                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 CURTIS LEE MORRISON,                              No. 13-15675
                Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           5:11-cv-01896-
                                                       LHK
 MARK PETERSON,
              Defendant-Appellee,
                                                     OPINION
 THE ATTORNEY GENERAL OF THE
 STATE OF CALIFORNIA,
                      Intervenor.


        Appeal from the United States District Court
          for the Northern District of California
          Lucy H. Koh, District Judge, Presiding

                 Argued and Submitted
       November 16, 2015—San Francisco, California

                    Filed December 15, 2015

 Before: DIARMUID F. O’SCANNLAIN and MILAN D.
 SMITH, JR., Circuit Judges, and BRIAN M. MORRIS,*
                    District Judge.

             Opinion by Judge Milan D. Smith, Jr.

 *
   The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
2                    MORRISON V. PETERSON

                           SUMMARY**


                      Prisoner Civil Rights

    The panel affirmed the district court’s dismissal on the
merits of an action brought by a California state prisoner
challenging the constitutionality of California Penal Code
§ 1405, which provides a mechanism for those convicted of
crimes to obtain DNA testing of evidence where such testing
is potentially relevant to proving innocence.

    The panel first rejected plaintiff’s contention that the
promise held out by § 1405 is illusory, noting that the
available judicial decisions and statistics did not suggest that
§ 1405 in practice bars access to postconviction DNA testing.

    The panel next addressed plaintiff’s facial challenge to
section 1405(f)(5), which requires a movant to demonstrate
that the requested DNA testing results would raise a
reasonable probability, that in light of all the evidence, the
verdict or sentence would have been more favorable if the
results of DNA testing had been available at the time of the
conviction. The panel held that plaintiff did not show that
§ 1405’s “reasonable probability” requirement violated any
recognized principle of fundamental fairness or went beyond
what the Supreme Court approved in District Attorney’s
Office for Third Judicial District v. Osborne, 557 U.S. 52
(2009). The panel further held that the chain of custody
requirement in § 1405(f)(2) did not transgress any recognized
principle of fundamental fairness in operation.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  MORRISON V. PETERSON                        3

    The panel held that even though a portion of plaintiff’s
challenge to the statute was “as applied,” the challenge was
not barred by the Rooker-Feldman doctrine because plaintiff
sought to invalidate the DNA testing statute on federal
constitutional grounds.        Addressing the “as applied”
challenge, the panel held that a review of a § 1405 petition by
a judge other than the trial judge does not violate due process.


                         COUNSEL

Joshua S. Lipshutz (argued), Gibson Dunn & Crutcher, San
Franciso, California, for Plaintiff-Appellant.

Christopher B. Whitman (argued), Deputy County Counsel,
Sharon L. Anderson, County Counsel, County of Contra
Costa, Martinez, California, for Defendant-Appellee.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Acting
Senior Assistant Attorney General, Gregory A. Ott and
Michael Chamberlain, Deputy Attorneys General, State of
California, San Francisco, California, for Intervenor.


                          OPINION

M. SMITH, Circuit Judge:

    Prisoner Curtis Lee Morrison made two unsuccessful
motions in California State court for post-conviction DNA
testing under California Penal Code § 1405. He then brought
this action, seeking relief under 42 U.S.C. § 1983. The district
court dismissed the action on the merits.
4                 MORRISON V. PETERSON

    On appeal, the court appointed pro bono counsel, who
provided valuable assistance to Morrison and the court.
Morrison pursues a facial challenge to two provisions of the
statute, and an as-applied challenge to a third. We reject those
challenges, and affirm the decision of the district court.

         FACTS AND PRIOR PROCEEDINGS

I. Morrison’s Conviction for Murder and Subsequent
   Habeas Litigation

   We previously summarized the facts of Morrison’s
underlying conviction as follows:

           On April 21, 1973, Morrison and his
       nephew were driving on Highway Four in a
       pickup truck when the drive shaft of the truck
       broke and the vehicle coasted to a stop. While
       his nephew left to get help, Morrison tried to
       remove the truck’s U-bolts in preparation for
       installing a new drive shaft. Martinez Police
       Officer Thomas Tarantino stopped by the side
       of the highway to see if Morrison needed
       help.

