Darrell Grayson v. Troy King

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
August 18, 2006
No. 05-15725 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 02-02800-CV-BE-S

DARRELL GRAYSON,

Petitioner-Appellant,

versus

TROY KING,
Attorney General for the State of Alabama,
in his official capacity,
ROBERT E. OWENS, JR.,
District Attorney for Shelby County,
in his official capacity,
SHELBY COUNTY DISTRICT ATTORNEY OFFICE,

Respondents-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(August 18, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Darrell Grayson, an Alabama prisoner sentenced to death in state

court, appeals the dismissal of his 42 U.S.C. § 1983 action seeking post-habeas

access to biological evidence presented at his capital murder trial so that he can

subject the evidence to DNA testing. After review and oral argument, we affirm.

I. BACKGROUND

A. Offense Conduct

In June 1982, Grayson was convicted of the murder of an elderly widow,

Mrs. Annie Laura Orr. The facts of the crime, as found by the state court judge

who sentenced Grayson and recounted by this Court in Grayson’s previous federal

habeas appeal, are as follows:

Mrs. Annie Laura Orr was an eighty-six (86) year old widow
who lived alone in her house in Montevallo, Alabama. At the time of
her death, she stood about five feet three inches tall, and weighted
[sic] some one-hundred seventeen pounds. Her granddaughter visited
her during the day of December 23rd, 1980, and found her appearing
to be in good health, ambulatory, and in possession of her mental
faculties. Her personal physician, Dr. Lewis Kirkland, described her
as being in good health for a woman of her age.
During the evening hours of December 23rd, 1980, the
Defendant Darrell Grayson, Co-defendant Victor Kennedy, and two
other individuals, met at Kennedy's residence, also in Montevallo, and
a short distance from that of Mrs. Orr. They drank wine and played
cards. Sometime shortly after midnight, and after the other individuals
had gone, Kennedy and Grayson left Kennedy's house on foot,

2
 walking in the direction of Mrs. Orr's house. They were armed with a
.38 Caliber handgun, which belonged to Kennedy. They decided to
burglarize Mrs. Orr's residence in order to get some money. They had
previously discussed such a burglary, that Mrs. Orr was elderly, and
where she kept her money.
They entered the Orr house during the very early morning hours
of December 24th, 1980, through a rear basement door. They then
proceeded through the dirt basement, up several steps, and into the
main living portion of the house near Mrs. Orr's bedroom. The
Defendants used a flashlight to illuminate their way.
Once inside the living portion of the house they entered Mrs.
Orr's bedroom where she was apparently sleeping. They subdued and
beat her, striking her in the head with a blunt instrument and breaking
several of her ribs. Darrell Grayson then placed a pillowcase over her
head and wrapped two relatively long lengths of masking tape very
tightly around her head so that when they were finished he[r] head
then appeared to be that of a mummy. They then proceeded to look for
money and other valuables.
When apparently they could not find a significant amount of
cash, the[y] began threatening Mrs. Orr by beating her further,
threatening to drown her, and firing two shots from Kennedy's pistol,
into her bedroom block and wall. Also during their assault, they raped
Mrs. Orr repeatedly. Darrell Grayson said he didn't want to rape Mrs.
Orr but that he did so twice. Mrs. Orr lived through the assault of
being raped, beaten, threatened, unable to see or adequately breathe,
and begging her assailants not to hurt her but to take the money and
leave, for a considerable period of time. She then died.

Grayson v. Thompson, 257 F.3d 1194, 1197-98 (11th Cir. 2001).

On the morning of December 24, 1980, Mrs. Orr’s son discovered her dead

body in her home in Montevallo, Alabama, and called law enforcement officers.

Id. at 1198. The officers discovered a trail of playing cards leading from Mrs.

Orr’s home to the home of Victor Kennedy, a known burglar. Id. Knowing that

3
Kennedy and Grayson had been seen together the previous night, officers began

looking for Grayson on the afternoon of December 24, 1980, and discovered him

“squatting in the bushes” in a wooded area near his home. Id. Following his

arrest, Grayson confessed. Id. Officers also discovered Mrs. Orr’s wedding rings

in Grayson’s wallet and obtained physical evidence from Grayson that linked

Grayson to the crime. Id. Grayson was taken into custody. Id.

B. Grayson’s Confessions

After waiving his Miranda rights, Grayson gave officers a series of

statements. Id. at 1198-99. When interviewed by Sergeant John Pratt and Chief

Troy Kirkland, Grayson told the officers that he had performed yard work for Mrs.

Orr in the past, was familiar with her house, and had entered her home with

Kennedy in the early morning of December 24, awakening Mrs. Orr. Id. at 1199.

Grayson admitted that they had repeatedly raped Mrs. Orr while searching her

house for valuables. Id. Grayson and Kennedy took the money and valuables they

found, left Mrs. Orr on her bed, and left the house. Id.

Within thirty minutes of this interview, Grayson again waived his Miranda

rights and confessed to the officers again. Id. This time, the officers tape-recorded

the confession. Id. Grayson again admitted that he had worked for Mrs. Orr in the

past and knew the house, but claimed that the burglary and rape were Kennedy’s

4
ideas. Id. Grayson also claimed that he and Kennedy had consumed several

gallons of wine the evening of the crime. Id.

