[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-16442 September 23, 2002
____________________________ THOMAS K. KAHN
D. C. Docket No. 01-01601-B-S CLERK
DANNY JOE BRADLEY,
Petitioner-Appellant,
versus
BILL PRYOR, Attorney General
for the State of Alabama,
in his official capacity,
J C UPSHAW DOWNS, MD, Director
and Chief Medical Examiner,
Alabama Department of Forensic
Sciences-Headquarters, Auburn, AL,
in his official capacity,
JOE HUBBARD, District Attorney
for Calhoun County,
DISTRICT ATTORNEY OFFICE,
for Calhoun County,
Respondents-Appellees.
____________________________
Appeal from the United States District Court
for the Northern District of Alabama
____________________________
(September 23, 2002)
Before EDMONDSON, Chief Judge, and BIRCH and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
Danny Joe Bradley, an Alabama prisoner under sentence of death, appeals
the district court’s dismissal of his suit to compel the government to produce
evidence for DNA testing. The court held that Bradley’s suit, which was filed
pursuant to 42 U.S.C. § 1983, was the “functional equivalent” of a petition for
habeas corpus, and should therefore be dismissed as a second or successive habeas
petition filed without the requisite authorization from the Court of Appeals.
Bradley now appeals that ruling and argues that his suit was properly brought
pursuant to § 1983 because his request for the production of evidence neither
directly, nor by necessary implication, attacks the validity of his conviction and
sentence. We agree, and accordingly reverse the decision of the district court.
BACKGROUND
Bradley was convicted of the murder of his stepdaughter, Rhonda Hardin, in
1983 and sentenced to death. He has unsuccessfully pursued relief from his
conviction and sentence through a direct appeal, see Bradley v. State, 494 So. 2d
750 (Ala. Crim. App. 1985); Ex parte Bradley, 494 So. 2d 772 (Ala. 1986), state
post-conviction proceedings, see Bradley v. State, 557 So. 2d 1339 (Ala. Crim.
App. 1989), and federal habeas corpus proceedings, see Bradley v. Nagle, 212 F.3d
559 (11th Cir. 2000). In June, 2001, he initiated the present § 1983 action in the
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district court to secure production of certain physical and biological evidence the
State had gathered in the course of its investigation and prosecution of Bradley for
Hardin’s murder. Bradley wishes to conduct DNA testing of the evidence,
averring that it will yield results establishing or tending to establish his innocence.
In his complaint, Bradley sought production of a number of items of
evidence, some of which he has since obtained pursuant to a state court order.
However, he still seeks two items of evidence that the State used at trial to connect
him to the crime. First, he seeks the “rape kit” evidence from the autopsy of the
victim, including vaginal, rectal and oral swabs, substance smears, and gastric
juices. The smears and gastric juices were found to contain semen and
spermatozoa, which at trial the prosecution attributed to Bradley. Second, he seeks
production of the clothing worn by the victim when her body was discovered; at
trial, the State’s expert testified that the clothing contained semen stains. The State
claims that both the “rape kit” evidence and the victim’s clothing are missing.
However, Bradley argued in the district court, as he does here, that he is entitled to
discovery to test the factual basis for the state’s assertion that it no longer
possesses the evidence he seeks.1
1
The State submitted an affidavit stating that the items Bradley seeks are missing, but
Bradley points out that the affidavit evidence is hearsay, and he has not been provided with any
opportunity for discovery to develop contrary evidence regarding the availability of the items he
seeks.
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The magistrate judge recommended dismissing Bradley’s § 1983 action,
concluding that because Bradley was seeking evidence that might eventually
exonerate him, his suit was the “functional equivalent” of a second habeas petition,
over which the district court could not exercise jurisdiction because it did not
satisfy the procedural prerequisites of 28 U.S.C. § 2244. The magistrate also
denied Bradley’s motion for discovery. The district court adopted the magistrate’s
report and recommendation in its entirety and dismissed the action. The court then
issued a certificate of appealability on the sole question now before us2:
Whether a 42 U.S.C. § 1983 action initiated by a state prisoner
sentenced to death which seeks to compel the state to produce
physical evidence for DNA testing and/or to account for such
evidence for the purpose of later asserting a claim of actual innocence
or a due process claim under Brady v. Maryland, [373 U.S. 83
(1963),] or Arizona v. Youngblood, [488 U.S. 51 (1988),] is the
“functional equivalent” of a petition for federal habeas corpus.
We review de novo the dismissal of an action for lack of subject matter
jurisdiction. Carter v. Rodgers, 220 F.3d 1249, 1252 n.3 (11th Cir. 2000).