           Several witnesses testified as to what
       happened after Officer Tarantino stopped to
       help Morrison. After an initial conversation,
       Officer Tarantino frisked Morrison. The two
       men were next seen wrestling on the ground,
       after which Morrison threw Officer Tarantino
       onto the highway. Sylvia Young testified that
       she saw Morrison holding what appeared to
       be a police service revolver. Cheryl Balsdon
                   MORRISON V. PETERSON                         5

        testified that Morrison [waved] a gun in the
        air and pointed it at the officer’s head.
        William Boydston saw the officer and
        Morrison struggling, heard three shots, and
        saw the officer fall. This witness saw the
        officer stand and further struggle with
        Morrison until the officer fell again. Boydston
        heard one more shot.

            Officer Tarantino died at the hospital from
        gunshot wounds to his head and stomach. The
        officer’s revolver was found on a hillside at
        the scene. The revolver contained two unfired
        bullets and four cartridge cases.

            Morrison’s driver’s license was found in
        the officer’s uniform shirt pocket, and
        Morrison’s .22 caliber gun was found in the
        officer’s right front pants pocket. Officer
        Tarantino had a habit of putting the license of
        a person in custody in his shirt pocket and of
        putting any evidence taken by him in his right
        front pants pocket. Morrison was an ex-felon
        on parole.

Morrison v. Estelle, 981 F.2d 425, 426–27 (9th Cir. 1992).

    At his trial, Morrison testified to a different version of the
facts: that a few seconds after Officer Tarantino arrived, and
while Morrison was under his truck, two men arrived on a
motorcycle. They asked for directions to Pittsburg, and both
Morrison and the officer gave them directions. The two men
then started arguing with each other, and the officer asked
one of them to come over to the truck. There was a scuffle,
6                  MORRISON V. PETERSON

and a few seconds later, shots were fired. Morrison had
started to come out from under the truck, but scooted back
underneath when he heard gunfire. After the two men left,
Morrison tried to help the officer, and less than a minute later,
another officer arrived and arrested Morrison.

    The jury rejected Morrison’s account, and convicted him
of first-degree murder and related offenses. The California
Court of Appeal affirmed. Morrison, 981 F.2d at 427. The
California Supreme Court denied Morrison’s state habeas
petition. Id. The federal district court denied Morrison’s
federal habeas petition. Id. Our court affirmed that denial. Id.
at 429. We denied Morrison’s application to file a second or
successive habeas corpus petition.

II. Morrison’s State California Penal Code § 1405
    Litigation

    California Penal Code § 1405 provides a mechanism for
those convicted of crimes to obtain DNA testing of evidence
where such testing is potentially relevant to proving
innocence. In 2006, Morrison successfully requested that
counsel be appointed to prepare a motion seeking DNA
testing pursuant to § 1405. The parties briefed the motion,
and the judge read the entire transcript of the trial and heard
oral argument. Morrison requested DNA testing of (1) the
blood on Officer Tarantino’s pants and shoes, (2) the swabs
of the handgun taken from Officer Tarantino’s pocket, (3) the
materials collected from the surface of Officer Tarantino’s
gun, and (4) the knit hat recovered from the scene. At the
hearing, Morrison’s counsel also requested testing of the tape
on the handgun taken from Officer Tarantino’s pocket.
                  MORRISON V. PETERSON                       7

    The court concluded that any test results would not raise
a reasonable probability of a more favorable verdict because
Morrison’s story was at odds with every eyewitness account,
inconsistent with the physical evidence, and did not “make
any sense.” Morrison, again represented by counsel,
petitioned for a writ of mandate directing the court to grant
the motion for testing, which the California Court of Appeal
denied after full briefing.