Two days later, Grayson again waived his Miranda rights and gave another

recorded statement to Captain Reed Smith. Id. This time, Grayson explained that

he and Kennedy had been planning for a couple of weeks to rob Mrs. Orr to get

money for Christmas. Id. They selected Mrs. Orr as a target because Grayson had

worked for her and knew where she kept money. Id. Grayson also stated that Mrs.

Orr had begged them to take her money and not hurt her. Id. Grayson taped a

pillowcase over Mrs. Orr’s face to prevent her from recognizing him, and after

that, he could not understand what she was saying. Id. Grayson stated that both he

and Kennedy raped Mrs. Orr repeatedly and unsuccessfully searched for money

and other valuables. Id. at 1200. Grayson admitted that at one point he had taken

Mrs. Orr to the bathroom and then returned her to the bedroom, where he raped her

again, but he could not remember why he took her to the bathroom or what

happened there. Id. Grayson explained that Kennedy urged him to leave the house

while he was raping Mrs. Orr, and Grayson left Mrs. Orr on her bed with the

pillowcase taped over her head and face as he left the house. Id.

C. Evidence at Trial

Grayson was tried for capital murder during a burglary. At trial, the officers

5
described the crime scene, the physical evidence, including the playing cards that

led to Kennedy’s house, and the circumstances leading to Grayson’s arrest. Id. at

1201. The officers also recounted their discovery of Mrs. Orr’s wedding rings in

Grayson’s wallet and the bloody shirt belonging to Grayson in the woods near his

home. Id. at 1198, 1201. The transcripts of Grayson’s confessions were admitted

into evidence. Id.

The State additionally presented expert testimony about the crime scene.

For example, the State’s trace evidence expert testified about the comparison of

hairs recovered from the crime scene and hairs taken from Grayson and Kennedy.

Id. at 1202. The expert explained that several hairs recovered at the crime scene

had “negroid” characteristics consistent with Grayson’s and Kennedy’s hair and

inconsistent with the victim’s, but that the hairs were too small to allow an

individual comparison of them with Grayson’s and Kennedy’s samples. Id. The

expert also testified that a hair recovered from Grayson’s sock following his arrest

was consistent with the victim’s head hair and inconsistent with Grayson’s, but the

expert could not opine as to whether the hair was the victim’s. Id.

The State’s fingerprint expert testified that the latent fingerprints lifted from

Mrs. Orr’s home and on evidence were insufficient to allow analysis. Id. at 1201-

02. The State’s ballistics expert testified that the two bullets found in the wall

6
between Mrs. Orr’s bedroom and bathroom and on the floor in her bedroom were

of the .38 caliber size and were fired from the same weapon, likely a Smith and

Wesson revolver. Id. at 1202. The expert further testified that the hole in a

shattered clock in Mrs. Orr’s home also was consistent with a .38 bullet. Id.

However, on cross-examination, the ballistics expert testified that the police had

not given him a gun that matched up with the bullets. Id. at 1203.

The State’s serology expert testified that bloodstains found on a pillowcase

and a bed spread in Mrs. Orr’s bedroom could not be typed; nor could urine and

semen stains found on a bed sheet recovered from Mrs. Orr’s bathroom. Id. at

1202.1 The expert also testified that the bloodstains on Grayson’s shirt recovered

from the woods near his house were type O and could have come from either Mrs.

Orr or Kennedy, both of whom were type O, but could not have come from

Grayson, who is type B. Id. The serology expert testified that a large blood and

semen stain on Mrs. Orr’s nightgown was type B, which was consistent with

Grayson’s blood.2 Id.

1
Dr. Joseph Embry, who performed the autopsy of Mrs. Orr, collected this evidence: (1)
spermatozoa on Mrs. Orr’s vaginal and perineal swabs; (2) a “negroid” hair that was stuck in the
tape used to bind Mrs. Orr; (3) various other hairs; (4) the nightgown that Mrs. Orr was wearing;
and (5) Mrs. Orr’s bed sheet.
2
On cross-examination, defense counsel focused on the fact that Grayson was a “non-
secretor,” meaning that Grayson ordinarily would not secrete his blood type into bodily fluids in
detectible amounts. Grayson, 257 F.3d at 1203. Defense counsel noted that the semen was
mixed evenly with blood, which could have produced the type B reading. Id.

7
D. Grayson’s Trial Testimony

At trial, Grayson testified on his own behalf. Defense counsel walked

Grayson through the events of the night of the murder, starting with Grayson’s and

Kennedy’s alcohol consumption. Id. Grayson testified that they left at about

midnight to rob Mrs. Orr. Id. This time Grayson stated that they robbed Mrs. Orr

because Kennedy needed money, suggested that they rob someone, and spotted the

Orr house. Id.

In his trial testimony, Grayson admitted to the burglary, rape, and murder,

but testified that he did not remember many of the details. Id. at 1203-04.

Specifically, Grayson testified that he did not recall beating or hitting Mrs. Orr or

taking her into the bathroom, taking her wedding rings or placing them in his

wallet. Id. at 1203. At trial, Grayson admitted on direct and cross-examination

that he raped Mrs. Orr at least once. Id. at 1203-04. Grayson also testified that he

raped Mrs. Orr only at Kennedy’s urging, and that he did not intend to murder Mrs.

