# Petition for Writ of Certiorari — Brown v. McKithen, 128 S. Ct. 1218 (2008) (No. 07-350)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Court, U.S.
SUPE E D
l 07-35 0SEP 12 2007

OFFICE OF THE CLERK
No. 07-

IN THE

Supreme Court of the United States

RICILIARD BROWN, District Attormey,
County of Queens, New York,

Petitioner,
v.
FRANK McKITHEN,

Respondent.

On PETITION FOR A Wait OF CERTIORARI TO THE
UniteD STATES Court OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL A. CARDOZO
Of Counsel CORPORATION COUNSEL OF JHE
City oF New York
100 Church Street
New York, New York 10007

(212) 788-1010

LEONARD J. KOFRNER*
EDWARD FX. HART
DRAKE A. COLLEY

* Counsel of Record

Counsel for Petitioner

210865 g

PRE

i

QUESTION PRESENTED

Does the holding of the United States Court of Appeals
for the Second Circuit, stating that the respondent may seek
post-conviction DNA testing pursuant to 42 U.S.C. § 1983,
stand in contradiction to this Court’s determination that
42 U.S.C. § 1983 may not be used to challenge the fact or
duration of a criminal conviction?

TABLE OF CONTENTS

Page

SR Sd i
Es il
ES gg 0 Oe OE iV
ene EE SEPA EEIOORILIES 3... et ee eee Vv
OE csc sees e sess cee ceeces |
EE eee vee l
Pewee EReOee PERUPVIGIOIN .. 0... eee eee 2
SUMMARY OF THE ARGUMENT ............ 2
peeeuemenres Gr brie CASE ............ Tees 3
8 Oe 3
B. Statement Of Relevant Facts. ............ 3
EE EE 3

ae) oeete COur Proceedings ............ 6

C. Federai Court Proceedings. .......... 8

D. Motion For Summary Judgment. ......... &

Contents

E. District Court’s Order Dismissing The
i ee re ee ea

F. The Decision Of The United States Court Uf
Appeals For The Second Circuit. .........

REASONS FOR GRANTING THE PETITION

em REG ree rao ets as

Page

iv

TABLE OF APPENDICES

Appendix A — Second Circuit Court Of Appeals
Decision Vacating And Remanding For Further
Proceedings The District Court Judgment, Dated
tt Ee oy db ew dl Oe eee we ws

Appendix B — District Court Order Adopting The
March 27, 2003 Report And Recommendation
And Dismissing The Case For Lack Of Subject

Matter Jurisdiction, Dated April 15, 2003 ......

Appendix C — District Court Report And

Recommendation, Dated March 27, 2003 ......

Appendix D — State Court Decision, Dated

oa ee | | ee

Appendix E — Order Of The United States Court
Of Appeals For The Second Circuit Denying

Petition For Rehearing Filed June 18, 2007 .....

Appendix F — Relevant Statute ................

Page

VY

TABLE OF CITED AUTHORITIES

Page

Cases
Edwards v. Balisok,

Pe alas UE CEPOTD oc ok kceeecees psissisees 16
Harvey v. Horan,

278 F.3d 370 (4th Cir. 2002) rehearing en banc

denied, 285 F.3d 298 (4" Cir. 2002) ........... 12-13
Heck v. Humphrey,

PSE Me ee hh.) Ee 3, 13, 15,
McKithen v. Brown,

481 F.3d 89 (2d Cir. 2007) ............ 1,10,11,12
Preiser v. Rodriguez,

Ree ee Bek eg) nee 11,14, 16
Washpon v. New York State District

Attorney, Kings County,

625 N.Y.S.2d 874 (Sup. Ct, Kings Co., 1995) ... 16

Wilkinson v. Dotson,
mi gen. Mie! Se. |.) are 11, 13, 14, 15, 17

Cited Authorities

Page

Statutory Provisions
United States Code

peo ee a eae ee l

little 42, Section § 1983 ............ccc cess passim
New York Criminal Procedure Law

Pe ee eee 6

oo 6k a: wi Je.
Rule

Pees ce. OU, SUID Soe soe ne ob w ee oe oe On hs

]

OPINION BELOW

The order of the United States Court of Appeals for the
Second Circuit from which petitioner Richard Brown,
District Attorney, County of Queens, New York (“petitioner’’)
seeks certiorari, was issued on March 13, 2007. The decision
is reported at McKithen v. Brown, 481 F.3d 89 (2d Cir. 2007)
and appears in the Appendix at p. la.

The Second Circuit’s March 13, 2007 decision followed
an appeal from an order of the United States District Court
for the Eastern District of New York (Gleeson, U.S.D.J.),
filed April 15, 2003, which adopted the Report and
Recommendation of Magistrate Judge Bloom, dated March
23, 2003, and dismissed the complaint of respondent Frank
MckKithen. The District Court order appears in the Appendix
at p. 40a.

JURISDICTION

The Second Circuit issued the order from which
petitioner seeks certiorari on March 13, 2007. A petition for
rehearing or rehearing en banc was denied on June 18, 2007.
The Order of the United States Court Of Appcals for the
Second Circuit denying the petition for rehearing appears in
the Appendix at p. 56a. This Court has jurisdiction to review
this order under 28 U.S.C. § 1254.

2

STATUTORY PROVISION

The statutory provision at issue in this matter, 42 U.S.C.
§ 1983, appears in the Appendix at p. 58a. 42 U.S.C. § 1983
states as follows:

Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress, except that in any
action brought against a judicial officer for an act
or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or
declaratory relief was unavailable. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District
of Columbia.

SUMMARY OF THE ARGUMENT

a

Petitioner takes the position that 42 U.S.C. § 1983
unambiguously precludes a claim for post-conviction DNA
testing where such a claim would necessarily invalidate the
fact or duration of the prisoner’s confinement.

STATEMENT OF THE CASE
A. Nature Of The Case.

Respondent filed an action in the United States District
Court for the Eastern District of New York under 42 U.S.C.
§ 1983, seeking to overturn a state court determination that
respondent was not entitled to post-conviction DNA testing
pursuant to New York Criminal Procedure Law 440.30. The
state court decision, dated November 8, 2001, appears in the
Appendix at p. 53a.

The District Court denied respondent’s claim on the
ground that the court lacked subject matter jurisdiction. On
appeal, the United States Court of Appeals for the Second
Circuit vacated the District Court’s judgment and remanded
the matter for further proceedings to consider whether there
exists a constitutional right on the basis of which respondent
might be able to obtain the relief he requests, and if there is
such a right, whether, once the District Court defines the
contours of that right, respondent’s claim is collaterally
estopped by the earlier state court decision.

B. Statement Of Relevant Facts.
1. Background

Respondent was convicted by a jury in New York State,
Queens County, of Attempted Murder in the Second Degree.
Intimidating a Victim or Witness in the First Degree. Criminal
Possession of a Weapon in the Fourth Degree, Assault in the
First Degree, and Resisting Arrest (A5).' His arrest occurred

' Numbers in parentheses refer to pages of the Appendix for
Plaintiff-Appellant filed in the United States Court of Appeals for
the Second Circuit. In addition, several relevant facts are gleaned
from the trial transcript of respondent’s 1993 criminal trial, numerous
sections of which respondent cites in his complaint.

4

approximately ten days after a stabbing in the vicinity of his
home, when he attempted to escape and fought with the
arresting officers, injuring one of them. On May 19, 1993,
he was sentenced to an indeterminate term of imprisonment
of twenty-three to forty-six years (A4-A5).

Respondent’s conviction resulted from events of the
evening of August 21, 1992, when he climbed through a
bedroom window and confronted his wife, Rose McKithen,
and her friend, Linda Jones (A5). That morning,
Mrs. McKithen had testified before a Grand Jury that
respondent had pointed a gun at her five days earlier, on
August 16, 1992 (A6).

After entering the living room on August 21, 1992,
respondent slapped and punched his wife (A5). Respondent
then forced Ms. Jones to leave by accompanying her down
the stairs from the second floor along with his wife, while
holding a knife he had taken from the kitchen cutlery drawer
behind his wife and holding her pants by the waistband (A5).
After ejecting Ms. Jones from the house, respondent then
forced his wife back upstairs, while turning to deadbolt the
downstairs lock. She ran up the stairs away from him and,
with respondent in pursuit, Mrs. McKithen managed to slam
and lock the door into the living room.

As Mrs. McKithen fled into the bedroom, respondent broke
the living room door off its hinges and pursued her into the
bedroom with the knife. Then, as Mrs. McKithen attempted to
escape by climbing out the bedroom window onto the awning
over the porch, respondent stabbed her in the lower back. /d.
The knife was recovered in the bedroom and was identified by
respondent’s wife in the hospital the night of the incident, as
the one respondent used to stab her. /d.

5

A. neighbor, who lived across the street, Mrs. Hodge,
had seen an unidentified man climb up above the porch and
go into the bedroom window several minutes before the
stabbing. She immediately called 911 to report the intruder.
After Ms. Jones was forced out of the house, she went to her
home across the strect and called 911, although there was no
record of that call on the log.

As Mrs. McKithen leapt out the window onto the awning,
bleeding from her lower back, one police car, responding to
the 911 call, arrived at the scene, and the officers saw
Mrs. McKithen about to jump to the ground. They told her
to stay there and helped her down to the ground. New York
City police officer Prendergast spoke to Mrs. McKithen, and
she recounted what had happened to her, i.e., that her husband
had stabbed her with a knife (All). An EMS ambulance
arrived and Mrs. McKithen was taken to Jamaica Hospital
where she was admitted and where she recovered from her
wound for two-and-one-half weeks.

Officer Prendergast eventually entered the house and
searched for the weapon. He found a kitchen knife,
approximately nine inches long with some spots of blood on
it, in the small bedroom from which Mrs. McKithen had
emerged by the window (A11). Officer Prendergast put his
initials on the bottom of the handle and wrapped it in a paper
towel and took it to Jamaica Hospital to allow Mrs. McKithen
to examine and identify it (AS). When Officer Prendergast
arrived at the hospital, he removed it from the bag and the
paper towcl and she identified it as the knife with which she
had been stabbed in the back by her husband (A5).

6

2. State Court Proceedings

The knife was introduced as an exhibit at trial, after it
was identified by Officer Prendergast as the knife he
recovered from the bedroom and identified by Rose
McKithen as the knife respondent used to stab her. A
prosecution witness, Dr. Fretwell, who performed the surgery
on Rose McKithen’s lower back and abdomen for the wound
she had received as a result of the stabbing, testified that the
approximate length of the knife’s blade (nine inches) was
consistent with the depth of her wound.

Respondent did not testify at his trial. No fingerprint or
DNA evidence was submitted or requested by either side.
He was convicted by a jury.

On November 13, 1995, the New York Supreme Court,
Appellate Division, Second Judicial Department, modified
respondent’s sentence so that the terms would run
concurrently (A8). On November 6, 1996, respondent filed
a motion to vacate his conviction on various grounds pursuant
to New York Criminal Procedure Law (NYCPL) section
440.10 (A8-A9). Respondent’s motion was denied by
New York State Supreme Court on February 10, 1997, as
were his applications for leave to appeal on March 12, 1997,
and April 16, 1997 (A9).

On August 21, 2001, respondent filed a motion with the
New York State Supreme Court, Queens County. to vacate
the judgment of conviction and to set aside his sentence, and
sought DNA testing of the knife pursuant to NYCPIL. section
440.30-(1-a) (AY). The section states, in relevant part, that
“in cases of convictions occurring before January 1. 1996

. the court shall grant the application for forensic DNA

7

testing ... upon its determination that if a DNA test had
been conducted ... and if the results had been admitted in
the trial ... there exists a reasonable probability that the

verdict would have been more favorable to the defendant.”

Respondent requested that the court order a DNA test
on the knife that was recovered (A9). Respondent’s defense,
as well as his argument in support of his 440.30 motion, was
that his wife fabricated the incident, yet he never claimed
misidentification of himself or of the weapon or denied that
she suffered a stab wound.

On November 8, 2001, the court denied the motion.
In denying the 440.30 motion, the New York Supreme Court,
Queens County (Latella, J.S.C.), held that there was
“no reasonable probability that the results of such testing
would have resulted in a verdict more favorable to defendant”
(A2, 55a). The court reasoned that, because there was no
dispute that the victim was stabbed, the presence of the
victim’s blood on the knife would have “little or no probative
value in determining whether the wound was self-inflicted
or inflicted by [respondent]” (A3, 55a). Moreover, the court
explained that “the evidence upon which [respondent] was
convicted of attempting to murder his wife was
overwhelming — consisting of the testimony of two eye-
witnesses and his inculpatory statement to the police at the
time of his arrest that *{He] should have killed the bitch.””
(A2, 54a).

On February 13, 2002, the New York Appellate Division,
Second Judicial Department, denied respondent's motion for
leave to appeal (A10: Al-A3).

8

C. Federal Court Proceedings.

On February 27, 2002, respondent, proceeding pro se,
filed an action in the United States District Court for the
Eastern District of New York pursuant to 42 U.S.C. § 1983.
Respondent claims petitioner violated his constitutional right
to post-conviction DNA testi g. Respondent does not seek
money damages, and docs not ask for his conviction to be
overturned.

