Osborne v. District Attorney's Office of the Third Judicial District ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM G. OSBORNE, 
Plaintiff-Appellant,
v. No. 04-35126
D.C. No.
DISTRICT ATTORNEY’S
OFFICE FOR THE THIRD JUDICIAL  CV-03-00118-A-
DISTRICT; SUSAN A. PARKES; RRB
ANCHORAGE POLICE DEPARTMENT; OPINION
WALT MONEGAN,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
July 14, 2005—Anchorage, Alaska
Filed September 8, 2005
Before: Alfred T. Goodwin, Melvin Brunetti, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Brunetti
12659
12662 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
COUNSEL
Robert C. Bundy, Dorsey & Whitney LLP, and Randall S.
Cavanaugh, Kalamarides & Lambert, Anchorage, Alaska, for
Appellant.
Nancy R. Simel, Assistant Attorney General, Anchorage,
Alaska, for Appellee.
OSBORNE v. DISTRICT ATTORNEY’S OFFICE 12663
OPINION
BRUNETTI, Circuit Judge:
William Osborne, an Alaska prisoner, appeals the district
court’s dismissal of his action, brought under 42 U.S.C.
§ 1983, to compel the State to release certain biological evi-
dence that was used to convict him in 1994 of kidnapping and
sexual assault. Osborne, who maintains his factual innocence,
hopes to subject the evidence, at his expense, to more sophis-
ticated DNA analysis than was available at the time of his
trial. He alleges that by refusing him post-conviction access
to the evidence, the State has violated his constitutional rights
under the First, Sixth, Eighth, and Fourteenth Amendments.
Without reaching the question of whether there exists a
constitutional right of post-conviction access to DNA evi-
dence, the district court dismissed Osborne’s action for failure
to state a claim. It ruled that because Osborne seeks to “set the
stage” for an attack on his underlying conviction, his § 1983
action is barred by Heck v. Humphrey, 512 U.S. 477 (1994),
and thus a petition for habeas corpus is his sole remedy. On
appeal, Osborne argues that the district court applied a more
restrictive standard than that enunciated in Heck, and submits
that success on the merits of his § 1983 claim would not “nec-
essarily imply” the invalidity of his state court conviction. We
agree, and accordingly reverse the judgment of the district
court and remand for further proceedings.
BACKGROUND
Following a March 1994 jury trial in Alaska Superior
Court, Osborne was convicted of kidnapping, assault, and
sexual assault, and was sentenced to 26 years’ imprisonment.
The charges arose from a March 1993 incident in which the
victim, a prostitute named K.G., after agreeing to perform fel-
latio on two clients, was driven to a secluded area of Anchor-
12664 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
age, raped at gunpoint, beaten with an axe handle, and shot
and left for dead.
K.G. later identified, from photo lineups, Osborne and Dex-
ter Jackson as her assailants. At their joint trial, abundant
physical evidence linked Jackson to the crime scene. Specifi-
cally, K.G. identified Jackson’s car as the one in which the
assault took place, and tire tracks at the scene matched those
made by Jackson’s car. K.G. also identified a pocketknife
found in Jackson’s car as hers, and ballistics tied a spent shell
casing found at the crime scene to a pistol found in Jackson’s
car. By contrast, aside from K.G.’s (and Jackson’s) identifica-
tion of Osborne as the second assailant, the State tied Osborne
to the assault based primarily on its analysis of biological evi-
dence recovered from the crime scene—namely, a used con-
dom, two hairs, and certain bloodied and semen-stained
clothing.
The State subjected the sperm found in the used condom to
“DQ Alpha” testing, an early form of DNA testing that, like
ABO blood typing, reveals the alleles present at a single
genetic locus. The results showed that the sperm had the same
DQ Alpha type as Osborne; however, this DQ Alpha type is
shared by 14.7 to 16 percent of African Americans, and can
thus be expected in one of every 6 or 7 black men. The State
also recovered two hairs from the crime scene: one from the
used condom, and another from K.G.’s sweatshirt. DQ Alpha
typing of these hairs was unsuccessful, likely because the
samples were too small for analysis. Both, however, were
“negroid” pubic hairs with the “same microscopic features” as
Osborne’s pubic hair. Tests performed on K.G.’s clothing
were inconclusive.
This evidence was submitted to the jury, which rejected
Osborne’s defense of mistaken identity and convicted him of
kidnapping, first-degree assault, and two counts of first-
degree sexual assault. His convictions were affirmed on direct
appeal. Jackson v. State, No. A-5276, at 6 (Alaska Ct. App.
