Dewayne S. Cunningham, an Alabama prisoner serving a life sentence for a 1996 first-degree rape conviction, filed a 42 U.S.C. § 1983 lawsuit, seeking DNA testing on evidence to prove his innocence. This action came after more than a decade of attempts to overturn his conviction, including multiple state and federal court challenges. The district court dismissed his complaint for failure to state a claim against some defendants and granted judgment on the pleadings for those who had answered.
Cunningham's trial revealed significant mental health issues, including a diagnosis of chronic undifferentiated schizophrenia, which affected his cognitive processes and reality perception. His history of mental health problems was pivotal in the jury's decision during a bifurcated trial, where they first found him guilty of rape and later rejected his insanity plea after hearing evidence of his mental state. The excerpt outlines the context of Cunningham's conviction, focusing on his psychiatric history and the implications for his current legal claims.
Cunningham exhibited severely disturbed behavior, including removing his clothing, urinating on the floor, and inserting a contaminated finger into his mouth and anus, a pattern described as bizarre and rare by Dr. Terence W. Campbell, a forensic psychologist who testified on his behalf. Dr. Campbell noted that such behavior is typically seen in "exceedingly disturbed, very psychotic inmates." In the same month, staff at MacLaren Hall restrained Cunningham due to a "loss of behavioral control," leading to a broken arm during the struggle.
At fourteen, Cunningham was admitted to Camarillo State Hospital, where he was diagnosed with an idiopathic seizure disorder and later, at age fifteen, with "Schizophrenia, Undifferentiated," characterized by auditory hallucinations and irrational behavior interspersed with periods of good behavior. Dr. Campbell stated that while medication controlled Cunningham’s psychotic behavior, he was prone to impulsive actions without institutional oversight. Another psychiatrist disagreed with the schizophrenia diagnosis but identified Cunningham as having "Atypical Psychosis" and "Conduct Disorder, Undersocialized, Aggressive."
In 1986, at seventeen, while still at Camarillo, Cunningham sexually assaulted a female intern, threatening her with a knife and forcibly fondling her. He later attributed his actions to hallucinations caused by drug use, claiming he believed the intern was a mannequin, although this justification did not account for his sexual assault or threats. Despite differing opinions on his diagnosis, all treating psychiatrists agreed Cunningham was psychotic during this period.
Dr. Defrancisco, the State's psychiatrist, testified that Cunningham's flight upon sensing someone nearby demonstrated his awareness during the assault on the intern. Dr. Campbell reported that this incident highlighted a pattern of sexual aggressiveness in Cunningham linked to 'psychotic decompensation,' characterizing him as 'seriously disturbed.' Using contemporary diagnostic criteria, Campbell suggested that Cunningham's condition during the assault would be classified as a Substance-Induced Psychotic Disorder.
Cunningham was declared a conservator by the State of California at seventeen or eighteen due to grave mental illness. By nineteen, he had been admitted to Foothill Hospital, where two psychiatrists evaluated his competency and diagnosed him with chronic schizophrenia, which was manageable with psychotropic medication, though he had previously exhibited agitation and violence. They determined he could not care for himself and was resistant to treatment, believing he was not ill.
After leaving Foothill Hospital, Cunningham lived transiently, drawing approximately $720 monthly in Supplemental Security Income. His criminal record included charges for arson and cocaine possession, alongside numerous misdemeanors. Between nineteen and twenty-one, he was hospitalized multiple times, including a significant admission at age twenty-one after threatening self-harm and overdosing on Dilantin. At twenty-two, he returned to Jackson Memorial Hospital due to depression and self-inflicted injuries, where records noted a history of suicide attempts and delusions.
On August 21, 1992, Cunningham was readmitted to Jackson Memorial after intentionally cutting his wrist and was placed in restraints for safety. During this hospitalization, he exhibited aggressive behavior and was uncooperative, expressing a desire for self-harm. Dr. Defrancisco's report highlighted that Cunningham had made over twenty suicide attempts through various methods.
On August 20, 1995, Alicia Nicole Brown was attacked in a park in Flomaton, Alabama, while jogging. She was approached by a man who held a knife to her stomach, demanding she accompany him into the woods. The attacker, who identified himself as "William," attempted to manipulate Brown into compliance by claiming he only wanted to "make love" to her. In a bid to delay him, Brown engaged him in conversation, which allowed her to momentarily convince him to set down the knife. However, he forcibly pulled her towards the woods, and despite her attempts to escape, he eventually raped her after threatening to kill her if she resisted.
After the assault, Brown returned to the jogging track, got into her truck, and reported the incident to the Flomaton Police Department, providing a description of her attacker. Officer Jeff Joyner investigated the scene and encountered a shirtless man named Cunningham, who matched the description given by Brown. Joyner detained Cunningham, who had no incriminating evidence on him at the time. Brown was later brought outside the police station to identify her attacker and confirmed Cunningham as the individual who raped her. Following this, she underwent a sexual assault examination at McMillan Hospital. Forensic testing conducted on the rape kit yielded inconclusive results regarding Cunningham's involvement as either a suspect or a definitive match.
