Full opinion text
MEMORANDUM AND ORDER JOHN GLEESON, District Judge: This case presents the question whether the United States Constitution requires that a convicted defendant be granted access to evidence for the purpose of DNA testing, an issue of first impression in this circuit. Frank McKithen is in prison for stabbing his wife Rose with a kitchen knife on August 21, 1992. McKithen wishes to subject the knife to DNA testing, which he contends will demonstrate that his wife, who survived, fabricated McKithen’s involvement in the incident. After moving unsuccessfully for this relief under New York’s post-conviction DNA testing statute, N.Y.Crim. Proc. Law § 440.30(l-a), McKithen brought this action under 42 U.S.C. § 1983, claiming that Queens County District Attorney Richard Brown has injured him in violation of the Due Process Clause of the Fourteenth Amendment by refusing to grant him access to the knife. On March 27, 2003,1 adopted Magistrate Judge Lois Bloom’s report and recommendation and granted Brown’s motion to dismiss McKithen’s claim on procedural grounds. On March 13, 2007, the United States Court of Appeals for the Second Circuit remanded for a determination of the merits, specifically directing me to consider whether the Constitution protects a post-conviction right of access to evidence for DNA testing, and if so, what the contours of that right are and whether McKi-then’s claim that he is entitled to access to the knife is precluded by the state court’s decision that he was not entitled to testing under § 440.30(l-a). On the parties’ cross-motions for summary judgment, I conclude that the Due Process Clause of the Fourteenth Amendment grants a convicted offender access to physical evidence for the purpose of DNA testing if it can be performed with negligible cost to the state and exculpatory results would undermine confidence in the outcome of trial; that the issue of McKithen’s entitlement to DNA testing is not precluded; and that McKi-then is entitled to access the knife for the purpose of DNA testing. Accordingly, for the reasons stated below, McKithen’s motion is granted and Brown’s is denied. BACKGROUND A. The Offense Conduct McKithen stands convicted of attempted murder in the second degree, intimidating a victim or witness in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the fourth degree, assault in the first degree, and resisting arrest based on a stabbing incident on August 21, 1992 and his subsequent arrest on September 1,1992. The government’s evidence at trial established that on the morning of August 21, 1992, McKithen’s wife Rose testified before a Queens County grand jury that on August 16, 1992, McKithen had menaced her with a firearm in their shared home at 150-18 Yates Road in Queens. At approximately 11:00 PM on August 21, 1992, Rose McKithen, having returned from her grand jury appearance, was watching television with her friend Linda Jones in the living room of 150-18 Yates Road. McKithen climbed in a bedroom window and appeared in the living room. He argued with Rose McKithen and struck her with an open hand, and then retrieved a large kitchen knife from the cutlery drawer. Holding Rose McKithen at knife-point, McKithen ushered Jones out of the apartment. After Jones was expelled from the apartment, Rose McKithen broke free of McKithen’s grasp and attempted to crawl out a bedroom window. As she tried to flee, McKithen stabbed her once in the back and then immediately fled the apartment. When the police responded, they recovered a knife with a spot or two of blood on it, which Rose McKithen identified as the knife her husband had used to stab her. Emergency medical technicians responded to the scene and asked her who to contact in case of an emergency. She gave McKithen’s name. McKithen was arrested on September 1, 1992 and resisted arrest in circumstances not at issue here. After arresting him, McKithen’s arresting officer asked him if he knew why he was being arrested, and McKithen responded, “Yes, I should have killed the bitch.” B. The Procedural History 1. Conviction, Sentence and Posh-Conviction Proceedings Challenging Conviction and Sentence McKithen was tried by jury in New York Supreme Court, Queens County. The government introduced a knife into evidence during its case. Rose McKithen identified the knife as the weapon McKi-then had stabbed her with, and a police officer identified the knife as having been found on a table in Rose McKithen’s bedroom. Two police officers testified that there may have been a small amount of blood on the knife at the time that it was recovered, but an officer wrapped it in a paper towel to prevent the blade from causing accidental injury, which had the effect of removing the blood. McKithen did not request that the knife be subject to fingerprint or DNA testing. McKithen argued that his wife had fabricated his involvement in the incident and that she had actually been stabbed by her boyfriend. In support of this theory, he noted that Rose McKithen had given McKithen’s name as an emergency contact. McKithen was convicted of attempted murder in the second degree, intimidating a victim or witness in the first degree, reckless endangerment in the first degree, criminal possession of a weapon in the fourth degree, assault in the first degree, and resisting arrest. On May 19, 1993, McKithen was sentenced as a second violent felony offender to consecutive terms of imprisonment of twelve and one-half to 25 years on the attempted murder conviction, eight to 16 years on the witness intimidation conviction, and two and one-half to five years on the reckless endangerment conviction. He was also sentenced to concurrent terms of imprisonment of seven to fourteen years on the assault conviction, one year on the weapon possession conviction, and one year on the resisting arrest conviction. His aggregate sentence was 23 to 46 years. McKithen appealed his conviction, arguing that the charges related to his arrest should have been severed from the charges related to his stabbing; the prosecutor committed misconduct in summation; the evidence was insufficient to support the verdict convicting him of reckless endangerment; and his sentences on the attempted murder and witness intimidation convictions should have run concurrently. On November 13, 1995, the Appellate Division, Second Department affirmed his conviction but modified his sentence to run his attempted murder and witness intimidation convictions concurrently, resulting in an aggregate sentence of 15 to 30 years. People v. McKithen (McKithen I), 221 A.D.2d 476, 634 N.Y.S.2d 128, 129-30 (2d Dep’t 1995). McKithen requested leave to appeal to the New York Court of Appeals, which denied his application on May 8, 1995. People v. McKithen (McKithen II), 88 N.Y.2d 881, 645 N.Y.S.2d 456, 668 N.E.2d 427 (1996). On July 27, 1994, McKithen filed a pro se motion to set aside his sentence under N.Y.Crim. Proc. Law § 440.20, which was denied on September 8, 1994. On November 6,1996, McKithen filed a pro se motion to vacate his conviction under N.Y.Crim. Proc. Law § 440.20, which was denied on February 10, 1997. On March 12, 1997, McKithen filed a pro se motion for leave to appeal the denial of his second § 440.20 motion. This application was denied by the Second Department on April 16, 1997. 