FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM G. OSBORNE, 

Plaintiff-Appellee,

No. 06-35875 v.

D.C. No. DISTRICT ATTORNEY’S  CV-03-00118-RRB OFFICE FOR THE THIRD JUDICIAL

DISTRICT; ADRIENNE BACHMAN,* OPINION

District Attorney,

Defendants-Appellants. 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

October 10, 2007—San Francisco, California

Filed April 2, 2008

Before: Alfred T. Goodwin, Melvin Brunetti, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Brunetti

*Adrienne Bachman is substituted for former District Attorney Susan

A. Parkes as appellant pursuant to Fed. R. App. P. 43(c)(2). 

3359
COUNSEL

Nancy R. Simel, Assistant Attorney General, Anchorage,

Alaska, for the defendant-appellant.

Peter J. Neufeld and Colin Starger, Innocence Project, Benjamin N. Cardozo School of Law, New York, New York; RanOSBORNE v. DISTRICT ATTORNEY’S OFFICE 3363
dall S. Cavanaugh, Kalamarides & Lambert, Anchorage,

Alaska; and Robert C. Bundy, Dorsey & Whitney LLP,

Anchorage, Alaska, for the plaintiff-appellee.

OPINION

BRUNETTI, Circuit Judge: 

William Osborne, an Alaska prisoner, brought this action

under 42 U.S.C. § 1983 to compel the District Attorney’s

Office in Anchorage to allow him post-conviction access to

biological evidence—semen from a used condom and two

hairs—that was used to convict him in 1994 of kidnapping

and sexual assault. Osborne, who maintains his factual innocence, intends to subject the evidence, at his expense, to STR

and mitochondrial DNA testing, methods that were unavailable at the time of his trial and are capable of conclusively

excluding him as the source of the DNA. 

In a prior appeal, Osborne v. District Attorney’s Office, 423

F.3d 1050, 1056 (9th Cir. 2005) (hereinafter Osborne I),1 we

held that Heck v. Humphrey does not bar Osborne’s § 1983

action because, even if successful, it will not necessarily demonstrate the invalidity of his conviction. We also remanded

for the district court to address in the first instance whether

the denial of access to the evidence violates Osborne’s federally protected rights. 

In this post-remand appeal, we affirm the judgment of the

district court that, under the unique and specific facts of this

case and assuming the availability of the evidence in question,

Osborne has a limited due process right of access to the evidence for purposes of post-conviction DNA testing, which

1There are three prior “Osborne” appellate opinions, one by this court

and two by the Alaska Court of Appeals. The two state opinions are both

titled Osborne v. State and will be referred to as State I and II. 

3364 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
might either confirm his guilt or provide strong evidence upon

which he may seek post-conviction relief. 

I

A

Following a March 1994 jury trial in Alaska Superior

Court, Osborne was convicted of kidnapping, assault, and

sexual assault, and was sentenced to 26 years imprisonment,

with 5 years suspended. The charges arose from a March

1993 incident in which the victim, a female prostitute named

K.G., after agreeing to perform fellatio on two male clients,

was driven to a secluded area of Anchorage and brutally

attacked. See generally Jackson v. State, Nos. A-5276, A5329, 1996 WL 33686444, at *1 (Alaska Ct. App. Feb. 7,

1996) (consolidated direct appeal). 

At gunpoint, K.G. was forced to perform fellatio on the

driver while the passenger vaginally penetrated her with his

finger and penis. The driver did not wear a condom, but the

passenger wore a blue condom that K.G. had brought with

her. When K.G. later refused their orders to get out of the car,

the driver hit K.G. in the head with the gun, and at the driver’s

urging the passenger choked her. K.G. eventually attempted

to flee, but her attackers pursued and beat her with an axe

handle. As she lay in the snow in the fetal position and played

dead, she heard the gun fire and felt a bullet graze her head.

Though she could not see her attackers’ faces, judging from

their pants and footwear she believed it was the passenger

who shot her. The attackers then partially covered K.G. with

snow and fled in the car, leaving her for dead. 

K.G. heard the car drive away but continued to lie under

the snow until she was sure her attackers had gone. She then

got up, walked to the main road, flagged down a passing car,

told its occupants what had happened, and—hoping to avoid

the police—asked only for a ride home. The following day,

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3365
however, a neighbor of one of the car’s occupants notified the

police, who contacted K.G. Though initially uncooperative,

K.G. eventually described the incident. 

K.G. underwent a physical examination, during which hair

and blood samples were collected. A vaginal examination was

not performed, however, because the passenger-rapist had

worn a condom and K.G. had bathed repeatedly since the

attack. At the crime scene, Anchorage Police recovered from

the snow a used blue condom, part of a condom wrapper, a

spent shell casing, and two pairs of K.G.’s grey knit pants

stained with blood. The blue condom and shell casing were

found “very near” each other and in close proximity to bloody

patches of snow and the disturbed berm of snow where K.G.

had been partially buried. A layer of new snow, which had

fallen the morning after the attack, aided the police in distinguishing between tire tracks made the night before by the

assailants’ car and tracks made the following day by two

known vehicles. Those cars were owned by K.G.’s rescuers

and their neighbor, who had visited the crime scene the day

after the incident before contacting the police. 

A week later, military police stopped Dexter Jackson for a

traffic infraction. When Jackson opened his glove box to

retrieve his registration, the officer spotted a gun case, which

proved to hold a .380 caliber pistol. A further search of the car

revealed a box of ammunition and a pocketknife. Observing

that Jackson, his car, and his passenger at the time (who was

not Osborne) resembled composite sketches that had been circulated after the assault on K.G., the military police contacted

the Anchorage Police, whom Jackson told that Osborne was

his accomplice on the night of the assault. 

K.G. later identified Jackson and Osborne from photographic arrays. In identifying Jackson’s accomplice, K.G.

indicated that Osborne’s and another person’s photos were the

“most familiar” to her and Osborne was “most likely” to have

been the passenger who raped and shot her. K.G. also identi3366 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
fied Jackson’s car, and the police matched tire tracks at the

crime scene to Jackson’s car. K.G. also identified the pocketknife found in Jackson’s car as hers, and ballistics tied the

spent shell casing found at the crime scene to Jackson’s pistol.

The State’s crime lab subjected sperm found in the used

condom to “DQ Alpha” DNA testing, which, similar to ABO

blood typing, reveals the alleles present at a single genetic

locus. The results excluded K.G., Jackson, and James Hunter

(presumably Jackson’s passenger when he was arrested), and

showed that the sperm had the same DQ Alpha type as

Osborne. That same DQ Alpha type is shared, however, by

14.7 to 16 percent of African Americans and thus can be

expected in one of every 6 or 7 black men. 

A DNA testing method called “RFLP,” which was relatively more discriminating than DQ Alpha typing but, according to the State, “not quite as discriminating as the testing

[Osborne] now seeks to conduct,” was also available pre-trial

but was not conducted on the sperm.2 The State’s crime lab

expert considered sending out the sample for more discriminating testing, which was then available through the FBI, but

did not because, at least at that time, more discriminating testing required a better quality sample than was provided in the

condom and the expert “felt that the sample was degraded.”

Defense counsel also considered and rejected the option.

2The State’s concessions that the RFLP DNA testing available pre-trial

is “not quite as discriminating as” the STR and mitochondrial DNA testing

Osborne now seeks, and that these methods were not available pre-trial,

is an apparent reversal of the State’s representation to the state court that

“the DNA testing that Osborne proposes to perform on this evidence

existed at the time of Osborne’s trial, and . . . Osborne’s trial attorney was

aware of this and consciously chose not to seek more specific testing.”

Osborne v. State, 110 P.3d 986, 992 (Alaska Ct. App. 2005). According

to the Superior Court’s dismissal order that was on appeal in that case,

Osborne’s state claims involved (1) ineffective assistance at trial based on

counsel’s failure to pursue “RFLP” testing, and (2) a request for postconviction “mitochondrial DNA” testing. 

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3367
Counsel met with the DNA expert from the State crime lab,

reviewed DNA research articles, and conferred with a Fairbanks public defender who was litigating the scientific basis

of DNA testing. But defense counsel’s explanation for not

pursuing pre-trial RFLP testing differs from the State’s

expert’s reasons. According to her post-conviction affidavit,

counsel disbelieved Osborne’s statement that he did not commit the crime, was concerned about a more inculpatory result

nullifying Osborne’s misidentification defense, and concluded

that “Osborne was in a strategically better position without

RFLP DNA testing,” especially given the inherent uncertainty

in the DQ Alpha results. 

