Gonzalez v. The New York County District Attorney
Filing
33
MEMORANDUM & ORDER: granting 21 Motion to Dismiss. Because Osborne and McKithen conclusively establish that Plaintiff's claim fails on the merits, the Court need not address Defendant's argument that this action is barred by the statute of limitations. For the reasons stated above, Defendant's motion is granted, and Plaintiff's claim is DISMISSED. The Clerk of Court is requested to terminate this case. (Signed by Judge Alison J. Nathan on 2/27/2014) (djc)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EtlCTllOIHCALLY FJUD
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VICTOR GONZALEZ,
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.
,
,
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DATJ!JIB;JD:tEB 2 l 201~
Plaintiff,
13 Civ. 498 (AJN)
-vMEMORANDUM &
ORDER
NEW YORK COUNTY DISTRICT ATTORNEY
CYRUS R. VANCE, JR.,
Defendant.
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)(
ALISON J. NATHAN, District Judge:
In 1982, Plaintiff Victor Gonzalez was convicted in New York state court for murdering
a police officer and wounding another victim during the course of a robbery. He brings this
action under 42 U.S.C. § 1983 seeking access to DNA testing of blood collected at the scene of
the crime. Before the Court is Defendant Cyrus R. Vance's motion to dismiss Plaintiff's
complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the following reasons, Defendant's motion is granted.
I.
BACKGROUND 1
On March 5, 1982, Plaintiff was convicted, after a jury trial, of two counts of seconddegree murder, two counts of first-degree robbery, two counts of first-degree assault, and one
count of second-degree burglary. See People v. Gonzalez, 494 N.Y.S.2d 866, 866 (1st Dep't
1
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...... ·..
The Court has considered facts and arguments presented in all of Plaintiffs submissions, not just his pleadings.
Cf, e.g, Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 246-47 (S.D.N.Y. 1999) ("Although material outside a
complaint generally is not to be taken into consideration on a motion to dismiss, the policy reasons favoring liberal
construction of pro se complaints permit a court to consider allegations of a pro se plaintiff in opposition papers on a
motion where ... those allegations are consistent with the complaint.").
1985). In 1980, Plaintiff and two other men, Luis Pinto and James Marsan, had broken into an
apartment when two police officers arrived on the scene. Plaintiff and Marsan fired on the
officers, killing one of them and hitting one of the apartment's residents in the eye, permanently
blinding her. Plaintiff himself was shot in the arm during the exchange of gunfire. Am. Compl.
~~
6, 7; Def. Ex. A at 2.
Plaintiff was convicted based on numerous pieces of evidence. One was testimony that
blood found at the crime scene matched Plaintiffs. Pl. Ex. A. In addition, a number of
witnesses identified Plaintiff as the perpetrator in court, including three who identified him in a
pre-trial lineup. Def. Ex. A at 3. One witness, Morgan Perez, saw Plaintiff fleeing from the
scene and later saw him with a bloody arm and in possession of a revolver; Plaintiff admitted to
Perez that he had shot a police officer. Am. Compl.
~
7; Def. Ex. A at 3. Plaintiff was also
found throwing a revolver, later identified as the one used in the crime, out of his bathroom
window when he was arrested. Def. Ex. A at 3.
Plaintiff appealed his conviction to the First Department, which affirmed, finding that his
guilt "was convincingly established." Gonzalez, 494 N.Y.S.2d at 866. The New York Court of
Appeals denied leave to appeal. People v. Gonzalez, 67 N. Y.2d 651 (1986).
In 2002, Plaintiff filed a prose petition underN.Y. CPL§ 440.30(1-a), which allows a
prisoner seeking to vacate his conviction the opportunity to obtain DNA testing if a judge
determines that such testing would create a "reasonable probability that the verdict would have
been more favorable to the defendant." Plaintiff sought access to DNA testing on the blood
discovered at the crime scene, which he claimed was not his. On January 31, 2003, Plaintiffs
petition was denied by Justice Brenda Soloff, who concluded that whether or not the blood was
Plaintiffs, the other evidence against him was so "overwhelming" that DNA testing would not
2
create the "reasonable probability" of innocence required by New York law. Def Ex. A at 3.
