Derek LaMar v. Paul Ebert

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:12-cv-00706-HCM-TEM Copies to all parties and the district court/agency. [1000044229].. [15-7668]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7668

DEREK STANTON LAMAR,
Plaintiff – Appellant,
v.
PAUL EBERT, Esq.,
Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Henry Coke Morgan Jr., Senior District Judge. (2:12-cv-00706-HCM-TEM)

Argued: December 6, 2016

Decided: March 17, 2017

Before KING, SHEDD, and FLOYD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Philip Joseph Levitz, COVINGTON & BURLING LLP, Washington, D.C.,
for Appellant. Philip Corliss Krone, Alexander Francuzenko, COOK CRAIG &
FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellee. ON BRIEF: Mark W.
Mosier, COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Broderick
C. Dunn, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In 1998, Derek Stanton LaMar was convicted of rape in the Circuit Court of
Prince William County, Virginia. In 2001, Virginia enacted a statute that authorizes
DNA testing of human biological evidence under certain circumstances (the “DNA
statute”). LaMar thereafter filed four unsuccessful petitions seeking such testing. In
2012, LaMar filed his pro se complaint in this case in federal court in Virginia. He
therein alleged a claim under 42 U.S.C. § 1983 against Paul Ebert, Esq., the
Commonwealth’s Attorney for Prince William County, contending, inter alia, that the
DNA statute is unconstitutional under the Due Process Clause of the Fourteenth
Amendment. Upon screening LaMar’s complaint pursuant to 28 U.S.C. § 1915A, the
district court concluded that the complaint is barred by the Rooker-Feldman doctrine and,
alternatively, that it fails to state a claim upon which relief can be granted. 1 Accordingly,
the court dismissed the complaint. LaMar contests the dismissal by way of this appeal,
and Ebert argues for the first time that LaMar lacks standing to pursue his § 1983 claim.
As explained below, we reject Ebert’s contention on standing, conclude that the dismissal
was erroneous, and vacate and remand.

1

The Rooker-Feldman doctrine is derived from two Supreme Court decisions:
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). Application of the doctrine bars a party who
has lost in state court from seeking direct review in federal district court.

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I.
A.
On July 13, 1998, a Virginia jury convicted LaMar of a rape offense. The state
circuit court sentenced LaMar to life in prison with all but twenty-three years suspended.
LaMar appealed, and the Court of Appeals of Virginia affirmed in September 2000. In
2004, LaMar filed a petition seeking a writ of actual innocence from the Supreme Court
of Virginia, which was refused.
In 2001, Virginia enacted the DNA statute, which authorizes a convicted person to
seek, under the proper circumstances, “a new scientific investigation of any human
biological evidence related to the case that resulted in the felony conviction.” See Va.
Code § 19.2-327.1(A). Specifically, the person must satisfy the five-part test specified in
the DNA statute:
[1]

the evidence was not known or available at the time the conviction
. . . became final in the circuit court or the evidence was not
previously subjected to testing because the testing procedure was not
available at the Department of Forensic Science at the time the
conviction . . . became final in the circuit court;

[2]

the evidence is subject to a chain of custody sufficient to establish
that the evidence has not been altered, tampered with, or substituted
in any way;

[3]

the testing is materially relevant, noncumulative, and necessary and
may prove the actual innocence of the convicted person . . .;

[4]

the testing requested involves a scientific method employed by the
Department of Forensic Science; and

