                           REVISED March 19, 2010

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                     No. 09-10144
                                                                          FILED
                                                                     December 10, 2009
                                   Summary Calendar
                                                                   Charles R. Fulbruge III
                                                                           Clerk
JASON KYLE RICHARDS

                                                  Plaintiff-Appellant

v.

DISTRICT ATTORNEY’S OFFICE, for the 266th Judicial District Court; JOHN
TERRILL, District Attorney of Erath County, 266th Judicial District Court, in
his individual and official capacity; TOMMY BRYANT, Sheriff of Erath County,
in his individual and official capacity; DUBLIN POLICE DEPARTMENT;
CHRIS BAKER, Sargent of The Dublin Police Department, in his individual and
official capacity; JOHN/JANE DOE

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:08-CV-468


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Jason Kyle Richards, Texas prisoner # 1037098, appeals the district court’s
dismissal of his pro se, in forma pauperis (IFP) civil rights complaint under


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 09-10144

28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). We review de novo the district
court’s dismissal. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Through the vehicle of 28 U.S.C. § 1983, Richards sought DNA evidence
related to his conviction and 20-year sentence for second degree aggravated
sexual assault. The district court determined that Richards’s claims were barred
by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), and Kutzner v.
Montgomery County, 303 F.3d 339 (5th Cir. 2002), the latter of which held that
a petition for habeas corpus relief under 28 U.S.C. § 2254—not § 1983—is the
procedural mechanism by which claims that “necessarily imply the invalidity of
[a plaintiff’s] conviction or sentence” must be brought. Kutzner, 303 F.3d at
340–41 (quoting Heck, 512 U.S. at 486–87) (alteration in original).
      We need not resolve whether Kutzner remains good law or Heck bars
Richards’s § 1983 claim for access to DNA evidence because, whether his claims
sound in habeas or § 1983, Richards cannot establish the deprivation of a
constitutional right. There is no freestanding federal constitutional right to
post-conviction access to DNA evidence for testing. Dist. Attorney’s Office for
Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2323 (2009). Moreover, for
purposes of a procedural due process claim, Richards has not demonstrated the
facial inadequacy of Texas’s procedures for post-conviction DNA access, and,
never having invoked the state process available to him, he cannot sustain an
as-applied challenge.     Id. at 2321.     Accordingly, Richards’s appeal is
DISMISSED.




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