No seminal fluid was detected during the sexual assault examination of Brown, aligning with her claim that her attacker used a condom. Officer Joyner arrested Cunningham and discovered a wallet containing an unopened condom on him, as well as a backpack with black jeans and more unopened condoms. After booking Cunningham, Joyner searched for additional evidence along the highway and found a knife. He also investigated the area near a concession stand where Brown stated the assault occurred, finding an opened condom wrapper matching the brand of the condoms in Cunningham's belongings.
Cunningham was indicted for first-degree rape, pleading not guilty and claiming insanity. He acknowledged seeing Brown at the park but denied any assault. Prior to trial, his attorney sought to suppress evidence from Cunningham's wallet and backpack, as well as Brown’s pre-trial identification. The court denied the suppression of Brown's identification, deeming it not unduly suggestive, but granted the suppression of the backpack's contents due to an unlawful search. The wallet and condom found within it were ruled admissible since Joyner retrieved them from Cunningham's person during a permissible inventory search.
During the trial, the State presented evidence including the opened condom wrapper from the crime scene and the unopened condom from Cunningham's wallet. A knife found at the arrest location was also introduced, but neither the wrapper nor the knife had fingerprints. Brown's identification of Cunningham was crucial, but discrepancies arose during her testimony regarding the attacker's description, including height and age differences. Brown initially described her attacker as tall and older, while Cunningham is significantly taller and younger, and she did not recognize any scars on him, despite Cunningham having a notable scar on his shoulder.
Brown identified Cunningham as her rapist, noting his yellowish teeth and broken upper tooth. Cunningham’s attorney sought to discredit her identification by calling forensic psychologist Dr. Terence W. Campbell, who testified that Brown’s emotional state during identification diminished her accuracy. He criticized the one-person show-up identification method as suggestive, increasing the likelihood of error. Brown’s limited observation of Cunningham, only seeing him in a police car, further restricted her ability to identify him based on height or voice.
Despite these challenges, Brown confidently identified Cunningham in court. During cross-examination, Officer Joyner admitted to not investigating a lead provided by a woman who reported seeing a transient man in the park shortly after the assault. The jury ultimately convicted Cunningham of first-degree rape.
In the trial's second phase, addressing Cunningham’s defense of not guilty by reason of mental illness, Dr. Campbell testified about Cunningham's long-standing psychotic mental illness, which began in his teens. He explained that Cunningham's behavior could become bizarre during psychotic episodes, exacerbated by his seizure disorder and non-compliance with medication. Dr. Campbell indicated that Cunningham’s marijuana use on the day of the offense likely triggered a substance-induced psychotic disorder. His analysis included contradictions in the rapist's behavior, such as using a condom to avoid DNA detection while leaving the wrapper at the scene, suggesting irrationality despite a potential attempt to avoid capture.
Cunningham's behavior during the incident indicated irrationality, as he waited by the road for fifteen minutes while Joyner searched for suspects. Dr. Campbell testified that Brown's attempts to humanize herself to her rapist were appropriate, but ineffective against a psychotic individual. Campbell noted that Cunningham's claim of amnesia following the rape could be attributed to his established seizure disorder, which may have erased memories of the event if he experienced a seizure afterward. He emphasized that Cunningham's cessation of Dilantin and marijuana use heightened the likelihood of a seizure occurring post-rape.
Dr. Campbell distinguished between the effects of cannabis and Cunningham's psychotic disorder, asserting that Cunningham’s long history of mental illness and prior psychotic episodes contributed to his irrational behavior. He concluded that Cunningham was suffering from a substance-induced psychotic disorder with hallucinations at the time of the assault, rendering him unable to comprehend the inappropriateness of his actions.
In contrast, Dr. Defrancisco, a forensic psychologist, assessed Cunningham and determined that despite his major mental illness, he could differentiate right from wrong during the incident. Defrancisco noted Cunningham's clear recollection of events leading up to the crime, while his later claim of amnesia appeared selective and self-serving, lacking evidence of genuine memory loss.
Defrancisco asserts that a common criminal defense is claiming memory loss of the crime. He believes Cunningham was feigning amnesia, noting that despite Cunningham's partial recollections, no medical records confirm genuine lapses in awareness. Defrancisco acknowledges the possibility of seizure disorders but does not find sufficient evidence to support them. He points out that Cunningham's behavior—returning to retrieve a knife after the crime—contradicts the notion of a memory loss episode during a seizure. Additionally, he disputes Dr. Campbell's diagnosis of a substance-induced psychotic disorder, stating that cannabis rarely induces psychosis and would manifest through observable symptoms, which Cunningham did not exhibit when questioned by law enforcement. Defrancisco argues that Cunningham's actions during the crime indicate lucidity rather than psychosis, noting that a psychotic individual would lack the reasoning to wear a condom or act carefully. He suggests Cunningham's presence at the crime scene may indicate an awareness of his actions rather than a psychotic state, concluding that while Cunningham has a history of mental illness, it did not contribute to his criminal behavior in this instance. Ultimately, the jury found Cunningham guilty of rape, rejecting his claim of legal insanity. During sentencing, Cunningham's attorney requested the court consider his severe mental illness and lack of medication as mitigating factors, along with Dr. Campbell’s assessment of Cunningham's understanding of his actions at the time of the offense.