Respondent contends that “if the weapon (the knife) is
tested, it will established (sic) indeed that it is not the weapon
used in the alleged crime herein” (A13). Specifically,
respondent claims that the failure to conduct a DNA test has
deprived him of his federal constitutional right to due process,
and that his inability to present this evidence of innocence
deprived him of his rights secured by the Sixth and Eighth
Amendments (A14-A15).

D. Motion For Summary Judgment.

By notice of motion dated August 2, 2002, petitioner
moved pursuant to Fed. R. Civ. Pro. 12(b)(1) to dismiss the
complaint for, infer alia, lack of subject matter jurisdiction
and tor failure to state a cause of action (A34; A40).

E. District Court’s Order Dismissing The Complaint.

On March 27, 2003, Magistrate Judge Bloom issued a
Report and Recommendation (one paper). recommending that
the complaint be dismissed for lack of subject matter
jurisdiction (42a). In that report, Magistrate Judge Bloom
found that

“Whether a prisoncr may bring a post-conviction
action pursuant to 42 U.S.C. § 1983 to compel

9

DNA testing of evidence has led courts to different
conclusions in recent years ... Moreover, there
is disagreement as to whether there exists any
substantive or procedural constitutional right to
post-conviction DNA testing . . . This Court need
not weigh in on this debate, however, because
under the facts presented herein, the Court lacks
subject matter jurisdiction over plaintiff's
complaint pursuant to the Rooker-Feldman
doctrine.

[p]etitioner’s constitutional claim is barred by the
Rooker-Feldman doctrine because it is
“inextricably intertwined” with the state court
determination .. . First, plaintiff could have raised
his constitutional claim in his Article 440 motion
... Second, because the underlying issues raised
by plaintiff's state court motion are identical to
the issues plaintiff is raising in the instant § 1983
action, plaintiff is precluded from re-litigating
these issues under New York’s doctrine of
collateral estoppel.”

On April 15, 2003, Judge Gleeson issued an order (one
paper) adopting the Report and Recommendation and
dismissing the complaint for lack of subject matter
jurisdiction.

10

F. The Decision Of The United States Court Of Appeals
For The Second Circuit.

In an order dated March 13, 2007, the Court of Appeals
for the Second Circuit reversed the District Court’s order
(la). McKithen v. Brown, 481 F.3d 89 (2™ Cir. 2007). The
Second Circuit’s order stated, in relevant part, that:

[w]e must now determine whether a claim
asserting a post-conviction federal constitutional
right of access to, and DNA testing of, evidence
is cognizable under § 1983, or whether, instead,
it lies so well “within the core of habeas corpus”
that it may only be brought in a habeas petition.

The question has been an open one in this circuit.
We today join the Seventh, Ninth, and Eleventh
Circuits, and district courts in the First and Third
Circuits, agreeing with them that a claim seeking
post-conviction access to evidence for DNA
testing may properly be brought as a § 1983 suit.
In doing so we reject the position taken by three
other circuits (citations omitted).

REASONS FOR GRANTING THE PETITION

This petition raises a compelling question of vital
importance to federal and state courts and incarcerated
individuals nationwide, regarding whether a claim asserting
a post-conviction federal constitutional right of access to,
and DNA testing of, evidence is cognizable under § 1983.

The Court of Appeals tor the Second Circuit has
concluded that a claim asserting a post-conviction federal

1]

constitutional right of access to, and DNA testing of, evidence
is cognizable under § 1983. That determination should be
reviewed by this Court for the following reasons: (1) the
Second Circuit’s decision conflicts with the decision of this
Court in Wilkinson v. Dotson, 544 U.S. 74 (2005); and (2)
the Second Circuit has entered a decision in conflict with
relevant decisions of the Fourth Circuit, the Fifth Circuit,
and the Sixth Circuit, which addressed the same important
issue and interpreted the same statute.

The Court of Appeals for the Second Circuit announced
in McKithen v. Brown, 481 F.3d 89 (2d Cir. 2007), that “[wle
today join the Seventh, Ninth, and Eleventh Circuits, and
district courts in the First and Third Circuits, agreeing with
them that a claim seeking post-conviction access to evidence
for DNA testing may properly be brought as a § 1983 suit.
In doing so we reject the position taken by three other
circuits.” 481 F.3d at 99.

In Heck v. Humphrey, 512 U.S. 477, 481 (1997), this
Court considered the circumstances under which an action
for damages, rather than release under § 1983 will lic, and
which circumstances must be pursued by a habeas petition.
The Court held in Heck that the dispositive question is
whether a judgment in favor of the plaintiff “would
necessarily imply the invalidity of his conviction or
sentence.” Heck, 512 U.S. at 487.

In Preiser v. Rodriguez, 411 U.S. 475. 489 (1973), the
Court crafted an exception to the textual terms of § 1983,
holding that habeas corpus is the exclusive remedy fora state

12
prisoner who challenges the fact or duration of his or her
confinement and seeks immediate or speedier release.

In the instant matter, the Second Circuit considered
whether a claim seeking post-conviction access to and testing
of DNA is cognizable under § 1983, and concluded that

“the governing standard for application of the
Preiser-Heck exception, then, is whether a
prisoner’s victory in a § 1983 suit would
necessarily demonstrate the invalidity of his
conviction or sentence; that a prisoner’s success
might merely be helpful or potentially
demonstrative of illegal confinement is, under this
standard, irrelevant . .. Were McKithen to prevail
on the merits, he would obtain only an injunction
requiring that the knife be made available for DNA
testing. Such testing, of course, ‘necessarily
implies nothing at all about the plaintiff's
conviction’ That is because ‘[t}he results of any
DNA tests that are eventually performed may be
inconclusive, they may be insufficiently
exculpatory, or they may even be inculpatory
(citations omitted) (emphasis in original).’”

481 F.3d at 102-103.

In contrast, the Fourth Circuit. whose reasoning was
adopted by the Fifth Circuit and Sixth Circuit, applied this
Court's rationale, holding that the injunctive relief sought
by the criminal defendant. who proclaimed his innocence
and argued that DNA testing would lead to his exoneration.
“necessarily implies the invalidity of his conviction.” Harvey
v. Horan, 278 F.3d 370, 375 (4% Cir. 2002), rehearing en

13

banc denied, 285 F.3d 298 (4" Cir. 2002). The Fourth Circuit
reasoned that when a prisoner requests access to DNA
evidence “for one reason and one reason only - as the first
step in undermining his conviction,” his § 1983 action
constitutes, in effect, a successive habeas petition and thus

is an impermissible attempt to circumvent Heck. 278 F.3d.
at 375.

The Fourth Circuit found that the convicted defendant
sought to use § 1983 to invalidate a final state conviction
without having challenged the lawfulness of that conviction,
and held that the defendant failed to state a claim under the
statute. In reaching its determination that an action under
§ 1983 could not lie, the Fourth Circuit noted that § 1983
exists for the limited purpose of redressing violations of the
Constitution and federal statutes, and not for the purpose of
attacking the finality of criminal judgments. The Fourth
Circuit also noted that “[t]he whole point of Heck was to
protect the finality of state judgments of conviction from
challenge via unexhausted § 1983 actions.” 278 F.3d 375,
at fn. 1.

The Fourth Circuit additionally reasoned that this Court’s
holding that civil tort actions are inappropriate for
challenging the validity of outstanding criminal judgments
was based upon the view that allowing such a usage “would
undercut the long-standing concern not to undermine the
finality of criminal convictions through civil suits.” 278 F.3d
at 375.

Certiorari should be granted on the question presented
to this Court for the further reason that the Court of Appeals
for the Second Circuit departs from the analysis of this Court
in Wilkinson v. Dotson, 544 U.S. 74 (2005). In Dotson, the

14

Court reiterated that it has held “a prisoner in state custody
cannot use a § 1983 action to challenge ‘the fact or duration
of his confinement.’ He must seek federal habeas corpus relief
(or appropriate state relief) instead (citations omitted).”
544 U.S. at 78.

It is respectfully submitted that the Second Circuit’s
narrow reading of Dotson would result in an unintended and
impermissible expansion of § 1983. The decisions of the
Second, Seventh, Ninth and Eleventh Circuits sever the
§ 1983 petition from its ultimate objective, and it is
respectfully submitted that those decisions are not faithful
to the spirit of the decisions of this Court.

The decisions in Preiser and Heck were intended to direct
claims attacking the validity of a prisoner’s conviction or
sentence toward the rigorous procedure of habeas corpus and
away from § 1983 actions. In Dotson, this Court, citing to,
inter alia, Preiser and Heck, noted that:

This Court has held that a prisoner in state custody
cannot use a § 1983 action to challenge “the fact
or duration of his confinement.” He must seek
federal habeas corpus relief (or appropriate state
relief) instead (citations omitted).

544 U.S. at 78.

The Court further explained that:

“Throughout the legal journey from Preiser to
Balisok the Court has focused on the need to
ensure that state prisoners use only habeas corpus
(or similar state) remedies when they seck to

15

invalidate the duration of their confinement —
either directly through an injunction compelling
speedier release or indirectly through a judicial
determination that necessarily implies the
unlawfulness of the State’s custody ... These
cases, taken together, indicate that a state
prisoner’s § 1983 action is barred (absent prior
invalidation) — no matter the relief sought
(damages or equitable rclicf), no matter the target
of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings) —
if success in that action would necessarily
demonstrate the invalidity of confinement or its
duration (emphasis in original).”

544 U.S. at 81-82. Thus, Dotson clarifies that Heck provides
the relevant test to a determination of the applicability of
§ 1983 under circumstances involving post-conviction access
to DNA evidence.

In the instant action, respondent does not style the relief
he seeks as a request for his immediate or speedier release
and, instead, couches his claim in constitutional terms.’

2 Respondent filed a motion with the New York Supreme Court,
Queens County, pursuant to New York Criminal Procedure Law
(“NYCPL”™) § 440.30 (1l-a), to vacate the judgment of conviction
and to set aside his sentence. NYCPL § 440.30 (1-a) states. in
pertinent part, that

“In cases of convictions occurring before January |,

1996... the court shali grant the application for forensic

DNA testing ... upon its determination that if a DNA

test had been conducted ... and if the results had been
(Cont'd)

16

Nevertheless, it may not be denied that, at bottom, respondent
seeks further DNA testing for the sole purpose of attempting
to demonstrate his innocence of the crime for which he was
convicted. Indeed, respondent admits as much in his
complaint (A14-A15). Here, respondent impermissibly
sought to use 42 U.S.C. § 1983 as an initial step to overturn
his conviction, and thereby obtain his immediate or speedier
release from prison. This lies at the “core of habeas corpus.”
Preiser, 411 U.S. at 489.

In Preiser and its progeny, this Court has consistently
held that habeas corpus is the exclusive remedy for prisoners
challenging the fact or duration of their confinement, and
held that an action under 42 U.S.C. § 1983 was not generally
available for those purposes. The cases decided by this Court
after Preiser’ appear to demonstrate that the facts and

(Cont'd)
admitted in the trial ... there exists a reasonable
probability that the verdict would have been more
favorable to the defendant.”

In 1994, the New York State Legislature enacted CPL § 440.30 (1-a)
“to provide for [DNA] testing in cases where the test had not been
available before conviction.” Washpon v. New York State District
Attorney, Kings County, 625 N.Y.S.2d 874 (Sup. Ct, Kings Co., 1995).

* In Edwards v. Balisok, 520 U.S. 641 (1997), the Court
considered whether a claim for damages and declaratory relief
brought by a state prisoner challenging the validity of the procedures
used to deprive him of good-time credits may be brought under
§ 1983. The Court noted that the due process violations alleged were
similar to those alleged by the prisoner in Heck except that, unlike
in Heck, the prisoner limited his request to damages resulting from
a denial of due process.

(Cont'd)

17

circumstances of the prisoner’s request or the nature of the
alleged constitutional injury are unlikely to have a bearing
on whether 42 U.S.C. § 1983 may be employed to seek post-
conviction remedies. Instead, the applicability of § 1983
should properly turn on whether the prisoner’s success in
the § 1983 action would necessarily demonstrate the
invalidity of his or her confinement or the duration of that
confinement either directly or indirectly.

In sum, we respectfully request that this Court grant
certiorari to address the question of whether 42 U.S.C. § 1983
precludes a claim for post-conviction DNA testing where
such a claim would necessarily invalidate the fact or duration
of the prisoner’s confinement. The Second Circuit's view of
the application of 42 U.S.C. § 1983 is in clear conflict with
this Court’s precedent, and with the decisions of other
Circuits.

(Cont'd)

Wilkinson v. Dotson, 544 U.S. 74 (2005), involved a claim,
brought under § 1983, that Ohio's state parole procedures violate
the Federal Constitution. The Court held that the declaratory and
injunctive relief sought by the state prisoners may be obtained under
§ 1983, because “the connection between the constitutionality of
the prisoners’ parole proceedings and release from confinement is
too tenuous here to achieve Ohio's legal door-closing objective.”
544 U.S. at 78.

18

CONCLUSION

For the reasons set forth, the City respectfully asks this
Court to grant its petition for a writ of certiorari.

