Opposition Brief — Brown v. McKithen, 128 S. Ct. 1218 (2008) (No. 07-350)

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FILED

G) JAN i & 2008

No. 07-350 OFFICE OF THE CLERK

PHE 7, U.S.

IN THE

Supreme Court of the United States

RICHARD BROWN,

Petitioner,

FRANK MCKITHEN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

PAUL A. ENGELMAYER

Counsel of Record

CHRISTOPHER J. MEADE

JANET R. CARTER

ANNE K. SMALL

JULIA M. LIPEZ

WILMER CUTLER PICKERING

HALE AND DORR LLP

399 Park Avenue

New York, NY 10022

(212) 230-8800

TABLE OF CONTENTS

Page

EN tg ET ree mee ere a ease eID BS ASS 2

REASONS FOR DENYING THE PETITION................... 10

J. THERE IS NO ACTIVE CIRCUIT SPLIT ON THE

CUE TION FRAT cc cisscnssovesscescsneveteverssvecsimesveienseieete 10

II. THE DECISION BELOW IS CORRECT. ............-ccsecocsccccecees 12

III. EVEN IF THE QUESTION PRESENTED WERE

CERTWORTHY, THIS CASE, IN ITS CURRENT

POSTURE. 10 A BAD FAI sccetccisntcnnssavcsvininisncwsnvsitscane 13

er ai PIII inccncctesasisatiossnipcnteneibtnolaicidercaiesnsnallesiipeitessniheaaatumetodeimamemaaaate 14

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Alley v. Key, 431 F. Supp. 2d 790 (W.D. Tenn. 2006)............ 11

Boyle v. Mayer, 46 F. App’x 340 (6th Cir. 2002)................ 9,11

Bradley v. Pryor, 305 F.3d 1287 (11th Cir. 2002),

cert. denied, 588 U.S. 999 (2008)..........ccccccscssesscessees passim

Brady v. Maryland, 373 U.S. 83 (19638) ........cccsseeseeeereeeeeees 12

Dotson v. Wilkinson, 329 F.3d 463 (6th Cir. 2003),

| passim

Exxon Mobil Corp. v. Saudi Basic Industries

Ss SE 6h, SN CIEE) coveccecreccrsereeeesecocesseeevesevenceveesersnees 8

Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002)....3, 5, 9, 10, 11

Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002)................00 4,9

Heck v. Humphrey, 512 U.S. 477 (1994) ........cseseseeeceeees passim

Kutzner v. Montgomery County, 303 F.3d 339 (5th

iia a sacticdsnsenemeresencessceues 4,10, 11, 12

Kyles v. Whitley, 514 U.S, 419 (19995)................cessecssssssceeseeees 12

Osborne v. District Attorney’s Office for the Third

Judicial District, 423 F.3d 1050 (9th Cir. 2005)......... 6, 12

People v. McKithen, 634 N.Y.S.2d 128 (App. Div.

EEE SEES EE 7

People v. McKithen, 668 N.E.2d 427 (N.Y. 1996)..............0000 7

Preiser v. Rodriguez, 411 U.S. 475 (1978) ........ eee passim

Savory v. Lyons, 469 F.3d 667 (7th Cir. 2006) ............... 6, 7, 12

Summers v. Hidson, 206 F. App’x 321 (5th Cir.

2006), application for stay of execution pend-

ing cert. denied, No. 06A427 (Oct. 25, 2006) ............. 11, 12

United States v. Bagley, 473 U.S. 667 (1985) oe. eee eeeeeeeees 12

STATUTES AND RULES

EES 2

alin cinssansswssessnrveseociresversessvovseeerenses passim

N.Y. Crim. Proc. Law § 440.30(1-a)..........csccsessesssssceseeeeseens 7,8

Tee ol seiineesceneveveyererenenssaversovenerseversssres 12

IN THE

Supreme Court of the United States

No. 07-350

RICHARD BROWN,

Petitioner,

FRANK MCKITHEN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Petitioner asks the Court to grant certiorari to decide

whether a suit seeking access to evidence for DNA testing

falls into the exception to Section 1983 established by

Preiser v. Rodriguez, 411 U.S. 475 (1973), Heck v. Hum-

phrey, 512 U.S. 477 (1994), and their progeny. There was

once a shallow circuit split on that issue: the Eleventh Cir-

cuit held that such suits are not barred by Heck while the

Fourth and Fifth Circuits reached the opposite conclusion.

