DISTRICT ATTORNEY’S OFFICE FOR THE THIRD JUDICIAL DISTRICT et al. v. OSBORNE

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52 OCTOBER TERM, 2008
Syllabus
DISTRICT ATTORNEY’S OFFICE FOR THE THIRD
JUDICIAL DISTRICT et al. v. OSBORNE
certiorari to the united states court of appeals for
the ninth circuit
No. 08–6. Argued March 2, 2009—Decided June 18, 2009
Respondent Osborne was convicted of sexual assault and other crimes in
state court. Years later, he filed this suit under 42 U. S. C. § 1983,
claiming he had a due process right to access the evidence used against
him in order to subject it to DNA testing at his own expense. The
Federal District Court first dismissed his claim under Heck v. Hum
phrey, 512 U. S. 477, holding that Osborne must proceed in habeas be
cause he sought to set the stage for an attack on his conviction. The
Ninth Circuit reversed, concluding that § 1983 was the proper vehicle
for Osborne’s claims. On remand, the District Court granted Osborne
summary judgment, concluding that he had a limited constitutional right
to the new testing under the unique and specific facts presented, i. e.,
that such testing had been unavailable at trial, that it could be accom
plished at almost no cost to the State, and that the results were likely
to be material. The Ninth Circuit affirmed, relying on the prosecutorial
duty to disclose exculpatory evidence under, e. g., Brady v. Maryland,
373 U. S. 83.
Held: Assuming Osborne’s claims can be pursued using § 1983, he has no
constitutional right to obtain postconviction access to the State’s evi
dence for DNA testing. Pp. 62–75.
(a) DNA testing has an unparalleled ability both to exonerate the
wrongly convicted and to identify the guilty. The availability of new
DNA-testing technologies, however, cannot mean that every criminal
conviction, or even every criminal conviction involving biological evi
dence, is suddenly in doubt. The task of establishing rules to harness
DNA’s power to prove innocence without unnecessarily overthrowing
the established criminal justice system belongs primarily to the legis
lature. See Washington v. Glucksberg, 521 U. S. 702, 719. Forty-six
States and the Federal Government have already enacted statutes deal
ing specifically with access to evidence for DNA testing. These laws
recognize the value of DNA testing but also the need for conditions on
accessing the State’s evidence. Alaska is one of a handful of States yet
to enact specific DNA-testing legislation, but Alaska courts are address
ing how to apply existing discovery and postconviction relief laws to
this novel technology. Pp. 62–65.

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Syllabus
(b) The Court assumes without deciding that the Ninth Circuit was
correct that Heck does not bar Osborne’s § 1983 claim. That claim
can be rejected without resolving the proper application of Heck.
P. 67.
(c) The Ninth Circuit erred in finding a due process violation.
Pp. 67–75.
(1) While Osborne does have a liberty interest in pursuing the post
conviction relief granted by the State, the Ninth Circuit erred in extend
ing the Brady right of pretrial disclosure to the postconviction context.
Osborne has already been found guilty and therefore has only a limited
liberty interest in postconviction relief. See, e. g., Herrera v. Collins,
506 U. S. 390, 399. Instead of the Brady inquiry, the question is
whether consideration of Osborne’s claim within the framework of the
State’s postconviction relief procedures “offends some [fundamental]
principle of justice” or “transgresses any recognized principle of fun
damental fairness in operation.” Medina v. California, 505 U. S. 437,
446, 448. Federal courts may upset a State’s postconviction relief
procedures only if they are fundamentally inadequate to vindicate the
substantive rights provided.
There is nothing inadequate about Alaska’s postconviction relief pro
cedures in general or its methods for applying those procedures to per
sons seeking access to evidence for DNA testing. The State provides
a substantive right to be released on a sufficiently compelling showing
of new evidence that establishes innocence. It also provides for discov
ery in postconviction proceedings, and has—through judicial decision—
specified that such discovery is available to those seeking access to evi
dence for DNA testing. These procedures are similar to those provided
by federal law and the laws of other States, and they satisfy due process.
The same is true for Osborne’s reliance on a claimed federal right to be
released upon proof of “actual innocence.” Even assuming such a right
exists, which the Court has not decided and does not decide, there is no
due process problem, given the procedures available to access evidence
for DNA testing. Pp. 67–72.
(2) The Court rejects Osborne’s invitation to recognize a freestand
ing, substantive due process right to DNA evidence untethered from
the liberty interests he hopes to vindicate with it. In the circumstances
of this case, there is no such right. Generally, the Court is “reluctant
to expand the concept of substantive due process because guideposts
for responsible decisionmaking in this unchartered area are scarce and
open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125. There is
no long history of a right of access to state evidence for DNA testing
that might prove innocence. “The mere novelty of such a claim is rea
son enough to doubt that ‘substantive due process’ sustains it.” Reno

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54 DISTRICT ATTORNEY’S OFFICE FOR THIRD
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Syllabus
v. Flores, 507 U. S. 292, 303. Moreover, to suddenly constitutionalize
this area would short circuit what has been a prompt and considered
legislative response by Congress and the States. It would shift to the
Federal Judiciary responsibility for devising rules governing DNA ac
cess and creating a new constitutional code of procedures to answer the
myriad questions that would arise. There is no reason to suppose that
federal courts’ answers to those questions will be any better than those
of state courts and legislatures, and good reason to suspect the opposite.
See, e. g., Collins, supra, at 125. Pp. 72–75.
521 F. 3d 1118, reversed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which Scalia,
Kennedy, Thomas, and Alito, JJ., joined. Alito, J., filed a concurring
opinion, in which Kennedy, J., joined, and in which Thomas, J., joined as
to Part II, post, p. 75. Stevens, J., filed a dissenting opinion, in which
Ginsburg and Breyer, JJ., joined, and in which Souter, J., joined as to
Part I, post, p. 87. Souter, J., filed a dissenting opinion, post, p. 103.
Kenneth M. Rosenstein, Assistant Attorney General of
Alaska, argued the cause for petitioners. With him on the
briefs were Richard A. Svobodny, Acting Attorney General,
Talis J. Colberg, former Attorney General, Diane L. Wend
landt, Assistant Attorney General, Roy T. Englert, Jr., and
Alan E. Untereiner.
Deputy Solicitor General Katyal argued the cause for the
United States as amicus curiae urging reversal. On the
brief were former Solicitor General Garre, Acting Assistant
Attorney General Friedrich, former Deputy Solicitor Gen
eral Joseffer, and Curtis E. Gannon.
Peter J. Neufeld argued the cause for respondent. With
him on the brief were Barry C. Scheck, Nina R. Morrison,
David T. Goldberg, Kannon K. Shanmugam, Anna-Rose
Mathieson, Robert C. Bundy, and Randall S. Cavanaugh.*
*Briefs of amici curiae urging reversal were filed for the State of Cali
fornia et al. by Edmund G. Brown, Jr., Attorney General of California,
Dane R. Gillette, Chief Assistant Attorney General, Donald E. de Nicola,
Deputy Solicitor General, Gerald A. Engler, Senior Assistant Attorney
General, and Enid A. Camps and Michael Chamberlain, Deputy Attor
neys General, by John D. Seidel, Senior Assistant Attorney General of

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Opinion of the Court
Chief Justice Roberts delivered the opinion of the
Court.
DNA testing has an unparalleled ability both to exonerate
the wrongly convicted and to identify the guilty. It has the
potential to significantly improve both the criminal justice
system and police investigative practices. The Federal Gov
ernment and the States have recognized this, and have de
veloped special approaches to ensure that this evidentiary
tool can be effectively incorporated into established criminal
procedure—usually but not always through legislation.
Against this prompt and considered response, the respond
ent, William Osborne, proposes a different approach: the rec-
Colorado, and by the Attorneys General for their respective States as
follows: Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John
W. Suthers of Colorado, Joseph R. “Beau” Biden III of Delaware, Bill
McCollum of Florida, Lawrence G. Wasden of Idaho, Thomas J. Miller of
Iowa, Steve Six of Kansas, Jack Conway of Kentucky, James D. “Buddy”
Caldwell of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of
Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan,
Lori Swanson of Minnesota, Jon Bruning of Nebraska, Kelly A. Ayotte
of New Hampshire, Gary K. King of New Mexico, Wayne Stenehjem of
North Dakota, W. A. Drew Edmondson of Oklahoma, Hardy Myers of
Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of
Rhode Island, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr.,
of Tennessee, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia,
Robert M. McKenna of Washington, J. B. Van Hollen of Wisconsin, and
Bruce A. Salzburg of Wyoming; for the City of New York by Michael A.
Cardozo, Leonard J. Koerner, Edward F. X. Hart, and Drake A. Colley;
for the Council of State Governments et al. by Richard Ruda; and for
K. G. et al. by Paul G. Cassell.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Walter Dellinger, Irving L. Gornstein,
Shannon M. Pazur, Steven R. Shapiro, John W. Whitehead, and Barbara
E. Bergman; for Current and Former Prosecutors by Donald B. Ayer; for
Eleven Individuals Who Have Received Clemency Through DNA Testing
by Jeffrey L. Fisher, Pamela S. Karlan, Lawrence C. Marshall, Amy
Howe, Kevin K. Russell, and Thomas C. Goldstein; for Individuals Exon
erated by Post-Conviction DNA Testing by Paul A. Engelmayer; and for
Jeanette Popp et al. by Kenneth W. Starr and Mark T. Cramer.

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56 DISTRICT ATTORNEY’S OFFICE FOR THIRD
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ognition of a freestanding and far-reaching constitutional
right of access to this new type of evidence. The nature of
what he seeks is confirmed by his decision to file this lawsuit
in federal court under 42 U. S. C. § 1983, not within the state
criminal justice system. This approach would take the de
velopment of rules and procedures in this area out of the
hands of legislatures and state courts shaping policy in a fo
cused manner and turn it over to federal courts applying the
broad parameters of the Due Process Clause. There is no
reason to constitutionalize the issue in this way. Because
the decision below would do just that, we reverse.
I
A
This lawsuit arose out of a violent crime committed 16
years ago, which has resulted in a long string of litigation in
the state and federal courts. On the evening of March 22,
1993, two men driving through Anchorage, Alaska, solicited
sex from a female prostitute, K. G. She agreed to perform
fellatio on both men for $100 and got in their car. The three
spent some time looking for a place to stop and ended up in
a deserted area near Earthquake Park. When K. G. de
manded payment in advance, the two men pulled out a gun
and forced her to perform fellatio on the driver while the
passenger penetrated her vaginally, using a blue condom she
had brought. The passenger then ordered K. G. out of the
car and told her to lie face-down in the snow. Fearing for
her life, she refused, and the two men choked her and beat
her with the gun. When K. G. tried to flee, the passenger
beat her with a wooden axe handle and shot her in the head
while she lay on the ground. They kicked some snow on top
of her and left her for dead. 521 F. 3d 1118, 1122 (CA9 2008)
(case below); Osborne v. State, 163 P. 3d 973, 975–976 (Alaska
App. 2007) (Osborne II ); App. 27, 42–44.
K. G. did not die; the bullet had only grazed her head.
Once the two men left, she found her way back to the road,

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and flagged down a passing car to take her home. Ulti
mately, she received medical care and spoke to the police.
At the scene of the crime, the police recovered a spent shell
casing, the axe handle, some of K. G.’s clothing stained with
blood, and the blue condom. Jackson v. State, No. A–5276
etc. (Alaska App., Feb. 7, 1996), App. to Pet. for Cert. 117a.
Six days later, two military police officers at Fort Richard
son pulled over Dexter Jackson for flashing his headlights at
another vehicle. In his car they discovered a gun (which
matched the shell casing), as well as several items K. G. had
been carrying the night of the attack. Id., at 116a, 118a–
119a. The car also matched the description K. G. had given
to the police. Jackson admitted that he had been the driver
during the rape and assault, and told the police that William
Osborne had been his passenger. 521 F. 3d, at 1122–1123;
423 F. 3d 1050, 1051–1052 (CA9 2005); Osborne v. State, 110
P. 3d 986, 990 (Alaska App. 2005) (Osborne I ). Other evi
dence also implicated Osborne. K. G. picked out his pho
tograph (with some uncertainty) and at trial she identified
Osborne as her attacker. Other witnesses testified that
shortly before the crime, Osborne had called Jackson from
an arcade, and then driven off with him. An axe handle sim
ilar to the one at the scene of the crime was found in Os
borne’s room on the military base where he lived.
The State also performed DQ Alpha testing on sperm
found in the blue condom. DQ Alpha testing is a relatively
inexact form of DNA testing that can clear some wrongly
accused individuals, but generally cannot narrow the perpe
trator down to less than 5% of the population. See Dept. of
Justice, National Comm’n on the Future of DNA Evidence,
The Future of Forensic DNA Testing 17 (NCJ 183697, 2000)
(hereinafter Future of Forensic DNA Testing); Dept. of Jus
tice, National Comm’n on the Future of DNA Evidence, Post
conviction DNA Testing: Recommendations for Handling Re
quests 27 (NCJ 177626, 1999) (hereinafter Postconviction
DNA Testing). The semen found on the condom had a geno

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type that matched a blood sample taken from Osborne, but
not ones from Jackson, K. G., or a third suspect named James
Hunter. Osborne is black, and approximately 16% of black
individuals have such a genotype. App. 117–119. In other
words, the testing ruled out Jackson and Hunter as possible
sources of the semen, and also ruled out over 80% of other
black individuals. The State also examined some pubic
hairs found at the scene of the crime, which were not suscep
tible to DQ Alpha testing, but which state witnesses attested
to be similar to Osborne’s. App. to Pet. for Cert. 117a.
B
Osborne and Jackson were convicted by an Alaska jury of
kidnaping, assault, and sexual assault. They were acquitted
of an additional count of sexual assault and of attempted
murder. Finding it “ ‘nearly miraculous’ ” that K. G. had
survived, the trial judge sentenced Osborne to 26 years in
prison, with 5 suspended. Id., at 128a. His conviction and
sentence were affirmed on appeal. Id., at 113a–130a.
Osborne then sought postconviction relief in Alaska state
court. He claimed that he had asked his attorney, Sid
ney Billingslea, to seek more discriminating restriction
fragment-length-polymorphism (RFLP) DNA testing during
trial, and argued that she was constitutionally ineffective for
not doing so.1 Billingslea testified that after investigation,
she had concluded that further testing would do more harm
than good. She planned to mount a defense of mistaken
identity, and thought that the imprecision of the DQ Alpha
test gave her “ ‘very good numbers in a mistaken identity,
cross-racial identification case, where the victim was in the
1 RFLP testing, unlike DQ Alpha testing, “has a high degree of discrimi
nation,” although it is sometimes ineffective on small samples. Postcon
viction DNA Testing 26–27; Future of Forensic DNA Testing 14–16. Bil
lingslea testified that she had no memory of Osborne making such a
request, but said she was “ ‘willing to accept’ ” that he had. Osborne I,
110 P. 3d 986, 990 (Alaska App. 2005).

