Breest v . N.H. Attorney General CV-06-361-SM 01/03/07 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Breest
v. Civil N o . 06-cv-361-SM Opinion N o . 2007 DNH 004
New Hampshire Attorney General
O R D E R
Pro se plaintiff Robert Breest has filed a complaint,
pursuant to 42 U.S.C. § 1983, alleging that he has been denied
access to biological evidence for the limited purpose of
conducting DNA testing, in violation of his Fourteenth Amendment
right to due process (document n o . 1 ) . Seeking prospective
injunctive relief, he brings this action against Kelly Ayotte in
her official capacity as New Hampshire Attorney General.
The complaint is before me for preliminary review to
determine whether, among other things, it states a claim upon
which relief may be granted. See 28 U.S.C. § 1915A; U.S.
District Court for the District of New Hampshire Local Rule
(“LR”) 4.3(d)(2). For the reasons stated below, I find that
Breest has alleged a Fourteenth Amendment due process claim
against Ayotte. Standard of Review
In reviewing a pro se complaint, this Court must construe
the pleading liberally and in favor of the pro se litigant. See
Ayala Serrano v . Gonzalez, 909 F.2d 8 , 15 (1st Cir. 1990)
(following Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976)). At this
preliminary stage of review, all factual assertions made by the
plaintiff and inferences reasonably drawn therefrom must be
accepted as true. See Aulson v . Blanchard, 83 F.3d 1 , 3 (1st
Cir. 1996)(stating the “failure to state a claim” standard of
review and explaining that all “well-pleaded factual averments,”
not bald assertions, must be accepted as true). This review
ensures that pro se pleadings are given fair and meaningful
consideration. See Eveland v . Director of CIA, 843 F.2d 4 6 , 49
(1st Cir. 1988). I apply this standard in reviewing Breest’s
complaint.
Background
In 1973, Breest was convicted of first degree murder for the
death of Susan Randall and was sentenced to life imprisonment in
New Hampshire. He is currently incarcerated in Massachusetts at
MCI Shirley. His conviction and sentence were affirmed on
appeal. See State v . Breest, 116 N.H. 7 3 4 , 367 A.2d 1320 (1976)
2 (setting forth the facts of Breest’s trial and conviction).
Breest’s conviction rested in part on circumstantial evidence
including:
(1) testimony from witnesses who had seen a woman matching M s . Randall’s description hitchhiking in the Granite Square area of Manchester and getting into an automobile that matched the description of [Breest’s] automobile, which was being driven by a person matching [Breest’s] description; (2) testimony placing [Breest] in the Granite Square area at approximately the time when M s . Randall was there; (3) hair fibers discovered in the defendant’s car that were substantially similar to hair fibers from the coat worn by M s . Randall on the night of her death; and (4) paint particles discovered on M s . Randall’s coat that were substantially similar to paint particles recovered from [Breest’s] automobile.
State v . Breest, N o . 72-S-789, slip o p . at 1-2 (N.H. Super. Dec.
1 1 , 2000)(citing Breest, 116 N.H. at 739-40). A jailhouse
informant also testified that Breest had admitted to murdering
M s . Randall. Id. (citing Breest, 116 N.H. at 7 4 0 ) . In addition,
the jury was presented with the following evidence:
(1) [Breest] had scratch marks on his hands when he was interviewed by the police approximately two weeks after M s . Randall was killed; (2) M s . Randall had been choked by her killer; (3) M s . Randall’s fingernails had dried blood underneath them, indicating that she had scratched the hands of her killer; (4) police investigators sent clippings from M s . Randall’s fingernails to the FBI laboratory in Washington, D.C. for testing of the dried blood found underneath them; and (5) the blood underneath M s . Randall’s fingernails was Type A , the same as both M s . Randall and [Breest].
3 Id. at 2 (citing Breest, 116 N.H. at 7 3 8 , 7 5 2 ) .
Beginning in 2000, Breest sought access to DNA testing
through the New Hampshire Superior Court (Merrimack County). On
December 1 1 , 2000, the court granted his “Motion to Reopen, Bring
Forward, and Order Mitochondrial DNA Testing of Susan Randall’s
Fingernails.” Breest, N o . 72-S-789, slip o p . at 1 . In granting
the motion, the court reasoned that (1) Breest was not at fault
for failing to present or request DNA evidence at trial, because
DNA evidence had not been discovered at that time; (2) the DNA
evidence at issue would have been both admissible at trial and
highly probative of his guilt or innocence; and (3) a favorable
DNA test probably would result in a different outcome at a new
trial. Id. at 4-6.