Respectfully submitted,

Of Counsel: Micnart. A. CARDOZO

. CORPORATION COUNSEL OF TH
LEONARD J. KoeRNER*

Ty Ciry or New York
EDWARD F.X. Hart ant , Soci
DRAKE A. COLLEY urch Stree

New York, New York 10007
* Counsel of Record (212) 788-1010

Counsel for Petitioner

APPENDIX

la

APPENDIX A — SECOND CIRCUIT COURT OF

APPEALS DECISION VACATING AND REMANDING

FOR FURTHER PROCEEDINGS THE DISTRICT
COURT JUDGMENT, DATED MARCH 13, 2007

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2006
Argued: October 3, 2006 Decided: March 13, 2007
Docket No. 03-0168-pr
FRANK McKITHEN,

Plaintiff-A ppellant,
me

Richard BROWN, District Attorney,
County of Queens, New York,

Defendant-Appellee.

Before: CALABRESI, KATZMANN and
B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

Eighty-four years ago, Judge Learned Hand observed that
“{oJur procedure has been always haunted by the ghost of

* This caption varies trom the official caption

which 1s
incorrect in certain respects

The Clerk of the Court is directed to
amend the official caption accordingly

2a

Appendix A

the innocent man convicted,” but posited, optimistically, that
“fijt is an unreal dream.” United States v. Garsson, 291
F. 646, 649 (S.D.N.Y.1923). Today, with the advance of
forensic DNA technology,' our desire to join Learned Hand’s
optimism has given way to the reality of wrongful
convictions’—a reality which challenges us to reaffirm our

commitment to the principle that the innocent should be
freed.’

1. See generally Harvey v. Horan, 285 F.3d 298, 305 & n. |
(4th Cir.2002) (“Harvey //") (Luttig, J.. respecting the denial of
rehearing en banc) (exploring how “the new forensic DNA
technology ... is qualitatively different from all that proceeded it”
in that it “increas[es] exponentially the reliability of forensic
identification over earlier techniques,” and noting that there is “now
widespread agreement within the scientific community that this
technology ... can distinguish between any two individuals on the
planet, other than identical twins, the statistical probabilities of [Short
Tandem Repeat] DNA matches ranging in the hundreds of billions,
if not trillions’).

2. As of March 12, 2007, by one count, as many as 197 factually
innocent, incarcerated individuals have been exonerated by post-
conviction DNA testing. See The Innocence Project. http:// www.
innocence project. com (last visited Mar. 12, 2007). And “DNA
exonerations have disclosed deliberate (and in some cases criminal)
police and prosecutorial misconduct in obtaining the tainted
convictions.” Seth F. Kreimer & David Rudovsky, Double Helix,
Double Bind: Factual Innocence and Postconviction DNA Testing,
151 U. Pa. L.Rev. $47, 563 (2002).

3. See, e.g., In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068,

25 L.Fd.2d 368 (1970) (Harlan, J.. concurring) (“[I]t is far worse to
convict an innocent man than to let a guilty man go free.~); William
(Cont'd)

3a

Appendix A

The case sub judice arises at this intersection of scientific
advance and enduring constitutional values. In it, we are
asked to determine whether there exists a right, grounded in
the Due Process Clause of the Fifth and Fourteenth
Amendments to the federal Constitution, to post-conviction
DNA testing. And, in addition to implicating fundamental
questions of constitutional principle, the matter has
extraordinary practical significance not only to those who
claim they were falsely accused and wrongfully convicted,
but also to state and local governments on whom the burdens
of any such right to be tested would principally fall.

Not surprisingly, the issue of post-conviction DNA
testing has in recent years captured the attention of the
Congress and the legislatures of nearly every state in the
nation.* See, e.g., Innocence Protection Act of 2004,
18 U.S.C. § 3600(a) (providing, in certain defined
circumstances, for post-conviction DNA testing of prisoners
convicted under federal and some state laws); National
Conference of State Legislatures, Post-Conviction DNA

(Cont'd) e

Blackstone, 4+ Commentaries (“[B]etter that ten guilty persons escape,
than that one innocent suffer.”); see generally Alexander Volokh,
n Guilty Men, 146 U. Pa. L.Rev. 173 (1997). Notably, DNA testing-
with its capacity to “exonerat[e] defendants (or those wrongly
convicted) to a practical certainty,” Harvey [/, 285 F.3d at 305 n. 1
(Luttig, J., respecting the denial of rehearing en banc), and to identify
the guilty-promises to render, in some cases, both sides of
Blackstone’s maxim obsolete.

4. It has also received significant attention from the President.
See President’s DNA Initiative, at http:/’www.dna.gov/uses
postconviction’ (last visited on Feb. 16, 2007).

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Appendix A

Motions, at http:// www. ncsl. org/ programs/ cj/ postconv
iction. htm (Jan.2006) (collecting state legislation providing
for post-conviction DNA testing). As a result, our court must
approach the question with utmost care and discreetness, not
only because of the constitutional and practical significance
of the issue, but also because of “[t]he imperative of
according respect to the Congress,” Ashcroft v. American
Civil Liberties Union, 542 U.S. 656, 660, 124 S.Ct. 2783,
159 L.Ed.2d 690 (2004), as well as state legislatures, in their
treatment of this multifaceted question. Yet at the same time,
{ijt is emphatically the province and duty of the judicial
department to say what the law fof the Constitution] is.”
Tinelli v. Redl, 199 F.3d 603, 607 (2d Cir.1999) (per curiam)
(quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2
L.Ed. 60 (1803) (internal quotation marks omitted and first
alteration in original)).

Defendant-Appcllant Richard Brown (“Brown”)
contends that we should not, in this case, address the question
at all. First, Brown argues that the district court below,
pursuant to the Rooker-Feldman doctrine, properly dismissed
the suit for lack of subject matter jurisdiction. See Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125
S.Ct. 1517. 161 L.Ed.2d 454 (2005) (examining the scope
of the Rooker-Feldman doctrine) (citing Rooker v. Fidelity
Trust Co., 263 U.S. 413,44 S.Ct. 149, 68 L.Ed. 362 (1923),
and District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S.Ct. 1303, 75 L..Fd.2d 206 (1983)). Second,
and alternatively. Brown asserts that, even if the district court
erred in applying the Rooker-Feldman doctrine, Plaintiff-
Appellant Frank McKithen (“MckKithen”) failed to state a
claim upon which relief may be granted because he could

Sa
Appendix A

only seek post-conviction access to, or testing of, evidence
by way of a habeas corpus proceeding. See Heck v. Humphrey,
512 U.S. 477, 481-82, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994) (holding that a prisoner’s claim is not cognizable
under 42 U.S.C. § 1983-and thus can only be brought as a
habeas petition-where “establishing the basis for the. . . claim
necessarily demonstrates the invalidity of the [prisoner's]
conviction” (emphasis added)). And third, Brown argues that,
even if the first two arguments are incorrect-and that,
therefore, McKithen did state a claim over which the district
court had subject matter jurisdiction, and upon the merits of
which relief could be granted-McKithen nevertheless was
not entitled to “relitigate” the question of post-conviction
DNA testing, because the district court was bound to
recognize the issue- and claim-preclusive effects of an earlier
state-court judgment rendered against McKithen.

Brown’s first and second arguments are unconvincing.
And this leads us to remand the case to the district court for
its consideration, in the first instance, of the merits of
McKithen’s claim. In particular, the district court on remand
should address in the first instance (1) whether there exists a
post-conviction constitutional right of access to evidence for
purposes of potentially exonerative DNA testing, and (2)
whether that right was infringed in McKithen’s case.

With respect to Brown’s third argument, we hold (1) that
Brown waived his claim preclusion defense, and that, on the
facts of this case, it would be inappropriate for us to raise
the defense nostra sponte, and (2) that, on remand, the district
court should consider-if it concludes that a constitutional
right exists-whether the contours of that right are sufficiently

6a

Appendix A

similar to the state standards previously adjudicated so that
issue preclusion would apply.

BACKGROUND

McKithen was convicted in 1993 of attempted murder
and related charges, in New York Supreme Court, Queens
County (“Queens County Court”). At trial, the prosecution
argued that, on the night of August 21, 1992, McKithen
unexpectedly appeared at the apartment he had once shared
with his estranged wife; dashed to the kitchen and grabbed a
knife; stabbed his wife in the lower back as she was escaping
out of a bedroom window; and then immediately fled the
apartment. A distinctive knife, which McKithen’s wife
positively identified as the weapon used against her, was
admitted into evidence at trial but was never subjected to
DNA or fingerprint testing.

The jury found McKithen guilty of attempted murder in
the second degree and related charges. On appeal, the
Appellate Division affirmed his conviction. The court
modified McKithen’s sentence so that the terms imposed on
the various charges would run concurrently. People v.
McKithen, 221 A.D.2d 476, 634 N.Y.S.2d 128 (1995). The
New York Court of Appeals denied leave to appeal. People
v. McKithen, 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d
427 (1996).

In 2001, seven years after he had been convicted.
MckKithen moved in Queens County Court, pursuant to
N.Y.Crim. Proc. Law § 440.30(1-a)(a), to compel, inter alia,

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Appendix A

DNA testing of the knife admitted into evidence at trial.
Subsection l-a(a) of § 440.30 provides:

Where the defendant’s motion requests the
performance of a forensic DNA test on specified
evidence, and upon the court’s determination that
any evidence containing [DNA] was secured in
connection with the trial resulting in the judgment,
the court shall grant the application for forensic
DNA testing of such evidence upon its
determination that if a DNA test had been
conducted on such evidence, and if the results had
been admitted in the trial resulting in the
judgment, there exists a reasonable probability
that the verdict would have been more favorable
to the defendant.

See N.Y.Crim. Proc. Law § 440.30(1-a)(a) (emphases added).
In his motion, McKithen asserted that DNA testing “might
have exonerated [him] of the crime for which he was
convicted.” The Queens County Court concluded that “there
is no reasonable probability that the results of such testing
would have resulted in a verdict more favorable to
[McKithen],” and denied McKithen’s motion. Decision and
Order of the Honorable John Latella, New York State
Supreme Court, dated Nov. 8, 2001.

In March 2002, McKithen, incarcerated and proceeding
pro se, brought this § 1983 suit in the United States District
Court for the Eastern District of New York (Gleeson, J). He
claimed that Brown. Queens County District Attorney,
violated his constitutional right of post-conviction access to

$a

Appendix A

evidence for DNA testing, and sought injunctive relief
“[djirecting. .. DNA testing of the knife.” McKithen asserted
that DNA testing would “conclusively determine whether he
is guilty of [a]ttempted [m]Jurder ..., and related charges
for which he was convicted in state court... .”

Brown moved, pursuant to Federal Rules of Civil
Procedure 12(b){1) and 12(b)(6), to dismiss McKithen’s
claim on four grounds: (1) the district court lacked subject
matter jurisdiction under the Rooker-Feldman doctrine; (2)
McKithen failed to state a claim upon which relief may be
granted because a claim seeking post-conviction access to
evidence for DNA testing is not cognizable under § 1983;
(3) the claim was barred by issue preclusion; and (4)
McKithen failed to state a claim under Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
otherwise failed to make out a “constitutional claim for a
deprivation of due process.” Neither in that motion nor in
any other submission to the district court did Brown raise
additional arguments for dismissal of McKithen’s claim nor
otherwise indicate a defense based on claim preclusion.

The district court referred the motion to United States
Magistrate Judge Lois Bloom. In her Report and
Recommendation, dated March 27, 2003, the magistrate
judge observed that the circuits have split over whether
actions seeking post-conviction access to DNA evidence are
barred by Heck v. Humphrey, so that they may be brought
only in a habeas corpus proceeding. The magistrate judge
also noted that courts have disagreed as to “whether there
exists any substantive or procedural right to post-conviction
DNA testing.” Although our circuit had not taken a position

9a
Appendix A

on either issue, the magistrate judge concluded that the
district court “need not weigh in on this debate,” because
McKithen’s suit could be dismissed, pursuant to the Rovker-
Feldman doctrine, for lack of subject matter jurisdiction. The
magistrate judge acknowledged that McKithen’s “claim to
DNA testing [wa]s being raised as a constitutional claim for
the first time in the instant § 1983 action,” and that his §
440.30 motion involved a statutory right to testing under state
law. Nevertheless, the magistrate judge concluded that
McKithen’s suit was barred by the Rooker-Feldman doctrine
because the § 1983 claim is identical to the “underlying
issues” raised by the state-court motion, and therefore
“succeeds only to the extent that the state court wrongly
decided the issues before it.”

The magistrate judge emphasized the “limited nature”
of the report and recommendation:

There has been no attempt to define the parameters
of any constitutional right to post-conviction DNA
testing as on these facts, the Court need not decide
whether such a right exists. [he Court finds only
that the purported constitutional right as claimed
by plaintiff would require this Court to revisit the
same issues previously decided by the state court
and therefore, this Court lacks jurisdiction
pursuant to the Rovker-Feldman doctrine.

By order dated April 15, 2003, the district court adopted
the report and recommendation of the magistrate judge in its

10a
Appendix A

entirety and dismissed McKithen’s § 1983 suit for lack of
subject matter jurisdiction.*° This timely appeal followed.

DISCUSSION

On appeal, McKithen argues (1) that his § 1983 suit is
not prohibited by the Rooker-Feldman doctrine; (2) that his
claim is cognizable under § 1983; (3) that litigation of his
claim is not precluded by res judicata or collateral estoppel:
and (4) that, on the merits, he has a post-conviction
constitutional right of access to evidence in order to conduct
potentially exonerative DNA testing. We consider each of
these arguments in turn.

