District Attorney's Office for the Third Judicial District v. Osborne

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

DISTRICT ATTORNEY’S OFFICE FOR THE THIRD

JUDICIAL DISTRICT ET AL. v. OSBORNE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 08–6. Argued March 2, 2009—Decided June 18, 2009

Respondent Osborne was convicted of sexual assault and other crimes

in state court. Years later, he filed this suit under 42 U. S. C. §1983,

claiming he had a due process right to access the evidence used

against him in order to subject it to DNA testing at his own expense.

The Federal District Court first dismissed his claim under Heck v.

Humphrey, 512 U. S. 477, holding that Osborne must proceed in ha

beas because he sought to set the stage for an attack on his convic

tion. The Ninth Circuit reversed, concluding that §1983 was the

proper vehicle for Osborne’s claims. On remand, the District Court

granted Osborne summary judgment, concluding that he had a lim

ited constitutional right to the new testing under the unique and spe

cific facts presented, i.e., that such testing had been unavailable at

trial, that it could be accomplished at almost no cost to the State, and

that the results were likely to be material. The Ninth Circuit af

firmed, relying on the prosecutorial duty to disclose exculpatory evi

dence under, e.g., Brady v. Maryland, 373 U. S. 83.

Held: Assuming Osborne’s claims can be pursued using §1983, he has

no constitutional right to obtain postconviction access to the State’s

evidence for DNA testing. Pp. 8–21.

(a) DNA testing has an unparalleled ability both to exonerate the

wrongly convicted and to identify the guilty. The availability of new

DNA testing technologies, however, cannot mean that every criminal

conviction, or even every criminal conviction involving biological evi

dence, is suddenly in doubt. The task of establishing rules to harness

DNA’s power to prove innocence without unnecessarily overthrowing

the established criminal justice system belongs primarily to the legis

lature. See Washington v. Glucksberg, 521 U. S. 702, 719. Forty-six

2 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

Syllabus

States and the Federal Government have already enacted statutes

dealing specifically with access to evidence for DNA testing. These

laws recognize the value of DNA testing but also the need for condi

tions on accessing the State’s evidence. Alaska is one of a handful of

States yet to enact specific DNA testing legislation, but Alaska courts

are addressing how to apply existing discovery and postconviction re

lief laws to this novel technology. Pp. 8–11.

(b) The Court assumes without deciding that the Ninth Circuit was

correct that Heck does not bar Osborne’s §1983 claim. That claim can

be rejected without resolving the proper application of Heck. Pp. 12–

13.

(c) The Ninth Circuit erred in finding a due process violation.

Pp. 13–21.

(i) While Osborne does have a liberty interest in pursuing the

postconviction relief granted by the State, the Ninth Circuit erred in

extending the Brady right of pretrial disclosure to the postconviction

context. Osborne has already been found guilty and therefore has

only a limited liberty interest in postconviction relief. See, e.g.,

Herrera v. Collins, 506 U. S. 390, 399. Instead of the Brady inquiry,

the question is whether consideration of Osborne’s claim within the

framework of the State’s postconviction relief procedures “offends

some [fundamental] principle of justice” or “transgresses any recog

nized principle of fundamental fairness in operation.” Medina v.

California, 505 U. S. 437, 446, 448. Federal courts may upset a

State’s postconviction relief procedures only if they are fundamen

tally inadequate to vindicate the substantive rights provided.

There is nothing inadequate about Alaska’s postconviction relief

procedures in general or its methods for applying those procedures to

persons seeking access to evidence for DNA testing. The State pro

vides a substantive right to be released on a sufficiently compelling

showing of new evidence that establishes innocence. It also provides

for discovery in postconviction proceedings, and has—through judi

cial decision—specified that such discovery is available to those seek

ing access to evidence for DNA testing. These procedures are similar

to those provided by federal law and the laws of other States, and

they satisfy due process. The same is true for Osborne’s reliance on a

claimed federal right to be released upon proof of “actual innocence.”

Even assuming such a right exists, which the Court has not decided

and does not decide, there is no due process problem, given the pro

cedures available to access evidence for DNA testing. Pp. 13–18.

(ii) The Court rejects Osborne’s invitation to recognize a free

standing, substantive due process right to DNA evidence untethered

from the liberty interests he hopes to vindicate with it. In the cir

cumstances of this case, there is no such right. Generally, the Court

Cite as: 557 U. S. ____ (2009) 3

Syllabus

is “reluctant to expand the concept of substantive due process be

cause guideposts for responsible decisionmaking in this unchartered

area are scarce and open-ended.” Collins v. Harker Heights, 503

U. S. 115, 125. There is no long history of a right of access to state

evidence for DNA testing that might prove innocence. “The mere

novelty of such a claim is reason enough to doubt that ‘substantive

due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303. More

over, to suddenly constitutionalize this area would short-circuit what

has been a prompt and considered legislative response by Congress

and the States. It would shift to the Federal Judiciary responsibility

for devising rules governing DNA access and creating a new constitu

tional code of procedures to answer the myriad questions that would

arise. There is no reason to suppose that federal courts’ answers to

those questions will be any better than those of state courts and leg

islatures, and good reason to suspect the opposite. See, e.g., Collins,

supra, at 125. Pp. 19–21.

521 F. 3d 1118, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,

KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring

opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined

as to Part II. STEVENS, J., filed a dissenting opinion, in which GINS-

BURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part

I. SOUTER, J., filed a dissenting opinion.

Cite as: 557 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–6

_________________

DISTRICT ATTORNEY’S OFFICE FOR THE THIRD

JUDICIAL DISTRICT, ET AL., PETITIONERS v.

WILLIAM G. OSBORNE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2009]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

DNA testing has an unparalleled ability both to exoner

ate the wrongly convicted and to identify the guilty. It has

the potential to significantly improve both the criminal

justice system and police investigative practices. The

Federal Government and the States have recognized this,

and have developed special approaches to ensure that this

evidentiary tool can be effectively incorporated into estab

lished criminal procedure—usually but not always

through legislation.

Against this prompt and considered response, the re

spondent, William Osborne, proposes a different approach:

the recognition of a freestanding and far-reaching consti

tutional right of access to this new type of evidence. The

nature of what he seeks is confirmed by his decision to file

this lawsuit in federal court under 42 U. S. C. §1983, not

within the state criminal justice system. This approach

would take the development of rules and procedures in

this area out of the hands of legislatures and state courts

2 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

shaping policy in a focused manner and turn it over to

federal courts applying the broad parameters of the Due

Process Clause. There is no reason to constitutionalize the

issue in this way. Because the decision below would do

just that, we reverse.

I

A

This lawsuit arose out of a violent crime committed 16

years ago, which has resulted in a long string of litigation

in the state and federal courts. On the evening of March

22, 1993, two men driving through Anchorage, Alaska,

solicited sex from a female prostitute, K. G. She agreed to

perform fellatio on both men for $100 and got in their car.

The three spent some time looking for a place to stop and

ended up in a deserted area near Earthquake Park. When

K. G. demanded payment in advance, the two men pulled

out a gun and forced her to perform fellatio on the driver

while the passenger penetrated her vaginally, using a blue

condom she had brought. The passenger then ordered

K. G. out of the car and told her to lie face-down in the

snow. Fearing for her life, she refused, and the two men

choked her and beat her with the gun. When K. G. tried

to flee, the passenger beat her with a wooden axe handle

and shot her in the head while she lay on the ground.

They kicked some snow on top of her and left her for dead.

521 F. 3d 1118, 1122 (CA9 2008) (case below); Osborne v.

State, 163 P. 3d 973, 975–976 (Alaska App. 2007) (Osborne

II); App. 27, 42–44.

K. G. did not die; the bullet had only grazed her head.

Once the two men left, she found her way back to the road,

and flagged down a passing car to take her home. Ulti

mately, she received medical care and spoke to the police.

At the scene of the crime, the police recovered a spent

shell casing, the axe handle, some of K. G.’s clothing

stained with blood, and the blue condom. Jackson v.

Cite as: 557 U. S. ____ (2009) 3

Opinion of the Court

State, No. A–5276 etc. (Alaska App., Feb. 7, 1996), App. to

Pet. for Cert. 117a.

Six days later, two military police officers at Fort

Richardson pulled over Dexter Jackson for flashing his

headlights at another vehicle. In his car they discovered a

gun (which matched the shell casing), as well as several

items K. G. had been carrying the night of the attack. Id.,

at 116a, 118a–119a. The car also matched the description

K. G. had given to the police. Jackson admitted that he

had been the driver during the rape and assault, and told

the police that William Osborne had been his passenger.

521 F. 3d, at 1122–1123; 423 F. 3d 1050, 1051–1052 (CA9

2005); Osborne v. State, 110 P. 3d 986, 990 (Alaska App.

2005) (Osborne I). Other evidence also implicated Os

borne. K. G. picked out his photograph (with some uncer

tainty) and at trial she identified Osborne as her attacker.

Other witnesses testified that shortly before the crime,

Osborne had called Jackson from an arcade, and then

driven off with him. An axe handle similar to the one at

the scene of the crime was found in Osborne’s room on the

military base where he lived.

The State also performed DQ Alpha testing on sperm

found in the blue condom. DQ Alpha testing is a relatively

inexact form of DNA testing that can clear some wrongly

accused individuals, but generally cannot narrow the

perpetrator down to less than 5% of the population. See

Dept. of Justice, National Comm’n on the Future of DNA

Evidence, The Future of Forensic DNA Testing 17 (NCJ

183697, 2000) (hereinafter Future of Forensic DNA Test

ing); Dept. of Justice, National Comm’n on the Future of

DNA Evidence, Postconviction DNA Testing: Recommen

dations for Handling Requests 27 (NCJ 177626, 1999)

(hereinafter Postconviction DNA Testing). The semen

found on the condom had a genotype that matched a blood

sample taken from Osborne, but not ones from Jackson,

K. G., or a third suspect named James Hunter. Osborne is

4 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

black, and approximately 16% of black individuals have

such a genotype. App. 117–119. In other words, the test

ing ruled out Jackson and Hunter as possible sources of

the semen, and also ruled out over 80% of other black

individuals. The State also examined some pubic hairs

found at the scene of the crime, which were not susceptible

to DQ Alpha testing, but which state witnesses attested to

be similar to Osborne’s. App. to Pet. for Cert. 117a.

B

Osborne and Jackson were convicted by an Alaska jury

of kidnaping, assault, and sexual assault. They were

acquitted of an additional count of sexual assault and of

attempted murder. Finding it “ ‘nearly miraculous’ ” that

K. G. had survived, the trial judge sentenced Osborne to

26 years in prison, with 5 suspended. Id., at 128a. His

conviction and sentence were affirmed on appeal. Id., at

113a–130a.

Osborne then sought postconviction relief in Alaska

state court. He claimed that he had asked his attorney,

Sidney Billingslea, to seek more discriminating restric

tion-fragment-length-polymorphism (RFLP) DNA testing

during trial, and argued that she was constitutionally

ineffective for not doing so.1 Billingslea testified that after

investigation, she had concluded that further testing

would do more harm than good. She planned to mount a

defense of mistaken identity, and thought that the impre

cision of the DQ Alpha test gave her “ ‘very good numbers

in a mistaken identity, cross-racial identification case,

where the victim was in the dark and had bad eyesight.’ ”

——————

1 RFLP testing, unlike DQ Alpha testing, “has a high degree of dis

crimination,” although it is sometimes ineffective on small samples.

Postconviction DNA Testing 26–27; Future of Forensic DNA Testing

14–16. Billingslea testified that she had no memory of Osborne making

such a request, but said she was “ ‘willing to accept’ ” that he had.

Osborne I, 110 P. 3d 986, 990 (Alaska App. 2005).

Cite as: 557 U. S. ____ (2009) 5

Opinion of the Court

Osborne I, 110 P. 3d, at 990. Because she believed Os

borne was guilty, “ ‘insisting on a more advanced . . . DNA

test would have served to prove that Osborne committed

the alleged crimes.’ ” Ibid. The Alaska Court of Appeals

concluded that Billingslea’s decision had been strategic

and rejected Osborne’s claim. Id., at 991–992.

In this proceeding, Osborne also sought the DNA testing

that Billingslea had failed to perform, relying on an

Alaska postconviction statute, Alaska Stat. §12.72 (2008),

and the State and Federal Constitutions. In two decisions,

the Alaska Court of Appeals concluded that Osborne had

no right to the RFLP test. According to the court, §12.72

“apparently” did not apply to DNA testing that had been

available at trial.2 Osborne I, 110 P. 3d, at 992–993. The

court found no basis in our precedents for recognizing a

federal constitutional right to DNA evidence. Id., at 993.

After a remand for further findings, the Alaska Court of

Appeals concluded that Osborne could not claim a state

constitutional right either, because the other evidence of

his guilt was too strong and RFLP testing was not likely to

be conclusive. Osborne II, 163 P. 3d, at 979–981. Two of

the three judges wrote separately to say that “[i]f Osborne

could show that he were in fact innocent, it would be

unconscionable to punish him,” and that doing so might

violate the Alaska Constitution. Id., at 984–985 (Mann

heimer, J., concurring).

The court relied heavily on the fact that Osborne had

confessed to some of his crimes in a 2004 application for

parole—in which it is a crime to lie. Id., at 978–979, 981

(majority opinion) (citing Alaska Stat. §11.56.210 (2002)).

In this statement, Osborne acknowledged forcing K. G. to

——————

2 It is not clear whether the Alaska Court of Appeals was correct that

Osborne sought only forms of DNA testing that had been available at

trial, compare Osborne I, supra, at 992, 995, with 521 F. 3d 1118, 1123,

n. 2 (CA9 2008), but it resolved the case on that basis.

