                                            Filed:   April 18, 2002


                   UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 01-6703



James Harvey,

                                                 Plaintiff - Appellee,

          versus


Robert F. Horan, Jr., etc.,

                                               Defendant - Appellant.




                               O R D E R



     The court amends its published rehearing order, filed March

28, 2002, as follows:

     On page 38, first paragraph, line 9 -- the phrase “the fol-

lowing three pages” is corrected to read “the following two pages.”

     On page 40, first full paragraph, first line after indented

quotation -- the phrase “(emphasis added)” is added after the

citation to Harvey.
                              - 2 -




     On page 44, first full paragraph, line 3 -- the phrase “the

state’s intervening order” is corrected to read “the state court’s

intervening order.”

                                      For the Court - By Direction



                                      /s/ Patricia S. Connor
                                               Clerk
                                             PUBLISHED

                                  UNITED STATES COURT OF APPEALS

                                      FOR THE FOURTH CIRCUIT


JAMES HARVEY,
     Plaintiff-Appellee,

     v.

ROBERT F. HORAN, JR.,
Commonwealth's Attorney, County                                          No. 01-6703
of Fairfax,
      Defendant-Appellant.

JENNIFER THOMPSON; KAREN R.
POMER; JERI ELSTER,
     Amici Curiae.


                                        Filed: March 28, 2002

____________________________________________________________

                                                ORDER

  Appellee filed a petition for rehearing and rehearing en banc.

   Judge King voted to grant panel rehearing. Chief Judge Wilkinson
and Judge Niemeyer voted to deny.

   No member of the Court requested a poll on the petition for rehear-
ing en banc.

   Chief Judge Wilkinson filed an opinion concurring in the denial of
rehearing and rehearing en banc. Judge Luttig filed an opinion
respecting the denial of rehearing en banc.

  The Court denied the petition for rehearing and rehearing en banc.
Entered at the direction of Chief Judge Wilkinson for the Court.
WILKINSON, Chief Judge, concurring in the denial of rehearing and
rehearing en banc:

   There is no doubt that Harvey should receive the biological evi-
dence in this case for DNA testing using technology that was unavail-
able at the time his Virginia conviction became final. In fact, the
panel opinion suggested that the state courts could order DNA testing.
See Harvey v. Horan, 278 F.3d 370, 380 (4th Cir. 2002) (stating that
"state courts are free in ways that we are not to set the ground rules
by which further collateral attacks on state convictions such as Har-
vey's may be entertained"). And that is precisely what the state courts
have now done. The question before us is thus not whether Harvey
should or will receive the DNA evidence. He should and he will.
Rather, the issue is whether a § 1983 action brought in federal court
in the first instance is the appropriate vehicle for him to access that
evidence.

   I nonetheless confess myself puzzled over the discussion herein.
The issues have been extensively addressed in the earlier majority and
concurring opinions. No member of the court requested a poll on the
suggestion for rehearing en banc, and my brother agrees "that a denial
of rehearing en banc is now the proper disposition of this particular
case." Post at 44. However, inasmuch as my colleague has undertaken
an extended discussion of his own, I tender this brief response.

                                                  I.

                                                  A.

   The threshold question posed by Harvey's § 1983 action relates to
the nature of the constitutional right he asserts. There are two possi-
bilities here, one procedural and the other substantive. The procedural
right is the right to press and proclaim one's innocence in a federal
forum in the first instance when seeking access to DNA testing, even
where the judgment to be challenged is a state conviction.

   The American criminal justice system rightly sets the ascertain-
ment of truth and the protection of innocence as its highest goals. The
average school child is aware (or so we hope) that the accused is

                                                  2
clothed with a presumption of innocence and that the prosecutor must
prove beyond a reasonable doubt that a crime was committed. More-
over, the concern with innocence does not end at trial. Elaborate post-
conviction procedures are rightly in place to ensure not only that a
trial was fair, but also that no individual has been wrongly convicted.

   Our system however does not allow any person to press a claim of
innocence at any time, at any place, and in any manner. The assertion
of innocence, just as the assertion of any right, is intertwined with
orderly process. It matters, for example, that a Virginia prisoner has
sought here to bypass Virginia's system of criminal justice altogether,
and proceed directly into federal court under § 1983. Such disregard
of process is an anomaly in an area where criminal defendants, above
all, rely on proper process to protect their rights. What Alexander
Bickel termed "the morality of process" in the political system has
application to criminal justice as well. Alexander M. Bickel, The
Morality of Consent 123 (1975). Shorn of process, neither the inno-
cent nor the public upon whom offenders prey will have any assur-
ance of justice.

   The panel opinion identifies the multiple procedural problems Har-
vey's § 1983 claim faces. See Harvey, 278 F.3d at 374-80. Yet the
separate opinion would throw each and every one of these consider-
ations to the winds. As Harvey's case shows, state courts, if given a
chance, can rise to their responsibilities. Yet my good colleague
would not only deny them that chance, but do so in unprecedented
fashion, encouraging state prisoners to press their claims initially in
federal court while disregarding all state court procedures and all state
legislative avenues of redress.

    This is not to say that the federal courts are uncharitable with
respect to claims of innocence. For example, Rule 33 of the Federal
Rules of Criminal Procedure authorizes motions for a new trial on the
basis of newly discovered evidence. And the seminal case of Jackson
v. Virginia, 443 U.S. 307 (1979), allows a state prisoner to press a
claim of innocence in federal court on the ground that "the evidence
in support of his state conviction cannot be fairly characterized as suf-
ficient to have led a rational trier of fact to find guilt beyond a reason-
able doubt." 443 U.S. at 321. See also Herrera v. Collins, 506 U.S.
390, 404 (1993) (stating that "`actual innocence' is not itself a consti-

                                                    3
tutional claim," but that it can serve as a "gateway" through which a
habeas petitioner can "have his otherwise barred constitutional claim
considered on the merits").

    It is important however that claims of innocence should be enter-
tained, where possible, in the first instance by the court, or at least by
the court system, that initially heard the case. Such a rule, ostensibly
directed to considerations of venue or comity, actually serves a larger
purpose. It recognizes in the underlying conviction not a conclusion
of infallibility, but a presumption of legitimacy. That presumption
would be lost if the court rendering the conviction could simply be
disregarded and bypassed at will, which is what Harvey sought to do
in fashioning his claim of innocence as a § 1983 suit. By design, judg-
ments of conviction in criminal cases are not casually reached. The
efforts of jurors, judges, witnesses, prosecutors, and defense attorneys
represent a considerable and conscientious effort at achieving justice
— an effort which would be lost if the court or system rendering the
judgment were entitled to no respect or even so much as acknowledg-
ment thereafter.

                                                   B.

   In addition to the procedural difficulties Harvey's claim presents,
this case poses the intractable problem of identifying the precise
nature and scope of the substantive due process right that a federal
court would have to bestow on Harvey in order for his § 1983 claim
to proceed. Both the panel majority opinion and the concurrence rec-
ognized this. Harvey, 278 F.3d at 375-77, 380, 387-88 & n.7. Indeed,
the separate opinion acknowledges as well just how "formidable" the
task of identifying the precise parameters of such a right would be.
Post at 36. It accordingly declines to specify even the rough contours
of the constitutional right of post-conviction access to DNA evidence
that it divines. Post at 36. The separate opinion merely states, without
explanation, that such a right would be "narrowly confine[d]" and
governed by "strict and limiting" standards. Id. In the end, we are left
to guess whether even Harvey himself would qualify for additional
DNA testing under the separate opinion's newly minted constitutional
right of access to evidence. Post at 43.

   We are kept in the dark about what such a right would actually
look like not just because defining the scope of the right would be

                                                   4
"imprudent." Post at 36. It is no more imprudent to define a right one
has declared to exist than it is to assert its existence to begin with. It
is not imprudence that accounts for this silence, but rather the hum-
bling reality that it may well be impossible for a judge-qua-judge to
accomplish this feat. That is why this task is one appropriately left to
legislatures.

   A myriad of questions would have to be answered in order to
define the parameters of a constitutional right to post-conviction
access to DNA evidence. For instance, we would have to decide who
could claim a right to DNA testing — in particular, whether such a
right would apply to all prisoners or only those who committed cer-
tain crimes or who were serving some minimum prison term. Further,
we would have to determine what threshold showing was required in
order for a prisoner to receive post-conviction DNA testing. For
example, does identity have to have been an issue at trial? What if the
prisoner has pleaded guilty? In addition, we would have to decide to
whom a request for post-conviction testing would be made and on the
standard that the decision-maker would use in determining whether
testing was appropriate. For example, must a prisoner show only that
the untested evidence might possibly assist his claim of innocence, or
that a reasonable probability exists that the outcome of his trial would
have been different if the test results had been available? Or does
some stricter standard apply? Moreover, we would have to determine
whether there was a statute of limitations for bringing the request in
the first place.

   Next, we would have to work out details of the testing system
itself. First, we would have to identify who would bear the costs of
the DNA testing. Would it be the state or federal government, the
prisoner, or only prisoners who can afford the testing? Would we wait
to determine if DNA testing had proved wholly or arguably successful
for the requesting prisoner before determining who bears the cost?
And we would have to decide if a state laboratory would conduct the
test or if a prisoner or judge could select a private lab. We would also
have to specify whether counsel would be appointed for every indi-
gent person seeking testing. In addition, we would have to determine
how long DNA evidence would have to be preserved and decide
whether preservation was automatic or conditioned upon motion from
a prisoner. Further, we would have to establish who would evaluate

                                                     5
the DNA test results and when a result was conclusive enough of
innocence to warrant further relief. Finally, we would have to lay out
the relief that could be granted. Is a new trial or a pardon more appro-
priate? And upon a favorable test result, could a prisoner bring a
claim for monetary relief for a wrongful conviction?

   Harvey would have the federal courts disregard the fact that both
the Congress of the United States and the various state legislatures are
presently wrestling with exactly these sorts of questions. Only the
most aggressive view of federal judicial power could lead us to pre-
empt both a coordinate branch of the federal government and the state
courts and legislatures with what would in essence be prescriptive law
making of our own.

   Thus my brother asks that we take a big step. If we were to vindi-
cate Harvey's claim, it would have to be because, as the separate
opinion appears to conclude, post at 32-33, there was some substan-
tive due process right to the fruits of scientific discoveries made after
a conviction had become final — here, the advances in DNA testing
technology.

   It is certainly true and a cause for celebration that DNA testing
holds much promise. And there is no question that accused individu-
als and convicted inmates, as well as prosecutors, should reap the
benefits of it. Indeed, many scientific advances promise substantial
advantages. But this does not mean that we are free to constitutional-
ize a right of access to the fruits of scientific discoveries. There are
often trade-offs to be faced when science advances. Scientific prog-
ress frequently presents questions of resource allocation, interpreta-
tion, application, privacy, and ethics. Balances must be struck
between societal risks and benefits, between alternative ways of
understanding and employing new techniques, and between permissi-
ble and impermissible uses.

