Thomas Bonner v. Montgomery Co

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-2106
_____________
THOMAS BONNER,
Appellant
v.
MONTGOMERY COUNTY;
RISA VETRI FERMAN, Montgomery County District Attorney
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-10-cv-02055
District Judge: The Honorable John R. Padova
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 13, 2012
Before: SCIRICA, RENDELL, and SMITH, Circuit Judges
(Filed: January 17, 2012)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
In 1986, a jury convicted Thomas Bonner of murdering August Bennick. In
2009, Bonner filed a petition under the Post Conviction Relief Act, 42 Pa. Cons.
Stat. §§ 9541-9546, seeking access to certain evidence for the purpose of DNA
testing. The Court of Common Pleas of Montgomery County, Pennsylvania,
denied the petition. Bonner appealed to the Pennsylvania Superior Court which
affirmed.
In May of 2010, Bonner filed a civil rights action under 42 U.S.C. § 1983against Risa Vetri Ferman, the District Attorney of Montgomery County, in the
United States District Court for the Eastern District of Pennsylvania.1 He alleged
that Ferman‟s policy of categorically opposing any request for DNA evidence
violated his rights under the First Amendment to “meaningful access to state and
federal courts where he could prove his actual innocence” and under the
Fourteenth Amendment to both substantive and procedural due process. In the ad
damnum clause of his complaint, Bonner prayed for an order compelling the
production of the requested DNA evidence so it could be tested.
Ferman filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). During a hearing on the motion, Bonner withdrew both his First
Amendment claim and his procedural due process claim. He advised the District
Court that he was asserting only the substantive due process claim. The Court
granted Ferman‟s motion to dismiss, concluding that Bonner‟s substantive due
1
In Skinner v. Switzer, the Supreme Court held “that a postconviction claim for
DNA testing is properly pursued in a § 1983 action[,]” not a habeas petition.
__ U.S. __, __, 131 S. Ct. 1289, 1293 (2011).
2
process claim failed as a matter of law in light of the Supreme Court‟s decisions in
Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289 (2011), and District Attorney’s
Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S. Ct. 2308(2009).
Bonner appealed.2 He does not take issue with the District Court‟s
determination that he withdrew his claims alleging violations of his First
Amendment and procedural due process rights. Rather, he argues that the District
Court erred by relying on dicta in Skinner, and that neither that precedent nor
Osborne precludes his substantive due process claim.
We disagree. In Osborne, the Supreme Court acknowledged the petitioner‟s
alternate argument seeking relief under the substantive due process clause and
went on to address it on the merits. 557 U.S. at __, 129 S. Ct. at 2322. The Court
declined the invitation to “recognize a freestanding right to DNA evidence” and
concluded “that there is no such substantive due process right.” Id. The Court also
explained that “[t]here is no long history of such a right” of access to state
evidence to perform DNA testing, id., “and „[t]he mere novelty of such a claim is
reason enough to doubt that „substantive due process‟ sustains it,‟” id. (quoting
Reno v. Flores, 507 U.S. 292, 303 (1993)). Subsequently, in Grier v. Klem, 591
2
The District Court had jurisdiction under 28 U.S.C. § 1331 and 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We conduct de novo review of an order
granting a motion to dismiss under Rule 12(b)(6). Phillips v. Cnty. of Allegheny,
515 F.3d 224, 230 (3d Cir. 2008).
3
F.3d 672, 678 (3d Cir. 2010), relying upon Osborne, we acknowledged that the
petitioner had “no substantive due process right to access DNA evidence.” The
following year, the majority in Skinner pointed out that “Osborne rejected the
extension of substantive due process” to the area of DNA testing “and left slim
room for the prisoner to show that the governing state law denies him procedural
due process.” 131 S. Ct. at 1293 (citing Osborne, 129 S. Ct. at 2322). This
authority is binding and Bonner‟s attempt to distinguish it is unavailing.
Accordingly, we will affirm the judgment of the District Court.
4