Cunningham's attorney argued for rehabilitation due to his mental illness and requested a split sentence. The state court recognized Cunningham as "a troubled and disturbed man" but concluded he was a danger to himself and society, sentencing him to life in prison. Cunningham appealed to the Alabama Court of Criminal Appeals, presenting five arguments: 1) the jury ignored evidence of his severe mental illness; 2) the trial court wrongly refused to suppress a witness's identification; 3) it erred by not suppressing his wallet and its contents; 4) it failed to empanel separate juries for different trial phases; and 5) it did not allow his expert to attend the suppression hearing. The court rejected all arguments and upheld the conviction, with the Alabama Supreme Court subsequently denying his certiorari petition.
On March 26, 1999, Cunningham filed his first federal habeas corpus petition, challenging the show-up identification. He voluntarily dismissed this petition on August 27, 1999. On December 20, 1999, he filed a Rule 32 petition in state court claiming ineffective assistance of counsel, which was dismissed as the issues could have been raised on appeal, and there were no new facts to vacate the conviction. Cunningham did not appeal this dismissal. He filed a second federal habeas petition on May 24, 2000, arguing the show-up identification was prejudicial and that he received ineffective assistance of counsel. While this second petition was pending, he filed a third petition on January 2, 2001, again challenging the identification. The district court consolidated the two petitions but found that the ineffective assistance claim was procedurally barred because he had not appealed the state court's dismissal of his Rule 32 petition. The court also ruled that the actual innocence claim did not apply, stating that Cunningham's request for DNA testing was insufficient and would not likely exculpate him, as no direct DNA evidence was used in his trial.
Cunningham's claim regarding Brown's identification was dismissed by the district court as it had been previously adjudicated on the merits in state court. The court noted a lack of clarity regarding the specific evidence Cunningham sought to test in his federal habeas petition due to incomplete records. The State was unable to locate several documents from Cunningham's postconviction proceedings, including one specifically cited by the district court related to "certain identified evidence" for DNA testing. Cunningham could not meet the exceptions outlined in 28 U.S.C. § 2254(d), leading to the denial of his petitions from May 2000 and January 2001. His request for a certificate of appealability was also denied.
In October 2003, Cunningham filed a second Rule 32 petition in state court claiming actual innocence but failed to specify additional facts or request DNA testing. This petition was dismissed, as the issues raised could have been addressed on direct appeal and did not present newly discovered facts. Cunningham filed another habeas petition in January 2001 concerning the prejudicial effects of a show-up identification, which was dismissed as duplicative. His fifth federal habeas petition, filed in September 2004, also claimed actual innocence but lacked mention of biological evidence or a request for DNA testing, leading to its dismissal as successive.
In 2004, the Wisconsin Innocence Project began efforts to contact Alabama authorities to investigate the preservation of biological evidence from Cunningham's case, seeking permission to conduct DNA testing on items collected during the investigation, including a condom wrapper and biological samples from the victim.
The Innocence Project has confirmed the availability of the condom wrapper and pubic hairs but has not been able to ascertain the existence or location of other biological evidence, like fingernail scrapings. Access to the evidence for DNA testing has been denied by the authorities in custody, either through refusal to release it without a court order or lack of response. On June 22, 2006, the Wisconsin Innocence Project filed a 42 U.S.C. § 1983 lawsuit on behalf of Cunningham, seeking access to biological evidence for DNA testing. Defendants named include the Attorney General of Alabama, the District Attorney of Escambia County, and other local officials. The complaint states that no DNA analysis was performed on the condom wrapper, and the Chief of the Flomaton Police Department could not locate the complete rape kit, which he believed was given to the District Attorney. Cunningham's complaint suggests that the fingernail scrapings were likely part of this kit. Although evidence indicates that the victim, Brown, struggled with her assailant, it does not confirm that she scratched him, raising doubts about the existence of biological evidence on the scrapings. The complaint argues that advancements in DNA technology could allow for profiles to be developed from minimal biological material, which could support Cunningham’s claim of innocence. It also alleges that the defendants’ refusal to grant access to potentially exculpatory evidence violates several constitutional rights, including procedural and substantive due process rights, the right to assert a claim of actual innocence, and access to the courts. Additionally, a claim regarding Sixth Amendment rights was included but not contested on appeal, thus waiving that issue.
Cunningham seeks a court order compelling the defendants to provide evidence for DNA testing at a lab of his choice, with costs covered by him, and to compare the results against the CODIS database for potential matches. The defendants moved to dismiss his complaint, asserting that he failed to demonstrate a violation of a federal constitutional right regarding postconviction access to evidence for DNA testing. The district court agreed, concluding that Cunningham did not state a valid claim for relief.
