Nos. 17-63 12, 17A390 IN THE ?upreme Qtnurt of the U?niteh ?tate? ROBERT LYNN PRUETT, Petitioner, v. JACK CHOATE, et al., Respondents. On Petition for a Writ of Certiorari to the Court of Appeals of for the Fifth Circuit PROOF OF SERVICE I hereby certify that on the 11th day of October, 2017, a copy of Respondent?s Brief in Opposition to Petition for a Writ of Certiorari and Application for a Stay of Execution was ?sent by mail and electronic mail to: David R. Dow, University of Houston Law Center, 4604 Calhoun Road, Houston, Texas 77204-6060, ddow@central.uh.edu. All parties required to be served have been served. I am a member of the Bar of this Court. WERSMENDENIN ssistant Attorney General Criminal Appeals Division P.O. Box 12548, Capitol Station Austin, Texas 78711 (512) 936-1400 Counsel for Respondent Nos. 17-6312, 17A390 IN THE ?unreme Qtourt of the (?utter: @tatee ROBERT LYNN PRUETT, Petitioner, VS. JACK CHOATE, et at, Respondents. On Petition for a Writ of Certiorari to the Court of Appeals for the Fifth Circuit BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARIIAND APPLICATION FOR STAY OF EXECUTION KEN PAXTON EDWARD L. MARSHALL Attorney General of Texas . Chief, Criminal Appeals Diyision JEFFREY C. MATEER JEFFERSON CLENDENIN First Assistant Attorney General Assistant Attorney General Criminal Appeals Division ADRIENNE MCFARLAND Counsel of Record Deputy Attorney General for Criminal Justice PO. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 936-1400 jay.clendenin@oag.texas.gov' Counsel for Respondent QUESTION PRESENTED Petitioner Robert Pruett was found guilty and sentenced to death in 2002 for his killing of Texas Department of Criminal Justice (TDCJ) Correctional Of?cer Daniel Nagle. On the day of his scheduled execution in 2015, Pruett moved in state court for DNA testing on the prison?made ?shank? he used to kill Of?cer Nagle, and the trial court granted the motion. The results of the DNA testing of the shank were not exculpatory. Evidence presented in state court showed that the shank had been contaminated prior to the 2015 testing and that members of Pruett?s postconviction defense team contributed to the contamination. Pruett later filed a civil?rights lawsuit in which he argued the Texas Court of Criminal Appeals (CCA) incorrectly applied state law in holding he was entitled to no further DNA testing. The district court dismissed Pruett?s action and the Fifth Circuit af?rmed, holding that Pruett failed to raise a claim upon which relief could be granted and denying Pruett?s request for a stay of execution. In so holding, the Fifth Circuit applied the standard provided by this Court in District Attorney ?3 Office for Third Judicial Dist. 0. Osborne, 557 U.S. 52 (2009). These facts raise the following question: Should the Court grant certiorari to review Pruett?s claim that he was denied due process where the lower court applied the proper standard in holding Pruett did not allege a viable due process claim, his postconviction defense team contributed to the contamination of the shank, and his failure to raise a viable claim disentitled him to a stay of execution? TABLE OF CONTENTS Page QUESTION PRESENTED i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iv BRIEF IN OPPOSITION 1 STATEMENT OF JURISDICTION 5 STATEMENT OF THE CASE 5 I. FACTS OF THE CRIME 5 II. Trial, Direct Appeal, and Postconviction Proceedings 6 ARGUMENT 11 I. Pruett Presents No Issue Worthy of this Court?s Attention 11 A. The Fifth Circuit properly applied the" standard under Osborne and Skinner . 12 B. Pruett?s request that the Courtcreate a new presumption in favor of granting a stay of execution'is unsupported and untenable 17 II. The Fifth Circuit Properly Concluded Pruett Failed to State a Claim Upon Which Relief Could'Be Granted 19 A. Texas?s statutory framework adequately protects inmates? rights during postconviction DNA proceedings 20 B. Pruett was not entitled to a comparison of the partial female DNA pro?le to the FBI and DPS databases because he contributed to the contamination . 23 ii C. The doctrine of res judicata did not apply to the trial court?s initial determination that the murder weapon was not contaminated. 30 D. The state court did not hold that Pruett was not entitled to data related to the DNA testing that was required for an evaluation of the results 32 E. The trial court?s order was fully executed 33 F. Pruett was not entitled to funding during the state court proceedings 36 Pruett Is Not Entitled to a Stay of Execution 38 CONCLUSION 40 TABLE OF AUTHORITIES Cases Page Ake v. Oklahoma, 470 US. 68 (1985) 3 6 Ambriati v. State, 2015 WL 6998616 (Tex. App?Beaumont April 13, 2016, pet. ref?d) 27 Arizona v. Youngblolod, 488 US. 51 (1988) 35 Ashcroft v. Iqbal, 556 US. 662 (2009) 15, 16 I Barefoot v. Estelle, 463 US. 880 (1983) 39 Bell Atlantic Corp. v. Twombly, 550 US. 544 (2007) 15, 16 Burden v. Maness, 2014 WL 4651609 (ED. Tex. Sept. 17, 2014) 29 Cooper 0. Ramos, 704 F.3d 772 (9th Cir. 2012) 12 District Attorney?s Office for Third Judicial Dist. v. Csborne, 557 US. 52 (2009) passzm Garcia v. Castillo, 431 F. App?x 350 (5th Cir. 2011) 21 Hill 1). McDonoaghHilton v. Braunskill, 481 US. 770 (1987) 39 McKithen v. Brown, 626 F.3d 143 (2nd Cir. 2010) 23 Medina v. California, 505 US. 437 (1992) 23 Nelson 1). Campbell, 541 US. 637 (2004) . 38 Nken v. Holder, 556 US. 418, 434 (2009) 39 Roughley v. Watkins, 2014 WL 5313957 (N.D. Tex. Sept. 22, 2014) 25 Skinner v. Switzer, 562 US. 521 (2011) passim, iv. State v. Swearingen, 478 716 (Tex. Crim. App. 2015) 30, 31 Swierkiewicz v. Sorema NA, 534 US. 506 (2002) 15 Swearingen 0. Keller, Civ. Act. No. (W .D. Tex.) 13, 25, 27, 29 Walker I). Epps, 287 F. App?x 371 (5th Cir. 2008) 39 Statutes and Rules 28 U.S.C. 1254(1) 5 42 U.S.C. 1983 passim Fed. R. Civ. P. 8(a) 15 Fed. R. Civ. P. 12(b)(6) passim Texas Code Crim. Pro?c. art. 38 21 Tex. Code Crim. Free. art. 64 ?passim BRIEF IN OPPOSITION Petitioner Robert Pruett was convicted and sentenced to death in 2002 for his murder of TD CJ Correctional Officer Daniel Nagle, which Pruett committed while serving a life sentence for a prior murder. He is scheduled to be executed after 6:00 p.m. (Central Time) on Thursday, October 12, 2017. Pruett has unsuccessfully challenged his conviction and death sentence in both state and federal court. His initial federal habeas proceedings concluded when the Court denied his petition for a writ of certiorari in 2012. Pruett v. Thaler, 133 S. Ct. 141. Pruett previously sought and obtained DNA testing in 2013 of epithelial cells found on a torn disciplinary report that had been written against Pruett and was recovered from the scene of the murder.1 The results of the testing were inconclusive and the state court concluded that those results did not establish a reasonable probability that Pruett would not have been convicted if the results had been available at his trial. Pruett v. Texas, 2014 WL 5422573, at *2 (Tex. Crim. App. 2014) (unpublished opinion). Pruett?s execution was then scheduled for April 28, 2015. Prior to that date, Pruett raised a number of challenges to his conviction and death sentence, each of which were rejected. On the day of his scheduled execution, 1 Such testing is commonly referred to as ?touch testing, as the testing seeks to ?nd DNA within skin cells that an individual might deposit on a surface when he or she touches it. Pruett did not seek DNA testing of the shank in 2013. 