Hancock v. Behenna

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PHILLIP DEAN HANCOCK, )

)

Plaintiff, )

)

v. ) Case No. CIV-23-873-G

)

VICKI BEHENNA, Oklahoma )

County District Attorney, et al., )

)

Defendants. )

ORDER

Plaintiff, Phillip Dean Hancock, an Oklahoma death row inmate, is scheduled to be

executed on November 30, 2023. On October 4, 2023, Plaintiff filed a civil rights

complaint alleging that the withholding of certain physical evidence deprives him of

various constitutional rights. See Compl. (Doc. No. 1). Per the Court’s order for expedited

briefing, on October 10, 2023, Plaintiff filed a motion for preliminary and permanent

injunctive relief. See Pl.’s Mot. (Doc. No. 11). Defendants have filed their responses (Doc.

Nos. 15, 16), and Plaintiff has filed a reply (Doc. No. 21). Having reviewed the parties’

submissions, the Court finds a hearing is not required and makes the following

determinations.

I. Plaintiff’s Claims

Under the Oklahoma Post-Conviction Procedure Act, a person convicted of a crime

may seek postconviction relief upon the conviction or sentence. See Okla. Stat. tit. 22, §§

1080-1089. Under a separate statute, the Oklahoma Postconviction DNA Act, certain

convicted persons may seek DNA testing and present the results of that testing as a basis

for various types of relief, including vacation of conviction or discharge from custody. See

id. §§ 1373-1373.7. In the instant action, Plaintiff challenges the constitutionality of the

Postconviction DNA Act both on its face and as authoritatively construed by the Oklahoma

Court of Criminal Appeals (“OCCA”). Plaintiff names as defendants Vicki Behenna,

Oklahoma County District Attorney; Wade Gourley, Chief, Oklahoma City Police

Department; and Eric Pfeifer, Chief, Oklahoma Office of the Chief Medical Examiner.

Plaintiff brings suit against all defendants in their official capacities, alleging each

defendant either opposes his request for DNA testing or has custody and/or control of the

physical evidence sought to be tested and is denying him access to such evidence. See

Compl. ¶¶ 15-17.

Plaintiff asserts three claims pursuant to 42 U.S.C. § 1983. The first is a denial of

procedural due process under the Fourteenth Amendment, wherein Plaintiff challenges the

Oklahoma courts’ construction of the Postconviction DNA Act’s requirement that a court

must make a finding regarding “favorable results” to order the requested DNA testing.

Okla. Stat. tit. 22, § 1373.4(A)(1); see Compl. ¶¶ 42, 49-61. Plaintiff additionally brings a

facial challenge contending the Postconviction DNA Act violates due process because it

predicates a court’s order of DNA testing upon a finding that the request for such testing

“is made to demonstrate the innocence of the convicted person.” Okla. Stat. tit. 22, §

1373.4(A)(2); see Compl. ¶¶ 62-64; see also Okla. Stat. tit. 22, § 1373.2(A). Plaintiff’s

second and third claims allege that Oklahoma’s statutory procedure for obtaining access to

DNA testing violates his right to access the courts under the First and Fourteenth

Amendments and his Eighth Amendment right to be free from cruel and unusual

punishment. See Compl. ¶¶ 67-73.

Plaintiff seeks (1) a declaratory judgment that the Postconviction DNA Act as

applied by the OCCA is unconstitutional, and (2) a preliminary and permanent injunction

requiring Defendants to allow access to the evidence for testing. See id. ¶¶ 11, 74; Pl.’s

Mot. at 8-16. The Court now addresses Plaintiff’s Motion for Preliminary and Permanent

Injunction.

II. Jurisdiction

Plaintiff’s claims are asserted under 42 U.S.C. § 1983, which is the proper vehicle

for raising a postconviction claim for DNA testing. See Compl. ¶¶ 10, 12; Skinner v.

Switzer, 562 U.S. 521, 525, 534 (2011). To establish Defendants’ liability under § 1983,

Plaintiff must show “the violation of a right secured by the Constitution and laws of the

United States” and “that the alleged deprivation was committed by a person acting under

color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Court has jurisdiction over

Plaintiff’s action pursuant to 28 U.S.C. §§ 1331 and 1343.

III. Background

A. Procedural History

In 2004, Plaintiff was tried before a jury in the District Court of Oklahoma County

and found guilty of two counts of Murder in the First Degree for the deaths of James Lynch

and Robert Jett. See State v. Hancock, No. CF-2002-3562 (Okla. Cnty. Dist. Ct.). The jury

convicted Plaintiff to death on both counts, having found four aggravating circumstances

for each murder: (1) he was previously convicted of a felony involving the use or threat of

violence to the person; (2) he knowingly created a great risk of death to more than one

person; (3) a probability existed that he would commit criminal acts of violence that would

constitute a continuing threat to society; and (4) the murders were especially heinous,

atrocious, or cruel. Compl. ¶ 37; Pl.’s Mot. Ex. 4, Trial Ct. Findings of Fact & Concls. of

Law (Doc. No. 11-4) at 2-3.

