F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C U R T I S L E E M O R

R I S ON , Plaintiff-Appellant
,

v

.

M A R K P E T E R S ON ,

Defendant-Appellee
,

T H E A T T O R

N E Y G E N E R A L O F T H E S T A T E O F C A L I F O R

N I A , Intervenor

. N o. 13-15675

D.C. No. 5:11-cv-01896- L H K

OPI NI ON

Appeal from the United States District Court for the Northern District of California Lu cy H. Koh, District J udg e, Presiding

Arg ued and Submitted November 16, 2015—San F rancisco, California

F iled December 15, 2015

B efore: DI

A RMUI D F

. O’SCANNL AI N and MI L AN D. SMI TH, J R., Circuit J udg es, and B RI AN M. MORRI S, *

District J udg e.

O pinion by

J udg e Milan D. Smith, J r.

* T h e H o n orab le B r i a n M. Mo rris, District J u d g e f o r th e U .S. District Co urt f o r th e District o f

Mo n tan a, sittin g b y

d esig n atio n

.M O R R I S O N V

. P E T E R S ON 2

SUMMARY * *

P risoner Civil Rights

The p anel affirmed the district court’s dismissal on the

m e rits o f an action b roug h t by a California state prisoner

c h a l leng ing the constitutionality o f California Penal Cod e § 1405, which provides a mechanism f o r t hose convicted o f crimes to obtain DNA testing o f evidence where such testing is potentially relevant to proving innocence.

The panel first rejected p laintiff’s contention that the promise h eld out by § 14 0 5 i s i l lusory
, noting that the available judicial decisions and statistics did not sug g est that § 1405 in practice b a

r s access to postconviction DNA testing

.
The p anel nex t addressed plaintiff’s facial challeng e to section 1405(f)(5), which r equires a movant to d e m o nstrate that the requested DNA testin g results would raise a reasonable probability
, that in lig ht of all the evi d e n ce , the verdict or sentence would have been more favorab le if the results of DNA testing had been av a i l a b l e at the time of the conviction. The panel held t hat plaintiff did not show that § 1405’s “reasonable p robability ” requir e m ent violated any recogniz ed principle of fundamental fairness or went bey ond wh at the Supreme Court approved in District Attorney’s Office for Third Judicial D istrict v. O s b o r ne , 557 U.S. 52 ( 2 0 0 9). The panel further held that the chain o f custo d y requirement in § 1405(f)(2) did not transg ress any recogniz ed principle of fundamental fairness in operation.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.M O R R I S O N V

. P E T E R S ON 3

The panel held that even thoug h a p ortion o f plaintiff’s challeng e to t he statute w as “ a s applied,” the challeng e was not barred by the Rooker-Feldman doctrine because p laintiff soug h t to invalidate t h e D NA testing statute on federal constitutional g rounds. Addressing the “as applied” challeng e, the panel held that a review of a § 1405 petition b y
a judg e other than the trial judg e does not violate due process.

COUNSEL

J oshua S. L ipshutz (arg

ued), Gibson Dunn & Crutcher, San F ranciso, California, for Plaintiff-Appellant.

Christopher B

. W hitman (arg ue d )
, Deputy County Counsel, Sharon L

. Anderson, County Counsel, C o u n t y of Contra Costa, Martinez , California, for Defendant-Appellee.

Kamala D. Harris, Attorney G eneral, Gerald A. Eng ler, Chief Assistant Attorney General, J effrey M. L aurence, Actin g Senior Assistant Attorney G e n e ral, Greg ory A. Ott a nd Michael C h a m b erlain, Deputy Attorney s General, State o f California, San F rancisco, California, for I ntervenor.

OP INION

M. SMI TH, Circuit J udg e :

Prisoner Curtis L ee Morrison made two unsuccessful motions i n California State court for post-conviction DNA testing under California Penal Code § 1405. He then broug ht this action, seeking relief under 42 U.S.C. § 1983. The district court dismissed the action on the merits.M O R R I S O N V

. P E T E R S ON 4

On appeal, the court a p p o i n ted pro bono counsel, w ho provided val u a b l e assistance to Morrison and the court. Morrison pursues a facial challeng e to two provisions of the statute, a nd an as-applied challeng e to a third. We reject those challeng es, and affirm the decision of the district court.