   The courts should not precipitously offer answers to these ques-
tions. The issue raised in Harvey's case is one we will confront many
times again: Should the courts through the conversation-stopping pro-
cess of constitutionalization decide for society what uses will be made
of scientific progress, or should we await the input of legislative
bodies before weighing in ourselves? The case for legislative bodies

                                                   6
retaining control of advances in science is powerful because scientific
discoveries have the potential to affect society in ways that may be
profoundly beneficial or profoundly harmful. As science marches for-
ward in our courts, it is not remiss to respect the ability of the political
process to address its many implications.

                                                   II.

    I repeat my hope that inmates such as Harvey will receive DNA
testing. And I repeat my faith that the American system will provide
it to them. This is not an area in which legislative bodies have gone
into permanent recess. On the contrary, the panel majority opinion
detailed the fact that Congress is actively considering legislative ini-
tiatives in this area. See Harvey, 278 F.3d at 376-77, 380. The Inno-
cence Protection Act, which has been introduced in both houses of
Congress, would increase the availability of post-conviction DNA
testing for an individual convicted of a federal crime. Further, the Act
would condition the grant of federal funds for state DNA-related pro-
grams on an assurance that the state would make post-conviction
DNA testing available in certain types of cases. See S. 486 §§ 101-
104, 107th Cong. (2001), 147 Cong. Rec. S1999, 2001-03 (Mar. 7,
2001); H.R. 912 §§ 101-104, 107th Cong. (2001).

   Virginia has also passed legislation increasing the availability of
post-conviction DNA testing, which Harvey himself successfully
invoked in state court following oral argument in this case. See Har-
vey, 278 F.3d at 377, 380 n.3. Virginia Code § 19.2-327.1 allows a
convicted felon to apply to the state circuit court for DNA testing if,
inter alia, the biological evidence was not subjected to the current
DNA testing method and the testing is "materially relevant, noncu-
mulative, and necessary and may prove the convicted person's actual
innocence." Va. Code Ann. § 19.2-327.1 (Michie Supp. 2001). In
addition, the Virginia statute details what a petitioner must set forth
in his motion for post-conviction DNA testing, sets a timetable for the
circuit court to hold a hearing on a prisoner's motion, and structures
the circuit court's decision-making process on the petition. Id.

   The federal government and the Commonwealth of Virginia are far
from alone in this area. In 1994, New York was the first state to pass
a statute addressing post-conviction DNA testing. Developments in

                                                    7
the Law: Confronting the New Challenges of Scientific Evidence, 108
Harv. L. Rev. 1481, 1573 (1995). And legislatures across the country
are currently considering and enacting initiatives. In 2001 alone, sev-
enteen states passed laws "to provide convicted criminals with
improved access to DNA testing." Always an eye for an eye?, The
Economist, Jan. 5, 2002, at 26-27. State legislatures have set detailed
ground rules for these types of actions, answering the numerous ques-
tions discussed above that post-conviction DNA testing raises. The
legislatures have spelled out not only the circumstances in which a
motion for additional DNA testing can be made, but also where such
motions must be brought. They also have identified the parameters
that control whether additional testing will be made available,
whether a decision to grant or deny testing is appealable, who must
bear the cost of the testing, and what relief is available if the results
are favorable to the petitioner. See, e.g., N.Y. Crim. Proc. Law
§ 440.30 (McKinney Supp. 2001); Fla. Stat. Ann. §§ 925.11,
943.3251 (West Supp. 2001); Cal. Penal Code § 1405 (West Supp.
2002).

   The statutes reveal that there are many different approaches to
resolving these issues. Within the Fourth Circuit alone, there is sub-
stantial variation in the approaches taken by Virginia, Maryland, and
North Carolina, which have already enacted post-conviction DNA
testing provisions. For example, the Virginia statute applies to people
convicted of a felony, does not specify who pays for the DNA testing,
and states that the testing will be performed by the Virginia Division
of Forensic Science. See Va. Code Ann. § 19.2-327.1. In contrast, the
Maryland statute applies only to people convicted of certain crimes,
specifies that the petitioner shall pay the costs of the testing unless the
results are favorable (in which case the state pays), and allows the
judge reviewing the petition to select a laboratory for the testing from
a list of accredited labs. See Md. Code Ann., Crim. Proc. § 8-201
(Michie 2001). In further contrast, the North Carolina statute applies
to any criminal defendant, requires the defendant to pay the cost of
the DNA testing unless he is indigent (in which case the state bears
the cost), and does not indicate which lab will conduct the testing. See
N.C. Gen. Stat. § 15A-269.

   To constitutionalize this area, as the separate opinion would, in the
face of all this legislative activity and variation is to evince nothing

                                                   8
less than a loss of faith in democracy. It is to believe that democratic
processes are incapable of rising to the challenge, and that federal
courts must do the governing for us. In the end, this will deaden the
lifeforce of democracy. It will cause legislatures across our nation to
simply surrender the impulse to innovate based on the assumption that
the federal courts are prepared to step in at any time. It will encourage
elected officials to sit on their hands and turn over their responsibili-
ties to federal judges. To be sure, the displacement of elected officials
by judicial authority always pleases some of the people some of the
time. But with activism, what goes around comes around. Today's
merriment becomes tomorrow's mourning.

                                                  III.

   To constitutionalize a right to post-conviction DNA testing in fed-
eral court in the first instance would have unfortunate consequences
for our federalism as well. To recognize a § 1983 claim here, we
would effectively have to overrule this court's decision in Hamlin v.
Warren, 664 F.2d 29 (4th Cir. 1981), and the Supreme Court's deci-
sion in Preiser v. Rodriguez, 411 U.S. 475 (1973). The lesson of
Hamlin and Preiser is that the state courts should have the first
chance to review challenges to a state judgment of conviction. But
Harvey never presented his claim in the Virginia courts until after the
panel had heard oral argument in this case.

   This court in Hamlin recognized the reality of such a situation
when we held that a prisoner's § 1983 claim had to proceed under the
habeas framework when the prisoner was seeking to establish "every
predicate" for a subsequent request for release. 664 F.2d at 30, 32. We
concluded that when a complaint "has all the earmarks of a deliberate
attempt to subvert the [exhaustion] requirement of [28 U.S.C.]
§ 2254(b)," a petitioner must observe the habeas requirements, "not-
withstanding the absence of any request for release." Id. at 32.

   This fundamental doctrine ensures that states will be given at least
the initial chance to review their own judgments before a federal court
jumps into the fray. As the Supreme Court emphasized in Preiser, the
exhaustion requirement "is rooted in considerations of federal-state
comity," and it would "wholly frustrate explicit congressional intent"
to allow state prisoners to evade the exhaustion requirement "by the

                                                   9
simple expedient" of putting a § 1983 label on their pleadings. 411
U.S. at 489-92 & n.10.

    The separate opinion contends that Heck v. Humphrey, 512 U.S.
477 (1994), "was actually a quite narrow decision," and that Heck
would allow Harvey's claim to proceed under § 1983. Post at 17.
However, the whole point of Heck was to keep a state prisoner from
challenging his conviction in federal court in the first instance through
an unexhausted habeas claim masquerading as a § 1983 claim.
Indeed, the requirement that a state prisoner exhaust state remedies
before challenging his conviction in federal court has such a basic
place in Supreme Court jurisprudence that it hardly needs mentioning.
See, e.g., Rose v. Lundy, 455 U.S. 509, 515 (1982) (explaining that
"[t]he exhaustion doctrine existed long before its codification by Con-
gress in 1948"). It is inconceivable that Heck meant to displace this
long line of Supreme Court precedent on the exhaustion requirement,
or that it stands for the proposition that claims such as Harvey's may
proceed ab initio in federal court.

                                                  IV.

   Harvey achieved the relief he sought through the state courts and
the state legislatures. And our decision in his case respects the proper
role of the federal courts within the federal system. The separate opin-
ion does just the opposite. With little hesitation, my colleague disre-
gards the roles of all the other actors in the American system. His
approach overturns longstanding Supreme Court precedent, to which
lower court judges and even the Justices themselves owe deference.
His view makes the Congress of the United States a subordinate
player on the very difficult questions involved in determining the enti-
tlements of individuals to the fruits of scientific advances. His
approach treats both state legislatures and state court systems as
junior partners with respect to their own trials and judgments.

  With all respect, there is a better way.

LUTTIG, Circuit Judge, respecting the denial of rehearing en banc:

   I concur in the court's judgment to deny rehearing of this case en
banc, but I do so only because it appears that appellee Harvey will,

                                                  10
pursuant to state court order entered after our panel's decision, be
afforded the chance to subject the forensic evidence in question to
further DNA tests — the same relief that he seeks from this court. In
light of this order, we likely do not have the authority to rehear this
case even before the panel, much less before the court en banc. How-
ever, were it not for this intervening state court action, in my view
this case would have been appropriate for full court review. For I
believe that both the threshold procedural question of whether appel-
lee asserts a cause of action under 42 U.S.C. § 1983 and the funda-
mental constitutional question of whether there exists under the
Constitution of the United States a right, post-conviction, to access
previously-produced forensic evidence for the purposes of further
DNA testing are important questions of law. And I believe that each
question was decided incorrectly by the panel whose decisions have
been drawn into question by appellee's petition for rehearing en banc.

   So believing, and having no other opportunity to express my views
on these important questions — the panel opinion now constituting
the law of our Circuit — I set forth those views herein.

                                                  I.

   Because of scientific advances in the testing of deoxyribonucleic
acid, particularly Short Tandem Repeat (STR) DNA testing, one of
the most important criminal law issues of our day is whether there
exists under the Constitution of the United States a right, post-
conviction, to access previously-produced forensic evidence for pur-
poses of such, and related, DNA testing in order to establish — before
the executive, if not also before the courts — one's complete inno-
cence of the crime for which he has been convicted and sentenced.
This issue is of especial importance where the right is asserted by one
who, for capital offense, has been sentenced to death, but the principle
at stake is no different for one who has been sentenced not to death,
but to a term of extended incarceration.

   STR DNA and related techniques represent historic scientific
developments, increasing exponentially the reliability of forensic
identification over earlier techniques. There is now widespread agree-
ment within the scientific community that this technology, which
requires literally cellular-size samples only, can distinguish between

                                                  11
any two individuals on the planet, other than identical twins, the sta-
tistical probabilities of STR DNA matches ranging in the hundreds of
billions, if not trillions. In other words, STR DNA tests can, in certain
circumstances, establish to a virtual certainty whether a given individ-
ual did or did not commit a particular crime.1
____________________________________________________________
   1
     While it is both unnecessary and impossible to canvass the now vast
literature on the new forensic DNA technology, this technology is quali-
tatively different from all that proceeded it. Current techniques can often
yield reliable results from even a single cell, see I. Findlay et al., DNA
Fingerprinting from Single Cells, 389 Nature 555 (1997). Thus, for
example, one single sperm cell recovered in a sexual assault case could
exonerate (or inculpate) the defendant. And generally, a mere 50-100
cells suffice. See National Institute for Justice, Postconviction DNA Test-
ing: Recommendations for Handling Requests xv (1999). Identifications
have been made based on cells left on briefcase handles, car keys, and
telephone handsets used by suspects. See Roland van Oorschot & Max-
well Jones, DNA Fingerprints from Fingerprints, 387 Nature 767 (1997).
Moreover, STR testing is capable of producing information even when
samples are severely degraded. See Lucia Sacchetti et al., Efficiency of
Two Different Nine-Loci Short Tandem Repeat Systems for DNA Typ-
ing Purposes, 45 Clinical Chemistry 178, 181 (1999).

