Pickens v. District Court of Tulsa County et al

Filing 12

OPINION AND ORDER by Judge James H Payne , dismissing/terminating case (terminates case) (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

DARRIN LYNN PICKENS,

)
)
Plaintiff,
)
)
v.
)
)
STEVE KUNZWEILER,
)
District Attorney for Tulsa County;
)
DISTRICT COURT OF TULSA COUNTY, )
)
Defendants.
)

Case No. 15-CV-504-JHP-PJC

OPINION AND ORDER
On August 28, 2015, Plaintiff, a prisoner appearing pro se, filed a 42 U.S.C. § 1983 civil
rights complaint (Dkt. #1) requesting DNA testing of evidence in his state criminal case under
Oklahoma’s Postconviction DNA Act. For the reasons discussed below, this action shall be
dismissed for failure to state a claim upon which relief may be granted.
BACKGROUND
Plaintiff was convicted in Tulsa County District Court (TCDC), Case No. CF-1990-717, of
Robbery with a Firearm, After Former Conviction of a Felony; Shooting with Intent to Kill, After
Former Conviction of a Felony; Assault with Intent to Kill, After Former Conviction of a Felony;
and First Degree Murder. Dkt. #1 at 97. Plaintiff was sentenced to death on the murder conviction.
His convictions and sentences were affirmed by the Oklahoma Court of Criminal Appeals (OCCA)
on direct appeal. The OCCA also denied Plaintiff’s request for post-conviction relief.
Plaintiff proceeded to seek habeas corpus relief from his convictions and sentences in federal
court. After this Court denied relief, the Tenth Circuit Court of Appeals reversed, granting habeas
relief from the death sentence. Pickens v. Gibson, 206 F.3d 988, 996-97 (10th Cir. 2000). The case

was remanded to TCDC for a new sentencing trial. Petitioner waived jury trial on resentencing in
exchange for a sentence of life imprisonment without the possibility of parole.
After filing multiple unsuccessful applications for post-conviction relief, Plaintiff filed his
first motion requesting DNA testing in TCDC on November 4, 2013. (Dkt. # 1 at 92). On March
17, 2014, TCDC denied the motion because Plaintiff failed to attach the required affidavit and,
therefore, was not eligible for DNA testing pursuant to Okla. Stat. tit. 22, § 1373.2.(C). Id. Plaintiff
did not appeal. Id. at 98. Instead, on March 28, 2014, Plaintiff filed a second motion. Id. 93. In
a thorough Order, id. at 84-95, TCDC denied the motion, finding as follows:
22 O.S. § 1373.4(A) states in pertinent part that “[a] court shall order DNA
testing only if the court finds the request for DNA testing is made to demonstrate the
innocence of the convicted person and is not made to [unreasonably] delay the
execution of the sentence or the administration of justice.[”]
The Court agrees with the State in that this appears to be the first instance
wherein the Petitioner has claimed that someone else committed the offenses for
which the Petitioner was convicted. The Petitioner did not testify at trial, or present
any kind of defense to the charges brought by the State of Oklahoma. Further,
neither in his direct appeal or his numerous applications for post-conviction relief has
the Petitioner made a claim of “actual innocence,” until now. Instead, the Petitioner
has consistently attacked [the] admissibility of his confessions admitted at trial; and
urged the ineffectiveness of both his trial and appellate counsel.
Further the Court agrees that with respect to the affidavit submitted by the
Petitioner with his request for DNA testing, the Petitioner would have the Court
believe that all in an effort to “protect” an individual whom the Petitioner does not
name, the Petitioner went to trial charged with the most serious of offenses and was
sentenced to death always knowing that he never committed these offenses. Of
course, as the State notes it is just as likely, and far more plausible that the Petitioner,
who is facing [] two separate life without parole sentences has simply concocted a
story in an effort to seek redress once again, this time through the recent legislative
enactment of the “Postconviction DNA Act.”
Based on the foregoing the Court finds that Petitioner’s request for DNA
testing is not made to demonstrate the innocence of the Petitioner and is in fact made
to unreasonably delay the execution of the Petitioner’s sentence and the
administration of justice.