F ACTS AND P RIOR P ROCEEDING S

I. Morrison’s Conviction f or M urder and Subsequent Habeas Litigation

W e previously summariz ed the facts of Morrison’s underlying conviction as follows:

On April 21, 1973, Morrison a n d his

ne p h e w were driving o n Hig hway F our in a pickup truck w hen the d

rive shaft of the truck broke and the vehicle coasted to a stop. W hile h i s nephew left to g et help, Morrison tried t o
remove the truck’s U-bolts in preparation for installing a new drive shaft. Martine z Police Officer Thomas Tarantino stopped by the side of the h i gh w ay to see if Morrison needed help.

Several w itnesses testifie d as to w hat happened after Officer Tarantino st o pped to help Morrison. After an initial c o nversation, Officer Tarantino f

risked Morrison. The two

men were nex t seen w restling on the gr ound, after which Morrison threw Officer Tarantino onto the h ig hway

. Sy lvia Young testified that she saw Morrison holding what appeared to be a police service revolver. Ch e r y l B alsdonM O R R I S O N V

. P E T E R S ON 5

testified that Morris o n [ waved] a g un in the air and pointed it at the officer ’ s head. W illiam B oy dston saw the officer a nd Morrison strug g ling
, h eard three shots, a nd

saw the officer fall. This witness saw the officer stand a

nd further strug g le with Morrison until the officer fell ag ain. B oy dston heard one more shot.

Officer Tarantino died at the hospital f rom g unshot wounds to his head and stomach. The officer’s revolver was found o n a hil lside at the scene. The revolver contained two unfired bullets and four cartridg e cases.

Morrison’s driver’s li c e nse was found in the officer’s uniform shirt pocket, a nd Morrison’s .22 caliber g un was f o u n d in the officer’s rig ht fr o nt pants pocket. Officer Tarantino had a habit of p utting the license o f

a p erson in custody in his shirt pocket and o f putting any evidence taken by him in his rig ht 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 d ifferent version of the facts: that a f

ew seconds after O fficer Tarantino arrived, a nd while Morrison w a s u n d e r his truck, two men arrived on a motorcy cle. They

asked f or directions to Pittsburg
, and both Morrison and the o fficer g av e them directions. The two men t h e n started arguing with each other, and the officer asked

o n e o f them to come over to the truck. There was a scuff l e,M O R R I S O N V

. P E T E R S ON 6

and a f e w seconds later, shots were fired. Morrison h ad

s t a r t e d to come o u t from under the truck, but scooted ba c k underneath w hen he hea r d 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-deg r ee murder and related offenses. The California Court o f Appeal affirmed. M o r r i s o n , 9 81 F .2d at 4 27. The California Supreme Court denied Morrison’s state hab e a s petition. I

d

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

. Our court affirmed that d enial. Id

. at 429. W e denied Morrison’s application to file a second o r successive habeas corpus petition.

II. Morrison’s State Ca l i f o rnia P enal Code § 1405 Litigation

California Penal Code § 1405 provides a mechanism for those convicted of crimes to o btain DNA testing of evidence where such testing i s potentially relevant to proving innocence. I n 2006, Morrison successfully requested that

cou n s e l b e appointed to prepare a motion seeking DNA testing pursuant to § 1405. T h e parties briefed the motion, and the judg e read the entire transcript of the trial and heard oral a r gu m ent. Morrison requested DNA testing of (1) the blood on Officer T a r a n t i no’s pants and shoes, (2) the swabs of the handg un taken from Officer Tarantino’s pocket, ( 3) the materials co l l ected from the surface of Officer Tarantino’s g un, and (4) the knit hat r e c o v ered from the scene. A t the hearing
, Morrison’s counsel a lso requested testing of the tape on the handgun taken from Officer Tarantino’s pocket.M O R R I S O N V

. P E T E R S ON 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 ey ewitness account, i nconsistent with the phy sical evidence, and did not “ m a k e any sense.” Morrison, ag ain represented b y c o u n sel, petitioned for a writ o f m a ndate directing the court to g rant the motion f

or testing
, which the California Court of Appeal denied after full briefing

.

I n 2010, Morrison filed a second § 1405 motion, this time pro se. The court d enied the motion, h olding th a t M orrison failed to show that the evidence was material to the identification of the perpetrator. Morrison filed anoth e r writ petition, which the California Court of Appeal denied.