    The current standard STR test examines 13 independent regions of
DNA ("loci"), see National Institute for Justice, Improved Analysis of
DNA Short Tandem Repeats 2 (2001), although testing at just 8-10 loci
usually is sufficient to distinguish between any two persons who are not
identical twins. See Devlin et al., Statistical Evaluation of DNA Finger-
printing: A Critique of the NRC's Report, 259 Science 748 (1993). In
fact, researchers have found that the probability that any two unrelated
individuals match at 9 specific loci (the "matching probability") is
approximately 1 in 740 billion. See Lucia Sacchetti et al., Efficiency of
Two Different Nine-Loci Short Tandem Repeat Systems for DNA Typ-
ing Purposes, 45 Clinical Chemistry 178, 182 (1999); see also Stephen
J. Cina et al., 21 Am. J. Forensic Medical Pathology 97 (2000) (reporting
matching probability of 1 in 643 billion in 8 loci system among white
women). Because the standard test probes 13 loci (not 8 or 9), it should
be correspondingly more powerful. Even the most conservative estimates
have placed this matching probability as high as 1 in 100 billion, see
Improved Analysis at 15. It is also worth noting that some current genera-
tion STR systems have matching probabilities on the order of 1 in 1 qua-
drillion. See Mark Benecke, DNA Typing in Forensic Medicine and in
Criminal Investigations: A Current Survey, 84 Naturwissenschaften 181,

                                                   12
   These scientific advances, which have rendered it literally possible
to confirm guilt or innocence beyond any question whatsoever, at
least in some categories of cases, are no ordinary developments, even
for science. And neither can they be treated as ordinary developments
for law, as fully understandable is the temptation to do so because of
the exceedingly difficult issues that otherwise are brought forth.
Instead, permitting as they do the generation of evidence qualitatively
like no other previously known, these scientific advances must be rec-
ognized for the singularly significant developments that they are —
in the class of cases for which they actually can prove factual inno-
cence, the evidentiary equivalent of "watershed" rules of constitu-
tional law. See Teague v. Lane, 489 U.S. 288 (1989). And the
questions these significant developments beget must in turn be recog-
nized for the serious constitutional questions that they are.

    I believe that judicial recognition of this new science, and of the
profound questions that it occasions, should, given law's foundational
concern for the determination of guilt and innocence, be unbegrudg-
ing. It is fully warranted, in the first instance, for all to be concerned
over the burdens to our system of justice that will attend recognition
of a constitutional right of access to DNA evidence post-conviction.
If such a right is determined to exist, it is thereafter equally warranted
to be concerned over the standards governing first, entitlement to such
access, and second, the use in the courts, if any, of the results
obtained from DNA tests.

   But no one, regardless of his political, philosophical, or jurispru-
dential disposition, should otherwise be troubled that a person who
was convicted in accordance with law might thereafter be set free,
____________________________________________________________

183 (1997). For purposes of understanding the magnitude of these fig-
ures of probability, it is estimated that there are only 6 billion persons on
the planet. See http://www.un.org/esa/population/demobase.

   Thus does it follow that, in certain cases, STR DNA evidence is capa-
ble of exonerating defendants (or those wrongly convicted) to a practical
certainty. See generally David J. Balding & Peter Donnelly, Inferring
Identity from DNA Profile Evidence, 92 Proc. Nat'l Acad. Sci. 11741
(1995) (developing a framework for statistical analysis of DNA evidence
that includes non-DNA factors).

                                                   13
either by the executive or by the courts, because of evidence that pro-
vides absolute proof that he did not in fact commit the crime for
which he was convicted. Such is not an indictment of our system of
justice which, while insisting upon a very high degree of proof for
conviction, does not, after all, require proof beyond all doubt, and
therefore is capable of producing erroneous determinations of both
guilt and innocence. To the contrary, it would be a high credit to our
system of justice that it recognizes the need for, and imperative of, a
safety valve in those rare instances where objective proof that the
convicted actually did not commit the offense later becomes available
through the progress of science. Indeed, if it is agreed that, in a given
class of cases, it would be possible to establish to a certainty through
such further analysis that one did not in fact commit the crime for
which he was convicted and sentenced, then grave harm would come
to the Constitution were it to be dismissively interpreted as foreclos-
ing access to such evidence under any and all circumstances and for
any and all purposes (judicial or even executive). The Constitution is
not so static.

   As I allude to, this is not at all to say that post-conviction access
to evidence for further testing in light of scientific advance is (or
ought to be) constitutionally required or permitted as a matter of
course or even frequently. It should not be, not only because of the
presumption of correctness rightly enjoyed by final judgments of con-
viction and the separate, indisputable interest in the finality of such
judgments, but also because of the reality that only rarely will further
testing hold out the possibility that the convicted actually can be
proven innocent of the crime. Rather, it is only to say that it is unwise
to hold categorically that there is not, under our Constitution, and
never can be, a post-conviction right of access to evidence for the pur-
pose of conducting tests, which, it is agreed, can definitively establish
innocence. Such a categorical holding is no less to be avoided than
a categorical holding that actual innocence is not, and can never be,
a freestanding constitutional right. To hold either is simply to confer
a sanctity upon finality that not even that concededly substantial inter-
est deserves.

                                                   II.

   The questions of whether there is or is not a constitutional post-
conviction right to access evidence for purposes of DNA testing, and

                                                   14
if there is such a right, the circumstances under which that right may
be asserted, are not ones that courts should particularly relish decision
upon, so difficult and delicate, I believe, are the answers to these
questions. However, these questions cannot long be avoided, now that
the science is available. And, indeed, depending upon how one
answers the threshold question of whether the assertion of such a right
of access is a direct challenge to one's conviction or, instead, an inde-
pendent constitutional claim under 42 U.S.C. § 1983, these ultimate
constitutional questions may well be (and, for the reasons recited
below, I believe are) directly presented in the case before us.

    Under applicable Supreme Court precedent, if the assertion of a
post-conviction right of access to evidence for STR DNA testing that
is herein made by appellee "necessarily implies" the invalidity of his
conviction or sentence, then that right must be adjudicated in habeas
corpus; a section 1983 claim does not lie, as a matter of law; and,
given that in this case leave was not sought to raise the issue succes-
sively, the delicate question of whether such a right exists under the
Constitution not only can be, but ought be in the interest of prudence,
avoided. On the other hand, if the assertion of this right does not nec-
essarily imply the invalidity of the underlying conviction or sentence,
but, rather, is properly understood as independent of any attack on the
underlying conviction or sentence, then the instant case directly and
unavoidably presents the exceedingly difficult and delicate questions
of whether such a constitutional right to access previously-produced
forensic evidence post-conviction for purposes of STR DNA testing
does exist and, if it does, the circumstances under which it may be
asserted. For, in the judgment under review, the distinguished district
court judge held not only that there is such a right of access to evi-
dence under the Constitution assertable under section 1983, but that
that right would be abridged in this case were the requested access
denied.

   The majority of our court, in a holding of significance in its own
right, reversed the district court's threshold judgment, concluding that
the assertion of a post-conviction right to evidence for the purpose of
STR DNA testing "necessarily impl[ies] the invalidity of [Harvey's]
conviction," Harvey v. Horan, 278 F.3d 370, 374 (2002) (quoting
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Consequently, it
held that appellee did not, and could not, state a claim for relief under

                                                  15
section 1983. Id. Thereafter, although it need not have done so, the
majority proceeded also to hold, on the underlying fundamental con-
stitutional question, that there is no right under the Constitution to
access evidence post-conviction for STR DNA testing under any cir-
cumstance, for any purpose.

   I would prefer not to have to address even the threshold, much less
the fundamental constitutional, question in the posture of an opinion
respecting a denial of rehearing en banc. However, the panel's deci-
sion now constituting the law of our Circuit, this is the proper and
only context in which to express my views on the important matters
decided. This being the case, I believe that the court erred in both of
its holdings, and, at least in the first (if not also in the second), fairly
clearly so.

   I do not believe that the assertion of a constitutional right of access
to evidence post-conviction even arguably implies, let alone "neces-
sarily implies," the invalidity of the petitioner's conviction or sen-
tence, as it must in order to be foreclosed under Heck v. Humphrey.
If one concludes, as would I, that the access claim is one properly
brought under section 1983, then the fundamental question of whether
there is a constitutional post-conviction right to evidence for purposes
of STR DNA testing must be decided. As to this question, I believe,
also contrary to the majority, that there is a residual, core liberty inter-
est protected by the Due Process Clause of the Fourteenth Amend-
ment which, in certain, very limited circumstances, gives rise to a
procedural due process right to access previously-produced forensic
evidence for purposes of STR DNA testing.

                                                     A.

   As to the threshold procedural question, I do not believe it even
arguable that a post-conviction action merely to permit access to evi-
dence for the purpose of STR DNA testing "necessarily implies" inva-
lidity of the underlying conviction. Indeed, such necessarily implies
nothing at all about the plaintiff's conviction. It certainly implies
nothing more (and arguably it implies a good deal less) than does an
assertion of constitutional right to material and exculpatory informa-
tion producible under Brady v. Maryland, 373 U.S. 83 (1963), which
has never been thought necessarily to imply the invalidity of the

                                                     16
underlying conviction. The results of any DNA tests that are eventu-
ally performed may be inconclusive, they may be insufficiently excul-
patory, or they may even be inculpatory. That these scientific
possibilities exist, in and of itself, suffices to establish that the
asserted right of mere access is not a direct, or for that matter even
an indirect, attack on one's conviction or sentence. But if this were
not enough to establish the point, then it should be that, in order to
overturn a conviction based on exculpatory evidence that might
appear from any DNA testing, the petitioner would have to initiate an
entirely separate action at some future date, in which he would have
to argue for his release upon the basis of a separate constitutional
violation altogether.

   In sum, on no understanding would a plaintiff's action for mere
access to evidence, "even if successful," "demonstrate the invalidity
of any outstanding criminal judgment." Heck, 512 U.S. at 487. There-
fore, on the direct authority of Heck, which properly was actually a
quite narrow decision, "the action should be allowed to proceed in the
absence of some other bar to the suit." Id .

   Such an assertion of a right only to access is, in principle, wholly
unlike the claims asserted in Heck for an assertedly illegal investiga-
tion and arrest. Those claims, the Supreme Court reasoned, were most
analogous to the common-law cause of action for malicious prosecu-
tion, id. at 484, which required the plaintiff-accused to allege and
prove the termination of the prior criminal proceeding in his favor. Id.
Indeed, the almost polar difference between the claims in Heck for
"actions whose unlawfulness would render a conviction or sentence
invalid," id. at 486, and the claim of right merely to access evidence
for the purpose of further tests, the results of which may even prove
the defendant's guilt beyond any question, is virtual confirmation that
the latter is not a challenge to one's conviction or sentence, but,
rather, an assertion of an independent constitutional right.

