District Attorney's Office for Third Judicial Dist. v. Osborne , 557 U.S. 52 ( 2009 )


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  • (Slip Opinion)              OCTOBER TERM, 2008                                       1
    
                                           Syllabus
    
             NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
           being done in connection with this case, at the time the opinion is issued.
           The syllabus constitutes no part of the opinion of the Court but has been
           prepared by the Reporter of Decisions for the convenience of the reader.
           See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    
    
    SUPREME COURT OF THE UNITED STATES
    
                                           Syllabus
    
        DISTRICT ATTORNEY’S OFFICE FOR THE THIRD 
    
            JUDICIAL DISTRICT ET AL. v. OSBORNE 
    
    
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                      THE NINTH CIRCUIT
    
            No. 08–6. Argued March 2, 2009—Decided June 18, 2009
    Respondent Osborne was convicted of sexual assault and other crimes
      in state court. Years later, he filed this suit under 
    42 U.S. C
    . §1983,
      claiming he had a due process right to access the evidence used
      against him in order to subject it to DNA testing at his own expense.
      The Federal District Court first dismissed his claim under Heck v.
      Humphrey, 
    512 U.S. 477
    , holding that Osborne must proceed in ha
      beas because he sought to set the stage for an attack on his convic
      tion. The Ninth Circuit reversed, concluding that §1983 was the
      proper vehicle for Osborne’s claims. On remand, the District Court
      granted Osborne summary judgment, concluding that he had a lim
      ited constitutional right to the new testing under the unique and spe
      cific facts presented, i.e., that such testing had been unavailable at
      trial, that it could be accomplished at almost no cost to the State, and
      that the results were likely to be material. The Ninth Circuit af
      firmed, relying on the prosecutorial duty to disclose exculpatory evi
      dence under, e.g., Brady v. Maryland, 
    373 U.S. 83
    .
    Held: Assuming Osborne’s claims can be pursued using §1983, he has
     no constitutional right to obtain postconviction access to the State’s
     evidence for DNA testing. Pp. 8–21.
        (a) DNA testing has an unparalleled ability both to exonerate the
     wrongly convicted and to identify the guilty. The availability of new
     DNA testing technologies, however, cannot mean that every criminal
     conviction, or even every criminal conviction involving biological evi
     dence, is suddenly in doubt. The task of establishing rules to harness
     DNA’s power to prove innocence without unnecessarily overthrowing
     the established criminal justice system belongs primarily to the legis
     lature. See Washington v. Glucksberg, 
    521 U.S. 702
    , 719. Forty-six
    2       DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                          DIST. v. OSBORNE 
    
                               Syllabus 
    
    
        States and the Federal Government have already enacted statutes
        dealing specifically with access to evidence for DNA testing. These
        laws recognize the value of DNA testing but also the need for condi
        tions on accessing the State’s evidence. Alaska is one of a handful of
        States yet to enact specific DNA testing legislation, but Alaska courts
        are addressing how to apply existing discovery and postconviction re
        lief laws to this novel technology. Pp. 8–11.
           (b) The Court assumes without deciding that the Ninth Circuit was
        correct that Heck does not bar Osborne’s §1983 claim. That claim can
        be rejected without resolving the proper application of Heck. Pp. 12–
        13.
           (c) The Ninth Circuit erred in finding a due process violation.
        Pp. 13–21.
              (i) While Osborne does have a liberty interest in pursuing the
        postconviction relief granted by the State, the Ninth Circuit erred in
        extending the Brady right of pretrial disclosure to the postconviction
        context. Osborne has already been found guilty and therefore has
        only a limited liberty interest in postconviction relief. See, e.g.,
        Herrera v. Collins, 
    506 U.S. 390
    , 399. Instead of the Brady inquiry,
        the question is whether consideration of Osborne’s claim within the
        framework of the State’s postconviction relief procedures “offends
        some [fundamental] principle of justice” or “transgresses any recog
        nized principle of fundamental fairness in operation.” Medina v.
        California, 
    505 U.S. 437
    , 446, 448. Federal courts may upset a
        State’s postconviction relief procedures only if they are fundamen
        tally inadequate to vindicate the substantive rights provided.
           There is nothing inadequate about Alaska’s postconviction relief
        procedures in general or its methods for applying those procedures to
        persons seeking access to evidence for DNA testing. The State pro
        vides a substantive right to be released on a sufficiently compelling
        showing of new evidence that establishes innocence. It also provides
        for discovery in postconviction proceedings, and has—through judi
        cial decision—specified that such discovery is available to those seek
        ing access to evidence for DNA testing. These procedures are similar
        to those provided by federal law and the laws of other States, and
        they satisfy due process. The same is true for Osborne’s reliance on a
        claimed federal right to be released upon proof of “actual innocence.”
        Even assuming such a right exists, which the Court has not decided
        and does not decide, there is no due process problem, given the pro
        cedures available to access evidence for DNA testing. Pp. 13–18.
              (ii) The Court rejects Osborne’s invitation to recognize a free
        standing, substantive due process right to DNA evidence untethered
        from the liberty interests he hopes to vindicate with it. In the cir
        cumstances of this case, there is no such right. Generally, the Court
                         Cite as: 557 U. S. ____ (2009)                    3
    
                                    Syllabus
    
      is “reluctant to expand the concept of substantive due process be
      cause guideposts for responsible decisionmaking in this unchartered
      area are scarce and open-ended.” Collins v. Harker Heights, 
    503 U.S. 115
    , 125. There is no long history of a right of access to state
      evidence for DNA testing that might prove innocence. “The mere
      novelty of such a claim is reason enough to doubt that ‘substantive
      due process’ sustains it.” Reno v. Flores, 
    507 U.S. 292
    , 303. More
      over, to suddenly constitutionalize this area would short-circuit what
      has been a prompt and considered legislative response by Congress
      and the States. It would shift to the Federal Judiciary responsibility
      for devising rules governing DNA access and creating a new constitu
      tional code of procedures to answer the myriad questions that would
      arise. There is no reason to suppose that federal courts’ answers to
      those questions will be any better than those of state courts and leg
      islatures, and good reason to suspect the opposite. See, e.g., Collins,
      supra, at 125. Pp. 19–21.
    
    521 F.3d 1118
    , reversed and remanded.
    
       ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
    KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring
    opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined
    as to Part II. STEVENS, J., filed a dissenting opinion, in which GINS-
    BURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part
    I. SOUTER, J., filed a dissenting opinion.
                            Cite as: 557 U. S. ____ (2009)                              1
    
                                 Opinion of the Court
    
         NOTICE: This opinion is subject to formal revision before publication in the
         preliminary print of the United States Reports. Readers are requested to
         notify the Reporter of Decisions, Supreme Court of the United States, Wash
         ington, D. C. 20543, of any typographical or other formal errors, in order
         that corrections may be made before the preliminary print goes to press.
    
    
    SUPREME COURT OF THE UNITED STATES
                                       _________________
    
                                         No. 08–6
                                       _________________
    
    
      DISTRICT ATTORNEY’S OFFICE FOR THE THIRD 
    
        JUDICIAL DISTRICT, ET AL., PETITIONERS v.
    
                 WILLIAM G. OSBORNE
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                                     [June 18, 2009] 
    
    
       CHIEF JUSTICE ROBERTS delivered the opinion of the
    Court.
       DNA testing has an unparalleled ability both to exoner
    ate the wrongly convicted and to identify the guilty. It has
    the potential to significantly improve both the criminal
    justice system and police investigative practices. The
    Federal Government and the States have recognized this,
    and have developed special approaches to ensure that this
    evidentiary tool can be effectively incorporated into estab
    lished criminal procedure—usually but not always
    through legislation.
       Against this prompt and considered response, the re
    spondent, William Osborne, proposes a different approach:
    the recognition of a freestanding and far-reaching consti
    tutional right of access to this new type of evidence. The
    nature of what he seeks is confirmed by his decision to file
    this lawsuit in federal court under 
    42 U.S. C
    . §1983, not
    within the state criminal justice system. This approach
    would take the development of rules and procedures in
    this area out of the hands of legislatures and state courts
    2    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    shaping policy in a focused manner and turn it over to
    federal courts applying the broad parameters of the Due
    Process Clause. There is no reason to constitutionalize the
    issue in this way. Because the decision below would do
    just that, we reverse.
                                  I
    
                                  A
    
       This lawsuit arose out of a violent crime committed 16
    years ago, which has resulted in a long string of litigation
    in the state and federal courts. On the evening of March
    22, 1993, two men driving through Anchorage, Alaska,
    solicited sex from a female prostitute, K. G. She agreed to
    perform fellatio on both men for $100 and got in their car.
    The three spent some time looking for a place to stop and
    ended up in a deserted area near Earthquake Park. When
    K. G. demanded payment in advance, the two men pulled
    out a gun and forced her to perform fellatio on the driver
    while the passenger penetrated her vaginally, using a blue
    condom she had brought. The passenger then ordered
    K. G. out of the car and told her to lie face-down in the
    snow. Fearing for her life, she refused, and the two men
    choked her and beat her with the gun. When K. G. tried
    to flee, the passenger beat her with a wooden axe handle
    and shot her in the head while she lay on the ground.
    They kicked some snow on top of her and left her for dead.
    
