Amicus Curiae Brief — Rodney Reed, Petitioner v. Bryan Goertz

No. 21-442

IN THE

Supreme Court of the United States

____________________

RODNEY REED,

Petitioner,

v.

BRYAN GOERTZ,

Respondent.

____________________

On Writ of Certiorari To The

United States Court of Appeals

For The Fifth Circuit

____________________

BRIEF OF FEDERAL COURTS SCHOLARS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

____________________

Meaghan VerGow

Counsel of Record

Jenya Godina

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

mvergow@omm.com

Attorneys for Amici Curiae

i

QUESTION PRESENTED

The question presented is whether the statute of

limitations for a § 1983 claim bringing a due process

challenge to a state’s DNA-testing procedures begins

to run at the end of state-court litigation denying

DNA testing, including any appeals, or whether it

begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal.

ii

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT................................... 2

ARGUMENT ............................................................. 4

I. Federalism And Comity Principles

Disfavor Co-Pendent State And Federal

Proceedings ..................................................... 4

A. Longstanding Federalism And

Comity Principles Require Careful

Sequencing Of Litigation That

Moves Across State And Federal

Courts. ....................................................... 5

B. Federalism And Comity Concerns

Are Acute In The Criminal Law

Context. ................................................... 10

C. Skinner Challenges Warrant A

Sequencing Rule That Safeguards

Federalism and Comity. ......................... 15

II. The Fifth Circuit’s Decision Upends

The Bedrock Principles Of Comity And

Federalism By Encouraging The CoPendency Of State and Federal

Litigation ...................................................... 17

A. This Court Has Recognized That

Federalism And Comity Concerns,

Including The Interest In Avoiding

Co-Pendency, Properly Inform The

Accrual Analysis ..................................... 18

iii

TABLE OF CONTENTS

(continued)

Page

B. The Fifth Circuit’s Rule Contravenes

These Principles. ..................................... 20

CONCLUSION ........................................................ 23

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Alden v. Maine,

527 U.S. 706 (1999) ................................................ 5

Allegheny Cnty. v. Frank Mashuda Co.,

360 U.S. 185 (1959) .......................................... 9, 22

Allen v. McCurry,

449 U.S. 90 (1980) ................................................ 21

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) .......................................6, 10, 21

Braden v. 30th Jud. Cir. Ct. of Ky.,

410 U.S. 484 (1973) .............................................. 13

Brecht v. Abrahamson,

507 U.S. 619 (1993) .............................................. 11

Brown v. Ohio,

432 U.S. 161 (1977) .............................................. 21

Burford v. Sun Oil Co.,

319 U.S. 315 (1943) ................................................ 9

Cameron v. EMW Women’s Surgical

Ctr., P.S.C.,

142 S. Ct. 1002 (2022) ............................................ 6

Coleman v. Thompson,

501 U.S. 722 (1991) .............................................. 12

Colo. River Water Conservation Dist. v.

United States,

424 U.S. 800 (1976) ................................................ 9

Darr v. Burford,

339 U.S. 200 (1950) .............................................. 13

Dist. Att’y’s Off. for Third Jud. Dist. v.

Osborne,

557 U.S. 52 (2009) ................................................ 16

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Duckworth v. Serrano,

454 U.S. 1 (1981) .................................................. 13

Duncan v. Walker,

533 U.S. 167 (2001) .............................................. 12

Ex parte Royall,

117 U.S. 241 (1886) .............................................. 12

Fay v. Noia,

372 U.S. 391 (1963) .............................................. 13

Garner v. Louisiana,

368 U.S. 157 (1961) .............................................. 17

Gregory v. Ashcroft,

501 U.S. 452 (1991) ................................................ 6

Heck v. Humphrey,

512 U.S. 477 (1994) ...................................14, 15, 19

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975) ................................................ 7

Juidice v. Vail,

430 U.S. 327 (1977) ................................................ 7

Kansas v. Garcia,

140 S. Ct. 791 (2020) ............................................ 10

Lehman Bros. v. Schein,

416 U.S. 386 (1974) ................................................ 9

Maine v. Taylor,

477 U.S. 131 (1986) ................................................ 6

McDonough v. Smith,

139 S. Ct. 2149 (2019) .........................18, 19, 20, 22

Middlesex Cnty. Ethics Comm. v.

