Nathan Kevin Turner v. BONNIE DUMANIS, District Attorney of the County of San Diego;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHAN KEVIN TURNER,
Plaintiff - Appellant,
v.
BONNIE DUMANIS, District Attorney of
the County of San Diego; et al.,
Defendants - Appellees.
No. 09-55524
D.C. No. 3:08-cv-00360-W-RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted February 15, 2011**
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Nathan Kevin Turner, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of
post-conviction access to biological evidence for DNA testing. We have
FILED
FEB 24 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-55524 2
jurisdiction under 28 U.S.C. § 1291. We review de novo, Nelson v. Heiss, 271
F.3d 891, 893 (9th Cir. 2001), and we affirm.
The district court properly dismissed Turner’s claims that he was denied
post-conviction access to biological evidence for DNA testing because he has not
stated a viable due process claim. See Dist. Attorney’s Office for Third Judicial
Dist. v. Osborne, 129 S. Ct. 2308, 2320-23 (2009) (holding that plaintiff had no
viable procedural due process claim because state’s procedures for post-conviction
relief did not transgress recognized principles of fundamental fairness, and that
there was no substantive due process right to post-conviction access to DNA
evidence).
The district court properly dismissed Turner’s claims that defendants
destroyed materially exculpatory evidence in bad faith because Turner’s conviction
has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(holding that a constitutional claim that necessarily implies the invalidity of a
conviction cannot be brought under § 1983 unless the conviction has already been
invalidated).
Turner’s remaining contentions are unpersuasive.
AFFIRMED.

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