pr - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -… v. Hon. Richard Brown, District Attorney, Queens County District Attorney’s Office

08-4002-pr
McKithen v. Brown
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2009
Argued: February 23, 2010 Decided: November 19, 2010
Docket No. 08-4002-pr
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FRANK McKITHEN,
Plaintiff-Appellee,
v.
HON. RICHARD BROWN, DISTRICT ATTORNEY,
QUEENS COUNTY DISTRICT ATTORNEY’S OFFICE,
Defendants-Appellants.
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Before: CABRANES and B.D. PARKER, Circuit Judges; and
UNDERHILL,* District Judge.
Appeal from the July 21, 2008 Memorandum and Order of the United States District
Court for the Eastern District of New York (John Gleeson, District Judge), granting plaintiff-
appellee’s motion for summary judgment and denying defendants-appellants’ cross-motion for
summary judgment. Plaintiff-appellee sought to compel production of evidence for DNA testing
in order to pursue post-conviction relief. The District Court held that plaintiff-appellee was
constitutionally entitled to the evidence. Following the District Court’s ruling and while this
* Stefan R. Underhill, of the United States District Court for the District of Connecticut,
sitting by designation.

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appeal was pending, the Supreme Court decided District Attorney’s Office for the Third Judicial
District v. Osborne, 129 S. Ct. 2308 (2009), which addressed the same question but reached an
opposing result. Osborne controls the disposition of this appeal and compels the conclusion that
plaintiff-appellee was not entitled to relief under 42 U.S.C. § 1983 because he has no procedural
due process right to receive evidence for the purpose of post-conviction DNA testing.
Reversed.
DRAKE A. COLLEY, Corporation Counsel for the City of New York, New
York, NY, (Edward F.X. Hart, Michael A. Cardozo, on the brief), for
Defendants-Appellants.
ALLEN G. REITER, Arent Fox LLP, New York, NY (Matthew Trokenheim,
Aswathi Zachariah, on the brief), for Plaintiff-Appellee.
Daniel M. Donovan, District Attorneys Association of New York State, White
Plains, N.Y. (Anthony J. Servino, Steven A Bender, on the brief), for
Amicus Curiae.
UNDERHILL, District Judge.
This case presents the question whether the Constitution provides individuals convicted
in New York the right to obtain post-conviction access to the State’s evidence for DNA testing.
The United States District Court for the Eastern District of New York (John Gleeson, District
Judge), confronting the question as a matter of first impression on remand from this Court, held
that such a right exists under the Due Process Clause of the Fourteenth Amendment and that the
plaintiff-appellee was constitutionally entitled to receive evidence for the purpose of post-
conviction DNA testing. Following the District Court’s ruling and while this appeal was
pending, the Supreme Court decided District Attorney’s Office for the Third Judicial District v.
Osborne, 129 S. Ct. 2308 (2009), which addressed the same question but reached an opposing

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result. Osborne controls the disposition of this appeal and, for the reasons set forth below,
compels us to reverse.
I. Background 3
In 1993, Frank McKithen was tried in New York state court and found guilty of
attempted murder, victim and/or witness intimidation, reckless endangerment, criminal
possession of a weapon, assault, and resisting arrest, and received an aggregate sentence of 23 to
46 years’ imprisonment. Those convictions arose from McKithen’s unlawful entry into his
estranged wife’s apartment and his subsequent assault of her with a knife. At trial, McKithen
was identified as the assailant by his wife and another witness who was in the apartment at the
time of the incident. The knife was also introduced as physical evidence. Before his conviction,
McKithen never requested that the weapon and other physical evidence be tested for fingerprints
or undergo DNA analysis.
The New York Appellate Division affirmed McKithen’s conviction on appeal, and the
New York Court of Appeals denied McKithen’s application for leave to appeal. People v.
McKithen, 634 N.Y.S.2d 128 (App. Div. 2d Dep’t 1995); People v. McKithen, 88 N.Y.2d 881,
645 N.Y.S.2d 456, 668 N.E.2d 427 (1996). McKithen filed a pro se state post-conviction motion
to set aside his sentence in 1994, and then a second pro se state post-conviction motion to set
aside his conviction in 1996. Both were denied. See McKithen v. Brown, 565 F. Supp. 2d 440,
445 (E.D.N.Y. 2008).
In August 2001, McKithen moved in New York Supreme Court to perform forensic DNA
testing on evidence recovered at the crime scene. That motion was made pursuant to N.Y. Crim.
Proc. Law § 440.30(1-a)(a), which provides:
Where the defendant’s motion requests the performance of a forensic DNA

