FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEVIN COOPER,

Plaintiff-Appellant,

v.

MICHAEL A. RAMOS, District

Attorney for the County of San

Bernardino; STEVEN MYERS, Senior

Criminalist with the California

Department of Justice DNA

Laboratory; DANIEL GREGONIS,

Criminalist at the SBCSD; FRED

ECKLEY; KEN SCHRECKENGOST,

SBCSD Deputy; WILLIAM BAIRD,

SBCSD Deputy; IRVIN SHARP,

SBCSD Deputy; HECTOR OCAMPO,

SBCSD Detective; GALE DUFFY,

SBCSD Deputy; DAVID

STOCKWELL,

Defendants-Appellees.

No. 11-57144

D.C. No.

2:11-cv-03942-

SVW-OP

OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

August 20, 2012—Seattle, Washington
2 COOPER V. RAMOS

 This summary constitutes no part of the opinion of the court. It has

*

been prepared by court staff for the convenience of the reader.

Filed December 27, 2012

Before: M. Margaret McKeown, Ronald M. Gould,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown

SUMMARY

*

Civil Rights

The panel affirmed the district court’s dismissal of a

complaint brought by Kevin Cooper, who was convicted of

murder and sentenced to death in 1985, challenging a state

court’s denial of his request to obtain additional DNA testing

pursuant to a state statute.

Cooper alleged that he was the target of a long-running

conspiracy, involving members of the San Bernardino County

Sheriff’s Department and others, to manipulate evidence and

prevent him from proving that he was framed. The district

court dismissed the complaint without prejudice, to the extent

that Cooper was able to plead viable claims that were not

barred by the Rooker-Feldman doctrine.

The panel first determined that the district court intended

its order to be final and appealable and therefore the panel

had jurisdiction to consider the ruling. The panel then held

that the district court properly dismissed the complaint under
COOPER V. RAMOS 3

the Rooker-Feldman doctrine because the federal courts

lacked subject matter jurisdiction over Cooper’s first claim,

which sought federal relief from the state court’s

determination in the DNA proceeding, and over his second

and third claims, which were inextricably intertwined with

the first. The panel further held that the district did not err in

implicitly denying Cooper’s request to amend the complaint.

COUNSEL

L. David Russell and Kenneth K. Lee, Jenner & Block LLP,

Los Angeles, California, for Plaintiff-Appellant.

Shannon L. Gustafson, Lynberg & Watkins, Orange,

California for Defendants-Appellees Michael A. Ramos,

Daniel Gregonis, Fred Eckley, Ken Schreckengost, William

Baird, Irvin Sharp, Hector Ocampo, Gale Duffy, and David

Stockwell; Kristin G. Hogue, Office of the Attorney General,

San Diego, California, for Defendant-Appellee Steven Myers.

OPINION

McKEOWN, Circuit Judge:

Kevin Cooper was convicted of four counts of first-degree

murder and sentenced to death in 1985. Since then his case

has traveled up, down and around the federal and state

judiciaries. Most recently, Cooper filed suit in federal district

court in California challenging a state court’s denial of his

request to obtain additional DNA testing pursuant to a state

statute. In the complaint, Cooper alleges that he is the target

of a long-running conspiracy, involving members of the San
4 COOPER V. RAMOS

Bernardino County Sheriff’s Department and others, to

manipulate evidence and prevent him from proving that he

was framed. The district court dismissed without prejudice

on the basis that it lacked subject matter jurisdiction under the

Rooker-Feldman doctrine because Cooper’s federal suit

constituted a de facto appeal of the state court judgment. We

agree that his complaint was properly dismissed. Under the

Rooker-Feldman doctrine, the federal courts lack subject

matter jurisdiction over his first claim, which sought federal

relief from the state court’s determination in the DNA

proceeding, and over his second and third claims, which are

inextricably intertwined with the first. We further hold that

the district did not err in implicitly denying Cooper’s request

to amend the complaint.

BACKGROUND

Cooper has vigorously pursued his postconviction

options. He has appeared before multiple three-judge panels

and an en banc panel of this court, as well as various federal

district and state courts. While his efforts have questioned

the credibility of the police work and the forensic evidence,

they have failed to result in a reversal of his conviction. The

brutal facts and prolonged procedural history are detailed in

our previous opinion and are not repeated here. See Cooper

v. Brown, 510 F.3d 870 (9th Cir. 2007).

In 2010, several years after denial of his federal habeas

petition, Cooper filed a motion in San Diego Superior Court

under California Penal Code § 1405. Section 1405, entitled

Motion for DNA Testing, provides convicted felons a right to

file a motion for post-conviction DNA testing, and sets out

eight detailed fact-based criteria for granting the motion. Cal.

