July 28, 2011 - DNA ISSUE

DNA ISSUE

REPLY BRIEF IN SUPPORT OF SWITZER’S MOTION FOR SUMMARY JUDGEMENT & IN OPPOSITION TO SKINNER’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT JULY 28, 2011

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HENRY WATKINS SKINNER, Plaintiff, v.

LYNN SWITZER, District Attorney for the 31st Judicial District of Texas, Defendant.

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No. 2:09-CV-00281

REPLY BRIEF IN SUPPORT OF SWITZER’S MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO SKINNER’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy of Defense Litigation

JONATHAN F. MITCHELL Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1695 Fax: (512) 474-2697 COUNSEL FOR DEFENDANT

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TABLE OF CONTENTS I.

SKINNER’S CLAIMS AGAINST SWITZER REMAIN BARRED BY THE DOCTRINE OF CLAIM PRECLUSION. ......................................................................................................... 1 A.

The Law-of-the-Case Doctrine Is Inapplicable. ............................................... 1

B.

Skinner Had a Full and Fair Opportunity to Litigate His Constitutional Claims In The Article 64 Proceedings..................................... 5

C.

The Rooker-Feldman Doctrine Precludes This Court From Entertaining Skinner’s Claims That The CCA’s Article 64 Rulings Violated The Due Process Clause. ...................................................... 7

D.

Skinner’s Claims Arise Out of The Same Subject Matter As His Article 64 Proceedings, And Could Have Been Litigated In Those Proceedings. ...................................................................................................... 7 E. A Claim-Preclusion Dismissal Is Needed To Counter The Incentives of Death Row Inmates To Engage In Piecemeal Litigation. ......................... 10

II.

SKINNER CANNOT ESTABLISH A CONSTITUTIONAL RIGHT TO POST-CONVICTION DNA TESTING WHEN HE SPURNED THE OPPORTUNITY TO TEST THAT EVIDENCE DURING HIS TRIAL............................................................................................... 12

A.

Skinner Is Bound By the Reasonable, Strategic Decision of His Lawyers To Forego DNA Testing At His Trial. .................................. 12

B.

Article 64 Does Not Violate the Constitution By Imposing An “Unconstitutional Condition” On A Criminal Defendant’s Trial Rights. ..... 15 C. A Rule Withholding A Constitutional Entitlement To Post-Conviction DNA Testing From Those Who Forego Opportunities To Test The Evidence At Trial Is Necessary to Prevent Sandbagging. ............................ 16

III.

SKINNER HAS NO CONSTITUTIONAL RIGHT TO POST-CONVICTION DNA TESTING BECAUSE HE DOES NOT EVEN ASSERT ACTUAL INNOCENCE AND HE HAS FAILED TO SHOW THAT TESTING MIGHT EXONERATE HIM. ............................................. 17

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TABLE OF AUTHORITIES Cases Arizona v. California, 460 U.S. 605 (1983) .................................................................................................... 4 Coleman v. Thompson, 501 U.S. 722 (1991) .................................................................................................. 13 Castro v. United States, 540 U.S. 375(2003) ..................................................................................................... 4 Curry v. State, 186 S.W.3d 39 (Tex.App.—Houston [1st Dist.] 2005) ......................................... 5, 11 District Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S.Ct. 2308 (2009) ......................................................................................... 11, 17 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ................................................................................................ 7, 9 Hallco Texas, Inc. v. McMullen County, 221 S.W.3d 50 (Tex. 2006) ......................................................................................... 8 Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) .................................................................................... 17 Heck v. Humphrey, 512 U.S. 477 (1994) .............................................................................................. 1, 14 Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78 (Tex. 2008). ...................................................................................... 10 Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) .................................................................................................... 13 Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir. 2002) .................................................................................. 1, 2 Lance v. Dennis, 546 U.S. 459 (2006) .............................................................................................. 4, 11 Link v. Wabash R. Co., 370 U.S. 626 (1962) .................................................................................................. 13

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Mass. Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479 (1976) .................................................................................................... 3 McCallon v. Thomas, No. 02-573, 2003 WL 228991 (E.D. La. Jan. 30, 2003) .......................................... 14 Pepper v. United States, 131 S. Ct. 1229 (2011) ................................................................................................ 2 Reed v. Ross, 468 U.S. 1 (1984) ...................................................................................................... 14 Reger v. State, 222 S.W.3d 510 (Tex. App.—Fort Worth 2007) ..................................................... 5, 9 Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784 (5th Cir. 1975) ...................................................................................... 3 Sawyer v. Smith, 497 U.S. 227 (1990) ............................................................................................ 13, 14 Sewell v. State, 592 N.E.2d 705 (Ind. Ct. App. 1992) ....................................................................... 17 Skinner v. Quarterman, 528 F.3d 336 (5th Cir. 2008) .................................................................................... 14 Skinner v. Switzer, 131 S. Ct. 1289 (2011) ...................................................................................... passim Skinner v. Switzer, 363 Fed. App’x 302 (5th Cir. 2010) ............................................................................ 4 Skinner v. Switzer, No. 10–70002, 2011 WL 1885622 (5th Cir. May 18, 2011) ....................................... 2 Smith v. Murray, 477 U.S. 527 (1986) .................................................................................................. 18 South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................................. 15