   The specific examples that the Supreme Court offered to illustrate
the line of distinction between a cause of action that necessarily
implies the invalidity of a conviction and one that does not, remove
any doubt on this score. As an illustration of the former, the Court
offered the example of a state defendant who was convicted of resist-
ing a lawful arrest and brings an action under section 1983 for an

                                                   17
unreasonable seizure in violation of the Fourth Amendment. See
Heck, 512 U.S. at 486, n.6. Such an action would be barred, explained
the Court, because, "[i]n order to prevail in this § 1983 action, [the
state defendant] would have to negate an element of the offense of
which he has been convicted," id. (emphasis added) — that element
being that the arrest was lawful.

    On the other end of the continuum, as an illustration of a cause of
action that would be allowed to proceed under section 1983, the Court
offered the example of a plaintiff who brings a section 1983 action
for damages for an unlawful search that produced the evidence on the
basis of which the plaintiff was convicted. Id. at 487 n.7. Because the
fruits of that (possibly illegal) search might ultimately be admissible
under the independent source or inevitable discovery doctrines, or
their admission be deemed harmless error, the Court explained, this
plaintiff's section 1983 action, "even if successful, would not neces-
sarily imply that the plaintiff's conviction was unlawful." Id. (empha-
sis in original).

   That the Court snugly drew the fault line to the necessity that the
success of the 1983 action depend upon proof that the underlying con-
viction is invalid if it is to be foreclosed, is evident from its insistence
upon negation of an offense element in the first example and its own
revealing italicization of the imperative in the latter.

   The implications for the present case of so tightly drawing the line
are apparent. In the extent to which it implies invalidity of the under-
lying conviction, a claim of constitutional right of access to evidence
for DNA testing does not even approach the claim that was said by
the Court in its footnote 7 not to necessarily imply the invalidity of
the conviction; further still is such a claim from the one that the Court
said in its footnote 6 would necessarily imply the invalidity of the
conviction. The plaintiff who presents a claim of constitutional right
of access to evidence does not even have to rely upon an exception
in law to avoid what would otherwise be the unavoidable conclusion
that the plaintiff's complaint of an unlawful search would necessarily
draw into question his underlying conviction; and the plaintiff who
merely seeks access to evidence for testing certainly is not required
to "negate an element of the offense of which he has been convicted,"
Heck, 512 U.S. at 486 n.6, in order to prevail.

                                                     18
   The conclusion is inescapable from these examples (even if it were
not from the reasoning of the opinion itself) that the claim of a right
of access to evidence is not one that in any respect implies the inva-
lidity of the claimant's conviction and sentence.

   Not only does such a conclusion seem unassailable under Heck v.
Humphrey, but in a twist to be sure, it is all but, if not fully, estab-
lished by two (frankly striking) passages from the majority's own
opinion. In the first, the majority writes as follows:

        [Section] 1983 exists for the more limited purpose of
        redressing violations of the Constitution and federal statutes.
        Harvey has made no argument that his conviction violates
        the Constitution or any federal law. In fact, at oral argument
        Harvey conceded that he received due process under the law
        and under the science in existence when he was convicted
        in 1990. To confer upon Harvey a wide-ranging constitu-
        tional right in the absence of any argument that his underly-
        ing conviction violated the Constitution or a federal statute
        is simply beyond judicial competence.

Harvey, 278 F.3d at 376 (emphasis added). And in the second, com-
bined passage, the majority states, equally tellingly, that,

        Harvey is seeking access to DNA evidence for one reason
        and one reason only — as the first step in undermining his
        conviction. He believes that the DNA test results will be
        favorable and will allow him to bring a subsequent motion
        to invalidate his conviction. . . . Harvey is attempting to
        . . . use his claim for access to evidence to set the stage for
        a future attack on his confinement.

Id. at 375, 378 (emphases added). Standing alone, as they do, against
what are only conclusory statements by the majority to the contrary,
I believe that these passages establish beyond any question that, even
on the majority's own understanding, appellee's access claim does
not "necessarily imply" the invalidity of his conviction, and therefore
that he has properly alleged a cause of action under section 1983.

                                                    19
   I am not entirely clear how the majority comes to the contrary con-
clusion. It appears, however, that in effect it mistakenly analyzed
appellee's claim as if it were one alleging a constitutional right not
to be punished upon proof of actual innocence (proof in the form of
the STR DNA results appellee hopes will emerge from the tests he
wishes to have performed if his asserted right to access is accepted).
This claim would indeed be foreclosed by Heck, because it would
"necessarily imply" the invalidity of appellee's conviction and sen-
tence. But this is not the claim that appellee makes. His, rather, is an
antecedent claim to such a factual innocence claim. For the reasons
recited, such a claim in no way implies, much less "necessarily
implies," the invalidity of appellee's conviction or sentence.

                                                   B.

    On the understanding that appellee's claim is, as he contends, prop-
erly brought under 42 U.S.C. § 1983, I believe, for the reasons I have
identified, that there is an affirmative obligation to decide the funda-
mental constitutional question presented by this case. That question
is not, as the majority characterizes it, whether we are "to declare a
general constitutional right for every inmate to continually challenge
a valid conviction based on whatever technological advances may
have occurred since his conviction became final." Harvey, 278 F.3d
at 375 (emphasis added). Nor is it whether we are to"[e]stablish[ ] a
constitutional due process right under § 1983 to retest evidence with
each forward step in forensic science." Id. at 376 (emphasis added).
The beauty of these questions (whether intended or not) is that they
carry with them easy answers, answers to which there would likely
not even be dissent.

   The far narrower question that we are asked to decide, which is
considerably more difficult and consequently more difficult to dismiss
with the back of the hand, is whether there exists a constitutional
right, post-conviction, to access previously-produced forensic evi-
dence for the purpose of DNA retesting in light of the particular,
extra-ordinary scientific advance represented by STR and its related
techniques, which it is agreed have the potential in certain instances
to prove beyond all doubt whether the requesting person in fact com-
mitted the crime for which he was convicted and sentenced. The
asserted right at issue is not one to material, exculpatory evidence

                                                   20
necessary to ensure a fair trial. See Brady v. Maryland, 373 U.S. 83.
It is not a right of "factual innocence." See Herrera v. Collins, 506
U.S. 390 (1993). Nor is it one of right to the preservation of poten-
tially exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51
(1988). At least as classically understood, it is not a right of proce-
dural due process. And neither is it a typical substantive due process
right. But it is a right that legitimately draws upon the principles that
underlay all of these — a conceptual and constitutional fact that
understandably eluded, at the same time that it confounded, the
majority and the concurrence, appellant, and even appellee.

   As to this fundamental constitutional question, I understand the
majority to hold that there exists no such right of access to evidence
post-conviction, regardless of the circumstance.2 But regardless
                                                                             (Text continued on page 23)
____________________________________________________________
   2
     I do not believe that there is any question that the majority's rejection
of a right to access evidence for post-conviction DNA testing is a hold-
ing, rather than a mere expression of opinion in dicta. And certainly liti-
gants must now proceed on the understanding that this court has rejected
such a right. The majority's statements rejecting any such right are many
and unequivocal. See, e.g., Harvey, 278 F.3d at 372 ("The district court
found that Harvey had a due process right of access to the DNA evidence
and a right to conduct testing upon the evidence using technology that
was unavailable at the time of his trial and at the time his conviction
became final. . . . We disagree."); id. at 375 n.1 ("In sum, the second sec-
tion of our concurring brother's opinion [in which, according to the
majority, see Harvey, 278 F.3d at 380 n.3, the concurrence "addresses
and rejects a variety of theories under which a § 1983 action may lie" for
the government's refusal to permit Harvey access to evidence for DNA
testing] underscores why the broad-ranging right intimated in the first
section cannot exist."); id. at 375-76 ("Harvey would have this court
fashion a substantive right to post-conviction DNA testing out of whole
cloth or the vague contours of the Due Process Clause. . . . The possibil-
ity of post-conviction developments, whether in law or science, is simply
too great to justify judicially sanctioned constitutional attacks upon final
criminal judgments."); id. at 376 ("Establishing a constitutional due pro-
cess right under § 1983 to retest evidence with each forward step in
forensic science would leave perfectly valid judgments in a perpetually
unsettled state. This we cannot do."); id. ("While finality is not the sole
value in the criminal justice system, neither is it subject to the kind of
blunt abrogation that would occur with the recognition of a due process

                                                   21
entitlement to post-conviction access to DNA evidence."); id. ("To con-
fer upon Harvey a wide-ranging constitutional right in the absence of any
argument that his underlying conviction violated the Constitution or a
federal statute is simply beyond judicial competence."); id. ("In holding
that Harvey has failed to state a claim under § 1983, we do not declare
that criminal defendants should not be allowed to avail themselves of
advances in technology. Rather, our decision reflects the core democratic
ideal that if this entitlement is to be conferred, it should be accomplished
by legislative action rather than by a federal court as a matter of consti-
tutional right." (emphases added)); id. at 377 ("Harvey urged us to use
the balancing test of Mathews v. Eldridge to fashion a broad constitu-
tional due process right of access to DNA testing. . . . Establishing a fed-
erally supervised right of access via Mathews [v. Eldridge] would cut off
th[e] ongoing process [of legislative consideration] and place the federal
courts in a distinctly legislative posture." (citations omitted)); id. at 380
("Fashioning a new federal constitutional right that would govern all
prisoners in all states is not a permissible way of addressing the question
of post-conviction testing."); id. at 380 n.3 ("The opinion of our concur-
ring colleague likewise underscores the limitations of a § 1983 action by
a state prisoner to secure evidence in federal courts." (emphasis added));
see also id. at 381 (King, J., concurring in part and concurring in the
judgment) (noting his agreement with the majority's conclusions that
"the district court erred in concluding that Harvey's denial of post-
conviction access to the biological evidence relating to his rape convic-
tion contravened the requirements of Brady v. Maryland, 373 U.S. 83
(1963), and that Harvey's due process rights were violated by the con-
duct of the Commonwealth Attorney.").

   The majority begins its Part IIA treatment of the merits of appellee's
evidentiary access claim as if to follow were merely a discussion of the
implications of allowing actions that are actually challenges to one's
underlying conviction or sentence to proceed under section 1983. See
Harvey, 278 F.3d at 375 ("The implications of circumventing Heck are
no small matter."). However, what follows is not this at all, but, rather,
a discussion of the implications of recognizing a post-conviction consti-
tutional right of access to evidence for the purpose of DNA testing, fol-
lowed in turn by the majority's conclusion that"[t]he possibility of post-
conviction developments, whether in law or science, is simply too great
to justify judicially sanctioned constitutional attacks upon final criminal
judgments." Id. at 376. That is, the majority summarizes its discussion

                                                   22
whether one understands the majority's conclusion as a holding or as
mere dicta,3 I believe that, in its conclusion that no right of access to
evidence post-conviction exists under the Constitution, the court also
erred.

                                                    1.

   I believe, and would hold, that there does exist such a post-
conviction right of access to evidence.