Plaintiff filed a similar motion in 2010, seeking to challenge Justice Soloff' s conclusion based on
a purported retroactive change in the law. That motion was denied. Def. Ex. B.
On January 18, 2013, Plaintiff filed a prose Complaint in this Court under 42 U.S.C.
§ 1983, seeking DNA testing of the blood recovered at the crime scene. Specifically, he asks for
an injunction requiring Defendant to "release[] the biological evidence for DNA testing."
Comp!. at 5 Although Plaintiff indicates that he is willing-through "appellate counsel" 2-to
pay for any tests, he asks the Court to order an "independent agency" to actually perform them.
Am. Compl.
'if 12; Pl. Opp. at 2. Plaintiff claims that any tests performed on the blood at the time
of his trial, which were the subject of incriminating testimony, were unreliable, a product of
"faulty crime lab[o]ratories in the early '80s." Pl. Resp. at 4. He suggests that modern DNA
testing will furnish evidence of his innocence. Am. Compl.
'if'il 13-15.
Defendant moved to dismiss the Complaint on June 21, 2013. In response to Defendant's
motion, Plaintiff amended his Complaint, but Defendant subsequently informed the Court that he
would rely on his initially filed motion. On November 4, 2013, Plaintiff filed a "response" to
Defendant's motion, as well as a separate memorandum of law. Defendant did not file a reply.
II.
LEGAL STANDARD
When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure 12(b)(6), a court must accept as true all well-pleaded facts and draw all
reasonable inferences in the light most favorable to the non-moving party. See Kassner v. 2nd
Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). Although factual allegations are
therefore afforded a presumption of truth, a court is "not bound to accept as true a legal
2
Plaintiff, who is proceeding pro se, does not indicate who this counsel is.
3
conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). "To survive a motion to dismiss,
the plaintiffs pleading must contain sufficient factual matter, accepted as true, to 'state a claim
to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570).
As well as allegations in the complaint itself, a court may consider documents attached as
exhibits, incorporated by reference, or relied upon by the plaintiff in bringing suit, as well as
judicially noticeable matters. See Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011); Jn re
Harbinger Capital Partners Funds Investor Litig., No. 12 Civ. 1244 (AJN), 2013 WL 5441754,
at* 15 n.6 (S.D.N.Y. Sept. 30, 2013). "If a document relied on in the complaint contradicts
allegations in the complaint, the document ... control[s], and the court need not accept the
allegations in the complaint as true." Tu/America, Inc. v. Diamond, -
F. Supp. 2d-, No. 12
Civ. 3529 (AJN), 2013 WL 4830954, at *1 (S.D.N.Y. Sept. 10, 2013) (quoting Poindexter v.
EM! Record Grp. Inc., No. 11 Civ. 559 (LTS), 2012 WL 1027639, at *2 (S.D.N.Y. Mar. 27,
2012)) (internal quotation marks omitted).
Finally, "[i]t is well established that the submissions of a prose litigant must be
construed liberally and interpreted 'to raise the strongest arguments that they suggest.'"
Triestman v. Fed Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis omitted)
(quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)); see Watson v. Geithner, No. 11
Civ. 9527 (AJN), 2013 WL 5441748, at *3 (S.D.N.Y. Sept. 27, 2013). This policy is "driven by
the understanding that '[i]mplicit in the right of self-representation is an obligation on the part of
the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
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important rights because of their lack of legal training."' Triestman, 470 F.3d at 475 (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
III.
DISCUSSION
As an initial matter, it is uncontested that a civil action brought under § 1983 is a proper
vehicle for a convicted prisoner seeking access to potentially exculpatory DNA evidence. See
Skinner v. Switzer, 131 S. Ct. 1289, 1298-1300 (2011). Section 1983 creates a cause of action
against a state actor for the "deprivation of any rights, privileges, or immunities secured by the
Constitution and laws." 42 U.S.C. § 1983 (emphasis added). Despite the statute's expansive
language, a state prisoner seeking relief that will "necessarily imply" the invalidity of his
sentence must bring an action in habeas corpus under 28 U.S.C. § 2254, and is barred from
utilizing§ 1983. Heckv. Humphrey, 512 U.S. 477, 487 (1994); see also Poventudv. City of New
York, -
F.3d-, 2014 WL 182313, at *4-11 (2d Cir. Jan. 16, 2014) (en bane). However, post-
conviction DNA testing does not necessarily imply the invalidity of a prisoner's sentence,
because "while test results might prove exculpatory, that result is hardly inevitable." Skinner,
131 S. Ct. at 1298. Therefore, as Defendant recognizes, § 1983 is an appropriate vehicle for
Plaintiffs DNA-access claim. 3 Def. Br. at 7 n.3.
