James Harvey v. ROBERT F. HORAN, JR., Commonwealth’s Attorney, County No. 01-6703 of Fairfax

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JAMES HARVEY,
Plaintiff-Appellee,
v.
ROBERT F. HORAN, JR.,
Commonwealth’s Attorney, County No. 01-6703 of Fairfax,
Defendant-Appellant.
JENNIFER THOMPSON; KAREN R.
POMER; JERI ELSTER,
Amici Curiae. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-00-1123-A)
Argued: September 26, 2001
Decided: January 23, 2002
Before WILKINSON, Chief Judge, and NIEMEYER and
KING, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Niemeyer joined. Judge King wrote
an opinion concurring in part and concurring in the judgment.
COUNSEL
ARGUED: Jack L. Gould, Fairfax, Virginia, for Appellant. Peter J.
Neufeld, THE INNOCENCE PROJECT, New York, New York, for

-- 1 of 26 --

Appellee. ON BRIEF: Barry C. Scheck, THE INNOCENCE PROJ-
ECT, New York, New York; Lisa B. Kemler, ZWERLING & KEM-
LER, P.C., Alexandria, Virginia, for Appellee. John D. Cline,
FREEDMAN, BOYD, DANIELS, HOLLANDER, GOLDBERG &
CLINE, P.A., Albuquerque, New Mexico, for Amici Curiae.
OPINION
WILKINSON, Chief Judge:
James Harvey, a Virginia prisoner, seeks a constitutional right of
access to DNA evidence under 42 U.S.C. § 1983. The district court
found that Harvey had a due process right of access to the DNA evi-
dence and a right to conduct testing upon the evidence using technol-
ogy that was unavailable at the time of his trial and at the time his
conviction became final. The district court also concluded that Har-
vey’s claim was not in effect a petition for a writ of habeas corpus.
We disagree. Because substantively Harvey fails to state a claim
under § 1983, and because procedurally his claim amounts to a suc-
cessive petition for a writ of habeas corpus brought without leave of
court, we reverse the judgment of the district court and remand the
case with directions to dismiss it.
I.
On April 30, 1990, James Harvey was convicted of rape and forc-
ible sodomy by a jury in Fairfax County Circuit Court. He was sen-
tenced to consecutive terms of twenty-five years for the rape and
fifteen years for the forcible sodomy. Harvey did not appeal his con-
viction but did file a state petition for a writ of habeas corpus which
was rejected by the Virginia Supreme Court in 1993.
Conventional serology testing on the items recovered from the rape
kit revealed the presence of spermatozoa on the victim’s mouth
smear, vaginal smear, and thigh smear, as well as in two swab sam-
ples and on the victim’s pantyhose. Neither Harvey nor his co-
defendant, who was also convicted, could be excluded as a result of
the Restriction Fragment Length Polymorphism ("RFLP") DNA test-
2 HARVEY v. HORAN

-- 2 of 26 --

ing available at the time of the trial. And there was other substantial
evidence of Harvey’s guilt. For example, Harvey’s co-defendant testi-
fied that Harvey instigated the attack and that Harvey admitted he did
not ejaculate while raping the victim. The victim heard one perpetra-
tor call the other "Harv." Another prosecution witness, Curtis Ivy,
told the police that Harvey confessed his involvement in the attack.
Ivy testified that Harvey owned the maroon shirt identified as belong-
ing to one of the assailants and that Harvey wore the shirt on the date
of the attack. Harvey also threatened Ivy shortly before his trial, fur-
ther suggesting Harvey’s guilt.
On February 25, 1994, Harvey filed an action in federal district
court against the Governor of Virginia pursuant to 42 U.S.C. § 1983.
Harvey alleged that the state’s failure to retest the biological evidence
in his case violated his rights under the Due Process Clause. The dis-
trict court ruled that Harvey’s claim for additional DNA testing had
to be refiled as a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. On July 25, 1995, the district court dismissed Harvey’s peti-
tion. The court found that Harvey had failed to exhaust state remedies
and had failed to raise his claim for DNA testing in his state petition
for habeas corpus. Therefore, the district court concluded that any
attempt by Harvey to raise his claim would be barred by Va. Code
§ 8.01-654(B)(2) and that Harvey’s claim was procedurally defaulted.
Because Harvey had not shown cause for his default in the state
courts or prejudice resulting therefrom, the district court concluded
that Harvey’s claim had to be dismissed. Harvey did not appeal the
district court’s ruling.
In 1996, the Innocence Project contacted the Virginia Division of
Forensic Science on Harvey’s behalf in an attempt to obtain the bio-
logical evidence at issue for Short Term Repeat ("STR") DNA testing.
STR DNA testing was unavailable at Harvey’s trial and at the time
his conviction became final. The Division of Forensic Science recom-
mended that the evidence be requested from the Fairfax County Com-
monwealth’s Attorney’s office. In February 1998 and July 1999, the
Innocence Project requested the biological evidence from the Com-
monwealth’s Attorney.
In October 1999, an Assistant Commonwealth’s Attorney denied
Harvey’s request for access to the evidence. The attorney stated that
3 HARVEY v. HORAN

-- 3 of 26 --

even if Harvey was excluded as a contributor of the genetic material,
it would not prove his innocence because the victim had stated that
only one perpetrator had ejaculated. The attorney concluded that post-
conviction DNA testing was not warranted because there was no rea-
sonable likelihood that it would establish Harvey’s innocence.
Harvey then filed this action in the district court pursuant to 42
U.S.C. § 1983. Harvey alleged, inter alia, that Commonwealth’s
Attorney Robert Horan had deprived him of a due process right of
access to the DNA evidence. Harvey stated that at trial, the prosecu-
tion identified him as the first assailant. The victim testified that the
first assailant was the only one who orally sodomized her. And the
victim was unsure whether the first assailant had ejaculated. There-
fore, Harvey argued that if the STR DNA test showed that he was not
the source of sperm on the victim’s mouth smear, or if it showed two
genetic profiles other than his on the victim’s vaginal swabs or panty-
hose, the test would provide a basis for Harvey to prove his inno-
cence.
The district court found Harvey’s arguments persuasive, holding
that he had a due process right of access to the DNA evidence under
Brady v. Maryland, 373 U.S. 83 (1963), and a right to conduct DNA
testing on the biological evidence using the new STR technology. The
court also concluded that Harvey’s claim was not in effect a petition
for a writ of habeas corpus because Harvey was not seeking immedi-
ate release from prison or challenging his conviction. See Harvey v.
Horan, 119 F. Supp. 2d 581 (E.D. Va. 2000); Harvey v. Horan, No.
Civ.A. 00-1123-A, 2001 WL 419142 (E.D. Va. Apr. 16, 2001). Com-
monwealth’s Attorney Horan appeals.
II.
Commonwealth’s Attorney Horan contends both that § 1983 is not
an appropriate vehicle for Harvey’s action and that procedural flaws
require dismissal of Harvey’s claim because it is in reality a succes-
sive petition for a writ of habeas corpus brought without leave of
court. Harvey responds that his fundamental right to prove his inno-
cence by retesting the DNA evidence in his case is protected by the
Due Process Clause and that § 1983 is an appropriate avenue to vindi-
cate his claim.
4 HARVEY v. HORAN