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Swarb v. Lennox, 405 U.S. 191 (1972) .................................................................................................... 3 U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548 (1973) .................................................................................................. 15 Rules and Statutes 18 U.S.C. § 3600(a) ...................................................................................................... 19 FED. R. CIV. P. 11 ......................................................................................................... 22 FED. R. CIV. P. 5.1 ........................................................................................................ 19 Fed. R. Civ. P. 60(b) ..................................................................................................... 14 Other Authorities Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953 (2005) ............................................................. 3 DNA EXCLUSIONS: NEW GROUNDS FOR ATTACKING OLD CONVICTIONS 7 CRIM. PRAC. MAN.(BNA) No. 1 (Jan. 6, 1993) ....................................................... 17 Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289 (1983) .................................................................................. 15 Henry M. Hart, Jr., The Power of Congress To Limit the Jurisdicion of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362 (1953) ......... 11, 12

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION HENRY WATKINS SKINNER, Plaintiff, v.

LYNN SWITZER, District Attorney for the 31st Judicial District of Texas, Defendant.

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No. 2:09-CV-00281

REPLY BRIEF IN SUPPORT OF SWITZER’S MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO SKINNER’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT On June 1, 2011, District Attorney Switzer moved for summary judgment on three independent grounds. See Switzer Br. (Doc. 60). Skinner has responded to this motion and filed a cross-motion for partial summary judgment in his favor. See Skinner Br. (Doc. 69). This brief will serve as the reply to Skinner’s response as well as the response to his cross-motion for partial summary judgment.

I.

SKINNER’S CLAIMS AGAINST SWITZER REMAIN BARRED BY OF CLAIM PRECLUSION. A.

THE

DOCTRINE

The Law-of-the-Case Doctrine Is Inapplicable.

Without citing any authorities, Skinner invokes the law-of-the-case doctrine and claims that this court’s earlier ruling of January 20, 2010, bars this court from considering District Attorney Switzer’s claim-preclusion defense. See Skinner Br. (Doc. 69) at 4–5. In that ruling, this court held that Heck v. Humphrey, 512 U.S. 477 (1994), and Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir. 2002),

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required dismissal of Skinner’s complaint. Near the end of the opinion explaining that ruling, the following passage appears: [D]efendant’s res judicata arguments have not been addressed. If the undersigned is correct in the determination that plaintiff’s claims are limited to those identified in his complaint, then neither res judicata nor Rooker-Feldman bar the consideration of the case. If, however, plaintiff is in fact asserting the additional claims as discussed in section III of this Report and Recommendation, res judicata would be an issue.

Report and Recom. (Doc. 40) at 12-13. Skinner thinks that this passage forecloses this court from dismissing on claim-preclusion grounds, but he is wrong for numerous reasons.

First, Pepper v. United States, 131 S. Ct. 1229(2011), holds that the law-ofthe-case doctrine is inapplicable when an appellate court “wipe[s] the slate clean” and remands. See id. at 1251. That is precisely what has happened here; after the Supreme Court’s ruling in Skinner v. Switzer, 131 S. Ct. 1289 (2011), the Fifth Circuit vacated this court’s earlier dismissal in its entirety, remanding for this court to resolve the case anew in light of the Supreme Court’s ruling. See Skinner v.

Switzer, No. 10–70002, 2011 WL 1885622 (5th Cir. May 18, 2011). It makes no difference that the Fifth Circuit vacated for reasons unrelated to claim preclusion; by nixing this court’s earlier judgment and opinion, it removed any basis for Skinner to invoke the law-of-the-case doctrine. See id. at 1251. Skinner does not cite Pepper, and we see no basis on which this court can distinguish it.

Second, the discussion of res judicata in this court’s earlier ruling represents dictum, not holding.

This court entered judgment in favor of District Attorney

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Switzer, and a court’s holding extends only to rationales that explain its judgment.

See, e.g., Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953 (2005) (noting that holdings consist only of propositions that lead to a court’s judgment). In explaining its decision to award judgment to District Attorney Switzer, this court relied exclusively on the Heck rationale; any comments disparaging or rejecting District Attorney Switzer’s alternative grounds for dismissal are dicta because they do not in any way explain the judgment that was entered in her favor.

Skinner tries to fault District Attorney Switzer for “not appeal[ing]” this court’s res judicata analysis, but prevailing parties are not to file cross-appeals from judgments entered in their favor when they think the district court should have followed a different or additional path to the same conclusion. See Mass. Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479 (1976); Riegel Fiber Corp. v. Anderson Gin Co., 512 F.2d 784, 792 (5th Cir. 1975) (“[I]t is . . . well established that the prevailing party below need not cross-appeal to entitle him to support the judgment in his favor on grounds expressly rejected by the court below.”) (quoting Swarb v. Lennox, 405 U.S. 191, 202 (1972) (White, J., concurring)). Instead, prevailing parties should present their alternative grounds for defending the district court’s judgment in the appellee’s brief.