Relying on our court’s decision in Moccio v. New York
State Office of Court Administration, 95 F.3d 195, 199-200
(2d Cir.1996), in a which a panel of our court suggested that
the Rooker-Feldman doctrine applies broadly and is
effectively co-extensive with the ordinary application of
preclusion law, the district court held that McKithen’s § 1983
suit should be dismissed for lack of subject matter
jurisdiction. We review this ruling de novo. See Hoblock v.
Albany County Bd. of Elections, 422 F.3d 77, 83 (2d
Cir.2005). And, “[{i]n resolving a motion to dismiss for lack

5. The district court also noted that it had, on March 6, 2003,

dismissed as time-barred under the Antiterrorism and Effective Death
Penalty Act of 1996 (~AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214
(1996), a habeas petition brought by McKithen which presented
similar allegations. See McKithen v. Walsh, 03-CV-334 (E.D.N-Y.
Mar. 6. 2003).

lla

Appendix A

of subject matter jurisdiction under Rule 12(b)(1), [we] . . .
may refer to evidence outside the pleadings.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir.2000). Moreover,
given that McKithen was proceeding pro se in the district
court, his submissions to that court “must be construed
liberally.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir.2006) (per curiam). We conclude that in view of
the Supreme Court’s recent decision in Exxon Mobil, 544
U.S. at 284, 125 S.Ct. 1517 (rejecting Moccio’s approach),
and our interpretation of that decision in Hoblock, 422 F.3d
at 77, the district court’s Rule 12(b)(1) dismissal cannot be
sustained.

A

“The Rooker-Feldman doctrine merely recognizes that
28 U.S.C. § 1331 [, which provides that federal “district
courts shall have original jurtsdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States.”] is a grant of original jurisdiction, and does not
authorize district courts to exercise appellate jurisdiction over
state-court judgments, which Congress has reserved to [the
Supreme] Court, see [28 U.S.C.] § 1257(a)..° Verizon Md.,

6. 28 U.S.C. § 1257(a) provides:

Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground
(Cont'd)

l2a
Appendix A

Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, 644 n. 3,
122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (holding that the
Rooker-Feldman doctrine does not apply to a suit seeking
review of state agency action). That the Rooker-Feldman
doctrine is meant to occupy “narrow ground,” see Exxon
Mobil, 544 U.S. at 284, 125 S.Ct. 1517, is evidenced by the
fact that the Supreme Court has only applied the doctrine
twice-in the two cases after which the doctrine was named.
See Rooker, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362
(dismissing for lack of subject matter jurisdiction a suit
brought by plaintiffs in federal district court which sought
to have a prior state court judgment, adverse to the plaintiffs,
declared “null and void”); Fe/dman, 460 U.S. 462, 103 S.Ct.
1303, 75 L.Ed.2d 206 (dismissing in part, for lack of subject
matter jurisdiction, a law suit brought against a District of
Columbia court that had denied plaintiffs’ petition to sit for
the bar examination).

Nevertheless, the Rooker-Feldman doctrine “has
somctimes been construed [by lower courts] to extend far
beyond the contours of the Rooker and Feldman cases,
overriding Congress’ conferral of federal-court jurisdiction
concurrent with jurisdiction exercised by state courts, and
superseding the ordinary application of preclusion law
pursuant to 28 U.S.C. § 1738." Exxon Mobil, 544 U.S. at
(Cont'd)

of its being repugnant to the Constitution, treaties, or
laws of the United States, or where any title, right,
privilege, or immunity is specially set up or claimed
under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the
United States.

l3a

Appendix A

283, 125 S.Ct. 1517. As an example of such an incorrect
expansive reading, the High Court cited our decision in
Moccio, 95 F.3d at 199-200. /d. And in rejecting Moccio’s
approach, the Court declared that “[t]he Rooker-Feldman
doctrine .. . is confined to cases of the kind from which the
doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced
and inviting district court review and rejection of those
judgments.” /d. at 283-84.

In Hoblock, our court observed that “|t}he Supreme Court
has now told us that Moccio ... was incorrect .... Exxon
Mobil teaches that Rooker-Feldman and preclusion are
entirely separate doctrines.” 422 F.3d at 85. The Hoblock
panel then undertook the task of clarifying the limited scope
of the Rooker-Feldman doctrine after Exxon Mobil:

From [the opinion in Exxon Mobil], we can see
that there are four requirements for the application
of Rooker-Feldman. First, the federal-court
plaintiff must have lost in state court. Second, the
plaintiff must “complain[ |] of injuries caused by
[a] state-court judgment[.]” Third, the plaintiff
must “invit[e] district court review and rejection
of [that] judgment [ ].~ Fourth, the state-court
judgment must have been “rendered before the
district court proceedings commenced”-i.e.,
Rooker-Feldman has no application to federal

court suits proceeding in parallel with ongoing
state-court litigation. The first and fourth of these

l4a
Appendix A

requirements may be loosely termed procedural;
the second and third may be termed substantive.

Hoblock, 422 F.3d at 85 (internal citation omitted and
alteration in original).

When the “procedural” requirements are met-as they are
in McKithen’s case because he lost in state court (the first
requirement) and the state court’s judgment was rendered
before he brought his § 1983 suit (the fourth requirement)-
the application of the Rooker-Feldman doctrine turns on
whether the second and third “substantive” requirements are
met. And those substantive requirements, the Hoblock panel
explained, can be reduced to the following statement: “federal
plaintiffs are not subject to the Rooker-Feldman bar unless
they complain of an injury caused by a state judgment.”
Id. at 87 (emphasis in original).’

This, however, raises a further question: what constitutes
“an injury caused by a state judgment”? To clarify this phrase-

7. In reaching this conclusion, the panel reasoned that the
phrases “inextricably intertwined” and “independent claim’-both of
which the Supreme Court has employed, see Feldman, 460 U.S. at
483 n. 16, 103 S.Ct. 1303: Exxon Mobil, 544 U.S. at 293, 125 S.Ct.
1517-only “state [ ] a conclusion,” Hoblock, 422 F.3d at 86: they are
simply “descriptive label{s] attached to claims that [either do or do
not] meet the requirements outlined in Exxon Mobil,” id. at 487:
and therefore they do not have substantive content independent of
the four Exxon Mobil requirements. In other words, //ohlock instructs
that if the requirements outlined in Exxon Mobil are met, then the
claim asserted in federal court is “inextricably intertwined” with the
claim raised in state court; if, however, the Exxon Mobil requirements
are not met, the plaintiff must be said to have raised an “independent
claim” in federal court

15a
Appendix A

the full meaning of which is far from obvious-the Hoblock
pancl stated that “(t]he following formula guides our inquiry:
a federal suit complains of injury from a state-court judgment,
even if it appears to complain only of a third party’s actions,
when the third party’s actions are produced by a state-court
judgment and not simply ratified, acquiesced in, or left
unpunished by it.” /d. at 88. Yet the meaning and scope of
the phrase “produced by a state-court judgment” is not—at
least in all its applications-obvious either.

B

We need not fully disentangle these complexities to
decide the case before us. What kxxon Mobil and Hoblock
do make clear is that the applicability of the Rooker-Feldman
doctrine turns not on the similarity between a party’s state-
court and federal-court claims (which is, generally speaking,
the focus of ordinary preclusion law), but rather on the causal
relationship between the state-court judgment and the injury
of which the party complains in federal court. See Hoblock,
422 F.3d at 87 (“[A] plaintiff who seeks in federal court a
result opposed to the one he achieved in state court does not,
for that reason alone, run afoul of Rooker-Feldman.”):; Exxon
Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (the Rooker-Feldman
doctrine does not “stop a district court from exercising
subject-matter jurisdiction simply because a party attempts
to litigate in federal court a matter previously litigated in
state court,” because “[i]f a federal plaintiff present[s] some
independent claim[, i.e., a claim based on an injury that was
not caused by the state-couri judgment. | albeit one that denies
a legal conclusion that a state court has reached in a case to
which he was a party. . . , then there is jurisdiction and state

l6a

Appendix A

law determines whether the defendant prevails under
principles of preclusion” (internal quotation marks omitted)
(second alteration in original)). Thus, whatever the full import
of the “caused by” and “produced by” language, at least the
following is evident: a party is not complaining of an injury
“caused by” a state-court judgment when the exact injury of
which the party complains in federal court existed prior in
time to the state-court proceedings, and so could not have
been “caused by” those proceedings.

That is precisely the case here. In seeking post-conviction
access to, and DNA testing of, evidence, McKithen could
have chosen to bring either his state § 440.30 motion or his
federal § 1983 suit first. As he chose to litigate in state court
first, principles of preclusion might apply. But, given that
McKithen in federal court seeks redress for an injury that
existed in its exact form prior to the state-court judgment,
he cannot be complaining of an injury “caused by” the state
court.* Rather, the preexisting injury in this case is properly

8. Our conclusion is bolstered by reference to Hoblock’s fourth,
“procedural,” prong. That prong renders the Rooker-Feldman
doctrine categorically inapplicable unless the relevant “state-court
judgment [was] rendered before the district court proceeding
commenced.” //oblock, 422 F.3d at 85. Yet, for purposes of
determining whether a federal litigant is “complaining of injuries
caused by state-court judgments,” there would seem to be no
meaningful distinction between (1) a district court proceeding that
could have been, but was not, comnienced before a state-court
judgment was rendered, and (2) a district court proceeding that in
fact was commenced before the state-court judgment (to which, in
light of Hoblock s fourth prong. the Rooker-Feldman doctrine would
never apply). Given that the Rooker-Feldman doctrine “has no

(Cont'd)

17a

Appendix A

understood to have been “simply ratified, acquiesced in, or
left unpunished by [the state court].” Hoblock, 422 F.3d at
88.”

We therefore hold that, under current Supreme Court and
circuit law, the district court erred when it followed the then
governing Moccio case and applied the Rooker-Feldman
doctrine to bar McKithen’s suit.

(Cont'd)

application to federal-court suits proceeding in parallel with ongoing
state-court litigation,” id. at 85, it would seem that the doctrine would
also have to be inapplicable to cases, like the one before us, in which
the federal-court suit could have proceeded “in parallel with” or
before the state-court litigation.

9. By no means does this suggest that, in order to avoid the
Rooker-Feldman doctrine, a party’s injury must have arisen prior to
any State-court judgments. Obviously, an injury that arises at the
same time or even after a state-court judgment might also arise
independently of-that is, might arise without being “caused by”-
that statc-court judgment. The Supreme Court recognized as much
in Exxon Mobil when it announced that the Rooker-Feldman doctrine
does not “stop a district court from exercising subject-matter
jurisdiction simply because a party attempts to litigate in federal
court a matter previously litigated in state court.” Exxon Mobil, 544
U.S. at 293, 125 S.Ct. 1517 (emphasis added). Conversely. we do
not suggest that an injury that arises prior to a state-court judgment.
but that is intensified or aitered by that judgment, can never be found
to have been “caused by” the state-court judgment. Rather. we leave
that question-which will require us to pin down, more precisely than
is necessary here, the meaning of the “caused by” and “produced
by” phrases-for another day.

18a

Appendix A
II

McKithen brings his suit under the Civil Rights Act of
1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, which
gives a cause of action for anyone subjected “to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws” by a person acting under color
of state law. While his claim undoubtedly comes “within the
literal terms of § 1983,” Heck, 512 U.S. at 481, 114 S.Ct.
2364, the Supreme Court has recognized “an implicit
exception from § 1983’s otherwise broad scope for actions
that lie ‘within the core of habeas corpus,’ ” Wilkinson vy.
Dotson, 544 U.S. 74, 79, 125 S.Ct. 1242, 161 L.Ed.2d 253
(2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487, 93
S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Accordingly, we must
now determine whether a claim asserting a post-conviction
federal constitutional right of access to, and DNA testing of,
evidence is cognizable under § 1983, or whether, instead, it
lics so well “within the core of habeas corpus” that it may
only be brought in a habeas petition.

The question has been an open one in this circuit. We
today join the Seventh, Ninth, and Eleventh Circuits, and
district courts in the First and Third Circuits, agreeing with
them that a claim seeking post-conviction access to evidence
for DNA testing may properly be brought as a § 1983 suit.
See Savory v. Lyons, 469 F.3d 667, 669 (7th Cir.2006);
Oshorne v. Dist. Attorney's Office for the Third Judicial Dist..
423 F.3d 1050, 1054 (9th Cir.2005); Bradley v. Pryor, 305
F.3d 1287, 1290-91 (1 Ith Cir.2002); see also Wade v. Brady,
460 F.Supp.2d 226, 237 (D.Mass.2006) (“|Section] 1983 is
an entirely appropriate medium for plaintiff to raise his claim

19a

Appendix A

for access to DNA testing.”); Derrickson v. Del. County Dist.
Attorney's Office, No. 04-1569, 2006 WL 2135854, at *8
(E.D.Pa. July 26, 2006) (same). In doing so we reject the
position taken by three other circuits. See Harvey v. Horan,
278 F.3d 370, 375 (4th Cir.2002) (“Harvey I’) (holding that
such a claim cannot be brought in a § 1983 action when a
plaintiff “seek[s] access to DNA evidence for one reason and
one reason only—as the first step in undermining his
conviction”)"®; Kutzner v. Montgomery County, 303 F.3d 339,
340-41 (Sth Cir.2002) (per curiam) (adopting the reasoning
of Harvey I); see also Boyle v. Mayer. 46 Fed.Appx. 340,
340 (6th Cir.2002) (unpublished) (holding that a suit seeking
DNA testing of biological evidence is, in light of Heck, not
cognizable under § 1983).

