Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-11-2009
Derrickson v. DA Delaware Cty
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3818
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Recommended Citation
"Derrickson v. DA Delaware Cty" (2009). 2009 Decisions. Paper 1760.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1760
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-3818
__________
RODNEY DERRICKSON,
Appellant
v.
DISTRICT ATTORNEY OF DELAWARE COUNTY,
A. SHELDON KOVACH, DEPUTY
DISTRICT ATTORNEY OF DELAWARE COUNTY,
IN HIS OFFICIAL CAPACITY
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 04-cv-01569)
District Judge: Hon. Thomas N. O’Neill, Jr.
Argued on December 11, 2008
Before: McKEE, SMITH and ROTH, Circuit Judges
(Opinion filed March 11, 2009)
Fuad Rana, Esquire (Argued)
Paul W. Schmidt, Esquire
Covington & Burling
1201 Pennsylvania Avenue, N. W.
Washington, DC 20004
Counsel for Appellant
Matthew J. Connell, Esquire (Argued)
Holsten & Associates
One Olive Street
Media, PA 19063
Counsel for Appellees
OPINION
ROTH, Circuit Judge:
Rodney Derrickson asks this Court to create a post-conviction constitutional right,
cognizable under 42 U.S.C. § 1983 and rooted in Brady v. Maryland, 373 U.S. 83 (1963),
and the Due Process Clause of the Fourteenth Amendment, to access crime scene
evidence in order to conduct scientific testing which may or may not yield exculpatory
results. The evidence in question was available to Derrickson prior to and during his trial,
and the same testing could have been performed at that time. The District Court granted
summary judgment in favor of defendants, holding that Derrickson had failed to establish
the elements of a Brady violation. We exercise plenary review, construing the evidence
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in the light most favorable to Derrickson. Moore v. City of Philadelphia, 461 F.3d 331,
340 (3d Cir. 2006). We assume the parties’ familiarity with the factual and procedural
history, which we describe only as necessary to explain our decision. We will affirm.
Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a
method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490
U.S. 386, 393–94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Accordingly, Derrickson’s § 1983 claim is only cognizable if he has asserted the violation
of a constitutional right by someone acting under color of state law. See Abraham v.
Raso, 183 F.3d 279, 287 (3d Cir. 1999). Derrickson’s claim fails to meet this threshold.
First, Derrickson has failed to meet the required showing under Brady that the
prosecution withheld or suppressed the evidence prior to or during his trial. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). Indeed, the evidence at issue was available to
Derrickson and his counsel throughout the trial, and Derrickson concedes that no efforts
were made to access it until ten years after his conviction.
Second, Derrickson has failed to establish that the evidence is or would be
exculpatory. See id. No testing was ever done on the evidence, and, given the state in
which it has been stored all these years, there is no indication that testing performed at
this point would be conclusive. Moreover, it is just as likely that testing would yield
proof of guilt as proof of innocence.
In sum, Derrickson’s case is distinguishable from those in which convicted
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individuals request access to evidence for DNA or other scientific testing that did not
exist at the time of their original convictions. See, e.g., 18 U.S.C. § 3600(a) (providing
for post-conviction DNA testing of prisoners under certain circumstances); McKithen v.
Brown, 481 F.3d 89, 93 (2d Cir. 2007); Osborne v. Dist. Attorney’s Office for the Third
Judicial Dist., 423 F.3d 1050, 1054–55 (9th Cir. 2005), cert. granted, 129 S. Ct. 488
(2008).
Accordingly, we will affirm the judgment of the District Court.
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