Orr. Id. Grayson testified that Mrs. Orr was still alive when he left the house at

Kennedy’s urging; he knew she was still alive because she was “making moaning

In this appeal, Grayson seems to argue that the fact that the semen and blood stains on
Mrs. Orr’s nightgown could be typed as B suggests that Grayson was not the perpetrator of the
rape – even though Grayson has type B blood – because Grayson is a non-secretor. However,
this argument is meritless because, as defense counsel noted, the stain itself was a mixture of
seminal fluid and some blood. In addition, at most this might show a third party was involved in
the rape but would not show that Grayson did not commit the murder during a burglary – the
only crime of conviction.

8
noises like she was trying to say something.” Id. Grayson did not remember the

murder until the next day, when his mother told him that Mrs. Orr had been killed.

Id. at 1204. At that point, Grayson recalled his involvement and hid the

bloodstained shirt he had worn the night before. Id.

On cross-examination, Grayson stated that he had told officers details he did

not remember based on their suggestions of what Kennedy had said about the

events the night of the murder. Id. However, Grayson admitted that he and

Kennedy had been planning the robbery for a week and that they picked Mrs. Orr’s

house because he was familiar with it. Id. Grayson further admitted that he had

raped Mrs. Orr at least once; wrapped the pillowcase around Mrs. Orr’s head to

keep from being identified, even though he had not worked for her in two years

and did not believe she would be able to recognize him; and had not loosened the

pillowcase around Mrs. Orr’s head, even though he was the last one to leave her

bedroom. Id.

Grayson was indicted and convicted for nighttime burglary of an occupied

dwelling during which an occupant of said dwelling was intentionally killed by the

defendant, in violation of Alabama Code § 13A-5-31(A)(4) (1975) (repealed).3

The murder was a capital offense because it occurred during a burglary of an

3
Capital offenses are now set forth in Alabama Code § 13A-5-40.

9
inhabited dwelling. See Grayson v. State, 479 So. 2d 69, 71 (Ala. Crim. App.

1984); Grayson v. State, 675 So. 2d 516, 519 (Ala. Crim. App. 1995) (noting that

Grayson “was convicted of murder made capital because it was committed during a

burglary”). Grayson was not indicted for rape nor capital rape-murder.

E. Sentencing

At the sentencing phase, the State presented no additional evidence.

Grayson, 257 F.3d at 1207. In closing arguments, the State emphasized the

brutality of the crime, that Mrs. Orr’s death was slow and agonizing, and that she

had been beaten and raped, and argued that these circumstances outweighed any

mitigating circumstances. Id. The jury determined that Grayson should be

sentenced to death. Id.

After the jury’s recommendation, the judge held a sentencing hearing, at

which the State presented no further evidence. Id. at 1207-08. The state trial court

sentenced Grayson to death, finding the following aggravating factors: “(1) that the

killing was committed while the defendant was engaged in the commission of a

rape, robbery, and burglary and (2) that the killing was especially heinous,

atrocious and cruel when compared to other capital felonies.” Id. at 1208. The

trial court further explained:

The Court finds that the actions of the Defendant were completely
barbaric, showing a complete and utter disregard for not only human

10
 life, but human dignity. The Court cannot think of a case it has seen,
heard, or even read, that would equal the cruelty shown in this case by
the Defendant to Mrs. Orr. Indeed, the Court has some difficulty
imagining what more the Defendants could have done to make this
crime any more heinous, atrocious, or cruel.

Id. The state trial court considered certain mitigating circumstances, including

Grayson’s difficult background and lack of a criminal history, but concluded that

the aggravating factors and circumstances overwhelmed those mitigating

circumstances. Id. The Alabama courts upheld Grayson’s conviction and death

sentence on direct appeal. Grayson, 479 So. 2d at 76; Ex parte Grayson, 479 So.

2d 76 (Ala. 1985), cert. denied, Grayson v. Alabama, 474 U.S. 865, 106 S. Ct. 189

(1985).

F. Post-Conviction Proceedings

For fifteen years, from 1986 to 2001, Grayson pursued state and federal

habeas cases but never sought any DNA testing of the blood and semen evidence

discussed at trial. In 1986, Grayson sought post-conviction habeas relief in the

Alabama state courts based on evidence, inter alia, about his alcoholism and

upbringing that he argued his counsel should have presented at his trial. Grayson,

257 F.3d at 1209. Grayson did not raise any issue relating to DNA testing. In

January 1993, after an evidentiary hearing, the state habeas court denied Grayson’s

petition for post-conviction relief. Grayson, 675 So. 2d at 519. In December 1995,

11
the Alabama Court of Criminal Appeals denied Grayson’s habeas appeal. Id. at

531.