6 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

have sex at gunpoint, as well as beating her and covering

her with snow. Id., at 977–978, n. 11. He repeated this

confession before the parole board. Despite this accep

tance of responsibility, the board did not grant him discre

tionary parole. App. to Pet. for Cert. 8a. In 2007, he was

released on mandatory parole, but he has since been rear

rested for another offense, and the State has petitioned to

revoke this parole. Brief for Petitioners 7, n. 3.

Meanwhile, Osborne had also been active in federal

court, suing state officials under 42 U. S. C. §1983. He

claimed that the Due Process Clause and other constitu

tional provisions gave him a constitutional right to access

the DNA evidence for what is known as short-tandem

repeat (STR) testing (at his own expense). App. 24. This

form of testing is more discriminating than the DQ Alpha

or RFLP methods available at the time of Osborne’s trial.3

The District Court first dismissed the claim under Heck v.

Humphrey, 512 U. S. 477 (1994), holding it “inescapable”

that Osborne sought to “set the stage” for an attack on his

conviction, and therefore “must proceed through a writ of

habeas corpus.” App. 207 (internal quotation marks omit

ted). The United States Court of Appeals for the Ninth

Circuit reversed, concluding that §1983 was the proper

vehicle for Osborne’s claims, while “express[ing] no opin

ion as to whether Osborne ha[d] been deprived of a feder

ally protected right.” 423 F. 3d, at 1056.

On cross-motions for summary judgment after remand,

——————

3 STR testing is extremely discriminating, can be used on small sam

ples, and is “rapidly becoming the standard.” Future of Forensic DNA

Testing 18, n. 9. Osborne also sought to subject the pubic hairs to

mitochondrial DNA testing, a secondary testing method often used

when a sample cannot be subjected to other tests. See Postconviction

DNA Testing 28. He argues that “[a]ll of the same arguments that

support access to the condom for STR testing support access to the

hairs for mitochondrial testing as well,” Brief for Respondent 11, n. 4,

and we treat the claim accordingly.

Cite as: 557 U. S. ____ (2009) 7

Opinion of the Court

the District Court concluded that “there does exist, under

the unique and specific facts presented, a very limited

constitutional right to the testing sought.” 445 F. Supp.

2d 1079, 1081 (2006). The court relied on several factors:

that the testing Osborne sought had been unavailable at

trial, that the testing could be accomplished at almost no

cost to the State, and that the results were likely to be

material. Id., at 1081–1082. It therefore granted sum

mary judgment in favor of Osborne.

The Court of Appeals affirmed, relying on the prosecuto

rial duty to disclose exculpatory evidence recognized in

Pennsylvania v. Ritchie, 480 U. S. 39 (1987), and Brady v.

Maryland, 373 U. S. 83 (1963). While acknowledging that

our precedents “involved only the right to pre-trial disclo

sure,” the court concluded that the Due Process Clause

also “extends the government’s duty to disclose (or the

defendant’s right of access) to post-conviction proceedings.”

521 F. 3d, at 1128. Although Osborne’s trial and appeals

were over, the court noted that he had a “potentially vi

able” state constitutional claim of “actual innocence,” id.,

at 1130, and relied on the “well-established assumption”

that a similar claim arose under the Federal Constitution,

id., at 1131; cf. Herrera v. Collins, 506 U. S. 390 (1993).

The court held that these potential claims extended some

of the State’s Brady obligations to the postconviction

context.

The court declined to decide the details of what showing

must be made to access the evidence because it found

“Osborne’s case for disclosure . . . so strong on the facts”

that “[w]herever the bar is, he crosses it.” 521 F. 3d, at

1134. While acknowledging that Osborne’s prior confes

sions were “certainly relevant,” the court concluded that

they did not “necessarily trum[p] . . . the right to obtain

post-conviction access to evidence” in light of the “emerg

ing reality of wrongful convictions based on false confes

sions.” Id., at 1140.

8 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

We granted certiorari to decide whether Osborne’s

claims could be pursued using §1983, and whether he has

a right under the Due Process Clause to obtain postconvic

tion access to the State’s evidence for DNA testing. 555

U. S. ___ (2008); Pet. for Cert. i. We now reverse on the

latter ground.

II

Modern DNA testing can provide powerful new evidence

unlike anything known before. Since its first use in crimi

nal investigations in the mid-1980s, there have been

several major advances in DNA technology, culminating in

STR technology. It is now often possible to determine

whether a biological tissue matches a suspect with near

certainty. While of course many criminal trials proceed

without any forensic and scientific testing at all, there is

no technology comparable to DNA testing for matching

tissues when such evidence is at issue. Postconviction

DNA Testing 1–2; Future of Forensic DNA Testing 13–14.

DNA testing has exonerated wrongly convicted people, and

has confirmed the convictions of many others.

At the same time, DNA testing alone does not always

resolve a case. Where there is enough other incriminating

evidence and an explanation for the DNA result, science

alone cannot prove a prisoner innocent. See House v. Bell,

547 U. S. 518, 540–548 (2006). The availability of tech

nologies not available at trial cannot mean that every

criminal conviction, or even every criminal conviction

involving biological evidence, is suddenly in doubt. The

dilemma is how to harness DNA’s power to prove inno

cence without unnecessarily overthrowing the established

system of criminal justice.

That task belongs primarily to the legislature. “[T]he

States are currently engaged in serious, thoughtful ex

aminations,” Washington v. Glucksberg, 521 U. S. 702, 719

(1997), of how to ensure the fair and effective use of this

Cite as: 557 U. S. ____ (2009) 9

Opinion of the Court

testing within the existing criminal justice framework.

Forty-six States have already enacted statutes dealing

specifically with access to DNA evidence. See generally

Brief for State of California et al. as Amici Curiae 3–13;

Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719

(2008) (surveying state statutes); see also An Act to Im

prove the Preservation and Accessibility of Biological

Evidence, Mississippi S. 2709 (enacted March 16, 2009);

An Act to Provide for DNA Testing for Certain Inmates for

the Purposes of Determining Whether They May Have

Been Wrongfully Convicted, South Dakota H. 1166 (en

acted March 11, 2009). The State of Alaska itself is con

sidering joining them. See An Act Relating to Post

conviction DNA Testing, H. 174, 26th Leg., 1st Sess.

(2009) (proposed legislation similar to that enacted by the

States). The Federal Government has also passed the

Innocence Protection Act of 2004, §411, 118 Stat. 2278,

codified in part at 18 U. S. C. §3600, which allows federal

prisoners to move for court-ordered DNA testing under

certain specified conditions. That Act also grants money

to States that enact comparable statutes, §413, 118 Stat.

2285, note following 42 U. S. C. §14136, and as a conse

quence has served as a model for some state legislation.

At oral argument, Osborne agreed that the federal statute

is a model for how States ought to handle the issue. Tr. of

Oral Arg. 33, 38–39; see also Brief for United States as

Amicus Curiae 19–26 (defending constitutionality of Inno

cence Protection Act).

These laws recognize the value of DNA evidence but also

the need for certain conditions on access to the State’s

evidence. A requirement of demonstrating materiality is

common, e.g., 18 U. S. C. §3600(a)(8), but it is not the only

one. The federal statute, for example, requires a sworn

statement that the applicant is innocent. §3600(a)(1).

This requirement is replicated in several state statutes.

E.g., Cal. Penal Code Ann. §§1405(b)(1), (c)(1) (West Supp.

10 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

2009); Fla. Stat. §925.11(2)(a)(3) (2006); N. H. Rev. Stat.

Ann. 651–D:2(I)(b) (2007); S. C. Code Ann. 17–28–40

(Supp. 2008). States also impose a range of diligence

requirements. Several require the requested testing to

“have been technologically impossible at trial.” Garrett,

supra, at 1681, and n. 242. Others deny testing to those

who declined testing at trial for tactical reasons. E.g.,

Utah Code. Ann. §78B–9–301(4) (2008).

Alaska is one of a handful of States yet to enact legisla

tion specifically addressing the issue of evidence requested

for DNA testing. But that does not mean that such evi

dence is unavailable for those seeking to prove their inno

cence. Instead, Alaska courts are addressing how to apply

existing laws for discovery and postconviction relief to this

novel technology. See Osborne I, 110 P. 3d, at 992–993;

Patterson v. State, No. A–8814, 2006 WL 573797, *4

(Alaska App., Mar. 8, 2006). The same is true with respect

to other States that do not have DNA-specific statutes.

E.g., Fagan v. State, 957 So. 2d 1159 (Ala. Crim. App.

2007). Cf. Mass. Rule Crim. Proc. 30(c)(4) (2009).

First, access to evidence is available under Alaska law

for those who seek to subject it to newly available DNA

testing that will prove them to be actually innocent.

Under the State’s general postconviction relief statute, a

prisoner may challenge his conviction when “there exists

evidence of material facts, not previously presented and

heard by the court, that requires vacation of the conviction

or sentence in the interest of justice.” Alaska Stat.

§12.72.010(4) (2008). Such a claim is exempt from other

wise applicable time limits if “newly discovered evidence,”

pursued with due diligence, “establishes by clear and

convincing evidence that the applicant is innocent.”

§12.72.020(b)(2).

Both parties agree that under these provisions of §12.72,

“a defendant is entitled to post-conviction relief if the

defendant presents newly discovered evidence that estab

Cite as: 557 U. S. ____ (2009) 11

Opinion of the Court

lishes by clear and convincing evidence that the defendant

is innocent.” Osborne I, supra, at 992 (internal quotation

marks omitted). If such a claim is brought, state law

permits general discovery. See Alaska Rule Crim.

Proc. 35.1(g). Alaska courts have explained that these

procedures are available to request DNA evidence for

newly available testing to establish actual innocence. See

Patterson, supra, at *4 (“If Patterson had brought the

DNA analysis request as part of his previous application

for [postconviction] relief . . . he would have been able to

request production of evidence”).

In addition to this statutory procedure, the Alaska

Court of Appeals has invoked a widely accepted three-part

test to govern additional rights to DNA access under the

State Constitution. Osborne II, 163 P. 3d, at 974–975.

Drawing on the experience with DNA evidence of State

Supreme Courts around the country, the Court of Appeals

explained that it was “reluctant to hold that Alaska law

offers no remedy to defendants who could prove their

factual innocence.” Osborne I, 110 P. 3d, at 995; see id., at

995, n. 27 (citing decisions from other state courts). It was

“prepared to hold, however, that a defendant who seeks

post-conviction DNA testing . . . must show (1) that the

conviction rested primarily on eyewitness identification

evidence, (2) that there was a demonstrable doubt con

cerning the defendant’s identification as the perpetrator,

and (3) that scientific testing would likely be conclusive on

this issue.” Id., at 995. Thus, the Alaska courts have

suggested that even those who do not get discovery under

the State’s criminal rules have available to them a safety

valve under the State Constitution.

This is the background against which the Federal Court

of Appeals ordered the State to turn over the DNA evi

dence in its possession, and it is our starting point in

analyzing Osborne’s constitutional claims.

12 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

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Opinion of the Court

III

The parties dispute whether Osborne has invoked the

proper federal statute in bringing his claim. He sued

under the federal civil rights statute, 42 U. S. C. §1983,

which gives a cause of action to those who challenge a

State’s “deprivation of any rights . . . secured by the Con

stitution.” The State insists that Osborne’s claim must be

brought under 28 U. S. C. §2254, which allows a prisoner

to seek “a writ of habeas corpus . . . on the ground that he

is in custody in violation of the Constitution.”

While Osborne’s claim falls within the literal terms of

§1983, we have also recognized that §1983 must be read in

harmony with the habeas statute. See Preiser v. Rodri

guez, 411 U. S. 475, 500 (1973); Heck, 512 U. S., at 487.

“Stripped to its essence,” the State says, “Osborne’s §1983

action is nothing more than a request for evidence to

support a hypothetical claim that he is actually inno

cent. . . . [T]his hypothetical claim sounds at the core of

habeas corpus.” Brief for Petitioners 19.

Osborne responds that his claim does not sound in

habeas at all. Although invalidating his conviction is of

course his ultimate goal, giving him the evidence he seeks

“would not necessarily imply the invalidity of [his] con

finement.” Brief for Respondent 21. If he prevails, he

would receive only access to the DNA, and even if DNA

testing exonerates him, his conviction is not automatically

invalidated. He must bring an entirely separate suit or a

petition for clemency to invalidate his conviction. If he

were proved innocent, the State might also release him on

its own initiative, avoiding any need to pursue habeas at

all.

Osborne also invokes our recent decision in Wilkinson v.

Dotson, 544 U. S. 74 (2005). There, we held that prisoners

who sought new hearings for parole eligibility and suit

ability need not proceed in habeas. We acknowledged that

the two plaintiffs “hope[d]” their suits would “help bring

Cite as: 557 U. S. ____ (2009) 13

Opinion of the Court

about earlier release,” id., at 78, but concluded that the

§1983 suit would not accomplish that without further

proceedings. “Because neither prisoner’s claim would

necessarily spell speedier release, neither l[ay] at the core

of habeas corpus.” Id., at 82 (internal quotation marks

omitted). Every Court of Appeals to consider the question

since Dotson has decided that because access to DNA

evidence similarly does not “necessarily spell speedier

release,” ibid., it can be sought under §1983. See 423

F. 3d, at 1055–1056; Savory v. Lyons, 469 F. 3d 667, 672

(CA7 2006); McKithen v. Brown, 481 F. 3d 89, 103, and n.

15 (CA2 2007). On the other hand, the State argues that

Dotson is distinguishable because the challenged proce

dures in that case did not affect the ultimate “exercise of

discretion by the parole board.” Brief for Petitioners 32.

It also maintains that Dotson does not set forth “the exclu

sive test for whether a prisoner may proceed under §1983.”