Penal Code § 1405. Cooper sought further post-conviction
COOPER V. RAMOS 5

DNA testing of three pieces of evidence, all of which had

been extensively tested and unsuccessfully challenged in

previous proceedings.

In rejecting Cooper’s request for testing, the Superior

Court reviewed in detail the tests that had been conducted on

each piece of evidence, considered the requirements for

further testing under § 1405, and rejected Cooper’s claims

that the prosecution and other public officials tampered with

the evidence of the crime. The court labeled as “speculation”

Cooper’s “unspecified tampering theory.” The court also

found that Cooper had failed to show that use of a different

testing method, the MiniFiler kit, “would provide results that

are reasonably more discriminatory and probative of the

identity of the perpetrator or accomplice or have a reasonable

probability of contradicting prior test results” as required by

§ 1405. Ultimately the court concluded that Cooper “has not

demonstrated there is a reasonable probability he would have

had a more favorable outcome if the requested DNA results

had been available.”

Rather than filing a petition for review with the California

Supreme Court, Cooper filed a complaint in federal court

against a host of public officials— Michael A. Ramos, Daniel

Gregonis, Fred Eckley, William Baird, Hector O’Campo,

Gail Duffy, David Stockwell, and Steven Myers—alleging

violations of 42 U.S.C. § 1983. Cooper alleged that he is the

target of a long-running conspiracy to manipulate evidence

and prevent him from proving that he was framed. He

advanced three claims: (1) denial of procedural due process

in the trial court based on the § 1405 proceedings (against

San Bernardino District AttorneyMichael Ramos and Steven

Myers, senior criminalist); (2) civil conspiracy to deny

procedural due process based on his § 1405 request (against
6 COOPER V. RAMOS

Ramos and Myers); and (3) civil conspiracy to deny

substantive due process based on tampering with and

falsifying evidence (against all defendants). Characterizing

Cooper’s suit as a de facto appeal of the state court judgment,

the district court dismissed the complaint without prejudice

for lack of subject matter jurisdiction under the RookerFeldman doctrine.

ANALYSIS

I. AVAILABILITY OF APPELLATE REVIEW

The threshold issue on appeal is whether we have

jurisdiction to consider the district court’s ruling. This

question arises because the district court dismissed the

complaint “without prejudice, to the extent that Plaintiff is

able to plead viable claims that are not barred by RookerFeldman,” but the court neither granted nor denied Cooper’s

request for leave to amend. See WMX Tech., Inc. v. Miller,

104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (noting the

difficulty of determining the finality of a district court’s order

“when a complaint is simply dismissed without prejudice”).

This case stands in contrast to WMX Technologies, where

a dismissal was not final for purposes of appeal because the

district court explicitly granted the request for leave to

amend. Here, where there is no order with respect to the

request for leave to amend, our precedent requires an

evaluation of the district court’s intent: “Ordinarily an order

dismissing the complaint rather than dismissing the action is

not a final order and thus not appealable. However, if it

appears that the district court intended the dismissal to

dispose of the action, it may be considered final and

appealable.” Knevelbaard Dairies v. Kraft Foods, Inc.,
COOPER V. RAMOS 7

232 F.3d 979, 983 (9th Cir. 2000) (alteration, internal

quotation marks, and citation omitted). In Knevelbaard

Dairies, for example, the plaintiff opposed motions to dismiss

its complaint and, alternatively, asked for leave to amend.

We held that the court’s order granting the motions to

dismiss, without mention of leave to amend, “necessarily

entailed a denial of the alternative request for leave to amend

and a determination . . . that the pleading could not possibly

be cured by the allegation of other facts.” Id. (internal

citation and quotation marks omitted).

Although here the district court added that it dismissed

“without prejudice” and “to the extent” that Cooper could

plead non-barred claims, these qualifiers do not overcome the

inference that the district court implicitly denied the request

to amend and intended to finally dispose of the action. See

Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th

Cir. 1987) (“Failure to allow leave to amend supports an

inference that the district court intended to make the order

final.”). Unlike the Rule 12(b)(6) dismissal for failure to state

a claim in Knevelbaard Dairies, the district court dismissed

this case under Rule 12(b)(1) for lack of subject matter

jurisdiction. It is not uncommon for courts to frame a

jurisdictional dismissal as being “without prejudice” because

the merits have not been considered. See Frigard v. United

States, 862 F.2d 201, 204 (9th Cir. 1988) (“Ordinarily, a case

dismissed for lack of subject matter jurisdiction should be

dismissed without prejudice so that a plaintiff may reassert

his claims in a competent court.”).