A

While both § 1983 and the federal habeas statute,
28 U.S.C. § 2254 “provide access to a federal forum for

10. Subsequent developments appear to have made it impossible
for the Fourth Circuit to reconsider the Harvey / panel's decision.
Following the issuance of the opinion in Harvey /, the case was
mooted by a state-court order which granted to the plaintiff-appellee
the relief he had been seeking in federal court. Against this backdrop,
the plaintiff-appellee’s petitions for rehearing and rehearing en banc
were denied. See Harvey //, 285 F.3d at 304 (Luttig, J., respecting
the denial of rehearing en banc) ("1 concur in the court’s judgment
to deny rehearing of this case en banc, but | do so only because it
appears that appellee Harvey will, pursuant to state court order
entered after our panel's decision, be afforded the chance to subject
the forensic evidence in question to further DNA tests-the same relief
that he seeks from this court.”); id. (“In light of this order, we likely
do not have the authority to rehear this case even before the panel.
much less before the court en hanc.”).

20a

Appendix A

claims of unconstitutional treatment at the hands of state
officials,” the provisions “differ in their scope and operation.”
Heck, 512 U.S. at 480, 114 S.Ct. 2364. Thus, while
exhaustion of state remedies generally “ ‘is not a prerequisite
to an action under § 1983,’ ” id. (quoting Patsy v. Bd. of
Regents, 457 U.S. 496, 501, 102 S.Ct. 2557, 73 L.Ed.2d 172
(1982)), even in an action brought by a state prisoner, id.,"'
the federal habeas statute normally requires a state prisoner
to exhaust state remedies before filing a habeas petition in
federal court. See 28 U.S.C. § 2254(b)(1), (c); see also
Woodford v. Ngo, _ U.S. __,__ -__, 126 S.Ct. 2378, 2386-
87, 165 L.Ed.2d 368 (2006) (explaining that “[a] state
prisoner is generally barred from obtaining federal habeas
relief unless the prisoner has properly presented his or her
claims through one complete round of the State’s established
appellate review process” (citation and internal quotation
marks omiited)). Similarly, the AEDPA time limitations and
rules concerning successive petitions applicable to habeas
are much more stringent than the normal limitations statutes
that control § 1983.'* See Muhammad v. Close, 540 U.S. 749.

11. One notable exception to the general rule that exhaustion
of state remedies is not a prerequisite to a prisoncr’s § 1983 suit is
the Prison Litigation Reform Act of 1995, 110 Stat. 1321, 1321-71,
as amended, 42 U.S.C. § 1997e et seq. The PLRA provides that a
prisoner seeking to bring a § 1983 suit “with respect to prison
conditions” must first exhaust “such administrative remedies as are
available.” 42 U.S.C. § 1997e(a); see generally Woodford, 126 S.Ct.
at 2378.

12. Whereas AEDPA ordinarily requires a prisoner to file her
habeas petition within a one-year filing period, see 28 U.S.C.
§ 2244(d). “the statute of limitations applicable to claims brought

(Cont'd)

2la

Appendix A

751, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (per curiam)
(explaining that prisoners suing under § 1983 “generally face
a substantially lower gate” than those prisoners petitioning
for habeas). And, of course, given these differences, if § 1983
were always available, the procedural and the other like
requirements of the federal habeas statute would be rendered
nugatory.

Consequently, in Preiser v. Rodriguez, 411 U.S. 475, 93
S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court began
its efforts to “harmoniz [e][t]he broad language of § 1983, a
general statute, with the specific federal habeas corpus
statute[, 28 U.S.C. § 2254].” Heck, 512 U.S. at 491, 114
S.Ct. 2364 (Thomas, J., concurring) (internal quotation marks
omitted and second alteration in original). In Preiser, state
prisoners had brought civil rights actions attacking the
constitutionality of prison disciplinary proceedings that had
led to the deprivation of their good-time credits, and sought
solely equitable relief. In light of the “potential overlap”
between § 1983 and the habeas provision, the Court crafted
an implicit exception to the textual terms of § 1983 and held
that “habeas corpus is the exclusive remedy for a state
prisoner who challenges the fact or duration of his

(Cont'd)

under ... § 1983 in New York is three years,” Patterson v. County
of Oneida, N.¥., 375 F.3d 206, 225 (2d Cir.2004). Moreover, AEDPA
strictly limits the ability of prisoners to file second or successive
habeas petitions, see 28 U.S.C. § 2244(b), which is a limitation not
faced by a § 1983 plaintiff. See generally Larry W. Yackle, 4 Primer
on the New Habeas Corpus Statute, 44 Buff. L.Rev.. 381 (1996)
(describing AEDPA’s various amendments to the federal habeas
Statute).

22a
Appendix A

confinement and sccks immediate or speedier release.”
Id. at 481, 93 S.Ct. 1827 (citing Preiser, 411 U.S. at 488-90,
93 S.Ct. 1827).

Over time, this implicit exception has been carefully
circumscribed. See Dotson, 544 U.S. at 79, 125 S.Ct. 1242
(noting that the “implicit exception from § 1983’s otherwise
broad scope” recognized in Preiser covers only those “actions
that lie ‘within the core of habeas corpus’ ” (quoting Preiser,
411 U.S. at 487, 93 S.Ct. 1827)). And—as Preiser itself had
suggested—the exception has been applied by the Supreme
Court, in its post- Preiser case law, only when success for a
prisoner in a § 1983 suit would necessarily result in the
nullification of his conviction or the shortening of his
confinement. Thus, in Wolffv. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Court held that
inmates were permitted to bring a suit, pursuant to § 1983,
(1) to obtain a declaration—“as a predicate to” their requested
damages award—that the disciplinary procedures by which
their good-time credits were deprived were invalid, as well
as (2) to seek an injunction enjoining prospective
enforcement of invalid prison regulations. /d. at 555,94 S.Ct.
2963. In reaching these conclusions, the Court reasoned that,
much as either form of relief might suggest—or be the first
step in demonstrating-the invalidity of prisoners’ sentences,
“{iJn neither case would victory for the prisoners [in the
§ 1983 suit] necessarily have meant immediate release or a
shorter period of incarceration.” Dotson, 544 U.S. at 80, 125
S.Ct. 1242 (discussing Wolff) (emphases added); see Wolff,
418 U.S. at 555, 94 S.Ct. 2963 (“[I]t was proper for the
[federal courts] to determine the validity of the procedures
for revoking good-time credits and to fashion appropriate

23a
Appendix A

remedies for any constitutional violations ascertained, short
of ordering the actual restoration of good time already
cancelled.”).

Twenty years later, in Heck v. Humphrey, the Court
reaffirmed that the exception recognized in Preiser applies
only when “establishing the basis for [a prisoner’s § 1983]
claim necessarily demonstrates the invalidity of the
conviction.” Heck, 512 U.S. at 481-82, 114 S.Ct. 2364
(emphasis added). The plaintiff in Heck was an inmate who
alleged that state officials unconstitutionally caused his
conviction by improperly investigating his crime and
destroying evidence. /d. at 479, 114 S.Ct. 2364. In holding
that the plaintiff's claim was not cognizable under § 1983-
even though the plaintiff only requested damages as relief-
the Court explained that, in order for plaintiff to succeed on
his damages claim, he would necessarily have to show, as a
predicate to the award, that his conviction was invalid. Hence,
success for the plaintiff would “necessarily demonstrate| |
the invalidity of [his] conviction,” and, since civil tort actions
are “not appropriate vehicles for challenging the validity of
outstanding criminal judgments,” jd. at 486, 114 S.Ct. 2364,
“no cause of action under § 1983 [was available] ... until
the conviction or sentence [was] reversed, expunged,
invalidated, or impugned by the grant of a writ of habeas
corpus,” id. at 489, 114 S.Ct. 2364."

13. Because the standard enunciated in Heck generally bars a
§ 1983 suit that “necessarily demonstrates” the invalidity of a
conviction or sentence “unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Heck, 512 U.S.
at 487, 114 S.Ct. 2364, the Heck rule has come to be known as the
“favorable termination” requirement. See generally Peralta v
Vasquez, 467 F.3d 98 (2d Cir.2006).

24a
Appendix A

In an important footnote, the Court in Heck reaffirmed
the narrowness of Preiser’s exception, by providing an
instructive example of a § 1983 lawsuit which, under the
standard articulated in Heck, would not be barred:

For example, a suit for damages attributable to
an allegedly unreasonable search may lie even if
the challenged search produced evidence that was
introduced in a state criminal trial resulting in the
§ 1983 plaintiff's still-outstanding conviction.
Because of doctrines like independent source and
inevitable discovery, and especially harmless
error, such a § 1983 action, even if successful,
would not necessarily imply that the plaintiff's
conviction was unlawful.

Id. at 487, 114 S.Ct. 2364 n. 7 (emphasis in original) (internal
citations omitted). Heck's footnote 7 underscored that the
Preiser exception does not bar a § 1983 action that, at most,
increases the /ikelihood that a plaintiff will eventually be
able to overturn a still-outstanding conviction, but which does
not go so far as to necessarily demonstrate the conviction’s
invalidity. See Nelson v. Camphell, 541 U.S. 637, 647, 124
S.Ct. 2117, 158 L.Ed.2d 924 (2004) (“[WJe were careful in
Heck to stress the importance of the term “necessarily.” ~):
Savory, 469 F.3d at 672 (“The exception to § 1983... isa
narrow one, designed to preserve the specific role of habeas
corpus relief.”); cf Anyanwutaku vy. Moore, 151 F.3d 1053
(D.C.Cir.1998) (holding that an inmate's constitutional
challenge alleging miscalculation of a parole eligibility date
was cognizable under § 1983. because such parole decisions

25a

Appendix A

were discretionary and hence, there was no guarantee the
inmate would ultimately be released any earlier).

The High Court recently reiterated this point in Dotson,
544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253. In affirming,
yet again, that the proper inquiry is whether “victory for the
prisoners [would] necessarily have meant immediate release
or a shorter period of incarceration,” id. at 80, 125 S.Ct. 1242,
the High Court deemed it irrelevant that a prisoner might,
following success in a § 1983 suit, find himself in a better
position to raise subscquent challenges to his conviction or
sentence. Specifically, the Dotson Court allowed plaintiff
inmates to proceed with their § 1983 suits when (1) success
for one prisoner plaintiff would have meant, at most, speedier
“ consideration of anew parole application,” and (2) success
for the other prisoner would potentially have led to “a new
parole hearing at which [state] authorities may, in their
discretion, decline to shorten his prison term.” /d. at 82, 125
S.Ct. 1242 (emphasis in original); cf Anyvanwutaku, 151 F.3d
1053.

We conclude that the governing standard for application
ot the Preiser-Heck exception, then, is whether a prisoner’s
victory in a § 1983 suit would necessarily demonstrate the
invalidity of his conviction or sentence; that a prisoner's
success might be merely helpful or potentially demonstrative
of illegal confinement is, under this standard, irrelevant.

Moreover, given that the test is whether success in the
§ 1983 suit sub judice will necessarily demonstrate the
invalidity of a conviction or sentence—and not whether a
plaintiff intends to bring subsequent challenges-a prisoner's

26a
Appendix A

motives for bringing a § 1983 suit are, as Dotson observes,
also plainly beside the point. Dotson, 544 U.S. at 78, 125
S.Ct. 1242 (“The problem with Ohio’s argument lies in its
jump from a true premise (that in all likelihood the prisoners
hope these actions will help bring about earlier release) to a
faulty conclusion (that habeas is their sole avenue for

relief).”).
B

Were McKithen to prevail on the merits, he would obtain
only an injunction requiring that the knife be made available
for DNA testing. Such testing, of course, “necessarily implies
nothing at all about the plaintiffs conviction.” Harvey 1/1,
285 F.3d at 308 (Luttig, J., respecting the denial of rehearing
en banc) (emphasis in original). That is because “[t]he results
of any DNA tests that are eventually performed may be
inconclusive, they may be insufficiently exculpatory, or they
may even be inculpatory.” /d. Moreover, even if the results
of DNA testing prove exculpatory, McKithen would then
have to initiate an entirely separate lawsuit-presumably as a
habeas petition, subject to ail the procedural and other
AEDPA limitations-in which he would have to argue that
the state has violated his constitutional rights by continuing
to imprison him in light of the exculpatory evidence."
See id.

