No. __________ IN THE SUPREME COURT OF THE UNITED STATES ____________________________ ROBERT LYNN PRUETT, Petitioner, v. JACK CHOATE; LISA HARMON BAYLOR; BRYAN COLLIER, EXECUTIVE DIRECTOR; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; JAMES JONES, WARDEN, Respondents. ____________________________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit ___________________________ CERTIFICATE OF SERVICE ____________________________ I certify that on the 10th day of October 2017, one copy of Mr. Pruett’s Petition for a Writ of Certiorari was emailed to Mr. Jefferson Clendenin, Assistant Attorney General of Texas, Post-conviction Litigation Division, P.O. Box 12548, Capitol Station, Austin, Texas, 78711-2548 at jay.clendenin@texasattorneygeneral.gov. All parties required to be served have been served. I am a member of the Bar of this Court. s/ David R. Dow ________________________ David R. Dow* Texas Bar No. 06064900 4604 Calhoun Rd. Houston, Texas 77204-6060 713-743-2171 713-743-2131 (fax) Counsel for Robert Lynn Pruett *Member, Supreme Court Bar No. __________ IN THE SUPREME COURT OF THE UNITED STATES ____________________________ ROBERT LYNN PRUETT, Petitioner, v. JACK CHOATE; LISA HARMON BAYLOR; BRYAN COLLIER, EXECUTIVE DIRECTOR; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; JAMES JONES, WARDEN, Respondents. ____________________________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit ___________________________ THIS IS A CAPITAL CASE: MR. PRUETT IS SCHEDULED TO BE EXECUTED ON THURSDAY, OCTOBER 12, 2017, AFTER 6:00 PM David R. Dow* Texas Bar No. 06064900 Jeffrey R. Newberry Texas Bar No. 24060966 University of Houston Law Center 4604 Calhoun Rd. Houston, Texas 77204-6060 713-743-2171 713-743-2131 Counsel for Robert Lynn Pruett * Member, Supreme Court Bar ii CAPITAL CASE Question Presented Capital case. Mr. Pruett is scheduled for execution after 6 pm central time on Thursday, October 12, 2017. In Skinner v. Switzer, 562 U.S. 521 (2011), this Court held that a district court has subject matter jurisdiction over a complaint that asks it to declare a state’s post-conviction analysis statute to be unconstitutional as applied and to order the custodians of the evidence to release the evidence necessary for the complainant to receive the process he was denied in state court proceedings. Petitioner in the present case asked the federal district court to do precisely that. Nevertheless, the district court found Pruett’s complaint did not state a claim upon which relief could be granted because it asked only for declaratory and injunctive relief. On appeal, the Court below correctly noted that if Pruett’s complaint raised a due process claim, it could survive a Rule 12(b)(6) motion notwithstanding that it asked only for declaratory and injunctive relief. Next, however, without having the benefit of any findings related to the merits of Pruett’s claims and in an opinion that exhibited unfamiliarity with those claims, the Fifth Circuit affirmed the denial of relief by holding Pruett’s claims to the wrong standard. The court further found Pruett was not entitled to a stay, but the court would not have had to reach a decision on that question had the district court not wrongfully dismissed his complaint and instead addressed the merits of Pruett’s claims during the two iii months in which his complaint was pending before the district court The foregoing facts give rise to the following question: When a district court wrongfully grants a state’s Rule 12(b)(6) motion to dismiss an action filed pursuant to 42 U.S.C. § 1983 after sitting on the complaint for two months, if the lower court’s dismissal is erroneous, do equitable principles entitle a death-penalty inmate to a stay of his execution so the merits of the complaint can be addressed when no such stay would have been necessary had the district court considered the merits of the action in a timely manner? iv Table of Contents CERTIFICATE OF SERVICE .........................................................................................i Question Presented ....................................................................................................... iii Table of Contents ............................................................................................................ v Table of Authorities ..................................................................................................... vii Table of Appendices .......................................................................................................ix Introduction. .................................................................................................................... 1 Opinion and Order Below ............................................................................................... 5 Statement of Jurisdiction ............................................................................................... 5 Constitutional Provisions and Statutes Involved.......................................................... 5 Statement of the Case ..................................................................................................... 6 The Physical Evidence ......................................................................................... 8 The Trial ............................................................................................................. 10 Post-Conviction Chapter 64 Proceedings, 2013 ................................................ 11 Post-Conviction Chapter 64 Proceedings, 2015 ................................................ 12 Proceedings in the District Court ...................................................................... 22 Proceedings in the Court of Appeals for the Fifth Circuit ............................... 32 Reasons for Granting the Writ ..................................................................................... 33 A. This Court should grant certiorari to provide guidance to the federal courts regarding the type of relief that is cognizable in a 1983 action filed pursuant to this Court’s opinion in Skinner v. Switzer...................................................................................................... 33 B. This Court should grant certiorari to provide guidance to the federal courts regarding whether the claims raised in a 1983 action must make a substantial case on the merits to withstand a Rule 12(b)(6) motion to dismiss ........................................................... 34 v C. This Court should grant certiorari to hold that equity requires that a death-sentenced inmate, whose execution is imminent, have his execution stayed pending the disposition of his claims by the district court when a stay is only necessary because the district court did not timely act on his compliant and then wrongfully dismissed it. .......................................................................... 36 Conclusion and Prayer for Relief.................................................................................. 39 Appendix………… ........................................................................................................ .40 vi Table of Authorities Cases Booker v. State, 155 S.W.3d 259 (Tex. App.—Dallas 2004, no pet.) ........................................... 26 Campbell v. Wells Fargo Bank, 781 F. 2d 440 (5th Cir. 1986) ............................................................................. 31 Hill v. McDonough, 547 U.S. 573 (2006) ............................................................................................ 36 Jones v. State, 161 S.W.3d 685 (Tex. Crim. App. 2005) ............................................................ 27 Pruett v. State, No. AP-77,065, 2017 WL 1245431 (Tex. Crim. App. Apr. 5, 2017) . 18-20, 25-26 Pruett v. State, No. AP-77,037, 2014 WL 5422573 (Tex. Crim. App. Oct. 22, 2014) ................ 12 Skinner v. Switzer, 562 U.S. 521 (2011) .................................................................................. 4, 33, 34 State v. Swearingen, 478 S.W.3d 716 (Tex. Crim. App. 2015) ............................................................ 19 Swearingen v. Keller et al., No. 1:16-cv-01181-LY (W.D. Tex. July 7, 2017) ................................................ 34 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ............................................................................................ 34 Rules and Statutes Tex. Code Crim. Proc. art. 38.43 ......................................................................................................... 19, 23-24 Other authorities Act of Apr. 5, 2001, 77th Leg., R.S., ch. 2, § 1, 2001 Tex. Gen. Laws 2. ..................... 23 Angela L. Williamson, Touch DNA: Forensic Collection and Application to Investigations, 18 J. Assoc. Crime Scene Reconstruction 1 (2012) ............................. 15 vii Associated Press, 4 state corrections officers charged with bribery, Amarillo Globe News, Jan. 27, 2000, available at http://amarillo.com/stories/012700/tex_LD0612.001.shtml#.WVaJf8aZNuU [https://perma.cc/6Q62-W7ZS]. ....................................................................................... 7 Brandon Garrett, Convicting the Innocent (Harvard Univ. Press 2012) ................... 10 Crime Watch Daily, Is Man on Texas Death Row Innocent – Pt. 2, https://www.youtube.com/watch?v=Lno7_cIjdrE .......................................................... 8 H. Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 122, 82d Leg., R.S. (2011), available at http://www.legis.state.tx.us/tlodocs/82R/analysis/html/SB00122H.htm [https://perma.cc/9C3A-RMY4] ............................................................................... 24-25 H. Research Org., Bill Analysis, Tex. S.B. 3, 77th Leg., R.S. (2001), available at http://www.hro.house.state.tx.us/pdf/ba77r/sb003.pdf#navpanes=0 [https://perma.cc/H2AY-9VJS]...................................................................................... 26 Lydie Samie, et al., Stabbing Simulations and DNA Transfer, 22 Forensic Science International: Genetics 73 (May 2016) ........................................................... 29 M. Barash, et al., The Use of Adhesive Tape for Recovery of DNA from Crime Scene Items, 55 J. Forensic Science 1058 (2010) ......................................................... 13 Maurice Chammah, Scheduled Execution Revives Debate Over Prison Staffing, N.Y. Times, Apr. 18, 2013, available at http://www.nytimes.com/2013/04/19/us/execution-revives-debate-over-texasprison-staffing.html. ....................................................................................................... 7 Nate Blakeslee, Shades of Gray: In Texas Prisons, It’s Hard to Tell Who Your Enemies Are, Austin Chron., Apr. 28, 2000, available at http://www.austinchronicle.com/news/2000-04-28/77012/ [https://perma.cc/8ARM-LFNB]...................................................................................... 7 viii Table of Appendices Appendix A Opinion Below (as handed down October 6, 2017) Appendix B District Court Order (as handed down September 25, 2017) Appendix C 42 U.S.C. § 1983 Appendix D Tex. Code Crim. Proc. ch. 64 Appendix E Tex. Code Crim. Proc. art. 38.43 ix No. __________ IN THE SUPREME COURT OF THE UNITED STATES ____________________________ ROBERT LYNN PRUETT, Petitioner, v. JACK CHOATE; LISA HARMON BAYLOR; BRYAN COLLIER, EXECUTIVE DIRECTOR; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; JAMES JONES, WARDEN, Respondents. ____________________________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit ___________________________ THIS IS A CAPITAL CASE: MR. PRUETT IS SCHEDULED TO BE EXECUTED ON THURSDAY, OCTOBER 12, 2017, AFTER 6:00 PM ______________________________ Introduction. Officer Daniel Nagle, a corrections officer at the McConnell Unit of the Texas Department of Criminal Justice, was stabbed to death with a shank. He suffered numerous wounds, and the crime scene was very bloody. The person who killed him stabbed him at least eight times with a homemade weapon about ten inches long. No witnesses testified they observed the attack, and no physical evidence connected Robert Pruett to the murder. None of the victim’s blood or DNA was on Pruett or any of his possessions; none of Pruett’s blood or DNA was on the victim. Pruett 1 maintained his innocence from the very outset, and the State has possessed since the very outset DNA evidence that could fully exonerate Pruett and identify the actual murderer. Pruett attempted to take advantage of Chapter 64 of the Texas Code of Criminal Procedure – a statute that provides for post-conviction testing of biological material – in order to prove his innocence. The defendants, however, refused to comply with both the statute itself and court orders issued pursuant to the statute, thereby violating Pruett’s right to due process. Over two months before his scheduled execution, after exhaustively litigating his claims in state court, Pruett filed a 1983 action in the district court claiming Respondents Choate and Baylor violated his right to due process in a myriad of ways. Specifically, Pruett claimed that Respondent Baylor (who conducted DNA analysis after the trial court found Pruett was entitled to such analysis under the Texas statute) violated his right to due process by refusing to give him copies of the data necessary to validate the results of the analysis though she was required by the statute to do so. Pruett claimed that Baylor further violated his right to due process by not attempting to submit the partial profile she developed for comparison to the profiles maintained in the DPS and FBI databases despite the fact that she was required to do so pursuant to both the trial court’s order and the state statute. Pruett finally complained that Respondent Baylor violated his right to due process by failing to conduct analysis ordered by the trial court of the clothes Officer Nagle, the murder victim, was wearing at the time he was killed and by failing to fully execute the trial court’s order regarding the analysis of the weapon. With respect to 2 Respondent Choate, Pruett claimed that if Choate possessed the clothing at issue, he violated Pruett’s right to due process by failing to deliver this evidence to Respondent Baylor so that she could conduct the ordered analysis. Before seeking relief from the federal courts, Pruett sought relief from the Texas Court of Criminal Appeals (“CCA”). In denying Pruett relief, that court authoritatively construed Texas’s statute in a way that purportedly justified Respondents’ actions. Although the statute gives applicants the right to funds reasonably necessary to employ expert assistance, the CCA construed the statute in a manner to justify the trial court’s refusing to authorize such funds for Pruett. While the statute mandates that all profiles developed during analysis be compared to those contained in the DPS and FBI databases, the CCA held in Pruett’s case, apparently for the first time, that an inmate must prove the profile developed meets the criteria for submission. While the statute mandates that the analyst who performs the testing is required to deliver to the inmate a copy of the data required to validate the analysis, the court held that Pruett was not entitled to the data required to validate the analysis. The complaint Pruett filed in the district court asked that court to declare that the Texas statute, as applied to him, is unconstitutional and that the Eighth Amendment will not permit his execution until he receives the process he is due. Pruett asked the district court to order Respondents Baylor and Choate to release the evidence necessary (including the clothing and data) for Pruett to receive the analysis he is due. Pruett asked the district court to order Respondents Collier, 3 Davis, and Jones not to execute him until he has received the process he is due. Finally, Pruett asked the district court to authorize the analysis which Defendant Baylor was obligated to conduct, but which she failed to conduct. This Court held in Skinner that a § 1983 complaint states a claim on which relief can be granted and should be found sufficient to proceed if the claims presented are “sufficient to cross the federal court’s threshold.” Satisfying this standard “generally requires only a plausible ‘short and plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.” Skinner v. Switzer, 562 U.S. 521, 530 (2011). As is more fully discussed below, Pruett’s complaint easily satisfied the Skinner standard. Indeed, one of Pruett’s claims was identical to Skinner’s: that Respondent violated his rights by refusing to release evidence for testing (in Pruett’s case, the victim’s clothes). The district court, however, misconceived its authority to grant relief, and after doing nothing with the complaint for two months, granted Respondents’ motion to dismiss. The court below also misconstrued the nature of Pruett’s claims and its authority to grant relief, and affirmed the lower court’s denial of a stay of execution. The stay of execution, however, would have been entirely unnecessary had the district court acted with alacrity and ordered the State actors to adhere to due process. In that circumstance, the DNA evidence in this case that remains in the possession of the State while also remaining untested and uncompared to other DNA maintained in law enforcement databases would have been tested, and Pruett would be exonerated, and the actual 4 murderer’s actual identity likely known. Opinion and Order Below. The decision of the United States Court of Appeals for the Fifth Circuit affirming the district court’s order dismissing Pruett’s complaint and finding he was not entitled to a stay of his execution was issued on October 6, 2017. The opinion is attached as Appendix A. Pruett v. Choate et al., No. 17-70021 (5th Cir. Oct. 6, 2017). The district court’s order finding Mr. Pruett’s complaint failed to state a claim upon which relief could be granted, granting Respondents’ motion to dismiss, dismissing Pruett’s complaint with prejudice, and finding Pruett was not entitled to a say of his imminent execution was handed down on September 25, 2017. The order is attached as Appendix B. Mem. & Order, No. 4:17-cv-02418, Sept. 25, 2017, ECF No. 19. Statement of Jurisdiction. