303 F.3d 339 (5th Cir. 2002), 02-20861, Kutzner v. Montgomery County

• Docket Nº: 02-20861.
• Citation: 303 F.3d 339
• Party Name: Richard William KUTZNER, Petitioner-Appellant, v. MONTGOMERY COUNTY, District Attorney's Office; Michael A. McDougal, Montgomery County District Attorney in his official capacity; Guy L. Williams, Montgomery County Sheriff in his official capacity; Joye M. Carter, M.D., in her official capacity, Respondents-Appellees.
• Case Date: August 07, 2002
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 339

303 F.3d 339 (5th Cir. 2002)

Richard William KUTZNER, Petitioner-Appellant,

v.

MONTGOMERY COUNTY, District Attorney's Office; Michael A. McDougal, Montgomery County District Attorney in his official capacity; Guy L. Williams, Montgomery County Sheriff in his official capacity; Joye M. Carter, M.D., in her official capacity, Respondents-Appellees.

No. 02-20861.

United States Court of Appeals, Fifth Circuit

August 7, 2002

Page 340

James William Marcus, Texas Defender Serv., Houston, TX, for Petitioner-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:

On August 5, 2002, Richard William Kutzner filed a 42 U.S.C. § 1983 action that reiterates his attempt, previously embodied in a successive habeas petition, to overturn his conviction for capital murder by requiring the State to produce biological evidence for DNA testing.¹ The district court dismissed sua sponte pursuant to Fed.R.Civ.P. 12(b)(6), treating Kutzner's complaint as, in effect, another successive habeas corpus petition. We affirm the dismissal.

Kutzner's petition asserts various alleged constitutional violations against officials of Montgomery County, Texas, who have refused to release biological evidence introduced at his trial for DNA testing and thereby "prevented] Plaintiff from gaining access to exculpatory evidence which could exclude him as a perpetrator . . . ."

Plainly, the allegations seek to undermine Kutzner's conviction or the consequences flowing therefrom, such as the availability of an executive clemency petition. Just as plainly, the Supreme Court has held, in Heck v. Humphrey, that no cause of action exists under § 1983 that would "necessarily imply the invalidity of [a plaintiffs] conviction or sentence" unless he proves that the conviction or sentence has already been invalidated. 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We agree with the analysis of the Fourth Circuit, which recently held, under Heck, that no § 1983 claim exists for injunctive relief to compel DNA testing under materially indistinguishable circumtances. Harvey v. Horan, 278 F.3d 370,

Page 341

374-78 (4th Cir. 2002), pet. for reh'g and reh'g en banc denied, 285 F.3d 298.

Harvey also explains why Kutzner's claim is cognizable only as a petition for habeas corpus relief, because, since Preiser v. Rodriguez, 411 U.S. 475, 93...