CASENOTE

SKINNER v. SWITZER

“POST-CONVICTION DNA TESTING: THE SUPREME COURT’S INTERNAL STRUGGLE IN

BALANCING INDIVIDUAL RIGHTS AGAINST STATE RIGHTS IN A POLARIZED AMERICA”

I. INTRODUCTION

Innovative technological procedures and instruments are the status quo in the contemporary

American courtroom where deoxyribonucleic acid or DNA analysis is the norm, not the

exception. Postconviction DNA testing was first performed in 1989 and since its inception it has

transformed the criminal justice system in America causing a delay between justice and

technology.1 The American legislature both at the federal and state level have responded by

enacting legislation that ensures prisoners have access to post-conviction DNA testing and

passed legislation such as Innocence Protection Act, Justice for All Act or Prison Litigation

Reform Act of 1995 to address this technological game-changer.2

After much procrastination, the Supreme Court finally entertained the constitutional paradox

that should have been resolved in District Attorney’s Office v. Osborne in 2009.3 Skinner v.

Switzer addressed the contentions caused by 42 U.S.C. § 1983 and 28 U.S.C. § 2254 for a

prisoner that attempted to obtain evidence for purposes of forensic DNA testing.4 The Court

held that “a postconviction claim for DNA testing is properly pursued in a 42 U.S.C. § 1983

action” because success grants the prisoner access to DNA evidence which has no bearing on the

state’s custody status, ergo habeas (28 U.S.C. § 2254) is not the sole remedy available.5

Skinner is a victory for justice but more importantly individual rights. The Supreme Court’s

interpretation and analysis of Skinner allows it to reconcile any defects rendered by Osborne.

Further, the Court is careful to trepidatiously maneuver itself without undermining Osborne by

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distinguishing the two cases. Finally, in concluding that individual rights supersede state rights

when a prisoner seeks to access evidence for purposes of forensic DNA testing, the Court

recognizes correctly the simple truth that “no State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws” as guaranteed by the Fourteenth Amendment of

the United States Constitution.6

Part II conveys factual and procedural information with regard to the issues raised by Skinner

and details the reasoning of the majority and dissent. Part III examines the court’s analysis of

individual rights and then discusses the dissents flawed perspective in which it alleges that it is

permissible that states’ rights undermine individual rights.

II. STATEMENT OF THE CASE

As law enforcement officials approached the victim’s domicile, they noticed circumstantial

evidence that would later be used to implicate the convicted petitioner, Henry Skinner.7 Skinner

was apprehended after he was discovered in a closet wearing blood-stained socks and blue

jeans.8 He alleged that the true perpetrator was the victim’s uncle, Robert Donnell.9 Skinner

maintains his innocence asserting that he was “rendered physically unable to commit” the

heinous crime because he was incapacitated by a potent mixture of alcohol and codeine when the

killings occurred.10 In 1995, Skinner was convicted and sentenced to death by a Texas jury for

the heinous murders of his girlfriend and her to children.11

In 2001, Texas enacted Article 64, which allowed prisoners, in limited circumstances, to

obtain postconviction DNA testing.12 Article 64 allows a prisoner to request testing only if DNA

testing was “not available” or was “available, but not technologically capable of providing

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probative results” in a motion submitted to the convicting court for forensic DNA testing of

evidence containing biological material.13 Otherwise, a prisoner may show that a postconviction

order for DNA testing is required because the evidence was not tested beforehand “through no

fault of the convicted person” and in “the interests of justice.”14

Skinner fruitlessly exercised state and federal postconviction options and attempted to

employ informal efforts, as well, to obtain access to untested biological evidence for purposes of

forensic DNA testing.15 Skinner filed a federal suit seeking injunctive relief under 42 U.S.C. §

1983 alleging that Texas violated his Fourteenth Amendment right to due process.16 The District

Court dismissed Skinner’s suit because Circuit precedent, Kutzner v. Montgomery County, held

that postconviction requests for DNA evidence are recognizable only in 28 U.S.C. § 2254. 17 The

United States Court of Appeals for the Fifth Circuit affirmed the judgment on appeal citing that