Plaintiff appealed his convictions and sentences to the OCCA. The OCCA affirmed

in relevant part, and the United States Supreme Court denied a writ of certiorari. See

Hancock v. State, 155 P.3d 796 (Okla. Crim. App. 2007); Hancock v. Oklahoma, 552 U.S.

1029 (2007). Petitioner also sought postconviction relief, which the state courts denied.

See Hancock v. State, No. PCD-2004-1265 (Okla. Crim. App.).

Plaintiff then challenged the constitutionality of his conviction and sentence in

federal court through a petition for writ of habeas corpus. See Hancock v. Workman, No.

CIV-08-327-F (W.D. Okla.). This Court’s denial of habeas relief was affirmed by the

Tenth Circuit Court of Appeals, see Hancock v. Trammell, 798 F.3d 1002 (10th Cir. 2015),

and a writ of certiorari was denied by the United States Supreme Court. See Hancock v.

Duckworth, 580 U.S. 831 (2016).

B. Plaintiff’s Motion for DNA Testing

In 2021, Plaintiff filed a motion in the state trial court, requesting forensic DNA

testing, pursuant to title 22, section 1373.2 of the Oklahoma Statutes, that he asserted would

show he is innocent of the crimes for which he was convicted. See Compl. ¶ 40; Defs.’

Resp. Ex. 7, Pl.’s Mot. DNA Testing (Doc. No. 16-7) at 22, 33. The trial court initially

denied the motion without a hearing, but on remand from the OCCA held a hearing and

then again denied the motion. Compl. ¶¶ 41-42. Plaintiff appealed, and the OCCA

affirmed on May 11, 2023. Id. ¶ 43; see Pl.’s Mot. Ex. 5, OCCA Summ. Op. (Doc. No.

11-5).

Plaintiff now moves this Court for an injunction requiring Defendants to produce

and release for DNA testing the following items: Mr. Lynch’s fingernail scrapings; Mr.

Lynch’s clothing; Mr. Jett’s clothing; Mr. Jett’s wallet; and a letter found on a metal bar at

the scene. Plaintiff alleges that favorable DNA test results would show the presence of

Plaintiff’s blood and DNA on each of these items. He argues such results would

corroborate his contention that Mr. Lynch held him down in a chokehold while Mr. Jett

violently attacked him with the metal bar, causing Plaintiff to shoot them both at point-

blank range in an act of self-defense. See Compl. ¶¶ 4-6; Pl.’s Mot. at 12. Plaintiff further

alleges that such results would undermine the State’s theory of the case—i.e., that Mr. Jett

retreated and it was physically impossible for Mr. Lynch to join the attack. See Compl. ¶

7.

IV. Standard of Review

Plaintiff seeks a preliminary and permanent injunction authorizing his access to the

evidence in Defendants’ control in order for Plaintiff to conduct DNA testing upon that

evidence. “A plaintiff seeking a preliminary injunction must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). And

“the requirements for obtaining a permanent injunction are remarkably similar to those for

obtaining a preliminary injunction.” Ute Indian Tribe of the Uintah & Ouray Rsrv. v.

Lawrence, 22 F.4th 892, 908 (10th Cir. 2022) (internal quotation marks omitted). “[T]he

same four elements apply to both types of injunctive relief, and the only measurable

difference between the two is that a permanent injunction requires showing actual success

on the merits, whereas a preliminary injunction requires showing a substantial likelihood

of success on the merits.” Id. (alteration and internal quotation marks omitted). But “[a]n

injunction can issue only if each factor is established.” Denver Homeless Out Loud v.

Denver, 32 F.4th 1259, 1277 (10th Cir. 2022).

The decision to grant or deny injunctive relief is addressed to the equitable

discretion of the Court. See Ute Indian Tribe, 22 F.4th at 899; eBay Inc. v. MercExhange,

L.L.C., 547 U.S. 388, 391 (2006). “Because a preliminary injunction is an extraordinary

remedy, the movant’s right to relief must be clear and unequivocal.” Dominion Video

Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir. 2001); accord

Denver Homeless Out Loud, 32 F.4th at 1278.

V. Likelihood of Success and Actual Success on the Merits: Due Process

A. Applicable Law

The Due Process Clause of the Fourteenth Amendment prohibits a State from

“depriv[ing] any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. Plaintiff here challenges the constitutionality of Oklahoma’s

Postconviction DNA Act, a statute setting forth procedures for postconviction relief

relating to DNA testing. While there is no federal constitutional right for a convicted

defendant to obtain evidence for postconviction DNA testing, Oklahoma has statutorily

created such a right and, as a result, procedural due process requires that the state-provided

procedures be adequate to protect that substantive right. See Skinner, 562 U.S. at 525; Dist.

