                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0108p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                               X
                                                -
 DARRYL M DURR,
                                                -
                              Plaintiff-Appellant,
                                                -
                                                -
                                                     Nos. 10-3463/3466
          v.
                                                ,
                                                 >
                                                -
                     Defendants-Appellees. -
 RICHARD CORDRAY, et al.,
                                                -
                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Columbus.
               No. 10-00312—George C. Smith, District Judge.
                                Submitted: April 17, 2010
                            Decided and Filed: April 18, 2010
  Before: BATCHELDER, Chief Judge; SUHRHEINRICH and COLE, Circuit Judges.

        SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER,
C.J., joined. COLE, J., concurs in the result only.

                                   _________________

                                        OPINION
                                   _________________

        SUHRHEINRICH, Circuit Judge. Darryl Durr, an Ohio death row inmate, filed a
civil rights action under 42 U.S.C. § 1983 challenging the State of Ohio’s denial of access
to certain physical evidence for purposes of DNA testing. Durr is scheduled to be executed
on April 20, 2010. On April 16, 2010, the district court deemed the action a second or
successive habeas petition under 28 U.S.C. § 2244(b)(3)(A) and transferred it to this Court
for consideration. Alternatively, the district court denied Durr’s motion for a temporary
restraining order and preliminary injunction staying his execution upon concluding that none
of Durr’s claims had a likelihood of success on the merits.




                                             1
Nos. 10-3463/3466         Durr v. Cordray, et al.                                        Page 2


        We hold that the district court erred in deeming this action a second or successive
petition. However, we nonetheless deny Durr’s motion for a temporary restraining order or
a preliminary injunction staying his execution, albeit on different grounds from those stated
by the district court — we find that even if Durr were to prevail on his § 1983 claims, he
would not be entitled to this remedy.

                                             I.

        A 16-year-old girl named Angel Vincent disappeared on or about January 31, 1988.
On April 30, 1988, the body of a young white female, “in an advanced state of
decomposition,” was found in Brookside Park in Cleveland, Ohio, and an autopsy was
performed:

                A deputy coroner testified that the only clothing found on the victim
        was a pink sweater and a pair of white tennis shoes. The pink sweater had
        been pushed up well above the victim's breast area. An initial external
        examination determined the body to be that of a young white female, who
        was in an advanced state of decomposition. The body was heavily infested
        with maggots and the body's eyes and ears had been lost. There was also
        prominent evidence of animal activity about the inguinal and vulval regions
        of the body, and in and about the thighs. According to the deputy coroner,
        the decomposition was consistent with three months exposure.
                After examining the body, the deputy coroner concluded that the
        cause of death was homicidal violence. Since the body was so badly
        decomposed, the deputy coroner could not determine whether ligature
        marks, scrapes or tears indicating strangulation were present. There was no
        damage noted to the internal cartilaginous structures of the neck. The deputy
        coroner declined, however, to rule out strangulation as a cause of death since
        damage to these structures is not always present in young strangulation
        victims due to the flexibility of these structures. In addition, because the
        body was so severely infested with bacteria, testing for the presence of acid
        phosphates and spermatozoa was inconclusive.

Ohio v. Durr, 568 N.E.2d 674, 677 (Ohio 1991).

        In September 1988, Deborah Mullins, a former girlfriend of Durr’s, told the police
that Durr had murdered Angel Vincent. The State indicted Durr and a jury convicted him
of aggravated murder, in violation of Ohio Rev. Code § 2903.01; kidnapping, in violation
of § 2905.01; aggravated robbery, in violation of § 2911.01; and rape, in violation of
§ 2907.02. The trial court sentenced Durr to death. The state courts affirmed Durr’s
Nos. 10-3463/3466             Durr v. Cordray, et al.                                             Page 3


                                                                                                         1
conviction and sentence on direct appeal and denied Durr’s state post-conviction appeals.
Durr sought and was denied federal habeas relief. See Durr v. Mitchell, 487 F.3d 423
(6th Cir. 2007), cert. denied, 552 U.S. 1261 (2008).