“an action by a prisoner for post-conviction DNA testing is not cognizable under 42 U.S.C. §

1983 and must instead be brought as a petition for writ of habeas corpus.”18 Skinner petitioned

for a writ of certiorari, which the United States Supreme Court granted.19 In a 6-3 decision, the

Court reversed the Fifth Circuit judgment and remanded the case.20

A. Justice Ginsburg’s Majority Opinion

Justice Ginsburg, writing for the majority, created a narrow ruling that acknowledges that

prisoners have a federal civil right vested in 42 U.S.C. § 1983 to sue the state in order to obtain

biological evidence for purposes of forensic DNA testing that may exonerate them.21

First, Ginsburg addressed whether Skinner’s complaint was sufficient to cross the federal

court’s threshold.22 Relying on Rule 8(a)(2) of the Federal Rules of Civil Procedure,23 Ginsburg

noted that Skinner’s complaint was not subject to a heightened standard thus requiring only a

plausible “short and plain” statement of Skinner’s claim.24 The Court did not entertain Skinner’s

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claim because the District Court and the Fifth Circuit never reviewed Skinner’s actual claims.25

The Court’s main objective was to determine that Skinner at the minimum filed a “short and

plain” statement, which it determined Skinner satisfied.26

Then, Ginsburg addressed whether there was federal court subject-matter jurisdiction

over Skinner’s complaint. The Court determined that it had subject-matter jurisdiction over

Skinner’s suit.27 Respondent, Switzer contended that Petitioner, Skinner’s challenge was barred

by the Rooker-Feldman doctrine.28 Ginsburg concluded that Skinner’s suit was not barred by

Rooker-Feldman.29 Ginsburg relied on Exxon Mobil Corp. v. Saudi Basic Industries Corp. to

distinguish the present case and support the Court’s conclusion that Rooker-Feldman did not

apply.30 In Exxon, the Court held that Rooker-Feldman “is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.31 Thus, Rooker-Feldman is not

applicable to Skinner because “a state-court decision is not reviewable by lower federal courts,

but a statute or rule governing the decision may be challenged in a federal action.”32 Skinner’s

claim was in regards to a statute, which made it permissible to be challenged at the federal

level.33

Finally, the Court entertained whether Skinner’s claim is cognizable under 42 U.S.C. §

1983.34 The Court held that Skinner’s claim was cognizable under 42 U.S.C. § 1983.35 Ginsburg

relied on Wilkinson v. Dotson to support the Court’s conclusion and used Kutzner to distinguish

Skinner’s suit.36 In Wilkinson, the Court held that the prisoners could invoke 42 U.S.C. § 1983

because they did not seek an “injunction ordering … immediate or speedier release into the

community,” and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their]

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conviction[s].”37 Similarly, Skinner did not seek an injunction and success in his federal

challenge did not “necessarily imply the invalidity of his conviction” because he would merely

gain access to biological evidence for purposes of forensic DNA testing which might prove

Skinner innocent, guilty or neither.38

Respondent relied on Fifth Circuit precedent Kutzner that required Petitioner, Skinner to

seek remedy through an application for habeas corpus or 28 U.S.C. § 2254.39 An application for

habeas corpus or 28 U.S.C. § 2254 permits a prisoner who has exhausted all State remedies to

pursue an action in federal court where their custody is a violation of the Constitution.40 An

application pursuant to 42 U.S.C. § 1983 is broader and allows anyone to assert a claim against

someone that deprives that individual of any rights, privileges, or immunities protected by the

United States Constitution.41 Ginsburg notes that there is no case which binds the Court to

recognize habeas corpus (28 U.S.C. § 2254) as the sole remedy where the relief sought would

“neither terminat[e] custody, accelerat[e] the future date of release from custody, not reduc[e] the

level of custody” as held in Wilkinson.42 Respondent, Switzer contends that judgment in favor of

the Petitioner, Skinner would result in a “proliferation of federal civil actions “seeking

postconviction discovery of evidence [and] other relief inescapably associated with the central

questions of guilt or punishment.”43 The Court reviewed the impact in Circuits that currently

allow 42 U.S.C. § 1983 claims for DNA testing and found no evidence of a negative or

detrimental impact as predicted by the Respondent, Switzer. The Court further acknowledged

that Osborne serves as a filter to reject substantive due process claims which should address any

additional burdens.44 Additionally, Congress has placed restrictions that deter frivolous lawsuits

that would burden the federal courts in the Prison Litigation Reform Act of 1995.45 Finally, the

Court addresses any concern that the ruling “will spill over to claims relying on” Brady v.

