Cobbs v. Chiapete et al

Filing 37

ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS signed by Chief Judge William C. Griesbach on 8/28/18. The 26 Motion to Dismiss is GRANTED and the case is DISMISSED. (cc: all counsel and via US Mail to Courtney Cobbs)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

COURTNEY COBBS,
Plaintiff,
v.

Case No. 18-C-338

RICHARD CHIAPETE, et al.,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Courtney Cobbs, who is currently representing himself and serving a state prison
sentence at Oshkosh Correctional Institution, filed this action pursuant to 42 U.S.C. § 1983,
challenging the constitutionality of Wis. Stat. § 974.07(6) and seeking to compel Defendants to allow
him to submit certain evidence for DNA testing related to his armed robbery conviction. The court
designated Magistrate Judge William E. Duffin to hear and determine any pretrial matter pending
before the court in accordance with 28 U.S.C. § 636(b)(1)(A) and (B). Defendants filed a motion
to dismiss on May 15, 2018. On July 19, 2018, Magistrate Judge Duffin submitted his Report and
Recommendation that Defendants’ motion to dismiss be granted. Cobbs filed a timely objection.
For the reasons below, the court overrules Cobbs’ objections and adopts Magistrate Judge Duffin’s
Report and Recommendation.
The Supreme Court has recognized that there is no substantive due process right to DNA
testing and has concluded that a state’s implementation of certain procedural limitations, such as
establishing relevance, on access to DNA evidence is constitutionally permissible. See District
Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009). Here, Cobbs seeks to

test the blood collection kits containing swabs from a barbed wire fence and jean fibers, but he has
not established that the results of these tests would be relevant to the prosecution that resulted in his
conviction. As the trial court noted, DNA testing, regardless of its results, at most would have
provided further evidence against Cobbs, given the fact that it would not have excluded him as one
of the bank robbers. He had no due process right to that evidence within the meaning of Osborne.
For this reason, and the reasons set forth in the Magistrate Judge’s report and recommendation, the
motion to dismiss (ECF No. 26) is GRANTED and the case dismissed. The Clerk is directed to
enter judgment accordingly.
SO ORDERED this 28th day of August, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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