In April 1996, Grayson filed a 28 U.S.C. § 2254 petition in the federal

district court. Grayson’s § 2254 petition did not raise any issue about DNA

testing. In March 2000, the district court denied the petition. Grayson appealed to

this Court, arguing that he was denied the effective assistance of trial counsel, that

the admission of his allegedly involuntary statements to law enforcement violated

his Fifth Amendment rights, and that he did not receive a fair trial or due process

of law because the State of Alabama denied him sufficient funds to hire a forensic

pathologist. In 2001, this Court affirmed the district court’s denial of Grayson’s

§ 2254 petition. Grayson, 257 F.3d at 1232. Through those fifteen years of post-

conviction proceedings – in both state and federal courts – Grayson was

represented by Stephen Bright, one of the foremost experts in capital defense work

in the country. See Williams v. Head, 185 F.3d 1223, 1228 n.2 (11th Cir. 1999)

(reviewing expertise of Mr. Bright). Despite the availability of Short Tandem

Repeat (“STR”) DNA testing, Grayson and his counsel never sought such testing.

Grayson did not seek such testing until 2002, when the State requested an

execution date from the Alabama Supreme Court.

G. This § 1983 Action

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 In 2002, Grayson first moved in the state trial court to obtain the biological

evidence presented at trial so that he could have DNA testing performed on the

evidence. The State, through the Attorney General, opposed the motion. As

grounds, the State argued that the state trial court did not have jurisdiction over the

motion, that the motion could be construed as a Rule 32 petition under Alabama

law but would be subject to dismissal as successive and time-barred, and that

Grayson never contested that he raped Mrs. Orr. On October 10, 2002, the State

court denied the motion for lack of jurisdiction.

In November 2002, twenty years after his conviction for capital murder,

Grayson filed this § 1983 action seeking access to the biological evidence used at

trial. Grayson’s complaint alleged that by refusing to turn over the evidence, the

defendants had violated his Fourteenth Amendment rights to due process of law

and equal protection, Sixth Amendment rights of confrontation and compulsory

process, and Eighth Amendment right against cruel and unusual punishment.

Grayson’s complaint alleged that he was deprived of an opportunity to show actual

innocence and to seek clemency.

In an affidavit attached to his complaint, Grayson stated that he had no

recollection of the crimes against Mrs. Orr and further stated: “DNA testing was

not available at the time of my trial or appeal and since I have been sentenced to

13
death, I would like to know the truth of my guilt or my innocence.” Nowhere does

Grayson claim actual innocence.

Other exhibits attached to Grayson’s § 1983 complaint indicate that DNA

testing became available as early as 1986, more than fifteen years before Grayson

sought any such testing. See U.S. Department of Justice, Postconviction DNA

Testing: Recommendations for Handling Requests, at 1, 26-27 (Sept. 1999),

available at http://www.ncjrs.gov/pdffiles1/nij/177626.pdf. Indeed, the declaration

of Dr. Edward Blake, attached to Grayson’s § 2254 petition, states that Dr. Blake

applied DNA procedures to criminal investigations beginning in the period from

1986 to the early 1990s. Grayson contends that the specific type of DNA testing

he seeks – STR DNA testing – did not become widely available until the mid-

1990s.4

The defendants moved to dismiss Grayson’s § 1983 action on several

grounds, including failure to state a claim upon which relief could be granted. The

magistrate judge recommended that the motion be granted and Grayson’s § 1983

action be dismissed. The magistrate judge’s recommendation was based “in

4
There are a number of different forms of DNA testing, with each becoming more
sophisticated than the last. As the State points out, under Grayson’s constitutional-right theory,
even where DNA testing was available at trial and used to convict a criminal defendant, that
defendant would later seek access to evidence to use a more discriminating or newly developed
test. See Harvey v. Horan, 278 F.3d 370, 373, 378 (4th Cir. 2002) (noting that evidence used to
convict Harvey was subjected to Restriction Fragment Length Polymorphism or “RFLP” DNA
testing prior to trial, but Harvey sought STR DNA testing post-conviction).

14
substantial part on Grayson’s admission at trial, on direct examination and cross-

examination, that he raped the victim and on his failure at any time, during appeal

or other post-conviction proceedings, to assert that he was innocent of the charge.”

Plaintiff objected to the magistrate judge’s report and recommendation. On

September 15, 2005, the district court entered an order adopting the magistrate

judge’s report and dismissing the action. Grayson appeals.5

II. DISCUSSION

Our circuit has held that claims seeking post-conviction access to biological

evidence for DNA testing purposes may be brought as a § 1983 action. Bradley v.

Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002). Thus, Grayson’s claims may proceed

as a § 1983 action. Our circuit, however, has not addressed the merits of such

claims. Accordingly, this appeal now presents the issue of whether a defendant has

a federal constitutional right to post-conviction access to biological evidence for

DNA testing. To state a claim under § 1983, Grayson must show that the denial of

post-conviction access to the biological evidence deprived him of a federally

protected right. Grayson seeks to satisfy this requirement by contending mainly

5
We review de novo the district court’s dismissal of Grayson’s § 1983 action. P.G.
Charter Boats, Inc. v. Soles, 437 F.3d 1140, 1141 n.1 (11th Cir. 2006). Although the State’s
motion was brought under Rule 12(b)(6), we note that both the magistrate judge and the district
court appeared to consider all six exhibits attached to Grayson’s complaint, which included
Grayson’s affidavit and Dr. Blake’s declaration. Thus, evidence presented by Grayson was
considered without objection by the State.

15
that denial of access constitutes a violation of his rights under the due process

clause of the Fourteenth Amendment.