The merits of this case are squarely controlled by two precedents: District Attorney's
Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009), and McKithen v. Brown,
626 F.3d 143 (2d Cir. 2010). Those decisions require dismissal.
3
Notably, in both his Complaint and his Amended Complaint, Plaintiff appears to assert an actual innocence claim
in addition to his DNA-access claim. See Am. Comp!.~ 9; Comp!. at 2-3. To the extent that this claim is, in fact,
independent of Plaintiffs DNA-access claim-which is questionable-it is not the proper subject of a§ 1983 action.
See Dist. Atty 's Office for 3d Judicial Dist. v. Osborne, 557 U.S. 52, 71-72 (2009) (assuming an actual innocence
claim exists, it must be brought in habeas); Matthews v. Craven, 485 F. App'x 893, 893-94 (9th Cir. 2012)
("Matthews's claims are premised on his 'actual innocence' and success on the merits of these claims would
necessarily imply the invalidity of his confinement.").
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Osborne established the basic framework applicable to claims like Plaintiff's. That case,
similar to this one, involved an Alaska prisoner's § 1983 claim seeking access to post-conviction
DNA testing. The Supreme Court rejected the idea that there is a "freestanding ... constitutional
right of access" to such evidence. Osborne, 557 U.S. at 56. Instead, the Court looked to
established procedural due process law. Because "[p]rocess is not an end in itself," a claimant
must have an independent, cognizable liberty interest. Id. at 67. Only after identifying such an
interest can a court determine "what process (if any) is due" under the Fourteenth Amendment to
adequately protect it. Id.; see also, e.g., Conn. Bd. o.f Pardons v. Dumschat, 452 U.S. 458, 463
(1981) ("A state-created right can ... beget yet other rights to procedures essential to the
realization of the parent right. Plainly, however, the underlying right must have come into
existence before it can trigger due process protection." (citations omitted)).
The Court determined, based on Alaska statutes and case law, that Osborne enjoyed a
liberty interest "in demonstrating his innocence with new evidence under state law." Osborne,
557 U.S. at 68. In assessing what process was required to protect that interest, the Court held
that because Osborne was a convicted criminal seeking post-conviction relief, his claim should
be analyzed under the deferential standard applicable in that context. Id. at 68-69; see, e.g.,
Herrera v. Collins, 506 U.S. 390, 407-08 (1993); Medina v. California, 505 U.S. 437, 446
(1992). Under that standard, a state's procedures are constitutionally inadequate "only if they are
fundamentally inadequate to vindicate the substantive rights provided." Osborne, 557 U.S. at
69; see also Medina, 505 U.S. at 446, 448 (a state procedure is valid if it either "offends some
principle of justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental" or "transgresses any recognized principle of 'fundamental fairness' in operation"
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(quoting Patterson v. New York, 432 U.S. 197, 202 (1977); and Dowling v. United States, 493
U.S. 342, 352 (1990)) (some internal quotation marks omitted)).
Although Alaska, unlike many states, had not enacted specific laws regulating prisoners'
access to DNA testing, the Osborne Court held that there was "nothing inadequate" about how
the state's laws on post-conviction relief in general "apply to those who seek access to DNA
evidence." 557 U.S. at 69. Specifically, the Court found that Alaska's eligibility criteria for
obtaining DNA testing-viz., that the evidence was "newly available," "diligently pursued," and
"sufficiently material" to the prisoner's guilt or innocence-were "not inconsistent with the
'traditions and conscience of our people' or with 'any recognized principle of fundamental
fairness."' Id. at 70 (quoting Medina, 505 U.S. at 446, 448). Accordingly, the Court concluded
that Osborne did not have a valid § 1983 claim.