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test on specified evidence, and upon the court’s determination that any
evidence containing deoxyribonucleic acid (“DNA”) was secured in
connection with the trial resulting in the judgment, the court shall grant the
application for forensic DNA testing of such evidence upon its determination
that if a DNA test had been conducted on such evidence, and if the results
had been admitted in the trial resulting in the judgment, there exists a
reasonable probability that the verdict would have been more favorable to the
defendant.
Specifically, McKithen wanted to analyze any blood that police officers had collected from the
knife because, he argued, DNA testing would reveal that the blood was not his wife’s, thus
exculpating him. He also moved for the knife to be analyzed for fingerprints. McKithen’s
motion was denied on November 8, 2001, on the basis that there was no reasonable probability
that McKithen would have received a more favorable verdict had the forensic testing been
performed and the results been admitted at trial. People v. McKithen, Indictment No. 3964/92
(N.Y. Sup. Ct. Queens County Nov. 8, 2001).
On March 1, 2002, McKithen commenced an action pursuant to 42 U.S.C. § 1983 against
Richard Brown, the Queens County District Attorney, and the Queens County District Attorney’s
Office (collectively, “Brown”) in the District Court. In his complaint, McKithen alleged that
Brown’s denial of access to evidence for post-conviction DNA testing violated the Due Process
Clause, denied McKithen meaningful access to the courts, deprived him of the right to
demonstrate his actual innocence in violation of the Eighth Amendment, and deprived him of the
right to present evidence as secured by the Confrontation Clause of the Sixth Amendment. His
theory of what the forensic DNA would show remained the same: it would reveal that his wife’s
blood was not on the knife or was not present at the crime scene. McKithen sought an injunction
compelling the defendants to disclose evidence for so-called short tandem repeat (“STR”)
testing, a highly reliable form of DNA analysis. See Harvey v. Horan, 285 F.3d 298, 305 & n.1

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(4th Cir. 2002) (Luttig, J., respecting denial of rehearing en banc) (discussing reliability of STR
testing and citing supporting literature); Brandon L. Garrett, Judging Innocence, 108 Colum. L.
Rev. 55, 63 & n.28 (2008) (same).
Brown first tried to dispose of the case on procedural grounds, arguing that McKithen’s
claim was foreclosed by the Rooker-Feldman doctrine,1 that the claim was inappropriate for a
section 1983 suit and should have been raised in a habeas petition, and that the New York
Supreme Court’s decision under N.Y. Crim. Proc. Law § 440.30 precluded McKithen’s suit. The
District Court dismissed the complaint on procedural grounds, holding that McKithen’s action
was barred by the Rooker-Feldman doctrine. McKithen appealed and we reversed.
We held that the Rooker-Feldman doctrine was inapplicable because McKithen was not
challenging, or in effect appealing, in federal court the New York Supreme Court’s denial of his
motion for post-conviction DNA testing. In particular, we held that McKithen was not
complaining that the New York Supreme Court’s judgment injured him and, therefore, at least
the second of Rooker-Feldman’s requirements was absent. McKithen v. Brown (McKithen I),
481 F.3d 89, 97 (2d Cir. 2007). Rather, we reasoned that his alleged injury — his inability to
access physical evidence in order to analyze it forensically — predated the New York Supreme
Court’s decision. Id. at 98. It was the fact of McKithen’s conviction and sentence, and not his
loss in New York Supreme Court, that was the basis for the state’s refusal to disclose its
evidence and McKithen’s inability to test that evidence for the presence of his wife’s DNA.
1 See Rooker v. Fid. Trust Co., 263 U.S 413 (1923); D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983). For the Rooker-Feldman doctrine to apply, (1) a plaintiff must have lost in
state court; (2) his injury must have been caused by a state court judgment; (3) he must have
invited federal review of that state court judgment; and (4) the state court judgment must have
been entered before his federal suit commenced. McKithen v. Brown, 481 F.3d 89, 97 (2d Cir.

