557 U.S. 52 (2009)
In March 1993 two men driving in Anchorage, Alaska, picked up prostitute K.G. and took her to a deserted area near Earthquake Park.1 They forced her to perform sexual acts at gunpoint.2 They beat her with a wooden axe handle.3 They shot her in the head.4 They left her for dead after kicking snow over her body.5 K.G. survived.6 She flagged down a passing car.7 She provided police with a description that led to recovery of a spent shell casing, the axe handle, blood-stained clothing, and a blue condom at the scene.8
Six days later military police stopped Dexter Jackson.9 He was found with a matching gun and items belonging to K.G.10 Jackson identified William Osborne as the passenger.11 K.G. selected Osborne's photograph with some uncertainty.12 She later identified him at trial.13 An axe handle similar to the one recovered was found in Osborne's room on the military base.14 DQ Alpha DNA testing performed on sperm from the blue condom produced a genotype matching Osborne but excluding Jackson and another suspect.15 The genotype occurs in approximately 16 percent of black individuals.16
Osborne and Jackson were convicted by an Alaska jury of kidnapping, assault, and sexual assault.17 They were acquitted of attempted murder and an additional sexual-assault count.18 Osborne received a sentence of 26 years with 5 years suspended.19 His conviction was affirmed on direct appeal.20 In state postconviction proceedings Osborne sought RFLP DNA testing that had not been performed at trial.21 He claimed his counsel had been ineffective for failing to request it.22 The Alaska Court of Appeals rejected the claim after finding the decision strategic.23
Osborne also requested DNA testing under Alaska's postconviction relief statute.24 The state courts denied relief.25 They relied in part on Osborne's 2004 parole application in which he confessed to forcing K.G. to have sex at gunpoint, beating her, and covering her with snow.26 Osborne then filed suit in federal district court under 42 U.S.C. §1983 seeking access to the evidence for more discriminating STR DNA testing at his own expense.27 The district court initially dismissed the action.28 The Ninth Circuit reversed on the vehicle question.29 On remand the district court granted summary judgment to Osborne.30 The Ninth Circuit affirmed.31 The Supreme Court granted certiorari.32
Whether Osborne's claim for postconviction access to DNA evidence may be pursued in an action under 42 U.S.C. §1983 rather than a petition for a writ of habeas corpus?33
Yes. The Court assumed without deciding that Osborne could pursue his claim under 42 U.S.C. §1983.37 Osborne sought only access to the state's evidence for STR DNA testing at his own expense.38 Even if the testing exonerated him, he would still have to bring a separate suit or petition for clemency to invalidate his conviction.39
Every Court of Appeals to consider the question since Wilkinson v. Dotson has decided that access to DNA evidence can be sought under §1983 because it does not necessarily spell speedier release.40 This assumption allowed the Court to proceed to the due process question without resolving the difficult vehicle issue.41
The Court assumed without deciding that Osborne's claim for postconviction access to DNA evidence may be pursued in an action under 42 U.S.C. §1983.42
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Justice Alito agreed with the Court's resolution of the constitutional claim.43 He argued that the claim should have been brought in habeas corpus rather than under §1983.44 He emphasized principles of federalism and comity.45
Claims that would invalidate the judgment of conviction must be brought in habeas to allow state courts the opportunity to correct any constitutional violation.46 Osborne's complaint alleged a Brady violation.47 Such a claim by definition undermines guilt or punishment.48
It thus falls within the core of habeas.49 Allowing the §1983 action would evade the exhaustion requirements and discovery limits in federal habeas proceedings.50
Whether the Due Process Clause requires a state to provide a convicted prisoner access to biological evidence in its possession for the purpose of STR DNA testing?51
The Due Process Clause does not require states to provide postconviction access to DNA evidence for testing.52 Convicted prisoners have only a limited liberty interest in postconviction relief.53 A state's procedures are not fundamentally inadequate if they are similar to those used by other states and the federal government.54
No. Alaska provides a substantive right to postconviction relief based on newly discovered evidence establishing innocence by clear and convincing evidence.55 Such claims are exempt from time limits.56 Discovery is allowed in such proceedings.57 Osborne did not use those procedures.58
He filed a federal §1983 action without attempting to vindicate his state-created liberty interest through the available state process.59 The state courts had denied testing in part because of Osborne's confession in his parole application and other strong evidence of guilt.60 The procedures are not inconsistent with fundamental fairness.61 There is no freestanding substantive due process right to DNA evidence untethered from the state procedures.62
The Court rejected the extension of Brady to the postconviction context because a convicted defendant has different liberty interests than a presumptively innocent defendant at trial.63
The Due Process Clause does not require a state to provide a convicted prisoner access to biological evidence in its possession for the purpose of STR DNA testing.64
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Justice Alito provided two independent reasons for rejecting the constitutional claim beyond those in the majority opinion.65 A defendant who declines DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.66 This would allow defendants to game the system by forgoing testing when results might confirm guilt and then seeking it later with nothing to lose.67
Alito also stressed the practical burdens on state crime labs.68 These include risks of contamination and backlogs.69 Rules should be developed through democratic processes rather than constitutional mandate.70
Joined by Justice Ginsburg, Justice Breyer
Justice Stevens dissented on the ground that Osborne possessed a constitutional right of access to the evidence grounded in the Due Process Clause itself.71 The state's application of its postconviction procedures was fundamentally unfair in operation.72 The Alaska courts erroneously concluded that STR testing had been available at trial.73
The state had failed to articulate any concrete reason for denying access despite conceding that testing could conclusively establish innocence or guilt.74 Stevens emphasized the liberty interest in freedom from physical restraint.75 The arbitrariness of the state's refusal was clear when testing could be done at no cost and with uniquely precise results.76
Justice Souter dissented on the ground that Alaska failed to provide the effective procedure required by the Fourteenth Amendment for vindicating the liberty interest in demonstrating innocence that state law recognizes.77 He joined Part I of Justice Stevens's dissent.78 Osborne had satisfied the conditions the state itself placed on access.79
These included requesting testing by a method unavailable at trial and claiming factual innocence under oath in the federal proceeding.80 Souter concluded that the state's combination of inattentiveness and intransigence amounted to procedural unfairness violating due process.81