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Maryland because it is not applicable.46 A Brady claim yields evidence undermining a

conviction whereas a 42 U.S.C. § 1983 yields evidence that may or may not undermine a

conviction.47

B. Justice Thomas’ Dissenting Opinion

Justice Thomas rejects the majority’s reasoning that Skinner may invoke 42 U.S.C. §

1983 in his “procedural due process” claim because Skinner is challenging state collateral review

procedures, which are not cognizable 42 U.S.C. § 1983.48

Thomas relies on Preiser v. Rodriguez to analogize to Skinner by asserting that a

“complaint must be dismissed where “a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence” because Thomas infers that Skinner’s ultimate

goal is to undermine his conviction.49 Thomas acknowledges that although the Court has not

entertained whether due process challenges to state collateral review procedures may be invoked

by 42 U.S.C. § 1983, he holds that they may not and as result determines that they should be

treated the same as challenges to state trial procedures.50

Thomas depends on the concept that a collateral review procedure is part of the process

of law, which applies to a prisoner, thus it should be exempt from 42 U.S.C. § 1983.51

Additionally, Thomas is concerned with “principles of federalism and comity” which are at stake

when the federal courts review state cases.52 Thomas claims that Skinner is undermining state

court rights to “have the first opportunity to correct any error with a state conviction” when

Skinner bypasses the Texas courts to seek relief at the federal level.53 Thus, in Thomas’ view,

Skinner’s only true remedy is through a habeas corpus action.

Thomas then attempts to distinguish any reliance the majority may have on Wilkinson by

asserting that Wilkinson does not control Skinner because Wilkinson does not suggest that the

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Heck approach, which is endorsed by Thomas, is incorrect.54 Finally, Thomas frames 42 U.S.C.

§ 1983 as statute that must be contained and limited from “intruding into the boundaries of

habeas corpus.”55 This antagonistic perspective explains why Thomas believes that Skinner’s

claim is not cognizable under 42 U.S.C. § 1983 because according to Thomas, Skinner’s request

to obtain evidence for purposes of forensic DNA testing is merely a means by which Skinner is

attempting to undermine his conviction.56

III. ANALYSIS

A. Individual Rights: Change We Can Believe In

In order to fully appreciate the Court’s decision in Skinner, one must comprehend Osborne

but more importantly one must comprehend why Osborne does not apply to Skinner thus

allowing the Court to deviate in the instant case.

In Osborne, the Court, in a five-member majority, led by Chief Justice Roberts and the

conservative wing of the court held that Brady did not extend to the postconviction context57 and

that Alaska did not violate the prisoner’s due process rights.58 Osborne is distinguishable from

Skinner in the respect that the prisoner in Osborne was convicted of the crime after

insurmountable evidence was presented before the jury.59 Unlike in Skinner, Osborne’s victim

identified him as the perpetrator on two different occasions and Osborne’s accomplice implicated

him as the triggerman.60 Furthermore, circumstantial evidence along with DNA analysis that

matched Osborne’s blood sample resulted in sufficient evidence to support a conviction.61

Roberts reasoned that Alaska did not “vindicate its state right to postconviction relief in

general,” and there was “nothing inadequate about how those procedures apply to those who

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seek access to DNA evidence.”62 He noted that Alaska provides adequate postconviction relief63

and admonished Osborne for not exercising the procedures available to him at the state level.64

In essence, the conservative wing of the Supreme Court was the knight in shining armor

dedicated to the protection of states’ rights in Osborne. States’ rights outweighed individual

rights in Osborne because the conservative chamber of the Supreme Court felt that Osborne did

not do enough to seek remedies at the state level. In other words, how can one criticize state law

when the individual never invoked it? There were not enough favorable facts that permitted the

pragmatic liberal wing to advocate for individual rights. The swing vote, Justice Kennedy, was

not compelled to find for individual rights when states’ rights were ignored by Osborne.