The court allowed three tests to be conducted by Cellmark
Diagnostics, a laboratory located in Germantown, Maryland and
allegedly selected by the State. The first test (13 CODIS STR1
DNA test) was declared inconclusive by Cellmark. Breest disputes
the results and contends that four DNA experts interpreted
Cellmark’s results and determined that he was excluded or that
1 I construe “CODIS” to mean “Combined DNA Index System, the FBI’s national DNA identification index system.” See N.H. Rev. Stat. Ann. § 651-C:1(I). I construe “STR” to mean short tandem repeat.
4 further testing was required.2 The second test (4 Loci Y-
2 In support of his claims, Breest has attached letters from four DNA experts. In a letter dated February 1 3 , 2002, William M . Shields, Professor of Biology at the State University of New York, states that Breest is excluded by the Cellmark DNA testing. In a letter dated March 1 8 , 2002, D r . Randall Libby of GeneQuest states that in the Cellmark tests there “appear to be non- matching alleles at several loci” which should be explored further.” In a letter dated August 1 4 , 2002, D r . Bruce Johnson of Boston University and D r . Bert Ely of the University of South Carolina state that they “consider critical areas of the Cellmark data (especially allele identification) to be poorly explained (or not explained at all).” They further state that they are “surprised that the data as presented in [Breest’s] case could possibly have been reviewed by anyone with a background in molecular biology and not seriously questioned.” Attached to the letter by Drs. Johnson and Ely is a copy of their comments and a list of the following five serious flaws found in the Cellmark data:
(1) Allele 26 cannot be considered to be present in the biological samples collected from the victim . . . and [t]herefore, it cannot be used to include M r . Breest in this analysis; (2) The inclusion of any individual based on three out of 13 alleles grossly distorts the statistical integrity expected of a genetic analysis; (3) The frequent occurrence of “weak” results in the DNA analysis of the biological samples greatly diminishes the fidelity of any data reported. Indeed, such data could never be published in any referred scientific journal; (4) Changes in scales in the various plots indicate a major lack of uniformity in the data, For example, it is possible to enhance an artifact peak by increasing the scale, which we believe has been done; (5) One of the most glaring shortcomings of the data presented by Cellmark is the poor labeling of alleles relative to the plots. It is very difficult to determine which peak represents which allele. Thus, the question: how can such data be properly interpreted?
5 Chromosome test) was also declared inconclusive by Robin Cotton,
Ph.D. of Cellmark. Breest contends that his DNA expert, D r .
Shields, determined that he was excluded by the second test. The
third test (4 Loci Y-Chromosome test) was conducted by Cellmark’s
new laboratory director, Lewis Maddox, Ph.D. Breest contends
that “the third test netted basically the same test results as
the second, except that D r . Maddox drew a line through alleles
that did not match Robert Breest, and declared the balance as a
match.” He further contends that “when submitting the
mathematical analysis, [Maddox] determined that the third test
results he declared a match, matched 10% of the population, or
one in ten.”
Breest’s request for a fourth test was denied by the
superior court by order of October 1 9 , 2004. In denying a fourth
test, the court reasoned that:
[T]hree rounds of DNA testing have been conducted by Cellmark comparing tissue found under the fingernails of the victim, Susan Randall, with a known sample from the defendant. The first two rounds of testing did not exclude the defendant as the person whose DNA was under the victim’s fingernails. The third round of testing was a Y chromosome test which compared alleles at four loci. The result of this test was that the defendant’s DNA matched that of the fingernail DNA at all four loci. Frequency testing suggests that only about one in ten men would have those four alleles at those four loci. Defendant now requests another Y chromosome test which would compare alleles at twelve loci.
6 Defendant’s request is DENIED as he has not met his burden of demonstrating why the tests already conducted are not accurate or why further testing would demonstrate his actual innocence or would result in a different verdict after trial. This is especially true where the test results of the previous three tests are consistent with the evidence presented against the defendant at trial and with the jury’s verdict of guilty.
State v . Breest, N o . 72-S-789, slip o p . at 1 (N.H. Super. Oct.
