Durr v. Cordray

• Decision Date: 18 April 2010
• Docket Number: No. 10-3463,10-3466.,10-3463
• Citation: 602 F.3d 731
• Parties: Darryl M. DURR, Plaintiff-Appellant, v. Richard CORDRAY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

602 F.3d 731

Darryl M. DURR, Plaintiff-Appellant, v. Richard CORDRAY, et al., Defendants-Appellees.

Nos. 10-3463, 10-3466.

United States Court of Appeals, Sixth Circuit.

Submitted: April 17, 2010.

Decided and Filed: April 18, 2010.

Carrie L. Davis, American Civil Liberties Union Of Ohio, Cleveland, OH, Kathleen A. McGarry, McGarry Law Office, Glorieta, NM, Dennis Lyle Sipe, Buell & Sipe, Marietta, OH, for Darryl M. Durr.

Before: BATCHELDER, Chief Judge; SUHRHEINRICH and COLE, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, C.J., joined. COLE, J., concurs in the result only.

OPINION

SUHRHEINRICH, Circuit Judge.

Darryl Durr, an Ohio death row inmate, filed a civil rights action under 42 U.S.C. § 1983 challenging the State of Ohio's denial of access to certain physical evidence for purposes of DNA testing. Durr is scheduled to be executed on April 20, 2010. On April 16, 2010, the district court deemed the action a second or successive habeas petition under 28 U.S.C. § 2244(b)(3)(A) and transferred it to this Court for consideration. Alternatively, the district court denied Durr's motion for a temporary restraining order and preliminary injunction staying his execution upon concluding that none of Durr's claims had a likelihood of success on the merits.

We hold that the district court erred in deeming this action a second or successive petition. However, we nonetheless deny Durr's motion for a temporary restraining order or a preliminary injunction staying his execution, albeit on different grounds from those stated by the district court—we find that even if Durr were to prevail on his § 1983 claims, he would not be entitled to this remedy.

I.

A 16-year-old girl named Angel Vincent disappeared on or about January 31, 1988. On April 30, 1988, the body of a young white female, "in an advanced state of decomposition," was found in Brookside Park in Cleveland, Ohio, and an autopsy was performed:

A deputy coroner testified that the only clothing found on the victim was a pink sweater and a pair of white tennis shoes. The pink sweater had been pushed up well above the victim's breast area. An initial external examination determined the body to be that of a young white female, who was in an advanced state of decomposition. The body was heavily infested with maggots and the body's eyes and ears had been lost. There was also prominent evidence of animal activity about the inguinal and vulval regions of the body, and in and about the thighs. According to the deputy coroner, the decomposition was consistent with three months exposure.

After examining the body, the deputy coroner concluded that the cause of death was homicidal violence. Since the body was so badly decomposed, the deputy coroner could not determine whether ligature marks, scrapes or tears indicating strangulation were present.

There was no damage noted to the internal cartilaginous structures of the neck. The deputy coroner declined, however, to rule out strangulation as a cause of death since damage to these structures is not always present in young strangulation victims due to the flexibility of these structures. In addition, because the body was so severely infested with bacteria, testing for the presence of acid phosphates and spermatozoa was inconclusive.

Ohio v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674, 677 (1991).

In September 1988, Deborah Mullins, a former girlfriend of Durr's, told the police that Durr had murdered Angel Vincent. The State indicted Durr and a jury convicted him of aggravated murder, in violation of Ohio Rev.Code § 2903.01; kidnapping, in violation of § 2905.01; aggravated robbery, in violation of § 2911.01; and rape, in violation of § 2907.02. The trial court sentenced Durr to death. The state courts affirmed Durr's conviction and sentence on direct appeal and denied Durr's state post-conviction appeals.¹ Durr sought and was denied federal habeas relief. See Durr v. Mitchell, 487 F.3d 423 (6th Cir.2007), cert. denied, 552 U.S. 1261, 128 S.Ct. 1652, 170 L.Ed.2d 361 (2008).

On August 6, 2009, Durr filed an application for DNA testing pursuant to Ohio Revised Code section 2953.71 et seq. in the state trial court. The State agreed to test any DNA from oral, rectal, and vaginal smears taken from the victim at the autopsy, and the court ordered the testing. On September 23, 2009, the lab issued a final report on the DNA testing of these samples, in which it reported that there was no DNA present on which DNA analysis could be conducted.