DISCUSSION
The Supreme Court first considered the potential overlap between § 1983
2
We note that this case does not address the question of whether Bradley’s claim states a
cause of action, or of whether a different result would obtain if a federal stay of execution were
implicated. Although the Alabama Supreme Court subsequently stayed Bradley’s execution
pending the outcome of these proceedings, that is a matter for the state court’s discretion, and a
stay was not part of the relief that Bradley sought in his § 1983 suit.
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actions and habeas corpus petitions in Preiser v. Rodriguez, 411 U.S. 475 (1973),
and held that habeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks immediate or speedier
release. Id. at 487-90. Later, in Heck v. Humphrey, 512 U.S. 477 (1994), the
Court considered under what circumstances an action for damages pursuant to §
1983—in other words, in which the relief requested does not involve immediate or
speedier release—will not lie and must instead be brought as a habeas petition.
Sharpening the formula it applied in Preiser, the Court explained that the decisive
issue is “whether a judgement in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence . . . .” Id. at 487. If it would, the Court
held that the § 1983 complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated. “But if
the district court determines that the plaintiff’s action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the absence of some other bar
to the suit.” Id. (emphasis in original).
Bradley argues that his § 1983 suit should be allowed to proceed because
success in his suit will not demonstrate the invalidity of his conviction or sentence.
We agree. Bradley seeks access, for the purpose of DNA testing, to evidence that
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he believes is in the State’s possession. He prevails in this lawsuit once he has
access to that evidence or an accounting for its absence. Nothing in that result
necessarily demonstrates or even implies that his conviction is invalid. As Bradley
points out, it is possible that the evidence will not exculpate him, or the proof will
show that any unavailable evidence was lost innocently. In that case, he would
have no grounds subsequently to pursue a challenge to his conviction or sentence.
But even if the evidence, after testing, permits Bradley to challenge his sentence,
that challenge is no part of his § 1983 suit. He would have to initiate an entirely
different lawsuit, alleging an entirely different constitutional violation, in order to
demonstrate that his conviction and sentence are invalid.
The State argues that the only reason Bradley wishes to test the evidence is
to mount a subsequent challenge to his conviction and sentence, and that his §
1983 suit is therefore the functional equivalent of a habeas corpus proceeding.
That argument finds support in a recent Fourth Circuit decision holding that, in a
suit to produce evidence for DNA testing, the fact that the plaintiff intends to use
the results of the DNA testing to undermine his conviction means that, under Heck,
the evidence is properly sought in a habeas corpus proceeding rather than in a suit
pursuant to § 1983. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002).
However, one member of the Harvey panel disagreed with that argument, and
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pointed out—correctly, in our view—that a plaintiff’s successful effort to obtain
evidence for DNA testing does not necessarily imply that his conviction and
sentence are invalid:
In this proceeding, Harvey seeks access to the biological evidence
held by the Commonwealth’s Attorney, and his suit, if successful,
would merely result in the Commonwealth’s Attorney making the
evidence available to him. That act alone—providing Harvey with
access to the biological evidence relating to his rape conviction—does
not “necessarily imply” the invalidity of Harvey’s conviction or
sentence. [Heck,] 512 U.S. at 487. Although Harvey might use the
evidence, at some future date, to initiate a separate action challenging
his conviction, future exculpation is not a necessary implication of
Harvey’s claim in this case.
Id. at 382-83 (King, J., concurring in part). Moreover, although a subsequent
change in state law permitted Harvey to obtain the evidence he sought, Judge
Luttig wrote in his concurrence to the denial of rehearing en banc that, were the
federal proceedings not rendered moot by the change in state law, he would have
voted to hear the case en banc to correct a “fairly clear[]” error in the panel
opinion. Harvey v. Horan, 285 F.3d 298, 307 (4th Cir. 2002) (Luttig, J., respecting
the denial of rehearing on banc). Judge Luttig wrote:
I do not believe it even arguable that a post-conviction action merely
to permit access to evidence for the purpose of STR DNA testing
“necessarily implies” invalidity of the underlying conviction. Indeed,
such necessarily implies nothing at all about the plaintiff’s conviction.
It certainly implies nothing more (and arguably it implies a good deal
less) than does an assertion of constitutional right to material and
exculpatory information producible under Brady v. Maryland, 373
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U.S. 83 (1963), which has never been thought necessarily to imply the
invalidity of the underlying conviction. The results of any DNA tests
that are eventually performed may be inconclusive, they may be
insufficiently exculpatory, or they may even be inculpatory. That
these scientific possibilities exist, in and of itself, suffices to establish
that the asserted right of mere access is not a direct, or for that matter
even an indirect, attack on one’s conviction or sentence. But if this
were not enough to establish the point, then it should be that, in order
to overturn a conviction based on exculpatory evidence that might
appear from any DNA testing, the petitioner would have to initiate an
entirely separate action at some future date, in which he would have to
argue for his release upon the basis of a separate constitutional
violation altogether.