    In 2010, Morrison filed a second § 1405 motion, this time
pro se. The court denied the motion, holding that Morrison
failed to show that the evidence was material to the
identification of the perpetrator. Morrison filed another writ
petition, which the California Court of Appeal denied.

III.   Morrison’s Federal Challenge to § 1405

    In 2011, Morrison filed this case, seeking relief under
42 U.S.C. § 1983. The district court dismissed the action on
the merits based on District Attorney’s Office for Third
Judicial District v. Osborne, 557 U.S. 52 (2009). The district
court held that Morrison’s facial challenge to the statute
failed because “California provides more generous procedural
protections than the Alaska scheme that was found to satisfy
due process in Osborne.”

     Further, as to Morrison’s challenge to the statute “as
applied to this plaintiff and or construed in this case by the
California Courts” “because no where in Section 1405 does
it take into account eye witness testimony that is contradicted
by physical evidence and undisputed documents,” the district
court held that under Skinner v. Switzer, 562 U.S. 521 (2011),
such claims for review of state court rulings cannot be
brought in a federal civil rights action.
8                 MORRISON V. PETERSON

    This appeal followed. Next, we appointed pro bono
counsel for Morrison. We also granted the State of
California’s opposed motion to intervene. Morrison asks the
court to reverse the dismissal and grant his motion for
summary judgment, or at least remand for discovery on how
§ 1405 operates in practice. This court has previously rejected
three challenges to § 1405 in unpublished decisions: Turner
v. Dumanis, 415 F. App’x 831, 832 (9th Cir. 2011), Jackson
v. Cooley, 348 F. App’x 245 (9th Cir. 2009), and Harrison v.
Dumanis, 343 F. App’x 218 (9th Cir. 2009). However, no
published Ninth Circuit cases have done so.

                STANDARD OF REVIEW

    The dismissal of a complaint for failure to state a claim is
reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434,
436–37 (9th Cir. 1995). The denial of a motion for summary
judgment is also reviewed de novo. Lopez-Valenzuela v.
Arpaio, 770 F.3d 772, 777 (9th Cir. 2014).

                       DISCUSSION

I. Morrison’s Facial Challenges to § 1405’s “Reasonable
   Probability” and Chain of Custody Requirements

    A. Legal Standard for Facial Challenges

    “A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v.
Salerno, 481 U.S. 739, 745 (1987). While a challenger must
therefore show that a “law is unconstitutional in all of its
applications,” Washington State Grange v. Washington State
                   MORRISON V. PETERSON                        9

Republican Party, 552 U.S. 442, 449 (2008), when assessing
whether a statute meets this standard, courts consider only
applications of the statute in which it actually authorizes or
prohibits conduct. City of Los Angeles v. Patel, 135 S. Ct.
2443, 2451 (2015).

    B. The Nature of Morrison’s Liberty Interest and Its
       Attendant Due Process Rights

    To determine what process, if any, is due, a court must
consider the nature of a prisoner’s liberty interest in proving
innocence even after a fair trial resulted in a conviction.
Osborne, 557 U.S. at 67. California does not dispute that, as
in Osborne, Morrison has “a liberty interest in demonstrating
his innocence with new evidence under state law.” Id. That is
because California law provides a right to be released from
custody pursuant to a writ of habeas corpus when there is no
legal cause for imprisonment. Cal. Penal Code § 1485; In re
Weber, 523 P.2d 229, 243 (Cal. 1974).