Brief for Petitioners 32.

While we granted certiorari on this question, our resolu

tion of Osborne’s claims does not require us to resolve this

difficult issue. Accordingly, we will assume without decid

ing that the Court of Appeals was correct that Heck does

not bar Osborne’s §1983 claim. Even under this assump

tion, it was wrong to find a due process violation.

IV

A

“No State shall . . . deprive any person of life, liberty, or

property, without due process of law.” U. S. Const., Amdt.

14, §1; accord Amdt. 5. This Clause imposes procedural

limitations on a State’s power to take away protected

entitlements. See, e.g., Jones v. Flowers, 547 U. S. 220,

226–239 (2006). Osborne argues that access to the State’s

evidence is a “process” needed to vindicate his right to

prove himself innocent and get out of jail. Process is not

an end in itself, so a necessary premise of this argument is

14 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

Opinion of the Court

that he has an entitlement (what our precedents call a

“liberty interest”) to prove his innocence even after a fair

trial has proved otherwise. We must first examine this

asserted liberty interest to determine what process (if any)

is due. See Board of Regents of State Colleges v. Roth, 408

U. S. 564, 570–571 (1972); Olim v. Wakinekona, 461 U. S.

238, 250–251 (1983).

In identifying his potential liberty interest, Osborne

first attempts to rely on the Governor’s constitutional

authority to “grant pardons, commutations, and re

prieves.” Alaska Const., Art. III, §21. That claim can be

readily disposed of. We have held that noncapital defen

dants do not have a liberty interest in traditional state

executive clemency, to which no particular claimant is

entitled as a matter of state law. Connecticut Bd. of Par

dons v. Dumschat, 452 U. S. 458, 464 (1981). Osborne

therefore cannot challenge the constitutionality of any

procedures available to vindicate an interest in state

clemency.

Osborne does, however, have a liberty interest in dem

onstrating his innocence with new evidence under state

law. As explained, Alaska law provides that those who

use “newly discovered evidence” to “establis[h] by clear

and convincing evidence that [they are] innocent” may

obtain “vacation of [their] conviction or sentence in the

interest of justice.” Alaska Stat. §§12.72.020(b)(2),

12.72.010(4). This “state-created right can, in some cir

cumstances, beget yet other rights to procedures essential

to the realization of the parent right.” Dumschat, supra,

at 463; see also Wolff v. McDonnell, 418 U. S. 539, 556–

558 (1974).

The Court of Appeals went too far, however, in conclud

ing that the Due Process Clause requires that certain

familiar preconviction trial rights be extended to protect

Osborne’s postconviction liberty interest. After identifying

Osborne’s possible liberty interests, the court concluded

Cite as: 557 U. S. ____ (2009) 15

Opinion of the Court

that the State had an obligation to comply with the princi

ples of Brady v. Maryland, 373 U. S. 83. In that case, we

held that due process requires a prosecutor to disclose

material exculpatory evidence to the defendant before

trial. The Court of Appeals acknowledged that nothing in

our precedents suggested that this disclosure obligation

continued after the defendant was convicted and the case

was closed, 521 F. 3d, at 1128, but it relied on prior Ninth

Circuit precedent applying “Brady as a post-conviction

right,” id., at 1128–1129 (citing Thomas v. Goldsmith, 979

F. 2d 746, 749–750 (1992)). Osborne does not claim that

Brady controls this case, Brief for Respondent 39–40, and

with good reason.

A criminal defendant proved guilty after a fair trial does

not have the same liberty interests as a free man. At trial,

the defendant is presumed innocent and may demand that

the government prove its case beyond reasonable doubt.

But “[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.” Herrera v. Collins,

506 U. S. 390, 399 (1993). “Given a valid conviction, the

criminal defendant has been constitutionally deprived of

his liberty.” Dumschat, supra, at 464 (internal quotation

marks and alterations omitted).

The State accordingly has more flexibility in deciding

what procedures are needed in the context of postconvic

tion relief. “[W]hen a State chooses to offer help to those

seeking relief from convictions,” due process does not

“dictat[e] the exact form such assistance must assume.”

Pennsylvania v. Finley, 481 U. S. 551, 559 (1987). Os

borne’s right to due process is not parallel to a trial right,

but rather must be analyzed in light of the fact that he has

already been found guilty at a fair trial, and has only a

limited interest in postconviction relief. Brady is the

wrong framework.

Instead, the question is whether consideration of Os

16 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

Opinion of the Court

borne’s claim within the framework of the State’s proce

dures 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 opera

tion.” Medina v. California, 505 U. S. 437, 446, 448 (1992)

(internal quotation marks omitted); see Herrera, supra, at

407–408 (applying Medina to postconviction relief for

actual innocence); Finley, supra, at 556 (postconviction

relief procedures are constitutional if they “compor[t] with

fundamental fairness”). Federal courts may upset a

State’s postconviction relief procedures only if they are

fundamentally inadequate to vindicate the substantive

rights provided.

We see nothing inadequate about the procedures Alaska

has provided to vindicate its state right to postconviction

relief in general, and nothing inadequate about how those

procedures apply to those who seek access to DNA evi

dence. Alaska provides a substantive right to be released

on a sufficiently compelling showing of new evidence that

establishes innocence. It exempts such claims from oth

erwise applicable time limits. The State provides for

discovery in postconviction proceedings, and has—through

judicial decision—specified that this discovery procedure

is available to those seeking access to DNA evidence.

Patterson, 2006 WL 573797, at *4. These procedures are

not without limits. The evidence must indeed be newly

available to qualify under Alaska’s statute, must have

been diligently pursued, and must also be sufficiently

material. These procedures are similar to those provided

for DNA evidence by federal law and the law of other

States, see, e.g., 18 U. S. C. §3600(a), and they are not

inconsistent with the “traditions and conscience of our

people” or with “any recognized principle of fundamental

fairness.” Medina, supra, at 446, 448 (internal quotation

marks omitted).

Cite as: 557 U. S. ____ (2009) 17

Opinion of the Court

And there is more. While the Alaska courts have not

had occasion to conclusively decide the question, the

Alaska Court of Appeals has suggested that the State

Constitution provides an additional right of access to

DNA. In expressing its “reluctan[ce] to hold that Alaska

law offers no remedy” to those who belatedly seek DNA

testing, and in invoking the three-part test used by other

state courts, the court indicated that in an appropriate

case the State Constitution may provide a failsafe even for

those who cannot satisfy the statutory requirements under

general postconviction procedures. Osborne I, 110 P. 3d,

at 995–996.

To the degree there is some uncertainty in the details of

Alaska’s newly developing procedures for obtaining post

conviction access to DNA, we can hardly fault the State for

that. Osborne has brought this §1983 action without ever

using these procedures in filing a state or federal habeas

claim relying on actual innocence. In other words, he has

not tried to use the process provided to him by the State or

attempted to vindicate the liberty interest that is now the

centerpiece of his claim. When Osborne did request DNA

testing in state court, he sought RFLP testing that had

been available at trial, not the STR testing he now seeks,

and the state court relied on that fact in denying him

testing under Alaska law. Osborne I, supra, at 992 (“[T]he

DNA testing that Osborne proposes to perform on this

evidence existed at the time of Osborne’s trial”); Osborne

II, 163 P. 3d, at 984 (Mannheimer, J., concurring) (“[T]he

DNA testing [Osborne] proposes would not yield ‘new

evidence’ for purposes of . . . [Alaska Stat. §12.72.010]”

because it was “available at the time of Osborne’s trial”).

His attempt to sidestep state process through a new

federal lawsuit puts Osborne in a very awkward position.

If he simply seeks the DNA through the State’s discovery

procedures, he might well get it. If he does not, it may be

for a perfectly adequate reason, just as the federal statute

18 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

Opinion of the Court

and all state statutes impose conditions and limits on

access to DNA evidence. It is difficult to criticize the

State’s procedures when Osborne has not invoked them.

This is not to say that Osborne must exhaust state-law

remedies. See Patsy v. Board of Regents of Fla., 457 U. S.

496, 500–501 (1982). But it is Osborne’s burden to dem

onstrate the inadequacy of the state-law procedures avail

able to him in state postconviction relief. Cf. Medina,

supra, at 453. These procedures are adequate on their

face, and without trying them, Osborne can hardly com

plain that they do not work in practice.

As a fallback, Osborne also obliquely relies on an as

serted federal constitutional right to be released upon

proof of “actual innocence.” Whether such a federal right

exists is an open question. We have struggled with it over

the years, in some cases assuming, arguendo, that it exists

while also noting the difficult questions such a right would

pose and the high standard any claimant would have to

meet. House, 547 U. S., at 554–555; Herrera, 506 U. S., at

398–417; see also id., at 419–421 (O’Connor, J., concur

ring); id., at 427–428 (SCALIA, J., concurring); Friendly, Is

Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. Chi. L. Rev. 142, 159, n. 87 (1970). In

this case too we can assume without deciding that such a

claim exists, because even if so there is no due process

problem. Osborne does not dispute that a federal actual

innocence claim (as opposed to a DNA access claim) would

be brought in habeas. Brief for Respondent 22–24. If such

a habeas claim is viable, federal procedural rules permit

discovery “for good cause.” 28 U. S. C. §2254 Rule 6; Bracy

v. Gramley, 520 U. S. 899, 908–909 (1997). Just as with

state law, Osborne cannot show that available discovery is

facially inadequate, and cannot show that it would be

arbitrarily denied to him.

Cite as: 557 U. S. ____ (2009)

19

Opinion of the Court

B

The Court of Appeals below relied only on procedural

due process, but Osborne seeks to defend the judgment on

the basis of substantive due process as well. He asks that

we recognize a freestanding right to DNA evidence

untethered from the liberty interests he hopes to vindicate

with it. We reject the invitation and conclude, in the

circumstances of this case, that there is no such substan

tive due process right. “As a general matter, the Court

has always been reluctant to expand the concept of sub

stantive due process because guideposts for responsible

decisionmaking in this unchartered area are scarce and

open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125

(1992). Osborne seeks access to state evidence so that he

can apply new DNA-testing technology that might prove

him innocent. There is no long history of such a right, and

“[t]he mere novelty of such a claim is reason enough to

doubt that ‘substantive due process’ sustains it.” Reno v.

Flores, 507 U. S. 292, 303 (1993).

And there are further reasons to doubt. The elected

governments of the States are actively confronting the

challenges DNA technology poses to our criminal justice

systems and our traditional notions of finality, as well as

the opportunities it affords. To suddenly constitutionalize

this area would short-circuit what looks to be a prompt

and considered legislative response. The first DNA testing

statutes were passed in 1994 and 1997. Act of Aug. 2,

1994, ch. 737, 1994 N. Y. Laws 3709 (codified at N. Y.

Crim. Proc. Law Ann. §440.30(1–a) (West)); Act of May 9,

1997, Pub. Act No. 90–141, 1997 Ill. Laws 2461 (codified at

725 Ill. Comp. Stat., ch. 725, §5/116–3(a) (West)). In the

past decade, 44 States and the Federal Government have

followed suit, reflecting the increased availability of DNA

testing. As noted, Alaska itself is considering such legisla

tion. See supra, at 9. “By extending constitutional protec

tion to an asserted right or liberty interest, we, to a great

extent, place the matter outside the arena of public debate

20 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

Opinion of the Court

and legislative action. We must therefore exercise the

utmost care whenever we are asked to break new ground

in this field.” Glucksberg, 521 U. S., at 720 (internal

quotation marks omitted). “[J]udicial imposition of a

categorical remedy . . . might pretermit other responsible

solutions being considered in Congress and state legisla

tures.” Murray v. Giarratano, 492 U. S. 1, 14 (1989)

(KENNEDY, J., concurring in judgment). If we extended

substantive due process to this area, we would cast these

statutes into constitutional doubt and be forced to take

over the issue of DNA access ourselves. We are reluctant

to enlist the Federal Judiciary in creating a new constitu

tional code of rules for handling DNA.4

Establishing a freestanding right to access DNA evi

dence for testing would force us to act as policymakers,

and our substantive-due-process rulemaking authority

would not only have to cover the right of access but a

myriad of other issues. We would soon have to decide if

there is a constitutional obligation to preserve forensic

evidence that might later be tested. Cf. Arizona v.

Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how

long? Would it be different for different types of evidence?

Would the State also have some obligation to gather such

evidence in the first place? How much, and when? No

doubt there would be a miscellany of other minor direc

tives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301

(CA4 2002) (Wilkinson, C. J., concurring in denial of

rehearing).

——————

4 The dissent asserts that our position “resembles” Justice Harlan’s

dissent in Miranda v. Arizona, 384 U. S. 436 (1966). Post, at 15–16,

n. 10 (opinion of STEVENS, J.). Miranda devised rules to safeguard a

constitutional right the Court had already recognized. Indeed, the

underlying requirement at issue in that case that confessions be volun

tary had “roots” going back centuries. Dickerson v. United States, 530

U. S. 428, 432–433 (2000). In contrast, the asserted right to access

DNA evidence is unrooted in history or tradition, and would thrust the

Federal Judiciary into an area previously left to state courts and

legislatures.

Cite as: 557 U. S. ____ (2009) 21

Opinion of the Court

In this case, the evidence has already been gathered and

preserved, but if we extend substantive due process to this

area, these questions would be before us in short order,

and it is hard to imagine what tools federal courts would

use to answer them. At the end of the day, there is no

reason to suppose that their answers to these questions

would be any better than those of state courts and legisla

tures, and good reason to suspect the opposite. See

Collins, supra, at 125; Glucksberg, supra, at 720.

* * *

DNA evidence will undoubtedly lead to changes in the

criminal justice system. It has done so already. The

question is whether further change will primarily be made

by legislative revision and judicial interpretation of the

existing system, or whether the Federal Judiciary must

leap ahead—revising (or even discarding) the system by

creating a new constitutional right and taking over re

sponsibility for refining it.