[5]

the person convicted . . . has not unreasonably delayed the filing of
the petition after the evidence or the test for the evidence became
available at the Department of Forensic Science.
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Id. § 19.2-327.1(A)(i)-(v); see also id. § 19.2-327.1(D) (requiring clear and convincing
evidence). The convicted person must also “assert categorically and with specificity,
under oath, the facts to support” each of the statutory requirements, as well as “the reason
or reasons the evidence was not known or tested by the time the conviction . . . became
final in the circuit court” and “the reason or reasons that the newly discovered or untested
evidence may prove the actual innocence of the person convicted.” Id. § 19.2-327.1(B).
Virginia does not authorize a proceeding under the DNA statute to “form the basis for
relief in any habeas corpus proceeding or any other appeal.” Id. § 19.2-327.1(G).
LaMar has sought relief under the DNA statute in state court on four occasions.
First, shortly after Virginia enacted the statute in 2001, LaMar sought to utilize short
tandem repeat DNA testing — which Virginia had adopted after his trial — to test
biological evidence. On October 23, 2001, the state circuit court denied LaMar’s initial
petition because it had not been filed under oath, failed to specifically allege facts
required by statute, did not seek to have newly discovered or previously untested
scientific evidence tested, and sought to relitigate the trial court’s decisions on chain of
custody and admissibility issues.
In 2003, LaMar again requested DNA testing in state court, as well as an
injunction requiring Virginia to preserve evidence.

LaMar sought to have tests

performed on hairs recovered from the crime scene, sanitary napkins from the Physical
Evidence Recovery Kit, and his blood. On June 2, 2003, the state circuit court denied
LaMar’s second petition for DNA testing but granted his request for an injunction. The
court concluded that LaMar had failed to show how DNA testing would be relevant,
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noncumulative, and necessary to prove actual innocence; failed to establish that the
evidence had not been tested previously; and failed to show that he had not unreasonably
delayed filing his second petition. LaMar sought to appeal that decision to the Supreme
Court of Virginia, which dismissed for lack of jurisdiction.
In 2008, LaMar filed a petition seeking rehearing of his previous requests for
DNA testing because the Virginia Department of Forensic Science had begun using
mitochondrial DNA testing. Mitochondrial DNA testing can obtain a DNA profile from
hair without fleshy roots — like the hair LaMar sought to have tested. On November 6,
2008, the state circuit court denied the third petition, finding it duplicative. At some
point thereafter, LaMar filed his fourth petition in state court for DNA testing, which was
denied on March 3, 2011. On May 21, 2014, however, the state court extended its
injunction requiring preservation of the biological evidence for ten years.
B.
On August 16, 2012, LaMar filed his complaint in the Western District of Virginia
pursuant to 42 U.S.C. § 1983. LaMar’s complaint alleges deprivation of his Fourteenth
Amendment right to due process and seeks declaratory, injunctive, and monetary relief.
The complaint alleges that the DNA statute is unconstitutional and that Commonwealth’s
Attorney Ebert’s refusal to allow testing of the biological evidence contravenes LaMar’s
due process interests. On December 26, 2012, LaMar’s suit was transferred to the
Eastern District of Virginia.
Almost a year later, on December 17, 2013, Ebert filed a motion seeking dismissal
of the complaint. Ebert maintained that the statute of limitations bars LaMar’s claim, that
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Ebert is entitled to absolute prosecutorial immunity, and that LaMar’s complaint fails to
state a claim upon which relief can be granted because Ebert is the incorrect defendant.
The district court denied Ebert’s motion in part, ruling that LaMar had timely filed his
complaint and named the proper defendant. See LaMar v. Ebert, No. 2:12-cv-00706
(E.D. Va. Sept. 24, 2014), ECF No. 56. The court also determined that Ebert — acting in
his capacity as Virginia’s prosecutor — is absolutely immune from liability for damages.
Accordingly, the court granted Ebert’s dismissal motion as to the damages aspect of the
complaint.
On May 19, 2015, Ebert sought summary judgment on the balance of LaMar’s
complaint, contending that the district court should abstain under the Younger doctrine
and that, in any event, the § 1983 claim failed on the merits. 2 In early September 2015,
the court denied Ebert’s summary judgment motion, but nevertheless dismissed LaMar’s
complaint sua sponte, pursuant to 28 U.S.C. § 1915A, for failure to state a claim. See
LaMar v. Ebert, No. 2:12-cv-00706 (E.D. Va. Sept. 8, 2015), ECF No. 72 (the “Dismissal
Order”). 3 In denying Ebert’s summary judgment motion, the Dismissal Order ruled that
the Younger doctrine does not apply because there is no judicial proceeding pending in
2