1 Pruett filed a motion requesting DNA testing of the murder weapon. Though the State had made all of the evidence in the case available for DNA testing for over fifteen years, despite Pruett?s failure to request DNA testing of the shank in 2013 during the previous testing, and despite the trial court?s conclusion that there was no doubt the request for the proposed DNA testing was made to delay the execution of sentence, the court granted the motion. DNA testing was then con-ducted on the shank as well as thirteen additional pieces of evidence Pruett did not request be tested. The results of 1 the testing were not exculpatory. The results revealed, however, an unknown. partial female DNA pro?le on the shank that was not present when the shank was originally tested in 2000. The DNA analyst testified unequivocally that the partial female pro?le was the result of postconviction contamination. Another witness testified that he was present when members of Pruett?s postconviction defense team (which included females), accompanied by a ?lm crew, handled the shank without wearing gloves. The trial court found that, had the results of the DNA testing ?been available during the trial of this offense, it is not reasonably probable that [Pruett] would not have been convicted. DNA CR 45.2 Accordingly, the trial 2 refers to the Reporter?s Record of the hearing in the state trial court pursuant to Pruett?s motion for DNA testing. That Reporter?s Record is contained in three volumes, a master index, the transcript of the proceedings, and the exhibits admitted at the hearing. The volume containing the transcript of the hearing will be 2 court denied relief and the CCA affirmed. Pruett v. State, 2017 WL 1245431, at *14 (Tex. Crim. App. 2017). Pruett filed a lawsuit pursuant to 42 U.S.C. 1983 alleging that his rights to due process and to be free from cruel and unusual punishment were violated during the state court postconviction DNA proceedings. He sought through his lawsuit prospective injunctive relief in the form of (1) a stay of execution, (2) funding to analyze the results of DNA testing that has already been conducted and the results of any future testing, (3) analysis of a partial female DNA profile that was revealed during the latest DNA testing in Pruett?s case, (4) access to the DPS analyst?s ?le, and (5) additional DNA testing. Defendants filed a motion to dismiss Pruett?s Complaint, which the district court granted. Specifically, the district court held that it was without jurisdiction to consider Pruett?s Complaint because his request for relief was properly construed .as a request for mandamus directed at state officials and that such relief is impermissible in federal court. On appeal, the Fifth Circuit affirmed the district court?s judgment, holding that Pruett failed to state a claim upon which relief could be granted. cited to as ?2 DNA The volume contains the exhibit submitted at the hearing and will be cited to as ?3 DNA The Clerk?s Record from the evidentiary. hearing will be cited to as 3 Pruett now seeks review in this Court of the Fifth Circuit?s decision. He argues that the lower courts applied an incorrect standard when reviewing his claims and that he suf?ciently pleaded a due process claim under Skinner v. Switzer, 562 US. 521 (2011). Pet. Cert. 33?38. He also argues that the Fifth Circuit applied the wrong standard when holding that his claims failed to state a claim upon which relief could be granted. Pet. Cert. 34?36. Lastly, Pruett argues the Court should hold that a civil-rights plaintiff is presumptively entitled to a stay of execution where the plaintiff ?les his or her action several weeks before the scheduled execution. Pet. Cert. 36?38. Pruett fails to present any issue worthy of this Court?s attention. The Court has held that an inmate has no substantive due process right to DNA testing and only ?slim room? to show that the state law providing the inmate access to DNA evidence denied him procedural due process. Skinner, 562 US. at 525; see Osborne, 557 at 73?75. The Fifth Circuit applied the very standards this Court enunciated in Skinner and Osborne. Fruett?s argument, therefore does not present a con?ict with the Court?s holdings in those cases. Further, the Court in Skinner did not create a lower threshold for a plaintiff in a civil rights action in attempting to satisfy Federal Rule of Civil Procedure and the Fifth Circuit properly held that Pruett?s complaint failed to allege a viable due process claim. Lastly, Pruett?s request that the Court create a new presumption in favor of granting a stay of execution has no 4 support in precedent or pragmatism. Consequently, Pruett does not raise an issue of worthy of certiorari review and the Court should deny Pruett?s petition. STATEMENT OF JURISDICTION The Court has jurisdiction under 28 U.S.C. 1254(1). STATEMENT OF THE CASE I. I Facts of the Crime The Court of Appeals for the Fifth Circuit summarized the evidence supporting Pruett?s capital murder conviction in its opinion denying habeas relief: I Pruett was sentenced to 99 years in prison for his role in the 1995 murder of Ray Yarborough. His father and brother were also convicted for their roles in the Yarborough murder. On December 17, 1999, while in prison, Pruett missed getting a hot lunch and was given a sack lunch. He attempted to take his lunch into the recreation area, which was in violation of prison rules. Of?cer Nagle told Pruett that he needed to eat his lunch before going to the recreation area, and wrote a disciplinary charge against Pruett. Later that afternoon, when Nagle was in his office adjoining a multi-purpose room, Pruett stabbed agle eight times with a ?shank? made of a metal rod Sharpened to a point at one end, and wrapped in tape at the other end. According to the autopsy report, Nagle died from a heart attack that he suffered as a result of the trauma caused by the stab wounds. The murder weapon and a torn disciplinary report against Pruett, charging him with attempting to take food into an unauthorized area, were found at the scene of thelattack. Pruett v. Thaler, 455 F. App?X 478, 479?80 (5th Cir. 2011). II. Trial, Direct Appeal, and Postconviction Proceedings Having been indicted on charges of capital murder, Pruett was convicted and sentenced to death for the murder of Officer Nagle. CR 2, 518, 539?41.3 The CCA upheld Pruett?s conviction and death sentence. Pruett v. State, 2004 WL 3093232 (Tex. Crim. App. 2004). Pruett did not file a petition for a writ of certiorari appealing that decision. Pruett next challenged his conviction and sentence on state habeas review. The trial court held an evidentiary hearing and issued findings of fact and conclusions of law recommending that Pruett?s conviction be set aside with respect to two claims, but recommended denial of all other claims. at 272?304.4 The CCA adopted the trial court?s findings and Conclusions, except those upon which the trial court recommended a grant of relief, and denied relief. Experts Pruett, 207 767 (Tex. Crim. App. Oct. 19, 2005). Thereafter, the federal district court denied habeas corpus relief but granted a certificate of appealability (COA) on two issues. Pruett v. Thaler, No. 3 refers to the ?Clerk?s Record,? the transcript of pleadings and documents ?led in the trial court, followed by the internal page number(s). refers to the ?Reporter?s Record,? the state record of transcribed trial and punishment proceedings, preceded by the volume number and followed by the internal page number(s). refers to the State?s Exhibits that were admitted at trial by the prosecution. The records from Pruett?s trial were previously ?led during his initial federal habeas proceedings in cause number (S.D. Tex). 4 refers to the Clerk?s Record of pleadings and documents filed with the state habeas court. See generally Ex parte Pruett, No. 62,099-01. 6 C-06-CA-465-H (S.D. Tex.,' Aug. 12, 2010). The Fifth Circuit subsequently affirmed the district court?s denial of relief and declined to expand the grant of a COA. Pruett v. Thaler, 455 F. App?x at 487, 490?91, cert. denied, 133 S. Ct. I 141 (2012). The state trial court previously set Pruett?s execution date in 2013 and 2014, but those settings were withdrawn for DNA testing to be conducted pursuant to Pruett?s motion. After DNA testing,5 the trial court found that it was not ?reasonably probable that [Pruett] would have been acquitted had the new results been available at trial.? Pruett v. Texas, 2014 WL 5422573, at *1 (Tex. Crim. App. Oct. 22, 2014). The CCA af?rmed the trial court?s judgment 5 The results of palm print analysis and DNA testing on pieces of the torn disciplinary report that was written against Pruett and found next to Of?cer Nagle?s body were inconclusive. The CCA summarized the results of the testing: The DPS database did not yield a match to the palm print [on one of the pieces of the disciplinary report]. Upon completion of the requested DNA testing, the laboratory found markers at several loci, but the twelve allele at the D13 locus was the only marker present in an amount beyond the analytical threshold. One marker is not a suf?cient pro?le to declare a known person to be a match, but known pro?les not including the twelve allele at the D13 locus could be excluded as the source of the palm print. Known DNA pro?les of appellant and Of?cer Nagle both contain a twelve allele at the D13 locus, so neither man could be eliminated as the source of the palm print. The twelve allele is present at the D13 locus in the DNA pro?les of ?approximately 20% of the Asian and HiSpanic populations, 30% of the Caucasian population, and 40% of the African American pOpulation.? Pruett v. Texas, 2014 WL 5422573, at 7 and this Court denied Pruett?s petition for a writ of certiorari. Id.; Pruett v. Texas, 135 S. Ct. 1707 (2015).