FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS LEE MORRISON,

Plaintiff-Appellant,

v.

MARK PETERSON,

Defendant-Appellee,

THE ATTORNEY GENERAL OF THE

STATE OF CALIFORNIA,

Intervenor.

No. 13-15675

D.C. No.

5:11-cv-01896-

LHK

OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted

November 16, 2015—San Francisco, California

Filed December 15, 2015

Before: DIARMUID F. O’SCANNLAIN and MILAN D.

SMITH, JR., Circuit Judges, and BRIAN M. MORRIS,*

District Judge.

Opinion by Judge Milan D. Smith, Jr.

* The Honorable Brian M. Morris, District Judge for the U.S. District

Court for the District of Montana, sitting by designation.
2 MORRISON V. PETERSON

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s dismissal on the

merits of an action brought by a California state prisoner

challenging the constitutionality of California Penal Code

§ 1405, which provides a mechanism for those convicted of

crimes to obtain DNA testing of evidence where such testing

is potentially relevant to proving innocence.

The panel first rejected plaintiff’s contention that the

promise held out by § 1405 is illusory, noting that the

available judicial decisions and statistics did not suggest that

§ 1405 in practice bars access to postconviction DNA testing.

The panel next addressed plaintiff’s facial challenge to

section 1405(f)(5), which requires a movant to demonstrate

that the requested DNA testing results would raise a

reasonable probability, that in light of all the evidence, the

verdict or sentence would have been more favorable if the

results of DNA testing had been available at the time of the

conviction. The panel held that plaintiff did not show that

§ 1405’s “reasonable probability” requirement violated any

recognized principle of fundamental fairness or went beyond

what the Supreme Court approved in District Attorney’s

Office for Third Judicial District v. Osborne, 557 U.S. 52

(2009). The panel further held that the chain of custody

requirement in § 1405(f)(2) did not transgress any recognized

principle of fundamental fairness in operation.

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

been prepared by court staff for the convenience of the reader.
MORRISON V. PETERSON 3

The panel held that even though a portion of plaintiff’s

challenge to the statute was “as applied,” the challenge was

not barred by the Rooker-Feldman doctrine because plaintiff

sought to invalidate the DNA testing statute on federal

constitutional grounds. Addressing the “as applied”

challenge, the panel held that a review of a § 1405 petition by

a judge other than the trial judge does not violate due process.

COUNSEL

Joshua S. Lipshutz (argued), Gibson Dunn & Crutcher, San

Franciso, California, for Plaintiff-Appellant.

Christopher B. Whitman (argued), Deputy County Counsel,

Sharon L. Anderson, County Counsel, County of Contra

Costa, Martinez, California, for Defendant-Appellee.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Jeffrey M. Laurence, Acting

Senior Assistant Attorney General, Gregory A. Ott and

Michael Chamberlain, Deputy Attorneys General, State of

California, San Francisco, California, for Intervenor.

OPINION

M. SMITH, Circuit Judge:

Prisoner Curtis Lee Morrison made two unsuccessful

motions in California State court for post-conviction DNA

testing under California Penal Code § 1405. He then brought

this action, seeking relief under 42 U.S.C. § 1983. The district

court dismissed the action on the merits.
4 MORRISON V. PETERSON

On appeal, the court appointed pro bono counsel, who

provided valuable assistance to Morrison and the court.

Morrison pursues a facial challenge to two provisions of the

statute, and an as-applied challenge to a third. We reject those

challenges, and affirm the decision of the district court.

FACTS AND PRIOR PROCEEDINGS

I. Morrison’s Conviction for Murder and Subsequent

Habeas Litigation

We previously summarized the facts of Morrison’s

underlying conviction as follows:

On April 21, 1973, Morrison and his

nephew were driving on Highway Four in a

pickup truck when the drive shaft of the truck

broke and the vehicle coasted to a stop. While

his nephew left to get help, Morrison tried to

remove the truck’s U-bolts in preparation for

installing a new drive shaft. Martinez Police

Officer Thomas Tarantino stopped by the side

of the highway to see if Morrison needed

help.

Several witnesses testified as to what

happened after Officer Tarantino stopped to

help Morrison. After an initial conversation,

Officer Tarantino frisked Morrison. The two

men were next seen wrestling on the ground,

after which Morrison threw Officer Tarantino

onto the highway. Sylvia Young testified that

she saw Morrison holding what appeared to

be a police service revolver. Cheryl Balsdon
MORRISON V. PETERSON 5

testified that Morrison [waved] a gun in the

air and pointed it at the officer’s head.

