Full opinion text
ORDER Appellee filed a petition for rehearing and rehearing en banc. Judge King voted to grant panel rehearing. Chief Judge Wilkinson and Judge Niemeyer voted to deny. No member of the Court requested a poll on the petition for rehearing en banc. Chief Judge Wilkinson filed an opinion concurring in the denial of rehearing and rehearing en banc. Judge Luttig filed an opinion respecting the denial of rehearing en banc. The Court denied the petition for rehearing and rehearing en banc. Entered at the direction of Chief Judge Wilkinson for the Court.
WILKINSON, Chief Judge, concurring in the denial of rehearing and rehearing en banc. There is no doubt that Harvey should receive the biological evidence in this case for DNA testing using technology that was unavailable at the time his Virginia conviction became final. In fact, the panel opinion suggested that the state courts could order DNA testing. See Harvey v. Horan, 278 F.3d 370, 380 (4th Cir.2002) (stating that “state courts are free in ways that we are not to set the ground rules by which further collateral attacks on state convictions such as Harvey’s may be entertained”). And that is precisely what the state courts have now done. The question before us is thus not whether Harvey should or will receive the DNA evidence. He should and he will. Rather, the issue is whether a § 1983 action brought in federal court in the first instance is the appropriate vehicle for him to access that evidence. I nonetheless confess myself puzzled over the discussion herein. The issues have been extensively addressed in the earlier majority and concurring opinions. No member of the court requested a poll on the suggestion for rehearing en banc, and my brother agrees “that a denial of rehearing en banc is now the proper disposition of this particular case.” Post at 326. However, inasmuch as my colleague has undertaken an extended discussion of his own, I tender this brief response. I. A. The threshold question posed by Harvey’s § 1983 action relates to the nature of the constitutional right he asserts. There are two possibilities here, one procedural and the other substantive. The procedural right is the right to press and proclaim one’s innocence in a federal forum in the first instance when seeking access to DNA testing, even where the judgment to be challenged is a state conviction. The American criminal justice system rightly sets the ascertainment of truth and the protection of innocence as its highest goals. The average school child is aware (or so we hope) that the accused is clothed with a presumption of innocence and that the prosecutor must prove beyond a reasonable doubt that a crime was committed. Moreover, the concern with innocence does not end at trial. Elaborate post-conviction procedures are rightly in place to ensure not only that a trial was fair, but also that no individual has been wrongly convicted. Our system however does not allow any person to press a claim of innocence at any time, at any place, and in any manner. The assertion of innocence, just as the assertion of any right, is intertwined with orderly process. It matters, for example, that a Virginia prisoner has sought here to bypass Virginia’s system of criminal justice altogether, and proceed directly into federal court under § 1983. Such disregard of process is an anomaly in an area where criminal defendants, above all, rely on proper process to protect their rights. What Alexander Bickel termed “the morality of process” in the political system has application to criminal justice as well. Alexander M. Bickel, The Morality of Consent 123 (1975). Shorn of process, neither the innocent nor the public upon whom offenders prey will have any assurance of justice. The panel opinion identifies the multiple procedural problems Harvey’s § 1983 claim faces. See Harvey, 278 F.3d at 374-80. Yet the separate opinion would throw each and every one of these considerations to the winds. As Harvey’s case shows, state courts, if given a chance, can rise to their responsibilities. Yet my good colleague would not only deny them that chance, but do so in unprecedented fashion, encouraging state prisoners to press their claims initially in federal court while disregarding all state court procedures and all state legislative avenues of redress. This is not to say that the federal courts are uncharitable with respect to claims of innocence. For example, Rule 33 of the Federal Rules of Criminal Procedure authorizes motions for a new trial on the basis of newly discovered evidence. And the seminal case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), allows a state prisoner to press a claim of innocence in federal court on the ground that “the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt.” 443 U.S. at 321, 99 S.Ct. 2781. See also Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (stating that “ ‘actual innocence’ is not itself a constitutional claim,” but that it can serve as a “gateway” through which a habeas petitioner can “have his otherwise barred constitutional claim considered on the merits”). It is important however that claims of innocence should be entertained, where possible, in the first instance by the court, or at least by the court system, that initially heard the case. Such a rule, ostensibly directed to considerations of venue or comity, actually serves a larger purpose. It recogniz'es in the underlying conviction not a conclusion of infallibility, but a presumption of legitimacy. That presumption would be lost if the court rendering the conviction could simply be disregarded and bypassed at will, which is what Harvey sought to do in fashioning his claim of innocence as a § 1983 suit. By design, judgments of conviction in criminal cases are not casually reached. .The efforts of jurors, judges, witnesses, prosecutors, and defense attorneys represent a considerable and conscientious effort at achieving justice — an effort which would be lost if the court or system rendering the judgment were entitled to no respect or even so much as acknowledgment thereafter. B. In addition to the procedural difficulties Harvey’s claim presents, this case poses the intractable problem of identifying the precise nature and scope of the substantive due process right that a federal court would have to bestow on Harvey in order for his § 1983 claim to proceed. Both the panel majority opinion and the concurrence recognized this. Harvey, 278 F.3d at 375-77, 380, 387-88 & n. 7. Indeed, the separate opinion acknowledges as well just how “formidable” the task of identifying the precise parameters of such a right would be. Post at 321. It accordingly declines to specify even the rough contours of the constitutional right of post-conviction access to DNA evidence that it divines. Post at 321. The separate opinion merely states, without explanation, that such a right would be “narrowly confine[d]” and governed by “strict and limiting” standards. Id. In the end, we are left to guess whether even Harvey himself would qualify for additional DNA testing under the separate opinion’s newly minted constitutional right of access to evidence. Post at 325. We are kept in the dark about what such a right would actually look like not just because