Permetter

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ADRIAN L. PERMETTER, )

)

Plaintiff, )

)

v. ) No. CIV-25-1548-HE

)

VICKI ZEMP BEHENNA, )

)

Defendant. )

REPORT AND RECOMMENDATION

Plaintiff Adrian L. Permetter, a state inmate appearing through counsel,

filed a complaint pursuant to 42 U.S.C. § 1983 and the Declaratory Judgment

Act, 28 U.S.C. § 2201, seeking access to DNA evidence from his criminal

prosecution for testing.1 Doc. 1. United States District Judge Joe Heaton

referred this matter to the undersigned Magistrate Judge for initial

proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). Doc. 3.

Before the Court is Defendant Behenna’s Motion to Dismiss. Doc. 15.

Plaintiff responded, Doc. 16, Defendant replied, Doc. 17, and Plaintiff sur-

replied (with leave of court), Doc. 20. So, the matter is at issue.

1 The complaint includes a verification page, which Plaintiff has not

signed. Doc. 1, at 14.

I. Background and Plaintiff’s allegations.

Plaintiff “is incarcerated in the custody of the Oklahoma Department of

Corrections following his 2019 conviction in Oklahoma County Case No. CF-

2017-409.” Doc. 1, at 2. Plaintiff “has continuously maintained his innocence.”

Id. During its investigation of the crime scene, law enforcement “collected

extensive physical evidence” and “swabbed the gun and magazine for DNA[,]”

but did not submit any of the evidence for DNA analysis. Id., at 4-5.

Following his conviction, Plaintiff filed an application in state court for

DNA testing pursuant to Oklahoma’s Postconviction DNA Act (“the Act”),

OKLA. STAT. TIT. 22, § 1373, et seq. Doc. 1, at 2.

In pertinent part, the Act states:

After the motion requesting forensic DNA testing and subsequent

response have been filed, the sentencing court shall hold a hearing

to determine whether DNA forensic testing will be ordered. A court

shall order DNA testing only if the court finds:

1. 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;

2. The request for DNA testing is made to demonstrate the

innocence of the convicted person and is not made to unreasonably

delay the execution of the sentence or the administration of justice;

3. One or more of the items of evidence the convicted person seeks

to have tested still exists;

4. The evidence to be tested was secured in relation to the

challenged conviction and either was not previously subject to

DNA testing or, if previously tested for DNA, the evidence can be

subjected to additional DNA testing that will provide a reasonable

likelihood of more probative results; and

5. The chain of custody of the evidence to be tested is sufficient to

establish that the evidence has not been substituted, tampered

with, replaced or altered in any material respect or, if the chain of

custody does not establish the integrity of the evidence, the testing

itself has the potential to establish the integrity of the evidence.

For purposes of this act, evidence that has been in the custody of

law enforcement, other government officials or a public or private

hospital shall be presumed to satisfy the chain-of-custody

requirement of this subsection absent specific evidence of material

tampering, replacement or alteration.

OKLA. STAT. TIT. 22, § 1373.4(A).

“On May 12, 2025, [following an April 4, 2025 evidentiary hearing,] the

District Court denied the Motion for DNA Testing, finding that Plaintiff had

not shown a ‘reasonable probability’ that favorable DNA results would have

changed the verdict.” Doc. 1, at 4-5. According to Plaintiff, this determination

was made based on: (1) the state court judge’s “belief in the credibility of the

victim’s trial testimony”; and (2) the victim’s identification of Plaintiff, as they

knew each other. Id. at 5-6.

Plaintiff asserts that the Act violates his Fourteenth Amendment

procedural due process rights where it “permits courts to rely on subjective

assessments of trial evidence rather than objective scientific inquiry” when

reviewing applications for postconviction DNA testing, and “operates as an

arbitrary, discretionary barrier to postconviction truth-seeking[.]” Id. at 6-7.

“Plaintiff requests injunctive relief to access the evidence sought” for testing

by a third-party laboratory.3 Id., at 12.

II. Standard of Review.

Defendant moves to dismiss the complaint for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under

Fed. R. Civ. P. 12(b)(6). Doc. 15, at 8.4

A motion to dismiss for lack of subject matter jurisdiction takes one of

two forms: a facial or a factual attack. Pueblo of Jemez v. United States, 790

F.3d 1143, 1148 n.4 (10th Cir. 2015). “A facial attack questions the sufficiency

of the complaint’s allegations.” Heldman v. Oklahoma, No. CIV-19-419-D, 2020

WL 939288, at *2 (W.D. Okla. Feb. 26, 2020). “If the motion challenges only

the sufficiency of the jurisdictional allegations in the complaint, the Court

confines its review to the pleadings and accepts the allegations in the

complaint as true.” Altstatt v. Bd. of Cnty. Comm’rs for Okla. Cnty., No. CIV-

22-811-D, 2023 WL 6208550, at *2 (W.D. Okla. Sept. 22, 2023).