William Boydston saw the officer and

Morrison struggling, heard three shots, and

saw the officer fall. This witness saw the

officer stand and further struggle with

Morrison until the officer fell again. Boydston

heard one more shot.

Officer Tarantino died at the hospital from

gunshot wounds to his head and stomach. The

officer’s revolver was found on a hillside at

the scene. The revolver contained two unfired

bullets and four cartridge cases.

Morrison’s driver’s license was found in

the officer’s uniform shirt pocket, and

Morrison’s .22 caliber gun was found in the

officer’s right front pants pocket. Officer

Tarantino had a habit of putting the license of

a person in custody in his shirt pocket and of

putting any evidence taken by him in his right

front pants pocket. Morrison was an ex-felon

on parole.

Morrison v. Estelle, 981 F.2d 425, 426–27 (9th Cir. 1992).

At his trial, Morrison testified to a different version of the

facts: that a few seconds after Officer Tarantino arrived, and

while Morrison was under his truck, two men arrived on a

motorcycle. They asked for directions to Pittsburg, and both

Morrison and the officer gave them directions. The two men

then started arguing with each other, and the officer asked

one of them to come over to the truck. There was a scuffle,
6 MORRISON V. PETERSON

and a few seconds later, shots were fired. Morrison had

started to come out from under the truck, but scooted back

underneath when he heard gunfire. After the two men left,

Morrison tried to help the officer, and less than a minute later,

another officer arrived and arrested Morrison.

The jury rejected Morrison’s account, and convicted him

of first-degree murder and related offenses. The California

Court of Appeal affirmed. Morrison, 981 F.2d at 427. The

California Supreme Court denied Morrison’s state habeas

petition. Id. The federal district court denied Morrison’s

federal habeas petition. Id. Our court affirmed that denial. Id.

at 429. We denied Morrison’s application to file a second or

successive habeas corpus petition.

II. Morrison’s State California Penal Code § 1405

Litigation

California Penal Code § 1405 provides a mechanism for

those convicted of crimes to obtain DNA testing of evidence

where such testing is potentially relevant to proving

innocence. In 2006, Morrison successfully requested that

counsel be appointed to prepare a motion seeking DNA

testing pursuant to § 1405. The parties briefed the motion,

and the judge read the entire transcript of the trial and heard

oral argument. Morrison requested DNA testing of (1) the

blood on Officer Tarantino’s pants and shoes, (2) the swabs

of the handgun taken from Officer Tarantino’s pocket, (3) the

materials collected from the surface of Officer Tarantino’s

gun, and (4) the knit hat recovered from the scene. At the

hearing, Morrison’s counsel also requested testing of the tape

on the handgun taken from Officer Tarantino’s pocket.
MORRISON V. PETERSON 7

The court concluded that any test results would not raise

a reasonable probability of a more favorable verdict because

Morrison’s story was at odds with every eyewitness account,

inconsistent with the physical evidence, and did not “make

any sense.” Morrison, again represented by counsel,

petitioned for a writ of mandate directing the court to grant

the motion for testing, which the California Court of Appeal

denied after full briefing.

In 2010, Morrison filed a second § 1405 motion, this time

pro se. The court denied the motion, holding that Morrison

failed to show that the evidence was material to the

identification of the perpetrator. Morrison filed another writ

petition, which the California Court of Appeal denied.

III. Morrison’s Federal Challenge to § 1405

In 2011, Morrison filed this case, seeking relief under

42 U.S.C. § 1983. The district court dismissed the action on

the merits based on District Attorney’s Office for Third

Judicial District v. Osborne, 557 U.S. 52 (2009). The district

court held that Morrison’s facial challenge to the statute

failed because “California providesmore generous procedural

protections than the Alaska scheme that was found to satisfy

due process in Osborne.”