That split, however, did not survive Wilkinson v. Dotson,

544 U.S. 74 (2005). After Dotson, as the Second Circuit ex-

plained in the decision below, the approach taken by the

Fourth and Fifth Circuits is “no longer tenable.” Pet. App.

28a n.15. Moreover, in an “emerging consensus,” 7d., every

circuit to have weighed in on the question since Dotson has

concluded that a suit like McKithen’s may proceed under

Section 1983. The petition for certiorari should be denied.

STATEMENT

1. Section 1983 provides a cause of action for anyone

subjected “to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws” by a per-

son acting under color of state law. 42 U.S.C. § 1983. A ha-

beas corpus suit typically also alleges that a state aector—the

prisoner’s custodian—is causing a deprivation of rights by

subjecting the prisoner to continued incarceration in viola-

tion of the Constitution. See 28 U.S.C. § 2254(a). Conse-

quently, most habeas corpus challenges will also, prima facie,

state a claim under Section 1983. Habeas corpus, however,

is subject to familiar preconditions and _ limitations—

including exhaustion of state remedies—that do not apply to

Section 1983. Aware that prisoners with habeas corpus chal-

lenges could circumvent these restrictions by styling their

suits as Section 1983 actions, this Court announced an excep-

tion to Section 1983 in Preiser v. Rodriguez, 411 U.S. 475

(1973). It held that the claims of the prisoners in that case—

alleging “illegal physical confinement” and requesting relief

that would result in “release from physical custody”—could

only be brought in habeas. Jd. at 487, 500.

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

further developed the test for distinguishing cases that must

be brought in habeas from those permitted under Section

1983. The prisoner in Heck sued prosecutors and a police

investigator for damages while his state-court conviction

was still pending on direct appeal. He alleged that the de-

fendants had conducted an unlawful investigation leading to

his arrest, had knowingly destroyed exculpatory evidence,

and had used an illegal voice identification procedure at his

trial. Jd. at 479. Taking as established that these claims

“challeng[ed] the legality of his conviction,” id. at 480 n.2, the

Court affirmed the district court’s dismissal of the action and

held that “when a state prisoner seeks damages in a § 1983

suit, the district court must consider whether a ju‘ gment in

favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must

be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” I/d. at

487. To illustrate, the Court noted that a claim seeking

damages for an allegedly unreasonable search and seizure

may be brought under Section 1983 because, in light of “doc-

trines like independent source and inevitable discovery, and

especially harmless error, such a § 1983 action, even if suc-

cessful, would not necessarily imply that the plaintiff's con-

viction was unlawful.” Jd. at 487 n.7 (citations omitted; em-

phasis in original).

2. In 2002, with Heck as their key guidepost, three cir-

cuits considered whether a suit seeking access to evidence

for DNA testing was cognizable under Section 1983. Apply-

ing the plain terms of the Heck test, the Eleventh Circuit

concluded that such a suit was cognizable. See Bradley v.

Pryor, 305 F.3d 1287 (11th Cir. 2002). The court observed

that Heck turns only: on whether success “necessarily im-

pl{ies]” invalidity of the conviction or sentence. Jd. at 1291

(quoting Heck, 512 U.S. at 487). Because a plaintiff prevails

in a suit seeking access to evidence for DNA testing “once

he has access to th[e] evidence or an accounting for its ab-

sence,” and because “[nJothing in that result necessarily

demonstrates or even implies that his conviction is invalid,”

Heck was no bar. Id. at 1290.