OSBORNE v. DISTRICT ATTORNEY’S OFFICE 12665
1996) (unpublished decision). With his application for state
post-conviction relief still pending in the Alaska courts,
Osborne v. State, 110 P.3d 986 (Alaska Ct. App. 2005),
Osborne filed the instant § 1983 claim. His complaint alleges
that the District Attorney’s Office, District Attorney Susan
Parkes, the Anchorage Police Department, and Police Chief
Walt Monegan (collectively, the “State”) violated his federal
constitutional rights by denying him access to this evidence.
As relief, he seeks only “the release of the biological evi-
dence” and “the transfer of such evidence for DNA testing.”
Osborne intends to subject the evidence, at his expense, to
two forms of DNA testing: Short Tandem Repeat (“STR”)
analysis and Mitochondrial DNA (“mtDNA”) analysis.
Unlike the DQ Alpha analysis presented at trial, which looks
to only one genetic locus, STR analysis examines the alleles
at 13 genetic loci. It thus has the power to produce a far more
specific genetic profile—one shared by one in a billion peo-
ple, rather than one in 6 or 7. Moreover, if the hairs prove
unsuitable for STR analysis, Osborne intends to submit them
to mtDNA analysis, which, unlike STR analysis, is capable of
reaching a result on hair samples without intact roots or folli-
cles. Osborne asserts that neither STR nor mtDNA analysis
was available at the time of his trial.
The magistrate judge recommended dismissing Osborne’s
§ 1983 action, finding that because he seeks to “set the stage”
for an attack on his underlying conviction, under Heck a peti-
tion for habeas corpus is his sole remedy. The district court
accepted and adopted this recommendation, and dismissed the
action.
STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim
pursuant to Rule 12(b)(6), Decker v. Advantage Fund Ltd.,
362 F.3d 593, 595-96 (9th Cir. 2004), and will not affirm
unless it appears beyond doubt that the plaintiff can prove no
12666 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
set of facts in support of the claims that would entitle him to
relief, No. 84 Employer-Teamster Joint Council Pension Trust
Fund v. Am. West Holding Corp., 320 F.3d 920, 931 (9th Cir.
2003).
DISCUSSION
[1] This case requires us to consider, once again, “ ‘the
extent to which § 1983 is a permissible alternative to the tra-
ditional remedy of habeas corpus.’ ” Docken v. Chase, 393
F.3d 1024, 1027 (9th Cir. 2004) (quoting Preiser v. Rodri-
guez, 411 U.S. 475, 500 (1973)). As the Supreme Court has
recognized, state prisoners have two potential avenues to rem-
edy violations of their federal constitutional rights: a habeas
petition under 28 U.S.C. § 2254, and a civil suit under 42
U.S.C. § 1983. Heck, 512 U.S. at 480. Of course, while a
habeas petition may ultimately secure release, habeas relief is
often barred by procedural hurdles. By contrast, a § 1983 suit
will not result in release, but is generally not barred by a fail-
ure to exhaust state remedies. Id. at 480-81.
A. Preiser, Heck, and their Progeny
[2] The Court, like this circuit, has attempted to “har-
moniz[e] the broad language of § 1983, a general statute, with
the specific federal habeas corpus statute.” Id. at 491
(Thomas, J., concurring) (internal quotation marks omitted);
Docken, 393 F.3d at 1030-31 & n.6 (surveying “the line
between § 1983 and habeas” and concluding that “the reme-
dies are not always mutually exclusive”). These efforts began
in Preiser, where the Court held that “when a state prisoner
is challenging the very fact or duration of his physical impris-
onment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas cor-
pus.” Preiser, 411 U.S. at 500. They continued in Heck,
where the Court enunciated what has become known as the
“favorable termination” requirement: Where a prisoner’s
OSBORNE v. DISTRICT ATTORNEY’S OFFICE 12667
§ 1983 action, if successful, “would necessarily imply the
invalidity” of his conviction or sentence, it must be dismissed
“unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” Heck, 512 U.S. at
487; see also Docken, 393 F.3d at 1027-28. And they were
refined, in the wake of Heck, in cases most commonly involv-
ing prisoner challenges to state disciplinary and parole proce-
dures. See Docken, 393 F.3d at 1028 (chronicling cases).
[3] Most recently, the Court in Wilkinson v. Dotson, 125
S. Ct. 1242 (2005), reviewed Preiser, Heck, and their prog-
eny, and explained that:
These cases, taken together, indicate that a state pris-
oner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages
or equitable relief), no matter the target of the pris-
oner’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.