     That “state-created right can, in some circumstances,
beget yet other rights to procedures essential to the realization
of the parent right.” Osborne, 557 U.S. at 68 (quoting Conn.
Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981)).
However, “[a] criminal defendant proved guilty after a fair
trial does not have the same liberty interests as a free
man. . . . The State accordingly has more flexibility in
deciding what procedures are needed in the context of
postconviction relief.” Id. at 68–69. For those individuals
with that narrowed liberty interest, due process does not
“dictat[e] the exact form” of post-conviction assistance a
State must provide. Id. at 69 (quoting Pennsylvania v. Finley,
481 U.S. 551, 559 (1987)).
10                MORRISON V. PETERSON

    In such circumstances, the question is whether the state’s
procedures “offend[] some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental,” or “transgress[] any recognized principle of
fundamental fairness in operation.” Id. (quoting Medina v.
California, 505 U.S. 437, 446, 448 (1992)). In sum, “[f]ederal
courts may upset a State’s postconviction relief procedures
only if they are fundamentally inadequate to vindicate the
substantive rights provided.” Id.

    In Osborne, the Supreme Court rejected a challenge to
Alaska’s procedures allowing prisoners an opportunity to
vindicate their state right to post-conviction relief based on
DNA evidence. Alaska provided a “substantive right to be
released on a sufficiently compelling showing of new
evidence that establishes innocence.” Id. at 70. Alaska
caselaw established that persons seeking access to DNA
evidence must demonstrate that the evidence is newly
available, has been diligently pursued, and is sufficiently
material. Id. And while the Alaska state courts had not
conclusively answered the question, the Alaska Court of
Appeals suggested that under the Alaska Constitution, DNA
testing could be provided in an appropriate case even where
the applicant cannot satisfy the statutory requirements for
general post-conviction relief. Id.

    Osborne rejected the argument that there was a
freestanding substantive due process right to DNA evidence
“untethered from the liberty interests [a claimant] hopes to
vindicate with it.” Id. at 72. And it found nothing inadequate
about the Alaska procedures, which provided “a substantive
right to be released on a sufficiently compelling showing of
new evidence that establishes innocence.” Id. at 70. Like
California’s § 1405, Alaska’s procedure required a showing
                     MORRISON V. PETERSON                            11

of sufficient materiality. However, Alaska, unlike California,
also required the evidence to be “newly available” and have
been “diligently pursued.” Id.

    “Osborne severely limits the federal action a state
prisoner may bring for DNA testing. Osborne rejected the
extension of substantive due process to this area, and left slim
room for the prisoner to show that the governing state law
denies him procedural due process.” Skinner, 562 U.S. at 525
(internal citations omitted).

     C. Morrison’s Statistics Do Not Suggest a Problem

    Before turning to the asserted doctrinal deficiencies in the
statute, Morrison attempts to demonstrate as a general factual
matter that the promise held out by § 1405 is illusory.
Morrison argues that § 1405’s requirements are so onerous as
to effectively leave access to post-conviction DNA evidence
to the discretion of prosecutors, since Morrison, conducting
an electronic docket search of the California Supreme Court,
California Courts of Appeal, and 14 of the 58 Superior Courts
in California, could locate only three cases granting a § 1405
motion since the statute was enacted in 2000: Jointer v.
Superior Court of Orange County, 217 Cal. App. 4th 759
(2013), In re Antilla, 176 Cal. App. 4th 622 (2009), and In re
Brown, No. E054403, 2011 WL 5320650 (Cal. Ct. App. Nov.
4, 2011).1



 1
   In re Brown, 2011 WL 5320650, is actually a court of appeal decision
appointing counsel pursuant to § 1405, not granting a motion for DNA
testing. Morrison may have intended to cite to Brown v. Superior Court,
No. B218037, 2010 WL 1633953 (Cal. Ct. App. Apr. 23, 2010), which
granted the petitioner’s writ of mandate to order DNA testing. Id. at *4.
12                    MORRISON V. PETERSON

    We are not persuaded by these statistics, which lack
context. The number three is meaningless as a numerator
unless we know the denominator, and none of the parties to
this appeal provide it, either for the courts searched by
Morrison, or otherwise.

