Postconviction DNA Testing – Cognizable under 42 U.S.C. § 1983

By Wisconsin State Public Defender

Mar 7, 2011

Henry W. Skinner v. Switzer, USSC No. 09-9000, 3/7/11

A convicted state prisoner may utilize 42 U.S.C. § 1983 to seek DNA testing of crime-scene evidence.

When may a state prisoner, complaining of unconstitutional state action, pursue a civil rights claim under §1983, and when is habeas corpus the prisoner’s sole remedy? …

We summarized the relevant case law most recently in Wilkinson v. Dotson, 544 U. S. 74 (2005) . That case involved prisoners who challenged the constitutionality of administrative decisions denying them parole eligibility. They could proceed under §1983, the Court held, for they sought no “injunction ordering … immediate or speedier release into the community,” id., at 82, and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their] conviction[s] or sentence[s],’” ibid . (quoting Heck, 512 U. S., at 487; first alteration added).

Measured against our prior holdings, Skinner has properly invoked §1983. Success in his suit for DNA testing would not “necessarily imply” the invalidity of his conviction. While test results might prove exculpatory, that outcome is hardly inevitable; as earlier observed, see supra, at 2, results might prove inconclusive or they might further incriminate Skinner. See Nelson v. Campbell, 541 U. S. 637, 647 (2004) (“[W]e were careful in Heck to stress the importance of the term ‘necessarily.’”).

The result is consistent with caselaw in this Circuit, Savory v. Lyons, 469 F. 3d 667, 669 (7th Cir 2006) (state prisoner’s claim for DNA testing cognizable under 1983). But the Court adds certain provisos that surely limit the impact. First, the Court reminds that its own recent decision in District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. ___ (2009), “severely limits the federal action a state prisoner may bring for DNA testing. Osborne rejected the extension of substantive due process to this area, 557 U. S., at ___ (slip op., at 19), and left slim room for the prisoner to show that the governing state law denies him procedural due process, see id., at ___ (slip op., at 18).” And if that isn’t daunting enough, the Court goes on to extol the deterrent effect of the Prison Litigation Reform Act, which is applicable to 1983 suits brought by state prisoners.

Note, as well, that Wisconsin has statutory procedures available for postconviction DNA testing, as discussed in such cases as State v. James M. Moran, 2005 WI 115 (§ 974.07(6), testing at movant’s own expense); State v. Kenneth A. Hudson, 2004 WI App 99 (§ 974.07(6)(a), independent testing); Hudson (§ 974.07(7)(a), court-ordered DNA testing). If these mechanisms prove unavailing, then 1983 federal review, however narrow, is an option – keeping in mind still one more Skinnerian caution: “a state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action.”