                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 24 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



NATHAN KEVIN TURNER,                             No. 09-55524

               Plaintiff - Appellant,            D.C. No. 3:08-cv-00360-W-RBB

  v.
                                                 MEMORANDUM *
BONNIE DUMANIS, District Attorney of
the County of San Diego; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Southern District of California
                     Thomas J. Whelan, District Judge, Presiding

                            Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Nathan Kevin Turner, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of

post-conviction access to biological evidence for DNA testing. We have


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Nelson v. Heiss, 271

F.3d 891, 893 (9th Cir. 2001), and we affirm.

      The district court properly dismissed Turner’s claims that he was denied

post-conviction access to biological evidence for DNA testing because he has not

stated a viable due process claim. See Dist. Attorney’s Office for Third Judicial

Dist. v. Osborne, 129 S. Ct. 2308, 2320-23 (2009) (holding that plaintiff had no

viable procedural due process claim because state’s procedures for post-conviction

relief did not transgress recognized principles of fundamental fairness, and that

there was no substantive due process right to post-conviction access to DNA

evidence).

      The district court properly dismissed Turner’s claims that defendants

destroyed materially exculpatory evidence in bad faith because Turner’s conviction

has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)

(holding that a constitutional claim that necessarily implies the invalidity of a

conviction cannot be brought under § 1983 unless the conviction has already been

invalidated).

      Turner’s remaining contentions are unpersuasive.

      AFFIRMED.




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