Garden State Bar Ass’n,

457 U.S. 423 (1982) .......................................... 7, 16

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Mitchum v. Foster,

407 U.S. 225 (1972) .............................................. 11

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) ............................................ 5

Poe v. Ullman,

367 U.S. 497 (1961) .............................................. 21

Preiser v. Rodriguez,

411 U.S. 475 (1973) .........................................14, 19

Pustell v. Lynn Pub. Sch.,

18 F.3d 50 (1st Cir. 1994) ...................................... 8

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941) ................................................ 8

Rose v. Lundy,

455 U.S. 509 (1982) .............................................. 12

Saenz v. Roe,

526 U.S. 489 (1999) ................................................ 5

Screws v. United States,

325 U.S. 91 (1945) ................................................ 10

Shinn v. Ramirez,

142 S. Ct. 1718 (2022) .....................................11, 13

Skinner v. Switzer,

562 U.S. 521 (2011) ...................................15, 16, 17

United States v. Lopez,

514 U.S. 549 (1995) .............................................. 11

United States v. Taylor,

142 S. Ct. 2015 (2022) .......................................... 17

Wilkinson v. Dotson,

544 U.S. 74 (2005) ................................................ 15

Younger v. Harris,

401 U.S. 37 (1971) ......................................... passim

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

OTHER AUTHORITIES

17A Charles A. Wright et al., Federal

Practice & Procedure § 4241 (3d ed.

Apr. 2022 update) .................................................. 8

Laurence H. Tribe, American

Constitutional Law § 3-28 (2d ed.

1988) ....................................................................... 6

Mary Brigid McManamon, Felix

Frankfurter: The Architect of “Our

Federalism,” 27 Ga. L. Rev. 6973

(1993) ...................................................................... 7

Matthew S. Brogdon, The Formation of

Judicial Federalism in the United

States, 48 J. of Federalism 269 (2017) .................. 6

Sandra Day O’Connor, Our Judicial

Federalism, 35 Case W. Rsrv. L. Rev.

1 (1984) ................................................................... 8

The Federalist No. 39 (James Madison)

(Clinton Rossiter ed., 1961) ............................. 5, 11

INTEREST OF AMICI CURIAE1

This brief is filed on behalf of legal scholars who

study federal jurisdiction, federal procedure, and

constitutional law, and who have taught and written

on the interplay between proceedings in state and

federal courts.

John H. Blume is the Samuel F. Leibowitz Professor of Trial Techniques and Director of the Cornell Death Penalty Project at Cornell Law School.

Erwin Chemerinsky is the Dean and Jesse H.

Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell Law School.

Eric M. Freedman is the Siggi B. Wilzig Distinguished Professor of Constitutional Rights at Hofstra Law School.

Brandon L. Garrett is the L. Neil Williams, Jr.

Professor of Law and the Director of the Wilson Center for Science and Justice at Duke Law School.

Randy Hertz is the Vice Dean, Professor of Clinical Law, and the Director of Clinical and Advocacy

Programs at New York University School of Law.

Lee Kovarsky holds the Bryant Smith Chair in

Law and is the Co-Director of the Capital Punish-

1 Pursuant to Rule 37.6, amici certify that no counsel for a

party has authored this brief in whole or in part and that no

one other than amici and their counsel has made any monetary

contribution to the preparation and submission of this brief.

All parties have consented to the filing of this brief.

2

ment Center at the University of Texas School of

Law.

James S. Liebman is the Simon H. Rifkind Professor of Law at Columbia Law School.

Leah Litman is an Assistant Professor of Law at

University of Michigan Law School.

Eve Brensike Primus is the Yale Kamisar Collegiate Professor of Law at University of Michigan

Law School.

Jordan M. Steiker holds the Judge Robert M.

Parker Endowed Chair in Law and is the CoDirector of the Capital Punishment Center at the

University of Texas School of Law.

Stephen I. Vladeck holds the Charles Alan

Wright Chair in Federal Courts at the University of

Texas School of Law.

SUMMARY OF ARGUMENT

The Court should hold that § 1983 claims challenging the constitutionality of state post-conviction

DNA testing statutes do not accrue until the end of

state-court litigation denying DNA testing. That is

the only rule that comports with principles of federalism and comity, which favor sequencing federal litigation after related state proceedings. Unnecessary

co-pendency of state and federal litigation invites

unnecessary intrusions into state processes. If a

federal court need not exercise jurisdiction under

§ 1983, then an accrual rule should not force it to do

so.

3

I. Federalism and comity principles are fixtures

of our constitutional tradition. State and federal

sovereigns coexist in our system of government, and

judicial federalism and comity help preserve the delicate balance of power between them. Judicial authority is divided between federal and state courts,

and federal courts respect the important role of state

courts in the constitutional scheme.

These principles are engrained in this Court’s jurisprudence. They animate numerous abstention

doctrines and other judicially created mechanisms

that prevent federal courts from interfering with

state judicial power. While those mechanisms safeguard federalism and comity interests across a range

of potential state-federal interactions, they are especially critical in the criminal law context, where

states perform an essential function. Doctrines such

as Younger abstention have been developed to ensure the appropriate sequencing of litigation relating

to criminal proceedings.