Further, as to Morrison’s challenge to the statute “as

applied to this plaintiff and or construed in this case by the

California Courts” “because no where in Section 1405 does

it take into account eye witness testimony that is contradicted

by physical evidence and undisputed documents,” the district

court held that under Skinner v. Switzer, 562 U.S. 521 (2011),

such claims for review of state court rulings cannot be

brought in a federal civil rights action.
8 MORRISON V. PETERSON

This appeal followed. Next, we appointed pro bono

counsel for Morrison. We also granted the State of

California’s opposed motion to intervene. Morrison asks the

court to reverse the dismissal and grant his motion for

summary judgment, or at least remand for discovery on how

§ 1405 operates in practice. This court has previously rejected

three challenges to § 1405 in unpublished decisions: Turner

v. Dumanis, 415 F. App’x 831, 832 (9th Cir. 2011), Jackson

v. Cooley, 348 F. App’x 245 (9th Cir. 2009), and Harrison v.

Dumanis, 343 F. App’x 218 (9th Cir. 2009). However, no

published Ninth Circuit cases have done so.

STANDARD OF REVIEW

The dismissal of a complaint for failure to state a claim is

reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434,

436–37 (9th Cir. 1995). The denial of a motion for summary

judgment is also reviewed de novo. Lopez-Valenzuela v.

Arpaio, 770 F.3d 772, 777 (9th Cir. 2014).

DISCUSSION

I. Morrison’s Facial Challenges to § 1405’s “Reasonable

Probability” and Chain of Custody Requirements

A. Legal Standard for Facial Challenges

“A facial challenge to a legislative Act is, of course, the

most difficult challenge to mount successfully, since the

challenger must establish that no set of circumstances exists

under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987). While a challenger must

therefore show that a “law is unconstitutional in all of its

applications,” Washington State Grange v. Washington State
MORRISON V. PETERSON 9

Republican Party, 552 U.S. 442, 449 (2008), when assessing

whether a statute meets this standard, courts consider only

applications of the statute in which it actually authorizes or

prohibits conduct. City of Los Angeles v. Patel, 135 S. Ct.

2443, 2451 (2015).

B. The Nature of Morrison’s Liberty Interest and Its

Attendant Due Process Rights

To determine what process, if any, is due, a court must

consider the nature of a prisoner’s liberty interest in proving

innocence even after a fair trial resulted in a conviction.

Osborne, 557 U.S. at 67. California does not dispute that, as

in Osborne, Morrison has “a liberty interest in demonstrating

his innocence with new evidence under state law.” Id. That is

because California law provides a right to be released from

custody pursuant to a writ of habeas corpus when there is no

legal cause for imprisonment. Cal. Penal Code § 1485; In re

Weber, 523 P.2d 229, 243 (Cal. 1974).

That “state-created right can, in some circumstances,

beget yet other rights to procedures essential to the realization

of the parent right.” Osborne, 557 U.S. at 68 (quoting Conn.

Bd. of Pardons v. Dumschat, 452 U.S. 458, 463 (1981)).

However, “[a] criminal defendant proved guilty after a fair

trial does not have the same liberty interests as a free

man. . . . The State accordingly has more flexibility in

deciding what procedures are needed in the context of

postconviction relief.” Id. at 68–69. For those individuals

with that narrowed liberty interest, due process does not

“dictat[e] the exact form” of post-conviction assistance a

State must provide. Id. at 69 (quoting Pennsylvania v. Finley,

481 U.S. 551, 559 (1987)).
10 MORRISON V. PETERSON

In such circumstances, the question is whether the state’s

procedures “offend[] some principle of justice so rooted in

the traditions and conscience of our people as to be ranked as

fundamental,” or “transgress[] any recognized principle of

fundamental fairness in operation.” Id. (quoting Medina v.

California, 505 U.S. 437, 446, 448 (1992)). In sum, “[f]ederal

courts may upset a State’s postconviction relief procedures

only if they are fundamentally inadequate to vindicate the

substantive rights provided.” Id.

In Osborne, the Supreme Court rejected a challenge to

Alaska’s procedures allowing prisoners an opportunity to

vindicate their state right to post-conviction relief based on

DNA evidence. Alaska provided a “substantive right to be

released on a sufficiently compelling showing of new

evidence that establishes innocence.” Id. at 70. Alaska

caselaw established that persons seeking access to DNA

evidence must demonstrate that the evidence is newly

available, has been diligently pursued, and is sufficiently

material. Id. And while the Alaska state courts had not

conclusively answered the question, the Alaska Court of

Appeals suggested that under the Alaska Constitution, DNA

testing could be provided in an appropriate case even where

the applicant cannot satisfy the statutory requirements for

general post-conviction relief. Id.