-- 4 of 26 --

While we agree with Harvey that the question of guilt or innocence
lies at the heart of the criminal justice system, we also believe that the
proper process for raising violations of constitutional rights in crimi-
nal proceedings cannot be abandoned. Because the substance of a
claim cannot be severed from the proper manner of presenting it, we
find Harvey’s § 1983 action to be deficient.
A.
Substantively, Supreme Court precedent makes clear that Harvey
has failed to state a claim under § 1983. In Heck v. Humphrey, 512
U.S. 477 (1994), the Supreme Court held that a convicted criminal
defendant cannot bring a § 1983 action that would "necessarily imply
the invalidity of his conviction or sentence" unless he proves that his
"conviction or sentence has already been invalidated." Heck, 512 U.S.
at 486-87.
In Heck, the Supreme Court concluded that bringing a § 1983
action for damages arising from a still valid state conviction would be
jumping the gun. In reaching its conclusion, the Court analogized a
§ 1983 claim that challenges the legality of a state conviction to the
common law cause of action for malicious prosecution. The Court
stated that "[o]ne element that must be alleged and proved in a mali-
cious prosecution action is termination of the prior criminal proceed-
ing in favor of the accused." Heck, 512 U.S. at 484. The Court
emphasized that civil tort actions are simply "not appropriate vehicles
for challenging the validity of outstanding criminal judgments." Id. at
486. Allowing them to be used for that purpose would undercut the
long-standing concern not to undermine the finality of criminal con-
victions through civil suits. Id. at 484-86. The Court noted in conclu-
sion:
We do not engraft an exhaustion requirement upon § 1983,
but rather deny the existence of a cause of action. Even a
prisoner who has fully exhausted available state remedies
has no cause of action under § 1983 unless and until the
conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus.
Id. at 489.
5 HARVEY v. HORAN

-- 5 of 26 --

While Heck dealt with a § 1983 claim for damages, the Court did
not limit its holding to such claims. And we see no reason why its
rationale would not apply in a situation where a criminal defendant
seeks injunctive relief that necessarily implies the invalidity of his
conviction. See Edwards v. Balisok, 520 U.S. 641, 648-49 (1997)
(leaving issue open). Harvey’s § 1983 claim does just that. He seeks
access to biological evidence to challenge the fact or duration of his
confinement. Harvey claims that he is innocent and that further DNA
testing will lead to his exoneration. Because he seeks to use § 1983
to invalidate a final state conviction whose lawfulness has in no way
been impugned, his suit fails under Heck. It must be dismissed for
failure to state a claim.1
Harvey relies on the fact that DNA testing may also conclusively
prove his guilt in arguing that his claim does not necessarily imply the
invalidity of his conviction. However, this attempt to avoid Heck
fails. Harvey is seeking access to DNA evidence for one reason and
one reason only — as the first step in undermining his conviction. He
believes that the DNA test results will be favorable and will allow
him to bring a subsequent motion to invalidate his conviction. As
such, an action under 42 U.S.C. § 1983 cannot lie.
The implications of circumventing Heck are no small matter. Har-
vey would have this court fashion a substantive right to post-
conviction DNA testing out of whole cloth or the vague contours of
the Due Process Clause. We are asked to declare a general constitu-
tional right for every inmate to continually challenge a valid convic-
1Our good concurring colleague suggests that Heck might permit a
state prisoner to come into federal court when the state prisoner sought
the release of any available evidence. If that were the case, Heck would
allow a broad-ranging post-conviction discovery right on the part of state
prisoners proceeding in the first instance in federal court. Our concurring
colleague recognizes that this cannot be the case. The whole point of
Heck was to protect the finality of state judgments of conviction from
challenge via unexhausted § 1983 actions. As the second section of our
concurring colleague’s opinion ably demonstrates, the utilization of
§ 1983 by state prisoners to obtain evidence in the first instance in fed-
eral court meets with a variety of obstacles. In sum, the second section
of our concurring brother’s opinion underscores why the broad-ranging
right intimated in the first section cannot exist.
6 HARVEY v. HORAN

-- 6 of 26 --

tion based on whatever technological advances may have occurred
since his conviction became final.
The Supreme Court has made clear that the finality of convictions
cannot be brought into question by every change in the law. For
example, under Teague v. Lane, a new rule cannot be applied retroac-
tively to cases on collateral review unless the rule "falls within one
of two narrow exceptions to the general rule of nonretroactivity."
Tyler v. Cain, 121 S. Ct. 2478, 2483 (2001) (discussing Teague v.
Lane, 489 U.S. 288, 310-13 (1989)). Similarly, we believe that final-
ity cannot be sacrificed to every change in technology. The possibility
of post-conviction developments, whether in law or science, is simply
too great to justify judicially sanctioned constitutional attacks upon
final criminal judgments.
In so holding, we acknowledge that finality is not a value that
trumps all others. In some circumstances newly discovered evidence
may warrant a new trial. See, e.g., United States v. Christy, 3 F.3d
765, 768 (4th Cir. 1993). But there is no newly discovered evidence
in this case. Instead, Harvey seeks to subject existing biological evi-
dence to new DNA testing. This evidence was already subjected to
DNA testing using the best technology available at the time Harvey’s
conviction became final. Establishing a constitutional due process
right under § 1983 to retest evidence with each forward step in foren-
sic science would leave perfectly valid judgments in a perpetually
unsettled state. This we cannot do. In Teague, the Court stressed that
finality "is essential to the operation of our criminal justice system,"
and that "[w]ithout finality, the criminal law is deprived of much of
its deterrent effect." 489 U.S. at 309 (plurality opinion). See also
McCleskey v. Zant, 499 U.S. 467, 491-92 (1991). While finality is not
the sole value in the criminal justice system, neither is it subject to
the kind of blunt abrogation that would occur with the recognition of
a due process entitlement to post-conviction access to DNA evidence.
Furthermore, Heck teaches that § 1983 does not exist to provide an
open-ended assault on the finality of criminal judgments. See Heck,
512 U.S. at 486-87. Instead, § 1983 exists for the more limited pur-
pose of redressing violations of the Constitution and federal statutes.
Harvey has made no argument that his conviction violates the Consti-
tution or any federal law. In fact, at oral argument Harvey conceded
7 HARVEY v. HORAN

