UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert Breest

v. Civil No. 06-cv-361-SM

New Hampshire Attorney General

O R D E R

Pro se plaintiff Robert Breest has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that he has been denied 

access to biological evidence for the limited purpose of

conducting DNA testing, in violation of his Fourteenth Amendment

right to due process (document no. 1). Seeking prospective

injunctive relief, he brings this action against Kelly Ayotte in

her official capacity as New Hampshire Attorney General.

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2). For the reasons stated below, I find that

Breest has alleged a Fourteenth Amendment due process claim

against Ayotte.

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Standard of Review

In reviewing a pro se complaint, this Court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

plaintiff and inferences reasonably drawn therefrom must be

accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st

Cir. 1996)(stating the “failure to state a claim” standard of

review and explaining that all “well-pleaded factual averments,”

not bald assertions, must be accepted as true). This review

ensures that pro se pleadings are given fair and meaningful

consideration. See Eveland v. Director of CIA, 843 F.2d 46, 49

(1st Cir. 1988). I apply this standard in reviewing Breest’s

complaint.

Background

In 1973, Breest was convicted of first degree murder for the

death of Susan Randall and was sentenced to life imprisonment in

New Hampshire. He is currently incarcerated in Massachusetts at

MCI Shirley. His conviction and sentence were affirmed on

appeal. See State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976)

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(setting forth the facts of Breest’s trial and conviction). 

Breest’s conviction rested in part on circumstantial evidence

including:

(1) testimony from witnesses who had seen a woman

matching Ms. Randall’s description hitchhiking in the

Granite Square area of Manchester and getting into an

automobile that matched the description of [Breest’s]

automobile, which was being driven by a person matching

[Breest’s] description; (2) testimony placing [Breest]

in the Granite Square area at approximately the time

when Ms. Randall was there; (3) hair fibers discovered

in the defendant’s car that were substantially similar

to hair fibers from the coat worn by Ms. Randall on the

night of her death; and (4) paint particles discovered

on Ms. Randall’s coat that were substantially similar

to paint particles recovered from [Breest’s]

automobile.

State v. Breest, No. 72-S-789, slip op. at 1-2 (N.H. Super. Dec.

11, 2000)(citing Breest, 116 N.H. at 739-40). A jailhouse

informant also testified that Breest had admitted to murdering

Ms. Randall. Id. (citing Breest, 116 N.H. at 740). In addition,

the jury was presented with the following evidence:

(1) [Breest] had scratch marks on his hands when he was

interviewed by the police approximately two weeks after

Ms. Randall was killed; (2) Ms. Randall had been choked

by her killer; (3) Ms. Randall’s fingernails had dried

blood underneath them, indicating that she had

scratched the hands of her killer; (4) police

investigators sent clippings from Ms. Randall’s

fingernails to the FBI laboratory in Washington, D.C.

for testing of the dried blood found underneath them;

and (5) the blood underneath Ms. Randall’s fingernails

was Type A, the same as both Ms. Randall and [Breest].

Case 1:06-cv-00361-SM Document 8 Filed 01/03/07 Page 3 of 14
1I construe “CODIS” to mean “Combined DNA Index System, the

FBI’s national DNA identification index system.” See N.H. Rev.

Stat. Ann. § 651-C:1(I). I construe “STR” to mean short tandem

repeat.

4

Id. at 2 (citing Breest, 116 N.H. at 738, 752).

Beginning in 2000, Breest sought access to DNA testing 

through the New Hampshire Superior Court (Merrimack County). On

December 11, 2000, the court granted his “Motion to Reopen, Bring

Forward, and Order Mitochondrial DNA Testing of Susan Randall’s

Fingernails.” Breest, No. 72-S-789, slip op. at 1. In granting

the motion, the court reasoned that (1) Breest was not at fault

for failing to present or request DNA evidence at trial, because

DNA evidence had not been discovered at that time; (2) the DNA

evidence at issue would have been both admissible at trial and

highly probative of his guilt or innocence; and (3) a favorable

DNA test probably would result in a different outcome at a new

trial. Id. at 4-6. 