The court found that Cunningham could not establish a procedural due process right to postconviction evidence under Brady v. Maryland, as the evidence was accessible before trial, he did not claim an unfair trial, and he could not show that the evidence would alter his conviction outcome. Furthermore, it dismissed his claim under Mathews v. Eldridge, determining he lacked a "continuing liberty interest" post-conviction since he was not sentenced to death for his crime.
Cunningham's reliance on Herrera v. Collins to assert a freestanding claim of actual innocence was deemed misplaced, with the court noting that such claims are typically recognized only in capital cases. His claim regarding the right of access to the courts was dismissed due to insufficient evidence of actual injury, and his assertion of a right to seek clemency or a pardon was rejected because there is no substantive due process right to access evidence for executive clemency proceedings.
On appeal, Cunningham argues that the district court erred in denying him a constitutional right to postconviction access to biological evidence for DNA testing. The court delayed its decision pending a Supreme Court ruling in District Attorney’s Office for the Third Judicial District v. Osborne, which acknowledged a limited liberty interest in accessing DNA evidence but upheld that Alaska's state procedures were sufficient for due process. Following the Osborne decision, Cunningham conceded that his claims related to Brady, substantive due process, actual innocence, and clemency do not hold, and the court concurred with these concessions.
Cunningham's case presents two main claims following the Osborne decision: a procedural due process challenge regarding Alabama's postconviction relief procedures and a claim for access to courts, which largely overlaps with the due process claim. Both parties agree that Osborne sets the precedent for this case.
The court reviews judgments on pleadings and motions to dismiss de novo, affirming that such judgments are appropriate when no material facts are disputed and the moving party is entitled to judgment as a matter of law. The court accepts the facts in the complaint as true and views them favorably for the nonmoving party while also taking judicial notice of Cunningham's prior state and federal court proceedings related to his conviction.
Section 1983 is referenced as a viable cause of action for individuals whose constitutional rights are violated by state actors, including claims for postconviction access to evidence for DNA testing. The court acknowledges prior cases where similar 1983 actions for DNA testing were dismissed but notes that Cunningham's situation is distinct. The legal standard for evaluating postconviction DNA-access claims has changed since those decisions, particularly regarding the procedural due process claims previously assessed under Brady v. Maryland and Mathews v. Eldridge, following the Osborne ruling.
The legal discussion revolves around the implications of DNA testing in a capital murder case involving Cunningham, who was convicted of raping and killing an elderly woman alongside a co-defendant. The court applied a "fundamental fairness" standard, referencing Medina v. California. It was established that DNA testing sought by Cunningham could not definitively prove his innocence, as his co-defendant had already confessed to the burglary. Even if DNA testing excluded Cunningham as the source of certain biological evidence, it would not necessarily clear him of the rape charge, as it might only suggest that another accomplice was involved.
While the court acknowledged a theoretical possibility that comprehensive DNA testing could raise doubts about Cunningham's guilt, the likelihood was deemed low. For instance, a matching DNA profile on the condom wrapper and other biological evidence could indicate Cunningham's non-involvement, but non-matching results from pubic hairs or fingernail scrapings wouldn't suffice to establish his innocence. These could simply imply that the victim had consensual encounters with others prior to the attack, and there was no trial record confirming her sexual activity around the time of the crime.
The discussion noted the challenges in drawing conclusions from DNA found on the condom wrapper, as it had been handled by multiple individuals after the crime, complicating the attribution of DNA to Cunningham or the victim definitively. Circumstantial evidence linking the wrapper to Cunningham was acknowledged, but its reliability was questioned, given its recovery context. Overall, while DNA testing might offer some potential for establishing innocence, the existing evidence overwhelmingly suggested Cunningham's guilt, especially given the victim's prompt identification of him as her attacker.
Brown had multiple opportunities to identify her attacker, Cunningham, during a violent encounter that included a knife threat and subsequent sexual assault. She interacted with him in various ways, allowing her to observe him clearly in daylight before and during the assault. Her eyewitness identification is supported by legal precedents, emphasizing the reliability of identifications made under similar conditions. Additionally, circumstantial evidence bolsters the case against Cunningham, notably a knife found at the location where he was stopped, which aligns with Brown's account of the attack. Despite the suppression of certain evidence from Cunningham's backpack, its contents, including black jeans matching Brown's description of the attacker’s pants, are relevant to evaluating Cunningham's innocence claim. Although inconsistencies in Brown's testimony regarding the pants' material exist, they do not significantly weaken the prosecution's case. Furthermore, evidence of Cunningham's mental health issues, particularly concerning sexual matters, suggests a likelihood that he was the perpetrator.
Cunningham exhibited extremely rare and bizarre behavior, noted by a psychologist with over twenty-five years of experience, who likened it to episodes from "exceedingly disturbed, very psychotic inmates." While in a mental institution, Cunningham attacked and fondled a female intern, mistakenly believing she was a mannequin. He admitted to being under the influence of drugs during this incident, paralleling his claim of having smoked marijuana on the day he attacked Brown. Both assaults involved threats with a knife—Cunningham threatened the intern similarly to how Brown was threatened.