3 Plaintiff has not alleged that the proposed third-party laboratory is

“accredited . . . as defined in Section 150.37 of Title 74 of the Oklahoma

Statutes.” OKLA. STAT. TIT. 22, § 1373.4(D).

4 Defendant also asserts Eleventh Amendment immunity, prosecutorial

immunity, and qualified immunity. Doc. 15, at 11, 12, 19. Because the

undersigned recommends granting the motion to dismiss, , the Court need

not consider these claims. See Moore v. City of Wynnewood, 57 F.3d 924, 931

(10th Cir. 1995); Kimbrough v. Kunzweiler, 2026 WL 1412610, at *6 n.9 (N.D.

Okla. May 20, 2026).

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

In reviewing a motion to dismiss, this Court “accept[s] the well-pleaded

facts alleged as true and view[s] them in the light most favorable to the

plaintiff.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275 (10th Cir.

2023). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations,” Twombly, 550 U.S. at 555, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice,” Iqbal, 556 U.S. at 678. “An allegation is conclusory

where it states an inference without stating underlying facts or is devoid of any

factual enhancement.” Clinton, 63 F.4th at 1275 (quoting Brooks v. Mentor

Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)).

“The nature and specificity of the allegations required to state a plausible

claim will vary based on context.” Id. (quoting Kan. Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). But this Court’s “task is to

consider the complaint’s allegations ‘taken as a whole.’” Id. (quoting U.S. ex

rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1173 (10th Cir. 2010)).

“[G]ranting [a] motion to dismiss is a harsh remedy which must be cautiously

studied, not only to effectuate the spirit of the liberal rules of pleading but also

to protect the interests of justice.” Id. at 1276 (quoting Dias v. City & Cnty. of

Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). But, “when the allegations in a

complaint, however true, could not raise a claim of entitlement to relief,” the

motion must be granted. Twombly, 550 U.S. at 558.

III. Analysis.

A. The Rooker-Feldman doctrine bars this Court from

reviewing the state court decisions Plaintiff challenges.

Plaintiff alleges that during his criminal trial, “[t]he State’s case rested

almost entirely on eyewitness testimony, which was internally inconsistent

and ambiguous regarding the identity of the shooter.” Doc. 1, at 3-4 (describing

weaknesses in the State’s evidence). Plaintiff then alleges that in denying his

motion for DNA testing, the state court failed to provide “reasons [that] were

grounded in scientific fact – they were credibility judgments and speculation,

not an objective analysis of DNA’s evidentiary value.” Id. at 5-6. Although

Plaintiff asserts that he challenges only the Act’s constitutionality, the

substance of his complaint extensively critiques the state court’s decision in

his case. Id. at 6 (“Plaintiff does not attack the Orders below; instead, [he]

discusses the facts to show that the statutory scheme is unconstitutional”); id.

at 2-7 (discussing testimony at trial and at the hearing for Plaintiff’s Motion

for DNA Testing).

At bottom, Plaintiff’s complaint asks the Court to review the state court

rulings. This Court lacks authority to do so. Market v. City of Garden City, 723

F. App’x 571, 572 (10th Cir. 2017) (“[O]nly the United States Supreme Court

has appellate authority to review a state-court decision.” (quoting Merrill

Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074-75 (10th Cir. 2004)).

The Rooker-Feldman doctrine bars “a party losing in state court . . . from

seeking what in substance would be appellate review of the state judgment in

a United States district court, based on the losing party’s claim that the state

judgment itself violates the loser’s federal rights.” Knox v. Bland, 632 F.3d

1290, 1292 (10th Cir. 2011) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-

06 (1994)). “[T]he doctrine applies to ‘cases brought by state-court losers

complaining of injuries caused by state-court judgments rendered before the

[federal] district court proceedings commenced and inviting district court

review and rejection of those judgments.’” Alexander v. Lucas, 259 F. App’x

145, 148 (10th Cir. 2007) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284 (2005)). “Rooker-Feldman’s applicability turns on

whether the relief sought . . . would reverse or ‘undo’ the state-court judgment.”

Market, 723 F. App’x at 574 (brackets and internal quotation marks omitted).

Plaintiff’s complaint seeks precisely that result. See Simpson v. Quick, No. 26-

6008, 2026 WL 297077, at *2-4 (10th Cir. Feb. 4, 2026) (“In short, the

allegations of Mr. Simpson’s complaint illustrate that his § 1983 lawsuit fits

within Rooker-Feldman’s bar against district court review of state-court

decisions.”), cert. denied, 223 L. Ed. 2d 587 (Feb. 11, 2026); Kimbrough v.