2. Proceedings Seeking DNA Testing On August 21, 2001, McKithen filed a pro se motion in the New York Supreme Court, Queens County, pursuant to N.Y.Crim. Proc. Law § 440.30(l-a), seeking court-ordered DNA testing of the knife to determine if Rose McKithen’s blood was on the knife, as well as testing for fingerprints. On November 8, 2001, the Queens Supreme Court denied his application, finding his request for fingerprint examination untimely, concluding that there was not a reasonable probability that the results of DNA testing would have resulted in a more favorable verdict, noting that McKithen did not dispute that Rose McKi-then was stabbed, and concluding that the presence or absence of her blood on the knife would have little or no probative value in determining whether her wounds were inflicted by McKithen. People v. McKithen (McKithen III), No. 3964/92 (N.Y. Sup.Ct., Queens County Nov. 8,’ 2001). On December 13, 2001, McKithen moved for leave to appeal to the Second Department, which denied his application on February 13, 2002. On March 1, 2002, McKithen commenced this action before me, filing a pro se complaint under 42 U.S.C. § 1983, seeking access to the knife for the purpose of DNA testing. In his complaint, McKithen alleged that Rose McKithen’s blood is not on the knife, claiming that this finding would establish that the knife introduced as evidence at trial was not the knife used to stab Rose McKithen, and that this would in turn demonstrate that he did not stab her. McKithen argued that Brown’s refusal to produce the knife for testing (1) deprived him of due process of law; (2) deprived him of meaningful access to the courts; (3) deprived him of the opportunity to make a conclusive showing of actual innocence in violation of the Eighth Amendment; and (4) deprived him of his right to present evidence of his innocence in violation of the Confrontation Clause. Brown moved to dismiss on August 2, 2002, claiming that (1) the Rooker-Feld-man doctrine deprived me of subject matter jurisdiction to hear this action; (2) the Queens Supreme Court’s denial of McKi-then’s § 440.30(l-a) motion precluded McKithen from litigating the issue of his entitlement to the knife; (3) Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), barred McKithen from seeking DNA testing except by way of a habeas corpus petition, and (4) McKi-then’s complaint failed to state a claim upon which relief could be granted. I referred this motion to Magistrate Judge Bloom for report and recommendation, and on March 27, 2003 she recommended dismissing the action pursuant to the Rooker-Feldman doctrine and not reaching the other grounds. McKithen v. Queens County Disk Atty’s Office (McKithen V), No. 02-CV-1670 (JG)(LB) (E.D.N.Y. Mar. 27, 2003) (report and recommendation). I adopted this report and recommendation on April 15, 2003. McKithen v. Queens County Dist. Atty’s Office (McKithen VI), No. 02-CV-1670 (JG)(LB) (E.D.N.Y. Apr. 15, 2003). McKithen appealed my dismissal of the action and was appointed counsel, and on March 13, 2007, the Second Circuit reversed and remanded. McKithen v. Brown (McKithen VII), 481 F.3d 89, 93 (2d Cir.2007), cert. denied sub nom. Brown v. McKithen (McKithen VIII), — U.S. -, 128 S.Ct. 1218, 170 L.Ed.2d 59 (2008). It held that (1) the Rooker-Feld-man doctrine was inapplicable due to an intervening change in the law, McKithen VII, 481 F.3d at 99; (2) Heck does not bar post-conviction actions seeking access to evidence for DNA testing from being brought under § 1983, McKithen VII, 481 F.3d at 99; (3) the defense of claim preclusion — which Brown had argued on appeal — had been waived, and declined to raise it sua sponte, id, at 105; and (4) it was impossible to determine whether issue preclusion applied without determining whether the contours of any federal right to post-conviction DNA testing differed from those of the state right, id. at 106. It remanded with instructions to consider whether the Due Process Clause safeguards either a procedural or a substantive right to post-conviction access to evidence for DNA testing; and if so, what the contours of that right are and whether the issue is precluded in McKithen’s case; and if there is a right and the issue is not precluded, whether the right was infringed in McKithen’s case. McKithen VII, 481 F.3d at 93, 106-08 & n. 17. Brown petitioned the United States Supreme Court for a writ of certiorari, which was denied on February 19, 2008. McKithen VIII, — U.S. -, 128 S.Ct. 1218. DISCUSSION A. The Summary Judgment Standard Under Federal Rule of Civil Procedure 56(c), a moving party is entitled to summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir.1994) (“[T]he burden is on the moving party to demonstrate that no genuine issue respecting any material fact exists.”). A fact is “material” within the meaning of Rule 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995). Therefore, although a court “should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, the nonmoving party cannot survive summary judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is proper when the moving party can show that “little or no evidence may be found in support of the nonmoving party’s case.” Gallo, 22 F.3d at 1223-24 (citations omitted). B. Claim Preclusion Brown argues that the Second Circuit incorrectly decided that he had waived his argument of claim preclusion, and suggests that I consider this defense anew. Brown did not move to dismiss McKithen’s § 1983 action on the grounds of claim pre-elusion, and raised this defense for the first time on McKithen’s appeal of my grant of Brown’s motion to dismiss. Brown, erroneously believing that an answer had been filed, conceded that the defense could be deemed waived, and the Second Circuit concluded that it was waived. McKithen VII, 481 F.3d at 105 (“Brown has waived the defense of claim preclusion, and, given the circumstances of the case, we decline to invoke the defense nostra sponte.”). In fact, however, due to the unusual procedural posture of the case, no answer had been filed. Thus, Brown’s concession that the claim preclusion defense had been waived was in error, and he seeks to renew the claim on remand as a result. However, under the “mandate rule,” which is a “branch of the law-of-the-case doctrine,” Burrell v. United States, 467 F.3d 160, 165 (2d Cir.2006), cert. denied, - U.S. -, 127 S.Ct. 2031, 167 L.Ed.2d 773 (2007), I am obliged to follow the decision of the Second Circuit finding the defense of claim preclusion waived. See id. (“‘[W]here issues have been explicitly or implicitly decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court.’ ” (quoting United States v. Minicone, 994 F.2d 86, 89 (2d Cir.1993))). While there may be cases where superfluous dicta in an appellate decision forms no part of the court’s mandate, cf. New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 605-06 (2d Cir.2003) (concluding that dicta in a prior footnote did not address the point being litigated on remand), this is not one of them. The Second Circuit in this case was obliged to resolve the defense of claim preclusion in order to arrive at any of its holdings. The reasoning by which it resolved this defense is therefore part of its holding. Even if the Second Circuit’s finding that the defense was waived and its decision not to raise the defense sua sponte did not preclude me from raising it sua sponte, but see McKithen VII, 481 F.3d at 105 (“[W]e conclude that it would still be inappropriate, in this case, to invoke claim preclusion nostra sponte .... ” (emphasis added)), I cannot obey the Second Circuit’s mandate to consider the existence and contours of a constitutional right to DNA testing if I apply the defense of claim preclusion. I note as well that the fact that Brown erred in conceding that the defense of claim preclusion had been waived does not imply that the Second Circuit erred in concluding that it was waived. The Second Circuit may have concluded that even though Brown did not waive the defense by omitting it from his motion to dismiss, he waived it by erroneously conceding on appeal that it was waived. In any event, the mandate rule compels me to decline Brown’s suggestion that I reverse the Second Circuit’s decision that claim preclusion does not bar McKithen’s action. C. The Statute of Limitations Brown raises the statute of limitations for the first time in this motion. As noted in Section B, supra, due to the unusual procedural posture of the case, no answer has yet been filed and his statute of limitations claim has not been waived. See Santos v. Dist. Council, 619 F.2d 963, 967 (2d Cir.1980) (“The assertion of the limitations defense in the defendant’s answer, rather than in its prior motion for dismissal and summary judgment, was both timely and sufficient as a matter of pleading.”). The statute of limitations for § 1983 actions brought in New York is three years. E.g., Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004). McKithen suggests that § 1983 actions brought for equitable relief only are subject only to the doctrine of laches, and that § 1983 actions brought to compel DNA testing borrow the generous statute of limitations of the federal Innocence Protection Act of 2004, 18 U.S.C. § 3600, the federal post-conviction DNA testing statute. These mutually incompatible arguments fly in the face of the Supreme Court’s holding that 42 U.S.C. § 1988 constitutes “a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims.” Wilson v. Garcia, 471 U.S. 261, 275, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (emphasis added), superseded by statute in part, Judicial Improvements Act of 1990, Pub.L. No. 101-650, § 313(a), 104 Stat. 5114 (providing a general federal statute of limitations for statutes enacted after December 1, 1990), as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-80, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004); see also Owens v. Okure, 488 U.S. 235, 242-51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (extending Wilson to states with multiple personal injury statutes of limitations and concluding that in all § 1983 actions brought in New York, the three-year statute governing general personal injury actions applies); United Paperworkers Int'l Union v. Specialty Paperboard, Inc., 999 F.2d 51, 56 (2d Cir.1993) (noting that Wilson holds “state tort law statutes of limitations appropriate for all claims under 42 U.S.C. § 1983” (emphasis added)). Moreover, in determining that this action was properly brought under' § 1983 as opposed to § 2254, the Second Circuit noted that in contrast to the one-year limitations period applicable to § 2254 claims, “ ‘the statute of limitations applicable to claims brought under § 1983 in New York is three years.’ ” McKithen VII, 481 F.3d at 100 n. 12 (ellipsis omitted) (quoting Patterson, 375 F.3d at 225). A cause of action accrues when the plaintiff knows or has reason to know of the injury forming the basis of the action. Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002). In finding the Rooker-Feldman doctrine inapplicable, the Second Circuit held that the injury of which McKi-then complained existed prior in time to the § 440.30(l-a) proceedings. McKithen VII, 481 F.3d at 98. Brown argues that if McKithen’s injury preexisted the § 440.30(l-a) motion, his claim must have accrued more than three years before the filing of this action. McKithen’s § 440.30(l-a) motion was filed on August 27, 2001, and the instant action was filed on March 21, 2002. Therefore, it is technically possible for his injury to have been sustained before the filing of his § 440.30(l-a) action but within the limitations period; Brown simply argues that any plausible date of McKithen’s injury preexisting the state court action — such as the admissibility of DNA evidence in New York courts or the widespread availability of modern DNA testing techniques — must have occurred prior to 1999, and thus is outside of the limitations period. However, Brown elides the distinction between the date McKithen sustained his injury, which the Second Circuit held precedes his § 440.30(l-a) action, and the date he knew or had reason to know of his injury, which is the date on which his claim accrues, Pearl, 296 F.3d at 80. I assume without deciding that McKithen actually sustained his injury in 1996, when Brown represents that modern DNA testing techniques reached widespread availability. However, the injury giving rise to this action is not the mere fact that DNA testing was not performed, but the infringement of McKithen’s constitutional rights this fact entails. Due to the complexity of the legal issues regarding the scope of these rights and the novelty of this factual context, I find that whenever McKithen actually first sustained his injury, the earliest he had reason to know of the constitutional deprivation was on August 27, 2001, the date on which a federal court first announced a federal constitutional right to DNA testing. See Godschalk v. Montgomery County Dist. Att’y’s Office, 177 F.Supp.2d 366, 370 (E.D.Pa.2001) (finding due process right of access to evidence for DNA testing); see also