-- 7 of 26 --

that he received due process under the law and under the science in
existence when he was convicted in 1990. To confer upon Harvey a
wide-ranging constitutional right in the absence of any argument that
his underlying conviction violated the Constitution or a federal statute
is simply beyond judicial competence.
In holding that Harvey has failed to state a claim under § 1983, we
do not declare that criminal defendants should not be allowed to avail
themselves of advances in technology. Rather, our decision reflects
the core democratic ideal that if this entitlement is to be conferred, it
should be accomplished by legislative action rather than by a federal
court as a matter of constitutional right. Permitting Harvey’s § 1983
claim to proceed would improperly short-circuit legislative activity by
allowing judges, rather than legislatures, to determine the contours of
the right.
This is not an area in which legislatures have been inactive. For
example, the Innocence Protection Act of 2001 has been introduced
in both houses of Congress. See S. 486, 107th Cong. (2001), 147
Cong. Rec. S1999 (Mar. 7, 2001); H.R. 912, 107th Cong. (2001). The
Act would increase the availability of post-conviction DNA testing
for a person convicted of a federal crime. The Act would also condi-
tion the grant of federal funds for state DNA-related programs on an
assurance that the state will make post-conviction DNA testing avail-
able in specified types of cases. And the Act would require states to
increase the availability of post-conviction DNA testing for death row
inmates. See S. 486 §§ 101-104, 147 Cong. Rec. at S2001-03; H.R.
912 §§ 101-104.
Virginia has also passed legislation that increases the availability
of post-conviction DNA testing. Currently, Va. Code § 19.2-327.1
(Michie Supp. 2001) allows a convicted felon to apply to the circuit
court for DNA testing if, inter alia, the biological evidence was not
previously subjected to the current DNA testing method and the test-
ing is "materially relevant, noncumulative, and necessary and may
prove the convicted person’s actual innocence." Id. Additional statu-
tory sections, scheduled to become effective on November 15, 2002,
would allow the Supreme Court of Virginia to issue writs of actual
innocence based on the results of post conviction DNA testing. See
Va. Code §§ 19.2-327.2 to -327.6 (Michie Supp. 2001).
8 HARVEY v. HORAN

-- 8 of 26 --

Allowing Harvey’s action to proceed under § 1983 would judicially
preempt legislative initiatives in this area. At oral argument, Harvey
urged us to use the balancing test of Mathews v. Eldridge to fashion
a broad constitutional due process right of access to DNA testing. See
424 U.S. 319, 334-35 (1976). When identifying the specific dictates
of due process, Mathews states that a court should balance three fac-
tors: (1) "the private interest that will be affected by the official
action," (2) "the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of addi-
tional or substitute procedural safeguards," and (3) "the Government’s
interest, including the . . . administrative burdens that the additional
or substitute procedural requirement would entail." Id. Harvey urges
us to balance, under Mathews, an inmate’s need for post-conviction
DNA testing against the administrative burden to the state of provid-
ing it. However, this very balance is the one that legislative bodies are
currently trying to strike. Establishing a federally supervised right of
access via Mathews would cut off this on-going process and place the
federal courts in a distinctly legislative posture.
B.
We thus hold that Harvey fails to state a claim under § 1983. We
now explain why his claim is more properly pressed as a habeas cor-
pus petition — and as such, why his claim fails. Recognition of the
courts’ obligation to the habeas corpus process reinforces the substan-
tive point that the district court should have dismissed Harvey’s
§ 1983 claim.
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court
held that when a state prisoner challenges the fact or duration of his
confinement and the relief he seeks is immediate or speedier release
from imprisonment, "his sole federal remedy is a writ of habeas cor-
pus." 411 U.S. at 500. The Court emphasized that despite the literal
applicability of § 1983’s broad, general terms, the federal habeas cor-
pus statute is "explicitly and historically designed to provide the
means for a state prisoner to attack the validity of his confinement."
Id. at 489-90. The Supreme Court was especially concerned that the
habeas corpus exhaustion requirement not be circumvented. Id. See
also 28 U.S.C. § 2254(b) (requiring exhaustion of state remedies
before a federal habeas action challenging a state conviction can pro-
9 HARVEY v. HORAN

-- 9 of 26 --

ceed). The Court stressed that the exhaustion requirement "is rooted
in considerations of federal-state comity," and that Congress has
decided that exhaustion of state remedies in cases where a state pris-
oner challenges the fact or duration of his confinement "will best
serve the policies of federalism." Preiser, 411 U.S. at 491-92 & n.10.
In contrast to habeas corpus claims, § 1983 claims can come imme-
diately to federal court, without any need for the exhaustion of state
remedies. See Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 500-01,
516 (1982). The Preiser Court stressed that "[i]t would wholly frus-
trate explicit congressional intent" to allow state prisoners to evade
the exhaustion requirement "by the simple expedient" of putting a
§ 1983 label on their pleadings. 411 U.S. at 489-90. Harvey was con-
victed by the Commonwealth of Virginia. If remedial steps are to be
taken, the courts of the Commonwealth must have the first shot at
them. Allowing Harvey to bypass the exhaustion requirement of
§ 2254(b) would, by contrast, give federal courts the right to initial
review of innumerable state judgments.
Harvey argues, however, that he is not bound by Preiser because
he is not presently challenging the fact or duration of his confinement.
He claims that he is seeking access to DNA evidence that will hope-
fully allow him to challenge his conviction at a later date. This claim
is unavailing. We have squarely held that a state prisoner’s label for
his claim cannot be controlling, even when the prisoner does not
request immediate release. See Hamlin v. Warren, 664 F.2d 29, 30,
32 (4th Cir. 1981). In Hamlin, we held that a prisoner’s § 1983 claim
had to proceed under the habeas framework because he was seeking
to establish "every predicate" for a subsequent request for release. Id.
We concluded that when a complaint calls into question the validity
of a state court conviction and "has all the earmarks of a deliberate
attempt to subvert the [exhaustion] requirement of § 2254(b)," the
petitioner must observe the habeas requirements, "notwithstanding the
absence of any request for release." Id. at 32. To hold otherwise
would sanction an end run around the exhaustion requirement by
"anyone who could state a viable civil rights claim." Id. See also
Pressly v. Gregory, 831 F.2d 514, 518 (4th Cir. 1987). Therefore, we
must examine whether a state prisoner’s claim falls within the federal
habeas corpus statute. If it does, the claim cannot proceed under
§ 1983.
10 HARVEY v. HORAN