Cunningham acknowledged being near the park where the rape occurred and seeing Brown shortly before the attack, but later claimed amnesia regarding the details of the attack. A psychologist found this selective amnesia highly unusual and suspected that Cunningham was feigning it. His admissions and behavior suggest strong evidence of guilt, though there remains a slight possibility that DNA testing could exonerate him, akin to the case of Osborne, where DNA evidence raised questions about guilt despite other implicating evidence.
In the Osborne case, the accused was convicted of serious crimes, but the victim's identification was weak. Key evidence included a blue condom linked to the crime, which matched Osborne but also a significant portion of the black male population. Despite available more precise DNA testing, Osborne's defense team opted not to utilize it, fearing it could implicate him further. After his conviction was upheld, he sought post-conviction relief under Alaska law.
Osborne sought further DNA testing of semen and hairs under Alaska’s postconviction relief statute, asserting this testing would prove his innocence. The Alaska Court of Appeals denied discovery, ruling that the evidence was not "new" since it was available at trial. However, the court indicated that the due process clause of Alaska's constitution might allow postconviction DNA testing for claimants asserting actual innocence, remanding the case for consideration of three factors: whether the conviction relied primarily on eyewitness identification, whether there was demonstrable doubt regarding that identification, and whether scientific testing would likely provide conclusive results. Upon remand, the trial court found that Osborne did not satisfy any of these factors, as other evidence linked him to the crime scene and undermined any serious doubt about the eyewitness identification. The Alaska Court of Appeals affirmed this decision.
Simultaneously, Osborne filed a federal lawsuit under 42 U.S.C. § 1983 to compel access to the biological evidence for DNA testing. The district court ruled in his favor, recognizing a “very limited constitutional right” to DNA testing based on the case's specific circumstances. The Ninth Circuit upheld this decision, stating that the state's obligation to disclose exculpatory evidence under Brady v. Maryland extended to postconviction cases, thus prohibiting the state from denying access to biological evidence for DNA testing. The Supreme Court later reversed the Ninth Circuit's ruling, concluding that Osborne's due process rights had not been infringed.
Osborne's substantive due process claim for a "freestanding right to DNA evidence" was rejected, as it was deemed unconnected to any underlying liberty interest. He also raised a procedural due process argument, asserting that DNA testing was essential for vindicating his liberty interest in proving his innocence and seeking postconviction relief. The Court dismissed his attempt to assert a federal liberty interest based on an "actual innocence" claim under Herrera v. Collins, suggesting such claims should be pursued through habeas corpus, where federal discovery rules could meet due process standards. It was determined that Osborne lacked a liberty interest in seeking pardon or commutation under Alaska law, which does not guarantee executive clemency.
However, the Court acknowledged that if state law permits vacating a conviction upon a strong showing of actual innocence, a liberty interest arises, necessitating due process in state procedures. The Court noted that a convicted defendant no longer enjoys a presumption of innocence, leading to a more limited liberty interest and greater state discretion regarding necessary procedures. It clarified that postconviction proceedings don't require the full procedural rights available during trials and that Brady v. Maryland does not apply to postconviction contexts.
The Supreme Court asserted that a state's postconviction relief process is constitutionally adequate unless it violates fundamental principles of justice or fairness. Federal courts cannot intervene unless the state process is fundamentally inadequate in protecting substantive rights. The Court refrained from defining the precise level of due process required or the form it should take. It concluded that Alaska's postconviction relief procedures were adequate, specifically regarding DNA evidence requests, citing factors such as the provision of a substantive right to release based on new evidence, exemption from time limits, and provision for discovery in postconviction proceedings. The Court referenced a trial court's application of the statute to grant a DNA testing request, affirming that Alaska's limitations on postconviction relief claims required that evidence be "newly available."
The legal document addresses the standards and limitations associated with postconviction DNA testing procedures. It emphasizes that the requirements for obtaining such testing—namely, that the request be diligently pursued and sufficiently material—are consistent with established principles of fairness and align with practices in other jurisdictions. The case of Patterson, convicted in 1982, illustrates these principles; he sought DNA testing in 2003, but the biological evidence had been destroyed, leading to the denial of his petition based on lack of diligence and timeliness. The Alaska Court of Appeals noted that Patterson could have discovered the evidence's destruction earlier, given that DNA testing had been available since 1997. The Supreme Court also discussed the permissibility of various state-imposed limitations on DNA access, acknowledging some uncertainty about how such claims would be handled under Alaska's procedures. However, it pointed out that Osborne, who had not utilized state processes to seek DNA testing, faced challenges in criticizing those processes. The Court indicated that had Osborne pursued the state remedy, he might have obtained the testing he sought or been provided with valid reasons for denial.