The district court’s reference to potential “viable claims

that are not barred by Rooker-Feldman” does not necessarily

reflect that the court was inviting amendment rather than

merely leaving open the possibility that Cooper might be able
8 COOPER V. RAMOS

to bring a separate, meritorious suit. The rationale set out in

the order strongly suggests that the court rejected the viability

of any amendments. The court specifically considered

Cooper’s argument that, although not pled as such, his suit

posed an independent, general challenge to the

constitutionality of § 1405. It reasoned that, even if the

complaint could be construed to encompass that claim, the

claim “must fail” because no California state court had

construed the statute to foreclose access to DNA testing for

prisoners who alleged they were framed. See Knevelbaard

Dairies, 232 F.3d at 983 (finding “inference that finality was

intended . . . especially strong” where “[n]o one has

suggested an amendment that could change the district court’s

ruling”).

That the court considered the case closed is also evinced

by the clerk’s definitive termination of the case. As in

Knevelbaard Dairies, “[t]he clerk’s docket entry describe[d]

the dismissal order as ‘terminating case.’” Id. at 983. A “JS6” code, indicating case termination, appears on both the

order and the docket entry. Clerk entries, albeit “ministerial

acts” distinct from the “the judicial act of rendering

judgment,” Lockwood v. Wolf Corp., 629 F.2d 603, 608 n.2

(9th Cir. 1980), may be instructive. See Knevelbaard

Dairies, 232 F.3d at 983. Though a docket entry alone is not

dispositive, the termination of the case, combined with the

inference of finality arising from the court’s failure to grant

leave to amend and the court’s rejection of a potential,

alternative claim, lead us to conclude that the court intended

its order to be final and appealable. Accordingly, we have

jurisdiction under 28 U.S.C. § 1291.
COOPER V. RAMOS 9

II. JURISDICTIONAL BAR TO COOPER’S CLAIMS

The Rooker-Feldman doctrine instructs that federal

district courts are without jurisdiction to hear direct appeals

from the judgments of state courts. Congress, in 28 U.S.C.

§ 1257, vests the United States Supreme Court, not the lower

federal courts, with appellate jurisdiction over state court

judgments. Lance v. Dennis, 546 U.S. 459, 463 (2006) (per

curiam). Accordingly, “[r]eview of such judgments may be

had only in [the Supreme] Court.” District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The

doctrine bars a district court from exercising jurisdiction not

only over an action explicitly styled as a direct appeal, but

also over the “de facto equivalent” of such an appeal. Noel

v. Hall, 341 F.3d 1148, 1155 (9th Cir. 2003).

To determine whether an action functions as a de facto

appeal, we “pay close attention to the relief sought by the

federal-court plaintiff.” Bianchi v. Rylaarsdam, 334 F.3d

895, 900 (9th Cir. 2003) (internal quotation marks and

citation omitted). “It is a forbidden de facto appeal under

Rooker-Feldman when the plaintiff in federal district court

complains of a legal wrong allegedly committed by the state

court, and seeks relief from the judgment of that court.”

Noel, 341 F.3d at 1163; see also Skinner v. Switzer, 131 S. Ct.

1289, 1297 (2011) (emphasizing that the Rooker-Feldman

doctrine is limited to cases “brought by state-court losers . . .

inviting district court review and rejection of the state court’s

judgments”) (internal quotation marks, alteration, and citation

omitted).

We recognize that the Supreme Court has been very

sparing in its invocation of the doctrine, see Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)
10 COOPER V. RAMOS

(emphasizing the “narrow ground occupied by

Rooker–Feldman”), so we are careful not to sweep too

broadly. The doctrine does not preclude a plaintiff from

bringing an “independent claim” that, though similar or even

identical to issues aired in state court, was not the subject of

a previous judgment by the state court. Skinner, 131 S. Ct. at

1297. The Court has found claims barred under RookerFeldman only in the two flagship cases that gave the doctrine

its name. See Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923); Feldman, 460 U.S. 462. In both cases the Court

reasoned that the plaintiffs, having lost in state court,

“essentially invited federal courts of first instance to review

and reverse unfavorable state-court judgments.” Exxon

Mobil, 544 U.S. at 283. A review of the Feldman case

provides an instructive framework for evaluating Cooper’s

claims.