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dark and had bad eyesight.’ ” Osborne I, 110 P. 3d, at 990.
Because she believed Osborne was guilty, “ ‘insisting on a
more advanced . . . DNA test would have served to prove
that Osborne committed the alleged crimes.’ ” Ibid. The
Alaska Court of Appeals concluded that Billingslea’s decision
had been strategic and rejected Osborne’s claim. Id., at
991–992.
In this proceeding, Osborne also sought the DNA testing
that Billingslea had failed to perform, relying on an Alaska
postconviction statute, Alaska Stat. § 12.72 (2008), and the
State and Federal Constitutions. In two decisions, the
Alaska Court of Appeals concluded that Osborne had no
right to the RFLP test. According to the court, § 12.72 “ap
parently” did not apply to DNA testing that had been avail
able at trial.2 Osborne I, 110 P. 3d, at 992–993. The court
found no basis in our precedents for recognizing a federal
constitutional right to DNA evidence. Id., at 993. After a
remand for further findings, the Alaska Court of Appeals
concluded that Osborne could not claim a state constitutional
right either, because the other evidence of his guilt was too
strong and RFLP testing was not likely to be conclusive.
Osborne II, 163 P. 3d, at 979–981. Two of the three judges
wrote separately to say that “[i]f Osborne could show that
he were in fact innocent, it would be unconscionable to
punish him,” and that doing so might violate the Alaska
Constitution. Id., at 984–985 (Mannheimer, J., concurring).
The court relied heavily on the fact that Osborne had con
fessed to some of his crimes in a 2004 application for parole—
in which it is a crime to lie. Id., at 978–979, 981 (majority
opinion) (citing Alaska Stat. § 11.56.210 (2002)). In this
statement, Osborne acknowledged forcing K. G. to have sex
at gunpoint, as well as beating her and covering her with
2 It is not clear whether the Alaska Court of Appeals was correct that
Osborne sought only forms of DNA testing that had been available at
trial, compare id., at 992, 995, with 521 F. 3d 1118, 1123, n. 2 (CA9 2008),
but it resolved the case on that basis.

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snow. 163 P. 3d, at 977–978, n. 11. He repeated this confes
sion before the parole board. Despite this acceptance of re
sponsibility, the board did not grant him discretionary parole.
App. to Pet. for Cert. 8a. In 2007, he was released on man
datory parole, but he has since been rearrested for another
offense, and the State has petitioned to revoke this parole.
Brief for Petitioners 7, n. 3.
Meanwhile, Osborne had also been active in federal court,
suing state officials under 42 U. S. C. § 1983. He claimed
that the Due Process Clause and other constitutional provi
sions gave him a constitutional right to access the DNA evi
dence for what is known as short-tandem-repeat (STR) test
ing (at his own expense). App. 24. This form of testing is
more discriminating than the DQ Alpha or RFLP methods
available at the time of Osborne’s trial.3 The District Court
first dismissed the claim under Heck v. Humphrey, 512 U. S.
477 (1994), holding it “inescapable” that Osborne sought to
“set the stage” for an attack on his conviction, and therefore
“must proceed through a writ of habeas corpus.” App. 207
(internal quotation marks omitted). The United States
Court of Appeals for the Ninth Circuit reversed, concluding
that § 1983 was the proper vehicle for Osborne’s claims, while
“express[ing] no opinion as to whether Osborne ha[d] been
deprived of a federally protected right.” 423 F. 3d, at 1056.
On cross-motions for summary judgment after remand, the
District Court concluded that “there does exist, under the
unique and specific facts presented, a very limited constitu
tional right to the testing sought.” 445 F. Supp. 2d 1079,
3 STR testing is extremely discriminating, can be used on small samples,
and is “rapidly becoming the standard.” Future of Forensic DNA Testing
18, n. 9. Osborne also sought to subject the pubic hairs to mitochondrial
DNA testing, a secondary testing method often used when a sample can
not be subjected to other tests. See Postconviction DNA Testing 28. He
argues that “[a]ll of the same arguments that support access to the condom
for STR testing support access to the hairs for mitochondrial testing as
well,” Brief for Respondent 11, n. 4, and we treat the claim accordingly.

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1081 (2006) (some emphasis deleted). The court relied on
several factors: that the testing Osborne sought had been
unavailable at trial, that the testing could be accomplished
at almost no cost to the State, and that the results were
likely to be material. Id., at 1081–1082. It therefore
granted summary judgment in favor of Osborne.
The Court of Appeals affirmed, relying on the prosecuto
rial duty to disclose exculpatory evidence recognized in
Pennsylvania v. Ritchie, 480 U. S. 39 (1987), and Brady v.
Maryland, 373 U. S. 83 (1963). While acknowledging that
our precedents “involved only the right to pre-trial disclo
sure,” the court concluded that the Due Process Clause also
“extends the government’s duty to disclose (or the defend
ant’s right of access) to post-conviction proceedings.” 521
F. 3d, at 1128. Although Osborne’s trial and appeals were
over, the court noted that he had a “potentially viable” state
constitutional claim of “actual innocence,” id., at 1130, and
relied on the “well-established assumption” that a similar
claim arose under the Federal Constitution, id., at 1131;
cf. Herrera v. Collins, 506 U. S. 390 (1993). The court held
that these potential claims extended some of the State’s
Brady obligations to the postconviction context.
The court declined to decide the details of what showing
must be made to access the evidence because it found “Os
borne’s case for disclosure . . . so strong on the facts” that
“[w]herever the bar is, he crosses it.” 521 F. 3d, at 1134.
While acknowledging that Osborne’s prior confessions were
“certainly relevant,” the court concluded that they did not
“necessarily trum[p] . . . the right to obtain post-conviction
access to evidence” in light of the “emerging reality of
wrongful convictions based on false confessions.” Id., at
1140.
We granted certiorari to decide whether Osborne’s claims
could be pursued using § 1983, and whether he has a right
under the Due Process Clause to obtain postconviction ac
cess to the State’s evidence for DNA testing. 555 U. S. 992

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(2008); Pet. for Cert. i. We now reverse on the latter
ground.
II
Modern DNA testing can provide powerful new evidence
unlike anything known before. Since its first use in criminal
investigations in the mid-1980s, there have been several
major advances in DNA technology, culminating in STR
technology. It is now often possible to determine whether
a biological tissue matches a suspect with near certainty.
While of course many criminal trials proceed without any
forensic and scientific testing at all, there is no technology
comparable to DNA testing for matching tissues when such
evidence is at issue. Postconviction DNA Testing 1–2; Fu
ture of Forensic DNA Testing 13–14. DNA testing has ex
onerated wrongly convicted people, and has confirmed the
convictions of many others.
At the same time, DNA testing alone does not always re
solve a case. Where there is enough other incriminating ev
idence and an explanation for the DNA result, science alone
cannot prove a prisoner innocent. See House v. Bell, 547
U. S. 518, 540–548 (2006). The availability of technologies
not available at trial cannot mean that every criminal convic
tion, or even every criminal conviction involving biological
evidence, is suddenly in doubt. The dilemma is how to har
ness DNA’s power to prove innocence without unnecessarily
overthrowing the established system of criminal justice.
That task belongs primarily to the legislature. “[T]he
States are currently engaged in serious, thoughtful examina
tions,” Washington v. Glucksberg, 521 U. S. 702, 719 (1997),
of how to ensure the fair and effective use of this testing
within the existing criminal justice framework. Forty-six
States have already enacted statutes dealing specifically
with access to DNA evidence. See generally Brief for State
of California et al. as Amici Curiae 3–13; Garrett, Claiming
Innocence, 92 Minn. L. Rev. 1629, 1719 (2008) (surveying
state statutes); see also An Act to Improve the Preservation

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and Accessibility of Biological Evidence, Mississippi S. 2709
(enacted March 16, 2009); An Act to Provide for DNA Test
ing for Certain Inmates for the Purposes of Determining
Whether They May Have Been Wrongfully Convicted, South
Dakota H. R. 1166 (enacted March 11, 2009). The State of
Alaska itself is considering joining them. See An Act Relat
ing to Post-conviction DNA Testing, H. 174, 26th Leg., 1st
Sess. (2009) (proposed legislation similar to that enacted by
the States). The Federal Government has also passed the
Innocence Protection Act of 2004, § 411, 118 Stat. 2278, codi
fied in part at 18 U. S. C. § 3600, which allows federal prison
ers to move for court-ordered DNA testing under certain
specified conditions. That Act also grants money to States
that enact comparable statutes, § 413, 118 Stat. 2285, note
following 42 U. S. C. § 14136, and as a consequence has served
as a model for some state legislation. At oral argument, Os
borne agreed that the federal statute is a model for how
States ought to handle the issue. Tr. of Oral Arg. 33, 38–39;
see also Brief for United States as Amicus Curiae 19–26
(defending constitutionality of Innocence Protection Act).
These laws recognize the value of DNA evidence but also
the need for certain conditions on access to the State’s evi
dence. A requirement of demonstrating materiality is com
mon, e. g., 18 U. S. C. § 3600(a)(8), but it is not the only one.
The federal statute, for example, requires a sworn statement
that the applicant is innocent. § 3600(a)(1). This require
ment is replicated in several state statutes. E. g., Cal. Penal
Code Ann. §§ 1405(b)(1), (c)(1) (West Supp. 2009); Fla. Stat.
§ 925.11(2)(a)(3) (2007); N. H. Rev. Stat. Ann. § 651–D:2(I)(b)
(West 2007); S. C. Code Ann. § 17–28–40 (Supp. 2008).
States also impose a range of diligence requirements. Sev
eral require the requested testing to “have been technologi
cally impossible at trial.” Garrett, supra, at 1681, and
n. 242. Others deny testing to those who declined testing
at trial for tactical reasons. E. g., Utah Code Ann. § 78B–9–
301(4) (Lexis 2008).

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Alaska is one of a handful of States yet to enact legislation
specifically addressing the issue of evidence requested for
DNA testing. But that does not mean that such evidence is
unavailable for those seeking to prove their innocence. In
stead, Alaska courts are addressing how to apply existing
laws for discovery and postconviction relief to this novel
technology. See Osborne I, 110 P. 3d, at 992–993; Patterson
v. State, No. A–8814, 2006 WL 573797, *4 (Alaska App., Mar.
8, 2006). The same is true with respect to other States that
do not have DNA-specific statutes. E. g., Fagan v. State,
957 So. 2d 1159 (Ala. Crim. App. 2007). Cf. Mass. Rule
Crim. Proc. 30(c)(4) (2009).
First, access to evidence is available under Alaska law for
those who seek to subject it to newly available DNA testing
that will prove them to be actually innocent. Under the
State’s general postconviction relief statute, a prisoner may
challenge his conviction when “there exists evidence of mate
rial facts, not previously presented and heard by the court,
that requires vacation of the conviction or sentence in
the interest of justice.” Alaska Stat. § 12.72.010(4) (2008).
Such a claim is exempt from otherwise applicable time limits
if “newly discovered evidence,” pursued with due diligence,
“establishes by clear and convincing evidence that the appli
cant is innocent.” § 12.72.020(b)(2).
Both parties agree that under these provisions of § 12.72,
“a defendant is entitled to post-conviction relief if the defend
ant presents newly discovered evidence that establishes by
clear and convincing evidence that the defendant is inno
cent.” Osborne I, supra, at 992 (internal quotation marks
omitted). If such a claim is brought, state law permits gen
eral discovery. See Alaska Rule Crim. Proc. 35.1(g) (2008–
2009). Alaska courts have explained that these procedures
are available to request DNA evidence for newly available
testing to establish actual innocence. See Patterson, supra,
at *4 (“If Patterson had brought the DNA analysis request
as part of his previous application for [postconviction]

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relief . . . he would have been able to request production
of evidence”).
In addition to this statutory procedure, the Alaska Court
of Appeals has invoked a widely accepted three-part test to
govern additional rights to DNA access under the State Con
stitution. Osborne II, 163 P. 3d, at 974–975. Drawing on
the experience with DNA evidence of State Supreme Courts
around the country, the Court of Appeals explained that it
was “reluctant to hold that Alaska law offers no remedy to
defendants who could prove their factual innocence.” Os
borne I, 110 P. 3d, at 995; see id., at 995, n. 27 (citing decisions
from other state courts). It was “prepared to hold, however,
that a defendant who seeks post-conviction DNA testing . . .
must show (1) that the conviction rested primarily on eye
witness identification evidence, (2) that there was a demon
strable doubt concerning the defendant’s identification as the
perpetrator, and (3) that scientific testing would likely be
conclusive on this issue.” Id., at 995. Thus, the Alaska
courts have suggested that even those who do not get discov
ery under the State’s criminal rules have available to them
a safety valve under the State Constitution.
This is the background against which the Federal Court of
Appeals ordered the State to turn over the DNA evidence
in its possession, and it is our starting point in analyzing
Osborne’s constitutional claims.
III
The parties dispute whether Osborne has invoked the
proper federal statute in bringing his claim. He sued under
the federal civil rights statute, 42 U. S. C. § 1983, which gives
a cause of action to those who challenge a State’s “depriva
tion of any rights . . . secured by the Constitution.” The
State insists that Osborne’s claim must be brought under 28
U. S. C. § 2254, which allows a prisoner to seek “a writ of
habeas corpus . . . on the ground that he is in custody in
violation of the Constitution.”