Under 42 U.S.C. § 1983, federal courts may redress constitutional violations by state actors, including violations that relate to state criminal proceedings. But federal litigation challenging the constitutionality of a state court’s authoritative construction of a state criminal statute, or a statute adjacent to criminal process, invites the exercise of federal jurisdiction in an area of particular sensitivity.

In this context, the federalism- and comity-driven

need to avoid co-pendency is particularly acute. A

federal court should not proceed with adjudication

before state courts have had their say.

4

II. The rule adopted by the Fifth Circuit and defended by respondent upends those principles. This

Court’s precedents demand that comity and federalism inform the development of accrual rules. The

Fifth Circuit’s accrual rule places state and federal

courts on a needless collision course instead: litigants must rush to the federal courthouse before

state courts have authoritatively construed state law

in their cases. That approach undermines federalism and comity, and it creates a host of inefficiencies, administrative burdens, and other practical

problems. This Court should steer clear of that morass and adopt the rule that comports with our constitutional tradition: § 1983 claims seeking postconviction DNA testing accrue only after state proceedings, including appeals, conclude. State courts

should have a full opportunity to construe their own

laws before federal courts exercise their jurisdiction.

ARGUMENT

I. Federalism And Comity Principles Disfavor

Co-Pendent State And Federal Proceedings

This case asks the Court to devise an accrual rule

for § 1983 claims that challenge the constitutionality

of state-court orders denying post-conviction access

to DNA testing. That accrual rule should reflect federalism and comity interests, which discourage unnecessary incursion on state prerogatives. Those

foundational interests are particularly strong in contexts with a close nexus to the enforcement of a

state’s criminal judgment. Rules that disfavor copendency in such areas maintain respect for the role

of state courts as the definitive interpreters of state

law.

5

A. Longstanding Federalism And Comity

Principles Require Careful Sequencing

Of Litigation That Moves Across State

And Federal Courts.

1. Federalism and comity are bedrock interests

that influenced how the Framers structured our constitutional system. “The Constitution limited but

did not abolish the sovereign powers of the States,

which retained ‘a residuary and inviolable sovereignty.’” Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S.

Ct. 1461, 1475 (2018) (quoting The Federalist No. 39,

at 245 (James Madison) (Clinton Rossiter ed., 1961)).

This dual sovereignty was a feature, not a bug: “By

‘split[ting] the atom of sovereignty,’ the Founders established ‘two orders of government, each with its

own direct` relationship, its own privity, its own set

of mutual rights and obligations to the people who

sustain it and are governed by it.’” Alden v. Maine,

527 U.S. 706, 751 (1999) (quoting Saenz v. Roe, 526

U.S. 489, 504 n.17 (1999)). The Framers “rejected

both” a “blind deference to ‘States’ Rights’” and the

“centralization of control over every important issue

in our National Government and its courts.” Younger v. Harris, 401 U.S. 37, 44-45 (1971). Instead, the

Framers pursued what this Court has characterized

as “Our Federalism”: “[A] system in which there is

sensitivity to the legitimate interests of both State

and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not

unduly interfere with the legitimate activities of the

States.” Id.

6

Though the term “federalism” typically evokes

the relationship between the federal and state governments writ large, it encompasses the relationship

between the state and federal judiciaries. That relationship, too, reflects the “dual sovereignty” set forth

in the Constitution. Gregory v. Ashcroft, 501 U.S.

452, 457 (1991). “Paramount among the States’ retained sovereign powers is the power to enact and

enforce any laws that do not conflict with federal

law.” Cameron v. EMW Women’s Surgical Ctr.,

P.S.C., 142 S. Ct. 1002, 1010-11 (2022). Because a

State “clearly has a legitimate interest in the continued enforceability of its own statutes,” Maine v. Taylor, 477 U.S. 131, 137 (1986), this Court has established that federal courts must “respect ... the place

of the States in our federal system,” Arizonans for

Off. Eng. v. Arizona, 520 U.S. 43, 75 (1997).

This narrower aspect of federalism has been

characterized as judicial federalism: the “view that

federal courts must regard their power as tempered

by a keen appreciation of the essential role of the

states and their judicial systems in our constitutional universe.” Laurence H. Tribe, American Constitutional Law § 3-28, at 196 (2d ed. 1988); see Matthew

S. Brogdon, The Formation of Judicial Federalism in

the United States, 48 J. of Federalism 269, 273-80

(2017) (tracing the origins and historical development of judicial federalism beginning with the framing of Articles III and VI of the Constitution at the

Convention of 1787 and the debate over the Judiciary Act of 1789 in the First Congress). The concept

of “Our Federalism” has now “become synonymous

with judicial federalism, the notion that federal

courts must wield their power with a sensitivity to

7

its impact on the balance of power between Nation

and States.” Mary Brigid McManamon, Felix Frankfurter: The Architect of “Our Federalism,” 27 Ga. L.