Two other circuits reached a different result. The

Fourth Circuit, divided 2-1 on this issue, addressed the Heck

question by focusing on the plaintiffs ultimate purpose:

Harvey|[’s] ... attempt to avoid Heck fails. [He] 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 re-

sults will be favorable and will allow him to bring a

subsequent motion to invalidate his conviction.

Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002) (Harvey

I).' The Fifth Circuit adopted that reasoning in a brief per

' As the court below explained, “[s]ubsequent developments appear

to have made it impossible for the Fourth Circuit to reconsider the Har-

curiam decision. See Kutzner v. Montgomery County, 303

F.3d 339, 340-41 (5th Cir. 2002).’ .

3. Two years later, the Court was asked to clarify the

breadth of the exception to Section 1983 in a related context.

A’ circuit split had emerged over whether Heck barred a

Section 1983 suit that challenged the constitutionality of pa-

role procedures and sought new, properly-conducted proce-

dures, but did not challenge the result of the parole hear-

ing—the denial of parole. The unsuccessful state officials in

one of these cases, Dotson v. Wilkinson, 329 F.3d 463 (6th

Cir. 2003) (en banc), petitioned for certiorari. They argued

that, by clarifying the scope of Heck, the Court would not

only resolve the parole-hearing split but also provide guid-

ance on, inter alia, the DNA-evidence split. See Pet. 27-28,

Wilkinson v. Dotson, No. 03-287 (Aug. 18, 2003). The peti-

tion described the split between the Eleventh and Fourth

Circuits and observed that “[aJt the root of [this] conflict[] is

a disagreement about the scope of Heck’s ‘necessarily im-

”

vey I panel’s decision.” Pet. App. 19a n.10. After Harvey petitioned for

rehearing en banc, a Virginia court ordered, pursuant to state law, that he

be allowed to have the evidence subjected to DNA testing. See Harvey v.

Horan, 285 F.3d 298, 304 (4th Cir. 2002) (Harvey IT) (Luttig, J., respecting

the denial of rehearing en banc). Concluding that this action mooted the

rehearing petition, Judge Luttig nevertheless filed an opinion explaining

his view that a suit like Harvey’s must be permitted under Section 1983

(and calling the panel majority’s contrary conclusion “fairly clearly”

wrong). See id. at 304, 307-08 (“I do not believe it even arguable that a

post-conviction action merely to permit access to evidence for the purpose

of ... DNA testing ‘necessarily implies’ invalidity of the underlying con-

viction.”’).

? After the Eleventh Circuit’s decision in Bradley, holding that Heck

did not bar the plaintiffs suit, the Alabama Attorney General petitioned

for certioran. He argued that review was warranted by the Eleventh

Circuit’s disagreement with the Fourth and Fifth Circuits. See Pet. 13,

Pryor v. Bradley, No. 02-1237 (Feb. 20, 2003). This Court denied certio-

rari. Pryor v. Bradley, 538 U.S. 999 (2003).

plies’ language. Granting certiorari here would thus assist

the circuits in resolving [this] conflict{] as well.” Jd.’

This Court granted certiorari and reaffirmed that Heck

does not bar a Section 1983 suit unless success in that suit

would necessarily imply the invalidity of the conviction or

sentence. It summarized Preiser and its progeny as follows:

“These cases, taken together, indicate that a state prisoner’s

§ 1983 action is barred ... —no matter the relief sought

(damages or equitable relief), no matter the target of the

prisoner's suit (state conduct leading to conviction or inter-

nal prison proceedings)—7f success in that action would nec-

essarily demonstrate the invalidity of confinement or its du-

ration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (em-

phasis in original). Applying that test, the Court concluded

that the two respondents’ Section 1983 suits were allowable

because “a favorable judgment will not ‘necessarily imply

the invalidity of [their] conviction[s] or sentence[s].”’ Jd. at

82 (quoting Heck, 512 U.S. at 487 (alteration in Dotsom)).