Kunzweiler, 2026 WL 1412610, at *5 (N.D. Okla. May 20, 2026) (“To the extent

Kimbrough requests this Court to review and overturn the state sentencing

court's decision, this claim must be dismissed for lack of subject matter

jurisdiction under the Rooker-Feldman doctrine.”); Neal v. Prater, No. CIV-19-

277-SLP, 2019 WL 6045586, at *2-3 (W.D. Okla. Nov. 15, 2019) (“To the extent

that Plaintiff's current action asks this Court to find that Plaintiff does, in fact,

meet the statute’s requirements, his action is barred by the Rooker-Feldman

doctrine.”); cf. Huey v. Kunzweiler for Tulsa Cnty. State, 847 F. App’x 530, 533

(10th Cir. 2021) (finding no jurisdictional bar where “Mr. Huey’s complaint

does not discuss his motion or the state courts’ disposition of the motion.”);

Smith v. Jordan, 2025 WL 2598792, at *5 (N.D. Okla. Sept. 8, 2025) (“Finally,

Mr. Smith appears to assert a claim challenging the district court’s decision

not to issue sanctions for the alleged improper destruction of the evidence. The

Court understands this claim as a request for this Court to review and overturn

a state court decision. This claim must be dismissed for lack of subject matter

jurisdiction under the Rooker-Feldman doctrine.” (internal citation omitted)).

Therefore, the undersigned recommends dismissal of the complaint for lack of

jurisdiction.

B. In the alternative, Plaintiff fails to state a claim.

The constitutionality of the Act, and its “reasonable probability”

requirement, has been litigated many times. See Huey, 847 F. App’x 530;

Hancock v. Behenna, No. CIV-23-873-G, 2023 WL 7118020, at *4 (W.D. Okla.

Oct. 27, 2023); Tarver v. Kunzweiler, 2020 WL 6050572, at *6 (N.D. Okla. Oct.

13, 2020); Neal v. Prater, No. CIV-19-277-SLP, 2019 WL 6045586, at *4 (W.D.

Okla. Nov. 15, 2019) (“Assuming that Oklahoma law creates a liberty interest

in Plaintiff being allowed access to the evidence he seeks in order to perform

postconviction DNA testing, the Court finds that the procedures imposed by

OKLA. STAT. TIT. 22, §§ 1373-1373.7 at least pass due-process muster.”); Pickens

v. Kunzweiler, 2016 WL 1651821, at *4 (N.D. Okla. Apr. 25, 2016). Every

federal court to consider the validity of the statute and its “reasonable

probability” requirement has found that it is constitutional.

Procedural due process challenges to postconviction DNA-testing

statutes are governed by District Attorney’s Office v. Osborne, 557 U.S. 52

(2009). There, the Supreme Court foreclosed the possibility of substantive due

process challenges to such statutes and limited the availability of procedural

due process claims. Id. at 72 (there is no “freestanding right to DNA evidence”

that would implicate substantive due process.). To prove that a state DNA-

testing statute violates procedural due process, a plaintiff must show that

the State’s postconviction relief procedures “are fundamentally inadequate to

vindicate the substantive rights provided.” Id. at 69 (upholding Alaska’s

postconviction DNA-testing statute which required a plaintiff to show (1) the

evidence was “newly available,” (2) the plaintiff “diligently pursued” the

evidence; (3) the evidence was “sufficiently material”).

Plaintiff asserts that the “reasonable probability” requirement imposed

by the Act allows judges “unfettered discretion” to deny requests for DNA

testing. Doc. 1, at 9. However, such a requirement is a common feature of

postconviction DNA-testing statutes across the country. See, e.g., Cromartie v.

Shealey, 941 F.3d 1244 (11th Cir. 2019) (upholding reasonable probability

standard in Georgia postconviction relief statute); Morrison v. Peterson, 809

F.3d 1059, 1068 (9th Cir. 2015) (“Where there is enough other incriminating

evidence and an explanation for the DNA result, science alone cannot prove a

prisoner innocent”); Osborne, 557 U.S. at 64. It is also similar to well-

established legal standards applied without issue in other areas of the law. See

Cromartie, 941 F.3d at 1257 (citing, inter alia, Strickland v. Washington, 466

U.S. 668, 695 (1984) (ineffective assistance of counsel) and Kyles v. Whitley,

514 U.S. 419, 433 (1995) (standard for Brady disclosures)). Plaintiff fails to

explain why the test, in this context, is so unworkable as to implicate

established precedents. Accordingly, the Court should dismiss the action under

Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

IV. Recommendation and notice of right to object.

For these reasons, the undersigned recommends that the Court dismiss

the action for lack of subject-matter jurisdiction under the Rooker-Feldman

doctrine or, alternatively, for failure to state a claim upon which relief can be

granted.

The undersigned advises the parties of their right to file an objection to

this Report and Recommendation with the Clerk of Court on or before

September 14, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).

The undersigned also advises the parties that the failure to file a timely

objection to this Report and Recommendation waives the right to appellate

review of both the factual and legal issues contained herein. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the

undersigned in the captioned matter and terminates the referral.

SO ORDERED this 24th day of August, 2026.

Aga Liter _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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