Osborne rejected the argument that there was a

freestanding substantive due process right to DNA evidence

“untethered from the liberty interests [a claimant] hopes to

vindicate with it.” Id. at 72. And it found nothing inadequate

about the Alaska procedures, which provided “a substantive

right to be released on a sufficiently compelling showing of

new evidence that establishes innocence.” Id. at 70. Like

California’s § 1405, Alaska’s procedure required a showing
MORRISON V. PETERSON 11

of sufficient materiality. However, Alaska, unlike California,

also required the evidence to be “newly available” and have

been “diligently pursued.” Id.

“Osborne severely limits the federal action a state

prisoner may bring for DNA testing. Osborne rejected the

extension of substantive due process to this area, and left slim

room for the prisoner to show that the governing state law

denies him procedural due process.” Skinner, 562 U.S. at 525

(internal citations omitted).

C. Morrison’s Statistics Do Not Suggest a Problem

Before turning to the asserted doctrinal deficiencies in the

statute, Morrison attempts to demonstrate as a general factual

matter that the promise held out by § 1405 is illusory.

Morrison argues that § 1405’s requirements are so onerous as

to effectively leave access to post-conviction DNA evidence

to the discretion of prosecutors, since Morrison, conducting

an electronic docket search of the California Supreme Court,

California Courts of Appeal, and 14 of the 58 Superior Courts

in California, could locate only three cases granting a § 1405

motion since the statute was enacted in 2000: Jointer v.

Superior Court of Orange County, 217 Cal. App. 4th 759

(2013), In re Antilla, 176 Cal. App. 4th 622 (2009), and In re

Brown, No. E054403, 2011 WL 5320650 (Cal. Ct. App. Nov.

4, 2011).1

1

In re Brown, 2011 WL 5320650, is actually a court of appeal decision

appointing counsel pursuant to § 1405, not granting a motion for DNA

testing. Morrison may have intended to cite to Brown v. Superior Court,

No. B218037, 2010 WL 1633953 (Cal. Ct. App. Apr. 23, 2010), which

granted the petitioner’s writ of mandate to order DNA testing. Id. at *4.
12 MORRISON V. PETERSON

We are not persuaded by these statistics, which lack

context. The number three is meaningless as a numerator

unless we know the denominator, and none of the parties to

this appeal provide it, either for the courts searched by

Morrison, or otherwise.

Our independent research yielded eight cases concerning

or reflecting a decision on whether to grant post-conviction

DNA testing. This includes the three cases identified by

Morrison. Of the eight, DNA testing was finally denied only

in two: Richards v. Superior Court, No. E060568, 2014 WL

6705550 (Cal. Ct. App. Nov. 26, 2014), and Richardson v.

Superior Court, 183 P.3d 1199 (Cal. 2008). DNA testing was

granted in six: Jointer v. Superior Court, 217 Cal. App. 4th

759 (2013), Brown v. Superior Court, No. B218037, 2010

WL 1633953 (Cal. Ct. App. Apr. 23, 2010), In re Antilla,

176 Cal. App. 4th 622 (2009), Madden v. Superior Court, No.

B200652, 2008 WL 5178354 (Cal. Ct. App. Dec. 11, 2008),2

People v. Ceja, No. B195208, 2008 WL 82467 (Cal. Ct. App.

Jan. 9, 2008),3and Rose v. Hudson, 153 Cal. App. 4th 641

(2007).4 Thus, tallying the available judicial decisions does

not suggest that § 1405 in practice bars access to

postconviction DNA testing.

 

2

 Testing was granted as a due process right even though petitioner did

not meet the § 1405 procedural and notice requirements. Madden, 2008

WL 5178354, at *15.

3 Testing confirmed that defendant was the perpetrator in one assault,

after which the trial court denied testing as to three others. Ceja, 2008 WL

82467, at *1.

4 Testing exonerated the defendant. See generally Susan Rutberg,

Anatomy of a Miscarriage of Justice: The Wrongful Conviction of Peter

J. Rose, 37 Golden Gate U. L. Rev. 7 (2010).
MORRISON V. PETERSON 13

Similarly, Morrison argues that “the vast majority of

prisoners who have obtained access to evidence for

post-conviction DNA testing have done so with the consent

of the prosecutor, not through Section 1405.” To support this

claim, Morrison cites survey data regarding the methods used

by exonerees to obtain DNA testing reported in Brandon

Garrett, Convicting the Innocent: Exoneration,

http://www.law.virginia.edu/html/librarysite/garrett_exoner

ation.htm (last visited Nov. 18, 2015). However, the cited

data does not directly support Morrison’s argument for two

reasons. First, the data cited is nationwide, with no

designation of which cases were in California. Second, the

data does not discuss whether the DNA testing was in fact

obtained through a motion. Instead, it only states that

“prosecutors consented to DNA testing in 81 percent of cases

in which information was obtained on the subject (170 of 210

cases) and opposed it in 19 percent (40 of 210 cases), with no

information available in 40 cases.”