-- 10 of 26 --

Under Preiser and Hamlin, Harvey’s sole federal remedy is a writ
of habeas corpus. Like the prisoner in Hamlin, Harvey is challenging
the validity of his conviction even though he is not seeking immediate
release. Harvey seeks access to DNA evidence to attempt to prove
that he is innocent. He is trying to use a § 1983 action as a discovery
device to overturn his state conviction. The Supreme Court has made
clear that habeas corpus relief is available "to attack future confine-
ment and obtain future releases." Preiser, 411 U.S. at 487. This is pre-
cisely what Harvey is attempting to do — use his claim for access to
evidence to set the stage for a future attack on his confinement.
Therefore, his claim is effectively a petition for a writ of habeas cor-
pus.
The district court found that under Brady v. Maryland, 373 U.S. 83
(1963), Harvey had a due process right of access to the DNA evi-
dence and a right to conduct new testing on the evidence. The district
court concluded that Harvey had a valid Brady claim because the
DNA testing "could constitute material exculpatory evidence." Har-
vey v. Horan, No. Civ.A. 00-1123-A, 2001 WL 419142, at *5 (E.D.
Va. Apr. 16, 2001). We are not persuaded. 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. See United States v. Bagley, 473
U.S. 667, 675-76 (1985). Harvey received a fair trial and was given
the opportunity to test the DNA evidence during his trial using the
best technology available at the time. However, even were we to
accept Harvey’s analogy to Brady, it would only reinforce the conclu-
sion that Harvey is bringing a habeas action rather than a § 1983
claim because Brady claims are typically raised in habeas petitions.
See, e.g., Williams v. Taylor, 529 U.S. 420, 437-40 (2000) (addressing
state prisoner’s Brady claim brought in a federal habeas proceeding);
Strickler v. Greene, 527 U.S. 263 (1999) (same); Gray v. Netherland,
518 U.S. 152, 161-62 (1996) (same); Wood v. Bartholomew, 516 U.S.
1 (1995) (same).
We thus proceed to consider Harvey’s claim as one brought in
habeas corpus. As a habeas petition, Harvey’s action must be dis-
missed as a successive petition brought without leave of court. In
1994, Harvey brought his claim for access to DNA evidence as a fed-
eral petition for a writ of habeas corpus in the district court. The dis-
11 HARVEY v. HORAN

-- 11 of 26 --

trict court dismissed Harvey’s claim as procedurally defaulted. The
court found that, even though Harvey had knowledge of the factual
basis for his claim at the time he filed a state habeas petition, he failed
to raise his claim in state court. Therefore, pursuant to Va. Code
§ 8.01-654(B)(2), which states that "[n]o writ [of habeas corpus] shall
be granted on the basis of any allegation the facts of which the peti-
tioner had knowledge at the time of filing any previous petition," Vir-
ginia would bar Harvey’s claim. Because Harvey failed to show cause
for his default or prejudice resulting therefrom, the district court dis-
missed Harvey’s claim.
The Supreme Court in another case subsequently reinforced the
district court’s approach by stating that a state procedural bar "pro-
vides an independent and adequate state-law ground for [a] conviction
and sentence, and thus prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate cause and prej-
udice for the default." Gray, 518 U.S. at 161-62 (addressing applica-
tion of Va. Code § 8.01-654(B)(2)). Harvey had the opportunity to
show cause for his default and demonstrate prejudice. But he never
appealed the district court’s decision.
Harvey has now brought the same claim for access to DNA evi-
dence in this action. Pursuant to 28 U.S.C. § 2244(b)(3), successive
habeas petitions may only be filed with leave of court.2 In order to
qualify as a successive petition, the dismissal of the first habeas peti-
tion must be on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-
89 (2000).
Our sister circuits have held that dismissal of a habeas petition for
2Even though Harvey’s first federal habeas petition was filed in 1994,
before the 1996 effective date of the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), his current petition was filed in July 2000, after
AEDPA’s effective date. We conclude that AEDPA’s requirements in 28
U.S.C. § 2244(b) for a successive petition apply based on when the sec-
ond petition was filed, not the first. See, e.g., Tyler v. Cain, 121 S. Ct.
2478 (2001) (requiring compliance with § 2244(b) when the original
habeas petition was filed pre-AEDPA but the successive one was filed
after AEDPA’s effective date); Daniels v. United States, 254 F.3d 1180,
1184-88 (10th Cir. 2001) (same). Therefore, § 2244(b) applies to Harvey.
12 HARVEY v. HORAN

-- 12 of 26 --

procedural default is a dismissal on the merits for purposes of deter-
mining whether a habeas petition is successive. See, e.g., In re Cook,
215 F.3d 606, 608 (6th Cir. 2000); Carter v. United States, 150 F.3d
202, 205-06 (2d Cir. 1998); Hawkins v. Evans, 64 F.3d 543, 547 (10th
Cir. 1995); Bates v. Whitley, 19 F.3d 1066, 1067 (5th Cir. 1994);
Howard v. Lewis, 905 F.2d 1318, 1322-23 (9th Cir. 1990). We agree.
By every reckoning, a dismissal for procedural default is a dismissal
on the merits. It is critically different from a dismissal for failure to
exhaust which does not prevent federal habeas review at a later date.
In light of this, the district court’s dismissal of Harvey’s original
habeas petition for procedural default was a dismissal on the merits.
Harvey’s current petition is accordingly a successive petition for a
writ of habeas corpus. And because Harvey did not obtain leave to
file this petition, his claim must be dismissed pursuant to 28 U.S.C.
§ 2244(b)(3). In addition, even if Harvey had sought leave of court,
it could not have been granted in view of the unambiguous language
of 28 U.S.C. § 2244(b)(1), which states: "A claim presented in a sec-
ond or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed." This is rein-
forced by the language of Rule 9(b) of the Rules Governing § 2254
Cases, which states that "[a] second or successive petition may be dis-
missed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits." See
also Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988); Turner
v. Artuz, 262 F.3d 118, 122-24 (2d Cir. 2001).
Appellant Horan points to strong evidence of Harvey’s guilt in
arguing that there is no prejudice from the denial of post-conviction
DNA testing in this case. But in Harvey’s case, the issue of prejudice
has already been adjudicated by the district court’s dismissal of Har-
vey’s first habeas petition as procedurally defaulted. Harvey has never
appealed this. This does not mean that there can be no relief for Har-
vey. What it does mean, however, is that any such relief must be con-
ferred by either state or federal legislation or by the state courts acting
under their own constitutions. Federal and state legislatures and state
courts are free in ways that we are not to set the ground rules by
which further collateral attacks on state convictions such as Harvey’s
may be entertained. For example, the proposed Innocence Protection
Act of 2001 contains a provision explicitly stating that an application
13 HARVEY v. HORAN