Wade v. Brady, 460 F.Supp.2d 226, 235 n. 17 (D.Mass.2006) (suggesting that this is the appropriate date of accrual for a cause of action for post-conviction access to evidence for DNA testing). Accordingly, McKithen’s cause of action accrued, at the earliest, on August 21, 2001, and this action is thus not time-barred. D. Procedural Due Process 1. The Mathews Test Section 1 of the Fourteenth Amendment to the United States Constitution states, in pertinent part, that a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. In addition to a set of substantive rights, see Section E, infra, the Due Process Clause grants the right that appropriate procedures — “due process” in a literal sense— shall be used to determine whether any deprivation of life, liberty, or property is justified. See Wilkinson v. Austin, 545 U.S. 209, 224, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (noting that the Supreme Court employs a flexible “framework to evaluate the sufficiency of particular procedures” under the Due Process Clause); see also Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981) (“A state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.”). This procedural component of the Due Process Clause does not guarantee the use of any procedures to govern any decision that does not result in a deprivation of life, liberty, or property. Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384 (“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.”). Therefore, the first step in determining whether or not a government action or policy violates these so-called “procedural due process” rights is determining whether the action or policy deprives a person of life, liberty, or property. Property is of course a legal creation, and although liberty could be said, like life, to have entirely natural components, the due process clause is concerned only with legal entitlements to life, liberty, and property. See, e.g., Dumschat, 452 U.S. at 465, 101 S.Ct. 2460 (finding an inmate has no legal entitlement to a pardon or commutation); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“Undeniably, the respondent’s re-employment prospects were of major concern to him — concern that we surely cannot say was insignificant. ... But, to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.”). A conditional entitlement is called an “interest” for the purposes of procedural due process analysis, so that a “liberty interest” in taking some action is a legal entitlement to take that action under certain conditions; a “property interest” in an item is a legal entitlement to exercise property rights (such as use and exclusion) with respect to that item under certain conditions; and a “life interest” is the legal entitlement not to be killed under certain conditions. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“[T]he State having created the right to good time [credit] and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner’s interest has real substance and is sufficiently embraced within Fourteenth Amendment ‘liberty’ to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.”). Procedural due process rights are the rights to appropriate procedures to determine if the individual possessing an interest satisfies the conditions for the entitlement. A liberty interest is thus a substantive right related to personal freedom to which one has an entitlement on some conditions. For the purposes of the Fourteenth Amendment, a liberty interest can be created by state statute — when a statute provides a conditional entitlement to take certain actions, it creates a liberty interest. See, e.g., id. (holding that the establishment of a good-time credit scheme created a liberty interest); see also Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (finding that the presence of mandatory language in a correctional statute does not create a conditional entitlement if it does not pertain to “atypical and significant hardship in relation to the ordinary incidents of prison life”). A liberty interest can also come directly from the Constitution, as where some constitutional provision guarantees a substantive right, or where the right is implicit in the concept of liberty. Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384 (“A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty’.... ”). Regardless of its source, a liberty interest must be a conditional entitlement, not a mere desire or hope. See, e.g., Dumschat, 452 U.S. at 465, 101 S.Ct. 2460 (“In terms of the Due Process Clause, a Connecticut felon’s expectation that a lawfully imposed sentence will be commuted or that he will be pardoned is no more substantial than an inmate’s expectation, for example, that he will not be transferred to another prison; it is simply a unilateral hope.” (footnote omitted)); cf. Roth, 408 U.S. at 577, 92 S.Ct. 2701 (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”). If an individual is found to possess a liberty interest infringed by a governmental action, a court must then determine what process that individual is due in determining whether she is entitled to be free of the government’s interference. E.g., Wilkinson, 545 U.S. at 224, 125 S.Ct. 2384 (“A liberty interest having been established, we turn to the question of what process is due an inmate whom Ohio seeks to place in OSP [a ‘supermax’ security prison].”). States have wide latitude to prescribe rules of criminal procedure within the bounds of “the specific guarantees enumerated in the Bill of Rights,” and judicial review under the Due Process Clause is thus highly deferential under Medina v. California, 505 U.S. 437, 443, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotation marks omitted). However, the framework applicable in most other contexts is not deference but a careful balancing of interests under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). See Parham v. J.R., 442 U.S. 584, 599, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (noting that the Mathews test provides “a general approach for testing challenged state procedures under a due process claim”). Under Mathews, once a liberty interest is identified: [Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Despite Brown’s argument that analysis of the procedures governing post-conviction access to evidence for DNA testing is governed by Medina, these procedures are distinct from “ ‘the process afforded during criminal proceedings themselves,’ ” McKithen VII, 481 F.3d at 107 (quoting Krimstock v. Kelly, 464 F.3d 246, 254 (2d Cir.2006)), and thus, as the Second Circuit has specifically stated, “Mathews applies, rather than the more demanding Medina v. California.” McKithen VI, 481 F.3d at 107. 