                        REVISED AUGUST 19, 2002

                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                        _______________________

                             No. 02-20861
                        _______________________


                        RICHARD WILLIAM KUTZNER,
                                                      Petitioner-Appellant,

                                  versus

MONTGOMERY COUNTY, District Attorney’s Office; MICHAEL A MCDOUGAL,
Montgomery County District Attorney in his official capacity; GUY L
WILLIAMS, Montgomery County Sheriff in his official capacity; JOYE
M CARTER, M.D., in her official capacity

                                                     Respondents-Appellees.

_________________________________________________________________

             Appeal from the United States District Court
         for the Southern District of Texas, Houston Division

_________________________________________________________________
                           August 7, 2002


Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:

           On August 5, 2002, Richard William Kutzner filed a 42

U.S.C. § 1983 action that reiterates his attempt, previously embodied

in a successive habeas petition, to overturn his conviction for

capital murder by requiring the State to produce biological evidence

for DNA testing.1    The district court dismissed sua sponte pursuant

to Fed. R. Civ. P. 12(b)(6), treating Kutzner’s complaint as, in



     1
           Kutzner was executed on August 7, 2002.
effect, another successive habeas corpus petition.               We affirm the

dismissal.



             Kutzner’s petition asserts various alleged constitutional

violations against officials of Montgomery County, Texas, who have

refused to release biological evidence introduced at his trial for

DNA testing and thereby “prevent[ed] Plaintiff from gaining access to

exculpatory evidence which could exclude him as a perpetrator. . . .”

             Plainly,    the   allegations   seek   to   undermine   Kutzner’s

conviction    or   the   consequences    flowing    therefrom,   such   as   the

availability of an executive clemency petition. Just as plainly, the

Supreme Court has held, in Heck v. Humphrey, that no cause of action

exists under § 1983 that would “necessarily imply the invalidity of

[a plaintiff’s] conviction or sentence” unless he proves that the

conviction or sentence has already been invalidated.             512 U.S. 477,

486-87, 114 S.Ct. 2364 (1994).          We agree with the analysis of the

Fourth Circuit, which recently held, under Heck, that no § 1983 claim

exists for injunctive relief to compel DNA testing under materially

indistinguishable circumstances. Harvey v. Horan, 278 F.3d 370, 374-

78 (4th Cir. 2002), pet. for reh’g and reh’g en banc denied, 285 F.3d

298.

             Harvey also explains why Kutzner’s claim is cognizable only

as a petition for habeas corpus relief, because, since Preiser v.

Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973), the Supreme Court has

consistently held that habeas corpus is the exclusive means for

prisoners to attack the fact or duration of their confinement.



                                        2
Harvey, as stated, analyzed a claim for DNA testing much like this

one and drew the obvious conclusion that the proposed remedy is

sought “to set the stage for a future attack on [the prisoner’s]

confinement” – effectively transforming the claim into a petition for

a writ of habeas corpus.           Harvey, 278 F.3d at 378.          Not only is

Harvey   strongly     persuasive,    but    this   Court,    too,   has    recently

reiterated that claims seeking to attack the fact or duration of

confinement, as well as claims which are “so intertwined” with

attacks on confinement that their success would “necessarily imply”

revocation or modification of confinement, must be brought as habeas

corpus petitions and not under § 1983.             Martinez v. Texas Court of

Criminal Appeals, 292 F.3d 417, 423 (5th Cir. 2002).              Under Martinez,

a prisoner’s request for DNA testing of evidence relevant to his

prior    conviction    is   “so    intertwined”     with    the   merits    of   the

conviction as to require habeas corpus treatment.

            We conclude (like the district court) that Kutzner’s § 1983

claims were cognizable only in habeas corpus.              We have elected, as we

may (for the sake of judicial economy and in the face of serious time

constraints), to treat Kutzner’s appeal of the district court’s

judgment as a petition for permission to file a successive habeas

petition.    Martinez, 292 F.3d at 424.

            Because    we   have    separately     determined     that    Kutzner’s

contemporaneous successive habeas petition raising the same, or

substantially similar, claims concerning DNA testing cannot meet the

applicable statutory standard, see 28 U.S.C. § 2244(b), we adopt the




                                        3
discussion and resolution of that petition herein.2

          For the foregoing reasons, the judgment of the district

court is AFFIRMED, and appellant’s alternative request for permission

to file a successive petition for a writ of habeas corpus is DENIED.




     2
          See Kutzner v. Montgomery County, No. 02-20857 (August 7, 2002).

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