         On August 6, 2009, Durr filed an application for DNA testing pursuant to Ohio
Revised Code section 2953.71 et seq. in the state trial court. The State agreed to test any
DNA from oral, rectal, and vaginal smears taken from the victim at the autopsy, and the
court ordered the testing. On September 23, 2009, the lab issued a final report on the
DNA testing of these samples, in which it reported that there was no DNA present on
which DNA analysis could be conducted.

         However, the State objected to the DNA testing of the victim’s necklace, arguing
that it was subject to possible contamination and any results would be inconclusive. The
court held an evidentiary hearing on October 5, 2009, to decide if the necklace should
also be subject to DNA testing. The State presented two witnesses. Frank Kost,
Cuyahoga County Deputy Clerk of Courts, testified that he is the supervisor of an area
known as the “dead files” storage room, where transcripts and trial exhibits are stored
after an appeal. Kost testified that transcripts and trial exhibits are a public record, and
may be examined by lawyers and the public. Kost further testified that the necklace was
stored in an unsealed envelope. Dr. Linda Benzinger, a DNA Quality Assurance
Administrator, also testified for the state. Both parties stipulated that she is an expert in
the field of forensic DNA analysis. Benzinger stated that she was familiar with Ohio’s
legal requirements for post-conviction DNA testing. Benzinger testified that because
“the body of Angel Vincent . . . was somewhat decomposed” she “wouldn’t expect to
find DNA that would have been applied during the offense . . . because the bacteria and
fungi from that decomposed body would have destroyed that DNA as well.” She added
that “[i]t’s telling that the vaginal, anal and oral samples, no DNA at all was obtained
from those. We went ahead and tested for Y-STR’s, but the quantity testing showed us
that not even any DNA from the victim was obtained.” She also testified that, given the

         1
          For a detailed procedural history of Durr’s state criminal action, see Durr v. Mitchell, 487 F.3d
423 (6th Cir. 2007), reh’g and reh’g en banc denied (Sept. 7, 2007), cert. denied, 128 S. Ct. 1652 (2008).
Nos. 10-3463/3466        Durr v. Cordray, et al.                                    Page 4


nature of its storage, the necklace could contain the DNA of anyone who had recently
come into contact with it. So, Benzinger explained: given that the necklace was on the
victim’s decomposing body for three months, it was unsuitable for DNA testing; and
given the unpreserved state of the necklace in storage and the lack of chain of custody,
any DNA results would be wholly unreliable. Durr did not call any witnesses at the
hearing. On October 6, 2009, the state trial court found that “based upon the testimony
presented at the evidentiary hearing, there is reason to believe that the evidence has been
out of the State’s custody and/or been contaminated since its collection during its storage
in Dead Files.”

       On November 20, 2009, Durr sought leave of the Ohio Supreme Court to appeal
the trial court’s decision. The Ohio Supreme Court denied Durr’s request on April 10,
2010. On April 13, 2010, Durr filed this § 1983 action in federal district court, seeking
a temporary restraining order, preliminary injunction, permanent injunction, and
declaratory judgment. In his complaint, Durr claimed that the State’s refusal to release
the necklace for testing deprived him of due process and constituted cruel and unusual
punishment under the Eighth Amendment. He also claimed that Ohio Rev. Code
§ 2953.73(E)(1) is facially unconstitutional under the Equal Protection Clause because
it gives noncapital defendants a mandatory right of appeal to the Ohio Court of Appeals
with discretionary review by the Ohio Supreme Court, but gives capital defendants no
appeal as of right in either court and only discretionary review in the Ohio Supreme
Court. Durr further claimed that Ohio Rev. Code § 2953.73 (E)(1) violated the Ex Post
Facto Clause of the United States Constitution and the Retroactivity Clause of the Ohio
Constitution. Durr also claimed that the statute violated the Ohio Constitution, Article
IV, §3(B)(2), conferring jurisdiction on the courts of appeal. Lastly, Durr raised an as-
applied challenge to the statute.