2. The Residual Posh-Conviction Liberty Interest “The Supreme Court has made clear that prisoners lawfully deprived of their freedom retain substantive liberty interests under the Fourteenth Amendment.” McKithen VII, 481 F.3d at 106; see also Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“The mere fact that [the plaintiff] has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.”). I am obliged to “consider whether this residual post-conviction liberty interest encompasses an interest in accessing or possessing potentially exonera-tive biological evidence.” McKithen VII, 481 F.3d at 106-07. Despite the novelty of the technologies at issue from a constitutional perspective, it is important to use traditional methods of legal analysis in determining what substantive rights are protected by the Constitution. Because the Constitution supersedes laws passed by democratic legislatures and signed by elected executive officials, rights set forth in the Constitution limit the ability of the citizens of the United States to make decisions regarding the policies of their government, and they should not lightly be implied. See, e.g., In re Winship, 397 U.S. 358, 384-85, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Black, J., dissenting) (“It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of ‘fundamental fairness’ it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people — the right of each man to participate in the self-government of his society.”). However, although constitutional rights represent infringements on the ideal of pure majoritarianism, they are part of our law. As such, these rights must trump raw appeals to majori-tarian values. Cf. Harvey v. Horan (Harvey IV), 285 F.3d 298, 303 (4th Cir.2002) (Wilkinson, J., respecting the denial of rehearing en banc) (“To constitution-alize this area [i.e., post-conviction access to evidence for DNA testing] ... in the face of all this legislative activity and variation is to evince nothing less than a loss of faith in democracy. It is to believe that democratic processes are incapable of rising to the challenge, and that federal courts must do the governing for us.”). As constitutional rights derive their force from being law, they must be identified through traditional methods of legal analysis, taking into account the unusual breadth of the textual guarantees. Thus, I will consider several potential grounds for concluding that prisoners might retain a liberty interest, after conviction, in acquiring physical evidence for the purpose of DNA testing, and assess to what extent each is consistent with the Constitution’s text as interpreted by binding precedent. i. The Interest of an Innocent Prisoner in Release From Custody An overriding concern for innocence is a central preoccupation of our constitutional tradition. See, e.g., Winship, 397 U.S. at 363, 90 S.Ct. 1068 (“The standard [of proof beyond a reasonable doubt] provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” (internal quotation marks omitted)); id. at 372, 90 S.Ct. 1068 (Harlan, J., concurring) (“[I]t is far worse to convict an innocent man than to let a guilty man go free.”); McKithen VII, 481 F.3d at 91-92 (“ ‘[0]ur procedure has been always haunted by the ghost of the innocent man convicted ....’” (quoting United States v. Garsson, 291 F. 646, 649 (S.D.N.Y.1923) (Hand, J.))). Furthermore, “ ‘[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.’ ” Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (quoting Youngberg, 457 U.S. at 316, 102 S.Ct. 2452). It might then seem natural that inmates retain a liberty interest in being released from custody, conditioned on their innocence. There is some support for the idea that prisoners possess a liberty interest, cognizable in procedural due process, in undoing their convictions if they are innocent. In recognition of the tremendous importance of innocence, the Supreme Court has stated that “a prisoner retains an overriding ‘interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated.’ ” Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 452, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986) (Powell, J.) (plurality opinion)). On the strength of this, and on the Supreme Court’s other cases finding convicted inmates to retain substantive liberty interests, including freedom from bodily restraint, Judge Nancy Gertner of the United States District Court for the District of Massachusetts has concluded that inmates retain a liberty interest, for procedural due process purposes, in access to biological evidence for post-conviction DNA testing, and several other district courts have found this reasoning persuasive. Wade, 460 F.Supp.2d at 247 & n. 37 (citing, among others, Schlup, Youngberg and Foucha); see also Bryson v. Macy, No. 05-CV-1150 (F), 2007 WL 682030, at *5 (W.D.Okla. Mar.1, 2007) (“The court specifically concurs with the- analysis in Wade as to the viability of a claim based on that right [i.e., the right to post-conviction access to evidence for DNA testing], under due process principles.” (citation omitted)); Breest v. N.H. Att’y Gen., 472 F.Supp.2d 116, 120-21 (D.N.H.2007) (citing Wade and recognizing right of access). As initially compelling as this theory is, I find it difficult to reconcile with Supreme Court precedent, at least for noncapital defendants. The Supreme Court has never held that inmates convicted after a valid trial have an interest cognizable as a matter of procedural due process in being released from confinement if they are innocent. The remark in Schlup that innocent inmates have an overriding interest in release from custody was in the context of an exception to the rules governing procedurally defaulted petitions for habeas corpus, and did not appear to use the term “interest” in the procedural due process sense of “conditional legal entitlement.” 513 U.S. at 321-22, 115 S.Ct. 851. The liberty interests that the Supreme Court has definitively held convicted inmates to possess either concern the conditions of the inmate’s confinement, see Sandin, 515 U.S. at 483-84, 115 S.Ct. 2293 (recognizing a liberty interest in freedom from restraint which “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”); Youngberg, 457 U.S. at 315-16, 102 S.Ct. 2452 (finding that an involuntarily committed detainee had liberty interests in safety and freedom from bodily restraint within a mental institution); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (finding a liberty interest in avoiding involuntary psychiatric treatment and commitment in a mental institution); or have been created by statute or regulation, see Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (finding that the use of mandatory language in the Nebraska parole statute conveyed a liberty interest entitled to “some measure of constitutional protection”); Wolff, 418 U.S. at 556-58, 94 S.Ct. 2963 (finding a liberty interest in retention of good-time credits under a mandatory-state system). The Supreme Court has thus never held that for procedural due process purposes, an inmate has a liberty interest in overcoming the fact of confinement pursuant to a valid conviction. Indeed, in a line of cases surprisingly unmentioned by Brown, it has said almost exactly the opposite. In Greenholtz, the Court stated, “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” 442 U.S. at 7, 99 S.Ct. 2100 (internal brackets and quotation marks omitted). This statement formed the basis for the Court’s holding that there is no liberty interest in being released on parole absent a state-created entitlement conferred by the particular statute. Id. at 11, 99 S.Ct. 2100. This holding was reaffirmed and extended to commutations in Connecticut Board of Pardons v. Dumschat. 