Federal courts should not presume that state criminal

procedures will be inadequate to deal with technological

change. The criminal justice system has historically

accommodated new types of evidence, and is a time-tested

means of carrying out society’s interest in convicting the

guilty while respecting individual rights. That system,

like any human endeavor, cannot be perfect. DNA evi

dence shows that it has not been. But there is no basis for

Osborne’s approach of assuming that because DNA has

shown that these procedures are not flawless, DNA evi

dence must be treated as categorically outside the process,

rather than within it. That is precisely what his §1983

suit seeks to do, and that is the contention we reject.

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion.

It is so ordered.

Cite as: 557 U. S. ____ (2009) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–6

_________________

DISTRICT ATTORNEY’S OFFICE FOR THE THIRD

JUDICIAL DISTRICT, ET AL., PETITIONERS v.

WILLIAM G. OSBORNE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2009]

JUSTICE ALITO, with whom JUSTICE KENNEDY joins,

and with whom JUSTICE THOMAS joins as to Part II,

concurring.

Respondent was convicted for a brutal sexual assault.

At trial, the defense declined to have DNA testing done on

a semen sample found at the scene of the crime. Defense

counsel explained that this decision was made based on

fear that the testing would provide further evidence of

respondent’s guilt. After conviction, in an unsuccessful

attempt to obtain parole, respondent confessed in detail to

the crime. Now, respondent claims that he has a federal

constitutional right to test the sample and that he can go

directly to federal court to obtain this relief without giving

the Alaska courts a full opportunity to consider his claim.

I agree with the Court’s resolution of respondent’s con

stitutional claim. In my view, that claim also fails for two

independent reasons beyond those given by the majority.

First, a state prisoner asserting a federal constitutional

right to perform such testing must file a petition for a writ

of habeas corpus, not an action under 42 U. S. C. §1983, as

respondent did here, and thus must exhaust state reme

dies, see 28 U. S. C. §2254(b)(1)(A). Second, even though

respondent did not exhaust his state remedies, his claim

may be rejected on the merits, see §2254(b)(2), because a

2 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

defendant who declines the opportunity to perform DNA

testing at trial for tactical reasons has no constitutional

right to perform such testing after conviction.

I

As our prior opinions illustrate, it is sometimes difficult

to draw the line between claims that are properly brought

in habeas and those that may be brought under 42 U. S. C.

§1983. See Preiser v. Rodriguez, 411 U. S. 475 (1973);

Heck v. Humphrey, 512 U. S. 477 (1994); Wilkinson v.

Dotson, 544 U. S. 74 (2005). But I think that this case

falls on the habeas side of the line.

We have long recognized the principles of federalism

and comity at stake when state prisoners attempt to use

the federal courts to attack their final convictions. See,

e.g., Darr v. Burford, 339 U. S. 200, 204 (1950); Braden v.

30th Judicial Circuit Court of Ky., 410 U. S. 484, 490–491

(1973); Preiser, supra, at 491–492; Rose v. Lundy, 455

U. S. 509, 518–519 (1982); Rhines v. Weber, 544 U. S. 269,

273–274 (2005). We accordingly held that “ ‘it would be

unseemly in our dual system of government for a federal

district court to upset a state court conviction without an

opportunity to the state courts to correct a constitutional

violation.’ ” Lundy, supra, at 518 (quoting Darr, supra, at

204). Congress subsequently codified Lundy’s exhaustion

requirement in the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(b)(1)(A).

We also have long recognized the need to impose sharp

limits on state prisoners’ efforts to bypass state courts

with their discovery requests. See, e.g., Wainwright v.

Sykes, 433 U. S. 72, 87–90 (1977); Keeney v. Tamayo-

Reyes, 504 U. S. 1, 8–10 (1992); Williams v. Taylor, 529

U. S. 420, 436 (2000). For example, we have held that

“concerns of finality, comity, judicial economy, and chan

neling the resolution of claims into the most appropriate

forum” require a state prisoner to show “cause-and

Cite as: 557 U. S. ____ (2009) 3

ALITO, J., concurring

prejudice” before asking a federal habeas court to hold an

evidentiary hearing. Keeney, supra, at 8. That result

reduces opportunities for “ ‘sandbagging’ on the part of

defense lawyers,” Sykes, supra, at 89, and it “reduces the

‘inevitable friction’ that results when a federal habeas

court ‘overturns either the factual or legal conclusions

reached by the state-court system,’ ” Keeney, supra, at 9

(quoting Sumner v. Mata, 449 U. S. 539, 550 (1981); brack

ets omitted). Congress subsequently codified Keeney’s

cause-and-prejudice rule in AEDPA, 28 U. S. C.

§2254(e)(2).

The rules set forth in our cases and codified in AEDPA

would mean very little if state prisoners could simply

evade them through artful pleading. For example, I take

it as common ground that a state prisoner’s claim under

Brady v. Maryland, 373 U. S. 83 (1963), must be brought

in habeas because that claim, if proved, would invalidate

the judgment of conviction or sentence (and thus the

lawfulness of the inmate’s confinement). See Heck, supra,

at 481. But under respondent’s view, I see no reason why

a Brady claimant could not bypass the state courts and file

a §1983 claim in federal court, contending that he has a

due process right to search the State’s files for exculpatory

evidence. Allowing such a maneuver would violate the

principles embodied in Lundy, Keeney, and AEDPA.

Although respondent has now recharacterized his claim

in an effort to escape the requirement of proceeding in

habeas, in his complaint he squarely alleged that the

State “deprived [him] of access to exculpatory evidence in

violation of Brady[, supra], and the Due Process Clause of

the Fourteenth Amendment to the U. S. Constitution.”

App. 37. That allegedly “exculpatory” evidence—which

Brady defines as “evidence favorable to [the] accused” and

“material either to guilt or to punishment,” 373 U. S., at

87—would, by definition, undermine respondent’s “guilt”

or “punishment” if his allegations are true. Such claims

4 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

should be brought in habeas, see Heck, supra, at 481, and

respondent cannot avoid that result by attempting to

bring his claim under §1983, see Dotson, supra, at 92

(KENNEDY, J., dissenting).1

It is no answer to say, as respondent does, that he sim

ply wants to use §1983 as a discovery tool to lay the foun

dation for a future state postconviction application, a state

clemency petition, or a request for relief by means of

“prosecutorial consent.” See Brief for Respondent 23.

Such tactics implicate precisely the same federalism and

comity concerns that motivated our decisions (and Con

gress’) to impose exhaustion requirements and discovery

limits in federal habeas proceedings. If a petitioner can

evade the habeas statute’s exhaustion requirements in

this way, I see no reason why a state prisoner asserting an

ordinary Brady claim—i.e., a state prisoner who claims

that the prosecution failed to turn over exculpatory evi

dence prior to trial—could not follow the same course.

What respondent seeks was accurately described in his

complaint—the discovery of evidence that has a material

bearing on his conviction. Such a claim falls within “the

core” of habeas. Preiser, supra, at 489. Recognition of a

constitutional right to postconviction scientific testing of

evidence in the possession of the prosecution would repre

sent an expansion of Brady and a broadening of the dis

covery rights now available to habeas petitioners. See 28

——————

1 This

case is quite different from Dotson. In that case, two state

prisoners filed §1983 actions challenging the constitutionality of Ohio’s

parole procedures and seeking “a new parole hearing that may or may

not result in release, prescription of the composition of the hearing

panel, and specification of the procedures to be followed.” 544 U. S., at

86 (SCALIA, J., concurring). Regardless of whether such remedies fall

outside the authority of federal habeas judges, compare id., at 86–87,

with id., at 88–92 (KENNEDY, J., dissenting), there is no question that

the relief respondent seeks in this case—“exculpatory” evidence that

tends to prove his innocence—lies “within the core of habeas corpus,”

Preiser v. Rodriguez, 411 U. S. 475, 487 (1973).

Cite as: 557 U. S. ____ (2009) 5

ALITO, J., concurring

U. S. C. §2254 Rule 6. We have never previously held that

a state prisoner may seek discovery by means of a §1983

action, and we should not take that step here. I would

hold that respondent’s claim (like all other Brady claims)

should be brought in habeas.

II

The principles of federalism, comity, and finality are not

the only ones at stake for the State in cases like this one.

To the contrary, DNA evidence creates special opportuni

ties, risks, and burdens that implicate important state

interests. Given those interests—and especially in light of

the rapidly evolving nature of DNA testing technology—

this is an area that should be (and is being) explored

“through the workings of normal democratic processes in

the laboratories of the States.” Atkins, supra, at 326

(Rehnquist, C. J., dissenting).2

——————

2 Forty-six States, plus the District of Columbia and the Federal Gov

ernment, have recently enacted DNA testing statutes. See 18 U. S. C.

§3600; Ariz. Rev. Stat. Ann. §13–4240 (West 2001); Ark. Code Ann.

§16–112–202 (2006); Cal. Penal Code Ann. §1405 (West Supp. 2009);

Colo. Rev. Stat. Ann. §18–1–413 (2008); Conn. Gen. Stat. §52–582

(2009); Del. Code Ann., Tit. 11, §4504 (2007); D. C. Code §§22–4133 to

§§22–4135 (2008 Supp.); Fla. Stat. §925.11 (2007); Ga. Code Ann. §5–5–

41 (Supp. 2008); Haw. Rev. Stat. §844D–123 (2008 Cum. Supp.); Idaho

Code §19–4902 (Lexis 2004); Ill. Comp. Stat., ch., 725, §5/116–3 (West

2006); Ind. Code Ann. §35–38–7–5 (West 2004); Iowa Code §81.10

(2009); Kan. Stat. Ann. §21–2512 (2007); Ky. Rev. Stat. Ann. §422.285

(Lexis Supp. 2008); La. Code Crim. Proc. Ann., Art. 926.1 (West Supp.

2009); Me. Rev. Stat. Ann., Tit. 15, §2137 (Supp. 2008); Md. Crim. Proc.

Code Ann. §8–201 (Lexis 2008); Mich. Comp. Laws Ann. §770.16 (West

Supp. 2009); Minn. Stat. §590.01 (2008); Mo. Rev. Stat. §547.035 (2008

Cum. Supp.); Mont. Code Ann. §46–21–110 (2007); Neb. Rev. Stat. §29–

4120 (2008); Nev. Rev. Stat. §176.0918 (2007); N. H. Rev. Stat. Ann.

§651–D:2 (2007); N. J. Stat. Ann. §2A:84A–32a (West Supp. 2009);

N. M. Stat. Ann. §31–1a–2 (Supp. 2008); N. Y. Crim. Proc. Law Ann.

§440.30(1–a) (West 2005); N. C. Gen. Stat. Ann. §15A–269 (Lexis 2007);

N. D. Cent. Code Ann. §29–32.1–15 (Lexis 2006); Ohio Rev. Code Ann.

§2953.72 (Lexis Supp. 2009); Ore. Rev. Stat. §138.690 (2007); 42 Pa.

6 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

A

As the Court notes, DNA testing often produces highly

reliable results. See ante, at 8. Indeed, short tandem

repeat (STR) “DNA tests can, in certain circumstances,

establish to a virtual certainty whether a given individual

did or did not commit a particular crime.” Harvey v.

Horan, 285 F. 3d 298, 305 (CA4 2002) (Luttig, J., respect

ing denial of rehearing en banc). Because of that potential

for “virtual certainty,” JUSTICE STEVENS argues that the

State should welcome respondent’s offer to perform mod

ern DNA testing (at his own expense) on the State’s DNA

evidence; the test will either confirm respondent’s guilt (in

which case the State has lost nothing) or exonerate him (in

which case the State has no valid interest in detaining

——————

Cons. Stat. §9543.1 (2006); R. I. Gen. Laws §10–9.1–11 (Supp. 2008);

S. C. Code Ann. §17–28–30 (Supp. 2008); Tenn. Code Ann. §40–30–304

(2006); Tex. Code Crim. Proc. Ann., Arts. 64.01–64.05 (Vernon 2006 and

Supp. 2008); Utah Code Ann. §78B–9–300 to 78B–9–304 (Lexis 2008

Supp.); Vt. Stat. Ann., Tit. 13, §5561 (Supp. 2008); Va. Code Ann.

§19.2–327.1 (Lexis 2008); Wash. Rev. Code §10.73.170 (2008); W. Va.

Code Ann. §15–2B–14 (Lexis Supp. 2008); Wis. Stat. §974.07 (2005–

2006); Wyo. Stat. Ann. §7–12–303 (2008 Supp.). The pace of the legis

lative response has been so fast that two States have enacted statutes

while this case was sub judice: The Governor of South Dakota signed a

DNA access law on March 11, 2009, see H. R. 1166, and the Governor of

Mississippi signed a DNA access law on March 16, 2009, see S. 2709.

The only States that do not have DNA-testing statutes are Alabama,

Alaska, Massachusetts, and Oklahoma; and at least three of those

States have addressed the issue through judicial decisions. See Fagan

v. State, 957 So. 2d 1159 (Ala. Crim. App. 2007); Osborne v. State, 110

P. 3d 986, 995 (Alaska App. 2005) (Osborne I); Commonwealth v.

Donald, 66 Mass. App. 1110, 848 N. E. 2d 447 (2006). Because the

Court relies on such evidence, JUSTICE STEVENS accuses it of “re

sembl[ing]” Justice Harlan’s position in Miranda v. Arizona, 384 U. S.

436 (1966). See post, at 15, n. 10 (quoting 384 U. S., at 523–524 (dis

senting opinion)). I can think of worse things than sharing Justice

Harlan’s judgment that “this Court’s too rapid departure from existing

constitutional standards” may “frustrat[e]” the States’ “long-range and

lasting” legislative efforts. Id., at 524.