Because the Fifth Circuit affirmed this court’s earlier ruling

without asking for briefing from the parties, District Attorney Switzer never had the opportunity to renew her claim-preclusion defense in the Fifth Circuit. See Skinner v. Switzer, 363 Fed. App’x 302 (5th Cir. 2010) (accepting Skinner’s

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invitation to decide the appeal expeditiously without full briefing from the parties).

Nor could she raise this defense at the Supreme Court of the United States, which limited the writ of certiorari to the Heck issue. See Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011) (“[W]e confine this opinion to the matter on which we granted certiorari and express no opinion on the ultimate disposition of Skinner’s federal action.”).

Finally, the law-of-the-case doctrine is merely a discretionary doctrine; it “does not limit the tribunal’s power.”

(1983).

Arizona v. California, 460 U.S. 605, 618

And it allows courts to reconsider even their earlier holdings when

“appropriate” to do so.

See Castro v. United States, 540 U.S. 375, 384 (2003)

(holding that the law-of-the-case doctrine “cannot prohibit a court from disregarding an earlier holding in an appropriate case.”); see also id. (noting that the law-of-thecase doctrine “simply expresses common judicial practice; it does not limit the courts’ power.”) (citations and internal quotation marks omitted). The res judicata discussion in this court’s earlier opinion contains no analysis and appears to regard res judicata as co-extensive with the Rooker-Feldman doctrine, a proposition that the Supreme Court rejected not only in Skinner but also in earlier rulings. See, e.g., Skinner v. Switzer, 131 S. Ct. 1289, 1298 n.11 (2011) (“Rooker-Feldman is not simply preclusion by another name.”) (quoting Lance v. Dennis, 546 U.S. 459, 466 (2006)). If ever there were an “appropriate” opportunity for a court to reconsider a position taken in an earlier ruling, it is this case.

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B.

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Skinner Had a Full and Fair Opportunity to Litigate His Constitutional Claims In The Article 64 Proceedings.

In each of Skinner’s state-court proceedings, he could have argued that the Constitution requires Texas officials to accommodate his demands for DNA testing notwithstanding the restrictions imposed by Article 64—the very claim that he now brings against District Attorney Switzer.

See Compl. (Doc.1)

¶¶ 33, 35; see

alsoReger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007) (denying a motion for testing under Article 64 and rejecting an equal-protection challenge to the statute); Curry v. State, 186 S.W.3d 39, 43 (Tex. App.—Houston [1 Dist.] 2005) (denying a motion for testing under Article 64 and rejecting a due-process challenge to the statute).

Skinner tries to evade a claim-preclusion dismissal by insisting that the “constitutional violations” for which he sues did not “arise” until the moment the Texas Court of Criminal Appeals denied each of Skinner’s Article 64 motions. See Skinner Br. (Doc. 69) at 6. According to Skinner, the CCA “decisions themselves violated his constitutional rights,” and he therefore could not have raised his constitutional claim before those CCA decisions. There are two insurmountable obstacles to this effort to escape res judicata.

First, the constitutional claim that Skinner describes in his summaryjudgment filing is not the claim that he asserts in his complaint. The complaint accuses District Attorney Switzer, not the Texas Court of Criminal Appeals, of violating Skinner’s constitutional rights. And according to both paragraphs 33 and 35 of the complaint, the alleged constitutional violations consist of District Attorney

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Switzer’s “refusing to release the biological evidence for testing, and thereby preventing Plaintiff from gaining access to exculpatory evidence that could demonstrate he is not guilty of capital murder,” which has “deprived Plaintiff of his liberty interests in utilizing state procedures to obtain reversal of his conviction and/or to obtain a pardon or reduction of his sentence.” Compl. (Doc. 1) ¶¶ 33, 35.

These constitutional claims do not turn on anything that the Texas Court of Criminal Appeals (or any other state court) might do in the Article 64 proceedings, and they were available to Skinner at the outset of his Article 64 litigation.

Second, the Supreme Court’s refusal to dismiss this case on Rooker-Feldman grounds was premised on its observation that “Skinner does not challenge the adverse CCA decisions themselves; instead, he targets as unconstitutional the Texas statute they authoritatively construed.” Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (emphasis added).

This statement accurately characterizes Skinner’s

complaint, which nowhere accuses the CCA rulings of violating his constitutional rights. But if Skinner now wants to avoid a res judicata dismissal by converting his constitutional claims against District Attorney Switzer into an attack on the CCA’s rulings, he will run headlong into the very Rooker-Feldman barrier that he managed to avoid at the Supreme Court. Skinner is caught between the Scylla of res judicata and the Charybdis of Rooker-Feldman. He has no way out.

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C.

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The Rooker-Feldman Doctrine Precludes This Court From Entertaining Skinner’s Claims That The CCA’s Article 64 Rulings Violated The Due Process Clause.

Skinner’s next tries to avoid a claim-preclusion dismissal by asserting that the CCA’s Article 64 rulings were “constitutionally infirm,” exempting this court from giving those rulings preclusive effect. See Skinner Br. (Doc. 60) at 8–10. That contention is squarely foreclosed by Rooker-Feldman, which precludes “state-court losers” from “inviting district court review and rejection of [the state court’s] judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Skinner, 131 S. Ct. at 1298.