-- 13 of 26 --

by a state death-row inmate for post-conviction DNA testing under
the Act "shall not be considered an application for a writ of habeas
corpus under [28 U.S.C. § 2254] for purposes of determining whether
it or any other application is a second or successive application under
section 2254." S. 486 § 104(d), 147 Cong. Rec. at S2003; H.R. 912
§ 104(d). But under the current rules, a successive petition in habeas
corpus will not lie in Harvey’s case.
However strong the evidence of Harvey’s guilt may be, Virginia
can reopen his case if it so chooses. But what is open to Virginia is
presently foreclosed in federal court. Fashioning a new federal consti-
tutional right that would govern all prisoners in all states is not a per-
missible way of addressing the question of post-conviction DNA
testing. It is not merely that solutions which rely on the democratic
process and on the experimental possibilities inherent in our federal
system are practically superior. Those solutions alone are constitu-
tionally sound.3
3The opinion of our concurring colleague likewise underscores the lim-
itations of a § 1983 action by a state prisoner to secure evidence in fed-
eral courts. In Section II of that opinion, Judge King addresses and
rejects a variety of theories under which a § 1983 action may lie. He dis-
misses Brady v. Maryland, 373 U.S. 83 (1963), Bounds v. Smith, 430
U.S. 817 (1977), and Mathews v. Eldridge, 424 U.S. 319 (1976), as bases
for bringing a § 1983 action of this type. We appreciate our colleague’s
thoughtful analysis of these cases and the insights he has provided with
respect to them. As to Arizona v. Youngblood, 488 U.S. 51 (1988), there
has, as our concurring colleague recognizes, never been any suggestion
that the Commonwealth has concealed, destroyed, or otherwise manipu-
lated potentially exculpatory evidence in this case. Further, neither Ari-
zona v. Youngblood nor Jean v. Collins, 221 F.3d 656 (4th Cir. 2000),
involved a § 1983 suit over evidence in a state conviction that had yet
to be invalidated.
After oral argument in this case, Harvey’s counsel submitted to the
panel a copy of Appellee’s Motion For Scientific Analysis of Previously
Untested Scientific Evidence, which was filed in the Fairfax Circuit
Court pursuant to Va. Code § 19.2-327.1. The filing of this motion rein-
forces our view that the state courts are the proper forum for the resolu-
tion of this controversy and why this federal suit must be dismissed.
14 HARVEY v. HORAN

-- 14 of 26 --

III.
For the foregoing reasons, we reverse the judgment of the district
court and remand the case with directions to dismiss it.
REVERSED AND REMANDED
KING, Circuit Judge, concurring in part and concurring in the judg-
ment:
The issue of how or whether our criminal justice system should uti-
lize technological and scientific improvements in the post-conviction
context implicates the balancing of finality — a necessity in our judi-
cial process — with our hallmark commitment to fair and impartial
justice. I find myself in agreement with Chief Judge Wilkinson and
the panel majority that, except for the broad parameters mandated by
the Due Process Clause, such issues are more properly resolved by the
legislative process. I also agree that the district court erred in conclud-
ing that Harvey’s denial of post-conviction access to the biological
evidence relating to his rape conviction contravened the requirements
of Brady v. Maryland, 373 U.S. 83 (1963), and that Harvey’s due pro-
cess rights were violated by the conduct of the Commonwealth’s
Attorney.
I part company, however, with the majority’s conclusion that Har-
vey’s complaint must be construed as a petition for habeas corpus. To
the contrary, under the Supreme Court’s mandate in Heck v. Hum-
phrey, 512 U.S. 477 (1994), his complaint should be analyzed as it
is framed, that is, as a civil action initiated under 42 U.S.C. § 1983.
Thus, the failing of this proceeding is not that it represents a succes-
sive petition for habeas corpus on a claim previously adjudicated, but
that Harvey is unable to demonstrate that a state actor somehow
deprived him of a federally protected right. Therefore, although I
agree with our good Chief Judge that the award of relief to Harvey
should be reversed, I write separately to explain my rationale.
I.
The proper approach to analyzing Harvey’s claim is to first deter-
mine whether it is cognizable under § 1983 or whether, in the alterna-
15 HARVEY v. HORAN

-- 15 of 26 --

tive, it may only be brought in habeas corpus. If that determination
is made in favor of § 1983, we must then decide whether Harvey has
sufficiently alleged and demonstrated the requirements of a § 1983
action. Having undertaken this analysis, I view Harvey’s complaint as
cognizable under § 1983, but I conclude that he has failed to demon-
strate that any of his federally protected rights were violated.
The majority, relying on Heck v. Humphrey, has decided that Har-
vey fails to state a claim under § 1983, and that his action is only cog-
nizable, if at all, as a petition for habeas corpus. It observes that
proceedings which, if successful, would necessarily imply the invalid-
ity of a defendant’s conviction or sentence must be brought, pursuant
to Heck, in habeas corpus. Ante at 5. The majority therefore concludes
that, because Harvey seeks access to the biological evidence to chal-
lenge his underlying rape conviction, his claim is not cognizable
under § 1983. Ante at 6.
Although the relevant inquiry is whether a § 1983 proceeding
explicitly or implicitly attacks the fact or length of a prisoner’s con-
finement, the Heck decision does not compel the majority’s conclu-
sion. In Heck, the Court affirmed the principle 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,
even though such a claim may come within the literal terms of
§ 1983." Heck, 512 U.S. at 481. In furtherance of this principle, the
Court held that, in any § 1983 action in which a state prisoner seeks
damages, "the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence." Id. at 487 (emphasis added).1 If such a neces-
sary implication exists, then the complaint, according to Justice
Scalia’s opinion for the Court, "must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been
1As the majority observes, Heck only dealt with a § 1983 suit for dam-
ages. Ante at 6. There is no reason, however, to believe that the princi-
ples of Heck are so limited, and I agree with the majority that the Heck
rationale is also applicable to § 1983 proceedings by a prisoner seeking
injunctive relief that would necessarily imply the invalidity of his convic-
tion or sentence. Ante at 6. See also Edwards v. Balisok, 520 U.S. 641,
648-49 (1997) (leaving question unresolved).
16 HARVEY v. HORAN