Cite as: 557 U. S. ____ (2009) 7

ALITO, J., concurring

him). See post, at 10–12.

Alas, it is far from that simple. First, DNA testing—

even when performed with modern STR technology, and

even when performed in perfect accordance with proto

cols—often fails to provide “absolute proof” of anything.

Post, at 12 (STEVENS, J., dissenting). As one scholar has

observed:

“[F]orensic DNA testing rarely occurs [under] idyllic

conditions. Crime scene DNA samples do not come

from a single source obtained in immaculate condi

tions; they are messy assortments of multiple un

known persons, often collected in the most difficult

conditions. The samples can be of poor quality due to

exposure to heat, light, moisture, or other degrading

elements. They can be of minimal or insufficient

quantity, especially as investigators push DNA test

ing to its limits and seek profiles from a few cells re

trieved from cigarette butts, envelopes, or soda cans.

And most importantly, forensic samples often consti

tute a mixture of multiple persons, such that it is not

clear whose profile is whose, or even how many pro

files are in the sample at all. All of these factors make

DNA testing in the forensic context far more subjec

tive than simply reporting test results . . . .” Murphy,

The Art in the Science of DNA: A Layperson’s Guide

to the Subjectivity Inherent in Forensic DNA Typing,

58 Emory L. J. 489, 497 (2008) (footnotes omitted).

See also R. Michaelis, R. Flanders, & P. Wulff, A Litiga

tor’s Guide to DNA 341 (2008) (hereinafter Michaelis)

(noting that even “STR analyses are plagued by issues of

suboptimal samples, equipment malfunctions and human

error, just as any other type of forensic DNA test”); Harvey

v. Horan, 278 F. 3d 370, 383, n. 4 (CA4 2002) (King, J.,

concurring in part and concurring in judgment) (noting

that the first STR DNA test performed under Virginia’s

8 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

postconviction DNA access statute was inconclusive).

Such concerns apply with particular force where, as here,

the sample is minuscule, it may contain three or more

persons’ DNA, and it may have degraded significantly

during the 24 or more hours it took police to recover it.

Second, the State has important interests in maintain

ing the integrity of its evidence, and the risks associated

with evidence contamination increase every time someone

attempts to extract new DNA from a sample. According to

Professor John Butler—who is said to have written “the

canonical text on forensic DNA typing,” Murphy, supra, at

493, n. 16—“[t]he extraction process is probably where the

DNA sample is more susceptible to contamination in the

laboratory than at any other time in the forensic DNA

analysis process,” J. Butler, Forensic DNA Typing 42 (2d

ed. 2005).

Indeed, modern DNA testing technology is so powerful

that it actually increases the risks associated with mis

handling evidence. STR tests, for example, are so sensi

tive that they can detect DNA transferred from person X

to a towel (with which he wipes his face), from the towel to

Y (who subsequently wipes his face), and from Y’s face to a

murder weapon later wielded by Z (who can use STR

technology to blame X for the murder). See Michaelis 62–

64; Thompson, Ford, Doom, Raymer, & Krane, Evaluating

Forensic DNA Evidence: Essential Elements of a Compe

tent Defense Review (Part 2), The Champion, May 2003,

pp. 25–26. Any test that is sensitive enough to pick up

such trace amounts of DNA will be able to detect even the

slightest, unintentional mishandling of evidence. See

Michaelis 63 (cautioning against mishandling evidence

because “two research groups have already demonstrated

the ability to obtain STR profiles from fingerprints on

paper or evidence objects”). And that is to say nothing of

the intentional DNA-evidence-tampering scandals that

have surfaced in recent years. See, e.g., Murphy, The New

Cite as: 557 U. S. ____ (2009) 9

ALITO, J., concurring

Forensics: Criminal Justice, False Certainty, and the

Second Generation of Scientific Evidence, 95 Calif. L. Rev.

721, 772–773 (2007) (collecting examples). It gives short

shrift to such risks to suggest that anyone—including

respondent, who has twice confessed to his crime, has

never recanted, and passed up the opportunity for DNA

testing at trial—should be given a never-before-recognized

constitutional right to rummage through the State’s ge

netic-evidence locker.

Third, even if every test was guaranteed to provide a

conclusive answer, and even if no one ever contaminated a

DNA sample, that still would not justify disregarding the

other costs associated with the DNA-access regime pro

posed by respondent. As the Court notes, recognizing a

prisoner’s freestanding right to access the State’s DNA

evidence would raise numerous policy questions, not the

least of which is whether and to what extent the State is

constitutionally obligated to collect and preserve such

evidence. See ante, at 20. But the policy problems do not

end there.

Even without our creation and imposition of a manda

tory-DNA-access regime, state crime labs are already

responsible for maintaining and controlling hundreds of

thousands of new DNA samples every year. For example,

in the year 2005, the State of North Carolina processed

DNA samples in approximately 1,900 cases, while the

State of Virginia processed twice as many. See Office of

State Budget and Management, Cost Study of DNA Test

ing and Analysis As Directed by Session Law 2005–267,

Section 15.8, pp. 5, 8 (Mar. 1, 2006) (hereinafter North

Carolina Study), http://www.osbm.state.nc.us/files/pdf_

files/3-1-2006FinalDNAReport.pdf (all Internet materials

as visited June 16, 2009, and available in Clerk of Court’s

case file); see also id., at 8 (noting that the State of Iowa

processed DNA samples in 1,500 cases in that year). Each

case often entails many separate DNA samples. See

10 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

Wisconsin Criminal Justice Study Commission, Position

Paper: “Decreasing the Turnaround Time for DNA Test

ing,” p. 2 (hereinafter Wisconsin Study), http://www.wcjsc.

org/WCJSC_Report_on_DNA_Backlog.pdf (“An average

case consists of 8 samples”). And these data—which are

now four years out of date—dramatically underestimate

the States’ current DNA-related caseloads, which expand

at an average annual rate of around 24%. See Wisconsin

Dept. of Justice, Review of State Crime Lab Resources for

DNA Analysis 6 (Feb. 12, 2007), http://www.doj.state.

wi.us/news/files/dnaanalysisplan.pdf.

The resources required to process and analyze these

hundreds of thousands of samples have created severe

backlogs in state crime labs across the country. For ex

ample, the State of Wisconsin reports that it receives

roughly 17,600 DNA samples per year, but its labs can

process only 9,600. Wisconsin Study 2. Similarly, the

State of North Carolina reports that “[i]t is not unusual for

the [State] Crime Lab to have several thousand samples

waiting to be outsourced due to the federal procedures for

[the State’s] grant. This is not unique to North Carolina

but a national issue.” North Carolina Study 9.

The procedures that the state labs use to handle these

hundreds of thousands of DNA samples provide fertile

ground for litigation. For example, in Commonwealth v.

Duarte, 56 Mass. App. 714, 723, 780 N. E. 2d 99, 106

(2002), the defendant argued that “the use of a thermome

ter that may have been overdue for a standardization

check rendered the DNA analysis unreliable and inadmis

sible” in his trial for raping a 13-year-old girl. The court

rejected that argument and held “that the status of the

thermometer went to the weight of the evidence, and not

to its admissibility,” id., at 724, 780 N. E. 2d, at 106, and

the court ultimately upheld Duarte’s conviction after

reviewing the testimony of the deputy director of the

laboratory that the Commonwealth used for the DNA

Cite as: 557 U. S. ____ (2009) 11

ALITO, J., concurring

tests, see ibid. But the case nevertheless illustrates “that

no detail of laboratory operation, no matter how minute, is

exempt as a potential point on which a defense attorney

will question the DNA evidence.” Michaelis 68; see also

id., at 68–69 (discussing the policy implications of Duarte).

My point in recounting the burdens that postconviction

DNA testing imposes on the Federal Government and the

States is not to denigrate the importance of such testing.

Instead, my point is that requests for postconviction DNA

testing are not cost free. The Federal Government and the

States have a substantial interest in the implementation

of rules that regulate such testing in a way that harnesses

the unique power of DNA testing while also respecting the

important governmental interests noted above. The Fed

eral Government and the States have moved expeditiously

to enact rules that attempt to perform this role. And as

the Court holds, it would be most unwise for this Court,

wielding the blunt instrument of due process, to interfere

prematurely with these efforts.

B

I see no reason for such intervention in the present case.

When a criminal defendant, for tactical purposes, passes

up the opportunity for DNA testing at trial, that defen

dant, in my judgment, has no constitutional right to de

mand to perform DNA testing after conviction. Recogni

tion of such a right would allow defendants to play games

with the criminal justice system. A guilty defendant could

forgo DNA testing at trial for fear that the results would

confirm his guilt, and in the hope that the other evidence

would be insufficient to persuade the jury to find him

guilty. Then, after conviction, with nothing to lose, the

defendant could demand DNA testing in the hope that

some happy accident—for example, degradation or con

tamination of the evidence—would provide the basis for

seeking postconviction relief. Denying the opportunity for

12 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

such an attempt to game the criminal justice system

should not shock the conscience of the Court.

There is ample evidence in this case that respondent

attempted to game the system. At trial, respondent’s

lawyer made an explicit, tactical decision to forgo restric

tion-fragment-length-polymorphism (RFLP) testing in

favor of less-reliable DQ Alpha testing. Having forgone

more accurate DNA testing once before, respondent’s

reasons for seeking it now are suspect. It is true that the

STR testing respondent now seeks is even more advanced

than the RFLP testing he declined—but his counsel did

not decline RFLP testing because she thought it was not

good enough; she declined because she thought it was too

good. Osborne I, 110 P. 3d 986, 990 (Alaska App. 2005).

“[A] defendant should not be allowed to take a gambler’s

risk and complain only if the cards [fall] the wrong way.”

Osborne v. State, 163 P. 3d 973, 984 (Alaska App. 2007)

(Osborne II) (Mannheimer, J., concurring) (internal quota

tion marks omitted).

JUSTICE STEVENS contends that respondent should not

be bound by his attorney’s tactical decision and notes that

respondent testified in the state postconviction proceeding

that he strongly objected to his attorney’s strategy. See

post, at 11–12, n. 8. His attorney, however, had no mem

ory of that objection, and the state court did not find that

respondent’s testimony was truthful.3 Nor do we have

reason to assume that respondent was telling the truth,

particularly since he now claims that he lied at his parole

hearing when he twice confessed to the crimes for which

——————

3 The state court noted that respondent’s trial counsel “ ‘disbelieved

Osborne’s statement that he did not commit the crime’ ” and therefore

“ ‘elected to avoid the possibility of obtaining DNA test results that

might have confirmed Osborne’s culpability.’ ” Osborne I, 110 P. 3d, at

990. Given the reasonableness of trial counsel’s judgment, the state

court held that respondent’s protestations (whether or not he made

them) were irrelevant. Id., at 991–992.

Cite as: 557 U. S. ____ (2009) 13

ALITO, J., concurring

he was convicted.

In any event, even assuming for the sake of argument

that respondent did object at trial to his attorney’s strat

egy, it is a well-accepted principle that, except in a few

carefully defined circumstances, a criminal defendant is

bound by his attorney’s tactical decisions unless the attor

ney provided constitutionally ineffective assistance. See

Vermont v. Brillon, 556 U. S. ___, ___ (2009) (slip op., at

8).4 Here, the state postconviction court rejected respon

dent’s ineffective-assistance claim, Osborne I, supra, at

991–992; respondent does not challenge that holding; and

we must therefore proceed on the assumption that his

attorney’s decision was reasonable and binding.5

* * *

If a state prisoner wants to challenge the State’s refusal

to permit postconviction DNA testing, the prisoner should

proceed under the habeas statute, which duly accounts for

——————

4 In adopting rules regarding postconviction DNA testing, the Federal

and State Governments may choose to alter the traditional authority of

defense counsel with respect to DNA testing. For example, the federal

statute provides that a prisoner’s declination of DNA testing at trial

bars a request for postconviction testing only if the prisoner knowingly

and voluntarily waived that right in a proceeding occurring after the

enactment of the federal statute. 18 U. S. C. §3600(a)(3)(A)(i). But

Alaska has specifically decided to retain the general rule regarding the

authority of defense counsel. See Osborne I, supra, at 991–992 (citing

Simeon v. State, 90 P. 3d 181, 184 (Alaska App. 2004)).

5 JUSTICE STEVENS is quite wrong to suggest that the application of

this familiar principle in the present context somehow lessens the

prosecution’s burden to prove a defendant’s guilt. Post, at 12, n. 8

(citing Sandstrom v. Montana, 442 U. S. 510 (1979); In re Winship, 397

U. S. 358 (1970)). Respondent is not challenging the sufficiency of the

State’s evidence at trial. Rather, he claims that he has a right to obtain

evidence that may be useful to him in a variety of postconviction

proceedings. The principle that the prosecution must prove its case

beyond a reasonable doubt and the principle that a defendant has no

obligation to prove his innocence are not implicated in any way by the

issues in this case.

14 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

ALITO, J., concurring

the interests of federalism, comity, and finality. And in

considering the merits of such a claim, the State’s weighty

interests cannot be summarily dismissed as “ ‘arbitrary, or

conscience shocking.’ ” Post, at 10 (STEVENS, J., dissent

ing). With these observations, I join the opinion of the

Court.

Cite as: 557 U. S. ____ (2009) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–6

_________________

DISTRICT ATTORNEY’S OFFICE FOR THE THIRD

JUDICIAL DISTRICT, ET AL., PETITIONERS v.

WILLIAM G. OSBORNE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2009]

JUSTICE STEVENS, with whom JUSTICE GINSBURG and

JUSTICE BREYER join, and with whom JUSTICE SOUTER

joins as to Part I, dissenting.