Rather, success for one prisoner “means at most new eligi-

bility review, which at most will speed consideration of a

new parole application,” id.; and, for the other, it “means at

most a new parole hearing at which Ohio parole authorities

may, in their discretion, decline to shorten [the] prison

term,” id. In other words, “{bJecause neither prisoner’s

claim would necessarily spell speedier release, neither lies at

* An amicus curiae group of sixteen States—led by Alabama, whose

officials were the losing parties in Bradley (the Eleventh Circuit decision

that permitted a DNA-evidence suit to proceed under Section 1983)—

connected Dotson even more directly to the DNA-evidence cases. At the

petition stage, they urged the Court to grant certiorari to resolve “linger-

ing questions” regarding the scope of Heck, stressing among those ques-

tions the split between Bradley and the Fourth Circuit’s decision in Har-

vey I. States of Alabama, et al., Amicus Pet. 2, 4-7, 11, Wilkinson v.

Dotson, No. 03-287 (Sept. 22, 2003). And at the merits stage, they ac-

knowledged that the Dotson question and the DNA question went hand in

hand. States of Alabama, ct al., Amicus Br. 7-8 n.1, Wilkinson v. Dotson,

No. 03-287 (July 19, 2004) (urging Court to adopt Harvey I's reasoning and

hold that any suit is Heck-barred if it was brought “as the first step to

ward” gaininy earlier release).

‘the core of habeas corpus.” Jd. (quoting Preiser, 411 U.S. at

489).

This ut specifically rejected the argument that the

suit was ba: ced by Heck merely because it was a first step in

a process that the prisoners hoped would lead to an early

release. It noted the State’s contention that the suits were

barred “because [the prisoners] believe that victory on their

claims will lead to speedier release from prison,” 544 U.S. at

78, and announced:

The problem with Ohio’s argument lies in its jump

from a true premise (that in all likelihood the pris-

oners hope these actions will help bring about ear-

lier release) to a faulty conclusion (that habeas is

their sole avenue for relief). [But] the connection

between the constitutionality of the prisoners’ pa-

role proceedings and release from confinement is

too tenuous here to achieve Ohio’s legal door-

closing objective.

Id. Thus, the fact that release might be a prisoner’s ultimate

goal does not preclude that prisoner from bringing a Section

1983 claim “where success in the civil rights suit would not

necessarily vitiate the legality of ... state confinement.” /d.

at 81.

4. Following Dotson, three courts of appeals have ad-

dressed the question presented, and all three concluded that

Heck is no bar to a Section 1983 suit seeking evidence for

DNA testing. First, in Osborne v. District Attorney’s Office

for the Third Judicial District, 423 F.3d 1050, 1054-55 (9th

Cir. 2005), the Ninth Circuit analyzed the decisions of the

Fourth, Fifth and Eleventh Circuits, and concluded that only

Bradley—the Eleventh Circuit decision permitting a suit

like McKithen’s to proceed under Section 1983—had cor-

rectly applied Heck’s “necessarily implies” test. “Any re-

maining doubt as to the propriety” of Bradley’s approach,

the court continued, was “removed ... by the Court’s recent

opinion in Dotson, which reads ‘necessarily’ to mean ‘inevi-

tably’ and rejects the notion that a claim which can be

brought in habeas must be brought in habeas.” Osborne, 423

F.3d at 1055 (emphasis in original). Next,'the Seventh Cir-

cuit reached the same result. See Savory v. Lyons, 469 F.3d

667, 671-72 (7th Cir. 2006) (concluding that suit was cogniza-

ble under Section 1983 because “[t]he exception to § 1983

jurisdiction is a narrow one” and “Savory will not be re-

leased from prison, nor will his sentence be shortened, if he

successfully gains access to physical evidence for DNA test-

ing’). Finally, in the decision below, the Second Circuit

agreed with the Seventh and Ninth Circuits, as well as with

the earlier Eleventh Circuit decision.