    Our independent research yielded eight cases concerning
or reflecting a decision on whether to grant post-conviction
DNA testing. This includes the three cases identified by
Morrison. Of the eight, DNA testing was finally denied only
in two: Richards v. Superior Court, No. E060568, 2014 WL
6705550 (Cal. Ct. App. Nov. 26, 2014), and Richardson v.
Superior Court, 183 P.3d 1199 (Cal. 2008). DNA testing was
granted in six: Jointer v. Superior Court, 217 Cal. App. 4th
759 (2013), Brown v. Superior Court, No. B218037, 2010
WL 1633953 (Cal. Ct. App. Apr. 23, 2010), In re Antilla,
176 Cal. App. 4th 622 (2009), Madden v. Superior Court, No.
B200652, 2008 WL 5178354 (Cal. Ct. App. Dec. 11, 2008),2
People v. Ceja, No. B195208, 2008 WL 82467 (Cal. Ct. App.
Jan. 9, 2008),3 and Rose v. Hudson, 153 Cal. App. 4th 641
(2007).4 Thus, tallying the available judicial decisions does
not suggest that § 1405 in practice bars access to
postconviction DNA testing.


 2
   Testing was granted as a due process right even though petitioner did
not meet the § 1405 procedural and notice requirements. Madden, 2008
WL 5178354, at *15.
  3
    Testing confirmed that defendant was the perpetrator in one assault,
after which the trial court denied testing as to three others. Ceja, 2008 WL
82467, at *1.
  4
    Testing exonerated the defendant. See generally Susan Rutberg,
Anatomy of a Miscarriage of Justice: The Wrongful Conviction of Peter
J. Rose, 37 Golden Gate U. L. Rev. 7 (2010).
                   MORRISON V. PETERSON                       13

    Similarly, Morrison argues that “the vast majority of
prisoners who have obtained access to evidence for
post-conviction DNA testing have done so with the consent
of the prosecutor, not through Section 1405.” To support this
claim, Morrison cites survey data regarding the methods used
by exonerees to obtain DNA testing reported in Brandon
Garrett, Convicting the Innocent: Exoneration,
http://www.law.virginia.edu/html/librarysite/garrett_exoner
ation.htm (last visited Nov. 18, 2015). However, the cited
data does not directly support Morrison’s argument for two
reasons. First, the data cited is nationwide, with no
designation of which cases were in California. Second, the
data does not discuss whether the DNA testing was in fact
obtained through a motion. Instead, it only states that
“prosecutors consented to DNA testing in 81 percent of cases
in which information was obtained on the subject (170 of 210
cases) and opposed it in 19 percent (40 of 210 cases), with no
information available in 40 cases.”

    The source does not provide the data necessary to know,
even nationwide, what percentage of motions for testing are
successful. It certainly does not give rise to the inference that
there is a facial problem with California’s § 1405.

    Morrison also cites data indicating that only 3.5% of the
311 total DNA-related exonerations nationwide have
occurred in California, while California has 8.5% of
the United States prison population. See Innocence
Project, The Cases: DNA Exoneree Profiles,
http://www.innocenceproject.org/cases-false-imprisonment
(last visited Nov. 18, 2015); U.S. Dep’t of Justice, Prisoners
in 2012 - Advance Counts, http://www.bjs.gov/content/pub/
pdf/p12ac.pdf (last visited Nov. 18, 2015). However, there
could be many reasons for that disparity other than the
14                 MORRISON V. PETERSON

asserted illusory nature of § 1405, including more careful
than average work by the California prosecuting authorities
and courts in the first instance.