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Next, we held that McKithen’s section 1983 claim to receive evidence and conduct DNA
testing was not “so well ‘within the core of habeas corpus’ that it may only be brought in a
habeas petition.” Id. at 99 (quoting Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)). We reasoned
that McKithen’s claim was different than a habeas petition because, should he prevail on his
section 1983 action, he would not be entitled to the invalidation of his conviction or sentence, but
would only receive evidence that could be put toward a subsequent challenge to the legality of
his confinement. Id. at 102-03. We also concluded that Brown had waived his res judicata
defense. Finally, we declined to decide whether McKithen’s constitutional claims were
collaterally estopped because the District Court had yet to rule on the existence and contours of
McKithen’s posited right to post-conviction DNA testing, and we were in no position to
determine whether any “federal constitutional right to DNA testing is the same as or less than
(and included in) the state statutory right” that the New York Supreme Court determined
McKithen did not meet. Id.
We remanded the case to the District Court to decide the merits of “the extraordinarily
important, and delicate, constitutional issue” raised by McKithen: whether the Constitution
requires the state to disclose physical evidence to prisoners for the purpose of post-conviction
DNA testing. Id. at 106. In particular, we instructed the District Court to consider, as a matter of
first impression, McKithen’s claims under the Due Process Clause of the Fourteenth
Amendment. We instructed the District Court to begin its analysis by determining whether
McKithen holds a residual post-conviction liberty interest in obtaining evidence and examining it
for the presence of potentially exonerative DNA results. Id. at 106-07. Furthermore, we directed
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the District Court to apply the framework of Mathews v. Eldridge, 424 U.S. 319 (1976), in
resolving McKithen’s procedural due process cause of action. Id. at 107.
Following remand, the District Court issued an opinion holding that McKithen had a
procedural due process right to perform forensic DNA testing on the physical evidence the
government introduced against him at trial.2 The District Court began by dismissing Brown’s
arguments that McKithen’s action was barred by res judicata or by New York’s three-year
statute of limitations. See McKithen v. Brown (McKithen II), 565 F. Supp. 2d 440, 447-50
(E.D.N.Y. 2008) (holding that Brown waived his res judicata defense and that McKithen’s
limitations period began to run on August 27, 2001, the date on which a federal court first
announced that prisoners have a constitutional right to receive evidence for post-conviction DNA
testing). The District Court then conducted a thorough procedural due process analysis using the
Mathews framework. It began by acknowledging that, although McKithen maintained a residual
liberty interest after his valid conviction, his liberty interest was not the right to be free from
factually erroneous incarceration.
[T]o say that the Constitution gives an inmate a liberty interest in release if
she is innocent, for the purposes of procedural due process, is to say that an
inmate who is innocent is entitled, by the Constitution to be released. . . .
That possibility . . . was conspicuously left unresolved in Herrera v. Collins,
506 U.S. 390 (1993), where the Supreme Court assumed “for the sake of
argument” that “in a capital case a truly persuasive demonstration of actual
innocence made after trial would render the execution of a defendant
unconstitutional.”
Id. at 456-57 (quoting Herrera, 506 U.S. at 417); see also id. at 454 (“The Supreme Court has
2 McKithen’s theory for what the DNA evidence would show shifted after our remand.
McKithen no longer asserted that forensic testing would demonstrate that his wife’s blood was
not on the knife or at the crime scene, but claimed that testing would show an absence of his
DNA on the handle of the knife. That absence, he argued, would prove that he did not commit
the crime. McKithen v. Brown, 565 F. Supp. 2d 440, 446 n.3 (E.D.N.Y. 2008).

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never held that inmates convicted after a valid trial have an interest cognizable as a matter of
procedural due process in being released from confinement if they are innocent.”).
The District Court identified McKithen’s residual liberty interest, rather, as the right of
meaningful access to state mechanisms for post-conviction relief — specifically, New York’s
clemency procedures. That meaningful access right, the District Court held, imposes some
affirmative duty on the state as a matter of due process, which was the duty to disclose evidence
for post-conviction DNA testing, provided that the disclosure and testing impose only negligible
costs on the government; the evidence is in the government’s possession; the testing is
nonduplicative; and, assuming it yields exculpatory results, the testing would undermine
confidence in the trial’s outcome. McKithen II, 565 F. Supp. 2d at 485. Applying the standard it
announced, the District Court held that McKithen had been denied access to evidence in
violation of his procedural due process rights when the New York Supreme Court rejected his
petition for post-conviction DNA testing. Id. at 495. In particular, the District Court emphasized
that the New York Supreme Court’s interpretation of N.Y. Crim. Proc. Law § 440.30(1-a)(a)
posed too great a risk of erroneously depriving McKithen of his right of meaningful access to
clemency mechanisms because the state court did not assume that DNA testing would yield
exculpatory results. Id. at 482-83. Because the New York Supreme Court did not make that
assumption when it denied McKithen’s motion for post-conviction DNA testing, the District
Court determined that McKithen’s due process claim was not collaterally estopped. Id. at 493.
The District Court also held that a prisoner is entitled to post-conviction DNA testing as a
matter of substantive due process, provided that the government would incur negligible costs,
and the testing, assuming it yields exculpatory results, would prove the prisoner’s innocence