The police also recovered two pubic hairs: one from the

used blue condom, and a second from K.G.’s sweatshirt,

which she had lain on top of during the sexual assault. DQ

Alpha typing of these hairs was unsuccessful, likely because

the sample was too small for analysis. Based on microscopic

analysis, however, the State’s expert opined that both hairs

were “dissimilar” to Jackson and Hunter but were “consistent” with having come from Osborne because they “exhibited

the same microscopic features” as Osborne’s pubic hair sample. Additional hairs having “negroid features” were also

found on K.G.’s clothing but were inconsistent with any of

the suspects investigated by police. 

Osborne and Jackson were tried jointly before a jury.

Osborne presented alibi and mistaken identity defenses, specifically arguing that there was too little time for him to have

participated in the crime and pointing out flaws in K.G.’s

identification. K.G. was not wearing her glasses on the night

of the attack. She described the passenger who attacked her

as black, between 25 to 30 years old, 6 feet tall, weighing

180-190 pounds, clean shaven, having his hair shaved on the

sides and longer on top, and not wearing any jewelry.

Osborne actually was 20 years old, weighed 155 pounds, and

had a mustache. K.G.’s identification of Osborne was also

cross-racial, Osborne being black and K.G. being white.

3368 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
Nonetheless, at trial K.G. pointed to Osborne and identified

him as the passenger who attacked her. 

Besides the biological and victim-eyewitness testimony,

there was also circumstantial evidence of Osborne’s culpability. Paper tickets from the Space Station arcade, where

Osborne had been before the crime, were found in Jackson’s

car. One group of witnesses saw Osborne get into Jackson’s

car before the time of the crime, and another group saw

Osborne with Jackson after the crime and reported seeing

blood on Osborne’s clothing. Apparently, no trace evidence of

blood on Osborne’s clothing was admitted at trial, however.

The jury rejected Osborne’s mistaken identity and alibi

defenses and convicted him of kidnapping, first-degree

assault, and two counts of first-degree sexual assault, although

he was acquitted of two counts of attempted first-degree murder and one count of sexual assault. On direct appeal, the

Alaska Court of Appeals rejected Osborne’s insufficient evidence claim and his other challenges and affirmed his conviction. Jackson, 1996 WL 33686444, at *7-8. Osborne did not

seek direct review in the Alaska Supreme Court. 

B

Osborne next filed an application for post-conviction relief

in Alaska Superior Court, arguing first that his trial counsel

was ineffective for failing to pursue RFLP testing, which was

a potentially more precise type of DNA testing and was available at the time; and second that he has a due process right,

under either the state or federal constitution, to have evidence

retested using DNA testing methods that were not available

until after his trial. In June 2002, the Superior Court denied

his application. Osborne not only appealed that decision to the

Alaska Court of Appeals, he also subsequently filed the

underlying § 1983 action in federal district court. 

While his state appeal and federal action were pending, in

April 2004 Osborne also applied for discretionary parole with

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3369
the Alaska Board of Parole. In his written application,

Osborne confessed to participating in the attack on K.G. and

described his actions in detail. He also confessed at his

August 2005 hearing before the Parole Board and stated that

he had told his mother and lawyer the truth about the incident.

But despite his efforts at accepting responsibility, Osborne

was denied parole. 

Osborne also lost his state appeal. In reviewing the Superior Court’s dismissal of Osborne’s petition for postconviction relief, the Alaska Court of Appeals affirmed in

part, remanded in part for further proceedings, and retained

jurisdiction in the interim. Osborne v. State, 110 P.3d 986,

995-96 (Alaska Ct. App. 2005) (hereinafter State I). The court

rejected Osborne’s ineffective assistance claim, holding that

he failed to establish deficient performance. Like the Superior

Court, the Court of Appeals noted that trial counsel “researched and considered” RFLP DNA testing, but decided

against it for fear that a more discriminating test would further

inculpate Osborne. That decision, the court concluded, was a

“tactical” one that fell within the permissible range of attorney competence. Id. at 991-92. The court made no mention of

the State’s DNA expert’s trial testimony that the sperm sample was too degraded to even permit RFLP testing. 

As to Osborne’s due process claim, the Court of Appeals

initially observed that a prisoner “apparently” has no federal

due process right to present new post-conviction evidence to

establish a freestanding claim of factual innocence, absent an

underlying constitutional defect at trial. Id. at 993, 995. “[A]s

a matter of Alaska constitutional law,” however, the court was

“reluctant to hold that Alaska law offers no remedy to defendants who could prove their factual innocence,” and it

adopted a three-part test, which had been adopted by several

other states, for cases in which defendants seek postconviction DNA testing. Id. at 995. The court therefore

remanded to the Superior Court for the limited purpose of

determining whether Osborne could satisfy the test and, if so,

3370 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
whether Osborne’s claim was otherwise procedurally barred

under Alaska law. Id.

The remand proceedings in Alaska Superior Court were

still pending when we decided Osborne I in September 2005.

Eight months later, the Alaska Superior Court held that

Osborne failed to satisfy the three factors set forth by the

Alaska Court of Appeals in State I and therefore denied

Osborne’s request for DNA testing. The Superior Count

found that (1) “Osborne’s conviction did not rest primarily

upon eyewitness identification evidence,” (2) “no . . . demonstrable doubt as to Mr. Osborne’s identification [as the perpetrator] has been established,” and (3) “[e]ven assuming that

the DNA of either the pubic hair or the semen was tested and

found not to be Mr. Osborne’s, . . . such evidence, if obtained,

would not be conclusively exculpatory.” 

In Osborne v. State, 163 P.3d 973, 979-81 (Alaska Ct. App.

2007) (hereinafter State II), the Alaska Court of Appeals

affirmed those three findings and the Superior Court’s underlying factual findings and reasoning. Although Osborne subsequently filed a petition for review in the Alaska Supreme

Court, which was pending when we heard oral argument in

this case, that petition has since been denied. Osborne v.

State, No. S-12799 (Alaska Jan. 22, 2008). 

C

In June 2003—one year after the Alaska Superior Court

first denied Osborne’s state petition for post-conviction relief,

and one year before Osborne filed his application for discretionary parole in which he provided his written confession—

Osborne filed the underlying action under 42 U.S.C. § 1983

alleging that the Anchorage District Attorney’s Office, thenDistrict Attorney Susan Parkes, the Anchorage Police Department, and then-Chief of Police Walt Monegan violated his

rights under the United States Constitution by denying him

post-conviction access to evidence for DNA testing. SpecifiOSBORNE v. DISTRICT ATTORNEY’S OFFICE 3371
cally, he alleges violations of: (1) his due process right to

access exculpatory evidence; (2) his due process right to demonstrate actual innocence; (3) his Eighth Amendment right to

be free from cruel and unusual punishment; (4) his right to a

fair clemency hearing; (5) his Sixth Amendment rights to confrontation and compulsory process; and (6) his due process

and equal protection rights to meaningful access to the courts.

He requests as a remedy “the release of the biological

evidence”—the semen and pubic hair from the blue condom

and the pubic hair from K.G.’s sweater—and “the transfer of

such evidence for DNA testing.” 

Osborne’s complaint explains that he intends to subject the

evidence to two forms of DNA testing: Short Tandem Repeat

(“STR”) analysis and Mitochondrial DNA (“mtDNA”) analysis. Unlike the DQ Alpha analysis used at trial, which looks

to only one genetic locus, STR analysis examines the alleles

at 13 genetic loci. Thus, it has the power to produce a far

more specific genetic profile—one shared by one in a billion

people, rather than one in 6 or 7. See generally United States

v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004) (en banc)

(discussing the science and accuracy of STR testing). 

Moreover, if the DNA samples are unsuitable for STR analysis, Osborne intends to submit them to mtDNA analysis.

STR analysis, like DQ Alpha analysis, examines DNA found

in the nucleus, and is incapable of reaching a result from a

hair sample unless the root or follicle is attached. By contrast,

mtDNA analysis looks to DNA found in the mitochondria,

and does not require the presence of a root or follicle.

