278 F.3d 370 (4th Cir. 2002), 01-6703, Harvey v. Horan

Docket Nº:01-6703
Citation:278 F.3d 370
Party Name:JAMES HARVEY, Plaintiff-Appellee, v. ROBERT F. HORAN, JR., Commonwealth's Attorney, County of Fairfax, Defendant-Appellant. JENNIFER THOMPSON; KAREN R. POMER; JERI ELSTER, Amici Curiae.
Case Date:January 23, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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278 F.3d 370 (4th Cir. 2002)

JAMES HARVEY, Plaintiff-Appellee,


ROBERT F. HORAN, JR., Commonwealth's Attorney, County of Fairfax, Defendant-Appellant.


No. 01-6703

United States Court of Appeals, Fourth Circuit

January 23, 2002

Argued: September 26, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-00-1123-A)

Before WILKINSON, Chief Judge, and NIEMEYER and KING, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Niemeyer joined. Judge King wrote an opinion concurring in part and concurring in the judgment.

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[Copyrighted Material Omitted]

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COUNSEL ARGUED: Jack L. Gould, Fairfax, Virginia, for Appellant. Peter J. Neufeld, THE INNOCENCE PROJECT, New York, New York, for

Appellee. ON BRIEF: Barry C. Scheck, THE INNOCENCE PROJECT, New York, New York; Lisa B. Kemler, ZWERLING & KEMLER, P.C., Alexandria, Virginia, for Appellee. John D. Cline, FREEDMAN, BOYD, DANIELS, HOLLANDER, GOLDBERG & CLINE, P.A., Albuquerque, New Mexico, for Amici Curiae.


WILKINSON, Chief Judge:

James Harvey, a Virginia prisoner, seeks a constitutional right of access to DNA evidence under 42 U.S.C. 1983. The district court found that Harvey had a due process right of access to the DNA evidence and a right to conduct testing upon the evidence using technology that was unavailable at the time of his trial and at the time his conviction became final. The district court also concluded that Harvey's claim was not in effect a petition for a writ of habeas corpus. Page 373

We disagree. Because substantively Harvey fails to state a claim under 1983, and because procedurally his claim amounts to a successive petition for a writ of habeas corpus brought without leave of court, we reverse the judgment of the district court and remand the case with directions to dismiss it.


On April 30, 1990, James Harvey was convicted of rape and forcible sodomy by a jury in Fairfax County Circuit Court. He was sentenced to consecutive terms of twenty-five years for the rape and fifteen years for the forcible sodomy. Harvey did not appeal his conviction but did file a state petition for a writ of habeas corpus which was rejected by the Virginia Supreme Court in 1993.

Conventional serology testing on the items recovered from the rape kit revealed the presence of spermatozoa on the victim's mouth smear, vaginal smear, and thigh smear, as well as in two swab samples and on the victim's pantyhose. Neither Harvey nor his codefendant, who was also convicted, could be excluded as a result of the Restriction Fragment Length Polymorphism ("RFLP") DNA testing available at the time of the trial. And there was other substantial evidence of Harvey's guilt. For example, Harvey's co-defendant testified that Harvey instigated the attack and that Harvey admitted he did not ejaculate while raping the victim. The victim heard one perpetrator call the other "Harv." Another prosecution witness, Curtis Ivy, told the police that Harvey confessed his involvement in the attack. Ivy testified that Harvey owned the maroon shirt identified as belonging to one of the assailants and that Harvey wore the shirt on the date of the attack. Harvey also threatened Ivy shortly before his trial, further suggesting Harvey's guilt.

On February 25, 1994, Harvey filed an action in federal district court against the Governor of Virginia pursuant to 42 U.S.C. 1983. Harvey alleged that the state's failure to retest the biological evidence in his case violated his rights under the Due Process Clause. The district court ruled that Harvey's claim for additional DNA testing had to be refiled as a petition for a writ of habeas corpus under 28 U.S.C. 2254. On July 25, 1995, the district court dismissed Harvey's petition. The court found that Harvey had failed to exhaust state remedies and had failed to raise his claim for DNA testing in his state petition for habeas corpus. Therefore, the district court concluded that any attempt by Harvey to raise his claim would be barred by Va. Code 8.01-654(B)(2) and that Harvey's claim was procedurally defaulted. Because Harvey had not shown cause for his default in the state courts or prejudice resulting therefrom, the district court concluded that Harvey's claim had to be dismissed. Harvey did not appeal the district court's ruling.