    Even those in our society who have been lawfully deprived of their
freedom retain residual, substantive liberty interests protected by the
Fourteenth Amendment. See, e.g., Youngberg v. Romeo, 457 U.S.
307, 315 (1982) ("The mere fact that [petitioner] has been committed
under proper procedures does not deprive him of all substantive lib-
erty interests under the Fourteenth Amendment." (citation omitted));
id. at 315-16 (noting that the incarcerated have liberty interest in food,
shelter, and clothing, and holding that prisoners also retain liberty
interest in personal security (citing Ingraham v. Wright, 430 U.S. 651,
673 (1977), and Hutto v. Finney, 437 U.S. 678 (1978))); Vitek v.
____________________________________________________________

not with the conclusion that recognizing a cause of action under section
1983 to raise challenges to one's conviction or sentence would be detri-
mental to finality, but with the significantly different, and significant,
conclusion that recognition of the particular right to access evidence
post-conviction would come at too great a cost to the finality interest.
And for that reason does the majority hold that no such right exists. Id.
("In so holding . . . .").
   3
     I suppose one could argue, on a theory that a court cannot possibly
render a holding on a question unless it is absolutely essential to the
court's disposition of the case, that the majority's extensive discussions
and rejection of such a right can only be dicta. However, as a member
on a court panel, I would never regard myself as at liberty after today,
in the face of the majority's clear, repeated, and unequivocal statements,
see note 2 supra, to hold that there is a constitutional right of access to
evidence post-conviction for purposes of DNA testing. I would never
consign such statements to dicta, where, as here, they are made on an
issue of this importance, as to which the members of the court have obvi-
ously given the most careful consideration. To do so would, in my view,
be to disrespect the precedent established by my colleagues.

                                                    23
Jones, 445 U.S. 480, 491-94 (1980) (holding that convicted felon
retains a liberty interest, not extinguished by his confinement, in not
being transferred to a mental institution without due process); cf.
Foucha v. Louisiana, 504 U.S. 71, 78-79 (1992) (insanity acquitee
retains residual liberty interest, protected by due process, in not being
committed to mental institution after he is no longer mentally ill and
no longer poses a danger to himself or others); Morrissey v. Brewer,
408 U.S. 471, 482 (1972) (holding that parolee has an "indeterminate"
liberty interest which "includes many of the core values of unquali-
fied liberty").

   And, indeed, the core liberty interest protected by the Fourteenth
Amendment — freedom from bodily restraint — itself, residually sur-
vives conviction and incarceration. See, e.g., Foucha, 504 U.S. at 80
("Freedom from bodily restraint has always been at the core of the
liberty protected by the Due Process Clause from arbitrary govern-
mental action."); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,
18 (1979) (POWELL, J., concurring in part and dissenting in part)
(noting that "[l]iberty from bodily restraint always has been recog-
nized as the core of the liberty protected by the Due Process Clause
from arbitrary governmental action"); see also Youngberg, 457 U.S.
at 316 (quoting Greenholtz, 442 U.S. at 18 (POWELL, J., concurring
in part and dissenting in part), and noting that"[t]his interest [in free-
dom from bodily restraint] survives criminal conviction and incarcer-
ation").

   Were I writing on a clean slate, I would conclude that one retains,
even after conviction and sentence, not only a protected liberty inter-
est in his core right to freedom from bodily restraint, but also a pro-
tected liberty interest to pursue his freedom from confinement, though
obviously after conviction these interests are residual and considera-
bly reduced (to say the least) from those existing pre-conviction.
There may even be an interest in freedom from confinement itself,
although such a conclusion arguably is foreclosed by precedent. Chief
Justice Rehnquist writing in Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 (1998), in an opinion for four Members of the Court,
said that an individual who has been lawfully convicted no longer
possesses a cognizable due process interest in his actual release from
confinement through clemency, whether he is sentenced to a term of
imprisonment or to death. See id. at 283 ("There is no substantive

                                                    24
expectation of clemency."). An interest in release, by the executive,
through parole, pardon or commutation, he explained, "is indistin-
guishable from the initial resistance to being confined, and that inter-
est has already been extinguished by the conviction and sentence." Id.
at 280 (internal quotations and citations omitted); see also id. at 282
(quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465
(1981)).

   However, it is not entirely clear that a majority of the Court agrees
that there is no liberty interest at all in one's freedom from confine-
ment post-conviction. Justice O'Connor, for herself and three differ-
ent Justices from those who joined the Chief Justice, wrote separately
in Ohio Adult Parole Authority, concurring in part and concurring in
the judgment only. Although disagreeing with the Chief Justice that
a prisoner under sentence of death no longer retains a life interest cog-
nizable under the Due Process Clause, id.; 4 see also id. at 290-95
(opinion of STEVENS, J., concurring in part and dissenting in part)
(agreeing that liberty interest in release is "extinguished" upon lawful
conviction and sentence and that cognizable life interest continues for
one sentenced to death), Justice O'Connor did appear to agree with
the Chief Justice that one's liberty interest "in being free from con-
finement" is "extinguished" once he has been lawfully convicted and
sentenced, see Ohio Adult Parole Authority, 523 U.S. at 288, 289.

   But, while she appeared to agree on this point, she did not distin-
guish between capital and noncapital prisoners in her ultimate conclu-
sion that "some minimal procedural safeguards apply to clemency
proceedings." 523 U.S. at 289 (emphasis in original); see also id.
(observing, again without distinguishing between capital and noncapi-
tal prisoners, that judicial intervention might be in order "in the face
of a scheme whereby a state official flipped a coin to determine
whether to grant clemency, or in a case where the State arbitrarily
denied a prisoner any access to its clemency process"). And more
____________________________________________________________
  4
     Believing that the life interest of the capital prisoner survives his con-
viction and sentence, Justice O'Connor would have held that "some mini-
mal procedural safeguards apply to clemency proceedings." Id. at 289;
see also id. at 292 (opinion of STEVENS, J., concurring in part and dis-
senting in part) (agreeing with Justice O'Connor that "only the most
basic elements of fair procedures are required" in clemency proceedings).

                                                   25
importantly, as the Chief Justice implicitly recognized through his
refusal to draw a distinction between the constitutionally-protected,
post-conviction interests of the capital and the noncapital prisoner, the
"life interest" of the capital prisoner would seem to continue (or not)
to the same extent as does the "liberty interest" of the noncapital pris-
oner. Just as the capital prisoner continues to possess an interest in his
life because he is still alive, so also does the noncapital prisoner con-
tinue to have a liberty interest in his freedom, at least for those days
that remain to be served on his sentence. (Of course, while the Chief
Justice concludes, for his plurality, that both the life and the liberty
interests are "extinguished," I believe that arguably neither is.) Thus,
I am not convinced that, were the issue squarely put before Justice
O'Connor, the three Justices who joined her opinion in Ohio Adult
Parole Authority, and Justice Stevens, these five Justices would con-
clude that the noncapital prisoner possesses no liberty interest whatso-
ever in his freedom from confinement, having concluded as they did
that the capital prisoner continues to possess a life interest in clem-
ency that is cognizable under the Due Process Clause.

   But, even if the noncapital prisoner's liberty interest both in pursu-
ing his freedom and in actually being free from confinement were
completely extinguished upon conviction and sentence, I would hold
that, clemency constituting the safety net of our criminal justice sys-
tem for the prevention of miscarriages of justice, see generally Her-
rera v. Collins, 506 U.S. 390, 411-15, the noncapital prisoner retains
(as does the capital prisoner, I believe), at least a residual, substantive
liberty interest in meaningful access to existing executive mechanisms
of clemency, which access would enable him to pursue his freedom
from confinement from the executive based upon the claim that he is
factually innocent of the crime for which he was convicted. See id.
at 411-12 & n.13 (explaining that clemency is the "historic mecha-
nism" for obtaining relief based upon factual innocence). This interest
exists, I believe, even if there is no independent liberty interest in
these mechanisms themselves; in the particular processes by which
the executive exercises his discretion to grant or deny clemency; or
in the freedom that would result from favorable executive action
obtained through these mechanisms, such as would entitle one under
the Constitution to a clemency procedure, to particular processes
within a clemency procedure, or to actual release pursuant to a clem-
ency procedure. See, e.g., Connecticut Bd. of Pardons v. Dumschat,

                                                    26
452 U.S. 458 (1981); Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1 (1979); Ohio Adult Parole Author-
ity v. Woodard, 523 U.S. 272 (1998); Olim v. Wakinekona, 461 U.S.
238 (1983).5

   I would further hold that, at least in limited circumstances, this sub-
stantive liberty interest is protected through a procedural due process
right to have previously-produced forensic evidence either released to
the convicted individual for STR, or related, DNA testing at his or her
own expense, or submitted by the government for such testing, with
the test results to be provided thereafter to the convicted individual.

   A right of access to evidence for tests which, given the particular
crime for which the individual was convicted and the evidence that
was offered by the government at trial in support of the defendant's
guilt, could prove beyond any doubt that the individual in fact did not
commit the crime, is constitutionally required, I believe, as a matter
of basic fairness. See Mathews v. Eldridge, 424 U.S. 319 (1976); id.
at 334 (holding that due process requires "such procedural protections
as the particular situation demands"); Greenholtz v. Nebraska Penal
Inmates, 442 U.S. at 13-14 (applying Mathews in determining
whether procedures surrounding parole decision satisfied due pro-
cess); id. at 12 ("It is axiomatic that due process `is flexible and calls
____________________________________________________________
   5
     The Supreme Court has held that the convicted does not have an inde-
pendent liberty interest in parole itself (that is, apart from one created by
state procedure), see Greenholtz, 442 U.S. 1; in a commutation itself, see
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. at 464 (holding that
"an inmate has `no constitutional or inherent right' to commutation of his
sentence"); or in a pardon itself, see id. at 465 (holding that a "felon's
expectation that a lawfully imposed sentence will be commuted or that
he will be pardoned is no more substantial than an inmate's expectation,
for example, that he will not be transferred to another prison; it is simply
a unilateral hope"). Moreover, the Court has also held that one does not
possess a liberty interest in mere process, in the absence of any substan-
tive interest. See Olim v. Wakinekona, 461 U.S. 238; see also Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272, 279 n.2 (1998) (noting that
the assertion of an interest merely in process itself "is not a cognizable
claim" (citing Olim v. Wakinekona, 461 U.S. at 249-50).

                                                   27
for such procedural protections as the particular situation [requires].'"
(quoting Morrissey v. Brewer, 408 U.S. at 481)).6
____________________________________________________________
    6
      Largely for the same reasons that I conclude that a claimed constitu-
tional right of access to evidence post-conviction states a cause of action
under 42 U.S.C. § 1983, I believe that Mathews v. Eldridge, rather than
Medina v. California, 505 U.S. 437 (1992), provides the proper analyti-
cal framework for determining whether there exists a procedural due pro-
cess right to such access. The asserted right of access does not entail a
challenge to the underlying conviction, and neither (at least comfortably)
is the state's denial of access equivalent to a state rule of criminal proce-
dure governing the process by which one is tried and found guilty or
innocent of criminal offense.

   However, even were the more demanding standard of Medina applica-
ble, I would come to the same conclusion that, in the limited circum-
stances I have described, access to the evidence is constitutionally
required as a matter of procedural due process.