Osborne asserts that neither STR nor mtDNA analysis was

available at trial and that he will have the testing performed

at his expense. 

In 2003, the State filed motions to dismiss Osborne’s

§ 1983 action, arguing that Osborne’s simultaneously pending

state petition for post-conviction relief required federal court

abstention under Younger v. Harris, 401 U.S. 37 (1971), and,

3372 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
alternatively, that under Heck v. Humphrey, 512 U.S. 477

(1994), Osborne’s claims are not cognizable in a § 1983

action and may be brought only in a habeas proceeding. The

district court granted the motion, holding that Younger abstention was inapplicable but that dismissal was required under

Heck because Osborne sought to “set the stage” for an attack

on his conviction. 

Osborne appealed, and in Osborne I we reversed, holding

that Heck does not bar a prisoner’s § 1983 action seeking

post-conviction access to biological evidence for purposes of

DNA testing because, even if successful, the action will not

necessarily demonstrate the invalidity of his conviction.

Osborne v. District Attorney’s Office, 423 F.3d 1050, 1056

(9th Cir. 2005). We observed that “success would yield only

access to the evidence—nothing more,” “there is a significant

chance that the results will either confirm or have no effect on

the validity of Osborne’s confinement” because “further DNA

analysis may prove exculpatory, inculpatory, or inconclusive,” and “even if the results exonerate Osborne, a separate

action—alleging a separate constitutional violation altogether

—would be required to overturn his conviction.” Id. at 1054-

55. Expressing no opinion on the merits of Osborne’s claims,

we remanded to the district court to address in the first

instance whether Osborne has been deprived of a federally

protected right. Id. at 1056. 

On remand, Osborne moved for summary judgment on his

§ 1983 claims. Days later, Osborne along with the Anchorage

Police Department and Chief of Police Monegan filed a stipulation dismissing those two defendants in exchange for their

withdrawal of opposition to Osborne’s claim for DNA testing

and their agreement to make the evidence available as

required by any final court order or upon direction from the

State of Alaska, Department of Law. 

The remaining “State” defendants—the District Attorney

and the District Attorney’s Office—filed both an opposition

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3373
to Osborne’s summary judgment motion and a motion to stay

proceedings based on the Colorado River and Pullman

abstention doctrines. See Colo. River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976); R.R. Comm’n of

Tex. v. Pullman Co., 312 U.S. 496 (1941). The district court

denied the abstention motion, and the State has not appealed

that denial. 

Months later, and just days after the Alaska Superior Court

issued its Findings on Remand from State I, the State filed a

cross-motion for summary judgment. The State asserted, in

addition to its arguments opposing Osborne’s motion, that the

Superior Court’s factual findings were entitled to preclusive

effect in federal court and otherwise support the State’s position. 

This time the district court ruled in Osborne’s favor.

Osborne v. Dist. Attorney’s Office, 445 F. Supp. 2d 1079 (D.

Alaska 2006). After initially concluding that the Alaska Court

of Appeals’ decision in State I “is not binding upon this

Court,” the district court held that “there does exist, under the

unique and specific facts presented, a very limited constitutional right to the testing sought.” Id. at 1080-81 (citing Harvey v. Horan (Harvey II), 285 F.3d 298, 325 (4th Cir. 2002)

(Luttig, J., respecting the denial of rehearing en banc);

Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir. 1992);

and Moore v. Lockyer, No. 04-1952, 2005 WL 2334350, at

*8, *9 (N.D. Cal. Sept. 23, 2005)). The court continued:

Significant to this conclusion is the fact that the testing sought was not available to Plaintiff . . . at the

time of trial, the fact that the testing sought can be

easily performed without cost or prejudice to the

Government, and the fact that the test results can

either confirm Plaintiff’s guilt or provide evidence

upon which Plaintiff might seek a new trial. In this

regard, and although the Court makes no findings as

to whether Plaintiff would be entitled to a new trial,

3374 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
the Court concludes that a favorable result for Plaintiff might have a significant impact on a factfinder[’]s evaluation of guilt or innocence. 

The Court also concludes that equity and fundamental notions of fairness argue in favor of the relief

Plaintiff seeks; especially, when considered in the

appropriate context, e.g., the Government has no

legitimate interest in punishing the innocent. 

The Court’s conclusion in this matter assumes the

availability of the evidence sought. If the evidence

were no longer available, for any legitimate reason,

there exists no right to test it and no basis upon

which Plaintiff could pursue the issue further. 

Id. at 1081-82 (footnote omitted). 

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s rulings on cross-motions for summary judgment. Phillips v. Hust, 477 F.3d 1070, 1075 (9th

Cir. 2007). We also review de novo the legal question of

whether there exists a post-conviction right of access to evidence for DNA testing. Cf. id. at 1079. Whether the State’s

refusal to grant access to evidence violates Osborne’s constitutional due process right is also reviewed de novo as a mixed

question of fact and law. Cf. United States v. Duff, 831 F.2d

176, 177 (9th Cir. 1987). 

II

[1] “It is well settled that the government has the obligation

to turn over evidence in its possession that is both favorable

to the accused and material to guilt or punishment.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). Yet Ritchie, like the

rest of the Supreme Court’s cases involving Brady rights,

involved only the right to pre-trial disclosure. See id. (citing

United States v. Agurs, 427 U.S. 97 (1976), and Brady v.

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3375
Maryland, 373 U.S. 83, 87 (1963), both of which involved

only pre-trial suppression); cf. id. at 60 (describing the duty

to disclose as “ongoing,” yet simultaneously referencing only

reconsideration of disclosure “as the proceedings progress” to

ensure “the fairness of the trial”). The more novel question

presented in this case is whether, and the extent to which, the

Due Process Clause of the Fourteenth Amendment extends

the government’s duty to disclose (or the defendant’s right of

access) to post-conviction proceedings. 

[2] As both parties and the district court have recognized,

this circuit’s closest precedent is Thomas v. Goldsmith, 979

F.2d 746, 749-50 (9th Cir. 1992), in which we ordered the

disclosure of potentially-exculpatory semen evidence in a

habeas corpus proceeding where testing of the evidence was

potentially material to a so-called “gateway” showing of

actual innocence. Rather than relying on general discovery

principles or a pre-trial Brady right, we expressly applied

Brady as a post-conviction right, stating:

[W]e believe the state is under an obligation to come

forward with any exculpatory semen evidence in its

possession. See Brady v. Maryland, 373 U.S. 83, 87,

. . . (1963). We do not refer to the state’s past duty

to turn over exculpatory evidence at trial, but to its

present duty to turn over exculpatory evidence relevant to the instant habeas corpus proceeding. 

Thomas, 979 F.2d at 749-50. Although the State contends that

Thomas is distinguishable on a variety of grounds, we find

none of those arguments persuasive and conclude that Thomas

is controlling here despite the factual and procedural differences. 

[3] For instance, the State argues that Thomas involved pretrial suppression in addition to post-conviction suppression,

whereas Osborne had full pre-trial access to the biological

evidence in question for purposes of DNA testing “using the

3376 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
best technology available at that time.” Moreover, the State

argues, in Thomas the petitioner claimed ineffective assistance based on trial counsel’s failure to test the evidence,

whereas the Alaska state courts have already rejected

Osborne’s similar ineffective assistance claim. But this is all

rather beside the point given our reasoning in Thomas. It is

patent in the above-quoted passage that in granting the petitioner a post-conviction right of access we expressly applied

Brady as a post-trial right and specifically disclaimed reliance

on a pre-trial Brady violation or any other pre-trial violation.

Pursuant to Thomas, the more material facts here are that the

STR and mtDNA testing methods now being requested were

in fact not accessible to Osborne pre-trial, whether due to suppression, ineffective assistance of counsel, or historical scientific limitations; such methods are far more discriminating

than the testing methods that were available pre-trial, such

that only now can Osborne be identified or excluded as the

source of the DNA to a virtual certainty; and, for the same

reasons, these newly available methods have the potential to

provide strong evidence upon which Osborne might seek

post-conviction relief. Cf. Riofta v. State, 142 P.3d 193, 200,

203 (Wash. Ct. App. 2006) (distinguishing Thomas because

Riofta had pre-trial access to the evidence and to testing “of

equal accuracy” to that sought post-trial; also distinguishing

a New Jersey case in which “DNA testing was not widely

accepted and was expensive at the time of the . . . defendant’s

trial”). 

