[Excerpt] "Undoubtedly, there are innocent people in prison. Moreover, it is probable that the wrongly convicted, if given a chance to conduct DNA testing on evidence used against them at trial, could establish their innocence. Many federal courts recently have denied prisoners’ requests for post conviction DNA testing because the courts have reasoned that the prisoners are seeking release from confinement. This ignores the fact that prisoners who seek to prove their innocence through DNA testing necessarily must embark upon a two-step process, which courts should bifurcate and consider separately. The first step, which I call the “procurement phase,” occurs when the initial request is made by a prisoner to secure any biological evidence within the state’s control. If the prisoner’s request is denied, a claim is filed against the state prosecutor or sheriff for violating the prisoner’s due process right to the evidence, and thus it is properly brought under § 1983.1 During this phase, the prisoner is not seeking release from confinement; rather, he merely is seeking injunctive relief to obtain and conduct DNA testing on evidence that is within the state’s control. The second step, or the “exoneration phase,” occurs after the results of the DNA testing exclude the prisoner’s DNA from the crime scene. During this phase, the prisoner seeks to use the test results to demonstrate his actual innocence and be released from confinement. While there is some debate as to the proper federal remedy for claims of actual innocence,2 requests made during the exoneration phase are properly brought as habeas petitions.3 The Fourth,4 Fifth,5 Sixth,6 and Eleventh Circuit Court of Appeals7 have all recently reviewed district court adjudications of prisoners’ § 1983 actions to obtain DNA testing. In each case, the prisoner was in the procurement phase and was not seeking release from prison. The Eleventh Circuit stood alone in granting the prisoner’s request; the others, citing the Supreme Court decisions Heck v. Humphrey8 and Preiser v. Rodriguez,9 denied relief because they reasoned that the prisoners, in reality, were attempting to assert claims of actual innocence, which are properly brought as habeas petitions.10 Legislation currently is pending in both the Senate11 and the House of Representatives12 that creates a uniform procedure for adjudicating claims for post-conviction DNA testing. The legislation is unclear, however, about whether state prisoners may continue to file § 1983 actions directly in federal court to obtain such testing. This ambiguity, unless revised before enacted, will lead to inconsistent judicial interpretation and further confuse the already unpredictable handling of requests for genetic testing. Part II of this Comment will examine the reasoning behind recent circuit court decisions concerning prisoners’ rights to post-conviction genetic testing. I will explain that a bifurcated approach is the appropriate paradigm for reviewing these claims and demonstrate why three of the four circuit courts erred in their analyses. This part also will review the Supreme Court decisions cited by the circuit courts and explain why the Fourth, Fifth, and Sixth Circuits’ reliance on those decisions was misplaced. Part III will address how the Supreme Court should reconcile the current circuit split concerning the rights of prisoners to post-conviction DNA testing. This part confronts skeptics’ concerns of protecting finality, respecting federalism, and flooding the courts with prisoner suits. It concludes that neither the abstention doctrines nor the Prison Litigation Reform Act preclude federal court review of these claims and that a due process right to genetic testing should be recognized. Lastly, I will explain that the sole remedy currently available for prisoners with favorable DNA test results is executive clemency and I will argue why clemency is an insufficient solution. Finally, Part IV will analyze briefly the pending congressional legislation and explain that its language, as written, leaves doubt as to whether Congress intends to preclude § 1983 actions to prisoners seeking DNA testing. This ambiguity, unless corrected, will further exacerbate federal courts’ confusion regarding the proper analysis of such claims."
Dylan Ruga, Federal Court Adjudication of State Prisoner Claims for Post-Conviction DNA Testing: A Bifurcated Approach, 2 Pierce L. Rev. 35 (2004), available at http://scholars.unh.edu/unh_lr/vol2/iss1/5