                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 4 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ANTHONY LYLE TARKINGTON,                         No. 13-55911

               Plaintiff - Appellant,            D.C. No. 2:12-cv-04849-JAK-E

  v.
                                                 MEMORANDUM*
WILLIAM SMITH, Jr., Deputy District
Attorney, official capacity; MARY
SANCHEZ, Deputy Attorney General,
official capacity,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                            Submitted August 26, 2014**

Before:        THOMAS, OWENS, and FRIEDLAND, Circuit Judges.

       California state prisoner Anthony Lyle Tarkington appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
post-conviction access to biological evidence for DNA testing. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Lee v. City of Los

Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We affirm.

       The district court properly dismissed Tarkington’s due process claims

because Tarkington failed to allege facts sufficient to state a cognizable claim for

relief. See Skinner v. Switzer, 131 S. Ct. 1289, 1298-1300 (2011) (prisoner can

state a cognizable § 1983 claim by alleging a general constitutional challenge to

state post-conviction DNA testing statute, but not by challenging such statute’s

application in his case; Brady v. Maryland, 373 U.S. 83 (1963), is inapplicable to

due process claims for post-conviction DNA testing); Dist. Attorney’s Office for

the Third Judicial Dist. v. Osborne, 557 U.S. 52, 69-72 (2009) (due process

requires only that the state’s procedures for post-conviction relief do not offend

fundamental principles of justice or transgress any recognized principle of

fundamental fairness in operation); West v. Atkins, 487 U.S. 42, 48 (1988) (“To

state a claim under § 1983, a plaintiff must allege a violation of a right secured by

the Constitution or laws of the United States[.]”).

      The district court did not abuse its discretion in denying Tarkington leave to

amend his complaint because amendment would have been futile. See Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth


                                           2                                    13-55911
the standard of review and noting that the district court may dismiss without leave

to amend when amendment would be futile).

      Tarkington’s contentions concerning discovery and the default judgment

against Smith are unpersuasive.

      AFFIRMED.




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