defining the scope of the right would be “imprudent.” Post at 321. It is no more imprudent to define a right one has declared to exist than it is to assert its existence to begin with. It is not imprudence that accounts for this silence, but rather the humbling reality that it may well be impossible for a judge-qua-judge to accomplish this feat. That is why this task is one appropriately left to legislatures. A myriad of questions would have to be answered in order to define the parameters of a constitutional right to post-conviction access to DNA evidence. For instance, we would have to decide who could claim a right to DNA testing — in particular, whether such a right would apply to all prisoners or only those who committed certain crimes or who were serving some minimum prison term. Further, we would have to determine what threshold showing was required in order for a prisoner to receive post-conviction DNA testing. For example, does identity have to have been an issue at trial? What if the prisoner has pleaded guilty? In addition, we would have to decide to whom a request for post-conviction testing would be made and on the standard that the decision-maker would use in determining whether testing was appropriate. For example, must a prisoner show only that the untested evidence might possibly assist his claim of innocence, or that a reasonable probability exists that the outcome of his trial would have been different if the test results had been available? Or does some stricter standard apply? Moreover, we would have to determine whether there was a statute of limitations for bringing the request in the first place. Next, we would have to work out details of the testing system itself. First, we would have to identify who would bear the costs of the DNA testing. Would it be the state or federal government, the prisoner, or only prisoners who can afford the testing? Would we wait to determine if DNA testing had proved wholly or arguably successful for the requesting prisoner before determining who bears the cost? And we would have to decide if a state laboratory would conduct the test or if a prisoner or judge could select a private lab. We would also have to specify whether counsel would be appointed for every indigent person seeking testing. In addition, we would have to determine how long DNA evidence would have to be preserved and decide whether preservation was automatic or conditioned upon motion from a prisoner. Further, we would have to establish who would evaluate the DNA test results and when a result was conclusive enough of innocence to warrant further relief. Finally, we would have to lay out the relief that could be granted. Is a new trial or a pardon more appropriate? And upon a favorable test result, could a prisoner bring a claim for monetary relief for a wrongful conviction? Harvey would have the federal courts disregard the fact that both the Congress of the United States and the various state legislatures are presently wrestling with exactly these sorts of questions. Only the most aggressive view of federal judicial power could lead us to preempt both a coordinate branch of the federal government and the state courts and legislatures with what would in essence be prescriptive law making of our own. Thus my brother asks that we take a big step. If we were to vindicate Harvey’s claim, it would have to be because, as the separate opinion appears to conclude, post at 48, there was some substantive due process right to the fruits of scientific discoveries made after a conviction had become final — here, the advances in DNA testing technology. It is certainly true and a cause for celebration that DNA testing holds much promise. And there is no question that accused individuals and convicted inmates, as well as prosecutors, should reap the benefits of it. Indeed, many scientific advances promise substantial advantages. But this does not mean that we are free to constitutionalize a right of access to the fruits of scientific discoveries. There are often trade-offs to be faced when science advances. Scientific progress frequently presents questions of resource allocation, interpretation, application, privacy, and ethics. Balances must be struck between societal risks and benefits, between alternative ways of understanding and employing new techniques, and between permissible and impermissible uses. The courts should not precipitously offer answers to these questions. The issue raised in Harvey’s case is one we will confront many times again: Should the courts through the conversation-stopping process of constitutionalization decide for society what uses will be made of scientific progress, or should we await the input of legislative bodies before weighing in ourselves? The case for legislative bodies retaining control of advances in science is powerful because scientific discoveries have the potential to affect society in ways that may be profoundly beneficial or profoundly harmful. As science marches forward in our courts, it is not remiss to respect the ability of the political process to address its many implications. II. I repeat my hope that inmates such as Harvey will receive DNA testing. And I repeat my faith that the American system will provide it to them. This is not an area in which legislative bodies have gone into permanent recess. On the contrary, the panel majority opinion detailed the fact that Congress is actively considering legislative initiatives in this area. See Harvey, 278 F.3d at 376-77, 380. The Innocence Protection Act, which has been introduced in both houses of Congress, would increase the availability of post-conviction DNA testing for an individual convicted of a federal crime. Further, the Act would condition the grant of federal funds for state DNA-related programs on an assurance that the state would make post-conviction DNA testing available in certain types of cases. See S. 486 §§ 101-104, 107th Cong. (2001), 147 Cong. Rec. S1999, 2001-03 (Mar. 7, 2001); H.R. 912 §§ 101-104,107th Cong. (2001). Virginia has also passed legislation increasing the availability of post-conviction DNA testing, which Harvey himself successfully invoked in state court following oral argument in this case. See Harvey, 278 F.3d at 377, 380 n. 3. Virginia Code § 19.2-327.1 allows a convicted felon to apply to the state circuit court for DNA testing if, inter alia, the biological evidence was not subjected to the current DNA testing method and the testing is “materially relevant, noncumulative, and necessary and may prove the convicted person’s actual innocence.” Va.Code Ann. § 19.2-327.1 (Michie Supp. 2001). In addition, the Virginia statute details what a petitioner must set forth in his motion for post-conviction DNA testing, sets a timetable for the circuit court to hold a hearing on a prisoner’s motion, and structures the circuit court’s decision-making process on the petition. Id. The federal government and the Commonwealth of Virginia are far from alone in this area. In 1994, New York was the first state to pass a statute addressing post-conviction DNA testing. Developments in the Law: Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1573 (1995). And legislatures across the country are currently considering