The Younger doctrine provides that a federal court must abstain from interfering
in an ongoing state criminal prosecution. See Younger v. Harris, 401 U.S. 37, 41 (1971).
3

Pursuant to § 1915A of Title 28, a federal court must review “a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” See 28 U.S.C. § 1915A(a). In conducting that
review, the court is obligated to dismiss the complaint, in whole or in part, if it “is
frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id.
§ 1915A(b)(1).

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state court. The court also determined that LaMar has raised a procedural due process
claim that is cognizable under the principles of District Attorney’s Office for the Third
Judicial District v. Osborne, 557 U.S. 52, 69-72 (2009) (explaining that convicted person
could, in proper circumstances, pursue procedural due process claim seeking DNA
testing of crime scene evidence). The court then screened LaMar’s complaint pursuant to
§ 1915A, concluding that the Rooker-Feldman doctrine bars LaMar’s complaint because
he is “actually attempting to challenge the [state circuit court’s] rulings on his various
[petitions] for scientific testing.” See Dismissal Order 9. The Dismissal Order ruled,
however, that even if the Rooker-Feldman doctrine is inapplicable, LaMar’s complaint
fails to state a claim because he has misread the DNA statute.
LaMar timely noted this appeal, and we thereafter appointed counsel to represent
him. We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.
We review de novo a district court’s dismissal of a complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915A. See Slade v. Hampton Rds. Reg’l Jail, 407 F.3d
243, 248 (4th Cir. 2005). A court is not entitled to dismiss a complaint under § 1915A
unless, “after accepting all well-pleaded allegations in the plaintiff’s complaint as true
and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it
appears certain that the plaintiff cannot prove any set of facts in support of his claim
entitling him to relief.” Id. When a dismissal issue under § 1915A implicates a civil
rights complaint, however, “we must be especially solicitous of the wrongs alleged and
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must not dismiss the complaint unless it appears to a certainty that the plaintiff would not
be entitled to relief under any legal theory which might plausibly be suggested by the
facts alleged.” Id.

III.
On appeal, Ebert contends — for the first time — that LaMar lacks standing to
litigate this matter in federal court. For his part, LaMar asserts that the Rooker-Feldman
doctrine does not bar his constitutional challenge to the DNA statute and that his
complaint alleges a plausible due process claim.
A.
We first assess Ebert’s contention that LaMar lacks standing to challenge the
constitutionality of the DNA statute. Standing “is a jurisdictional issue of constitutional
dimensions” that “may be raised and addressed for the first time on appeal.” See Hodges
v. Abraham, 300 F.3d 432, 443 (4th Cir. 2002).
1.
Article III of the Constitution of the United States limits the jurisdiction of the
federal courts to “Cases” and “Controversies.” See U.S. Const. art. III, § 2. The “core
component” of standing, as the Supreme Court has emphasized, is “an essential and
unchanging part” of Article III’s case-or-controversy requirement. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). At its “irreducible constitutional minimum,” the
issue of standing includes three requirements:

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(1)

that the plaintiff suffer an injury-in-fact — “an invasion of a legally
protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical”;

(2)

“a causal connection between the injury and the conduct complained
of,” meaning that the injury is “fairly . . . trace[able] to the
challenged action of the defendant, and not . . . th[e] result [of] the
independent action of some third party not before the court”; and

(3)

that it is likely — rather than speculative — that the injury be
“redressed by a favorable decision.”

