Second Circuit Discusses Split Re: Whether Actions Seeking Post-Conviction Access to DNA Evidence May be Brought Only in Habeas Proceedings

Per McKithen v. Brown, --- F.3d ----, 2007 WL 744728 (2d Cir. Mar. 13, 2007):

[W]e must now determine whether a claim asserting a post-conviction federal constitutional right of access to, and DNA testing of, evidence is cognizable under § 1983, or whether, instead, it lies so well “within the core of habeas corpus” that it may only be brought in a habeas petition. The question has been an open one in this circuit. We today join the Seventh, Ninth, and Eleventh Circuits, and district courts in the First and Third Circuits, agreeing with them that a claim seeking post-conviction access to evidence for DNA testing may properly be brought as a § 1983 suit. See Savory v. Lyons, 469 F.3d 667, 669 (7th Cir.2006); Osborne v. Dist. Attorney's Office for the Third Judicial Dist., 423 F.3d 1050, 1054 (9th Cir.2005); Bradley v. Pryor, 305 F.3d 1287, 1290-91 (11th Cir.2002); see also Wade v. Brady, 460 F.Supp.2d 226, 237 (D.Mass.2006) (“[Section] 1983 is an entirely appropriate medium for plaintiff to raise his claim for access to DNA testing.”); Derrickson v. Del. County Dist. Attorney's Office, No. 04-1569, 2006 WL 2135854, at *8 (E.D.Pa. July 26, 2006) (same). In doing so we reject the position taken by three other circuits. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir.2002) (“Harvey I”) (holding that such a claim cannot be brought in a § 1983 action when a plaintiff “seek[s] access to DNA evidence for one reason and one reason only-as the first step in undermining his conviction”); Kutzner v. Montgomery County, 303 F.3d 339, 340-41 (5th Cir.2002) (per curiam) (adopting the reasoning of Harvey I); see also Boyle v. Mayer, 46 Fed.Appx. 340, 340 (6th Cir.2002) (unpublished) (holding that a suit seeking DNA testing of biological evidence is, in light of Heck, not cognizable under § 1983).