On appeal, Grayson argues primarily that he has a constitutional right of

access to the biological evidence presented at trial under two different lines of

cases: Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), and its

progeny, requiring the State to turn over exculpatory evidence; and Mathews v.

Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976), requiring procedural due

process protections under the Fourteenth Amendment. Thus, Grayson argues, the

district court erred in dismissing his § 1983 complaint. We discuss Grayson’s

legal arguments in turn.

A. Brady v. Maryland

In Brady, the United States Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97.

The Brady rule is grounded in a defendant’s right to a fair trial. The Supreme

Court has since explained that “unless the omission deprived the defendant of a fair

trial, there was no constitutional violation requiring that the verdict be set aside. . . .

[T]he prosecutor will not have violated his constitutional duty of disclosure unless

16
his omission is of sufficient significance to result in the denial of the defendant’s

right to a fair trial.” United States v. Bagley, 473 U.S. 667, 675-76, 105 S. Ct.

3375, 3380 (1985) (quotation marks omitted); Kyles v. Whitley, 514 U.S. 419,

434, 115 S. Ct. 1555, 1566 (1995) (noting that the question under Bagley is

whether, in the absence of the evidence, the defendant received a fair trial); United

States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 2399 (1976) (stating that there is

no denial of due process “unless the omission deprived the defendant of a fair

trial”). The Supreme Court also explained that evidence is material, for Brady

purposes, “only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. A

‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” Bagley, 473 U.S. at 682, 105 S. Ct. at 3383.

Accordingly, Brady concerned the suppression of evidence prior to and

during trial that was material to the proceedings and denied the defendant a fair

trial. Here, Grayson makes no argument that the biological evidence was

suppressed at trial, denying him a fair trial; rather, it was presented at trial, and it is

beyond peradventure that Grayson received a fair trial. Grayson argues instead

that the Supreme Court has extended the prosecutor’s constitutional obligations

under Brady beyond the defendant’s trial and conviction. For this proposition,

17
Grayson relies on a footnote in Imbler v. Pachtman, 424 U.S. 409, 427 n.25, 96 S.

Ct. 984, 993 n.25 (1976), where the Supreme Court explained that “after a

conviction the prosecutor . . . is bound by the ethics of his office to inform the

appropriate authority of after-acquired or other information that casts doubt upon

the correctness of the conviction.”

Contrary to Grayson’s argument, Imbler does not suggest that the

prosecution maintains an ongoing due process obligation to inform the defense of

after-acquired evidence that might cast doubt on a conviction. Imbler simply

explains that the prosecution maintains an ongoing ethical obligation to inform the

defense of such material; it is the suppression of evidence before and during trial

that carries Brady’s constitutional implications. Id. Furthermore, the biological

evidence Grayson seeks was not acquired after trial, but was available and used at

trial, and does not cast doubt on Grayson’s conviction for capital murder. Grayson

has cited absolutely no authority for the proposition that Brady’s constitutional rule

– i.e., the state’s disclosure obligation – extends beyond a defendant’s conviction.

Grayson also relies on Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989

(1987). However, Ritchie does not help Grayson because Ritchie pertained to a

request for files during the ongoing prosecution. Id. at 42-43, 107 S. Ct. at 993-94.

The defendant Ritchie was charged with various sexual offenses against his minor

18
daughter. Id. at 43, 107 S. Ct. at 994. At some point the matter was referred to the

Children and Youth Services agency (“CYS”), a protective agency established by

the state of Pennsylvania to investigate cases of suspected child mistreatment and

neglect. Id. During pretrial discovery, Ritchie served CYS with a subpoena

seeking access to records relating to the immediate charges as well as previous

reports, but CYS refused to comply with the subpoena on the grounds that the

records were privileged by Pennsylvania statute. Id. The Supreme Court held that

under due process principles, Ritchie was entitled to have the trial court review the

records to determine if they contained information “that probably would have

changed the outcome of his trial,” and if so, that Ritchie was entitled to a new trial.

Id. at 58, 107 S. Ct. at 1002.

Grayson argues that Ritchie “controls” his claim for access to biological

evidence because it establishes that a defendant has a due process right to evidence

that “might” be exculpatory. As the State aptly points out, Grayson’s argument

saddles Ritchie with far more weight than it can bear. Ritchie concerned the pre-

trial obligation to disclose to the trial court for review known, existing evidence to

ensure that the defendant received a fair trial. The time for fair trial arguments has

long since passed in this case. Nothing in Ritchie suggests that a defendant has a

due process right, twenty years after receiving an indisputably fair trial at which

19
the evidence in question was presented, to seek access to and further testing on

evidence that was available at trial.6

We thus conclude that Grayson has no valid due process right of post-

conviction access to the biological evidence under Brady and its progeny in order

to retest that evidence under new technology. Grayson received a fair trial, in

which overwhelming evidence was presented against him. Indeed, Grayson

confessed to the burglary, rape, and murder of Mrs. Orr and even testified at trial,

admitting his crimes. Even now, Grayson does not contend that he is actually

innocent but only that he does not know whether he is guilty or innocent. Under

these circumstances, Grayson cannot establish that the prosecution withheld

evidence that would undermine confidence in his conviction.