In Feldman, two graduates of unaccredited law schools

petitioned a local court for a waiver to permit them to sit for

the bar. When their antitrust, Fifth Amendment and general

fairness/due process claims were rejected by that court, they

filed suit in federal court. The Supreme Court deemed the

action a de facto appeal to the extent that it sought review of

the local court’s denial of the petitions. On the other hand, as

we recounted in Noel, the Supreme Court allowed the

“challenge to the local court’s legislative act of promulgating

its rule” prohibiting the graduates from sitting for the bar,

reasoning that it “was a challenge to the validity of the rule

rather than a challenge to an application of the rule.” Noel,

341 F.3d at 1157 (emphasis added). The Court further

reasoned that, “[i]f the constitutional claims presented to a

United States District Court are inextricably intertwined with

the state court’s denial in a judicial proceeding of a particular

plaintiff’s application for admission to the state bar, then the
COOPER V. RAMOS 11

District Court is in essence being called upon to review the

state court decision,” which “the District Court may not do.”

Feldman, 460 U.S. at 482 n.16 (emphasis added and citation

omitted). In Feldman’s case, however, the Court found that

the challenge to the validity of the rule constituted “a general

attack on [its] constitutionality” that was independent of, not

intertwined with, the local court’s decision. Id. at 487.

Our circuit has emphasized that “[o]nly when there is

already a forbidden de facto appeal in federal court does the

‘inextricably intertwined’ test come into play.” Noel,

341 F.3d at 1158. In identifying what issues are inextricably

intertwined with a forbidden appeal, the following succinct

guidance from Justice Marshall is useful:

While the question whether a federal

constitutional challenge is inextricably

intertwined with the merits of a state-court

judgment may sometimes be difficult to

answer, it is apparent, as a first step, that the

federal claim is inextricably intertwined with

the state-court judgment if the federal claim

succeeds only to the extent that the state court

wrongly decided the issues before it. Where

federal relief can only be predicated upon a

conviction that the state court was wrong, it is

difficult to conceive the federal proceeding as,

in substance, anything other than a prohibited

appeal of the state-court judgment.

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall,

J., concurring). Thus, we have found claims inextricably

intertwined where “‘the relief requested in the federal action

would effectively reverse the state court decision or void its
12 COOPER V. RAMOS

ruling.’” Fontana Empire Ctr., LLC v. City of Fontana,

307 F.3d 987, 992 (9th Cir. 2002) (quoting Charchenko v.

City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)).

With these principles in mind, we now consider whether

Rooker-Feldman bars Cooper’s federal claims.

A. Claim One – Challenge to state court decision on

§ 1405 motion

Cooper’s first claim is a pure horizontal appeal of the

state court’s decision. Cooper’s complaint fundamentally

mischaracterizes the state court’s holding, attempting to cast

the claim as an attack on the state court’s statutory

construction of § 1405. A review of Cooper’s grievances

makes clear, however, that his complaint in actuality

challenges the fact-specific determination in his case. 

The first claim states:

[B]y finding that allegations of tampering

“cannot serve as a basis for satisfying the

specific statutory requirements” of § 1405,

and by holding that the potential to identify

the minor contributor(s) to the DNA samples

is of no “practical significance” and cannot

satisfy the condition of § 1405(f)(6)(B), the

Superior Court of the State of California has

made it impossible for Plaintiff to utilize

§ 1405 to prove that he was framed. This

interpretation deprives Plaintiff of his liberty

and property interests in § 1405 without due

process of law.
COOPER V. RAMOS 13

The state court, however, did not render a categorical holding

that tampering allegations can never serve as a basis for

§ 1405 relief. Cooper’s complaint omits crucial parts of the

quoted decision. After carefully addressing Cooper’s

allegations of tampering the Superior Court held:

Defendant has not produced any evidence to

support his unspecified tampering theory.

Mere speculation that evidence tampering has

occurred is not a sufficient basis for good

cause discovery. It also cannot serve as the

basis for satisfying the specific statutory

requirements for post-conviction DNA

testing.

The Superior Court firmly rested its decision on the

inadequacy of Cooper’s evidence. In his § 1983 suit, Cooper

“essentially invite[s] [a] federal court[] of first instance to

review and reverse [his] unfavorable state-court judgment[].”

Exxon Mobil, 544 U.S. at 283. This invitation is laid bare by

other allegations in the first claim. Cooper alleges that he

“met all of the factors enumerated in § 1405,” and he requests

relief that includes “[a] declaratory judgment that [he] is

entitled to access and to perform DNA testing on the evidence

requested in his 2010 § 1405 motion.”