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beyond a reasonable doubt. Id. at 492. But, the District Court concluded, McKithen failed to
meet that standard because “[e]ven exculpatory results of DNA testing conducted on the knife
handle would fall far short of proving beyond a reasonable doubt that McKithen did not commit
the crime.” Id. at 494 n.67. In other words, McKithen was not entitled to relief on substantive
due process grounds because any possible exculpatory DNA results would not outweigh the
other inculpatory evidence and prove his innocence beyond a reasonable doubt.
Finally, the District Court addressed McKithen’s remaining claims for relief. The
District Court held that McKithen was not entitled to evidence as a matter of access to the courts
in order to prove his innocence in New York Supreme Court pursuant to N.Y. Crim. Proc. Law §
440.10(1)(g). Id. at 494. As with its denial of McKithen’s substantive due process claim, the
District Court reasoned that, even if one assumed that DNA testing would yield exculpatory
results, McKithen would not satisfy section 440.10(1)(g)’s standard for overturning a conviction:
that the newly discovered evidence “would ‘probably change the result’ of a new trial.” Id.
(quoting People v. Tankleff, 848 N.Y.S.2d 286, 300 (App. Div. 2007)). The District Court
rejected McKithen’s Confrontation Clause claim and left undecided his Eighth Amendment
claim. Id. at 492. This appeal followed.
II. Discussion 17
Brown raises three arguments for reversal: (1) the District Court’s procedural due process
analysis was incorrect, (2) McKithen’s section 1983 action was untimely and barred by New
York’s statute of limitations, and (3) McKithen’s action was precluded as a matter of collateral
estoppel. In resolving this appeal, we assume, arguendo, that McKithen’s suit is not barred by
the statute of limitations or by preclusion doctrine. Instead, because recent Supreme Court
precedent clearly controls the outcome of this appeal, we only address the merits of McKithen’s

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due process claim, which we review de novo. Motorola Credit Corp. v. Uzan, 509 F.3d 74, 80-
81 (2d Cir. 2007). McKithen contends that section 440.30(1-a)(a) is unconstitutional on its face
because it does not require state courts to assume that the DNA testing sought will produce
exculpatory results. In the alternative, McKithen also argues that, even if the statute does require
state courts to assume exculpatory results, the state court in his case violated procedural due
process because it failed to make that required assumption. We consider each challenge in turn.
A. Facial due process challenge 7
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In remanding this case for a decision on the merits, we assigned the District Court the
unenviable task of determining the existence and contours of a constitutional right previously not
recognized within our Circuit. The District Court produced an opinion notable for its careful
attention to precedent and for the quality of its reasoning, which proved to be intricate and, in
many ways, persuasive. But, while this appeal was pending, the Supreme Court decided District
Attorney’s Office for the Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009). That
decision addressed the question of prisoners’ substantive and procedural due process rights to
obtain evidence for post-conviction DNA testing and governs the disposition of this appeal.3
1. The facts and procedural history of Osborne
Because of the similarities between the issues raised in Osborne and the issues raised in
this appeal, we begin our discussion with a brief recital of Osborne’s facts and procedural
history. William Osborne was convicted in Alaska of rape and attempted murder. While
pursuing state post-conviction relief, he moved to conduct DNA testing that his trial counsel did
3 We stayed this appeal following the Supreme Court’s grant of certiorari in Osborne.
Order, No. 08-4002-pr (2d Cir. Dec. 5, 2008).