III. Morrison’s F ederal Challenge to § 1405

I n 2011, Morrison filed this c a se, se e k ing relief under 42 U.S.C. § 1983. The district court dismissed the a ction on the merits b ased on District Attorney’s Of f i ce for Third Judicial District v. Osborne
, 557 U.S. 52 (2009). The district court held that Morrison’s facial ch a l l e n g e to the statute failed because “California p r o v i d e s m o r e g e n erous procedural protections than the A laska scheme that was found to satisfy due process in Osborne. ”

Further, as to Morrison’s challeng e to the statut e “ a s applied to this plaintiff a

nd o r construed i n this case by the California Courts” “because no w here in Section 1 4 0 5 does it take into account ey e witness testimony that is contradicted by phy sical evidence and undisputed documents,” the district court held that under Skinner v. Switzer
, 562 U.S. 521 (2011),

su c h claims for r eview of state court ruling s c annot be broug ht in a federal civil rig h ts action.M O R R I S O N V

. P E T E R S ON 8

This appeal followed. Nex t, we a ppointed p r o bono counsel for Morrison. We also g r a n ted the State o f California’s opposed motion to intervene. Morrison asks the court to reverse the d i smissal a nd g rant his motion for summary judg ment, or at least remand for discovery on how § 1405 operates in practice. This court has previously rejected three challeng es 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. 20 09). 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. Travele rs Corp
., 58 F .3d 434, 436–37 (9th Cir. 1995). The denial of a motion f or summary judg ment is also reviewed de novo. Lopez -V a lenzuela v

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

D ISCUSSION

I. Morrison’s F acial Challenges to § 1405’s “Reasonable P robability” and Chain of Custody Requirem ents

A. Legal Standard f

or F a cial Challenges

“A facial chall e n ge to a leg islative Act is, of c ourse, the most difficult challeng e to mount successfully
, s ince the challeng er must establish that no set of circumstances ex ists und e r which the A ct would be valid.” United States v

. Salerno , 481 U.S. 739, 745 (1987). W hile a challeng er must therefore show that a “law is unconstitutional in all of its applications,” W

ashington State Grange v. W ashington StateM O R R I S O N V

. P E T E R S ON 9
Republican Party , 552 U.S. 442, 449 (2008), when assessing whether a statute meets this stand a r d
, courts consider only applications of the s t a t u te in w hich it actually authoriz e s o r prohibits conduct. City of L os Angeles v. Patel
, 135 S. Ct. 2443, 2451 (2015).

B. The N ature of Morrison’s Liberty Interest a nd Its Attendant Due P r ocess Rights

T o determine what process, if any , is due, a c ourt m u s t consider the nature of a prisoner’s liberty interest in proving inno c ence even after a fair trial resulted in a conviction. Osborne
, 557 U.S. at 67. California does not d ispute that, a s in O sborne
, Morrison has “ a liberty interest in d emonstrating his innocence with new evidence under state law.” Id

. T h at is because California law provides a rig ht to be relea s ed fr om custody p ursuant to a writ of habeas corpus when there is no leg al cause for imprisonment. Cal. Penal Code § 1485; In re W eber , 523 P.2d 229, 243 (Cal. 1974).

That “state-created r ig ht can, in some circumstances, beg et y et other rig hts to procedures essential to the realiz ation of the parent rig ht.” O

sborne
, 557 U.S. at 68 (quoting Conn. Bd. of Pardons v. Dumschat
, 4 52 U.S. 458, 463 (1981)). However, “[ a] criminal d efendant proved g uilty after a fair tria l d oes not have the same liberty interests as a free

man.

. . . T h e State according ly has more f lex ibility in deciding what procedures are n e e d e d in the contex t o f postconvicti o n relief.” Id

. at 68–69. F or those individuals with that narrowed liberty interest, due process d o e s not “dictat[ e] the ex act f

orm” o f post-conviction assistance a State must provide. Id

. at 69 (quoting Pennsylvania v. Finley
, 481 U.S. 551, 559 (1987)).M O R R I S O N V

. P E T E R S ON 10

I n such circumstances, the question is whether the state’s procedures “offend[ ] some principl e of justice so rooted in the traditions and conscience o f o ur people as to be ranked a s fundamental,” or “transg ress[ ] any recogniz e d principl e o f fundamental fairness in operation.” Id. (quoting M edi n a v

. California
, 505 U.S. 4 37, 446, 4 48 (1992)). I n sum, “[ f] ederal courts may upset a State’s postconviction relief procedures only if they a

re fundamentally inadequate to vindi c a t e the substantive rig hts provided.” Id

.