    Finally, the State notes that a number of California district
attorneys proactively review convictions and offer DNA
testing without the need for a § 1405 motion. See James
Sterngold, San Diego District Attorney Offering Free DNA
Testing, N.Y. Times, http://www.nytimes.com/2000/07/28/us/
san-diego-district-attorney-offering-free-dna-testing.html,
Jul. 28, 2000 (“The San Diego County district attorney
has begun a policy of offering free DNA testing to
prison inmates who say they were wrongly convicted and
would be exonerated by this increasingly common scientific
method.”); Marisa Gerber, L.A. County D.A. To Create Unit
To Review Wrongful-Conviction Claims, L.A. Times,
http://www.latimes.com/local/lanow/la-me-ln-conviction-
review-unit-20150422-story.html, Apr. 22, 2015 (citing
efforts by district attorneys in Yolo, Ventura, Santa Clara, and
Los Angeles counties). These efforts may have further
reduced the need to litigate § 1405 motions.

     D. The “Reasonable Probability” Requirement Does
        Not Violate Due Process

    Section 1405(f)(5) requires the movant to demonstrate
that “[t]he requested DNA testing results would raise a
reasonable probability that, in light of all the evidence, the
convicted person’s verdict or sentence would have been more
favorable if the results of DNA testing had been available at
                     MORRISON V. PETERSON                           15

the time of the conviction.”5 The California Supreme Court
has interpreted this requirement to mean that the movant must
demonstrate “a reasonable chance and not merely an abstract
possibility [ ] that the defendant would have obtained a more
favorable result.” Richardson, 183 P.3d at 1205. Richardson
also instructed trial courts to “bear in mind that the question
. . . is whether the defendant is entitled to develop potentially
exculpatory evidence and not whether he or she is entitled to
some form of ultimate relief such as the granting of a petition
for habeas corpus based on that evidence.” Id.

    Because Morrison raises a facial challenge to
§ 1405(f)(5)’s reasonable probability requirement, he must
“establish that no set of circumstances exists under which the
Act would be valid.” Salerno, 481 U.S. at 745. This presents
a difficult hurdle for Morrison, because “[w]here there is
enough other incriminating evidence and an explanation for
the DNA result, science alone cannot prove a prisoner
innocent.” Osborne, 557 U.S. at 62 (citing House v. Bell,
547 U.S. 518, 540–48 (2006)). As we noted in denying
Morrison’s habeas appeal, multiple witnesses observed
Morrison commit the crime, and Morrison was apprehended
immediately at the scene. Morrison, 981 F.2d at 426–27.

    More generally, Morrison argues that it is unfair that a
prisoner cannot make the reasonable probability showing
where “a substantial amount of other evidence,” Richardson,
183 P.3d at 1206, links the prisoner to the crime, because
“[b]y definition, every prisoner who is seeking access to
evidence for post-conviction DNA testing will have been


 5
    Morrison’s challenge concerns the 2005 version of § 1405; a revised
version of the statute took effect in 2015. Unless otherwise indicated,
citations to § 1405 are to the prior version.
16                   MORRISON V. PETERSON

found guilty on the basis of proof beyond a reasonable
doubt.” But far from announcing a standard higher than that
established by the statute, the California Supreme Court’s
mention of a “substantial amount of other evidence” was
merely a quotation of the trial court’s language, which “in
context, constitute[d] a finding that petitioner failed to
establish the reasonable probability requirement.”
Richardson, 183 P.3d at 1206. Thus, Richardson did not
substitute “a substantial amount of other evidence” for the
statutory “reasonable probability” test.6 And it does not
violate due process for a court to evaluate what potential
impact a negative DNA test could have.

    Morrison also argues that § 1405(f)(5)’s “reasonable
probability” requirement is more stringent than the
requirements at issue in Osborne. There, the Alaska statute
required that new evidence be “material,” Alaska Stat.
§ 12.72.010(4) (2008), corresponding to § 1405(f)(4), and the
Alaska caselaw avenue required a “demonstrable doubt
concerning the defendant’s identification as the perpetrator,”
corresponding to § 1405(f)(3). Osborne, 557 U.S. at 65.