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). Constitutional Provisions and Statutes Involved. The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Fourteenth Amendment to the United States Constitution provides, in pertinent part: “….nor shall any state deprive any person of life, liberty, or property, without due process of law…” U.S. Const. amend. XIV, § 1. 42 U.S.C. § 1983: Appendix C 5 Tex. Code Crim. Proc. ch. 64: Appendix D Tex. Code Crim. Proc. art. 38.43: Appendix E Statement of the Case. Daniel Nagle, a correctional officer at the McConnell Unit, was murdered on December 17, 1999. 42 R.R. 236.1 The murder weapon was a shank. Officer Nagle was stabbed at least eight times. At the time of Officer Nagle’s murder, Pruett was serving a 99-year sentence. At the age of seventeen, he was convicted as a party to a murder committed by his father when Pruett was only fifteen years old. (His father remains incarcerated for that offense.) Pruett himself had never been convicted of committing any violent offense, and from the time he was indicted for capital murder in this case, he has steadfastly maintained his innocence. The State’s theory at trial was that Pruett, who was serving a prison sentence after being convicted as a party to a murder his father committed when Pruett was fifteen years old, had murdered Officer Nagle because he was upset that Nagle had reprimanded him for carrying a sandwich into the recreation yard. The State’s sole evidence for this motive was that torn pieces of the disciplinary report pertaining to the sandwich were found near Officer Nagle’s body. Pruett’s claim of innocence, aside from being supported by the complete lack of any physical evidence connecting him to the crime (as more fully discussed below) 1 Citations to the Reporter’s Record of Pruett’s 2002 capital murder trial, trial court cause number B-01-M015-0-PR-B, are cited herein as [volume number] R.R. [page number]. 6 and by an exceedingly thin motive, is especially plausible because there were others who in fact did have a powerful motive to see Officer Nagle murdered. In the months leading up to his death, Officer Nagle was working on a lengthy grievance against TDCJ. This grievance complained (among other things) of corrupt senior officers at the Unit where he worked.2 The grievance he was penning proved to be both shocking and poignant: A month after Officer Nagle was killed, three correctional officers who worked at the McConnell Unit – including one who prominently testified against Pruett – were indicted on felony bribery charges after being accused of agreeing to launder drug money for inmates.3 The evidence that some of these officers may have had a motive to see Officer Nagle dead is not mere speculation; according to Scott Kimes, who was incarcerated at the McConnell Unit when Officer Nagle was killed, correctional officers knew that Officer Nagle had been attacked but allowed him to lay in the multipurpose room dying before they made any effort to save him. ECF No. 1-4. 4 2 See Nate Blakeslee, Shades of Gray: In Texas Prisons, It’s Hard to Tell Who Your Enemies Are, Austin Chron., Apr. 28, 2000, available at http://www.austinchronicle.com/news/2000-04-28/77012/ [https://perma.cc/8ARMLFNB]. Associated Press, 4 state corrections officers charged with bribery, Amarillo Globe News, Jan. 27, 2000, available at http://amarillo.com/stories/012700/tex_LD0612.001.shtml#.WVaJf8aZNuU [https://perma.cc/6Q62-W7ZS]; Maurice Chammah, Scheduled Execution Revives Debate Over Prison Staffing, N.Y. Times, Apr. 18, 2013, available at http://www.nytimes.com/2013/04/19/us/execution-revives-debate-over-texas-prisonstaffing.html. 3 Because of the speed at which Pruett’s case proceeded in the court of appeals, an electronic record on appeal was not prepared. Cites to the record of the 4 7 Moreover, Officer Nagle had expressed fear his life was in danger. Crime Watch Daily, Is Man on Texas Death Row Innocent – Pt. 2, https://www.youtube.com/watch?v=Lno7_cIjdrE. The Physical Evidence. The physical evidence collected during the investigation was found primarily in two separate locations. Officer Nagle was killed in the multipurpose room. The murder weapon (the “shank”) that was used to kill him was recovered from that room. 42 R.R. 274, 320. Pruett’s prints were not found on the weapon. 44 R.R. 49. At that time, the only DNA profile that could be developed from the weapon was a match to Officer Nagle. 42 R.R. 337; ECF No. 1-1. During this pretrial testing (i.e., the 2000 analysis), only the bloodstains on the weapon were analyzed. Id.; ECF No. 1-2; ECF No. 1-3 at 62 (noting the diagram made by the analyst indicates she tested stain “a” and stain “b”). A blue baseball cap was found in the toilet of the bathroom inside the multipurpose room. 42 R.R. 322. No physical evidence connected this item to Pruett, either. Blood, identified as belonging to Officer Nagle, was found on the bathroom wall. Id. at 322-23, 357. No blood belonging to Pruett was anywhere on Officer Nagle or his clothes. 44 R.R. 49. Nor was any of Officer Nagle’s blood found on Pruett or anything (including clothes) connected to him. 42 R.R. 346-47, 360. The disciplinary report, which had been torn into seven pieces, was scattered proceedings in the district court under cause number 4:17-cv-02418 appear in this petition as ECF No. [document number] at [number(s) of appropriate page(s) within the cited document]. Pruett’s is the first document listed on the docket. Exhibits to Pruett’s complaint are cited herein as ECF No. 1-[exhibit number]. 8 on the floor of the bathroom inside the multipurpose room. Id. at 331-33. The State’s theory was that Pruett killed Nagle because Nagle had written this report, which cited Pruett for having food in an area of the prison where inmates were not supposed to have food. The disciplinary report contained biological material. One piece of the report had blood. Id. at 366. The blood that was tested on the disciplinary report belonged to Nagle. Id. Latent prints were found on several pieces of the disciplinary report. 43 R.R. 41-42; 52 R.R. 337-38. The prints on the report did not belong to Pruett. 44 R.R. 49. None of the blood found anywhere in the multipurpose room belonged to Pruett. Id. Neither blood on the report nor any of the other physical evidence collected from the multipurpose room identified Pruett as having been present there. Other evidence was collected in the gymnasium and in the bathroom inside the gymnasium. A pair of pants and a white towel were found in the trashcan of the bathroom inside the gymnasium. 42 R.R. 341. Another pair of pants was found in another trashcan outside of the bathroom. Id. While blood on these items of clothing belonged to Pruett, who had cut his finger earlier in the day (i.e., prior to the murder of Officer Nagle), none of Officer Nagle’s blood was found on any of the clothes recovered from the gym area. Id. at 346-47, 360. Prior to Pruett’s trial, Respondent Baylor (a forensic analyst employed by the Texas Department of Public Safety (“DPS”)) performed forensic analysis on the torn pieces of the disciplinary report, the murder weapon, Officer Nagle’s clothing, and various other pieces of recovered evidence. As her trial testimony and contemporaneously drawn diagrams 9 confirm, her pretrial analysis was limited to analyzing bloodstains. This is exactly what one would expect of forensic analysis conducted in 2000. None of the testing connected Pruett to the crime. The Trial. Pruett’s trial began on April 15, 2002. Because no physical evidence linked Pruett to Officer Nagle’s death, the State’s evidence during guilt/innocence consisted almost entirely of testimony from correctional officers and inmates. The only supposed eyewitness testimony came from inmate informants. Such so-called snitch testimony is notoriously unreliable. See generally Brandon Garrett, Convicting the Innocent 118-44 (Harvard Univ. Press 2012). In this case, the unreliability of the snitch testimony is readily apparent. In the first place, the testimony from these inmate informants was inconsistent in significant and material respects (so much so that the prosecutor apologized for it during closing argument). In addition, these witnesses received deals from the State in exchange for their testimony and many of these secret deals, which were not known to the jury, were not disclosed to Pruett’s counsel until after the trial. The jury began deliberating immediately after lunch on Monday, April 22, 2002. 46 R.R. 79-80. The fact that the jury considered the State’s case weak is evident from the fact that jurors spent an entire day deliberating guilt/innocence. The jury deliberated until after lunch the following day. 47 R.R. 16-17. Pruett was found guilty on April 23 and sentenced to death on April 30. Id. at 17; 51 R.R. 57. 10 Post-Conviction Chapter 64 Proceedings, 2013. From the time of his arrest, Pruett has consistently maintained his innocence. Consequently, in order to prove he did not commit the crime, and with the hope of identifying the actual perpetrator(s), Pruett invoked a state law that permits post-conviction DNA testing. Pruett filed two separate motions pursuant to Chapter 64, one in 2013, and the other in 2015. While the Due Process claims presented in this Petition and in the 1983 action pertain to the 2015 proceedings, a brief summary of the 2013 proceedings helps illuminate the context. On May 9, 2013, Pruett filed a Motion for Post-Conviction DNA and Palm Print Testing. Believing that a palm print on the torn pieces of the disciplinary report indicated the presence of epithelial cells that could be used to develop a DNA profile, Pruett asked the court to order the report be subjected to forensic analysis. Pruett further requested that the palm print on the report be compared to the palm print database maintained by DPS. It was Pruett’s belief this analysis could reveal the identity of the person who killed Officer Nagle and attempted to frame Pruett for his murder. On June 6, the DPS issued a report stating it was unable to match the palm print on the report with any of the prints maintained in its database. On July 9, the DNA lab apparently issued a report stating the results of its analysis were inconclusive.5 As it happened, however, once Pruett’s counsel finally obtained 5 The reason undersigned counsel states the DPS “apparently” issued the report in July is that although the report is dated July 9, it was not shared with Pruett’s counsel at the time. More than three months later, on September 10, 2013, Pruett’s counsel learned that the testing was complete when he received a two-page report from the University of North Texas Center for Human Identification 11 the lab’s report and underlying data (see supra note 5), it became clear that the new testing had produced something new and meaningful. The raw data in the file revealed the presence of genetic markers at several loci, but neither the lab nor any other agency of the State had made any attempt to determine whether Pruett and Nagle could be excluded as possible contributors to the sample. The State’s indifference to identifying the actual murderer and avoiding the execution of an innocent person would be shocking under any scenario, but in this case, the State’s indifference took place despite the existence of a court order specifically directing it to compare profiles with those in its database. A review of the raw data performed by an expert hired by counsel for Pruett determined that the DNA found on the report could have come from approximately one-third of the guards and inmates at the McConnell Unit on December 17, 1999. Given the motive of others at the prison to carry out the murder, and given Officer Nagle’s known fears, these results are significant. The trial court nevertheless ruled that even though post-conviction DNA testing showed that one in three of the people at the prison could be connected to Officer Nagle’s murder, even had the results of the testing been available at trial, the result would have been the same. The CCA affirmed the trial court’s findings. Pruett v. State, No. AP-77,037, 2014 WL 5422573 (Tex. Crim. App. Oct. 22, 2014). Post-Conviction Chapter 64 Proceedings, 2015. To their surprise, counsel for Pruett eventually learned that the murder (“UNTCHI”), dated July 9, indicating the testing of the disciplinary report was inconclusive. 12 weapon used to kill Officer Nagle had never been subjected to any post-trial DNA analysis. For a decade and a half, the State had in its possession the murder weapon, a portion of which (i.e., the tape wrapped around the weapon’s handle) is widely known in the forensic community to hold and preserve biological material for many years. See, e.g., M. Barash, et al., The Use of Adhesive Tape for Recovery of DNA from Crime Scene Items, 55 J. Forensic Science 1058 (2010). Yet the State took no steps to test the evidence, or even to reveal to Pruett’s counsel that the evidence had not been tested. Accordingly, in April 2015, Pruett’s counsel asked the court to order DNA testing on the shank that was used to kill Officer Nagle. Specifically, the motion asked the court to order the blood found at the handle end of the shank be subjected to newer, more sophisticated DNA analysis, which might be capable of yielding a genetic profile from the stain (which had yielded inconclusive results through the 2000 analysis). Pruett also asked the court to order that the shank be analyzed to determine whether any epithelial cells could be tested. Pruett further asked the court to order the adhesive tape that had been wrapped around the handle end of the weapon be analyzed. Finally, pursuant to article 64.035, Pruett requested that any unidentified profiles developed during testing be compared to the databases maintained by the DPS and FBI. The court granted Pruett’s Motion for Post-Conviction DNA Testing and further ordered that not only the shank and the tape that had been wrapped around its handle be “tested for possible DNA analysis, including epithelial cells” but also that the lab test several other items, including the pants and shirt Officer Nagle 13 was wearing at the time he was killed. ECF No. 1-5. The DPS lab performed some additional testing and issued a report. The results of the report were staggering: It revealed that a partial DNA profile purportedly belonging to an unknown female had been developed from the sample taken from the murder weapon. ECF No. 1-9. As required by state statute, the trial court convened a hearing to address the results of the analysis. At the hearing, the thrust of the State’s argument was that the testing of the weapon conducted in 2015 was the same as what had been performed in 2000;6 and therefore, because the unknown DNA profile had not been found in 2000, the newly present DNA must have resulted from contamination.7 The State’s desperate assertion of contamination is simply that – an assertion; it lacks any evidence to support it, and a wealth of evidence contradicts it. 6 One of the several reasons for which counsel asked the district court to authorize funds for counsel to hire expert is to determine whether analysis of epithelial cells was performed by any of the Texas DPS labs in 2000. It is counsel’s understanding that this technology was in its infancy in 2000 and was far from being widely available. It is counsel’s further understanding that this technology was not being regularly used, and perhaps not used at all, by the DPS labs at the time of Pruett’s trial. The fact that the State chose to have the UNTCHI perform the 2013 analysis in this case (which included touch-DNA analysis) seems to at least suggest that even as late as 2013, this type of analysis was not conducted at the DPS lab. Even in May 2015, the DPS lab suggested that any touch-DNA analysis should be performed by the UNTCHI. ECF No. 1-6. To support her claim that the newly developed profile resulted from contamination, Lisa Harmon Baylor, the State’s analyst, claimed diagrams she created during her 2000 analysis could demonstrate that the pretrial analysis included swabbing the entire weapon for epithelial cells. Baylor refused to give to Pruett these diagrams, which, if they actually exist, would flatly contradict her other diagrams and trial testimony. 