The State of Alaska possesses physical evidence that, if

tested, will conclusively establish whether respondent

William Osborne committed rape and attempted murder.

If he did, justice has been served by his conviction and

sentence. If not, Osborne has needlessly spent decades

behind bars while the true culprit has not been brought to

justice. The DNA test Osborne seeks is a simple one, its

cost modest, and its results uniquely precise. Yet for

reasons the State has been unable or unwilling to articu­

late, it refuses to allow Osborne to test the evidence at his

own expense and to thereby ascertain the truth once and

for all.

On two equally problematic grounds, the Court today

blesses the State’s arbitrary denial of the evidence Os­

borne seeks. First, while acknowledging that Osborne

may have a due process right to access the evidence under

Alaska’s postconviction procedures, the Court concludes

that Osborne has not yet availed himself of all possible

avenues for relief in state court.1 As both a legal and

——————

1 Because the Court assumes arguendo that Osborne’s claim was

2 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

factual matter, that conclusion is highly suspect. More

troubling still, based on a fundamental mischaracteriza­

tion of the right to liberty that Osborne seeks to vindicate,

the Court refuses to acknowledge “in the circumstances of

this case” any right to access the evidence that is grounded

in the Due Process Clause itself. Because I am convinced

that Osborne has a constitutional right of access to the

evidence he wishes to test and that, on the facts of this

case, he has made a sufficient showing of entitlement to

that evidence, I would affirm the decision of the Court of

Appeals.

I

The Fourteenth Amendment provides that “[n]o State

shall . . . deprive any person of life, liberty, or property,

without due process of law.” §1. Our cases have fre­

quently recognized that protected liberty interests may

arise “from the Constitution itself, by reason of guarantees

implicit in the word ‘liberty,’ . . . or it may arise from an

expectation or interest created by state laws or policies.”

Wilkinson v. Austin, 545 U. S. 209, 221 (2005). Osborne

contends that he possesses a right to access DNA evidence

arising from both these sources.

Osborne first anchors his due process right in Alaska

Stat. §12.72.010(4) (2008). Under that provision, a person

who has been “convicted of, or sentenced for, a crime may

institute a proceeding for post-conviction relief if the

person claims . . . that there exists evidence of material

——————

properly brought under 42 U. S. C. §1983, rather than by an application

for the writ of habeas corpus, I shall state only that I agree with the

Ninth Circuit’s endorsement of Judge Luttig’s analysis of that issue.

See 423 F. 3d 1050, 1053–1055 (2005) (citing Harvey v. Horan, 285 F.

3d 298, 308–309 (CA4 2002) (opinion respecting denial of rehearing en

banc)); see also McKithen v. Brown, 481 F. 3d 89, 98 (CA2 2007) (agree­

ing that a claim seeking postconviction access to evidence for DNA

testing may be properly brought as a §1983 suit); Savory v. Lyons, 469

F. 3d 667, 669 (CA7 2006) (same); Bradley v. Pryor, 305 F. 3d 1287,

1290–1291 (CA11 2002) (same).

Cite as: 557 U. S. ____ (2009) 3

STEVENS, J., dissenting

facts, not previously presented and heard by the court,

that requires vacation of the conviction or sentence in the

interest of justice.” Ibid.2 Osborne asserts that exculpa­

tory DNA test results obtained using state-of-the-art Short

Tandem Repeat (STR) and Mitochondrial (mtDNA) analy­

sis would qualify as newly discovered evidence entitling

him to relief under the state statute. The problem is that

the newly discovered evidence he wishes to present cannot

be generated unless he is first able to access the State’s

evidence—something he cannot do without the State’s

consent or a court order.

Although States are under no obligation to provide

mechanisms for postconviction relief, when they choose to

do so, the procedures they employ must comport with the

demands of the Due Process Clause, see Evitts v. Lucey,

469 U. S. 387, 393 (1985), by providing litigants with fair

opportunity to assert their state-created rights. Osborne

contends that by denying him an opportunity to access the

physical evidence, the State has denied him meaningful

access to state postconviction relief, thereby violating his

right to due process.

Although the majority readily agrees that Osborne has a

protected liberty interest in demonstrating his innocence

with new evidence under Alaska Stat. §12.72.010(4), see

ante, at 14, it rejects the Ninth Circuit’s conclusion that

Osborne is constitutionally entitled to access the State’s

evidence. The Court concludes that the adequacy of the

——————

2 Ordinarily, claims under §12.72.010(4) must be brought within one

year after the conviction becomes final. §12.72.020(a)(3)(A). However,

the court may hear an otherwise untimely claim based on newly discov­

ered evidence “if the applicant establishes due diligence in presenting

the claim and sets out facts supported by evidence that is admissible

and (A) was not known within . . . two years after entry of the judgment

of conviction if the claim relates to a conviction; . . . (B) is not cumula­

tive to the evidence presented at trial; (C) is not impeachment evidence;

and (D) establishes by clear and convincing evidence that the applicant

is innocent.” §12.72.020(b)(2) (2002).

4 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

process afforded to Osborne must be assessed under the

standard set forth in Medina v. California, 505 U. S. 437

(1992). Under that standard, Alaska’s procedures for

bringing a claim under §12.72.010(4) will not be found to

violate due process unless they “ ‘offen[d] some principle of

justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental,’ or ‘transgres[s]

any recognized principle of fundamental fairness in opera­

tion.’ ” Ante, at 16 (quoting Medina, 505 U. S., at 446,

448).3 After conducting a cursory review of the relevant

statutory text, the Court concludes that Alaska’s proce­

dures are constitutional on their face.

While I agree that the statute is not facially deficient,

the state courts’ application of §12.72.010(4) raises serious

questions whether the State’s procedures are fundamen­

tally unfair in their operation. As an initial matter, it is

not clear that Alaskan courts ordinarily permit litigants to

utilize the state postconviction statute to obtain new

evidence in the form of DNA tests. The majority assumes

that such discovery is possible based on a single, unpub­

lished, nonprecedential decision from the Alaska Court of

Appeals, see ante, at 16 (citing Patterson v. State, No. A–

8814 (Mar. 8, 2006)), but the State concedes that no liti­

gant yet has obtained evidence for such testing under the

statute.4

Of even greater concern is the manner in which the

state courts applied §12.72.010(4) to the facts of this case.

——————

3 Osborne contends that the Court should assess the validity of the

State’s procedures under the test set forth in Mathews v. Eldridge, 424

U. S. 319 (1976), rather than the more exacting test adopted by Medina

v. California, 505 U. S. 437 (1992). In my view, we need not decide

which standard governs because the state court’s denial of access to the

evidence Osborne seeks violates due process under either standard. See

Harvey, 285 F. 3d, at 315 (Luttig, J).

4 The State explained at oral argument that such testing was ordered

in the Patterson case, but by the time access was granted, the relevant

evidence had been destroyed. See Tr. of Oral Arg. 12.

Cite as: 557 U. S. ____ (2009) 5

STEVENS, J., dissenting

In determining that Osborne was not entitled to relief

under the postconviction statute, the Alaska Court of

Appeals concluded that the DNA testing Osborne wished

to obtain could not qualify as “newly discovered” because it

was available at the time of trial. See Osborne v. State,

110 P. 3d 986, 992 (2005) (Osborne I). In his arguments

before the state trial court and his briefs to the Alaska

Court of Appeals, however, Osborne had plainly requested

STR DNA testing, a form of DNA testing not yet in use at

the time of his trial. See App. 171, 175; see also 521 F. 3d

1118, 1123, n. 2 (CA9 2008). The state appellate court’s

conclusion that the requested testing had been available

at the time of trial was therefore clearly erroneous.5

Given these facts, the majority’s assertion that Osborne

“attempt[ed] to sidestep state process” by failing “to use

the process provided to him by the State” is unwarranted.

Ante, at 17.

The same holds true with respect to the majority’s sug­

gestion that the Alaska Constitution might provide addi­

tional protections to Osborne above and beyond those

afforded under afforded under §12.72.010(4). In Osborne’s

state postconviction proceedings, the Alaska Court of

Appeals held out the possibility that even when evidence

does not meet the requirements of §12.72.010(4), the State

Constitution might offer relief to a defendant who is able

to make certain threshold showings. See Osborne I, 110

P. 3d, at 995–996. On remand from that decision, how­

ever, the state trial court denied Osborne relief on the

ground that he failed to show that (1) his conviction rested

primarily on eyewitness identification; (2) there was a

demonstrable doubt concerning his identity as the perpe­

——————

5 The majority avoids confronting this serious flaw in the state court’s

decision by treating its mistaken characterization of the nature of

Osborne’s request as if it were binding. See ante, at 17. But see ante,

at 5, n. 2 (conceding “[i]t is not clear” whether the state court erred in

reaching that conclusion).

6 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

trator; and (3) scientific testing would like be conclusive on

this issue. Osborne v. State, 163 P. 3d 973, 979–981

(Alaska App. 2007) (Osborne II). The first two reasons

reduce to an evaluation of the strength of the prosecution’s

original case—a consideration that carries little weight

when balanced against evidence as powerfully dispositive

as an exculpatory DNA test. The final reason offered by

the state court—that further testing would not be conclu­

sive on the issue of Osborne’s guilt or innocence—is surely

a relevant factor in deciding whether to release evidence

for DNA testing. Nevertheless, the state court’s conclu­

sion that such testing would not be conclusive in this case

is indefensible, as evidenced by the State’s recent conces­

sion on that point. See also 521 F. 3d 1118, 1136–1139

(CA9 2008) (detailing why the facts of this case do not

permit an inference that any exonerating test result would

be less than conclusive).

Osborne made full use of available state procedures in

his efforts to secure access to evidence for DNA testing so

that he might avail himself of the postconviction relief

afforded by the State of Alaska. He was rebuffed at every

turn. The manner in which the Alaska courts applied

state law in this case leaves me in grave doubt about the

adequacy of the procedural protections afforded to liti­

gants under Alaska Stat. §12.72.010(4), and provides

strong reason to doubt the majority’s flippant assertion

that if Osborne were “simply [to] see[k] the DNA through

the State’s discovery procedures, he might well get it.”

Ante, at 17. However, even if the Court were correct in its

assumption that Osborne might be given the evidence he

seeks were he to present his claim in state court a second

time, there should be no need for him to do so.

II

Wholly apart from his state-created interest in obtain­

ing postconviction relief under Alaska Stat. §12.72.010(4),

Cite as: 557 U. S. ____ (2009) 7

STEVENS, J., dissenting

Osborne asserts a right to access the State’s evidence that

derives from the Due Process Clause itself. Whether

framed as a “substantive liberty interest . . . protected

through a procedural due process right” to have evidence

made available for testing, or as a substantive due process

right to be free of arbitrary government action, see Harvey

v. Horan, 285 F. 3d 298, 315, 319 (CA4 2002) (Luttig, J.,

respecting denial of rehearing en banc),6 the result is the

same: On the record now before us, Osborne has estab­

lished his entitlement to test the State’s evidence.

The liberty protected by the Due Process Clause is not a

creation of the Bill of Rights. Indeed, our Nation has long

recognized that the liberty safeguarded by the Constitu­

tion has far deeper roots. See Declaration of Independence

¶2 (holding it self-evident that “all men are. . . endowed by

their Creator with certain unalienable Rights,” among

which are “Life, Liberty, and the pursuit of Happiness”);

see also Meachum v. Fano, 427 U. S. 215, 230 (1976)

(STEVENS, J., dissenting). The “most elemental” of the

liberties protected by the Due Process Clause is “the inter­

est in being free from physical detention by one’s own

government.” Hamdi v. Rumsfeld, 542 U. S. 507, 529

(2004) (plurality opinion); see Foucha v. Louisiana, 504

U. S. 71, 80 (1992) (“Freedom from bodily restraint has

always been at the core of the liberty protected by the Due

Process Clause”).

Although a valid criminal conviction justifies punitive

detention, it does not entirely eliminate the liberty inter­

ests of convicted persons. For while a prisoner’s “rights

may be diminished by the needs and exigencies of the

institutional environment[,] . . . [t]here is no iron curtain

——————

6 See Harvey, 285 F. 3d, at 318 (Luttig, J.) (“[T]he claimed right of

access to evidence partakes of both procedural and substantive due

process. And with a claim such as this, the line of demarcation is

faint”).

8 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

drawn between the Constitution and the prisons of this

country.” Wolff v. McDonnell, 418 U. S. 539, 555–556

(1974); Shaw v. Murphy, 532 U. S. 223, 228–229 (2001)

(“[I]ncarceration does not divest prisoners of all constitu­

tional protections”). Our cases have recognized protected

interests in a variety of postconviction contexts, extending

substantive constitutional protections to state prisoners on

the premise that the Due Process Clause of the Fourteenth

Amendment requires States to respect certain fundamen­

tal liberties in the postconviction context. See, e.g.,

Thornburgh v. Abbott, 490 U. S. 401, 407 (1989) (right to

free speech); Turner v. Safley, 482 U. S. 78, 84 (1987)

(right to marry); Cruz v. Beto, 405 U. S. 319, 322 (1972)

(per curiam) (right to free exercise of religion); Lee v.

Washington, 390 U. S. 333 (1968) (per curiam) (right to be

free of racial discrimination); Johnson v. Avery, 393 U. S.

483 (1969) (right to petition government for redress of

grievances). It is therefore far too late in the day to ques­

tion the basic proposition that convicted persons such as

Osborne retain a constitutionally protected measure of

interest in liberty, including the fundamental liberty of

freedom from physical restraint.