1 9 , 2004).
While Breest’s state court proceedings were pending on June
1 5 , 2004, the Governor of New Hampshire signed into law House
Bill 6 4 0 , thereby enacting New Hampshire Rev. Stat. Ann. (“RSA”)
651-D (permitting a person to petition the court for post-
conviction DNA testing of biological material under certain
circumstances). See N.H. Rev. Stat. Ann. § 651-D. RSA 651-D:2
(I) provides, in relevant part, that “[a] person in custody
pursuant to the judgment of the court may, at any time after
conviction or adjudication as a delinquent, petition the court
for forensic DNA testing of any biologic material.” See N.H.
Rev. Stat. Ann. § 651-D:2(I). Breest appears to allege that he
has complied with the requirements set forth under RSA 651-D:2(I)
but nevertheless has been denied access to DNA evidence.
He now brings this action seeking injunctive relief in the
form of access to biological evidence for the limited purpose of
7 conducting DNA testing, including 13 CODIS STR and 10 loci Y-
chromosome testing, at an accredited laboratory of his choice.
According to Breest, the DNA evidence at issue is in possession
of the New Hampshire Department of Safety, Division of State
Police, Forensic Laboratory, and Ayotte has authority to release
such evidence for testing.
Discussion
I. Section 1983 Claim
Section 1983 creates a cause of action against those who,
acting under color of state law, violate federal law. See 42
U.S.C. § 1983; Parratt v . Taylor, 451 U.S. 5 2 7 , 535 (1981);
accord Conn v . Gabbert, 526 U.S. 286, 290 (1999). In order to be
held liable for a violation under Section 1983, a defendant’s
conduct must have been a cause in fact of the alleged
constitutional deprivation. See Monell v . Dep’t of Soc. Servs.,
436 U.S. 6 5 8 , 692 (1978); Soto v . Flores, 103 F.3d 1056, 1061-62
(1st Cir. 1997). The premise of Breest’s Section 1983 action is
that Ayotte has denied him access to biological evidence for
purposes of DNA testing in violation of his Fourteenth Amendment
right to due process.
A. Cognizance of Section 1983 Claim
An issue arises as to whether Breest’s claim is cognizable
8 under Section 1983 or whether it “necessarily implies” the
invalidity of his underlying state court conviction in
contravention of the Supreme Court’s ruling in Heck v . Humphrey,
512 U.S. 477 (1994)(holding that a litigant cannot proceed under
Section 1983 if success on his claim would necessarily imply the
invalidity of the fact or duration of his conviction or
sentence). Several circuit and district courts have considered
the issue of whether a claim for post-conviction access to
physical evidence is cognizable under Section 1983, and their
decisions do not reveal an obvious consensus. See Savory v .
Lyons, N o . 06-1296, WL 3423072 at *3-4 (7 th Cir. Sept. 1 1 ,
2006)(finding claim for post-conviction access to physical
evidence to be cognizable under Section 1983); Grayson v . King,
460 F.3d 1328, 1342-43 (11th Cir. 2006) (finding claim for post-
conviction access to biological evidence to be cognizable under
Section 1983 but rejecting due process claim under Brady v .
Maryland, 373 U.S. 8 3 , 87 (1963) and its progeny); Bradley v .
Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002)(finding claim for
post-conviction access to biological evidence for DNA testing
purposes to be cognizable under Section 1983); Harvey v . Horan,
278 F.3d 3 7 0 , 375 (4 th Cir. 2002)(rejecting due process claim for
post-conviction access to biological evidence for DNA testing);
9 Wade v . Brady, Civ. N o . 04-12135-NG, 2006 WL 3051770 at *6 (D.
Mass. Oct. 2 7 , 2006)(holding that Section 1983 claim seeking DNA
testing of biological evidence was not barred under Heck); Alley
v . Key, 431 F. Supp. 2d 7 9 0 , 800-03 (W.D. Tenn. 2006)(holding
there is no post-conviction due process right to biological
evidence for purposes of DNA testing); Godschalk v . Montgomery
County Dist. Attorney’s Office, 177 F. Supp. 2d 366, 370 (E.D.
P a . 2001) (recognizing a post-conviction due process right of
access to evidence for DNA testing).