The only circuit court to address this issue in a published opinion is the

6
Grayson also alleges that the State’s refusal to give him access to the biological evidence
violates the requirements of Arizona v. Youngblood, 488 U.S. 51, 57, 109 S. Ct. 333, 337
(1988), in which the Supreme Court held that the prosecution violates a defendant’s due process
rights if it in bad faith fails to preserve potentially exculpatory evidence, even though the
material is outside the scope of Brady. 488 U.S. at 58, 109 S. Ct. at 337. In Youngblood, the
State had permitted the destruction of semen samples that, if tested, might have exonerated the
defendant. The Supreme Court concluded there was no bad faith in the destruction of the
evidence. Id. at 58-59, 109 S. Ct. at 337-38. The Supreme Court held that “unless a criminal
defendant can show bad faith of the police, failure to preserve potentially useful evidence does
not constitute denial of due process.” Id. at 58, 109 S. Ct. at 337.
Grayson contends that the State’s refusal to grant him access to the evidence twenty
years later is the functional equivalent of bad-faith destruction of it. We disagree. The refusal to
provide the evidence to Grayson is not the equivalent of destruction; the evidence is preserved
and could be tested if Grayson otherwise had a right of access to the evidence, e.g., under a state
statute providing for such access.

20
Fourth Circuit in Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002).7 In that case, the

Fourth Circuit rejected plaintiff Harvey’s due process claim for post-conviction

access to biological evidence against him for DNA testing. Id. at 376-77.8 In so

doing, the Fourth Circuit stated that “Harvey does not state a valid Brady claim

because he is not challenging a prosecutor’s failure to turn over material,

exculpatory evidence that, if suppressed, would deprive the defendant of a fair

trial”; rather, Harvey received a fair trial and was given the opportunity to test the

DNA evidence at trial using the best technology available at the time.9 Id. at 378-

7
In an unpublished opinion, the Sixth Circuit affirmed the district court’s ruling in Alley
v. Key, 431 F.Supp. 2d 790 (W. D. Tenn. 2006), that the petitioner, a death-row inmate, had no
post-conviction constitutional right to biological evidence used against him at trial for purposes
of DNA testing, and affirmed the resulting dismissal of the petitioner’s § 1983 complaint. Alley
v. Key, No. 06-5552, 2006 WL 1313364 (6th Cir. May 14, 2006) (unpublished), cert. denied,
126 S. Ct. 2973 (2006). The Sixth Circuit noted that “there exists no general constitutional right
to post-judgment DNA testing,” and specifically rejected essentially the same due process and
Brady claims asserted by Grayson here. Id. at *1-2.
8
In Harvey, the Fourth Circuit decided that post-conviction claims seeking access to
biological evidence for DNA testing must be brought as habeas claims rather than § 1983 claims.
278 F.3d at 377-79. This Circuit has rejected that approach, allowing such claims to proceed as
§ 1983 claims without determining whether a due process right to such evidence exists. Bradley,
305 F.3d at 1290-92. We nevertheless find instructive the Harvey Court’s analysis of why no
such due process right exists under Brady.
9
Other courts to address this issue are split. Compare, e.g., Godschalk v. Montgomery
County Dist. Att’y’s Office, 177 F.Supp. 2d 366, 370 (E.D. Pa. 2001), and Dabbs v. Vergari, 570
N.Y.S.2d 765, 767-69 (N.Y. Sup. Ct. 1990) (recognizing a post-conviction right of access to
evidence for DNA testing), with Alley, 431 F.Supp. 2d at 800-803 (holding that there is no post-
conviction due process right to biological evidence for purposes of DNA testing), aff’d, 2006
WL 1313364, and Osborne v. State, 110 P.3d 986, 995 (Alaska Ct. App. 2005) (holding that
there is no federal due process right to present new evidence of actual innocence such as DNA
testing).
The district court in Godschalk relied on Harvey v. Horan, 119 F.Supp. 2d 581 (E.D. Va.
2000), in which the district court ordered disclosure of the evidence. Godschalk, 177 F.Supp. 2d

21
79.

Here, Grayson confessed several times, testified at trial about the murder and

his role in it, and does not contend that he was denied a fair trial. Grayson also still

does not contend that he is actually innocent of the capital murder – the only crime

of conviction. Further, the DNA testing that Grayson seeks to perform could not

show that he is actually innocent of the capital murder. Even if the tests indicated

that someone other than Grayson and Kennedy raped Mrs. Orr, that result would

not establish definitively that Grayson was innocent of the capital murder during a

burglary, given the other evidence against Grayson, such as the discovery of Mrs.

Orr’s wedding rings in Grayson’s wallet, his admission that he and Kennedy had

planned the robbery of Mrs. Orr for a week, Grayson’s bloody shirt, and Grayson’s

detailed confessions about how he wrapped the pillowcase around the head of Mrs.

Orr, who died from asphyxiation.10 The requested DNA tests, even if exculpatory,

would simply indicate that a third man was involved and had raped Mrs. Orr and

would not exclude Grayson’s involvement in the capital murder, much less

definitively show his innocence.

at 369. However, the Fourth Circuit subsequently reversed the district court’s Harvey decision.
Harvey, 278 F.3d at 381.
10
Grayson admitted that Mrs. Orr was selected because he had worked for her and was
familiar with her house and where she kept the money. Grayson placed the pillowcase over her
head to keep her from recognizing him. Grayson also admitted to hiding his bloody shirt the day
after the murder.