14. In such a subsequent habeas proceeding, the state would
not, of course, be collaterally estopped from arguing (1) that the
results of the DNA testing do not, in fact, exculpate McKithen,; or
(2) that, even if the results are to some degree exculpatory, they are
insufficient to show that McKithen’s imprisonment is
unconstitutional

27a

Appendix A

It follows that-even if success for the plaintiff might
well make it more likely that the plaintiff, in a subsequent
proceeding, may eventually be able to make a showing that
his conviction was unlawful, see Dotson, 544 U.S. at 80,
125 S.Ct. 1242; Heck, 512 U.S. at 481-82, 114 S.Ct. 2364;
Wolff, 418 U.S. at 555, 94 S.Ct. 2963; Preiser, 411 U.S. at
482, 489-90, 93 S.Ct. 1827, and even if a plaintiff's ultimate
motive is to challenge his conviction—a post-conviction claim
for access to evidence is cognizable under § 1983. See Savory,
469 F.3d at 672; Osborne, 423 F.3d at 1054-55; Bradley,
305 F.3d at 1290-91; Wade, 460 F.Supp.2d at 237-39;
Derrickson, 2006 WL 2135854, at *8.'°

15. Defendant Brown relies on the Fourth Circuit’s decision in
Harvey I for the proposition that Heck bars any § 1983 suit that is
brought “for one reason and one reason only-as the first step in
undermining [a plaintiff's] conviction.” And “it may not be denied,”
Brown continues, “that, at bottom, [McKithen] seeks further DNA
testing for the sole purpose of attempting to demonstrate his
innocence of the crime for which he was convicted.” But this
approach, which focuses not on whether success for the § 1983
plaintiff necessarily implies the invalidity of his conviction or
sentence, but rather on the question of the plaintiff's motives in
bringing the suit, was laid to rest by the Supreme Court in Dotson.
See Dotson, 544 U.S. at 78, 125 S.Ct. 1242; see supra It is now
beyond dispute that a § 1983 plaintiff's unspoken motives-as
contrasted with the relief the plaintiff has in fact sought-are merely
red herrings.

On this point, we note that the Fourth Circuit (whose reasoning
the Fifth Circuit-and, arguably, the Sixth Circuit-adopted shortly
after Harvey / was decided) relied heavily on the assumed beliefs
and motivations of the § 1983 plaintiff. See, e.g., Harvey /, 278 F.3d

(Cont'd)

28a
Appendix A
iil

As the Supreme Court made clear in Exxon Mobil,
“a federal court may be bound to recognize the claim- and
issue-preclusive effects of a state-court judgment” even if
there is jurisdiction to hear the merits of the claim, and the
claim is otherwise properly presented. Exxon Mobil, 544 U.S.
at 293, 125 S.Ct. 1517; see Hoblock, 422 F.3d at 92 (citing
Exxon Mobil). \n determining whether claim or issue
preclusion applies, our inquiry is governed by New York state
law. See 28 U.S.C. § 1738 (“Such .. . judicial proceedings
.. Shall have the same full faith and credit in every court
within the United States . . . as they have by law or usage in
the courts of such State ... from which they are taken.”);
see also Hoblock, 422 F.3d at 93; Parsons Steel, Inc. v. First
Ala. Bank, 474 U.S. 518, 523, 106 S.Ct. 768, 88 L.Ed.2d
877 (1986). We therefore consider, in turn, Brown’s
arguments that we are barred from considering McKithen’s
claim (1) by claim preclusion, and (2) by issue preclusion.

(Cont'd)

at 375 (“Harvey is seeking access to DNA evidence [because] ...
[hje believes that the DNA test results will be favorable and will
allow him to bring a subsequent motion to invalidate his conviction.
As such, an action under 42 U.S.C. § 1983 cannot lie.”) (emphasis
added). This approach is no longer tenable after Dotson. See supra.
Hence, it comes as no surprise that courts in every circuit to have
weighed in on the issue after Dotson-the Seventh and Ninth Circuit,
and district courts in the First and Third Circuit-have rejected Harvey
J, and instead sided with the Eleventh Circuit. Today we join this
emerging consensus.

29a
Appendix A
A

The doctrine of claim preclusion, also referred to as res
judicata, prevents a plaintiff from raising a claim that was or
could have been raised in a prior suit. New York law has
adopted a “transactional approach” to claim preclusion.
See, e.g., Gargiul v. Tompkins, 790 F.2d 265, 269 (2d
Cir. 1986) (citing Reilly v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d
645, 379 N.E.2d 172 (1978)). “[O]nce a claim is brought to
a final conclusion, all other claims arising out of the same
transaction or series of transaction are barred. .. .” O’Brien
v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687,
688, 429 N.E.2d 1158 (1981).

Under Rule 8 of the Federal Rules of Civil Procedure,
which governs general pleading rules in federal court,
“([p]reclusion. . . is not a jurisdictional matter.” Exxon Mobil,
544 U.S. at 293, 125 S.Ct. 1517 (citing Fed.R.Civ.P. 8(c),
which lists claim preclusion as an affirmative defense). As
such, the defense of claim and issue preclusion may be
waived by the parties, see Nat'l Mkt. Share, Inc. v. Sterling
Nat'l Bank, 392 F.3d 520, 526 (2d Cir.2004) (“Generally a
failure to plead an affirmative defense results in a waiver.”
(internal citations and quotation marks omitted)); Scherer v.
Equitable Life Assurance Soc’y, 347 F.3d 394, 398 (2d
Cir.2003) (“The preclusion doctrines ... are waiveable
affirmative defenses.”); Curry v. City of Syracuse, 316 F.3d
324, 330-31 (2d Cir.2003) (“[C]Jollateral estoppel, like res
judicata, is an affirmative defense... . [I]t normally must be
pled in a timely manner or it may be waived.”), and we are
under no obligation to raise the issue nostra sponte, Scherer.
347 F.3d at 398 n. 4 (noting that although a court is “free to

30a
Appendix A

raise that defense sua sponte, even if the parties have
seemingly waived it,” there is “no obligation on the part of a
court to act sua sponte and interpose the defense if it has not
been raised”). Indeed, our court has recognized that sua
sponte application of claim preclusion is “not always
desirable.” /d.

On appeal, Brown concedes that “claim preclusion .. .
was not specifically raised below,” but insists that we should
apply the defense nostra sponte “for the sake of judicial
economy.” As support, Brown asserts that “appellant’s due
process claim in this action is precisely the same claim he
raised in his state [§] 440.30 claim, now couched in due
process terminology, and could have been raised in the state
action.” He remarks that McKithen-who has remained
incarcerated throughout, and proceeded pro se in the state
and district court post-conviction proceedings—“should not
now be rewarded for his failure” to raise the same claim in
this action.

Brown's arguments are without merit. As McKithen
rightly rejoins, Brown has offered us no support for the
“naked assertion” that McKithen could have brought a federal
constitutional claim as part of his § 440.30 motion. Indeed
this may be an open question of state law.'® Even if it were

16. The only case that Brown cites in support of this assertion
is People v. De Oliveira, 223 A.D.2d 766, 767, 636 N.Y.S.2d 441,
442 (App. Div.1996), but that opinion is not on point. In De Oliveira,
the plaintiff had raised various unrelated constitutional grounds on
which to vacate his conviction under § 440.10 and had also sought
DNA testing under state law pursuant to § 440.30. Thus the decision
does not appear to support the assertion that federal constitutional
claims can be brought as part of a § 440.30 motion itself.

3la

Appendix A

not, however, and assuming further that its answer would
cut in Brown’s favor, we conclude that it would still be
inappropriate, in this case, to invoke claim preclusion nostra
sponte given, as McKithen notes, “the seriousness of the
crime [of which he was convicted], the length of the sentence,
the fact that the claim goes to innocence, and that McKithen
proceeded pro se in state court.”

Brown has waived the defense of claim preclusion, and,
given the circumstances of this case, we decline to invoke
the defense nostra sponte.

B

Brown did raise the defense of issue preclusion, i.e.,
collateral estoppel, in the district court, and we therefore must
decide whether the defense applics. Our inquiry is governed
by New York state law. See 28 U.S.C. § 1738; Hoblock, 422
F.3d at 92-93.

Under New York law, collateral estoppel will preclude a
federal court from deciding an issue if “ ‘(1) the issue in
question was actually and necessarily decided in a prior
proceeding, and (2) the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue
in the first proceeding.” ” Vargas v. City of New York, 377
F.3d 200, 205-06 (2d Cir.2004) (quoting Colon v. Coughlin,
58 F.3d 865, 869 (2d Cir.1995)). We have said that.
“dispositive to a finding of preclusive effect, is whether an
independent judgment in a separate proceeding would impair
or destroy rights or interests established by the judgment
entered in the first action.” Sure-Snap Corp. v. State St. Bank

32a
Appendix A

& Trust Co., 948 F.2d 869, 874 (2d Cir.1991) (internal
quotation marks omitted). Importantly, we have also
cautioned that “[i]ssue preclusion will apply only if it is quite
clear that these requirements have been satisfied, lest a party
be ‘precluded from obtaining at least one full hearing on his
or her claim.” ~ Colon, 58 F.3d at 869 (quoting Gramatan
Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, 414
N.Y.S.2d 308, 311, 386 N.E.2d 1328 (1979)) (emphasis
added).

Brown argues that “[o]nly by overturning the ruling of
the state court could the federal ccurt grant appellant’s relief.”
The state court, in denying McKithen’s § 440.30 motion to
have the knife tested, reached the conclusion that McKithen
did not meet the state-law standards for DNA testing. And
Brown insists that McKithen could prevail on his federal
claim only if the federal district court were to disregard the
State court’s holding on this point. But that is only so if the
federal constitutional right to DNA testing is the same as or
lesser than (and included in) the state statutory right. In other
words, it “ain’t necessarily so.”

Under N.Y.Crim. Proc. Law § 440.30(1-a)(a), the state
court was required to decide whether McKithen met the state-
law “reasonable probability” and “more favorable” standards.
See supra. At this stage of the proceedings, we are unable to
rule on whether, assuming that a federal constitutional right
to post-conviction DNA testing exists, the standards for
proving a violation of that right are more, or less, stringent
than those of the state statute.

33a

Appendix A

It is not at all inevitable that the federal constitutional
right, if it exists, will look precisely like the state statutory
right. Even apart from the possibility that the federal
constitutional right might be, in some applications, more
readily available than the state statutory right, McKithen
rightly notes that DNA may have a variety of uses that are
not captured in the state statute’s trial-focused standard. For
example, it might aid in clemency proceedings; evidence
might be probative enough to warrant executive intervention
even if it did not meet the state law “reasonable probability”
threshold. Alternatively, the DNA evidence might be useful
to a prisoner with an indeterminate sentence, such as
McKithen, in obtaining parole-even if the evidence is
insufficient to create a “reasonable probability” of a different
verdict.

For these reasons, we cannot find, at this juncture, that
issue preclusion applies. Instead, we leave the defense for
the district court to consider on remand when the stage is
properly set for it. If the district court concludes that there
exists a constitutional right on the basis of which McKithen
might obtain his requested relief (a question which, as we
explain below, is best left for the district court to consider in
the first instance), it should then consider whether the
contours of that right are sufficiently similar to-or narrower
than and incorporated in-the previously adjudicated state
statutory standard as to collaterally estopp McKithen’s claim.

IV

The district court, viewing itself bound to dismiss the
suit for lack of subject matter jurisdiction pursuant to the

34a
Appendix A

Rooker-Feldman doctrine, did not address the merits of
McKithen’s § 1983 action. Because we vacate the district
court’s judgment on that point-and instead hold (1) that the
district court did have jurisdiction, (2) that McKithen’s suit
is cognizable under § 1983, (3) that the defense of claim
preclusion was waived, and (4) that we cannot determine
whether issue preclusion applies before determining whether
the federal constitutional right exists and what its contours
are-the extraordinarily important, and delicate, constitutional
issue which McKithen has sought to litigate is squarely before
us.

But we decline to rule on it now. Instead, because of the
fact-intensive nature of the inquiry-and, as noted earlier, in
light of the need to approach the issue cautiously-we remand
the question to the district court for its examination in the
first instance. The same considerations that lead us to remand,
however, counsel in favor of our providing the district court
some guidance as to how its inquiry might proceed.

** * *

lhe Supreme Court has made clear that prisoners
lawfully deprived of their freedom retain substantive liberty
interests under the Fourteenth Amendment. See, e.g.,
Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73
L..Ed.2d 28 (1982) (“The mere fact that [plaintiff] has been
committed under proper procedures does not deprive him of
all substantive liberty interests under the Fourteenth
Amendment.”): see also Vitek v. Jones, 445 U.S. 480, 491-
94. 100 S.Ct. 1254. 63 L.Ed.2d 552 (1980) (holding that
convicted felon retains a post-conviction liberty interest in

35a

Appendix A

avoiding transfer to a mental institution without due process);
Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33
L.Ed.2d 484 (1972) (holding that parolee has a post-
conviction liberty interest which “includes many of the core
values of unqualified liberty”). The district court, on remand,
must, therefore, first consider whether this residual post-
conviction liberty interest encompasses an interest in
accessing or possessing potentially exonerative biological
evidence. Compare Harvey II, 285 F.3d at 312, 312-15
(Luttig, J., respecting the denial of rehearing en banc) (“I
believe, and would hold, that there does exist such a post-
conviction right of access to evidence.”) with Harvey I, 278
F.3d at 388 (King, J., concurring in part and concurring in
the judgment) (concluding that the defendant had “no post-
conviction legal right to access or discover the [biological]
evidence relating to his... conviction”). See also Grayson
v. King, 460 F.3d 1328, 1340-41 (11th Cir.2006) (declining
to weigh in on “the thorny threshold issue’’).

