McKithen v. Brown

• Decision Date: 13 March 2007
• Docket Number: Docket No. 03-0168-pr.
• Citation: 481 F.3d 89
• Parties: Frank McKITHEN, Plaintiff-Appellant, v. Richard BROWN, District Attorney, County of Queens, New York, Defendant-Appellee.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

481 F.3d 89

Frank McKITHEN, Plaintiff-Appellant, v. Richard BROWN, District Attorney, County of Queens, New York, Defendant-Appellee.^*

Docket No. 03-0168-pr.

United States Court of Appeals, Second Circuit.

Argued: October 3, 2006.

Decided: March 13, 2007.

Janet Carter and Anne K. Small, Wilmer Cutler Pickering Hale and Dorr LLP, New York, N.Y. (Paul A. Engelmayer and Christopher J. Meade, on the brief) (Larry W. Yackle, Boston University School of Law, Boston, MA, on the brief) (Daniel J. Meltzer, Cambridge, MA, of counsel), for Plaintiff-Appellant.

Drake A. Colley, Assistant Corporation Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y. (Leonard Koerner and Edward F.X. Hart, of counsel), for Defendant-Appellee.

Before: CALABRESI, KATZMANN and B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

Eighty-four years ago, Judge Learned Hand observed that "[o]ur procedure has been always haunted by the ghost of the innocent man convicted," but posited, optimistically, that "[i]t is an unreal dream." United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.1923). Today, with the advance of forensic DNA technology,¹ our desire to join Learned Hand's optimism has given way to the reality of wrongful convictions² — a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed.³

The case sub judice arises at this intersection of scientific advance and enduring constitutional values. In it, we are asked to determine whether there exists a right, grounded in the Due Process Clause of the Fifth and Fourteenth Amendments to the federal Constitution, to post-conviction DNA testing. And, in addition to implicating fundamental questions of constitutional principle, the matter has extraordinary practical significance not only to those who claim they were falsely accused and wrongfully convicted, but also to state and local governments on whom the burdens of any such right to be tested would principally fall.

Not surprisingly, the issue of post-conviction DNA testing has in recent years captured the attention of the Congress and the legislatures of nearly every state in the nation.⁴ See, e.g., Innocence Protection Act of 2004, 18 U.S.C. § 3600(a) (providing, in certain defined circumstances, for post-conviction DNA testing of prisoners convicted under federal and some state laws); National Conference of State Legislatures, Post-Conviction DNA Motions, at http://www.ncsl.org/programs/cj/postconviction.htm (Jan.2006) (collecting state legislation providing for post-conviction DNA testing). As a result, our court must approach the question with utmost care and discreetness, not only because of the constitutional and practical significance of the issue, but also because of "[t]he imperative of according respect to the Congress," Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004), as well as state legislatures in their treatment of this multifaceted question. Yet at the same time, "[i]t is emphatically the province and duty of the judicial department to say what the law [of the Constitution] is." Tinelli v. Redl, 199 F.3d 603, 607 (2d Cir.1999) (per curiam) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (internal quotation marks omitted and first alteration in original)).

Defendant-Appellant Richard Brown ("Brown") contends that we should not, in this case, address the question at all. First, Brown argues that the district court below, pursuant to the Rooker-Feldman doctrine, properly dismissed the suit for lack of subject matter jurisdiction. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (examining the scope of the Rooker-Feldman doctrine) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). Second, and alternatively, Brown asserts that, even if the district court erred in applying the Rooker-Feldman doctrine, Plaintiff-Appellant Frank McKithen ("McKithen") failed to state a claim upon which relief may be granted because he could only seek post-conviction access to, or testing of, evidence by way of a habeas corpus proceeding. See Heck v. Humphrey, 512 U.S. 477, 481-82, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a prisoner's claim is not cognizable under 42 U.S.C. § 1983 — and thus can only be brought as a habeas petition — where "establishing the basis for the . . . claim necessarily demonstrates the invalidity of the [prisoner's] conviction" (emphasis added)). And third, Brown argues that, even if the first two arguments are incorrect — and that, therefore, McKithen did state a claim over which the district court had subject matter jurisdiction, and upon the merits of which relief could be granted — McKithen nevertheless was not entitled to "relitigate" the question of post-conviction DNA testing, because the district court was bound to recognize the issue- and claim-preclusive effects of an earlier state-court judgment rendered against McKithen.

