     Case: 17-30290      Document: 00514439695         Page: 1    Date Filed: 04/20/2018




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

                                    No. 17-30290                            FILED
                                  Summary Calendar                      April 20, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
DAVID MARX,

                                                 Plaintiff-Appellant

v.

LOUISIANA STATE POLICE, Officials; ATTORNEY GENERAL STATE OF
LOUISIANA; ORLEANS PARISH OFFICIALS; NEW ORLEANS CITY OFFI-
CIALS, Louisiana; UNIDENTIFIED PARTIES, Et Al,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-13831


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       David Marx, Louisiana prisoner # 619061, appeals the dismissal of his
pro se complaint as frivolous and for failure to state a claim. See 28 U.S.C.
§ 1915(e)(2)(B). He contends that he plausibly stated a claim under 42 U.S.C.
§ 1983 because Louisiana has prevented him from conducting DNA testing on
evidence relating to his conviction for second-degree murder. He also appears


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                        No. 17-30290

to argue that the district court should have permitted him to add new defend-
ants and that his prior counsel failed to pursue DNA leads. We affirm.
       We review the dismissal de novo. See Samford v. Dretke, 562 F.3d 674,
678 (5th Cir. 2009). A complaint fails to state a claim if it lacks “sufficient fac-
tual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted)).
Compare 28 U.S.C. § 1915(e)(2)(B)(ii), with Fed. R. Civ. P. 12(b)(6).
       A prisoner has no substantive due-process right to DNA testing after
conviction. But a state that creates such a right must also craft rules comport-
ing with procedural due process. See Skinner v. Switzer, 562 U.S. 521, 525
(2011); Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52,
72–73 (2009). Relevant here is article 926.1 of the Louisiana Code of Criminal
Procedure. This provision permits a convicted prisoner to apply for DNA test-
ing so long as the “application” “compl[ies] with the provisions of Article 926” 1
and “allege[s] all of the following”:
              (1) A factual explanation of why there is an articulable
       doubt, based on competent evidence whether or not introduced at
       trial, as to the guilt of the petitioner in that DNA testing will re-
       solve the doubt and establish the innocence of the petitioner.
              (2) The factual circumstances establishing the timeliness of
       the application.
              (3) The identification of the particular evidence for which
       DNA testing is sought.
              (4) That the applicant is factually innocent of the crime for
       which he was convicted, in the form of an affidavit signed by the
       petitioner under penalty of perjury.
La. Code Crim. P. art. 926.1(B).

       1 Article 926 requires that the application for post-conviction relief “be by written pe-
tition addressed to the district court for the parish in which the petitioner was convicted,”
La. Code Crim. P. art. 926(A), and include a statement of “the grounds upon which relief is
sought” and “all prior applications for writs of habeas corpus or for post conviction relief,” id.
art. 926(B). The Supreme Court of Louisiana has approved a standard application form for
such petitions. Id. art. 926(D).


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                                 No. 17-30290

      Even liberally construed, Marx’s complaint does not contest article
926.1’s constitutionality. He instead seeks an order enjoining Louisiana to fol-
low its own law. But Marx has not alleged that he filed a DNA-testing applica-
tion that complied with either article 926 or 926.1. See La. Code Crim. P. art.
926.1(B). Rather, he seems to imply that he requested DNA testing by seeking
a writ of certiorari from the Louisiana Supreme Court. The complaint, there-
fore, does not allege any facts suggesting that Louisiana’s resolution of any
article 926.1 application violated Marx’s due process rights. The district court
properly dismissed this case. Cf. Skinner, 562 U.S. at 525.
      Finally, we will not consider whether the district court should have per-
mitted Marx to add new defendants to his suit because Marx never made such
a motion below. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th Cir. 2010).
Nor will we consider Marx’s challenge to his prior counsel’s effectiveness, for
the complaint did not level such allegations. See id.
      Because Marx failed to state a claim, we AFFIRM. The district court’s
dismissal and this court’s affirmance count as one strike under § 1915(g). Ade-
pegba v. Hammons, 103 F.3d 383, 387–88 (5th Cir. 1996). Marx is hereby
WARNED that if he accumulates three strikes, he will not be allowed to pro-
ceed in forma pauperis in any civil action or appeal unless he is under immi-
nent danger of serious physical injury. See § 1915(g).
      We express no opinion on whether Marx may file a DNA-testing applica-
tion under articles 926 and 926.1 of the Louisiana Code of Criminal Procedure.




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