1 Kutzner was executed on August 7, 2002. REVISED AUGUST 19, 2002

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 02-20861

_______________________

RICHARD WILLIAM KUTZNER,

Petitioner-Appellant,

versus

MONTGOMERY COUNTY, District Attorney’s Office; MICHAEL A MCDOUGAL,

Montgomery County District Attorney in his official capacity; GUY L

WILLIAMS, Montgomery County Sheriff in his official capacity; JOYE

M CARTER, M.D., in her official capacity

Respondents-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

_________________________________________________________________ August 7, 2002

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:

On Augu st 5, 2002, Richard William Kutzner filed a 42

U.S.C. § 1983 action that reiterates his attempt, previously embodied

in a successive habeas petition, to ov erturn his conviction for

capital murder by requiring the State to produce biological evidence

for DNA testing. 1 The district court dismissed s ua sponte pursuan t

to Fed. R. Civ. P. 12(b)(6), treating Ku tzner’s complaint as, in

### 2

effect, another successive habeas corpus petition. We affirm the

dismissal.

Kutzner’s petition asserts various alleged constitutional

violations against officials of Montgom ery County, Texas, who have

refused to release biological evidence introduced at his trial for

DNA testing and thereby “prevent[ed] Plaintiff from gaining access to

exculpatory evidence which could exclude him as a perpetrator.

. . .”

Plainly, the alle gations seek to undermine Kutzner’s

conviction or the consequences flowing therefrom, such as the

availability of an executive clemency petition. Just as plainly, the

Supreme Court has held, in Heck v. Humphrey

, that no cause of action

exists under § 1983 that would “necessarily imply the invalidity of

[a plaintiff’s] conviction or sentence” unless he proves that the

conviction or sentence has already been invalidated. 512 U.S. 477,

486-87, 114 S.Ct. 2364 (199 4). We agree with the analysis of the

Fourth Circuit, which recently held, under Heck

, that no § 1983 claim

exists for injunctive relief to compel DNA testing under materially

indistinguishable circumstances. H arvey v. Horan

, 278 F.3d 370, 374-

78 (4 th Cir. 2002), pet. for reh’g and reh’g en banc denied

, 285 F.3d

298.

Harvey also explains why Kutzner’s claim is cognizable only

as a petition for habeas corpus relief, because, since P reiser v.

Rodriguez

, 411 U.S. 475, 93 S.Ct. 1827 (1973), the Supreme Court has

consistently held that habeas corpu s is the exclusive means for

prisoners to attack the fact or duration of their confinement.

### 3

Harvey

, as stated, analyzed a claim for DNA testing much like this

one and drew the obvious conclusion that t he proposed remedy is

s ought “to set the stage for a future attack on [the prisoner’s]

confinement”

– effectively transforming the claim into a petition for

a writ of habeas corp us. Harvey , 278 F.3d at 378. Not only is

Harvey strongly persuasive, b ut this Court, too, has recently

reiterate d that claims seeking to attack the fact or duration of

confinement, as well as claims which are “so intertwined” with

attacks on confinement that their success would “necessarily imply”

revocation or modification of confinement, must be brought as habeas

corpus petitions and not under § 1983. M artinez v. Texas Court of

Criminal Appeals

, 292 F.3d 417, 423 (5 th Cir. 2002). Under M artinez

,

a prisoner’s request for DNA testing of evidence relevant to his

prior conviction is “so intertwined” with the merits of the

conviction as to require habeas corpus treatment.

We conclude (like the district court) that Kutzner’s § 1983

claims were cognizable only in habeas corpus. We have elected, as we

may (for the sake of judicial economy and in the face of serious time

constra ints), to treat Kutzner’s appeal of the district court’s

judgment as a petition for pe rmission to file a successive habeas

petition. Martinez , 292 F.3d at 424.

Because we have separately determined that Kutzner’s

contemporaneous succe ssive habeas petition raising the same, or

substantially similar, claims concerning DNA testing cannot meet the

applicable statutory standard, see 28 U.S.C. § 2244(b), we adopt the2 See Kutzner v. Montgomery County , No. 02-20857 (August 7, 2002).



### 4 discussion and resolution of that petition herein. 2

For the foregoing re asons, the judgment of the district

court is AFFIRMED, and appellant’s alternative request for permission

to file a successive petition for a writ of habeas corpus is DENIED.