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not perform on physical evidence introduced against him.4 Although there was no state statute
permitting post-conviction DNA testing — Alaska was among the four states whose legislatures
had not passed such a law — Alaska courts analyzed Osborne’s request through its general post-
conviction discovery statute and the state and federal constitutions. Under Alaska’s post-
conviction statute, the disclosure of evidence for DNA testing is permitted as a matter of general
discovery, provided that the petitioner successfully claims that the “newly discovered evidence”
would establish “by clear and convincing evidence that the applicant is innocent.” Osborne, 129
S. Ct. at 2317 (quoting Osborne v. State, 110 P.3d 986, 992 (Alaska Ct. App. 2005)). And under
the Alaska courts’ interpretation of the state constitution, a petitioner is entitled to post-
conviction DNA testing if (1) the conviction primarily relied on eyewitness identification, (2)
there was a “demonstrable doubt” about the identification of the defendant, and (3) “scientific
testing would likely be conclusive on the issue.” Id. at 2318. Using those sources, the state
courts denied Osborne’s motion because he requested a DNA test that was available at trial and,
assuming there existed a right to be free from erroneous imprisonment under the state and federal
constitutions, the evidence against Osborne was too overwhelming for the DNA testing to
establish his innocence clearly and convincingly. Id.
Osborne sought access to physical evidence for DNA testing under 42 U.S.C. § 1983 in a
parallel federal action in which the Ninth Circuit held that he was entitled to post-conviction
DNA testing under the Due Process Clause of the Fourteenth Amendment. Osborne v. Dist.
Attorney’s Office for the Third Judicial Dist., 521 F.3d 1118 (9th Cir. 2008). Specifically, the
4 At trial, Osborne’s counsel introduced DNA evidence procured from an outdated and
less-exacting DNA method. In his post-conviction proceeding, Osborne sought to have the
evidence retested using a more discriminating test. Osborne, 129 S. Ct. at 2314.

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Court of Appeals ruled that Brady v. Maryland, 373 U.S. 83 (1963), applied in post-conviction
proceedings and that prosecutors have a duty to disclose exculpatory evidence after trial when
that evidence would support a viable challenge to the prisoner’s conviction. The Ninth Circuit
held that Osborne had such a viable claim: a state and likely federal constitutional cause of action
based on his actual innocence. Id. at 1128-32. The Supreme Court subsequently granted
certiorari and reversed the Ninth Circuit’s due process ruling, holding that Osborne was not
entitled to DNA evidence in post-conviction proceedings as a matter of either substantive or
procedural due process. We now apply that decision to the District Court’s ruling that McKithen
was entitled to conduct post-conviction DNA testing as a matter of procedural due process.
2. Procedural due process
We review McKithen’s claim according to the familiar two-part test for analyzing alleged
deprivations of procedural due process rights: (1) whether McKithen has a cognizable liberty or
property interest under state or federal law in obtaining the evidence for DNA testing; and (2) if
so, whether McKithen was afforded the process he was due under the Constitution. Osborne,
129 S. Ct. at 2319; Adams v. Suozzi, 517 F.3d 124, 127 (2d Cir. 2008). Osborne is apposite and
controls both parts of this test.
a. The existence of a residual liberty interest in meaningful access to
state clemency mechanisms
The Osborne Court’s analysis of the first part of the procedural due process test was
short. But despite its brevity, it succeeds in toppling the District Court’s determination that
prisoners retain a residual liberty interest in meaningful access to state clemency mechanisms. In
his merits briefing before the Supreme Court, Osborne, like McKithen, posited that prisoners are
entitled to conduct post-conviction DNA testing in order to vindicate a right of meaningful