    521 F.3d 1118
    , 1122 (CA9 2008) (case below); Osborne v.
    State, 
    163 P.3d 973
    , 975–976 (Alaska App. 2007) (Osborne
    II); App. 27, 42–44.
       K. G. did not die; the bullet had only grazed her head.
    Once the two men left, she found her way back to the road,
    and flagged down a passing car to take her home. Ulti
    mately, she received medical care and spoke to the police.
    At the scene of the crime, the police recovered a spent
    shell casing, the axe handle, some of K. G.’s clothing
    stained with blood, and the blue condom. Jackson v.
                     Cite as: 557 U. S. ____ (2009)           3
    
                         Opinion of the Court
    
    State, No. A–5276 etc. (Alaska App., Feb. 7, 1996), App. to
    Pet. for Cert. 117a.
       Six days later, two military police officers at Fort
    Richardson pulled over Dexter Jackson for flashing his
    headlights at another vehicle. In his car they discovered a
    gun (which matched the shell casing), as well as several
    items K. G. had been carrying the night of the attack. Id.,
    at 116a, 118a–119a. The car also matched the description
    K. G. had given to the police. Jackson admitted that he
    had been the driver during the rape and assault, and told
    the police that William Osborne had been his passenger.
    
    521 F. 3d
    , at 1122–1123; 
    423 F.3d 1050
    , 1051–1052 (CA9
    2005); Osborne v. State, 
    110 P.3d 986
    , 990 (Alaska App.
    2005) (Osborne I). Other evidence also implicated Os
    borne. K. G. picked out his photograph (with some uncer
    tainty) and at trial she identified Osborne as her attacker.
    Other witnesses testified that shortly before the crime,
    Osborne had called Jackson from an arcade, and then
    driven off with him. An axe handle similar to the one at
    the scene of the crime was found in Osborne’s room on the
    military base where he lived.
       The State also performed DQ Alpha testing on sperm
    found in the blue condom. DQ Alpha testing is a relatively
    inexact form of DNA testing that can clear some wrongly
    accused individuals, but generally cannot narrow the
    perpetrator down to less than 5% of the population. See
    Dept. of Justice, National Comm’n on the Future of DNA
    Evidence, The Future of Forensic DNA Testing 17 (NCJ
    183697, 2000) (hereinafter Future of Forensic DNA Test
    ing); Dept. of Justice, National Comm’n on the Future of
    DNA Evidence, Postconviction DNA Testing: Recommen
    dations for Handling Requests 27 (NCJ 177626, 1999)
    (hereinafter Postconviction DNA Testing). The semen
    found on the condom had a genotype that matched a blood
    sample taken from Osborne, but not ones from Jackson,
    K. G., or a third suspect named James Hunter. Osborne is
    4    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    black, and approximately 16% of black individuals have
    such a genotype. App. 117–119. In other words, the test
    ing ruled out Jackson and Hunter as possible sources of
    the semen, and also ruled out over 80% of other black
    individuals. The State also examined some pubic hairs
    found at the scene of the crime, which were not susceptible
    to DQ Alpha testing, but which state witnesses attested to
    be similar to Osborne’s. App. to Pet. for Cert. 117a.
                                   B
       Osborne and Jackson were convicted by an Alaska jury
    of kidnaping, assault, and sexual assault. They were
    acquitted of an additional count of sexual assault and of
    attempted murder. Finding it “ ‘nearly miraculous’ ” that
    K. G. had survived, the trial judge sentenced Osborne to
    26 years in prison, with 5 suspended. Id., at 128a. His
    conviction and sentence were affirmed on appeal. Id., at
    113a–130a.
       Osborne then sought postconviction relief in Alaska
    state court. He claimed that he had asked his attorney,
    Sidney Billingslea, to seek more discriminating restric
    tion-fragment-length-polymorphism (RFLP) DNA testing
    during trial, and argued that she was constitutionally
    ineffective for not doing so.1 Billingslea testified that after
    investigation, she had concluded that further testing
    would do more harm than good. She planned to mount a
    defense of mistaken identity, and thought that the impre
    cision of the DQ Alpha test gave her “ ‘very good numbers
    in a mistaken identity, cross-racial identification case,
    where the victim was in the dark and had bad eyesight.’ ”
    ——————
      1 RFLP testing, unlike DQ Alpha testing, “has a high degree of dis
    
    crimination,” although it is sometimes ineffective on small samples.
    Postconviction DNA Testing 26–27; Future of Forensic DNA Testing
    14–16. Billingslea testified that she had no memory of Osborne making
    such a request, but said she was “ ‘willing to accept’ ” that he had.
    Osborne I, 
    110 P.3d 986
    , 990 (Alaska App. 2005).
                         Cite as: 557 U. S. ____ (2009)                   5
    
                             Opinion of the Court
    
    Osborne I, 
    110 P. 3d
    , at 990. Because she believed Os
    borne was guilty, “ ‘insisting on a more advanced . . . DNA
    test would have served to prove that Osborne committed
    the alleged crimes.’ ” Ibid. The Alaska Court of Appeals
    concluded that Billingslea’s decision had been strategic
    and rejected Osborne’s claim. Id., at 991–992.
      In this proceeding, Osborne also sought the DNA testing
    that Billingslea had failed to perform, relying on an
    Alaska postconviction statute, Alaska Stat. §12.72 (2008),
    and the State and Federal Constitutions. In two decisions,
    the Alaska Court of Appeals concluded that Osborne had
    no right to the RFLP test. According to the court, §12.72
    “apparently” did not apply to DNA testing that had been
    available at trial.2 Osborne I, 
    110 P. 3d
    , at 992–993. The
    court found no basis in our precedents for recognizing a
    federal constitutional right to DNA evidence. Id., at 993.
    After a remand for further findings, the Alaska Court of
    Appeals concluded that Osborne could not claim a state
    constitutional right either, because the other evidence of
    his guilt was too strong and RFLP testing was not likely to
    be conclusive. Osborne II, 
    163 P. 3d
    , at 979–981. Two of
    the three judges wrote separately to say that “[i]f Osborne
    could show that he were in fact innocent, it would be
    unconscionable to punish him,” and that doing so might
    violate the Alaska Constitution. Id., at 984–985 (Mann
    heimer, J., concurring).
      The court relied heavily on the fact that Osborne had
    confessed to some of his crimes in a 2004 application for
    parole—in which it is a crime to lie. Id., at 978–979, 981
    (majority opinion) (citing Alaska Stat. §11.56.210 (2002)).
    In this statement, Osborne acknowledged forcing K. G. to
    
    ——————
      2 It is not clear whether the Alaska Court of Appeals was correct that
    Osborne sought only forms of DNA testing that had been available at
    trial, compare Osborne I, supra, at 992, 995, with 
    521 F.3d 1118
    , 1123,
    n. 2 (CA9 2008), but it resolved the case on that basis.
    6     DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                        DIST. v. OSBORNE
                        Opinion of the Court
    
    have sex at gunpoint, as well as beating her and covering
    her with snow. Id., at 977–978, n. 11. He repeated this
    confession before the parole board. Despite this accep
    tance of responsibility, the board did not grant him discre
    tionary parole. App. to Pet. for Cert. 8a. In 2007, he was
    released on mandatory parole, but he has since been rear
    rested for another offense, and the State has petitioned to
    revoke this parole. Brief for Petitioners 7, n. 3.
       Meanwhile, Osborne had also been active in federal
    court, suing state officials under 
    42 U.S. C
    . §1983. He
    claimed that the Due Process Clause and other constitu
    tional provisions gave him a constitutional right to access
    the DNA evidence for what is known as short-tandem
    repeat (STR) testing (at his own expense). App. 24. This
    form of testing is more discriminating than the DQ Alpha
    or RFLP methods available at the time of Osborne’s trial.3
    The District Court first dismissed the claim under Heck v.
    Humphrey, 
    512 U.S. 477
     (1994), holding it “inescapable”
    that Osborne sought to “set the stage” for an attack on his
    conviction, and therefore “must proceed through a writ of
    habeas corpus.” App. 207 (internal quotation marks omit
    ted). The United States Court of Appeals for the Ninth
    Circuit reversed, concluding that §1983 was the proper
    vehicle for Osborne’s claims, while “express[ing] no opin
    ion as to whether Osborne ha[d] been deprived of a feder
    ally protected right.” 
    423 F. 3d
    , at 1056.
       On cross-motions for summary judgment after remand,
    
    ——————
      3 STR testing is extremely discriminating, can be used on small sam
    
    ples, and is “rapidly becoming the standard.” Future of Forensic DNA
    Testing 18, n. 9. Osborne also sought to subject the pubic hairs to
    mitochondrial DNA testing, a secondary testing method often used
    when a sample cannot be subjected to other tests. See Postconviction
    DNA Testing 28. He argues that “[a]ll of the same arguments that
    support access to the condom for STR testing support access to the
    hairs for mitochondrial testing as well,” Brief for Respondent 11, n. 4,
    and we treat the claim accordingly.
                     Cite as: 557 U. S. ____ (2009)            7
    
                         Opinion of the Court
    
    the District Court concluded that “there does exist, under
    the unique and specific facts presented, a very limited
    constitutional right to the testing sought.” 
    445 F. Supp. 2d
     1079, 1081 (2006). The court relied on several factors:
    that the testing Osborne sought had been unavailable at
    trial, that the testing could be accomplished at almost no
    cost to the State, and that the results were likely to be
    material. Id., at 1081–1082. It therefore granted sum
    mary judgment in favor of Osborne.
       The Court of Appeals affirmed, relying on the prosecuto
    rial duty to disclose exculpatory evidence recognized in
    Pennsylvania v. Ritchie, 
    480 U.S. 39
     (1987), and Brady v.
    Maryland, 
    373 U.S. 83
     (1963). While acknowledging that
    our precedents “involved only the right to pre-trial disclo
    sure,” the court concluded that the Due Process Clause
    also “extends the government’s duty to disclose (or the
    defendant’s right of access) to post-conviction proceedings.”
    