Id. at 560-61.
As the Supreme Court has explained, the party invoking federal jurisdiction —
such as LaMar — “bears the burden of establishing these elements.” See Lujan, 504 U.S.
at 561. However, “[a]t the pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice, for on a motion to dismiss we presume[e] that
general allegations embrace those specific facts that are necessary to support the claim.”
Id.
2.
a.
First, Ebert contends that LaMar’s complaint fails to allege any injury stemming
from the alleged unconstitutionality of the DNA statute. The complaint maintains that
the statute “prohibits [LaMar] from any sort of Habeas Corpus relief.” See Compl. ¶ 25.
The complaint further alleges that — despite repeated requests for DNA testing —
LaMar’s lack of access to DNA evidence “has deprived [him] of his liberty interests in
utilizing state procedures to obtain reversal of his conviction and/or to obtain a pardon or
reduction of his sentence.” Id. ¶ 24. It is somewhat difficult to understand what more
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could be required of LaMar. See Lujan, 504 U.S. at 561-62 (“When the suit is one
challenging the legality of government action or inaction . . . [and] the plaintiff is himself
an object of the action (or forgone action) at issue,” then “there is ordinarily little
question that the action or inaction has caused him injury, and that a judgment preventing
or requiring the action will redress it.”). In short, LaMar alleges in his complaint that the
DNA statute is unconstitutional and otherwise that the statute has deprived him of access
to DNA testing that might result in the reversal of his conviction. In these circumstances,
we are satisfied that LaMar has pleaded adequate facts in his pro se complaint to fulfill
the injury-in-fact requirement.
b.
Second, Ebert contends that LaMar cannot satisfy the causation requirement of
standing because any injury suffered by him is not fairly traceable to Ebert. 4 According
to Ebert, his only involvement in any convicted person’s quest to obtain DNA testing
occurs after a state circuit court has ordered him to file a response to a petition under the
DNA statute.

In that respect, Ebert argues, this matter markedly differs from the

Supreme Court’s decision in Skinner v. Switzer, 562 U.S. 521 (2011), where the
petitioner had sued his prosecutor and sought § 1983 relief under a Texas statute that was
similar to the DNA statute.

4

On appeal, Ebert rehashes his district court contention — first voiced by an
unsuccessful motion to dismiss — that he is an improper defendant to a constitutional
challenge of the DNA statute. Although Ebert now recasts that allegation as a standing
challenge, it is yet meritless.

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In the Skinner case, of course, neither the Supreme Court nor the parties had
questioned the petitioner’s standing. Nevertheless, we are unable to see how the Texas
statute materially differs — with regard to our standing analysis — from Virginia’s DNA
statute. In Texas, a court can require the state’s attorney to respond to a petition for DNA
testing by delivering the evidence or explaining why it cannot be delivered. See Tex.
Code Crim. Proc. Ann. art. 64.02(a)(2). But the court can order DNA testing “regardless
of whether the attorney representing the state [has] submitted a response.”

Id. art.