   In Medina, in reviewing a state's allocation of burden on the question
of competency to stand trial, the Court inquired whether "fundamental
fairness" required a different allocation from the one made by the state.
In the course of this inquiry, the Court examined whether the state's bur-
den allocation "offend[ed] . . . principle [s] of justice so rooted in the tra-
ditions and conscience of our people as to be ranked as fundamental." Id.
at 445 (internal quotations and citations omitted). There may be a suffi-
cient history and tradition, defined at the appropriate level of generality,
to support the existence of a procedural due process right under Medina
like that that I would hold exists under Mathews, were the presence vel
non of that tradition dispositive. We have already required production of
exculpatory evidence to the defendant (per Brady) for a longer period of
time than such had been required at the time Brady was decided, see note
7 infra — a fact that confirms either that the Court will require scant his-
tory to support a right of access to evidence, or (more likely) that the due
process right recognized in Brady was understood to be at a level more
general than that of mere pre-trial discovery.

   But regardless, under Medina, in determining whether fundamental
fairness required a federally-defined burden allocation, the Court consid-
ered factors in addition to whether there was a tradition of allocating the
burden to either the state or the defendant. See 505 U.S. at 447-54; id.
at 448 ("Discerning no historical basis for concluding that the allocation
of the burden of proving incompetence to the defendant violates due pro-
cess, we turn to consider whether the rule transgresses any recognized
principle of `fundamental fairness' in operation." (citation omitted)); id.

                                                    28
   For the better part of a half-century, if not longer, the government
has been required, as a matter of procedural due process, or basic fair-
ness, see Albright v. Oliver, 510 U.S. 266, 273 & n.6 (1994), to pro-
duce to the defendant all potentially exculpatory evidence in order to
ensure that the defendant's trial is fair, see Brady v. Maryland, 373
U.S. 83; cf. Mooney v. Holohan, 294 U.S. 103 (1935), a requirement
that emerged out of recognition that the interest of our criminal justice
system is not only in convicting the guilty but also in ensuring that
the innocent are not wrongfully convicted. See Brady, 373 U.S. at 87
(quoting, as illustrative of fundamental principle requiring disclosure,
inscription on Department of Justice that "[t]he United States wins its
point whenever justice is done its citizens in the courts"); id. at n.2
(also quoting, as reflective of controlling principle, Solicitor General
Sobeloff's remark that the government's "chief business is not to
achieve victory but to establish justice"); see also United States v.
Agurs, 427 U.S. 97, 110-11 (1976) (explaining that the government's
"overriding interest [is] that `justice shall be done'[ ] [and that the
prosecutor] is the `servant of the law, the twofold aim of which is that
guilt shall not escape or innocence suffer" (quoting Berger v. United
States, 295 U.S. 78, 88 (1935))); California v. Trombetta, 467 U.S.
479, 485 (1984) (noting the Court's development of "what might
____________________________________________________________
at 447 (analyzing contemporary practice); id. at 449 (considering
strength of nongovernmental interest implicated). See also id. at 454
(O'CONNOR, J., joined by SOUTER, J., concurring in the judgment)
("Against the historical status quo, I read the Court's opinion to allow
some weight to be given countervailing considerations of fairness in
operation, considerations much like those we evaluated in Mathews. Any
less charitable reading of the Court's opinion would put it at odds with
many of our criminal due process cases, in which we have required states
to institute procedures that were neither required at common law nor
explicitly commanded by the text of the Constitution." (citations omit-
ted)); cf. County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998)
(KENNEDY, J., joined by O'CONNOR, J., concurring) ("That said, it
must be added that history and tradition are the starting point, but not in
all cases the ending point of the substantive due process inquiry."). Based
upon the balancing of all of these factors relied upon by the Court in
Medina, I would conclude that the right of access is required under the
standard of that precedent as well, likewise in the name of fundamental
fairness.

                                                  29
loosely be called the area of constitutionally guaranteed access to evi-
dence" and explaining that these privileges "deliver[ ] exculpatory
evidence into the hands of the accused, thereby protecting the inno-
cent from erroneous conviction and ensuring the integrity of our crim-
inal justice system" (citation omitted)).

   Given that the convicted has been found guilty by a jury, deprived
of his liberty by due process of law, and thus no longer enjoys the
presumption of innocence, no one would contend that fairness, in the
constitutional sense, requires a post-conviction right of access or a
right to disclosure anything approaching in scope that which is
required pre-trial. For instance, it could never be maintained that fair-
ness requires that the convicted be provided with any and all material,
potentially exculpatory information that comes forth post-trial, as is
required pre-trial. But, at least where the government holds
previously-produced forensic evidence, the testing of which conced-
edly could prove beyond any doubt that the defendant did not commit
the crime for which he was convicted, the very same principle of ele-
mental fairness that dictates pre-trial production of all potentially
exculpatory evidence dictates post-trial production of this infinitely
narrower category of evidence. And it does so out of recognition of
the same systemic interests in fairness and ultimate truth.

   There was a time when concealment and gamesmanship were
accepted as part and parcel of the adversarial process of the criminal
justice system. As Professor Wigmore colorfully wrote, in discussion
of both civil and criminal discovery at common law:

        To require the disclosure to an adversary of the evidence
        that is to be produced, would be repugnant to all sportsman-
        like instincts. Thus the common law permitted a litigant to
        reserve his evidential resources (tactics, documents, wit-
        nesses) until the final moment, marshaling them at the trial
        before his surprised and dismayed antagonist. Such was the
        spirit of the common law; and such in part it still is. It did
        not defend or condone trickery and deception; but it did
        regard the concealment of one's evidential resources and the
        preservation of the opponent's defenseless ignorance as a
        fair and irreproachable accompaniment of the game of liti-
        gation.

                                                   30
See 6 Wigmore, Discovery § 1845 at 490 (3d ed. 1940).7 But, in the
____________________________________________________________
  7
     See also Rex v. Holland, 4 Durn. & E. 691, 693, 100 Eng. Rep. 1248
(K.B. 1792) (rejecting a request for discovery in a criminal prosecution
and observing that there is "no principle or precedent to warrant" grant-
ing such a request and "if we were to grant it, it would subvert the whole
system of criminal law") (Lord Kenyon, C.J.); id. at 694 ("The practice
on common law indictments, and on information on particular statutes,
shews it to be clear that this defendant is not entitled to inspect the evi-
dence, on which the prosecution is founded, till the hour of trial.") (Bul-
ler, J.); id. ("It is clear that neither at common law, or under any of the
statutes, is the defendant entitled as a matter of right, to have his applica-
tion granted. And if we were to assume a discretionary power of granting
this request, it would be dangerous in the extreme, and totally unfounded
on precedent.") (Grose, J.); State v. Hall, 325 Mo. 102, 105 (1930)
(denying a request for pre-trial discovery, noting that such disposition is
consistent with decisions of other jurisdictions, and observing that if it
were to grant access to evidence, the defendant could "for like reason,
and upon the same principle, have asked the court to require the state to
produce its witnesses before his counsel, for their examination in regard
to their knowledge of the case, that he might thereby be better prepared
to make his defense; something for which no lawyer would contend")
(citations omitted); State ex. rel. Robertson v. Steele, 117 Minn. 384, 385
(1912) ("Shall a county attorney, prior to trial, be compelled to disclose
the evidence he has against an indicted person? It must be admitted that
under the common law it could not be done."); Wendling v. Common-
wealth, 143 Ky. 587 (1911) ("We know of no practice that makes it
incumbent upon the commonwealth to submit before the trial for the
inspection and examination of the accused or his counsel articles in the
possession of the commonwealth that it proposes to and will introduce
as incriminating evidence against him, but both the accused and his
counsel should have full and free opportunity to examine them when
offered as evidence."); State v. Howard, 191 Iowa 728 (1921) (accused
is not entitled to inspect exhibits, such as a murder weapon, used by the
grand jury); Commonwealth v. Jordan, 207 Mass. 259 (1911) (denying
a request in a homicide case for a pre-trial inspection of an autopsy
report); Santry v. State, 67 Wis. 65 (1886) (denying a request for a pre-
trial inspection of a copy of a convicted co-defendant's confession); cf.
People ex. rel. Lemon v. Supreme Court, 245 N.Y. 24, 32 (1927) (Car-
dozo, J.) (noting the "beginnings or at least glimmerings" of a "power in
courts of criminal jurisdiction [other than in New York] to compel the
discovery of documents in the furtherance of justice," but denying the
motion for discovery of documents that would not be admissible at trial).

                                                   31
interests of both elemental fairness and truth, we decidedly rejected
this system long ago, in favor of one that insists instead upon full dis-
closure of all evidence that might prove innocence. See, e.g., Brady
v. Maryland; United States v. Agurs, 427 U.S. at 108 (noting that the
Court had in Brady "expressly rejected" the "`sporting theory of jus-
tice'"). Under this very different system of full disclosure, it would
simply be "constitutionally intolerable," Herrera v. Collins, 506 U.S.
at 419 (concurring opinion of O'CONNOR, J., joined by KENNEDY,
J.), for the government to withhold from the convicted, for no reason
at all, the very evidence that it used to deprive him of his liberty,
where he persists in his absolute innocence and further tests of the
evidence could, given the circumstances of the crime and the evi-
dence marshaled against the defendant at trial, establish to a certainty
whether he actually is factually innocent of the crime for which he
was convicted. The denial of access in this circumstance would not
be, do I contend, the strict equivalent of bad-faith destruction of
potentially exculpatory evidence. See Arizona v. Youngblood, 488
U.S. 51. But in a system that prizes fairness and truth above all else,
it comes so perilously close to such as not to be permitted. See id. at
337 (holding that due process requires the preservation of evidence
where "the police themselves by their conduct indicate that the evi-
dence could form a basis for exonerating the defendant").

                                                  2.

   As I suggest above, the claimed right of access to evidence par-
takes of both procedural and substantive due process. And with a
claim such as this, the line of demarcation is faint. However, were
there not the procedural due process right to access evidence for STR
and related DNA testing that I believe exists, see Graham v. Connor,
490 U.S. 386 (1989), then I believe that under established Supreme
Court precedent there might well be a straightforward substantive due
process right to such access. See generally Daniels v. Williams, 474
U.S. 327, 331 (1986) (holding that the Due Process Clause "bar[s]
certain government actions regardless of the fairness of the proce-
dures used to implement them"); County of Sacramento v. Lewis, 523
U.S. 833, 856-57 (1998) (KENNEDY, J., joined by O'CONNOR, J.,
concurring) (noting that "[i]t can no longer be controverted that due
process has a substantive component"); cf. Brady v. Maryland, 373
U.S. at 87-88; Herrera v. Collins, 506 U.S. at 417 (assuming

                                                  32
arguendo that there exists a constitutional right not to be executed
upon proof of actual innocence); id. at 419 (O'CONNOR, J., joined
by KENNEDY, J., concurring; citations omitted) (noting agreement
"with the fundamental legal principle that executing the innocent is
inconsistent with the Constitution" and observing that "[r]egardless of
the verbal formula employed . . . the execution of a legally and factu-
ally innocent person would be a constitutionally intolerable event").