       On April 16, 2010, the district court ruled that because the underlying purpose
of Durr’s § 1983 action was to challenge the validity of his conviction or death sentence
his only avenue of relief was habeas. Given that Durr had already pursued and
exhausted federal habeas corpus relief pursuant to 28 U.S.C. § 2254, the district court
Nos. 10-3463/3466        Durr v. Cordray, et al.                                     Page 5


concluded that it lacked jurisdiction absent an order from this Court authorizing a second
or successive petition. See 28 U.S.C. § 2244(b)(3)(A). Because Durr had not obtained
such an order, the district court transferred the case to this court. See In re Sims, 111 F.
3d 45, 47 (6th Cir. 1997) (per curiam).

        The district court also ruled in the alternative. Assuming Durr’s action to be
properly before it pursuant to § 1983, the district court denied injunctive relief that
would have stayed Durr’s scheduled execution. The district court held that none of
Durr’s claims had a likelihood of success on the merits. The district court held that
Durr’s claim of denial of access to evidence was barred by the Rooker-Feldman doctrine.
The district court concluded that Durr’s equal protection claim could not succeed
because Ohio’s one-tier system of appellate review has been upheld in the context of
direct appeals. See Smith v. Mitchell, 567 F.3d 246 (6th Cir. 2009) (upholding on habeas
review, the Ohio Supreme Court’s determination that its one-tier system of direct review
of capital convictions and sentences does not violate the Equal Protection Clause). The
district court rejected Durr’s substantive due process claim, also on the basis of Smith,
and held that Durr’s Eighth Amendment challenge failed because the state has discretion
to allow appellate review, so long as its system is consistent with due process and equal
protection, and Ohio’s option of a discretionary appeal to the Ohio Supreme Court met
that requirement. The district court rejected Durr’s ex post facto and retroactivity claims
because the right to DNA testing was not available at the time of his 1988 conviction.
The court rejected the divestment of jurisdiction argument on state law grounds. Finally,
the court found that Durr’s as-applied challenge failed for the same reasons as his equal
protection, Eighth Amendment, and due process claims.

        The district court agreed that Durr would be irreparably harmed absent the stay,
but found that the State is harmed when the execution of valid criminal judgment is
delayed. As for the public interest, the court found that the public interest in this case
would be best served “by deferring to [the State’s] efforts to ensure the integrity of the
criminal justice system because [Durr] ha[d] not carried his burden of demonstrating
Nos. 10-3463/3466         Durr v. Cordray, et al.                                     Page 6


constitutional inadequacies in Ohio’s DNA testing law.” On balance then, the district
court concluded injunctive relief was not warranted.

        Durr now appeals to this Court.

                                            II.

        First we consider whether it was proper for the district court to treat Durr’s action
as a second or successive habeas petition rather than as a § 1983 action. Although most
habeas corpus challenges will also, prima facie, state a claim under the plain language
of § 1983, the Supreme Court has created an implied exception to § 1983's broad scope
for cases that lie “within the core of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475,
487 (1973). The Supreme Court has explored the relationship between the two statutes
in a series of cases. See Preiser, 411 U.S. 475 (holding that state prisoners’ challenges
to the constitutionality of prison disciplinary proceedings that led to the deprivation of
good-time credits fell within the core of habeas); Wolff v. McDonnell, 418 U.S. 539
(1974) (holding that state prisoners’ challenges to revocation of their good-time credits
through disciplinary proceedings could be brought as a § 1983 action because inmates
sought only a declaration that the disciplinary proceedings were invalid and thus
attacked only wrong procedures and not wrong result); Heck v. Humphrey, 512 U.S. 477
(1994) (affirming state courts’ dismissal of a prisoner’s § 1983 damages suit against
prosecutors and police investigator based on an allegedly unlawful investigation leading
to his arrest while state-court conviction was pending because a favorable judgment
would necessarily imply the invalidity of his conviction); Edwards v. Balisock, 520 U.S.
641 (1997) (holding that habeas was the sole vehicle for an inmate’s constitutional
challenge to procedures employed by state officials to deprive him of good-time credits);
Wilkinson v. Dotson, 544 U.S. 74, 81-92 (2005) (finding that inmates’ suit challenging
the constitutionality of applying new parole guidelines to their parole proceedings was
proper under § 1983 because the relief sought would merely render invalid state
procedures used to deny parole eligibility which meant at most a speedier consideration
of a new parole application and neither inmate sought an injunction ordering a speedier
release).
Nos. 10-3463/3466         Durr v. Cordray, et al.                                   Page 7