Att’y’s Office for the Third Jud. Dist. v. Osborne, 557 U.S. 52, 67-69 (2009).

To establish a procedural due process claim, Plaintiff must allege facts

demonstrating (1) a deprivation by the State of a protected interest in life, liberty, or

property, and (2) an inadequate state process. See Reed v. Goertz, 598 U.S. 230, 236

(2023). Plaintiff has plausibly alleged that the Postconviction DNA Act creates a liberty

interest “in accessing the Oklahoma statutory procedure to conduct forensic DNA testing.”

Compl. ¶ 11; see, e.g., Tarver v. Kunzweiler, No. 20-CV-0392, 2020 WL 6050572, at *5

(N.D. Okla. Oct. 13, 2020); see also Pickens v. Kunzweiler, No. 15-CV-504, 2016 WL

1651821, at *4 (N.D. Okla. Apr. 25, 2016) (characterizing the liberty interest created by

the statute as an “interest in demonstrating innocence with new evidence”). But, as

explained further below, Plaintiff has not plausibly alleged, in connection with any of his

theories of deprivation of procedural due process, that the procedures provided by the State

are inadequate to allow him to “realiz[e]” this liberty interest. Osborne, 557 U.S. at 68.

To find the process unconstitutional, the Court must determine that the state-

provided procedures “offend[] some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental” or “transgress[] any recognized

principle of fundamental fairness in operation.” Id. at 69 (internal quotation marks

omitted). As explained in Osborne, “[a] criminal defendant proved guilty after a fair trial

does not have the same liberty interests as a free man.” Id. at 68. Accordingly, the State

has “more flexibility” in deciding what procedures are needed in the context of

postconviction relief. Id. at 69. “When a State chooses to offer help to those seeking relief

from convictions, due process does not dictate the exact form such assistance must

assume.” Id. (alteration and internal quotation marks omitted). Instead, in considering a

defendant’s “limited interest” in postconviction relief, the question is one of fundamental

fairness. Id.; accord Pennsylvania v. Finley, 481 U.S. 551, 559 (1987).

It is Plaintiff’s “burden to demonstrate the inadequacy of the state-law procedures

available to him in state postconviction relief.” Osborne, 557 U.S. at 71. The Supreme

Court has made clear this is a difficult burden to meet, emphasizing that “Osborne severely

limits the federal action a state prisoner may bring for DNA testing” and “left slim room

for the prisoner to show that the governing state law denies him procedural due process.”

Skinner, 562 U.S. at 525; see also Cromartie v. Shealy, 941 F.3d 1244, 1252 (11th Cir.

2019). Osborne itself directs that “[f]ederal courts may upset a State’s postconviction relief

procedures only if they are fundamentally inadequate to vindicate the substantive rights

provided.” Osborne, 557 U.S. at 69. Additionally, “[e]very court of appeals to have

applied the Osborne test to a state’s procedure for postconviction DNA testing has upheld

the constitutionality of it.” Cromartie, 941 F.3d at 1252 (citing cases from the First,

Second, Ninth, and Eleventh Circuits). Though not addressing the specific issues raised

here, federal courts that have considered Oklahoma’s Postconviction DNA Act have found

no violation of “any recognized principle of fundamental fairness.” Huey v. Kunzweiler,

847 F. App’x 530, 535 (10th Cir. 2021) (internal quotation marks omitted) (affirming

dismissal of challenge to “reasonable probability” requirement of § 1373.4(A)(1)); see also

Tarver, 2020 WL 6050572, at *6; Neal v. Prater, No. CIV-19-277, 2019 WL 6045586, at

*4 (W.D. Okla. Nov. 15, 2019); Pickens, 2016 WL 1651821, at *4.

B. As-Construed Challenge: Favorability

1. No presumption of favorability

Plaintiff first contends that the State’s process for considering his DNA testing

request violated fundamental fairness due to the manner in which the OCCA construed the

Postconviction DNA Act’s “favorable results” requirement. The statute requires a court to

order DNA testing if such court finds certain facts, including “[a] reasonable probability

that the petitioner would not have been convicted if favorable results had been obtained

through DNA testing at the time of the original prosecution.” Okla. Stat. tit. 22,

§ 1373.4(A)(1).1 Plaintiff contends the OCCA has “‘authoritatively construed’” this

requirement in a way that renders the substantive liberty interest meaningless, by refusing

to give effect to the statutory prescription that “the most favorable hypothetical results”

must be presumed, and instead presuming that “favorable results are implausible when

considered in light of inculpatory evidence upon which the conviction is based.” Pl.’s Mot.

at 11 (quoting Reed, 598 U.S. at 235); Compl. ¶ 51. Additionally, Plaintiff contends, “a

court’s speculation as to the likelihood that testing will produce a favorable result cannot

reasonably be a basis for concluding that testing that does produce such a result would not

change the outcome of the trial.” Pl.’s Mot. at 12.