I n Osborne
, the Supreme Court rejec t e d a challeng e to Alaska’s procedure s a l lowing p risoners an opportunity to vindicate their state rig ht to post-conviction relief b a s ed on DNA evidence. Alaska pro v i ded a “substantive rig ht to be released on a suffi ciently compelling showing o f new evidence that establishes innocence.” Id. at 70. Alaska caselaw established that persons s e e k ing access to DNA

e vidence must demonstrate that the evidence is newly available, has been dilig ently pursued, an d is sufficiently material. I

d

. And while the Alaska state courts h a d n ot

c onclusively answered the question, the Alaska Court o f Appeals sug g ested that under the Alaska Constitution, DNA testing c ould be provided in a n appropriate case e ven where the applicant cannot satisf y the statutory requirements for g eneral post-conviction relief. Id

.
Osborne rejected the a rgu m ent that there was a freestanding

substantive due process rig ht to D NA evidence

“ u ntethered from the liberty interests [ a claimant] h opes t o vindicate with it.” Id

. at 72. And it found nothing inadequate about the Alaska procedures, which provided “a substantive rig ht to b e r eleased on a sufficiently com p e l l ing showing o f

new evidence that establishes innocence.” Id

. at 70. L ike California’s § 1405, Ala s k a ’ s procedure required a showingM O R R I S O N V

. P E T E R S ON 11

of sufficient materiality

. However, Alaska, unlike California, also required the evidence to b e “ n e w ly available” and have been “dilig ently

pursued.” Id

.

“ Osborne severely limits the federal action a state p risoner may bring for DNA testing

. Osborne rejected the

ex tension of substantive d ue p rocess to this area, and left slim

room for the prisoner to show that the g overning s t ate law denies him procedural d

ue process.” Skinner
, 5 6 2 U.S. at 525 (internal citations omitted).

C. Morrison’s Statistics Do Not Suggest a P roblem

B e fore turning to the asserted doctrinal deficiencies in the statute, Morrison attempts to demonstrate as a g eneral f actual matter that the promise hel d o u t b y § 1405 is illusory

. Morrison argu es that § 1405’s requirements are so onerous a s to e ffectively leave access to post-conviction DNA evidence to the discretion of prosecutors, since Morriso n , 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 g r anting a § 1405

m otion since the statute w as enacted in 2000: Joint e r v. Superior Court of Orange Cou n t y , 217 Cal. App. 4th 759 (2013), In re A ntilla
, 176 Cal. App. 4th 622 (2009), and In re Brown , No. E054403, 2011 W L 5 320650 (Cal. Ct. App. Nov. 4, 2011). 1

1 In re Bro wn , 2 0 1 1 W L 5 3 20 6 5 0
, is actu ally a co urt o f ap peal d ecisio n ap p o in tin g co un sel p ursu an t to § 1 4 0 5 , n o t g ran tin g a m o tio n f o r DNA testin g . Mo rriso n

m ay h av e in ten d ed to cite to Bro wn v. S u perio r Co u rt , No

. B 2 1 8 0 3 7 , 2 0 1 0 W L 1 6 3 3 9 53 (Cal. Ct. A p p

. A p r

. 2 3
, 2 0 1 0 ), w

h ich g ran ted th e p etitio n er’ s w rit o f m an d ate to o rd er DNA testin g

. Id

. at * 4

.M O R R I S O N V

. P E T E R S ON 12

W e are not persuaded by these statistics, w hich lack contex t. The n u mber three is meaning less as a numerator unless we k

n ow the denominator, and none of the parties t o this a ppeal provide it, e i t her for the courts searched b y Morrison, or otherwise.

Our independent research y ielded eig ht cases concerning

or reflecting a decision o n whether to g ra n t post-conviction DNA testi n g. This includes the three cases identified b y Morrison. Of the eig ht, DNA testing was finally denied only in two: R ichards v. Superior Court
, No. E060568, 2014 W L 6705550 (Cal. Ct. A p p. Nov. 26, 2014), and Richardson v

. Superior Court
, 183 P.3d 1199 (Cal. 2008). DNA testing was g ranted in s i x : J

o i nter v. Superior Court
, 217 Cal. App. 4th 759 (2013), Brown v

. S

uperior Court
, No. B 218037, 2010 W L 1 633953 (Cal. Ct. App. Apr. 2 3
, 2010), In re A n tilla
, 176 Cal. App. 4th 622 (2009), M adden v. Superior Court
, No. B 200652, 2 008 W L 5178354 ( Cal. Ct. App. Dec. 11, 2008), 2 People v. Ceja
, No. B 195208, 2008 W L 82467 (Cal. Ct. App. J an. 9, 2008), 3 and R ose v

. Hudson
, 1 5 3 C al. App. 4th 641 (2007). 4 Thus, tally ing the available judicial dec i s i o ns does not sug g est that § 1405 in pract i ce b a r s a ccess to postconviction DNA testing

.