Rev. 697, 703 (1993). In short, this concept is a species of comity—not merely “a proper respect for state

functions,” Younger, 401 U.S. at 44-45, but a proper

respect for the role of state courts in particular.

2. These principles underlie numerous legal doctrines that safeguard the role of state courts at

points of interaction between the state and federal

judicial systems by ensuring the proper sequencing

of state and federal proceedings.

a. Abstention doctrines provide one example.

Chief among these is Younger abstention, which began as a restraint against using § 1983 to enjoin already-commenced state criminal prosecutions, see

Younger, 401 U.S. at 41, and has since expanded to

require certain civil state litigation to precede federal litigation as well, see, e.g., Huffman v. Pursue,

Ltd., 420 U.S. 592, 604-05 (1975) (expanding Younger to state civil proceedings analogous to criminal

prosecutions); Juidice v. Vail, 430 U.S. 327, 335

(1977) (expanding Younger to state civil proceedings

involving functions “at the core of the administration

of a [s]tate’s judicial system”); Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

433-34 (1982) (expanding Younger to state administrative proceedings implicating significant state interests).

Younger is a quintessential sequencing rule that

“accords broad protection to pending state proceedings” and “illustrates a pervasive theme in our judicial federalism: state court respect for federal law is

8

inextricably linked to federal court respect for state

court proceedings.” Sandra Day O’Connor, Our Judicial Federalism, 35 Case W. Rsrv. L. Rev. 1, 9

(1984).

Pullman abstention likewise ensures proper sequencing as a means to ensure respect for the state

judiciary. Developed in Railroad Commission of

Texas v. Pullman Co., 312 U.S. 496, 501 (1941), that

doctrine holds that “[i]f there are unsettled questions

of state law in a case that may make it unnecessary

to decide a federal constitutional question, the federal court should abstain until the state court has resolved the state questions,” 17A Charles A. Wright et

al., Federal Practice & Procedure § 4241 (3d ed. Apr.

2022 update). That holding was driven in part by

the Court’s understanding of (and respect for) the

distinctive role of state courts. The Court explained

that “[r]eading the Texas statutes and the Texas decisions as outsiders without special competence in

Texas law, we would have little confidence in our independent judgment regarding the application of

that law to the present situation,” and noted that

“[t]he reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a

controlling decision of a state court.” Pullman, 312

U.S. at 499-500. Pullman abstention “serves the dual aims of avoiding advisory constitutional decisionmaking, as well as promoting the principles of

comity and federalism by avoiding needless federal

intervention into local affairs.” Pustell v. Lynn Pub.

Sch., 18 F.3d 50, 53 (1st Cir. 1994).2

Along similar lines, the doctrine of Burford abstention,

which takes its name from this Court’s decision in Burford v.

2

9

Complementing these comity-driven abstention

doctrines, Colorado River abstention authorizes federal courts, in limited circumstances and to promote

judicial economy, to dismiss federal cases that are

co-pending with related state litigation. As described in the eponymous case of Colorado River Water Conservation District v. United States, 424 U.S.

800 (1976), this doctrine recognizes that “dismissal

of a federal suit due to the presence of a concurrent

state proceeding for reasons of wise judicial administration” is proper in certain “limited … circumstances,” id. at 818. As with other abstention doctrines, Colorado River abstention promotes comity

and federalism by sequencing litigation that crosses

the divide between the two judicial systems.

b. Certification of questions to state courts is another mechanism by which courts preserve the delicate state-federal balance. Certification procedures

allow a federal court to put novel state-law questions

directly to the State’s highest court, thereby saving

“time, energy, and resources and help[ing] build a

cooperative judicial federalism.” Lehman Bros. v.

Schein, 416 U.S. 386, 391 (1974). Like the abstention doctrines described above, certification ensures

proper sequencing by permitting the state to provide

its authoritative determination of state law before

Sun Oil Co., 319 U.S. 315 (1943), encourages federal courts to

abstain from exercising their jurisdiction when doing so would

risk assuming the functions of state courts in the development

and implementation of a state’s public policies, see id. at 33234. Such abstention is proper “on grounds of comity with the

States when the exercise of jurisdiction by the federal court

would disrupt a state administrative process.” Allegheny Cnty.

v. Frank Mashuda Co., 360 U.S. 185, 189 (1959).