  6
     Morrison argues that the Legislature’s 2014 revision to the statute
addressing the “reasonable probability” standard highlights the infirmity
of the earlier version. The revision, effective January 1, 2015, added a
statement that “[i]n determining whether the convicted person is entitled
to develop potentially exculpatory evidence, the court shall not decide
whether, assuming a DNA test result favorable to the convicted person, he
or she is entitled to some form of ultimate relief.” Cal. Penal Code
§1405(g)(5) (2015). However, this merely codifies what Richardson
already held: that the question is “whether the defendant is entitled to
develop potentially exculpatory evidence and not whether he or she is
entitled to some form of ultimate relief.” 183 P.3d at 1205.
                   MORRISON V. PETERSON                       17

    Morrison argues that the additional “reasonable
probability” requirement of § 1405(f)(5) goes beyond what
the Supreme Court approved in Osborne. Not so. The Alaska
constitutional caselaw test required that “scientific testing
would likely be conclusive” on the issue of the defendant’s
identification as the perpetrator. Osborne, 557 U.S. at 65
(quoting Osborne v. State, 110 P.3d 986, 995 (Alaska Ct.
App. 2005)). This is more restrictive, not less restrictive, than
California’s “reasonable probability” requirement. And the
Alaska statutory pathway required a showing of “sufficient[]”
materiality, id. at 70, which Morrison has not shown is
sufficiently distinct from California’s “reasonable
probability” requirement. Indeed, California courts are
required to “liberally apply the ‘reasonable probability’
standard to permit testing in questionable cases.” Jointer,
217 Cal. App. 4th at 769. Section 1405(f)(5) therefore fits
comfortably within the confines of Osborne.

    In short, Morrison does not show that the “reasonable
probability” requirement violates “any recognized principle
of fundamental fairness.” Osborne, 557 U.S. at 69 (quoting
Medina, 505 U.S. at 448)).

    E. The Chain of Custody Requirement Does Not
       Violate Due Process

    Morrison argues that “[i]t is unfair for Section 1405(f) to
place the burden of proof [to establish the chain of custody]
on the prisoner because the evidence necessary to meet that
burden is solely in the hands of the government and Section
1405 does not provide any means of discovery by which the
prisoner could potentially obtain that evidence.” Morrison
also argues that chain of custody issues traditionally go to
weight, rather than admissibility, but that § 1405(f) treats
18                    MORRISON V. PETERSON

them as a threshold requirement, unlike the Alaska rules at
issue in Osborne.

    Section 1405(f)(2) requires the court to find that “[t]he
evidence to be tested has been subject to a chain of custody
sufficient to establish it has not been substituted, tampered
with, replaced or altered in any material aspect.” While
Morrison argues that this unfairly placed the burden on him,
his § 1405 motion was not denied on chain of custody
grounds. The County notes that the prosecuting authority is
required by law to retain biological evidence in connection
with a criminal case. Cal. Penal Code § 1417.9(a). While
neither the County nor the State so argues, it is possible that
this itself could establish a prima facie showing of lack of
tampering.

    Further, when a chain of custody is challenged in
California courts, the party offering the evidence need only
show that “taking all the circumstances into account . . . it is
reasonably certain that there was no alteration.” People v.
Catlin, 26 P.3d 357, 391 (Cal. 2001) (quoting People v. Diaz,
834 P.2d 1171, 1204 (Cal. 1992)). We previously observed
that “[n]o California court has interpreted § 1405 as binding
the Superior Court to preclude relief based on tampering,”
Cooper v. Ramos, 704 F.3d 772, 781 (9th Cir. 2012), and
Morrison does not identify any such cases.7 Accordingly, the

 7
   Morrison again points to the state legislature’s revision of the statute.
Here, the legislature added a requirement that upon request of the
convicted person, the court may order the prosecutor to make all
reasonable efforts to obtain documents relevant to the chain of custody.
Cal. Penal Code § 1405(c)(2) (2015). Again, this does not demonstrate
that the pre-amendment text mandated the denial of § 1405 motions based
on an unconstitutional catch-22 where the prisoner had to show something
that only the prosecutor would know.
                   MORRISON V. PETERSON                        19

chain of custody requirement does not “transgress[] any
recognized principle of fundamental fairness in operation.”
Osborne, 557 U.S. 52, 69 (internal quotation marks omitted).