Osborne's ruling does not mandate a general exhaustion of state-law remedies but places the burden on him to prove that Alaska's postconviction relief procedures are inadequate. Since these procedures are sufficient on their face and Osborne did not utilize them, he cannot claim they are ineffective. Cunningham, in his due process claim regarding Alabama's DNA testing procedures, must demonstrate that these procedures are so deficient that they violate the standard of fundamental fairness established in Osborne. Although Alabama lacks a specific statute or rule for postconviction DNA testing in non-capital cases, this absence alone does not constitute a constitutional issue. The Supreme Court recognized Alaska's approach as constitutionally adequate, indicating that existing laws can be applied to address DNA evidence requests. The Court referenced the Fagan v. State case, acknowledging Alabama's judicial efforts to handle postconviction DNA testing requests through its general procedures. Consequently, Alabama’s procedures are deemed adequate if they align favorably with those of Alaska. While the Supreme Court did not specify the precise level of process required for fundamental fairness, it affirmed that Alaska's methods met constitutional standards, implying that Alabama's procedures should also be assessed similarly. However, unlike Alaska, no Alabama court has established a state-constitutional "safety valve" for claimants asserting actual innocence who do not meet the postconviction relief requirements.
No Alabama court has been asked to determine whether a failsafe procedural mechanism exists under Alabama constitutional law, akin to that in Alaska. The Supreme Court acknowledged an alternative procedural route for obtaining evidence in Alaska, while affirming that the state's processes were constitutionally adequate. Although the Court found Alaska's statute constitutionally sound and consistent with fundamental fairness, it did not deem the state-constitutional safety valve essential for due process compliance.
Alabama's statutory provisions for postconviction relief are largely comparable to Alaska’s. Alabama's Rule 32.1(e) permits defendants to seek relief based on newly discovered evidence that establishes their innocence, similar to Alaska's statute. Both states waive time limits for claims based on new evidence that could not have been previously discovered with reasonable diligence, with Alabama requiring petitions to be filed within six months of discovering new evidence, while Alaska imposes no specific time limit but mandates due diligence.
Both jurisdictions restrict the types of new facts that may support postconviction relief, stipulating that the evidence must not be merely cumulative or impeachment evidence and must demonstrate innocence. Notably, Alabama's process is more favorable to petitioners, requiring only a preponderance of evidence to prove innocence for a new trial, compared to Alaska's clear and convincing evidence standard. However, Alabama has stricter discovery rules requiring a showing of "good cause," whereas Alaska offers broader civil discovery.
Despite these procedural differences, Alaska's courts do not appear to be more lenient in granting postconviction discovery than Alabama's courts. Requests in Alabama under Rule 32 are evaluated based on a "good cause" standard, as established by the Alabama Supreme Court, which emphasized that postconviction discovery is meant to vindicate actual claims rather than to explore potential claims.
In the past nine years, Alabama’s Court of Criminal Appeals has issued about forty decisions regarding Rule 32 discovery requests, establishing that such requests can be denied if they are overly broad, burdensome to the State, unrelated to a viable claim, or lack clarity. In Jackson v. State, the court reversed a trial court's decision that allowed a death row inmate unrestricted access to extensive discovery materials, criticizing the trial judge for not applying the "good cause" standard required for postconviction discovery. This standard, which Alabama adopted from other states, aligns with federal habeas rules that also necessitate a "good cause" showing.
The Alabama Supreme Court has not yet ruled on postconviction DNA testing requests, but previous cases illustrate the court's approach. In Dowdell v. State, a request for DNA testing was denied as untimely since the petitioner had delayed for over ten years. In Barbour v. State, a timely request for DNA testing was rejected on grounds of materiality, as the DNA results would not impact the petitioner's conviction as an accomplice. In Fagan v. State, the court dismissed an appeal concerning a motion for postconviction DNA testing because such a motion is not recognized under Alabama law. Additionally, concurring and dissenting opinions in these cases have highlighted the need for specific procedures for postconviction DNA testing in Alabama and called for legislative action on the matter.
A properly presented Rule 32 petition in Alabama can be utilized to seek DNA testing, as established in cases such as Dowdell and Fagan. The court indicated that had Dowdell submitted his petition within a reasonable timeframe, its merits would have been evaluated. Rule 32 discovery has been affirmed as a means to obtain physical evidence for forensic testing, evident from cases like Thomas Arthur's, where DNA testing was ordered to validate another inmate's confession. In Stallworth, an inmate leveraged Rule 32 to retest blood evidence to claim police misconduct. Hinton used it to challenge ballistics evidence, while Perkins secured testing to support an ineffective counsel claim. Importantly, no Alabama court has granted discovery on a Rule 32 petition solely based on the potential for new forensic testing to reveal innocence, although such a stand-alone claim is not definitively ruled out by existing decisions. Furthermore, Cunningham attempts to differentiate Alabama's procedures from those approved by the Supreme Court for Alaska.
Cunningham contends that Alabama's postconviction process is facially inadequate because it entirely precludes access to DNA evidence in non-capital cases, contrasting it with Alaska's processes. His argument hinges on the necessity for the court to determine that Alabama's process is fundamentally flawed on its face, as this would excuse his failure to pursue state remedies. The precedent set in Osborne indicates that if state procedures are adequate on their face, a claimant must attempt to utilize those remedies before challenging their application. Unlike Osborne, where the claimant's efforts were debated, Cunningham did not raise the DNA issue in his previous Rule 32 petitions nor seek a court order for testing, relying instead on out-of-court requests that were denied. His counsel acknowledged that seeking a court order was believed to be procedurally impossible under Alabama law.