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access to state clemency mechanisms that can provide relief to the actually innocent. See Br. for
Resp’t at 28, 30, Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne (No. 08-6). The
Supreme Court summarily rejected that argument, however:
In identifying his potential liberty interest, Osborne first attempts to rely on
the Governor’s constitutional authority to grant pardons, commutations, and
reprieves. That claim can be readily disposed of. We have held that
noncapital defendants do not have a liberty interest in traditional state
executive clemency, to which no particular claimant is entitled as a matter of
state law. Osborne therefore cannot challenge the constitutionality of any
procedures available to vindicate an interest in state clemency.
Osborne, 129 S. Ct. at 2319 (quotations and citations omitted) (emphasis in original).
The Osborne Court concluded that a prisoner has no liberty interest with respect to “any
procedures available to vindicate an interest in state clemency” because clemency is inherently
discretionary and subject to the whim, or grace, of the decisionmaker; it is, in other words, a
form of relief to which a prisoner has no right. Id.; accord Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272, 282-83 (1998) (plurality opinion) (holding that prisoner facing capital punishment
has no due process right to be represented by counsel before parole board because there is “no
substantive expectation of clemency”); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464-65
(1981) (holding that the “unilateral hope” of receiving clemency does not establish a
constitutionally protected liberty interest, and, therefore, prisoners have no due process right to
receive written statements of reasons for the denial of their pardon petitions). Because there is
no liberty interest in receiving clemency, the Osborne Court rejected the existence of any
subsidiary liberty interest regarding the adequacy of state procedures capable of granting that
relief. Thus, the District Court’s holding that a prisoner has a liberty interest in meaningful
access to state clemency mechanisms does not survive Osborne.
b. The process due a prisoner seeking post-conviction DNA testing

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Although there is no constitutionally cognizable residual liberty interest in obtaining
clemency and no subsidiary interest in the adequacy of state clemency mechanisms, the Osborne
Court recognized that a prisoner may retain a state-created “liberty interest in demonstrating his
innocence with new evidence under state law.” 129 S. Ct. at 2319. It held that Osborne had a
residual liberty interest, arising out of Alaska law, in proving his actual innocence before state
courts that can provide post-conviction relief on the basis of that demonstration. But the Court
was clear that this residual liberty interest is limited. It does not entitle a prisoner to all
exculpatory evidence, the kind of discovery that a defendant would be entitled to before trial. Id.
at 2320. Rather, a prisoner’s “right to due process is not parallel to a trial right, but . . . must be
analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a
limited interest in postconviction relief.” Id.
McKithen holds an analogous state-created liberty interest in demonstrating his
innocence with newly discovered evidence pursuant to N.Y. Crim. Proc. Law § 440.10(g)(1).5
The question presented by McKithen’s facial challenge is whether the procedure for post-
conviction DNA testing established in N.Y. Crim. Proc. Law § 440.30(1-a)(a) violates
procedural due process by not adequately protecting a prisoner’s residual liberty interest in
proving his innocence in state court. After Osborne, it is clear the process afforded by section
440.30(1-a)(a) is constitutionally adequate.
5 The District Court, consistent with Osborne, acknowledged that McKithen holds a
residual liberty interest in accessing New York courts to pursue an actual innocence claim
pursuant to section 440.10(g)(1). McKithen II, 565 F. Supp. 2d at 479. But the District Court
did not conduct a full analysis of McKithen’s procedural due process rights to obtain evidence in
order to bring a state post-conviction action; instead, it focused its inquiry on the process due a
prisoner seeking evidence for the purpose of petitioning for clemency.

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In granting McKithen’s procedural due process claim based on his interest in meaningful
access to clemency mechanisms, the District Court applied the framework of Mathews v.
Eldridge, 424 U.S. 319 (1976), which we had instructed it to apply at the conclusion of
McKithen I. In Osborne, however, the Supreme Court held that the more deferential standard of
Medina v. California, 505 U.S. 437 (1992), governs the process due a prisoner seeking evidence
for the purpose of obtaining post-conviction relief. Osborne, 129 S. Ct. at 2320. That standard,
which the Medina Court described as applying to “state procedural rules which . . . are part of the
criminal process,” will uphold a state’s procedure so long as it does not “offend[] some principle
of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental” based on historical practice, the process’s operation, and the Court’s own
precedent. 505 U.S. at 443, 446.
Using Medina’s substantially deferential standard, the Osborne Court held that Alaska’s
procedures for post-conviction DNA testing, developed through the Alaska courts’ interpretation
of the state’s constitution and post-conviction statute, “[were] not inconsistent with the
‘traditions and conscience of our people’ or with ‘any recognized principle of fundamental
fairness.’” Osborne, 129 S. Ct. at 2320-21 (quoting Medina, 505 U.S. at 446, 448). Although a
petitioner must meet certain eligibility requirements under Alaska law to obtain discovery and
perform DNA testing — namely, the petitioner must show that the DNA results were not
discoverable at trial and would constitute clear and convincing evidence of the petitioner’s
innocence — those requirements were not “fundamentally inadequate” to vindicate a prisoner’s
substantive right to post-conviction relief on the basis of actual innocence. Id. at 2320. The
Supreme Court therefore held Alaska’s procedures for post-conviction DNA testing to be

