557 U.S. 52 (2009), 08-6, District Attorney's Office for Third Judicial Dist. v. Osborne

Docket Nº:08-6.
Citation:557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38, 77 U.S.L.W. 4498
Case Date:June 18, 2009
Court:United States Supreme Court

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557 U.S. 52 (2009)

129 S.Ct. 2308, 174 L.Ed.2d 38, 77 U.S.L.W. 4498



William G. OSBORNE.

No. 08-6.

United States Supreme Court

June 18, 2009

Argued March 2, 2009.

[129 S.Ct. 2309] [129 S.Ct. 2310] Syllabus [*]

Respondent Osborne was convicted of sexual assault and other crimes in state court. Years later, he filed this suit under 42 U.S.C. § 1983, claiming he had a due process right to access the evidence used against him in order to subject it to DNA testing at his own expense. The Federal

District Court first dismissed his claim under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383, holding that Osborne must proceed in habeas because he sought to set the stage for an attack on his conviction. The Ninth Circuit reversed, concluding that § 1983 was the proper vehicle for Osborne's claims. On remand, the District Court granted Osborne summary judgment, concluding that he had a limited constitutional right to the new testing under the unique and specific facts presented, i.e., that such testing had been unavailable at trial, that it could be accomplished at almost no cost to the State, and that the results were likely to be material. The Ninth Circuit affirmed, relying on the prosecutorial duty to disclose exculpatory evidence under, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.


Assuming Osborne's claims can be pursued using § 1983, he has no constitutional right to obtain postconviction access to the State's evidence for DNA testing. Pp. 2316 - 2323.

(a) DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. The availability of new DNA testing technologies, however, cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The task of establishing rules to harness DNA's power to prove innocence without unnecessarily overthrowing the established criminal justice system belongs primarily to the legislature. See Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772. Forty-six States and the Federal Government have already enacted statutes dealing specifically with access to evidence [129 S.Ct. 2311] for DNA testing. These laws recognize the value of DNA testing but also the need for conditions on accessing the State's evidence. Alaska is one of a handful of States yet to enact specific DNA testing legislation, but Alaska courts are addressing how to apply existing discovery and postconviction relief laws to this novel technology. Pp. 2316 - 2318.

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(b) The Court assumes without deciding that the Ninth Circuit was correct that Heck does not bar Osborne's § 1983 claim. That claim can be rejected without resolving the proper application of Heck. Pp. 2318 - 2319.

(c) The Ninth Circuit erred in finding a due process violation. Pp. 2318-2323.

(i) While Osborne does have a liberty interest in pursuing the postconviction relief granted by the State, the Ninth Circuit erred in extending the Brady right of pretrial disclosure to the postconviction context. Osborne has already been found guilty and therefore has only a limited liberty interest in postconviction relief. See, e.g., Herrera v. Collins, 506 U.S. 390, 399, 113 S.Ct. 853, 122 L.Ed.2d 203. Instead of the Brady inquiry, the question is whether consideration of Osborne's claim within the framework of the State's postconviction relief procedures "offends some [fundamental] principle of justice" or "transgresses any recognized principle of fundamental fairness in operation." Medina v. California, 505 U.S. 437, 446, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353. Federal courts may upset a State's postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.

There is nothing inadequate about Alaska's postconviction relief procedures in general or its methods for applying those procedures to persons seeking access to evidence for DNA testing. The State provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It also provides for discovery in postconviction proceedings, and has—through judicial decision—specified that such discovery is available to those seeking access to evidence for DNA testing. These procedures are similar to those provided by federal law and the laws of other States, and they satisfy due process. The same is true for Osborne's reliance on a claimed federal right to be released upon proof of "actual innocence." Even assuming such a right exists, which the Court has not decided and does not decide, there is no due process problem, given the procedures available to access evidence for DNA testing. Pp. 2319 - 2322.

(ii) The Court rejects Osborne's invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court is "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261. There is no long history of a right of access to state evidence for DNA testing that might prove innocence. "The mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it."

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Reno v. Flores, 507 U.S. 292, 303, 113 S.Ct. 1439, 123 L.Ed.2d 1. Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would [129 S.Ct. 2312] arise. There is no reason to suppose that federal courts' answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125, 112 S.Ct. 1061. Pp. 2322-2323.

521 F.3d 1118, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part I. SOUTER, J., filed a dissenting opinion.


Kenneth M. Rosenstein, for Petitioners.

Neal K. Katyal, for United States as amicus curiae, by special leave of the Court, supporting the Petitioners.

Peter Neufeld, for Respondent.

Roy T. Englert, Jr., Alan E. Untereiner, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., Richard A. Svobodny, Acting Attorney General, Kenneth M. Rosenstein, Diane L. Wendlandt, Assistant Attorneys General, Anchorage, Alaska, for Petitioners.

Kannon K. Shanmugam, Anna-Rose Mathieson, Jaynie R. Lilley, Williams & Connolly LLP, Washington DC, Robert C. Bundy, David T. McGee, Dorsey & Whitney LLP, Anchorage, AK, Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, AK, Peter J. Neufeld, Barry C. Scheck, Nina R. Morrison, David Loftis, Colin P. Starger, New York, NY, David T. Goldberg, Donahue & Goldberg LLP, New York, NY, for Respondent.

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ROBERTS, Chief Justice.

DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure—usually but not always through legislation.

Against this prompt and considered response, the respondent, William Osborne, proposes a different approach: the recognition

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of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under 42 U.S.C. § 1983, not within the state criminal justice system. This approach would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause. There is no reason to constitutionalize the issue in this way. Because the decision below would do just that, we reverse.



This lawsuit arose out of a violent crime committed 16 years ago, which has resulted in a long string of litigation in the state and federal courts. On the evening of [129 S.Ct. 2313] March 22, 1993, two men driving through Anchorage, Alaska, solicited sex from a female prostitute, K.G. She agreed to perform fellatio on both men for $100 and got in their car. The three spent some time looking for a place to stop and ended up in a deserted area near Earthquake Park. When K.G. demanded payment in advance, the two men pulled out a gun and forced her to perform fellatio on the driver while the passenger penetrated her vaginally, using a blue condom she had brought. The passenger then ordered K.G. out of the car and told her to lie face-down in the snow. Fearing for her life, she refused, and the two men choked her and beat her with the gun. When K.G. tried to flee, the passenger beat her with a wooden axe handle and shot her in the head while she lay on the ground. They kicked some snow on top of her and left her for...

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