7 14 In the first place, touch DNA analysis was not widely performed in 2000,8 and was not performed by the lab in Texas that performed the pre-trial testing, so there would have been no reason for the analyst in 2000 to swab the portions of the murder weapon that were swabbed in 2015. To be sure, the analyst intimated at the 2015 hearing she had swabbed the entire surface area of the weapon in 2000, but that testimony was flatly belied by contemporaneous drawings she made at the time of the original testing. Compare ECF No. 1-3 at 60, 65-66, with ECF No. 1-2.9 In addition, regardless of whether the analyst swabbed the entire surface of the weapon in her 2000 analysis, there is one area of shank that has been preserved since Pruett’s 2002 trial: the area covered by the evidence tag placed on the shank at Pruett’s trial. If the same profile developed during the 2015 analysis or any other profile were found to be present on this area of the shank, there could be no doubt 8 For a brief description of various touch-DNA collection techniques, all dating to the years after Pruett’s trial, see Angela L. Williamson, Touch DNA: Forensic Collection and Application to Investigations, 18 J. Assoc. Crime Scene Reconstruction 1 (2012). Those illustrations, drawn by the analyst during the 2000 testing, indicate that her analysis of the weapon at that time was limited to the two bloodstains found on the weapon. ECF No. 1-2. This is consistent with her testimony from the 2002 trial, and it is precisely what one would expect given the technology available in 2000. However, at the August 13, 2015 hearing, she insisted that the 2000 analysis included swabbing the entire weapon to determine if epithelial cells were present. ECF No. 1-3 at 64-65. The analyst claimed her memory of this testing – completed fifteen years earlier – was more accurate than the diagrams she created while conducting the analysis. ECF No. 1-3 at 63. The analyst suggested she might have other drawings or notes that would indicate she swabbed the entire weapon during the 2000 analysis. Id. Yet no data handed over to counsel supports the claim that the entire weapon was swabbed prior to Pruett’s trial. Nor does the lab at which the analyst worked in 2000 appear to even have been performing so-called touch-DNA analysis at the time. See supra note 6. 9 15 that it was not the result of post-trial contamination. Counsel questioned the analyst regarding whether the swab she took in 2015 included the area underneath the evidence tag. The analyst answered that she was able to move the evidence tag so that she could swab the area underneath the tag. ECF No. 1-3 at 50, 65-66. However, both the illustration she drew while conducting the analysis and the worksheet on which she described the source of the swab indicate that she swabbed on either side but not underneath the evidence tag. ECF No. 1-10; ECF No. 1-11. Further, it is uncontested that the analyst did not swab the sticky side of the evidence tag. ECF No. 1-3 at 66. Any epithelial cells present on the surface area covered by the evidence tag might well have been transferred to the sticky side of the tag. The analyst’s testimony revealed other failures to comply with the court order to perform complete and robust testing. Yet despite counsel’s protestations, neither the court nor the prosecution insisted on compliance. For example, trial testimony suggests that Officer Nagle’s killer was standing over him and straddling his body as he was stabbed. Given this scenario, it is highly likely that Officer Nagle’s killer left epithelial cells on his clothes. That is the very reason Pruett requested the clothes be tested, and the trial court ordered the testing to take place. Yet Ms. Baylor revealed she had not even swabbed the clothing to determine whether there were epithelial cells present on the clothes from which a DNA profile 16 could be developed.10 ECF No. 1-3 at 54-55. Counsel for the State (who had drafted the order signed by Judge Richardson on May 8) clearly indicated the analysis was to include additional swabbing of the clothes worn by Officer Nagle.11 ECF No. 1-7; ECF No. 1-13. Counsel for Pruett asked the court to order the analyst to comply with the testing order; inexplicably and without offering any justification, the court refused. In addition, the lab was required by article 64.035 to submit the partial profile obtained from the murder weapon for comparison with those contained in the databases of the FBI and DPS, yet the lab did not do so. The analyst revealed not only that she did not conduct this comparison, but also that the process is not one routinely performed by her lab or something with which she is even familiar. ECF No. 1-3 at 60-62. Again counsel for Pruett requested the court order this comparison – which was mandated by its prior order and by statute – be performed; again the court refused. Four days after learning at the August 2015 hearing from the analyst’s testimony that a great deal of testing and analysis had still not been carried out, counsel filed a motion asking the court to order that the analyst comply with the 10 A submission report indicates Respondent Choate delivered the shirt Pruett was wearing on the day Officer Nagle was killed to Baylor in 2015, and Baylor subsequently took additional samples from Pruett’s shirt. There is no indication that Choate delivered Officer Nagle’s clothing to Baylor. If Choate withheld the evidence from Baylor, his actions violated the trial court’s order and Pruett’s right to due process. 11 While the State delivered the shirt believed to have been worn by Pruett to the lab, ECF No. 1-12, and the lab swabbed additional stains from the shirt, ECF No. 1-11, it does not appear that the State delivered Nagle’s clothes to the lab. 17 court’s earlier order and analyze completely the area of the weapon covered by the evidence tag as well as the sticky side of the tag. 1 C.R. 5-8.12 Counsel’s motion emphasized not only that the court had already ordered this very testing, but also that these two areas of the weapon could not possibly have been contaminated because they were protected by the presence of the evidence tag. As a result, if the analysis of a swab collected from these two areas yielded a profile consistent with the partial profile (or any other profile), the cells that yielded the profile would have had to have been deposited pretrial. As indicated above, the court denied relief. It did not order the analyst to perform the testing it had previously ordered. It did not order the analyst to perform testing that could have conclusively revealed whether the partial DNA profile was already present at the time of Pruett’s trial. It did not direct the analyst or the State to provide to Pruett’s counsel copies of emails and diagrams. It did not order that the partial profile be compared to other profiles maintained in the DPS or FBI databases. It did not explain any of these denials. Yet each of these refusals violated either a previous order of the court or the state statute itself. And of course, even more, each of these refusals represents a deliberate indifference to the prospect that Pruett is actually innocent. Pruett appealed the trial court’s findings to the CCA on February 22, 2016. On April 5, 2017, the CCA issued its opinion affirming the trial court’s findings. 12 Citations to the Clerk’s Record in this Petition are to the Clerk’s Record of the DNA proceedings that were appealed to the CCA as Cause No. AP-77,065 and are cited as [volume number] C.R. [page number]. 18 Pruett v. State, No. AP-77,065, 2017 WL 1245431 (Tex. Crim. App. Apr. 5, 2017). While recognizing that the trial court had to have determined that the evidence had not been contaminated, but then later, only after the unknown DNA was revealed, decided instead that the evidence had in fact been contaminated, the CCA ruled that nothing prevented the trial court from reversing its opinion on this crucial question even though, in another case the CCA did not mention, it had ruled precisely the opposite. Compare Pruett, 2017 WL 1245431, at *12, with State v. Swearingen, 478 S.W.3d 716, 720 (Tex. Crim. App. 2015) (noting chapter 64 proceedings “are also subject to the ‘law of the case’ doctrine” in order to promote “judicial efficiency and consistency”). Like the conclusion of Judge Richardson (who also sits on the CCA), the CCA brushed aside the fact the trial court’s order had not been fully carried out by asserting that “[n]o additional testing can change” that the partial profile was the product of contamination. Id. The court’s opinion did not address that two areas of the shank that were not tested (despite the court order that the entire weapon be tested) and could settle once and for all whether the unknown DNA profile resulted from contamination. Nor did the CCA mention that, even if there were contamination, that conclusion would only demonstrate that the State had violated another provision of state law by failing to ensure the weapon is properly preserved. See Tex. Code Crim. Proc. art. 38.43.13 13 This provision mandates the State ensure biological evidence collected in the investigation of a felony be retained and preserved until the inmate dies, is executed, or is released on parole. Tex. Code Crim. Proc. art. 38.43(c)(2)(A). 19 To this day, Pruett has not been able to provide all the relevant data to an independent analyst because the State has refused to release it. The prosecution and the state courts have stood in the way of identifying the actual murderer. Although chapter 64 entitles Pruett to all the data generated during testing required to evaluate the analysis, the CCA held that the analyst’s drawings indicating the areas of the weapon that were tested in 200014 were not included within the meaning of “data.” Pruett, 2017 WL 1245431, at *13.15 The clear purpose of the statute is for an applicant to receive copies of all the files necessary to validate the analysis. In Pruett’s case, where the trial court and the CCA both held the recent analysis would not have affected the outcome of his trial because the profile developed during the analysis resulted from post-trial contamination, any diagrams that show exactly what areas of the weapon were swabbed during both the 2000 and 2015 analysis are clearly data as that term is envisioned by Texas’s statute. The court likewise held that any purported emails between counsel, counsel for the State, and the analyst were not “data” under 64.03(d)(3).16 Id. At the August 13 hearing, the analyst stated there were other drawings that might support her testimony that the 2000 analysis included swabbing the entire surface of the shank. ECF No. 1-3 at 63. 14 The court further wrote that the requirements of article 64.03(d) do not apply when the requested analysis is performed at a DPS lab. Pruett, 2017 WL 1245431, at *12 n.14. 15 Baylor claimed at the August 2015 hearing that counsel communicated with her via email that she need not perform Y-STR analysis to confirm whether the profile she developed did, in fact, belong to a female. Counsel sent Baylor no such emails. While this point might seem inconsequential as these emails the analyst claimed at the hearing exist do not actually exist, by refusing to order the 16 20 With respect to article 64.035, which mandates that all profiles developed during testing be compared to the profiles in the FBI and DPS databases, the CCA held in Pruett’s case (for the first time) that an applicant must prove that the profile developed during analysis satisfies the criteria for submission before he is entitled to have any profile developed pursuant to Chapter 64 compared to those contained in the FBI and DPS databases. The legislature intended no such burden. Moreover, an applicant cannot possibly satisfy this newly created burden unless he is given both expert assistance and all the data related to the testing. (The CCA found Pruett was entitled to neither.) The court further held that Pruett could not show he was harmed by the lab’s failure to carry out this comparison. Id. (This aspect of the court’s ruling is truly inexplicable; Pruett was obviously harmed, because if the comparison revealed a match, there would be a suspect connected by biological material to the murder weapon.) Finally, the CCA held that Pruett was not entitled to analysis of the clothes Officer Nagle was wearing. The Court held that the trial court had not intended for the analyst to take additional samples. This holding simply makes no sense when compared to the clear mandate of the order. Given that Baylor took additional samples of the item of evidence Choate delivered to her (i.e., Pruett’s shirt), it seems clear that she – at least initially – interpreted the trial court’s order as requiring her to take additional samples. (And the fact that Choate delivered the shirt to analyst to turnover any such emails, the trial court and the CCA have allowed the analyst not to perform Y-STR analysis (which could confirm whether the unknown profile came from a female) under the guise that counsel instructed her not to do so. And if there are any emails sent by Respondent Choate’s office to Baylor instructing Baylor not to conduct this analysis (and in doing so, to ignore the court’s order to conduct all possible analysis), these emails constitute files to which Pruett is entitled a copy under article 64.03(d). 21 Baylor suggests the same of him.) Proceedings in the District Court. More than two months before his scheduled execution, on August 7, 2017, Pruett filed his complaint pursuant to section 1983 in the district court. Pruett’s complaint raised claims that Texas’ forensic analysis statute, as applied to him, violated his due process rights pursuant to the Fourteenth Amendment and his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment. The essence of Pruett’s action was that Pruett had been arbitrarily deprived of what he was entitled to by virtue of Chapter 64. This deprivation took two forms: the State’s utter refusal to do what Chapter 64 requires (e.g., compare the partial profile recovered from the murder weapon to existing DNA databases); and the courts’ refusal to enforce orders directing state officials to perform DNA analysis to which Pruett is entitled under the statute (e.g., the order that Officer Nagle’s clothing be testing for the presence of DNA and that the sticky side of the tag wrapped around the shank be tested for epithelial cells). Pruett’s complaint asked the district court to declare Texas’s statute to be unconstitutional as applied to him. Pruett’s complaint asked the district court to order Respondents Baylor and Choate to release Officer Nagle’s clothes, the shank, and copies of all the files necessary to validate the results of the analysis that has been done. Pruett’s complaint asked the district court to order Respondents Collier, Davis, and Jones to not execute him until the analysis that he is due has been conducted. Pruett’s complaint did not ask for a stay pending the disposition of his 22 complaint. Having filed Pruett’s complaint over two months before his scheduled execution, counsel believed there was sufficient time for the district court to address the merits Pruett’s claims without staying his execution. Pruett’s complaint asked the district court to stay Pruett’s execution only if it found that he was entitled to the other relief he requested. Pruett’s due process claims are summarized below. At the outset of Pruett’s due process claims, counsel traced the CCA’s long history of applying Texas’ statute in a manner inconsistent with what the legislature intended. ECF No. 1 at 28-32. Pruett then presented to the district court three additional ways in which the CCA ignored the clear intent of the legislature in his case. First, the CCA held Pruett responsible for the State’s failing to preserve evidence. ECF No. 1 at 33-34. Throughout state court proceedings, the State maintained that the shank that was used to kill Officer Nagle was contaminated and that people working with counsel for Pruett contaminated the weapon. In denying Pruett relief, the state court held Pruett responsible for the State’s failing to preserve the weapon. The same legislation that created chapter 64 (the section of the code of criminal procedure that contains Texas’ forensic analysis statute) amended the Texas Code of Criminal Procedure by creating article 38.39, later renumbered as article 38.43. Act of Apr. 5, 2001, 77th Leg., R.S., ch. 2, § 1, 2001 Tex. Gen. Laws 2. Article 38.43 establishes that State agencies, prosecutors’ offices, and crime labs are obligated to ensure that biological evidence in capital cases is preserved until an inmate is executed, dies, or is released on parole. See Tex. Code 23 Crim. Proc. art. 38.43(b)-(c). This provision became effective seven months before Pruett’s 2002 capital murder trial commenced. By holding Pruett responsible for the State’s failing to do what is was required, the CCA ignored state law. Moreover, in proceedings in the district court, Respondents for the first time admitted that if the weapon has been contaminated (and there is no evidence that it has been because to this day Respondents have refused to do the analysis that could reveal whether the evidence has, in fact, been contaminated), then it might have been contaminated at or around the time of Pruett’s trial when the State allowed multiple people to handle the weapon without wearing gloves. ECF No. 15 at 38. This admission by Respondents is tantamount to an admission that they violated Pruett’s right to due process soon after the Texas statute was enacted. Second, Pruett argued the CCA violated the intent of the legislature by finding he was not entitled to have the profile developed during the analysis compared to those contained in the databases maintained by the FBI and DPS. ECF No. 1 at 34-36. The CCA held that it was Pruett’s responsibility to demonstrate that the profile developed during analysis satisfied the criteria required to be uploaded to these databases. Counsel believes Pruett’s case is the first in which the CCA has held that it is permissible for a lab and trial court to ignore the mandate of article 64.035. The court’s newly announced rule in Pruett – that the inmate must prove that the newly discovered profile satisfies the requirements for submission to the databases – is not contained in the legislature’s statement of its intent in enacting the provision. See H. Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 24 122, 82d Leg., R.S. (2011), available at http://www.legis.state.tx.us/tlodocs/82R/analysis/html/SB00122H.htm [https://perma.cc/9C3A-RMY4] (explaining that the bill would “require the court to order any profile discovered … to be compared with the DNA profiles in the [FBI’s] database” because “[s]uch a comparison could be used to identify the actual perpetrator and exonerate the convicted”). Inmates like Pruett have no means of knowing whether a profile satisfies the submission requirements. DPS personnel are obviously the people most familiar with the requirements a profile must satisfy to be submitted to its database.17 The only DPS employee to whom Pruett had access – Respondent Baylor – claimed not to know the requirements for submission. ECF No. 1-3 at 60-62. The court’s holding that Pruett cannot avail himself of article 64.035 simply because the DPS analyst in his case was not familiar with submission requirements renders the newly enacted provision toothless and cannot be what the legislature intended. This comparison could prove crucial in Pruett’s case. If the profile matched to a profile belonging either to someone that was incarcerated or employed at the McConnell Unit on December 17, 1999, there could be little doubt that this person killed Officer Nagle. Third, the CCA’s decision in Pruett thwarted the legislative intent behind the 17 Of course, had Pruett’s motion for funds for expert assistance been granted, Pruett’s expert could have opined as to whether the partial profile satisfied the submission requirements. The trial court’s refusal to grant funds for an expert left Pruett without the means to satisfy what the CCA held – apparently for the first time – a defendant must show to be entitled to the comparison made available to him by article 64.035. 25 enactment of article 64.03. ECF No. 1 at 36-38. The CCA held that Pruett was not entitled to data generated during testing because it does not believe the requirements of article 64.03(d) apply when the requested analysis is performed at a DPS lab. Pruett, 2017 WL 1245431, at *12 n.14.18 The gist of this holding, of course, is that it precludes a death row inmate from having his own expert review the work performed and conclusions reached by the State’s analyst. Pruett’s case is not in which a Texas court has held that an inmate is not entitled to the data that is necessary either to have faith in the veracity of the analysis or to challenge it at a hearing because the analysis he requested was conducted by a DPS lab. See, e.g., Booker v. State, 155 S.W.3d 259, 264 (Tex. App.—Dallas 2004, no pet.). Yet the CCA’s reading is unwarranted by either the quest for truth or the language of the statute. The legislative history makes clear that the Legislature intended for the provisions of 64.03(d) to apply to all chapter 64 motions. H. Research Org., Bill Analysis at 3, Tex. S.B. 3, 77th Leg., R.S. (2001), available at http://www.hro.house.state.tx.us/pdf/ba77r/sb0003.pdf#navpanes=0 [https://perma.cc/H2AY-9VJS]. The only reasonable interpretation of 64.03(d) is 18 In district court proceedings, Respondents argued that the CCA held Pruett was not entitled to the data because he did not ask. ECF No. 15 at 44. But Pruett did ask Respondent Baylor for a copy of her files (both her file from the 2015 analysis as well as the one generated during the 2000 analysis) before the August 13 hearing. See ECF No. 18 at 4-6. Given that Pruett clearly and repeatedly asked Respondent Baylor for a copy of her file, it seems unlikely the Respondents’ interpretation of the CCA’s footnote is correct. Even if Respondents’ interpretation is correct, the CCA has nonetheless permitted Respondent Baylor to withhold from Pruett the documentation necessary to test the validity of her analysis. Regardless of the court’s reasoning, the state courts and Respondent Baylor have violated Pruett’s right to due process by denying him a copy of these files. 26 that the Legislature determined the DPS lab would always meet the requirements of 64.03(d), and that it is therefore unnecessary for a court to so order. See Jones v. State, 161 S.W.3d 685, 691 (Tex. Crim. App. 2005). As explained above, these files were crucial in Pruett’s case because they could either confirm or disprove Respondent Baylor’s claim that the profile she developed resulted from contamination. Pruett next argued that his right to due process had been violated because analysis that was ordered by the trial court has not been conducted. ECF No. 1 at 38-44. In its May 8, 2015 order, the trial court ordered that the shank “be immediately delivered to the Texas [DPS] Lab in Corpus Christi, Texas, and … be further tested for any possible DNA analysis.” ECF No. 1-5 (emphasis added). While the State’s failing to properly preserve the shank (which it was statutorily required to do) may have led to part of the weapon being contaminated, there is one area of the weapon that has been properly preserved since Pruett’s trial: the area covered by the evidence tag placed on the shank at Pruett’s trial.19 It is uncontested that no one has attempted to swab the sticky side of the evidence tag. ECF No. 1-3 at 66. Any epithelial cells that were present on the portion of the weapon that have been covered by the evidence tag likely transferred from the shank to the adhesive side of the tag. It is highly probable that the person that killed Officer Nagle gripped this portion of the weapon while stabbing Officer Nagle. It is therefore possible that – 19 While the analyst testified at the August 2015 hearing that she swabbed beneath evidence tag, both the diagram and worksheet she created while conducting the analysis indicate she swabbed on either side, but not under, the tag. ECF No. 1-10; ECF No. 1-11. 27 despite the State’s failure to preserve most of the surface of the weapon – that person’s DNA has been preserved either under the evidence tag or on the sticky side of the tag. If the lab had fully executed the trial court’s order to conduct any possible DNA analysis on the shank, the lab would have conducted Y-STR analysis. This type of analysis could have confirmed whether the DNA profile found on the weapon was deposited by a female (as the analyst claimed). The analyst’s worksheet shows that she, in fact, did not identify the profile as being from a female. If the analysis she performed had revealed with certainty that the profile belonged to a female, her STR Data worksheet would show the value X, X for the amelogenin locus. However, she found only one X marker at this locus. ECF No. 1-14. The other marker (whether it be an X or a Y) dropped out. Id. Prior to its most recent admission that numerous people have handled the weapon, the State identified four females and one male – including two female members of Pruett’s team – as being potential posttrial sources of contamination;20 hence, should Y-STR analysis reveal the profile belongs to a male, it would be clear that if the weapon has been contaminated, then no one from Pruett’s team was the source of the contamination. On May 8, 2015, the trial court ordered re-testing of all the physical evidence 20 At the August 13, 2015 hearing, the State offered testimony through William T. Lazenby – who is currently the bailiff/security officer at the Bee County courthouse and who previously oversaw the investigation of Officer Nagle’s murder – testified that he and the district clerk allowed four individuals to handle the shank without wearing gloves. ECF No. 1-3 at 71-73. Two of these four were females who, at the time, were interns that worked with counsel. The other two people – one male and one female – worked for the BBC. 28 in the case, including clothes belonging to both Officer Nagle and Pruett. This order included the requirement that that fifteen items (which included the TDCJ uniform worn by Officer Daniel Nagle) be “tested for possible analysis, including epithelial cells. . . .” ECF No. 1-8. However, at the August 13 hearing, the analyst revealed that she had failed to carry out the court’s order in full. The analyst revealed that she, in fact, had not received the clothes that Officer Nagle was wearing at the time he was killed. ECF No. 1-3 at 53; see supra note 10. Given testimony from eyewitnesses that the murderer was straddling Officer Nagle, see, e.g., 42 R.R. 15, it is difficult to imagine that the person who killed Officer Nagle did not deposit any epithelial cells on his uniform. See, e.g., Lydie Samie, et al., Stabbing Simulations and DNA Transfer, 22 Forensic Science International: Genetics 73-80 (May 2016). As a result, examining the uniform had great potential as a test that could have exonerated Pruett.21 Pruett prayed the district court to (after finding his rights under the Fourteenth Amendment have been violated and that the State’s executing him before he has received all he is due would violate the Eighth Amendment) to stay his execution. ECF No. 1 at 51. Pruett asked the court to authorize funds for him to hire an expert. Id. Pruett asked the court to order the analysis on the weapon and clothes that has yet to be completed. Id. (Of course, implicit in this request (as counsel subsequently made clear, ECF No. 16 at 7 n.4, 18-19) is a request that the 21 Pruett’s complaint also alleged his right to due process was violated by the trial court’s refusing to authorize funds for an expert. ECF No. 1 at 41-50. 29 Court order Respondents Choate and Baylor to release this evidence.) Pruett asked the district court to order the profile developed during the 2015 analysis be compared to all the people the State had then-alleged possibly contaminated the weapon.22 Id. Pruett asked the district court to order the profile developed during the 2015 analysis be compared to those contained in the FBI and DPS databases and to authorize the testing of all physical evidence containing biological material that could demonstrate Pruett’s actual innocence. Id. Finally, Pruett asked the district court to order Respondent Baylor to give Pruett a copy of her file. Id. Pruett did not ask the district court to order the state court to do anything. Contained in this extensive prayer for relief, Pruett asked the district court to order the respondents only to do three things: 1) Pruett asked the district court to order Respondents Collier, Davis, and Jones not to execute him; 2) Pruett asked the district court to order Respondent Baylor or Choate to release the shank and Officer Nagle’s clothes; and 3) Pruett asked the district court to order Respondent Baylor to give him a copy of her file. Pruett’s request was for the district court to order the analysis that he requested be performed elsewhere after Pruett had received custody of the evidence. The district court recognized that Pruett’s claim was that his right to due process had been violated. Appendix B at 9-10. However, relying on an order from a different Texas district court (involving a Texas death row prisoner who is scheduled to be executed on November 16, 2017), the district court held that because the “only relief Pruett [sought was] 22 It was only after Pruett filed his Complaint that the Respondents admitted that they might have let the weapon become contaminated around the time of Pruett’s trial. 30 an order compelling Texas officials … to act so as to allow Pruett independently to effectuate his rights under Chapter 64,” his requested relief was mandamus in nature and his complaint therefore did not raise a claim upon which the court could grant relief (notwithstanding the fact that the complaint alleged constitutional error). Appendix B at 11. This holding files in the face of this Court’s opinion in Skinner v. Switzer. Respondents had attempted to mischaracterize the relief which Pruett sought and had claimed Pruett wanted the court to order Respondents to do the analysis which they had previously failed to do. In his reply, Pruett informed the court that this characterization of the relief he requested was incorrect.23 ECF No. 16 at 18-20. Even recognizing that Pruett confirmed that what he asked for was “an order compelling Texas officials … to act so as to allow Pruett independently to effectuate his rights under Chapter 64,” the court nevertheless found the relief requested in Pruett’s complaint to be mandamus in nature. ECF No. 19 at 11. Because a federal court lacks power to issue writs of mandamus to state courts and state officers, the district court dismissed Pruett’s complaint with prejudiced and denied his request for a stay. The district court did not address whether Pruett’s claims satisfied any further pleading requirements necessary to sustain a Rule 12(b)(6) challenge (i.e., whether his complaint was sufficient to cross the federal court’s threshold). Regarding the stay Pruett had requested if the district court found he was entitled to and then authorized the analysis 23 Given that reviewing the Respondents’ motion to dismiss his complaint pursuant to Rule 12(b)(6) required the district court to liberally construe Pruett’s complaint in his favor, Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986), the district court would have committed error had it accepted Respondents’ mischaracterization of the relief Pruett sought as being the correct interpretation of the relief requested. 31 that Baylor failed to do, the court found that because of the nature of the relief Pruett requested, he had not demonstrated a substantial case on the merits (the standard the court would have had to find Pruett satisfied to find he was entitled to a stay pending the disposition of his case – which, again, is not something Pruett originally asked for in his complaint because, at the time he filed, it was not necessary). The district court entered its order dismissing Pruett’s complaint with prejudice on September 25, 2017 – after having had Pruett’s complaint for forty-nine days. Pruett immediately filed his notice of appeal. Proceedings in the Court of Appeals for the Fifth Circuit. On September 26, the court of appeals ordered Pruett to file his brief by October 2 at 5:00 pm and ordered Respondents to file their brief by October 6 at noon. Pruett timely filed his brief on October 2 and Respondents timely filed their brief on October 6. Less than eight hours after Respondents filed their brief, the court of appeals entered its order affirming the district court’s order dismissing Pruett’s complaint with prejudice. It found that the relief Pruett requested was permissible if his complaint alleged that his right to due process had been violated (something the district court did not question). Appendix A at 5 n.9; see Appendix B at 9. The court then nevertheless affirmed the trial court’s order dismissing Pruett’s complaint because it believed Pruett had not demonstrated likely success on the merits. Appendix A at 6-7. In reaching this conclusion, the court below applied the wrong standard. The Fifth Circuit demanded Pruett present a substantial case on the merits, but that is not the appropriate standard under Skinner, and given the district court’s disposition of the case, there was no record that would allow the court of appeals to assess the substantiality of Pruett’s case. Rather, the Fifth 32 Circuit apparently applied the substantiality test because that is the appropriate standard for obtaining a stay of execution – but the only reason a stay was required is that the district court took no action whatsoever on the complaint for over two months. Finally, the court found Pruett was not entitled to have his execution stayed for the same reasoning that it affirmed the district court’s order. Id. at 8. Where the only reason a stay is necessary is because of a failure of a federal court to timely act, equity ought not to permit the court to decline to issue a stay because of its own dilatoriness. Reasons for Granting the Writ A. This Court should grant certiorari to provide guidance to the federal courts regarding the type of relief that is cognizable in a 1983 action filed pursuant to this Court’s opinion in Skinner v. Switzer. In Skinner v. Switzer, this Court held that a 1983 action that requests only declaratory and injunctive relief could state a claim upon which relief can be granted. Specifically, the Court held that a 1983 action that asks a district court to find a state court’s statute as applied to him is unconstitutional and that asks that court to order the custodians of the physical evidence to release the evidence is one that should withstand a Rule 12(b)(6) motion to dismiss. Skinner v. Switzer, 562 U.S. 521, 529-33 (2011). As noted above, Pruett’s is not the first case in which a district court has found a complaint that asks for essentially the same relief this Court authorized in Skinner failed to state a claim upon which relief can be granted. In Pruett’s case, the district court relied upon a decision entered in the Western District of Texas on July 7, 2017. On October 28, 2016, Larry Swearingen filed a 33 complaint pursuant to section 1983 that asked the district court to find that Chapter 64 – as applied to him – is unconstitutional and to order the custodians of the evidence he believed he is entitled to have tested to release the evidence for DNA testing. Compl. at 24-26, Swearingen v. Keller et al., No. 1:16-cv-01181-LY (W.D. Tex. Oct. 28, 2016), ECF No. 1. On July 7, 2017, the district court dismissed Swearingen’s complaint because it believed that because Swearingen requested only declaratory and injunctive relief, his pleading was properly construed as a petition for mandamus. Order Dismissing Compl. at 7, Swearingen v. Keller et al., No. 1:16cv-01181-LY (W.D. Tex. July 7, 2017), ECF No. 18. Swearingen is scheduled to be executed on November 17, 2017. Both Pruett and Swearingen have requested the type of relief this Court authorized in Skinner. Like Pruett’s, Swearingen’s execution is imminent. This Court should grant certiorari to provide much needed guidance to the district courts as to what type of relief a complainant may request in a 1983 action filed pursuant to this Court’s opinion in Skinner. B. This Court should grant certiorari to provide guidance to the federal courts regarding whether the claims raised in a 1983 action must make a substantial case on the merits to withstand a Rule 12(b)(6) motion to dismiss. In Skinner, this Court explained that to survive a Rule 12(b)(6) motion to dismiss, a complainant need not show that he will ultimately prevail on the claims raised in his 1983 action. Skinner, 562 U.S. at 529-30. Under this standard, a complainant’s claims should survive so long as they give the respondent fair notice of the basis of the claims. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). As 34 should be evident from the summary of Pruett’s claims above, his claims satisfied this standard. Pruett’s complaint gave Respondent Baylor notice that he believed she had violated his right to due process by: denying him copies of the diagrams she testified support her claim of contamination, failing to attempt to submit the partial profile she developed for comparison to the profiles maintained in the FBI and DPS databases, failing to attempt to harvest epithelial cells from Officer Nagle’s clothes, and failing to conduct all possible analysis on the weapon. Pruett’s complaint gave notice to Respondent Choate that Pruett believed he had violated Pruett’s right to due process by failing to deliver Officer Nagle’s clothes to Baylor. Pruett’s complaint gave notice to Respondents Collier, Davis, and Jones that he believed their executing him before he received the process he is due would violate his rights pursuant to the Eighth Amendment. This is not the standard that the court below employed in determining whether to affirm the district court’s order dismissing Pruett’s complaint. The only one of Pruett’s due process claims that the court below analyzed in any detail is Pruett’s claim that he was denied due process by the trial court’s refusing to authorize funds for expert assistance. Appendix A at 7. Rather than asking whether Pruett’s claim gave sufficient notice, the court of appeals analyzed whether Pruett should prevail on the claim. Id. This Court stated expressly in Skinner that this is not the showing a 1983 complainant need make to withstand a Rule 12(b)(6) motion. With respect to Pruett’s remaining claims, the court simply wrote that none 35 of Pruett’s allegations were egregious enough to offend justice. Appendix A at 6. Again, this is not the inquiry the court should have made in determining whether to affirm the district court’s order. Moreover, the court was wrong. See infra Part C. C. This Court should grant certiorari to hold that equity requires that a death-sentenced inmate, whose execution is imminent, have his execution stayed pending the disposition of his claims by the district court when a stay is only necessary because the district court did not timely act on his complaint and then wrongfully dismissed it. In Hill v. McDonough, 547 U.S. 573 (2006), this Court provided guidance to the district courts regarding when it is appropriate to stay an inmate’s execution pending disposition of his claims raised in a 1983 complaint. As this Court made clear, a stay is an equitable remedy, which is not available as a matter of right. Hill v. McDonough, 547 U.S. 573, 584 (2006). There is a strong presumption that an inmate is not entitled to a stay when his “claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Id. Pruett’s case gives this Court the much needed opportunity to address the opposite situation: whether there should be strong equitable presumption in favor of granting a stay when the inmate filed his complaint far enough ahead of his scheduled execution that the district court could have addressed the merits without requiring a stay had that court not failed to act for two months and had not then wrongfully dismissed his complaint. This Court’s opinion in Skinner allows death-sentenced inmates to raise due process claims in a way that is unfamiliar to the district court judges, whose experience with respect to claims from such inmates is either mostly or entirely 36 limited to claims raised pursuant to section 2254. A lack of familiarity with Skinner led the district courts of two of Texas’s four districts to dismiss complaints filed by Texas inmates whose executions are imminent. Such inmates should not be executed simply because the district courts are unfamiliar with Skinner, but that is exactly what will happen to Pruett if this Court does not grant his petition. Pruett acted diligently in pursuing relief. The CCA denied Pruett relief on April 5, 2017. He filed his complaint in the district court a mere four months later, two months before his scheduled execution and two months before the CCA’s decision became final. The district court failed to act on his complaint for seven weeks and then wrongfully dismissed it. In a very short time period, the court of appeals had to address Pruett’s appeal, including whether he had made the showing required for granting a stay. The decision the court of appeals made – that nothing in Pruett’s complaint alleged anything so egregious as to rise to the level of a due process violation – was incorrect. It is simply incorrect to say that the CCA’s decision was not egregious when that court found for the first time that an inmate is not entitled to have the analyst in his case submit the profile she developed during chapter 64 analysis to the DPS and FBI databases for comparison, when the legislature intended all profiles to be submitted and when this comparison could prove his innocence. It is simply incorrect to say the CCA’s decision that Pruett is not entitled to the data required to validate the analysis is not egregious, when the legislature intended for him to have this data, when the data could conclusively refute the State’s claim that 37 the weapon was contaminated, and when the state courts denied him relief because they believed the State’s unsupported claim of contamination. Finally, it is simply incorrect to say that the CCA’s decision finding Pruett was not entitled to have the clothes Officer Nagle was wearing at the time he was killed is not egregious, when the trial court ordered the analysis and when the analysis could demonstrate he is innocent. The court of appeals decision with respect to whether Pruett made the showing required for a stay was simply incorrect. But the court of appeals should not have had to answer that question. 38 Conclusion and Prayer for Relief Mr. Pruett respectfully requests that the Court stay his execution set for October 12, 2017; grant his Petition for Writ of Certiorari; find that principles of equity require an inmate’s execution be stayed pending disposition of his complaint when such a stay would not be necessary had the district court not failed to act on the complaint in a timely manner and not wrongfully dismissed his complaint; and remand for further proceedings. DATE: October 10, 2017 Respectfully submitted, s/David R. Dow ______________________ David R. Dow* Texas Bar No. 06064900 Jeffrey R. Newberry Texas Bar No. 24060966 University of Houston Law Center 4604 Calhoun Rd. Houston, Texas 77204-6060 Tel. (713) 743-2171 Fax (713) 743-2131 Counsel to Robert Pruett *Member of the Supreme Court Bar 39 APPENDIX A Case: 17-70021 Document: 00514187293 Page: 1 Date Filed: 10/06/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-70021 United States Court of Appeals Fifth Circuit FILED October 6, 2017 Lyle W. Cayce Clerk ROBERT LYNN PRUETT, Plaintiff–Appellant, versus JACK CHOATE; LISA HARMON BAYLOR; BRYAN COLLIER, Executive Director; LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division; JAMES JONES, Warden, Defendants–Appellees. Appeal from the United States District Court for the Southern District of Texas No. 4:17-cv-02418 Before STEWART, Chief Judge, SMITH and PRADO, Circuit Judges. JERRY E. SMITH, Circuit Judge:* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 17-70021 Document: 00514187293 Page: 2 Date Filed: 10/06/2017 No. 17-70021 Robert Pruett was sentenced to death for capital murder and is scheduled to be executed on October 12, 2017. On August 8, 2017, he sued under 42 U.S.C. § 1983, alleging that he was denied due process in state proceedings to obtain postconviction DNA testing. He sought injunctive relief regarding the DNA testing and a stay of execution. The district court dismissed the compliant. We affirm. I. In 2002, Pruett was sentenced to death for the murder of Daniel Nagle, a Corrections Officer. At the time, Pruett was serving a life sentence for a prior murder. The evidence showed that Nagle had written a disciplinary report against Pruett shortly before the murder. Nagle was stabbed eight times with a shank made of a metal rod sharpened at one end and wrapped in tape at the other end. The shank and torn disciplinary report were found at the scene. Both were tested for DNA, but no DNA profiles were developed at that time. 1 The Texas Court of Criminal Appeals (“TCCA”) affirmed on direct appeal, Pruett v. State, No.74,370, 2004 WL 3093232 (TCCA 2004), and denied Pruett’s first state habeas corpus application, Ex parte Pruett, 207 S.W.3d 767 (TCCA 2005) (per curiam). The district court denied Pruett’s first federal habeas petition. Pruett v. Thaler, No. C-06-CA-465-H (S.D. Tex. Aug. 12, 2010). This court affirmed. Pruett v. Thaler, 455 F. App’x 478 (5th Cir. 2011) (per curiam). In 2013, Pruett filed a motion in state court for DNA testing on the torn disciplinary report under Texas Code of Criminal Procedure Chapter 64. The trial court granted the motion but concluded that the evidence was not exculpatory, and the TCCA affirmed. Pruett v. State, No. AP-77,037, 2014 WL 1 Additional details may be found in Pruett v. Thaler, 455 F. App’x 478 (5th Cir. 2011). 2 Case: 17-70021 Document: 00514187293 Page: 3 Date Filed: 10/06/2017 No. 17-70021 5422573 (TCCA Oct. 22, 2014). The Supreme Court denied certiorari. Pruett v. Texas, No. 14-8097, 2015 WL 302598 (U.S. Mar. 30, 2015). In 2015, Pruett filed three actions in federal court—a § 1983 suit, 2 a successive habeas petition, 3 and a motion for relief under Federal Rule of Civil Procedure 60(b)(6). 4 We dismissed the § 1983 suit as an unauthorized successsive habeas petition, 5 denied the motion to file a successive habeas petition, 6 and affirmed the denial of Rule 60(b) relief. 7 On the day of his scheduled execution in 2015, Pruett moved for further DNA testing of evidence in state court under Chapter 64. The trial court granted the motion and stayed the execution. The DNA tests and state proceedings that followed form the basis for the present case. As Pruett had requested, the trial court ordered DNA testing of the metal rod and the tape wrapped around its handle, along with thirteen additional items. The results of those tests were generally consistent with the pretrial DNA tests. 8 DNA profiles consistent with Pruett were on his clothes; profiles consistent with the victim were on the victim’s clothes; and no profile was obtained from testing the masking tape on the handle of the metal rod. A swab of the rod, however, revealed an unknown female profile. The trial court heard testimony from the analyst who performed both the pretrial DNA testing and the 2015 DNA testing. It also heard evidence that the rod had been handled 2 In re Pruett, 784 F.3d 287 (5th Cir. 2015) (per curiam). 3 In re Pruett, 609 F. App’x 819 (5th Cir. 2015) (per curiam). 4 Pruett v. Stephens, 608 F. App’x 182 (5th Cir. 2015) (per curiam). 5 In re Pruett, 784 F.3d at 291. 6 In re Pruett, 609 F. App’x at 823. 7 Pruett, 608 F. App’x at 187. A more detailed explanation of the results can be found in Pruett v. State, No. AP77,065, 2017 WL 1245431, at *6–9 (TCCA Apr. 5, 2017). 8 3 Case: 17-70021 Document: 00514187293 Page: 4 Date Filed: 10/06/2017 No. 17-70021 without gloves since trial. The court then found, among other things, that there was no female DNA profile on the rod before trial and that the unknown female DNA was unrelated to the conviction. Pruett appealed to the TCCA. He alleged that (1) he was entitled to submit the unknown female DNA for comparison to the FBI and DPS databases, (2) he was entitled to funding for an expert witness to review the DNA testing results, (3) the trial court had abandoned the doctrine of res judicata, (4) he was entitled to review the data generated during testing, and (5) the trial court’s order had not been fully executed. The TCCA rejected all of Pruett’s claims, finding that nothing in Chapter 64 entitled Pruett to relief and that the trial court’s order had been fully complied with. See Pruett v. State, No. AP-77,065, 2017 WL 1245431, at *9–14 (TCCA Apr. 5, 2017). Pruett then brought the present § 1983 suit in federal district court. He maintained that his right to due process was denied by the arbitrary application of Chapter 64 and that the Eighth Amendment required a stay of execution. Pruett seeks injunctive relief compelling further testing of the evidence, production of materials for review, funds for an expert, submission of the evidence to the FBI and DPS for comparison, and a stay of execution. The state moved to dismiss under Federal Rule of Procedure 12(b)(1) and (6), claiming that federal courts lack jurisdiction to provide the relief Pruett seeks and that Pruett has failed to state a claim upon which relief should be granted. The district court granted the motion and dismissed. II. We review de novo the dismissal of a complaint under Rule 12(b)(1) and (6), applying the same standards used by the district court. See Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017); Spotts v. United States, 613 F.3d 559, 565 (5th Cir. 2010). A federal court must dismiss for want of subject4 Case: 17-70021 Document: 00514187293 Page: 5 Date Filed: 10/06/2017 No. 17-70021 matter jurisdiction under Rule 12(b)(1) where that court lacks the statutory or constitutional power to adjudicate the plaintiff’s claims. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Although we liberally construe the complaint, the plaintiff has the “burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). When reviewing a Rule 12(b)(6) motion to dismiss, we accept factual allegations as true and review constitutional questions de novo. See Hollis v. Lynch, 827 F.3d 436, 442 (5th Cir. 2016). “To survive a Rule 12(b)(6) motion to dismiss,” the complaint must provide the plaintiff’s grounds for entitlement to relief. Taylor v. City of Shreveport, 798 F.3d 276, 279 (5th Cir. 2015). III. We first address whether Pruett has stated a claim upon which relief can be granted in his allegation that the state has violated his right to due process 9 by applying Chapter 64 in a manner that is arbitrary and by denying him funding for expert assistance. Neither theory has merit. 10 Although the district court moved past this issue and dismissed the complaint as only seeking mandamus, we must address the due-process issue first. The district court’s observations regarding mandamus are well taken, and Pruett’s due-process arguments seem to be dressed-up allegations that the TCCA should be directed to apply Texas law properly. But it is possible to construe Pruett’s artful pleadings as seeking constitutionally required due process. And given that this is a Rule 12(b) motion to dismiss, we must liberally construe the complaint. See Skinner v. Switzer, 562 U.S. 521, 530 (2011). 9 The complaint, stripped of a meritorious due-process claim, can rest on nothing but a petition for mandamus. Unless Pruett’s due-process rights were violated, he has no avenue to relief except through a command for Texas courts properly to enforce Texas law. But as the district court explained, federal courts lack a “general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought.” Moye v. Clerk, DeKalb Cty. Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (per curiam); see also Mahogany v. Muwwakkil, 259 F. App’x 681, 682– 83 (5th Cir. 2007) (per curiam). Accordingly, Pruett’s complaint rises or falls on his dueprocess claim. 10 5 Case: 17-70021 Document: 00514187293 Page: 6 Date Filed: 10/06/2017 No. 17-70021 A. Pruett claims that, by applying Chapter 64 in an arbitrary manner, Texas courts have deprived him of his federal due-process rights. Although defendants do not have a federal constitutional right to postconviction DNA testing, Dist. Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 72–74 (2009), if a state creates such a right—as Texas has done in Chapter 64—then the procedures to enforce that right must satisfy due process, id. at 69. But a “criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man.” Id. at 68. “The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief.” Id. at 69. Thus, Pruett has the burden to show that Texas’s postconviction procedures “are fundamentally inadequate to vindicate the substantive rights provided,” such that the procedures “offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 69–71. Pruett has not met this heavy burden. Although he provides many arguments as to why the TCCA was incorrect in its application of Chapter 64, there is nothing in the TCCA’s opinion that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 69. Instead, the TCCA carefully considered each of Pruett’s contentions as to Chapter 64; it reviewed the evidence with due diligence, then found that Pruett was not entitled to further relief under Chapter 64. See Pruett, 2017 WL 1245431, at *9–14. Pruett’s remaining averments concerning the full execution of the trial court’s order and the legislative intent behind Chapter 64 boil down to the bare claim that the TCCA misapplied Texas law— but there is nothing so egregious in its application that rises to the level of a due-process violation. 