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consistent with due process.
In holding that Medina controls, the Osborne Court was clear that the lower federal
courts are to defer to the judgment of state legislatures concerning the process due prisoners
seeking evidence for their state court post-conviction actions. “Federal courts may upset a
State’s postconviction relief procedures only if they are fundamentally inadequate to vindicate
the substantive rights provided.” Id. at 2320. McKithen cannot demonstrate that New York’s
procedures sink to that level of fundamental inadequacy, and section 440.30(1-a)(a), even when
understood not to require state courts to assume that the DNA testing sought will produce
exculpatory results, cannot be said to conflict with the “traditions and conscience of our people”
or “any recognized principle of fundamental fairness.”6
A comparison of the Alaska post-conviction DNA testing scheme upheld in Osborne with
the requirements for conducting post-conviction DNA testing in New York proves the weakness
of McKithen’s claim. A post-conviction petitioner seeking DNA testing in Alaska’s courts may
receive it under the following conditions: (1) through the process of general discovery in support
of a claim under Alaska’s general post-conviction statute, provided that newly conducted DNA
testing will provide “clear and convincing evidence that [the petitioner] is innocent”; or (2)
pursuant to the Alaska courts’ interpretation of the state constitution, provided that the
petitioner’s conviction relied on eyewitness testimony, there was a demonstrable doubt about the
accuracy of that testimony, and “scientific testing would likely be conclusive on this issue.”
6 We express no opinion regarding whether section 440.30(1-a)(a) does or does not
require New York courts to assume that the DNA testing sought will yield exculpatory results.
We simply hold that even if, as McKithen asserts, the statute does not require that assumption, it
nevertheless passes constitutional muster under Osborne.

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Osborne, 129 S. Ct. at 2317-18. The standards that Alaska employs for post-conviction DNA
testing are more restrictive and difficult to meet than the standard New York has promulgated.
In contrast to Alaska’s post-conviction discovery laws, New York’s post-conviction DNA testing
statute requires only a showing that, had the DNA testing been performed at trial, “there exists a
reasonable probability that the verdict would have been more favorable to the [petitioner].”
N.Y. Crim. Proc. Law § 440.30(1-a)(a) (emphasis added). Alaska’s requirement that DNA test
results either “clearly and convincingly” or “conclusively” would demonstrate a prisoner’s
innocence is more stringent than New York’s requirement that DNA test results create a
“reasonable probability” that the petitioner would have had a more favorable outcome at trial.
Alaska’s procedures withstood a due process claim analogous to McKithen’s challenge to N.Y.
Crim. Proc. Law § 440.30(1-a)(a). A fortiori, New York’s procedure for post-conviction DNA
testing must be constitutional as well.
Barring proof of fundamental inadequacy, Osborne obligates us to defer to the New York
legislature’s judgment with respect to the appropriate procedure for post-conviction DNA
testing. And, in light of the procedure Osborne upheld, McKithen cannot prove that New York’s
post-conviction DNA statute is fundamentally inadequate to vindicate his residual liberty interest
in demonstrating his innocence through a state post-conviction proceeding. We therefore reject
McKithen’s facial due process challenge to N.Y. Crim Proc. Law § 440.30(1-a)(a).
B. As-applied due process challenge 19
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In addition to asserting a facial challenge, McKithen also asserts an as-applied challenge
to the New York Supreme Court’s application of N.Y. Crim. Proc. Law § 440.30(1-a)(a) in his
case. In particular, he argues that “if this Court finds that the statute is not unconstitutional on its