Perhaps realizing that the Rooker-Feldman doctrine

squarely bars the review he seeks, Cooper tries in briefing

before this court to recast his complaint as a general

constitutional attack on the DNA testing statute. He argues

that he is not attacking the specific interpretation that the

Superior Court applied to his case, but rather that “Section

1405, as written by the California legislature and as

interpreted by the California courts, constitutes an
14 COOPER V. RAMOS

 Specifically, Skinner argued that the state courts had “construed the 1

statute to completely foreclose any prisoner who could have sought DNA

testing prior to trial, but did not, from seeking testing postconviction.” Id.

at 1296 (internal quotation marks and alterations omitted; emphasis

added).

unconstitutional denial of due process.” Cooper relies

heavily on Skinner v. Switzer to support his position.

The facts of Skinner bear some resemblance to Cooper’s

case. Skinner was convicted of murder and failed to obtain

state or federal postconviction relief. He moved for DNA

testing under a Texas statute allowing prisoners to obtain

such testing in limited circumstances. The Texas courts

denied his motions, finding no reasonable probability that

Skinner would not have been convicted if DNA tests were

exculpatory and finding fault on Skinner’s part in not

requesting the testing earlier. Skinner then brought a § 1983

action against the District Attorney seeking an injunction

entitling him to the testing he sought. Skinner, 131 S. Ct. at

1295. The Supreme Court rejected the argument that RookerFeldman barred Skinner’s suit. The Court’s reasoning hinged

on the fact that Skinner did “not challenge the prosecutor’s

conduct or the decisions reached by the [state court],” but

rather “challenge[d], as denying him procedural due process,

Texas’ postconviction DNA statute ‘as construed’ by the

Texas courts.” Id. at 1296. In essence, Skinner’s § 1983 suit 1

launched a general challenge to the adequacy of the state-law

process available to him.

Cooper urges us to read Skinner as “approv[ing] the exact

type of claim at issue here.” Cooper’s first claim, however,

differs in several critical respects from Skinner’s suit.

Throughout his complaint, Cooper explicitly attacks both the
COOPER V. RAMOS 15

prosecutor’s conduct in his specific case and the state court’s

application in his specific case of the statutory factors

governing entitlement to DNA testing. Cooper alleges at

length that Ramos and Myers withheld exculpatory

information during his trial and that the prosecution planted

and tampered with evidence. Cooper alleges that the District

Attorney conspired with the state criminalist to deny him

access to testing under § 1405, specifically “[b]y knowingly

and/or intentionally submitting materially misleading and

factually erroneous information to the Superior Court.”

Cooper accordingly maintains that the Superior Court erred

in rejecting these allegations of tampering. As set forth

above, the complaint asserts that, contrary to the state court’s

own assessment of the § 1405 factors, Cooper meets each of

the eight requirements. In alleging that the Superior Court’s

findings have “made it impossible for Plaintiff to utilize

§ 1405 to prove that he was framed,” the emphasis is on this

plaintiff. It simply cannot be said that, here, Cooper “does

not challenge the adverse [state court] decision[] [itself].”

Skinner, 131 S. Ct. at 1298. He attacks the Superior Court

judgment explicitly, and so encounters the Rooker-Feldman

obstacle that Skinner avoided.

In contrast to Skinner, where the prisoner asserted that the

Texas statute was constitutionally inadequate as to any

prisoner who failed to seek DNA testing before trial, Cooper

does not actually launch a broadside against the

constitutionality of § 1405. In Skinner, the Court made clear

that, unlike a state court decision, “a statute or rule governing

the decision may be challenged in a federal action.” Id. at

1298. But Cooper articulates no general challenge to the

statute. As the district court noted:
16 COOPER V. RAMOS

[T]he only argument regarding the

constitutionality of Section 1405 that even

arguablycould be gleaned from the Complaint

is that “Section 1405 violates due process by

foreclosing access to DNA testing for

convicted criminals who allege that they were

framed through planted DNA evidence.”

Although Cooper maintains that this contention contemplates

a general constitutional attack on the statute, nothing in the

text of § 1405 prevents victims of framing from obtaining

DNA testing, and the Superior Court’s decision eschewed any

categorical holding regarding the adequacy of tampering

allegations.