Recognition of this right draws strength from the fact

that 46 States and the Federal Government have passed

statutes providing access to evidence for DNA testing, and

3 additional states (including Alaska) provide similar

access through court-made rules alone, see Brief for State

of California et al. as Amici Curiae 3–4, n. 1, and 2; ante,

at 9. These legislative developments are consistent with

recent trends in legal ethics recognizing that prosecutors

are obliged to disclose all forms of exculpatory evidence

that come into their possession following conviction. See,

e.g., ABA Model Rules of Professional Conduct 3.8(g)–(h)

(2008); see also Imbler v. Pachtman, 424 U. S. 409, 427, n.

25 (1976) (“[A]fter a conviction the prosecutor also is

bound by the ethics of his office to inform the appropriate

Cite as: 557 U. S. ____ (2009) 9

STEVENS, J., dissenting

authority of after-acquired or other information that casts

doubt upon the correctness of the conviction”). The fact

that nearly all the States have now recognized some post­

conviction right to DNA evidence makes it more, not less,

appropriate to recognize a limited federal right to such

evidence in cases where litigants are unfairly barred from

obtaining relief in state court.

Insofar as it is process Osborne seeks, he is surely enti­

tled to less than “the full panoply of rights,” that would be

due a criminal defendant prior to conviction, see Morrissey

v. Brewer, 408 U. S. 471, 480 (1972). That does not mean,

however, that our pretrial due process cases have no rele­

vance in the postconviction context. In Brady v. Mary

land, 373 U. S. 83, 87 (1963), we held that the State vio­

lates due process when it suppresses “evidence favorable

to an accused” that is “material either to guilt or to pun­

ishment, irrespective of the good faith or bad faith of the

prosecution.” Although Brady does not directly provide for

a postconviction right to such evidence, the concerns with

fundamental fairness that motivated our decision in that

case are equally present when convicted persons such as

Osborne seek access to dispositive DNA evidence following

conviction.

Recent scientific advances in DNA analysis have made

“it literally possible to confirm guilt or innocence beyond

any question whatsoever, at least in some categories of

cases.” Harvey, 285 F. 3d, at 305 (Luttig, J.). As the

Court recognizes today, the powerful new evidence that

modern DNA testing can provide is “unlike anything

known before.” Ante, at 8. Discussing these important

forensic developments in his oft-cited opinion in Harvey,

Judge Luttig explained that although “no one would con­

tend that fairness, in the constitutional sense, requires a

post-conviction right of access or a right to disclosure

anything approaching in scope that which is required pre­

trial,” in cases “where the government holds previously­

10 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

produced forensic evidence, the testing of which conced­

edly could prove beyond any doubt that the defendant did

not commit the crime for which he was convicted, the very

same principle of elemental fairness that dictates pre-trial

production of all potentially exculpatory evidence dictates

post-trial production of this infinitely narrower category of

evidence.” 285 F. 3d, at 317. It does so “out of recognition

of the same systemic interests in fairness and ultimate

truth.” Ibid.

Observing that the DNA evidence in this case would be

so probative of Osborne’s guilt or innocence that it exceeds

the materiality standard that governs the disclosure of

evidence under Brady, the Ninth Circuit granted Os­

borne’s request for access to the State’s evidence. See 521

F. 3d, at 1134. In doing so, the Court of Appeals recog­

nized that Osborne possesses a narrow right of postconvic­

tion access to biological evidence for DNA testing “where

[such] evidence was used to secure his conviction, the DNA

testing is to be conducted using methods that were un­

available at the time of trial and are far more precise than

the methods that were then available, such methods are

capable of conclusively determining whether Osborne is

the source of the genetic material, the testing can be con­

ducted without cost or prejudice to the State, and the

evidence is material to available forms of post-conviction

relief.” Id., at 1142. That conclusion does not merit

reversal.

If the right Osborne seeks to vindicate is framed as

purely substantive, the proper result is no less clear. “The

touchstone of due process is protection of the individual

against arbitrary action of government,” Meachum, 427

U. S., at 226 (internal quotation marks omitted); Wolff,

418 U. S., at 558; County of Sacramento v. Lewis, 523

U. S. 833, 845–846 (1998). When government action is so

lacking in justification that it “can properly be character­

ized as arbitrary, or conscience shocking, in a constitu­

Cite as: 557 U. S. ____ (2009) 11

STEVENS, J., dissenting

tional sense,” Collins v. Harker Heights, 503 U. S. 115, 128

(1992), it violates the Due Process Clause. In my view, the

State’s refusal to provide Osborne with access to evidence

for DNA testing qualifies as arbitrary.

Throughout the course of state and federal litigation,

the State has failed to provide any concrete reason for

denying Osborne the DNA testing he seeks, and none is

apparent. Because Osborne has offered to pay for the

tests, cost is not a factor. And as the State now concedes,

there is no reason to doubt that such testing would provide

conclusive confirmation of Osborne’s guilt or revelation of

his innocence.7 In the courts below, the State refused to

provide an explanation for its refusal to permit testing of

the evidence, see Brief for Respondent 33, and in this

Court, its explanation has been, at best, unclear. Insofar

as the State has articulated any reason at all, it appears to

be a generalized interest in protecting the finality of the

judgment of conviction from any possible future attacks.

See Brief for Petitioners 18, 50.8

——————

7 JUSTICE ALITO provides a detailed discussion of dangers such as

laboratory contamination and evidence tampering that may reduce the

reliability not only of DNA evidence, but of any type of physical forensic

evidence. Ante, at 3–10 (concurring opinion). While no form of testing

is error proof in every case, the degree to which DNA evidence has

become a foundational tool of law enforcement and prosecution is

indicative of the general reliability and probative power of such testing.

The fact that errors may occur in the testing process is not a ground for

refusing such testing altogether—were it so, such evidence should be

banned at trial no less than in postconviction proceedings. More

important still is the fact that the State now concedes there is no

reason to doubt that if STR and mtDNA testing yielded exculpatory

results in this case, Osborne’s innocence would be established.

8 In his concurring opinion, JUSTICE ALITO suggests other reasons that

might motivate States to resist access to such evidence, including

concerns over DNA testing backlogs and manipulation by defendants.

See ante, at 8–10. Not only were these reasons not offered by the State

of Alaska as grounds for its decision in this case, but they are not in

themselves compelling. While state resource constraints might justify

12 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

While we have long recognized that States have an

interest in securing the finality of their judgments, see,

e.g., Duncan v. Walker, 533 U. S. 167, 179 (2001); Teague

v. Lane, 489 U. S. 288, 309 (1989) (plurality opinion);

McCleskey v. Zant, 499 U. S. 467, 491–492 (1991), finality

is not a stand-alone value that trumps a State’s overriding

interest in ensuring that justice is done in its courts and

secured to its citizens. Indeed, when absolute proof of

innocence is readily at hand, a State should not shrink

from the possibility that error may have occurred. Rather,

our system of justice is strengthened by “recogniz[ing] the

need for, and imperative of, a safety valve in those rare

instances where objective proof that the convicted actually

did not commit the offense later becomes available

through the progress of science.” Harvey, 285 F. 3d, at 306

(Luttig, J.). DNA evidence has led to an extraordinary

series of exonerations, not only in cases where the trial

evidence was weak, but also in cases where the convicted

——————

delays in the testing of postconviction DNA evidence, they would not

justify an outright ban on access to such evidence. And JUSTICE ALITO’s

concern that guilty defendants will “play games with the criminal

justice system” with regard to the timing of their requests for DNA

evidence is not only speculative, but gravely concerning. Ante, at 10. It

bears remembering that criminal defendants are under no obligation to

prove their innocence at trial; rather, the State bears the burden of

proving their guilt. See Sandstrom v. Montana, 442 U. S. 510 (1979);

In re Winship, 397 U. S. 358 (1970). Having no obligation to conduct

pretrial DNA testing, a defendant should not be bound by a decision to

forgo such testing at trial, particularly when, as in this case, the choice

was made by counsel over the defendant’s strong objection. See Os

borne I, 110 P. 3d, at 990-991. (JUSTICE ALITO suggests there is reason

to doubt whether Osborne asked his counsel to perform DNA testing

prior to trial, ante, at 12. That fact was not disputed in the state

courts, however. Although Osborne’s trial counsel averred that she “did

not have a present memory of Osborne’s desire to have [a more specific

discriminatory] test of his DNA done,” she also averred that she was

“willing to accept that he does" and that she “would have disagreed

with him.” Id., at 990.)

Cite as: 557 U. S. ____ (2009) 13

STEVENS, J., dissenting

parties confessed their guilt and where the trial evidence

against them appeared overwhelming.9 The examples

provided by amici of the power of DNA testing serve to

convince me that the fact of conviction is not sufficient to

justify a State’s refusal to perform a test that will conclu­

sively establish innocence or guilt.

This conclusion draws strength from the powerful state

interests that offset the State’s purported interest in

finality per se. When a person is convicted for a crime he

did not commit, the true culprit escapes punishment.

DNA testing may lead to his identification. See Brief for

Current and Former Prosecutors as Amici Curiae 16

(noting that in more than one-third of all exonerations

DNA testing identified the actual offender). Crime vic­

tims, the law enforcement profession, and society at large

share a strong interest in identifying and apprehending

the actual perpetrators of vicious crimes, such as the rape

and attempted murder that gave rise to this case.

The arbitrariness of the State’s conduct is highlighted

by comparison to the private interests it denies. It seems

to me obvious that if a wrongly convicted person were to

produce proof of his actual innocence, no state interest

would be sufficient to justify his continued punitive deten­

tion. If such proof can be readily obtained without impos­

ing a significant burden on the State, a refusal to provide

access to such evidence is wholly unjustified.

In sum, an individual’s interest in his physical liberty is

one of constitutional significance. That interest would be

——————

9 See generally Brief for Current and Former Prosecutors as Amici

Curiae; Brief for Jeanette Popp et al. as Amici Curiae; see also Brief for

Individuals Exonerated by Postconviction DNA Testing as Amici Curiae

1–20. See also Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 109

(2008) (documenting that in 50% of cases in which DNA evidence

exonerated a convicted person, reviewing courts had commented on the

exoneree’s likely guilt and in 10% of the cases had described the evi­

dence supporting conviction as “overwhelming”).

14 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

vindicated by providing postconviction access to DNA

evidence, as would the State’s interest in ensuring that it

punishes the true perpetrator of a crime. In this case, the

State has suggested no countervailing interest that justi­

fies its refusal to allow Osborne to test the evidence in its

possession and has not provided any other nonarbitrary

explanation for its conduct. Consequently, I am left to

conclude that the State’s failure to provide Osborne access

to the evidence constitutes arbitrary action that offends

basic principles of due process. On that basis, I would

affirm the judgment of the Ninth Circuit.

III

The majority denies that Osborne possesses a cognizable

substantive due process right “under the circumstances of

this case,” and offers two meager reasons for its decision.

First, citing a general reluctance to “ ‘expand the concept

of substantive due process,’ ” ante, at 19 (quoting Collins,

503 U. S., at 125), the Court observes that there is no long

history of postconviction access to DNA evidence. “ ‘The

mere novelty of such a claim,’ ” the Court asserts, “ ‘is

reason enough to doubt that “substantive due process”

sustains it,’ ” ante, at 19 (quoting Reno v. Flores, 507 U. S.

292, 303 (1993)). The flaw is in the framing. Of course

courts have not historically granted convicted persons

access to physical evidence for STR and mtDNA testing.

But, as discussed above, courts have recognized a residual

substantive interest in both physical liberty and in free­

dom from arbitrary government action. It is Osborne’s

interest in those well-established liberties that justifies

the Court of Appeals’ decision to grant him access to the

State’s evidence for purposes of previously unavailable

DNA testing.

The majority also asserts that this Court’s recognition of

a limited federal right of access to DNA evidence would be

ill advised because it would “short circuit what looks to be

Cite as: 557 U. S. ____ (2009) 15

STEVENS, J., dissenting

a prompt and considered legislative response” by the

States and Federal Government to the issue of access to

DNA evidence. Such a decision, the majority warns,

would embroil the Court in myriad policy questions best

left to other branches of government. Ante, at 19–20. The

majority’s arguments in this respect bear close resem­

blance to the manner in which the Court once approached

the now-venerable right to counsel for indigent defen­

dants. Before our decision in Powell v. Alabama, 287 U. S.

45 (1932), state law alone governed the manner in which

counsel was appointed for indigent defendants. “Efforts to

impose a minimum federal standard for the right to coun­

sel in state courts routinely met the same refrain: ‘in the

face of these widely varying state procedures,’ this Court

refused to impose the dictates of ‘due process’ onto the

states and ‘hold invalid all procedure not reaching that

standard.” Brief for Current and Former Prosecutors as

Amici Curiae 28, n. 8 (quoting Bute v. Illinois, 333 U. S.

640, 668 (1948)). When at last this Court recognized the

Sixth Amendment right to counsel for all indigent criminal

defendants in Gideon v. Wainwright, 372 U. S. 335 (1963),

our decision did not impede the ability of States to tailor

their appointment processes to local needs, nor did it

unnecessarily interfere with their sovereignty. It did,

however, ensure that criminal defendants were provided

with the counsel to which they were constitutionally enti­

tled.10 In the same way, a decision to recognize a limited

——————

10 The majority’s position also resembles that taken by Justice Harlan

in his dissent in Miranda v. Arizona, 384 U. S. 436, 523 (1966), in

which he faulted the Court for its “ironic untimeliness.” He noted that

the Court’s decision came at time when scholars, politicians, and law

enforcement officials were beginning to engage in a “massive reexami­

nation of criminal law enforcement procedures on a scale never before

witnessed,” and predicted that the practical effect of the Court’s deci­

sion would be to “handicap seriously” those sound efforts. Id., at 523–

524. Yet time has vindicated the decision in Miranda. The Court’s

16 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

STEVENS, J., dissenting

right of postconviction access to DNA testing would not

prevent the States from creating procedures by which

litigants request and obtain such access; it would merely

ensure that States do so in a manner that is nonarbitrary.

