     Case: 14-10925      Document: 00513265620         Page: 1    Date Filed: 11/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 14-10925                               FILED
                                                                         November 10, 2015

ROY LEE KINNEY,                                                             Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellant

v.

JOE SHANNON, JR., Criminal District Attorney for Tarrant County; FORT
WORTH POLICE DEPARTMENT, Forensics Division; JOHN PETER
SMITH HOSPITAL,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CV-285


Before STEWART, Chief Judge, JOLLY and GRAVES, Circuit Judges.
PER CURIAM:*
       Roy Lee Kinney appeals the district court’s dismissal of his 42 U.S.C. §
1983 claim seeking to compel post-conviction DNA testing. Because Kinney
has failed to state a claim that the Texas procedures were inadequate to
vindicate his substantive right, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                  FACTS AND PROCEDURAL HISTORY
      Roy Lee Kinney was convicted of sexual assault in 1984 and sentenced
to 99 years imprisonment. DNA testing was unavailable at the time of his
conviction, but the victim was seen by a doctor who performed a rape kit
evaluation after the sexual assault.
      In 2004, Kinney sought post-conviction DNA testing of that rape kit
evidence in the state trial court. However, based upon affidavits from the
hospital where the rape kit was performed and the police department that
investigated the crime, the evidence was nowhere to be found. Kinney disputed
the validity of the affidavits. The state court denied his motion for post-
conviction DNA testing, concluding that Kinney was unable to establish the
prerequisites of Article 64 of the Texas Code of Criminal Procedure. The state
appellate court affirmed the trial court’s denial of Kinney’s motion. See Kinney
v. State, No. 08-11-00128, 2012 WL 1154443, at *1-2 (Tex. Ct. App. – El Paso,
Apr. 4, 2012) (unpublished). However, the only issue Kinney raised on appeal
was whether the trial court violated his rights by failing to hold a hearing to
ascertain what had happened to the lost DNA evidence and why two of the
affidavits were executed prior to the filing of his motion.
      Kinney then filed this civil rights action and a motion for preliminary
injunction in the district court, again asserting that the affidavits were false
and that sufficient evidence existed to allow DNA testing. The district court
concluded that Kinney’s argument lacked merit because he focused solely on
whether the defendants had fabricated affidavits to establish that evidence
pertaining to his conviction was lost. Further, the district court concluded that
Kinney offered only mere speculation to support his claim regarding the falsity
of the affidavits. Moreover, the court found that even if the affidavits were
false such a finding would not change the outcome, as Kinney failed to allege
facts showing that the procedures established by Texas for post-conviction
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DNA testing were fundamentally inadequate to vindicate the substantive
rights that were provided. With regard to Kinney’s motion for injunctive relief,
the district court was unable to ascertain the acts that Kinney was seeking to
restrain or enjoin and, thus, concluded that he was not entitled to relief.
      The district court denied the motion for injunctive relief and dismissed
Kinney’s claims with prejudice pursuant to 28 U.S.C. § 1915A(b)(1). Kinney
filed a motion for leave to amend his complaint and a motion for a new trial.
The district court determined that Kinney’s proposed amendment was futile,
as he made no attempt to address the remaining prerequisites for DNA testing
under article 64 of the Texas Code of Criminal Procedure. After the district
court denied the motion for a new trial and motion for leave to amend his
complaint, Kinney filed this appeal.
                                 DISCUSSION
1) Whether the district court erred by dismissing Kinney’s claim that
his constitutional rights were violated when the Texas courts did not
allow him to pursue his claim for DNA testing of evidence used to
secure his rape conviction.