6 Case: 17-70021 Document: 00514187293 Page: 7 Date Filed: 10/06/2017 No. 17-70021 B. Pruett asserts that the TCCA violated his right to due process by denying funds for an expert to assist him in interpreting the DNA test results. Criminal defendants have a right to non-psychiatric experts “only if the evidence is both critical to the conviction and subject to varying opinion.” Yohey v. Collins, 985 F.2d 222, 227 (5th Cir. 1993). 11 And even then, the defendant “must demonstrate something more than a mere possibility of assistance from a requested expert” and must show that “denial of such expert assistance resulted in a fundamentally unfair trial.” Id. Even if Pruett could meet the first two requirements, he has demonstrated nothing more than a “mere possibility of assistance” from his requested expert. Id. As the TCCA said, the most recent testing revealed a female DNA profile that was not found in the pretrial DNA testing. Pruett, 2017 WL 1245431, at *10. Because the shank has been handled by multiple people without gloves since trial, the almost inevitable conclusion is that it was contaminated post-trial. Pruett’s conjectures to the contrary are nothing more than bare possibilities and cannot establish a due process right to expert assistance. Therefore, Pruett has not stated a claim upon which relief can be granted as to his alleged due-process violation. IV. Pruett appeals the denial of a stay of execution to allow him to pursue additional DNA testing. A stay of execution “is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing Yohey was decided in the context of a pretrial request for expert-witness funds. See 985 F.2d at 224. For purposes of this case, we assume, without deciding, that the same right and analysis extend to postconviction requests for expert assistance. But we note that postconviction defendants do not “have the same liberty interests as a free man.” Osborne, 557 U.S. at 68. 11 7 Case: 17-70021 Document: 00514187293 Page: 8 Date Filed: 10/06/2017 No. 17-70021 its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006). “Thus, like any other stay applicants,” Pruett must “satisfy all of the requirements for a stay.” Id. When reviewing an application for a stay, we consider (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. O’Bryan v. McKaskle, 729 F.2d 991, 993 (5th Cir. 1984) (per curiam); see also Nken v. Holder, 556 U.S. 418, 434 (2009); Williams v. Thaler, 524 F. App’x 960, 962 (5th Cir. 2013). “In a capital case, the possibility of irreparable injury weighs heavily in the movant’s favor.” O’Bryan v. Estelle, 691 F.2d 706, 708 (5th Cir. 1982) (per curiam). The death penalty is irreversible, but there must come a time when the legal issues “have been sufficiently litigated and relitigated so that the law must be allowed to run its course.” Id. (quoting Evans v. Bennett, 440 U.S. 1301, 1306 (1979)). And though the movant in a capital case “need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of equities [i.e. the other three factors] weighs heavily in favor of granting the stay.” Celestine v. Butler, 823 F.2d 74, 77 (5th Cir. 1987) (per curiam). As explained above, Pruett has failed to present even a substantial case on the merits. Given that factor, alongside the significant litigation and relitigation in both state and federal court, Pruett is not entitled to a stay. The judgment, including the denial of a stay of execution, is AFFIRMED. 8 APPENDIX Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 1 of 12 , United States District Court Southern District of Texas ENTERED September 25, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ROBERT LYNN PRUETT, Plaintiff, v. JACK K. CHOATE, et al., Defendants. § § § § § David J. Bradley, Clerk H-17-CV-2418 § § MEMORANDUM AND ORDER Plaintiff Robert Lynn Pruett is a Texas death row inmate. He is scheduled for execution on October 12, 2017. Defendant Jack Choate is the Executive Director of the Special Prosecution Unit that prosecuted Pruett for capital murder. Defendant Lisa Harmon Baylor is a forensic scientist with the Texas Department of Public Safety. The other defendants are officials of the Texas Department of Criminal Justice. Pruett filed a civil rights complaint under 42 U.S.C. § 1983, alleging that he was denied due process in his proceedings to obtain postconviction DNA testing. D.E. 1 He seeks injunctive relief regarding DNA testing and a stay of execution. Defendants filed a motion to dismiss. D.E. 15 For the reasons stated below, the defendants' motion is granted, and the complaint is dismissed with prejudice. I. Background The facts of the underlying capital murder case are set out in detail in the Fifth Circuit's opinion affirming this Court's denial of Pruett's petition for a writ of habeas corpus. See Pruett v. Thaler, 455 Fed. App'x 478, 479-81 (5th Cir. 2011). The facts of the crime are repeated here only insofar as they are relevant to the current proceeding. Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 2 of 12 Pruett was convicted of capital murder and sentenced to death for the murder of Daniel Nagle, a Corrections Officer employed by the Texas Department of Criminal Justice. Pruett was serving a 99 year prison sentence t'Or murder at the time of the Nagle murder. Evidence presented at trial showed that Nagle had written a disciplinary case against Pruett shortly before the murder. Nagle was stabbed eight times with a shank made of a metal rod sharpened at one end and wrapped in tape at the other end. He died from a heart attack suffered during the stabbing attack. The shank and a tom disciplinary report against Pruett were found at the scene of the murder. Pruett was scheduled for execution in 2015. On the day of his scheduled execution, he moved in state court for DNA testing of evidence. The trial court granted the motion and tests were conducted. The trial court then held an evidentiary hearing and denied relief. The Texas Court of Criminal Appeals ("TCCA") summarized the relevant facts concerning the postconviction hearing. According to the report issued by DPS forensic scientist, Lisa Harmon Baylor, testing on [Pruettl's pants and shirt revealed profiles that were consistent with [Pruett] and excluded the victim. Testing on the victim's shirt and pants and blood found in the multipurpose room revealed profiles that were consistent with the victim and excluded [Pruett]. These results were consistent with the results obtained after testing the items before [Pruett]'s trial. No DNA profile was obtained from testing on the masking tape wrapped around the handle of the metal rod or from testing on a piece of blue plastic removed from the metal rod. A swabbing from the metal rod revealed an unknown female profile. Testing of the rod before trial revealed no such profile. At the August 13, 2015, hearing concerning this testing, the court first stated that a prior motion for DNA had been granted in 20l3, and the results had been inconclusive. The court also noted that the State had made all of the evidence in the case available for several years, but [Pruett] had not requested testing of the metal rod and tape in the 2013 motion. The court then noted that [Pruett]'s 2 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 3 of 12 counsel sought information about testing the rod and tape nearly two weeks before [Pruett]'s scheduled execution date, and information was provided the next day regarding whom to contact to obtain testing. However, counsel waited nearly ten days to contact the person identified, and then contacted that person on the Sunday preceding the Tuesday execution date. Finally, the court noted that [Pruett] had requested funding for an expert, which the court denied. But the court added, "If I heard additional evidence that warranted the granting of $6,000-or somewhere around that amount-to the defense, I would consider it after I heard the evidence today." The court thereafter heard testimony from two witnesses called by the State. The defense did not present any witnesses. Baylor testified that she was the analyst who conducted the original pretrial DNA testing and testified at [Pruett],s trial. Baylor testified consistently with the report she issued on her testing, which included the results she obtained on the items listed in the May 8 order. Baylor testified that, despite her effort, she was unable to obtain a ONA profile from the masking tape. She testified that she had very little success obtaining much DNA from tape samples in the past because of the "surface area" and how the tape had been handled. Additionally in this case, the tape was covered in black powder because it had been processed for potential fingerprints right after the murder. Baylor explained that, at the time of this offense, DNA testing was new, and the investigators had to choose between DNA testing, which might destroy print evidence, and testing the tape for prints. Here, they chose to test the tape for prints. Baylor testified that she processed the metal rod in 2000, but was unable to obtain a DNA sample. However, when she re-swabbed and tested the rod in 2015, she obtained a DNA profile consistent with that of an unknown female. Baylor stated that, upon finding that result, she conducted the proper checks to ensure that the findings had not been contaminated within the laboratory or during her analysis. She found no contamination. She also re-tested the sample preserved from the testing conducted before trial, and she again obtained no DNA profile. Baylor testified that, because of the disparate results obtained from the concurrent testing of the old and new samples, she was certain that the female profile was not present on the metal rod when she first tested it in 2000. She opined that the profile must have come from someone who handled the evidence after it was tested in 2000. She also noted that, especially ten to fifteen years ago, evidence was regularly handled 3 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 4 of 12 by any number of people in the courtroom during trial. The second witness to testify at the hearing was William Lazenby. Lazenby testified that he had been employed as the bailiff/security officer for Bee County and the Bee County courts since 2009. His prior employment included working for the Texas Department of Criminal Justice. He was an investigator on the McConnell Unit when this crime occurred and was part of the investigative team in this case. Lazenby testified that some time in the two years before the August 2015 hearing, he was contacted "about some attorneys or, maybe, employees of attorneys and a film crew wanting to look at the evidence in [[Pruett]'s] case [.]" He stated that a male and a female with the British Broadcasting Corporation (BBC) and some female attorneys wanted to look at some evidence related to [PruettTs case. He noted that, in at least one instance, he saw the evidence, including the metal rod, laid out on the table in front of these four individuals, and no one was wearing gloves. The only other time he saw the metal rod after that was when it was secured and sent for DNA testing by people at the district clerk's office who wore gloves as they handled the evidence. Finally, the State offered a video from television station KWTX into evidence. The video shows a woman with no gloves on handling the metal rod. The trial court concluded from all of the evidence that there was nothing on the metal rod that was inculpatory or exculpatory, nothing on the tape at all, and nothing on the additional items that was inculpatory or exculpatory. The court found that, although an unknown sample was found on the metal rod, there was no such sample present when the rod was originally tested, and any evidence that previously existed on the rod had since been contaminated. In its written findings and conclusions, the trial court first set out the background of the case, which we paraphrase below: 1. The State made all of the evidence available for DNA testing for over fifteen years before [PruettTs most recent request. In fact, [Pruett] made a request for DNA testing in 2013, and the results were inconclusive. 2. [Pruett] did not include in his 2013 motion for DNA testing a request that the metal rod and the tape wrapped around it be tested. 4 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 5 of 12 3. [Pruett] asserted that testing should be done now because newer DNA testing techniques exist. However, those same testing techniques existed in 2013. 4. [Pruett] began seeking information regarding DNA testing of the metal rod after business hours on Thursday, April 16, 2015. Although the State responded with the necessary information the next day, [Pruett] waited nearly ten days before contacting the laboratory, and then he contacted the laboratory by email on the Sunday two days before the scheduled execution when the laboratory was closed. 5. [Pruett]'s counsel failed to file an Affidavit of Good Cause for failing to comply with the Court of Criminal Appeals "Seven Day Rule" when they requested a stay of execution on the day of the execution. 6. Upon reviewing [Pruett]'s motion for DNA testing, and in deciding to allow testing, the trial court stated that it "ha[d] no doubt the request for the proposed DNA testing was made to delay the execution of sentence." However, the court was not willing "to punish [[Pruett]] for his attorney's dilatory tactics." Thus, the court granted the testing. 7. After the laboratory tested the requested items and more, the court held a hearing on August 13, 2015, at which the State called two witnesses: (1) Lisa Baylor, a DPS employee and DNA expert, testified that she cond ucted the current testing, and she conducted the DNA testing performed at the time of trial. She also testified at [Pruett]'s trial. Baylor unequivocally testified that the metal rod contained no DNA profile in 2000 when she originally tested it. In fact, she re-tested the original sample during this round of testing and again found no DNA profile. However, when the metal rod was tested in 5 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 6 of 12 2015, it contained an unknown female profile. With regard to the tape, Baylor testified that no DNA profile was found on the tape that had been wrapped around the rod. Baylor also testified that recently published problems with the FBI database and related calculations were addressed during testing. Other DNA samples from the victim and [Pruett] were identified during testing, but were found not to be relevant to the court's findings and conclusions. (2) William Lazenby was the supervisor of the investigative team that worked the Nagle murder. Lazenby testified that, in 2009, he became a bailiff for the courts in Bee County. He further testified that, sometime in the two years before the August 2016 hearing, [Pruett] and his attorneys cooperated with the British Broadcasting Corporation (BBC) while they prepared a story on [Pruett]. During that preparation, Lazenby observed the television crew and members of counsel's staff handling the evidence, including the metal rod, and none of them were wearing gloves. Several females were in the group. Lazenby subsequently observed members of the district clerk's office prepare the items for transfer to DPS, but those individuals were wearing gloves. 8. [Pruett] presented no witnesses at the hearing. Based upon the evidence presented at the hearing, the trial court then made the following findings of fact, which are paraphrased in pertinent part as follows: 6 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 7 of 12 1. As tested in 2015, the tape wrapped around the metal rod contained no DNA profile. 2. There was no DNA profile on the metal rod when it was originally tested for trial in 2000. 3. When tested in 2015, the metal rod contained an unknown female DNA profile. However, since 2000, that metal rod was handled on numerous occasions by members of the BBC and [Pruett],s own defense team, with no one wearing gloves. 4. The DNA profile found on the metal rod during the most recent testing, which was not present on the rod when it was originally tested, cannot be considered relevant to this motion. 5. Baylor's testimony adequately addressed the most recent problems concerning the FBI database and DNA calculations. 6. The motion for DNA testing and the motion to stay [Pruett]'s execution were not filed until the day [Pruett] was scheduled for execution, even though counsel emailed the motions to the trial court the day before. 7. [Pruett]'s counsel were aware of the prior failure to test the requested items as early as April 16, 20]5. However, for some inexplicable reason, they waited until two days before the execution to contact the DNA expert. 8. No aflidavit for good cause was attached to [Pruett]'s pleadings in violation of the Court of Criminal Appeals Miscellaneous Rule 11-003. 