- Prior to his previously scheduled execution date of April 28, 2015, Pruett ?led three subsequent state habeas applications, each of which were rejected. Ex parte Pruett, 2014 WL 12714978 (Tex. Crim. App. Dec. 10, 2014), cert. denied, 135 S. Ct. 1919 (2015); Ex parte Pruett, 458 535 (Tex. Crim. App. 2015); Ex parte Pruett, 458 537 (Tex. Crim. App. 2015). Pruett also ?led a petition for a writ of prohibition in the CCA. In re Pruett, 2015 WL 13386964 (Tex. Crim. App. April 20, 2015). The petition was denied. Id. Pruett also ?led in the federal district court a motion for relief from judgment and a motion for reconsideration, which were denied. Pruett v. Stephens, 2015 WL 10767706 (S.D. Tex. Feb. 5, 2015), COA denied, 608 F. App?x 182 (5th Cir. April 10, 2015), cert. denied, 135 S. Ct. 1919. Pruett also filed a lawsuit pursuant to 42 U.S.C. 1983. Pruett v. Stephens, . (S.D. Tex.). Construing the lawsuit as a habeas petition, the district court transferred the action to the Fifth Circuit for consideration of whether Pruett was entitled to- authorization to file a successive federal habeas petition. The Fifth Circuit af?rmed the district court and dismissed Pruett?s federal habeas petition for want of jurisdiction. In re Pruett v. Stephens, 784 F.3d 287 (5th Cir.), cert. denied, 135 S. Ct. 1919 (2015). Pruett also ?led in the Fifth Circuit a motion for authorization to ?le a successive habeas petition. The Fifth Circuit denied authorization. In re Pruett, 609 F. App?): 819 (5th Cir. April 24, 2015). Pruett later, after the previous execution date was stayed, ?led two subsequent state habeas applications. The applications were dismissed. Ex parte Pruett, 2016 WL 4275640 (Tex. Crim. App. Aug. 11, 2016). On the day of his previously scheduled execution date, Pruett moved for, and was granted, DNA testing. Following DNA testing, the state trial court conducted an evidentiary hearing. See generally 2 DNA RR.5 The trial court later entered findings and conclusions. DNA CR 39?214. The trial court found that the results of the DNA testing were net exculpatory and denied relief. Speci?cally, the trial court found: (1) as tested in 2015, the tape wrapped around the shank contained no DNA pro?le; (2) there was no DNA profile on the shank when it was originally tested for trial in 2000 other than the pro?le of Of?cer Nagle, which was found on the sharp-end of the shank; (3) when tested in 2015, the shank contained an unknown female DNA profile. However, since 2000, the shank was handled on numerous occasions by members of the British Broadcasting Corporation and Pruett?s postconviction defense team, with no one wearing gloves; (4) the DNA pro?le found on the shank during the most recent testing, which was not preSent on the rod when it was originally tested, could not be considered relevant to Pruett?s motion; (5) the DNA analyst?s testimony 3 refers to the Reporter?s Record of the hearing in the state trial court pursuant to Pruett?s motion for DNA testing. That Reporter?s Record is contained in three volumes, a master index, the transcript of the proceedings, and the exhibits admitted at the hearing. The volume containing the transcript of the hearing will be cited to as ?2 DNA The volume contains the exhibit submitted at the hearing and will be cited to as ?3 DNA The Clerk?s Record from the evidentiary hearing will be cited to as 9 adequately addressed the most recent problems concerning the Federal Bureau of Investigation (FBI) database and DNA calculations; (6) the motion for DNA testing and the motion to stay Pruett?s execution were not ?led 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, 2015. However, for some inexplicable reason, they waited until two days before the execution to contact the DNA expert; (8) no affidavit for good cause was attached to Pruett?s pleadings in violation of the Court of Criminal Appeals Miscellaneous Rule 11?? 003; and (9) on July 23, 2015, Pruett filed his first motion for the authorization of funds for expert services requesting $5,750.00. During the August 13 hearing, Pruett re-urged his request, but the court withheld its ruling until all of the evidence had been presented. Pruett Iv. State, 2017 WL 1245431, at Pruett appealed the denial of relief. The CCA affirmed the trial court-Id. at 9?14. Pruett filed in this Court a petition for a writ of certiorari appealing the opinion. Druett v. Texas, No. 17-5127. The Court denied the petition. S. Ct. 2017 WL 3008846, at *1 (Oct. 2, 2017). Pruett also filed in the CCA a subsequent state habeas application and two suggestionsito reconsider its denial of two of his earlier subsequent state habeas applications. The CCA dismissed the subsequent application and declined to reconsider its denial of the two earlier applications. Ex parte Pruett, Nos. 62,099-01, -02, and ~08 (Tex. Crim. App. Oct. 2, 2017) (unpublished order). 10 Pruett filed in the Fifth Circuit another motion for authorization to ?le a successive federal habeas petition. In re Pruett, No. 17-41007 (5th Cir.). The motion was denied. Id. On October 10, 2017, Pruett ?led in this Court an original petition for a writ of habeas corpus. Pruett v. Davis, Nos. 17?6313, 17A391. The petition is pending. Pruett ?led in the district court a civil-rights complaint. Pruett 1). Cheats, at 02., Civ. Act. No. (SD. The district court dismissed the complaint for lack of jurisdiction. 2017 WL 4277206, at *5 (SD. Sept. 25, 2017). Pruett then appealed the district court?s judgment to the Fifth Circuit. The Fifth Circuit affirmed the district court?s judgment. Pruett v. Choate, et al., No. 17-70021 (5th Cir. Oct. 6, 2017). Pruett ?led in this Court a petition for a writ of certiorari. The instant brief in opposition follows. . ARGUMENT I. Pruett Presents No Issue Worthy of this Court?s Attention. Pruett argues that the Court should grant certiorari to provide the federal courts guidance as to ?the type of relief that is cognizable in a 1983 action? under Skinner and as to the standard a plaintiff must satisfy to withstand a motion to dismiss for failure to state a claim upon which relief can be granted. Pet. Cert. 33?36. Pruett also argues the Court should, for the ?rst time, hold that a civil-rights plaintiff is presumptively entitled to a stay of 11 execution where he or she ?les the complaint several weeks before the scheduled execution date. Pet. Cert. 36. Pruett?s petition does not raise an issue worthy of the Court?s attention because none of the Fifth Circuit?s holdings con?ict with controlling precedent. A. The Fifth Circuit properly applied the standard under Osborne and Skinner. Pruett ?rst argues that the Fifth Circuit incorrectly applied this Court?s precedent in holding Pruett failed to state a claim upon which relief could be granted. He argues the Court in Skinner held that a claim alleging that a state?s statute providing for postconviction DNA testing was unconstitutional as?applied to the plaintiff and asking that the federal court order the custodians of the evidence to release the evidence is sufficient to withstand a . motion to dismiss under Rule Pet. Cert. 33?36. But that is not what 7 Pruett also attacks the district court?s opinion. Pet. Cert. 33?34. But the Fifth Circuit affirmed the district court?s judgment on a different ground than that relied upon by the district court. Pruett fails to show the relevance of the district court?s opinion at this juncture. Nonetheless, the district court?s opinion was entirely proper and, as discussed in the Defendant?s pleadings, the court?s reasoning is supported by several other courts. Pruett v. Cheate, et al., No. 17 ~70021, Appellee?s Brief at 14?32; sec, Cooper 0. Ramos, 704 F.3d 772, 777 (9th Cir. 2012). Critically, the Court in Skinner indicated that a 1983 complaint attacking the state court?s opinion would not state a cognizable federal due process claim. 562 US. at 530, 532. But that is precisely What Pruett?s complaint did, and the district court properly held that it was without jurisdiction because the nature of Pruett?s claims and the relief he sought rendered the court without jurisdiction over his complaint. Further, the district court 'did not hold that a due process challenge to a statute providing for postconviction DNA testing would never be cognizable in 1983. The district court?s holding, therefore, is entirely consistent with Skinner. 