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While Osborne’s claim falls within the literal terms of
§ 1983, we have also recognized that § 1983 must be read in
harmony with the habeas statute. See Preiser v. Rodri
guez, 411 U. S. 475, 500 (1973); Heck, 512 U. S., at 487.
“Stripped to its essence,” the State says, “Osborne’s § 1983
action is nothing more than a request for evidence to support
a hypothetical claim that he is actually innocent. . . . [T]his
hypothetical claim sounds at the core of habeas corpus.”
Brief for Petitioners 19.
Osborne responds that his claim does not sound in habeas
at all. Although invalidating his conviction is of course his
ultimate goal, giving him the evidence he seeks “would not
necessarily imply the invalidity of [his] confinement.” Brief
for Respondent 21. If he prevails, he would receive only
access to the DNA, and even if DNA testing exonerates him,
his conviction is not automatically invalidated. He must
bring an entirely separate suit or a petition for clemency to
invalidate his conviction. If he were proved innocent, the
State might also release him on its own initiative, avoiding
any need to pursue habeas at all.
Osborne also invokes our recent decision in Wilkinson v.
Dotson, 544 U. S. 74 (2005). There, we held that prisoners
who sought new hearings for parole eligibility and suitability
need not proceed in habeas. We acknowledged that the two
plaintiffs “hope[d]” their suits would “help bring about ear
lier release,” id., at 78, but concluded that the § 1983 suit
would not accomplish that without further proceedings.
“Because neither prisoner’s claim would necessarily spell
speedier release, neither l[ay] at the core of habeas corpus.”
Id., at 82 (internal quotation marks omitted). Every Court
of Appeals to consider the question since Dotson has decided
that because access to DNA evidence similarly does not “nec
essarily spell speedier release,” ibid., it can be sought under
§ 1983. See 423 F. 3d, at 1055–1056; Savory v. Lyons, 469
F. 3d 667, 672 (CA7 2006); McKithen v. Brown, 481 F. 3d 89,
103, and n. 15 (CA2 2007). On the other hand, the State

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argues that Dotson is distinguishable because the challenged
procedures in that case did not affect the ultimate “exercise
of discretion by the parole board.” Brief for Petitioners 32.
It also maintains that Dotson does not set forth “the exclu
sive test for whether a prisoner may proceed under § 1983.”
Brief for Petitioners 32.
While we granted certiorari on this question, our resolu
tion of Osborne’s claims does not require us to resolve this
difficult issue. Accordingly, we will assume without decid
ing that the Court of Appeals was correct that Heck does not
bar Osborne’s § 1983 claim. Even under this assumption, it
was wrong to find a due process violation.
IV
A
“No State shall . . . deprive any person of life, liberty, or
property, without due process of law.” U. S. Const., Amdt.
14, § 1; accord, Amdt. 5. This Clause imposes procedural
limitations on a State’s power to take away protected entitle
ments. See, e. g., Jones v. Flowers, 547 U. S. 220, 226–239
(2006). Osborne argues that access to the State’s evidence
is a “process” needed to vindicate his right to prove himself
innocent and get out of jail. Process is not an end in itself,
so a necessary premise of this argument is that he has an
entitlement (what our precedents call a “liberty interest”) to
prove his innocence even after a fair trial has proved other
wise. We must first examine this asserted liberty interest
to determine what process (if any) is due. See Board of
Regents of State Colleges v. Roth, 408 U. S. 564, 570–571
(1972); Olim v. Wakinekona, 461 U. S. 238, 250–251 (1983).
In identifying his potential liberty interest, Osborne first
attempts to rely on the Governor’s constitutional authority
to “grant pardons, commutations, and reprieves.” Alaska
Const., Art. III, § 21. That claim can be readily disposed
of. We have held that noncapital defendants do not have
a liberty interest in traditional state executive clemency,

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to which no particular claimant is entitled as a matter of
state law. Connecticut Bd. of Pardons v. Dumschat, 452
U. S. 458, 464 (1981). Osborne therefore cannot challenge
the constitutionality of any procedures available to vindicate
an interest in state clemency.
Osborne does, however, have a liberty interest in demon
strating his innocence with new evidence under state law.
As explained, Alaska law provides 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.”
Alaska Stat. §§ 12.72.020(b)(2), 12.72.010(4). This “state
created right can, in some circumstances, beget yet other
rights to procedures essential to the realization of the parent
right.” Dumschat, supra, at 463; see also Wolff v. McDon
nell, 418 U. S. 539, 556–558 (1974).
The Court of Appeals went too far, however, in concluding
that the Due Process Clause requires that certain familiar
preconviction trial rights be extended to protect Osborne’s
postconviction liberty interest. After identifying Osborne’s
possible liberty interests, the court concluded that the State
had an obligation to comply with the principles of Brady v.
Maryland, 373 U. S. 83. In that case, we held that due proc
ess requires a prosecutor to disclose material exculpatory
evidence to the defendant before trial. The Court of Ap
peals acknowledged that nothing in our precedents sug
gested that this disclosure obligation continued after the de
fendant was convicted and the case was closed, 521 F. 3d, at
1128, but it relied on prior Ninth Circuit precedent applying
“Brady as a post-conviction right,” ibid. (citing Thomas v.
Goldsmith, 979 F. 2d 746, 749–750 (1992)). Osborne does not
claim that Brady controls this case, Brief for Respondent
39–40, and with good reason.
A criminal defendant proved guilty after a fair trial does
not have the same liberty interests as a free man. At trial,
the defendant is presumed innocent and may demand that

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the government prove its case beyond reasonable doubt.
But “[o]nce a defendant has been afforded a fair trial and
convicted of the offense for which he was charged, the pre
sumption of innocence disappears.” Herrera, 506 U. S., at
399. “Given a valid conviction, the criminal defendant has
been constitutionally deprived of his liberty.” Dumschat,
supra, at 464 (internal quotation marks and alterations
omitted).
The State accordingly has more flexibility in deciding what
procedures are needed in the context of postconviction relief.
“[W]hen a State chooses to offer help to those seeking relief
from convictions,” due process does not “dictat[e] the exact
form such assistance must assume.” Pennsylvania v. Fin
ley, 481 U. S. 551, 559 (1987). Osborne’s right to due process
is not parallel to a trial right, but rather must be analyzed
in light of the fact that he has already been found guilty at
a fair trial, and has only a limited interest in postconviction
relief. Brady is the wrong framework.
Instead, the question is whether consideration of Os
borne’s claim within the framework of the State’s procedures
for postconviction relief “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.” Medina v.
California, 505 U. S. 437, 446, 448 (1992) (internal quotation
marks omitted); see Herrera, supra, at 407–408 (applying
Medina to postconviction relief for actual innocence); Finley,
supra, at 556 (postconviction relief procedures are constitu
tional if they “compor[t] with fundamental fairness”). Fed
eral courts may upset a State’s postconviction relief proce
dures only if they are fundamentally inadequate to vindicate
the substantive rights provided.
We see nothing inadequate about the procedures Alaska
has provided to vindicate its state right to postconviction
relief in general, and nothing inadequate about how those
procedures apply to those who seek access to DNA evidence.

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Alaska provides a substantive right to be released on a
sufficiently compelling showing of new evidence that estab
lishes innocence. It exempts such claims from otherwise ap
plicable time limits. The State provides for discovery in
postconviction proceedings, and has—through judicial deci
sion—specified that this discovery procedure is available to
those seeking access to DNA evidence. Patterson, 2006 WL
573797, *4. These procedures are not without limits. The
evidence must indeed be newly available to qualify under
Alaska’s statute, must have been diligently pursued, and
must also be sufficiently material. These procedures are
similar to those provided for DNA evidence by federal law
and the law of other States, see, e. g., 18 U. S. C. § 3600(a),
and they are not inconsistent with the “traditions and con
science of our people” or with “any recognized principle of
fundamental fairness,” Medina, supra, at 446, 448 (internal
quotation marks omitted).
And there is more. While the Alaska courts have not had
occasion to conclusively decide the question, the Alaska
Court of Appeals has suggested that the State Constitution
provides an additional right of access to DNA. In express
ing its “reluctan[ce] to hold that Alaska law offers no rem
edy” to those who belatedly seek DNA testing, and in invok
ing the three-part test used by other state courts, the court
indicated that in an appropriate case the State Constitution
may provide a failsafe even for those who cannot satisfy the
statutory requirements under general postconviction proce
dures. Osborne I, 110 P. 3d, at 995–996.
To the degree there is some uncertainty in the details of
Alaska’s newly developing procedures for obtaining postcon
viction access to DNA, we can hardly fault the State for that.
Osborne has brought this § 1983 action without ever using
these procedures in filing a state or federal habeas claim re
lying on actual innocence. In other words, he has not tried
to use the process provided to him by the State or attempted
to vindicate the liberty interest that is now the centerpiece

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of his claim. When Osborne did request DNA testing in
state court, he sought RFLP testing that had been available
at trial, not the STR testing he now seeks, and the state
court relied on that fact in denying him testing under Alaska
law. Id., at 992 (“[T]he DNA testing that Osborne proposes
to perform on this evidence existed at the time of Osborne’s
trial”); Osborne II, 163 P. 3d, at 984 (Mannheimer, J., concur
ring) (“[T]he DNA testing [Osborne] proposes would not
yield ‘new evidence’ for purposes of . . . [Alaska Stat.
§ 12.72.010]” because it was “available at the time of Os
borne’s trial”).
His attempt to sidestep state process through a new fed
eral lawsuit puts Osborne in a very awkward position. If
he simply seeks the DNA through the State’s discovery pro
cedures, he might well get it. If he does not, it may be for
a perfectly adequate reason, just as the federal statute and
all state statutes impose conditions and limits on access to
DNA evidence. It is difficult to criticize the State’s proce
dures when Osborne has not invoked them. This is not to
say that Osborne must exhaust state-law remedies. See
Patsy v. Board of Regents of Fla., 457 U. S. 496, 500–501
(1982). But it is Osborne’s burden to demonstrate the inade
quacy of the state-law procedures available to him in state
postconviction relief. Cf. Medina, supra, at 453. These
procedures are adequate on their face, and without trying
them, Osborne can hardly complain that they do not work
in practice.
As a fallback, Osborne also obliquely relies on an asserted
federal constitutional right to be released upon proof of
“actual innocence.” Whether such a federal right exists is
an open question. We have struggled with it over the years,
in some cases assuming, arguendo, that it exists while also
noting the difficult questions such a right would pose and the
high standard any claimant would have to meet. House, 547
U. S., at 554–555; Herrera, 506 U. S., at 398–417; see also id.,
at 419–421 (O’Connor, J., concurring); id., at 427–428 (Scalia,

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J., concurring); Friendly, Is Innocence Irrelevant? Collateral
Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 159,
n. 87 (1970). In this case too we can assume without decid
ing that such a claim exists, because even if so there is no
due process problem. Osborne does not dispute that a fed
eral actual innocence claim (as opposed to a DNA access
claim) would be brought in habeas. Brief for Respondent
22–24. If such a habeas claim is viable, federal procedural
rules permit discovery “for good cause.” 28 U. S. C. § 2254
Rule 6; Bracy v. Gramley, 520 U. S. 899, 908–909 (1997).
Just as with state law, Osborne cannot show that available
discovery is facially inadequate, and cannot show that it
would be arbitrarily denied to him.
B
The Court of Appeals below relied only on procedural due
process, but Osborne seeks to defend the judgment on the
basis of substantive due process as well. He asks that we
recognize a freestanding right to DNA evidence untethered
from the liberty interests he hopes to vindicate with it. We
reject the invitation and conclude, in the circumstances of
this case, that there is no such substantive due process right.
“As a general matter, the Court has always been reluctant
to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchar
tered area are scarce and open-ended.” Collins v. Harker
Heights, 503 U. S. 115, 125 (1992). Osborne seeks access to
state evidence so that he can apply new DNA-testing tech
nology that might prove him innocent. There is no long his
tory of such a right, and “[t]he mere novelty of such a claim
is reason enough to doubt that ‘substantive due process’ sus
tains it.” Reno v. Flores, 507 U. S. 292, 303 (1993).
And there are further reasons to doubt. The elected gov
ernments of the States are actively confronting the chal
lenges DNA technology poses to our criminal justice systems
and our traditional notions of finality, as well as the opportu

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nities it affords. To suddenly constitutionalize this area
would short circuit what looks to be a prompt and considered
legislative response. The first DNA-testing statutes were
passed in 1994 and 1997. Act of Aug. 2, 1994, ch. 737, 1994
N. Y. Laws 3709 (codified at N. Y. Crim. Proc. Law Ann.
§ 440.30(1–a) (West 2005)); Act of May 9, 1997, Pub. Act
No. 90–141, 1997 Ill. Laws 2461 (codified at 725 Ill. Comp.
Stat., ch. 725, § 5/116–3(a) (West 2007)). In the past decade,
44 States and the Federal Government have followed suit,
reflecting the increased availability of DNA testing. As
noted, Alaska itself is considering such legislation. See
supra, at 64. “By extending constitutional protection to an
asserted right or liberty interest, we, to a great extent, place
the matter outside the arena of public debate and legislative
action. We must therefore exercise the utmost care when
ever we are asked to break new ground in this field.”
Glucksberg, 521 U. S., at 720 (internal quotation marks omit
ted). “[J]udicial imposition of a categorical remedy . . .
might pretermit other responsible solutions being considered
in Congress and state legislatures.” Murray v. Giarratano,
492 U. S. 1, 14 (1989) (Kennedy, J., concurring in judgment).
If we extended substantive due process to this area, we
would cast these statutes into constitutional doubt and be
forced to take over the issue of DNA access ourselves. We
are reluctant to enlist the Federal Judiciary in creating a
new constitutional code of rules for handling DNA.4
Establishing a freestanding right to access DNA evidence
for testing would force us to act as policymakers, and our
4 The dissent asserts that our position “resembles” Justice Harlan’s dis
sent in Miranda v. Arizona, 384 U. S. 436 (1966). Post, at 101, n. 10 (opin
ion of Stevens, J.). Miranda devised rules to safeguard a constitutional
right the Court had already recognized. Indeed, the underlying require
ment at issue in that case that confessions be voluntary had “roots” going
back centuries. Dickerson v. United States, 530 U. S. 428, 432–433 (2000).
In contrast, the asserted right to access DNA evidence is unrooted in
history or tradition, and would thrust the Federal Judiciary into an area
previously left to state courts and legislatures.