-- 16 of 26 --

invalidated." Id. By the same token, Justice Scalia observed that "if
the district court determines that the plaintiff’s action, even if success-
ful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to pro-
ceed, in the absence of some other bar to the suit." Id.
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.2 That act alone — providing Harvey with
access to the biological evidence relating to his rape conviction —
does not, in the words of Justice Scalia, "necessarily imply" the inva-
lidity of Harvey’s conviction or sentence. Id. at 487.3 Although Har-
vey might use the evidence, at some future date, to initiate a separate
action challenging his conviction, future exculpation is not a neces-
sary implication of Harvey’s claim in this case. Indeed, Harvey’s
capable counsel acknowledged at oral argument that state-of-the-art
DNA testing often inculpates rather than exculpates, and at other
times it simply is inconclusive.4 Thus, it is also possible — and the
2The specific relief requested by Harvey in his complaint is:
Equitable relief, in the form of the search for and release of all
biological evidence, including the rape kit and reference samples
of [Harvey’s co-defendant] Steve Lawrence as well as the panty
hose and the maroon shirt collected in connection with the rape
for which [Harvey] was convicted . . . .
Complaint at ¶ A.
3Examining conventional dictionary definitions clarifies the stringent
nature of the Heck test. "Necessarily" means "of necessity" or "inevita-
bly"; thus, a successful lawsuit by Harvey will "necessarily imply" the
invalidity of his conviction only if it "inevitably" mandates such a con-
clusion. See Webster’s II New College Dictionary 731 (Houghton Mifflin
Co. 1995). Put simply, if there is any conceivable way in which Harvey
can succeed in this lawsuit and not impair the validity of his conviction,
then a successful prosecution of Harvey’s claim does not "necessarily
imply" the invalidity of his conviction.
4This point, i.e., that STR DNA testing of biological evidence does not
always result in future exculpation, is amply demonstrated by results
obtained pursuant to the new Virginia statute, cited approvingly by the
17 HARVEY v. HORAN

-- 17 of 26 --

Commonwealth would say likely — that such testing will provide
more conclusive evidence of Harvey’s guilt. Put simply, we do not
know whether providing Harvey with access to the evidence would
assist or hinder his attempts at exculpation; therefore, his civil action
requesting access to the biological evidence does not "necessarily
imply" the invalidity of his conviction.
Our good Chief Judge, writing for the majority, maintains that,
because Harvey is seeking access to the biological evidence in order
to challenge his confinement, his complaint must in fact be consid-
ered as an effort to seek habeas corpus relief. Ante at 6. A prisoner’s
underlying rationale, however, for bringing his § 1983 suit is not rele-
vant under Heck. The applicable standard is an objective one, and the
only relevant question is whether the prisoner’s legal proceeding, if
successful, would "necessarily imply the invalidity of his conviction
or sentence." Heck, 512 U.S. at 487 (emphasis added). Therefore,
even assuming Harvey’s lawsuit is part of a long-term strategy to
vacate his conviction, that fact has no bearing on whether his proceed-
ing is cognizable under § 1983, or whether it may only be brought in
habeas corpus. The issue, rather, is simply whether the claim made by
Harvey would "necessarily imply" that his conviction should be
reversed. In this situation, that is plainly not the case, and Harvey may
therefore properly proceed under § 1983.
II.
Having concluded that Harvey’s claim is cognizable under § 1983,
I must address whether it passes muster as such an action. Under
§ 1983, a plaintiff must demonstrate the deprivation of "rights, privi-
leges, or immunities secured by the Constitution and laws" by a state
actor. It is indisputable that the Commonwealth’s Attorney is a state
majority, that provides prisoners post-conviction access to DNA testing.
See Va. Code Ann. §§ 19.2-327.1 to -327.6 (Michie Supp. 2001). Report-
edly, the first post-conviction DNA testing accomplished under the stat-
ute, performed for a prisoner serving 42 years for rape, was inconclusive,
and it failed to assist the prisoner in establishing his innocence. Brooke
A. Masters, DNA Test Fails to Vindicate Virginia Inmate, Wash. Post,
November 28, 2001, at B08.
18 HARVEY v. HORAN

-- 18 of 26 --

actor within the meaning of § 1983; therefore, in order for Harvey to
prevail, he must demonstrate that his denial of access to the biological
evidence relating to his rape conviction deprived him of a federally
protected right. Harvey seeks to satisfy this requirement by contend-
ing that the denial of access constitutes a violation of his rights under
the Due Process Clause of the Fourteenth Amendment.5
A.
Before addressing the merits of Harvey’s allegation that his due
process rights have been violated, we must determine whether his
§ 1983 action is time-barred. The statute of limitations for § 1983 pro-
ceedings is borrowed from a state’s general personal injury statute of
limitations. Jersey Heights Neighborhood Ass’n v. Glendening, 174
F.3d 180, 187 (4th Cir. 1999). In Virginia, the applicable limitations
period is two years from the time the cause of action accrues. Va.
Code Ann. § 8.01-243(A) (Michie 2000). The determination of when
a cause of action accrues, however, is a federal question and, under
federal law, a cause of action accrues when "the plaintiff possesses
sufficient facts about the harm done to him that reasonable inquiry
will reveal his cause of action." Jersey Heights, 174 F.3d at 187
(quoting Nasim v. Warden, Md. House of Correction, 64 F.3d 951,
955 (4th Cir. 1995) (en banc)).
5In his complaint, Harvey also alleged violations of his Sixth Amend-
ment rights under the Compulsory Process Clause and the Confrontation
Clause and his Eighth Amendment rights under the Cruel and Unusual
Punishment Clause. The district court, however, in denying the Com-
monwealth’s Attorney’s motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), implicitly found these claims to be without merit.
The Commonwealth’s Attorney moved to dismiss Harvey’s claim pursu-
ant to Rule 12(b)(6), asserting that Harvey had failed to allege a depriva-
tion of a federally protected right. The district court denied that motion
solely on the ground that Harvey’s allegation that he had been denied
access to the biological evidence "states a claim of denial of due pro-
cess." Harvey v. Horan, 119 F. Supp. 2d 581, 584 (E.D. Va. 2000). The
district court therefore implicitly determined that Harvey failed to state
a claim with respect to his other allegations of constitutional deprivation.
Harvey has not appealed that ruling, and we need not further address his
alternative theories.
19 HARVEY v. HORAN