12 the Court held. Pruett?s misapprehension of the holding in Skinner does not warrant the Court?s attention. In Skinner, the plaintiff filed a 1983 lawsuit alleging his right to due process was violated during postconviction DNA proceedings in state court due to Texas?s refusal to provide him the DNA testing he requested. 562 US. at 529. The federal district court granted the plaintiffs Rule 12(b)(6) motion and the Fifth Circuit affirmed under the then?controlling circuit precedent, which held that Such a claim was ?cognizable only in habeas corpus, not under 1983.? Id. at 529. This Court reversed, holding that a claim alleging a violation of due process during postconviction DNA proceedings in state court is cognizable in 1983. Id. at 529?30. However, the lower courts had not addressed the merits of the plaintiffs claims ?assailing the Texas statute as authoritatively construed?-or the viability of his claims under Osborne because controlling circuit precedent did not recognize the plaintiff claims as having been cognizable in 1983 in the ?rst place. Id. at 531 (?We take up here only the questions whether there is federal-court subject-matter jurisdiction over Skinner?s complaint, and whether'the claim he presses is cognizable under Pruett also attacks a district court?s opinion in an entirely different case. Pet. Cert. 84 (citing Swearingen 0. Keller, Civ. Act. No. (W .D. But the district court proceedings in Swearingen have no bearing on the Court?s review of Pruett?s petition for a writ of certiorari to the Fifth Circuit. 13 537. Consequently, the Court remanded to the lower courts for consideration of the merits of the claims. Id. The Court in Skinner did not, as Pruett argues, hold that any claim alleging a statute providing for pos-tconviction DNA testing was unconstitutional as-applied and asking for release of evidence for testing could withstand a motion to dismiss under Rule Pet. Cert. 33. The Court held only that such a claim is cognizable in 1983. 562 US. at 531, 537. Nothing in Skinner indicates that a civil-rights claim necessarily and indisputably defeats a Rule 12(b)(6) motion simply because it seeks relief that is available in 1983. Pruett?s assertion to the contrary is unsupportable. The Fifth Circuit in this case held that Pruett?s due process claims were without merit. Pruett v. Choate, et 01., No. 17-70021, slip op. at 6?7. The court did not hold that Pruett?s claim alleging a due process violation during state- court DNA proceedings were never cognizable in 1983. Id. No con?ict exists, then, between the Fifth Circuit?s holding and this Court?s holding in Skinner. Pruett?s misapprehension of the Court?s holding in Skinner does not raise a compelling issue deserving of attention. For the same reason, no clarification or guidance is needed of the Court?s holding in Skinner. Therefore, Pruett?s petition should be denied. Pruett?s argument also con?icts with the Court?s precedents. He argues that a complaint should withstand a Rule 12(b)(6) motion simply by giving the 14 defendant notice of the basis of the claims. Pet. Cert. 34?35 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). He states that his complaint satisfied that standard by simply enunciating the bases of his claims. Pet. Cert. 34?85. Pruett?s argument is erroneous. First, the precedent on which Pruett relies applied Federal Rule of Civil Procedure which states the technical pleading requirement for stating a claim for relief a short and plain statement of relief). Swierkiewicz, 534 U.S. at 512?14. The Court in that case did not address Federal Rule of Civil Procedure and it certainly did not hold that a claim can withstand a Rule 12(b)(6) motion simply by giving notice to the defendant of the bases of the claim. See id. at 514 (?The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading Further, the Court in Skinner did not hold that a 1983 claim can withstand a Rule 12(b)(6) motion simply by providing such notice. 562 U.S. at 530. Rather, the Court held only that the plaintiff had sufficiently pleaded a claim that is cognizable in 1983. Id. at 530 (citing Fed. R. Civ. P. Indeed, the Court emphasized that it did not address the merits of the plaintiffs claim. Id. at 531. Instead, the controlling precedent regarding the applicable standard in the Rule 12(b)(6) context is Ashcroft v. Iqbal, 556 U.S. 662, 678?79 (2009), and Bell Corp. v. Twombly, 550 U.S. 544, 570 (2007). And under Twombly, it is insufficient to plead facts that are merely consistent with wrongful 15 conduct; a plaintiff must instead plead facts that plausibly suggest that he or she is actually entitled to relief. Id. at 556?57. Further, the pleading must contain something more than a recitation of facts that merely creates a suspicion of a legally cognizable right of action on the assumption that all the allegations in the complaint are true. Id. Moreover, the plaintiff ?must plead enough facts to state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678?79. A claim is plausible on its face when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. ?The plausibility standard is not akin to a ?probability requirement,? but asks for more than a sheer possibility that a defendant has acted unlawfully.? Id. at 678. Nothing in the Fifth Circuit?s opinion is inconsistent with that precedent. Pruett also argues that the Fifth Circuit erred in requiring him to show that he would ultimately prevail on his claim to withstand the Rule 12(b)(6) motion. But that is not the standard the Fifth Circuit applied. Rather, the Fifth Circuit held that Pruett?s allegations that the state court misapplied Chapter 64 did not allege a due process violation and that his ?conjectures? provided ?nothing more than bare possibilities and cannot establish a due process right to expert assistance.? Pruett v. Choate, et (11., slip op. at 6?7. In doing so, the Fifth Circuit applied this Court?s framework under Skinner and Osborne. Id. (noting that Skinner requires a showing that a state?s postconviction DNA 16 testing 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?) (quoting Osborne, 557 U.S. 69?7 1). Nothing in the Fifth Circuit?s opinion con?icts with this Court?s holdings. And as noted above, Pruett?s assertion that he was required only to provide Defendants ?notice? as to the bases of his claims to withstand a Rule 12(b)(6) motion is ?atly incorrect under this Court?s precedent. Therefore, Pruett?s petition should be denied. B. Pruett?s request that the Court create a new presumption in favor of granting a stay of execution is unsupported and untenable. Pruett also argues that the Court should grant certiorari and hold that a civil?rights plaintiff is presumptively entitled to a stay of execution where he or she filed a complaint several weeks before the scheduled execution date. Pet. Cert. 36?38. Pruett provides no support for his novel request and raises no compelling issue worthy of the Court?s attention.8 I The Court in Hill v. McDonough provided the applicable standard where - a civil-rights plaintiff seeks a stay of execution. 547 US. 573, 584?85 (2006). The Court explained that a stay of execution is an equitable remedy and is not 3 Pruett also makes a conclusory assertion that the federal courts are unfamiliar with Skinner and that their ?lack of familiarity? requires a stay of execution in this case. Pet. Cert. 36. Pruett provides no support for his assertion other than his disagreement with the lower courts? holdings. 