and enacting initiatives. In 2001 alone, seventeen states passed laws “to provide convicted criminals with improved access to DNA testing.” Always an eye for an eye?, The Economist, Jan. 5, 2002, at 26-27. State legislatures have set detailed ground rules for these types of actions, answering the numerous questions discussed above that post-conviction DNA testing raises. The legislatures have spelled out not only the circumstances in which a motion for additional DNA testing can be made, but also where such motions must be brought. They also have identified the parameters that control whether additional testing will be made available, whether a decision to grant or deny testing is appealable, who must bear the cost of the testing, and what relief is available if the results are favorable to the petitioner. See, e.g., N.Y.Crim. Proc. Law § 440.30 (McKinney Supp. 2001); Fla. Stat. Ann. §§ 925.11, '943.3251 (West Supp. 2001); Cal.Penal Code § 1405 (West Supp. 2002). The statutes reveal that there are many different approaches to resolving these issues. Within the Fourth Circuit alone, there is substantial variation in the approaches taken by Virginia, Maryland, and North Carolina, which have already enacted post-conviction DNA testing provisions. For example, the Virginia statute applies to people convicted of a felony, does not specify who pays for the DNA testing, and states that the testing will be performed by the Virginia Division of Forensic Science. See Va.Code Ann. § 19.2-327.1. In contrast, the Maryland statute applies only to people convicted of certain crimes, specifies that the petitioner shall pay the costs of the testing unless the results are favorable (in which case the state pays), and allows the judge reviewing the petition to select a laboratory for the testing from a list of accredited labs. See Md.Code Ann., Crina. Proc. § 8-201 (Michie 2001). In further contrast, the North Carolina statute applies to any criminal defendant, requires the defendant to pay the cost of the DNA testing unless he is indigent (in which case the state bears the cost), and does not indicate which lab 'will conduct the testing. See N.C. Gen.Stat. § ISA-269. To constitutionalize this area, as the separate opinion would, 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. In the end, this will deaden the lifeforee of democracy. It will cause legislatures across our nation to simply surrender the impulse to innovate based on the assumption that the federal courts are prepared to step in at any time. It will encourage elected officials to sit on their hands and turn over their responsibilities to federal judges. To be sure, the displacement of elected officials by judicial authority always pleases some of the people some of the time. But with activism, what goes around comes around. Today’s merriment becomes tomorrow’s mourning. III. To constitutionalize a right to post-conviction DNA testing in federal court in the first instance would have unfortunate consequences for our federalism as well. To recognize a § 1983 claim here, we would effectively have to overrule this court’s decision in Hamlin v. Warren, 664 F.2d 29 (4th Cir.1981), and the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The lesson of Hamlin and Preiser is that the state courts should have the first chance to review challenges to a state judgment of conviction. But Harvey never presented his claim in the Virginia courts until after the panel had heard oral argument in this case. This court in Hamlin recognized the reality of such a situation when we held that a prisoner’s § 1983 claim had to proceed under the habeas framework when the prisoner was seeking to establish “every predicate” for a subsequent request for release. 664 F.2d at 30, 32. We concluded that when a complaint “has all the earmarks of a deliberate attempt to subvert the [exhaustion] requirement of [28 U.S.C.] § 2254(b),” a petitioner must observe the habeas requirements, “notwithstanding the absence of any request for release.” Id. at 32. This fundamental doctrine ensures that states will be given at least the initial chance to review their own judgments before a federal court jumps into the fray. As the Supreme Court emphasized in Preiser, the exhaustion requirement “is rooted in considerations of federal-state comity,” and it would “wholly frustrate explicit congressional intent” to allow state prisoners to evade the exhaustion requirement “by the simple expedient” of putting a § 1983 label on their pleadings. 411 U.S. at 489-92 & n. 10, 93 S.Ct. 1827. The separate opinion contends that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), “was actually a quite narrow decision,” and that Heck would allow Harvey’s claim to proceed under § 1983. Post at 308. However, the whole point of Heck was to keep a state prisoner from challenging his conviction in federal court in the first instance through an unexhausted habeas claim masquerading as a § 1983 claim. Indeed, the requirement that a state prisoner exhaust state remedies before challenging his conviction in federal court has such a basic place in Supreme Court jurisprudence that it hardly needs mentioning. See, e.g., Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (explaining that “[t]he exhaustion doctrine existed long before its codification by Congress in 1948”). It is inconceivable that Heck meant to displace this long line of Supreme Court precedent on the exhaustion requirement, or that it stands for the proposition that claims such as Harvey’s may proceed ab initio in federal court. IV. Harvey achieved the relief he sought through the state courts and the state legislatures. And our decision in his case respects the proper role of the federal courts within the federal system. The separate opinion does just the opposite. With little hesitation, my colleague disregards the roles of all the other actors in the American system. His approach overturns longstanding Supreme Court precedent, to which lower court judges and even the Justices themselves owe deference. His view makes the Congress of the United States a subordinate player on the very difficult questions involved in determining the entitlements of individuals to the fruits of scientific advances. His approach treats both state legislatures and state court systems as junior partners with respect to their own trials and judgments. With all respect, there is a better way.
