                                                       NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 11-2106
                                _____________

                             THOMAS BONNER,
                                      Appellant

                                       v.

                      MONTGOMERY COUNTY;
         RISA VETRI FERMAN, Montgomery County District Attorney
                          _____________

                On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                       District Court No. 2-10-cv-02055
                 District Judge: The Honorable John R. Padova

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              January 13, 2012

           Before: SCIRICA, RENDELL, and SMITH, Circuit Judges

                           (Filed: January 17, 2012)

                           _____________________

                                  OPINION
                           _____________________

SMITH, Circuit Judge.

      In 1986, a jury convicted Thomas Bonner of murdering August Bennick. In

2009, Bonner filed a petition under the Post Conviction Relief Act, 42 Pa. Cons.
Stat. §§ 9541-9546, seeking access to certain evidence for the purpose of DNA

testing.    The Court of Common Pleas of Montgomery County, Pennsylvania,

denied the petition. Bonner appealed to the Pennsylvania Superior Court which

affirmed.

       In May of 2010, Bonner filed a civil rights action under 42 U.S.C. § 1983

against Risa Vetri Ferman, the District Attorney of Montgomery County, in the

United States District Court for the Eastern District of Pennsylvania.1 He alleged

that Ferman‟s policy of categorically opposing any request for DNA evidence

violated his rights under the First Amendment to “meaningful access to state and

federal courts where he could prove his actual innocence” and under the

Fourteenth Amendment to both substantive and procedural due process. In the ad

damnum clause of his complaint, Bonner prayed for an order compelling the

production of the requested DNA evidence so it could be tested.

       Ferman filed a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6).    During a hearing on the motion, Bonner withdrew both his First

Amendment claim and his procedural due process claim. He advised the District

Court that he was asserting only the substantive due process claim. The Court

granted Ferman‟s motion to dismiss, concluding that Bonner‟s substantive due


1
   In Skinner v. Switzer, the Supreme Court held “that a postconviction claim for
DNA testing is properly pursued in a § 1983 action[,]” not a habeas petition.
__ U.S. __, __, 131 S. Ct. 1289, 1293 (2011).
                                        2
process claim failed as a matter of law in light of the Supreme Court‟s decisions in

Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289 (2011), and District Attorney’s

Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S. Ct. 2308

(2009).

      Bonner appealed.2     He does not take issue with the District Court‟s

determination that he withdrew his claims alleging violations of his First

Amendment and procedural due process rights. Rather, he argues that the District

Court erred by relying on dicta in Skinner, and that neither that precedent nor

Osborne precludes his substantive due process claim.

      We disagree. In Osborne, the Supreme Court acknowledged the petitioner‟s

alternate argument seeking relief under the substantive due process clause and

went on to address it on the merits. 557 U.S. at __, 129 S. Ct. at 2322. The Court

declined the invitation to “recognize a freestanding right to DNA evidence” and

concluded “that there is no such substantive due process right.” Id. The Court also

explained that “[t]here is no long history of such a right” of access to state

evidence to perform DNA testing, id., “and „[t]he mere novelty of such a claim is

reason enough to doubt that „substantive due process‟ sustains it,‟” id. (quoting

Reno v. Flores, 507 U.S. 292, 303 (1993)). Subsequently, in Grier v. Klem, 591

2
  The District Court had jurisdiction under 28 U.S.C. § 1331 and 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We conduct de novo review of an order
granting a motion to dismiss under Rule 12(b)(6). Phillips v. Cnty. of Allegheny,
515 F.3d 224, 230 (3d Cir. 2008).
                                         3
F.3d 672, 678 (3d Cir. 2010), relying upon Osborne, we acknowledged that the

petitioner had “no substantive due process right to access DNA evidence.” The

following year, the majority in Skinner pointed out that “Osborne rejected the

extension of substantive due process” to the area of DNA testing “and left slim

room for the prisoner to show that the governing state law denies him procedural

due process.” 131 S. Ct. at 1293 (citing Osborne, 129 S. Ct. at 2322). This

authority is binding and Bonner‟s attempt to distinguish it is unavailing.

Accordingly, we will affirm the judgment of the District Court.




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