2 T estin g w as g ran ted as a d u e p ro cess rig h t ev en th o u g h p etitio n er did

n o t m eet th e § 1 4 0 5 p ro ced ural an d n o tice req u irem en ts. Ma d d en , 2 0 0 8 W L 5 1 7 8 3 5 4 , at * 1 5

.

3 T estin g co n f

irm ed th at d ef

en d an t w as th e p erp et r a t o r i n o n e assau lt, af ter w h ich th e trial co urt den ied testin g as to th ree o th ers. Ceja
, 20 0 8 W L 8 2 4 6 7 , at * 1.

4 T estin g ex o n erated t

h e d ef en d an t. S ee g en era lly Su s an Ru tb e r g , An a to my o

f a Misca rria g e o

f Ju stice: Th e W

ro n g fu l Co n victio n o

f Peter J. Ro se , 3 7 Go ld en

Gate U. L . Rev . 7 (2 01 0 ).M O R R I S O N V

. P E T E R S ON 13

S i m i larly
, Morrison argues that “the vast majority o f prisoners w ho have obtained acce s s to evidence for post-conviction DNA te s t i ng h ave done so with the consent of the prosecutor, not throug h Section 1405.” To support this claim, Morrison cites survey data reg arding the methods used by e x onere e s t o obtain DNA testing reported in B randon G a r r e t t , C o n v i c t i n g t h e I n n o c e n t : E

x o n e r a t i o n , http://www.law.v i r gi n i a

. e du / h t m l / l i brary site/g a rrett_ex oner ation.htm (last visited Nov. 18, 2015). However, t h e cited data d o es n ot d irectly support Morrison’s argume n t f or two

reasons. F irst, the data cited is n a t i onwide, with no desig nation of which cases were in California. S e c ond, the data does n ot discuss w hether th e D NA testing was in fact obtained throug h a m o t i on. I nstead, it only states that “prosecutors c onsented to DNA testing in 81 percent of cases in which information was obtained on the subject (170 of 210 cases) a nd opposed it in 19 percent (40 of 210 cases), w ith no information available in 40 cases.”

The source does not provide the data necessary to k now,
even nationwide, w hat percentag e of m otions for testing a re successful. I t certainly does not g ive 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 ex onerations nationw i d e have occurred in California, while California has 8. 5 % o f the United States pris o n population. See Innocence P r o j e c t , T h e C a s e s : D N A E x o n e r e e P r o f i l e s , http://www.innoc e n c e p r o j e c t

. o r g/ c as es

- f

a l s e

- i m p r isonment (last visited Nov. 18, 2015); U.S. Dep’t of J ustice, Prisoners in 2012 - Advance Counts, http://www.bjs.g ov/content/pub/ pdf/p12ac.pdf (last visit ed Nov. 18, 2015). However, there could b e m any reasons for that disparity other than theM O R R I S O N V

. P E T E R S ON 14

a s s e rt ed illusory nature of § 1405, including more carefu l than averag e work by the Californi a p rosecuting authorities and courts in the first instance.

F inally
, the State notes that a number of California district attorney s p roactively review convictions and offer DNA testing without the need f or a § 1405 m o t i on. See J ames Sterngo l d
, San Diego D istrict Attorney Offering Free DNA T e s t i n g , N

. Y

. T i m e s , h t

t p : / / www

. ny t i m e s

. c o m

/ 2 0 0 0 / 0 7 / 2 8 /

u s /

s a n

- d i e go

- d i s t r i c t

- a t t o r n e y

- o f f e r i n g

- f r e e

- d n a

- t e s t i n g. h t m l
, J ul. 28, 2000 (“The San Dieg o County d istrict a t t orney has beg un a policy of o f fering f r e e DNA testing to priso n inmates who say they were wrong ly c onvicted a nd would be ex o nerated by

this increasing ly

common scientific method.”); Marisa Gerber, L.A. County D.A. To Create Unit To R eview W

rongful-Conviction Claims
, L .A. Times, h t t p : / / w w w. l at i m e s

. c o m / l o c a l / l an o w / l a

- m e

- l n

- c o n v i c t i o n

review-unit-20150422-story .html, Apr. 22
, 2015 (citing efforts by district attorney s in Yolo, Ventura, Santa Clara, a nd L os Ang ele s counties). These efforts may have f urther reduced the need to litig ate § 1405 motions.