The court allowed three tests to be conducted by Cellmark

Diagnostics, a laboratory located in Germantown, Maryland and

allegedly selected by the State. The first test (13 CODIS STR1

DNA test) was declared inconclusive by Cellmark. Breest disputes

the results and contends that four DNA experts interpreted

Cellmark’s results and determined that he was excluded or that

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2In support of his claims, Breest has attached letters from

four DNA experts. In a letter dated February 13, 2002, William

M. Shields, Professor of Biology at the State University of New

York, states that Breest is excluded by the Cellmark DNA testing. 

In a letter dated March 18, 2002, Dr. Randall Libby of GeneQuest

states that in the Cellmark tests there “appear to be nonmatching alleles at several loci” which should be explored

further.” In a letter dated August 14, 2002, Dr. Bruce Johnson

of Boston University and Dr. Bert Ely of the University of South

Carolina state that they “consider critical areas of the Cellmark

data (especially allele identification) to be poorly explained

(or not explained at all).” They further state that they are

“surprised that the data as presented in [Breest’s] case could

possibly have been reviewed by anyone with a background in

molecular biology and not seriously questioned.” Attached to the

letter by Drs. Johnson and Ely is a copy of their comments and a

list of the following five serious flaws found in the Cellmark

data:

(1) Allele 26 cannot be considered to be present in the

biological samples collected from the victim . . . and

[t]herefore, it cannot be used to include Mr. Breest in

this analysis; (2) The inclusion of any individual

based on three out of 13 alleles grossly distorts the

statistical integrity expected of a genetic analysis;

(3) The frequent occurrence of “weak” results in the

DNA analysis of the biological samples greatly

diminishes the fidelity of any data reported. Indeed,

such data could never be published in any referred

scientific journal; (4) Changes in scales in the

various plots indicate a major lack of uniformity in

the data, For example, it is possible to enhance an 

artifact peak by increasing the scale, which we believe

has been done; (5) One of the most glaring shortcomings

of the data presented by Cellmark is the poor labeling

of alleles relative to the plots. It is very difficult

to determine which peak represents which allele. Thus,

the question: how can such data be properly

interpreted?

5

further testing was required.2 The second test (4 Loci YCase 1:06-cv-00361-SM Document 8 Filed 01/03/07 Page 5 of 14
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Chromosome test) was also declared inconclusive by Robin Cotton,

Ph.D. of Cellmark. Breest contends that his DNA expert, Dr.

Shields, determined that he was excluded by the second test. The

third test (4 Loci Y-Chromosome test) was conducted by Cellmark’s

new laboratory director, Lewis Maddox, Ph.D. Breest contends

that “the third test netted basically the same test results as

the second, except that Dr. Maddox drew a line through alleles

that did not match Robert Breest, and declared the balance as a

match.” He further contends that “when submitting the

mathematical analysis, [Maddox] determined that the third test

results he declared a match, matched 10% of the population, or

one in ten.” 

Breest’s request for a fourth test was denied by the

superior court by order of October 19, 2004. In denying a fourth

test, the court reasoned that:

[T]hree rounds of DNA testing have been conducted by

Cellmark comparing tissue found under the fingernails

of the victim, Susan Randall, with a known sample from

the defendant. The first two rounds of testing did not

exclude the defendant as the person whose DNA was under

the victim’s fingernails. The third round of testing

was a Y chromosome test which compared alleles at four

loci. The result of this test was that the defendant’s

DNA matched that of the fingernail DNA at all four

loci. Frequency testing suggests that only about one

in ten men would have those four alleles at those four

loci. Defendant now requests another Y chromosome test

which would compare alleles at twelve loci. 

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Defendant’s request is DENIED as he has not met his

burden of demonstrating why the tests already conducted

are not accurate or why further testing would

demonstrate his actual innocence or would result in a

different verdict after trial. This is especially true

where the test results of the previous three tests are

consistent with the evidence presented against the

defendant at trial and with the jury’s verdict of

guilty. 

