Emmitt Grier was tried and convicted of rape in 2000 in the Commonwealth of Pennsylvania. DNA evidence from the crime scene was collected by investigators, and remains in the custody of the Erie County District Attorney to this day, but has never been tested. Mr. Grier has been seeking the production of that evidence since 2003, so that he can test it at his own expense. Pennsylvania courts denied his post-conviction motions under their "confession-bar" rule: persons who confessed to the crime pre-conviction have no right to obtain untested DNA evidence post-conviction. Of the forty-four states with post-conviction DNA access laws, no other state has adopted this unique limitation. Mr. Grier then brought a § 1983 civil rights action, pro se, in the Western District of Pennsylvania, contending that the state rule offended his right to due process.

The district court dismissed that action because, in its view, success would "necessarily" impugn his conviction or shorten his sentence, and thus should be brought in habeas. Heck v. Humphrey, 512 U.S. 477 (1994). At one time, there was a wide split in the circuits as to whether these sorts of claims ran-afoul of the "Heck rule"; in 2004, at least three circuits considered the claim barred, while two would have allowed Mr. Grier’s claim to proceed. After the Supreme Court’s 2005 decision in Wilkinson v. Dotson, 544 U.S. 74 (2005), however, every circuit to encounter the issue has decided that such claim may be brought under § 1983. The district Court decision against Mr. Grier was a clear outlier. Jones Day received the case on appointment from the Third Circuit to address this issue, which it had not yet decided by that court.

Before filing Mr. Grier’s opening brief, the United States Supreme Court granted certiorari to address this issue, and others, in District Attorneys’ Office for the Third Judicial District v. Osborne, 129 S.Ct. 2308 (2009). Jones Day moved to stay Mr. Grier’s appeal in the Third Circuit in light of Osborne, and shifted the team’s efforts to supporting the Respondent in that case. Working closely with the Innocence Project, the team filed one of the lead amicus briefs to the Supreme Court in Osborne, expressing the views of Janet Reno and eight other current and former prosecutors "representing nearly a century of prosecutorial experience at the local, state and federal level." The Supreme Court decided the case against Mr. Osborne, but left the threshold question of the application of the "Heck-rule" to these sorts of claims for another day. The Prosecutor’s amicus brief was copiously cited in Justice Steven’s four-justice dissent.

When the stay was lifted in the Third Circuit, Mr. Grier’s Jones Day attorneys urged the court to side with the clear majority of its sister circuits in holding that the "Heck-rule" does not bar post-conviction DNA access actions filed under § 1983. They also urged the court that the majority decision in Osborne, while denying a substantive due process right to Mr. Osborne, confirmed that a procedural due process claim was still viable to plaintiffs, like Mr. Grier, who can demonstrate that state procedures are "fundamentally unfair or constitutionally inadequate.".

The panel (Fisher, Hardiman, and Van Antwerpen), recognizing that the issue was one of first impression in the Third Circuit, agreed on both counts In a unanimous opinion by Judge Van Antwerpen), the court first held that "In light of Osborne and Dotson, we agree with our sister courts and hold that in the narrow circumstance where a prisoner files a § 1983 claim to request access to evidence for DNA testing, that claim is not barred by the principles outlined in Heck. Even if Grier does prevail on this § 1983 claim, he will merely gain access to biological evidence, which in and of itself cannot invalidate or undermine his convictions."   While not deciding "whether [Mr. Grier’s] constitutional rights have been violated," the panel then acknowledged that remanding the case to the district court to consider the constitutional claim in the first instance is not a "pointless" exercise. Rather, the court acknowledged that the majority opinion in Osborne had expressly "envisioned a plaintiff like Grier, who availed himself of state procedures without success and claims a due process violation precisely because of that failure." Therefore, "as instructed by the Supreme Court in Osborne," the Third Circuit "remand[ed] th[e] case to the District Court to determine whether Grier’s procedural due process rights, when considered within the framework of Pennsylvania’s procedures for postconviction relief, were violated."

This decision is significant for several reasons. First, it definitively settled an open-question in the Third Circuit that had once divided the federal courts. Second, it is one of the first federal circuits post-Osborne to squarely acknowledge that that decision did not render all post-conviction DNA actions in federal court a "pointless" exercise. Third, it opened-up the federal courthouse door to challenge the constitutionality of Pennsylvania’s sui generis post-conviction DNA access law. This, while the Pennsylvania Supreme Court ponders the continuing validity of the "confession-bar" in a case pending before it, and the Pennsylvania legislature considers amendments to its DNA access law as a whole.

The case will be previewed soon in the Legal Intelligencer.