    521 F. 3d
    , at 1128. Although Osborne’s trial and appeals
    were over, the court noted that he had a “potentially vi
    able” state constitutional claim of “actual innocence,” id.,
    at 1130, and relied on the “well-established assumption”
    that a similar claim arose under the Federal Constitution,
    id., at 1131; cf. Herrera v. Collins, 
    506 U.S. 390
     (1993).
    The court held that these potential claims extended some
    of the State’s Brady obligations to the postconviction
    context.
       The court declined to decide the details of what showing
    must be made to access the evidence because it found
    “Osborne’s case for disclosure . . . so strong on the facts”
    that “[w]herever the bar is, he crosses it.” 
    521 F. 3d
    , at
    1134. While acknowledging that Osborne’s prior confes
    sions were “certainly relevant,” the court concluded that
    they did not “necessarily trum[p] . . . the right to obtain
    post-conviction access to evidence” in light of the “emerg
    ing reality of wrongful convictions based on false confes
    sions.” Id., at 1140.
    8    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
       We granted certiorari to decide whether Osborne’s
    claims could be pursued using §1983, and whether he has
    a right under the Due Process Clause to obtain postconvic
    tion access to the State’s evidence for DNA testing. 555
    U. S. ___ (2008); Pet. for Cert. i. We now reverse on the
    latter ground.
                                II
       Modern DNA testing can provide powerful new evidence
    unlike anything known before. Since its first use in crimi
    nal investigations in the mid-1980s, there have been
    several major advances in DNA technology, culminating in
    STR technology. It is now often possible to determine
    whether a biological tissue matches a suspect with near
    certainty. While of course many criminal trials proceed
    without any forensic and scientific testing at all, there is
    no technology comparable to DNA testing for matching
    tissues when such evidence is at issue. Postconviction
    DNA Testing 1–2; Future of Forensic DNA Testing 13–14.
    DNA testing has exonerated wrongly convicted people, and
    has confirmed the convictions of many others.
       At the same time, DNA testing alone does not always
    resolve a case. Where there is enough other incriminating
    evidence and an explanation for the DNA result, science
    alone cannot prove a prisoner innocent. See House v. Bell,
    
    547 U.S. 518
    , 540–548 (2006). The availability of tech
    nologies not available at trial cannot mean that every
    criminal conviction, or even every criminal conviction
    involving biological evidence, is suddenly in doubt. The
    dilemma is how to harness DNA’s power to prove inno
    cence without unnecessarily overthrowing the established
    system of criminal justice.
       That task belongs primarily to the legislature. “[T]he
    States are currently engaged in serious, thoughtful ex
    aminations,” Washington v. Glucksberg, 
    521 U.S. 702
    , 719
    (1997), of how to ensure the fair and effective use of this
                     Cite as: 557 U. S. ____ (2009)            9
    
                         Opinion of the Court
    
    testing within the existing criminal justice framework.
    Forty-six States have already enacted statutes dealing
    specifically with access to DNA evidence. See generally
    Brief for State of California et al. as Amici Curiae 3–13;
    Garrett, Claiming Innocence, 
    92 Minn. L
    . Rev 1629, 1719
    (2008) (surveying state statutes); see also An Act to Im
    prove the Preservation and Accessibility of Biological
    Evidence, Mississippi S. 2709 (enacted March 16, 2009);
    An Act to Provide for DNA Testing for Certain Inmates for
    the Purposes of Determining Whether They May Have
    Been Wrongfully Convicted, South Dakota H. 1166 (en
    acted March 11, 2009). The State of Alaska itself is con
    sidering joining them. See An Act Relating to Post
    conviction DNA Testing, H. 174, 26th Leg., 1st Sess.
    (2009) (proposed legislation similar to that enacted by the
    States). The Federal Government has also passed the
    Innocence Protection Act of 2004, §411, 118 Stat. 2278,
    codified in part at 
    18 U.S. C
    . §3600, which allows federal
    prisoners to move for court-ordered DNA testing under
    certain specified conditions. That Act also grants money
    to States that enact comparable statutes, §413, 118 Stat.
    2285, note following 
    42 U.S. C
    . §14136, and as a conse
    quence has served as a model for some state legislation.
    At oral argument, Osborne agreed that the federal statute
    is a model for how States ought to handle the issue. Tr. of
    Oral Arg. 33, 38–39; see also Brief for United States as
    Amicus Curiae 19–26 (defending constitutionality of Inno
    cence Protection Act).
       These laws recognize the value of DNA evidence but also
    the need for certain conditions on access to the State’s
    evidence. A requirement of demonstrating materiality is
    common, e.g., 
    18 U.S. C
    . §3600(a)(8), but it is not the only
    one. The federal statute, for example, requires a sworn
    statement that the applicant is innocent. §3600(a)(1).
    This requirement is replicated in several state statutes.
    E.g., Cal. Penal Code Ann. §§1405(b)(1), (c)(1) (West Supp.
    10   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    2009); Fla. Stat. §925.11(2)(a)(3) (2006); N. H. Rev. Stat.
    Ann. 651–D:2(I)(b) (2007); S. C. Code Ann. 17–28–40
    (Supp. 2008). States also impose a range of diligence
    requirements. Several require the requested testing to
    “have been technologically impossible at trial.” Garrett,
    supra, at 1681, and n. 242. Others deny testing to those
    who declined testing at trial for tactical reasons. E.g.,
    Utah Code. Ann. §78B–9–301(4) (2008).
       Alaska is one of a handful of States yet to enact legisla
    tion specifically addressing the issue of evidence requested
    for DNA testing. But that does not mean that such evi
    dence is unavailable for those seeking to prove their inno
    cence. Instead, Alaska courts are addressing how to apply
    existing laws for discovery and postconviction relief to this
    novel technology. See Osborne I, 
    110 P. 3d
    , at 992–993;
    Patterson v. State, No. A–8814, 
    2006 WL 573797
    , *4
    (Alaska App., Mar. 8, 2006). The same is true with respect
    to other States that do not have DNA-specific statutes.
    E.g., Fagan v. State, 
    957 So. 2d 1159
     (Ala. Crim. App.
    2007). Cf. Mass. Rule Crim. Proc. 30(c)(4) (2009).
       First, access to evidence is available under Alaska law
    for those who seek to subject it to newly available DNA
    testing that will prove them to be actually innocent.
    Under the State’s general postconviction relief statute, a
    prisoner may challenge his conviction when “there exists
    evidence of material facts, not previously presented and
    heard by the court, that requires vacation of the conviction
    or sentence in the interest of justice.” Alaska Stat.
    §12.72.010(4) (2008). Such a claim is exempt from other
    wise applicable time limits if “newly discovered evidence,”
    pursued with due diligence, “establishes by clear and
    convincing evidence that the applicant is innocent.”
    §12.72.020(b)(2).
       Both parties agree that under these provisions of §12.72,
    “a defendant is entitled to post-conviction relief if the
    defendant presents newly discovered evidence that estab
                     Cite as: 557 U. S. ____ (2009)           11
    