5. Respondent Frank McKithen was convicted in May

1993 of attempted murder and related offenses. The victim

was McKithen’s estranged wife, Rose McKithen. At trial,

she identified McKithen as her assailant and identified a

kitchen knife shown to the jury as the weapon he used to

stab her. The victim was the only eyewitness to the stab-

bing itself. McKithen did not present any witnesses or evi-

dence and instead simply argued that the prosecution had

failed to carry its burden of establishing beyond a reasonable

doubt that he was the assailant.‘ The jury found McKithen

guilty, and his conviction was affirmed on direct appeal.

People v. McKithen, 634 N.Y.S.2d 128 (App. Div. 1995). The

Court of Appeals denied review. People v. McKithen, 668

N.E.2d 427 (N.Y. 1996).

In 2001, McKithen moved in New York State court for

an order compelling the State to perform DNA testing on

the knife that had been admitted into evidence at his trial.

He brought his claim, pro se, pursuant to a New York stat-

ute granting a limited right to forensic DNA testing. See

N.Y. Crim. Proc. Law § 440.30(1—a)(a) (court should order

* Petitioner baselessly insists that McKithen “never claimed mis-

identification of himself.” Pet. 7. In the same sentence, petitioner states

that McKithen never denied that the victim suffered a stab wound. /d.

Maintaining innocence while acknowledging that the victim was stabbed

amounts to the position that another person was the assailant (or that the

wound was self-inflicted)—-and thus that the victim did not testify truth-

fully when she said that it was McKithen who stabbed her.

DNA testing of evidence if it determines “that ifa 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”). The State court

held that this standard was not satisfied in McKithen’s case

and denied relief. People v. McKithen, Indict. No. 3964/92

(N.Y. Sup. Ct. Queens County Nov. 8, 2001) (Mem.). The

Appellate Division denied leave to appeal. People v.

McKithen, No. 2001-10847 (App. Div. Feb. 13, 2002).

6. In 2002, again proceeding pro se, McKithen filed a

Section 1983 action in federal district court alleging that pe-

titioner had violated his constitutional post-conviction right

to access evidence for DNA testing. Petitioner moved to

dismiss the claim on four grounds: (1) the district court

lacked jurisdiction under Rooker-Feldman; (2) McKithen’s

claim was collaterally estopped in light of the earlier State

court determination denying the Section 440.30 motion; (3)

McKithen was precluded by Heck from proceeding under

Section 1983; and (4) in any event, McKithen had failed to

allege a violation of any legitimate constitutional right. See

McKithen v. Brown, No. 02-CV-1670, slip op. 2 (E.D.N.Y.

Mar. 28, 2003) (Report & Recommendation of Bloom, M.J.).

The district court, accepting the recommendation of a magis-

trate judge, dismissed the complaint under Rooker-Feldman

alone. McKithen v. Brown, No. 02-CV-1670 (E.D.N.Y. Apr.

18, 2003).

McKithen appealed, and the Second Circuit reversed. It

held that the broad interpretation of Rooker-Feldman ap-

plied by the district court had not survived Exxon Mobil

Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).

See Pet. App. 10a-17a. It then rejected petitioner’s res judi-

cata argument, and left the collateral estoppel argument for

the district court to consider on remand. Id. 28a-33a. Peti-

tioner does not challenge any of these rulings.