22
 As discussed later, we do not foreclose the possibility that a § 1983 plaintiff

could, under some extraordinary circumstances, be entitled to post-conviction

access to biological evidence for the purpose of performing DNA testing. Instead,

we simply hold that Grayson has no such constitutional or federally protected right

under Brady because the evidence was available prior to trial, he received a fair

trial, and he cannot show “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

Bagley, 473 U.S. at 682, 105 S. Ct. at 3383. In other words, the asserted right at

issue is not one to material, exculpatory evidence necessary to ensure a fair trial.

See Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97.

We thus conclude that Grayson has no valid Brady-based claim to the

biological evidence.

B. Mathews v. Eldridge

Grayson next argues that he has a procedural due process right of post-

conviction access to the biological evidence under the balancing test established by

the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903

(1976). In Mathews, the Supreme Court explained that “[p]rocedural due process

imposes constraints on governmental decisions which deprive individuals of

‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of

23
the Fifth or Fourteenth Amendment.” Id. at 332, 96 S. Ct. at 901. The Supreme

Court explained that where the government seeks to deprive an individual of such

an interest, the courts must consider the following factors in determining what

administrative safeguards are required:

First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.

Id. at 335, 96 S. Ct. at 903. Thus, Mathews applies only where an individual has a

liberty or property interest that the government seeks to eliminate, and the

Mathews test concerns the administrative procedures required.

To support his alleged protected liberty interest, Grayson advocates that this

Court should follow the concurring opinion in the denial of rehearing en banc in

the Fourth Circuit’s Harvey v. Horan, 285 F.3d 298, 304-326 (4th Cir. 2002)

(Luttig, J., concurring). The concurring opinion (1) recognized a “core liberty

interest,” protected by the Fourteenth Amendment, to “freedom from bodily

restraint” and to pursue “freedom from confinement” that residually survives

conviction and incarceration, id. at 312-13, and (2) concluded that “this substantive

liberty interest is protected through a procedural due process right to have

24
previously-produced forensic evidence either released to the convicted individual

for STR, or related, DNA testing at his or her own expense, or submitted by the

government for such testing, with the test results to be provided thereafter to the

convicted individual,” id. at 315. Thus, Grayson’s claimed right of post-conviction

access to biological evidence allegedly “partakes of both procedural and

substantive due process.” Id. at 318. We note that the concurrence in the Harvey

panel opinion, however, concluded that “the balancing test of Mathews is only

relevant when the government is depriving an individual of a ‘liberty’ or ‘property’

interest,” and that Harvey had no such liberty or property interest in accessing or

possessing the biological evidence relating to his rape conviction. Harvey, 278

F.3d at 388 (King, J., concurring).

Indeed, there were multiple opinions in Harvey addressing the thorny

threshold issue of whether or not a liberty interest under the due process clause

residually survives final conviction and sentencing. See id. (King, J., concurring);

Harvey, 285 F.3d at 299-300 (Wilkinson, J., concurring); Harvey, 285 F.3d at 308-

26 (Luttig, J., concurring).11 Further, in addressing the constitutionality of Ohio’s

11
One of the Harvey concurrences also notes that the “asserted right at issue” in these
post-conviction cases is not a constitutional claim of actual innocence. Harvey, 285 F.3d at 310-
11 (Luttig, J., concurring); see Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862 (1993)
(stating that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise barred constitutional
claim considered on the merits”); Schlup v. Delo, 513 U.S. 298, 314-15, 115 S. Ct. 851, 860-61
(1995).

25
clemency process, the United States Supreme Court also struggled with the issue in

three separate opinions in Ohio Adult Parole Authority v. Woodward, 523 U.S.

272, 118 S. Ct. 1244 (1998). Chief Justice Rehnquist authored an opinion, in

which three justices concurred, that stated that an “individual’s interest in release

or commutation is indistinguishable from the initial resistance to being confined,

and that interest has already been extinguished by the conviction and sentence.”

Id. at 280, 118 S. Ct. at 1249 (quotation marks and citations omitted). Chief

Justice Rehnquist recognized that a death-sentenced inmate “maintains a residual

life interest, e.g., in not being summarily executed by prison guards,” but

concluded that such an inmate “cannot use his interest in not being executed in

accord with his sentence to challenge the clemency determination by requiring the

procedural protections he seeks.” Id. at 281, 118 S. Ct. at 1250. Justice O’Connor

concurred in part and in the judgment. In her concurring opinion, in which three

other justices joined, Justice O’Connor indicated that “[w]hen a person has been

fairly convicted and sentenced, his liberty interest, in being free from such

confinement, has been extinguished,” but explained that “it is incorrect . . . to say

that a prisoner has been deprived of all interest in his life before his execution”;

rather, “some minimal procedural safeguards apply to clemency proceedings.” Id.

at 289, 118 S. Ct. at 1253-54.

26
 We need not decide whether Mathews could apply to this situation because,

even assuming arguendo that Grayson has some residual, continuing liberty

interest under the due process clause and that the Mathews test applies to

deprivation of that interest, we conclude that the district court still properly

dismissed Grayson’s claim because the second and third Mathews factors

overwhelm his alleged private interest.

