D. Colo. Notes Split Re Whether Plaintiff's Assertion of Post-Conviction Access to Biological Evidence for DNA Testing Is Cognizable under § 1983

Per McDaniel v. John Suthers, 2008 WL 4527697 (D. Colo. Oct 02, 2008):

[T]he Court must determine whether Plaintiff's claim, asserting a post-conviction right of access to biological evidence for DNA testing, is cognizable under Section 1983 or whether it is properly limited to the realm of habeas corpus.

The circuit courts have split in their resolution of this question. The Second, Seventh, Ninth, and Eleventh Circuits have found that a prisoner may properly bring a claim under Section 1983 for post-conviction access to biological materials for DNA testing. See, e.g., McKithen, 481 F.3d at 99; 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); Derrickson v. Del. County Dist. Attorney's Office, No. 04-1569, 2006 WL 2135854, at *8 (E.D.Pa. July 26, 2006). The Fourth, Fifth, and Sixth Circuits, on the other hand, have rejected this use of a Section 1983 claim, holding that such claims are limited to habeas corpus petitions. See Harvey v. Horan, 278 F.3d 370, 375 (4th Cir.2002); Kutzner v. Montgomery County, 303 F.3d 339, 340-41 (5th Cir.2002) (per curiam); see also Boyle v. Mayer, 46 F. App'x 340, 340 (6th Cir.2002).

Although the Tenth Circuit has rejected other attempts to use Section 1983 claims for post-conviction injunctive relief, see Alexander v. Lucas, 259 Fed. App'x 145 (10th Cir.2007), it has not considered whether it is possible to bring such a claim to gain post-conviction access to biological materials for DNA testing.