As an initial matter, Plaintiff’s authority for the proposition that § 1373.4(A)(1)

“plainly requires courts to assume favorable results of testing” is premised only upon other

1 Such a materiality requirement “is common,” as various states’ statutes “recognize the

value of DNA evidence but also the need for certain conditions on access to the State’s

evidence.” Osborne, 557 U.S. at 63.

states’ interpretation of “similar provisions.” Id. at 11. Further, “a state court’s

misapplication of state law, without more, does not violate the Federal Constitution.”

Cromartie, 941 F.3d at 1257 (citing Snowden v. Hughes, 321 U.S. 1, 11 (1944)). In any

event, this Court concludes that the state courts applied the Postconviction DNA Act in a

manner that comports with the statutory language. The trial court presumed favorable

results of the requested DNA testing and then expressly weighed those exculpatory results

against the inculpatory evidence presented at trial to determine if there was a reasonable

probability those favorable results would undermine Plaintiff’s conviction. See Trial Ct.

Findings of Fact & Concls. of Law at 7-10. The OCCA found “no clearly erroneous

deviation from or misapplication of the statutory standard.” OCCA Summ. Op. at 5; cf.

State ex rel. Smith v. Neuwirth, 337 P.3d 763, 764-66 (Okla. Crim. App. 2014) (explaining

that “there must be a showing as to how [the evidence subject to DNA testing] ‘if favorable’

would have prevented the conviction in the first instance”).

Plaintiff points to the trial court’s and OCCA’s decisions to argue that no

postconviction DNA testing can ever take place if the statute is construed such that “the

mere presence of contradictory evidence is grounds for denying DNA testing.” Pl.’s Mot.

at 12. But neither the trial court nor the OCCA relied on a “mere presence” of contradictory

evidence. Rather, the trial court found that “[e]ven if favorable DNA results were

obtained,” “the evidence would not be sufficient to overcome the weight of the evidence

showing that [Plaintiff’s] account of self-defense was implausible.” Trial Ct. Findings of

Fact & Concls. of Law at 8. In making this finding, the trial court discussed the evidence

presented at trial that directly contradicted Plaintiff’s assertion of self-defense and the

testimony of Plaintiff’s DNA expert. See id. at 8-9. The trial court determined that “there

were means for [Plaintiff’s] DNA to end up on the subject items outside of [Plaintiff’s]

account” of events. Id. at 9. The trial court concluded that because there was no proof that

the DNA was likely deposited on the subject items in the specific manner related in

Plaintiff’s account, favorable DNA results would not have corroborated his defense at trial.

See id. at 10. And the OCCA affirmed the trial court’s “conclusion from the evidence,”

noting that the trial court had “assessed the facts that would be shown by positive DNA

results in terms of a reasonable probability of a different outcome.” OCCA Summ. Op. at

3-5. The OCCA held that “[t]he trial court’s conclusion that positive DNA results from

the requested testing would not undermine confidence in the outcome at trial, considered

in light of the remaining evidence, is not clearly erroneous or contrary to the logic and

effects of the facts presented.” Id. at 5.

Even if this Court were to disagree with the state trial court’s assessment of the

record, it is plain that the court evaluated the evidence in the manner required by the

Postconviction DNA Act, including a thorough inquiry into whether there was “[a]

reasonable probability that [Plaintiff] would not have been convicted if favorable results

had been obtained through DNA testing at the time of the original proceeding.” Okla. Stat.

tit. 22, § 1373.4(A)(1). Plaintiff has not demonstrated that the OCCA’s affirmance of that

ruling authoritatively construed the Postconviction DNA Act in a way that violates

fundamental fairness.