Cunningham's assertion that Alabama's procedures fail to meet Osborne's fairness requirement presents a significant challenge, particularly since even dissenting opinions in Osborne acknowledged the facial adequacy of Alaska's statute. To substantiate his claim of inadequacy, Cunningham points to a new Alabama statute allowing postconviction DNA testing only for capital cases, interpreting it as a deliberate legislative choice to deny testing in non-capital cases like his. However, the statute does not explicitly restrict non-capital defendants from accessing discovery under Rule 32, and its language does not indicate such intent. Furthermore, the statute establishes conditions for capital defendants to meet before obtaining DNA testing, emphasizing the requirement for a clear demonstration of how the testing could prove factual innocence.
Evidence must maintain a secure chain of custody and be in a condition that allows for accurate and reliable testing. It is required that either the evidence or the testing technology was unavailable at the time of trial, and DNA evidence must not have been previously tested or must offer resolutions to issues that past tests could not address. These stipulations align with restrictions from other DNA-testing statutes endorsed in the Osborne case.
Cunningham argues that Alabama’s Rule 32, which governs postconviction relief, complicates obtaining DNA testing by requiring a petitioner to demonstrate evidence of innocence prior to initiating a claim. Rule 32.1(e) permits a convict to seek relief based on newly discovered material facts but creates a dilemma, as Cunningham interprets that he must already possess exculpatory test results to make a valid claim. The State contends that Rule 32 allows a claimant to assert facts sufficient for relief and subsequently obtain evidence to support that claim.
Cunningham's view finds minimal support in existing case law. In the Dowdell case, the concurrence by Judge Shaw illustrates the "catch-22" scenario: a petitioner cannot assert a valid claim under Rule 32.1(e) without DNA results, yet cannot obtain those results without having made a valid claim. Judge Shaw’s understanding is informed by the Alabama Supreme Court’s ruling in Land, which clarifies that postconviction discovery should vindicate actual claims rather than serve solely as a tool for exploring potential claims. In Land, a death-row inmate's request for discovery was permitted to support his claim of ineffective counsel, as the State's argument against it was deemed without merit, emphasizing the necessity of reviewing the documents before assessing their potential evidentiary value.
Six years after Judge Shaw's interpretation of Land's language created a perceived barrier to DNA testing requests, the Alabama Supreme Court clarified that a "good cause" standard merely requires a Rule 32 petitioner to present a "facially meritorious" claim by alleging sufficient facts for relief. Prior to this clarification, a majority of the Court of Criminal Appeals rejected Shaw's interpretation in Dowdell, indicating that if Dowdell had filed his petition timely, the merits would have been considered. The majority's statements in Dowdell suggest that the "newly discovered material fact" necessary for a petition pertains to the availability of new testing that could conclusively establish innocence, rather than the actual test results. Barbour's claim highlights significant technological advancements that could exonerate him. This Catch-22 argument has been echoed in other jurisdictions, such as Alaska, where similar statutory language creates a dilemma for defendants needing evidence to establish innocence before obtaining testing. In Osborne's case, the argument of a Catch-22 was not persuasive to the Supreme Court, as his timeliness and diligence were the primary issues. Ultimately, the Alabama Court of Criminal Appeals appears to acknowledge that a properly presented Rule 32 petition can facilitate the discovery of evidence for DNA testing.
The Alabama Supreme Court has not directly addressed the issue of DNA testing requests under Rule 32, but it must be assumed that the State's procedures are adequate based on the precedent set in Osborne, which places the burden on Cunningham to prove inadequacy. Cunningham has not established a tenable claim for DNA testing, despite his focused request on three pieces of evidence. Although he could meet the procedural requirements of a Rule 32 petition, he faces significant obstacles. Specifically, Rule 32.2(c) mandates that petitions based on newly discovered material facts be filed within six months of their discovery, which Cunningham likely missed, as the relevant testing became available over five years ago. His previous Rule 32 petitions filed in 1999 and 2003 did not include requests for DNA testing, which could affect his ability to claim new facts now.
The Wisconsin Innocence Project's request for testing of a condom wrapper in December 2004 necessitated the filing of a Rule 32 petition by June 2005, as established by Alabama courts that deny relief based on timeliness. Relevant case law, such as Dowdell and McHarris, illustrates that petitions are often dismissed if they do not meet strict deadlines related to the discovery of new evidence or witness statements. Similar timeliness and diligence standards exist in other states, and the Supreme Court has indicated that such limitations align with fundamental fairness. For evidence to qualify as a “newly discovered material fact” under Rule 32.1(e), it must not only be new in time but also materially demonstrate the petitioner's innocence, compellingly suggesting that the trial result would likely differ if presented. In the Barbour case, new DNA testing was deemed non-probative of innocence due to the petitioner's status as an accomplice. The State may argue that Cunningham cannot meet the materiality requirement because the condition of the condom wrapper makes compelling proof of innocence unlikely. The response regarding fingernail scrapings would hinge on their availability. Alabama case law lacks clarity on whether forensic testing requests can meet the materiality requirement when exculpatory results are theoretically possible but improbable. The Supreme Court's position on materiality has not been directly tested in this context. If Cunningham files a Rule 32 petition, the decision on the petition and its compliance with procedural requirements will be left to Alabama courts, and the current ruling does not suggest a likelihood of success for Cunningham's future petition.