It was in this environment that the liberal wing of the Supreme Court cautiously approached

Skinner to rectify a clear violation of justice. Justice Ginsburg danced around Skinner in such a

fashion as to put any circus acrobat on notice that two can play this game. In addressing the

issue of individual rights against states’ rights, Ginsburg made it clear how Skinner differed from

Osborne. Skinner exercised both formal and informal state remedies in his application for access

to DNA evidence.65 The forensic DNA analysis requested by Skinner had the potential of

exonerating him.66

The Wilkinson analysis, penned by liberal Justice Breyer, referenced to by Justice Ginsburg

explains why Skinner is able to walk the fine line to victory for individual rights. The prisoners

in Wilkinson merely sought relief that would render state procedures used to determine parole

eligibility invalid.67 In other words, they did not seek an injunction in order to circumvent their

original conviction.68 Breyer notes that if successful the prisoners would not be entitled to

immediate release.69 On the contrary, it would just mean that the prisoners would be eligible to a

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new parole review that may or may not result in a release from confinement depending on the

State’s parole authorities discretion.70

Similarly, Skinner would not be entitled to an immediate release even if his end goal were to

circumvent his conviction as the dissent alleges. At the most, Skinner would gain access to DNA

analysis that may confirm his guilt or exonerate him. The dissent relies to their detriment that a

prisoner’s end goal dictates which type of application must be submitted whereas the true test is

whether the request challenges the conviction at an immediate level or not. Merely requesting

evidence is irrelevant to a prisoner’s conviction because the granting of such request would not

result in their immediate release. The prisoner would have to take additional steps if new

evidence were to become available that would exonerate him. The fact that DNA analysis by

itself would result in the prisoner’s immediate release is unsupported. Any slippery slope

arguments asserted by the conservative wing fall on deaf ears when Ginsburg eloquently

recounts that Circuits that apply what is now known as the Skinner Rule do not suffer from a

flood of requests by prisoners that seek a remedy through 42 U.S.C. § 1983.

B. States’ Rights: The South Shall Rise Again

The Thomas dissent is riddled with fallacies and flawed logic that it compelled the most

conservative justice on the Court, Justice Scalia, and Chief Justice Roberts to come full circle

and side with the liberal wing in this battle between individual rights and states’ rights.

The only assertion that Thomas gets correct in this dissent is that Osborne left the issue of

whether a prisoner when attempting to access DNA evidence must pursue a habeas corpus action

or a 42 U.S.C. § 1983 open to debate.71 Thomas’ interpretation of Preiser in reliance for support

of states’ rights is flawed. The Court in Preiser explains the purpose of habeas corpus as “an

attack by a person in custody upon the legality of that custody, and that the traditional function of

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the writ is to secure release from illegal custody.”72 This broad interpretation implemented as the

paradigm allows Thomas to assert a losing fight for states’ rights in Skinner. The fact that any

motion or application by a prisoner can be construed as an “attack” upon the legality of the

prisoner’s custody makes this contention defective.73

Thomas’ attempts to distinguish Wilkinson from Skinner by alleging that Skinner asserted

a collateral review which is an attack on Skinner’s final conviction and as result it is not

governed by 42 U.S.C. § 1983.74 Allowing Thomas to distort the argument in such a sense

permits the conservative wing to put one last stand for states’ rights. Unfortunately, a mere

request for DNA evidence is not an attack on Skinner’s final conviction ergo it cannot be

construed as a collateral review.

Thomas infatuation with the idea that a state court should “have the first opportunity to

correct any error with a state conviction” plays into his states’ rights campaign.75 It is his

contention that when there is a conflict between individual rights and states’ rights, states’ rights

should prevail. Unlike the petitioner in Osborne, Skinner was due diligent in exercising any

state remedies that he had available. The fact that he was unsuccessful is the reason why Skinner

was induced to seek relief at the federal level. While Thomas views this as federal courts

intruding on state courts, one must observe it for what it is. The federal courts are guaranteeing

that state courts do not undermine the Fourteenth Amendment of United States Constitution.

