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The 2d U.S. Circuit Court of Appeals has instructed a district judge to determine whether there exists a right to post-conviction DNA testing under the due process clause of the Fifth and 14th amendments to the U.S. Constitution. McKithen v. Brown, No. 03-0168. The decision came in the case of Frank McKithen, who was found guilty by a New York state court in 1993 of attempted murder and other charges. He was accused of appearing at the apartment of his estranged wife in 1992 and stabbing her with a kitchen knife-a knife that he says should have been subjected to DNA or fingerprint testing. Seven years after his conviction, in a motion under N.Y. Crim. Proc. Law � 440.30 (1-a)(a), McKithen moved to compel DNA testing of the knife admitted against him. But the New York state court found that there was no “reasonable probability,” as required in the state statute, that “the results of such testing would have resulted in a verdict more favorable” to McKithen. McKithen filed suit under 42 U.S.C. 1983, but Magistrate Judge Lois Bloom dismissed the case pursuant to the Rooker-Feldman doctrine for lack of subject-matter jurisdiction. The doctrine holds that federal courts have no subject-matter jurisdiction to sit in direct review of state court decisions unless Congress has enacted legislation specifically authorizing them to do so. Bloom said that the constitutional right McKithen claimed would “require the court to revisit the same issued previously decided by the state court.” The district judge, John Gleeson of the Eastern District of New York, accepted Bloom’s recommendation. The 2d Circuit reversed. Writing on behalf of the panel, Judge Guido Calabresi said that Rooker-Feldman applies only to cases in which a defendant claims he has been damaged by a state court judgment. “In seeking post-conviction access to, and DNA testing of evidence, McKithen could have chosen to bring either his state � 440.30 motion or his federal � 1983 suit first,” Calabresi wrote. “As he chose to litigate in state court first, principles of preclusion might apply. But given that McKithen in federal court seeks redress for an injury that existed in its exact form prior to the state court judgment, he cannot be complaining of an injury ’caused by’ the state court.” Calabresi said that “in addition to implicating fundamental questions of constitutional principle, the matter has extraordinary practical significance not only to those who claim they were falsely accused and wrongfully convicted, but also to state and local governments on whom the burdens of any such right to be tested would principally fall.” Calabresi said it was an open question in the circuit as to whether a claim asserting a federal right of access to post-conviction DNA testing is cognizable under Section 1983 or whether it may only be brought in the context of a petition for a writ of habeas corpus. He said the 2d Circuit was joining the 7th, 9th and 11th circuits in deciding that post-conviction access to evidence for DNA testing may be properly brought under Section 1983. While the court ruled that the defense of claim preclusion or res judicata was waived by the prosecution, its ruling on issue preclusion was different. The prosecution had argued that McKithen could win on his Section 1983 claim only if the federal court disregarded the state court’s holding. “But that is only so if the federal constitutional right to DNA testing is the same as or lesser than (and included in) the state statutory right,” Calabresi said. “In other words, it ‘ain’t necessarily so.’ “ Calabresi said the court can’t “determine whether issue preclusion applies before determining whether the federal constitutional right exists and what its contours are.” The panel remanded the case to Gleeson because of “the fact-intensive nature of the inquiry.”

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