If the district court concludes that this post-conviction
liberty interest exists, then procedural due process applies
to its deprivation. On this point, the district court’s inquiry
should begin with the tramework established in Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976),
for analyzing procedural due process claims.'’ Mathews

17. Its inqurty should not end there. Another possible source
of a constitutional right of access is substantive due process.
See Harvey II, 285 F.3d at 318-20 (Luttig, J., respecting the denial
of rehearing en banc) (“[U]nder established Supreme Court precedent
there might well be a straightforward substantive due process right
to [post-conviction] access [to evidence].” (emphasis in original)):

(Cont'd)

36a

Appendix A

applies, rather than the more demanding Medina vy.
California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353
(1992), because McKithen is not bringing a challenge to his
underlying conviction or to “the process afforded during
criminal proceedings themselves,” Krimstock v. Kelly, 464
F.3d 246, 254 (2d Cir.2006), but instead is seeking post-
conviction access to evidence. See Harvey II, 285 F.3d at
315 n. 6 (Luttig, J., respecting the denial of rehearing en
banc) (concluding that Mathews, rather than Medina,
“provides the proper analytical framework for determining
whether there exists a procedural due process right to such
access” because “|t]he asserted right of access does not entail
a challenge to the underlying conviction, and neither (at least
comfortably) is the state’s denial of access equivalent to a
state rule of criminal procedure governing the process by
which one is tried and found guilty or innocent of criminal
offense”); cf Krimstock, 464 F.3d at 254 (holding that
Mathews applies to a case involving an alleged deprivation
of property pending a criminal proceeding).

Under the Mathews framework,

identification of the specific dictates of due
process generally requires consideration of three
distinct factors: First, the private interest that will
be affected by the official action; second, the risk
of an erroneous deprivation of such interest

(Cont'd)

see also County of Sacramento v. Lewis, 523 U.S. 833, 856-57, 118
S.Ct. 1708. 140 L.Ed 2d 1043 (1998) (Kennedy, J., joined by
O°’Connor. J.. concurring) (“It can no longer be controverted that
due process has a substantive component... .”).

37a

Appendix A

through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893: see also United
States v. Ruiz, 536 U.S. 622. 631. 122 S.Ct. 2450, 153 L.Ed.2d
586 (2002) (same).

Under Mathews the cases inevitably turn on their
particular facts-which in the instant case include the
availability of statutory avenues of relief, such as state or
federal legislation providing for DNA testing,'* and the
seriousness of the crime and sentence involved.'®

18. Because the Mathews framework takes into account “the
probable value, if any, of additional or substitute procedural
safeguards”—which value will depend, in large part, upon the
availability of adequate statutory avenues of relief—there is, we
believe, no basis to the view that recognizing longstanding principles
of procedural due process “in the face of [considerable] legislative
activity and variation is to evince nothing less than a loss of faith in
democracy.” Harvey /I/, 285 F.3d at 303 (Wilkinson, C.J., concurring
in the denial of rehearing and rehearing en banc). Rather, the Mathews
framework expressly encourages legislatures to develop appropriate
procedures to ensure that a miscarriage of justice does not occur.

19. There can be no doubt, for example, that a prisoner facing
capital punishment would have a considerably more compelling claim
under Mathews-as well as under substantive due process-than one,
like McKithen, who seeks to avoid the remainder of a prison sentence.

(Cont'd)

38a

Appendix A

See Greenholiz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (“It is
axiomatic that due process ‘is flexible and calls for such
procedural protections as the particular situation demands.’ ”)
(quoting Morrissey, 408 U.S. at 481, 92 S.Ct. 2593);
Mathews, 424 U.S. at 334, 96 S.Ct. 893 (“[D]ue process,
unlike some legal rules, is not a technical conception with a
fixed content unrelated to time, place and circumstance[ }.”
(internal quotation marks omitted)).

It is also worth noting that the right asserted by McKithen
in this case, while implicating questions of tremendous
importance, is narrow in its reach. McKithen does not, for
example, at all challenge the state’s procedures for the
collection and storage of biological evidence-procedures for
which cost is clearly a significant concern. Rather,
McKithen’s seeks only access to, and perhaps testing of,
biological evidence already in the state’s possession.
Moreover, at oral argument, McKithen indicated that he
would be able to cover the costs of DNA testing himself,
and, therefore, would not need to argue that the defendant
should be compelled to conduct the testing for him.

(Cont'd)

See Herrera vy. Collins, 506 U.S. 390,419, 113 S.Ct. 853, 122 L.Ed.2d
203 (1993) (O’Connor, J., joined by Kennedy, J., concurring)
(expressing agreement “with the fundamental legal principle that
executing the innocent is inconsistent with the Constitution” and
noting that “[rjegardless of the verbal formula employed ... the
execution of a legally and factually innocent person would be a
constitutionally intolerable event”).

39a

Appendix A

We deem it appropriate to leave factual questions, such
as the cost to the state—and the interaction between such facts
and the constitutional right asserted—for the district court to
consider in the first instance.

CONCLUSION

For the foregoing reasons, the district court’s judgment
is VACATED, and the case is REMANDED to the district
court, for it to consider whcther there exists a constitutional
right on the basis of which Plaintiff-Appellant might be able
to obtain the relief he requests, and if there is such a right,
whether, once the district court defines the contours of that
right, Plaintiff-Appellant’s claim is collaterally-estopped by
the earlier state court decisions.

40a

APPENDIX B — DISTRICT COURT ORDER

ADOPTING THE MARCH 27, 2003 REPORT AND

RECOMMENDATION AND DISMISSING THE CASE

FOR LACK OF SUBJECT MATTER JURISDICTION,
DATED APRIL 15, 2003

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

02-CV-1670 (JG)
FRANK McKITHEN,
Plaintiff,
-against-

QUEENS COUNTY DISTRICT ATTORNEY'S
OFFICE, ef al.,

Defendants.
ORDER
JOHN GLEESON, United States District Judge:

In 1993, the plaintiff was convicted of attempted murder
and related charges stemming from the stabbing of his wife.
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 seeking
to compel the defendants to perform DNA testing on the knife
used in connection with that crime. (1 note that on March 6,
2003, I dismissed a habeas petition brought by the plaintiff
on the very same ground. See McKithen v. Walsh, 03-CV-
334 (JG).) The defendants moved to dismiss the complaint

4la

Appendix B

on several grounds, and I| referred that motion to Magistrate
Judge Bloom for report and recommendation. On March 27,
2003, Judge Bloom issued a Report and Recommendation
recommending that I dismiss the complaint for lack of subject
matter jurisdiction pursuant to the Rooker-Feldman doctrine.
No objections to the Report have been filed, and I agree with
it. | therefore adopt the Report and Recommendation and
dismiss the complaint for lack of subject matter jurisdiction.
The Clerk is directed to close the case.

So Ordered.

s/ John Gleeson
John Gleeson, U.S.D-J.

Dated: April 15, 2003
Brooklyn, New York

42a

APPENDIX C — DISTRICT COURT REPORT AND
RECOMMENDATION, DATED MARCH 27, 2003

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

02-C V-1670 (JG) (LB)
FRANK McKITHEN,
Plaintiff.
-against-

QUEENS COUNTY DISTRICT ATTORNEY’S
OFFICE, era/.,

Defendants.
REPORT AND RECOMMENDATION
BLOOM, United States Magistrate Judge:

The Honorable John Gleeson, United States District
Judge. referred defendants” motion to dismiss plaintiff's
complaint to the undersigned for a report and
recommendation in accordance with 28 U.S.C. § 636(b). For
the following reasons, defendants’ motion to dismiss should
be granted.

BACKGROUND

On May 19, 1993. plaintiff Frank McKithen was
convicted of attempted murder and related charges stemming

43a

Appendix C

from the stabbing of his wife. On appeal, the Appellate
Division, Second Department, modified plaintiff's sentence,
but otherwise affirmed his conviction. People v. McKithen,
221 A.D.2d 476, 634 N.Y.S.2d 128 (2d Dep’t 1995).

On or about August 21, 2001, plaintiff filed a
motion pursuant to New York Criminal Procedure Law
§ 440.30(1-a) requesting that DNA and fingerprint testing
be performed on the knife used to stab his wife. According
to plaintiff, the results of such testing might exonerate him
of the crimes for which he was convicted. By Decision and
Order dated November 8, 2001, Supreme Court, Queens
County, denied his motion. First, the state court found that
plaintiff's request for fingerprint testing of the knife was
untimely and not based on any newly-discovered evidence.
Second, the state court found no reasonable probability that
DNA testing of the knife would have changed the verdict. In
particular, plaintiff did not dispute that his wife was stabbed
and therefore, the presence or absence of her blood on the
knife was of little probative value. On February 13, 2002,
the Appellate Division denied plaintiff permission to appeal
from the Supreme Court’s Decision and Order.

On February 27, 2003, plaintiff, proceeding pro se, filed
the instant action pursuant to 42 U.S.C. § 1983, claiming
defendants violated his constitutional right to post-conviction
DNA testing. Plaintiff does not seek money damages, nor
does he ask this Court to overturn his conviction. Instead, he
seeks to compel defendants to perform DNA testing on the
knife.

44a
Appendix C

By motion dated August 2, 2002, defei.dants move to
dismiss plaintiff's complaint (1) for lack of subject matter
jurisdiction under the Rooker-Feldman doctrine; (2) as barred
by the doctrine of collateral estoppel; (3) for failure to state
a claim upon which relief can be granted as plaintiff can only
challenge his conviction by way of a habeas corpus
proceeding; and (4) for failure to state a claim pursuant to
Brady v. Maryland, 373 U.S. 83 (1963). Plaintiff's opposition
to defendants’ motion argues that the state court erroneously
denied his request for DNA testing and that the lack of DNA
testing on the knife denied him the right to a fair trial.”

DISCUSSION

Whether a prisoner may bring a post-conviction action
pursuant to 42 U.S.C. § 1983 to compel DNA testing of
evidence has led courts to different conclusions in recent
years. Some courts have held that such a claim is barred by
Heck v. Humphrey, 512 U.S. 477 (1994), as § 1983 cannot
be used to challenge a criminal conviction. See Kufzner vy.
Montgomery County, 303 ¥.3d 339, 340 (S" Cir. 2002)
(finding a § 1983 action improper because “the allegations
seek to undermine Kutzner’s conviction or the consequences
flowing therefrom”); Harvey v. Horan, 278 t.3d 370, 375
(4" Cir. 2002) (“Harvey is seeking access to DNA evidence
for one reason and one reason only — as the first step in
undermining his conviction. He believes that the DNA test
results will be tavorable and will allow him to bring a

* While the instant action was pending, plaintiff filed a habeas
corpus petition in this Court which was dismissed as time-barred on
March 17, 2003. McKithen v Walsh, 03-CV-0334 (JG).

45a

Appendix C

subsequent motion to invalidate his conviction. As such an
action under 42 U.S.C. § 1983 cannot lie.”).

The Eleventh Circuit and at least two judges of the Fourth
Circuit, however, have concluded that granting a prisoner
access to DNA testing, standing alone, does not necessarily
imply that the conviction is invalid inasmuch as the testing
could confirm the prisoner’s guilt. See Bradley v. Pryor, 305
F.3d 1287, 1290 (11% Cir. 2002) (“Bradley seeks access, for
the purpose of DNA testing, to evidence that he believes is
in the State’s possession. He prevails in his lawsuit once he
has access to that evidence or an accounting for its absence.
Nothing in that result necessarily demonstrates or even
implies that his conviction is invalid.”); Harvey v. Horan,
285 F.3d 298, 308 (4" Cir. 2002) (“I do not believe it even
arguable that a post-conviction action merely to permit access
to evidence for the purpose of STR DNA testing ‘necessarily
implies’ invalidity of the underlying conviction. Indeed such
necessarily implies nothing at all about the plaintiff's
conviction.”) (Luttig, J., concurring in judgment denying
rehearing en banc) (emphasis in original); Harvey, 278 F.3d
at 383 (“Put simply, we do not know whether providing
Harvey with access to the evidence would assist or hinder
his attempts at exculpation; therefore, his civil action
requesting access to the biological evidence does not
‘necessarily imply’ the invalidity of his conviction.) (King,
J., concurring in part and concurring in judgment).

Moreover, there is disagreement as to whether there
exists any substantive or procedural constitutional right to
post-conviction DNA testing. Compare Bradley, 305 F.3d at
1292 (“I am inclined to affirm the judgment based upon my

46a

Appendix C

conclusion, tentative though it be, that under the
circumstances presented here the petitioner does not enjoy a
substantive or procedural due process right to the relief he
seeks. Therefore, in my opinion, he does not state a predicate
constitutional violation to support his § 1983 claim.”) (Birch,
J., specially concurring); with Harvey, 285 F.3d at 325
(“I also believe that, in limited circumstances, there is a right
under the Constitution to access previously-produced forensic
evidence for the narrow purpose of STR DNA testing, the
results of which could be presented for consideration to
appropriate executive branch officials — whether or not the
claimant would be entitled to present such results before a
court in a petition for writ of habeas corpus.”) (Luttig, J.,
concurring in judgment denying rehearing en banc); Harvey,
278 F.3d at 387 (“Thus, given that prisoners possess a right
of effective access to the court system, a governmental
decision to deny access to evidence with the intent — and
with the effect — of preventing a prisoner from exercising
his right of effective access to the court system would violate
due process.) (King, J., concurring in part and concurring
in judgment); Godschalk v. Montgomery County District
Attorney s Office, 177 F.Supp.2d 366, 370 (E.D. Pa. 2001)
(“Since DNA testing of the genetic material could indeed
provide material exculpatory evidence for a jury to consider
along with the inculpatory evidence of plaintiff's detailed
confession, we find that plaintiff has a due process right of
access to the genetic material for the limited purpose of DNA
testing.”’).