452 U.S. at 463-64, 101 S.Ct. 2460. The view that inmates’ liberty interest in release is “extinguished” by a valid conviction was most recently restated, with slight modifications, by two separate plurality opinions representing a total of seven justices in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998). Chief Justice Rehnquist, writing for himself and three other justices, extended the holding that an “individual’s interest in release or commutation is indistinguishable from the initial resistance to being confined, and that interest has already been extinguished by the conviction and sentence,” id. at 280, 118 S.Ct. 1244 (Rehnquist, C.J.) (plurality opinion) (internal quotation marks omitted), to apply not only to the liberty interest but also to the life interest of a capital prisoner seeking clemency, id. at 281, 118 S.Ct. 1244 (Rehnquist, C.J.). Writing for herself and three other justices, Justice O’Connor agreed that “[w]hen a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished,” id. at 289, 118 S.Ct. 1244 (O’Connor, J.) (plurality opinion), but found that a prisoner’s life interest was subject to “some minimal procedural safeguards,” justifying judicial intervention in extreme cases, such as “in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process,” id. at 289, 118 S.Ct. 1244 (O’Connor, J.). As Justice Stevens also found that a capital prisoner has a life interest deserving of procedural due process protection, id. at 292, 118 S.Ct. 1244 (Stevens, J., concurring in part and dissenting in part), a majority of the Court held that capital defendants do retain a life interest sufficient to impose at least minimal safeguards on clemency proceedings. However, the liberty interests of noncapital defendants appear not to include an interest in release before the expiration of a valid sentence. The cases concerning an inmate’s interest in clemency, however, do not distinguish between clemency based on mercy and clemency based on doubts regarding culpability. See, e.g., Woodard, 523 U.S. at 284, 118 S.Ct. 1244 (Rehnquist, C.J.) (“Clemency proceedings are not part of the trial — or even of the adjudicatory process. They do not determine the guilt or innocence of the defendant, and are not intended primarily to enhance the reliability of the trial process.”). They do not, therefore, explicitly address the possibility that an inmate might have a liberty interest in release on the condition that she is innocent. However, to say that the Constitution gives an inmate a liberty interest in release if she is innocent, for the purposes of procedural due process, is to say that an inmate who is innocent is entitled, by the Constitution, to be released. This in turn is to say that an inmate who is innocent is in “custody in violation of the Constitution” within the meaning of 28 U.S.C. § 2254. That possibility — that a petition for a writ of habeas corpus can be brought merely on the basis of a freestanding claim of innocence — was conspicuously left unresolved in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), where the Supreme Court assumed “for the sake of argument” that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Id. at 417, 113 S.Ct. 853; see also id. at 427, 113 S.Ct. 853 (O’Connor, J., concurring) (“Nowhere does the Court state that the Constitution permits the execution of an actually innocent person.”); House v. Bell, 547 U.S. 518, 555, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (once more declining to resolve the question). Though I must determine the contours of the right, if it exists, to post-conviction access to evidence for DNA testing, I find it unnecessary to resolve the difficult question whether actual innocence is a freestanding ground for habeas relief. The Supreme Court in Herrera made clear that any claim of actual innocence would require an “extraordinarily high” threshold showing of innocence. 506 U.S. at 417, 113 S.Ct. 853. I conclude in Section D.4, infra, that a prisoner’s liberty interest in meaningful access to existing clemency mechanisms requires the disclosure of evidence that has significantly less probative value than what would be needed to meet an “extraordinarily high” threshold. Therefore, the existence vel non of a constitutional right to release based on an extraordinarily high threshold showing of innocence does not affect the amount of evidence to which inmates are entitled; any disclosure that would be required to vindicate a liberty interest in release based on innocence would already be required to vindicate the liberty interest in meaningful access to existing clemency mechanisms. In sum, although prisoners retain liberty interests regarding the conditions of their confinement, and although capital prisoners retain some degree of life interests in receiving clemency, prisoners do not have liberty interests in release from custody before the end of valid sentences. I need not decide whether prisoners have liberty interests, for the purposes of procedural due process, in release from custody on the condition of their innocence. ii. The Interest in Meaningful Access to Existing Clemency Mechanisms As discussed in Section D.2.i, supra, noncapital prisoners have no liberty interest in receiving clemency in the form of a pardon, commutation or parole. However, in his concurrence in the Fourth Circuit’s denial of rehearing en banc in Harvey IV, which concerned post-conviction access to evidence for DNA testing, Judge J. Michael Luttig suggested that prisoners retain a “residual, substantive liberty interest in meaningful access to existing executive mechanisms of clemency.” 