         In finding Durr’s claim a second or successive habeas petition, the district court
relied on Boyle v. Mayer, 46 F. App’x 340, 340 (6th Cir. 2002) (decided without
argument pursuant to Sixth Cir. R. 34(j)(1)), an unpublished, two-page opinion in which
we held that the plaintiff/prisoner’s request for DNA testing was not cognizable under
§ 1983, but was rather a habeas claim because it “plainly challenged the validity of his
criminal convictions and the fact or duration of his continued confinement.” A review
of Boyle reveals that it engaged in only limited analysis and did not discuss the sharp
circuit split that existed on this issue at that time.

         In Dotson v. Wilkinson, 329 F.3d 463 (6th Cir. 2003) (en banc), we rejected
similar reasoning, holding instead that “procedural challenges to parole eligibility and
parole suitability determinations . . . do not ‘necessarily imply’ the invalidity of the
prisoner’s conviction or sentence and, therefore, may appropriately be brought as civil
rights actions, under 42 U.S.C. § 1983, rather than pursuant to an application for habeas
corpus.” Id. at 472 (overruling any prior opinions to the extent they conflicted with the
reasoning therein). Given our holding in Dotson and that the Supreme Court ultimately
affirmed our decision, see Wilkinson, 544 U.S. at 85, we decline to credit Boyle with any
persuasive value and reject the district court’s reliance upon it. The question of whether
a challenge to the State’s denial of a plaintiff/prisoner’s request for evidence for DNA
testing may be brought under § 1983 (rather than habeas) is an open question in this
court.

         And, as mentioned above, there is a circuit split on this question. Prior to the
Supreme Court decision in Wilkinson, two courts of appeals had held that such suits
could only be brought under § 2254, see Kutzner v. Montgomery County, 303 F.3d 339
(5th Cir. 2009) (per curiam); Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002), whereas
the Eleventh Circuit had held that suits seeking access to evidence for DNA testing could
be brought pursuant to § 1983, see Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir.
2002). Following Wilkinson, however, “[e]very Court of Appeals to consider the
question since Dotson has decided that because access to DNA evidence [] does not
‘necessarily spell speedier release,’ it can be brought under § 1983.” Third Judicial Dist.
Nos. 10-3463/3466         Durr v. Cordray, et al.                                        Page 8


v. Osborne, 129 S. Ct. 2308, 2318 (2009) (quoting Wilkinson, 544 U.S. at 1242); Grier
v. Klem, 591 F.3d 672, 677 (3rd Cir. 2010). See also Savory v. Lyons, 469 F.3d 667, 671
(7th Cir. 2006); McKithen v. Brown, 481 F.3d 89, 99 (2d Cir. 2007). As explained by
the Ninth Circuit in the case leading to the Supreme Court decision,

        It is clear to us, as a matter of logic, that success in such an action would
        not necessarily demonstrate the invalidity of confinement or its duration.
        First, success would yield only access to the evidence-nothing more.
        Second, further DNA analysis may prove exculpatory, inculpatory, or
        inconclusive; thus, there is a significant chance that the results will either
        confirm or have no effect on the validity of Osborne's confinement.
        And third, even if the results exonerate Osborne, a separate
        action-alleging a separate constitutional violation altogether-would be
        required to overturn his conviction.

Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 423 F.3d 1050, 1054-55
(9th Cir. 2005) (quotation marks and citations omitted; paragraph breaks inserted). We
are persuaded by this reasoning and conclude that Durr’s request to seek DNA evidence
was cognizable under § 1983.