64.02(b). The Texas statute’s requirement thus mirrors that of Virginia’s DNA statute,
which provides that the Commonwealth “shall” respond to the petition within thirty days
of receipt of service. See Va. Code § 19.2-327.1(C).
Under either statute (Texas or Virginia), the prosecutor is obligated to respond to a
request for DNA testing; Ebert’s argument to the contrary thus identifies a distinction
without a difference. Perhaps that is why no court — including the Supreme Court —
has either identified or assessed a standing issue when the convicted person has sued a
prosecutor for denial of access to post-conviction DNA testing. See, e.g., Skinner, 562
U.S. at 529 (suing district attorney); Osborne, 557 U.S. at 60 (same); Cooper v. Ramos,
704 F.3d 772, 776 (9th Cir. 2012) (same); Alvarez v. Att’y. Gen. for the State of Fla., 679
F.3d 1257, 1259 (11th Cir. 2012) (suing state’s attorney and attorney general); Harvey v.
Horan, 278 F.3d 370, 374 (4th Cir. 2002) (suing Commonwealth’s Attorney), abrogated
on other grounds by Skinner, 562 U.S. at 524-25.
Importantly, Ebert has not denied that he is the public official with custody of the
DNA evidence LaMar seeks to have tested. Despite Ebert’s suggestion at oral argument
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that the Department of Forensics is the proper defendant because it acts as custodian of
the evidence, the Department of Forensics provides a service to Ebert (the
Commonwealth’s Attorney), not the other way around. See Va. Code § 9.1-1101(A).
That Ebert is but one of several persons or entities in charge of implementing the DNA
statute is not controlling. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 315-16 (4th
Cir. 2013); see also Doe v. Va. Dep’t of State Police, 713 F.3d 745, 757 (4th Cir. 2013)
(explaining that plaintiff alleged sufficient causation for standing as to defendant police
superintendent who merely implemented sex offender registry created by state statute).
LaMar’s complaint is replete with allegations that Ebert has refused to allow LaMar
access to evidence for DNA testing. We are therefore satisfied that LaMar’s complaint
fulfills Lujan’s causation requirement.
c.
Finally, we briefly address the redressability requirement, which Ebert has not
challenged. In his complaint, LaMar alleges that his lack of access to DNA testing has
prevented him from using “state procedures to obtain reversal of his conviction,” a
pardon, or a sentence reduction.

See Compl. ¶ 24.

He seeks, in relevant part, an

injunction requiring Ebert to test DNA evidence under the most advanced and best testing
procedures available. A judgment in LaMar’s favor would confer the relief he requests.
His complaint therefore adequately pleads facts that suffice to support redressability. In
these circumstances, LaMar possesses standing to pursue his § 1983 claim against Ebert.

