REVISED AUGUST 19, 2002
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-20861
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RICHARD WILLIAM KUTZNER,
Petitioner-Appellant,
versus
MONTGOMERY COUNTY, District Attorney’s Office; MICHAEL A MCDOUGAL,
Montgomery County District Attorney in his official capacity; GUY L
WILLIAMS, Montgomery County Sheriff in his official capacity; JOYE
M CARTER, M.D., in her official capacity
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas, Houston Division
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August 7, 2002
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:
On August 5, 2002, Richard William Kutzner filed a 42
U.S.C. § 1983 action that reiterates his attempt, previously embodied
in a successive habeas petition, to overturn his conviction for
capital murder by requiring the State to produce biological evidence
for DNA testing.1 The district court dismissed sua sponte pursuant
to Fed. R. Civ. P. 12(b)(6), treating Kutzner’s complaint as, in
1
Kutzner was executed on August 7, 2002.
effect, another successive habeas corpus petition. We affirm the
dismissal.
Kutzner’s petition asserts various alleged constitutional
violations against officials of Montgomery County, Texas, who have
refused to release biological evidence introduced at his trial for
DNA testing and thereby “prevent[ed] Plaintiff from gaining access to
exculpatory evidence which could exclude him as a perpetrator. . . .”
Plainly, the allegations seek to undermine Kutzner’s
conviction or the consequences flowing therefrom, such as the
availability of an executive clemency petition. Just as plainly, the
Supreme Court has held, in Heck v. Humphrey, that no cause of action
exists under § 1983 that would “necessarily imply the invalidity of
[a plaintiff’s] conviction or sentence” unless he proves that the
conviction or sentence has already been invalidated. 512 U.S. 477,
486-87, 114 S.Ct. 2364 (1994). We agree with the analysis of the
Fourth Circuit, which recently held, under Heck, that no § 1983 claim
exists for injunctive relief to compel DNA testing under materially
indistinguishable circumstances. Harvey v. Horan, 278 F.3d 370, 374-
78 (4th Cir. 2002), pet. for reh’g and reh’g en banc denied, 285 F.3d
298.
Harvey also explains why Kutzner’s claim is cognizable only
as a petition for habeas corpus relief, because, since Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827 (1973), the Supreme Court has
consistently held that habeas corpus is the exclusive means for
prisoners to attack the fact or duration of their confinement.
2
Harvey, as stated, analyzed a claim for DNA testing much like this
one and drew the obvious conclusion that the proposed remedy is
sought “to set the stage for a future attack on [the prisoner’s]
confinement” – effectively transforming the claim into a petition for
a writ of habeas corpus. Harvey, 278 F.3d at 378. Not only is
Harvey strongly persuasive, but this Court, too, has recently
reiterated that claims seeking to attack the fact or duration of
confinement, as well as claims which are “so intertwined” with
attacks on confinement that their success would “necessarily imply”
revocation or modification of confinement, must be brought as habeas
corpus petitions and not under § 1983. Martinez v. Texas Court of
Criminal Appeals, 292 F.3d 417, 423 (5th Cir. 2002). Under Martinez,
a prisoner’s request for DNA testing of evidence relevant to his
prior conviction is “so intertwined” with the merits of the
conviction as to require habeas corpus treatment.
We conclude (like the district court) that Kutzner’s § 1983
claims were cognizable only in habeas corpus. We have elected, as we
may (for the sake of judicial economy and in the face of serious time
constraints), to treat Kutzner’s appeal of the district court’s
judgment as a petition for permission to file a successive habeas
petition. Martinez, 292 F.3d at 424.
Because we have separately determined that Kutzner’s
contemporaneous successive habeas petition raising the same, or
substantially similar, claims concerning DNA testing cannot meet the
applicable statutory standard, see 28 U.S.C. § 2244(b), we adopt the
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discussion and resolution of that petition herein.2
For the foregoing reasons, the judgment of the district
court is AFFIRMED, and appellant’s alternative request for permission
to file a successive petition for a writ of habeas corpus is DENIED.
2
See Kutzner v. Montgomery County, No. 02-20857 (August 7, 2002).
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