The second Mathews factor – “the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards” – weighs heavily against Grayson’s claim.

Mathews, 424 U.S. at 335, 96 S. Ct. at 903. As to the procedures used, Grayson

already received a fair trial, a direct appeal, and both state and federal habeas

proceedings and appeals. His liberty interest in his life was already litigated

extensively for twenty years. As previously discussed, under the circumstances of

this case, the results of the DNA testing relate to the rape and could not exculpate

Grayson of the capital murder during a burglary – the only crime of conviction.

Indeed, the non-biological evidence against him was and is overwhelming. For

example, Grayson admitted that he and Kennedy planned the robbery a week

before, the victim’s wedding rings were found in Grayson’s wallet, Grayson’s

bloody shirt was found in the woods near his home, and Grayson was discovered

27
hiding in the woods after his mother told him of Mrs. Orr’s death. Grayson thrice

confessed to the crime, testified at trial admitting his role in the crime, and still

does not affirmatively assert that he is actually innocent, but only that he does not

remember the details of the night of the crime. Accordingly, the risk of an

erroneous deprivation of Grayson’s alleged liberty interest is low, and the probable

value of Grayson’s post-conviction access to the evidence is slight.

As to the third factor, the government has a strong interest in the finality of

duly adjudicated criminal judgments. See, e.g., Calderon v. Thompson, 523 U.S.

538, 555, 118 S. Ct. 1489, 1500 (1998); Sawyer v. Whitley, 505 U.S. 333, 338,

112 S. Ct. 2514, 2518 (1992); Murray v. Carrier, 477 U.S. 478, 487, 106 S. Ct.

2639, 2645 (1986). Here, Grayson has enjoyed extensive judicial process over the

years; indeed, it has been over twenty years since his conviction, and he now seeks

to forestall his death sentence by seeking further process with minimal probable

value. Compelling interests – e.g., guarding against a flood of requests, protecting

the finality of convictions, and ensuring closure for victims and survivors – support

the State’s position in this case. This third factor also weighs heavily against

Grayson’s claim. Accordingly, we reject Grayson’s procedural due process

argument under Mathews.

Grayson relies heavily on the reasoning set forth in the above-mentioned

28
concurrence in the denial of rehearing in Harvey, 285 F.3d at 304-26 (Luttig, J.,

concurring). However, that concurring opinion argues only that there is, in

“limited circumstances” not fully described in the opinion, a “substantive liberty

interest . . . protected through a procedural due process right to have previously-

produced forensic evidence either released to the convicted individual for STR, or

related, DNA testing . . . or submitted by the government for testing . . . .” Id. at

315. However, even under that analysis, the right would be “narrowly confine[d]”

and subject to “strict and limiting” standards. Id. at 321. For example, the

concurrence would apparently restrict any such due process right to post-

conviction testing to those who have “steadfastly maintain[ed]” and “persist[ed]

in” their “absolute,” “factual innocence.” Id. at 318, 319. As another limiting

factor, the concurrence explained: “A right of access to evidence for tests which,

given the particular crime for which the individual was convicted and the evidence

that was offered by the government at trial in support of the defendant’s guilt,

could prove beyond any doubt that the individual in fact did not commit the crime,

is constitutionally required, I believe, as a matter of basic fairness.” Id. at 315.

As explained above, Grayson’s case does not fall within the limited class of

cases described by the Harvey concurrence in the denial of rehearing. First,

Grayson has never affirmatively proclaimed his actual, factual innocence of Mrs.

29
Orr’s murder. Second, the evidence here, even if tested and exculpatory as to

Grayson, would not prove complete innocence of the only crime for which he was

convicted – capital murder during a burglary.

Today we need not and do not decide whether there can ever be a post-

conviction right of access to the type of biological evidence Grayson seeks for

DNA testing. Rather, we simply conclude that under the particular circumstances

of this case, Grayson cannot show such an entitlement. We decline Grayson’s

invitation to create under his various theories a new, broad constitutional right of

post-conviction access of all convicts to the evidence used to convict them.

Nor do we question the unparalleled accuracy and surpassing importance of

DNA testing in identifying and/or excluding suspects of violent crime. However,

Grayson has identified no constitutional right to such testing in every case.

Meanwhile, as Grayson notes, a majority of state legislatures already have enacted

post-conviction DNA testing statutes. Our decision here in no way demeans the

value of DNA testing or suggests that it should not be made available post-

conviction; it simply holds that Grayson has asserted no constitutional right to it

under the factual circumstances of the case. See Harvey, 278 F.3d at 376-77

(noting legislative activity in this area).

III. CONCLUSION

30
 For the above reasons, we affirm the district court’s dismissal of Grayson’s

§ 1983 complaint seeking post-conviction access to biological evidence presented

at his trial for DNA testing.12

AFFIRMED.

12
If there were a post-conviction constitutional right to DNA testing, as Grayson argues,
the question arises whether Grayson timely filed his constitutional claim within the two-year
statute of limitations applicable to § 1983 actions. In its answer to Grayson’s § 1983 complaint
and its motion to dismiss, the State raised a statute-of-limitations issue. Neither the magistrate
judge nor the district court addressed that issue. Because the State raises no statute-of-
limitations issue in this appeal, we also do not address that issue.

31