United States District Court, N.D. Alabama, Northeastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
magistrate judge filed a report on February 4, 2019,
recommending this action be dismissed without prejudice for
failing to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915A(b). (Doc. 11). The
magistrate judge advised the plaintiff of his right to file
specific written objections within fourteen (14) days.
(Id. at 12-13). On February 15, 2019, the plaintiff
filed a motion for an extension of time to file objections.
February 22, 2019, the plaintiff filed a “Motion to
Stay Proceedings Pending Disposition of In re Ronnie Lee
Fagan, U.S. Supreme Court (2018).” (Doc. 13).
Within the latter motion, the plaintiff set forth his
objections to the magistrate judge's report and
recommendation, purported to amend his complaint to include a
“Fair Trial/Perez Doctrine claim, ” and
attempted to reserve the right to file additional objections
to the report and recommendation once the Supreme Court
resolves his pending petition. (Id. at 2-6).
plaintiff's motion for an extension of time to file
objections (Doc. 12) is due to be DENIED as
MOOT because the objections are set out in
his subsequently-filed motion to stay (Doc. 13). For the
reasons that follow, the plaintiff's objections are
OVERRULED, the amendment to his complaint is
due to be DISMISSED for failure to state a
claim upon which relief can be granted, and his motion to
stay the proceedings (Doc. 13) is due to be
plaintiff argues the Supreme Court and Eleventh Circuit cases
supporting the recommended dismissal of his claims pertain to
defendants who were found guilty after a fair trial and that
this court cannot rule on his claims in this action until the
Supreme Court makes a determination regarding the fairness of
his first trial pursuant to a petition for a writ of mandamus
pending before it. (Doc. 13 at 3, 8-46) (citing District
Attorney's Office for the Third Judicial District v.
Osborne, 557 U.S. 52 (2009); Cunningham v. District
Attorney's Office for Escambia Cty., 592 F.3d 1237,
1266 (11th Cir. 2010)).
petition, the plaintiff argues the trial court deprived him
of counsel and an opportunity to object to the discharge of
an allegedly hung jury during his first trial for rape in
1981. (Id. at 3, 5-6) (citing United States v.
Perez, 22 U.S. 579, 580 (1824) (holding a trial court
must use “the greatest caution” when exercising
its “sound discretion” to declare a mistrial
based on jury's inability to agree on
verdict)). Therefore, according to the plaintiff,
double jeopardy barred the second 1981 trial resulting in the
rape conviction for which he now is incarcerated.
plaintiff currently is in state custody pursuant to a lawful
rape conviction and does not deny he has never filed a Rule
32 petition to gain access to evidence for post-conviction
DNA testing. Thus, the magistrate judge correctly determined
the plaintiff cannot rely on Brady v. Maryland, 373
U.S. 83 (1963), or procedural or substantive due process to
obtain such access. (Doc. 11 at 5-8). The magistrate judge
also correctly determined the plaintiff cannot challenge the
validity of his conviction in a § 1983 action.
(Id. at 11).
carefully reviewed and considered de novo all the
materials in the court file, including the report and
recommendation and the plaintiffs objections, the court
ADOPTS the magistrate judge's report and ACCEPTS her
recommendation. Therefore, in accordance with 28 U.S.C.
§ 1915A(b), this action is due to be dismissed without
prejudice for failing to state a claim upon which relief can
court will enter a separate Final Order.
 The court notes that the plaintiff
takes issue with the magistrate judge's finding that a
comparison of DNA found at the scene of the crime with DNA
obtained from the plaintiff implicated the plaintiff in the
rape on the ground DNA testing was not an accepted or
admissible forensic identification technique in the State of
Alabama at the time of the plaintiff's trial. (Doc. 13 at
2-3). In his complaint, the plaintiff stated the
prosecution's forensic expert testified analysis of
seminal stains on the victim's clothing revealed the
presence of H antigen and allowed him to conclusively
identify the plaintiff as the assailant because the plaintiff
secreted H antigen. (Doc. 1 at 17-18). Accordingly, to be
more precise, the complaint infers a comparison of antigens
found in the seminal stains with antigens found in biological
specimens obtained from the plaintiff implicated the
plaintiff in the rape. Regardless, the finding at issue was
not dispositive of the magistrate judge's recommendation,
and the magistrate judge's reference to DNA does not
affect the court's decision.
 The plaintiff believes the United
States Supreme Court will grant his petition for a writ of
mandamus, overturn his rape conviction on double jeopardy
grounds, and deem the mistrial an acquittal. However, the
plaintiff has not identified any Supreme Court precedent
suggesting a constitutional right to access DNA evidence for
testing under such circumstances, and it is apparent that any
civil rights ...