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substantive due process rulemaking authority would not
only have to cover the right of access but a myriad of other
issues. We would soon have to decide if there is a constitu
tional obligation to preserve forensic evidence that might
later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51,
56–58 (1988). If so, for how long? Would it be different for
different types of evidence? Would the State also have
some obligation to gather such evidence in the first place?
How much, and when? No doubt there would be a miscel
lany of other minor directives. See, e. g., Harvey v. Horan,
285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concur
ring in denial of rehearing).
In this case, the evidence has already been gathered and
preserved, but if we extend substantive due process to this
area, these questions would be before us in short order, and
it is hard to imagine what tools federal courts would use to
answer them. At the end of the day, there is no reason to
suppose that their answers to these questions would be any
better than those of state courts and legislatures, and good
reason to suspect the opposite. See Collins, supra, at 125;
Glucksberg, supra, at 720.
* * *
DNA evidence will undoubtedly lead to changes in the
criminal justice system. It has done so already. The ques
tion is whether further change will primarily be made by
legislative revision and judicial interpretation of the existing
system, or whether the Federal Judiciary must leap ahead—
revising (or even discarding) the system by creating a new
constitutional right and taking over responsibility for refin
ing it.
Federal courts should not presume that state criminal pro
cedures will be inadequate to deal with technological change.
The criminal justice system has historically accommodated
new types of evidence, and is a time-tested means of carrying
out society’s interest in convicting the guilty while respect

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ing individual rights. That system, like any human en
deavor, cannot be perfect. DNA evidence shows that it has
not been. But there is no basis for Osborne’s approach of
assuming that because DNA has shown that these proce
dures are not flawless, DNA evidence must be treated as
categorically outside the process, rather than within it.
That is precisely what his § 1983 suit seeks to do, and that is
the contention we reject.
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Alito, with whom Justice Kennedy joins, and
with whom Justice Thomas joins as to Part II, concurring.
Respondent was convicted for a brutal sexual assault. At
trial, the defense declined to have DNA testing done on a
semen sample found at the scene of the crime. Defense
counsel explained that this decision was made based on fear
that the testing would provide further evidence of respond
ent’s guilt. After conviction, in an unsuccessful attempt to
obtain parole, respondent confessed in detail to the crime.
Now, respondent claims that he has a federal constitutional
right to test the sample and that he can go directly to federal
court to obtain this relief without giving the Alaska courts
a full opportunity to consider his claim.
I agree with the Court’s resolution of respondent’s con
stitutional claim. In my view, that claim also fails for two
independent reasons beyond those given by the majority.
First, a state prisoner asserting a federal constitutional right
to perform such testing must file a petition for a writ of ha
beas corpus, not an action under Rev. Stat. § 1979, 42 U. S. C.
§ 1983, as respondent did here, and thus must exhaust state
remedies, see 28 U. S. C. § 2254(b)(1)(A). Second, even
though respondent did not exhaust his state remedies, his
claim may be rejected on the merits, see § 2254(b)(2), because

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a defendant who declines the opportunity to perform DNA
testing at trial for tactical reasons has no constitutional right
to perform such testing after conviction.
I
As our prior opinions illustrate, it is sometimes difficult to
draw the line between claims that are properly brought in
habeas and those that may be brought under 42 U. S. C.
§ 1983. See Preiser v. Rodriguez, 411 U. S. 475 (1973); Heck
v. Humphrey, 512 U. S. 477 (1994); Wilkinson v. Dotson, 544
U. S. 74 (2005). But I think that this case falls on the habeas
side of the line.
We have long recognized the principles of federalism and
comity at stake when state prisoners attempt to use the fed
eral courts to attack their final convictions. See, e. g., Darr
v. Burford, 339 U. S. 200, 204 (1950); Braden v. 30th Judicial
Circuit Court of Ky., 410 U. S. 484, 490–491 (1973); Preiser,
supra, at 491–492; Rose v. Lundy, 455 U. S. 509, 518–519
(1982); Rhines v. Weber, 544 U. S. 269, 273–274 (2005). We
accordingly held that “ ‘it would be unseemly in our dual sys
tem of government for a federal district court to upset a
state court conviction without an opportunity to the state
courts to correct a constitutional violation.’ ” Lundy, supra,
at 518 (quoting Darr, supra, at 204). Congress subsequently
codified Lundy’s exhaustion requirement in the Antiterror
ism and Effective Death Penalty Act of 1996 (AEDPA), 28
U. S. C. § 2254(b)(1)(A).
We also have long recognized the need to impose sharp
limits on state prisoners’ efforts to bypass state courts with
their discovery requests. See, e. g., Wainwright v. Sykes,
433 U. S. 72, 87–90 (1977); Keeney v. Tamayo-Reyes, 504 U. S.
1, 8–10 (1992); Williams v. Taylor, 529 U. S. 420, 436 (2000).
For example, we have held that “concerns of finality, comity,
judicial economy, and channeling the resolution of claims into
the most appropriate forum” require a state prisoner to show
“cause-and-prejudice” before asking a federal habeas court

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to hold an evidentiary hearing. Keeney, supra, at 8. That
result reduces opportunities for “ ‘sandbagging’ on the part
of defense lawyers,” Sykes, supra, at 89, and it “reduces the
‘inevitable friction’ that results when a federal habeas court
‘overturns either the factual or legal conclusions reached
by the state-court system,’ ” Keeney, supra, at 9 (quoting
Sumner v. Mata, 449 U. S. 539, 550 (1981); brackets omit
ted). Congress subsequently codified Keeney’s cause-and
prejudice rule in AEDPA, 28 U. S. C. § 2254(e)(2).
The rules set forth in our cases and codified in AEDPA
would mean very little if state prisoners could simply evade
them through artful pleading. For example, I take it as
common ground that a state prisoner’s claim under Brady v.
Maryland, 373 U. S. 83 (1963), must be brought in habeas
because that claim, if proved, would invalidate the judgment
of conviction or sentence (and thus the lawfulness of the in
mate’s confinement). See Heck, supra, at 481. But under
respondent’s view, I see no reason why a Brady claimant
could not bypass the state courts and file a § 1983 claim in
federal court, contending that he has a due process right to
search the State’s files for exculpatory evidence. Allowing
such a maneuver would violate the principles embodied in
Lundy, Keeney, and AEDPA.
Although respondent has now recharacterized his claim in
an effort to escape the requirement of proceeding in habeas,
in his complaint he squarely alleged that the State “deprived
[him] of access to exculpatory evidence in violation of
Brady[, supra], and the Due Process Clause of the Four
teenth Amendment to the U. S. Constitution.” App. 37.
That allegedly “exculpatory” evidence—which Brady defines
as “evidence favorable to [the] accused” and “material either
to guilt or to punishment,” 373 U. S., at 87—would, by defi
nition, undermine respondent’s “guilt” or “punishment” if his
allegations are true. Such claims should be brought in ha
beas, see Heck, supra, at 481, and respondent cannot avoid

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that result by attempting to bring his claim under § 1983, see
Dotson, supra, at 92 (Kennedy, J., dissenting).1
It is no answer to say, as respondent does, that he simply
wants to use § 1983 as a discovery tool to lay the foundation
for a future state postconviction application, a state clemency
petition, or a request for relief by means of “prosecutorial
consent.” See Brief for Respondent 23. Such tactics impli
cate precisely the same federalism and comity concerns that
motivated our decisions (and Congress’) to impose exhaus
tion requirements and discovery limits in federal habeas pro
ceedings. If a petitioner can evade the habeas statute’s ex
haustion requirements in this way, I see no reason why a
state prisoner asserting an ordinary Brady claim—i. e., a
state prisoner who claims that the prosecution failed to turn
over exculpatory evidence prior to trial—could not follow
the same course.
What respondent seeks was accurately described in his
complaint—the discovery of evidence that has a material
bearing on his conviction. Such a claim falls within “the
core” of habeas. Preiser, supra, at 489. Recognition of a
constitutional right to postconviction scientific testing of evi
dence in the possession of the prosecution would represent
an expansion of Brady and a broadening of the discovery
rights now available to habeas petitioners. See 28 U. S. C.
§ 2254 Rule 6. We have never previously held that a state
prisoner may seek discovery by means of a § 1983 action,
1 This case is quite different from Dotson. In that case, two state pris
oners filed § 1983 actions challenging the constitutionality of Ohio’s parole
procedures and seeking “a new parole hearing that may or may not result
in release, prescription of the composition of the hearing panel, and speci
fication of the procedures to be followed.” 544 U. S., at 86 (Scalia, J.,
concurring). Regardless of whether such remedies fall outside the au
thority of federal habeas judges, compare id., at 86–87, with id., at 88–92
(Kennedy, J., dissenting), there is no question that the relief respondent
seeks in this case—“exculpatory” evidence that tends to prove his inno
cence—lies “within the core of habeas corpus,” Preiser v. Rodriguez, 411
U. S. 475, 487 (1973).

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and we should not take that step here. I would hold that
respondent’s claim (like all other Brady claims) should be
brought in habeas.
II
The principles of federalism, comity, and finality are not
the only ones at stake for the State in cases like this one.
To the contrary, DNA evidence creates special opportunities,
risks, and burdens that implicate important state interests.
Given those interests—and especially in light of the rapidly
evolving nature of DNA testing technology—this is an area
that should be (and is being) explored “through the work
ings of normal democratic processes in the laboratories
of the States.” Atkins v. Virginia, 536 U. S. 304, 326 (2002)
(Rehnquist, C. J., dissenting).2
2 Forty-six States, plus the District of Columbia and the Federal Govern
ment, have recently enacted DNA testing statutes. See 18 U. S. C. § 3600;
Ariz. Rev. Stat. Ann. § 13–4240 (West 2001); Ark. Code Ann. § 16–112–202
(2006); Cal. Penal Code Ann. § 1405 (West Supp. 2009); Colo. Rev. Stat.
Ann. § 18–1–413 (2008); Conn. Gen. Stat. § 52–582 (2009); Del. Code Ann.,
Tit. 11, § 4504 (2007); D. C. Code § 22–4133 to § 22–4135 (2008 Supp.); Fla.
Stat. § 925.11 (2007); Ga. Code Ann. § 5–5–41 (Supp. 2008); Haw. Rev. Stat.
§ 844D–123 (2008 Cum. Supp.); Idaho Code § 19–4902 (Lexis 2004); Ill.
Comp. Stat., ch. 725, § 5/116–3 (West 2006); Ind. Code § 35–38–7–5 (West
2004); Iowa Code § 81.10 (2009); Kan. Stat. Ann. § 21–2512 (2007); Ky. Rev.
Stat. Ann. § 422.285 (Lexis Supp. 2008); La. Code Crim. Proc. Ann., Art.
926.1 (West Supp. 2009); Me. Rev. Stat. Ann., Tit. 15, § 2137 (Supp. 2008);
Md. Crim. Proc. Code Ann. § 8–201 (Lexis 2008); Mich. Comp. Laws Ann.
§ 770.16 (West Supp. 2009); Minn. Stat. § 590.01 (2008); Mo. Rev. Stat.
§ 547.035 (2008 Cum. Supp.); Mont. Code Ann. § 46–21–110 (2007); Neb.
Rev. Stat. § 29–4120 (2008); Nev. Rev. Stat. § 176.0918 (2007); N. H. Rev.
Stat. Ann. § 651–D:2 (2007); N. J. Stat. Ann. § 2A:84A–32a (West Supp.
2009); N. M. Stat. Ann. § 31–1A–2 (Supp. 2008); N. Y. Crim. Proc. Law Ann.
§ 440.30(1–a) (West 2005); N. C. Gen. Stat. Ann. § 15A–269 (Lexis 2007);
N. D. Cent. Code Ann. § 29–32.1–15 (Lexis 2006); Ohio Rev. Code Ann.
§ 2953.72 (Lexis Supp. 2009); Ore. Rev. Stat. § 138.690 (2007); 42 Pa. Cons.
Stat. § 9543.1 (2006); R. I. Gen. Laws § 10–9.1–11 (Lexis Supp. 2008); S. C.
Code Ann. § 17–28–30 (Supp. 2008); Tenn. Code Ann. § 40–30–304 (2006);
Tex. Code Crim. Proc. Ann., Arts. 64.01–64.05 (Vernon 2006 and Supp.
2008); Utah Code Ann. § 78B–9–300 to § 78B–9–304 (2008 Lexis Supp.); Vt.