At the time of briefing, the State further contended that the

“Catch-22” that was present in Thomas does not exist here

because Osborne had an alternative avenue for relief in state

court, which he was at that time pursuing. As the Alaska

Supreme Court has since denied Osborne’s petition for review

in Osborne v. State, No. S-12799 (Alaska Jan. 22, 2008), the

State’s argument is probably moot. But even if Osborne still

had some available state remedy that he could pursue, the

Catch-22 would remain. In both state and federal court the

State has opposed Osborne’s access-to-evidence claim based

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3377
on the argument that Osborne cannot prove his actual innocence; yet Osborne needs access to the evidence to make that

very showing. Cf. Thomas, 979 F.2d at 749. Although the

State further contends that even assuming favorable test

results Osborne could not make a sufficient showing of actual

innocence, that argument is out of place. The argument is certainly relevant to the ultimate question of whether, given the

state of the evidentiary record, the requested DNA testing

would be sufficiently material to require disclosure in this

case. See infra Part IV. But the State’s argument is irrelevant

to the instant threshold issue of whether Osborne can even

begin to invoke Thomas as establishing a post-conviction

Brady right. Moreover, to the extent the existence of parallel

state litigation might have raised abstention concerns, the

State’s motions to dismiss or stay proceedings based on Younger, Colorado River, and Pullman abstention were all denied

by the district court, and the State failed to reassert its abstention arguments in either Osborne I or the instant appeal. 

[4] The State finally contends that Thomas is distinguishable because Osborne does not have an ongoing federal

habeas action to which the requested DNA testing would be

material. According to the State, such a limitation on Thomas

is necessary to prevent Brady from applying “in the abstract

and in perpetuity.” We disagree and reject the notion that

Thomas’ recognition of a post-conviction Brady right is inapplicable per se in the absence of an ongoing habeas proceeding. 

While recognizing that Osborne’s sole purpose in bringing

the underlying § 1983 action is to obtain post-conviction

access to potentially exculpatory evidence and thereby “to

‘facilitate’ or ‘set the stage’ for a future attack on his conviction,” in Osborne I we specifically rejected the State’s position that a post-conviction access-to-evidence claim must be

brought in habeas rather than under § 1983. 423 F.3d at 1055.

Yet that would be the necessary consequence of the State’s

proposed limitation of Thomas. The purportedly mandatory

3378 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
habeas action would render any § 1983 action for access to

evidence superfluous, leaving the habeas action as the exclusive vehicle for asserting Thomas rights. Thus, the State’s

proposed limitation of Thomas does little more than rehash in

different clothing the already rejected contentions that

Osborne has failed to state a claim under § 1983 and “that a

claim which can be brought in habeas must be brought in

habeas.” Id.

Furthermore, Osborne’s access-to-evidence claim has been

pursued without undue delay and is specifically intended to

support an application for post-conviction relief. Osborne has

declared in his § 1983 complaint his intention, once he

obtains the requested DNA testing, to file a petition for postconviction relief based on a “freestanding” claim of actual

innocence—i.e., despite the lack of any constitutional error at

his trial, his incarceration is unconstitutional due to actual

innocence—which Osborne might bring in either state or federal court. 

Under Alaska law Osborne appears to have at least a potentially viable opportunity of bringing a freestanding actual

innocence claim in a second or successive petition for postconviction relief. However unfavorable the court’s rejection

of Osborne’s first petition in State II may be, his state law

options are not foreclosed entirely. In a concurrence, a twojudge majority stated that, regardless of any otherwise applicable procedural bars (presumably including those against

successive petitions), the Alaska Constitution might require

court intervention if a defendant were to present “clear

genetic evidence of [his] innocence,” and “[i]f Osborne could

show that he were in fact innocent, it would be unconscionable to punish him.” State II, 163 P.3d at 984-85 (Mannheimer,

J., joined by Coats, C.J., concurring). Thus, despite the

improbability of success on the merits given the court’s findings regarding the expected immateriality of the requested

DNA testing, if Osborne’s hunt for new evidence exceeds the

state courts’ expectations (which remains a possibility, see

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3379
infra Part IV.B) his actual innocence claim might be cognizable under the authority of Judge Mannheimer’s concurrence.

Federal law presents a similar opportunity. The State would

take the position that a freestanding actual innocence claim is

not cognizable under federal law; however, the State also concedes that it is presently an open question. In Herrera v. Collins, 506 U.S. 390, 417 (1993), the Supreme Court assumed

without deciding that such a claim is possible. And in House

v. Bell, 547 U.S. 518 (2006), the Court again declined to

resolve “the question left open in Herrera” in such a way as

to suggest that it will remain unanswered until it is squarely

presented by a petitioner actually making a persuasive showing of actual innocence. Id. at 554-55 (concluding that “whatever burden a hypothetical freestanding innocence claim

would require, this petitioner has not satisfied it”). The same

might be said of the question of whether there should be a distinction between capital and non-capital cases, although Herrera did suggest equal treatment. See Herrera, 506 U.S. at

405 (“[W]e have ‘refused to hold that the fact that a death

sentence has been imposed requires a different standard of

review on federal habeas corpus.’ ” (quoting Murray v. Giarratano, 492 U.S. 1, 9 (1989) (plurality opinion))). 

In this circuit we not only have assumed that freestanding

innocence claims are possible but also have articulated a

minimum standard: “a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt

about his guilt, and must affirmatively prove that he is probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th

Cir. 1997) (en banc); see also Jackson v. Calderon, 211 F.3d

1148, 1164-65 (9th Cir. 2000). 

In resolving the instant appeal, we need not decide the open

questions surrounding freestanding actual innocence claims.

Instead, we assume for the sake of argument that such claims

are cognizable in federal habeas proceedings in both capital

and non-capital cases under the standard set forth in Carriger.

3380 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
Such a claim is not yet before us; it would require the filing

of “a separate action—alleging a separate constitutional violation altogether.” Osborne I, 423 F.3d at 1055. Also, even

where an actual innocence claim has been filed, Herrera,

House, Carriger, and Jackson all support the practice of first

resolving whether a petitioner has made an adequate evidentiary showing of actual innocence before reaching the constitutional question of whether freestanding innocence claims are

cognizable in habeas. And under Majoy v. Roe, 296 F.3d 770

(9th Cir. 2002), the testing of potentially exculpatory evidence

may be given precedence over the consideration of even jurisdictional questions involving pure issues of law. 

[5] In Majoy, we held that the district court should first

order that testing be conducted, hold an evidentiary hearing to

permit full development of the facts supporting a “gateway”

actual innocence claim under Schlup v. Delo, 513 U.S. 298

(1995), and determine whether that claim was factually meritorious, all before considering whether the claim was jurisdictionally barred. Majoy, 296 F.3d at 776-77. We reasoned that

the issue of whether a gateway actual innocence claim provides a constitutional exception to AEDPA’s statute of limitations was such an “important legal question” that it “is not

appropriately addressed by us in a hypothetical context,” particularly given the “ ‘fact-intensive nature of this [actual innocence] inquiry, together with the District Court’s ability to’ ”

obtain the necessary evidence. Id. at 777 (quoting Schlup, 513

U.S. at 332). By extension, until Osborne has actually brought

an actual innocence claim and has been given the opportunity

to develop the facts supporting it, Osborne’s access-toevidence claim may proceed on the well-established assumption that his intended freestanding innocence claim will be

cognizable in federal court. 

There are two notable differences between the out-ofcircuit and district court cases that do not recognize a postconviction right of access to evidence and those that do. First,

the former tend to conflate the right of access to evidence

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3381
with the ultimate right to habeas relief. See, e.g., State I, 110

P.3d at 992, 993 (noting that Osborne claims a right of access

to evidence, but analyzing whether Herrera permits a claim

of actual innocence based on new evidence); Harvey v. Horan

(Harvey I), 278 F.3d 370, 375 (4th Cir. 2002) (dismissing

under Heck). The latter distinguish the two actions. See, e.g.,

Harvey v. Horan (Harvey II), 285 F.3d 298, 322-24 (4th Cir.

2002) (Luttig, J., respecting the denial of rehearing en banc).

Second, courts denying a post-conviction right of access

read Brady and its progeny as applying only as a trial right.

E.g., Grayson v. King, 460 F.3d 1328, 1337, 1342 (11th Cir.