10

federal proceedings implicating that state law resume. Certification enables federal courts to avoid

“friction-generating error” in the interpretation of

state law, and its availability makes “[s]peculation

by a federal court about the meaning of a state statute in the absence of prior state court adjudication …

particularly gratuitous.” Arizonans, 520 U.S. at 79

(internal quotation marks and citation omitted).

Accommodations ensuring proper state-federal

sequencing and due respect for state judicial power

are firmly engrained in this Court’s jurisprudence.

Sensitivity to a proper distribution of responsibility

between federal and state courts is foundational to

our system of government, “born in the early struggling days of our Union of States,” and “occup[ying] a

highly important place in our Nation’s history and

its future.” Younger, 401 U.S. at 44-45.

B. Federalism And Comity Concerns Are

Acute In The Criminal Law Context.

1. The interest against co-pending litigation is

particularly important in the context of criminal law,

where states play a central role.

“From the beginning of our country, criminal law

enforcement has been primarily a responsibility of

the States, and that remains true today.” Kansas v.

Garcia, 140 S. Ct. 791, 806 (2020). Because “[o]ur

national government is one of delegated powers

alone,” federalism teaches that “the administration

of criminal justice rests with the States except as

Congress, acting within the scope of those delegated

powers, has created offenses against the United

States.” Screws v. United States, 325 U.S. 91, 109

(1945) (plurality opinion). “Under our federal sys-

11

tem, the ‘States possess primary authority for defining and enforcing the criminal law.’” United States

v. Lopez, 514 U.S. 549, 561 n.3 (1995) (quoting

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).

Indeed, as this Court has recognized, “[t]he power to

convict and punish criminals lies at the heart of the

States’ ‘residuary and inviolable sovereignty.’”

Shinn v. Ramirez, 142 S. Ct. 1718, 1730-31 (2022)

(quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).

Interactions between the federal and state judicial systems in the criminal law context thus call for

heightened sensitivity, respect for state interests,

and especially strong rules that sequence state-court

litigation before Article III proceedings.

2. Younger works alongside principles of federal

habeas law to accommodate federalism and comity

interests when a state’s criminal conviction is at

stake.

a. As noted above, Younger abstention doctrine

shields state criminal prosecutions from injunctions

entered by federal courts pursuant to § 1983. Supra

at 7. Even though § 1983 is an “expressly authorized” exception to the Anti-Injunction Act, which

generally bars federal courts from enjoining ongoing

state court proceedings, Mitchum v. Foster, 407 U.S.

225, 242-43 (1972), Younger equitably restrains the

use of § 1983 to enjoin already-commenced state

criminal cases. That restraint is compelled, Younger

held, by a “vital consideration, the notion of ‘comity,’

that is, a proper respect for state functions,” which

gives rise to “the fundamental policy against federal

12

interference with state criminal prosecutions,” 401

U.S. at 44-46.

b. The same policy interests have contributed to

the development of federal habeas corpus principles.

Two aspects of federal habeas review are salient

here: the habeas exhaustion doctrine and habeas

exclusivity.

The federal habeas statute has long included an

exhaustion requirement: the sequencing rule that

federal habeas review of state criminal convictions or

custody must await completion of state proceedings.

That principle dates back to at least 1886, and is justified in large part by the distribution of responsibility between federal and state courts under our system of government. In Ex parte Royall, 117 U.S. 241

(1886), the Court explained this rule “in the light of

the relations existing … between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that

those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution,” id. at 251-52.

The Court has repeatedly reaffirmed habeas exhaustion requirements—and the comity-based rationale that underlies them. At bottom, “[t]he exhaustion doctrine is principally designed to protect

the state courts’ role in the enforcement of federal

law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982); see

also, e.g., Duncan v. Walker, 533 U.S. 167, 179 (2001)

(noting that “[t]he exhaustion rule promotes comity”); Coleman v. Thompson, 501 U.S. 722, 731 (1991)

(exhaustion requirement is “grounded in principles

13

of comity; in a federal system, the States should

have the first opportunity to address and correct alleged violations of state prisoner’s federal rights”).