LUTTIG, Circuit Judge, respecting the denial of rehearing en banc. I concur in the court’s judgment to deny rehearing of this case en banc, but I do so only because it appears that appellee Harvey will, pursuant to state court order entered after our panel’s decision, be afforded the chance to subject the forensic evidence in question to further DNA tests — the same relief that he seeks from this court. In light of this order,, we likely do not have the authority to rehear this case even before the panel, much less before the court en banc. However, were it not for this intervening state court action, in my view this case would have been appropriate for full court review. For I believe that both the threshold procedural question of whether appellee asserts a cause of action under 42 U.S.C. § 1983 and the fundamental constitutional question of whether there exists under the Constitution of the United States a right, post-conviction, to access previously-produced forensic evidence for the purposes of further DNA testing are important questions of law. And I believe that each question was decided incorrectly by the panel whose .decisions have been drawn into question by appellee’s petition for rehearing en banc. So believing, and having no other opportunity to express my views on these important questions — the panel opinion now constituting the law of our Circuit — I set forth those views herein. I. Because of scientific advances in the testing of deoxyribonucleic acid, particularly Short Tandem Repeat (STR) DNA testing, one of the most important criminal law issues of our day is whether there exists under the Constitution of the United States a right, post-conviction, to access previously-produced forensic evidence for purposes of such, and related, DNA testing in order to establish — before the executive, if not also before the courts — one’s complete innocence, of the crime for which he has been convicted and sentenced. This issue is of especial importance where the right is asserted by one who, for capital offense, has been sentenced to death, but the principle at stake is no different for one who has been sentenced not to death, but to a term of extended incarceration. STR DNA and related techniques represent historic scientific developments, increasing exponentially the reliability of forensic identification over earlier techniques. There is now widespread agreement within the scientific community that this technology, which requires literally cellular-size samples only, can distinguish between any two individuals on the planet, other than identical twins, the statistical probabilities of STR DNA matches ranging in the hundreds of billions, if not trillions. In other words, STR DNA tests can, in certain circumstances, estab-fish to a virtual certainty whether a given individual did or did not commit a particular crime. These scientific advances, which have rendered it literally possible to confirm guilt or innocence beyond any question whatsoever, at least in some categories of cases, are no ordinary developments, even for science. And neither can they be treated as ordinary developments for law, as fully understandable is the temptation to do so because of the exceedingly difficult issues that otherwise are brought forth. Instead, permitting as they do the generation of evidence qualitatively like no other previously known, these scientific ad-vanees must be recognized for the singularly significant developments that they are — in the class of cases for which they actually can prove factual innocence, the evidentiary equivalent of “watershed” rules of constitutional law. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). And the questions these significant developments beget must in turn be recognized for the serious constitutional questions that they are. I believe that judicial recognition of this new science, and of the profound questions that it occasions, should, given law’s foundational concern for the determination of guilt and innocence, be unbegrudging. It is fully warranted, in the first instance, for all to be concerned over the burdens to our system of justice that will attend recognition of a constitutional right of access to DNA evidence post-conviction. If such a right is determined to exist, it is thereafter equally warranted to be concerned over the standards governing first, entitlement to such access, and second, the use in the courts, if any, of the results obtained from DNA tests. But no one, regardless of his political, philosophical, or jurisprudential disposition, should otherwise be troubled that a person who was convicted in accordance with law might thereafter be set free, either by the executive or by the courts, because of evidence that provides absolute proof that he did not in fact commit the crime for which he was convicted. Such is not an indictment of our system of justice which, while insisting upon a very high degree of proof for conviction, does not, after all, require proof beyond all doubt, and therefore is capable of producing erroneous determinations of both guilt and innocence. To the contrary, it would be a high credit to our system of justice that it recognizes the need for, and imperative of, a safety valve in those rare instances where objective proof that the convicted actually did not commit the offense later becomes available through the progress of science. Indeed, if it is agreed that, in a given class of cases, it would be possible to establish to a certainty through such further analysis that one did not in fact commit the crime for which he was convicted and sentenced, then grave harm would come to the Constitution were it to be dismissively interpreted as foreclosing access to such evidence under any and all circumstances and for any and all purposes (judicial or even executive). The Constitution is not so static. As I allude to, this is not at all to say that post-conviction access to evidence for further testing in light of scientific advance is (or ought to be) constitutionally required or permitted as a matter of course or even frequently. It should not be, not only because of the presumption of correctness rightly enjoyed by final judgments of conviction and the separate, indisputable interest in the finality of such judgments, but also because of the reality that only rarely will further testing hold out the possibility that the convicted actually can be proven innocent of the crime. Rather, it is only to say that it is unwise to hold categorically that there is not, under our Constitution, and never can be, a post-conviction right of access to evidence for the purpose of conducting tests, which, it is agreed, can definitively establish innocence. Such a categorical holding is no less to be avoided than a categorical holding that actual innocence is not, and can never be, a freestanding constitutional right. To hold either is simply to confer a sanctity upon finality that not even that concededly substantial interest deserves. II. The questions of whether there is or is not a constitutional post-conviction right to access evidence for purposes of DNA testing, and if there is such a right, the circumstances under which that right may be asserted, are not ones that courts should particularly relish decision upon, so difficult and delicate, I believe, are the answers to these questions. However, these questions cannot long be avoided, now that the science is available. And, indeed, depending upon how one answers the threshold question of whether the assertion of such a right of access is a direct challenge to one’s conviction or, instead, an independent constitutional claim under 42 U.S.C. § 1983, these ultimate constitutional questions may well be (and, for the reasons recited below, I believe are) directly presented in the case before us. Under applicable Supreme Court precedent, if the assertion of a post-conviction right of access to evidence for STR DNA testing that is herein made by appellee “necessarily implies” the invalidity of his conviction or sentence, then that right must be adjudicated