II. Morrison’s As-Applied Challenge

    A. The Rooker–Feldman Doctrine Does Not Bar
       Morrison’s As-Applied Challenge

    Morrison argues that § 1405 is unconstitutional as applied
in those cases, like his, where a petitioner’s motion must be
adjudicated by a judge who did not preside over the
petitioner’s original trial. “The Rooker–Feldman doctrine
instructs that federal district courts are without jurisdiction to
hear direct appeals from the judgments of state courts”; such
review is only available in the United States Supreme Court.
Cooper, 704 F.3d at 777. “The doctrine bars a district court
from exercising jurisdiction not only over an action explicitly
styled as a direct appeal, but also over the ‘de facto
equivalent’ of such an appeal.” Id. (quoting Noel v. Hall,
341 F.3d 1148, 1155 (9th Cir. 2003)).

    However, if a plaintiff presents an independent claim in
federal court, federal jurisdiction is not defeated by the fact
that the parties litigated the “same or a related question”
earlier in state court. Skinner, 562 U.S. at 522 (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
292–93 (2005)). Rooker–Feldman “is confined to cases of the
kind from which [the doctrine] acquired its name: cases
brought by state-court losers . . . inviting district court review
and rejection of [the state court’s] judgments.” Exxon,
544 U.S. at 284.
20                 MORRISON V. PETERSON

     Because Morrison does not seek an order that he be
allowed DNA testing, but instead seeks to invalidate the DNA
testing statute on federal constitutional grounds, his claim is
not barred by Rooker–Feldman. That is so even though this
portion of his challenge is “as applied.” In challenging the
application of the statute when a judge other than the trial
judge evaluates the § 1405 petition, Morrison merely argues
a defect that is not apparent from the face of the statute.
While review by someone other than the trial judge does not
occur in every case, it is a categorical issue not limited to the
particulars of Morrison’s situation. While that challenge
ultimately lacks merit, as discussed in the following section,
it is not barred by Rooker–Feldman.

     B. Review of the § 1405 Petition by a Judge Other
        than the Trial Judge Does Not Violate Due Process

    Morrison argues that § 1405 is unconstitutional as applied
when a judge other than the judge who conducted the trial
rules on the motion. Section 1405(e) states that motions
“shall be heard by the judge who conducted the trial.” “[T]he
legislature required convicted persons to bring section 1405
motions before the judge who presided over their trials . . .
precisely because the trial judge is in the best position to
make the reasonable probability determination.” Richardson,
183 P.3d at 1207. However, the Richardson court also had no
trouble—as is necessary in every appeal, to a greater or lesser
extent depending on the standard of review—making its “own
assessment of the evidence.” Id.

    Section 1405(e) also provides that the motion be assigned
to a new judge when the trial judge is unavailable. Morrison
contends that this renders the reasonable probability standard
“especially problematic because a newly assigned judge is in
                  MORRISON V. PETERSON                     21

no position to weight the evidence from the trial against the
potentially exculpatory DNA evidence.”

    This argument fails. The “problem” Morrison complains
of is present in every appeal and every habeas case. A
contrary rule would be impractical, as judges become
unavailable for a variety of reasons, and § 1405 motions can
be brought many years after a trial. Thus, assigning another
judge to rule on a § 1405 motion where the trial judge is
unavailable cannot “offend[] some principle of justice so
rooted in the traditions and conscience of our people as to be
ranked as fundamental,” or “transgress[] any recognized
principle of fundamental fairness in operation.” Osborne,
557 U.S. at 69 (quoting Medina, 505 U.S. at 446, 448).

                      CONCLUSION

    The decision of the district court is affirmed. Each party
shall bear its own costs.

   AFFIRMED.
