     Case: 13-20361      Document: 00512541024         Page: 1    Date Filed: 02/21/2014




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


                                    No. 13-20361                               FILED
                                  Summary Calendar                      February 21, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
WILLIAM HARRIS,

                                                 Plaintiff-Appellant

v.

PATRICIA LYKOS, MIKE ANDERSON, Current District Attorney

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-393


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Williams Harris, Texas prisoner # 1122330, was convicted of his
estranged wife’s murder in 2002. He appeals the district court’s dismissal of
his 42 U.S.C. § 1983 amended complaint seeking declaratory and injunctive
relief ordering the Harris County District Attorney to conduct DNA testing of
evidence in its possession or to allow Harris to test the evidence at his own
expense. He argues that the district court erred in not determining that the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-20361     Document: 00512541024     Page: 2   Date Filed: 02/21/2014


                                  No. 13-20361

State’s failure to release the evidence for DNA testing stated a claim of the
denial of his right to due process.
      This court conducts de novo review of the district court’s dismissal of a
complaint for failure to state a claim. Hart v. Hairston, 343 F.3d 762, 763-63
(5th Cir. 2003). Texas has created a right to postconviction DNA testing in
Article 64.01 of the Texas Code of Criminal Procedure.             Among other
requirements, the provision requires the convicted person to establish “by a
preponderance of the evidence that he would not have been convicted if DNA
testing provided exculpatory results.” TEX. CODE CRIM. PROC. art. 64.03(a).
“Federal courts may upset a State’s post-conviction relief procedures only if
they are fundamentally inadequate to vindicate the substantive rights
provided.” Dist. Att’ys Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 69
(2009).
      Even if DNA testing would show that some other person might have been
present at the crime scene, the incriminating evidence presented at trial
supports the determination by the state and federal courts that DNA evidence
would not have shown by a preponderance of the evidence that Harris would
not have been convicted. Harris’s allegations do not support a claim that the
state procedures governing DNA testing were so “fundamentally inadequate”
as to fail to protect his right to due process. Id. at 69. The judgment dismissing
the complaint is AFFIRMED.




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