State v. Breest, No. 72-S-789, slip op. at 1 (N.H. Super. Oct.

19, 2004).

While Breest’s state court proceedings were pending on June

15, 2004, the Governor of New Hampshire signed into law House

Bill 640, thereby enacting New Hampshire Rev. Stat. Ann. (“RSA”)

651-D (permitting a person to petition the court for postconviction DNA testing of biological material under certain

circumstances). See N.H. Rev. Stat. Ann. § 651-D. RSA 651-D:2

(I) provides, in relevant part, that “[a] person in custody

pursuant to the judgment of the court may, at any time after

conviction or adjudication as a delinquent, petition the court

for forensic DNA testing of any biologic material.” See N.H.

Rev. Stat. Ann. § 651-D:2(I). Breest appears to allege that he

has complied with the requirements set forth under RSA 651-D:2(I)

but nevertheless has been denied access to DNA evidence.

He now brings this action seeking injunctive relief in the

form of access to biological evidence for the limited purpose of

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conducting DNA testing, including 13 CODIS STR and 10 loci Ychromosome testing, at an accredited laboratory of his choice. 

According to Breest, the DNA evidence at issue is in possession 

of the New Hampshire Department of Safety, Division of State

Police, Forensic Laboratory, and Ayotte has authority to release

such evidence for testing.

Discussion

I. Section 1983 Claim

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

accord Conn v. Gabbert, 526 U.S. 286, 290 (1999). In order to be

held liable for a violation under Section 1983, a defendant’s

conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir. 1997). The premise of Breest’s Section 1983 action is

that Ayotte has denied him access to biological evidence for

purposes of DNA testing in violation of his Fourteenth Amendment

right to due process. 

A. Cognizance of Section 1983 Claim

An issue arises as to whether Breest’s claim is cognizable

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under Section 1983 or whether it “necessarily implies” the

invalidity of his underlying state court conviction in

contravention of the Supreme Court’s ruling in Heck v. Humphrey,

512 U.S. 477 (1994)(holding that a litigant cannot proceed under

Section 1983 if success on his claim would necessarily imply the

invalidity of the fact or duration of his conviction or

sentence). Several circuit and district courts have considered

the issue of whether a claim for post-conviction access to

physical evidence is cognizable under Section 1983, and their

decisions do not reveal an obvious consensus. See Savory v.

Lyons, No. 06-1296, WL 3423072 at *3-4 (7th Cir. Sept. 11,

2006)(finding claim for post-conviction access to physical

evidence to be cognizable under Section 1983); Grayson v. King,

460 F.3d 1328, 1342-43 (11th Cir. 2006) (finding claim for postconviction access to biological evidence to be cognizable under

Section 1983 but rejecting due process claim under Brady v.

Maryland, 373 U.S. 83, 87 (1963) and its progeny); Bradley v.

Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002)(finding claim for

post-conviction access to biological evidence for DNA testing

purposes to be cognizable under Section 1983); Harvey v. Horan,

278 F.3d 370, 375 (4th Cir. 2002)(rejecting due process claim for

post-conviction access to biological evidence for DNA testing);

Case 1:06-cv-00361-SM Document 8 Filed 01/03/07 Page 9 of 14
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Wade v. Brady, Civ. No. 04-12135-NG, 2006 WL 3051770 at *6 (D.

Mass. Oct. 27, 2006)(holding that Section 1983 claim seeking DNA

testing of biological evidence was not barred under Heck); Alley

v. Key, 431 F. Supp. 2d 790, 800-03 (W.D. Tenn. 2006)(holding

there is no post-conviction due process right to biological

evidence for purposes of DNA testing); Godschalk v. Montgomery

County Dist. Attorney’s Office, 177 F. Supp. 2d 366, 370 (E.D.

Pa. 2001) (recognizing a post-conviction due process right of

access to evidence for DNA testing).

Like the plaintiffs in Savory, Bradley and Wade, Breest

requests only the opportunity to test DNA evidence currently in

the state’s possession. Nothing about this request necessarily

implies anything about his underlying state court conviction. 