Cunningham has not demonstrated that Alabama's postconviction relief process is fundamentally inadequate, nor can he challenge its application to his case since he did not attempt to utilize it, resulting in the failure of his due process claim. Regarding his access to courts claim, Cunningham argues that access to biological evidence is essential for upholding his constitutional right to access the courts, a notion not addressed in the Osborne decision. It is established that prisoners have a constitutional right to adequate, effective, and meaningful access to the courts under the Due Process Clause. However, to prove a violation, a prisoner must show actual injury, which stems from the constitutional doctrine of standing. This injury requirement necessitates an underlying cause of action that the denial of access prevents the prisoner from pursuing. Cunningham initially cited four potential causes of action that he alleged he could not pursue due to the defendants' actions: 1) a state court new trial claim based on newly discovered evidence; 2) a claim of innocence under Herrera v. Collins; 3) a "gateway" claim under Schlup v. Delo to use innocence evidence to revive barred constitutional claims; and 4) an application for state clemency or pardon. However, the Supreme Court clarified that Herrera cannot support a claim for DNA testing in a § 1983 action, and prior rulings do not permit habeas relief on a freestanding innocence claim in non-capital cases. Additionally, there is no constitutional right to state clemency proceedings, which also fails to support his access to courts claim. Thus, Cunningham's second and fourth proposed causes of action do not substantiate his access to courts claim, nor do the other two.
Cunningham claims that Alabama's postconviction relief procedures and the authorities' refusal to provide evidence for testing hinder his ability to seek a new trial. He argues that Alabama's Rule 32 provides a basis for a new trial based on newly discovered evidence, and the state's actions obstruct his access to the courts. The state counters that Cunningham has not adequately utilized Alabama's legal procedures, and as such, cannot assert a denial of access. The legal precedent established in Lewis requires litigants to show that procedural inadequacies directly hindered their legal claims. Since Alabama's procedures are deemed facially adequate per Osborne's standard of fundamental fairness, they do not impede Cunningham's court access.
Moreover, the defendants’ refusal to release evidence does not bar Cunningham from petitioning the state court for its release. Although it is acknowledged that Cunningham may face significant procedural challenges if he attempts a Rule 32 petition, this does not constitute an infringement of his court access rights. Should Cunningham be denied discovery due to procedural issues, such as untimeliness or failure to meet the requirements for successive petitions, the responsibility for this would lie with his prior omissions, not the defendants’ actions.
Cunningham also attempts to demonstrate actual injury by arguing that the evidence's withholding prevents him from asserting actual innocence as a gateway claim in a federal habeas petition per Schlup. However, a showing of actual innocence alone does not warrant relief; it serves merely as a threshold for reviewing otherwise barred constitutional claims. To succeed under Schlup, Cunningham must prove that his conviction resulted from a constitutional violation and that, without this violation, it is more likely than not that he would not have been convicted based on the new evidence.
Cunningham's access to courts claim, based on Schlup, is deficient as it lacks specific constitutional claims that could be pursued in federal court following procedural hurdles for a new habeas petition. His assertion of actual innocence is insufficient on its own; actual innocence claims must be tied to an independent constitutional violation in the original state case. The court has already determined that Cunningham's due process rights have not been violated concerning DNA testing evidence. For a valid Schlup claim, he must present a viable constitutional claim unrelated to accessing DNA evidence, which he has failed to do. Furthermore, his complaint does not adequately detail the underlying cause of action, failing to meet the requirements for an actual injury necessary for an access to courts claim. The state defendants have not blocked Cunningham’s ability to file a Schlup-based habeas petition; they merely declined to assist in enhancing his chances of success, which does not constitute a violation of the right to access the courts. Previous cases indicate that failure to assist does not impede the ability to file suit. Moreover, even if Cunningham were able to file a claim, he faces significant procedural barriers as he has already filed five federal habeas petitions and would need to demonstrate clear and convincing evidence of innocence, along with proving a constitutional error in his conviction.
The Supreme Court's decision in Schlup establishes a stringent standard for claims of actual innocence, applicable only in exceptional circumstances. In this case, Cunningham's claims do not meet this standard, as he presents only a vague hope that DNA testing could prove his innocence. The district court concluded that none of Cunningham's four claims satisfy the actual injury requirement necessary to establish a violation of his right to access the courts. Cunningham previously received a fair trial and has challenged his conviction multiple times, including two state Rule 32 petitions and five federal habeas petitions, none of which adequately pursued access to DNA evidence. His lack of efforts to utilize available state procedures for obtaining DNA testing undermines his argument that those procedures are fundamentally inadequate or unfair. Consequently, Cunningham has failed to demonstrate any infringement of his constitutional rights, leading to the affirmation of the district court's dismissal of his complaint.
