521 F.3d 1118 (9th Cir. 2008), 06-35875, Osborne v. District Attorney's Office for Third Judicial Dist.

Docket Nº:06-35875.
Citation:521 F.3d 1118
Party Name:William G. OSBORNE, Plaintiff-Appellee, v. DISTRICT ATTORNEY'S OFFICE FOR the THIRD JUDICIAL DISTRICT; Adrienne Bachman, [1] District Attorney, Defendants-Appellants.
Case Date:April 02, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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521 F.3d 1118 (9th Cir. 2008)

William G. OSBORNE, Plaintiff-Appellee,

v.

DISTRICT ATTORNEY'S OFFICE FOR the THIRD JUDICIAL DISTRICT; Adrienne Bachman, [1] District Attorney, Defendants-Appellants.

No. 06-35875.

United States Court of Appeals, Ninth Circuit.

April 2, 2008

Argued and Submitted Oct. 10, 2007.

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Nancy R. Simel, Assistant Attorney General, Anchorage, AK, for defendant-appellant.

Peter J. Neufeld and Colin Starger, Innocence Project, Benjamin N. Cardozo School of Law, New York, NY; Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, AK; and Robert C. Bundy, Dorsey & Whitney LLP, Anchorage, AK, for plaintiff-appellee.

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

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

BRUNETTI, Circuit Judge:

William Osborne, an Alaska prisoner, brought this action under 42 U.S.C. § 1983 to compel the District Attorney's Office in Anchorage to allow him post-conviction access to biological evidence--semen from a used condom and two hairs--that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, intends to subject the evidence, at his expense, to STR and mitochondrial DNA testing, methods that were unavailable at the time of his trial and are capable of conclusively excluding him as the source of the DNA.

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In a prior appeal, Osborne v. District Attorney's Office, 423 F.3d 1050, 1056 (9th Cir. 2005) (hereinafter Osborne I), 1 we held that Heck v. Humphrey does not bar Osborne's § 1983 action because, even if successful, it will not necessarily demonstrate the invalidity of his conviction. We also remanded for the district court to address in the first instance whether the denial of access to the evidence violates Osborne's federally protected rights.

In this post-remand appeal, we affirm the judgment of the district court that, under the unique and specific facts of this case and assuming the availability of the evidence in question, Osborne has a limited due process right of access to the evidence for purposes of post-conviction DNA testing, which might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief.

I

A

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, with 5 years suspended. The charges arose from a March 1993 incident in which the victim, a female prostitute named K.G., after agreeing to perform fellatio on two male clients, was driven to a secluded area of Anchorage and brutally attacked. See generally Jackson v. State, Nos. A-5276, A-5329, 1996 WL 33686444, at *1 (Alaska Ct. App. Feb.7, 1996) (consolidated direct appeal).

At gunpoint, K.G. was forced to perform fellatio on the driver while the passenger vaginally penetrated her with his finger and penis. The driver did not wear a condom, but the passenger wore a blue condom that K.G. had brought with her. When K.G. later refused their orders to get out of the car, the driver hit K.G. in the head with the gun, and at the driver's urging the passenger choked her. K.G. eventually attempted to flee, but her attackers pursued and beat her with an axe handle. As she lay in the snow in the fetal position and played dead, she heard the gun fire and felt a bullet graze her head. Though she could not see her attackers' faces, judging from their pants and footwear she believed it was the passenger who shot her. The attackers then partially covered K.G. with snow and fled in the car, leaving her for dead.

K.G. heard the car drive away but continued to lie under the snow until she was sure her attackers had gone. She then got up, walked to the main road, flagged down a passing car, told its occupants what had happened, and--hoping to avoid the police--asked only for a ride home. The following day, however, a neighbor of one of the car's occupants notified the police, who contacted K.G. Though initially uncooperative, K.G. eventually described the incident.

K.G. underwent a physical examination, during which hair and blood samples were collected. A vaginal examination was not performed, however, because the passenger-rapist had worn a condom and K.G. had bathed repeatedly since the attack. At the crime scene, Anchorage Police recovered from the snow a used blue condom, part of a condom wrapper, a spent shell casing, and two pairs of K.G.'s grey knit pants stained with blood. The blue condom and shell casing were found "very near" each other and in close proximity to bloody patches of snow and the disturbed berm of snow where K.G. had been partially

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buried. A layer of new snow, which had fallen the morning after the attack, aided the police in distinguishing between tire tracks made the night before by the assailants' car and tracks made the following day by two known vehicles. Those cars were owned by K.G.'s rescuers and their neighbor, who had visited the crime scene the day after the incident before contacting the police.