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B.
We now turn to LaMar’s first contention in this appeal: that the district court
improperly ruled that the Rooker-Feldman doctrine bars his claim. Ebert maintains that
the district court “correctly applied the Rooker-Feldman doctrine insofar as LaMar
alleged that Ebert’s alleged refusal to allow LaMar access to DNA testing deprived [him]
of his due process rights” because LaMar’s allegations “are inseparable from the state
court adjudication.” See Br. of Appellee 10. According to Ebert, had the court granted
LaMar § 1983 relief, it would have “nullified” the state circuit court’s decisions denying
LaMar’s repeated requests for DNA testing. Id. at 11.
1.
The Rooker-Feldman doctrine bars the lower federal courts, “with the exception of
habeas corpus actions, from sit[ting] in direct review of state court decisions.” See
Jordahl v. Democratic Party of Va., 122 F.3d 192, 199 (4th Cir. 1997). In other words,
Rooker-Feldman prevents a losing party in state court from “complaining of an injury
caused by the state-court judgment and seeking federal-court review and rejection of that
judgment.” See Skinner, 562 U.S. at 531. Rooker-Feldman’s jurisdictional bar “extends
not only to constitutional claims presented to or adjudicated by the state courts but also to
claims that are inextricably intertwined with a state court judgment.” See Jordahl, 122
F.3d at 199. If the Rooker-Feldman doctrine bars review, a federal court can consider
neither “adjudications of the state’s highest court” nor “decisions of its lower courts.” Id.
The “controlling question” under the Rooker-Feldman doctrine is “whether a party seeks
the federal district court to review a state court decision and thus pass upon the merits of
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that state court decision.” Id. at 202. The Rooker-Feldman doctrine is a “narrow” rule
that the Supreme Court has applied “only twice, . . . in the two cases from which the
doctrine takes its name.” See Skinner, 562 U.S. at 531.
Importantly, a federal plaintiff “encounters no Rooker-Feldman shoal” when
presenting an independent claim, even if “the same or a related question was earlier aired
between the parties in state court.” See Skinner, 562 U.S. at 532. In Skinner, the
Supreme Court differentiated between challenges to the state court’s decision itself and
challenges to the constitutionality of the state statute as construed by that court. Id. at
532. Because Skinner had challenged the constitutionality of the Texas DNA statute —
rather than the state court’s decision denying his petition for DNA testing — Skinner was
in the latter category. Id. at 532-33. The Supreme Court therefore determined that there
was “no lack of subject-matter jurisdiction over Skinner’s federal suit.” Id. at 533.
2.
The district court ruled that the Rooker-Feldman doctrine bars LaMar’s complaint
because he is “actually attempting to challenge the [state circuit court’s] rulings on his
various [petitions] for scientific testing.” See Dismissal Order 9. Although the district
court recognized that LaMar alleged a denial of his due process interests, the court
deemed it significant that LaMar “emphasize[d] how the [state circuit court] allegedly
wrongfully applied the statute to his situation.” Id. In that respect, the district court
erred.
LaMar directs his attack at the constitutionality of Virginia’s DNA statute — not
at the state court decisions that denied him access to DNA testing. LaMar’s complaint
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includes factual allegations regarding his repeated attempts to obtain testing under the
DNA statute. His claim, however, is prominently labelled “Deprivation of Right to Due
Process.” See Compl. 7. The complaint specifically alleges that the DNA statute “is an
unconstitutional statute that was created to allow a convicted felon to have newly
discovered or previously untested biological evidence tested, however, . . . subsection (G)
of this statute prohibits [LaMar] from any sort of Habeas Corpus relief.” Id. ¶ 25.
Moreover, the complaint alleges that the “denial of access to this evidence has
deprived [LaMar] of his liberty interests in utilizing state procedures to obtain reversal of
his conviction and/or to obtain a pardon or reduction of his sentence.” See Compl. ¶ 24.
This phraseology mirrors — in a strikingly similar way — the allegations of Skinner’s
complaint. See Skinner, 562 U.S. at 530 (quoting Skinner’s Fourteenth Amendment due
process claim as alleging that Texas’s refusal to test DNA evidence “has deprived
[Skinner] of his liberty interests in utilizing state procedures to obtain reversal of his
conviction and/or to obtain a pardon or reduction of his sentence”). The Supreme Court
deemed Skinner’s allegations adequate to defeat application of the Rooker-Feldman
doctrine, ruling that “Skinner does not challenge the adverse [lower court] decisions
themselves; instead, he targets as unconstitutional the Texas statute they authoritatively
construed.” Id. at 532. In light of Skinner’s explicit approval of the nearly identical
allegations, we are unable to say that LaMar’s complaint asks “the federal district court to
review a state court decision and thus pass upon the merits of that state court decision.”
See Jordahl, 122 F.3d at 202.

Rather, as in Skinner, LaMar is challenging the

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constitutionality of the DNA statute. We will therefore vacate the ruling that the RookerFeldman doctrine constitutes a fatal bar to LaMar’s complaint.
C.
Finally, we address LaMar’s contention that the district court’s alternative ruling
concerning § 1915A was erroneous. The court determined that LaMar is alleging a
procedural due process claim, but declined to grant Ebert summary judgment thereon.
See Dismissal Order 7-8. Nonetheless, the court ruled that LaMar has failed to state a
claim because subsection (G) of the DNA statute “does not prohibit [LaMar] from
seeking any type of habeas relief.” Id. at 10. The court therefore concluded that LaMar’s
complaint “offers no allegations as to why [the DNA statute] is constitutionally infirm.”
Id.
The Supreme Court has recognized a limited liberty interest in utilizing state
procedures to obtain post-conviction DNA testing. See Osborne, 557 U.S. at 68. When a
state has created a right to DNA testing — as Virginia does in its DNA statute — that
“state-created right can, in some circumstances, beget yet other rights to procedures
essential to the realization of the parent right.” See id. We agree with the district court
that LaMar has pleaded a procedural due process claim pursuant to Osborne.