While it is true that recent advances in DNA technology

have led to a nationwide reexamination of state and fed­

eral postconviction procedures authorizing the use of DNA

testing, it is highly unlikely that affirming the judgment of

the Court of Appeals would significantly affect the use of

DNA testing in any of the States that have already devel­

oped statutes and procedures for dealing with DNA evi­

dence or would require the few States that have not yet

done so to postpone the enactment of appropriate legisla­

tion.11 Indeed, a holding by this Court that the policy

——————

refusal to grant Osborne access to critical DNA evidence rests on a

practical judgment remarkably similar to Justice Harlan’s, and I find

the majority’s judgment today as profoundly incorrect as the Miranda

minority’s was yesterday.

11 The United States and several States have voiced concern that the

recognition of a limited federal right of access to DNA evidence might

call into question reasonable limits placed on such access by federal and

state statutes. See Brief for United States as Amicus Curiae 17–26;

Brief for State of California et al. as Amici Curiae 1–16. For example,

federal law and several state statutes impose the requirement that an

applicant seeking postconviction DNA testing execute an affidavit

attesting to his innocence before any request will be performed. See,

e.g., 18 U. S. C. §3600(a)(1); Fla. Stat. §925.11(2)(a)(3) (2009 Supp.).

Affirming the judgment of the Ninth Circuit would not cast doubt on

the constitutionality of such a requirement, however, since Osborne

was never asked to execute such an affidavit as a precondition to

obtaining access to the State’s evidence. Similarly, affirmance would

not call into question the legitimacy of other reasonable conditions

States may place on access to DNA testing, such as Alaska’s require­

ment that test results be capable of yielding a clear answer with respect

to guilt or innocence. “[D]ue process is flexible,” Morrissey v. Brewer,

408 U. S. 471, 481 (1972), and the manner in which it is provided may

reasonably vary from State to State and case to case. So long as the

limitations placed on a litigant’s access to such evidence remain proce­

durally fair and nonarbitrary, they will comport with the demands of

Cite as: 557 U. S. ____ (2009) 17

STEVENS, J., dissenting

judgments underlying that legislation rest on a sound

constitutional foundation could only be constructive.

IV

Osborne has demonstrated a constitutionally protected

right to due process which the State of Alaska thus far has

not vindicated and which this Court is both empowered

and obliged to safeguard. On the record before us, there is

no reason to deny access to the evidence and there are

many reasons to provide it, not least of which is a funda­

mental concern in ensuring that justice has been done in

this case. I would affirm the judgment of the Court of

Appeals, and respectfully dissent from the Court’s refusal

to do so.

——————

due process.

Cite as: 557 U. S. ____ (2009) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–6

_________________

DISTRICT ATTORNEY’S OFFICE FOR THE THIRD

JUDICIAL DISTRICT, ET AL., PETITIONERS v.

WILLIAM G. OSBORNE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2009]

JUSTICE SOUTER, dissenting.

I respectfully dissent on the ground that Alaska has

failed to provide the effective procedure required by the

Fourteenth Amendment for vindicating the liberty interest

in demonstrating innocence that the state law recognizes.

I therefore join Part I of JUSTICE STEVENS’s dissenting

opinion.

I would not decide Osborne’s broad claim that the Four­

teenth Amendment’s guarantee of due process requires

our recognition at this time of a substantive right of access

to biological evidence for DNA analysis and comparison. I

would reserve judgment on the issue simply because there

is no need to reach it; at a general level Alaska does not

deny a right to postconviction testing to prove innocence,

and in any event, Osborne’s claim can be resolved by

resort to the procedural due process requirement of an

effective way to vindicate a liberty interest already recog­

nized in state law, see Evitts v. Lucey, 469 U. S. 387, 393

(1985). My choice to decide this case on that procedural

ground should not, therefore, be taken either as express­

ing skepticism that a new substantive right to test should

be cognizable in some circumstances, or as implying

agreement with the Court that it would necessarily be

2 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

SOUTER, J., dissenting

premature for the Judicial Branch to decide whether such

a general right should be recognized.

There is no denying that the Court is correct when it

notes that a claim of right to DNA testing, post-trial at

that, is a novel one, but that only reflects the relative

novelty of testing DNA, and in any event is not a sufficient

reason alone to reject the right asserted, see Reno v. Flo

res, 507 U. S. 292, 318–319 (1993) (O’Connor, J., concur­

ring). Tradition is of course one serious consideration in

judging whether a challenged rule or practice, or the

failure to provide a new one, should be seen as violating

the guarantee of substantive due process as being arbi­

trary, or as falling wholly outside the realm of reasonable

governmental action. See Poe v. Ullman, 367 U. S. 497,

542 (1961) (Harlan, J., dissenting). We recognize the

value and lessons of continuity with the past, but as Jus­

tice Harlan pointed out, society finds reasons to modify

some of its traditional practices, ibid., and the accumula­

tion of new empirical knowledge can turn yesterday’s

reasonable range of the government’s options into a due

process anomaly over time.

As for determining the right moment for a court to

decide whether substantive due process requires recogni­

tion of an individual right unsanctioned by tradition (or

the invalidation of traditional law), I certainly agree with

the Court that the beginning of wisdom is to go slow.

Substantive due process expresses the conception that the

liberty it protects is a freedom from arbitrary government

action, from restraints lacking any reasonable justification

id., at 541,1 and a substantive due process claim requires

attention to two closely related elements that call for great

care on the part of a court. It is crucial, first, to be clear

about whose understanding it is that is being taken as the

——————

1 Mutatis mutandis, the same is true of our notions of life and prop­

erty, subject to the same due process guarantee.

Cite as: 557 U. S. ____ (2009) 3

SOUTER, J., dissenting

touchstone of what is arbitrary and outside the sphere of

reasonable judgment. And it is just as essential to recog­

nize how much time society needs in order to work

through a given issue before it makes sense to ask

whether a law or practice on the subject is beyond the pale

of reasonable choice, and subject to being struck down as

violating due process.

It goes without saying that the conception of the reason­

able looks to the prevailing understanding of the broad

society, not to individual notions that a judge may enter­

tain for himself alone, id., at 542, 544, and in applying a

national constitution the society of reference is the nation.

On specific issues, widely shared understandings within

the national society can change as interests claimed under

the rubric of liberty evolve into recognition, see Griswold

v. Connecticut, 381 U. S. 479 (1965) (personal privacy);

Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy),

see also Washington v. Glucksberg, 521 U. S. 702, 752

(1997) (SOUTER, J., concurring in judgment), or are recast

in light of experience and accumulated knowledge, com­

pare Roe v. Wade, 410 U. S. 113 (1973), with Planned

Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833

(1992) (joint opinion of O’Connor, KENNEDY and SOUTER,

JJ.).

Changes in societal understanding of the fundamental

reasonableness of government actions work out in much

the same way that individuals reconsider issues of funda­

mental belief. We can change our own inherited views

just so fast, and a person is not labeled a stick-in-the-mud

for refusing to endorse a new moral claim without having

some time to work through it intellectually and emotion­

ally. Just as attachment to the familiar and the limits of

experience affect the capacity of an individual to see the

potential legitimacy of a moral position, the broader soci­

ety needs the chance to take part in the dialectic of public

and political back and forth about a new liberty claim

4 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

SOUTER, J., dissenting

before it makes sense to declare unsympathetic state or

national laws arbitrary to the point of being unconstitu­

tional. The time required is a matter for judgment de­

pending on the issue involved, but the need for some time

to pass before a court entertains a substantive due process

claim on the subject is not merely the requirement of

judicial restraint as a general approach, but a doctrinal

demand to be satisfied before an allegedly lagging legal

regime can be held to lie beyond the discretion of reason­

able political judgment.

Despite my agreement with the Court on this impor­

tance of timing, though, I do not think that the doctrinal

requirement necessarily stands in the way of any substan­

tive due process consideration of a postconviction right to

DNA testing, even as a right that is freestanding. Given

the pace at which DNA testing has come to be recognized

as potentially dispositive in many cases with biological

evidence, there is no obvious argument that considering

DNA testing at a general level would subject wholly in­

transigent legal systems to substantive due process review

prematurely. But, as I said, there is no such issue before

us, for Alaska does not flatly deny access to evidence for

DNA testing in postconviction cases.

In another case, a judgment about appropriate timing

might also be necessary on issues of substantive due proc­

ess at the more specific level of the State’s conditions for

exercising the right to test. Several such limitations are

potentially implicated, including the need of a claimant to

show that the test results would be material as potentially

showing innocence, and the requirement that the testing

sought be capable of producing new evidence not available

at trial. But although I assume that avoiding prematurity

is as much a doctrinal consideration in assessing the

conditions affecting a substantive right as it is when the

Cite as: 557 U. S. ____ (2009) 5

SOUTER, J., dissenting

substantive right itself is the subject of a general claim,2

there is no need here to resolve any timing issue that

might be raised by challenges to these details.

Osborne’s objection here is not only to the content of the

State’s terms and conditions, but also to the adequacy of

Alaska’s official machinery in applying them, and there is

no reason to defer consideration of this due process claim:

given the conditions Alaska has placed on the right it

recognizes, the due process guarantee requires the State

to provide an effective procedure for proving entitlement

to relief under that scheme, Evitts, 469 U. S., at 393, and

the State has failed. On this issue, Osborne is entitled to

relief. Alaska has presented no good reasons even on its

own terms for denying Osborne the access to the evidence

he seeks, and the inexplicable failure of the State to pro­

vide an effective procedure is enough to show a need for a

§1983 remedy, and relief in this case. JUSTICE STEVENS

deals with this failure in Part I of his dissent, which I join,

and I emphasize only two points here.

In effect, Alaska argues against finding any right to

relief in a federal §1983 action because the procedure the

State provides is reasonable and adequate to vindicate the

post-trial liberty interest in testing evidence that the State

has chosen to recognize.3 When I first considered the

——————

2 It makes sense to approach these questions as governed by the same

requirement to allow time for adequate societal and legislative consid­

eration that substantive liberty interests should receive at a general

level. As Judge Luttig has pointed out, there is no hermetic line

between the substantive and the procedural in due process analysis,

Harvey v. Horan, 285 F. 3d 298, 318–319 (CA4 2002), and in this case

one could argue back and forth about the better characterization of

various state conditions as being one or the other.

3 Alaska does not argue that the State’s process for vindicating the

right to test, however inadequate, defines the limit of the right it

recognizes, with a consequence that, by definition, the liberty interest

recognized by the State calls for no process for its vindication beyond

what the State provides.

6 DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL

DIST. v. OSBORNE

SOUTER, J., dissenting

State’s position I thought Alaska’s two strongest points

were these: (1) that in Osborne’s state litigation he failed

to request access for the purpose of a variety of postconvic­

tion testing that could not have been done at time of trial

(and thus sought no new evidence by his state-court peti­

tion); and (2) that he failed to aver actual innocence (and

thus failed to place his oath behind the assertion that the

evidence sought would be material to his postconviction

claim). Denying him any relief under these circumstances,

the argument ran, did not indicate any inadequacy in the

state procedure that would justify resort to §1983 for

providing due process.

Yet the record shows that Osborne has been denied

access to the evidence even though he satisfied each of

these conditions. As for the requirement to claim testing

by a method not available at trial, Osborne’s state-court

appellate brief specifically mentioned his intent to conduct

short tandem repeat (STR) analysis, App. at 171, 175, and

the State points to no pleading, brief, or evidence that

Osborne ever changed this request.

The State’s reliance on Osborne’s alleged failure to claim

factual innocence is equally untenable. While there is no

question that after conviction and imprisonment he admit­

ted guilt under oath as a condition for becoming eligible

for parole, the record before us makes it equally apparent

that he claims innocence on oath now. His affidavit filed

in support of his request for evidence under §1983 con­

tained the statement, “I have always maintained my

innocence,” id., at 226, ¶2, followed by an explanation that

his admission of guilt was a necessary gimmick to obtain

parole, id., at 227, ¶7. Since the State persists in main­

taining that Osborne is not entitled to test its evidence, it

is apparently mere makeweight for the State to claim that

he is not entitled to §1983 relief because he failed to claim

innocence seriously and unequivocally.

This is not the first time the State has produced reasons

Cite as: 557 U. S. ____ (2009) 7

SOUTER, J., dissenting

for opposing Osborne’s request that collapse upon inspec­

tion. Arguing before the Ninth Circuit, the State main­

tained that the DNA evidence Osborne sought was not

material; that is, it argued that a test excluding Osborne

as the source of semen in the blue condom, found near the

bloody snow and spent shell casing in the secluded area

where the victim was raped by one man, would not “estab­

lish that he was factually innocent” or even “undermine

confidence . . . in the verdict.” Reply of Appellant, in No.

06-35875 (CA9 2008), p. 18; see also 521 F. 3d 1118, 1136

(CA9 2008). Such an argument is patently untenable, and

the State now concedes that a favorable test could “conclu­

sively establish Osborne’s innocence.” Reply to Brief in

Opposition 8.

Standing alone, the inadequacy of each of the State’s

reasons for denying Osborne access to the DNA evidence

he seeks would not make out a due process violation.4 But

taken as a whole the record convinces me that, while

Alaska has created an entitlement of access to DNA evi­

dence under conditions that are facially reasonable, the

State has demonstrated a combination of inattentiveness

and intransigence in applying those conditions that add up

to procedural unfairness that violates the Due Process

Clause.

——————

4 This Court is not in a position to correct individual errors of the

Alaska Court of Appeals or Alaska officials, as §1983 does not serve as

a mechanism to review specific, unfavorable state-law determinations.