The source does not provide the data necessary to know,

even nationwide, what percentage of motions for testing are

successful. It certainly does not give rise to the inference that

there is a facial problem with California’s § 1405.

Morrison also cites data indicating that only 3.5% of the

311 total DNA-related exonerations nationwide have

occurred in California, while California has 8.5% of

the United States prison population. See Innocence

Project, The Cases: DNA Exoneree Profiles,

http://www.innocenceproject.org/cases-false-imprisonment

(last visited Nov. 18, 2015); U.S. Dep’t of Justice, Prisoners

in 2012 - Advance Counts, http://www.bjs.gov/content/pub/

pdf/p12ac.pdf (last visited Nov. 18, 2015). However, there

could be many reasons for that disparity other than the
14 MORRISON V. PETERSON

asserted illusory nature of § 1405, including more careful

than average work by the California prosecuting authorities

and courts in the first instance.

Finally, the State notes that a number of California district

attorneys proactively review convictions and offer DNA

testing without the need for a § 1405 motion. See James

Sterngold, San Diego District Attorney Offering Free DNA

Testing,N.Y.Times, http://www.nytimes.com/2000/07/28/us/

san-diego-district-attorney-offering-free-dna-testing.html,

Jul. 28, 2000 (“The San Diego County district attorney

has begun a policy of offering free DNA testing to

prison inmates who say they were wrongly convicted and

would be exonerated by this increasingly common scientific

method.”); Marisa Gerber, L.A. County D.A. To Create Unit

To Review Wrongful-Conviction Claims, L.A. Times,

http://www.latimes.com/local/lanow/la-me-ln-convictionreview-unit-20150422-story.html, Apr. 22, 2015 (citing

efforts by district attorneys in Yolo, Ventura, Santa Clara, and

Los Angeles counties). These efforts may have further

reduced the need to litigate § 1405 motions.

D. The “Reasonable Probability” Requirement Does

Not Violate Due Process

Section 1405(f)(5) requires the movant to demonstrate

that “[t]he requested DNA testing results would raise a

reasonable probability that, in light of all the evidence, the

convicted person’s verdict or sentence would have been more

favorable if the results of DNA testing had been available at
MORRISON V. PETERSON 15

the time of the conviction.”5 The California Supreme Court

has interpreted this requirement to mean that the movant must

demonstrate “a reasonable chance and not merely an abstract

possibility [ ] that the defendant would have obtained a more

favorable result.” Richardson, 183 P.3d at 1205. Richardson

also instructed trial courts to “bear in mind that the question

. . . is whether the defendant is entitled to develop potentially

exculpatory evidence and not whether he or she is entitled to

some form of ultimate relief such as the granting of a petition

for habeas corpus based on that evidence.” Id.

Because Morrison raises a facial challenge to

§ 1405(f)(5)’s reasonable probability requirement, he must

“establish that no set of circumstances exists under which the

Act would be valid.” Salerno, 481 U.S. at 745. This presents

a difficult hurdle for Morrison, because “[w]here there is

enough other incriminating evidence and an explanation for

the DNA result, science alone cannot prove a prisoner

innocent.” Osborne, 557 U.S. at 62 (citing House v. Bell,

547 U.S. 518, 540–48 (2006)). As we noted in denying

Morrison’s habeas appeal, multiple witnesses observed

Morrison commit the crime, and Morrison was apprehended

immediately at the scene. Morrison, 981 F.2d at 426–27.

More generally, Morrison argues that it is unfair that a

prisoner cannot make the reasonable probability showing

where “a substantial amount of other evidence,” Richardson,

183 P.3d at 1206, links the prisoner to the crime, because

“[b]y definition, every prisoner who is seeking access to

evidence for post-conviction DNA testing will have been

 

5

 Morrison’s challenge concerns the 2005 version of § 1405; a revised

version of the statute took effect in 2015. Unless otherwise indicated,

citations to § 1405 are to the prior version.
16 MORRISON V. PETERSON

found guilty on the basis of proof beyond a reasonable

doubt.” But far from announcing a standard higher than that

established by the statute, the California Supreme Court’s

mention of a “substantial amount of other evidence” was

merely a quotation of the trial court’s language, which “in

context, constitute[d] a finding that petitioner failed to

establish the reasonable probability requirement.”