D.

Skinner’s Claims Arise Out of The Same Subject Matter As His Article 64 Proceedings, And Could Have Been Litigated In Those Proceedings.

Skinner is correct to say that the doctrine of claim preclusion requires us to establish both that Skinner’s constitutional claims could have been raised in the Article 64 proceedings, and that they arise out of the same subject matter as those proceedings. See Skinner Br. (Doc. 69) at 12. He claims that our earlier brief “suggests” that we need only establish one of these two components, but that brief says nothing of the sort, and if we failed to state explicitly that each of these components are necessary rather than sufficient conditions for a successful claimpreclusion defense, it because we regarded this point as too elementary to warrant specific elaboration.

Skinner’s constitutional claims in this case and his claims for DNA testing in the Article 64 proceedings all arise out of the State’s refusal to accommodate

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Skinner’s demands for post-conviction DNA testing. Skinner does not appear to dispute this fact.

Instead, Skinner insists that litigants can avoid a claim-

preclusion defense whenever their two claims “have distinct factual bases” and “do not require proof of the same facts.” Skinner Br. (Doc. 69) at 15.

This Skinner-created variant of claim preclusion cannot be reconciled with the decisions of the Supreme Court of Texas. Surely a tort claim and a contract claim have “distinct factual bases” and “do not require proof of the same facts.” Yet Hallco Texas, Inc. v. McMullen County, 221 S.W.3d 50, 58 (Tex. 2006), holds that these “distinct” claims must be brought together so long as they arise out of the same subject matter. See id. at 58 (“[A] contract claim is distinct from one based in tort, but if the claims arise out of the same subject matter and can be brought together they cannot be asserted separately.”). Skinner never cites Hallco Texas, nor attempts to explain how his theory of claim preclusion might be reconciled with that ruling. Instead, Skinner appears content to rely on opinions from regional appellate courts, which do not represent the law of Texas and cannot override the analysis that appears in the state supreme court’s rulings. See Skinner Br. (Doc. 69) at 11–14.

Skinner also renews his contention that he could not have presented his constitutional claims in the Article 64 proceedings, but we have already covered this terrain. First, state district courts in Article 64 proceedings have considered and rejected constitutional challenges to the State’s restrictions on DNA testing, proving that Skinner could have presented his constitutional arguments in those state-court

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proceedings. The appellant in Curry v. State, 186 S.W.3d 39 (Tex.App.—Houston [1st Dist.] 2005), for example, asserted a claim “that article 64.03(a)(2)(A) of the Texas Code of Criminal Procedure is unconstitutional on its face and as applied because it denies him due process.” Id. at 41 (emphasis added). And although Curryultimately rejects these constitutional claims, it establishes that Article 64 courts can entertain constitutional challenges to the State’s restrictions of postconviction testing.

Id. at 42–43.

There is no distinction of legal significance

between the constitutional claims that Skinner asserts and the claims that were considered and rejected in Curry.

Both of them assert federal constitutional

entitlements to post-conviction DNA testing and attack the restrictions imposed by Article 64.

Reger v. State, 222 S.W.3d 510, 514 (Tex. App.—Fort Worth 2007), involves another Article 64 proceeding in which the appellant asserted that “article 64.03(a)(1)(B) is unconstitutional on its face and as applied.” Again, the court ruled on this contention and rejected it on the merits, even as it noted that other claims asserted by the appellant fell outside the jurisdiction of Article 64 tribunals. See id. at 514–15 (holding that the appellant’s constitutional challenge to Article 64’s restrictions “fails” and “overrul[ing]” his issue on that question); id. at 513 (noting that “the jurisdiction afforded us under chapter 64 does not extend to collateral attacks on the judgment of conviction or allow us to revisit matters that should have been addressed on direct appeal.”). Skinner cites Curry and Reger but does not acknowledge the relevant parts of those courts’ opinions. He mentions them only to

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create an appearance that he has something to say in response, while ignoring the fact that the litigants in each of those cases were able to present constitutional challenges to Article 64’s restrictions on post-conviction DNA testing.

And if

Skinner wants to recharacterize his claims as a constitutional attack on the CCA’s actions, and pretend that his claims did not accrue until after the CCA resolved his Article 64 litigation, then his claims are barred by the Rooker-Feldman doctrine.

E.

A Claim-Preclusion Dismissal Is Needed To Counter The Incentives of Death-Row Inmates To Engage In Piecemeal Litigation.

Skinner does not deny that the Supreme Court of Texas has adopted a “public policy discouraging prolonged and piecemeal litigation.” Igal v. Brightstar Info.

Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008). But he claims that we have failed to “prove” our claim that a ruling allowing Skinner’s lawsuit will encourage dilatory and abusive litigation tactics from death-row inmates. See Skinner Br. (Doc. 69) at 21. We do not, however, need empirical data to demonstrate a proposition that is evident from the most elementary consideration of incentives and rational-choice theory. Diligent death-row inmates, who assert their federal constitutional claims alongside their state-law claims in Article 64 proceedings, lose the ability use a subsequent section 1983 lawsuit as a means to delay their eventual execution date.