                         Opinion of the Court
    
    lishes by clear and convincing evidence that the defendant
    is innocent.” Osborne I, supra, at 992 (internal quotation
    marks omitted). If such a claim is brought, state law
    permits general discovery.          See Alaska Rule Crim.
    Proc. 35.1(g). Alaska courts have explained that these
    procedures are available to request DNA evidence for
    newly available testing to establish actual innocence. See
    Patterson, supra, at *4 (“If Patterson had brought the
    DNA analysis request as part of his previous application
    for [postconviction] relief . . . he would have been able to
    request production of evidence”).
       In addition to this statutory procedure, the Alaska
    Court of Appeals has invoked a widely accepted three-part
    test to govern additional rights to DNA access under the
    State Constitution. Osborne II, 
    163 P. 3d
    , at 974–975.
    Drawing on the experience with DNA evidence of State
    Supreme Courts around the country, the Court of Appeals
    explained that it was “reluctant to hold that Alaska law
    offers no remedy to defendants who could prove their
    factual innocence.” Osborne I, 
    110 P. 3d
    , at 995; see id., at
    995, n. 27 (citing decisions from other state courts). It was
    “prepared to hold, however, that a defendant who seeks
    post-conviction DNA testing . . . must show (1) that the
    conviction rested primarily on eyewitness identification
    evidence, (2) that there was a demonstrable doubt con
    cerning the defendant’s identification as the perpetrator,
    and (3) that scientific testing would likely be conclusive on
    this issue.” Id., at 995. Thus, the Alaska courts have
    suggested that even those who do not get discovery under
    the State’s criminal rules have available to them a safety
    valve under the State Constitution.
       This is the background against which the Federal Court
    of Appeals ordered the State to turn over the DNA evi
    dence in its possession, and it is our starting point in
    analyzing Osborne’s constitutional claims.
    12   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
                                   III
       The parties dispute whether Osborne has invoked the
    proper federal statute in bringing his claim. He sued
    under the federal civil rights statute, 
    42 U.S. C
    . §1983,
    which gives a cause of action to those who challenge a
    State’s “deprivation of any rights . . . secured by the Con
    stitution.” The State insists that Osborne’s claim must be
    brought under 
    28 U.S. C
    . §2254, which allows a prisoner
    to seek “a writ of habeas corpus . . . on the ground that he
    is in custody in violation of the Constitution.”
       While Osborne’s claim falls within the literal terms of
    §1983, we have also recognized that §1983 must be read in
    harmony with the habeas statute. See Preiser v. Rodri
    guez, 
    411 U.S. 475
    , 500 (1973); Heck, 512 U. S., at 487.
    “Stripped to its essence,” the State says, “Osborne’s §1983
    action is nothing more than a request for evidence to
    support a hypothetical claim that he is actually inno
    cent. . . . [T]his hypothetical claim sounds at the core of
    habeas corpus.” Brief for Petitioners 19.
       Osborne responds that his claim does not sound in
    habeas at all. Although invalidating his conviction is of
    course his ultimate goal, giving him the evidence he seeks
    “would not necessarily imply the invalidity of [his] con
    finement.” Brief for Respondent 21. If he prevails, he
    would receive only access to the DNA, and even if DNA
    testing exonerates him, his conviction is not automatically
    invalidated. He must bring an entirely separate suit or a
    petition for clemency to invalidate his conviction. If he
    were proved innocent, the State might also release him on
    its own initiative, avoiding any need to pursue habeas at
    all.
       Osborne also invokes our recent decision in Wilkinson v.
    Dotson, 
    544 U.S. 74
     (2005). There, we held that prisoners
    who sought new hearings for parole eligibility and suit
    ability need not proceed in habeas. We acknowledged that
    the two plaintiffs “hope[d]” their suits would “help bring
                      Cite as: 557 U. S. ____ (2009)             13
    
                          Opinion of the Court
    
    about earlier release,” id., at 78, but concluded that the
    §1983 suit would not accomplish that without further
    proceedings. “Because neither prisoner’s claim would
    necessarily spell speedier release, neither l[ay] at the core
    of habeas corpus.” Id., at 82 (internal quotation marks
    omitted). Every Court of Appeals to consider the question
    since Dotson has decided that because access to DNA
    evidence similarly does not “necessarily spell speedier
    release,” ibid., it can be sought under §1983. See 
    423 F. 3d
    , at 1055–1056; Savory v. Lyons, 
    469 F.3d 667
    , 672
    (CA7 2006); McKithen v. Brown, 
    481 F.3d 89
    , 103, and n.
    15 (CA2 2007). On the other hand, the State argues that
    Dotson is distinguishable because the challenged proce
    dures in that case did not affect the ultimate “exercise of
    discretion by the parole board.” Brief for Petitioners 32.
    It also maintains that Dotson does not set forth “the exclu
    sive test for whether a prisoner may proceed under §1983.”
    Brief for Petitioners 32.
       While we granted certiorari on this question, our resolu
    tion of Osborne’s claims does not require us to resolve this
    difficult issue. Accordingly, we will assume without decid
    ing that the Court of Appeals was correct that Heck does
    not bar Osborne’s §1983 claim. Even under this assump
    tion, it was wrong to find a due process violation.
                                   IV 
    
                                    A
    
       “No State shall . . . deprive any person of life, liberty, or
    property, without due process of law.” U. S. Const., Amdt.
    14, §1; accord Amdt. 5. This Clause imposes procedural
    limitations on a State’s power to take away protected
    entitlements. See, e.g., Jones v. Flowers, 
    547 U.S. 220
    ,
    226–239 (2006). Osborne argues that access to the State’s
    evidence is a “process” needed to vindicate his right to
    prove himself innocent and get out of jail. Process is not
    an end in itself, so a necessary premise of this argument is
    14   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    that he has an entitlement (what our precedents call a
    “liberty interest”) to prove his innocence even after a fair
    trial has proved otherwise. We must first examine this
    asserted liberty interest to determine what process (if any)
    is due. See Board of Regents of State Colleges v. Roth, 
    408 U.S. 564
    , 570–571 (1972); Olim v. Wakinekona, 
    461 U.S. 238
    , 250–251 (1983).
       In identifying his potential liberty interest, Osborne
    first attempts to rely on the Governor’s constitutional
    authority to “grant pardons, commutations, and re
    prieves.” Alaska Const., Art. III, §21. That claim can be
    readily disposed of. We have held that noncapital defen
    dants do not have a liberty interest in traditional state
    executive clemency, to which no particular claimant is
    entitled as a matter of state law. Connecticut Bd. of Par
    dons v. Dumschat, 
    452 U.S. 458
    , 464 (1981). Osborne
    therefore cannot challenge the constitutionality of any
    procedures available to vindicate an interest in state
    clemency.
       Osborne does, however, have a liberty interest in dem
    onstrating his innocence with new evidence under state
    law. As explained, Alaska law provides that those who
    use “newly discovered evidence” to “establis[h] by clear
    and convincing evidence that [they are] innocent” may
    obtain “vacation of [their] conviction or sentence in the
    interest of justice.”      Alaska Stat. §§12.72.020(b)(2),
    12.72.010(4). This “state-created right can, in some cir
    cumstances, beget yet other rights to procedures essential
    to the realization of the parent right.” Dumschat, supra,
    at 463; see also Wolff v. McDonnell, 
    418 U.S. 539
    , 556–
    558 (1974).
       The Court of Appeals went too far, however, in conclud
    ing that the Due Process Clause requires that certain
    familiar preconviction trial rights be extended to protect
    Osborne’s postconviction liberty interest. After identifying
    Osborne’s possible liberty interests, the court concluded
                      Cite as: 557 U. S. ____ (2009)           15
    
                          Opinion of the Court
    
    that the State had an obligation to comply with the princi
    ples of Brady v. Maryland, 
    373 U.S. 83
    . In that case, we
    held that due process requires a prosecutor to disclose
    material exculpatory evidence to the defendant before
    trial. The Court of Appeals acknowledged that nothing in
    our precedents suggested that this disclosure obligation
    continued after the defendant was convicted and the case
    was closed, 
    521 F. 3d
    , at 1128, but it relied on prior Ninth
    Circuit precedent applying “Brady as a post-conviction
    right,” id., at 1128–1129 (citing Thomas v. Goldsmith, 
    979 F.2d 746
    , 749–750 (1992)). Osborne does not claim that
    Brady controls this case, Brief for Respondent 39–40, and
    with good reason.
       A criminal defendant proved guilty after a fair trial does
    not have the same liberty interests as a free man. At trial,
    the defendant is presumed innocent and may demand that
    the government prove its case beyond reasonable doubt.
    But “[o]nce a defendant has been afforded a fair trial and
    convicted of the offense for which he was charged, the
    presumption of innocence disappears.” Herrera v. Collins,
    
    506 U.S. 390
    , 399 (1993). “Given a valid conviction, the
    criminal defendant has been constitutionally deprived of
    his liberty.” Dumschat, supra, at 464 (internal quotation
    marks and alterations omitted).
       The State accordingly has more flexibility in deciding
    what procedures are needed in the context of postconvic
    tion relief. “[W]hen a State chooses to offer help to those
    seeking relief from convictions,” due process does not
    “dictat[e] the exact form such assistance must assume.”
    Pennsylvania v. Finley, 
    481 U.S. 551
    , 559 (1987). Os
    borne’s right to due process is not parallel to a trial right,
    but rather must be analyzed in light of the fact that he has
    already been found guilty at a fair trial, and has only a
    limited interest in postconviction relief. Brady is the
    wrong framework.
       Instead, the question is whether consideration of Os
    16   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    borne’s claim within the framework of the State’s proce
    dures for postconviction relief “offends some principle of
    justice so rooted in the traditions and conscience of our
    people as to be ranked as fundamental,” or “transgresses
    any recognized principle of fundamental fairness in opera
    tion.” Medina v. California, 
    505 U.S. 437
    , 446, 448 (1992)
    (internal quotation marks omitted); see Herrera, supra, at
    407–408 (applying Medina to postconviction relief for
    actual innocence); Finley, supra, at 556 (postconviction
    relief procedures are constitutional if they “compor[t] with
    fundamental fairness”). Federal courts may upset a
    State’s postconviction relief procedures only if they are
    fundamentally inadequate to vindicate the substantive
    rights provided.
       We see nothing inadequate about the procedures Alaska
    has provided to vindicate its state right to postconviction
    relief in general, and nothing inadequate about how those
    procedures apply to those who seek access to DNA evi
    dence. Alaska provides a substantive right to be released
    on a sufficiently compelling showing of new evidence that
    establishes innocence. It exempts such claims from oth
    erwise applicable time limits. The State provides for
    discovery in postconviction proceedings, and has—through
    judicial decision—specified that this discovery procedure
    is available to those seeking access to DNA evidence.
    Patterson, 
    2006 WL 573797
    , at *4. These procedures are
    not without limits. The evidence must indeed be newly
    available to qualify under Alaska’s statute, must have
    been diligently pursued, and must also be sufficiently
    material. These procedures are similar to those provided
    for DNA evidence by federal law and the law of other
    States, see, e.g., 
    18 U.S. C
    . §3600(a), and they are not
    inconsistent with the “traditions and conscience of our
    people” or with “any recognized principle of fundamental
    fairness.” Medina, supra, at 446, 448 (internal quotation
    marks omitted).
                     Cite as: 557 U. S. ____ (2009)          17
    