-- 19 of 26 --

We must therefore examine the allegations and the record to assess
when Harvey suffered the alleged deprivation of his due process
rights, and when Harvey possessed sufficient facts about such depri-
vation that reasonable inquiry would have revealed his cause of
action. Harvey asserts multiple theories for how his denial of access
to the biological evidence relating to his rape conviction violated due
process. Under several of those theories, he contends that due process
requires that he have access to the biological evidence, and, as such,
the relevant constitutional harm occurred when Harvey was first
denied access by the Commonwealth’s Attorney.
If the mere denial of access is the relevant constitutional harm, then
Harvey’s § 1983 claim is likely time-barred. The record reveals that
Harvey first began seeking the biological evidence from the Com-
monwealth’s Attorney between November 1996 and February 1998,
and he asserts in his complaint that he was "repeatedly unsuccessful"
in his efforts to obtain access prior to making a formal request in Feb-
ruary 1998. Complaint at ¶ 34. Harvey also alleged that he had never
received a response to his February 1998 request. Id. Therefore,
according to Harvey, by the middle of 1998, he had been pursuing
access to the biological evidence for well over a year, and he had
received no access to the evidence and had met with uncooperative
silence from the Commonwealth’s Attorney. If, standing alone, the
denial of access to evidence violates due process, then it is likely that,
by the middle of 1998, (1) a "constructive" denial had occurred, and
(2) Harvey possessed sufficient facts to know that his rights were
being violated. Yet Harvey failed to initiate this § 1983 proceeding
until July 7, 2000, well over three years after he began seeking the
evidence and more than two years after he failed to receive a response
to his formal request to the Commonwealth’s Attorney for access.
Thus, if the mere denial of access by the Commonwealth’s Attorney
is sufficient to violate Harvey’s due process rights, then Harvey’s
§ 1983 suit is probably time-barred.
For one of Harvey’s theories of due process violations, however,
the relevant harm is a denial of access to the biological evidence in
bad faith, i.e., with the purpose and effect of frustrating Harvey’s
exercise of his constitutional rights. Under that theory, before Har-
vey’s cause of action under § 1983 would accrue, he would need to
possess sufficient facts to trigger a reasonable inquiry into whether
20 HARVEY v. HORAN

-- 20 of 26 --

the denial had been in bad faith. It is unclear from this record
whether, assuming that the Commonwealth’s Attorney denied Har-
vey’s request in bad faith, Harvey possessed sufficient information by
July 7, 1998, for his cause of action to accrue. Given that ambiguity,
and given the sparseness of the record generally with respect to Har-
vey’s knowledge of the status of his requests for access, his § 1983
claim cannot be disposed of solely on limitations grounds. I therefore
turn to the merits of Harvey’s § 1983 proceeding.
B.
In contending that he had been deprived of his due process rights,
Harvey offered multiple theories on how the Commonwealth’s Attor-
ney’s denial of access violated due process. Specifically, Harvey
asserted that the denial of access violated the rule of Brady v. Mary-
land, 373 U.S. 83 (1963), and interfered with his right of meaningful
access to the court system. In addition, he contended in a more gen-
eral fashion that the denial of access contravened the requirements of
Arizona v. Youngblood, 488 U.S. 51 (1988), and that it abridged sub-
stantive due process. Although the district court granted summary
judgment in Harvey’s favor solely on the basis of his Brady claim,
this Court has "consistently recognized that, even [if] we disagree
with the reasoning of the district court, we may affirm the result on
different grounds if fully supported by the record." Brewster of
Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3 (4th Cir. 1994).
Therefore, I will address each of these theories in turn.
1.
The district court identified and found a due process deprivation
under Brady v. Maryland, 373 U.S. 83 (1963). Harvey v. Horan, No.
Civ.A. 00-1123-A, 2001 WL 419142 at *5 (E.D. Va. Apr. 16, 2001)
("The court finds that, pursuant to Brady v. Maryland, 373 U.S. 83
(1963), the plaintiff has a due process right of access to the DNA evi-
dence and to conduct DNA testing upon the biological evidence, as
such evidence could constitute material exculpatory evidence."). On
this point, I agree with Judge Wilkinson: Harvey’s denial of access
to the biological evidence after his conviction and sentencing, stand-
ing alone, fails to contravene Brady. Ante at 11. As the majority
points out, there is no allegation that Harvey did not receive a fair trial
21 HARVEY v. HORAN

-- 21 of 26 --

in the courts of Virginia in 1990. Id. There is also no contention that
the Commonwealth denied Harvey access to Brady material during
his prosecution. As such, the Brady rule has no application to Har-
vey’s claim in this case.6
2.
Given that the Brady rule is not applicable, I next evaluate Har-
vey’s contention that his denial of access to the biological evidence
relating to his rape conviction violates his right of access to the
courts. Harvey asserts that the denial of access by the Common-
wealth’s Attorney prevented him from bringing future actions to chal-
lenge his conviction, such as a clemency application or another
petition for habeas corpus relief, and thereby blocked him from
obtaining any relief in the court system; therefore, Harvey maintains
that the denial of access contravened his constitutional right of access
to the court system under the Due Process Clause.
It is well established that due process requires government officials
to permit prisoners "adequate, effective, and meaningful" access to
the court system to litigate post-conviction legal issues, such as
habeas corpus and civil rights actions. Bounds v. Smith, 430 U.S. 817,
822 (1977); see also Wolff v. McDonnell, 418 U.S. 539, 579 (1974);
Johnson v. Avery, 393 U.S. 483, 485-86 (1969). As such, the govern-
ment must ensure that prisoners have the substantive ability to take
advantage of post-conviction legal options, i.e., the ability to file the
requisite legal papers is insufficient. The Court has also observed,
however, that a state has no affirmative duty to "enable the prisoner
to discover grievances, and to litigate effectively once in court." Lewis
v. Casey, 518 U.S. 343, 354 (1996). Thus, although a state must pro-
vide prisoners with meaningful access to the legal system, it is not
obligated to maximize the prisoner’s chances of prevailing in his post-
conviction action.
6Moreover, under the second prong of the Brady rule, the prosecution
is only required to disclose evidence that is favorable to the defendant.
Brady, 373 U.S. at 87. It is not now known whether the biological evi-
dence being sought by Harvey would be favorable or unfavorable to him.
As such, even if Harvey had been denied access to the evidence during
his trial, the Brady rule would not have applied.
22 HARVEY v. HORAN