in habeas corpus; a section 1983 claim does not lie, as a matter of law; and, given that in this case leave was not sought to raise the issue successively, the delicate question of whether such a right exists under the Constitution not only can be, but ought be in the interest of prudence, avoided. On the other hand, if the assertion of this right does not necessarily imply the invalidity-of the underlying conviction or sentence, but, rather, is properly understood as independent of any attack on the underlying conviction or sentence, then the instant case directly and unavoidably presents the exceedingly difficult and delicate questions of whether such a constitutional right to access previously-produced forensic evidence post-conviction for purposes of STR DNA testing does exist and, if it does, the circumstances under which it may be asserted. For, in the judgment under review, the distinguished district court judge held not only that there is such a right of access to evidence under the Constitution assertable under section 1983, but that that right would be abridged in this case were the requested access denied. The majority of our court, in a holding of significance in its own right, reversed the district court’s threshold judgment, concluding that the assertion of a post-conviction right to evidence for the purpose of STR DNA testing “necessarily implfies] the invalidity of [Harvey’s] conviction,” Harvey v. Horan, 278 F.3d 370, 374 (4th Cir.2002) (quoting Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)). Consequently, it held that appellee did not, and could not, state a claim for relief under section 1983. Id. Thereafter, although it need not have done so, the majority proceeded also to hold, on the underlying fundamental constitutional question, that there is no right under the Constitution to access evidence post-conviction for STR DNA testing under any circumstance, for any purpose. I would prefer not to have to address even the threshold, much less the fundamental constitutional, question in the posture of an opinion respecting a denial of rehearing en banc. However, the panel’s decision now constituting the law of our Circuit, this is the proper and only context in which to express my views on the important matters decided. This being the case, I believe that the court erred in both of its holdings, and, at least in the first (if not also in the second), fairly clearly so. I do not believe that the assertion of a constitutional right of access to evidence post-conviction even arguably implies, let alone “necessarily implies,” the invalidity of the petitioner’s conviction or sentence, as it must in order to be foreclosed under Heck v. Humphrey. If one concludes, as would I, that the access claim is one properly brought under section 1983, then the fundamental question of whether there is a constitutional post-conviction right to evidence for purposes of STR DNA testing must be decided. As to this question, I believe, also contrary to the majority, that there is a residual, core liberty interest protected by the Due Process Clause of the Fourteenth Amendment which, in certain, very limited circumstances, gives rise to a procedural due process right to access previously-produced forensic evidence for purposes of STR DNA testing. A. As to the threshold procedural question, I do not believe it even arguable that a post-conviction action merely to permit access to evidence for the purpose of STR DNA testing “necessarily implies” invalidity of the underlying conviction. Indeed, such necessarily implies nothing at all about the plaintiffs conviction. It certainly implies nothing more (and arguably it implies a good deal less) than does an assertion of constitutional right to material and exculpatory information producible under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which has never been thought necessarily to imply the invalidity of the underlying conviction. The results of any DNA tests that are eventually performed may be inconclusive, they may be insufficiently exculpatory, or they may even be inculpatory. That these scientific possibilities exist, in and of itself, suffices to establish that the asserted right of mere access is not a direct, or for that matter even an indirect, attack on one’s conviction or sentence. But if this were not enough to establish the point, then it should be that, in order to overturn a conviction based on exculpatory evidence that might appear from any DNA testing, the petitioner would have to initiate an entirely separate action at some future date, in which he would have to argue for his release upon the basis of a separate constitutional violation altogether. In sum, on no understanding would a plaintiffs action for mere access to evidence, “even if successful,” “demonstrate the invalidity of any outstanding criminal judgment.” Heck, 512 U.S. at 487, 114 S.Ct. 2364. Therefore, on the direct authority of Heck, which properly was actually a quite narrow decision, “the action should be allowed to proceed in the absence of some other bar to the suit.” Id. Such an assertion of a right only to access is, in principle, wholly unlike the claims asserted in Heck for an assertedly illegal investigation and arrest. Those claims, the Supreme Court reasoned, were most analogous to the common-law cause of action for malicious prosecution, id. at 484, 114 S.Ct. 2364, which required the plaintiff-accused to allege and prove the termination of the prior criminal proceeding in his favor. Id. Indeed, the almost polar difference between the claims in Heck for “actions whose unlawfulness would render a conviction or sentence invalid,” id. at 486, 114 S.Ct. 2364, and the claim of right merely to access evidence for the purpose of further tests, the results of which may even prove the defendant’s guilt beyond any question, is virtual confirmation that the latter is not a challenge to one’s conviction or sentence, but, rather, an assertion of an independent constitutional right. The specific examples that the Supreme Court offered to illustrate the line of distinction between a cause of action that necessarily implies the invalidity of a conviction and one that does not, remove any doubt on this score. As an illustration of the former, the Court offered the example of a state defendant who was convicted of resisting a lawful arrest and brings an action under section 1983 for an unreasonable seizure in violation of the Fourth Amendment. See Heck, 512 U.S. at 486, n. 6, 114 S.Ct. 2364. Such an action would be barred, explained the Court, because, “[i]n order to prevail in this § 1983 action, [the state defendant] would have to negate an element of the offense of which he has been convicted,” id. (emphasis added)— that element being that the arrest was lawful. On the other end of the continuum, as an illustration of a cause of action that would be allowed to proceed under section 1983, the Court offered the example of a plaintiff who brings a section 1983 action for damages for an unlawful search that produced the evidence on the basis of which the plaintiff was convicted. Id. at 487 n.7, 114 S.Ct. 2364. Because the fruits of that (possibly illegal) search might ultimately be admissible under the