However, the State objected to the DNA testing of the victim's necklace, arguing that it was subject to possible contamination and any results would be inconclusive. The court held an evidentiary hearing on October 5, 2009, to decide if the necklace should also be subject to DNA testing. The State presented two witnesses. Frank Kost, Cuyahoga County Deputy Clerk of Courts, testified that he is the supervisor of an area known as the "dead files" storage room, where transcripts and trial exhibits are stored after an appeal. Kost testified that transcripts and trial exhibits are a public record, and may be examined by lawyers and the public. Kost further testified that the necklace was stored in an unsealed envelope. Dr. Linda Benzinger, a DNA Quality Assurance Administrator, also testified for the state. Both parties stipulated that she is an expert in the field of forensic DNA analysis. Benzinger stated that she was familiar with Ohio's legal requirements for post-conviction DNA testing. Benzinger testified that because "the body of Angel Vincent... was somewhat decomposed" she "wouldn't expect to find DNA that would have been applied during the offense ... because the bacteria and fungi from that decomposed body would have destroyed that DNA as well." She added that "it's telling that the vaginal, anal and oral samples, no DNA at all was obtained from those. We went ahead and tested for Y-STR's, but the quantity testing showed us that not even any DNA from the victim was obtained." She also testified that, given the nature of its storage, the necklace could contain the DNA of anyone who had recently come into contact with it. So, Benzinger explained: given that the necklace was on the victim's decomposing body for three months, it was unsuitable for DNA testing; and given the unpreserved state of the necklace in storage and the lack of chain of custody, any DNA results would be wholly unreliable. Durr did not call any witnesses at the hearing. On October 6, 2009, the state trial court found that "based upon the testimony presented at the evidentiary hearing, there is reason to believe that the evidence has been out of the State's custody and/or been contaminated since its collection during its storage in Dead Files."

On November 20, 2009, Durr sought leave of the Ohio Supreme Court to appeal the trial court's decision. The Ohio Supreme Court denied Durr's request on April 10, 2010. On April 13, 2010, Durr filed this § 1983 action in federal district court, seeking a temporary restraining order, preliminary injunction, permanent injunction, and declaratory judgment. In his complaint, Durr claimed that the State's refusal to release the necklace for testing deprived him of due process and constituted cruel and unusual punishment under the Eighth Amendment. He also claimed that Ohio Rev.Code § 2953.73(E)(1) is facially unconstitutional under the Equal Protection Clause because it gives noncapital defendants a mandatory right of appeal to the Ohio Court of Appeals with discretionary review by the Ohio Supreme Court, but gives capital defendants no appeal as of right in either court and only discretionary review in the Ohio Supreme Court. Durr further claimed that Ohio Rev.Code § 2953.73(E)(1) violated the Ex Post Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio Constitution. Durr also claimed that the statute violated the Ohio Constitution, Article IV, § 3(B)(2), conferring jurisdiction on the courts of appeal. Lastly, Durr raised an as-applied challenge to the statute.

On April 16, 2010, the district court ruled that because the underlying purpose of Durr's § 1983 action was to challenge the validity of his conviction or death sentence his only avenue of relief was habeas. Given that Durr had already pursued and exhausted federal habeas corpus relief pursuant to 28 U.S.C. § 2254, the district court concluded that it lacked jurisdiction absent an order from this Court authorizing a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A). Because Durr had not obtained such an order, the district court transferred the case to this court. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam).

The district court also ruled in the alternative. Assuming Durr's action to be properly before it pursuant to § 1983, the district court denied injunctive relief that would have stayed Durr's scheduled execution. The district court held that none of Durr's claims had a likelihood of success on the merits. The district court held that Durr's claim of denial of access to evidence was barred by the Rooker-Feldman doctrine. The district court concluded that Durr's equal protection claim could not succeed because Ohio's one-tier system of appellate review has been upheld in the context of direct appeals. See Smith v. Mitchell, 567 F.3d 246 (6th Cir.2009) (upholding on habeas review, the Ohio Supreme Court's determination that its one-tier system of direct review of capital convictions and sentences does not violate the Equal Protection Clause). The district court rejected Durr's substantive due process claim, also on the basis of Smith, and held that Durr's Eighth Amendment challenge failed because the state has discretion to allow appellate review, so long as its system is consistent with due process and equal protection, and Ohio's option of a discretionary appeal to the Ohio Supreme Court met that requirement....