Richardson, 183 P.3d at 1206. Thus, Richardson did not

substitute “a substantial amount of other evidence” for the

statutory “reasonable probability” test.6 And it does not

violate due process for a court to evaluate what potential

impact a negative DNA test could have.

Morrison also argues that § 1405(f)(5)’s “reasonable

probability” requirement is more stringent than the

requirements at issue in Osborne. There, the Alaska statute

required that new evidence be “material,” Alaska Stat.

§ 12.72.010(4) (2008), corresponding to § 1405(f)(4), and the

Alaska caselaw avenue required a “demonstrable doubt

concerning the defendant’s identification as the perpetrator,”

corresponding to § 1405(f)(3). Osborne, 557 U.S. at 65.

6 Morrison argues that the Legislature’s 2014 revision to the statute

addressing the “reasonable probability” standard highlights the infirmity

of the earlier version. The revision, effective January 1, 2015, added a

statement that “[i]n determining whether the convicted person is entitled

to develop potentially exculpatory evidence, the court shall not decide

whether, assuming a DNA test result favorable to the convicted person, he

or she is entitled to some form of ultimate relief.” Cal. Penal Code

§1405(g)(5) (2015). However, this merely codifies what Richardson

already held: that the question is “whether the defendant is entitled to

develop potentially exculpatory evidence and not whether he or she is

entitled to some form of ultimate relief.” 183 P.3d at 1205.
MORRISON V. PETERSON 17

Morrison argues that the additional “reasonable

probability” requirement of § 1405(f)(5) goes beyond what

the Supreme Court approved in Osborne. Not so. The Alaska

constitutional caselaw test required that “scientific testing

would likely be conclusive” on the issue of the defendant’s

identification as the perpetrator. Osborne, 557 U.S. at 65

(quoting Osborne v. State, 110 P.3d 986, 995 (Alaska Ct.

App. 2005)). This is more restrictive, not less restrictive, than

California’s “reasonable probability” requirement. And the

Alaska statutory pathwayrequired a showing of “sufficient[]”

materiality, id. at 70, which Morrison has not shown is

sufficiently distinct from California’s “reasonable

probability” requirement. Indeed, California courts are

required to “liberally apply the ‘reasonable probability’

standard to permit testing in questionable cases.” Jointer,

217 Cal. App. 4th at 769. Section 1405(f)(5) therefore fits

comfortably within the confines of Osborne.

In short, Morrison does not show that the “reasonable

probability” requirement violates “any recognized principle

of fundamental fairness.” Osborne, 557 U.S. at 69 (quoting

Medina, 505 U.S. at 448)).

E. The Chain of Custody Requirement Does Not

Violate Due Process

Morrison argues that “[i]t is unfair for Section 1405(f) to

place the burden of proof [to establish the chain of custody]

on the prisoner because the evidence necessary to meet that

burden is solely in the hands of the government and Section

1405 does not provide any means of discovery by which the

prisoner could potentially obtain that evidence.” Morrison

also argues that chain of custody issues traditionally go to

weight, rather than admissibility, but that § 1405(f) treats
18 MORRISON V. PETERSON

them as a threshold requirement, unlike the Alaska rules at

issue in Osborne.

Section 1405(f)(2) requires the court to find that “[t]he

evidence to be tested has been subject to a chain of custody

sufficient to establish it has not been substituted, tampered

with, replaced or altered in any material aspect.” While

Morrison argues that this unfairly placed the burden on him,

his § 1405 motion was not denied on chain of custody

grounds. The County notes that the prosecuting authority is

required by law to retain biological evidence in connection

with a criminal case. Cal. Penal Code § 1417.9(a). While

neither the County nor the State so argues, it is possible that

this itself could establish a prima facie showing of lack of

tampering.

Further, when a chain of custody is challenged in

California courts, the party offering the evidence need only

show that “taking all the circumstances into account . . . it is

reasonably certain that there was no alteration.” People v.

