                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         OCTOBER 31, 2007
                            No. 07-10736                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D. C. Docket No. 05-22481-CV-FAM

HUNTLEY H. THOMPSON,


                                                 Plaintiff-Appellant,

                                 versus

BILL MCCOLLUM,
Attorney General,
KATHERINE FERNANDEZ RUNDEL,
Miami-Dade County State Attorney,
TOBY L. WILSON,
MICHAEL HASS,


                                                 Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                           (October 31, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

       Appellant Huntley H. Thompson (“Thompson”), a Florida prisoner

proceeding pro se, appeals the district court’s sua sponte dismissal of his 42 U.S.C.

§ 1983 civil rights complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure

to state a claim. On appeal, Thompson argues that the district court erred in

dismissing his § 1983 complaint seeking access to DNA evidence because he did

not seek to invalidate his state conviction.1 Thompson further argues that the DNA

samples he sought could be exculpatory evidence. Thompson claims that the

district court erred in failing to consider whether the state of Florida had failed to

disclose favorable DNA evidence at his trial. Thompson finally claims that the

district court erred by relying on Grayson v. King, 460 F.3d 1328 (11th Cir. 2006),

cert. den., 127 S. Ct. 1005 (2007), because Thompson previously had asserted his

actual innocence, unlike the plaintiff in Grayson.

       We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Hughes v. Lott, 350 F.3d 1157,

1159-60 (11th Cir. 2003). A district court must dismiss an in forma pauperis



       1
         Thompson was convicted in Florida state court and sentenced to life imprisonment for
burglary with assault, kidnaping with a firearm, armed robbery, sexual battery, and aggravated
battery.

                                               2
proceeding at any time if it determines that the action is frivolous or fails to state a

claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

Civil rights actions pursuant to § 1983 require a plaintiff to show that a defendant

deprived him of a federally protected right or privilege while acting under color of

state law. 42 U.S.C. § 1983. The standard for determining whether a complaint

states a claim upon which relief may be granted is the same whether under

§ 1915(e)(2)(B) or Fed.R.Civ.P. 12(b)(6) or (c), and a reviewing court must view

all facts in the complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th

Cir. 1997). We have held that “[a] complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the prisoner can prove no set of

facts in support of his claim which would entitle him to relief.” Harmon v. Berry,

728 F.2d 1407, 1409 (11th Cir. 1984) (per curiam). “Pro se pleadings are held to a

less stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). Issues not raised on appeal are abandoned. Mathews v. Crosby, 480 F.3d

1265, 1268 n.3 (11th Cir. 2007), pet. for cert. filed, 76 U.S.L.W. 3050 (U.S. July

23, 2007) (No. 07-86).

      In Florida, whoever aids or abets a felony against the state is a principal in

the first degree and may be charged and punished as such, regardless of whether he



                                            3
is actually or constructively present at the commission of the offense. Fla. Stat.

§ 777.011 (1997).

       Although a prisoner’s § 1983 claim that effectively challenges his

conviction is barred, a § 1983 action is not barred where the action, “even if

successful, will not demonstrate the invalidity of any outstanding criminal

judgment against the plaintiff.” Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct.

2364, 2372 (1994). As such, we have held that a prisoner is permitted to request

DNA evidence that has been used at his trial under § 1983 because obtaining such

evidence does not “necessarily demonstrate[ ] or even impl[y] that his conviction is

invalid.” Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002).

      In Grayson, a case with facts very similar to the instant case, we held that

the plaintiff had no constitutional right to DNA evidence under Brady v. Maryland,

373 U.S. 83, 83 S. Ct. 1194 (1963), and Mathews v. Eldridge, 424 U.S. 319, 96 S.

Ct. 893 (1976). Grayson, 460 F.3d at 1339-1340, 1341-1342. Grayson had

confessed to, and was convicted of, capital murder during a burglary. Id. at 1332,

1334. During the burglary, Grayson had repeatedly raped the homeowner. Id. at

1332. Twenty years after his conviction, and after direct and collateral attacks on

his sentence, Grayson filed a § 1983 action seeking access to biological evidence

used at his trial. Id. at 1334-1335. Grayson alleged that the defendants violated



                                          4
his Fourteenth Amendment due process rights by refusing to turn over the

evidence, and that such a refusal deprived him of the chance to show his actual

innocence. Id. at 1335. Grayson, however, had never specifically alleged actual

innocence. Id.