Critically, exhaustion affords states “an initial

opportunity to pass upon and correct alleged violations of prisoners’ federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam), since “it

would be unseemly in our dual system of government for a federal district court to upset a state

court conviction without [giving] an opportunity to

the state courts to correct a constitutional violation,”

Shinn, 142 S. Ct. at 1732 (quoting Darr v. Burford,

339 U.S. 200, 204 (1950)).

Courts similarly reinforce federalism and comity

interests by applying the principle that federal habeas corpus is the exclusive avenue for federal challenges to state criminal proceedings, convictions, and

custody. See, e.g., Fay v. Noia, 372 U.S. 391, 399-406

(1963). Like exhaustion, exclusivity ensures the orderly sequencing of state and federal proceedings

and prevents “the derailment of a pending state proceeding by an attempt to litigate constitutional defenses prematurely in federal court.” Braden v. 30th

Jud. Cir. Ct. of Ky., 410 U.S. 484, 488-93 (1973).

c. These principles underlie the Preiser-Heck

cases, which dictate that § 1983 claims are not cognizable if they necessarily imply the invalidity of an

existing state criminal judgment or state confinement. By ensuring that claims sounding in habeas

are subject to exhaustion and other habeas limitations regardless of their label, the Preiser-Heck doctrine promotes judicial federalism and the orderly

sequencing of state and federal litigation.

14

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

Court held that a § 1983 claim for injunctive relief,

brought by state prisoners who sought to restore

good-time credits and secure release from custody,

improperly intruded upon the exclusive domain of

habeas corpus. See id. at 500. In so doing, the Court

explained that a contrary rule “would wholly frustrate explicit congressional intent” by allowing individuals to “evade [the habeas exclusivity] requirement by the simple expedient of putting a different

label on their pleadings,” id. at 489-90, and reiterated that the “rule of exhaustion in federal habeas corpus actions is rooted in considerations of federalstate comity” as “defined in Younger,” id. at 491.

In Heck v. Humphrey, 512 U.S. 477 (1994), the

Court expanded Preiser’s logic to § 1983 damages

claims. The plaintiff in Heck sought damages under

§ 1983 separately from his claim for habeas relief,

contending that due process violations had infected

his state criminal proceedings and caused his wrongful conviction. Id. at 478-79. Drawing an analogy to

common-law malicious prosecution, where “[o]ne element that must be alleged and proved … is termination of the prior criminal proceeding in favor of

the accused,” the Court held that a § 1983 damages

action necessarily implying the invalidity of a state

conviction or confinement must await the invalidation of that conviction or confinement. Id. at 483-87.

This conclusion was bolstered by the now-familiar

themes of federalism and comity: The Court noted

that the favorable termination requirement “avoids

parallel litigation over the issues of probable cause

and guilt,” and noted that the Court “has long expressed similar concerns for finality and consistency

15

and has generally declined to expand opportunities

for collateral attack.” Id. at 484-85. The Court has

subsequently made clear that Heck’s holding applies

“no matter the relief sought (damages or equitable

relief)”—either way, “a state prisoner’s § 1983 action

is barred (absent prior invalidation) … if success in

that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.

Dotson, 544 U.S. 74, 81-82 (2005) (emphasis omitted). The Heck bar thus enforces federalism-based

sequencing by ensuring that attacks on a conviction

are subject to habeas law’s exhaustion requirement.

***

Each of these doctrines sequences federal litigation after proceedings in state court conclude, because parallel litigation relating to state criminal

convictions disserves fundamental comity and federalism interests.

C. Skinner Challenges Warrant A Sequencing Rule That Safeguards Federalism

and Comity.

In Skinner v. Switzer, 562 U.S. 521 (2011), the

Court sanctioned the species of § 1983 claim at issue

in this case. Because a constitutional challenge to a

state’s post-conviction DNA testing regime does not

necessarily imply the invalidity of the corresponding

state conviction, such claims are properly pursued

under § 1983. See id. at 525.

While Skinner claims avoid the Heck bar, they

still implicate federalism and comity interests. As

the cases expanding Younger abstention beyond its

original scope have recognized, federalism and comi-

16

ty concerns are “fully applicable to noncriminal judicial proceedings when important state interests are

involved,” including when “noncriminal proceedings

bear a close relationship to proceedings criminal in

nature.” Middlesex Cnty., 457 U.S. at 432. That is

true here because, as Skinner recognizes, challenges

to statutes governing a state’s post-conviction DNA

proceedings are intimately bound up with the ultimate question of the state conviction’s validity: “test

results might prove exculpatory,” though they might

also “prove inconclusive or they might further incriminate [the defendant].” 562 U.S. at 534; see also

id. at 541 (Thomas, J., dissenting) (characterizing

such claims as challenges to “[c]ollateral review procedures,” which, “like trial and direct appellate procedures … concern the validity of the conviction”).

The nexus to state criminal proceedings is especially

close because, heeding this Court’s guidance in District Attorney’s Office for Third Judicial District v.

Osborne, 557 U.S. 52 (2009), Skinner claims are not

pure facial attacks on a DNA testing statute in the

abstract; instead, they challenge the statute’s construction in a particular case after the claimant has

invoked state procedures, see id. at 71.

