DLD-072                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-3167
                                      ___________

                                DANIEL LUKE SPUCK,
                                                Appellant

                                            v.

                     COMMONWEALTH OF PENNSYLVANIA
                     ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3-11-cv-00125)
                            District Judge: Kim R. Gibson
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
     or Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)
                                    December 22, 2011

             Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                             (Opinion filed January 4, 2012)
                                 _________________

                                      OPINION
                                  _________________

PER CURIAM

      Daniel Luke Spuck (“Spuck”) is a Pennsylvania state prisoner. He is serving a

sentence of eleven to twenty-two years, which term was imposed in 1996 after a jury

found him guilty of both third degree murder in the stabbing death of Michael Cramer,
and recklessly endangering another person in the stabbing of his wife, Cindy Spuck.

Cramer was Cindy Spuck’s former husband. Spuck’s conviction and sentence were

upheld on direct appeal, and his numerous applications for postconviction relief have to

date been unsuccessful.

       In May 2011, Spuck initiated this civil rights action under 42 U.S.C. § 1983.1 In

his amended complaint, Spuck alleged that the Commonwealth of Pennsylvania (“the

Commonwealth”) has unlawfully prohibited him from “re-test[ing] the DNA and Blood

Evidence to allow the plaintiff to prove his innocence.” Spuck alleged that his

“Innocence and Defense Theory is that Mr. Cramer and Mrs. Spuck were struggling and

that Mrs. Spuck was raped by Mr. Cramer earlier that night or evening and it was Mrs.

Spuck whom [sic] murdered Mr. Cramer, whom [sic] had a .23 alcohol level.” Spuck

claimed that the Commonwealth’s denial of DNA testing demonstrates that it is

“violating and continuing to violate the Plaintiff’s . . . Fourteenth Amendment Right of

Due Process.”

       The District Court dismissed Spuck’s amended complaint for failure to state a

claim upon which relief could be granted. The District Court reasoned as follows: “Like

the first complaint, the amended complaint alleges error in the state court’s denial of

DNA testing, but not a denial of due process. This Court has no jurisdiction to correct




1
 Spuck’s original complaint was incorrectly labeled on the District Court’s docket as a
petition for writ of habeas corpus.
                                             2
mere errors of state law.” Spuck appealed.2

         Contrary to the reasoning of the District Court, in both his original and amended

complaints Spuck explicitly tethered his factual allegations to a due process claim.

Nevertheless, we will summarily affirm the judgment of the District Court because it

correctly determined that Spuck failed to state a due process claim upon which relief

could be granted.3

         In Skinner v. Switzer, --- U.S. ---, 131 S. Ct. 1289 (2011), the Supreme Court of

the United States held that a convicted state prisoner may request via § 1983 the DNA

testing of crime-scene evidence. Id. at 1298.4 The basis for such a request does not

derive from any substantive due process right secured by the Constitution’s Fourteenth

Amendment. See id. at 1299 (citing Dist. Attorney’s Office for Third Judicial Dist. v.

Osborne, 557 U.S. 52, ---, 129 S. Ct. 2308, 2322 (2009)). Instead, the request must be

premised on the violation of a prisoner’s procedural due process rights. However, we

have noted that “procedural due process does not require that a district attorney disclose

all potentially exculpatory evidence for postconviction relief.” Grier, 591 F.3d at 678

(emphasis in original). As made clear by Osborne and Skinner, a procedural due process


2
 We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
3
  Summary affirmance is proper when an appeal fails to present a substantial question.
See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). We “may affirm
the District Court’s judgment on any basis supported by the record.” Id.
4
    We held as much prior to Skinner in Grier v. Klem, 591 F.3d 672, 678 (3d Cir. 2010).
                                              3
claim will only lie where a State’s procedures for postconviction relief—and in particular

those procedures in place for consideration of DNA-testing requests—are so flawed as to

be “fundamentally unfair or constitutionally inadequate.” Id. at 679; see also Skinner,

131 S. Ct. at 1293 (noting that Osborne “left slim room for the prisoner to show that the

governing state law denies him procedural due process”).

       Liberally construing, and accepting as true, the allegations in Spuck’s amended

complaint, as we must, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), it is clear that

Spuck has failed to state a viable procedural due process claim based on the

Commonwealth’s alleged refusal to conduct DNA testing on evidence from the Cramer-

Spuck crime scene. In particular, we discern no attempt by Spuck to explain how

Pennsylvania’s specific procedures for postconviction DNA testing5 are inadequate as a

matter of federal law.

       Accordingly, we will summarily affirm the judgment of the District Court.

Spuck’s motions for appointment of counsel and for “amending of newly discovered

evidence” are denied. Spuck’s request for a certificate of appealability is denied as

unnecessary.


5
  In July 2002, the Pennsylvania legislature amended the State’s Post Conviction Relief
Act (PCRA) to permit requests for postconviction DNA testing. See Com. v. Williams,
899 A.2d 1060, 1062-63 (Pa. 2006) (citing 42 Pa. Cons. Stat. Ann. § 9543.1). The
allegations in Spuck’s amended complaint shed no light on whether the PCRA court
considered § 9543.1 in denying his most recent PCRA petition. Spuck merely alleges
that “[t]he motion petition [sic] to test/ retest the blood and DNA evidence was denied . . .
on April 20, 2011.”

                                             4