2006) (ultimately limiting its holding to “the particular circumstances of this case”); Harvey I, 278 F.3d at 378-79. By

contrast, courts recognizing a post-conviction right have done

so not necessarily based on Brady itself but based on the due

process principles that motivated Brady, including fundamental fairness, the prosecutor’s obligation to do justice rather

than simply obtain convictions, and the “constitutional imperatives of ‘protecting the innocent from erroneous conviction

and ensuring the integrity of our criminal justice system.’ ”

Wade v. Brady, 460 F. Supp. 2d 226, 246 (D. Mass. 2006)

(quoting California v. Trombetta, 467 U.S. 479, 485 (1984));

see also Harvey II, 285 F.3d at 316-18 (Luttig, J., respecting

the denial of rehearing en banc); Moore v. Lockyer, 2005 WL

2334350, at *8 (N.D. Cal. Sept. 23, 2005), appeal docketed,

No. 06-15016 (9th Cir. argued Oct. 15, 2007). 

[6] This circuit has already staked out positions on both of

these issues. In Osborne I, 423 F.3d at 1054-55, we drew a

sharp distinction between access-to-evidence and habeas

claims in holding that Osborne’s access claim is not barred by

Heck v. Humphrey. And in Thomas, 979 F.2d at 749-50, we

expressly applied Brady as a post-conviction right in a habeas

proceeding based on the requirements of fundamental fairness. Faced now with the argument that Thomas should be

limited to cases with ongoing habeas petitions, we reject that

view and hold that Osborne is entitled to assert in this § 1983

3382 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
action the due process right to post-conviction access to

potentially exculpatory DNA evidence that we recognized in

Thomas. 

III

The State alternatively contends that, even if there is a postconviction right of access, the scope of the right recognized

by the district court is too broad. It proposes a narrower standard for judging the materiality of evidence favorable to

Osborne. In the State’s view, before it is obligated to disclose

any evidence post-conviction, Osborne should be required to

satisfy the extraordinarily high standard of proof that applies

to freestanding claims of actual innocence. Thus, under our

case law, Osborne would be required to “go beyond demonstrating doubt about his guilt, and must affirmatively prove

that he is probably innocent.” Carriger, 132 F.3d at 476; see

also Jackson, 211 F.3d at 1164. We disagree. 

The fundamental flaw in the State’s position is that it effectively equates Osborne’s access-to-evidence claim with a

habeas claim. Under the State’s conception, Osborne would

have to satisfy the same actual innocence standard in order to

merely obtain potentially exculpatory evidence as he would in

order to actually overturn his conviction. The only difference

is in the factual predicate: we would analyze Osborne’s access

claim taking into account the eventuality that further DNA

testing will be favorable to Osborne, whereas habeas relief

would require the actual results. The application of Carriger’s

legal standard, however, would otherwise be identical. 

[7] The State is getting ahead of itself. Obtaining postconviction access to evidence is not habeas relief. And requiring Osborne to demonstrate that he would be entitled to

habeas relief if the test results are favorable in order even to

conduct such testing is fundamentally inconsistent with

Brady, Thomas, and Osborne I. Under these authorities, the

most stringent materiality standard for simply obtaining postOSBORNE v. DISTRICT ATTORNEY’S OFFICE 3383
conviction access to evidence must be more lenient than the

standard of proof Osborne will ultimately have to satisfy in

order to obtain habeas relief. 

While Brady ensures a fair trial, a defendant’s right to pretrial disclosure under Brady is not conditioned on his ability

to demonstrate that he would or even probably would prevail

at trial if the evidence were disclosed. Rather, disclosure is

required if there is a “reasonable probability” of a more favorable result at trial, and “the adjective is important.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995). As the Supreme Court

explained in Kyles, “a showing of materiality does not require

demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Id. Nor is it “a sufficiency of evidence test.

A defendant need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed evidence,

there would not have been enough left to convict.” Id. at 434-

35. Instead, materiality for Brady purposes is established “by

showing that the favorable evidence could reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict.” Id. at 435. 

In Thomas, we extended Brady as supporting a habeas petitioner’s post-conviction right to obtain access to semen evidence for purposes of DNA testing. 979 F.2d at 749-50.

While we did not expressly adopt Brady’s materiality standard for post-conviction access claims or otherwise define the

applicable materiality standard, our decision was in general

accordance with the principles underlying Brady materiality.

Despite the fact that the petitioner ultimately needed the

semen evidence in order to establish a Schlup “gateway”

claim of actual innocence for purposes of overcoming a procedural default, we did not condition the petitioner’s right of

access on his ability to first demonstrate that favorable test

results would in fact enable the petitioner to make a colorable

showing of actual innocence. Instead, we merely noted that

“[a] semen sample, or tests thereof, might enable him to make

3384 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
such a showing,” “[i]n light of the obvious exculpatory potential of semen evidence in a sexual assault case.” Id. at 749,

750 n.2 (emphasis added). We put off analyzing the complete

factual basis for petitioner’s actual innocence claim until the

evidence, if it even still existed, was actually produced and

tested. Id. at 750. 

Similarly, in Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997),

we held that a habeas petitioner was statutorily entitled to

post-conviction testing of physical evidence and other discovery because such “discovery is essential for Jones to develop

fully his ineffective assistance of counsel claim,” and “the test

results may establish the prejudice required to make out such

a claim.” Id. at 1009 (emphasis added). And in Majoy, we

found sufficient “the distinct possibility that given the opportunity, Majoy may be able to muster a plausible factual case

meeting the exacting gateway standard [of actual innocence]

established by the Supreme Court in Schlup.” 296 F.3d at 775

(emphasis added). 

In Osborne I, we did not address the standards Osborne

might have to satisfy in order to prevail on his access-toevidence claim. But our decision that Heck v. Humphrey does

not bar Osborne’s § 1983 action was based on the rationale

that Osborne’s access-to-evidence claim is not the functional

equivalent of a habeas petition because it would not necessarily demonstrate the invalidity of his conviction. Indeed, “a

separate action—alleging a separate constitutional violation

altogether—would be required to overturn his conviction.”

Osborne I, 423 F.3d at 1055. Nonetheless, rather than allow

the objective facts to come to light so that Osborne can actually file his actual innocence claim and support it with hard

evidence, the State effectively would have us fully analyze

that same claim as a hypothetical by adopting the same habeas

standard in the instant action. In accordance with the cases

discussed above, we decline to do so. 

For his part, Osborne contends that the ordinary pre-trial

Brady materiality standard is the most appropriate standard

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3385
for evaluating a prisoner’s post-conviction right of access to

evidence. Thus, he proposes that we require only a reasonable

probability that, had the evidence been disclosed to the

defense, the result of his trial would have been different. See

Kyles, 514 U.S. at 434-35; United States v. Bagley, 473 U.S.

667, 682 (1985). 

As it turns out, however, Osborne’s case for disclosure is

so strong on the facts that his proposed legal standard, which

would give him the benefit of both the presumption of innocence and the requirement of jury unanimity for conviction,

sets the bar far lower than what he is able to show in this case.

Wherever the bar is, he crosses it. This case therefore does not

require us to determine the full breadth of post-conviction

Brady rights. The precise height at which the materiality bar

should be set is largely an academic question, which we may

leave to another day and another case that truly presses the

issue. Resolving the instant case requires us to determine only

that Osborne’s showing of materiality is sufficient to require

disclosure, and not whether the same due process right might

be invoked upon a lesser showing. 

[8] In accordance with that reservation and our analysis in

rejecting the State’s proposal as setting the bar too high, we

hold that the standard of materiality applicable to Osborne’s

claim for post-conviction access to evidence is no higher than

a reasonable probability that, if exculpatory DNA evidence

were disclosed to Osborne, he could prevail in an action for

post-conviction relief. Taking into account Osborne’s

declared intention to file a freestanding claim of actual innocence, materiality would be established by a reasonable probability that Osborne could “affirmatively prove that he is

probably innocent.” Carriger, 132 F.3d at 476. And to paraphrase the Supreme Court’s definition of “reasonable probability,” this materiality standard does not require a

demonstration by a preponderance that disclosure of the DNA

evidence will ultimately enable Osborne to prove his innocence. See Kyles, 514 U.S. at 434. The question is not whether

3386 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
Osborne would more likely than not be granted habeas relief

with the evidence, but whether in the absence of the DNA evidence Osborne would receive a fair habeas hearing, understood as a hearing resulting in a judgment “worthy of

confidence.” Id.