D. The “Reasonable P robability” Requirem ent Does Not Violate Due P rocess

Section 140 5 ( f

)(5) requires the movant to demonstrate that “[ t] he requested DNA t e sting results would raise a reasonable probability that, in lig ht of all t h e e v idence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available atM O R R I S O N V

. P E T E R S ON 15

the time of the c o n v i c t ion.” 5 The California Supreme Court has interpreted this r equirement 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 w hether the defendant is entitled to develop potentially

ex c u lpatory evidence and not whether he or she is entitled to

some form o f ultimate relief such as the g ranting of a petition for habeas corpus based on that evidence.” Id

.

B e cause Morrison r aises a facial challeng e to § 1405(f)(5)’s reasonable p robability require ment, he must “establish that no set o f circumstances ex ists under which the Act would be v alid.” Salerno
, 4 81 U.S. at 745. This presents

a difficult hurdle for Morrison, b ecause “ [ w] here there is enoug h o ther incriminating evidence and an ex planation for the DNA r esult, science alone cannot prove a p risoner innocent.” Osborne
, 557 U .S. at 62 (ci t i n g House v. B ell
, 547 U.S. 518, 540–48 ( 2 0 0 6 )). As we noted in denying Morrison’s habeas a p p e a l, multiple witnesses observed Morrison commit the crime, and Morrison was apprehended immediately

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

More g enerally
, Morrison argu es that it is unfair that a prisoner cannot make t h e r easonable probability showing where “ a substantial amount of other evidence,” Richardson
, 183 P.3d at 1206, links the pr isoner to the crime, because “[ b] y definition, every prisoner w ho is seeking a c c e ss to evidence for post-conviction DNA testing will have been

5 Mo rriso n ’ s ch allen g e co n cern s th e 20 0 5 v ersio n o f § 1 4 0 5 ; a rev i s ed

v ersio n o f th e stat u te to o k ef f ect in 2 01 5. Un less o th erw ise in d i cated
, citatio n s to § 1 4 0 5 are to th e p rio r v ersio n

.M O R R I S O N V

. P E T E R S ON 16

found g u ilty o n the basis of p r o o f bey ond a reasonable doubt.” B ut far from announcing a standard hig her than that established b y the statute, the California Supreme Cour t ’s mention of a “substant i a l amount of other evidence” was merely a quotation of the t ri al court’s langu ag e, which “in contex t, constitute[ d] a finding that petitioner fai l e d to

e s t a b l i s h t h e r e a s o n a b l e p r o b a b i l i t y r e q u i r e m e n t

. ” Richardson
, 1 83 P.3d at 1206. Thus, Richardson did not substitute “a s u bstantial amount of other evidence” for the statutory “ r e a s onable probability ” test. 6 And it does not violate due process for a court to evaluate wha t p o t ential impact a neg ative DNA test could have.

Morrison also argues that § 1405(f)(5)’s “reasonable probability ” requireme nt is more string ent than the requirements at issue in Osborne

. T here, the A laska s tatute required that new evidence be “material,” Alaska Stat. § 12.72.010(4) (2008), corresponding to § 1405(f)(4), and the Alaska case l a w avenue r equired a “demonstrable doubt concerning the defendant’s identification as the perpetrator,” corresponding to § 1405(f)(3). Osborne , 557 U.S. at 65.

6 Mo rriso n arg u es th a t t h e Le g i s lature’ s 2 0 1 4 rev isio n to t h e statute ad d ressin g th e “ reaso n ab le p ro b ab ility ” stan d ard h ig h lig h ts th e in f irm ity

o f th e earlier v ersio n

. T h e rev isio n , ef f ectiv e J an

u ary 1, 2 0 15
, ad ded a statem en t th at “ [i]n d eterm i n in g w h eth er th e co n v icted p erso n is en titled to d ev elo p p o ten t ially ex cu lp ato ry ev i d e n c e, th e co urt sh all n o t d ecid e
w h eth er, assu

m in g a DNA test resu l t f

av o rab le to th e co n

v icted perso n , h e
o r sh e is e n titled to so m e f orm o f u ltim ate relief