                         Opinion of the Court
    
       And there is more. While the Alaska courts have not
    had occasion to conclusively decide the question, the
    Alaska Court of Appeals has suggested that the State
    Constitution provides an additional right of access to
    DNA. In expressing its “reluctan[ce] to hold that Alaska
    law offers no remedy” to those who belatedly seek DNA
    testing, and in invoking the three-part test used by other
    state courts, the court indicated that in an appropriate
    case the State Constitution may provide a failsafe even for
    those who cannot satisfy the statutory requirements under
    general postconviction procedures. Osborne I, 
    110 P. 3d
    ,
    at 995–996.
       To the degree there is some uncertainty in the details of
    Alaska’s newly developing procedures for obtaining post
    conviction access to DNA, we can hardly fault the State for
    that. Osborne has brought this §1983 action without ever
    using these procedures in filing a state or federal habeas
    claim relying on actual innocence. In other words, he has
    not tried to use the process provided to him by the State or
    attempted to vindicate the liberty interest that is now the
    centerpiece of his claim. When Osborne did request DNA
    testing in state court, he sought RFLP testing that had
    been available at trial, not the STR testing he now seeks,
    and the state court relied on that fact in denying him
    testing under Alaska law. Osborne I, supra, at 992 (“[T]he
    DNA testing that Osborne proposes to perform on this
    evidence existed at the time of Osborne’s trial”); Osborne
    II, 
    163 P. 3d
    , at 984 (Mannheimer, J., concurring) (“[T]he
    DNA testing [Osborne] proposes would not yield ‘new
    evidence’ for purposes of . . . [Alaska Stat. §12.72.010]”
    because it was “available at the time of Osborne’s trial”).
       His attempt to sidestep state process through a new
    federal lawsuit puts Osborne in a very awkward position.
    If he simply seeks the DNA through the State’s discovery
    procedures, he might well get it. If he does not, it may be
    for a perfectly adequate reason, just as the federal statute
    18   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       Opinion of the Court
    
    and all state statutes impose conditions and limits on
    access to DNA evidence. It is difficult to criticize the
    State’s procedures when Osborne has not invoked them.
    This is not to say that Osborne must exhaust state-law
    remedies. See Patsy v. Board of Regents of Fla., 
    457 U.S. 496
    , 500–501 (1982). But it is Osborne’s burden to dem
    onstrate the inadequacy of the state-law procedures avail
    able to him in state postconviction relief. Cf. Medina,
    supra, at 453. These procedures are adequate on their
    face, and without trying them, Osborne can hardly com
    plain that they do not work in practice.
      As a fallback, Osborne also obliquely relies on an as
    serted federal constitutional right to be released upon
    proof of “actual innocence.” Whether such a federal right
    exists is an open question. We have struggled with it over
    the years, in some cases assuming, arguendo, that it exists
    while also noting the difficult questions such a right would
    pose and the high standard any claimant would have to
    meet. House, 547 U. S., at 554–555; Herrera, 506 U. S., at
    398–417; see also id., at 419–421 (O’Connor, J., concur
    ring); id., at 427–428 (SCALIA, J., concurring); Friendly, Is
    Innocence Irrelevant? Collateral Attack on Criminal
    Judgments, 38 U. Chi. L. Rev. 142, 159, n. 87 (1970). In
    this case too we can assume without deciding that such a
    claim exists, because even if so there is no due process
    problem. Osborne does not dispute that a federal actual
    innocence claim (as opposed to a DNA access claim) would
    be brought in habeas. Brief for Respondent 22–24. If such
    a habeas claim is viable, federal procedural rules permit
    discovery “for good cause.” 
    28 U.S. C
    . §2254 Rule 6; Bracy
    v. Gramley, 
    520 U.S. 899
    , 908–909 (1997). Just as with
    state law, Osborne cannot show that available discovery is
    facially inadequate, and cannot show that it would be
    arbitrarily denied to him.
                     Cite as: 557 U. S. ____ (2009) 
             19
    
                         Opinion of the Court 
    
    
                                  B
    
       The Court of Appeals below relied only on procedural
    due process, but Osborne seeks to defend the judgment on
    the basis of substantive due process as well. He asks that
    we recognize a freestanding right to DNA evidence
    untethered from the liberty interests he hopes to vindicate
    with it. We reject the invitation and conclude, in the
    circumstances of this case, that there is no such substan
    tive due process right. “As a general matter, the Court
    has always been reluctant to expand the concept of sub
    stantive due process because guideposts for responsible
    decisionmaking in this unchartered area are scarce and
    open-ended.” Collins v. Harker Heights, 
    503 U.S. 115
    , 125
    (1992). Osborne seeks access to state evidence so that he
    can apply new DNA-testing technology that might prove
    him innocent. There is no long history of such a right, and
    “[t]he mere novelty of such a claim is reason enough to
    doubt that ‘substantive due process’ sustains it.” Reno v.
    Flores, 
    507 U.S. 292
    , 303 (1993).
       And there are further reasons to doubt. The elected
    governments of the States are actively confronting the
    challenges DNA technology poses to our criminal justice
    systems and our traditional notions of finality, as well as
    the opportunities it affords. To suddenly constitutionalize
    this area would short-circuit what looks to be a prompt
    and considered legislative response. The first DNA testing
    statutes were passed in 1994 and 1997. Act of Aug. 2,
    1994, ch. 737, 1994 N. Y. Laws 3709 (codified at N. Y.
    Crim. Proc. Law Ann. §440.30(1–a) (West)); Act of May 9,
    1997, Pub. Act No. 90–141, 1997 Ill. Laws 2461 (codified at
    725 Ill. Comp. Stat., ch. 725, §5/116–3(a) (West)). In the
    past decade, 44 States and the Federal Government have
    followed suit, reflecting the increased availability of DNA
    testing. As noted, Alaska itself is considering such legisla
    tion. See supra, at 9. “By extending constitutional protec
    tion to an asserted right or liberty interest, we, to a great
    extent, place the matter outside the arena of public debate
    20    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                        DIST. v. OSBORNE
                        Opinion of the Court
    
    and legislative action. We must therefore exercise the
    utmost care whenever we are asked to break new ground
    in this field.” Glucksberg, 521 U. S., at 720 (internal
    quotation marks omitted). “[J]udicial imposition of a
    categorical remedy . . . might pretermit other responsible
    solutions being considered in Congress and state legisla
    tures.” Murray v. Giarratano, 
    492 U.S. 1
    , 14 (1989)
    (KENNEDY, J., concurring in judgment). If we extended
    substantive due process to this area, we would cast these
    statutes into constitutional doubt and be forced to take
    over the issue of DNA access ourselves. We are reluctant
    to enlist the Federal Judiciary in creating a new constitu
    tional code of rules for handling DNA.4
       Establishing a freestanding right to access DNA evi
    dence for testing would force us to act as policymakers,
    and our substantive-due-process rulemaking authority
    would not only have to cover the right of access but a
    myriad of other issues. We would soon have to decide if
    there is a constitutional obligation to preserve forensic
    evidence that might later be tested. Cf. Arizona v.
    Youngblood, 
    488 U.S. 51
    , 56–58 (1988). If so, for how
    long? Would it be different for different types of evidence?
    Would the State also have some obligation to gather such
    evidence in the first place? How much, and when? No
    doubt there would be a miscellany of other minor direc
    tives. See, e.g., Harvey v. Horan, 
    285 F.3d 298
    , 300–301
    (CA4 2002) (Wilkinson, C. J., concurring in denial of
    rehearing).
    ——————
      4 The  dissent asserts that our position “resembles” Justice Harlan’s
    dissent in Miranda v. Arizona, 
    384 U.S. 436
     (1966). Post, at 15–16,
    n. 10 (opinion of STEVENS, J.). Miranda devised rules to safeguard a
    constitutional right the Court had already recognized. Indeed, the
    underlying requirement at issue in that case that confessions be volun
    tary had “roots” going back centuries. Dickerson v. United States, 
    530 U.S. 428
    , 432–433 (2000). In contrast, the asserted right to access
    DNA evidence is unrooted in history or tradition, and would thrust the
    Federal Judiciary into an area previously left to state courts and
    legislatures.
                      Cite as: 557 U. S. ____ (2009)           21
    
                          Opinion of the Court
    
      In this case, the evidence has already been gathered and
    preserved, but if we extend substantive due process to this
    area, these questions would be before us in short order,
    and it is hard to imagine what tools federal courts would
    use to answer them. At the end of the day, there is no
    reason to suppose that their answers to these questions
    would be any better than those of state courts and legisla
    tures, and good reason to suspect the opposite. See
    Collins, supra, at 125; Glucksberg, supra, at 720.
                             *     *    *
       DNA evidence will undoubtedly lead to changes in the
    criminal justice system. It has done so already. The
    question is whether further change will primarily be made
    by legislative revision and judicial interpretation of the
    existing system, or whether the Federal Judiciary must
    leap ahead—revising (or even discarding) the system by
    creating a new constitutional right and taking over re
    sponsibility for refining it.
       Federal courts should not presume that state criminal
    procedures will be inadequate to deal with technological
    change. The criminal justice system has historically
    accommodated new types of evidence, and is a time-tested
    means of carrying out society’s interest in convicting the
    guilty while respecting individual rights. That system,
    like any human endeavor, cannot be perfect. DNA evi
    dence shows that it has not been. But there is no basis for
    Osborne’s approach of assuming that because DNA has
    shown that these procedures are not flawless, DNA evi
    dence must be treated as categorically outside the process,
    rather than within it. That is precisely what his §1983
    suit seeks to do, and that is the contention we reject.
       The judgment of the Court of Appeals is reversed, and
    the case is remanded for further proceedings consistent
    with this opinion.
                                                 It is so ordered.
                      Cite as: 557 U. S. ____ (2009)            1
    
                          ALITO, J., concurring
    
    SUPREME COURT OF THE UNITED STATES
                              _________________
    
                                No. 08–6
                              _________________
    
    
      DISTRICT ATTORNEY’S OFFICE FOR THE THIRD 
    
        JUDICIAL DISTRICT, ET AL., PETITIONERS v.
    