Id. at 1248. Dotson thus erases any doubt that Heck applies
both to actions for money damages and to those, like this one,
for injunctive relief, and clarifies that Heck provides the rele-
vant test to determine whether § 1983 is a permissible avenue
of relief for Osborne.
B. Osborne’s Claim
Although the district court recognized that Osborne raises
“a direct challenge to [neither] the fact nor duration of impris-
onment,” it ruled that his claim was Heck-barred because he
seeks to “set the stage” to attack his underlying conviction.
Though this circuit has not yet applied Heck in the context of
a § 1983 action seeking post-conviction access to DNA evi-
dence, the district court was not without guidance in assessing
Osborne’s claim. As it observed, three circuits—the Fourth,
12668 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
Fifth, and Eleventh—have previously confronted the very
question we now face. These opinions provide valuable guid-
ance to us as well.
[4] The State argues that Osborne seeks to use § 1983 as a
discovery device for a later habeas petition, and that allowing
him to do so would circumvent habeas procedural require-
ments and undermine the principles of comity and federalism
that Heck protects. It suggests that Osborne reads Heck’s
“necessarily implies” language too narrowly, and that it is
enough if—as the district court was persuaded—the § 1983
action seeks to “facilitate” or “set the stage” for an attack on
a conviction in a later proceeding. Put simply, the State con-
tends that if a claim can be brought in habeas, it must be
brought in habeas. Accordingly, it urges us to adopt the rea-
soning of the Fourth Circuit in Harvey v. Horan (Harvey I),
278 F.3d 370, 375-79 (4th Cir. 2002), in which a split panel
held, for much the same reasons, that § 1983 actions by pris-
oners seeking post-conviction access to biological evidence
are barred by Heck. See id. at 378 (“[W]e must examine
whether a state prisoner’s claim falls within the federal habeas
corpus statute. If it does, the claim cannot proceed under
§ 1983.”); see also Kutzner v. Montgomery County, 303 F.3d
339, 340 (5th Cir. 2002) (adopting Harvey I).
[5] Osborne argues, by contrast, that the appropriate ques-
tion under Heck is not whether he seeks to “set the stage” to
attack his underlying conviction, but rather whether success
on his § 1983 claim “necessarily implies” the invalidity of his
conviction. This question must be answered in the negative,
he submits, because success on his § 1983 claim guarantees
only access to the DNA evidence. Though he concedes that
he ultimately hopes to establish his innocence, he points out
that additional DNA testing may inculpate him, exculpate
him, or be inconclusive. And, even if the testing exonerates
him, release would come through an entirely different pro-
ceeding, either habeas or clemency. Osborne thus suggests we
adopt the reasoning of the Eleventh Circuit in Bradley v.
OSBORNE v. DISTRICT ATTORNEY’S OFFICE 12669
Pryor, 305 F.3d 1287, 1288 (11th Cir. 2002), cert. denied,
538 U.S. 999 (2003), which held, for these reasons, that a
§ 1983 action seeking post-conviction access to DNA evi-
dence is not Heck-barred. See also Harvey I, 278 F.3d at 382(King, J., concurring in part) (“That act alone—providing
Harvey with access to the biological evidence relating to his
rape conviction—does not . . . ‘necessarily imply’ the invalid-
ity of Harvey’s conviction or sentence.”); Harvey v. Horan
(Harvey II), 285 F.3d 298, 308-09 (4th Cir. 2002) (Luttig, J.,
respecting the denial of rehearing en banc) (criticizing the
Harvey I majority’s application of Heck).
[6] We agree with Osborne, and join the Eleventh Circuit
in holding that Heck does not bar a prisoner’s § 1983 action
seeking post-conviction access to biological evidence in the
government’s possession. It is clear to us, as a matter of logic,
that success in such an action would not “necessarily demon-
strate the invalidity of confinement or its duration.” Dotson,
125 S. Ct. at 1248. First, success would yield only access to
the evidence—nothing more. See Bradley, 305 F.3d at 1290(“[A prisoner] prevails in this lawsuit once he has access to
that evidence or an accounting for its absence.”). Second, fur-
ther DNA analysis may prove exculpatory, inculpatory, or
inconclusive; thus, there is a significant chance that the results
will either confirm or have no effect on the validity of
Osborne’s confinement. See Harvey II at 308 (“That these sci-
entific possibilities exist, in and of itself, suffices to establish
that the asserted right of mere access is not a direct, or for that
matter even an indirect, attack on one’s conviction or sen-
tence.”). And third, even if the results exonerate Osborne, a
separate action—alleging a separate constitutional violation
altogether—would be required to overturn his conviction. See
id.; Bradley, 305 F.3d at 1290.