2. Failure to presume fully favorable results

In addition to arguing that the OCCA has construed the Postconviction DNA Act as

not requiring courts to presume favorable results “at all,” Plaintiff asserts that the

Oklahoma courts did not presume a sufficiently high degree of favorability. Pl.’s Mot. at

11-12. Plaintiff asserts that the trial court “assumed only slightly favorable results, not the

genuinely favorable results that [Plaintiff] alleges DNA testing will show.” Id. at 12; see

also Compl. ¶¶ 51, 58. To this end, Plaintiff contends if the trial court had assumed the

“most favorable hypothetical result” of the requested DNA testing, Compl. ¶ 51, it would

have to had assumed that significant amounts of Plaintiff’s blood and DNA would be found

on all of the subject items. And a significant amount of Plaintiff’s blood and DNA would

indicate that the material was transferred to these items as a result of a struggle rather than

from mere shedding or touch. Id. ¶ 52 (“Far more DNA is transferred by contact with

force, friction, and/or rubbing, as may be the case in a struggle, than when DNA is

transferred by light touch. Greater force or friction may also be accompanied by sweat,

which contains large quantities of DNA. In addition, blood transfers more DNA than skin

cells. Thus, the struggle described by [Plaintiff] likely resulted in the transfer of significant

blood and DNA material.”); accord Pl.’s Reply at 3-4. Thus, Plaintiff requests that the

Court conclude that due process requires the Postconviction DNA Act be construed to

require that courts presume the most favorable results possible from the requested testing,

and because the OCCA has construed the statute as requiring something less, the statute as

construed is “fundamentally inadequate” to secure Plaintiff’s state-created liberty interest.

Osborne, 557 U.S. at 69.

Even if the Court accepts that the procedures set forth in the Postconviction DNA

Act—as allegedly construed by the OCCA—require only a presumption of something less

than a fully favorable result, Plaintiff has not shown that such procedures are “inconsistent

with the traditions and conscience of our people or with any recognized principle of

fundamental fairness.” Id. at 70 (internal quotation marks omitted). Under the

Postconviction DNA Act, the court must assign some level of favorability in applying §

1373.4(A)(1), but “due process does not dictate” what that level must be. Id. at 69

(alteration and internal quotation marks omitted); see also Finley, 481 U.S. at 559

(explaining that “States have substantial discretion to develop and implement programs to

aid prisoners seeking to secure postconviction review” and rejecting the proposition “that

when a State chooses to offer help to those seeking relief from convictions, the Federal

Constitution dictates the exact form such assistance must assume”); Tarver, 2020 WL

6050572, at *6 (“[P]lacing limits on an offender’s access to DNA evidence does not make

Oklahoma’s Postconviction DNA Act fundamentally inadequate to vindicate substantive

rights.” (alteration, citation, and internal quotation marks omitted)). Though the OCCA

did not construe the “favorable results” provision as Plaintiff would prefer, the court’s

construction does not establish that the Postconviction DNA Act is constitutionally

inadequate.

C. Facial Challenge: Use of DNA Testing to Challenge Imposition of

Death Penalty Rather than the Underlying Conviction

Plaintiff also brings a facial challenge to the Postconviction DNA Act, arguing that

the limitations set forth in the statute are so restrictive that they have rendered the

procedures provided by Oklahoma law inadequate to protect Plaintiff’s liberty interest in

seeking postconviction relief through other means. More specifically, Plaintiff contends

that the restrictions undermine his ability to pursue relief under the Oklahoma Post-

Conviction Procedure Act, Okla. Stat. tit. 22, §§ 1080-1089, and through executive

clemency. See Pl.’s Mot. at 10; Compl. ¶¶ 48, 64-65.2

According to Plaintiff, because these two mechanisms create a right for convicted

and death-sentenced persons to obtain relief from their sentences based on new evidence,

the procedures protecting that right cannot be so inadequate as to violate fundamental

fairness. Plaintiff specifically contends that, as it relates to death-sentenced persons, the

Postconviction DNA Act unlawfully limits testing to proof of innocence in relation to the

conviction on which the death sentence is based and fails to permit testing to challenge

whether the sentence of death was properly imposed. Thus, according to Plaintiff, because

a death row prisoner cannot use the Postconviction DNA Act to obtain evidence that the

death penalty should not have been imposed, the Postconviction DNA Act violates

fundamental fairness. Plaintiff argues that this violation occurs in two ways: (1) “[o]n its

face, the Postconviction DNA Act does not permit DNA testing to establish that a

defendant is ineligible for the death penalty”; and (2) “on its face, the Postconviction DNA

Act also does not permit DNA testing to establish that one or more of the aggravating

circumstances are invalid, that mitigating circumstances exist, or that the death sentence is

2 The Court assumes without deciding that Plaintiff holds a cognizable liberty interest in

executive clemency. But cf. Osborne, 557 U.S. at 67-68 (“We have held that noncapital

defendants do not have a liberty interest in traditional state executive clemency, to which

no particular claimant is entitled as a matter of state law.”); Ward v. Province, 283 F. App’x

615, 618 (10th Cir. 2008) (“Because there is no constitutionally protected liberty interest

in parole when the grant of parole is discretionary—as it is under Oklahoma’s statutory

scheme—Mr. Ward has no constitutional right to consideration of commutation.”).

otherwise unjust or unwarranted.” Compl. ¶¶ 62, 63; see also Pl.’s Mot. at 9-11.