   The Court itself has yet to come to rest on the precise scope of the
substantive protections of the Due Process Clause, having rendered at
times, as is relevant to this case, seemingly conflicting opinions on
whether these protections extend beyond those matters that enjoy
respect in our Nation's history and traditions, also to the forbiddance
of arbitrary government conduct. And even as to each of these strands
of substantive due process, the Court is engaged in ongoing debates
over the kind and quality of history and tradition that will suffice to
establish a right and the range of arbitrary governmental action
against which the Due Process Clause protects. I would never attempt
to reconcile (or, for that matter, even to understand) all of the
Supreme Court's own precedents in this most sensitive area of its
jurisprudence. But, arguably, under those precedents the right of
access to evidence is sufficiently supported by the history and tradi-
tions that our criminal justice system be fair and that the innocent not
be wrongfully deprived of their liberty, and by our now-settled prac-
tice, adopted in pursuit of the same interests, that all potentially excul-
patory evidence be provided to the accused in advance of trial (and
even to the convicted post-trial, if previously known to the govern-
ment). See note 6 supra; see generally Washington v. Glucksberg,
521 U.S. 702, 720-22 (1997) (holding that "[o]ur Nation's history,
legal traditions, and practices provide the crucial`guideposts for
responsible decisionmaking' that direct and restrain our exposition of
the Due Process Clause" (citation omitted)).

   But if not satisfactorily supported by these longstanding legal tradi-
tions and established practices, then the right of access might very
well be grounded in the patent arbitrariness of denying access to such
evidence in the absence of any governmental interest whatsoever in
the withholding of such. See generally Daniels v. Williams, 474 U.S.
at 331 ("[T]he Due Process Clause . . . was`intended to secure the
individual from the arbitrary exercise of the powers of govern-

                                                  33
ment[,]'" (quoting Hurtado v. California, 110 U.S. 516, 527 (1884);
citations omitted)); County of Sacramento v. Lewis, 523 U.S. 833,
846 (citing Daniels, describing arbitrary governmental action as
including "the exercise of power without any reasonable justification
in the service of a legitimate governmental objective," and holding
that the "cognizable level of executive abuse of power" necessary for
substantive due process claim is "that which shocks the conscience");
County of Sacramento v. Lewis, 523 U.S. at 856-57 (KENNEDY, J.,
joined by O'CONNOR, J., concurring) (observing that "history and
tradition are the starting point, but not in all cases the ending point
of the substantive due process inquiry"). I am reluctant to predict the
Court in this highly subjective area of the law. However, I believe
that, excepting those Justices peculiarly inured in what can be the
ways of bureaucracy, that it could indeed be thought shockingly arbi-
trary that the government would literally dispose of the evidence used
to deny one of his liberty (if not his right to life) before it would turn
that evidence over to the individual, when he steadfastly maintains his
factual innocence and asks only that he be allowed to subject that evi-
dence to tests which, it is conceded, given the evidence introduced at
trial in support of conviction, could prove him absolutely innocent of
the crime.

                                                   3.

   The limited right of access to evidence post-conviction (whether
procedural or substantive) that I conclude is protected by the Consti-
tution, exists, I believe, irrespective of whether the results of any tests
performed could constitute a basis for issuance of a writ of habeas
corpus or even be admissible before a judicial tribunal in the course
of a proceeding to obtain a writ of habeas corpus. But, if further
access to the judicial process is unavailable — either because of pro-
cedural bar or the ultimate rejection of a freestanding constitutional
right not to be punished if actually innocent — then the case for rec-
ognition of this right of access to evidence is all the stronger, if,
indeed, it is not then compelling.

                                                   4.

   That the Constitution would recognize a limited right of access to
previously-produced forensic evidence should be unsurprising. Even

                                                   34
though the incarcerated individual has been deprived of his liberty
through due process of law, he obviously still has a continuing inter-
est in the pursuit of his freedom from the executive through mecha-
nisms of pardon, commutation, and parole that have been established
by the executive (if not also from the judiciary through its processes).
At least in the circumstances where STR or related DNA testing of
previously-provided forensic evidence could prove the individual's
innocence beyond all doubt, this interest is sufficient to outweigh the
government's comparatively insubstantial interest in the withholding
of access to the evidence in question — an interest which I submit is
non-existent where further resort to the judicial process is, under law,
no longer available. Were mere access to such evidence denied in cir-
cumstances where it is possible to prove the individual's innocence
beyond all doubt, the incarcerated would be effectively foreclosed
from recourse to the very executive processes that the Supreme Court
has instructed are, collectively and appropriately, the safety net of our
criminal justice system — and in precisely the circumstances in which
the Court itself has repeatedly said that such recourse should lie,
namely, where the system has failed by convicting the truly innocent.
See Herrera v. Collins, 506 U.S. at 411-12 (observing that
"[c]lemency is deeply rooted in our Anglo-American tradition of law,
and is the historic remedy for preventing miscarriages of justice
where judicial process has been exhausted" (footnotes omitted)); id.
at 412 n.13 (noting that "clemency has provided the historic mecha-
nism for obtaining relief" on claims of actual innocence made after
conclusion of judicial proceedings); id. at 415 ("Executive clemency
has provided the `fail safe' in our criminal justice system.").

   It is one thing to say that further access to the apparatus of the
criminal justice system must at some point be curtailed in the indispu-
table interest of finality. It is another altogether to say that, having
curtailed that access to the courts, one will even be denied access to
evidence in the government's hands that he could present to the exec-
utive in an effort to prevent a miscarriage of justice, after he has been
told that it is the role of the executive, not the courts, to prevent mis-
carriages of justice which, because of finality, are no longer remedia-
ble through the judicial process. Not only would such be
fundamentally unfair; it would constitute, by definition, wholly arbi-
trary governmental conduct.

                                                   35
                                                   C.

    I need not here, given the court's disposition to deny en banc
reconsideration, define with precision the contours of the right of
access to evidence that I believe exists under the Constitution. It is
enough to say, however, that, even as a definitional matter, I would
very narrowly confine the right. Moreover, in addition to cabining the
right through definition at the outset, I would contemplate that the
standards governing when this right may be asserted would be corre-
spondingly strict and limiting. And, of course, this is to say nothing
at all about the issue not before us today, of the circumstances, if any,
under which an individual whose STR DNA test results prove that he
is actually innocent of the crime for which he is incarcerated would
be able to avail himself of the writ of habeas corpus in order to secure
his release.

   As with the recognition of any constitutional right, these parame-
ters and standards must be fleshed out with care. It would ordinarily
be incumbent upon one who identifies the right at least to begin these
tasks of definition and specification. But, given the posture in which
I write, it would be imprudent for me to undertake these formidable
tasks herein.

   I would observe this, however. In light of the inevitable substantive
and procedural limitations that would have to be imposed on the post-
conviction right of access to evidence, I do not believe that there
would be the dire consequences for finality that the majority believes
would necessarily attend recognition of such a right, and on the basis
of which the majority rejects the right. I believe that the majority's
fears in this regard are the result of its failure, as I detail more fully
below, to understand the critical distinction between the question of
whether there is a right under the Constitution to access evidence
post-conviction for purposes of STR DNA testing and the very differ-
ent set of questions relating first, to the procedures required to protect
that right and, second, to the conditions under which the right will be
noticed (if at all) on a writ of habeas corpus.

                                                  36
                                                   D.

   Upon a careful examination of the majority's opinion, it appears
that it rests its contrary holding, that the Constitution does not provide
a right of access to evidence post-conviction for STR DNA testing,
largely on the perceived adverse effects that recognition of such a
right would have upon the finality of criminal judgments.8

   The lion's share of the majority's discussion of the substantive
____________________________________________________________
  8
     The majority rejects that such a right of access exists on at least two
other grounds, as well. In the latter portion of its Part IIA discussion of
the merits of appellee's claim, the court canvasses the various state and
federal legislation that has been introduced to provide for post-conviction
DNA testing, and concludes that a holding that the Constitution provides
a right of access to evidence post-conviction "would judicially preempt
legislative initiatives in this area." Harvey, 278 F.3d at 377. See also id.
("Establishing a federally supervised right of access via Mathews [v.
Eldridge, 424 U.S. 319 (1976),] would cut off this on-going process and
place the federal courts in a distinctly legislative posture.").

   With respect, while these observations are important ones, perhaps
even suggesting the wisdom of refraining from decision of the important
issue of constitutional right if possible, they are unpersuasive as reason
for rejecting the existence of the right that appellee asserts. If conven-
tional constitutional analysis yields the conclusion that there is a right
under the Constitution to access evidence post-conviction for the purpose
of DNA testing, then the fact that there are pending legislative proposals
that would secure the same right is simply irrelevant, except perhaps, as
I note, to the entirely separate question of prudential forbearance. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

   In Part IIB of the majority's opinion, the court rejects appellee's argu-
ment that Brady v. Maryland establishes the right of access for which
appellee argues:

        Harvey does not state a valid Brady [v. Maryland] claim because
        he is not challenging a prosecutor's failure to turn over material,
        exculpatory evidence that, if suppressed, would deprive the
        defendant of a fair trial. Harvey received a fair trial and was
        given the opportunity to test the DNA evidence during his trial
        using the best technology available at the time.

Harvey, 278 F.3d at 378-79 (citations omitted).

                                                   37
merits of appellee's claim appears in Part IIA of the court's opinion.
There, having concluded finally that appellee's action necessarily
implies the invalidity of his conviction and "[a]s such, [that] an action
under 42 U.S.C. § 1983 cannot lie," Harvey, 278 F.3d at 375, the
court turns to the fundamental question of whether there exists a con-
stitutional right to access evidence post-conviction, see id. ("Harvey
would have this court fashion a substantive right to post-conviction
DNA testing out of whole cloth or the vague contours of the Due Pro-
cess Clause."). In the following two pages, the majority's discussion
focuses exclusively on the consequences of recognition of such a right
for society's interest in the finality of criminal judgments. See id. at
375-76. And consistent with this focus, in the only sentences of expla-
nation for the court's rejection of appellee's claim on the merits, the
sole rationale offered is the adverse effects on the finality interest that
would be felt if such a constitutional right were recognized. See id.
at 376 ("The possibility of post-conviction developments, whether in
law or science, is simply too great to justify judicially sanctioned con-
stitutional attacks upon final criminal judgments. In so holding . . . .");
id. ("While finality is not the sole value in the criminal justice system,
neither is it subject to the kind of blunt abrogation that would occur
with the recognition of a due process entitlement to post-conviction
access to DNA evidence.").

   While I hesitate even to make the suggestion, it is almost impossi-
ble to avoid the conclusion from this discussion that, in rejecting
appellee's asserted constitutional right, the majority fundamentally
confused section 1983 and section 2254, or at least the interplay of
these two causes of action post-Heck. That is, it appears that the
majority conflated the underlying section 1983 inquiry (not the Heck
inquiry) of whether a constitutional right of access to evidence post-
conviction exists, with the altogether different section 2254 inquiry of
whether a claim is cognizable on habeas corpus.9 Indeed, the evidence
that the court did just that is all but compelling.
____________________________________________________________
  9
     In fact, at times, the majority even seems to conflate the question
(under Heck) of whether a particular right may be asserted under section
1983 and the question of whether such a right exists under the Constitu-
tion at all. There seems to course through the majority's analysis an
unexamined assumption that if a plaintiff's section 1983 action necessar-
ily implies the invalidity of the underlying conviction, and thus fails to

                                                  38
   First, this appears to be the case from the court's rejection of the
constitutional right on the basis of the adverse effect that recognition
of such a right would have on the finality of criminal convictions. See
Harvey, 278 F.3d at 375-76; see also id. at 375 (framing the issue
presented as whether there is a constitutional right for every inmate
"to continually challenge a valid conviction based on whatever tech-
nological advances may have occurred since his conviction became
final"). If the court had properly understood the distinction between
section 1983 and section 2254, it would have resolved the question
of whether there exists a constitutional right exclusively through con-
ventional constitutional analysis, rather than by exclusive resort to
prudential considerations such as finality, which often do influence
questions of cognizance on habeas corpus.