      The district court shall dismiss a prisoner’s civil rights complaint if it is
frivolous, malicious, or fails to state a claim for relief. 28 U.S.C. § 1915A(b).
This court reviews de novo the district court’s dismissal of an action pursuant
to § 1915A as frivolous and for failure to state a claim. See Coleman v. Sweetin,
745 F.3d 756, 763 (5th Cir. 2014); Elam v. Lykos, 470 F. App’x 275 (5th Cir.
2012); Drgac v. Murray, 302 F. App’x 254, 255 (5th Cir. 2008).
      To state a claim under § 1983, Kinney must allege a violation of a right
secured by the Constitution or laws of the United States by a person acting
under color of state law. See Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257,
260 (5th Cir. 2008). There is no freestanding right for a convicted felon to
obtain evidence for post-conviction DNA testing, but such a right may be

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created by state law. Osborne, 557 U.S. at 67-73. Texas has created such a
right in Chapter 64 of the Texas Code of Civil Procedure. See Elam, 470 F.
App’x at 276. The issue then is whether Kinney was unconstitutionally denied
the right to post-conviction testing of DNA evidence in violation of his
procedural due process right. See Harris v. Lykos, No. 12-20160, 2013 WL
1223837 (5th Cir. March 27, 2013) (unpublished).
      In Texas, a convicted person may move for forensic DNA testing of
evidence containing biological material. Tex. Code Crim. P. Ann. art. 64.01.
The trial court may order forensic DNA testing “only” if the court finds that
the evidence still exists and is in a condition that makes DNA testing possible,
has been subject to a chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in any material respect,
and identity was or is an issue in the case. Tex. Code Crim. P. Ann. art.
64.03(a)(1)(A), (B), (C).   Additionally, the movant must establish by a
preponderance of the evidence that he would not have been convicted if
exculpatory results were obtained through DNA testing. Tex. Code Crim. P.
Ann. art. 64.03(a)(2)(A). Federal courts “may upset a State’s postconviction
relief procedures only if they are fundamentally inadequate to vindicate the
substantive rights provided.” Osborne, 557 U.S. at 69.
      Kinney argues that the defendants falsified affidavits that impeded his
access to the courts and deprived him of due process when he sought, through
procedures set forth in Texas law, the DNA testing of evidence used to secure
his conviction. He asserts that the district court should have accepted his
allegation that the affidavits were false because a district court must accept as
true all allegations of material fact, construe factual allegations in the light
most favorable to the plaintiff, and construe pro se pleadings liberally. He also
asserts that his pleadings were sufficient to state a § 1983 claim, as he claimed
that the defendants falsified information that resulted in the termination of
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judicial proceedings and there were insufficient procedural safeguards in place
for him to question the veracity of the affidavits. Kinney also argues that the
Texas law providing for DNA testing should have hearing provisions so
prisoners can examine the efforts of prosecutors who are tasked with providing
evidence to the court.
      Kinney is correct that when reviewing a § 1915A dismissal for failure to
state a claim, this court accepts the facts alleged in the complaint as true and
construes them in the light most favorable to the plaintiff. See Coleman, 745
F.3d at 763. However, the district court does not have to accept conclusory or
speculative allegations. See id. at 763-64; Gross v. Normand, 576 F. App’x 318,
319 (5th Cir. 2014), cert. denied, 135 S. Ct. 1498 (2015). Here, the district court
denied Kinney’s allegations that the affidavits were “false” as speculative, but
the court failed to address his contention that the affidavits listed a cause
number from another criminal proceeding. The court also did not address
Kinney’s argument that in light of the discrepancies in the affidavits, the state
court’s failure to hold a hearing deprived him of due process.
      Nonetheless, as the district court concluded, even if Kinney’s allegation
that the affidavits offered by the defendants were falsified is accepted as true,
the challenged affidavits address only the availability of evidence – only one of
the necessary prerequisites to obtain DNA testing. Tex. Code Crim. P. Ann.
art. 64.03(a)(1). Even if the affidavits are incorrect and the evidence still exists
in a condition that makes DNA testing possible, as Kinney argues, DNA testing
would not be ordered by the Texas courts without a finding that the evidence
“has been subjected to a chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in any material respect,”
and “identity was or is an issue in the case.” Tex. Code Crim. P. Ann. art.
64.03(a)(1)(A), (C). Further, Kinney does not address the requirement that he
establish “by a preponderance of the evidence” that he “would not have been
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                                 No. 14-10925
convicted if exculpatory results had been obtained through DNA testing.” Tex.
Code Crim. P. Ann. art. 64.03(a)(1)(B)(2)(A). Instead, Kinney argues that the
state court denied his motion based upon the finding that the evidence did not
exist and therefore the additional prerequisites were not at issue in the state
court proceedings.
      Texas courts routinely affirm the denial of motions for post-conviction
DNA testing when a defendant fails to establish, by a preponderance of the
evidence, that he would not have been convicted if exculpatory results had been
obtained through DNA testing. See Ex parte Gutierrez, 337 S.W.3d 883, 899-
901 (Tex. Crim. App. 2011); see also Jacobs v. State, 294 S.W.3d 192, 197-98
(Tex. App.—Texarkana 2009); Skinner v. State, 293 S.W.3d 196, 200 (Tex.
Crim. App. 2009); Frank v. State, 190 S.W.3d 136, 139 (Tex. App. 2005)
      Here, the district court found that there was no biological material to be
tested. Further, Kinney failed to establish by a preponderance of the evidence
that he would not have been convicted if exculpatory results had been obtained
through DNA testing as required by article 64.03(a)(2)(A). Thus, the district
court did not err in dismissing the claim.
(2) Whether the district court abused its discretion by determining
that Kinney’s motion to amend his complaint was futile.

