423 F.3d 1050 (9th Cir. 2005), 04-35126, Osborne v. District Attorney's Office for Third Judicial Dist.

Docket Nº:04-35126.
Citation:423 F.3d 1050
Party Name:William G. OSBORNE, Plaintiff-Appellant, v. DISTRICT ATTORNEY'S OFFICE FOR the THIRD JUDICIAL DISTRICT; Susan A. Parkes; Anchorage Police Department; Walt Monegan, Defendants-Appellees.
Case Date:September 08, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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423 F.3d 1050 (9th Cir. 2005)

William G. OSBORNE, Plaintiff-Appellant,


DISTRICT ATTORNEY'S OFFICE FOR the THIRD JUDICIAL DISTRICT; Susan A. Parkes; Anchorage Police Department; Walt Monegan, Defendants-Appellees.

No. 04-35126.

United States Court of Appeals, Ninth Circuit.

September 8, 2005

Argued and Submitted July 14, 2005—Anchorage, Alaska

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Robert C. Bundy, Dorsey & Whitney LLP, and Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, Alaska, for Appellant.

Nancy R. Simel, Assistant Attorney General, Anchorage, Alaska, for Appellee.

Appeal from the United States District Court for the District of Alaska, D.C. No. CV-03-00118-A- RRB, Ralph R. Beistline, District Judge, Presiding

Before: Alfred T. Goodwin, Melvin Brunetti, and William A. Fletcher, Circuit Judges.


BRUNETTI, Circuit Judge:

William Osborne, an Alaska prisoner, appeals the district court's dismissal of his action, brought under 42 U.S.C. § 1983, to compel the State to release certain biological evidence that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, hopes to subject the evidence, at his expense, to more sophisticated DNA analysis than was available at the time of his trial. He alleges that by refusing him post-conviction access to the evidence, the State has violated his constitutional rights under the First, Sixth, Eighth, and Fourteenth Amendments.

Without reaching the question of whether there exists a constitutional right of post-conviction access to DNA evidence, the district court dismissed Osborne's action for failure to state a claim. It ruled that because Osborne seeks to "set the stage" for an attack on his underlying conviction, his § 1983 action is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and thus a petition for habeas corpus is his sole remedy. On appeal, Osborne argues that the district court applied a more restrictive standard than that enunciated in Heck, and submits that success on the merits of his § 1983 claim would not "necessarily imply" the invalidity of his state court conviction. We agree, and accordingly reverse the judgment of the district court and remand for further proceedings.


Following a March 1994 jury trial in Alaska Superior Court, Osborne was convicted of kidnapping, assault, and sexual assault, and was sentenced to 26 years' imprisonment. The charges arose from a March 1993 incident in which the victim, a prostitute named K.G., after agreeing to perform fellatio on two clients, was driven to a secluded area of Anchorage, raped at gunpoint, beaten with an axe handle, and shot and left for dead.

K.G. later identified, from photo lineups, Osborne and Dexter Jackson as her assailants. At their joint trial, abundant physical evidence linked Jackson to the crime scene. Specifically, K.G. identified Jackson's car as the one in which the assault took place, and tire tracks at the scene matched those made by Jackson's car. K.G. also identified a pocketknife found in Jackson's car as hers, and ballistics tied a spent shell casing found at the crime scene to a pistol found in Jackson's car. By contrast, aside from K.G.'s (and Jackson's) identification of Osborne as the second assailant, the State tied Osborne to the assault

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based primarily on its analysis of biological evidence recovered from the crime scene—namely, a used condom, two hairs, and certain bloodied and semen-stained clothing.

The State subjected the sperm found in the used condom to "DQ Alpha" testing, an early form of DNA testing that, like ABO blood typing, reveals the alleles present at a single genetic locus. The results showed that the sperm had the same DQ Alpha type as Osborne; however, this DQ Alpha type is shared by 14.7 to 16 percent of African Americans, and can thus be expected in one of every 6 or 7 black men. The State also recovered two hairs from the crime scene: one from the used condom, and another from K.G.'s sweatshirt. DQ Alpha typing of these hairs was unsuccessful, likely because the samples were too small for analysis. Both, however, were "negroid" pubic hairs with the "same microscopic features" as Osborne's pubic hair. Tests performed on K.G.'s clothing were inconclusive.

This evidence was submitted to the jury, which rejected Osborne's defense of mistaken identity and convicted him of kidnapping, first-degree assault, and two counts of first-degree sexual assault. His convictions were affirmed on direct appeal. Jackson v. State, No. A-5276, at 6 (Alaska Ct. App. 1996) (unpublished decision). With his application for state post-conviction relief still pending in the Alaska courts, Osborne v. State, 110 P.3d 986 (Alaska Ct. App. 2005), Osborne filed the instant § 1983 claim. His complaint alleges that the District Attorney's Office, District Attorney Susan Parkes, the Anchorage Police Department, and Police Chief Walt Monegan (collectively, the "State") violated his federal constitutional rights by denying him access to this evidence. As relief, he seeks only "the release of the biological evidence" and "the transfer of such evidence for DNA testing."

Osborne intends to subject the evidence, at his expense, to two forms of DNA testing: Short Tandem Repeat ("STR") analysis and Mitochondrial DNA ("mtDNA") analysis. Unlike the DQ Alpha analysis presented at trial, which looks to only one genetic locus, STR analysis examines the alleles at 13 genetic loci. It thus has the power to produce a far more specific genetic profile—one shared by one in a billion people, rather than one in 6 or 7. Moreover, if the hairs prove unsuitable for STR analysis, Osborne intends to submit them to mtDNA analysis, which, unlike STR analysis, is capable of reaching a result on hair samples without intact roots or follicles. Osborne asserts that neither STR nor mtDNA analysis was available at the time of his trial.

The magistrate judge recommended dismissing Osborne's § 1983 action, finding that because he seeks to "set the stage" for an attack on his underlying conviction, under Heck a petition for habeas corpus is his sole remedy. The district court accepted and adopted this recommendation, and dismissed the action.


We review de novo a dismissal for failure to state a claim pursuant to Rule 12(b)(6), Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004), and will not affirm unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., 320 F.3d 920, 931 (9th Cir. 2003).


This case requires us to consider, once again, " 'the extent to which § 1983 is

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a permissible alternative to the traditional remedy of habeas corpus.' " Docken v. Chase, 393 F.3d 1024, 1027 (9th Cir. 2004) (quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). As the Supreme Court has recognized, state prisoners have two potential avenues to remedy violations of their federal constitutional rights: a habeas petition under 28 U.S.C. § 2254, and a civil suit under 42 U.S.C. § 1983. Heck, 512 U.S. at 480. Of course, while a habeas petition may ultimately secure release, habeas relief is often barred by procedural hurdles. By contrast, a § 1983 suit will not result in release, but is generally not barred by a failure to exhaust state remedies. Id. at 480-81.

A. Preiser, Heck,...

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