                 WILLIAM G. OSBORNE
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                             [June 18, 2009] 
    
    
       JUSTICE ALITO, with whom JUSTICE KENNEDY joins,
    and with whom JUSTICE THOMAS joins as to Part II,
    concurring.
       Respondent was convicted for a brutal sexual assault.
    At trial, the defense declined to have DNA testing done on
    a semen sample found at the scene of the crime. Defense
    counsel explained that this decision was made based on
    fear that the testing would provide further evidence of
    respondent’s guilt. After conviction, in an unsuccessful
    attempt to obtain parole, respondent confessed in detail to
    the crime. Now, respondent claims that he has a federal
    constitutional right to test the sample and that he can go
    directly to federal court to obtain this relief without giving
    the Alaska courts a full opportunity to consider his claim.
       I agree with the Court’s resolution of respondent’s con
    stitutional claim. In my view, that claim also fails for two
    independent reasons beyond those given by the majority.
    First, a state prisoner asserting a federal constitutional
    right to perform such testing must file a petition for a writ
    of habeas corpus, not an action under 
    42 U.S. C
    . §1983, as
    respondent did here, and thus must exhaust state reme
    dies, see 
    28 U.S. C
    . §2254(b)(1)(A). Second, even though
    respondent did not exhaust his state remedies, his claim
    may be rejected on the merits, see §2254(b)(2), because a
    2    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       ALITO, J., concurring
    
    defendant who declines the opportunity to perform DNA
    testing at trial for tactical reasons has no constitutional
    right to perform such testing after conviction.
                                  I
       As our prior opinions illustrate, it is sometimes difficult
    to draw the line between claims that are properly brought
    in habeas and those that may be brought under 
    42 U.S. C
    .
    §1983. See Preiser v. Rodriguez, 
    411 U.S. 475
     (1973);
    Heck v. Humphrey, 
    512 U.S. 477
     (1994); Wilkinson v.
    Dotson, 
    544 U.S. 74
     (2005). But I think that this case
    falls on the habeas side of the line.
       We have long recognized the principles of federalism
    and comity at stake when state prisoners attempt to use
    the federal courts to attack their final convictions. See,
    e.g., Darr v. Burford, 
    339 U.S. 200
    , 204 (1950); Braden v.
    30th Judicial Circuit Court of Ky., 
    410 U.S. 484
    , 490–491
    (1973); Preiser, supra, at 491–492; Rose v. Lundy, 
    455 U.S. 509
    , 518–519 (1982); Rhines v. Weber, 
    544 U.S. 269
    ,
    273–274 (2005). We accordingly held that “ ‘it would be
    unseemly in our dual system of government for a federal
    district court to upset a state court conviction without an
    opportunity to the state courts to correct a constitutional
    violation.’ ” Lundy, supra, at 518 (quoting Darr, supra, at
    204). Congress subsequently codified Lundy’s exhaustion
    requirement in the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA), 
    28 U.S. C
    . §2254(b)(1)(A).
       We also have long recognized the need to impose sharp
    limits on state prisoners’ efforts to bypass state courts
    with their discovery requests. See, e.g., Wainwright v.
    Sykes, 
    433 U.S. 72
    , 87–90 (1977); Keeney v. Tamayo-
    Reyes, 
    504 U.S. 1
    , 8–10 (1992); Williams v. Taylor, 
    529 U.S. 420
    , 436 (2000). For example, we have held that
    “concerns of finality, comity, judicial economy, and chan
    neling the resolution of claims into the most appropriate
    forum” require a state prisoner to show “cause-and
                     Cite as: 557 U. S. ____ (2009)            3
    
                         ALITO, J., concurring
    
    prejudice” before asking a federal habeas court to hold an
    evidentiary hearing. Keeney, supra, at 8. That result
    reduces opportunities for “ ‘sandbagging’ on the part of
    defense lawyers,” Sykes, supra, at 89, and it “reduces the
    ‘inevitable friction’ that results when a federal habeas
    court ‘overturns either the factual or legal conclusions
    reached by the state-court system,’ ” Keeney, supra, at 9
    (quoting Sumner v. Mata, 
    449 U.S. 539
    , 550 (1981); brack
    ets omitted). Congress subsequently codified Keeney’s
    cause-and-prejudice rule in AEDPA, 
    28 U.S. C
    .
    §2254(e)(2).
       The rules set forth in our cases and codified in AEDPA
    would mean very little if state prisoners could simply
    evade them through artful pleading. For example, I take
    it as common ground that a state prisoner’s claim under
    Brady v. Maryland, 
    373 U.S. 83
     (1963), must be brought
    in habeas because that claim, if proved, would invalidate
    the judgment of conviction or sentence (and thus the
    lawfulness of the inmate’s confinement). See Heck, supra,
    at 481. But under respondent’s view, I see no reason why
    a Brady claimant could not bypass the state courts and file
    a §1983 claim in federal court, contending that he has a
    due process right to search the State’s files for exculpatory
    evidence. Allowing such a maneuver would violate the
    principles embodied in Lundy, Keeney, and AEDPA.
       Although respondent has now recharacterized his claim
    in an effort to escape the requirement of proceeding in
    habeas, in his complaint he squarely alleged that the
    State “deprived [him] of access to exculpatory evidence in
    violation of Brady[, supra], and the Due Process Clause of
    the Fourteenth Amendment to the U. S. Constitution.”
    App. 37. That allegedly “exculpatory” evidence—which
    Brady defines as “evidence favorable to [the] accused” and
    “material either to guilt or to punishment,” 373 U. S., at
    87—would, by definition, undermine respondent’s “guilt”
    or “punishment” if his allegations are true. Such claims
    4       DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                          DIST. v. OSBORNE
                          ALITO, J., concurring
    
    should be brought in habeas, see Heck, supra, at 481, and
    respondent cannot avoid that result by attempting to
    bring his claim under §1983, see Dotson, supra, at 92
    (KENNEDY, J., dissenting).1
      It is no answer to say, as respondent does, that he sim
    ply wants to use §1983 as a discovery tool to lay the foun
    dation for a future state postconviction application, a state
    clemency petition, or a request for relief by means of
    “prosecutorial consent.” See Brief for Respondent 23.
    Such tactics implicate precisely the same federalism and
    comity concerns that motivated our decisions (and Con
    gress’) to impose exhaustion requirements and discovery
    limits in federal habeas proceedings. If a petitioner can
    evade the habeas statute’s exhaustion requirements in
    this way, I see no reason why a state prisoner asserting an
    ordinary Brady claim—i.e., a state prisoner who claims
    that the prosecution failed to turn over exculpatory evi
    dence prior to trial—could not follow the same course.
      What respondent seeks was accurately described in his
    complaint—the discovery of evidence that has a material
    bearing on his conviction. Such a claim falls within “the
    core” of habeas. Preiser, supra, at 489. Recognition of a
    constitutional right to postconviction scientific testing of
    evidence in the possession of the prosecution would repre
    sent an expansion of Brady and a broadening of the dis
    covery rights now available to habeas petitioners. See 28
    ——————
        1 This
             case is quite different from Dotson. In that case, two state
    prisoners filed §1983 actions challenging the constitutionality of Ohio’s
    parole procedures and seeking “a new parole hearing that may or may
    not result in release, prescription of the composition of the hearing
    panel, and specification of the procedures to be followed.” 544 U. S., at
    86 (SCALIA, J., concurring). Regardless of whether such remedies fall
    outside the authority of federal habeas judges, compare id., at 86–87,
    with id., at 88–92 (KENNEDY, J., dissenting), there is no question that
    the relief respondent seeks in this case—“exculpatory” evidence that
    tends to prove his innocence—lies “within the core of habeas corpus,”
    Preiser v. Rodriguez, 
    411 U.S. 475
    , 487 (1973).
                         Cite as: 557 U. S. ____ (2009)                   5
    
