     Case: 11-20700     Document: 00511830112         Page: 1     Date Filed: 04/20/2012




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

                                                                            FILED
                                                                           April 20, 2012
                                     No. 11-20700
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DARIUS D. ELAM,

                                                  Plaintiff-Appellant

v.

PATRICIA LYKOS,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-3274


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        In 1984, Darius D. Elam, Texas prisoner # 380190, was convicted by a jury
of aggravated robbery and was sentenced to life in prison. In 2008, Elam filed
in Texas state court an amended motion under Texas Code of Criminal
Procedure Article 64.01, seeking post-conviction DNA testing of certain trial
evidence that was identified by the State as available. The Texas state trial
court denied Elam’s request; the Texas state court of appeals affirmed; and his
petition for discretionary review was refused. Elam then filed the instant civil

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20700    Document: 00511830112       Page: 2   Date Filed: 04/20/2012

                                   No. 11-20700

rights complaint in the district court, alleging that the State courts’ denial of his
motion under Texas Code of Criminal Procedure Article 64.01 violated his
procedural due process rights. The district court dismissed Elam’s claims as
frivolous and for failure to state a claim.
      This court reviews the dismissal of Elam’s claims de novo. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009); Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005). To state a claim under § 1983, a plaintiff must allege that there
was a violation of a right secured by the Constitution or laws of the United
States and that the deprivation was committed by a person acting under the
color of state law. Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260 (5th
Cir. 2008). While there is no freestanding right for a convicted defendant to
obtain evidence for post-conviction DNA testing, Texas has created such a right,
and, as a result, the state provided procedures must be adequate to protect the
substantive rights provided. Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011);
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308,
2319-2322 (2009).
      Chapter 64 of the Texas Code of Criminal Procedure permits a convicted
defendant to move for post-conviction DNA testing of evidence. TEX. CODE CRIM.
PROC. ANN. art. 64.01. One requirement necessary to be granted relief is that
the movant “establishes by a preponderance of the evidence that . . . the person
would not have been convicted if exculpatory results had been obtained through
DNA testing.” TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B)(2). The State
courts and the district court determined that Elam did not satisfy this
requirement.
      On appeal, Elam contends that his due process rights were violated by the
State’s denial of his request for post-conviction DNA testing because the
evidence submitted at trial included unreliable and fabricated physical evidence
and perjured testimony. Elam’s arguments do not establish his due process
rights were violated. Any further DNA testing of the evidence from Elam’s trial

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                                  No. 11-20700

would not be probative on the issue of Elam’s guilt or innocence. See Osborne,
129 S. Ct. at 2320; Skinner, 131 S. Ct. at 1293; TEX. CODE CRIM. PROC. ANN. art.
64.03.
      The judgment of the district court is affirmed.        The district court’s
dismissal of Elam’s § 1983 complaint as frivolous and for failure to state a claim
upon which relief may be granted counts as a strike for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Elam is
warned that if he accumulates three strikes, he will not be allowed to proceed
IFP in any civil action or appeal unless he is under imminent danger of serious
physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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