A week later, military police stopped Dexter Jackson for a traffic infraction. When Jackson opened his glove box to retrieve his registration, the officer spotted a gun case, which proved to hold a .380 caliber pistol. A further search of the car revealed a box of ammunition and a pocketknife. Observing that Jackson, his car, and his passenger at the time (who was not Osborne) resembled composite sketches that had been circulated after the assault on K.G., the military police contacted the Anchorage Police, whom Jackson told that Osborne was his accomplice on the night of the assault.

K.G. later identified Jackson and Osborne from photographic arrays. In identifying Jackson's accomplice, K.G. indicated that Osborne's and another person's photos were the "most familiar" to her and Osborne was "most likely" to have been the passenger who raped and shot her. K.G. also identified Jackson's car, and the police matched tire tracks at the crime scene to Jackson's car. K.G. also identified the pocketknife found in Jackson's car as hers, and ballistics tied the spent shell casing found at the crime scene to Jackson's pistol.

The State's crime lab subjected sperm found in the used condom to "DQ Alpha" DNA testing, which, similar to ABO blood typing, reveals the alleles present at a single genetic locus. The results excluded K.G., Jackson, and James Hunter (presumably Jackson's passenger when he was arrested), and showed that the sperm had the same DQ Alpha type as Osborne. That same DQ Alpha type is shared, however, by 14.7 to 16 percent of African Americans and thus can be expected in one of every 6 or 7 black men.

A DNA testing method called "RFLP," which was relatively more discriminating than DQ Alpha typing but, according to the State, "not quite as discriminating as the testing [Osborne] now seeks to conduct," was also available pre-trial but was not conducted on the sperm.2 The State's crime lab expert considered sending out the sample for more discriminating testing, which was then available through the FBI, but did not because, at least at that time, more discriminating testing required a better quality sample than was provided in the condom and the expert "felt that the sample was degraded." Defense counsel also considered and rejected the option.

Counsel met with the DNA expert from the State crime lab, reviewed DNA research articles, and conferred with a Fairbanks public defender who was litigating the scientific basis of DNA testing. But defense counsel's explanation for not pursuing

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pre-trial RFLP testing differs from the State's expert's reasons. According to her post-conviction affidavit, counsel disbelieved Osborne's statement that he did not commit the crime, was concerned about a more inculpatory result nullifying Osborne's misidentification defense, and concluded that "Osborne was in a strategically better position without RFLP DNA testing," especially given the inherent uncertainty in the DQ Alpha results.

The police also recovered two pubic hairs: one from the used blue condom, and a second from K.G.'s sweatshirt, which she had lain on top of during the sexual assault. DQ Alpha typing of these hairs was unsuccessful, likely because the sample was too small for analysis. Based on microscopic analysis, however, the State's expert opined that both hairs were "dissimilar" to Jackson and Hunter but were "consistent" with having come from Osborne because they "exhibited the same microscopic features" as Osborne's pubic hair sample. Additional hairs having "negroid features" were also found on K.G.'s clothing but were inconsistent with any of the suspects investigated by police.

Osborne and Jackson were tried jointly before a jury. Osborne presented alibi and mistaken identity defenses, specifically arguing that there was too little time for him to have participated in the crime and pointing out flaws in K.G.'s identification. K.G. was not wearing her glasses on the night of the attack. She described the passenger who attacked her as black, between 25 to 30 years old, 6 feet tall, weighing 180-190 pounds, clean shaven, having his hair shaved on the sides and longer on top, and not wearing any jewelry. Osborne actually was 20 years old, weighed 155 pounds, and had a mustache. K.G.'s identification of Osborne was also cross-racial, Osborne being black and K.G. being white. Nonetheless, at trial K.G. pointed to Osborne and identified him as the passenger who attacked her.

Besides the biological and victim-eyewitness testimony, there was also circumstantial evidence of Osborne's culpability. Paper tickets from the Space Station arcade, where...

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