9. On July 23, 2015, [Pruett] filed his first motion for the authorization of funds for expert services requesting $5750.00. During the August 13 hearing, [Pruett] re-urged his request, but the court withheld its ruling until all of the evidence had been presented. On August 17, 2015, [Pruett] filed his second motion for the authorization of funds for expert services requesting $6500.00. Because the trial court found that there was no relevant DNA 7 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 8 of 12 evidence to further consider, the court denied the requests. Given the results of the testing and the evidence presented at the hearing, the court concluded that, had the results been available during the trial of the offense, it was not reasonably probable that [Pruett] would not have been convicted. Pruett v. State, No. AP-77,065, 2017 WL 1245431, at *6-9 (Tex. Crim. App. Apr. 5, 2017) (footnotes omitted). II. Analysis Pruett contends that the Texas DNA testing statute, TEX. CODE CRIM. PROC., ch. 64 ("Chapter 64") creates a constitutionally protected liberty interest, and that he was denied his liberty interest without due process by the Texas courts' misinterpretation of the statute and the courts' improper and arbitrary application of the statute and procedures in this case. He seeks injunctive relief compelling specific testing of evidence, and compelling defendant Baylor and Choate to produce certain materials for review and testing. Defendants do not dispute that Pruett has a liberty interest in DNA testing, but argue that he is not entitled to relief. They move to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. A. Standard of Review 1. Rule 12(b)(1) A federal court must dismiss a case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the plaintiff's claims. Home Builders Assoc' of Miss., Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In resolving a motion under Rule 12(b)(l), a court may refer to evidence outside the pleadings. Espinoza v. Mo. Pacific R. Co., 754 F.2d 1247, 1248 n. 1 (5th 8 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 9 of 12 Cir. 1985). When the jurisdictional issue is of a factual nature rather than facial, plaintiff must establish subject matter jurisdiction by a preponderance of the evidence. Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989). 2. Rule 12(b)(6) In reviewing a motion to dismiss under rule 12(b)(6), the complaint must be liberally construed in favor of the plaintiff and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The standard of review under rule 12(b)(6) has been summarized as follows: "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969). B. Due Process Pruett argues that the Texas courts have deprived him of his liberty interest by interpreting and applying Chapter 64 in a manner that frustrates the legislative intent behind the statute. This is, in essence, an argument that the Texas state courts have misinterpreted Texas state statutory law. He asks this Court to find that Chapter 64 is unconstitutional as applied to him in this case because the Texas courts have misinterpreted the statute and because they have applied it in an arbitrary and inconsistent manner. Defendants argue that Pruett's claim amounts to a request for a writ of mandamus ordering Texas state officials to comply with what Pruett characterizes as the requirements of Chapter 64. Pruett denies that he seeks mandamus, but states that he seeks a finding that Chapter 64 is unconstitutional as applied, and asks the Court to order a remedy. Specifically, he 9 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 10 of 12 asks the Court to order "Baylor ... to provide to Pruett copies of any diagrams, data, or emails related to either the 2000 analysis or 2015 analysis ...," and to order either Baylor or Choate to release the shank and Nagle's clothing for testing. Reply (D.E. 16) at 18-19. Pruett's claims are materially indistinguishable from the relief sought in Swearingen v. Keller, el al., No. 1:16-cv-1181 (W.D. Tex. July 7, 2017) (D.E. 18). In Swearingen, another Texas death row inmate filed suit challenging a Chapter 64 proceeding as "inconsistent and arbitrary." Id at 5. He sought a declaratory judgment that Chapter 64, as interpreted by the Texas Court of Criminal Appeals, was unconstitutional, and injunctive relief compelling specific defendants to release evidence for testing. The Western District of Texas court found that "[s]ince Swearingen seeks only declaratory and injunctive relief, his pleading is properly construed as a petition for mandamus relief ...." This analysis is equally applicable to Pruett's claims. A federal court "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.c. § 1651. "But a federal court lacks the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought." Moye v. Clerk, DeKalb Cty. Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973)~ see also Noble v. Cain, 123 F. App'x 151, 152 (5th Cir. 2005) ("mandamus relief ... is not available to federal courts to direct state officials in the performance of their duties and functions"); Johnson v. Hurtt, 893 F. Supp. 2d 817, 827 (S.D. Tex. 2012) ("federal courts lack the general power 'to direct [or compel] state officials in the performance of their duties and functions"') (quoting Noble, 123 F. App'x at 152). 10 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 11 of 12 The only relief Pruett seeks is an order compelling Texas officials to comply with what Pruett sees as the requirements of Chapter 64, or to act so as to allow Pruett independently to effectuate his rights under Chapter 64. Regardless of how Pruett chooses to characterize this relief, it is, at its core, mandamus. Because this Court lacks jurisdiction to issue a writ of mandamus, the complaint must be dismissed. C. Stay of Execution Pruett also seeks a stay of execution to allow him to pursue additional DNA testing. In reviewing an application for a stay of execution, this Court must consider (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would harm the public interest. a 'Bryan v. McKaskle, 729 F.2d 991, 993 (5th CiT. 1984); OBryan v. Estelle, 691 F.2d 706,708 (5th CiT. 1982), cert. denied, 465 U.S. 1013 (1984); Ruiz v. Estelle, 666 F.2d 854, 856 (5th CiT. 1982). Although the movant in a capital case need not always show a probability of success on the merits, he must present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, i. e., the other three factors, weighs heavily in favor of granting the stay. Celestine v. Butler, 823 F.2d 74, 77 (5th Cir.), cert. denied, 483 U.S. 1036 (1987); McKaskle, 729 F.2d at 993; Ruiz, 666 F.2d at 856. In a capital case, the possibility of irreparable injury weighs heavily in the movant's favor. Estelle, 691 F.2d at 708. The irreversible nature of the death penalty, however, must be weighed against the fact that there must come a time when the legal issues in the case have been sufficiently litigated so that the law must be allowed to run its course. Id 11 Case 4:17-cv-02418 Document 19 Filed in TXSD on 09/25/17 Page 12 of 12 For the reasons discussed above, Pruett fails to demonstrate that he has a substantial case on the merits. Therefore, he is not entitled to a stay of execution. D. Conclusion For the foregoing reasons, this case is dismissed with prejudice. III. Order It is ORDERED that: 1. The defendants' motion to dismiss (D.E. 15) is GRANTED; and 2. The complaint (D.E. 1) is DISMISSED WITH PREJUDICE. SO ORDERED ~ ~ SIGNED at Corpus Christi, Texas, on this i£L day of September 2017. bt~&w~ Nelva Go les Ramos United States District Judge 12 APPENDIX Page 3951 TITLE 42—THE PUBLIC HEALTH AND WELFARE the purposes of this order as the order applies to programs administered by it; and is directed to cooperate with the Committee, to furnish it, in accordance with law, such information and assistance as it may request in the performance of its functions, and to report to it at such intervals as the Committee may require. SEC. 203. Each such department and agency shall, within thirty days from the date of this order, issue such rules and regulations, adopt such procedures and policies, and make such exemptions and exceptions as may be consistent with law and necessary or appropriate to effectuate the purposes of this order. Each such department and agency shall consult with the Committee in order to achieve such consistency and uniformity as may be feasible. PART III—ENFORCEMENT SEC. 301. The Committee, any subcommittee thereof, and any officer or employee designated by any executive department or agency subject to this order may hold such hearings, public or private, as the Committee, department, or agency may deem advisable for compliance, enforcement, or educational purposes. SEC. 302. If any executive department or agency subject to this order concludes that any person or firm (including but not limited to any individual, partnership, association, trust, or corporation) or any State or local public agency has violated any rule, regulation, or procedure issued or adopted pursuant to this order, or any nondiscrimination provision included in any agreement or contract pursuant to any such rule, regulation, or procedure, it shall endeavor to end and remedy such violation by informal means, including conference, conciliation, and persuasion unless similar efforts made by another Federal department or agency have been unsuccessful. In conformity with rules, regulations, procedures, or policies issued or adopted by it pursuant to Section 203 hereof, a department or agency may take such action as may be appropriate under its governing laws, including, but not limited to, the following: It may— (a) cancel or terminate in whole or in part any agreement or contract with such person, firm, or State or local public agency providing for a loan, grant, contribution, or other Federal aid, or for the payment of a commission or fee; (b) refrain from extending any further aid under any program administered by it and affected by this order until it is satisfied that the affected person, firm, or State or local public agency will comply with the rules, regulations, and procedures issued or adopted pursuant to this order, and any nondiscrimination provisions included in any agreement or contract; (c) refuse to approve a lending institution or any other lender as a beneficiary under any program administered by it which is affected by this order or revoke such approval if previously given. SEC. 303. In appropriate cases executive departments and agencies shall refer to the Attorney General violations of any rules, regulations, or procedures issued or adopted pursuant to this order, or violations of any nondiscrimination provisions included in any agreement or contract, for such civil or criminal action as he may deem appropriate. The Attorney General is authorized to furnish legal advice concerning this order to the Committee and to any department or agency requesting such advice. SEC. 304. Any executive department or agency affected by this order may also invoke the sanctions provided in Section 302 where any person or firm, including a lender, has violated the rules, regulations, or procedures issued or adopted pursuant to this order, or the nondiscrimination provisions included in any agreement or contract, with respect to any program affected by this order administered by any other executive department or agency. § 1983 PART IV—ESTABLISHMENT OF THE PRESIDENT’S COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46 F.R. 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R. 2939.] PART V—POWERS AND DUTIES OF THE PRESIDENT’S COMMITTEE ON EQUAL OPPORTUNITY IN HOUSING SEC. 501. [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46 F.R. 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R. 2939.] SEC. 502. (a) The Committee shall take such steps as it deems necessary and appropriate to promote the coordination of the activities of departments and agencies under this order. In so doing, the Committee shall consider the overall objectives of Federal legislation relating to housing and the right of every individual to participate without discrimination because of race, color, religion (creed), sex, disability, familial status or national origin in the ultimate benefits of the Federal programs subject to this order. (b) The Committee may confer with representatives of any department or agency, State or local public agency, civic, industry, or labor group, or any other group directly or indirectly affected by this order; examine the relevant rules, regulations, procedures, policies, and practices of any department or agency subject to this order and make such recommendations as may be necessary or desirable to achieve the purposes of this order. (c) The Committee shall encourage educational programs by civic, educational, religious, industry, labor, and other nongovernmental groups to eliminate the basic causes of discrimination in housing and related facilities provided with Federal assistance. SEC. 503. [Revoked. Ex. Ord. No. 12259, Dec. 31, 1980, 46 F.R. 1253; Ex. Ord. No. 12892, § 6–604, Jan. 17, 1994, 59 F.R. 2939.] PART VI—MISCELLANEOUS SEC. 601. As used in this order, the term ‘‘departments and agencies’’ includes any wholly-owned or mixed-ownership Government corporation, and the term ‘‘State’’ includes the District of Columbia, the Commonwealth of Puerto Rico, and the territories of the United States. SEC. 602. This order shall become effective immediately. [Functions of President’s Committee on Equal Opportunity in Housing under Ex. Ord. No. 11063 delegated to Secretary of Housing and Urban Development by Ex. Ord. No. 12892, § 6–604(a), Jan. 17, 1994, 59 F.R. 2939, set out as a note under section 3608 of this title.] § 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. (R.S. § 1979; Pub. L. 96–170, § 1, Dec. 29, 1979, 93 Stat. 1284; Pub. L. 104–317, title III, § 309(c), Oct. 19, 1996, 110 Stat. 3853.) § 1984 TITLE 42—THE PUBLIC HEALTH AND WELFARE CODIFICATION R.S. § 1979 derived from act Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13. Section was formerly classified to section 43 of Title 8, Aliens and Nationality. AMENDMENTS 1996—Pub. L. 104–317 inserted before period at end of first sentence ‘‘, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable’’. 1979—Pub. L. 96–170 inserted ‘‘or the District of Columbia’’ after ‘‘Territory’’, and provisions relating to Acts of Congress applicable solely to the District of Columbia. EFFECTIVE DATE OF 1979 AMENDMENT Amendment by Pub. L. 96–170 applicable with respect to any deprivation of rights, privileges, or immunities secured by the Constitution and laws occurring after Dec. 29, 1979, see section 3 of Pub. L. 96–170, set out as a note under section 1343 of Title 28, Judiciary and Judicial Procedure. § 1984. Omitted CODIFICATION Section, act Mar. 1, 1875, ch. 114, § 5, 18 Stat. 337, which was formerly classified to section 46 of Title 8, Aliens and Nationality, related to Supreme Court review of cases arising under act Mar. 1, 1875. Sections 1 and 2 of act Mar. 1, 1875 were declared unconstitutional in U.S. v. Singleton, 109 U.S. 3, and sections 3 and 4 of such act were repealed by act June 25, 1948, ch. 645, § 21, 62 Stat. 862. § 1985. Conspiracy to interfere with civil rights (1) Preventing officer from performing duties If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties; (2) Obstructing justice; intimidating party, witness, or juror If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or de- Page 3952 feating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; (3) Depriving persons of rights or privileges If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. (R.S. § 1980.) CODIFICATION R.S. § 1980 derived from acts July 31, 1861, ch. 33, 12 Stat. 284; Apr. 20, 1871, ch. 22, § 2, 17 Stat. 13. Section was formerly classified to section 47 of Title 8, Aliens and Nationality. § 1986. Action for neglect to prevent Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not APPENDIX CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 10/9/17, 5)12 PM CODE OF CRIMINAL PROCEDURE TITLE 1. CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING This article was amended by the 85th Legislature. Pending publication of the current statutes, see H.B. 3872, 85th Legislature, Regular Session, for amendments affecting this section. Art. 64.01. MOTION. (a) In this section, "biological material": (1) means an item that is in possession of the state and that contains blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone, bodily fluids, or other identifiable biological evidence that may be suitable for forensic DNA testing; and (2) includes the contents of a sexual assault evidence collection kit. (a-1) A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. (b) The motion may request forensic DNA testing only of evidence described by Subsection (a-1) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but: (1) was not previously subjected to DNA testing; or (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. (c) A convicted person is entitled to counsel during a proceeding under this chapter. The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 1 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 10/9/17, 5)12 PM for a motion to be filed, and the court determines that the person is indigent. Counsel must be appointed under this subsection not later than the 45th day after the date the court finds reasonable grounds or the date the court determines that the person is indigent, whichever is later. Compensation of counsel is provided in the same manner as is required by: (1) Article 11.071 for the representation of a petitioner convicted of a capital felony; and (2) Chapter 26 for the representation in a habeas corpus hearing of an indigent defendant convicted of a felony other than a capital felony. Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001. Subsec. (c) amended by Acts 2003, 78th Leg., ch. 13, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1006 (H.B. 681), Sec. 2, eff. September 1, 2007. Acts 2011, 82nd Leg., R.S., Ch. 278 (H.B. 1573), Sec. 5, eff. September 1, 2011. Acts 2011, 82nd Leg., R.S., Ch. 366 (S.B. 122), Sec. 1, eff. September 1, 2011. Acts 2015, 84th Leg., R.S., Ch. 70 (S.B. 487), Sec. 1, eff. September 1, 2015. Art. 64.011. GUARDIANS AND OTHER REPRESENTATIVES. (a) In this chapter, "guardian of a convicted person" means a person who is the legal guardian of the convicted person, whether the legal relationship between the guardian and convicted person exists because of the age of the convicted person or because of the physical or mental incompetency of the convicted person. (b) A guardian of a convicted person may submit motions for the convicted person under this chapter and is entitled to counsel otherwise provided to a convicted person under this chapter. Added by Acts 2003, 78th Leg., ch. 13, Sec. 2, eff. Sept. 1, 2003. http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 2 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING Art. 64.02. NOTICE TO STATE; RESPONSE. 10/9/17, 5)12 PM (a) On receipt of the motion, the convicting court shall: (1) provide the attorney representing the state with a copy of the motion; and (2) require the attorney representing the state to take one of the following actions in response to the motion not later than the 60th day after the date the motion is served on the attorney representing the state: (A) deliver the evidence to the court, along with a description of the condition of the evidence; or (B) explain in writing to the court why the state cannot deliver the evidence to the court. (b) The convicting court may proceed under Article 64.03 after the response period described by Subsection (a)(2) has expired, regardless of whether the attorney representing the state submitted a response under that subsection. Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1006 (H.B. 681), Sec. 3, eff. September 1, 2007. This article was amended by the 85th Legislature. Pending publication of the current statutes, see H.B. 3872, 85th Legislature, Regular Session, for amendments affecting this section. Art. 64.03. REQUIREMENTS; TESTING. (a) A convicting court may order forensic DNA testing under this chapter only if: (1) the court finds that: (A) the evidence: (i) still exists and is in a condition making DNA testing possible; and (ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 3 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 10/9/17, 5)12 PM replaced, or altered in any material respect; (B) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (C) identity was or is an issue in the case; and (2) the convicted person establishes by a preponderance of the evidence that: (A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and (B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. (b) A convicted person who pleaded guilty or nolo contendere or, whether before or after conviction, made a confession or similar admission in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea, confession, or admission, as applicable. (c) If the convicting court finds in the affirmative the issues listed in Subsection (a)(1) and the convicted person meets the requirements of Subsection (a)(2), the court shall order that the requested forensic DNA testing be conducted. The court may order the test to be conducted by: (1) the Department of Public Safety; (2) a laboratory operating under a contract with the department; or (3) on the request of the convicted person, another laboratory if that laboratory is accredited under Article 38.01. (d) If the convicting court orders that the forensic DNA testing be conducted by a laboratory other than a Department of Public Safety laboratory or a laboratory under contract with the department, the State of Texas is not liable for the cost of testing under this subsection unless good cause for payment of that cost has been shown. A political subdivision of the state is not liable for the cost of testing under this subsection, regardless of whether good cause for payment of that cost has been shown. If the court orders that the testing be conducted by a http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 4 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 10/9/17, 5)12 PM laboratory described by this subsection, the court shall include in the order requirements that: (1) the DNA testing be conducted in a timely and efficient manner under reasonable conditions designed to protect the integrity of the evidence and the testing process; (2) the DNA testing employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702, Texas Rules of Evidence; and (3) on completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results be immediately filed with the court and copies of the results and data be served on the convicted person and the attorney representing the state. (e) The convicting court, not later than the 30th day after the conclusion of a proceeding under this chapter, shall forward the results to the Department of Public Safety. Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001. Subsec. (a) amended by Acts 2003, 78th Leg., ch. 13, Sec. 3, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1006 (H.B. 681), Sec. 4, eff. September 1, 2007. Acts 2015, 84th Leg., R.S., Ch. 70 (S.B. 487), Sec. 2, eff. September 1, 2015. Acts 2015, 84th Leg., R.S., Ch. 1276 (S.B. 1287), Sec. 11, eff. September 1, 2015. Art. 64.035. UNIDENTIFIED DNA PROFILES. If an analyzed sample meets the applicable requirements of state or federal submission policies, on completion of the testing under Article 64.03, the convicting court shall order any unidentified DNA profile to be compared with the DNA profiles in: (1) the DNA database established by the Federal Bureau of Investigation; and http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 5 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 64. MOTION FOR FORENSIC DNA TESTING 10/9/17, 5)12 PM (2) the DNA database maintained by the Department of Public Safety under Subchapter G, Chapter 411, Government Code. Added by Acts 2011, 82nd Leg., R.S., Ch. 278 (H.B. 1573), Sec. 6, eff. September 1, 2011. Added by Acts 2011, 82nd Leg., R.S., Ch. 366 (S.B. 122), Sec. 2, eff. September 1, 2011. Art. 64.04. FINDING. After examining the results of testing under Article 64.03 and any comparison of a DNA profile under Article 64.035, the convicting court shall hold a hearing and make a finding as to whether, had the results been available during the trial of the offense, it is reasonably probable that the person would not have been convicted. Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001. Amended by Acts 2003, 78th Leg., ch. 13, Sec. 4, eff. Sept. 1, 2003. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 278 (H.B. 1573), Sec. 7, eff. September 1, 2011. Acts 2011, 82nd Leg., R.S., Ch. 366 (S.B. 122), Sec. 3, eff. September 1, 2011. Art. 64.05. APPEALS. An appeal under this chapter is to a court of appeals in the same manner as an appeal of any other criminal matter, except that if the convicted person was convicted in a capital case and was sentenced to death, the appeal is a direct appeal to the court of criminal appeals. Added by Acts 2001, 77th Leg., ch. 2, Sec. 2, eff. April 5, 2001. Amended by Acts 2003, 78th Leg., ch. 13, Sec. 5, eff. Sept. 1, 2003. http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.64.htm Page 6 of 6 CODE OF CRIMINAL PROCEDURE CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS 10/9/17, 5)14 PM During the time that the physical evidence was in my custody, I did not make any changes or alterations to the condition of the physical evidence except for those resulting from field or laboratory testing procedures, and the physical evidence or a representative sample of the physical evidence was transferred in essentially the same condition as received. __________ Affiant SWORN TO AND SUBSCRIBED before me on the ___ day of __________, 20___. __________ Notary Public, State of Texas Added by Acts 2003, 78th Leg., ch. 923, Sec. 1, eff. Sept. 1, 2003. Amended by: Acts 2013, 83rd Leg., R.S., Ch. 78 (S.B. 354), Sec. 5, eff. May 18, 2013. Art. 38.43. EVIDENCE CONTAINING BIOLOGICAL MATERIAL. article, "biological evidence" means: (1) (2) (a) In this the contents of a sexual assault examination kit; or any item that contains blood, semen, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other identifiable biological material that was collected as part of an investigation of an alleged felony offense or conduct constituting a felony offense that might reasonably be used to: (A) establish the identity of the person committing the offense or engaging in the conduct constituting the offense; or (B) exclude a person from the group of persons who could have committed the offense or engaged in the conduct constituting the offense. (b) This article applies to a governmental or public entity or an individual, including a law enforcement agency, prosecutor's office, court, public hospital, or crime laboratory, that is charged with the collection, storage, preservation, analysis, or retrieval of biological http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm#38.43 Page 59 of 69 CODE OF CRIMINAL PROCEDURE CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS 10/9/17, 5)14 PM evidence. (c) An entity or individual described by Subsection (b) shall ensure that biological evidence collected pursuant to an investigation or prosecution of a felony offense or conduct constituting a felony offense is retained and preserved: (1) for not less than 40 years, or until the applicable statute of limitations has expired, if there is an unapprehended actor associated with the offense; or (2) in a case in which a defendant has been convicted, placed on deferred adjudication community supervision, or adjudicated as having engaged in delinquent conduct and there are no additional unapprehended actors associated with the offense: (A) until the inmate is executed, dies, or is released on parole, if the defendant is convicted of a capital felony; (B) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment in the Texas Department of Criminal Justice; (C) until the defendant completes the defendant's term of community supervision, including deferred adjudication community supervision, if the defendant is placed on community supervision; (D) until the defendant dies, completes the defendant's sentence, or is released on parole, mandatory supervision, or juvenile probation, if the defendant is committed to the Texas Juvenile Justice Department; or (E) until the defendant completes the defendant's term of juvenile probation, including a term of community supervision upon transfer of supervision to a criminal court, if the defendant is placed on juvenile probation. (d) The attorney representing the state, clerk, or other officer in possession of biological evidence described by Subsection (a) may destroy the evidence, but only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm#38.43 Page 60 of 69 CODE OF CRIMINAL PROCEDURE CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS 10/9/17, 5)14 PM the defendant, attorney of record, or court before the 91st day after the later of the following dates: (1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or (2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant. (e) To the extent of any conflict, this article controls over Article 2.21. (f) The Department of Public Safety shall adopt standards and rules authorizing a county with a population less than 100,000 to ensure the preservation of biological evidence by promptly delivering the evidence to the Department of Public Safety for storage in accordance with Section 411.053, Government Code, and department rules. (g) The Department of Public Safety shall adopt standards and rules, consistent with best practices, relating to a person described by Subsection (b), that specify the manner of collection, storage, preservation, and retrieval of biological evidence. (h) A person described by Subsection (b) may solicit and accept gifts, grants, donations, and contributions to support the collection, storage, preservation, retrieval, and destruction of biological evidence. (i) Before a defendant is tried for a capital offense in which the state is seeking the death penalty, subject to Subsection (j), the state shall require either the Department of Public Safety through one of its laboratories or a laboratory accredited under Article 38.01 to perform DNA testing, in accordance with the laboratory's capabilities at the time the testing is performed, on any biological evidence that was collected as part of an investigation of the offense and is in the possession of the state. The laboratory that performs the DNA testing shall pay for all DNA testing performed in accordance with this subsection. (j) As soon as practicable after the defendant is charged with a capital offense, or on a motion by the state or the defendant in a capital case, unless the state has affirmatively waived the death penalty in writing, the court shall order the state and the defendant to meet and confer about which biological materials collected as part of an http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm#38.43 Page 61 of 69 CODE OF CRIMINAL PROCEDURE CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS 10/9/17, 5)14 PM investigation of the offense qualify as biological evidence that is required to be tested under Subsection (i). If the state and the defendant agree on which biological materials constitute biological evidence, the biological evidence shall be tested in accordance with Subsection (i). If the state and the defendant do not agree on which biological materials qualify as biological evidence, the state or the defendant may request the court to hold a hearing to determine the issue. On receipt of a request for a hearing under this subsection, the court shall set a date for the hearing and provide written notice of the hearing date to the state and the defendant. At the hearing, there is a rebuttable presumption that the biological material that the defendant requests to be tested constitutes biological evidence that is required to be tested under Subsection (i). This subsection does not in any way prohibit the state from testing biological evidence in the state's possession. (k) If an item of biological evidence is destroyed or lost as a result of DNA testing performed under Subsection (i), the laboratory that tested the evidence must provide to the defendant any bench notes prepared by the laboratory that are related to the testing of the evidence and the results of that testing. (l) The defendant's exclusive remedy for testing that was not performed as required under Subsection (i) or (j) is to seek a writ of mandamus from the court of criminal appeals at any time on or before the date an application for a writ of habeas corpus is due to be filed in the defendant's case under Section 4(a), Article 11.071. An application for a writ of mandamus under this subsection does not toll any period of limitations applicable to a habeas petition under state or federal law. The defendant is entitled to only one application for a writ of mandamus under this subsection. At any time after the date an application for a writ of habeas corpus is filed in the defendant's case under Section 4(a), Article 11.071, the defendant may file one additional motion for forensic testing under Chapter 64. (m) A defendant may have another laboratory accredited under Article 38.01 perform additional testing of any biological evidence required to be tested under Subsection (i). http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm#38.43 On an ex parte showing of Page 62 of 69 CODE OF CRIMINAL PROCEDURE CHAPTER 38. EVIDENCE IN CRIMINAL ACTIONS 10/9/17, 5)14 PM good cause to the court, a defendant may have a laboratory accredited under Article 38.01 perform testing of any biological material that is not required to be tested under Subsection (i). The defendant is responsible for the cost of any testing performed under this subsection. Added by Acts 2001, 77th Leg., ch. 2, Sec. 1, eff. April 5, 2001. Renumbered from Code of Criminal Procedure, Art/Sec 38.39 by Acts 2005, 79th Leg., Ch. 728 (H.B. 2018), Sec. 23.001(8), eff. September 1, 2005. Amended by: Acts 2009, 81st Leg., R.S., Ch. 1179 (H.B. 3594), Sec. 1, eff. September 1, 2009. Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 27.002(1), eff. September 1, 2011. Acts 2011, 82nd Leg., R.S., Ch. 1248 (S.B. 1616), Sec. 1, eff. June 17, 2011. Acts 2013, 83rd Leg., R.S., Ch. 1349 (S.B. 1292), Sec. 1, eff. September 1, 2013. Acts 2015, 84th Leg., R.S., Ch. 734 (H.B. 1549), Sec. 4, eff. September 1, 2015. Acts 2015, 84th Leg., R.S., Ch. 1276 (S.B. 1287), Sec. 10, eff. September 1, 2015. Art. 38.44. ADMISSIBILITY OF ELECTRONICALLY PRESERVED DOCUMENT. An electronically preserved document has the same legal significance and admissibility as if the document had been maintained in hard-copy form. If a party opposes admission of the document on the grounds that the document has been materially altered, the proponent of the document must disprove the allegation by a preponderance of the evidence. Added by Acts 2005, 79th Leg., Ch. 312 (S.B. 611), Sec. 5, eff. June 17, 2005. Art. 38.45. EVIDENCE DEPICTING OR DESCRIBING ABUSE OF OR SEXUAL CONDUCT BY CHILD OR MINOR. (a) During the course of a criminal hearing or proceeding, the court may not make available or allow to be made http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.38.htm#38.43 Page 63 of 69