.” C al. P en al Co d e § 1 4 0 5 (g )(5 ) (2 0 1 5 ). Ho w ev er, th is m erely co dif ies w h a t R ich a rd

so n alread y h eld : t

h at th e q u estio n is “ w

h eth er t h e d ef en d an t is en title d to d ev elo p p o ten tially ex cu lp ato ry ev id en ce an d n o t w h eth er h e o r sh e is

en titledto so m e f

o rm o f u ltim ate relief

.” 1 83 P .3 d at 1 2 0 5

.M O R R I S O N V

. P E T E R S ON 17

Morrison argues that the a d ditional “reaso n able probability ” requirem e n t o f § 1405(f)(5) g oes bey ond what the Supreme Court a

p proved in Osborne

. Not so. The Alaska constitutional caselaw test r equired t h at “scientific testing would likely be conclusiv e ” o n the issue of the defendant’s identification as the perpetrator. Osborne
, 557 U.S. a t 65 (qu o t i n g Osborne v. State
, 110 P.3d 986, 995 (Alaska Ct. App. 2005)). This is more restrictive, not less restrictive, than California’s “reasonable p r obability ” requirement

. And the Alaska statutory pathway required a showing o f “sufficient[ ] ”

ma t e r i a l i ty , id

. at 70, which Morrison has not shown is

s u f f i c i e n t l y d i s t i n c t f

r o m C a l i f

o r n i a ’ s “ r e a s o n a b l e probability ” re quirement. I ndeed, California c ourts a re required to “liberally apply the ‘ r e a sonable probability ’ standard to permit testing in questionable cases.” J ointer , 217 Cal. App. 4th at 769. Section 1405(f)(5) theref o r e f its comfortably

within the confines of O

sborne

.

I n s hort, Morrison does not show that the “reasonable probability ” requirement violates “any r ecog niz ed principle of fundamental f

airness.” Osborne
, 557 U.S. at 69 (quoting Medina , 505 U.S. at 448)).

E. The Chain o f C ustody Requirem ent Does Not Violate Due P rocess

Morrison a

rg ues that “[ i] t is unfair for Section 1405(f) to place the burden of proof [ to establish the chain of c u s t o dy ]

on the priso n er because the e vidence necessary to meet that burden is solely in the hands of the g o vernment and Section 1405 does not provide any means of discovery by which the prisoner could potentially o btain that evidence.” Morrison also argues that chain of c ustody iss u e s t raditionally g o to weig ht, rather than admissibilit y , b ut that § 1405(f) treatsM O R R I S O N V

. P E T E R S ON 18

them as a threshold requirement, unlike the Alaska rules at issue in Osborne

.
Section 1405(f)(2) requires the c o urt to find that “[ t] he evidence to b e tested has b een subject to a chain of c ustody sufficient to establish i t has not been substituted, tampered wit h
, r eplaced or altered in any material aspect.” W hile Morrison argu es that this unfairly placed the burden on him, his § 1 405 motion was not denied on chain of c ustody g rounds. T h e County n otes that the prosecuting authority is require d b y law to retain biolog ical evidence in connection with a c riminal ca s e

. Cal. Penal Code § 1417.9(a). W hile neither the County nor the State so argues, it is possible that this itself co uld establish a prima facie showing of lack o f tampering

.

F urther, w hen a cha in o f custody is challeng e d in California courts, the party offering the evidence n ee d only show that “taking all the circumstances into account . . . it is reasonably certain that there w as no alteration.” People v

. Catlin
, 26 P.3d 357, 391 (Cal. 2001) (quoting People v. Diaz , 834 P.2d 1171, 1204 (Cal. 1992)). W e previously o b s er v ed that “[ n] o California court has interpreted § 1405 as binding the Superior Court to p reclude rel i e f based o n tampering
, ” Cooper v. R amos , 7 0 4 F .3d 772, 7 8 1 ( 9th Cir. 2012), a nd Morrison does not identify any such cases. 7 According ly
, the

7 Mo rriso n ag ain p o i n ts to th e state leg i slatu re’ s rev isio n

o f th e statute. Here, th e leg islatu

re a d d ed a req u irem en t th at u p o n req u est o f th e
c o n v icted perso n , th e co urt m ay o rd er th e p ro s ecu to r t o m ak e a l l

reaso n ab le ef

f orts to o b t a i n d o cu m en ts relev an t to th e ch ain of cu sto d y

. Cal. P en al Co d e § 1 4 0 5(c)(2 ) (2 0 1 5)