Brown's first and second arguments are unconvincing. And this leads us to remand the case to the district court for its consideration, in the first instance, of the merits of McKithen's claim. In particular, the district court on remand should address in the first instance (1) whether there exists a post-conviction constitutional right of access to evidence for purposes of potentially exonerative DNA testing, and (2) whether that right was infringed in McKithen's case.

With respect to Brown's third argument, we hold (1) that Brown waived his claim preclusion defense, and that, on the facts of this case, it would be inappropriate for us to raise the defense nostra sponte, and (2) that, on remand, the district court should consider — if it concludes that a constitutional right exists — whether the contours of that right are sufficiently similar to the state standards previously adjudicated so that issue preclusion would apply.

BACKGROUND

McKithen was convicted in 1993 of attempted murder and related charges, in New York Supreme Court, Queens County ("Queens County Court"). At trial, the prosecution argued that, on the night of August 21, 1992, McKithen unexpectedly appeared at the apartment he had once shared with his estranged wife; dashed to the kitchen and grabbed a knife; stabbed his wife in the lower back as she was escaping out of a bedroom window; and then immediately fled the apartment. A distinctive knife, which McKithen's wife positively identified as the weapon used against her, was admitted into evidence at trial but was never subjected to DNA or fingerprint testing.

The jury found McKithen guilty of attempted murder in the second degree and related charges. On appeal, the Appellate Division affirmed his conviction. The court modified McKithen's sentence so that the terms imposed on the various charges would run concurrently. People v. McKithen, 221 A.D.2d 476, 634 N.Y.S.2d 128 (1995). The New York Court of Appeals denied leave to appeal. People v. McKithen, 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427 (1996).

In 2001, seven years after he had been convicted, McKithen moved in Queens County Court, pursuant to N.Y.CRIM. PROC. LAW § 440.30(1-a)(a), to compel, inter alia, DNA testing of the knife admitted into evidence at trial. Subsection 1-a(a) of § 440.30 provides:

Where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing [DNA] was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.

See N.Y.CRIM. PROC. LAW § 440.30(1-a)(a) (emphases added). In his motion, McKithen asserted that DNA testing "might have exonerated [him] of the crime for which he was convicted." The Queens County Court concluded that "there is no reasonable probability that the results of such testing would have resulted in a verdict more favorable to [McKithen]," and denied McKithen's motion. Decision and Order of the Honorable John Latella, New York State Supreme Court, dated Nov. 8, 2001.

In March 2002, McKithen, incarcerated and proceeding pro se, brought this § 1983 suit in the United States District Court for the Eastern District of New York (Gleeson, J.). He claimed that Brown, Queens County District Attorney, violated his constitutional right of post-conviction access to evidence for DNA testing, and sought injunctive relief "[d]irecting . . . DNA testing of the knife." McKithen asserted that DNA testing would "conclusively determine whether he is guilty of [a]ttempted [m]urder . . ., and related charges for which he was convicted in state court . . . ."

Brown moved, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss McKithen's claim on four grounds: (1) the district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine; (2) McKithen failed to state a claim upon which relief may be granted because a claim seeking post-conviction access to evidence for DNA testing is not cognizable under § 1983; (3) the claim was barred by issue preclusion; and (4) McKithen failed to state a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and otherwise failed to make out a "constitutional claim for a deprivation of due process." Neither in that motion nor in any other submission to the district court did Brown raise additional arguments for dismissal of McKithen's claim nor otherwise indicate a...