Notably, the state court declined to read the text of the

DNA testing statute—specifically, its requirement that a

defendant demonstrate that the evidence he seeks to test was

subject to a sufficient chain of custody, § 1405(f)(2)—to

categorically bar relief premised upon evidence tampering

claims. The government argued that it was a contradiction

for Cooper “to allege an unspecified tampering theory

relating to items of evidence that he is also contending meet

the necessary chain of custody requirement for purposes of

his post-conviction DNA testing motion.” The state court

found no incongruity and found that Cooper had met his

statutory burden on the requirement: Cooper’s “allegations of

tampering do not preclude [Cooper] from meeting his burden

under subdivision (f)(2).” In addition, as noted above, the

Superior Court denied Cooper’s § 1405 motion not because

a tampering theory was categorically insufficient for the

statutory requirements, but because Cooper “ha[d] not

produced any evidence to support his unspecified tampering

theory.” No California court has interpreted § 1405 as
COOPER V. RAMOS 17

 In addition to challenging the Superior Court’s application of § 1405, 2

Cooper’s first claim alleges that Myers and Ramos violated procedural

due process by “intentionally submitt[ing] materially misleading and

factually erroneous information” to the Superior Court during the § 1405

binding the Superior Court to preclude relief based on

tampering. Cf. Skinner, 131 S. Ct. at 1297 (characterizing

Skinner’s complaint as “assailing the Texas statute as

authoritatively construed [by Texas courts]”).

Because Cooper in fact challenges the particular outcome

in his state case, “[i]t is immaterial that [Cooper] frames his

federal complaint as a constitutional challenge to the state

court[’s] decision[], rather than as a direct appeal of th[at]

decision[].” Bianchi, 334 F.3d at 900 n.4. Cooper “both

asserts as [his] injury legal error or errors by the state court

and seeks as [his] remedy relief from the state court

judgment.” Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140

(9th Cir. 2004). The Rooker-Feldman doctrine therefore bars

the claim. Having established that the essence of Cooper’s

first claim is “at least in part a forbidden de facto appeal of a

state court judgment,” we next consider whether his

additional claims regarding the actions of Ramos, Myers, and

the other defendants are “‘inextricably intertwined’ with an

issue resolved by the state court judicial decision from which

the forbidden de facto appeal is taken.” Noel, 341 F.3d at

1165.

B. Claim Two – Conspiracy to deny due process in

§ 1405 proceeding

Cooper’s second claim for relief—that Ramos and Myers

conspired to deny him a fair § 1405 proceeding in violation

of procedural due process—is a variation on his first claim.2
18 COOPER V. RAMOS

proceedings. This allegation overlaps with Claim Two, discussed in this

section, and we dispose of it on the same grounds we articulate with

regard to Claim Two.

Cooper alleges that Ramos and Myers conspired “to prevent

him from obtaining DNA testing,” citing to the history of the

DNA testing in his case and his challenges to the validity of

the evidence the government presented to the Superior Court.

Specifically, Cooper faults Ramos for “obtain[ing] an expert

declaration from Defendant Myers . . . and rel[ying] heavily

on the Myers declaration in opposing Plaintiff’s motion]” and

alleges that “the declaration contained statements that were

either false or misleading.” He claims this conduct denied

him “a fair § 1405 procedure.” Of course, the Superior

Court’s decision to deny § 1405 testing was directly tied to its

decision to credit Myers’s declaration and its determination

that there was no evidence of tampering with or planting

evidence. The Superior Court dismissed the claims as

“unsupported speculation,” “vague and unsubstantiated” and

with “no merit.”

Cooper’s present attempt to hold Ramos and Myers liable

for conspiracy in the state court proceeding that he lost is a

claim “inextricably intertwined” with the Superior Court’s

order denying his request for DNA testing. Cooper’s prayer

for relief in the form of monetary and punitive damages,

although distinct from his prayer for a declaratory judgment

that he is entitled to DNA testing, is contingent upon a

finding that the state court decision was in error. The alleged

conspiracy is a fig leaf for taking aim at the state court’s own

alleged errors. It is precisely this sort of horizontal review of

state court decisions that the Rooker-Feldman doctrine bars.

Because the second claim “succeeds only to the extent that

the state court wrongly decided the issues before it” and
COOPER V. RAMOS 19

“federal relief can only be predicated upon a conviction that

the state court was wrong,” Pennzoil Co., 481 U.S. at 25

(Marshall, J., concurring), Cooper cannot escape the reality

that his second claim is inextricably intertwined with the state

court decision, no matter what label he puts on it. Federal

adjudication of this claim would impermissibly “undercut the

state ruling” on the same issues. Bianchi, 334 F.3d at 898.

C. Claim Three – Conspiracy to deny fair

investigation and conviction

Cooper’s third and final claim expands on the second

claim to allege a broad conspiracy among all the defendants

not only during the § 1405 proceeding but also during the

murder investigation and at trial. Cooper alleges that Myers,

Ramos, and a host of other public officials conspired to

tamper with and falsify evidence in violation of his

substantive due process to “a fair and unadulterated

investigation and conviction.”