The Second Circuit also rejected petitioner’s argument

that Heck stood as a bar to McKithen’s Section 1983 suit. It

observed that the bar applies only when success in the suit

“necessarily” demonstrates the invalidity of the conviction

or sentence. Pet. App. 19a-26a. Success in McKithen’s suit,

by contrast, would result only in “an injunction requiring

that the knife be made available for DNA testing”—and

“(sluch testing ... ‘necessarily implies nothing at all about

the plaintiff's conviction.” Jd. 26a (quoting Harvey v. Horan,

285 F.3d 298, 308 (4th Cir. 2002) (Harvey ID) (Luttig, J., re-

specting the denial of rehearing en banc) (emphasis in Har-

vey II). Success would not necessarily demonstrate the in-

validity of his conviction or sentence, the court explained, for

two reasons: first, the results of testing might be inculpa-

tory, inconclusive, or insufficiently exculpatory. Jd. Second,

even if the results were exculpatory, McKithen would then

have to present those results as the basis for relief in “an

entirely separate lawsuit,” presumably a habeas petition, in

order to secure release from custody. /d. In so holding, the

court noted that the Seventh, Ninth, and Eleventh Circuits

had permitted prisoners to bring claims like McKithen’s un-

der Section 1983. Id. 18a.

The court observed that the Fourth and Fifth Circuits

(and also the Sixth Circuit, in an unpublished decision, Boyle

v. Mayer, 46 F. App’x 340 (6th Cir. 2002)) had, prior to

Dotson, reached the opposite conclusion. Pet. App. 19a. But

it stressed that the ground on which those circuits’ decisions

rested was rejected in Dotson: “(T]he Fourth Circuit (whose

reasoning the Fifth Circuit--and, arguably, the Sixth Cir-

cuit—adopted shortly after Harvey I was decided) relied

heavily on the assumed beliefs and motivations of the § 1983

plaintiff. This approach is no longer tenable after Dotson.”

Id. 27a-28a n.15 (citation omitted). Hence, it “comes as no

surprise” that “courts in every circuit to have weighed in on

the issue after Dotson,” including the Seventh and Ninth

Circuits, “have rejected Harvey I, and instead sided with the

Eleventh Circuit. Today we join this emerging consensus.”

Id. 28a n.15.

In addition to the question of collateral estoppel, the

court left other significant issues for the district court to

consider on remand. It declined to rule on the question of

the existence and the contours of a constitutional right of

access to evidence for DNA testing, in light of the “fact-

intensive nature of the inquiry,” and “the need to approach

the issue cautiously.” Jd. 34a.

REASONS FOR DENYING THE PETITION

In seeking certiorari, petitioner argues, first, that the

decision below conflicts with decisions of the Fourth, Fifth,

and Sixth Circuits, and, second, that it is incorrect under

Wilkinson v. Dotson, 544 U.S. 74 (2005). Neither argument

has merit. To the extent that the circuit court cases on

which petitioner relies did conflict with the decision below,

Dotson rejected the grounds on which they rested. Any pre-

Dotson circuit conflict is thus no longer viable—a point con-

firmed by the fact that all the courts of appeals to weigh in

on the question since Dotson have agreed that suits like

McKithen’s are not barred by Heck. Petitioner is thus left

seeking error correction where no error exists. Moreover,

even if the issue warranted this Court’s review, this case is a

singularly poor vehicle. The Second Circuit left several po-

tentially-dispositive issues for the district court to consider

on remand, and an unfavorable decision on any one of those

would moot the Heck question.

I. THERE IS NO ACTIVE CIRCUIT SPLIT ON THE QUESTION PRE-

SENTED

Petitioner’s claim of a circuit split disregards the impact

of Dotson. Prior to Dotson, there was a 2-1 split. The Elev-

enth Circuit had applied Heck’s test without embellishment,

asking whether success in a suit seeking access to evidence

for DNA testing would necessarily imply the invalidity of

the plaintiff's conviction or sentence. See Bradley v. Pryor,

305 F.3d 1287, 1290-91 (11th Cir. 2002), cert. denied, 538 U.S.

999 (2003). The Fourth and Fifth Circuits had engrafted

onto Heck a new standard that focused not on the implica-

tions of success but rather on the plaintiffs ultimate pur-

pose. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002)

(Harvey I); Kutzner v. Montgomery County, 303 F.3d 339,

340-41 (5th Cir. 2002) (per curiam).