17 available as a matter of right. Id. at 584. Federal courts must consider the ?State?s strong interest in enforcing its criminal judgments,? and an inmate seeking a stay of execution must show a significant possibility of success on the merits. Id. Further, the Court noted that ?federal courts can and should protect States from? speculative suits as well as repetitive litigation. Id. Pruett provides no reason for the Court to depart from the standard in Hill. Most importantly, Pruett?s argument presupposes that he has raised a viable and potentially meritorious due process claim. That is, he argues-the Fifth Circuit ?should not have had to? address his request for a stay of execution because the district court should-have granted him the relief he requested. Pet. Cert. 38. But without a viable, potentially meritorious claim, he was not and is not entitled to a stay of execution. Hill, 547 US. at 584 all other stay applicants, inmates seeking to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a signi?cant possibility of success on the merits?). Pruett?s argument is simply circular. Moreover, the Court?s holding in Hill provides that a court considering a request for a stay in a case where the inmate brought his or her claim at a suf?ciently early time ?to allow consideration of the merits without requiring entry of a stay? will simply not apply a presumption against granting a stay of execution. Id. at 584. Pruett provides no justi?cation for turning that shield 18 into a sword, essentially requiring a stay of execution in every case where an inmate files suit several weeks before his scheduled execution date. Indeed, Pruett?s request is directly contrary to the Court?s holding in Hill that an inmate must satisfy each requirement for a stay. Id. If Pruett?s request was granted, it would indisputably interfere with the State?s strong interest in enforcing its criminal judgments. Pruett provides no support for such a radical departure from the Court?s precedent. Therefore, Pruett?s petition should be denied. II. The Fifth Circuit Properly Concluded Pruett Failed to State a Claim Upon Which Relief Could Be Granted. In his Complaint, Pruett alleged only his disagreements with the state court on how it applied state law in denying relief to form the basis of his due process claims. His allegations failed to state a cognizable due process claim. Moreover, the claims were patently meritless. For that reason, the Fifth Circuit properly affirmed the district court?s judgment because Pruett failed to state a claim upon which relief can be granted. Fed. R. Civ. P. Additionally, Pruett?s petition for a writ of certiorari failed to identify any compelling issue that warrants this Court?s attention. For the reasons discussed below, Pruett?s petition for a writ of certiorari should be denied. Pruett claimed he was denied due process during the most recent postconviction DNA proceedings. Specifically, Pruett claimed the state court?s 19 decision was arbitrary because the state court (1) attributed to him blame for the State?s failure to properly preserve biological evidence, (2) did not apply the doctrine of res judicata to the trial court?s decision that the murder weapon had not been contaminated, (3) did not order a comparison of the partial DNA profile with the FBI and DPS databases, (4) and did not require the DNA analyst to provide Pruett with additional material from her ?le. DE 1 at 26? 38. Pruett also claimed he was denied due process because the DNA analyst did not conduct additional testing Pruett believes was required under the trial court?s order and because the trial court denied his request for funding. DE 1 at 38?44. Such claims do not allege that the procedures provided by Chapter 64 were so inadequate they give rise to a procedural due process violation. Rather, such claims allege violations of a substantive right to due process, a right that does not exist in postconviction DNA proceedings. Skinner, 562 U.S. at 525. Nonetheless, as discussed below, Chapter 64 is plainly adequate to protect an inmate?s right to procedural due process and Pruett fails to show that the proceedings in his case were inadequate. Consequently, Pruett fails to state a claim upon which relief can be granted. A. Texas?s statutory framework adequately protects inmates? rights during postconviction DNA proceedings. The Court in Osborne held that a defendant has a liberty interest in demonstrating his innocence with new evidence under state law. 557 U.S. at 20 68. But his right to due process is limited in the context of a postconviction challenge and he does not have a freestanding substantive due process right to access DNA evidence. Id. at 69?70, 73?74. Moreover, due process does not dictate the exact form postconviction DNA testing must assume. Id. at 69. Indeed, ?[?ederal courts may upset a State?s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.? Id. Pruett must, therefore, show that the Texas statute, as applied to him, violated his constitutional rights. Garcia v. Castillo, 431 F. App?x 350, 353 (5th Cir. 2011) (unpublished). Texas law requires that, to obtain DNA testing, a convicted person move for ?forensic DNA testing of evidence containing biological material? in the state trial court.9 Tex. Code Crim. ?Proc. art. 64.01 (West 2015).10 The statute further requires that the evidence to be tested was in the possession of the State at the time of trial but was not previously subjected to DNA testing or could be ?subjected to newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of 9 Texas Code of Criminal Procedure article 38.43 (2) (A) requires that evidence containing biological material be retained and preserved in a capital case until the inmate is executed, dies, or is released on parole. 10 Texas Code of Criminal Procedure article was amended in 2015 to state that a convicted person may move ?for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material.? The amendment went into effect on September 1, 2015, after Pruett moved for DNA testing of the shank. 21 the previous test.? Tex. Code Crim. Proc. art. 64.01 The state trial court may? order forensic DNA testing only if the evidence still exists, can be subjected to DNA testing, and has been subjected to a sufficient chain of custody. Tex. Code Crim. Proc. art. The convicted person must also show, inter alia, that identity was or is at issue in the case and must establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. art. (2). After eXamining the results of DNA testing, the convicting court is required to ?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.? Tex. Code Crim. Proc. art. 64.04. The convicted person may appeal the trial court?s decision. Tex. Code Crim. Proc. art. 64.05. The Court held in Osborne that a similar state law framework was adequate. 557 U.S. at 69?70. Notably, the Texas state law framework for DNA testing permits testing if the convicted person establishes by a ?preponderance of the evidence? that he would nOt have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. art. The Alaska state law at issue in Osborne required a greater showing that ?newly discovered evidence? established ?by clear and convincing evidence? the 22 convicted person was innocent. Osborne, 557 U.S. at 68. Alaska courts also required that the testing ?would likely be conclusive? on the issue of the convicted person?s innocence. Id. at 65. Pruett, therefore, fails to demonstrate that Texas?s less onerous requirements for DNA testing violated his right to procedural due process. See McKithen 0. Brown, 626 F.3d 143, 153?-54 (2nd Cir. 2010) (holding that New York?s statutory framework providing for DNA testing was adequate because its standards were less ?restrictive and difficult to meet? than the Alaska standard at issue in Osborne). As noted above, federal courts will only intervene where the State?s framework for providing access to DNA testing ?offends some principle of justice so r00ted in the traditions and conscience of our peOple as to be ranked as fundamental, or transgresses any recognized principle of fundamental fairness in operation.? Osborne, 557 US. at 69 (quoting Medina v. California, 505 US. 437, 446, 448 (1992)) (internal quotation marks omitted). Pruett failed to allege that Texas?s statutory framework under Chapter 64 violated his right to procedural due process. Nonetheless, as discussed below, Pruett?s as?applied challenges are patently without merit. B. Pruett was not entitled to a comparison of the partial female DNA pro?le to the FBI and DPS databases because he contributed to the contamination. Pruett argued that the state court erroneously interpreted and applied Chapter 64 in his case by declining to order a comparison of the partial female 23 DNA pro?le with the databases maintained by the FBI and DPS. DE 1 at 34? 36. But the claim did not establish a due process violation because the uncontested evidence presented to the state court shows that Pruett?s postconviction defense team (which included females) contributed to the contamination of ?the murder weapon prior to the most recent DNA testing in 2015. The DNA analyst, Lisa Baylor, testi?ed unequivocally that the partial female pro?le was not present on the murder weapon when it was originally tested in 2000.11 2 DNA RR 21. Pruett necessarily cannot establish a procedural due process Violation in light of the fact that the murder weapon was contaminated prior to the 2015 testing and that Pruett?s postconviction team contributed to the contamination. 