-- 22 of 26 --

Under Lewis, the mere fact that the Commonwealth’s Attorney
denied Harvey access to the biological evidence is insufficient to
abridge Harvey’s right of access to the courts. Even without access
to the evidence, Harvey is fully capable of taking advantage of post-
conviction legal options such as habeas corpus and clemency. He has
made no allegation that he lacks an adequate library or other legal
resources such that he is unable to effectively initiate a post-
conviction proceeding. Harvey’s contention is essentially that he
needs access to the biological evidence to increase his chance of suc-
cess in any future clemency application or habeas corpus proceeding
he might initiate; however, under Lewis, the Commonwealth’s Attor-
ney has no obligation to help Harvey bolster any such future legal
efforts. Id. at 354. Thus, the Commonwealth’s Attorney’s denial of
access to Harvey did not infringe upon Harvey’s constitutional right
of access to the court system.
3.
Harvey also generally contends that his denial of access to the bio-
logical evidence violated due process because it contravened the
requirements of Arizona v. Youngblood, 488 U.S. 51 (1988). The
Supreme Court held in Youngblood that the prosecution violates the
Due Process Clause if it fails to preserve potentially exculpatory evi-
dence in bad faith, even though such material is outside the scope of
Brady v. Maryland. Id. at 58. Harvey contends that "under Young-
blood, blocking access to existing evidence whose potential exculpa-
tory value is self-evident is no different than, in bad faith, destroying
it," and therefore the denial of access violated his due process rights.
Appellee’s Br. at 9.
As an initial matter, Youngblood, like Brady, addresses the prose-
cution’s constitutional duty prior to conviction, and thus fundamen-
tally concerns a criminal defendant’s due process right to a fair trial.
Harvey’s reliance on Youngblood, however, is not entirely misplaced,
because Youngblood also implicates a broader due process concern.
Government agents should not actively impede an attempt to exercise
a constitutional right in bad faith, i.e., with the intended purpose of
preventing an individual from exercising the right. In fact, Judge Wil-
kinson explained this point with clarity in his opinion in Jean v. Col-
lins, 221 F.3d 656 (4th Cir. 2000).
23 HARVEY v. HORAN

-- 23 of 26 --

Of course the bad faith manipulation of evidence on the part
of the police cannot be countenanced. Constitutional absolu-
tion for the concealment, doctoring, or destruction of evi-
dence would fail to protect the innocent, fail to assist the
apprehension of the guilty, and fail to safeguard the judicial
process as one ultimately committed to the ascertainment of
truth.
Id. at 663. In essence, the concept of due process requires that the
government treat its citizens in an evenhanded and neutral manner;
thus the targeting of specific individuals with the purpose of frustrat-
ing the exercise of their lawful rights contradicts the basic premise of
the constitutional guarantee.
Thus, given that prisoners possess a right of effective access to the
court system, a governmental decision to deny access to evidence
with the intent — and with the effect — of preventing a prisoner from
exercising his right of effective access to the court system would vio-
late due process. Cf. Swekel v. City of River Rouge, 119 F.3d 1259,
1262 (6th Cir. 1997) (concluding that police cover-up of evidence
which prevented plaintiff from filing § 1983 suit against government
officials violated plaintiff’s constitutional right of access to court sys-
tem); Bell v. City of Milwaukee, 746 F.2d 1205, 1261 (7th Cir. 1984)
(holding that constitutional right of access is violated when police
deny plaintiffs information necessary for them to seek redress). To
permit a state official to target a particular prisoner and to deliberately
frustrate that prisoner’s ability to take advantage of post-conviction
legal options contravenes the essence of fair and impartial procedural
justice.
Therefore, in order for Harvey to prevail on his § 1983 claim, he
must demonstrate that the Commonwealth’s Attorney denied him
access to the biological evidence in bad faith, i.e., it deliberately
blocked his access to the evidence in order to impede his ability to
take advantage of available post-conviction legal procedures. In the
circumstances presented, Harvey cannot prevail on this claim. He has
made no allegation of bad faith on the part of the Commonwealth or
its representatives, and he has presented no evidence of any bad faith.
As such, Harvey has failed to demonstrate that the Commonwealth’s
Attorney’s conduct violated his due process rights.
24 HARVEY v. HORAN

-- 24 of 26 --

4.
Finally, Harvey contends that the conduct of the Commonwealth’s
Attorney violated his due process rights because the denial of access
to the biological evidence contravened substantive due process. As
the majority observes, Harvey indicated at oral argument that this
Court should employ the three-part balancing test of Mathews v.
Eldridge, 424 U.S. 319, 334-35 (1976), to craft a due process right of
access to biological evidence for the purpose of DNA testing. Ante at
9. Harvey asserts that, given a prisoner’s substantial interest in prov-
ing his innocence and the minor administrative burden to the state in
providing access, we should find such a due process right.
Harvey’s reliance on Mathews is misplaced. The Court in Mathews
promulgated the three-part test as a means of evaluating the constitu-
tional adequacy of administrative procedures used to deprive an indi-
vidual of a "liberty" or "property" interest. Mathews, 424 U.S. at 331-
35. Justice Powell, writing for the Court, observed 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 the Fifth or Fourteenth Amend-
ment." Id. at 331. He also noted, however, that "‘[d]ue process,’
unlike some legal rules, is not a technical conception with a fixed
content unrelated to time, place, and circumstances," and he conse-
quently recognized that different administrative proceedings could
use very different procedures and nonetheless be constitutionally suf-
ficient. Id. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S.
886, 895 (1961)). Justice Powell therefore established the three-part
test as a procedure for analyzing whether a governmental decision-
making process complied with constitutional constraints. Id. at 334-
35.
Thus the balancing test of Mathews is only relevant when the gov-
ernment is depriving an individual of a "liberty" or "property" inter-
est. Harvey must therefore possess such an interest in accessing or
possessing the biological evidence relating to his rape conviction
before the principles of Mathews come into play. Harvey, however,
has no such interest. He has no post-conviction legal right to access
or discover the evidence relating to his rape conviction, and he cer-
25 HARVEY v. HORAN

-- 25 of 26 --

tainly has no property interest in such evidence. As such, the Mathews
test is not applicable to Harvey’s situation.7
C.
Harvey therefore is unable to demonstrate that the Common-
wealth’s Attorney’s denial of access, under any of his theories, vio-
lated his due process rights. As such, Harvey has failed to
demonstrate that his federally protected rights were violated, and his
§ 1983 proceeding must fail.
III.
Our criminal justice system is not infallible, and it has occasionally
convicted an innocent person. Although technological and scientific
advances may well enable our legal system to make more precise
judgments of guilt or innocence, the blanket application of such
developments to previously concluded proceedings raises difficult
questions concerning finality. An appropriate balance must therefore
be struck between accuracy and finality, and the integrity and effi-
ciency of our judicial system must be preserved.
Regardless of where I would strike such a balance, it is not, as I
have stated, our role to decide the issue here. Our task is to ensure that
the Commonwealth’s Attorney has not, in this case, violated Harvey’s
federally protected rights — and he has not done so.
7As for Harvey’s more general contention that denying him access to
the biological evidence violates substantive due process, it may be that
the significant interest of our constitutional system in ensuring justice
requires, under the Due Process Clause, that prisoners enjoy access to
evidence for the purpose of DNA testing. That, however, in my view, is
not an issue within our bailiwick; if any such right exists, it must be rec-
ognized by judges of a higher pay grade than those of this Court.
26 HARVEY v. HORAN

-- 26 of 26 --