1. Standing

Before reaching the merits of Plaintiff’s facial challenge, the Court must satisfy

itself that Plaintiff has standing to invoke the power of the federal courts. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). There are three requirements of Article

III standing. First, the plaintiff must suffer an injury-in-fact. Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992). An injury in fact is an “invasion of a legally protected interest”

that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or

hypothetical. Id. Second, the injury must be “fairly traceable to the challenged action of

the defendant,” rather than to conduct of some third party not before the court. Id.

(alteration and internal quotation marks omitted). Third, it must be likely that a favorable

court decision will redress the injury of the plaintiff. Id. at 561. The burden to establish

standing rests on the party invoking federal jurisdiction. Id.

The Court concludes Plaintiff does not have standing to bring this challenge. Here,

Plaintiff’s alleged injury relating to the preclusion of testing to challenge his death sentence

is hypothetical. Plaintiff requested DNA testing “to demonstrate that he acted in self-

defense and is innocent of first-degree murder.” Pl.’s Mot. DNA Testing at 6. Plaintiff

was denied testing under the Postconviction DNA Act because the state courts did not find

a reasonable probability that he would not have been convicted of murder in the first degree

if favorable DNA results had been obtained at time of the original prosecution. See Trial

Ct. Findings of Fact & Concls. of Law at 11; OCCA Summ. Op. at 5. Stated differently,

Plaintiff did not request DNA testing in order to challenge the imposition of the death

penalty, and his request was not denied due to a determination that the statute does not

permit testing to pursue such a challenge. Thus, Plaintiff has not alleged a concrete, actual

injury as to this theory of procedural process violation. See Whitmore v. Arkansas, 495

U.S. 149, 155 (1990) (“[The injury-in-fact] must be concrete in both a qualitative and

temporal sense. The complainant must allege an injury to himself that is distinct and

palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent,

not conjectural or hypothetical.” (citations, alteration, and internal quotation marks

omitted)). Nevertheless, the Court will analyze the merits of Plaintiff’s challenge on the

assumption that Plaintiff has standing in this respect.

2. Ineligibility for or unsuitability of the death penalty

Plaintiff’s first contention—that the Postconviction DNA Act does not permit DNA

testing to establish that a defendant is ineligible for the death penalty—is, at the most

general level, gainsaid by his own allegations. Plaintiff asserts that if the DNA evidence

corroborates his story of self-defense, then the test results would “undermine [his]

convictions of two counts of first degree murder,” as well as his death sentence. Compl. ¶

32. A successful challenge to the two first-degree murder convictions would necessarily

invalidate the death sentence that had been imposed based upon those convictions.

Plaintiff next argues that the Postconviction DNA Act “does not provide for relief

from a death sentence where DNA evidence would undermine the basis for such a

sentence.” Compl. ¶ 45 (citing Okla. Stat. tit. 22, § 1373.5); see also Pl.’s Mot. at 10. To

the extent Plaintiff contends that the Postconviction DNA Act does not authorize a court

to order relief from a death sentence because such relief is not identified as an available

remedy in § 1373.5, this contention is belied by the plain statutory language. Section

1373.5(A) prescribes that, upon the receipt of favorable testing results and after holding a

hearing, “the court shall . . . enter any order that serves the interests of justice including,

but not limited to,” various orders enumerated therein. Okla. Stat. tit. 22, § 1373.5(A)(1)-

(6) (emphasis added).

Finally, Plaintiff argues that because the Post-Conviction Procedure Act allows him

to challenge his sentence, and he must be able to access DNA evidence to present such a

challenge but is precluded from doing so under the Postconviction DNA Act, there is a

deprivation of due process. Compl. ¶¶ 48, 64-65; see Pl.’s Mot. 10-11 (citing Gutierrez v.

Saenz, 565 F. Supp. 3d 892 (S.D. Tex. 2021), appeal docketed, No. 21-70009 (5th Cir.

Dec. 13, 2021)). Plaintiff criticizes the interplay between the two schemes: “With one hand,

Oklahoma has given [Plaintiff] the ostensible right to obtain relief from his death[]sentence

based on new evidence [pursuant to the Post-Conviction Procedure Act], but with the other

hand, Oklahoma [through the Postconviction DNA Act] has taken away his ability to obtain

DNA testing that would provide such new evidence.” Pl.’s Mot. at 10.

In Plaintiff’s cited decision, the federal district court examined Texas’ DNA testing

procedures, which the Texas Court of Criminal Appeals had held “d[id] not authorize

testing when exculpatory results only affect the punishment received.” Gutierrez, 565 F.