In this case, of course, the procedures governing Plaintiff's access to DNA evidence are a
matter of New York law. Like Osborne, Plaintiff holds a "state-created liberty interest in
demonstrating his innocence with newly discovered evidence." McKithen, 626 F.3d at 152.
That interest is a product of N. Y. CPL §§ 440. l 0.1 (g) and (g-1 ), which permit a prisoner to bring
a petition challenging his conviction on the basis of newly available evidence, including
"[fJorensic DNA testing." Therefore, the Court must determine whether New York's procedures
for vindicating that liberty interest are adequate.
In McKithen, the Second Circuit, relying on Osborne, held that they are. Under New
York law, where the petitioner has been convicted at trial, a court must "grant [an] application
for forensic DNA testing of ... evidence upon its determination that if a DNA test had been
conducted on such evidence, and if the results had been admitted in the trial resulting in the
judgment, there exists a reasonable probability that the verdict would have been more favorable
7
to the [petitioner]." N. Y. CPL§ 440.30.1-a(a)(l ). The McKithen court concluded that these
procedures were less restrictive than the ones upheld in Osborne, so it followed a fortiori that
they too were adequate. Whereas Alaska requires a prisoner to show "clearly and convincingly"
or "wndusivdy" that DNA testing would establish his innocence, New York's "reasonable
probability" standard is more petitioner-friendly. McKithen, 626 F.3d at 153-54. Nor was there
any other basis, in the Second Circuit's view, on which New York's procedures "sink to [the]
level of fundamental inadequacy" required by Osborne. Id. at 153; see also, e.g., Wesley v.
Alexander, No. 10 Civ. 245 (JG), 2010 WL 2710609, at *7 (E.D.N.Y. July 7, 2010); Figueroa v.
Morgenthau, No. 09 Civ. 4188 (DLC), 2009 WL 3852467, at *2-3 (S.D.N.Y. Nov. 18, 2009). In
short, McKithen establishes that New York's procedures do not violate Plaintiffs federal rights.
As a result, he has no claim under § 1983.
Notably, the Court has analyzed Plaintiffs claim as a facial challenge to the adequacy of
New York's post-conviction procedures. It is possible, of course, that Plaintiffs real complaint
is not with those procedures but instead with how they were applied to him. See Am. Compl. ii 9
(attacking "state court's denying DNA testing"). But to the extent that Plaintiffs claims
challenge the New York court's decision itself, the Court lacks subject matter jurisdiction under
the Rooker-Feldman doctrine. 4 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C.
Court ofAppeals v. Feldman, 460 U.S. 462 (1983). That doctrine requires abstention when "(1)
the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court
judgment, (3) the plaintiff invites district court review of that judgment, and (4) the state court
judgment was entered before the plaintiffs federal suit commenced." McKithen, 626 F.3d at
4
Defendant does not argue this point in his brief, but a Court has an "independent obligation" to inquire into subject
matter jurisdiction. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 125 (2d Cir. 2011).
8
154; see Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). As the
Second Circuit and other courts have held, an as-applied challenge to a denial of post-conviction
DNA testing "meets each of Rooker-Feldman's four elements." McKithen, 626 F.3d at 154-55;
uccurd Cooper v. Ramos, 704 F.3tl 772, 777-81 (9th Cir. 2012); Alvarez v. Att'y Gen. of Fla.,
679 F.3d 1257, 1262-64 (I Ith Cir. 2012); Wagner v. Dist. Att'y ofAllegheny Cnty., Pa., No. 11762, 2012 WL 2090093, at *5 (W.D. Pa. May 21, 2012) (collecting cases); cf Skinner, 131 S. Ct.
at 1298 ("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"). Therefore, in this Court,
Plaintiff may challenge only New York's procedures, not the state court decisions applying those
procedures to him.
IV.
CONCLUSION
Because Osborne and McKithen conclusively establish that Plaintiff's claim fails on the
merits, the Court need not address Defendant's argument that this action is barred by the statute
of limitations. For the reasons stated above, Defendant's motion is granted, and Plaintiff's claim
is DISMISSED. The Clerk of Court is requested to terminate this case.
SO ORDERED.
Dated:
February~
2014
New York, New York
United States District Judge
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