2

Id. at 93-94 (footnote omitted). The district court also found that Plaintiff “has not raised an issue
in this second motion that either was nor or could not have been raised in his first post-conviction
motion requesting DNA testing.” Id. at 94. Plaintiff appealed and, on May 4, 2015, in Case No. PC2015-195, the OCCA imposed a procedural bar and, on that basis, affirmed TCDC’s order denying
Plaintiff’s motion. Id. at 100.
On August 28, 2015, Plaintiff filed the instant civil rights complaint (Dkt. # 1). In his
complaint, Plaintiff claims that investigators collected various items that may contain DNA evidence
during the investigation that followed his arrest and that “[t]o this day the Tulsa County district
[attorney’s] office [has] intentionally withheld those DNA results from Petitioner and the Court.”
Id. at 2-3. Plaintiff states that “[a]ll of that forensic DNA evidence still exist[s] and the [Plaintiff]
is requesting forensic DNA testing with new technology.” Id. at 3. In his request for relief, Plaintiff
seeks “[f]orensic DNA testing under new state law.” Id. at 4.
ANALYSIS
A.

Screening/Dismissal standards
Federal courts must engage in a preliminary screening of cases in which prisoners seek

redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A(a). The court must identify any cognizable claim and dismiss any claim which is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). To avoid dismissal for
failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present factual allegations,
assumed to be true, that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The complaint must contain “enough facts to state a claim

3

to relief that is plausible on its face.” Id. at 570. A court must accept all the well-pleaded
allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the
light most favorable to the plaintiff. Id. at 555. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to relief,” the cause of action should
be dismissed. Id. at 558. The Court applies the same standard of review for dismissals under 28
U.S.C. § 1915(e)(2)(B)(ii) that is employed for Federal Rule of Civil Procedure 12(b)(6) motions
to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).
Under this standard, the Court should liberally construe a pro se plaintiff’s complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The
generous construction the Court gives the pro se litigant’s allegations “does not relieve the plaintiff
of the burden of alleging sufficient facts on which a recognized legal claim could be based,” and it
is not “the proper function of the district court to assume the role of advocate for the pro se litigant.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A reviewing court need not accept “mere
conclusions characterizing pleaded facts,” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th
Cir. 1990) (citation omitted), and a court “will not supply additional factual allegations to round out
a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico,
113 F.3d 1170, 1175 (10th Cir. 1997) (citation omitted). Even so, “if the court can reasonably read
the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d
at 1110.

4

B.

DNA Testing
The Supreme Court has rejected the idea that individuals who have been convicted of crimes

have a substantive due process right to access DNA evidence. Dist. Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 72-74 (2009). Even though these individuals do not have a
substantive due process right to access DNA evidence, they may “have a liberty interest in
demonstrating [their] innocence with new evidence under state law.” Id. at 68. In Osborne, the
Supreme Court determined that an Alaska law, providing that “those who use ‘newly discovered
evidence’ to ‘establis[h] by clear and convincing evidence that [they are] innocent’ may obtain
‘vacation of [their] conviction or sentence in the interest of justice,’” created a liberty interest in
demonstrating innocence with new evidence. Id. While such a ‘state-created right can, in some
circumstances, beget yet other rights to procedures essential to the realization of the parent right,’
id., the Supreme Court held that a state has “flexibility in deciding what procedures are needed in
the context of postconviction relief.” Id. at 69. “Federal courts may upset a State’s postconviction
relief procedures only if they are fundamentally inadequate to vindicate the substantive rights
provided.” Id.
While the Court may consider challenges to state laws restricting individuals’ access to
potentially exculpatory DNA evidence on procedural due process grounds, this Court lacks subject
matter jurisdiction to hear a suit directly challenging a state court’s ruling. Skinner v. Switzer, 562
U.S. 521, 532 (2011) (“[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.” (citations and footnote
omitted)). The Rooker-Feldman doctrine precludes lower federal court review of a direct challenge
to a state court judgment. Id. at 531-33; McKithen v. Brown, 626 F.3d 143, 154-55 (2d Cir. 2010);