12 That being the case, and as the CCA held, Pruett cannot meet .11 Pruett has asserted that ?touch DNA analysis was not widely performed in 2000? and that Ms. Baylor?s lab did not perform such analysis at that time. Ms. Baylor testified unequivocally during the state court hearing that her 2000 analysis of the murder weapon included both blood and skin cells and that she, in fact, obtained one sample of skin cells during the pre-trial testing. 2 DNA RR 45, 47. Pruett has also argued that Ms. Baylor did not test the entire surface of the weapon in 2000 because the drawings of the weapon she created during the testing show only two areas were swabbed. DE 1 at 19, 19 n.11; PX 2. But Ms. Baylor testi?ed unequivocally that the drawing did not show the entire area of the weapon that she swabbed. 2 DNA 64, 67. Ms. Baylor testi?ed ?atly that she swabbed the entire length of the weapon during the testing in 2000the extent Pruett raised a due process claim alleging that the State destroyed or failed to preserve potentially exculpatory evidence, it should be noted that Pruett raised such a claim in a petition for a writ of certiorari. This Court denied . the petition. Pruett v. Texas, 2017 WL 3008846, at *1 (Oct. 2, 2017). 24 the statutory requirements for obtaining postconviction DNA testing of the weapon, that the evidence at issue be in a condition to allow for DNA testing and has not been tampered with or altered in any material respect. Pruett v. State,'2017 WL 1245431, at *10 (?The necessary conclusion from [the DNA testing results] was'that the weapon had been contaminated and was no longer in a condition which quali?ed it for DNA testing under Article sec Tex.? Code Crim. P. see also Roughley v. Watkins, 2014 WL 5313957, at *3 (ND. Sept. 22, 2014) (?Because Plaintiff cannot meet the statutory requirements for obtaining post-conviction DNA testing, he cannot complain of the inadequacy of the State?s procedures?). In Swearingen, the plaintiff argued that the state court arbitrarily interpreted Chapter 64 and, in so doing, denied him ?the ability to compare DNA profiles to known suspects or to identify an offender through the use of DNA, databases.? Civ. Act. No. (W .D. July 7, 2017). The district court held that the plaintiff failed to state a claim upon which relief could be granted because any further testing ?would not be probative on the issue of [the plaintiffs] guilt or innocence.? Id. Such is the case here. Pruett asked that the district court order the partial female DNA pro?le to be compared to five non-party individuals who handled the murder weapon prior to the 2015 DNA testing and to the FBI and DPS databasesPruett is not entitled to such relief because he contributed to the contamination of the murder weapon. It should also be noted that, while Pruett asserts that the five non-party individuals constitute ?the total universe of possible contaminators,? such an assertion is facially incredible.13 DE 1 at 40 n.23. Rather, those five individuals are known to be possible contaminators based on testimony presented at the state court hearing. 'But that testimony did not exclude other individuals who may have handled the weapon after it was initially tested in 2000. 2 DNA RR 22 (Ms. Baylor?s testimony that it was more common ten or ?fteen years prior to the 2015 hearing for prosecutors, defense counsel, witnesses, court reporters, and jury members to handle physical evidence). It strains credulity to suggest that if the partial DNA profile was not matched to any of the five non-party individuals that that would conclusively demonstrate that the contamination revealed in 2015 was not in fact contamination. The partial DNA profile could have been deposited by other individuals after the weapon was tested in 2000. And, most importantly, Pruett?s assertion elides the fact 13 Pruett construed Defendants? argument as an admission that the murder weapon was not properly preserved and that the failure to preserve the murder weapon constituted a due process violation. Again, Pruett?s argument was rejected by this Court. Nonetheless, Pruett cannot assert a due process violation where the actions of his representatives, in and of themselves, rendered the murder weapon unsuitable for DNA testing. Tex. Code Grim. Proc. (ii) (requiring that evidence have not been ?tampered with? or ?altered in any material respect? for the evidence to be eligible for DNA testing). 26 that the DNA analyst testified ?atly that the partial DNA pro?le was not present on the weapon when it was initially tested in 2000. Consequently, Pruett cannot establish a due process violation where a comparison. of the partial DNA pro?le would not be probative on the issue of Pruett?s guilt and he fails to state a claim upon which relief may be granted. See Swearingen, Civ. Act. No. A-16-CV-1181 (W.D. Tex. July 7,2017). I Moreover, the CCA held that Pruett failed to show?the trial court erred because ?there was nothing in the record to show? whether the partial female pro?le satisfied the requirements for submission to the FBI and DPS databases. Pruett v. State, 2017 WL 1245431, at The CCA also held that, even if the trial court erred, Pruett could not show harm because the evidence presented at the hearing ?unequivocally showed that several individuals had handled the metal rod without gloves within two years before the 2015 testing. The testing also unequivocally showed that no unknown female pro?le was found on the metal rod during the pretrial testing.? Id. Pruett bore ?the burden of satisfying all Chapter 64 testing] requirements.? Ambriati v. State, 2015 WL 6998616, at *4 (Tex. App.? Beaumont April 13, 2016, pet. ref Prior to the hearing in state court, Pruett was provided the results of the DNA testing, which showed that an 27 unidentified partial female profile was found on the murder weapon. PX N.14 Yet at the hearing he failed to offer any proof to show that the partial female profile was suitable for submission to the DPS or FBI databases. This, despite the fact that the DPS analyst?s results indicated that ?[a]ll pro?les were evaluated for CODIS eligibility.? PX N. Pruett failed to ask lVls. Baylor regarding the notation that the profiles were evaluated for CODIS eligibility. Moreover, the submission standards were available to Pruett.15 Pruett could have, but did not, cross?examine the DNA analyst during the hearing regarding whether the partial female profile she obtained was sufficient for submission for comparison with the National DNA Index System (NDIS) database based on the publicly-available standards. For example, Pruett could have, but did not, attempt to elicit testimony from the DNA analyst regarding how many loci the analyst identified in the partial female pro?le to show that enough loci had been identified for submission.16 The 14 refers to Pruett?s exhibits that he submitted in district court with his Complaint. 15 FBI, Frequently Asked Questions on CODIS and NDIS (October 4, 2017) sheet. 16 The FBI requires for submission to NDIS, inter alia, that ?[t]he DNA data must meet minimum CODIS Core Loci requirements for the specimen category.? The website lists the thirteen core loci that were required at the time of Pruett?s 2015 hearing, of which ?at least [eight] . . . combined with a match rarity of at least one in ten million are required for submission to and searching at 28 analyst?s results show that, concerning the partial female pro?le (?IV-Item 1- metal rod sample she obtained only three complete results for the core loci. PX at 1. Pruett could have, but did not, cross-examine the analyst regarding those results or whether the partial female pro?le was suf?cient for submission to the database. Pruett?s failure to attempt to satisfy his burden of showing that the partial female pro?le met those Submission requirements did not create a basis on which the district court could ?nd a procedural due process violation. As discussed above, Pruett cannot show that the state courts? application of Chapter 64 was inadequate to protect his rights during the postconviction DNA testing. See Skinner, 562 US. at 525. The uncontroverted evidence presented to the state court showed that the partial female DNA profile found on the murder weapon in 2015 was the result of contamination and that Pruett?s postconviction defense team contributed to the contamination. That being the case, the murder weapon is not, and was not at the time of the most recent testing, in a suitable condition for DNA testing. Because no relief could be granted on Pruett?s claim even if his allegations were true, he does not state a claim upon which relief may be granted. Swearingen, Civ. Act. No. 1181 (W .D. Tex. July 7, 2017) (order dismissing complaint) (?Because no relief M. 29 could be granted on Swearingen?s claims even if his allegations were taken as true, he does not state a claim upon which relief may be granted?). Moreover, Pruett fails to show that the procedures established in Chapter 64 were inadequate to protect his right to postconviction DNA testing. See id.; Burden v. Maness, 2014 WL 4651609, at *2 (ED. Tex. Sept. 17, 2014) (dismissing plaintiffs complaint for failing to state a claim because, ?