To the extent the claim encompasses a challenge to Myers

and Ramos’s conduct during § 1405 proceedings, the

challenge is “inextricably intertwined” with the de facto

appeal of the state court judgment for the same reasons set

forth above. A review of the broader allegations of

conspiracy shows that they, too, are “inextricably

intertwined” and therefore barred.

Cooper bases his § 1983 conspiracy claim on allegations

that the state court considered in denying further DNA

testing, namely, that the defendants manipulated the crime

scene; destroyed blood-splattered coveralls belonging to a

different potential suspect and withheld evidence of a bloodstained shirt; planted incriminating shoeprints, a hatchet
20 COOPER V. RAMOS

 In reaching these conclusions, the Superior Court drew on evidentiary 3

determinations made in the multiple previous post-conviction state and

federal proceedings that Cooper has initiated. For example, the court

incorporated by reference the facts set forth in People v. Cooper, 53 Cal.

3d 771, 795–802 (Cal. 1991) (appeal of conviction and death sentence),

and in Cooper v. Brown, 510 F.3d 870, 874–76, 887–1004 (9th Cir. 2007)

(appeals court decision on successive federal habeas petition with

appendix setting forth district court decision).

sheath, a button, and cigarettes; and manipulated the

testimony of the surviving victim. In the § 1405 proceeding,

the Superior Court found that similar and, in some instances,

identical allegations were insufficient to establish Cooper’s

entitlement to further DNA testing. From expressly

3

characterizing as “unsupported speculation” Cooper’s theory

that law enforcement planted his blood on evidence to finding

that Cooper made “no showing of bad faith” with regard to

the alleged withholding ofthe shirt, the state court considered

these issues as part and parcel of the § 1405 application. The

state court accepted previous state court findings regarding

the evidence of the shoeprints, the hatchet sheath, and the

cigarettes. Finally, the state court dismissed Cooper’s claims

that statements made by the eight-year-old surviving victim

raised any probability that Cooper would have enjoyed a

more favorable outcome at trial with the benefit of the

requested DNA testing. In general, the state court found that

Cooper had “not produced any evidence” to support his

theory regarding tampering with the evidence against him.

Cooper can only establish his § 1983 conspiracy by

proving an agreement to engage in tampering of evidence,

whereas the Superior Court already determined that Cooper’s

allegations of tampering were speculative and unsupported.

To credit Cooper’s third claim is just another way of

declaring that “the state court wrongly decided the issues
COOPER V. RAMOS 21

before it.” Pennzoil Co., 481 U.S. at 25 (Marshall, J.,

concurring). Accordingly, Cooper’s third claim is

inextricably intertwined with the merits of the state court’s

decision and is effectively “a prohibited appeal of the statecourt judgment.” Id.

III. DISMISSAL WITHOUT LEAVE TO AMEND

Cooper’s final argument is that the district court erred in

dismissing his complaint without leave to amend. Dismissal

of a complaint without leave to amend is proper where it is

clear that the complaint could not be saved by amendment.

Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,

368 F.3d 1053, 1061 (9th Cir. 2004). Cooper offers two

bases for amendment, each of which is futile.

A. Amendment to focus on actions of adverse parties

Cooper proposes to amend his complaint to focus on the

actions of Myers, Ramos, and the other public officials, rather

than the state court’s decision. He argues that,

notwithstanding certain allegations assailing the reasoning

and result of the state court,“it is indisputable that the crux of

this case involves defendants’ actions in the conspiracy . . .

not the correctness of the Superior Court’s holding.” In

support, Cooper asserts the following: he sued the individual

defendants, not the court; he seeks relief based on the alleged

conspiracy that resulted in the state court decision, not based

on the state court decision itself; and throughout the district

court proceedings on the motion to dismiss, Cooper

represented that he was not challenging the state court’s

decision. Cooper argues that he can cure any RookerFeldman problems by simply removing his claim for

declaratory relief and “gently editing” the paragraphs of the
22 COOPER V. RAMOS

complaint that refer to his satisfying the § 1405 factors and to

the Superior Court’s unconstitutional interpretation of the

statute. Absent these allegations, he posits that there would

no longer be a forbidden de facto appeal of the state court

judgment to serve as a hook for barring claims that are

“inextricably intertwined.” See Noel, 341 F.3d at 1166

(noting that “[b]ecause [plaintiff] has not brought a forbidden

de facto appeal from any of the earlier state court judgments,

the ‘inextricably intertwined’ analysis . . . does not apply”).