Dotson rejected the latter approach, confirming that the

Heck exception to Section 1983 is as narrow as Heck’s ian-

guage suggests and rejecting reliance on the plaintiffs ulti-

mate purpose. Finding a Section 1983 suit barred by Heck

simply because the plaintiff hoped that success would ulti-

mately lead to earlier release, the Court held, amounted to

“jump[ing] from a true premise ... to a faulty conclusion.”

Dotson, 544 U.S. at 78. Moreover, it announced that holding

despite being urged by several States to adopt the Fourth

Circuit’s ultimate-purpose analysis. See States of Alabama,

et al., Amicus Br. 7-8 n.1, Dotson, No. 03-287 (July 19, 2004);

see also supra n.3. Thus, as the Second Circuit pointed out,

the approach taken by the Fourth and Fifth Circuits “is no

longer tenable after Dotson.” Pet. App. 28a n.15.°

The Fourth and Fifth Circuits do not yet appear to have

considered the impact of Dotson on Harvey I or Kutzner

(nor the Sixth Circuit its impact on Boyle). But, in light of

Dotson’s clear mandate, there is no reason to conclude that

they will adhere to their prior decisions when they do so.°

*The decision below cited another case alongside the Fourth and

Fifth Circuits’ decisions: Boyle v. Mayer, 46 F. App’x 340 (6th Cir. 2002)

(unpub.). However, Boyle was not properly part of the pre Dotson circuit

conflict. Aside from being unpublished, the court hedged between the

unexplained assertion that “Boyle plainly challenged the validity of his

criminal convictions and the fact or duration of his continued confinement”

and the proviso that “insofar as [Boyle’s] claims do not implicate the valid-

ity of his convictions, ... [they] would not rise to the level of a constitu-

tional violation” and so would not state a claim under Section 1983. /d. at

340-41. The court’s conclusion was thus that the plaintiff lost whether or

not his claims were barred by Heck. Cf. Alley v. Key, 431 F. Supp. 2d 790,

795 (W.D. Tenn. 2006) (whether Section 1983 suit seeking evidence for

DNA testing is barred by Heck “appears to be one of first impression in

this Circuit”). Moreover, even if Boyle really had sided with Harvey J and

Kutzner, it was also undercut by Dotson, as the court below noted. See

Pet. App. 27a 28a n.15.

° The Fifth Circuit has cited Kutzner for the relevant portion of its

Heck discussion in one unpublished decision since Dotson was decided.

See Summers v. Eidson, 206 F. App’x 321 (5th Cir. 2006), application for

stay of execution pending cert. denied, No. 06A427 (Oct. 25, 2006). That

decision did not discuss Dotson, and it did not reanimate the erstwhile

Indeed, Dotson’s impact is confirmed by the fact that

every court of appeals to have weighed in on the question

subsequently has concluded that Heck is no bar to a suit like

McKithen’s. See Osborne v. District Attorney’s Office for the

Third Judicial Dist., 423 F.3d 1050, 1054-55 (9th Cir. 2005);

Savory v. Lyons, 469 F.3d 667, 671-72 (7th Cir. 2006); Pet.

App. 18a-27a. These cases establish an “emerging consen-

sus.” Jd. 28a n.15. Accordingly, the circuit conflict that ex-

isted prior to Dotson is no longer viable and does not provide

grounds for a grant of certiorar’

Il. THE DECISION BELOW IS CORRECT

The Second Circuit’s decision applied the plain terms of

Heck and Dotson and correctly concluded that McKithen’s

suit may proceed under Section 1983. Preiser, Heck and

split. Summers alleged in his Section 1983 suit that the prosecution had

failed, during his trial, to disclose material exculpatory evidence in viola-

tion of Brady v. Maryland, 373 U.S. 83 (1963). Although Summers only

sought disclosure of the evidence, rather than his release from incarcera-

tion, success on that suit nevertheless necessarily would have demon-

strated the invalidity of his conviction. That is so because in order to sat-

isfy the materiality element of a Brady claim, an inmate must demon-

strate a “reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985) (plurality opinion); id. at

685 (White, J., concurring in part and concurring in the judgment). And

because showing an impact on the trial is an element of the claim, “once

there has been Bagley error ..., it cannot subsequently be found harm-

less.” Kyles v. Whitley, 514 U.S. 419, 436 (1995). Consequently, establish-

ing a constitutional violation under Brady would have required Summers

to demonstrate every single element needed to show that his conviction

was invalid.