Id. at 308. For the reasons expressed by Judges King and Luttig, we disagree with
the Fourth Circuit panel that Heck does not permit a § 1983 suit for the production
of evidence for the purpose of DNA testing. On the contrary, Heck explicitly
authorizes a § 1983 action that does not “necessarily imply” the invalidity of the
plaintiff’s conviction, see Heck, 512 U.S. at 487, and it is clear to us that Bradley’s
suit does not “necessarily imply” that his conviction is invalid.
The State also contends that a number of Eleventh Circuit decisions support
its position that Bradley’s suit may proceed only as a habeas corpus petition. First,
it notes that in Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996), and Hill v. Hopper,
112 F.3d 1088 (11th Cir. 1997), we held that § 1983 challenges to the
constitutionality of electrocution as a means of execution were the “functional
equivalent” to a petition for habeas corpus and were therefore subject to the
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procedural requirements governing second or successive petitions. The State
argues that these cases cannot be distinguished from the present one, because just
as the evidence might not exculpate Bradley, the plaintiffs in those cases “may not
have been given relief,” “depending on the district court’s rulings and the evidence
presented in support of the Eighth Amendment claims.” But Alabama is simply
pointing out that the plaintiffs might have been unsuccessful in their lawsuits, a
consideration that is plainly irrelevant under Heck. Again, Heck states that the
relevant inquiry is “whether a judgement in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence . . . .” 512 U.S. at 487 (emphasis
added). Obviously, if the plaintiff loses, the validity of the conviction or sentence
has not been called into question. But Heck would be meaningless if the
possibility that the plaintiff might lose his § 1983 suit were sufficient to establish
that the suit does not necessarily imply the invalidity of the conviction or sentence.
That is why the Heck inquiry considers the effect on the conviction and sentence if
the plaintiff is successful. If the Felker and Hill plaintiffs were successful—in
other words, if the court determined that electrocution was an unconstitutional
means of execution—it would “necessarily imply” the invalidity of their sentences
of death by electrocution. Accordingly, under Heck, a § 1983 suit does not lie in
those cases. But as previously discussed, if Bradley is successful in his lawsuit, his
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conviction and sentence will not be called into question, since the only thing he
will have secured is access to evidence.
The other case cited by the State is similarly distinguishable. In Abella v.
Rubino, 63 F.3d 1063 (11th Cir. 1995), the plaintiff argued that the defendants
“knowingly and willfully conspired to convict him falsely by fabricating testimony
and other evidence against him . . . .” Id. at 1064. We held that, under Heck, the
action did not lie because “[j]udgment in favor of Abella on these claims [that the
defendants unconstitutionally conspired to convict him of crimes he did not
commit] ‘would necessarily imply the invalidity of his conviction.’” Id. at 1065
(quoting Heck, 512 U.S. at 487). By contrast, Alabama cannot show in this case
that judgment in favor of Bradley would necessarily imply the invalidity of his
conviction.
We note again that Bradley’s suit seeks only the production of evidence.
There has been no discovery regarding the State’s claim that certain items of
evidence are missing, but in any event, that claim does not alter the nature of
Bradley’s suit. We therefore reverse the decision of the district court and remand
for further proceedings.
REVERSED AND REMANDED.
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EDMONDSON, Chief Judge, specially concurring:
Although I know that other federal circuit courts have reached conclusions
inconsistent with my view, I -- largely for the reasons stated by Judge Barkett --
agree that Bradley’s 42 U.S.C. § 1983 action is not the functional equivalent of a
petition for habeas corpus. I write separately to stress that Bradley has at no time
in this federal case asked a federal court to enjoin Alabama from executing him or
even to stay his execution until his section 1983 case is decided. The lack of a
request for a federal court to stop or to postpone the State execution is important to
my decision.
I hint at no view about whether Bradley’s lawsuit actually states a claim
upon which relief can be granted.
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BIRCH, Circuit Judge, specially concurring:
I concur dubitante. If a district court’s decision is correct for any reason,
then it is due to be affirmed, even though the particular reason given by the district
court is erroneous. See Hempel v. United States, 14 F.3d 572, 576 (11th Cir.
1994); Collins v. Seaboard Coastline R.R. Co., 681 F.2d 1333, 1335 (11th Cir.
1982). I am inclined to affirm the judgment based upon my conclusion, tentative
though it be, that under the circumstances presented here the petitioner does not
enjoy a substantive or procedural due process right to the relief he seeks.
Therefore, in my opinion, he does not state a predicate constitutional violation to
support his § 1983 claim. However, before a final conclusion should be reached on
this unsettled issue, a substantially greater amount of thought and briefing should
be pursued: just what rights, if any, does a convicted petitioner, who has exhausted
his direct appeals and post-conviction avenues of relief, enjoy relative to discovery
and testing of DNA evidence? Perhaps on remand this issue will receive the added
scrutiny that it deserves.
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