Dilatory death-row inmates, who behave as Skinner did, can prolong their appeals process by initiating a new round of section 1983 litigation after seeking relief in Article 64 proceedings—unless, of course, this court were to invoke the doctrine of claim preclusion and dismiss Skinner’s claims at the outset.

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Unless Skinner’s

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lawyers are prepared to assert that death-row inmates are indifferent to their eventual date of execution, they cannot plausibly deny that Skinner’s lawsuit (if successful) will reward (and therefore encourage) piecemeal litigation tactics from death-row inmates.

Skinner also suggests that our criticism of his litigation tactics reflects intransigence toward the Supreme Court’s holdings in Osborne and Skinner. See Skinner Br. (Doc. 69) at 23. But neither of those decisions gives prisoners a license to withhold federal constitutional claims in state-court litigation and then spring them in a later federal-court proceeding. The Supreme Court’s ruling in Skinner explicitly acknowledges that preclusion doctrines apply when litigants forego opportunities to present federal constitutional claims in Article 64 proceedings.

SeeSkinner v. Switzer, 131 S. Ct. 1289, 1298 n.11 (2011) (“Switzer asserts that Skinner could have raised his federal claim in the Article 64 proceeding. . . .

[Q]uestions of preclusion unresolved below are “best left for full airing and decision on remand”) (quoting Lance v. Dennis, 546 U.S. 459, 467 (2006) (Ginsburg, J., concurring)).

Skinner is also mistaken to assert that our position “allows no

scenario in which a court could ever reach the merits of a prisoner’s § 1983 claim . . . because the claim would always necessarily be precluded by res judicata.”

See

Skinner Br. (Doc. 69) at 23. In some cases, the defendants in the state and federal lawsuits may not be in privity, which would foreclose any possibility of claim preclusion. And in all events, litigants can always bring their section 1983 claims in state court, alongside the state-law claims that they seek to vindicate. Henry M.

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Hart, Jr., The Power of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1401 (1953) (“In the scheme of the Constitution, [state courts] are the primary guarantors of constitutional rights.”).

Finally, we do not necessarily fault Skinner’s lawyers for their tactics in this litigation, and we agree that counsel “should [not] be criticized for vigorously advocating for their client.” Skinner Br. (Doc. 69) at 22. Our earlier brief merely took note of the unremarkable (and indisputable) fact that Skinner benefitted from his decision to refrain from advancing his federal constitutional claims in the Article 64 proceedings.

See Switzer Br. (Doc. 60) at 11–12.

It is the responsibility of

Skinner’s lawyers to pursue zealously every possible means of advancing their client’s interest. It is the responsibility of this court to close the door on the dilatory and piecemeal litigation tactics that Skinner has deployed, and establish a precedent that will deter other death-row inmates (and their lawyers) from following Skinner’s example.

II.

SKINNER CANNOT ESTABLISH A CONSTITUTIONAL RIGHT TO POSTCONVICTION DNA TESTING WHEN HE SPURNED THE OPPORTUNITY TO TEST THAT EVIDENCE DURING HIS TRIAL. A.

Skinner Is Bound By the Reasonable, Strategic Decision of His Lawyers To Forego DNA Testing At His Trial.

Skinner does not deny that his trial lawyers made a strategic decision to forego DNA testing at trial. But Skinner continues to insist that he cannot be held to this decision absent proof of his “express, knowing, and intelligent consent.”

Skinner Br. (Doc. 69) at 26; see also Br. in Supp. of Pl.’s Mot. for Prelim. Injunc.

(Doc. 8) at 34 (arguing that the State must demonstrate that Skinner himself

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“knowingly and willingly acquiesced” in his trial lawyers’ decision not to test the DNA evidence). Skinner acknowledges the agency relationship that exists between lawyers and clients, but asserts that “exceptional circumstances” render the principles of agency law inapplicable to this case.

Coleman v. Thompson, 501 U.S. 722 (1991), establishes that lawyers’ actions in the course of representation are imputed to their clients, and it allows only one exception to this rule: ineffective assistance of counsel. See id. at 754 (“In the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation.”) (emphasis added).

Coleman explains in detail why “attorney error that constitutes ineffective assistance” qualifies as the one and only exception to the rule imputing attorney errors to their clients: [T]he attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must “bear the risk of attorney error.” . . . See Link v. Wabash R. Co., 370 U.S. 626, 634 (1962) (in “our system of representative litigation . . . each party is deemed bound by the acts of his lawyer-agent”); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92 (1990) (same). Attorney error that constitutes ineffective assistance of counsel is cause, however. This is not because, as Coleman contends, the error is so bad that “the lawyer ceases to be an agent of the petitioner.” . . . Rather, as Carrier explains, “if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State.” 477 U.S., at 488. In other words, it is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor, i.e., “imputed to the State.”