The constitutional wrong alleged in McKithen’s suit, by contrast, is a

violation of his post-conviction right to access evidence for DNA testing.

Demonstrating that he is entitled to such post-conviction access would not

necessarily demonstrate that his conviction is invalid.

Finally, even if, contrary to fact, Summers conflicted with Bradley

or with the uniform line of post-Dotson, DNA-testing decisions—Osborne,

Savory, and Mc Kithen—review would still not be warranted. Summers is

unpublished and non-precedential, see 5th Cir. R. 47.5.4, and did not ad-

dress the impact of Dotson on Kutzner.

their progeny only bar a Section 1983 action “if success in

that action would necessarily demonstrate the invalidity of

confinement or its duration.” Dotson, 544 U.S. at 82 (empha-

sis in original). If McKithen is successful in his suit, all he

will win is access to the knife for purposes of subjecting it to

DNA testing. That success demonstrates nothing at all

about the validity of his conviction or sentence.

Petitioner acknowledges that Dotson is dispositive, Pet.

13-15, but he mistakenly believes that it resolves the issue

presented in his favor. First, he maintains that the Second

Circuit’s decision “sever[s] the § 1983 petition from its ulti-

mate objective.” Jd. 14. But Dotson specifically held that

having release from incarceration as an ultimate goal does

not bar a Section 1983 suit. See 544 U.S. at 78; see also Pet.

App. 27a n.15 (the approach that focuses on “the plaintiffs

motives in bringing the suit{] was laid to rest by the Su-

preme Court in Dotson”). Second, petitioner insists that,

because McKithen’s suit is “an initial step” in a path he

hopes will end in his release from incarceration, his claim

“lies at the ‘core of habeas corpus.” Pet. 16 (quoting Preiser,

411 U.S. at 489). But again, Dotson held precisely the oppo-

site: “Because neither prisoner’s claim would necessarily

spell speedier release, neither lies at ‘the core of habeas cor-

pus.” 544 U.S. at 82 (citations omitted); see also id. at 81

(“Preiser found an implied exception to § 1983’s coverage

where the claim secks—not where it simply ‘relates to’—

‘core’ habeas corpus relief].]”).. Dotson resolves every aspect

of petitioner’s argument in McKithen’s favor, leaving noth-

ing to warrant this Court’s review.

Ill. EVEN IF THE QUESTION PRESENTED WERE CERTWORTHY,

THIS CASE, IN ITS CURRENT POSTURE, IS A BAD VEHICLE

Were this Court inclined to consider the issue presented

before the Fourth and Fifth Circuits confront Dotson’s im-

pact, it should at least await a final decision to review. In

the present case, the Second Circuit merely reversed the

district court’s grant of a motion to dismiss on jurisdictional

grounds and remanded for consideration of four issues. It

instructed the district court to determine whether

McKithen’s claim is barred by collateral estoppel. It ordered

the court to determine whether there is a constitutional

right of access to evidence for DNA testing, and if so, to con-

sider the standard for finding a constitutional deprivation.

And it instructed the court to consider whether McKithen is

constitutionally entitled to access the knife on the particular

facts of his case. Pet. App. 32a-39a. An unfavorable answer

on any one of those questions would obviate the issue of

McKithen’s ability to proceed under Section 1983. Con-

versely, if McKithen is successful in the district court and on

appeal, the government will have another opportunity to

seek this Court’s review.

CONCLUSION

This Court should deny the petition for certiorari.

Respectfully submitted,