As discussed next, considered in light of the particular facts

of this case, this standard is satisfied by the potential probative value of the DNA evidence to which Osborne seeks

access. 

IV

A

As an initial matter, the State contends that in assessing the

potential materiality of further DNA testing, this court should

give preclusive effect to three factual findings made by the

Alaska Superior Court, and later affirmed by the Alaska Court

of Appeals in State II, when the court rejected Osborne’s

request for DNA testing under state law. Those findings are

that (1) Osborne’s conviction did not rest primarily on eyewitness identification evidence, (2) there was no demonstrable

doubt concerning the accuracy of the victim’s identification of

Osborne as the perpetrator, and (3) additional DNA testing

would not conclusively establish Osborne’s innocence. State

II, 163 P.3d at 978. 

[9] Whether the state court’s factual findings have preclusive effect in this federal proceeding is a mixed question of

law and fact that we review de novo. See Littlejohn v. United

States, 321 F.3d 915, 919 (9th Cir. 2003). In § 1983 actions,

we apply state law to determine the preclusive effect of a state

court’s findings. Heck v. Humphrey, 512 U.S. 477, 480 n.2

(1994). Under Alaska law, factual findings are entitled to preclusive effect if the party against whom estoppel is asserted

was a party to or in privity with a party to the prior action, the

issue to be precluded is identical to that decided in the first

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3387
action, and the issue in the first action was resolved by a final

judgment on the merits. Holmberg v. State, 796 P.2d 823, 827

(Alaska 1990). The parties here raise no dispute regarding the

privity and final judgment requirements. They dispute only

whether the issues decided by the Alaska courts are identical

to the issues raised by Osborne’s access-to-evidence claim

under federal law. 

The state court’s first and second findings regarding the

evidence supporting Osborne’s identification as the perpetrator are certainly relevant to our inquiry, but only insofar as

such evidence is part of the broader evidentiary backdrop

against which the materiality of exculpatory DNA tests is to

be analyzed. The state court’s findings fundamentally differ

from our materiality inquiry, however, in that they are exclusively historical, focusing only on the state of the evidence as

it existed at trial and whether that trial record would lead one

to question the integrity of that evidence, much like a sufficiency of the evidence inquiry under Jackson v. Virginia, 443

U.S. 307, 324 (1979). By contrast, the materiality of suppressed evidence and the viability of an actual innocence

claim based on new evidence are far more comprehensive and

forward-looking inquiries that do not “turn on discrete findings regarding disputed points of fact.” House, 547 U.S. at

539-40. “One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been

excluded [or was inherently flawed], but by showing that the

favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence” in

a decision made without the evidence. Kyles, 514 U.S. at 435.

In assessing whether DNA results favorable to Osborne would

be material to an actual innocence claim, we “must consider

all the evidence, old and new, incriminating and exculpatory,”

and “make a probabilistic determination about what [a reasonable fact-finder] would do.” House, 547 U.S. at 538 (internal

quotation marks omitted). 

3388 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
[10] Thus, only the state court’s third finding—which is

essentially its “materiality” finding under Alaska law—is in

play here. But that finding is also not entitled to preclusive

effect in this case because it was made in conformity with a

materiality standard under state law that is more stringent than

any standard this court would apply under federal law.

Whereas the Alaska courts inquired as to whether DNA tests

excluding Osborne as the source of the genetic material would

“conclusively establish Osborne’s innocence,” State II, 163

P.3d at 981 (emphasis added),3 we have determined that materiality under federal law requires Osborne to demonstrate, at

most, only a reasonable probability that with favorable DNA

test results he could affirmatively prove that he is probably

innocent. Cf. House, 547 U.S. at 538, 553-54 (holding that,

although there was not “conclusive exoneration,” the petitioner satisfied the Schlup standard for a gateway claim of

actual innocence—“that more likely than not, in light of the

new evidence, . . . any reasonable juror would have reasonable doubt”). Indeed, Alaska’s materiality standard for merely

obtaining post-conviction access to evidence is more stringent

than even this circuit’s standard for obtaining habeas relief

3The Alaska Court of Appeals originally phrased the broader issue

under Alaska law as “whether further DNA testing . . . would likely be

conclusive on the issue of Osborne’s guilt or innocence.” State II, 163

P.3d at 980 (emphasis added). But that inquiry undergoes a significant

metamorphosis as the opinion progresses. After the court acknowledges

that further DNA testing could produce three different results—

inculpatory, inconclusive, or exculpatory—from that point forward the

court presumes test results favorable to Osborne and the word “likely” disappears from its statement of the legal standard. Id. Thus, the inquiry ultimately becomes: “assuming that this third alternative came to pass—i.e.,

assuming that a more discriminating DNA test showed that the genetic

material did not come from Osborne—would this test result be conclusive

evidence of Osborne’s innocence?” Id. Moreover, even if we have misread

or were to ignore this shift, we would reach the same result. First, it is

unclear whether “likely” equates to “reasonable probability” within the

meaning of Bagley and Kyles. And second, a freestanding actual innocence claim under Carriger requires only an affirmative showing of probable innocence, not conclusive proof. 

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3389
based on a freestanding claim of actual innocence. Compare

State II, 163 P.3d at 981 (“conclusively establish Osborne’s

innocence”), with Carriger, 132 F.3d at 476 (“affirmatively

prove that he is probably innocent”). We therefore afford the

state court’s findings no preclusive effect in determining

whether the evidence in question is sufficiently material to

require disclosure by the State. 

B

The State contends that even DNA test results excluding

Osborne as the source of the semen and pubic hair from the

blue condom and the pubic hair from K.G.’s sweater would

not cast sufficient doubt on his conviction to require disclosure of that evidence. In the State’s view, notwithstanding the

prosecution’s reliance on such biological evidence in obtaining Osborne’s conviction, the evidence actually might be

entirely unrelated to the rape and therefore immaterial to

Osborne’s claim of innocence. 

Regarding the semen and pubic hair from the blue condom,

the State acknowledges that the condom was recovered at the

crime scene, that expert testimony was presented at trial comparing Osborne’s hair to the pubic hair from the condom and

matching Osborne’s DQ Alpha type to that of the sperm from

the condom, which placed Osborne within 14.7 to 16 percent

of the black population sharing that type, and that in the prosecution’s closing argument it specifically relied on the combination of this genetic evidence as proof of Osborne’s guilt.

Nonetheless, considering the possibility that more precise

DNA tests might conclusively establish that Osborne did not

use the blue condom, the State now argues that such evidence

was “not the sole basis for finding Osborne guilty” in that

there was circumstantial evidence placing Osborne with Jackson on the night in question and K.G. identified Osborne as

the passenger-rapist. Moreover, the State argues, “[o]ther conclusions about the donor of the DNA in the sperm and the hair

associated with the condom were plausible and equally recon3390 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
cilable with Osborne’s guilt.” Based on the fact that the condom was recovered by the police more than twenty-four hours

after the assault and, according to the State’s characterization,

“in a semi-secluded area on the outskirts of Anchorage that

was convenient for conducting sexual trysts,” the State now

proposes three possible scenarios for how Osborne could be

guilty despite exculpatory DNA tests. First, the blue condom

could have been discarded at the crime scene by persons unrelated to Jackson and Osborne either before K.G.’s attack or

after the attack but before the police searched the area. Second, the blue condom could have been used at an earlier time

by another individual, left in Jackson’s car, and discarded or

dropped at the crime scene by Jackson and Osborne. Or third,

trace biological material—particularly the pubic hair found on

the outside of the condom—could have been transferred to the

condom from another surface after its use. 

The State makes a similar argument regarding the pubic

hair that was found on K.G.’s sweater. According to the State,

the fact that K.G. was working as a prostitute, the propensity

hairs have for transference, and the ability of K.G.’s knitted

acrylic sweater to hold a hair all point to the possibility that

it might be anyone’s pubic hair, and not necessarily her

attacker’s. Thus, despite the fact that at Osborne’s trial the

prosecution argued that “we know that the person that did this

had contact with [K.G.’s] sweater” because “[t]here’s a pubic

hair on it,” the State now argues that it has never been established that the pubic hair was from one of the assailants and

that it “could have originated from any person who had ever

been near K.G. or from any person who had ever been in

Jackson’s car” prior to the rape. 