                             ALITO, J., concurring
    
    U. S. C. §2254 Rule 6. We have never previously held that
    a state prisoner may seek discovery by means of a §1983
    action, and we should not take that step here. I would
    hold that respondent’s claim (like all other Brady claims)
    should be brought in habeas.
                                  II
       The principles of federalism, comity, and finality are not
    the only ones at stake for the State in cases like this one.
    To the contrary, DNA evidence creates special opportuni
    ties, risks, and burdens that implicate important state
    interests. Given those interests—and especially in light of
    the rapidly evolving nature of DNA testing technology—
    this is an area that should be (and is being) explored
    “through the workings of normal democratic processes in
    the laboratories of the States.” Atkins, supra, at 326
    (Rehnquist, C. J., dissenting).2
    ——————
      2 Forty-six States, plus the District of Columbia and the Federal Gov
    
    ernment, have recently enacted DNA testing statutes. See 
    18 U.S. C
    .
    §3600; Ariz. Rev. Stat. Ann. §13–4240 (West 2001); Ark. Code Ann.
    §16–112–202 (2006); Cal. Penal Code Ann. §1405 (West Supp. 2009);
    Colo. Rev. Stat. Ann. §18–1–413 (2008); Conn. Gen. Stat. §52–582
    (2009); Del. Code Ann., Tit. 11, §4504 (2007); D. C. Code §§22–4133 to
    §§22–4135 (2008 Supp.); Fla. Stat. §925.11 (2007); Ga. Code Ann. §5–5–
    41 (Supp. 2008); Haw. Rev. Stat. §844D–123 (2008 Cum. Supp.); Idaho
    Code §19–4902 (Lexis 2004); Ill. Comp. Stat., ch., 725, §5/116–3 (West
    2006); Ind. Code Ann. §35–38–7–5 (West 2004); Iowa Code §81.10
    (2009); Kan. Stat. Ann. §21–2512 (2007); Ky. Rev. Stat. Ann. §422.285
    (Lexis Supp. 2008); La. Code Crim. Proc. Ann., Art. 926.1 (West Supp.
    2009); Me. Rev. Stat. Ann., Tit. 15, §2137 (Supp. 2008); Md. Crim. Proc.
    Code Ann. §8–201 (Lexis 2008); Mich. Comp. Laws Ann. §770.16 (West
    Supp. 2009); Minn. Stat. §590.01 (2008); Mo. Rev. Stat. §547.035 (2008
    Cum. Supp.); Mont. Code Ann. §46–21–110 (2007); Neb. Rev. Stat. §29–
    4120 (2008); Nev. Rev. Stat. §176.0918 (2007); N. H. Rev. Stat. Ann.
    §651–D:2 (2007); N. J. Stat. Ann. §2A:84A–32a (West Supp. 2009);
    N. M. Stat. Ann. §31–1a–2 (Supp. 2008); N. Y. Crim. Proc. Law Ann.
    §440.30(1–a) (West 2005); N. C. Gen. Stat. Ann. §15A–269 (Lexis 2007);
    N. D. Cent. Code Ann. §29–32.1–15 (Lexis 2006); Ohio Rev. Code Ann.
    §2953.72 (Lexis Supp. 2009); Ore. Rev. Stat. §138.690 (2007); 
    42 Pa. 6
        DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       ALITO, J., concurring
    
                                  A
      As the Court notes, DNA testing often produces highly
    reliable results. See ante, at 8. Indeed, short tandem
    repeat (STR) “DNA tests can, in certain circumstances,
    establish to a virtual certainty whether a given individual
    did or did not commit a particular crime.” Harvey v.
    Horan, 
    285 F.3d 298
    , 305 (CA4 2002) (Luttig, J., respect
    ing denial of rehearing en banc). Because of that potential
    for “virtual certainty,” JUSTICE STEVENS argues that the
    State should welcome respondent’s offer to perform mod
    ern DNA testing (at his own expense) on the State’s DNA
    evidence; the test will either confirm respondent’s guilt (in
    which case the State has lost nothing) or exonerate him (in
    which case the State has no valid interest in detaining
    —————— 
    
    Cons. Stat. §9543.1 (2006); R. I. Gen. Laws §10–9.1–11 (Supp. 2008); 
    
    S. C. Code Ann. §17–28–30 (Supp. 2008); Tenn. Code Ann. §40–30–304
    (2006); Tex. Code Crim. Proc. Ann., Arts. 64.01–64.05 (Vernon 2006 and
    Supp. 2008); Utah Code Ann. §78B–9–300 to 78B–9–304 (Lexis 2008
    Supp.); Vt. Stat. Ann., Tit. 13, §5561 (Supp. 2008); Va. Code Ann.
    §19.2–327.1 (Lexis 2008); Wash. Rev. Code §10.73.170 (2008); W. Va.
    Code Ann. §15–2B–14 (Lexis Supp. 2008); Wis. Stat. §974.07 (2005–
    2006); Wyo. Stat. Ann. §7–12–303 (2008 Supp.). The pace of the legis
    lative response has been so fast that two States have enacted statutes
    while this case was sub judice: The Governor of South Dakota signed a
    DNA access law on March 11, 2009, see H. R. 1166, and the Governor of
    Mississippi signed a DNA access law on March 16, 2009, see S. 2709.
    The only States that do not have DNA-testing statutes are Alabama,
    Alaska, Massachusetts, and Oklahoma; and at least three of those
    States have addressed the issue through judicial decisions. See Fagan
    v. State, 
    957 So. 2d 1159
     (Ala. Crim. App. 2007); Osborne v. State, 
    110 P.3d 986
    , 995 (Alaska App. 2005) (Osborne I); Commonwealth v.
    Donald, 66 Mass. App. 1110, 
    848 N.E.2d 447
     (2006). Because the
    Court relies on such evidence, JUSTICE STEVENS accuses it of “re
    sembl[ing]” Justice Harlan’s position in Miranda v. Arizona, 
    384 U.S. 436
     (1966). See post, at 15, n. 10 (quoting 384 U. S., at 523–524 (dis
    senting opinion)). I can think of worse things than sharing Justice
    Harlan’s judgment that “this Court’s too rapid departure from existing
    constitutional standards” may “frustrat[e]” the States’ “long-range and
    lasting” legislative efforts. Id., at 524.
                     Cite as: 557 U. S. ____ (2009)            7
    
                         ALITO, J., concurring
    
    him). See post, at 10–12.
      Alas, it is far from that simple. First, DNA testing—
    even when performed with modern STR technology, and
    even when performed in perfect accordance with proto
    cols—often fails to provide “absolute proof” of anything.
    Post, at 12 (STEVENS, J., dissenting). As one scholar has
    observed:
        “[F]orensic DNA testing rarely occurs [under] idyllic
        conditions. Crime scene DNA samples do not come
        from a single source obtained in immaculate condi
        tions; they are messy assortments of multiple un
        known persons, often collected in the most difficult
        conditions. The samples can be of poor quality due to
        exposure to heat, light, moisture, or other degrading
        elements. They can be of minimal or insufficient
        quantity, especially as investigators push DNA test
        ing to its limits and seek profiles from a few cells re
        trieved from cigarette butts, envelopes, or soda cans.
        And most importantly, forensic samples often consti
        tute a mixture of multiple persons, such that it is not
        clear whose profile is whose, or even how many pro
        files are in the sample at all. All of these factors make
        DNA testing in the forensic context far more subjec
        tive than simply reporting test results . . . .” Murphy,
        The Art in the Science of DNA: A Layperson’s Guide
        to the Subjectivity Inherent in Forensic DNA Typing,
        58 Emory L. J. 489, 497 (2008) (footnotes omitted).
    See also R. Michaelis, R. Flanders, & P. Wulff, A Litiga
    tor’s Guide to DNA 341 (2008) (hereinafter Michaelis)
    (noting that even “STR analyses are plagued by issues of
    suboptimal samples, equipment malfunctions and human
    error, just as any other type of forensic DNA test”); Harvey
    v. Horan, 
    278 F.3d 370
    , 383, n. 4 (CA4 2002) (King, J.,
    concurring in part and concurring in judgment) (noting
    that the first STR DNA test performed under Virginia’s
    8    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       ALITO, J., concurring
    
    postconviction DNA access statute was inconclusive).
    Such concerns apply with particular force where, as here,
    the sample is minuscule, it may contain three or more
    persons’ DNA, and it may have degraded significantly
    during the 24 or more hours it took police to recover it.
       Second, the State has important interests in maintain
    ing the integrity of its evidence, and the risks associated
    with evidence contamination increase every time someone
    attempts to extract new DNA from a sample. According to
    Professor John Butler—who is said to have written “the
    canonical text on forensic DNA typing,” Murphy, supra, at
    493, n. 16—“[t]he extraction process is probably where the
    DNA sample is more susceptible to contamination in the
    laboratory than at any other time in the forensic DNA
    analysis process,” J. Butler, Forensic DNA Typing 42 (2d
    ed. 2005).
       Indeed, modern DNA testing technology is so powerful
    that it actually increases the risks associated with mis
    handling evidence. STR tests, for example, are so sensi
    tive that they can detect DNA transferred from person X
    to a towel (with which he wipes his face), from the towel to
    Y (who subsequently wipes his face), and from Y’s face to a
    murder weapon later wielded by Z (who can use STR
    technology to blame X for the murder). See Michaelis 62–
    64; Thompson, Ford, Doom, Raymer, & Krane, Evaluating
    Forensic DNA Evidence: Essential Elements of a Compe
    tent Defense Review (Part 2), The Champion, May 2003,
    pp. 25–26. Any test that is sensitive enough to pick up
    such trace amounts of DNA will be able to detect even the
    slightest, unintentional mishandling of evidence. See
    Michaelis 63 (cautioning against mishandling evidence
    because “two research groups have already demonstrated
    the ability to obtain STR profiles from fingerprints on
    paper or evidence objects”). And that is to say nothing of
    the intentional DNA-evidence-tampering scandals that
    have surfaced in recent years. See, e.g., Murphy, The New
                     Cite as: 557 U. S. ____ (2009)            9
    
