                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                            AUGUST 20, 2010
                               No. 10-10029                   JOHN LEY
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 1:09-cv-23315-CMA


HUNTLEY H. THOMPSON,

                                                             Plaintiff-Appellant,

                                    versus


KATHERINE FERNANDEZ RUNDLE,
of Miami-Dade State Attorney’s Office,
DONALD J DIECIDUE,
of North Miami Police Department,
TOBY L WOLSON,
of Metro Dade Police Department Crime Laboratory Bureau,


                                                          Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (August 20, 2010)
Before CARNES, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      Huntley H. Thompson, a Florida prisoner proceeding pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint against three Florida

officials for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). We affirm

the district court’s judgment.

I. Background

      On July 28, 1992, a man and a woman reported an armed home invasion by

three young men. The woman told officers responding to the call that she had been

repeatedly raped and gave them physical descriptions of the assailants. Detective

Donald Diecidue of the North Miami Police Department then transported her to a

Rape Treatment Center, where the medical examiner recovered 29 items of

biological evidence from her, including semen, spermatozoa, and pubic hair

samples. On September 23, 1992, the two victims of the home invasion identified

Huntley H. Thompson from a picture lineup at the police station. Thompson was

arrested and voluntarily provided blood, saliva, and pubic hair samples to the

police for comparison. A doctor concluded that three of the samples recovered

from the female rape victim did not match Thompson’s DNA profile. At a pretrial

hearing, the prosecutor incorrectly informed Thompson that Diecidue had gathered



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only 14 items of biological evidence from the female rape victim during the

investigation.

      At trial, the female rape victim testified that Thompson was one of the first

to enter the house but gave conflicting testimony about whether she was raped by

two or three of the assailants. Thompson was convicted of burglary with assault,

kidnapping with a firearm, armed robbery, sexual battery, and aggravated battery,

and was sentenced to life imprisonment.

      On October 30, 2009, Thompson filed a pro se complaint under 42 U.S.C.

§ 1983 alleging that the following defendants had violated his constitutional rights:

(1) Katherine Rundle, the State Attorney for Miami-Dade County, Florida; (2)

Donald Diecidue, a North Miami Police Department detective; and (3) Toby

Wolson, a Miami-Dade Police Department “[c]riminalist.” Specifically,

Thompson claimed that the defendants’ failure to provide him access to all 29

samples from the female rape victim: (1) had violated his due process rights by

denying him (a) postconviction access to biological evidence collected in his case,

(b) his right to demonstrate “actual innocence” through DNA evidence, and (c) a

fair trial; and (2) had deprived him of both his due process and equal protection

rights to “meaningful access to the courts.” Thompson also asserted that the

defendants had violated his Eighth Amendment right to be free from cruel and



                                          3
unusual punishment, and his Sixth Amendment rights to confrontation and

compulsory process. As relief for these violations, Thompson demanded access to

all 29 samples.

      The district court dismissed the action. Thompson appeals.

II. Discussion

      Thompson argues that he has a postconviction right under the Due Process

Clause to all potentially exculpatory DNA evidence that is “favorable and

material” to showing his actual innocence. Thompson claims that the 15 samples

the state has failed to provide him could potentially produce a third assailant’s

DNA profile that does not match his DNA profile and therefore exonerate him.

      As a preliminary matter, we note that Thompson has abandoned the

following claims because he failed to discuss them on appeal: (1) his equal

protection and due process challenges to meaningful access to the courts, (2) his

Eighth Amendment claim that he was subjected to cruel and unusual punishment,

and (3) his Sixth Amendment claim of deprivation of his rights to confrontation

and compulsory process. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir.

2002). Accordingly, we only address Thompson’s claims (1) that he was deprived

of his due process right to access 15 additional items of biological evidence for

purposes of DNA testing and (2) that his trial was fundamentally unfair under



                                           4
Brady because the state failed to disclose additional samples of biological

evidence. Brady v. Maryland, 373 U.S. 83 (1963).

      We review the district judge’s dismissal of an in forma pauperis complaint

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) de novo and take the

well-pleaded factual allegations in the complaint as true. Mitchell v. Farcass, 112

F.3d 1483, 1489-90 (11th Cir. 1997). “Pro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore, be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

A dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as a

dismissal under Federal Rule of Civil Procedure 12(b)(6). Mitchell, 112 F.3d at

1490. Dismissal for failure to state a claim is appropriate when the facts as pleaded

do not state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009).

      A claimant is entitled to redress under 42 U.S.C. § 1983 if he can prove that

a person acting under color of state law committed an act that deprived the

claimant of some right, privilege, or immunity protected by the Constitution or the

laws of the United States. 42 U.S.C. § 1983. “Section 1983 creates no substantive

rights; it merely provides a remedy for deprivations of federal statutory and

constitutional rights.” Almand v. DeKalb Cnty., 103 F.3d 1510, 1512 (11th Cir.



                                            5
1997).

A. Due Process Right to Access Exculpatory Evidence

         Thompson first argues that he has a due process right to postconviction

access to exculpatory DNA evidence. The Due Process Clause provides that no

State shall “deprive any person of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV, § 1.

         Before embarking on the analysis, we note that the Supreme Court has

granted certiorari in a case to decide whether a convicted prisoner can seek access

to biological evidence for DNA testing through 42 U.S.C. § 1983. Skinner v.

Switzer, 130 S. Ct 3323 (May 24, 2010) (No. 09-9000). We have allowed claims

seeking postconviction access to evidence for DNA testing to be brought in a

§ 1983 action. See Cunningham v. Dist. Att’y’s Office for Escambia Cnty, 592

F.3d 1237 (11th Cir. 2010); see also Dist. Att’y’s Office for Third Judicial Dist. v.