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A
As the Court notes, DNA testing often produces highly
reliable results. See ante, at 62. Indeed, short tandem re
peat (STR) “DNA tests can, in certain circumstances, estab
lish to a virtual certainty whether a given individual did or
did not commit a particular crime.” Harvey v. Horan, 285
F. 3d 298, 305 (CA4 2002) (Luttig, J., respecting denial of
rehearing en banc). Because of that potential for “virtual
certainty,” Justice Stevens argues that the State should
welcome respondent’s offer to perform modern DNA testing
(at his own expense) on the State’s DNA evidence; the test
will either confirm respondent’s guilt (in which case the
State has lost nothing) or exonerate him (in which case the
State has no valid interest in detaining him). See post, at
97–98.
Alas, it is far from that simple. First, DNA testing—even
when performed with modern STR technology, and even
when performed in perfect accordance with protocols—often
Stat. Ann., Tit. 13, § 5561 (Supp. 2008); Va. Code Ann. § 19.2–327.1 (Lexis
2008); Wash. Rev. Code § 10.73.170 (2008); W. Va. Code Ann. § 15–2B–14
(Lexis Supp. 2008); Wis. Stat. § 974.07 (2005–2006); Wyo. Stat. Ann. § 7–12–
303 (2008 Supp.). The pace of the legislative response has been so fast
that two States have enacted statutes while this case was sub judice: The
Governor of South Dakota signed a DNA access law on March 11, 2009,
see H. R. 1166, and the Governor of Mississippi signed a DNA access law
on March 16, 2009, see S. 2709. The only States that do not have DNA
testing statutes are Alabama, Alaska, Massachusetts, and Oklahoma; and
at least three of those States have addressed the issue through judicial
decisions. See Fagan v. State, 957 So. 2d 1159 (Ala. Crim. App. 2007);
Osborne v. State, 110 P. 3d 986, 995 (Alaska App. 2005) (Osborne I); Com
monwealth v. Donald, 66 Mass. App. 1110, 848 N. E. 2d 447 (2006). Be
cause the Court relies on such evidence, Justice Stevens accuses it of
“resembl[ing]” Justice Harlan’s position in Miranda v. Arizona, 384 U. S.
436 (1966). See post, at 101, n. 10 (dissenting opinion) (quoting 384 U. S.,
at 523–524). I can think of worse things than sharing Justice Harlan’s
judgment that “this Court’s too rapid departure from existing constitu
tional standards” may “frustrat[e]” the States’ “long-range and lasting”
legislative efforts. Id., at 524.

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fails to provide “absolute proof ” of anything. Post, at 98
(Stevens, J., dissenting). As one scholar has observed:
“[F]orensic DNA testing rarely occurs [under] idyllic
conditions. Crime scene DNA samples do not come
from a single source obtained in immaculate conditions;
they are messy assortments of multiple unknown per
sons, often collected in the most difficult conditions.
The samples can be of poor quality due to exposure
to heat, light, moisture, or other degrading elements.
They can be of minimal or insufficient quantity, espe
cially as investigators push DNA testing to its limits and
seek profiles from a few cells retrieved from cigarette
butts, envelopes, or soda cans. And most importantly,
forensic samples often constitute a mixture of multiple
persons, such that it is not clear whose profile is whose,
or even how many profiles are in the sample at all. All
of these factors make DNA testing in the forensic con
text far more subjective than simply reporting test
results . . . .” Murphy, The Art in the Science of DNA:
A Layperson’s Guide to the Subjectivity Inherent in Fo
rensic DNA Typing, 58 Emory L. J. 489, 497 (2008) (foot
notes omitted).
See also R. Michaelis, R. Flanders, & P. Wulff, A Litigator’s
Guide to DNA 341 (2008) (hereinafter Michaelis) (noting that
even “STR analyses are plagued by issues of suboptimal
samples, equipment malfunctions and human error, just as
any other type of forensic DNA test”); Harvey v. Horan, 278
F. 3d 370, 383, n. 4 (CA4 2002) (King, J., concurring in part
and concurring in judgment) (noting that the first STR DNA
test performed under Virginia’s postconviction DNA access
statute was inconclusive). Such concerns apply with partic
ular force where, as here, the sample is minuscule, it may
contain three or more persons’ DNA, and it may have de
graded significantly during the 24 or more hours it took po
lice to recover it.

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Second, the State has important interests in maintaining
the integrity of its evidence, and the risks associated with
evidence contamination increase every time someone at
tempts to extract new DNA from a sample. According to
Professor John Butler—who is said to have written “the ca
nonical text on forensic DNA typing,” Murphy, supra, at 493,
n. 16—“[t]he extraction process is probably where the DNA
sample is more susceptible to contamination in the labora
tory than at any other time in the forensic DNA analysis
process,” J. Butler, Forensic DNA Typing 42 (2d ed. 2005).
Indeed, modern DNA testing technology is so powerful
that it actually increases the risks associated with mishan
dling evidence. STR tests, for example, are so sensitive
that they can detect DNA transferred from person X to a
towel (with which he wipes his face), from the towel to Y
(who subsequently wipes his face), and from Y’s face to a
murder weapon later wielded by Z (who can use STR tech
nology to blame X for the murder). See Michaelis 62–64;
Thompson, Ford, Doom, Raymer, & Krane, Evaluating Fo
rensic DNA Evidence: Essential Elements of a Competent
Defense Review (Part 2), The Champion, May 2003,
pp. 25–26. Any test that is sensitive enough to pick up such
trace amounts of DNA will be able to detect even the slight
est, unintentional mishandling of evidence. See Michaelis 63
(cautioning against mishandling evidence because “two re
search groups have already demonstrated the ability to ob
tain STR profiles from fingerprints on paper or evidence
objects”). And that is to say nothing of the intentional
DNA-evidence-tampering scandals that have surfaced in re
cent years. See, e. g., Murphy, The New Forensics: Criminal
Justice, False Certainty, and the Second Generation of Scien
tific Evidence, 95 Cal. L. Rev. 721, 772–773 (2007) (collecting
examples). It gives short shrift to such risks to suggest
that anyone—including respondent, who has twice confessed
to his crime, has never recanted, and passed up the opportu
nity for DNA testing at trial—should be given a never

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before-recognized constitutional right to rummage through
the State’s genetic-evidence locker.
Third, even if every test was guaranteed to provide a con
clusive answer, and even if no one ever contaminated a DNA
sample, that still would not justify disregarding the other
costs associated with the DNA access regime proposed by
respondent. As the Court notes, recognizing a prisoner’s
freestanding right to access the State’s DNA evidence would
raise numerous policy questions, not the least of which is
whether and to what extent the State is constitutionally obli
gated to collect and preserve such evidence. See ante,
at 73–74. But the policy problems do not end there.
Even without our creation and imposition of a mandatory
DNA-access regime, state crime labs are already responsible
for maintaining and controlling hundreds of thousands of
new DNA samples every year. For example, in the year
2005, the State of North Carolina processed DNA samples
in approximately 1,900 cases, while the Commonwealth
of Virginia processed twice as many. See Office of State
Budget and Management, Cost Study of DNA Testing and
Analysis As Directed by Session Law 2005–267, Section 15.8,
pp. 5, 8 (Mar. 1, 2006) (hereinafter North Carolina Study),
http://www.osbm.state.nc.us/files/pdf_files/3-1-2006FinalDNA
Report.pdf (all Internet materials as visited June 16, 2009,
and available in Clerk of Court’s case file); see also id., at 8
(noting that the State of Iowa processed DNA samples in
1,500 cases in that year). Each case often entails many sep
arate DNA samples. See Wisconsin Criminal Justice Study
Commission, Position Paper: Decreasing the Turnaround
Time for DNA Testing, p. 2 (hereinafter Wisconsin Study),
http://www.wcjsc.org/WCJSC_Report_on_DNA_Backlog.pdf
(“An average case consists of 8 samples”). And these data—
which are now four years out of date—dramatically under
estimate the States’ current DNA-related caseloads, which
expand at an average annual rate of around 24%. See Wis
consin Dept. of Justice, Review of State Crime Lab Re

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sources for DNA Analysis 6 (Feb. 12, 2007), http://www.doj.
state.wi.us/news/files/dnaanalysisplan.pdf.
The resources required to process and analyze these hun
dreds of thousands of samples have created severe backlogs
in state crime labs across the country. For example, the
State of Wisconsin reports that it receives roughly 17,600
DNA samples per year, but its labs can process only 9,600.
Wisconsin Study 2. Similarly, the State of North Carolina
reports that “[i]t is not unusual for the [State] Crime Lab to
have several thousand samples waiting to be outsourced due
to the federal procedures for [the State’s] grant. This is not
unique to North Carolina but a national issue.” North Caro
lina Study 9.
The procedures that the state labs use to handle these hun
dreds of thousands of DNA samples provide fertile ground
for litigation. For example, in Commonwealth v. Duarte, 56
Mass. App. 714, 723, 780 N. E. 2d 99, 106 (2002), the defend
ant argued that “the use of a thermometer that may have
been overdue for a standardization check rendered the DNA
analysis unreliable and inadmissible” in his trial for raping a
13-year-old girl. The court rejected that argument and held
“that the status of the thermometer went to the weight of
the evidence, and not to its admissibility,” id., at 724, 780
N. E. 2d, at 106, and the court ultimately upheld Duarte’s
conviction after reviewing the testimony of the deputy direc
tor of the laboratory that the Commonwealth used for the
DNA tests, see ibid. But the case nevertheless illustrates
“that no detail of laboratory operation, no matter how min
ute, is exempt as a potential point on which a defense attor
ney will question the DNA evidence.” Michaelis 68; see also
id., at 68–69 (discussing the policy implications of Duarte).
My point in recounting the burdens that postconviction
DNA testing imposes on the Federal Government and the
States is not to denigrate the importance of such testing.
Instead, my point is that requests for postconviction DNA
testing are not cost free. The Federal Government and the

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States have a substantial interest in the implementation of
rules that regulate such testing in a way that harnesses the
unique power of DNA testing while also respecting the im
portant governmental interests noted above. The Federal
Government and the States have moved expeditiously to
enact rules that attempt to perform this role. And as the
Court holds, it would be most unwise for this Court, wielding
the blunt instrument of due process, to interfere prematurely
with these efforts.
B
I see no reason for such intervention in the present case.
When a criminal defendant, for tactical purposes, passes up
the opportunity for DNA testing at trial, that defendant, in
my judgment, has no constitutional right to demand to per
form DNA testing after conviction. Recognition of such a
right would allow defendants to play games with the crimi
nal justice system. A guilty defendant could forgo DNA
testing at trial for fear that the results would confirm his
guilt, and in the hope that the other evidence would be insuf
ficient to persuade the jury to find him guilty. Then, after
conviction, with nothing to lose, the defendant could demand
DNA testing in the hope that some happy accident—for ex
ample, degradation or contamination of the evidence—would
provide the basis for seeking postconviction relief. Denying
the opportunity for such an attempt to game the criminal
justice system should not shock the conscience of the Court.
There is ample evidence in this case that respondent at
tempted to game the system. At trial, respondent’s lawyer
made an explicit, tactical decision to forgo restriction
fragment-length-polymorphism (RFLP) testing in favor of
less reliable DQ Alpha testing. Having forgone more accu
rate DNA testing once before, respondent’s reasons for seek
ing it now are suspect. It is true that the STR testing re
spondent now seeks is even more advanced than the RFLP
testing he declined—but his counsel did not decline RFLP
testing because she thought it was not good enough; she de

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clined because she thought it was too good. Osborne I, 110
P. 3d 986, 990 (Alaska App. 2005). “[A] defendant should not
be allowed to take a gambler’s risk and complain only if the
cards [fall] the wrong way.” Osborne v. State, 163 P. 3d 973,
984 (Alaska App. 2007) (Mannheimer, J., concurring) (inter
nal quotation marks omitted).
Justice Stevens contends that respondent should not be
bound by his attorney’s tactical decision and notes that re
spondent testified in the state postconviction proceeding that
he strongly objected to his attorney’s strategy. See post, at
97–98, n. 8. His attorney, however, had no memory of that
objection, and the state court did not find that respondent’s
testimony was truthful.3 Nor do we have reason to assume
that respondent was telling the truth, particularly since he
now claims that he lied at his parole hearing when he twice
confessed to the crimes for which he was convicted.
In any event, even assuming for the sake of argument that
respondent did object at trial to his attorney’s strategy, it is
a well-accepted principle that, except in a few carefully de
fined circumstances, a criminal defendant is bound by his at
torney’s tactical decisions unless the attorney provided con
stitutionally ineffective assistance. See Vermont v. Brillon,
556 U. S. 81, 90–91 (2009).4 Here, the state postconviction
3 The state court noted that respondent’s trial counsel “ ‘disbelieved Os
borne’s statement that he did not commit the crime’ ” and therefore
“ ‘elected to avoid the possibility of obtaining DNA test results that might
have confirmed Osborne’s culpability.’ ” Osborne I, 110 P. 3d, at 990.
Given the reasonableness of trial counsel’s judgment, the state court held
that respondent’s protestations (whether or not he made them) were irrel
evant. Id., at 991–992.
4 In adopting rules regarding postconviction DNA testing, the Federal
and State Governments may choose to alter the traditional authority of
defense counsel with respect to DNA testing. For example, the federal
statute provides that a prisoner’s declination of DNA testing at trial bars
a request for postconviction testing only if the prisoner knowingly and
voluntarily waived that right in a proceeding occurring after the enact
ment of the federal statute. 18 U. S. C. § 3600(a)(3)(A)(i). But Alaska has
specifically decided to retain the general rule regarding the authority of

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court rejected respondent’s ineffective-assistance claim, Os
borne I, supra, at 991–992; respondent does not challenge
that holding; and we must therefore proceed on the assump
tion that his attorney’s decision was reasonable and binding.5
* * *
If a state prisoner wants to challenge the State’s refusal
to permit postconviction DNA testing, the prisoner should
proceed under the habeas statute, which duly accounts for
the interests of federalism, comity, and finality. And in con
sidering the merits of such a claim, the State’s weighty inter
ests cannot be summarily dismissed as “ ‘arbitrary, or con
science shocking.’ ” Post, at 96–97 (Stevens, J., dissenting).
With these observations, I join the opinion of the Court.
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, and with whom Justice Souter joins
as to Part I, dissenting.
The State of Alaska possesses physical evidence that, if
tested, will conclusively establish whether respondent Wil
liam Osborne committed rape and attempted murder. If he
did, justice has been served by his conviction and sentence.
If not, Osborne has needlessly spent decades behind bars
while the true culprit has not been brought to justice. The
DNA test Osborne seeks is a simple one, its cost modest, and
defense counsel. See Osborne I, supra, at 991–992 (citing Simeon v. State,
90 P. 3d 181, 184 (Alaska App. 2004)).
5 Justice Stevens is quite wrong to suggest that the application of this
familiar principle in the present context somehow lessens the prosecution’s
burden to prove a defendant’s guilt. Post, at 97–98, n. 8 (citing Sandstrom
v. Montana, 442 U. S. 510 (1979); In re Winship, 397 U. S. 358 (1970)).
Respondent is not challenging the sufficiency of the State’s evidence at
trial. Rather, he claims that he has a right to obtain evidence that may
be useful to him in a variety of postconviction proceedings. The principle
that the prosecution must prove its case beyond a reasonable doubt and
the principle that a defendant has no obligation to prove his innocence are
not implicated in any way by the issues in this case.