independent source or inevitable discovery doctrines, or their admission be deemed harmless error, the Court explained, this plaintiffs section 1983 action, “even if successful, would not necessarily imply that the plaintiffs conviction was unlawful.” Id. (emphasis in original). That the Court snugly drew the fault line to the necessity that the success of the 1983 action depend upon proof that the underlying conviction is invalid if it is to be foreclosed, is evident from its insistence upon negation of an offense element in the first example and its own revealing italicization of the imperative in the latter. The implications for the present case of so tightly drawing the line are apparent. In the extent to which it implies invalidity of the underlying conviction, a claim of constitutional right of access to evidence for DNA testing does not even approach the claim that was said by the Court in its footnote 7 not to necessarily imply the invalidity of the conviction; further still is such a claim from the one that the Court said in its footnote 6 would necessarily imply the invalidity of the conviction. The plaintiff who presents a claim of constitutional right of access to evidence does not even have to rely upon an exception in law to avoid what would otherwise be the unavoidable conclusion that the plaintiffs complaint of an unlawful search would necessarily draw into question his underlying conviction; and the plaintiff who merely seeks access to evidence for testing certainly is not required to “negate an element of the offense of which he has been convicted,” Heck, 512 U.S. at 486 n. 6, 114 S.Ct. 2364, in order to prevail. The conclusion is inescapable from these examples (even if it were not from the reasoning of the opinion itself) that the claim of a right of access to evidence is not one that in any respect implies the invalidity of the claimant’s conviction and sentence. Not only does such a conclusion seem unassailable under Heck v. Humphrey, but in a twist to be sure, it is all but, if not fully, established by two (frankly striking) passages from the majority’s own opinion. In the first, the majority writes as follows: [Section] 1983 exists for the more limited purpose of redressing violations of the Constitution and federal statutes. Harvey has made no argument that his conviction violates the Constitution or any federal law. In fact, at oral argument Harvey conceded that he received due process under the law and under the science in existence when he was convicted in 1990. To confer upon Harvey a wide-ranging constitutional right in the absence of any argument that his underlying conviction violated the Constitution or a federal statute is simply beyond judicial competence. Harvey, 278 F.3d at 376 (emphasis added). And in the second, combined passage, the majority states, equally tellingly, that, Harvey is seeking access to DNA evidence for one reason and one reason only — as the first step in undermining his conviction. He believes that the DNA test results will be favorable and will allow him to bring a subsequent motion to invalidate his conviction. ... Harvey is attempting to ... use his claim for access to evidence to set the stage for a future attack on his confinement. Id. at 375, 378 (emphases added). Standing alone, as they do, against what are only eonclusory statements by the majority to the contrary, I believe that these passages establish beyond any question that, even on the majority’s own understanding, appellee’s access claim does not “necessarily imply” the invalidity of his conviction, and therefore that he has properly alleged a cause of action under section 1983. I am not entirely clear how the majority comes to the contrary conclusion. It appears, however, that in effect it mistakenly analyzed appellee’s claim as if it were one alleging a constitutional right not to be punished upon proof of actual innocence (proof in the form of the STR DNA results appellee hopes will emerge from the tests he wishes to have performed if his asserted right to access is accepted). This claim would indeed be foreclosed by Heck, because it would “necessarily imply” the invalidity of appellee’s conviction and sentence. But this is not the claim that ap-pellee makes. His, rather, is an antecedent claim to such a factual innocence claim. For the reasons recited, such a claim in no way implies, much less “necessarily implies,” the invalidity of appellee’s conviction or sentence. B. On the understanding that appellee’s claim is, as he contends, properly brought under 42 U.S.C. § 1983, I believe, for the reasons I have identified, that there is an affirmative obligation to decide the fundamental constitutional question presented by this case. That question is not, as the majority characterizes it, whether we are “to declare a general constitutional right for every inmate to continually challenge a valid conviction based on whatever technological advances may have occurred since his conviction became final.” Harvey, 278 F.3d at 375 (emphasis added). Nor is it whether we are to “[e]stablish[ ] a constitutional due process right under § 1983 to retest evidence with each forward step in forensic science.” Id. at 376 (emphasis added). The beauty of these questions (whether intended or not) is that they carry with them easy answers, answers to which there would likely not even be dissent. The far narrower question that we are asked to decide, which is considerably more difficult and consequently more difficult to dismiss with the back of the hand, is whether there exists a constitutional right, post-conviction, to access previously-produced forensic evidence for the purpose of DNA retesting in light of the particular, extra-ordinary scientific advance represented by STR and its related techniques, which it is agreed have the potential in certain instances to prove beyond all doubt whether the requesting person in fact committed the crime for which he was convicted and sentenced. The asserted right at issue is not one to material, exculpatory evidence necessary to ensure a fair trial. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. It is not a right of “factual innocence.” See Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Nor is it one of right to the preservation of potentially exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 338, 102 L.Ed.2d 281 (1988). At least as classically understood, it is not a right of procedural due process. And neither is it a typical substantive due process right. But it is a right that legitimately draws upon the principles that underlay all of these — a conceptual and constitutional fact that understandably eluded, at the same time that it confounded, the majority and the concurrence, appellant, and even appellee. As to this fundamental constitutional question, I understand the majority to hold that there exists no such right of access to evidence post-conviction, regardless of the circumstance. But regardless whether one understands the majority’s conclusion as a holding or as mere dicta,1 believe that, in its conclusion that no right of access to evidence post-conviction exists under the Constitution, the court also erred. 