501 U.S. at 753–54 (citations omitted).

There is no amorphous “exceptional

circumstances” caveat to the rule established in Coleman, as Skinner claims. The

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passage that he cites in Sawyer v. Smith, 497 U.S. 227 (1990), comes from a dissenting opinion in that case (a fact that Skinner omits) and in all events both Sawyer and Reed v. Ross, 468 U.S. 1 (1984), predate the ruling in Coleman, which limits these “exceptional circumstances” to cases involving ineffective assistance of counsel.1 Skinner wisely declines to argue to this court that his trial lawyers rendered ineffective assistance by failing to test the evidence at his trial. Any argument along these lines would necessarily imply the invalidity of Skinner’s conviction and run smack into Heck v. Humphrey,512 U.S. 477 (1994).2 But the only way that Skinner can avoid a Heck dismissal is to concede that the performance of his trial lawyers satisfied constitutional requirements, which triggers the agency rule of Coleman.

Skinner must pick his poison, and he has decided to allow Coleman

rather than Heck to sink his constitutional claims.

We think that is the right

choice, given the overwhelming and undisputed evidence that Skinner’s trial lawyers acted reasonably in declining to subject more evidence to DNA testing. See Switzer Br. (Doc. 60) at 12–13.

1

Skinner also cites an unpublished district-court opinion from the Eastern District of Louisiana, but that opinion acknowledges and enforces the rule that a “plaintiff is bound by the actions of his attorneys,” and its reference to “exceptional circumstances” appears to refer only to the grounds for reopening final judgments under Fed. R. Civ. P. 60(b) rather than the nature of the agency relationship between lawyers and clients. See McCallon v. Thomas, No. Civ. A. No. 02-573, 2003 WL 228991, at *2 (E.D. La. Jan. 30, 2003).

2 Skinner did accuse his trial lawyers of ineffective assistance in his federal habeas proceedings and lost. See Skinner v. Quarterman, 528 F.3d 336, 341 (5th Cir. 2008) (denying a certificate of appealability on this issue), cert. denied, 130 S. Ct. 1689 (March 1, 2010). So not only is this issue barred by Heck v. Humphrey, it is also precluded from relitigation.

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B.

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Article 64 Does Not Violate the Constitution By Imposing An “Unconstitutional Condition” On A Criminal Defendant’s Trial Rights.

Skinner complains that Article 64 “imposes an unconstitutional condition” by “forc[ing] a criminal defendant to waive his federally protected right to put the prosecution to its burden of proof at trial, on pain of forfeiting forever his statecreated right to invoke Article 64 after conviction.” Skinner Br. (Doc. 69) at 27. But Skinner does not explain why this arrangement is unconstitutional. Many statecreated benefits are conditioned upon waivers of federal constitutional rights. The Hatch Act and its state-law equivalents condition government employment on the surrender of certain First Amendment freedoms. See, e.g., U. S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548 (1973) (upholding the Hatch Act).

Numerous federal programs require States to give up some of their constitutionally protected autonomy as a condition of receiving certain federal funds.

See, e.g.,

South Dakota v. Dole, 483 U.S. 203 (1987). And, of course, the entire institution of plea-bargaining is built on the notion that prosecutors may extract waivers of a defendant’s constitutional trial rights in exchange for reduced charges or sentencing leniency. See, e.g., Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289 (1983).

Skinner’s theory of “unconstitutional conditions” remains crude and undeveloped, and he makes no effort to reconcile his arguments with the many Supreme Court rulings allowing states to condition the receipt of state-created benefits on waivers of constitutional rights. He addresses the plea-bargaining issue

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only in two sentences that he relegates to a footnote, and attempts to distinguish plea-bargaining by characterizing the promise of sentencing leniency as a mere “item of value,” as opposed to a “state-created entitlement that, once provided, cannot be taken away without due process.” Skinner Br. (Doc. 69) at 29, n.15. We do not understand this distinction, and, more importantly, we do not see how promises memorialized in a plea bargain fail to qualify as “state-created entitlement[s]” that “cannot be taken away without due process.” Surely Skinner does not believe that prosecutors retain the freedom to reinstate charges that they dropped as part of a plea agreement. entitlement”?

How is that not, then, a “state-created

This may explain why Skinner never bothers to develop this

distinction, but just asserts it in the hope that it might make plea bargaining “seem” different. This court deserves better. If a litigant such as Skinner wants an ambitious “unconstitutional conditions” ruling from this court, then he has a responsibility to provide a comprehensible explanation of how the holding that he seeks will not doom the institution of plea bargaining.

C.

A Rule Withholding A Constitutional Entitlement To PostConviction DNA Testing From Those Who Forego Opportunities To Test The Evidence At Trial Is Necessary to Prevent Sandbagging.