Nonetheless, even if Cooper’s suggested editorial flourishes

are credited and the first claim could be excised, his

remaining second and third claims each confront

insurmountable obstacles.

Collateral estoppel, commonly known as issue preclusion,

provides an independent bar to Cooper’s second claim.

Under California law, which is applicable here, the following

requirements must be met for collateral estoppel to apply:

First, the issue sought to be precluded from

relitigation must be identical to that decided in

a former proceeding. Second, this issue must

have been actually litigated in the former

proceeding. Third, it must have been

necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding

must be final and on the merits. Finally, the

party against whom preclusion is sought must

be the same as, or in privity with, the party to

the former proceeding.

In re Cantrell, 329 F.3d 1119, 1123 (9th Cir. 2003) (internal

citation omitted). In his second claim, Cooper accuses Myers

of misleading the court and submitting a false declaration,
COOPER V. RAMOS 23

and accuses Ramos of opposing Cooper’s § 1405 motion in

reliance on a declaration he knew was mistaken. Cooper

maintained that further testing using a MiniFiler kit would

reasonably contradict prior test results for which Myers

vouched. The state court squarely rejected that very

argument and, relying on the Myers declaration, found that

“there is no practical significance to additional nuclear DNA

testing with the MiniFiler kit.”

Under issue preclusion rules, these same factual

allegations now presented in federal court cannot be credited.

Because Cooper already litigated and lost this precise claim

in state court, the first and second prongs of the collateral

estoppel test are met. As Cooper admits, the state court

decision adopted “verbatim much of the language in

Defendant Myers’s declaration,” thus rejecting Cooper’s

allegations that the declaration was false. The state court

“necessarily decided” these issues—the third prong—not only

because it was explicit in doing so, but also because Myers’s

explanation of previous test results and likely outcomes from

further test results was central to the state court’s denial of

Cooper’s § 1405 motion. Cooper does not contest either of

the final two prongs of California’s collateral estoppel

requirements: that the decision in the former proceeding was

final and on the merits, and that the parties are in privity.

Further, “preservation of the integrity of the judicial system,

promotion of judicial economy, and protection of litigants

from harassment by vexatious litigation” are public policies

warranting preclusion of relitigation of the issues here.

Lucido v. Superior Court, 51 Cal. 3d 335, 343 (Cal. 1990).

Accordingly, Cooper’s second claim is collaterally estopped.

Cooper’s third claim, alleging not only false testimony

during the § 1405 proceeding, but also a broad conspiracy to
24 COOPER V. RAMOS

 Cooper does not contest this conclusion. The defendants argued on 4

appeal that Heck barred the conspiracy claim against all the defendants

(Claim Three), and Cooper’s only response was that Heck posed no

obstacle to his purported challenge to the constitutionality of § 1405.

obtain Cooper’s conviction and keep him incarcerated, is

precluded by Heck v. Humphrey, 512 U.S. 477 (1994). The

heart of the third claim is an effort to attack the integrity of

the investigation and trial. Successfully litigating Cooper’s

claims of an evidence tampering conspiracy would

necessarily implicate the validity of his state criminal

conviction. These claims are not cognizable unless Cooper’s

conviction is vacated, overturned, or invalidated. Heck,

512 U.S. at 486–87; see also Guerrero v. Gates, 442 F.3d

697, 705 (9th Cir. 2006) (holding a § 1983 conspiracy claim

in connection with a plaintiff’s arrest and prosecution barred

by Heck). We also note that many of Cooper’s multiple 4

allegations of tampering with evidence are barred by

collateral estoppel under the same rationale as to his second

claim. Thus Cooper’s effort to amend the third claim would

be futile also.

B. Amendment to challenge construction of § 1405

Finally, Cooper asks that “[t]o the extent it is unclear that

[he] is attacking Section 1405 as construed by the California

courts and not a specific Superior Court decision, [he] should

be granted leave to amend his complaint to clarify this point.”

The Superior Court made a fact-specific determination based

on Cooper’s own case and did not rely on a “rule governing

the decision [that] may be challenged in a federal action.”

Skinner, 131 S. Ct. at 1298. The “construction” of the statute

that Cooper seeks to contest is in actuality only the factspecific application of the statute to his own case, and he has
COOPER V. RAMOS 25

not cited any controlling state law that he contends is

unsound. Amendment is futile on this point as well.

Because amendment will not save any of Cooper’s

claims, the district court did not err in implicitly denying

Cooper leave to amend.

AFFIRMED.