In 1996, the Innocence Project contacted the Virginia Division of Forensic Science on Harvey's behalf in an attempt to obtain the biological evidence at issue for Short Term Repeat ("STR") DNA testing. STR DNA testing was unavailable at Harvey's trial and at the time his conviction became final. The Division of Forensic Science recommended that the evidence be requested from the Fairfax County Commonwealth's Attorney's office. In February 1998 and July 1999, the Innocence Project requested the biological evidence from the Commonwealth's Attorney.

In October 1999, an Assistant Commonwealth's Attorney denied Harvey's request for access to the evidence. The attorney stated that even if Harvey was excluded as a contributor of the genetic material, it would not prove his innocence because the victim had stated that only one perpetrator had ejaculated. The attorney concluded that postconviction DNA testing was not warranted because there was no reasonable Page 374

likelihood that it would establish Harvey's innocence.

Harvey then filed this action in the district court pursuant to 42 U.S.C. 1983. Harvey alleged, inter alia, that Commonwealth's Attorney Robert Horan had deprived him of a due process right of access to the DNA evidence. Harvey stated that at trial, the prosecution identified him as the first assailant. The victim testified that the first assailant was the only one who orally sodomized her. And the victim was unsure whether the first assailant had ejaculated. Therefore, Harvey argued that if the STR DNA test showed that he was not the source of sperm on the victim's mouth smear, or if it showed two genetic profiles other than his on the victim's vaginal swabs or pantyhose, the test would provide a basis for Harvey to prove his innocence.

The district court found Harvey's arguments persuasive, holding that he had a due process right of access to the DNA evidence under Brady v. Maryland, 373 U.S. 83 (1963), and a right to conduct DNA testing on the biological evidence using the new STR technology. The court also concluded that Harvey's claim was not in effect a petition for a writ of habeas corpus because Harvey was not seeking immediate release from prison or challenging his conviction. See Harvey v. Horan, 119 F.Supp.2d 581 (E.D. Va. 2000); Harvey v. Horan, No. Civ.A. 00-1123-A, 2001 WL 419142 (E.D. Va. Apr. 16, 2001). Commonwealth's Attorney Horan appeals.


Commonwealth's Attorney Horan contends both that 1983 is not an appropriate vehicle for Harvey's action and that procedural flaws require dismissal of Harvey's claim because it is in reality a successive petition for a writ of habeas corpus brought without leave of court. Harvey responds that his fundamental right to prove his innocence by retesting the DNA evidence in his case is protected by the Due Process Clause and that 1983 is an appropriate avenue to vindicate his claim.

While we agree with Harvey that the question of guilt or innocence lies at the heart of the criminal justice system, we also believe that the proper process for raising violations of constitutional rights in criminal proceedings cannot be abandoned. Because the substance of a claim cannot be severed from the proper manner of presenting it, we find Harvey's 1983 action to be deficient.


Substantively, Supreme Court precedent makes clear that Harvey has failed to state a claim under 1983. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a convicted criminal defendant cannot bring a 1983 action that would "necessarily imply the invalidity of his conviction or sentence" unless he proves that his "conviction or sentence has already been invalidated." Heck, 512 U.S. at 486-87.

In Heck, the Supreme Court concluded that bringing a 1983 action for damages arising from a still valid state conviction would be jumping the gun. In reaching its conclusion, the Court analogized a 1983 claim that challenges the legality of a state conviction to the common law cause of action for malicious prosecution. The Court stated that "[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused." Heck, 512 U.S. at 484. The Court emphasized that civil tort actions are simply "not appropriate Page 375

vehicles for challenging the validity of outstanding criminal judgments." Id. at 486. Allowing them to be used for that purpose would undercut the long-standing concern not to undermine the finality of criminal convictions through civil suits. Id. at 484-86. The Court noted in conclusion:

We do not engraft an exhaustion requirement upon 1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.

Id. at 489.

While Heck dealt with a 1983 claim for damages, the Court did not limit its holding to such claims. And we see no reason why its rationale would not apply in a situation where a criminal defendant seeks injunctive relief that necessarily implies the invalidity of his...

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