1. I believe, and would hold, that there does exist such a post-conviction right of access to evidence. Even those in our society who have been lawfully deprived of them freedom retain residual, substantive liberty interests protected by the Fourteenth Amendment. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (“The mere fact that [petitioner] has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.” (citation omitted)); id. at 315-16, 102 S.Ct. 2452 (noting that the incarcerated have liberty interest in food, shelter, and clothing, and holding that prisoners also retain liberty interest in personal security (citing Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) and Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978))); Vitek v. Jones, 445 U.S. 480, 491-94, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (holding that convicted felon retains a liberty interest, not extinguished by his confinement, in not being transferred to a mental institution without due process); cf. Foucha v. Louisiana, 504 U.S. 71, 78-79, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (insanity acquitee retains residual liberty interest, protected by due process, in not being committed to mental institution after he is no longer mentally ill and no longer poses a danger to himself or others); Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that parolee has an “indeterminate” liberty interest which “includes many of the core values of unqualified liberty”). And, indeed, the core liberty interest protected by the Fourteenth Anendment — freedom from bodily restraint — itself, residually survives conviction and incarceration. See, e.g., Foucha, 504 U.S. at 80, 112 S.Ct. 1780 (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 18, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (POWELL, J., concurring in part and dissenting in part) (noting that “[liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action”); see also Youngberg, 457 U.S. at 816, 102 S.Ct. 2452 (quoting Greenholtz, 442 U.S. at 18, 99 S.Ct. 2100 (POWELL, J., concurring in part and dissenting in part), and noting that “[t]his interest [in freedom from bodily restraint] survives criminal conviction and incarceration”). Were I writing on a clean slate, I would conclude that one retains, even after conviction and sentence, not only a protected liberty interest in his core right to freedom from bodily restraint, but also a protected liberty interest to pursue his freedom from confinement, though obviously after conviction these interests are residual and considerably reduced (to say the least) from those existing pre-conviction. There may even be an interest in freedom from confinement itself, although such a conclusion arguably is foreclosed by precedent. Chief Justice Rehnquist writing in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), in an opinion for four Members of the Court, -said that an individual who has been lawfully convicted no longer possesses a cognizable due process interest in his actual release from confinement through clemency, whether he is sentenced to a term of imprisonment or to death. See id. at 283, 118 S.Ct. 1244 (“There is no substantive expectation of clemency.”). An interest in release, by the executive, through parole, pardon or commutation, he explained, “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 (internal quotations and citations omitted); see also id. at 282, 118 S.Ct. 1244 (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)). However, it is not entirely clear that a majority of the Court agrees that there is no liberty interest at all in one’s freedom from confinement post-conviction. Justice O’Connor, for herself and three different Justices from those who joined the Chief Justice, wrote separately in Ohio Adult Parole Authority, concurring in part and concurring in the judgment only. Although disagreeing with the Chief Justice that a prisoner under sentence of death no longer retains a life interest cognizable under the Due Process Clause, id.; , see also id. at 290-95, 118 S.Ct. 1244 (opinion of STEVENS, J., concurring in part and dissenting in part) (agreeing that liberty interest in release is “extinguished” upon lawful conviction and sentence and that cognizable life interest continues for one sentenced to death), Justice O’Connor did appear to agree with the Chief Justice that one’s liberty interest “in being free from confinement” is “extinguished” once he has been lawfully convicted and sentenced, see Ohio Adult Parole Authority, 523 U.S. at 288, 289, 118 S.Ct. 1244. But, while she appeared to agree on this point, she did not distinguish between capital and noncapital prisoners in her ultimate conclusion that “some minimal procedural safeguards apply to clemency proceedings.” 523 U.S. at 289, 118 S.Ct. 1244 (emphasis in original); see also id. (observing, again without distinguishing between capital and noncapital prisoners, that judicial intervention might be in order “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”). And more importantly, as the Chief Justice implicitly recognized through his refusal to draw a distinction between the constitutionally-protected, post-conviction interests of the capital and the noncapital prisoner, the “life interest” of the capital prisoner would seem to continue (or not) to the same extent as does the “liberty interest” of the noncapital prisoner. Just as the capital prisoner continues to possess an interest in his life because he is still alive, so also does the noncapital prisoner continue to have a liberty interest in his freedom, at least for those days that remain to be served on his sentence. (Of course, while the Chief Justice concludes, for his plurality, that both the life and the liberty interests are “extinguished,” I believe that arguably neither is.). Thus, I am not convinced that, were the issue squarely put before Justice O’Connor, the three Justices who joined her opinion in Ohio Adult Parole Authority, and Justice Stevens, these five Justices would conclude that the noncapital prisoner possesses no liberty interest whatsoever in his freedom from confinement, having concluded as they did that the capital prisoner continues to possess a life interest in clemency that is cognizable under the Due Process Clause. But, even if the noncapital prisoner’s liberty interest both in pursuing his freedom and in actually being free from confinement were completely extinguished upon conviction and sentence, I would hold that, clemency constituting the safety net of our criminal justice system for the prevention of miscarriages of justice, see generally Herrera v. Collins, 506 U.S. 390, 411-15, 113 S.Ct. 853, 122 L.Ed.2d 203, the noncapital prisoner retains (as does the capital prisoner, I believe), at least a residual, substantive liberty interest in meaningful access to existing executive mechanisms of clemency, which access would enable him to pursue his freedom from confinement from the executive based upon the claim that he is factually innocent of the crime for which he was convicted. See id. at 411-12 & n. 13, 113 S.Ct. 853 (explaining that clemency is the “historic mechanism” for obtaining relief based upon factual innocence). This interest exists, I believe, even if there is no independent liberty interest in these