Supp. 3d at 899, 909. The court concluded that, because Texas had also established “a

procedure and substantive right” to file a second state habeas petition “based on innocence

of the death penalty,” Texas’ application of these laws denied a defendant sentenced to

death his federal procedural due process rights. Id. at 910-11 (“A bar on . . . DNA testing

to demonstrate innocence of the death penalty renders [the statute granting the right to seek

relief upon a showing of innocence of the death penalty] illusory.”).

There is no suggestion in the record, however, that the State of Oklahoma has

established any comparable discrete “substantive right” to seek relief based upon innocence

of the death penalty—i.e., a showing that “there was no aggravating circumstance or that

some other condition of eligibility had not been met.” Id. at 910; Sawyer v. Whitley, 505

U.S. 333, 345 (1992). In contrast to Gutierrez, Oklahoma’s Post-Conviction Procedure

Act permits defendants who have been sentenced to death to raise in an application for

postconviction relief “[o]nly” issues that:

1. Were not and could not have been raised in a direct appeal; and

2. Support a conclusion either that the outcome of the trial would have been

different but for the errors or that the defendant is factually innocent.

Okla. Stat. tit. 22, § 1089(C)(1)-(2).3 Plaintiff does not address § 1089(C) or show that any

right to relief afforded under that provision is improperly circumscribed by the DNA

Testing Act. Cf. Flowers v. State, 387 P.3d 947, 948 (Okla. Crim. App. 2016) (“[T]he

Postconviction DNA Act is not an additional ground for relief pursuant to the Uniform

Post-Conviction Procedure Act.”). Further, as noted by Defendants, discovery and

supplementation of the record are potentially available to the parties in capital

postconviction proceedings. See Okla. Stat. tit. 22, § 1089(D)(3); Okla. Crim. App. R.

9.7(D); Defs.’ Resp. (Doc. No. 16) at 27. And “DNA testing is allowed under the

3 Nor does the statute generally governing the available grounds for postconviction

applications provide a right to relief predicated upon innocence of the death penalty. See

Okla. Stat. tit. 22, § 1080.

Postconviction DNA Act, without the requirement of filing a motion, when both the State

and the convicted person agree that post-conviction testing should be conducted.” Watson

v. State, 343 P.3d 1282, 1283 (Okla. Crim. App. 2015) (citing Okla. Stat. tit. 22, §

1373.6(A)).

The Supreme Court has held that a state’s development of rules and procedures for

providing postconviction access to DNA are the province of the legislatures and state

courts, not that of federal courts “applying the broad parameters of the Due Process

Clause.” Osborne, 557 U.S. at 56. Whether Plaintiff (or the Court) believes the

Postconviction DNA Act should allow DNA testing to challenge findings related to

aggravating factors or mitigating circumstances presented to the jury at trial, or findings

that otherwise undermine the suitability of the death penalty, is not dispositive as to

whether Plaintiff has shown that this statute is unconstitutional. Rather, to prevail here,

Plaintiff must show that “consideration of [his] claim within the framework of the State’s

procedures for postconviction relief offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental” “or transgresses

any recognized principle of fundamental fairness in operation.” Osborne, 557 U.S. at 69

(internal quotation marks omitted).

The Court finds that Plaintiff has not made such a showing, and, accordingly, the

Court is restrained from interfering with the State of Oklahoma’s requirement in the

Postconviction DNA Act that a court shall grant a request for DNA testing only upon

finding that the request was “made to demonstrate the innocence of the convicted person.”

Okla. Stat. tit. 22, § 1373.4(A)(2); see Osborne, 557 U.S. at 69 (“[O]nce a defendant has

been afforded a fair trial and convicted of the offense for which he was charged, the

presumption of innocence disappears. . . . . The State accordingly has more flexibility in

deciding what procedures are needed in the context of postconviction relief.” (internal

quotation marks omitted)).

D. Conclusion

With respect to Plaintiff’s procedural due process claims, he has shown neither a

likelihood of success nor actual success on the merits.

VI. Likelihood of Success and Actual Success on the Merits: Access to Courts

Plaintiff also contends, “[f]or much the same reasons,” that the Postconviction DNA

Act and the OCCA’s construction thereof prevents him from gaining access to potentially

exculpatory and mitigating evidence that could be used to obtain judicial relief and

executive clemency. Pl.’s Mot. at 13. According to Plaintiff, this lack of access and testing

infringes on his First and Fourteenth Amendment rights of access to the courts. See id.;

Compl. ¶¶ 67-71.

It is well established that prisoners have a constitutional right of access to the courts

that is “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817, 822 (1977).

As the Tenth Circuit has recognized, “conduct that unduly hinders litigation at any stage

of the proceedings” can be actionable on a prisoner’s denial-of-access claim. Vreeland v.

