Harvey v. Horan, Civil Action No. 00-1123-A.

• Decision Date: 29 September 2000
• Docket Number: Civil Action No. 00-1123-A.
• Citation: 119 F.Supp.2d 581
• Court: U.S. District Court — Eastern District of Virginia
• Parties: James HARVEY, Plaintiff, v. Robert F. HORAN, Jr., Commonwealth's Attorney County of Fairfax, Defendant.

119 F.Supp.2d 581

James HARVEY, Plaintiff, v. Robert F. HORAN, Jr., Commonwealth's Attorney County of Fairfax, Defendant.

Civil Action No. 00-1123-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 29, 2000.

Lisa Bondareff, Kemler Zwerling & Kemler, Alexandria, VA, for plaintiff.

Jack Lewis Gould, Fairfax, VA, for defendant.

ORDER

BRYAN, District Judge.

This matter is before the court on defendant's motion to dismiss, pursuant to Fed. R.Civ.P. 12(b)(6). Upon consideration of the parties' submissions and for the reasons set forth below, it is hereby

ORDERED that:

Defendant's motion to dismiss is DENIED.

Discussion

The plaintiff, James Harvey, was convicted of rape and forcible sodomy on April 30, 1990 after a jury trial in Fairfax County Circuit Court. Conventional serology testing on the items recovered from the rape kit revealed the presence of spermatazoa on the victim's mouth smear, vaginal smear, thigh smear and in two swab samples. Spermatazoa was also detected on the victim's pantyhose. Neither plaintiff nor his co-defendant, who was also convicted, could be excluded as a result of the serology testing. The plaintiff was sentenced to twenty-five years for the rape and fifteen years for forcible sodomy. Although the court granted the plaintiff an extension of time until January 24, 1991 to file a petition for appeal, he did not do so.

Alleging that a failure to order DNA testing on the biological evidence constituted a deprivation of due process, the plaintiff filed a 42 U.S.C. § 1983 action against the Governor of Virginia in this court on February 25, 1994. Upon the court's ruling that the plaintiff should refile his § 1983 claims as a petition for writ of habeas corpus, plaintiff did so, alleging that the Governor had refused to order the DNA test which could prove plaintiff's innocence. The court dismissed plaintiff's petition on July 25, 1995, pursuant to Va. Code Ann. § 8.01-654(B)(2), finding that plaintiff had failed to fully exhaust state remedies, as required by this code section.

In 1996, in an effort to locate the biological evidence, the Innocence Project, on plaintiff's behalf, contacted the Virginia Division of Forensic Science. In response to the request, director Dr. Paul Ferrara recommended that the evidence be requested from the Fairfax County Commonwealth's Attorney's office. In February 1998, the Innocence Project contacted Ray Morrogh, a Commonwealth's Attorney for Fairfax County, with a request for assistance in locating the biological evidence. The Innocence Project alleges that Mr. Morrogh never responded to the request for assistance. In July 1999, the Innocence Project made another request to Todd Sauders, Assistant Commonwealth's Attorney for Fairfax County. Mr. Saunders stated in an October 1999 letter that in his opinion, if that one of the perpetrators of the rape did not ejaculate, as plaintiff contends happened, and plaintiff was excluded as the contributor of the genetic material this would not prove the plaintiff's innocence and his case did not warrant post-conviction DNA testing. However, plaintiff insists that the victim identified him at trial as the first assailant. He contends that the victim testified that the first assailant did ejaculate and that the second assailant did not ejaculate.

The plaintiff asserts that he is a perfect candidate for post-conviction DNA testing, contending that the results could provide exculpatory results, which could be a basis for proving innocence. The plaintiff concedes that the results could also be inconclusive or could demonstrate his guilt. The plaintiff argues that the remedy he seeks, performing the DNA tests, does not require his release nor does it invalidate his outstanding criminal judgment.

Plaintiff alleges in his current complaint, brought pursuant to 42 U.S.C. § 1983, that the defendant, Commonwealth's Attorney Horan, acting under color of state law, has deprived him of his constitutional rights. Plaintiff's claims for relief are: (1) that the defendant has deprived plaintiff of due process under the Fourteenth Amendment by refusing to search for and provide the evidence for DNA testing; (2) that by refusing to provide the evidence for DNA testing, defendant has deprived plaintiff the opportunity to show he is innocent, in violation of the Fourteenth and Fifth Amendments; (3) that by refusing to search for and provide the evidence for DNA testing plaintiff cannot make a truly persuasive showing of innocence, in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment; (4) that by refusing to search for and provide the evidence for DNA testing, the plaintiff is deprived of his right to present evidence of innocence before a court or pardon board in violation of the Confrontation and Compulsory Process Clauses of the Sixth Amendment; (5) that by refusing to search for and provide the evidence for DNA testing, defendant has deprived plaintiff of the opportunity to litigate his claim that he is innocent, effectively denying him access to the courts in violation of the Fourteenth and First Amendments; and (6) that defendant...