       We held that a plaintiff suing for biological evidence under § 1983 must

show that the denial of post-conviction access to the biological evidence deprived

him of a federally protected right. Id. at 1336. We did not conclude that there

could never be a post-conviction right of access to DNA evidence, but stated that if

such a right existed, it would be under “extraordinary circumstances.” Id. at 1339,

1342. We observed that “[t]he time for fair trial arguments [had] long since

passed” because the plaintiff had exhausted direct and collateral attacks on his

sentence, and there was no authority for the proposition that Brady extended

beyond trial to post-conviction matters. Id. at 1337-1338. We concluded that

Grayson could not state a valid claim under Brady because (1) the evidence he

sought was available at trial, (2) he received a fair trial, (3) the application of

Brady was inappropriate because Grayson was not trying to ensure a fair trial, and

(4) he could not show a reasonable probability that the result of the proceeding

would have been different had the evidence been disclosed to him at trial. Id. at

1339-1340.



                                            5
      Additionally, we held that Grayson could not show that he had a procedural

due process right to DNA evidence under Mathews. Id. at 1341-1342. We

assumed that Grayson had a residual, continuing liberty interest in avoiding

application of the death penalty, but concluded that several other interests

outweighed his private liberty interest. Id. at 1341. Specifically, we determined

that Grayson could not show that he was entitled to DNA evidence under Mathews

because (1) the risk of an erroneous deprivation of his potential liberty interest was

low and the probable value of his post-conviction access to the DNA was slight;

and (2) “the government ha[d] a strong interest in the finality of a duly adjudicated

criminal judgment[].” Id. at 1341-1342.

      Here, Thompson claims that he was deprived of his Fourteenth Amendment

due process rights by the denial of access to DNA evidence, and he cites to Brady

in making this argument. Therefore, liberally construing his complaint,

Thompson, like the plaintiff in Grayson, makes these claims pursuant to both

Brady and Mathews.

      With respect to the Brady component of Thompson’s claim, we conclude

from the record that the district court did not err in dismissing Thompson’s

complaint because he can not show “extraordinary circumstances” giving him a

right to post-conviction DNA evidence. Specifically, although Thompson, unlike



                                           6
the plaintiff in Grayson, continues to allege his actual innocence, he can not show

that he has a right to post-conviction DNA evidence under Brady for several

reasons. First, Thompson concedes that the evidence he sought was available at

trial by alleging that the evidence had been collected and tested before trial, and

that an expert testified about the evidence at his trial. Second, despite Thompson’s

arguments to the contrary, there is no evidence in the record that he did not receive

a fair trial. Third, as pointed out in both the state court order denying his

Fla.R.Crim.P. 3.853 motion for DNA evidence and the second magistrate’s report,

the availability of further DNA testing would not show a reasonable probability

that the result in Thompson’s criminal trial would have been different if the DNA

evidence had been disclosed to him at trial. Specifically, the evidence showed that

Thompson was present during the crimes, and testing already had shown that

Thompson’s DNA was not present in the victim. The absence of Thompson’s

DNA does not, however, show that he is actually innocent because (1) he was

identified by both victims as present during the crime, and under Florida law, could

have been charged as a principal, see Fla. Stat. § 777.011 (1997); or (2) he may

have assisted in some manner that did not leave DNA evidence.

      Further, with respect to the procedural due process component of his claim,

Thompson failed to state a claim under Mathews because the risk of an erroneous



                                           7
deprivation of his potential liberty interest was low. First, Thompson already had

received a fair trial and had exhausted appellate and collateral attacks on his

conviction and sentence. Thus, he had an extensive opportunity to preserve his

liberty interest in being free from state custody. Moreover, Thompson filed in state

court a Rule 3.853 motion seeking access to DNA evidence, such that he was not

entitled to further process in the form of having the district court compel Florida to

provide further testing. Second, the value of additional DNA testing is low

because, as noted above, Thompson could have committed the crime without

having left any DNA evidence and could also have been found guilty as a principal

based on the fact that he aided and abetted the offense. Finally, the state of Florida

has a strong interest in the finality of Thompson’s conviction and sentence.

      Thompson filed a motion for reconsideration which the district court denied.

In his notice of appeal, Thompson does not mention that he is appealing the district

court’s order denying his motion for reconsideration. Therefore, Thompson

abandons any argument relating to this motion for reconsideration. See Matthews,

480 F.3d at 1268 n. 3. Accordingly, we affirm the district court’s judgment of

dismissal.

      AFFIRMED.




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