        But we find that we cannot grant Durr a stay of his execution for these very same
reasons: success on his claim would do no more than yield access to the evidence, it
would have no direct effect on the validity of his conviction or death sentence, and he
would have to bring another, separate action in order to even challenge the conviction
or sentence. That is, even if Durr were to prevail on his § 1983 action (and obtain the
necklace for DNA testing), success in that action would not directly invalidate or
undermine his conviction or sentence. Consequently, there is no nexus between the
merits of Durr’s underlying claim and his pending execution, so this claim — no matter
its merit — cannot justify our interference with the State’s enforcement of an otherwise
uncontested judgment of conviction and sentence.

        We have stated the factors for determining whether to grant a stay of execution
as: “(1) whether there is a likelihood [the prisoner] will succeed on the merits of the
appeal; (2) whether there is a likelihood he will suffer irreparable harm absent a stay; (3)
Nos. 10-3463/3466        Durr v. Cordray, et al.                                    Page 9


whether the stay will cause substantial harm to others; and (4) whether the injunction
would serve the public interest.” Workman v. Bell, 484 F.3d 837, 839 (6th Cir. 2007);
see also Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009); Workman v. Bredesen, 486
F.3d 896, 905 (6th Cir.2007). But the necessary implication of these cases is that this
first factor — the likelihood of success on the merits — concerns the merits of his direct
challenge to his conviction or sentence (on direct appeal or via habeas); that is, the
likelihood that he will be able to invalidate or undermine his conviction or sentence by
prevailing on the merits. This factor most certainly does not concern the merits of an
entirely separate lawsuit. And that, by his own account, is all that Durr has here: an
entirely separate lawsuit, in which he does not seek to invalidate or undermine his
conviction or death sentence. See Motion of Apt. Darryl Durr for Stay of Execution at
*17 (Apr. 17, 2010) (“Success in his § 1983 case would not demonstrate that his
confinement or impending execution was improper or even questionable.”).

       Finally, it warrants mentioning that, even if we were to construe this claim as a
habeas petition — a second and successive habeas petition in this circumstance — Durr
cannot prevail because he cannot satisfy the criteria of 22 U.S.C. § 2244(b)(2). Under
this provision, this Court may authorize a petitioner to bring a claim not presented in the
prior habeas petition if: (A) “the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable”; or (B) “the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence; and the facts
underlying the claim, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the underlying
offense.” 28 U.S.C. § 2244(b)(2). Given that Durr raises a claim only under part B, this
court may authorize the petition only “if it determines that the application makes a prima
facie showing that the application satisfies the requirements.”                28 U.S.C.
§ 2244(b)(3)(C). “‘Prima facie’ in this context means simply sufficient allegations of
fact together with some documentation that would warrant a fuller exploration in the
Nos. 10-3463/3466        Durr v. Cordray, et al.                                  Page 10


district court.” In re Lott, 366 F.3d 431, 433 (6th Cir. 2004) (quotation marks and
citation omitted).

       So, as a second or successive habeas, Durr’s claim fails on multiple levels. Durr
does not contend — nor could he — that his claim rests on a new rule of constitutional
law. Durr contends that his constitutional rights were violated when the State refused
to provide him with the necklace so that he could test it for DNA, and again when he was
denied appeal as of right on that decision. Even if we were to accept Durr’s claim that
he could not have obtained this evidence any earlier than 2009 (upon conclusion of the
initial habeas review and not 2003 when the Ohio Rev. Code § § 2953.73(E)(1) was
enacted), we still could not find that he is entitled to relief because he has presented no
“documentation” to support his bald assertion that the DNA results from testing the
necklace would have been helpful, much less to support a claim of actual innocence.
Moreover, by Durr’s own admission, these particular constitutional claims of error do
not, by themselves, raise any question about the validity of his conviction or death
sentence.

                                           III.

       Based on the foregoing, we hold that Durr has stated claims that are cognizable
under § 1983 but conclude that even if Durr were to succeed on those claims, such
success would not entitled him to a stay of his execution. Therefore, we AFFIRM the
district court’s order denying Durr a temporary restraining order or a preliminary
injunction.

       Judge Cole concurs in the result only.