5

Cooper v. Ramos, 704 F.3d 772, 777-79 (9th Cir. 2012); Alvarez v. Attorney Gen. for Fla., 679 F.3d
1257, 1262-64 (11th Cir. 2012); Dawson v. Suthers, No. 14-CV-01919-MSK-NYW, 2015 WL
5525786 at *4 (D. Colo. Sept. 21, 2015) (unpublished).1 The Rooker-Feldman doctrine applies to
cases where “[t]he losing party in state court filed suit in a U.S. District Court after the state
proceedings ended, complaining of an injury caused by the state-court judgment and seeking federalcourt review and rejection of that judgment.” Skinner, 562 U.S. at 531 (footnote omitted). Lower
federal courts lack subject matter jurisdiction over such cases as Congress has ‘vest[ed] authority
to review a state court’s judgment solely in [the Supreme] Court.’ Id. at 532.
1. Challenge based on allegedly withheld evidence
As stated above, Plaintiff alleges that, during the investigation that preceded his criminal
convictions, law enforcement officers collected DNA evidence but “[t]o this day the Tulsa County
district attorney’s office [has] intentionally withheld those DNA results from Petitioner and the
Court.” Dkt. #1 at 3. The Court liberally construes Plaintiff’s complaint to allege a violation of
Brady v. Maryland, 373 U.S. 83 (1963). In Osborne, the Supreme Court held that states do not have
“an obligation to comply with the principles of Brady . . . . after the defendant [is] convicted and the
case is closed,” and Brady is inapplicable to situations where an individual seeks access to DNA
evidence after conviction. Osborne, 557 U.S. at 68. Relief under § 1983 cannot be granted on the
basis of an alleged Brady violation. Instead, Plaintiff’s remedy for any alleged Brady violation is
provided by habeas corpus. Skinner, 562 U.S. at 536-37.

1

This unpublished opinion is not precedential but is cited for its persuasive value. See Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
6

2. Challenge to state court judgment
Plaintiff alleges that after he “was arrested for first degree murder, robbery, assault with
intent, [and] shooting with intent,” investigators collected several items of DNA evidence. Dkt. #1
at 2-3. According to Plaintiff, “[a]ll of that forensic DNA evidence still [exists] and [Plaintiff] is
requesting forensic DNA testing with newer technology.” Id. at 3. Plaintiff filed two motions in
TCDC requesting DNA testing. Id. at 98. TCDC rejected both of Plaintiff’s motions, and the
OCCA affirmed TCDC’s denial of Plaintiff’s second motion.2 Id. at 98, 100.
To the extent Plaintiff asks this Court to review and overturn the state court rulings, this
Court lacks subject matter jurisdiction to address Plaintiff’s complaint. Skinner, 562 U.S. at 531-33.
Plaintiff’s claim is barred by the Rooker-Feldman doctrine as Plaintiff (1) filed suit in this Court
after the state proceedings ended, (2) complains that because of the state court judgment against him
he has not received the DNA testing to which he believes he is entitled, and (3) asks this Court to
review the state court’s judgment and reverse it, granting him the DNA testing under Oklahoma state
law. Id. at 531. Because this Court lacks jurisdiction to consider Plaintiff’s claim challenging the
state court judgment, the complaint fails to state a claim upon which relief may be granted.
3. Procedural due process
Even if the Court reads Plaintiff’s complaint to challenge the constitutionality of Oklahoma’s
statute providing for DNA testing on procedural due process grounds, the complaint fails to state
a claim upon which relief may be granted. To prevail on this claim, Plaintiff must first demonstrate
that state law created a liberty interest in demonstrating innocence with new evidence. See Osborne,
557 U.S. at 68. Here, Oklahoma’s Postconviction DNA Act provides that:

2

Plaintiff did not appeal TCDC’s denial of his first motion. Dkt. #1 at 98.
7

If the results of the forensic DNA testing conducted under the provisions of
this act are favorable to the petitioner, the court shall schedule a hearing to determine
the appropriate relief to be granted. Based on the results of the testing and any other
evidence presented at the hearing, the court shall thereafter enter any order that
serves the interests of justice including, but not limited to, any of the following:
1. An order setting aside or vacating the judgment of conviction . . . .
Okla. Stat. tit. 22, § 1373.5(A). Because it allows for the vacation of a conviction, or other
appropriate relief, upon a showing of favorable DNA test results, this statute is sufficient to create
a liberty interest in demonstrating innocence with new evidence. See Osborne, 557 U.S. at 68.
Second, the Court must determine whether the procedures established by the state are
fundamentally inadequate to allow “realization of the parent right.” Id. at 69. Because “[a] criminal
defendant proved guilty after a fair trial does not have the same liberty interests as a free man, . . .
. [t]he State accordingly has more flexibility in deciding what procedures are needed in the context
of postconviction relief.” Id. at 68-69. “[D]ue process does not dictat[e] the exact form” the
procedure for obtaining DNA testing must take, as long as it does not “offend[] some [fundamental]
principle of justice” or “transgresses any recognized principle of fundamental fairness in operation.”
Id. at 69 (internal quotation marks and citations omitted). In Osborne, the Supreme Court found
that, even though the Alaska statutes governing access to DNA testing placed limits on an offender’s
access to DNA evidence, the statute did not violate procedural due process where it “provide[d] a
substantive right to be released on a sufficiently compelling showing of new evidence that
establishes innocence[,] [] exempt[ed] such claims from otherwise applicable time limits,” and
provided a process for discovery. Id. at 69-70.
The Court cannot find that Oklahoma’s procedures are fundamentally inadequate to vindicate
the liberty interest in demonstrating innocence with new evidence. See id. at 69. An individual may

8

file a motion for DNA testing “[n]otwithstanding any other provision of law concerning
postconviction relief.” Okla. Stat. tit. 22, § 1373.2(A). Individuals may obtain DNA testing
regardless of whether they are incarcerated, pled guilty, or were deemed to have confessed to the
crime, if they comply with the other requirements of the statute. Id. Those requirements include
that the DNA evidence “[w]as not previously subjected to DNA testing; or . . . can be subjected to
testing with newer testing techniques that provide a reasonable likelihood of results that are more
accurate and probative than the results of the previous DNA test.” Id. § 1373.2(B). The individual
must also provide a sworn affidavit “containing statements of fact in support of the motion.” Id. §
1373.2(C). If the results of the DNA testing are favorable to the petitioner, the state district court
will hold a hearing, and the judge may order the conviction vacated. Okla. Stat. tit. 22, § 1373.5(A).
The Court finds that Oklahoma’s procedures “are not inconsistent with the traditions and conscience
of our people or with any recognized principle of fundamental fairness.” Osborne, 557 U.S. at 69-70
(internal quotation marks and citation omitted). Therefore, they do not violate procedural due
process. Because the complaint fails to state a claim for violation of Plaintiff’s procedural due
process rights, it shall be dismissed.
For the reasons stated above, Plaintiff’s complaint fails to state a claim upon which relief
may be granted and shall be dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
C. Second “prior occasion” under 28 U.S.C. § 1915(g)
Plaintiff has been granted leave to proceed in forma pauperis. See Dkt. # 4. His complaint
fails to state a claim upon which relief may be granted and is dismissed for that reason. This
dismissal shall count as Plaintiff’s second “prior occasion” under 28 U.S.C. § 1915(g) (providing
that “[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or

9

proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of serious physical injury”).3
ACCORDINGLY, IT IS HEREBY ORDERED that:
1.

Plaintiff’s complaint (Dkt. # 1) is dismissed without prejudice.

2.

The Clerk is directed to flag this dismissal as Plaintiff’s second “prior occasion” for
purposes of 28 U.S.C. § 1915(g).

3.

A separate judgment shall be entered in this matter.
DATED this 25th day of April, 2016.

3

On April 18, 2016, Plaintiff’s civil rights complaint, filed in N.D. Okla. Case No. 15-CV-503TCK-FHM, was dismissed without prejudice for failure to state a claim. That dismissal counted as
Plaintiff’s first “prior occasion” under 28 U.S.C. § 1915(g).
10