IV. CONCLUSION

The battle between individual rights and states’ rights shall continue at the Supreme Court.

Although the impact of Skinner cannot be fully determined or appreciated due to its infancy one

can speculate on its potential effect. The Skinner case finally closes a chapter in postconviction

DNA analysis. A prisoner is now privileged to assert a 42 U.S.C. § 1983 claim in order to obtain

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biological evidence for purposes of forensic DNA analysis. The Court has taken a position in the

debate between habeas corpus and 42 U.S.C. § 1983 and it sided with individual rights.

Support for individual rights does not undermine states’ rights. On the contrary, it is

complimentary to both. On the other hand, support for states’ rights only does undermine

individual rights.

Skinner is a victory for justice. Regardless of one’s position on the culpability of Skinner,

the Court’s decision to allow him access to DNA evidence for testing is a triumph for freedom.

There is no worst-case scenario in this matter as contemplated by the conservative wing. If test

results implicate Skinner then Texas can rejoice that it got the right man but if those test results

exonerate Skinner then justice will vindicate an innocent man. The conservative court should

have nothing to fear because at the end of the day justice will be served. The only bad decision

would be the dissent’s decision, which would have left an empty vacuum of questions and what

ifs that would remain unresolved.

The Skinner decision will not be last matter in which the Court must weigh between

individual and states’ rights. The Court was correct in addressing the issue that it failed to

resolve in Osborne. The Court was further correct in determining that a prisoner who seeks

biological evidence for purposes of forensic DNA analysis is entitled to pursue such an action

through 42 U.S.C. § 1983. Time will only tell if Skinner will survive another political altercation

between individual and states’ rights.

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1 Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 57 (2008).

2 Id. at 58.

3 Brandon L. Garrett, DNA and Due Process, 78 FORDHAM L. REV. 2919 (2010).

4 Skinner v. Switzer, 131 S. Ct. 1289, 1290 (2011).

5 Id. at 1293.

6 U.S. Const., Amdt. 14, §1.

7 Skinner v. Switzer, 131 S. Ct. 1289, 1294 (2011).

8 Id.

9 Id.

10 Id.

11 Id. at 1293.

12 Id. at 1295.

13 Tex. Code Crim. Proc. Ann., Art. 64.01(b)(1)(A) (Vernon Supp. 2010).

14 Tex. Code Crim. Proc. Ann., Art. 64.01(b)(1)(B) (Vernon Supp. 2010).

15 Skinner v. Switzer, 131 S. Ct. 1289, 1294-95 (2011).

16 Id. at 1295.

17 Id.

18 Id. at 1296.

19 Id.

20 Id. at 1300.

21 Id. at 1293.

22 Id. at 1296.

23 Fed. R. Civ. P. 8(a)(2).

24 Id. at 1296.

25 Id.

26 Id.

27 Id. at 1298.

28 Id. at 1297.

29 Id.

30 Id.

31 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005).

32 Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011).

33 Id.

34 Id. at 1297.

35 Id. at 1298.

36 Id.

37 Id.

38 Id. at 1299.

39 Id.

40 28 U.S.C.A. § 2254.

41 42 U.S.C.A. § 1983.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id. at 1301.

49 Id. at 1302.

50 Id.

51 Id.

52 Id. at 1303.

53 Id.

54 Id. at 1304.

55 Id.

56 Id.

57 Dist. Atty.'s Off. for Third Jud. Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009).

58 Id. at 2319.

59 Id. at 2313.

60 Id.

61 Id.

62 Id. at 2320.

63 Id.

64 Id. at 2321.

65 Skinner v. Switzer, 131 S. Ct. 1289, 1294-95 (2011).

66 Id. at 1299.

67 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).

68 Id.

69 Id.

70 Id.

71 Skinner v. Switzer, 131 S. Ct. 1289, 1301 (2011).

72 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

73 Id.

74 Skinner v. Switzer, 131 S. Ct. 1289, 1304 (2011).

75 Id. at 1303.