Skinner insists that he “could not have been engaging in gamesmanship” by failing to seek more DNA testing at his trial because Article 64 did not exist at the time of his trial. See Skinner Br. (Doc. 69) at 31; see also id. at 29, n.16 (“It is preposterous for the Defendant to accuse Mr. Skinner of ‘sandbagging’” because “Mr. Skinner was tried years before Article 64 was enacted.”). But Article 64 is far

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from the only post-conviction weapon available to criminal defendants who decline to seek DNA testing at their trial. As this lawsuit demonstrates, section 1983 and habeas corpus provide mechanisms for pursuing post-conviction DNA testing, and this was well known at the time of Skinner’s 1995 trial. See, e.g., Sewell v. State, 592 N.E.2d 705 (Ind. Ct. App. 1992)(granting postconviction access to “rape kit” for DNA testing); Harvey v. Horan, 278 F.3d 370, 373 (4th Cir. 2002)(indicating that Harvey filed his section 1983 lawsuit seeking access to DNA evidence on February 25, 1994); see also DNA EXCLUSIONS: NEW GROUNDS

FOR

ATTACKING OLD

CONVICTIONS 7 CRIM. PRAC. MAN. (BNA) No. 1 (Jan. 6, 1993) (reporting successful postconviction attempts to obtain access to DNA evidence). Any defendant who knows that he is guilty will have powerful incentives to forego DNA testing at trial (which can only confirm his guilt) and then use the untested DNA evidence as a post-conviction litigation weapon or propaganda tool. This is an especially tempting strategy for capital defendants, such as Skinner, who can delay their execution dates by waiting until after trial to seek DNA testing. The threat of sandbagging is real, it existed at the time of Skinner’s trial, and it exists regardless whether a state has enacted an analogue of Article 64.

III.

SKINNER HAS NO CONSTITUTIONAL RIGHT TO POST-CONVICTION DNA TESTING BECAUSE HE DOES NOT EVEN ASSERT ACTUAL INNOCENCE AND HE HAS FAILED TO SHOW THAT TESTING MIGHT EXONERATE HIM. The Constitution cannot be construed to guarantee post-conviction DNA

testing to any convict who demands it. Instead, a prisoner must at the very least show some possibility that the testing could exonerate him.

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See, e.g., District

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Attorney’s Office for the Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2317 (2009)(citing with approval state statutes that impose a “requirement of materiality” on those seeking post-conviction DNA testing). As far as we can tell, Skinner does not take issue with this proposition.

The problem for Skinner is that he does not assert that he is actually innocent of the murders. Absent this allegation, there is no disputed question of fact over whether Skinner in fact committed these murders. And if there is no factual dispute over Skinner’s actual guilt, then there can be no genuine issue of material facts concerning whether post-conviction DNA testing might prove his innocence.

Skinner recently filed an affidavit with this court that includes the following statement: I am innocent of the murders of Twila Busby, Randy Busby, and Elwin “Scooter” Caler. I believe that DNA testing will prove me innocent in connection with their deaths, and that is the reason I am seeking such testing.

App’x to Skinner Br. (Doc. 70) at 15.But this affidavit falls short of a proclamation of actual innocence; Skinner says only that “I am innocent” of the murders. As Skinner’s able post-conviction lawyers surely know, an unadorned assertion of “innocence” can refer either to legal innocence or actual innocence, and Skinner’s affidavit remains coy on the type of “innocence” he has in mind. See, e.g., Smith v.

Murray, 477 U.S. 527, 535–37 (1986). A claim of legal innocence is nothing more than a legal opinion regarding the sufficiency of the evidence presented at trial, but

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a claim of actual innocence is a factual assertion that triggers an attorney’s duties to avoid suborning perjury or uttering false statements of fact to a court.

Skinner’s lawyers have tried to brush aside this issue as a “quibbl[e],” but it has far-reaching significance. See Skinner Br. (Doc. 69) at 30 n.18. If Skinner can establish a constitutional right to post-conviction DNA testing based on an affidavit that proclaims only “innocence,” then the Federal Innocence Protection Act is unconstitutional, because it requires an applicant to assert, under penalty of perjury, “that the applicant is actually innocent” of the crime of conviction before any court grant relief. 18 U.S.C. § 3600(a) (emphasis added). Skinner’s affidavit does not meet that federal standard, and his lawyers are asking this court to recognize a constitutional right to post-conviction DNA testing even though the Federal Innocence Protection Act would withhold relief.

Seeking a ruling that

logically entails even the partial nullification of a federal statute is a grave undertaking, which not only triggers the presumption of constitutionality that attaches to federal statutes but also requires Skinner’s lawyers to notify the Attorney General of the United States and afford him an opportunity to intervene.

See FED. R. CIV. P. 5.1.

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What’s more, to create a genuine issue of material fact, Skinner must at least make a factual assertion of innocence, rather than a vague statement that could represent a mere legal conclusion regarding the weight of the evidence introduced against him at this trial. The extent to which Skinner’s lawyers will go to avoid a straightforward assertion of Skinner’s factual innocence, not only in Skinner’s affidavit but in his other court filings, would be droll if this matter were not so serious. Consider the following excerpt from Skinner’s brief in opposition to our summary judgment motion: Mr. Skinner has consistently maintained his innocence to both the Court and his counsel (both at trial and since trial) and we as counsel have neither reason nor justification to presume otherwise.

Skinner Br. (Doc. 69) at 30 n.18 (emphasis added). What about before trial—when Skinner offered to plead guilty to first-degree murder in exchange for a life sentence?