This Court need not weigh in on this debate, however,
because under the facts presented herein, the Court lacks
subject matter jurisdiction over plaintiff's complaint pursuant

47a

Appendix C

to the Rooker-Feldman doctrine. See Arena v. Department
of Social Services of Nassau County, No. 01-CV-6456, 2002
WL 1941151, at * 5 (E.D.N.Y. Aug. 23, 2002) (“The Court
will address the issue of its subject matter jurisdiction first
because a dismissal for lack of jurisdiction renders all other
claims moot.”).

“The Rooker-Feldman doctrine holds that inferior federal
courts lack subject matter jurisdiction ‘over cases that
effectively seek review of judgments of state courts and that
» federal review, if any, can occur only by way of a certiorari
petition to the Supreme Court.” Phifer v. City of New York,
289 F.3d 49, 55 (2d Cir. 2002) (quoting Moccio v. New York
State Office of Court Admin., 95 F.3d 195, 197 (2d Cir.
1996)); see District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923). “[T]he Supreme Court explained that
the jurisdiction of the district court is strictly original and
no federal court, other than the Supreme Court, can consider
a claim to reverse or modify a state court judgment.” Phifer,
289 F.3d at 55.

The Rooker-Feldman doctrine is based on the principle
of comity which “seeks to prevent ‘state and federal courts
... [from] fight|ing] each other for control of a particular
case.””’ Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d Cir. 2002)
(quoting A‘t/. Coast Line R.R. Co. v. Bhd. of Locomotive
Eng'rs, 398 U.S. 281, 286 (1970)). Thus, the “precise claims
raised in a state court proceeding” cannot be re-litigated in a
subsequent federal action. Moccio, 95 F.3d at 198-99.
Moreover, “|i]n addition to claims that were actually litigated
in state court, the Rooker-Feldman doctrine bars lower federal

48a

Appendix C

courts from exercising jurisdiction over claims that are
‘inextricably intertwined’ with state court determinations.”
Kropelnicki, 290 F.3d at 128 (quoting Feldman, 460 U.S. at
482-83 n. 16),

Plaintiff's state court motion pursuant to § 440.30(1-a)
did not claim a constitutional right to post-conviction DNA
testing; plaintiff claimed only a statutory right to such testing
under state law. The state court’s decision to deny plaintiff's
motion therefore relied exclusively on § 440.30(1-a) and state
Cases interpreting that statute. Thus, plaintiffs claim to DNA
testing is being raised as a constitutional claim for the first
time in the instant § 1983 action.

Nevertheless, petitioner’s constitutional claim is barred
by the Rooker-Feldman doctrine because it is “inextricably
intertwined” with the state court determination. A federal
claim is “inextricably intertwined” with a prior state court
determination where, “at a minimum, . . . a federal plaintiff
had an opportunity to litigate a claim in a state proceeding
(as either the plaintiff or defendant in that proceeding), . . .
[and] the claim .. . would be barred under the principles of
preclusion.” Krapeinmicki, 290 F.3d at 128 (quoting Moccio,
95 F.3d at 199-293).

First. plairts!{ cowld have raised his constitutional claim
in his Article 44€ motion. A motion to vacate a conviction
pursuant to Article 440 is routinely utilized to bring
constitutional violations to the state court’s attention.
See, e.g., People v. De Oliveira, 223 A.D.2d 766, 767, 636
N.Y.S.2d 441 (3d Dep't 1996) (“Defendant has again moved
to vacate the judgment of conviction, this time contending,

49a

Appendix C

inter alia, that DNA testing should be ordered, pursuant to
CPL 440.30(1-a), because it could result in the discovery of
material evidence demonstrating his innocence, and that his
due process and equal protection rights were violated by the
prosecution’s failure to disclose material and exculpatory
evidence, which was only recently discovered by defendant’s
current counsel.”).

Second, because the underlying issues raised by
plaintiff's state court motion are identical to the issues
plaintiff is raising in the instant § 1983 action, plaintiff is
precluded from re-litigating these issues under New York’s
doctrine of collateral estoppel. Under New York law,
collateral estoppel applies if “(1) the issue in question was
actually and necessarily decided in a prior proceeding, and
(2) the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the first
proceeding.” Moccio, 95 F.3d at 200 (quoting Colon vy.
Coughlin, 58 F.3d 865, 869 (2d Cir. 1999)).

Plaintiff's state court motion asserted that, “if a DNA
test had been conducted on [the knife], and if the results had
been admitted in the trial resulting in the judgment, there
exists a reasonable probability that the verdict would have
been more favorable to [plaintiff].” N.Y. Crim. Proc. Law
§ 440.30(1-a). In other words, plaintiff claimed that the
results of the DNA testing would “have exonerated or tended
to exonerate” him. People v. Pugh, 288 A.D.2d 634, 635,
732 N.Y.S.2d 673, 674 (3d Dep't 2001). The state court ruled
against plaintiff on this issue. Plaintiff now seeks to re-litigate
this same issue in the instant § 1983 action, persisting in his
claim that DNA testing on the knife will lead to exculpatory

50a

Appendix C

evidence. See Complaint at 9-10 (“it is the contentions [sic]
of the plaintiff that if the weapon (the knife) is tested, it will
established [sic] indeed that it is not the weapon used in the
alleged crime herein. As stated previous[ly], the blood of
the victim Mrs. Mckithen [sic] is not present on the weapon
placed in evidence ayainst the plaintiff.”); id. at 11-12
(“Plaintiff contends that DNA testing on the Knife used in
the alleged crime herein, the blood of the victim is not present
on the knife placed in evidence against the plaintiff. This
DNA material, if the DNA does not match, he could not be
the assailant.”); Declaration in Opposition to Defendant’s
Motion [for] Summary Judgment § 3 (‘the herein plaintiff's
motion for the DNA testing, is timely and should not have
been denied by the Honorable Judge Latella based upon his
‘Court Room’ observation, that the ‘evidence upon which
plaintiff was convicted was overwhelming””).

In short, plaintiff's “federal claim succeeds only to the
extent that the state court wrongly decided the issues before
it.” Hachamovitch v. DeBuono, 159 F.3d 687, 694 (2d Cir.
1998) (quoting Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 25
(1987) (Marshall, J., concurring)). Because plaintiff was
given a full and fair opportunity to litigate this issue in the
state court proceeding, New York’s collateral estoppel
doctrine precludes him from litigating the issue a second time.
Consequently, pursuant to the Rooker-Feldman doctrine, this
Court lacks subject matter jurisdiction over plaintiff's
complaint under 42 U.S.C. § 1983 because the federal claim
plaintiff is raising is “inextricably intertwined” with the prior
State court determination.

Sla

Appendix C

The Court emphasizes the limited nature of this report
and recommendation. There has been no attempt to define
the parameters of any constitutional right to post-conviction
DNA testing as on these facts, the Court need not decide
whether such a right exists. The Court finds only that the
purported constitutional right as claimed by plaintiff would
require this Court to revisit the same issues previously
decided by the state court and therefore, this Court lacks
jurisdiction pursuant to the Rooker-Feldman doctrine.

CONCLUSION

It is therefore recommended that defendants’ motion to
dismiss be granted and that plaintiff's complaint under
42 U.S.C. § 1983 be dismissed for lack of subject matter
jurisdiction.

S2a
Appendix C

FILING OF OBJECTIONS TO THIS REPORT
AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties shall have ten
(10) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections (and
any responses to objections) shall be filed with the Clerk of
the Court. Any request for an extension of time to file
objections must be made to the District Judge within the ten
day period. Failure to file a timely objection to this Report
generally waives any further judicial review. Marcella v
Capital District Physician's Health Plan, Inc., 293 ¥.3d 42
(2d Cir. 2002); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989): see Thomas y. Arn, 474
U.S. 140 (1985).

SO ORDERED.
s/ Lois Bloom

Lois Bloom
United States Magistrate Judge

Dated: March 27, 2003
Brooklyn, New York

53a

APPENDIX D — STATE COURT DECISION,
DATED NOVEMBER 8, 2001

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS : CRIMINAL TERM :
PART K-9

THE PEOPLE OF THE STATE OF NEW YORK
-against-
FRANK McKITHEN,
Defendant.

MEMORANDUM
BY: LATELLA, J.

INDICT. NO.: 3964/92

DECISION AND ORDER

On May 19, 1993, defendant, Prank McKithen, was
convicted, after a jury trial, of Attempted Murder in the
Second Degree, Intimidating a Victim or Witness in the First
Degree, Reckless Endangerment in the First Degree, Criminal
Possession of a Weapon in the Fourth Degree, Assault in the
First Degree, and Resisting Arrest, and sentenced, as a second
violent felony offender, to consecutive terms of imprisonment
of from twelve and one-half to twenty five years for the
attempted murder conviction, eight to sixteen years for the
intimidating a witness conviction, and two and one-half to

S4a
Appendix D

five years for the reckless endangerment conviction by
Honorable Lawrence Finnegan. Defendant's conviction was
affirmed on appeal but his sentence was modified making
the sentences for attempted murder and intimidating a witness
concurrent, People v. McKithen, 221 AD2d 128 (2d Dept.
1995); and leave to appeal to the Court of Appeals was
denied. People v. McKithen, 88 NY2d 881 (1995).

Defendant now requests this court to order forensic DNA
testing of a knife recovered from the crime scene, pursuant
to CPL 440.30(1-a). The People contend that defendant has
failed to show that testing of this knife is warranted in this
case given the overwhelming proof of his guilt at trial. On
the basis of the moving papers submitted by the parties, the
Court finds that defendant’s claim is without merit and denies
his request for DNA testing.

At the outset, the Court notes that the evidence upon
which defendant was convicted of attempting to murder his
wife was overwhelming - consisting of the testimony of two
eye-witnesses and his inculpatory statement to police at the
time of his arrest that “{[He] should have killed the bitch.”
As defendant himself concedes, his defense at trial was not
one of misidentification. Rather, his claim at trial, and now,
is that the entire incident was a fabrication of his wife. In
that respect, he claims that fingerprint examination of a knife,
recovered at the scene and identified by the victim as having
been used by the defendant in his attack, would reveal that
he did not handle the knife. Clearly, to the extent that
defendant seeks to have the knife tested for fingerprints, his
request is untimely and would not constitute newly-
discovered evidence.

55a
Appendix D

To the extent that defendant seeks to have any blood,
which may or may not be found, on the knife, tested for the
presence of DNA, the Court finds that there is no reasonable
probability that the results of such testing would have resulted
in a verdict more favorable to defendant. See People v.
DeOliveira, 223 AD2d 766, (3d Dept. 1996); People v.
Tookes, 167 Misc2d 601 (N.Y. Sup., 1996). Defendant does
not dispute that the victim, his wife, was stabbed. The
presence or absence of her blood on the knife allegedly used
in the stabbing would have little or no probative value in
determining whether the wound was self-inflicted or inflicted
by the defendant. Thus, the results of any DNA testing would
not undermine the testimony of the People’s witnesses who
identified defendant as the victim’s knife-wielding assailant
Accordingly, defendant’s motion for forensic DNA testing,
pursuant to CPL §440.30(1-a), is denied.

This constitutes the decision and order of this Court.

Dated: Kew Gardens. New York
November &, 2001

s/ John Latella
JOLIN LATELLA, A.J.S.C.

S6a

APPENDIX E — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
DENYING PETITION FOR REHEARING
FILED JUNE 18, 2007

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
THURGOOD MARSHALL U.S. COURT HOUSE
40 FOLEY SQUARE
NEW YORK 10007

Catherine O’Hagan Wolfe

CLERK
Date:
Docket Number: 03-0168-pr
Short Title McKithen v. Queens County District
DC Docket Number: 02-cv-1670
DC: EDNY (BROOKLYN)
DC Judge: Honorable John Glecson

At a stated term of the United States Court of Appeals
tor the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the day of two thousand seven.

FRANK MCKITHEN,
Plaintiff-Appellant,
V

RICHARD RICHARD BROWN, DISTRICT ATTORNEY,
COUNTY OF QUEENS, New York.

Defendant-Appellee

57a
Appendix E

A petition for panel rehearing and a petition for rehearing
en banc having been filed herein by the appellant Frank
McKithen. Upon consideration by the panel that decided the
appeal, it is Ordered that said petition for rehearing is
DENIED.

It is further noted that the petition for rehearing en banc
has been transmitted to the judges for the court in regular
active service and to any other judge that heard the appeal
and that no such judge has requested that a vote be taken
thereon.

For the Court,
Catherine O’ Hagan Wolfe, Clerk

By: s/ Tracy W. Young
Motion Staff Attorney

58a

APPENDIX F — RELEVANT STATUTE
42 U.S.C. § 1983

Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated
or declaratory relief was unavailable. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of
Columbia.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1458%3A1. Public record. Not legal advice.