We

disagree, however, that the allegations in LaMar’s complaint are insufficient in that
regard.
The district court’s conclusion that LaMar “has misread subsection (G)” of the
DNA statute contravenes the plain language thereof. Subsection (G), in its entirety,
provides:
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An action under this section or the performance of any attorney
representing the petitioner under this section shall not form the basis for
relief in any habeas corpus proceeding or any other appeal. Nothing in
this section shall create any cause of action for damages against the
Commonwealth or any of its political subdivisions or any officers,
employees, or agents of the Commonwealth or its political subdivisions.
Va. Code § 19.2-327.1(G) (emphasis added). Even if that statutory language is somehow
unclear, the Supreme Court of Virginia has confirmed that subsection (G)
“unambiguous[ly] . . . means that circuit court proceedings under [the DNA statute] are
not subject to review in this Court, whether by direct appeal or a petition for writ of
habeas corpus.” See Harvey v. Warden of Coffeewood Corr. Ctr., 597 S.E.2d 58, 59 (Va.
2004). The district court’s conclusion that subsection (G) does not bar LaMar from
seeking “any type of habeas relief” misses the point.

LaMar challenges the

constitutionality of the DNA statute because he cannot obtain relief — through either a
direct appeal or habeas corpus — even if he obtained favorable DNA results under the
statute. That LaMar may secure habeas corpus relief for some other reason would likely
be of little comfort.
More importantly, the district court assessed LaMar’s complaint to some extent on
its merits. Although LaMar is represented by counsel on appeal, he was proceeding pro
se in the district court. His complaint thus should have been read liberally and not
dismissed for failure to state a claim unless it appeared beyond doubt that he could
“prove no set of facts . . . which would entitle him to relief.” See Hughes v. Rowe, 449
U.S. 5, 10 (1980). The district court, however, mistakenly placed the burden on LaMar
to conclusively “demonstrate the inadequacy of the state-law procedures available to him

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in state postconviction relief.” See Dismissal Order 10 (quoting Osborne, 557 U.S. at
71).
We are satisfied that LaMar’s pro se complaint pleaded sufficient facts to survive
dismissal pursuant to § 1915A. LaMar asserts that, although Virginia has created a
pathway to obtain DNA testing, it has restricted that pathway by refusing to afford a
successful plaintiff habeas corpus relief. See Compl. ¶ 25. LaMar has requested DNA
testing of certain untested evidence, including hair recovered from the crime scene, but
the state circuit court has not permitted him to test that evidence. Furthermore, LaMar
requested re-testing of certain biological evidence “that was previously tested under an
antiquated testing procedure,” to no avail. Id. ¶ 26. According to LaMar, the state
court’s denial of those requests “deprived [him] of his liberty interests in utilizing state
procedures to obtain reversal of his conviction and/or to obtain a pardon or reduction of
his sentence.” Id. ¶ 24. Although perhaps not “a model of the careful drafter’s art,”
LaMar’s complaint provides a “plausible short and plain statement” of his claim. See
Skinner, 562 U.S. at 530. That is all the law requires at this stage. Thus, although we
express no view on the merits, we are satisfied that LaMar has pleaded enough to stave
off dismissal. 5
5

LaMar also maintains that the district court erred by screening his complaint
pursuant to § 1915A — which requires screening “as soon as practicable after docketing”
— more than three years after he filed the complaint. Although we agree that a threeyear delay “exceeds any understanding of as soon as practicable,” see Wheeler v.
Wexford Health Sources, Inc., 689 F.3d 680, 682 (7th Cir. 2012), we need not decide
whether that delay — standing alone — entitles LaMar to relief because the court
otherwise erred in dismissing his complaint.
18

Appeal: 15-7668

Doc: 33

Filed: 03/17/2017

Pg: 19 of 19

IV.
Pursuant to the foregoing, we vacate the judgment of the district court and remand
for such other and further proceedings as may be appropriate.
VACATED AND REMANDED

19