Catlin, 26 P.3d 357, 391 (Cal. 2001) (quoting People v. Diaz,

834 P.2d 1171, 1204 (Cal. 1992)). We previously observed

that “[n]o California court has interpreted § 1405 as binding

the Superior Court to preclude relief based on tampering,”

Cooper v. Ramos, 704 F.3d 772, 781 (9th Cir. 2012), and

Morrison does not identify any such cases.7 Accordingly, the

 

7 Morrison again points to the state legislature’s revision of the statute.

Here, the legislature added a requirement that upon request of the

convicted person, the court may order the prosecutor to make all

reasonable efforts to obtain documents relevant to the chain of custody.

Cal. Penal Code § 1405(c)(2) (2015). Again, this does not demonstrate

that the pre-amendment text mandated the denial of § 1405 motions based

on an unconstitutional catch-22 where the prisoner had to show something

that only the prosecutor would know.
MORRISON V. PETERSON 19

chain of custody requirement does not “transgress[] any

recognized principle of fundamental fairness in operation.”

Osborne, 557 U.S. 52, 69 (internal quotation marks omitted).

II. Morrison’s As-Applied Challenge

A. The Rooker–Feldman Doctrine Does Not Bar

Morrison’s As-Applied Challenge

Morrison argues that § 1405 is unconstitutional as applied

in those cases, like his, where a petitioner’s motion must be

adjudicated by a judge who did not preside over the

petitioner’s original trial. “The Rooker–Feldman doctrine

instructs that federal district courts are without jurisdiction to

hear direct appeals from the judgments of state courts”; such

review is only available in the United States Supreme Court.

Cooper, 704 F.3d at 777. “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.” Id. (quoting Noel v. Hall,

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

However, if a plaintiff presents an independent claim in

federal court, federal jurisdiction is not defeated by the fact

that the parties litigated the “same or a related question”

earlier in state court. Skinner, 562 U.S. at 522 (quoting Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

292–93 (2005)). Rooker–Feldman “is confined to cases of the

kind from which [the doctrine] acquired its name: cases

brought by state-court losers . . . inviting district court review

and rejection of [the state court’s] judgments.” Exxon,

544 U.S. at 284.
20 MORRISON V. PETERSON

Because Morrison does not seek an order that he be

allowed DNA testing, but instead seeks to invalidate the DNA

testing statute on federal constitutional grounds, his claim is

not barred by Rooker–Feldman. That is so even though this

portion of his challenge is “as applied.” In challenging the

application of the statute when a judge other than the trial

judge evaluates the § 1405 petition, Morrison merely argues

a defect that is not apparent from the face of the statute.

While review by someone other than the trial judge does not

occur in every case, it is a categorical issue not limited to the

particulars of Morrison’s situation. While that challenge

ultimately lacks merit, as discussed in the following section,

it is not barred by Rooker–Feldman.

B. Review of the § 1405 Petition by a Judge Other

than the Trial Judge Does Not Violate Due Process

Morrison argues that § 1405 is unconstitutional as applied

when a judge other than the judge who conducted the trial

rules on the motion. Section 1405(e) states that motions

“shall be heard by the judge who conducted the trial.” “[T]he

legislature required convicted persons to bring section 1405

motions before the judge who presided over their trials . . .

precisely because the trial judge is in the best position to

make the reasonable probability determination.” Richardson,

183 P.3d at 1207. However, the Richardson court also had no

trouble—as is necessary in every appeal, to a greater or lesser

extent depending on the standard of review—making its “own

assessment of the evidence.” Id.

Section 1405(e) also provides that the motion be assigned

to a new judge when the trial judge is unavailable. Morrison

contends that this renders the reasonable probability standard

“especially problematic because a newly assigned judge is in
MORRISON V. PETERSON 21

no position to weight the evidence from the trial against the

potentially exculpatory DNA evidence.”

This argument fails. The “problem” Morrison complains

of is present in every appeal and every habeas case. A

contrary rule would be impractical, as judges become

unavailable for a variety of reasons, and § 1405 motions can

be brought many years after a trial. Thus, assigning another

judge to rule on a § 1405 motion where the trial judge is

unavailable cannot “offend[] some principle of justice so

rooted in the traditions and conscience of our people as to be

ranked as fundamental,” or “transgress[] any recognized

principle of fundamental fairness in operation.” Osborne,

557 U.S. at 69 (quoting Medina, 505 U.S. at 446, 448).

CONCLUSION

The decision of the district court is affirmed. Each party

shall bear its own costs.

AFFIRMED.