Like the plaintiffs in Savory, Bradley and Wade, Breest
requests only the opportunity to test DNA evidence currently in
the state’s possession. Nothing about this request necessarily
implies anything about his underlying state court conviction.
The results of the testing could be inconclusive or inculpatory.
Moreover, if testing yields exculpatory results, his conviction
would stand unless successfully challenged in a separate action,
brought at a future date, and alleging a different constitutional
violation altogether. Accordingly, I conclude that his claim is
cognizable under Section 1983 for purposes of preliminary review.
B. Right of Access to DNA Testing
Although the right to DNA testing is largely unexplored,
certain courts have held that a convicted criminal defendant has
10 a due process right to post-conviction testing of DNA evidence.
See Wade, Civ. N o . 04-12135-NG, 2006 WL 3051770 at *6 (holding
that due process principles underlying Brady, 373 U.S. at 8 7 ,
support a DNA testing right in both pre-trial and post-conviction
settings); Godchalk, 177 F. Supp. 2d at 370 (holding that a state
prisoner has a due process right to access biological evidence).
In Godchalk, the court cited the well-established rule that the
prosecution’s pretrial suppression of evidence favorable to a
criminal defendant “violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Godchalk, 177 F.
Supp. 2d at 368 (quoting Brady, 373 U.S. at 8 7 ) . The court
concluded that this rule was controlling in the context of a
Section 1983 action involving a post-conviction request for
access to DNA evidence. Id. at 370. Applying the definition of
“materiality” that the Supreme Court set forth in United States
v . Bagley, 473 U.S. 667 (1985), the court held that a state
prisoner has a due process right to access biological evidence if
there is a “reasonable probability” that the results of any DNA
testing that could be performed on that evidence would have
affected the outcome of the state court proceedings if those
results had been available at the time of the prisoner’s
11 conviction. Id.
In this action, Breest alleges a Fourteenth Amendment due
process violation arising from the denial of the right to DNA
testing. To the extent there is a reasonable probability that
the results of the DNA testing requested by Breest would have
affected the outcome of his state court proceedings if those
results had been available at the time of his conviction, I
conclude that he has alleged a cognizable due process claim. For
purposes of preliminary review, I find that he has alleged
sufficient facts to state a Fourteenth Amendment due process
claim against Ayotte.
II. Eleventh Amendment Immunity
The complaint seeks prospective injunctive relief for wrongs
committed by Ayotte as a state actor in her official capacity.
It is well-settled that Eleventh Amendment immunity bars a
federal court from awarding monetary damages against state
officers sued in their official capacities. See Redondo-Borges
v . United States HUD, 421 F.3d 1 , 7 (1st Cir. 2005). However,
Eleventh Amendment immunity does not bar claims for prospective
injunctive relief against state officers in their official
capacities. Id. “Nor does that doctrine bar relief (whether in
the form of money damages or an injunction) against [state
12 officers] in their individual capacities. Id. (citations
omitted). Because Breest seeks only prospective injunctive
relief against Ayotte in her official capacity, I conclude that
his claim is not barred under the Eleventh Amendment.
Conclusion
For the reasons stated above, I conclude that Breest has
alleged a Fourteenth Amendment due process claim against Ayotte.
As I find that plaintiff has stated a claim upon which
relief may be granted, I order the complaint served on the
defendant. The Clerk’s office is directed to serve the New
Hampshire Office of the Attorney General ( A G ) , as provided in the
Agreement on Acceptance of Service, copies of this order and the
complaint and supporting documents (document n o . 1 ) . See LR
4.3(d)(2)(C). Within thirty days from receipt of these
materials, the AG will submit to the court an Acceptance of
Service notice indicating whether defendant has authorized the
AG’s office to receive service on her behalf. When the
Acceptance of Service is filed, service will be deemed made on
the last day of the thirty-day period.
The Clerk’s office is instructed to complete service on this
individual by sending to her, by certified mail, return receipt
requested, copies of these same documents.
13 The defendant is instructed to answer or otherwise plead
within thirty days of acceptance of service. See Fed. R. Civ. P.
12(a)(1)(A).
Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendant by delivering or mailing the materials to her or
her attorneys, pursuant to Fed. R. Civ. P. 5 ( b ) .
SO ORDERED.
Jam ___ s ___Muirhead ited States Magistrate Judge
Date: January 3 , 2007
cc: Robert Breest, pro se