Schwartz, 613 F. App’x 679, 683 (10th Cir. 2015) (citing Cohen v. Longshore, 621 F.3d

1311, 1317 (10th Cir. 2010)). And the right of access to the courts has been defined to

include “direct and collateral attacks on convictions and sentences.” Allen v. Raemisch,

603 F. App’x 682, 684 (10th Cir. 2015) (citing Lewis v. Casey, 518 U.S. 343, 353-54

(1996)). But a necessary showing on such a claim is that the prisoner has suffered an actual

injury—“that is, that the defendant’s actions hindered the prisoner’s ability to proceed with

an actual, nonfrivolous claim.” Vreeland, 613 F. App’x at 683 (citing Lewis, 518 U.S. at

351-52); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“[T]he named

plaintiff must identify a nonfrivolous, arguable underlying claim.” (internal quotation

marks omitted)).

Plaintiff asserts that the potentially exculpatory DNA evidence could be used to

challenge his conviction and death sentence in a postconviction application or to obtain

executive clemency. But even assuming these avenues for relief qualify as an underlying

claim that could be “unduly hinder[ed]” by Defendants’ conduct, neither of these proffered

causes of action will support an access to courts claim because Plaintiff “has failed to allege

an actual, nonspeculative injury.” Vreeland, 613 F. App’x at 683. Plaintiff’s ability to

pursue these underlying efforts rests upon, at a minimum, not only obtaining access to the

cited physical evidence, but also (i) successfully conducting DNA testing upon that

evidence; (ii) receiving favorable testing results; and (iii) presentation of those results to

obtain judicial relief or executive clemency. Plaintiff’s alleged underlying claim is

therefore far too speculative and conditional to show “actual injury” from any conduct of

Defendants “frustrating” that claim. Christopher, 536 U.S. at 415-16 (noting that the

pleading must “show that the ‘arguable’ nature of the underlying claim is more than hope”).

In addition, because Plaintiff has not shown that the Postconviction DNA Act

deprives him of procedural due process, “it follows that it does not improperly interfere

with [his] right of access to the courts.” Cromartie, 941 F.3d at 1258 (internal quotation

marks omitted). “That [Plaintiff] has not succeeded in obtaining potentially exculpatory

evidence under the state’s constitutionally adequate procedures is not a denial of his right

to access the courts.” Id.

Accordingly, Plaintiff has shown neither a likelihood of success nor actual success

on the merits of his access to courts claim.

VII. Likelihood of Success and Actual Success on the Merits: Cruel and Unusual

Punishment

“The Eighth Amendment, made applicable to the States through the Fourteenth

Amendment, prohibits the infliction of ‘cruel and unusual punishments.’” Glossip v.

Gross, 576 U.S. 863, 876 (2015). Plaintiff alleges that the Postconviction DNA Act

violates the Eighth Amendment’s prohibition on cruel and unusual punishment because the

statute does not authorize DNA testing where the evidence “could change the outcome at

capital sentencing, even if it did not also change the outcome at trial.” Compl. ¶¶ 72-73.

Plaintiff contends it would violate “the most basic standards of decency” to execute a

prisoner who has “viable claims of innocence and of innocence of the death penalty.” Pl.’s

Mot. at 13.

Plaintiff has cited no governing authority to support this assertion, and the Court is

not aware of any precedent indicating the denial of DNA testing, or the execution of a

prisoner following such a denial, constitutes an Eighth Amendment violation. Cf. Nelson

v. Preleski, No. 3:20cv778, 2020 WL 4937991, at *9 (D. Conn. Aug. 24, 2020) (“Courts

have declined to find an Eighth Amendment right to the release of evidence for DNA

testing.” (citing cases)). Inasmuch as Plaintiff claims he is entitled to DNA testing to

challenge death penalty aggravators, his argument essentially seeks to constitutionalize a

right to DNA testing, a notion the Supreme Court unambiguously rejected in Osborne. See

Osborne, 557 U.S. at 72 (rejecting invitation to recognize “a freestanding right to DNA

evidence” under substantive due process).

Accordingly, Plaintiff has shown neither a likelihood of success nor actual success

on his claim of cruel and unusual punishment.

VIII. Conclusion

“An injunction can issue only if each factor is established.” Denver Homeless Out

Loud, 32 F.4th at 1277. Having concluded that Plaintiff has failed to establish a likelihood

of success or actual success on the merits of any of his legal claims, it is unnecessary to

address the remaining elements necessary for injunctive relief to issue. See Nova Health

Sys. v. Edmondson, 460 F.3d 1295, 1299 (10th Cir. 2006).

For the foregoing reasons, Plaintiff’s Motion for Preliminary and Permanent

Injunction (Doc. No. 11) is DENIED. Additionally, the hearing previously set for

November 1, 2023, is STRICKEN.

IT IS SO ORDERED this 27th day of October, 2023.

CHARLES B 2 ODWIN

United States District Judge

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