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face, the state court incorrectly and unconstitutionally interpreted the statute by not assuming
exculpatory results.” Supplemental Br. of Pl.-Appellee, Apr. 5, 2010, at 2-3. That as-applied
challenge can be readily disposed of because, under the Rooker-Feldman doctrine, we lack
subject matter jurisdiction to consider it.
McKithen I clarified when the Rooker-Feldman doctrine deprives a federal court of
jurisdiction to consider a plaintiff’s claim. As we explained, Rooker-Feldman is a limited
doctrine aimed at “‘cases brought by state-court losers complaining of injuries caused by state-
court judgments rendered before the district court proceedings commenced and inviting district
court review of those judgments.’” McKithen I, 481 F.3d at 96 (quoting Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 283-84 (2005)). Rooker-Feldman directs federal courts
to abstain from considering claims when four requirements are met: (1) the plaintiff lost in state
court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff
invites district court review of that judgment, and (4) the state court judgment was entered before
the plaintiff’s federal suit commenced. Id. at 97 (quoting Hoblock v. Albany County Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005)).
McKithen’s as-applied challenge meets each of Rooker-Feldman’s elements. First,
McKithen lost in state court when the New York Supreme Court denied his motion for the
disclosure of evidence for DNA testing pursuant to N.Y. Crim. Proc. Law § 440.30(1-a)(a).
Second, McKithen posits that he was injured by the state court’s allegedly erroneous
interpretation of section 440.30(1-a)(a) — specifically, by the New York Supreme Court’s
failure to assume that the results of his requested DNA testing would be exculpatory. Third, by
bringing an as-applied challenge, McKithen is asking the federal district court to review the

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validity of the state court judgment. And, fourth and finally, not only was the state court
judgment rendered before McKithen commenced his federal suit, it must have been rendered as a
condition antecedent to McKithen’s claim that the New York Supreme Court injured him by
purportedly misreading section 440.30(1-a)(a).
The proper vehicle for McKithen to challenge the state court’s interpretation of section
440.30(1-a)(a) was an appeal to the New York Appellate Division, which McKithen could have
brought as a matter of right. N.Y. Crim. Proc. Law § 450.10(5); e.g., People v. Bailey, 825
N.Y.S.2d 708 (App. Div. 2d Dep’t 2006). This Court lacks jurisdiction to consider McKithen’s
as-applied challenge to N.Y. Crim. Proc. Law § 440.30(1-a)(a).
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Brown appealed the District Court’s decision on other grounds, too, including that
McKithen’s procedural due process claims were barred by New York’s three-year statute of
limitations and collateral estoppel. We need not address those issues, however, because Osborne
clearly compels our reversal of the District Court on the merits. McKithen’s substantive due
process, access to the courts, and confrontation clause claims were denied by the District Court
and McKithen has not appealed them.7 The District Court did leave undecided McKithen’s
Eighth Amendment claim, however.
Although neither of the parties to this appeal briefed the Eighth Amendment claim —
indeed, it was ambiguous whether McKithen was continuing to pursue it in the District Court,
McKithen II, 595 F. Supp. 2d at 492 — we agree with the District Court that “[t]he only way the
7 McKithen acknowledges that “[i]n Osborne, the Supreme Court held that . . . there is no
free-standing substantive due process right to DNA evidence.” Br. of Pl.-Appellee, Jan. 27,
2010, at 2 (citing Osborne, 129 S. Ct. at 2322-23).

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Eighth Amendment is possibly implicated,” as a legal means for compelling the disclosure of
evidence for post-conviction DNA testing, “is if it permits a freestanding claim of actual
innocence.” Id. The Supreme Court has left conspicuously unanswered the question whether the
Eighth Amendment provides such a freestanding claim. But, in the cases where it has assumed
the right’s existence arguendo, the Court has noted “the difficult questions such a right would
pose and the high standard any claimant would have to meet.” Osborne, 129 S. Ct. at 2321. The
record on appeal is sufficient for us to conclude without remand that McKithen would not be
entitled to the relief he seeks under the Eighth Amendment, even if we were to assume there is
an Eighth Amendment right to be free from punishment on the basis of actual innocence. See
Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 112 (2d Cir. 2009) (noting that
factual record was detailed enough to permit disposition on appeal without remand). The case
against McKithen — specifically, the uncontradicted eyewitness testimony against him and the
identification of the weapon — is simply too strong to hold that DNA testing would produce
evidence either necessary or sufficient to support a constitutional actual innocence claim in
federal court.
We therefore dismiss McKithen’s Eighth Amendment claim.
III. Conclusion
The District Court crafted a thoughtful and careful decision on a difficult constitutional
issue of first impression. Nevertheless, we are bound to apply the law later set forth by the
Supreme Court in Osborne — which, by no one’s fault, arrived too late to save the judicial
resources spent on the District Court’s original ruling, this Court’s remand ruling, and the
District Court’s subsequent ruling; and which now forces us to end this case by reversing the
District Court’s decision on the merits.
The order of the District Court is REVERSED. Each party shall bear its own costs.

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