Thus—while Heck does not prevent the criminal

defendant from proceeding under § 1983 because the

invalidation of the conviction is not an inexorable

outcome—core state interests remain on the line

when a criminal defendant pursues a Skinner claim.

Federalism and comity concerns are accordingly at

their height, requiring robust protections against the

ongoing danger of co-pendency—the possibility that

litigation in federal court would start before litigation in state court ends. This circumstance calls for

17

an accrual rule that sequences federal litigation after state-court proceedings conclude.

That sequencing is especially critical because

Skinner claims assert constitutional error in state

post-conviction DNA statutes “‘as construed’ by the

[state] courts.” Skinner, 562 U.S. at 530.3 Such

claims thus necessarily implicate “the respect due

state courts as the final arbiters of state law in our

federal system,” United States v. Taylor, 142 S. Ct.

2015, 2025 (2022). When the state law interpretation in question is of a state statute that forms part

of a state’s collateral review process and is closely

related to criminal enforcement, heightened respect

for “the final authority [of state courts] to interpret

and, where they see fit, to reinterpret that State’s

legislation” is warranted. Garner v. Louisiana, 368

U.S. 157, 169 (1961). Federalism and comity concerns and the risk of disrupting the federal-state

balance are thus at their peak in the context of this

case.

II. The Fifth Circuit’s Decision Upends The

Bedrock Principles Of Comity And Federalism By Encouraging The Co-Pendency Of

State and Federal Litigation

As explained above, the unique nature of Skinner

claims calls for the utmost caution to avoid unneces3 This feature of a Skinner claim independently compels the

conclusion that the claim does not accrue until after state proceedings, including any appeals, have ended, since there is no

relevant violation of due process until the state courts have authoritatively construed the statute. See Br. of Petitioner at 2627, 30-34, 46-49. The federalism and comity concerns detailed

here simply reinforce that outcome.

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sary state-federal friction in an especially fraught

context. Far from the requisite light touch, however,

the Fifth Circuit rule defended by respondent needlessly risks conflict between federal and state judiciaries by encouraging co-pendency of litigation over

the application of a state law. This Court should instead adopt petitioner’s rule, which avoids friction

and honors the prerogative of state courts to definitively construe their statutes before federal courts

start issuing orders regarding their constitutionality.

A. This Court Has Recognized That Federalism And Comity Concerns, Including The

Interest

In

Avoiding

Co-Pendency,

Properly Inform The Accrual Analysis.

As this Court explained in McDonough v. Smith,

139 S. Ct. 2149 (2019), “federalism, comity, consistency, and judicial economy” are properly taken

into account in determining accrual rules and weigh

in favor of accrual rules that avoid parallel litigation

in state and federal courts, id. at 2158.

In McDonough, the Court considered a § 1983

claim alleging the taint of fabricated evidence and

held that the limitations period did not “begin to run

until the criminal proceedings against the defendant

(i.e., the § 1983 plaintiff) have terminated in his favor.” Id. at 2154-55. As the Court explained, that

conclusion followed in part from “practical considerations” sounding in principles of federalism and comity. Id. at 2155.

Specifically, the Court reasoned that deferring

accrual would, as Heck counsels, “avoid[] parallel

criminal and civil litigation over the same subject

matter and the related possibility of conflicting civil

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and criminal judgments,” id. at 2157 (citing Heck,

512 U.S. at 484-85). This preference for sequential

litigation is grounded in the need “to avoid … unnecessary friction between the federal and state court

systems” noted in Preiser, id. at 2157 (quoting

Preiser, 411 U.S. at 490), and “Congress[’s] … manifest[] … desire to permit state courts to try state cases free from interference by federal courts” highlighted in Younger, id. (quoting Younger, 401 U.S. at

43). Allowing earlier accrual would unacceptably

encourage “parallel civil litigation” that “would run

counter to core principles of federalism, comity, consistency, and judicial economy.” Id. at 2158.

Applying those principles here, McDonough

teaches that the accrual rule for Skinner claims

should also reflect the heightened concerns about

federalism and comity that dominate in the criminal

context. And McDonough teaches that those interests are best honored by accrual rules that avoid

needless co-pendency.4 The possibility of inconsistent state and federal judgments, the pointlessness of assessing the constitutionality of a provisional interpretation of a state statute, and the heightened federalism and comity interests associated with

state convictions all favor an accrual rule that avoids

needless co-pendency. Such a rule obviates the possibility that a federal court could evaluate the constitutionality of a state-court denial of DNA testing access before state courts have been afforded the op4 While both of the co-pending suits in the Skinner claim

context would be civil in nature, similar “concerns for finality

and consistency” are at issue. McDonough, 139 S. Ct. at 2157

(quoting Heck, 512 U.S. at 485).