Surely Skinner wasn’t “consistently” maintaining his innocence to

counsel at that time, and Skinner’s lawyers conveniently carve out this time frame from Skinner’s “consistent” proclamations of “innocence.” The parenthetical gives the game away, and when Skinner’s lawyers say that they “have neither reason nor justification to presume otherwise,” that means only that they have no reason to doubt the fact that Skinner changed his official position and started to “maintain[] his innocence” once his efforts to cop a plea fell through. (We have no reason to doubt that either!) This comes nowhere close to a statement affirming their belief in Skinner’s actual innocence.3

3 Skinner once again mischaracterizes our argument when he says that we regard Skinner’s guilty-plea offer as “conclusive evidence” of his guilt. See Skinner Br. (Doc. 69) at 37. We never said

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Here’s another one:

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“We in fact have grave doubts about Mr. Skinner’s

guilt . . .” Skinner Br. at 30 (Doc. 69) n.18. Like Skinner’s affidavit, this statement refuses to say whether it refers to legal or factual guilt. Any lawyer can safely express doubts about the sufficiency of the evidence at his client’s trial; that is nothing more than a legal opinion.

But Skinner’s lawyers are unwilling to

unambiguously assert their client’s actual innocence, or even their belief in his actual innocence. Every sentence in Skinner’s complaint and court filings could be truthfully and ethically uttered by a lawyer who knows that his client is actually guilty.

This is why the Federal Innocence Protection Act demands a sworn

statement of actual innocence, and this court should not construe the Constitution of the United States to require anything less.

It’s time for Skinner’s lawyers to stop the chicanery and the word games. By now it is apparent that Skinner and his lawyers are unable or unwilling to provide a straightforward assertion that Skinner did not kill Twila Busby, Randy Busby, and Elwin “Scooter” Caler, and as a result they have failed to establish a genuine issue of fact on Skinner’s actual guilt or on the ability of new DNA testing to

that Skinner’s offer to plead guilty, standing alone, proves his guilt or requires this court to grant District Attorney Switzer’s motion for summary judgment. Our contention is that the evidence taken a whole prevents Skinner from establishing a genuine factual dispute over his actual guilt or the possibility that further DNA testing might exonerate him. The pre-trial plea negotiations are merely one component of that mountain of evidence of Skinner’s actual guilt, which also includes: (1) Skinner’s decision to forego DNA testing at his trial; (2) The fact that Skinner was arrested wearing clothes soaked with the victims’ blood; (3) The fact that Skinner’s bloody handprints were found throughout the house where the victims were murdered; (4) Skinner’s failure to call the police or seek help after the victims were murdered, even though Skinner admitted that he was in the house during the murders; (5) Skinner’s decision, shortly after the murders occurred, to stitch a cut wound in the palm of his hand rather than go to the hospital; (6) Skinner’s statement to the police upon being told that he was under arrest for crimes unrelated to the murders: “Is that all?”; (7) Skinner’s continued unwillingness to assert actual innocence in this court; (8) The continued unwillingness of Skinner’s lawyers to assert in this court their belief in their client’s actual innocence.

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exonerate him. All they can offer are mealy-mouthed statements designed to create an appearance that Skinner is claiming actual innocence while keeping the lawyers within ethical and legal boundaries. There is nothing problematic about lawyers deploying this type of strategy during a criminal trial, where criminal defendants are presumed innocent and the proceeding is designed to resolve legal innocence— whether the evidence at trial satisfies the proof-beyond-a-reasonable-doubt standard. But it is fatal in this post-conviction civil proceeding, where Skinner’s criminal conviction removes the presumption of innocence and where Skinner must establish a genuine issue of fact surrounding his actual innocence. He does not even make this assertion, let alone establish a genuine factual dispute.

Finally, we must express our surprise and disappointment that Skinner’s lawyers have viewed our earlier remarks on this issue as an attack on their ethical standards. See Skinner Br. (Doc. 69) at 30, n.18. We should be clear that Skinner’s lawyers deserve praise, not criticism, for their scrupulous efforts to avoid false statements of fact in their court filings, as well as in Skinner’s recently filed affidavit.4 We want only to emphasize that their conscientious behavior in this regard should not be allowed to obscure the reality of this case: That Skinner has never asserted, in any of his court filings, that he did not kill Twila Busby, Randy

4 Of course, if any of Skinner’s lawyers know that Skinner killed Twila Busby, Randy Busby, or Elwin “Scooter” Caler, then they could be in violation of Rule 11 and other ethical guidelines by bringing this lawsuit for an improper purpose. See FED. R. CIV. P. 11(b)(1). But our motion for summary judgment did not state or insinuate that Skinner’s lawyers know that their client is guilty; it merely pointed out that Skinner has not asserted actual innocence in any of his filing in this court.

Skinner is quoting our brief out of context by claiming otherwise. Compare Skinner Br. (Doc. 69) at 30, n.18 with Switzer Br. (Doc. 60) at 18–19.

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Busby, and Elwin “Scooter” Caler.

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Without such an assertion, Skinner cannot

survive a motion for summary judgment on his constitutional due-process claims.

CONCLUSION We respectfully request that this court grant District Attorney Switzer’s motion for summary judgment and enter judgment in her favor.

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Respectfully submitted.

GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Director of Defense Litigation

/s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General ARTHUR C. D’ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel. (512) 936-1695 Fax. (512) 474-2697 COUNSEL FOR DEFENDANT

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