                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      June 24, 2009
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT



    JAMES MCDANIEL,

                Plaintiff-Appellant,

    v.                                                   No. 08-1400
                                            (D.C. No. 1:08-CV-00223-WDM-MEH)
    JOHN SUTHERS, Colorado Attorney                        (D. Colo.)
    General (official capacity); SCOTT
    STOREY, Jefferson County District
    Attorney (official capacity),

                Defendants-Appellees.

                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         James McDaniel, a Colorado state inmate convicted of first-degree

kidnaping, first-degree sexual assault, and first-degree assault, appeals the entry

of summary judgment in his 42 U.S.C. § 1983 case seeking access to biological

materials collected at the crime scene. We affirm, construing McDaniel’s pro se


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filings liberally, see Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir.

2003), and reviewing the district court’s ruling de novo under “the same standard

the district court should apply under Fed. R. Civ. P. 56(c),” Steffey v. Orman,

461 F.3d 1218, 1221 (10th Cir. 2006) (internal quotations omitted).

      The facts of this case are detailed in the magistrate judge’s comprehensive

report and recommendation, which was accepted by the district court. Because

these facts are familiar to the parties, we need not restate them here. Instead, we

focus on McDaniel’s sole argument on appeal--the district court failed to

recognize that “the United States Constitution provides [him] a substantive and/or

procedural due process right to access remaining, previously untested genetic

materials in [his] criminal case which may or may not prove his actual

innocence.” Aplt. Br. at 2.

      The evidence in contention consists of biological materials taken from the

victim’s person and an item of her clothing. Pre-trial serological testing indicated

a blood type inconsistent with McDaniel but consistent with the victim’s husband.

The prosecution therefore decided to not conduct DNA testing on the materials,

although it performed DNA tests on other crime-scene evidence. McDaniel was

informed of this situation before trial. On the advice of counsel, he elected not to

waive his speedy trial rights in order to perform genetic tests on the evidence.




                                         -2-
      At trial, his attorney argued that the existence of untested evidence raised

a reasonable doubt of McDaniel’s guilt. The jury nevertheless found McDaniel

guilty. McDaniel was sentenced to life imprisonment and a consecutive term of

80 years. On direct appeal, the Colorado Court of Appeals determined that

abundant evidence supported the conviction and affirmed.

      After losing his appeal, McDaniel filed a series of unsuccessful motions

and applications in state and federal court, then petitioned the state trial court for

DNA testing pursuant to Colorado’s postconviction testing provisions. See

Colo. Rev. Stat. §§ 18-1-411 to -416. To be entitled to testing under the Colorado

statute, a petitioner must meet several criteria: (1) a law enforcement agency

collected relevant biological evidence; (2) favorable testing “will demonstrate

[his] actual innocence;” (3) conclusive results were not available prior to the

conviction and he did not secure DNA testing because it “was not reasonably

available or for reasons that constitute justifiable excuse, ineffective assistance or

counsel, or excusable neglect”; and (4) he “consents to provide a biological

sample for DNA testing.” Colo. Rev. Stat. § 18-1-413. Based on these criteria,

on statutory criteria, the trial court denied McDaniel’s request. The Colorado

Court of Appeals affirmed the trial court’s decision; the Colorado Supreme Court

and the United States Supreme Court denied further review.




                                          -3-
      Undaunted, McDaniel filed this § 1983 action in federal district court,

again seeking access to the materials not subjected to DNA testing. His assertion

was that Colorado Attorney General John Suthers and Jefferson County District

Attorney Scott Storey violated his federal due process rights by opposing his

efforts to obtain the evidence. The district court determined that McDaniel was

not entitled to § 1983 relief under either a substantive or procedural due process

theory.

      The Supreme Court has recently held that there is no “right under the

Due Process Clause to obtain postconviction access to the State’s evidence for

DNA testing.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne,

No. 08-6, 2009 WL 1685601, *7 (June 18, 2009). Colorado has “flexibility in

deciding what procedures are needed in the context of postconviction relief.”

Id. at *11. And “[w]e see nothing inadequate about the procedures [Colorado]

has provided to vindicate its state right to postconviction relief in general, and

nothing inadequate about how those procedures apply to those who seek access to

DNA evidence. Id. at *12. The Supreme Court holding in Osborne is dispositive

of McDaniel’s appeal.

      The judgment of the district court is AFFIRMED. McDaniel’s motion for

appointment of counsel and motion to strike the answer brief of

Defendant-Appellee Suthers are DENIED. His motion to proceed in forma


                                          -4-
pauperis is GRANTED, with the reminder that he must continue making partial

payments until the filing fee is paid in full.


                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




                                           -5-