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portunity to definitively construe the state statute at

issue.

B. The Fifth Circuit’s Rule Contravenes

These Principles.

1. The Fifth Circuit’s rule in this case encourages

co-pendency, undermining the federalism and comity

interests that this Court has repeatedly emphasized.

On the Fifth Circuit’s telling, petitioner’s § 1983

claim was untimely because the statute of limitations—two years, borrowed from Texas’s limitations

period for personal-injury claims—began to run

“when the [Texas] trial court denied [petitioner’s]

Chapter 64 motion in November 2014.” Pet. App. 9a.

In the court’s view, the statute of limitations ran

from “the moment” that petitioner “first became

aware that his right to access that evidence was allegedly being violated.” Id. at 9a-10a. That means

that defendants in petitioner’s position would be

obliged to race into federal court as soon as a trial

court denied their motion for DNA testing. But just

as McDonough rejected a rule that “would impose a

ticking limitations clock on criminal defendants as

soon as they become aware that fabricated evidence

has been used against them,” 139 S. Ct. at 2158, the

Court should reject a rule that would start the clock

as soon as defendants become aware that their “right

to access [DNA testing] evidence was allegedly being

violated,” Pet. App. 9a-10a.

A rule requiring claimants to file § 1983 suits asserting constitutional violations caused by provisional interpretations of state law upends the federalism principles discussed above. Instead of allowing state courts to interpret that state’s legislation,

21

as they “have the final authority” to do, Brown v.

Ohio, 432 U.S. 161, 167 (1977), the Fifth Circuit’s

rule would “unduly interfere with the legitimate activities of the States,” Younger, 401 U.S. at 44-45, by

forcing the issue into federal court prematurely. The

Fifth Circuit approach would invite federal courts to

disrupt the ordinary balance of federal-state judicial

power, achieved through sequenced litigation. And

it would require that federal courts make guesses as

to the meaning of state law in order to determine

whether a federal constitutional violation occurred—

even as the authoritative interpretation of that law

remains pending in state courts. By encouraging

parallel litigation, the Fifth Circuit’s rule would thus

increase conflict between federal and state courts

and erode the “proper respect for state functions,”

Younger, 401 U.S. at 43-44, that is “a bulwark of

[our] federal system” of government, Allen v. McCurry, 449 U.S. 90, 96 (1980). This Court’s precedents

counsel against accrual rules that would needlessly

create such tension. See Arizonans, 520 U.S. at 75

(explaining that “[i]n litigation generally, and in constitutional litigation most prominently,” courts must

engage in “close consideration” of the “core question”

of whether a “conflict [is] really necessary,” particularly “[w]hen anticipatory relief is sought in federal

court against a state statute” given the need for “respect for the place of the States in our federal system”); see also id. (“[N]ormally this Court ought not

to consider the Constitutionality of a state statute in

the absence of a controlling interpretation of its

meaning and effect by the state courts.” (quoting

Poe v. Ullman, 367 U.S. 497, 526 (1961) (Harlan, J.,

dissenting))).

22

2. Numerous practical problems flow from the

Fifth Circuit’s approach. Co-pendency forces criminal defendants and state officials into protracted

federal litigation that might have been unnecessary

if the state proceedings had run their course, including time-intensive tasks such as responding to subpoenas and sitting for depositions; imposes an administrative burden by requiring the state to litigate

two cases simultaneously; and consumes federal judicial resources to resolve a case that might otherwise have never materialized. And in light of the extended length of time it takes for a Chapter 64 proceeding to work its way through Texas courts to finality, there is a significant risk that state appeals

may become distorted by the specter of a first-intime § 1983 judgment.

To be sure, procedural devices such as stays and

ad hoc abstention could alleviate some of the ills of

the Fifth Circuit’s rule. Yet, as in McDonough, there

is “no reason to put the onus to safeguard comity on

district courts exercising case-by-case discretion—

particularly at the foreseeable expense of potentially

prejudicing litigants and cluttering dockets with

dormant, unripe cases.” 139 S. Ct. at 2158. A blanket accrual rule “respects the autonomy of state

courts and avoids these costs to litigants and federal

courts.” Id. at 2159. By adopting the rule that

§ 1983 claims challenging state post-conviction DNA

testing statutes accrue at the end of state-court litigation denying DNA testing, including any appeals,

the Court would advance federalism and comity values and “avoid[] the hazard of friction in federalstate relations,” Allegheny Cnty., 360 U.S. at 191.

23

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed and this case

remanded for further proceedings.

Respectfully submitted,

Meaghan VerGow

Counsel of Record

Jenya Godina

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

mvergow@omm.com

July 8, 2022