The results of the testing could be inconclusive or inculpatory. 

Moreover, if testing yields exculpatory results, his conviction

would stand unless successfully challenged in a separate action,

brought at a future date, and alleging a different constitutional

violation altogether. Accordingly, I conclude that his claim is

cognizable under Section 1983 for purposes of preliminary review.

B. Right of Access to DNA Testing

Although the right to DNA testing is largely unexplored,

certain courts have held that a convicted criminal defendant has

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a due process right to post-conviction testing of DNA evidence. 

See Wade, Civ. No. 04-12135-NG, 2006 WL 3051770 at *6 (holding

that due process principles underlying Brady, 373 U.S. at 87,

support a DNA testing right in both pre-trial and post-conviction

settings); Godchalk, 177 F. Supp. 2d at 370 (holding that a state

prisoner has a due process right to access biological evidence). 

In Godchalk, the court cited the well-established rule that the

prosecution’s pretrial suppression of evidence favorable to a

criminal defendant “violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Godchalk, 177 F.

Supp. 2d at 368 (quoting Brady, 373 U.S. at 87). The court

concluded that this rule was controlling in the context of a

Section 1983 action involving a post-conviction request for

access to DNA evidence. Id. at 370. Applying the definition of

“materiality” that the Supreme Court set forth in United States

v. Bagley, 473 U.S. 667 (1985), the court held that a state

prisoner has a due process right to access biological evidence if

there is a “reasonable probability” that the results of any DNA

testing that could be performed on that evidence would have

affected the outcome of the state court proceedings if those

results had been available at the time of the prisoner’s

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conviction. Id.

In this action, Breest alleges a Fourteenth Amendment due

process violation arising from the denial of the right to DNA

testing. To the extent there is a reasonable probability that

the results of the DNA testing requested by Breest would have

affected the outcome of his state court proceedings if those

results had been available at the time of his conviction, I

conclude that he has alleged a cognizable due process claim. For

purposes of preliminary review, I find that he has alleged

sufficient facts to state a Fourteenth Amendment due process

claim against Ayotte.

II. Eleventh Amendment Immunity

The complaint seeks prospective injunctive relief for wrongs

committed by Ayotte as a state actor in her official capacity. 

It is well-settled that Eleventh Amendment immunity bars a

federal court from awarding monetary damages against state

officers sued in their official capacities. See Redondo-Borges

v. United States HUD, 421 F.3d 1, 7 (1st Cir. 2005). However,

Eleventh Amendment immunity does not bar claims for prospective

injunctive relief against state officers in their official

capacities. Id. “Nor does that doctrine bar relief (whether in

the form of money damages or an injunction) against [state

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officers] in their individual capacities. Id. (citations

omitted). Because Breest seeks only prospective injunctive

relief against Ayotte in her official capacity, I conclude that

his claim is not barred under the Eleventh Amendment.

Conclusion

For the reasons stated above, I conclude that Breest has

alleged a Fourteenth Amendment due process claim against Ayotte.

As I find that plaintiff has stated a claim upon which

relief may be granted, I order the complaint served on the

defendant. The Clerk’s office is directed to serve the New

Hampshire Office of the Attorney General (AG), as provided in the

Agreement on Acceptance of Service, copies of this order and the

complaint and supporting documents (document no. 1). See LR

4.3(d)(2)(C). Within thirty days from receipt of these

materials, the AG will submit to the court an Acceptance of

Service notice indicating whether defendant has authorized the

AG’s office to receive service on her behalf. When the

Acceptance of Service is filed, service will be deemed made on

the last day of the thirty-day period. 

The Clerk’s office is instructed to complete service on this 

individual by sending to her, by certified mail, return receipt

requested, copies of these same documents. 

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The defendant is instructed to answer or otherwise plead

within thirty days of acceptance of service. See Fed. R. Civ. P.

12(a)(1)(A). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to her or

her attorneys, pursuant to Fed. R. Civ. P. 5(b).

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 3, 2007

cc: Robert Breest, pro se

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