[w]hile plaintiff contends that the interpretation of Article 64.03 has led to an incorrect ruling in his case, he has not demonstrated that the procedures established by Article 64.03 are, in themselves, inadequate to protect a defendant?s right to postconviction DNA testing?). Therefore, he failed to state a claim upon which relief may be granted and he raises no issue worthy of the Court?s attention. C. The doctrine of res judicata did not apply to the trial court?s initial determination that the murder weapon was not contaminated. Pruett asserted that the state courts in his case declined to apply the doctrine of res judicata, which he contends contradicts the earlier decision in State v. Swearingen, 478 716, 720 Crim. App. 2015), and rendered the court?s decision arbitrary. DE 1 at 34. Speci?cally, Pruett argues that the CCA arbitrarily decided not to apply the doctrine of res judicata by holding that the trial court was not bound by its initial determination (in granting Pruett?s motion for DNA testing) that the murder weapon had not been contaminated. DE 1 at 34. But Pruett?s assertion did not raise a 30 constitutional claim because it concerns strictly a matter of state law. Further, as discussed below, the decision in this case was entirely consistent with its precedent. The CCA in Swearingen held that ?Chapter 64 motions are . . . subject to the ?law of the case? doctrine. According to that doctrine, ?an appellate court?s resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue.? 478 at 720 (emphasis added). The CCA also held that, ?[b]ecause we find that the record does not contain any change in the law, facts, or circumstances since our 2014 opinion and the granting of Swearingen?s latest Chapter 64 motion, we see no reason to revisit our previous holdings on the matter.? Id. at 721 (emphasis added). I The holding in Pruett?s case is entirely consistent with Swearingen. In Pruett?s case, the CCA held that the change in facts, the discovery in 2015 of contamination as revealed by the partial female DNA profile, ?entitled [the trial court] to alter its finding [that the murder weapon had not been contaminated] accordingly.? Pruett v. State, 2017 WL 1245431, at Consequently, to the extent the holding in Swearingen applied in Pruett?s case, the CCA properly found that the trial court was not bound by its initial ?nding due to the change in facts. Further, the Swearingen holding is inapposite because the CCA had not previously held on appeal in Pruett?s case that the murder weapon had not been contaminated. Consequently, the CCA 31 was not later bound by the doctrine of res judicata to make a similar finding. Pruett cannot show that the decision was arbitrary. Therefore, he did not raise a claim upon which relief can be granted and he does not raise an issue worthy of this Court?s attention. D. The state court did not hold that Pruett was not entitled to data related to the DNA testing that was required for an evaluation of the results. Pruett also argued that the CCA in his case interpreted Chapter 64 in a manner contrary to the intent of the legislature.17 Speci?cally, Pruett argued that the CCA acted contrary to the legislature?s intent in holding that he was not entitled to the data generated during Ms. Baylor?s DNA testing. DE 1 at 36??38. Pruett?s argument is meritless. The CCA did not hold that Pruett ?was not entitled to data generated during testing because [the CCA did] not believe the requirements of article 64.03(d) apply when the requested analysis is performed at a DPS lab.? DE 1 at 36?37 (citing Pruett v. State, 2017 WL 1245431, at 12 11.14). Rather, the CCA held that the statute did not require DPS to provide Pruett with the analyst?s data absent a request from Pruett. Pruett v. State, 2017 WL 1245431, at 12 n.14. More importantly, the CCA went on to address whether the specific 17 Pruett also argued that the CCA in other cases have applied Chapter 64 in a manner contrary to the legislature?s intent. DE 1 at 2633. He failed to show, however, how the holdings in those cases are germane in any way to his case. 32 materials Pruett complained he was not provided constituted ?data related to the testing required for an evaluation of the test results? for purposes of the statute. Id. at 12 (emphasis in original). The CCA held that the material did not constitute such data. Id. Pruett scarcely acknowledged this basis for the - holding. Pruett?s argument premised on a misreading of the holding did not raise a claim upon which relief can be granted, nor does it raise an issue worthy of the Court?s attention. E. The trial court?s order was fully executed. Pruett also claimed that the trial court?s order for DNA testing was not fully executed because the DNA analyst did not swab the murder weapon underneath the evidence tag or the adhesive side of the evidence tag, did not . conduct Y-STR analysis of the partial female DNA profile to con?rm the profile was contributed by a female, and did not test Of?cer Nagle?s clothing for epithelial cells. DE 1 at 38?44. Pruett?s claims are patently meritless and should be dismissed as such. First, as Pruett conceded, Ms. Baylor testified unequivocally during the state court hearing that she swabbed the murder weapon underneath the evidence tagn.22. While Ms. Baylor did not swab the adhesive side of the evidence tag, nothing in the trial court?s order required her to do so. Nonetheless, because the murder weapon had been contaminated prior to the most recent testing, and Pruett?s postconviction defense team 33 contributed to the contamination, Pruett cannot show a due process violation in this regard. Indeed, as noted above, the contamination rendered the murder weapon unsuitable - for any DNA testing. Tex. Code. Crim. Proc. Pruett also made. a conclusory assertion that the DNA analyst failed. to perform Y-STR analysis of the partial female pro?le that was revealed during the 2015 testing. Brief at 18, 34; DE 1 at 39?41. However, Pruett did not request Y-STR testing in his motion for DNA testing or in his motions to compel the trial court to order further testing following the trial court?s hearing. DNA CR 2?7; see 2 DNA RR 48 (the DNA analyst?s testimony that the trial court?s order did not require Y-STR testing). Nonetheless, Pruett has failed to offer any proof that testing would have revealed any different results. Pruett presented only his speculation that Y-STR testing might have shown that the Y-chromosome had ?drOpped out? and the partial pro?le had, in fact, come from a male. Brief at 34. Such speculation was patently insufficient to establish a due process Violation. Indeed, counsel for Pruett stated to Ms. Baylor during the State court hearing that ?you cannot reliably testify that this [pro?le] belongs to a female, without conducting additional testing in order to exclude the possibility that the dropped out; is that correCt?? 2 DNA RR 52. Ms. Baylor testified unequivocally ?[t]hat is not correct. I can testify that this 34 profile?and under our standard operating procedure and the analysis we perform?this is from an unknown female individual.? 