     Case: 16-41338         Document: 00514380803         Page: 1      Date Filed: 03/09/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                         No. 16-41338
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              March 9, 2018

WILLIAM RAY JACOBS,                                                          Lyle W. Cayce
                                                                                  Clerk
                 Plaintiff – Appellant,

v.

DISTRICT ATTORNEY JIM WHEELER, Wood County District Attorney,

                 Defendant – Appellee.



                     Appeals from the United States District Court
                           for the Eastern District of Texas
                                USDC No. 6:13-CV-973


Before DAVIS, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       William Ray Jacobs appeals to this Court for the second time in his
efforts under 42 U.S.C. § 1983 to compel forensic DNA testing of evidence
pertaining to his conviction for aggravated sexual assault. We previously
vacated the district court’s 28 U.S.C. § 1915A(b)(1) dismissal without prejudice
of Jacobs’ § 1983 action and remanded. 1 After remand, however, the district
court dismissed Jacobs’ § 1983 action without prejudice on a different basis —



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1   Jacobs v. Wheeler, 630 F. App’x 262, 267 (5th Cir. 2015).
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                                         No. 16-41338
lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For
the reasons set forth below, we again VACATE and REMAND.
       In 1997, Jacobs was convicted of aggravated sexual assault and
sentenced to life in prison. 2 He filed motions in state court pursuant to Texas
Code of Criminal Procedure art. 64.01 seeking post-conviction DNA testing.
The state court denied Jacobs’ motions. 3 In 2013, Jacobs filed this § 1983
action requesting an order compelling DNA testing on all biological evidence
in this case and specifically asking that the short-tandem-repeat (STR) method
be used to conduct the testing. In amended pleadings and objections, Jacobs
made clear that he was not requesting that such testing be done on certain hair
samples that were recovered, but that such “testing [be done] on the biological
material obtained in scrapings, smears and swabbings from the victim.” 4
       However, as we determined in our prior opinion, the magistrate judge
and district court did not address the biological evidence obtained from these
sources. 5 Although the state court found that there was no other biological
material suitable for DNA testing, we declined to take judicial notice of the
state court’s factual determination. 6 We concluded “that Jacobs ha[d] arguably
stated a claim that the Texas procedures were inadequate to vindicate his
substantive rights,” 7 and, consequently, vacated the district court’s dismissal
and remanded. 8


       2   See Jacobs v. State, 951 S.W.2d 900 (Tex. App.—Texarkana 1997, pet. ref’d).
       3   See Jacobs, 630 F. App’x at 264 (citing Jacobs v. State, 115 S.W.3d 108 (Tex. App.—
Texarkana 2003, pet. ref’d) (first motion for post-conviction DNA testing) and Jacobs v. State,
294 S.W.3d 192 (Tex. App.—Texarkana 2009, pet. ref’d) (third motion for post-conviction
DNA testing); see also Jacobs v. State, 181 S.W.3d 487 (Tex. App.—Texarkana 2005, pet.
ref’d) (second motion for post-conviction DNA testing).
         4 Jacobs, 630 F. App’x at 266.
         5 Id.
         6 Id. at 267.
         7 Id. (citing Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52,

69 (2009)).
         8 Id.

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                                   No. 16-41338
      After remand, the defendant, District Attorney Jim Wheeler, filed a
second motion to dismiss. Wheeler argued that Jacobs lacked standing to
assert his § 1983 action because he had not alleged that he filed a motion in
state court seeking DNA testing under the 2011 amendments to Article 64.01.
Wheeler asserted that Jacobs’ request for DNA testing, therefore, should be
dismissed for lack of jurisdiction pursuant to Rule 12(b)(1). Jacobs, however,
contended that he had filed a motion in state court on June 20, 2012, after the
2011 amendments became effective.              Wheeler subsequently submitted
documents from the state appellate court reflecting that Jacobs’ appeal of the
denial of his 2012 motion (his fourth motion for post-conviction DNA testing)
had been dismissed for want of jurisdiction because Jacobs filed a notice of
appeal before the trial court issued a written order. Wheeler argued that
because Jacobs did not correctly raise his claims in state court, Jacobs failed to
exhaust his state remedies and lacked standing.
      Because “[t]he state appellate courts ha[d] not had the opportunity to
consider [Jacobs’] claim on the merits,” the district court determined that
Jacobs’ action was “not ripe for consideration.” Therefore, it granted Wheeler’s
motion to dismiss for lack of jurisdiction under Rule 12(b)(1) and dismissed
Jacobs’ § 1983 complaint without prejudice. Jacobs timely appealed.
      During the pendency of this appeal, however, Jacobs filed a fifth motion
for DNA testing pursuant to Article 64.01. 9 The state appellate court affirmed
the denial of Jacobs’ motion “[f]or the same reasons explained in [its] previous
opinions.” 10 Assuming without deciding that the state appellate court was
required to consider Jacobs’ request for DNA testing on the merits after the
2011 amendments in order for the district court to have jurisdiction, we


      9  See Jacobs v. State, No. 06-16-00206-CR, 2017 WL 1033710 (Tex. App.—Texarkana
2017, pet. ref’d) (unpublished).
       10 Id.

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conclude that such requirement has been met. Furthermore, as we determined
in our prior opinion, 11 the record in this matter does not permit a
determination whether the STR method of DNA testing can be performed on
any of the biological evidence that exists in this case. Specifically, it is unclear
at this point what kind of other biological evidence exists and whether that
other evidence is suitable for STR DNA testing.
       Based on the foregoing, we vacate the district court’s dismissal of Jacobs’
§ 1983 action and remand this matter for further proceedings consistent with
this opinion. 12 Jacobs’ motion for appointment of counsel is denied.
       VACATED and REMANDED; MOTION DENIED.




       11Jacobs, 630 F. App’x at 266.
       12Because we have determined that the district court has jurisdiction in this matter,
and that its dismissal must be vacated, we do not address Jacobs’ arguments that the district
court abused its discretion in denying his motion for default judgment and failed to comply
with our prior remand order.
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