      Kinney argues that the sua sponte dismissal was error, because the
district court did not allow him an opportunity to amend his complaint. He
asserts that in the amended complaint he demonstrated why the affidavits
were false and provided allegations regarding why Texas’s procedures
governing post-conviction DNA testing were inadequate to vindicate the
substantive rights provided.
      Rule 15(a) of the Federal Rule of Civil Procedure “evinces a bias in favor
of granting leave to amend.” See Martin’s Herend Imports, Inc. v. Diamond &
Gem Trading United States of Am. Co., 195 F.3d 765, 770 (5th Cir. 1999)
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(internal citation and marks omitted). This court reviews a district court’s
denial of a motion to amend a pleading for abuse of discretion. Id. However,
a district court acts within its discretion when dismissing a motion to amend
that is frivolous or futile. Id. at 771.
      As discussed above, the district court denied Kinney’s motion to amend
after determining that amendment would be futile. Additionally, Kinney’s
proposed amendment still did not address the necessary prerequisites.
Kinney’s proposed amendment also challenged the procedure used by the
Texas courts, arguing that due process required a hearing to be held. However,
article 64.03 does not include a hearing provision. Moreover, even if a hearing
was held, it would not cure the fact that neither the hospital nor the police
department were in possession of any biological evidence upon which to
conduct any DNA testing.
      Accordingly, we conclude that the district court did not abuse its
discretion by dismissing Kinney’s motion to amend as futile.
(3) Whether the district court abused its discretion by denying
Kinney’s motion for the appointment of counsel.

      Kinney argues that the district court abused its discretion when it did
not appoint counsel for him.        Kinney argues that he filed a motion for
appointment of counsel when he filed his complaint and the district court failed
to rule upon it. The record does not indicate that Kinney filed such a motion.
Arguments that are not raised in the district court cannot be asserted for the
first time on appeal. See Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir.
2010).
      However, even if Kinney had filed a motion for appointment of counsel,
“[t]here is no automatic right to the appointment of counsel in a section 1983
case.” Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). Absent exceptional
circumstances, which depend upon the type and complexity of the case and the
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ability of the individual pursuing it, a district court is not required to appoint
counsel. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). The record
here does not indicate that appointment of counsel was warranted in the
district court. See Cupit, 835 F.2d at 86.
      Thus, we conclude that the district court did not abuse its discretion by
denying Kinney’s motion for appointment of counsel.
                                      ***
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Kinney’s claim under 28 U.S.C. § 1983. Further, we AFFIRM the district
court’s denial of Kinney’s motions to amend and to appoint counsel




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