285 F.3d at 314 (Luttig, J., respecting the denial of rehearing en banc); see also Wade, 460 F.Supp.2d at 247 n. 37 (same, citing Harvey IV). That is, although a prisoner has no conditional entitlement to receive any form of clemency, she retains an entitlement to take actions seeking clemency through existing clemency mechanisms. This entitlement is conditional; she is not entitled to take absolutely any action in pursuit of clemency. Instead, she is entitled to take actions seeking clemency on the condition that her liberty to take those actions is necessary for her to enjoy meaningful access to the clemency mechanisms. I agree with Judge Luttig and hold that prisoners possess such a liberty interest. a. The Existence of an Interest in Meaningful Access to Existing Clemency Mechanisms The existence of a liberty interest in access to existing clemency mechanisms is clear, and it appears to encompass meaningful, not merely formal, access. The First Amendment guarantees the right to “petition the Government for a redress of grievances.” U.S. Const. amend. I. This right “has been recognized as one of the most precious of the liberties safeguarded by the Bill of Rights,” City of N.Y. v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir.2008) (internal quotation marks omitted), and survives incarceration, see Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[prisoners retain the constitutional right to petition the government for the redress of grievances.”). Among several other clauses, the Petition Clause has been seen as the basis for the constitutional right of access to the courts. See, e.g., Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (“[T]he right of access to the courts is an aspect of the First Amendment right to petition.”); Beretta, 524 F.3d at 397-98 (finding Petition Clause to undergird right of access to the courts); cf. Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (noting several other constitutional provisions that have been found by the Supreme Court to undergird the right of access to the courts, citing cases). The right to petition guaranteed by the First (and, as against the states, the Fourteenth) Amendment “applies with equal force to a person’s right to seek redress from all branches of government.” Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.1988). The Second Circuit has found a “clear relationship between the right of access to the courts and the right to petition for redress of grievances.” Id. As Franco concerned a § 1983 claim of retaliation for pursuing a prison grievance, the Second Circuit had no occasion to decide whether the right to petition other branches of government shares the same contours as the right of access to the courts. However, it strongly suggested that the two rights were closely analogous. In light of the “clear relationship” it found between the two rights, Franco, 854 F.2d at 589, the Second Circuit found the case “controlled,” id., by Morello v. James, 810 F.2d 344 (2d Cir.1987), an earlier case regarding the right of access to the courts where a prisoner had complained not of retaliation for accessing the courts but of confiscation of his legal papers, Morello, 810 F.2d at 345. Indeed, the Second Circuit held that “Franco should not be entitled to any less relief under section 1983 because he was addressing his complaints to a state administrative agency rather than to a court of law.” Franco, 854 F.2d at 589-90. Both Franco and Morello, in turn, defined the right of access to the courts by citing generally to the canonical court access case of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), overruled in part by Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), see Franco, 854 F.2d at 588 (citing Bounds); Morello, 810 F.2d at 346-47 (same), and Morello specifically cited Bounds for the proposition that the right of access to the courts imposes affirmative obligations on the government, Morello, 810 F.2d at 347. Bounds, in turn, held that prisoners’ access to the courts must be “adequate, effective and meaningful,” and required the provision of some legal assistance to inmates. Bounds, 430 U.S. at 822, 97 S.Ct. 1491. Bounds reached this conclusion by drawing on a number of disparate cases involving court access, which had proceeded on differing legal theories, and considering them all to be cases involving the right of access to the courts. Id. at 821-25, 97 S.Ct. 1491. Bounds itself considered the right of access to the courts simply under the Fourteenth Amendment, without specifying which clause. Id. at 818 & n. 1. I take the Second Circuit’s description in Franco of the relationship between the two rights, its view that Morello controlled the decision in Franco, and both cases’ reli-anee on Bounds to define the right of court access to indicate that the right to petition the executive branch has contours that are analogous to the right of access to the courts. The Supreme Court has, albeit in general language, similarly suggested a fairly tight relationship between the contours of the right of access to the courts and those of the right to petition the other branches. Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (“The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of government. Certainly the right to petition extends to all departments of the government. The right of access to the courts is indeed but one aspect of the right to petition.”). Given the wide variety of contexts in which one might petition the government, it might at first seem incongruous to find an analogy between the contours of a right to access court proceedings and a right to petition other branches. However, Bounds itself suggests a way in which the “clear relationship” seen by the Second Circuit in Franco can cause court access cases to “control[]” cases involving petitions addressed to other branches of government. Bounds recognized the unifying feature among various court access cases was the requirement that the access be “adequate, effective, and meaningful,” 430 U.S. at 822, 97 S.Ct. 1491. I conclude that similarly, access to existing mechanisms for relief in other branches of government must also be “adequate, effective, and meaningful,” though the wide variation between such mechanisms means that what constitutes meaningful access can vary significantly. I thus take the cases regarding meaningful access to the courts presumptively to provide guidance regarding what constitutes meaningful access, but only insofar as they address analogous situations. It is a difficult question what constitutes meaningful access to a discretionary system such as an executive clemency system. I begin by noting acknowledging again that prisoners possess no liberty interest in receiving clemency. See Section D.2.i, supra. However, whether access to courts is “meaningful” turns in large part on the prospects that a prisoner with a certain degree of access to existing mechanisms and with a meritorious claim can obtain relief. See, e.g., Bounds, 430 U.S. at 826, 97 S.Ct. 1491 (noting, in finding that access to a law library is part of meaningful access to the courts, that “[e]ven the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation”); cf. Lewis, 518 