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its results uniquely precise. Yet for reasons the State has
been unable or unwilling to articulate, it refuses to allow
Osborne to test the evidence at his own expense and to
thereby ascertain the truth once and for all.
On two equally problematic grounds, the Court today
blesses the State’s arbitrary denial of the evidence Osborne
seeks. First, while acknowledging that Osborne may have
a due process right to access the evidence under Alaska’s
postconviction procedures, the Court concludes that Osborne
has not yet availed himself of all possible avenues for relief
in state court.1 As both a legal and factual matter, that con
clusion is highly suspect. More troubling still, based on a
fundamental mischaracterization of the right to liberty that
Osborne seeks to vindicate, the Court refuses to acknowl
edge “in the circumstances of this case” any right to access
the evidence that is grounded in the Due Process Clause it
self. Because I am convinced that Osborne has a constitu
tional right of access to the evidence he wishes to test and
that, on the facts of this case, he has made a sufficient show
ing of entitlement to that evidence, I would affirm the deci
sion of the Court of Appeals.
I
The Fourteenth Amendment provides that “[n]o State
shall . . . deprive any person of life, liberty, or property, with
out due process of law.” § 1. Our cases have frequently
1 Because the Court assumes, arguendo, that Osborne’s claim was prop
erly brought under 42 U. S. C. § 1983, rather than by an application for the
writ of habeas corpus, I shall state only that I agree with the Ninth Cir
cuit’s endorsement of Judge Luttig’s analysis of that issue. See 423 F. 3d
1050, 1053–1055 (2005) (citing Harvey v. Horan, 285 F. 3d 298, 308–309
(CA4 2002) (opinion respecting denial of rehearing en banc)); see also
McKithen v. Brown, 481 F. 3d 89, 98 (CA2 2007) (agreeing that a claim
seeking postconviction access to evidence for DNA testing may be prop
erly brought as a § 1983 suit); Savory v. Lyons, 469 F. 3d 667, 669 (CA7
2006) (same); Bradley v. Pryor, 305 F. 3d 1287, 1290–1291 (CA11 2002)
(same).

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recognized that protected liberty interests may arise “from
the Constitution itself, by reason of guarantees implicit in
the word ‘liberty,’ . . . or it may arise from an expectation
or interest created by state laws or policies.” Wilkinson v.
Austin, 545 U. S. 209, 221 (2005). Osborne contends that he
possesses a right to access DNA evidence arising from both
these sources.
Osborne first anchors his due process right in Alaska Stat.
§ 12.72.010(4) (2008). Under that provision, a person who
has been “convicted of, or sentenced for, a crime may insti
tute a proceeding for post-conviction relief if the person
claims . . . that there exists evidence of material facts, not
previously presented and heard by the court, that requires
vacation of the conviction or sentence in the interest of jus
tice.” Ibid.2 Osborne asserts that exculpatory DNA test
results obtained using state-of-the-art Short Tandem Repeat
(STR) and Mitochondrial (mtDNA) analysis would qualify as
newly discovered evidence entitling him to relief under the
state statute. The problem is that the newly discovered evi
dence he wishes to present cannot be generated unless he is
first able to access the State’s evidence—something he can
not do without the State’s consent or a court order.
Although States are under no obligation to provide mecha
nisms for postconviction relief, when they choose to do so,
the procedures they employ must comport with the demands
of the Due Process Clause, see Evitts v. Lucey, 469 U. S. 387,
393 (1985), by providing litigants with fair opportunity to
2 Ordinarily, claims under § 12.72.010(4) must be brought within one year
after the conviction becomes final. § 12.72.020(a)(3)(A). However, the
court may hear an otherwise untimely claim based on newly discovered
evidence “if the applicant establishes due diligence in presenting the claim
and sets out facts supported by evidence that is admissible and (A) was
not known within . . . two years after entry of the judgment of conviction
if the claim relates to a conviction; . . . (B) is not cumulative to the evi
dence presented at trial; (C) is not impeachment evidence; and (D) estab
lishes by clear and convincing evidence that the applicant is innocent.”
§ 12.72.020(b)(2) (2002).

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assert their state-created rights. Osborne contends that by
denying him an opportunity to access the physical evidence,
the State has denied him meaningful access to state postcon
viction relief, thereby violating his right to due process.
Although the majority readily agrees that Osborne has a
protected liberty interest in demonstrating his innocence
with new evidence under Alaska Stat. § 12.72.010(4), see
ante, at 68, it rejects the Ninth Circuit’s conclusion that Os
borne is constitutionally entitled to access the State’s evi
dence. The Court concludes that the adequacy of the proc
ess afforded to Osborne must be assessed under the standard
set forth in Medina v. California, 505 U. S. 437 (1992).
Under that standard, Alaska’s procedures for bringing a
claim under § 12.72.010(4) will not be found to violate due
process unless they “ ‘offen[d] some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental,’ or ‘transgres[s] any recognized
principle of fundamental fairness in operation.’ ” Ante, at
69 (quoting Medina, 505 U. S., at 446, 448).3 After conduct
ing a cursory review of the relevant statutory text, the Court
concludes that Alaska’s procedures are constitutional on
their face.
While I agree that the statute is not facially deficient, the
state courts’ application of § 12.72.010(4) raises serious ques
tions whether the State’s procedures are fundamentally un
fair in their operation. As an initial matter, it is not clear
that Alaskan courts ordinarily permit litigants to utilize the
state postconviction statute to obtain new evidence in the
form of DNA tests. The majority assumes that such discov
3 Osborne contends that the Court should assess the validity of the
State’s procedures under the test set forth in Mathews v. Eldridge, 424
U. S. 319 (1976), rather than the more exacting test adopted by Medina v.
California, 505 U. S. 437 (1992). In my view, we need not decide which
standard governs because the state court’s denial of access to the evidence
Osborne seeks violates due process under either standard. See Harvey,
285 F. 3d, at 315 (Luttig, J.).

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ery is possible based on a single, unpublished, nonpreceden
tial decision from the Alaska Court of Appeals, see ante, at
70 (citing Patterson v. State, No. A–8814, 2006 WL 573797
(Mar. 8, 2006)), but the State concedes that no litigant yet
has obtained evidence for such testing under the statute.4
Of even greater concern is the manner in which the state
courts applied § 12.72.010(4) to the facts of this case. In de
termining that Osborne was not entitled to relief under the
postconviction statute, the Alaska Court of Appeals con
cluded that the DNA testing Osborne wished to obtain could
not qualify as “newly discovered” because it was available at
the time of trial. See Osborne v. State, 110 P. 3d 986, 992
(2005) (Osborne I). In his arguments before the state trial
court and his briefs to the Alaska Court of Appeals, however,
Osborne had plainly requested STR DNA testing, a form of
DNA testing not yet in use at the time of his trial. See
App. 171, 175; see also 521 F. 3d 1118, 1123, n. 2 (CA9 2008).
The state appellate court’s conclusion that the requested
testing had been available at the time of trial was therefore
clearly erroneous.5 Given these facts, the majority’s asser
tion that Osborne “attempt[ed] to sidestep state process” by
failing “to use the process provided to him by the State” is
unwarranted. Ante, at 70, 71.
The same holds true with respect to the majority’s sugges
tion that the Alaska Constitution might provide additional
protections to Osborne above and beyond those afforded
under § 12.72.010(4). In Osborne’s state postconviction pro
ceedings, the Alaska Court of Appeals held out the possibil
4 The State explained at oral argument that such testing was ordered in
the Patterson case, but by the time access was granted, the relevant evi
dence had been destroyed. See Tr. of Oral Arg. 12.
5 The majority avoids confronting this serious flaw in the state court’s
decision by treating its mistaken characterization of the nature of Os
borne’s request as if it were binding. See ante, at 71. But see ante, at
59, n. 2 (conceding “[i]t is not clear” whether the state court erred in
reaching that conclusion).

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ity that even when evidence does not meet the requirements
of § 12.72.010(4), the State Constitution might offer relief to
a defendant who is able to make certain threshold showings.
See Osborne I, 110 P. 3d, at 995–996. On remand from that
decision, however, the state trial court denied Osborne relief
on the ground that he failed to show that (1) his conviction
rested primarily on eyewitness identification; (2) there was
a demonstrable doubt concerning his identity as the perpe
trator; and (3) scientific testing would likely be conclusive on
this issue. Osborne v. State, 163 P. 3d 973, 979–981 (Alaska
App. 2007). The first two reasons reduce to an evaluation
of the strength of the prosecution’s original case—a consider
ation that carries little weight when balanced against evi
dence as powerfully dispositive as an exculpatory DNA test.
The final reason offered by the state court—that further
testing would not be conclusive on the issue of Osborne’s
guilt or innocence—is surely a relevant factor in deciding
whether to release evidence for DNA testing. Neverthe
less, the state court’s conclusion that such testing would not
be conclusive in this case is indefensible, as evidenced by the
State’s recent concession on that point. See also 521 F. 3d,
at 1136–1139 (detailing why the facts of this case do not per
mit an inference that any exonerating test result would be
less than conclusive).
Osborne made full use of available state procedures in his
efforts to secure access to evidence for DNA testing so that
he might avail himself of the postconviction relief afforded by
the State of Alaska. He was rebuffed at every turn. The
manner in which the Alaska courts applied state law in this
case leaves me in grave doubt about the adequacy of the
procedural protections afforded to litigants under Alaska
Stat. § 12.72.010(4), and provides strong reason to doubt the
majority’s flippant assertion that if Osborne were “simply
[to] see[k] the DNA through the State’s discovery proce
dures, he might well get it.” Ante, at 71. However, even

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if the Court were correct in its assumption that Osborne
might be given the evidence he seeks were he to present his
claim in state court a second time, there should be no need
for him to do so.
II
Wholly apart from his state-created interest in obtaining
postconviction relief under Alaska Stat. § 12.72.010(4), Os
borne asserts a right to access the State’s evidence that de
rives from the Due Process Clause itself. Whether framed
as a “substantive liberty interest . . . protected through a
procedural due process right” to have evidence made avail
able for testing, or as a substantive due process right to be
free of arbitrary government action, see Harvey v. Horan,
285 F. 3d 298, 315, 319 (CA4 2002) (Luttig, J., respecting de
nial of rehearing en banc),6 the result is the same: On the
record now before us, Osborne has established his entitle
ment to test the State’s evidence.
The liberty protected by the Due Process Clause is not a
creation of the Bill of Rights. Indeed, our Nation has long
recognized that the liberty safeguarded by the Constitution
has far deeper roots. See Declaration of Independence ¶ 2
(holding it self-evident that “all men are . . . endowed by
their Creator with certain unalienable Rights,” among which
are “Life, Liberty, and the pursuit of Happiness”); see also
Meachum v. Fano, 427 U. S. 215, 230 (1976) (Stevens, J.,
dissenting). The “most elemental” of the liberties protected
by the Due Process Clause is “the interest in being free from
physical detention by one’s own government.” Hamdi v.
Rumsfeld, 542 U. S. 507, 529 (2004) (plurality opinion); see
Foucha v. Louisiana, 504 U. S. 71, 80 (1992) (“Freedom from
bodily restraint has always been at the core of the liberty
protected by the Due Process Clause”).
6 See Harvey, 285 F. 3d, at 318 (Luttig, J.) (“[T]he claimed right of access
to evidence partakes of both procedural and substantive due process.
And with a claim such as this, the line of demarcation is faint”).