Osborne, 129 S. Ct. 2308, 2318 (2009) (assuming without deciding that the

prisoner’s § 1983 claim seeking postconviction access to DNA evidence was not

barred and stating that every Court of Appeals to consider the question since

Wilkinson v. Dotson, 544 U.S. 74 (2005), has allowed a § 1983 claimant to

proceed). Accordingly, we follow Cunningham and conclude that Thompson has a

viable § 1983 action in seeking the release of DNA evidence. See Cargill v.



                                            6
Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997) (holding that this Court has to follow

a prior panel decision until the decision is overruled by either this Court sitting en

banc or the Supreme Court).

       As a preliminary matter, Thompson does not have a substantive due process

right to postconviction access to DNA evidence. See Cunningham 592 F.3d at

1255 (concluding that the prisoner correctly conceded that his substantive due

process claim under § 1983 seeking postconviction access to biological evidence

for purposes of DNA testing did not survive Osborne).1 Thus, we are left with

Thompson’s claim that he was denied procedural due process.

       The threshold question for a procedural due process claim is whether the

record demonstrates that access to samples for DNA testing could theoretically

“raise questions about [the defendant’s] guilt.” Cunningham, 592 F.3d at 1256-59.

If there is no possibility that DNA evidence could exonerate the prisoner, no

procedural due process right has been violated. If DNA evidence could exonerate

the prisoner, however, we ask whether the state procedure governing

postconviction access to DNA evidence is adequate. See id., 592 F.3d at 1256 n.12

(quotation marks omitted). The state procedures are constitutionally adequate



       1
         The Osborne Court reasoned that a substantive due process right to postconviction
access to DNA evidence was not deeply rooted in history and that establishing such a right
would force the Court to act as a policymaker. Osborne, 129 S.Ct. at 2322-23.

                                               7
unless they “‘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, 129 S. Ct at

2320 (citing Medina v. California, 505 U.S. 437, 446, 448 (1992)). In other words,

“[f]ederal courts may upset a State’s postconviction relief procedures only if they

are fundamentally inadequate to vindicate the substantive rights provided.” Id. at

2320. The burden is on the prisoner to demonstrate the “inadequacy of the state-

law procedures available to him in state postconviction relief.” Id. at 2321.

       We assume arguendo that access to the additional samples for DNA testing

could theoretically allow Thompson to find exculpatory evidence.2 We must

therefore determine whether Thompson’s facial and as-applied challenges to the

state’s procedures for access to DNA have any merit. Florida Rule of Criminal

Procedure 3.853 sets the procedures for a prisoner seeking postconviction access to

samples for DNA testing. Fla. R. Crim. P. 3.853 (2010).

       First, Thompson fails to make the “difficult” showing that Rule 3.853 is

facially invalid because Rule 3.853 contains similar requirements and limitations

imposed by other DNA-testing statutes, including the postconviction statute upheld

in Osborne. See Osborne, 129 S. Ct. at 2317-18, 2320-21; Cunningham, 592 F.3d


       2
       A remote possibility remains that testing the additional samples will uncover a third
DNA profile that does not match Thompson, proving that he was not the third assailant.

                                               8
at 1266. Specifically, both Rule 3.853 and the statute upheld in Osborne (1)

require the claimant to make a sufficient showing that additional DNA testing

could demonstrate his actual innocence, (2) exempt the claim from applicable time

limits, and (3) provide a successful claimant access to additional DNA testing.

Compare Fla. R. Crim. P. 3.853, with Osborne, 129 S.Ct. at 2317-18, 2320-21

(describing the Alaska postconviction statute). Moreover, the federal

postconviction DNA-access statute, 18 U.S.C. § 3600, which Osborne cites with

approval, overlaps with Rule 3.853 by requiring the prisoner to assert that (1) he is

actually innocent, (2) the evidence sought has not been previously tested for DNA

or that subsequent DNA testing techniques could produce a more definitive result,

and (3) the prisoner’s identity was a disputed issue at trial. Compare Fla.R.Crim.P.

3.853, with 18 U.S.C. § 3600. Accordingly, we conclude that Thompson has failed

to show that Rule 3.853 “offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked as fundamental” or

“transgresses any recognized principle of fundamental fairness in operation.”

Osborne, 129 S.Ct. at 2321 (quotation marks omitted).

      Thompson’s as-applied challenge also fails because he has not met his

burden of proving that he filed a motion for access to the additional biological

evidence for testing under Rule 3.853. See Cunningham, 592 F.3d at 1266 (noting



                                          9
that Osborne forbids, where state procedures for postconviction relief are adequate

on their face, a claimant from challenging the procedures’ application in practice

until he has actually tried them).

B. Brady Claim

      Thompson also asserts that the failure to provide him access to this evidence

violates the due process clause under Brady. Brady, 373 U.S. at 87 (holding that

due process requires a prosecutor to disclose material exculpatory evidence to the

defendant). To the extent that Thompson’s complaint can be construed as

challenging the fundamental fairness of his trial, this claim fails because a § 1983

claim cannot be used to “imply the invalidity of his conviction or sentence.” Heck

v. Humphrey, 512 U.S. 477, 487 (1994). To the extent that his claim asserts a

postconviction due process right under Brady, it also fails because the Supreme

Court has held that “Brady is the wrong framework” to apply in assessing a

prisoner’s postconviction right to access exculpatory evidence. Osborne, 129 S.Ct.

at 2320.

      Accordingly, we AFFIRM the district court’s dismissal of Thompson’s

§ 1983 complaint.




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