ") guilt beyond (quoting a reasonable doubt.' Compare, e.g., Augurs,

11. United States v. 307, 324, Virginia, Jackson v. 443 U.S. 19, (noting U.S. at 111 & n. 96 S.Ct. 2392 2781, (1979)). S.Ct. 61 L.Ed.2d 560 newly to obtain a new trial based on discover- evidence, satisfy ed the defendant has "to imagine any 12. I cannot circumstance under demonstrating severe burden of that [such] appellee have been entitled to probably ac- would have resulted in case, damages appellant from in this even quittal”); Immigration and Naturalization ultimately were it to have been decided that Abudu, 94, 12, Service v. 107 n. appellee's con- had been violation 904, (same), there (1988) 99 L.Ed.2d with post- Collins, of access to evidence stitutional Herrera v. 506 U.S. at pro- that the evidence must be conviction and showing (stating that the "threshold legal landscape appellee. vided to Given of actual would necessar- [a innocence] claim against which it would be held that such a ily extraordinarily high”); id. Constitution, J., (WHITE, protected by right is it would concurring judg- S.Ct. 853 relief, however, ment) ("To appellant vio- impossible to conclude that [one be entitled to denying appel- clearly law in claiming very lated established actual would at the innocence] fact, exist- required prof- lee the access he seeks. least be to show that based on I concur in to- International Brotherhood of Electrical Accordingly, although Workers, AFL-CIO, my Amicus day’s colleagues decision not to court, bring the full I do Curiae. this case before so because of the state court’s inter- 01-1572, Nos. 01-1681. vening order that the withheld evidence be Appeals, United States Court of testing. Though I provided for STR DNA Fourth Circuit. satisfied, pro- am because of this order of duction, rehearing that a denial of en banc Argued Dec. 2001. partic- of this proper disposition is now the Decided March case, our hope panel’s ular conclu- will not further review in the sions evade banc, sitting our court en

future —if

then otherwise. INCORPORATED, Petitioner,

ANECO

v.

NATIONAL LABOR RELATIONS

BOARD, Region 12,

Respondent,

International Brotherhood of Electrical Local

Workers Intervenor.

International Brotherhood of Electrical AFL-CIO,

Workers, Amicus

Curiae.

National Labor Relations

Board, Petitioner, Incorporated, Respondent,

Aneco

International Brotherhood of Electrical

Workers Local Intervenor. law, Attorney munity regardless any holding by the Commonwealth’s acted follows, therefore, entirely reasonably. It court. qualified he would have been entitled to im-

Case Details

Case Name: James Harvey v. Robert F. Horan, Jr., Commonwealth's Attorney, County of Fairfax, Jennifer Thompson Karen R. Pomer Jeri Elster, Amici Curiae

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 28, 2002

Citation: 285 F.3d 298

Docket Number: 01-6703

Court Abbreviation: 4th Cir.