C. Dotson
[7] Any remaining doubt as to the propriety of this
approach is removed, we believe, by the Court’s recent opin-
12670 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
ion in Dotson, which reads “necessarily” to mean “inevitably”
and rejects the notion that a claim which can be brought in
habeas must be brought in habeas. 125 S. Ct. at 1246-48. In
Dotson, the Court considered the § 1983 claims of two Ohio
prisoners who alleged ex post facto and due process violations
at their parole hearings, and who sought injunctive relief in
the form of new, constitutionally proper parole hearings. Id.
at 1245. Ohio argued that these claims were Heck-barred
because the prisoners “believe that victory on their claims will
lead to speedier release from prison,” and thus the suits, “in
effect, collaterally attack the duration of their confinement.”
Id. at 1245-46. The Court rejected this argument, saying:
The problem with Ohio’s argument lies in its jump
from a true premise (that in all likelihood the prison-
ers hope these actions will help bring about earlier
release) to a faulty conclusion (that habeas is their
sole avenue for relief).
Id. at 1246. This confirms our prior understanding, articulated
in Docken, 393 F.3d at 1030-31 & n.6, that § 1983 and habeas
are not always mutually exclusive. It also fatally undermines
the State’s insistence that a claim which can be brought in
habeas must be brought in habeas—a position embraced in
Dotson only by Justice Kennedy, the sole dissenter. 125 S. Ct.
at 1252 (Kennedy, J., dissenting).
The Court in Dotson also observed that Preiser’s implied
exception to § 1983 coverage exists “where the claim seeks—
not where it simply ‘relates to’—‘core’ habeas corpus relief,
i.e., where a state prisoner requests present or future release.”
Id. at 1247. And, it repeatedly emphasized that to be barred
under Heck, a § 1983 claim must, if successful, necessarily
demonstrate the invalidity of confinement or its duration. Id.
at 1247-48; see id. at 1248 (citing counsel’s concession below
that the claims would not “inevitably” lead to release). These
statements undercut considerably the State’s argument that
Osborne’s claim is Heck-barred even if he seeks only to “fa-
OSBORNE v. DISTRICT ATTORNEY’S OFFICE 12671
cilitate” or “set the stage” for a future attack on his convic-
tion.
Moreover, in response to Ohio’s argument that allowing
Dotson to sue under § 1983 would contravene principles of
comity and federalism, the Court said: Our earlier cases . . .
have already placed the States’ important comity consider-
ations in the balance, weighed them against the competing
need to vindicate federal rights without exhaustion, and con-
cluded that prisoners may bring their claims without fully
exhausting state-court remedies so long as their suits, if estab-
lished, would not necessarily invalidate state-imposed con-
finement. Thus, we see no reason for moving the line these
cases draw . . . .
Id. at 1249 (citation omitted). This critically weakens the
State’s comity argument.
Ultimately, the Dotson court found it key that neither pris-
oner sought an injunction ordering “immediate or speedier
release”; at most, success meant a new parole hearing, at
which the prisoners might—or might not—receive reduced
sentences. Id. at 1248. Thus, the Court concluded that “a
favorable judgment will not necessarily imply the invalidity
of their convictions or sentences.” Id. (citing Heck, 512 U.S.
at 487) (alterations and internal quotation marks omitted).
This reasoning applies with equal force and dictates the out-
come here.
We acknowledge that the Fourth Circuit, in Harvey I,
raised weighty concerns about comity, finality, and the proper
role of the courts in fashioning the contours of “new” consti-
tutional rights. 278 F.3d at 374-77. In vindicating these con-
cerns, however, the Harvey I majority, in our view, strayed
from the “necessarily implies” language adopted in Heck.
Thus, for the reasons first explained by Judges King and Lut-
tig in Harvey I and II, and later embraced by the Eleventh Cir-
cuit in Bradley, we hold that Heck does not bar a prisoner’s
12672 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
§ 1983 action seeking post-conviction access to biological
evidence in the government’s possession.
CONCLUSION
[8] For the above reasons, Osborne’s § 1983 action “should
be allowed to proceed, in the absence of some other bar to the
suit.” Heck, 512 U.S. at 487 (footnotes omitted). Accordingly,
we reverse the judgment of the district court and remand for
further proceedings. We express no opinion as to whether
Osborne has been deprived of a federally protected right, and
leave that question to the district court to address in the first
instance.
REVERSED and REMANDED.