U.S. at 356, 116 S.Ct. 2174 (“When any inmate, even an illiterate or non-English-speaking inmate, shows that an actionable claim of this nature lie., challenging his conviction, sentence, or conditions of confinement] which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being prevented, because this capability of filing suit has not been provided, he demonstrates that the State has failed to furnish adequate law libraries or adequate assistance from persons trained in the law.” (emphasis omitted)). Similarly, I take the question whether access to existing clemency mechanisms is “meaningful” to depend in part on the prospects that a prisoner with that level of access has of obtaining clemency. b. The Existence of Affirmative Obligations to Render Access Meaningful The right of meaningful access to the courts imposes affirmative obligations on the government. Bounds, 430 U.S. at 824, 97 S.Ct. 1491 (“[0]ur decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts.”). Prison officials must provide writing and mailing materials, along with notarial materials and an adequate law library. Id. at 824-25, 97 S.Ct. 1491. Though the Supreme Court has made clear that the state need not “enable the prisoner to discover grievances, [or] to litigate effectively once in court,” Lewis, 518 U.S. at 354, 116 S.Ct. 2174 (emphasis omitted), it has required state prisons to enable prisoners to effectively challenge the fact or conditions of their confinement, id. at 355, 116 S.Ct. 2174. Furthermore, “the State is obligated to furnish prisoners not otherwise able to obtain it, with a transcript or equivalent recordation of prior habeas corpus hearings for use in further proceedings,” Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), demonstrating that the state’s duties extend to providing at least some inmate-specific material, not merely general supplies. See generally United States v. Sliker, 751 F.2d 477, 489-92 (2d Cir.1985) (tracing Supreme Court jurisprudence on provision of transcripts). However, it is not clear that the right of meaningful access to clemency proceedings imposes affirmative obligations on the government. I am unaware of any binding authority holding that the Petition Clause imposes affirmative obligations on the government as opposed to merely preventing impediments to, or retaliation for, an individual’s exercise of her right to petition. See, e.g., Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 464-65, 99 S.Ct. 1826, 60 L.Ed.2d 360 (1979) (“The First Amendment right to associate and advocate provides no guarantee that a speech will persuade or that advocacy will be effective. The public employee surely can associate and speak freely and openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” (citations and quotation marks omitted)). Further, given the wide variety of contexts in which an individual can petition the government for redress of grievances, and the wide range of mechanisms available to hear such petitions, it seems that, as a general matter, mere noninterference constitutes meaningful access to any mechanism set up to hear a petition other than a court. However, even assuming that meaningful access to executive clemency mechanisms generally consists of mere noninterference, the prosecutorial duty to seek justice, recognized in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and subsequent cases, provides a limited exception to this general rule. As the Supreme Court made clear in Brady and its progeny, prosecutors have a special obligation to seek justice with respect to their defendants, and this obligation mandates the disclosure of material favorable evidence for the defendant’s use at trial. This duty to disclose material favorable evidence, though it continues after a jury verdict, see Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.2001) {“Brady requires disclosure of information that the prosecution acquires during the trial itself, or even afterward.”), implicates the Due Process Clause only insofar as it affects the fairness of a defendant’s trial, see United States v. Ruiz, 536 U.S. 622, 629, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (characterizing Brady right as a trial right waived by guilty plea); see also United States v. Bagley, 473 U.S. 667, 675-76, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (finding that nondisclosure does not violate “ ‘the prosecutor’s constitutional duty’ ” unless “ ‘the omission deprived the defendant of a fair trial’ ” (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976))). Therefore, I agree with the courts that have held Brady inapplicable after judicial proceedings, at least to the extent that the defendant’s right to disclosure of all material favorable evidence does not persist after judicial proceedings have run their course. See, e.g., Gibson v. Sup’t of N.J. Dep’t of Law & Pub. Safety — Div. Of State Police, 411 F.3d 427, 444 (3d Cir.2005) (“[The plaintiff] has pointed to no constitutional duty to disclose potentially exculpatory evidence to a convicted criminal after the criminal proceedings have concluded and we decline to conclude that such a duty exists.”); Warney v. City of Rochester, 536 F.Supp.2d 285, 295 (2008) (finding that Brady does not apply after “the conclusion of trial and/or post-trial procedures,” but concluding that the principles underlying Brady continue to have force); see also Harvey v. Horan (Harvey III), 278 F.3d 370, 378-79 (4th Cir.2002) (rejecting claim that Brady allows post-conviction DNA testing when the defendant was able to test the evidence at trial “using the best technology available at the time”); Grayson v. King, 460 F.3d 1328, 1339-40 (11th Cir.2006) (similar), cert. denied, — U.S. -, 127 S.Ct. 1005, 166 L.Ed.2d 712 (2007); cf. Wade v. Brady, 460 F.Supp.2d at 243 (finding post-conviction access to DNA testing to be guaranteed by a due process right “analogous to Brady, not a literal application of its pre-trial guarantee”). However, even if the failure to disclose all material favorable evidence discovered after the conclusion of judicial proceedings does not deprive a defendant of due process, the prosecutor’s duty to seek justice survives in some form. The Court has recognized that “the prosecutor’s role transcends that of an adversary,” Bagley, 473 U.S. at 675 n. 6, 105 S.Ct. 3375, and that the prosecutor is “ ‘the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done,’ ” id. (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). Making clear that “justice” in this context means not merely the absence of unfair advantages, but also a substantively just outcome, the Supreme Court has observed that a prosecutor is “ ‘the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’ ” Agurs, 427 U.S. at 111, 96 S.Ct. 2392 (emphasis added) (quoting Berger, 295 U.S. at 8