[11] On their face, the State’s hypotheticals are not beyond

the bounds of reason. But that is not the applicable federal

standard for determining the materiality of evidence that is

favorable to the accused, notwithstanding the Alaska Court of

Appeals’ interpretation of Alaska law. Cf. State II, 163 P.3d

at 980-81 (concluding that further DNA testing “would not

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3391
conclusively establish Osborne’s innocence,” based in part on

the reasoning that the blue condom “might have been coincidentally left in the vicinity by another person before the police

arrived”). Those hypotheticals must be assessed in light of the

entire record. And in that regard, although the State points to

the circumstantial and eyewitness evidence that is supportive

of the prosecution’s case at trial and Osborne’s conviction, the

State fails to point to any evidence in the record that would

affirmatively support its newly imagined alternative theories

of the crime and accordingly rebut its own presentation at trial

regarding the significance of the biological evidence as positively identifying the real perpetrator. Cf. House, 547 U.S. at

547 (noting the lack of evidence “in the present record” rebutting the new evidence supporting petitioner’s actual innocence claim). The State’s hypotheticals are formulated based

on nothing more than the very uncertainties that necessarily

arise where new evidence upsets accepted notions of reality

and forces a fundamental reassessment of the factual record.

Even worse, they fail to account for evidence already in the

record that seriously calls into question whether the State’s

hypotheticals might have any basis in reality. Cf. id. at 546

(“This should be a matter for the trier of fact to consider in

the first instance, but we can note a line of argument that

could refute the State’s position.”). 

The trial record reveals that the attack occurred down a service road, which was located in an isolated area on the outskirts of Anchorage off Point Woronzof Drive and near

Earthquake Park. Although the State characterizes it as a

“semi-secluded” location that was “convenient for conducting

sexual trysts,” which is apparently why the perpetrators chose

the location, there does not appear to be any evidence in the

record indicating that the location was ever used for such a

purpose by any other persons on that night or the following

day, or for that matter any other day. To the contrary, the evidence presented at trial seems to indicate that no one else had

been down that service road, either by car or on foot, around

the time of the crime. There was already snow on the ground

3392 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
before the attack, and a layer of new snow fell by the next

morning. Judging by the tracks in the snow, only a few known

individuals visited the area at the end of the service road both

on the night of the assault and the next day. Even though the

police did not arrive until twenty-four hours after the attack,

they found only a few sets of footprints and tire tracks. The

police made castings of some of the show prints in the snow,

but those were matched to K.G.’s rescuers and their neighbor

and were therefore eliminated as suspect prints. Similarly, the

trial record indicates the police found only three sets of tire

tracks, all of which were later matched to known vehicles—

those owned by Jackson, K.G.’s rescuers, and their neighbor.

Because of the old and new snow layers, the police were even

able to distinguish each of the three sets of tracks by the time

periods in which they were made. The tracks from Jackson’s

car were in a lower layer of snow, while the two other sets

were fresh. This was due to the fact that K.G. had walked to

the main road before being picked up, and her rescuers and

their neighbor did not visit the crime scene until the following

day after the new snow had fallen. Significantly, the trial

record does not indicate the existence of any other tire tracks

or shoe prints that might have indicated that some unknown,

innocent person visited the scene either before or after the

attack. 

Additional record evidence also tends to contradict the

notion that the blue condom could be attributable to someone

other than Jackson’s accomplice. The trial record indicates

that the police recovered no condoms from Jackson’s car, they

recovered only one condom and part of a blue foil condom

wrapper from the crime scene, and the color and size of the

blue condom and the color of the wrapper were the same as

that of the condom and wrapper that K.G. had with her that

night. K.G. also testified that she thought the condom was the

same one that she had with her and that Jackson’s passenger

wore during the rape. The police found the condom “at point

C in the snow” right beside some blood and part of the blue

and gold foil wrapper matching the condom K.G. was carryOSBORNE v. DISTRICT ATTORNEY’S OFFICE 3393
ing, and it was also very near the spent shell casing from

Jackson’s gun, K.G.’s bloody pants, the disturbed berm of

snow in which K.G. had been partially buried, and the tire

tracks from Jackson’s car, probably on the passenger side

where Jackson’s accomplice would have been. Thus, the condom was found not merely in the vicinity of the crime scene

but in the exact location where K.G. was attacked. Regarding

the timing, although the police did not search the crime scene

until twenty-four hours after the rape, K.G.’s rescuers

reported seeing the condom lying in the snow when they visited the crime scene around noon on the day after the attack.

Thus, the time frame in which the condom could have been

left there was far narrower than the State suggests. Finally, a

crime lab technician testified that when he received the condom, which by then had been packaged in a closed plastic

cup, the condom was rolled down and there was still a substantial amount of semen inside that had not yet dried. Taken

together, these facts are far more consistent with the prosecution’s trial narrative—that Jackson’s passenger used K.G.’s

condom during the rape, he removed and discarded it at the

scene, and it remained undisturbed in the snow until it was

recovered by the police—than any of the State’s newly proposed alternative explanations for the condom’s origin. 

The State also fails to recognize that further DNA testing

is alone capable of establishing the supposedly missing link

between the condom and K.G.’s rape. The potential probative

value of the semen and pubic hair from the blue condom and

the pubic hair from K.G.’s sweater must be considered collectively, not in isolation as the State has considered the evidence. See Kyles, 514 U.S. at 436 (explaining that materiality

is defined “in terms of suppressed evidence considered collectively, not item by item”); House, 547 U.S. at 538 (“Schlup

makes plain that the habeas court must consider all the evidence, old and new, incriminating and exculpatory” (internal

quotation marks omitted)); see, e.g., id. at 552-53 (“If considered in isolation, a reasonable jury might well disregard it. In

combination, however, . . . the evidence . . . likely would rein3394 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
force other doubts as to House’s guilt.”). As the State itself

should expect given the prosecutor’s trial presentation and its

continued belief in Osborne’s guilt, further DNA testing could

establish a genetic match between the semen and pubic hair

on the condom and the pubic hair on K.G.’s sweater, proving

that the user of the condom was also in such contact with

K.G. as to transfer a pubic hair to her sweater. As the prosecutor argued at trial, because the sweater was spread out underneath K.G. during the rape, the most likely scenario is that the

hair was transferred by Jackson’s accomplice at that time. 

Moreover, further DNA testing might even directly link the

blue condom to K.G. herself. Although we have mainly

focused on the semen and hair evidence that we know to exist,

the trial record reveals that epithelial cells were found on the

outside of the condom. Based on this evidence, the prosecution argued at trial that it indicates how the condom was used

because epithelial cells come from only the inside of the

mouth, rectum or vagina. Further DNA testing might be able

to go one step further and genetically match any such trace

material from the condom to K.G., conclusively establishing

that the condom was used in K.G.’s rape and disproving any

of the State’s new hypotheses. 

New evidence favorable to Osborne could also lead to new

lines of investigation and additional new evidence. See People

v. Garcia, 22 Cal. Rptr. 2d 545, 551 (Cal. Ct. App. 1993); see

also Bagley, 473 U.S. at 683 (“[T]he reviewing court may

consider directly any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case.”). Based on the State’s obstinate

denial that Osborne might be innocent even if DNA test

results exclude him as a source of the biological evidence

used to convict him, the State would seem intent on developing a case to continue to fight Osborne’s claim of innocence.

But such an investigation might instead lead in the opposite

direction and further solidify Osborne’s case for innocence.

As Osborne contends, if the STR DNA test results exclude

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3395
him, those results could then be placed into the state and

national DNA databank system, which did not exist when

Osborne was tried, and possibly identify the real perpetrator.

See State I, 110 P.3d at 992 n.14 (noting that Alaska maintains a DNA registry). 

[12] In summary, the State’s proposed hypotheticals for

reconciling exculpatory DNA tests with Osborne’s guilt are so

inconsistent with and improbable in light of the evidence in

the trial record that they cannot negate the materiality of further DNA testing to possible post-conviction relief. Cf.