mechanisms themselves; in the particular processes by which the executive exercises his discretion to grant or deny clemency; or in the freedom that would result from favorable executive action obtained through these mechanisms, such as would entitle one under the Constitution to a clemency procedure, to particular processes within a clemency procedure, or to actual release pursuant to a clemency procedure. See, e.g., Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998); Olim v. Waki nekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). I would further hold that, at least in limited circumstances, this substantive liberty interest is protected through a procedural due process right to have previously-produced forensic evidence either released to the convicted individual for STR, or related, DNA testing at his or her own expense, or submitted by the government for such testing, with the test results to be provided thereafter to the convicted individual. A right of access to evidence for tests which, given the particular crime for which the individual was convicted and the evidence that was offered by the government at trial in support of the defendant’s guilt, could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required, I believe, as a matter of basic fairness. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); id. at 334, 96 S.Ct. 893 (holding that due process requires “such procedural protections as the particular situation demands”); Greenholtz v. Nebraska Penal Inmates, 442 U.S. at 13-14, 99 S.Ct. 2100 (applying Mathews in determining whether procedures -surrounding parole decision satisfied due process); id. at 12, 99 S.Ct. 2100 (“It is axiomatic that due process ‘is flexible and calls for such procedural protections as the particular situation [requires].’ ” (quoting Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. 2593)). For the better part of a half-century, if not longer, the government has been required, as a matter of procedural due process, or basic fairness, see Albright v. Oliver; 510 U.S. 266, 273 & n.6, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), to produce to the defendant all potentially exculpatory evidence in order to ensure that the defendant’s trial is fair, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; cf. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 7$ L.Ed. 791 (1935), a requirement that emerged out of recognition that the interest of our criminal justice system is not only in convicting the guilty but also in ensuring that the innocent are not wrongfully convicted. See Brady, 373 U.S. at 87, 83 S.Ct. 1194 (quoting, as illustrative of fundamental principle requiring disclosure, inscription on Department of Justice that “[t]he United States wins its point whenever justice is done its citizens in the courts”); id. at n. 2, 83 S.Ct. 1194 (also quoting, as reflective of controlling prinei-pie, Solicitor General Sobeloffs remark that the government’s “chief business is not to achieve victory but to establish justice”); see also United States v. Agurs, 427 U.S. 97, 110-11, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (explaining that the government’s “overriding interest [is] that ‘justice shall be done’[ ] [and that the prosecutor] is the ‘servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer’ ” (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935))); California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (noting the Court’s development of “what might loosely be called the area of constitutionally guaranteed access to evidence” and explaining that these privileges “deliver[ ] exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system” (citation omitted)). Given that the convicted has been found guilty by a jury, deprived of his liberty by due process of law, and thus no longer enjoys the presumption of innocence, no one would contend that fairness, in the constitutional sense, requires a post-conviction right of access or a right to disclosure anything approaching in scope that which is required pre-trial. For instance, it could never be maintained that fairness requires that the convicted be provided with any and all material, potentially exculpatory information that comes forth post-trial, as is required pre-trial. But, at least where the government holds previously-produced forensic evidence, the testing of which concededly could prove beyond any doubt that the defendant did not commit the crime for which he was convicted, the very same principle of elemental fairness that dictates pre-trial production of all potentially exculpatory evidence dictates post-trial production of this infinitely narrower category of evidence. And it does so out of recognition of the same systemic interests in fairness and ultimate truth. There was a time when concealment and gamesmanship were accepted, as part and parcel of the adversarial process of the criminal justice system. As Professor Wigmore colorfully wrote, in discussion of both civil and criminal discovery at common law: To require the disclosure to an adversary of the evidence that is to be produced, would be repugnant to all sportsmanlike instincts. Thus the common law permitted a litigant to reserve his evidential resources (tactics, documents, witnesses) until the final moment, marshaling them at the trial before his surprised and dismayed antagonist. Such was the spirit of the common law; and such in part it still is. It did not defend or condone trickery and deception; but it did regard the concealment of one’s evidential resources and the preservation of the opponent’s defenseless ignorance as a fair and irreproachable accompaniment of the game of litigation. See 6 Wigmore, Discovery § 1845 at 490 (3d ed. 1940). But, in the interests of both elemental fairness and truth, we decidedly rejected this system long ago, in favor of one that insists instead upon full disclosure of all evidence that might prove innocence. See, e.g., Brady v. Maryland; United States v. Agurs, 427 U.S. at 108, 96 S.Ct. 2392 (noting that the Court had in Brady “expressly rejected” the “ ‘sporting theory of justice’ ”). Under this very different system of full disclosure, it would simply be “constitutionally intolerable,” Herrera v. Collins, 506 U.S. at 419, 113 S.Ct. 853 (concurring opinion of O’CONNOR, J., joined by KENNEDY, J.), for the government to withhold from the convicted, for no reason at all, the very evidence that it used to deprive him of his liberty, where he persists in his absolute innocence and further tests of the evidence could, given the circumstances of the crime and the evidence marshaled against the defendant at trial, establish to a certainty whether he actually is factually innocent of the crime for which he was convicted. The denial of access in this circumstance would not be, do I contend, the strict equivalent of bad-faith destruction of potentially exculpatory evidence. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281. But in a system that prizes fairness and truth above all else, it comes so perilously close to such as not to be permitted. See id. at 337 (holding that due process requires the preservation of evidence where “the police themselves by their conduct indicate that the evidenc