2 DNA RR 52. Even if Pruett raised a cognizable and reviewable claim, it would be without merit due to the Court?s holding in Arizona 0. Youngblood that due process does not require any ?particular investigatory tool.? 488 US. 51, 59 (1988). And as with Pruett?s other complaints discussed above, Pruett could not demonstrate a constitutional violation because Pruett?s postconviction defense team contributed to the contamination of the murder weapon. Pruett?s invitation of error rendered his claim meritless. For the same reason, Pruett does not raise an issue worthy of the Court?s attention. Pruett also claimed that Ms. Baylor failed to examine the victim?s clothing for the presence of skin cells. DE 1 at 41?44. But as the CCA held, the trial court?s order did not require such testing. Praett v. State, 2017 WL 1245431, at *14. Rather, ?the trial court noted that the submission and item number used to refer to the individual items to be tested ?originated from the DPS lab when these items were originally submitted to that Id. (emphasis in original). ?Nowhere in the order did the trial court instruct the laboratory to collect new samples from any item.? Id. Most importantly, however, and contrary to Pruett?s assertion, Ms. Baylor testified that she tested ?the items listed in the order for epithelial cells.? Id.; 2 DNA 53?54. Moreover, Ms. Baylor testified that Stain from Of?cer Nagle?s pants, which revealed a DNA profile 35 consistent with Officer Nagle?s, had not been tested during the original DNA testing in 2000. 2 DNA 37. Consequently, Pruett?s assertion that additional testing on Of?cer Nagle?s clothes was not conducted is refuted by the record. DE 1 at 43. Pruett fails to show that the trial court?s order for DNA testing was not fully executed. Therefore, he failed to raise a claim on which relief can be granted and he does not raise an issue worthy of the Court?s attention. F. Pruett was not entitled to funding during the state court proceedings. Lastly, Pruett claimed he was denied due process because the state court denied his request for funding during the postconviction DNA proceedings. DE 1 at?44?50. Pruett did not raise a claim on which relief can be granted. Pruett argued that he was entitled to funding to retain an expert to evaluate whether the partial female DNA pro?le found on the murder weapon in 2015 was, indeed, contributed by a female. DE 1 at 47. But Pruett identi?ed no support for his proposition that due process required the trial court to provide him funding during postconviction DNA proceedings.18 As discussed 13 For example, Pruett relied on Ake v. Oklahoma, 470 US. 68 (1985), for the proposition that the trial court?s denial of funding rendered the state court proceedings fundamentally unfair. But the Court in Ake held that ?when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.? 470 U.S. at 83 (emphasis added). As discussed above, however, DNA proceedings are not accompanied by the full panoply of due process protections as is a criminal trial. Skinner, 562 US. at 525. 36 above, Ms. Baylor testified unequivocally that the partial DNA pro?le on the murder weapon was contributed by a female and was not present during the original testing in 2000. Pruett?s speculation that the partial pro?le was contributed by a male did not warrant funding and does not establish a due process violation. Further, the CCA held that ?the trial court was within its discretion to deny [Pruett?s] request for funding.? Pruett v. State, 2017 WL 1245431, at *10. The CCA also held that, even if the trial court erred in denying the request for funding, any error was harmless. Id. Indeed, the contamination revealed by the 2015 testing showed that the murder weapon was not in a suitable condition for DNA testing. Id. And because Pruett?s postconviction defense team contributed to the contamination, Pruett cannot complain that he was denied funding to further investigate the results of that contamination. To the extent Pruett complains he was denied funding to retain an expert for the purpose of eliciting testimony regarding testing protocols or Ms. Baylor?s testing results, he was not entitled to such funding because he could have cross?examined Ms. Baylor regarding-those protocols and the results. His failure to do so does not establish a due process violation. As Justice Alito observed in Osborne, guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and in the hope that the other evidence would be insufficient to persuade the jury to ?nd him 37 guilty.[19] Then, after conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident?wfor example, degradation or contamination of the evidence?would provide the basis for seeking postconviction relief. Denying the Opportunity for such an attempt to game the criminal justice system should not shock the conscience of the Court. Osborne, 557 U.S. at 85 (Alito, ., concurring) (footnote added). This must be especially true where the defendant?s representatives contribute to any contamination. Pruett?s invitation of error renders his complaint unworthy of certiorari review. For these reasons, Pruett failed to state a claim on which relief can be granted and he fails to raise an issue .worthy of the Court?s attention. Pruett Is Not Entitled to 3. Stay of Execution. As discussed above, a request for a stay ?is not available as a matter of right, and equity must be sensitive to the State?s strong interest in enforcing its criminal judgments without undue interference from the federal courts.? Hill, 547 US. at 584 (citing Nelson, 0. Campbell, 541 US. 637, 649?50 (2004)). Rather, the inmate must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits. Id. (citing Barefoot 19 As noted by the CCA, Pruett did not request DNA testing of the shank in 2013 when he initially request post-trial DNA testing of a torn disciplinary report that was found by Officer Nagle?s body. Pruett v. State, 2017 WL 1245431, at *4 the 2013 motion, [Pruett] did not request testing of the metal rod and the tape wrapped around the rod?). 38 v. Estelle, 463 U.S. 880, 895?96 (1983)). When the requested relief is a stay of execution, a court must consider: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceed; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton 0. Braunskill, 481 U.S. 770, 776 (1987)). Importantly, a federal court must consider ?the State?s strong interest in proceeding with its judgment? and ?attempt[s] at manipulation,? as well as ?the extent to which the inmate has delayed unnecessarily in bringing the claim.? Nelson, 541 U.S. at 649?50. Indeed, ?there is a strong presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.? Id. at 650. As demonstrated above, Pruett?s claims are plainly without merit and he raises no issue worthy of the Court?s attention. Thus, Pruett cannot demonstrate the likelihood of success on the merits of his claim on appeal; nor can he demonstrate that his ground for relief amounts to a substantial case on the merits that would justify the granting of relief.20 20 For the same reason, Pruett fails to show that he would suffer irreparable harm if denied a stay of execution. As the lower court has explained, ?the merits of [the movant?s] case are essential to [the court?s] determination of whether he will suffer irreparable harm if a stay does not issue.? Walker v. Epps, 287 F. App?x 371, 39 Further, ?[b]oth the State and the victims of crimes have an important interest in the timely enforcement of a sentence.? Hill, 547 US at 584. Pruett?s challenges to his death sentence have persisted since 1999, and he seeks further unjusti?able delay through his litigation here. Most importantly, as discussed above, Pruett?s postconviction defense team contributed to contamination of the murder weapon. Pruett v. State, 2017 WL 1245431, at *10. Because of the invitation of error on the part of Pruett?s postconviction defense team and the repetitive nature of Pruett?s litigation, Pruett cannot demonstrate that the balance of equities entitles him to a stay of execution. Hill, 547 U.S. at 584?85. Pruett is not entitled to a stay of execution to allow him to further investigate the results of contamination for which he is responsible. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General 375 (5th Cir. 2008). As discussed above, Pruett.?s due process claims are plainly without merit. Consequently, he cannot show that he would be irreparably harmed if denied additional process to which he has no entitlement. 40 ADRIENNE MCFARLAND Deputy Attorney General for Criminal Justice EDWARD L. MARSHALL Chief, Criminal Appeals Division <7 Assistant Attorney General Criminal Appeals Division P.O. Box 12548, Capitol Station Austin, Texas 78711 Tel: (512) 936-1800 Fax: (512) 320-8132 e-mail: 1' av.clendenin@oag.texas.gov Counsel for Respondent 41