   In response to what is the conventional legal analysis of appellee's
claim by the concurrence, the majority adds a footnote in which it
lists the various constitutional bases for the existence of a constitu-
tional right to DNA evidence that were considered and rejected by the
concurrence. See Harvey, 278 F.3d at 380 n.3. However, even there,
the majority does not embrace either the concurrence's analysis or its
conclusions; in an opaque statement, it says only that the concurrence
"likewise underscores the limitations of a § 1983 action by a state
prisoner to secure evidence in federal courts." Id.

   Relatedly, of course, if the majority had understood the interplay
between these two causes of action post-Heck, then it would not even
____________________________________________________________

state a claim cognizable under section 1983 per Heck, then the constitu-
tional right asserted does not exist at all. See, e.g., Harvey, 278 F.3d at
376 ("In holding that Harvey has failed to state a claim under § 1983, we
do not declare that criminal defendants should not be allowed to avail
themselves of advances in technology. Rather, our decision reflects the
core democratic ideal that if this entitlement is to be conferred, it should
be accomplished by legislative action rather than by a federal court as a
matter of constitutional right."). In other words, the majority almost
appears to believe that to resolve the issue under Heck is to resolve the
ultimate question of whether there is or is not a right under the Constitu-
tion to access evidence post-conviction for purposes of DNA testing. Of
course, such would be to mistake Heck's holding with respect to cogni-
zance as, instead, a holding with respect to ultimate constitutional right.

                                                  39
have addressed the merits of appellee's claim. For, if it is concluded,
as it was by the majority, that the section 1983 action necessarily
implies the invalidity of the underlying conviction, then under Heck
it follows (but follows only, see note 9 supra) that there is no cogniza-
ble section 1983 action. And no further inquiry into whether there is,
substantively, such a right is either necessary or warranted.

   Second, the confusion that appears logically from the foregoing,
actually appears explicitly in the court's opinion. In a critical para-
graph, which I fear reveals the extent of both the majority's misunder-
standing of the scope of section 1983 and its confusion over the
difference between that cause of action and habeas corpus (perhaps
generally, but at least post-Heck), the court writes as follows:

        Heck teaches that § 1983 does not exist to provide an open-
        ended assault on the finality of criminal judgments. Instead,
        § 1983 exists for the more limited purpose of redressing vio-
        lations of the Constitution and federal statutes. Harvey has
        made no argument that his conviction violates the Constitu-
        tion or any federal law. In fact, at oral argument Harvey
        conceded that he received due process under the law and
        under the science in existence when he was convicted in
        1990. To confer upon Harvey a wide-ranging constitutional
        right in the absence of any argument that his underlying
        conviction violated the Constitution or a federal statute is
        simply beyond judicial competence.

Harvey, 278 F.3d at 376 (emphasis added). Suffice it to say, if Harvey is making no
argument that his underlying conviction is unconstitutional, then it
follows not, as the majority concludes, that he has not asserted a cause
of action under section 1983, but, rather, that he has asserted such a
cause of action (as opposed to one cognizable only on habeas). It is
habeas corpus that exists to relieve one of unconstitutional convic-
tions and sentences, not section 1983; it is for this very reason that
a habeas petitioner must, in order to obtain relief, show that his con-
viction resulted from a violation of the Constitution. There is no
requirement under section 1983 that such a showing be made. This is
precisely the reason for the Supreme Court's holding in Heck that a
cause of action under section 1983 fails to state a claim for which
relief may be granted if it is necessarily an attack on conviction or

                                                    40
sentence; otherwise, section 1983 could indeed be invoked to circum-
vent the requirements and limitations of section 2254.

   Finally, in my view removing any remaining question over the
majority's confusion between section 1983 and section 2254 post-
Heck, after concluding in Part IIA of its opinion that appellee failed
to state a claim under section 1983 because his cause of action neces-
sarily implies the invalidity of his conviction, the court nonetheless
proceeds in Part IIB to undertake the identical analysis (to the one that
it undertook in Part IIA) in order to determine the identical question
that it had just answered in Part IIA. It is almost as if the majority had
written Part IIB of its opinion unaware of Heck, and then added Part
IIA subsequently. Thus, after expressly reaffirming in the first sen-
tence of Part IIB that it had held in Part IIA that "Harvey fails to state
a claim under § 1983," Harvey, 278 F.3d at 377, the majority under-
takes to determine whether Harvey's "claim falls within the federal
habeas corpus statute," because, it says, " [i]f it does, the claim cannot
proceed under § 1983." Id. at 378 (emphasis added).

   This, of course, is the Heck inquiry, which the majority had just
undertaken and completed in Part IIA. The purpose of the Heck
inquiry into whether a plaintiff's section 1983 claim "necessarily
implies" the invalidity of the underlying conviction is to determine
whether that claim is in effect one challenging the fact or duration of
confinement, and thus may only be brought under section 2254. It is
unsurprising, therefore, that the majority's reasoning and conclusion
on this question repeats almost in haec verba the reasoning and con-
clusion from its discussion of the identical question in Part IIA:

        Like the prisoner in Hamlin [v. Warren, 664 F.2d 29 (4th
        Cir. 1981)], Harvey is challenging the validity of his convic-
        tion even though he is not seeking immediate release. Har-
        vey seeks access to DNA evidence to attempt to prove that
        he is innocent. He is trying to use a § 1983 action as a dis-
        covery device to overturn his state conviction. The Supreme
        Court has made clear that habeas corpus relief is available
        "to attack future confinement and obtain future releases."
        Preiser, 411 U.S. at 487. This is precisely what Harvey is
        attempting to do — use his claim for access to evidence to
        set the stage for a future attack on his confinement. There-

                                                   41
        fore, his claim is effectively a petition for a writ of habeas
        corpus.

Harvey, 278 F.3d at 378.10

   Accordingly, even if the majority were correct that there is no con-
stitutional right post-conviction to access evidence for the purpose of
DNA testing, it cannot possibly be for the reasons that it articulates.
Neither the reasons, nor the analysis that is built upon them, can with-
stand critical scrutiny.

                                                   III.

    In summary, I believe that, were it not for the state court's inter-
vening order following release of our panel's opinion, this case would
have been an appropriate one for the full court to consider first,
whether a claimed right of post-conviction access to previously-
produced forensic evidence for the purpose of performing STR DNA
testing is properly brought under 42 U.S.C. § 1983, and second, if it
is properly brought under this provision, whether there is such a right
under the Constitution of the United States. As explained above, I
____________________________________________________________
  10
     In Part IIA, in rejecting appellee's argument that he could proceed
under section 1983, the court reasoned thus:

        [W]e see no reason why [the] rationale [of Heck] would not
        apply in a situation where a criminal defendant seeks injunctive
        relief that necessarily implies the invalidity of his conviction.
        Harvey's § 1983 claim does just that. He seeks access to biologi-
        cal evidence to challenge the fact or duration of his confinement.
        Harvey claims that he is innocent and that further DNA testing
        will lead to his exoneration. Because he seeks to use § 1983 to
        invalidate a final state conviction whose lawfulness has in no
        way been impugned, his suit fails under Heck. . . .

        . . . Harvey is seeking access to DNA evidence for one reason
        and one reason only — as the first step in undermining his con-
        viction. He believes that the DNA test results will be favorable
        and will allow him to bring a subsequent motion to invalidate his
        conviction. As such, an action under 42 U.S.C. § 1983 cannot
        lie.

Harvey, 278 F.3d at 375 (citation omitted).

                                                    42
believe that the court majority incorrectly concluded that such an
assertion of right fails to state a claim under section 1983 and that the
unanimous panel incorrectly held that the Constitution does not pro-
vide a post-conviction right, under any circumstance or for any pur-
pose (judicial or executive), to access previously-produced forensic
evidence for the purpose of conducting STR DNA testing.

    I believe that appellee's claim is one that properly may be pursued
under section 1983. I also believe that, in limited circumstances, there
is a right under the Constitution to access previously-produced foren-
sic evidence for the narrow purpose of STR DNA testing, the results
of which could be presented for consideration to appropriate execu-
tive branch officials — whether or not the claimant would be entitled
to present such results before a court in a petition for writ of habeas
corpus.

   Therefore, had the entire court undertaken reconsideration of the
panel's decision, I would have held that appellee properly asserted a
cause of action under 42 U.S.C. § 1983 and that there is a limited,
constitutional post-conviction right of access to previously-produced
forensic evidence for the purpose of STR and related DNA testing.
Having so held, I would have proceeded to identify the precise cir-
cumstances and standards under which this right may be asserted11
and, thereafter, to determine whether appellee has been denied his
right under the Constitution.12
____________________________________________________________
  11
     Compare, e.g., United States v. Augurs, 427 U.S. at 111 & n.19 (not-
ing that to obtain a new trial based on newly discovered evidence, the
defendant has "to satisfy the severe burden of demonstrating that [such]
evidence probably would have resulted in acquittal"); Immigration and
Naturalization Service v. Abudu, 485 U.S. 94, 107 n.12 (1988) (same),
with Herrera v. Collins, 506 U.S. at 417 (stating that the "threshold
showing for [a claim of actual innocence] would necessarily be extraor-
dinarily high"); id. at 429 (WHITE, J., concurring in judgment) ("To be
entitled to relief, however, [one claiming actual innocence] would at the
very least be required to show that based on proffered newly discovered
evidence and the entire record before the jury that convicted him, `no
rational trier of fact could [find] proof of guilt beyond a reasonable
doubt.'") (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)).
   12
      I cannot imagine any circumstance under which appellee would have
been entitled to damages from appellant in this case, even were it ulti-

                                                  43
   Accordingly, although I concur in today's decision by my col-
leagues not to bring this case before the full court, I do so only
because of the state court's intervening order that the withheld evidence be
provided for STR DNA testing. Though I am satisfied, because of this
order of production, that a denial of rehearing en banc is now the
proper disposition of this particular case, I hope that our panel's con-
clusions will not evade further review in the future — if not by our
court sitting en banc, then otherwise.
____________________________________________________________
mately to have been decided that there had been a violation of appellee's
constitutional right of access to evidence post-conviction and that the
evidence must be provided to appellee. Given the legal landscape against
which it would be held that such a right is protected by the Constitution,
it would be impossible to conclude that appellant violated clearly estab-
lished law in denying appellee the access he seeks. In fact, under existing
law, the Commonwealth's Attorney acted entirely reasonably. It follows,
therefore, that he would have been entitled to qualified immunity regard-
less of any holding by this court.

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