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Although a valid criminal conviction justifies punitive de
tention, it does not entirely eliminate the liberty interests of
convicted persons. For while a prisoner’s “rights may be
diminished by the needs and exigencies of the institutional
environment, . . . [t]here is no iron curtain drawn between
the Constitution and the prisons of this country.” Wolff v.
McDonnell, 418 U. S. 539, 555–556 (1974); Shaw v. Murphy,
532 U. S. 223, 228–229 (2001) (“[I]ncarceration does not di
vest prisoners of all constitutional protections”). Our cases
have recognized protected interests in a variety of postcon
viction contexts, extending substantive constitutional pro
tections to state prisoners on the premise that the Due Proc
ess Clause of the Fourteenth Amendment requires States to
respect certain fundamental liberties in the postconviction
context. See, e. g., Thornburgh v. Abbott, 490 U. S. 401, 407
(1989) (right to free speech); Turner v. Safley, 482 U. S. 78,
84 (1987) (right to marry); Cruz v. Beto, 405 U. S. 319, 322
(1972) (per curiam) (right to free exercise of religion); Lee
v. Washington, 390 U. S. 333 (1968) (per curiam) (right to be
free of racial discrimination); Johnson v. Avery, 393 U. S. 483
(1969) (right to petition government for redress of griev
ances). It is therefore far too late in the day to question
the basic proposition that convicted persons such as Osborne
retain a constitutionally protected measure of interest in lib
erty, including the fundamental liberty of freedom from
physical restraint.
Recognition of this right draws strength from the fact that
46 States and the Federal Government have passed statutes
providing access to evidence for DNA testing, and 3 addi
tional States (including Alaska) provide similar access
through court-made rules alone, see Brief for State of Cali
fornia et al. as Amici Curiae 3–4, n. 1, and 2; ante, at 62–63
(opinion of the Court). These legislative developments are
consistent with recent trends in legal ethics recognizing that
prosecutors are obliged to disclose all forms of exculpatory
evidence that come into their possession following convic

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tion. See, e. g., ABA Model Rules of Professional Conduct
3.8(g)–(h) (2008); see also Imbler v. Pachtman, 424 U. S. 409,
427, n. 25 (1976) (“[A]fter a conviction the prosecutor also is
bound by the ethics of his office to inform the appropriate
authority of after-acquired or other information that casts
doubt upon the correctness of the conviction”). The fact
that nearly all the States have now recognized some postcon
viction right to DNA evidence makes it more, not less, appro
priate to recognize a limited federal right to such evidence
in cases where litigants are unfairly barred from obtaining
relief in state court.
Insofar as it is process Osborne seeks, he is surely entitled
to less than “the full panoply of rights” that would be due a
criminal defendant prior to conviction, see Morrissey v.
Brewer, 408 U. S. 471, 480 (1972). That does not mean, how
ever, that our pretrial due process cases have no relevance
in the postconviction context. In Brady v. Maryland, 373
U. S. 83, 87 (1963), we held that the State violates due proc
ess when it suppresses “evidence favorable to an accused”
that is “material either to guilt or to punishment, irrespec
tive of the good faith or bad faith of the prosecution.” Al
though Brady does not directly provide for a postconviction
right to such evidence, the concerns with fundamental fair
ness that motivated our decision in that case are equally
present when convicted persons such as Osborne seek access
to dispositive DNA evidence following conviction.
Recent scientific advances in DNA analysis have made “it
literally possible to confirm guilt or innocence beyond any
question whatsoever, at least in some categories of cases.”
Harvey, 285 F. 3d, at 305 (Luttig, J.). As the Court recog
nizes today, the powerful new evidence that modern DNA
testing can provide is “unlike anything known before.”
Ante, at 62. Discussing these important forensic develop
ments in his oft-cited opinion in Harvey, Judge Luttig ex
plained that although “no one would contend that fairness,
in the constitutional sense, requires a post-conviction right

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of access or a right to disclosure anything approaching in
scope that which is required pre-trial,” in cases “where the
government holds previously-produced forensic evidence, the
testing of which concededly could prove beyond any doubt
that the defendant did not commit the crime for which he
was convicted, the very same principle of elemental fairness
that dictates pre-trial production of all potentially exculpa
tory evidence dictates post-trial production of this infinitely
narrower category of evidence.” 285 F. 3d, at 317. It does
so “out of recognition of the same systemic interests in fair
ness and ultimate truth.” Ibid.
Observing that the DNA evidence in this case would be so
probative of Osborne’s guilt or innocence that it exceeds the
materiality standard that governs the disclosure of evidence
under Brady, the Ninth Circuit granted Osborne’s request
for access to the State’s evidence. See 521 F. 3d, at 1134.
In doing so, the Court of Appeals recognized that Osborne
possesses a narrow right of postconviction access to biologi
cal evidence for DNA testing “where [such] evidence was
used to secure his conviction, the DNA testing is to be con
ducted using methods that were unavailable at the time of
trial and are far more precise than the methods that were
then available, such methods are capable of conclusively
determining whether Osborne is the source of the genetic
material, the testing can be conducted without cost or preju
dice to the State, and the evidence is material to available
forms of post-conviction relief.” Id., at 1142. That conclu
sion does not merit reversal.
If the right Osborne seeks to vindicate is framed as purely
substantive, the proper result is no less clear. “The touch
stone of due process is protection of the individual against
arbitrary action of government,” Meachum, 427 U. S., at 226
(internal quotation marks omitted); Wolff, 418 U. S., at 558;
County of Sacramento v. Lewis, 523 U. S. 833, 845–846
(1998). When government action is so lacking in justifica
tion that it “can properly be characterized as arbitrary, or

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conscience shocking, in a constitutional sense,” Collins v.
Harker Heights, 503 U. S. 115, 128 (1992), it violates the Due
Process Clause. In my view, the State’s refusal to provide
Osborne with access to evidence for DNA testing qualifies
as arbitrary.
Throughout the course of state and federal litigation, the
State has failed to provide any concrete reason for denying
Osborne the DNA testing he seeks, and none is apparent.
Because Osborne has offered to pay for the tests, cost is not
a factor. And as the State now concedes, there is no reason
to doubt that such testing would provide conclusive confir
mation of Osborne’s guilt or revelation of his innocence.7 In
the courts below, the State refused to provide an explanation
for its refusal to permit testing of the evidence, see Brief for
Respondent 33, and in this Court, its explanation has been,
at best, unclear. Insofar as the State has articulated any
reason at all, it appears to be a generalized interest in pro
tecting the finality of the judgment of conviction from any
possible future attacks. See Brief for Petitioners 18, 50.8
7 Justice Alito provides a detailed discussion of dangers such as labo
ratory contamination and evidence tampering that may reduce the reliabil
ity not only of DNA evidence, but of any type of physical forensic evidence.
Ante, at 80–84 (concurring opinion). While no form of testing is error
proof in every case, the degree to which DNA evidence has become a
foundational tool of law enforcement and prosecution is indicative of the
general reliability and probative power of such testing. The fact that
errors may occur in the testing process is not a ground for refusing such
testing altogether—were it so, such evidence should be banned at trial no
less than in postconviction proceedings. More important still is the fact
that the State now concedes there is no reason to doubt that if STR and
mtDNA testing yielded exculpatory results in this case, Osborne’s inno
cence would be established.
8 In his concurring opinion, Justice Alito suggests other reasons that
might motivate States to resist access to such evidence, including concerns
over DNA testing backlogs and manipulation by defendants. See ante,
at 83–84. Not only were these reasons not offered by the State of Alaska
as grounds for its decision in this case, but they are not in themselves
compelling. While state resource constraints might justify delays in the

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While we have long recognized that States have an inter
est in securing the finality of their judgments, see, e. g., Dun
can v. Walker, 533 U. S. 167, 179 (2001); Teague v. Lane, 489
U. S. 288, 309 (1989) (plurality opinion); McCleskey v. Zant,
499 U. S. 467, 491–492 (1991), finality is not a stand-alone
value that trumps a State’s overriding interest in ensuring
that justice is done in its courts and secured to its citizens.
Indeed, when absolute proof of innocence is readily at hand,
a State should not shrink from the possibility that error may
have occurred. Rather, our system of justice is strength
ened by “recogniz[ing] the need for, and imperative of, a
safety valve in those rare instances where objective proof
that the convicted actually did not commit the offense later
becomes available through the progress of science.” Har
vey, 285 F. 3d, at 306 (Luttig, J.). DNA evidence has led to
an extraordinary series of exonerations, not only in cases
where the trial evidence was weak, but also in cases where
the convicted parties confessed their guilt and where the
testing of postconviction DNA evidence, they would not justify an outright
ban on access to such evidence. And Justice Alito’s concern that guilty
defendants will “play games with the criminal justice system” with regard
to the timing of their requests for DNA evidence is not only speculative,
but gravely concerning. Ante, at 85. It bears remembering that crimi
nal defendants are under no obligation to prove their innocence at trial;
rather, the State bears the burden of proving their guilt. See Sandstrom
v. Montana, 442 U. S. 510 (1979); In re Winship, 397 U. S. 358 (1970).
Having no obligation to conduct pretrial DNA testing, a defendant should
not be bound by a decision to forgo such testing at trial, particularly when,
as in this case, the choice was made by counsel over the defendant’s strong
objection. See Osborne I, 110 P. 3d, at 990–991. (Justice Alito sug
gests there is reason to doubt whether Osborne asked his counsel to per
form DNA testing prior to trial, ante, at 85–86. That fact was not
disputed in the state courts, however. Although Osborne’s trial counsel
averred that she did “not have a present memory of Osborne’s desire to
have [a more specific discriminatory] test of his DNA done,” she also
averred that she was “willing to accept that he does” and that she “would
have disagreed with him.” 110 P. 3d, at 990 (internal quotation marks
omitted).)

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trial evidence against them appeared overwhelming.9 The
examples provided by amici of the power of DNA testing
serve to convince me that the fact of conviction is not suffi
cient to justify a State’s refusal to perform a test that will
conclusively establish innocence or guilt.
This conclusion draws strength from the powerful state
interests that offset the State’s purported interest in finality
per se. When a person is convicted for a crime he did not
commit, the true culprit escapes punishment. DNA testing
may lead to his identification. See Brief for Current and
Former Prosecutors as Amici Curiae 16 (noting that in more
than one-third of all exonerations DNA testing identified the
actual offender). Crime victims, the law enforcement pro
fession, and society at large share a strong interest in identi
fying and apprehending the actual perpetrators of vicious
crimes, such as the rape and attempted murder that gave
rise to this case.
The arbitrariness of the State’s conduct is highlighted by
comparison to the private interests it denies. It seems to
me obvious that if a wrongly convicted person were to
produce proof of his actual innocence, no state interest would
be sufficient to justify his continued punitive detention. If
such proof can be readily obtained without imposing a sig
nificant burden on the State, a refusal to provide access to
such evidence is wholly unjustified.
In sum, an individual’s interest in his physical liberty is
one of constitutional significance. That interest would be
vindicated by providing postconviction access to DNA evi
9 See generally Brief for Current and Former Prosecutors as Amici Cu
riae; Brief for Jeanette Popp et al. as Amici Curiae; see also Brief for
Individuals Exonerated by Post-Conviction DNA Testing as Amici Curiae
1–20. See also Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 109
(2008) (documenting that in 50% of cases in which DNA evidence exoner
ated a convicted person, reviewing courts had commented on the exoner
ee’s likely guilt and in 10% of the cases had described the evidence sup
porting conviction as “ ‘overwhelming’ ”).

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dence, as would the State’s interest in ensuring that it pun
ishes the true perpetrator of a crime. In this case, the State
has suggested no countervailing interest that justifies its re
fusal to allow Osborne to test the evidence in its possession
and has not provided any other nonarbitrary explanation for
its conduct. Consequently, I am left to conclude that the
State’s failure to provide Osborne access to the evidence con
stitutes arbitrary action that offends basic principles of due
process. On that basis, I would affirm the judgment of the
Ninth Circuit.
III
The majority denies that Osborne possesses a cognizable
substantive due process right under the “circumstances of
this case,” and offers two meager reasons for its decision.
First, citing a general reluctance to “ ‘expand the concept of
substantive due process,’ ” ante, at 72 (quoting Collins, 503
U. S., at 125), the Court observes that there is no long history
of postconviction access to DNA evidence. “ ‘The mere nov
elty of such a claim,’ ” the Court asserts, “ ‘is reason enough
to doubt that “substantive due process” sustains it,’ ” ante,
at 72 (quoting Reno v. Flores, 507 U. S. 292, 303 (1993)). The
flaw is in the framing. Of course courts have not historically
granted convicted persons access to physical evidence for
STR and mtDNA testing. But, as discussed above, courts
have recognized a residual substantive interest in both phys
ical liberty and in freedom from arbitrary government ac
tion. It is Osborne’s interest in those well-established liber
ties that justifies the Court of Appeals’ decision to grant him
access to the State’s evidence for purposes of previously un
available DNA testing.
The majority also asserts that this Court’s recognition of
a limited federal right of access to DNA evidence would be
ill advised because it would “short circuit what looks to be a
prompt and considered legislative response” by the States
and Federal Government to the issue of access to DNA evi
dence. Ante, at 73. Such a decision, the majority warns,

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would embroil the Court in myriad policy questions best left
to other branches of government. Ante, at 72–74. The ma
jority’s arguments in this respect bear close resemblance to
the manner in which the Court once approached the now
venerable right to counsel for indigent defendants. Before
our decision in Powell v. Alabama, 287 U. S. 45 (1932), state
law alone governed the manner in which counsel was ap
pointed for indigent defendants. “Efforts to impose a mini
mum federal standard for the right to counsel in state courts
routinely met the same refrain: ‘in the face of these widely
varying state procedures,’ this Court refused to impose the
dictates of ‘due process’ onto the states and ‘hold invalid all
procedure not reaching that standard.’ ” Brief for Current
and Former Prosecutors as Amici Curiae 28, n. 8 (quoting
Bute v. Illinois, 333 U. S. 640, 668 (1948)). When at last this
Court recognized the Sixth Amendment right to counsel for
all indigent criminal defendants in Gideon v. Wainwright,
372 U. S. 335 (1963), our decision did not impede the ability
of States to tailor their appointment processes to local needs,
nor did it unnecessarily interfere with their sovereignty. It
did, however, ensure that criminal defendants were provided
with the counsel to which they were constitutionally enti
tled.10 In the same way, a decision to recognize a limited
right of postconviction access to DNA testing would not pre
vent the States from creating procedures by which litigants
10 The majority’s position also resembles that taken by Justice Harlan in
his dissent in Miranda v. Arizona, 384 U. S. 436, 523 (1966), in which he
faulted the Court for its “ironic untimeliness.” He noted that the Court’s
decision came at time when scholars, politicians, and law enforcement offi
cials were beginning to engage in a “massive reexamination of criminal
law enforcement procedures on a scale never before witnessed,” and pre
dicted that the practical effect of the Court’s decision would be to “handi
cap seriously” those sound efforts. Id., at 523–524. Yet time has vindi
cated the decision in Miranda. The Court’s refusal to grant Osborne
access to critical DNA evidence rests on a practical judgment remarkably
similar to Justice Harlan’s, and I find the majority’s judgment today as
profoundly incorrect as the Miranda minority’s was yesterday.