House, 547 U.S. at 553-54 (holding that, although there was

not “conclusive exoneration,” the petitioner satisfied the Schlup actual innocence standard). “In light of the obvious exculpatory potential of semen evidence in a sexual assault case,”

Thomas, 979 F.2d at 750 n.2, and given the evidentiary record

in this sexual assault case and the unique circumstances of

this crime, we have no difficulty concluding that DNA tests

favorable to Osborne would have extraordinary exculpatory

potential and would be material to proving his actual innocence. At the very least, exculpatory DNA tests would entitle

Osborne to an evidentiary hearing on his actual innocence

claim in order to more fully develop the factual record and

reconcile any conflicting evidence. See Cooper v. Woodford,

358 F.3d 1117, 1123-24 (9th Cir. 2004) (en banc); cf. House,

547 U.S. at 537 (addressing the merits of a Schlup gateway

claim “based on a fully developed record”).

C

Thus far we have limited our analysis to the evidence in the

trial record and the evidence that might be discovered if the

State were forced to allow it to come to light. But the State

also points to Osborne’s written confession in his application

for parole and his oral confession at his subsequent parole

hearing as foreclosing his right to obtain post-conviction

access. 

3396 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
The confessions are certainly relevant to our inquiry.

Because Osborne’s ultimate claim for post-conviction relief

will be actual innocence rather than mere trial error, all new

evidence may be considered in assessing the potential materiality of further DNA testing. See House, 547 U.S. at 538 (“all

the evidence, old and new, incriminating and exculpatory,

without regard to . . . admissibility . . . at trial” (internal quotation marks omitted)). No doubt, that includes Osborne’s

written and oral confessions to the state parole board. See

State II, 163 P.3d at 978-79. 

[13] We disagree, however, that the confessions foreclose

Osborne’s right to obtain post-conviction access to evidence.

The same rule that allows us to consider the probative value

of the confessions requires that we do so in light of exculpatory DNA tests and all the rest of the new and old evidence

in this case. Thus, the question before us is not how much

weight we should afford Osborne’s confessions standing

alone, but how they might be squared with exculpatory DNA

tests and the remainder of the evidentiary record. See Godschalk v. Montgomery County Dist. Attorney’s Office, 177 F.

Supp. 2d 366, 370 (E.D. Pa. 2001) (“While plaintiff’s detailed

confessions to the rapes are powerful inculpatory evidence, so

to any DNA testing that would exclude plaintiff as the source

of the genetic material taken from the victims would be powerful exculpatory evidence.”). As we have already discussed,

further DNA testing will be highly probative of Osborne’s

guilt or innocence given the facts as we know them. We can

therefore expect to see one of two possible scenarios unfold:

Either the confessions will be proven accurate by test results

proving Osborne was in fact the passenger-rapist and his case

will proceed no further, or the test results will exclude him as

the source of the biological material, in which case serious

questions will be raised about the validity of his confessions

and whether, as Osborne now claims, he was motivated to

confess falsely as the most expeditious means available to

obtain release from prison. Cf. Baylor v. Estelle, 94 F.3d

1321, 1323-25 (9th Cir. 1996) (holding that despite the defenOSBORNE v. DISTRICT ATTORNEY’S OFFICE 3397
dant’s confession, trial counsel’s ineffective assistance in failing to follow up on potentially exculpatory semen evidence in

a sexual assault case was prejudicial because evidence excluding the defendant as the semen donor “would necessarily have

raised reasonable doubt about the validity of his confession”).

[14] Accordingly, we decline to hold that Osborne’s confession during parole proceedings necessarily trumps the

materiality of physical evidence or the right to obtain postconviction access to evidence. Such a rule would ignore the

emerging reality of wrongful convictions based on false confessions and the capability of DNA testing to reveal the objective truth and exonerate the innocent.

D

The State finally contends that the district court erred in

finding that further DNA testing “can be easily performed

without cost or prejudice to the [State].” Osborne, 445 F.

Supp. 2d at 1081. In the State’s view, prejudice is inherent in

the granting of post-conviction access to evidence because it

erodes the important value of finality in the criminal justice

system. We disagree. 

Although finality is undoubtedly an important consideration, it is not such an immovable force as to override the due

process interests presently at stake. If Osborne already had in

hand the exculpatory evidence he seeks and filed a habeas

petition stating a valid claim for relief, there would be no

question that his petition must be heard despite finality considerations. “The federal writ of habeas corpus overrides all

[such] considerations, essential as they are to the rule of law,

when a petitioner raises a meritorious constitutional claim in

a proper manner in a habeas petition.” McCleskey v. Zant, 499

U.S. 467, 492-93 (1991). Even a procedural default would not

necessarily foreclose Osborne’s claim given the availability of

a Schlup gateway claim of actual innocence. See, e.g.,

Thomas, 979 F.2d at 749. Though no doubt eroding finality,

3398 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
such an exception “serves as ‘an additional safeguard against

compelling an innocent man to suffer an unconstitutional loss

of liberty,’ guaranteeing that the ends of justice will be served

in full.” McCleskey, 499 U.S. at 495 (quoting Stone v. Powell,

428 U.S. 465, 491-92 n.31 (1976)). 

The State’s conception of finality would reverse these priorities. The evidence in question can be produced easily and

without cost to the State and, if favorable to Osborne, would

be strong evidence in support of post-conviction relief. Nonetheless, the State seeks to foreclose such relief by its simple

refusal to open the evidence locker. We rejected a similar tactic in Thomas, 979 F.2d at 749-50, and we reject it again here.

The State supports its position with the argument that the

circumstantial and eyewitness evidence in this case is also

strong evidence of Osborne’s guilt, and thus granting access

is not likely to “further the truth seeking function of our criminal justice system.” As recent history has shown, however,

DNA evidence has the capability of refuting otherwise irrefutable inculpatory evidence, and as we have already established

this case is no exception. 

If the inculpatory evidence has been correctly interpreted,

further DNA testing will confirm that Osborne is guilty as

charged and convicted. But it remains a very real possibility

that further DNA testing will be exculpatory and may even

lead to Osborne’s exoneration. In the former case, the State

will have lost nothing; indeed, it will gain even more definitive proof of Osborne’s guilt and will be relieved of the burden of further post-conviction litigation. In the latter case,

however, Osborne will obviously gain a great deal, as will the

State, whose paramount interests are in seeking justice, not

obtaining convictions at all costs, and which will then have

strong evidence for use in catching and punishing the real perpetrator. Importantly, the State is prejudiced in neither case,

and the truth-seeking function of the criminal justice system

is furthered in either case. 

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3399
V

[15] In Thomas, we granted a prisoner’s request for postconviction DNA testing to establish a gateway claim of actual

innocence “[i]n light of the obvious exculpatory potential of

semen evidence in a sexual assault case.” 979 F.2d at 750 n.2.

This sexual assault case is no exception. We therefore agree

with the district court and hold that Osborne’s right to due

process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further

DNA testing, where that biological evidence was used to

secure his conviction, the DNA testing is to be conducted

using methods that were unavailable at the time of trial and

are far more precise than the methods that were then available, such methods are capable of conclusively determining

whether Osborne is the source of the genetic material, the

testing can be conducted without cost or prejudice to the

State, and the evidence is material to available forms of postconviction relief.4

In so holding, however, we do not purport to set the standards by which all future cases must be judged. We are presented with a certain set of circumstances presenting a meritorious case for disclosure, and our analysis and holding are

addressed to those circumstances only. Despite the manner in

which the parties have presented the issues, such questions as

whether the scope of the right of post-conviction access

should be broader or flexible to accommodate different circumstances, whether the materiality standard for postconviction access-to-evidence claims should be less stringent

or defined in a different manner, and whether prisoners with

4Given our holding, we need not reach Osborne’s alternative arguments

that the State’s denial of access to potentially exculpatory DNA evidence

is effectively a denial of meaningful access to courts in violation of the

First and Fourteenth Amendments, see Christopher v. Harbury, 536 U.S.

403, 412-22 (2002), or that it violates his due process right to effectively

pursue parole and executive clemency, see Harvey II, 285 F.3d at 320

(Luttig, J., respecting the denial of rehearing en banc). 

3400 OSBORNE v. DISTRICT ATTORNEY’S OFFICE
a less compelling case might also be entitled to postconviction access, all are questions that we need not answer

and do not purport to answer in deciding this case. We leave

them for another day. 

AFFIRMED. 

OSBORNE v. DISTRICT ATTORNEY’S OFFICE 3401