. A g ain
, th is d o es n o t d em o n strate th at th e pre- am en d m en t tex t m an d ated t h e d en ial o f § 1 4 0 5 m o tio n s b ased

o n an u n co n stitu tio n al catch

- 2 2 w

h ere th e p riso n er h ad to sh ow so m eth in g th at o n ly th e p ro secu to r w ou ldk

n o w

.M O R R I S O N V

. P E T E R S ON 19

chain o f c u s tody requirement does not “transg ress[ ] any recogniz ed principle of f undamental fairness in operation.” Osborne
, 557 U .S. 52, 69 (internal quotation marks omitted).

II. Morrison’s As-Applied Challenge

A. The Rooker

– Feldm an Doctrine Does Not Bar Morrison’s As-Applied Challenge

Morrison argues that § 1405 is unconstitutional as a pplied in those cases, like his, where a petitioner’s mo t i o n m u s t be adjudicated b y a judg e who did n ot p r e side over the petitioner’s orig inal trial. “The R ooker–Feldman doctrine instructs that federal district c ourts are without jurisdiction to hear direct appeals f

rom the judg ments of state courts”; such review is only available in the United States Supreme Court. C o o p e r , 704 F .3d at 777. “The d octrine bars a district co u r t from ex ercising jurisdiction not only over an action ex plicitly sty led a s a direct appeal, but also over the ‘d e facto equivalent’ o f such an appeal.” Id

. (q u o t ing Noel v. Hall
, 341 F .3d 1148, 1155 (9th Cir. 2003)).

However, if a plaintiff presents an independent claim in federal court, f

ede ral jurisdiction is not defeated by the fact that the parties litig at e d t he “same or a related q uestion” earlier in state c ourt. S

kinner
, 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 c ases of the kind from which [ the doctrine] acquir e d i t s name: cases broug ht by state-court losers

. . . inviting district c ourt r eview and rejection of [the state court’s] judg ments. ” Exxon , 544 U.S. at 284.M O R R I S O N V

. P E T E R S ON 20

B e cause Morrison d o es n ot 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 R ooker–Fe l dman

. That is so even thoug h this portion of his challeng e is “ as applied.” I n challeng ing the

a pplication of the statute when a judg e other than t h e t r i al judg e evaluates the § 1405 petition, Morrison merely argues
a defect that is not apparent from the face of the statute. W h ile review b y someone other than the trial judg e does not

occur in e very case, it is a categ orical issue not limited to the particulars of Morrison’s situation. W hile that challeng e ultimately

lacks merit, as discussed in the following section, it is not barred by R ooker–Feldman

.

B. Review o f t he § 1405 Pe t i t i o n by a Judge Other than the Trial Judge Does Not Violate Due P rocess

Morrison argues that § 1405 is unconstitutional as a pplied when a judg e other than the judg e who c o n ducted the trial rules on the motion. Section 1405(e) state s that motions “shall be heard by the judg e who conducted the trial.” “[ T] he leg islature r equired convicted persons to bring section 1405 motions before the judg e w h o p resided over their trials

. . . precisely because the t r i a l judg e 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 g reater or lesser

ex tent depending on the standa r d o f review—making its “own assessment of the evidence.” Id

.
Section 1405(e) also provides that the motion be assig n ed to a new judg e when the trial judg e is unavailable. Morrison contends that this r enders the reasonable probability standard “especially problematic because a newly assig ned judg e is inM O R R I S O N V

. P E T E R S ON 21

no position to weig ht the evidence from the trial ag ainst the potentially

ex c ulpatory

DNA evidence.”

This argument f

ails. T h e “problem” Morrison c omplains of i s p resent in e v ery appeal and every habeas case. A contrary rule would be i m p r actical, as judg es become unavailable for a variety

of reasons, and § 1405 motions can be broug ht many y ears after a trial. Thus, as s i g ning another judg e to r

ule on a § 1405 mo t i o n w h e r e the trial judg e is unavailable cannot “offend[ ] s ome principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” or “transg ress[ ] any recogniz ed principle of fundamental fairnes s in operation.” O sborne
, 557 U.S. at 69 (quoting Medina , 505 U.S. at 446, 448).

CONCLUSION

The decision of the district court is af f i r med. Each party shall bear its own costs.

AF F IRMED

.