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

                                                                            FILED
                                                                         January 28, 2010
                                       No. 10-70002
                                                                      Charles R. Fulbruge III
                                                                              Clerk


HENRY W. SKINNER,

                                                  Plaintiff-Appellant,

versus

LYNN SWITZER,
District Attorney for the 31st Judicial District of Texas,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 2:09-CV-0281




Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-70017

       Henry Skinner, convicted of capital murder and sentenced to death,2 ap-
peals the dismissal of his complaint under 42 U.S.C. § 1983 in which he asserts
that the defendant district attorney’s refusal to allow him access to biological ev-
idence for purposes of forensic DNA testing violates his Fourteenth Amendment
right to due process and his Eighth Amendment right to be free from cruel and
unusual punishment. The district court adopted the report and recommendation
of the magistrate judge and granted defendant’s motion to dismiss.
       Execution is set for February 24, 2010. Skinner moves to expedite the ap-
peal and proposes an expedited briefing schedule to which the defendant does
not object. In his motion, Skinner acknowledges that the law of this circuit is
contrary to the position taken in his complaint; he refers specifically to the bind-
ing authority of Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir. 2002),
and to the unpublished but persuasive opinion in Richards v. District Attorney’s
Office, No. 09-10144, 2009 U.S. App. LEXIS 26947 (5th Cir. Dec. 10, 2009) (per
curiam) (unpublished). In both of those cases, this court held that an action by
a prisoner for post-conviction DNA testing is not cognizable under § 1983 and
must instead be brought as a petition for writ of habeas corpus.
       Skinner suggests that, as an alternative to receiving full briefing on an ex-
pedited basis, this court can dispose of the appeal on the basis of Kutzner and
Richards. This would allow Skinner to seek relief expeditiously in the Supreme
Court in light of the scheduled execution.
       We agree with that suggestion. The judgment is AFFIRMED. The motion
to expedite the appeal is DENIED as unnecessary. The mandate shall issue
forthwith.




       2
        See Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009), petition for cert. filed (Nov.
23, 2009) (No. 09-7784).

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