                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-6638


MALCOLM MUHAMMAD,

                Plaintiff – Appellant,

          v.

LESLIE S. GREEN; WILLIAM R. BLAINE; ELIZABETH BALLARD, DNA
Forensic Scientist; ANN M. CONNELL, Deputy Clerk of Court;
NATHAN LEE, Judge; Circuit Court Judge,

                Defendants – Appellees,

          and

COMMONWEALTH OF VIRGINIA,

                Defendant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:14-cv-00662-LO-MSN)


Submitted:   September 15, 2015            Decided:   February 10, 2016


Before KING, WYNN, and HARRIS, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Malcolm Muhammad, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Virginia         prisoner    Malcolm           Muhammad         appeals     the    district

court’s order dismissing this 42 U.S.C. § 1983 (2012) action

pursuant to 28 U.S.C. § 1915A(b)(1) (2012) for failure to state

a claim upon which relief could be granted.                                We affirm in part

and dismiss in part.

       Muhammad         contended        that      his       due       process     rights        were

violated when a Virginia state court denied his postconviction

motion, made pursuant to Va. Code Ann. § 19.2-270.4:1 (2015),

for preservation of certain items of evidence.                                    Muhammad hoped

to   have    DNA    testing       performed           on    the       evidence    and     that    the

results      of    such       testing        would         establish       his     innocence       of

first-degree murder.               Muhammad’s chief contention was that, by

allegedly requiring that he prove that the evidence in question

constituted         human        biological            evidence,           the     state     court

incorrectly        interpreted         and       applied        the     statute     and    thereby

violated his due process rights.

       The district court dismissed the case pursuant to Heck v.

Humphrey,         512     U.S.     477       (1994).              Heck     held     that     where

“establishing           the   basis      for      the       .     .    .   claim     necessarily

demonstrates the invalidity of the conviction,” a § 1983 action

will   not    lie       “unless    .     .   .    the       conviction       or    sentence       has

already been invalidated.”                   Id. at 481-82, 487.                   Subsequent to

Heck, the Supreme Court held that “a convicted state prisoner

                                                  3
seeking DNA testing of crime-scene evidence [may] assert that

claim      in    a   civil   rights    action   under    § 1983.”          Skinner   v.

Switzer, 562 U.S. 521, 524-25 (2011).                   The Court observed that

gaining access to DNA testing alone does not necessarily imply

the unlawfulness of the conviction or sentence.                           Id. at 525.

Application          of   Skinner     demonstrates    that     the   dismissal       of

Muhammad’s § 1983 action on the basis of Heck was error.

       However, despite this error, we find that this action is

subject to dismissal on alternative grounds.                   First, there is no

substantive due process right to the postconviction preservation

and testing of DNA evidence.               District Attorney’s Office for the

Third Judicial Circuit v. Osborne, 557 U.S. 52, 72 (2009); see

also Skinner, 562 U.S. at 525.                  Second, with respect to the

claimed         violation    of   procedural    due     process,     we    note   that

Muhammad does not claim that § 19.2-270.4:1 is itself invalid.

Rather, he contends that the state circuit court erroneously

applied the statute in deciding his case.                    Lower federal courts

lack       jurisdiction      over   this    claim    under    the    Rooker-Feldman

doctrine. *          Cf. Skinner, 562 U.S. at 531-32; see Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).




       *Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462
(1983).



                                            4
     We therefore affirm the dismissal of Muhammad’s substantive

due process claim and dismiss, for want of jurisdiction, his

procedural due process claim.       We dispense with oral argument

because the facts and legal issues are adequately presented in

the materials before the court and argument would not aid the

decisional process.

                                                 AFFIRMED IN PART;
                                                 DISMISSED IN PART




                                5