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request and obtain such access; it would merely ensure that
States do so in a manner that is nonarbitrary.
While it is true that recent advances in DNA technology
have led to a nationwide reexamination of state and federal
postconviction procedures authorizing the use of DNA test
ing, it is highly unlikely that affirming the judgment of the
Court of Appeals would significantly affect the use of DNA
testing in any of the States that have already developed stat
utes and procedures for dealing with DNA evidence or would
require the few States that have not yet done so to postpone
the enactment of appropriate legislation.11 Indeed, a hold
ing by this Court that the policy judgments underlying that
legislation rest on a sound constitutional foundation could
only be constructive.
IV
Osborne has demonstrated a constitutionally protected
right to due process which the State of Alaska thus far has
11 The United States and several States have voiced concern that the
recognition of a limited federal right of access to DNA evidence might call
into question reasonable limits placed on such access by federal and state
statutes. See Brief for United States as Amicus Curiae 17–26; Brief for
State of California et al. as Amici Curiae 1–16. For example, federal
law and several state statutes impose the requirement that an applicant
seeking postconviction DNA testing execute an affidavit attesting to his
innocence before any request will be performed. See, e. g., 18 U. S. C.
§ 3600(a)(1); Fla. Stat. § 925.11(2)(a)(3) (2007). Affirming the judgment of
the Ninth Circuit would not cast doubt on the constitutionality of such a
requirement, however, since Osborne was never asked to execute such
an affidavit as a precondition to obtaining access to the State’s evidence.
Similarly, affirmance would not call into question the legitimacy of other
reasonable conditions States may place on access to DNA testing, such as
Alaska’s requirement that test results be capable of yielding a clear an
swer with respect to guilt or innocence. “[D]ue process is flexible,” Mor
rissey v. Brewer, 408 U. S. 471, 481 (1972), and the manner in which it is
provided may reasonably vary from State to State and case to case. So
long as the limitations placed on a litigant’s access to such evidence remain
procedurally fair and nonarbitrary, they will comport with the demands of
due process.

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not vindicated and which this Court is both empowered and
obliged to safeguard. On the record before us, there is no
reason to deny access to the evidence and there are many
reasons to provide it, not least of which is a fundamental
concern in ensuring that justice has been done in this case.
I would affirm the judgment of the Court of Appeals, and
respectfully dissent from the Court’s refusal to do so.
Justice Souter, dissenting.
I respectfully dissent on the ground that Alaska has failed
to provide the effective procedure required by the Four
teenth Amendment for vindicating the liberty interest in
demonstrating innocence that the state law recognizes.
I therefore join Part I of Justice Stevens’s dissenting
opinion.
I would not decide Osborne’s broad claim that the Four
teenth Amendment’s guarantee of due process requires our
recognition at this time of a substantive right of access
to biological evidence for DNA analysis and comparison.
I would reserve judgment on the issue simply because there
is no need to reach it; at a general level Alaska does not deny
a right to postconviction testing to prove innocence, and in
any event, Osborne’s claim can be resolved by resort to the
procedural due process requirement of an effective way to
vindicate a liberty interest already recognized in state law,
see Evitts v. Lucey, 469 U. S. 387, 393 (1985). My choice to
decide this case on that procedural ground should not, there
fore, be taken either as expressing skepticism that a new
substantive right to test should be cognizable in some cir
cumstances, or as implying agreement with the Court that
it would necessarily be premature for the Judicial Branch to
decide whether such a general right should be recognized.
There is no denying that the Court is correct when it notes
that a claim of right to DNA testing, post-trial at that, is a
novel one, but that only reflects the relative novelty of test
ing DNA, and in any event is not a sufficient reason alone to

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Souter, J., dissenting
reject the right asserted, see Reno v. Flores, 507 U. S. 292,
318–319 (1993) (O’Connor, J., concurring). Tradition is of
course one serious consideration in judging whether a chal
lenged rule or practice, or the failure to provide a new one,
should be seen as violating the guarantee of substantive due
process as being arbitrary, or as falling wholly outside the
realm of reasonable governmental action. See Poe v. Ull
man, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). We
recognize the value and lessons of continuity with the past,
but as Justice Harlan pointed out, society finds reasons to
modify some of its traditional practices, ibid., and the accu
mulation of new empirical knowledge can turn yesterday’s
reasonable range of the government’s options into a due
process anomaly over time.
As for determining the right moment for a court to decide
whether substantive due process requires recognition of an
individual right unsanctioned by tradition (or the invalida
tion of traditional law), I certainly agree with the Court that
the beginning of wisdom is to go slow. Substantive due
process expresses the conception that the liberty it protects
is a freedom from arbitrary government action, from re
straints lacking any reasonable justification, id., at 541,1 and
a substantive due process claim requires attention to two
closely related elements that call for great care on the part
of a court. It is crucial, first, to be clear about whose under
standing it is that is being taken as the touchstone of what
is arbitrary and outside the sphere of reasonable judgment.
And it is just as essential to recognize how much time society
needs in order to work through a given issue before it makes
sense to ask whether a law or practice on the subject is be
yond the pale of reasonable choice, and subject to being
struck down as violating due process.
It goes without saying that the conception of the reason
able looks to the prevailing understanding of the broad soci
1 Mutatis mutandis, the same is true of our notions of life and property,
subject to the same due process guarantee.

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ety, not to individual notions that a judge may entertain for
himself alone, id., at 542, 544, and in applying a national con
stitution the society of reference is the nation. On specific
issues, widely shared understandings within the national so
ciety can change as interests claimed under the rubric of lib
erty evolve into recognition, see Griswold v. Connecticut,
381 U. S. 479 (1965) (personal privacy); Lawrence v. Texas,
539 U. S. 558 (2003) (sexual intimacy); see also Washington
v. Glucksberg, 521 U. S. 702, 752 (1997) (Souter, J., concur
ring in judgment), or are recast in light of experience and
accumulated knowledge, compare Roe v. Wade, 410 U. S. 113
(1973), with Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992) ( joint opinion of O’Connor, Ken
nedy, and Souter, JJ.).
Changes in societal understanding of the fundamental rea
sonableness of government actions work out in much the
same way that individuals reconsider issues of fundamental
belief. We can change our own inherited views just so fast,
and a person is not labeled a stick-in-the-mud for refusing to
endorse a new moral claim without having some time to
work through it intellectually and emotionally. Just as at
tachment to the familiar and the limits of experience affect
the capacity of an individual to see the potential legitimacy
of a moral position, the broader society needs the chance to
take part in the dialectic of public and political back and
forth about a new liberty claim before it makes sense to de
clare unsympathetic state or national laws arbitrary to the
point of being unconstitutional. The time required is a mat
ter for judgment depending on the issue involved, but the
need for some time to pass before a court entertains a sub
stantive due process claim on the subject is not merely the
requirement of judicial restraint as a general approach, but
a doctrinal demand to be satisfied before an allegedly lagging
legal regime can be held to lie beyond the discretion of rea
sonable political judgment.

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Despite my agreement with the Court on this importance
of timing, though, I do not think that the doctrinal require
ment necessarily stands in the way of any substantive due
process consideration of a postconviction right to DNA test
ing, even as a right that is freestanding. Given the pace at
which DNA testing has come to be recognized as potentially
dispositive in many cases with biological evidence, there is
no obvious argument that considering DNA testing at a gen
eral level would subject wholly intransigent legal systems to
substantive due process review prematurely. But, as I said,
there is no such issue before us, for Alaska does not flatly
deny access to evidence for DNA testing in postconviction
cases.
In another case, a judgment about appropriate timing
might also be necessary on issues of substantive due process
at the more specific level of the State’s conditions for exercis
ing the right to test. Several such limitations are poten
tially implicated, including the need of a claimant to show
that the test results would be material as potentially show
ing innocence, and the requirement that the testing sought
be capable of producing new evidence not available at trial.
But although I assume that avoiding prematurity is as much
a doctrinal consideration in assessing the conditions affecting
a substantive right as it is when the substantive right itself
is the subject of a general claim,2 there is no need here to
resolve any timing issue that might be raised by challenges
to these details.
2 It makes sense to approach these questions as governed by the same
requirement to allow time for adequate societal and legislative consider
ation that substantive liberty interests should receive at a general level.
As Judge Luttig has pointed out, there is no hermetic line between the
substantive and the procedural in due process analysis, Harvey v. Horan,
285 F. 3d 298, 318–319 (CA4 2002) (opinion respecting denial of rehearing
en banc), and in this case one could argue back and forth about the better
characterization of various state conditions as being one or the other.

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Osborne’s objection here is not only to the content of the
State’s terms and conditions, but also to the adequacy of
Alaska’s official machinery in applying them, and there is no
reason to defer consideration of this due process claim: given
the conditions Alaska has placed on the right it recognizes,
the due process guarantee requires the State to provide an
effective procedure for proving entitlement to relief under
that scheme, Evitts, 469 U. S., at 393, and the State has
failed. On this issue, Osborne is entitled to relief. Alaska
has presented no good reasons even on its own terms for
denying Osborne the access to the evidence he seeks, and
the inexplicable failure of the State to provide an effective
procedure is enough to show a need for a 42 U. S. C. § 1983
remedy, and relief in this case. Justice Stevens deals
with this failure in Part I of his dissent, which I join, and I
emphasize only two points here.
In effect, Alaska argues against finding any right to relief
in a federal § 1983 action because the procedure the State
provides is reasonable and adequate to vindicate the post
trial liberty interest in testing evidence that the State has
chosen to recognize.3 When I first considered the State’s
position I thought Alaska’s two strongest points were these:
(1) that in Osborne’s state litigation he failed to request ac
cess for the purpose of a variety of postconviction testing
that could not have been done at time of trial (and thus
sought no new evidence by his state-court petition); and
(2) that he failed to aver actual innocence (and thus failed to
place his oath behind the assertion that the evidence sought
would be material to his postconviction claim). Denying
him any relief under these circumstances, the argument ran,
3 Alaska does not argue that the State’s process for vindicating the right
to test, however inadequate, defines the limit of the right it recognizes,
with a consequence that, by definition, the liberty interest recognized by
the State calls for no process for its vindication beyond what the State
provides.

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did not indicate any inadequacy in the state procedure that
would justify resort to § 1983 for providing due process.
Yet the record shows that Osborne has been denied access
to the evidence even though he satisfied each of these condi
tions. As for the requirement to claim testing by a method
not available at trial, Osborne’s state-court appellate brief
specifically mentioned his intent to conduct short tandem
repeat analysis, App. 171, 175, and the State points to no
pleading, brief, or evidence that Osborne ever changed this
request.
The State’s reliance on Osborne’s alleged failure to claim
factual innocence is equally untenable. While there is no
question that after conviction and imprisonment he admitted
guilt under oath as a condition for becoming eligible for pa
role, the record before us makes it equally apparent that he
claims innocence on oath now. His affidavit filed in support
of his request for evidence under § 1983 contained the state
ment, “I have always maintained my innocence,” id., at 226,
¶ 2, followed by an explanation that his admission of guilt
was a necessary gimmick to obtain parole, id., at 227, ¶ 7.
Since the State persists in maintaining that Osborne is not
entitled to test its evidence, it is apparently mere make
weight for the State to claim that he is not entitled to § 1983
relief because he failed to claim innocence seriously and
unequivocally.
This is not the first time the State has produced reasons
for opposing Osborne’s request that collapse upon inspection.
Arguing before the Ninth Circuit, the State maintained that
the DNA evidence Osborne sought was not material; that is,
it argued that a test excluding Osborne as the source of
semen in the blue condom, found near the bloody snow and
spent shell casing in the secluded area where the victim was
raped by one man, would not “establish that he was factually
innocent” or even “undermine confidence in . . . the verdict.”
Reply Brief for Appellants in No. 06-35875 (2008), p. 18; see
also 521 F. 3d 1118, 1136 (CA9 2008). Such an argument is

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patently untenable, and the State now concedes that a favor
able test could “conclusively establish Osborne’s innocence.”
Reply to Brief in Opposition 8.
Standing alone, the inadequacy of each of the State’s
reasons for denying Osborne access to the DNA evidence
he seeks would not make out a due process violation.4 But
taken as a whole the record convinces me that, while Alaska
has created an entitlement of access to DNA evidence under
conditions that are facially reasonable, the State has demon
strated a combination of inattentiveness and intransigence in
applying those conditions that add up to procedural unfair
ness that violates the Due Process Clause.
4 This Court is not in a position to correct individual errors of the Alaska
Court of Appeals or Alaska officials, as § 1983 does not serve as a mecha
nism to review specific, unfavorable state-law determinations.