                         ALITO, J., concurring
    
    Forensics: Criminal Justice, False Certainty, and the
    Second Generation of Scientific Evidence, 95 Calif. L. Rev.
    721, 772–773 (2007) (collecting examples). It gives short
    shrift to such risks to suggest that anyone—including
    respondent, who has twice confessed to his crime, has
    never recanted, and passed up the opportunity for DNA
    testing at trial—should be given a never-before-recognized
    constitutional right to rummage through the State’s ge
    netic-evidence locker.
       Third, even if every test was guaranteed to provide a
    conclusive answer, and even if no one ever contaminated a
    DNA sample, that still would not justify disregarding the
    other costs associated with the DNA-access regime pro
    posed by respondent. As the Court notes, recognizing a
    prisoner’s freestanding right to access the State’s DNA
    evidence would raise numerous policy questions, not the
    least of which is whether and to what extent the State is
    constitutionally obligated to collect and preserve such
    evidence. See ante, at 20. But the policy problems do not
    end there.
       Even without our creation and imposition of a manda
    tory-DNA-access regime, state crime labs are already
    responsible for maintaining and controlling hundreds of
    thousands of new DNA samples every year. For example,
    in the year 2005, the State of North Carolina processed
    DNA samples in approximately 1,900 cases, while the
    State of Virginia processed twice as many. See Office of
    State Budget and Management, Cost Study of DNA Test
    ing and Analysis As Directed by Session Law 2005–267,
    Section 15.8, pp. 5, 8 (Mar. 1, 2006) (hereinafter North
    Carolina Study), http://www.osbm.state.nc.us/files/pdf_
    files/3-1-2006FinalDNAReport.pdf (all Internet materials
    as visited June 16, 2009, and available in Clerk of Court’s
    case file); see also id., at 8 (noting that the State of Iowa
    processed DNA samples in 1,500 cases in that year). Each
    case often entails many separate DNA samples. See
    10   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       ALITO, J., concurring
    
    Wisconsin Criminal Justice Study Commission, Position
    Paper: “Decreasing the Turnaround Time for DNA Test
    ing,” p. 2 (hereinafter Wisconsin Study), http://www.wcjsc.
    org/WCJSC_Report_on_DNA_Backlog.pdf (“An average
    case consists of 8 samples”). And these data—which are
    now four years out of date—dramatically underestimate
    the States’ current DNA-related caseloads, which expand
    at an average annual rate of around 24%. See Wisconsin
    Dept. of Justice, Review of State Crime Lab Resources for
    DNA Analysis 6 (Feb. 12, 2007), http://www.doj.state.
    wi.us/news/files/dnaanalysisplan.pdf.
      The resources required to process and analyze these
    hundreds of thousands of samples have created severe
    backlogs in state crime labs across the country. For ex
    ample, the State of Wisconsin reports that it receives
    roughly 17,600 DNA samples per year, but its labs can
    process only 9,600. Wisconsin Study 2. Similarly, the
    State of North Carolina reports that “[i]t is not unusual for
    the [State] Crime Lab to have several thousand samples
    waiting to be outsourced due to the federal procedures for
    [the State’s] grant. This is not unique to North Carolina
    but a national issue.” North Carolina Study 9.
      The procedures that the state labs use to handle these
    hundreds of thousands of DNA samples provide fertile
    ground for litigation. For example, in Commonwealth v.
    Duarte, 56 Mass. App. 714, 723, 
    780 N.E.2d 99
    , 106
    (2002), the defendant argued that “the use of a thermome
    ter that may have been overdue for a standardization
    check rendered the DNA analysis unreliable and inadmis
    sible” in his trial for raping a 13-year-old girl. The court
    rejected that argument and held “that the status of the
    thermometer went to the weight of the evidence, and not
    to its admissibility,” id., at 724, 
    780 N.E. 2d
    , at 106, and
    the court ultimately upheld Duarte’s conviction after
    reviewing the testimony of the deputy director of the
    laboratory that the Commonwealth used for the DNA
                     Cite as: 557 U. S. ____ (2009)           11
    
                         ALITO, J., concurring
    
    tests, see ibid. But the case nevertheless illustrates “that
    no detail of laboratory operation, no matter how minute, is
    exempt as a potential point on which a defense attorney
    will question the DNA evidence.” Michaelis 68; see also
    id., at 68–69 (discussing the policy implications of Duarte).
       My point in recounting the burdens that postconviction
    DNA testing imposes on the Federal Government and the
    States is not to denigrate the importance of such testing.
    Instead, my point is that requests for postconviction DNA
    testing are not cost free. The Federal Government and the
    States have a substantial interest in the implementation
    of rules that regulate such testing in a way that harnesses
    the unique power of DNA testing while also respecting the
    important governmental interests noted above. The Fed
    eral Government and the States have moved expeditiously
    to enact rules that attempt to perform this role. And as
    the Court holds, it would be most unwise for this Court,
    wielding the blunt instrument of due process, to interfere
    prematurely with these efforts.
                                  B
       I see no reason for such intervention in the present case.
    When a criminal defendant, for tactical purposes, passes
    up the opportunity for DNA testing at trial, that defen
    dant, in my judgment, has no constitutional right to de
    mand to perform DNA testing after conviction. Recogni
    tion of such a right would allow defendants to play games
    with the criminal justice system. A guilty defendant could
    forgo DNA testing at trial for fear that the results would
    confirm his guilt, and in the hope that the other evidence
    would be insufficient to persuade the jury to find him
    guilty. Then, after conviction, with nothing to lose, the
    defendant could demand DNA testing in the hope that
    some happy accident—for example, degradation or con
    tamination of the evidence—would provide the basis for
    seeking postconviction relief. Denying the opportunity for
    12    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                        DIST. v. OSBORNE
                        ALITO, J., concurring
    
    such an attempt to game the criminal justice system
    should not shock the conscience of the Court.
       There is ample evidence in this case that respondent
    attempted to game the system. At trial, respondent’s
    lawyer made an explicit, tactical decision to forgo restric
    tion-fragment-length-polymorphism (RFLP) testing in
    favor of less-reliable DQ Alpha testing. Having forgone
    more accurate DNA testing once before, respondent’s
    reasons for seeking it now are suspect. It is true that the
    STR testing respondent now seeks is even more advanced
    than the RFLP testing he declined—but his counsel did
    not decline RFLP testing because she thought it was not
    good enough; she declined because she thought it was too
    good. Osborne I, 
    110 P.3d 986
    , 990 (Alaska App. 2005).
    “[A] defendant should not be allowed to take a gambler’s
    risk and complain only if the cards [fall] the wrong way.”
    Osborne v. State, 
    163 P.3d 973
    , 984 (Alaska App. 2007)
    (Osborne II) (Mannheimer, J., concurring) (internal quota
    tion marks omitted).
       JUSTICE STEVENS contends that respondent should not
    be bound by his attorney’s tactical decision and notes that
    respondent testified in the state postconviction proceeding
    that he strongly objected to his attorney’s strategy. See
    post, at 11–12, n. 8. His attorney, however, had no mem
    ory of that objection, and the state court did not find that
    respondent’s testimony was truthful.3 Nor do we have
    reason to assume that respondent was telling the truth,
    particularly since he now claims that he lied at his parole
    hearing when he twice confessed to the crimes for which
    ——————
        3 The state court noted that respondent’s trial counsel “ ‘disbelieved
    
    Osborne’s statement that he did not commit the crime’ ” and therefore
    “ ‘elected to avoid the possibility of obtaining DNA test results that
    might have confirmed Osborne’s culpability.’ ” Osborne I, 
    110 P. 3d
    , at
    990. Given the reasonableness of trial counsel’s judgment, the state
    court held that respondent’s protestations (whether or not he made
    them) were irrelevant. Id., at 991–992.
                         Cite as: 557 U. S. ____ (2009)                    13
    
                              ALITO, J., concurring
    
    he was convicted.
      In any event, even assuming for the sake of argument
    that respondent did object at trial to his attorney’s strat
    egy, it is a well-accepted principle that, except in a few
    carefully defined circumstances, a criminal defendant is
    bound by his attorney’s tactical decisions unless the attor
    ney provided constitutionally ineffective assistance. See
    Vermont v. Brillon, 
    556 U.S.
    ___, ___ (2009) (slip op., at
    8).4 Here, the state postconviction court rejected respon
    dent’s ineffective-assistance claim, Osborne I, supra, at
    991–992; respondent does not challenge that holding; and
    we must therefore proceed on the assumption that his
    attorney’s decision was reasonable and binding.5
                            *    *     *
      If a state prisoner wants to challenge the State’s refusal
    to permit postconviction DNA testing, the prisoner should
    proceed under the habeas statute, which duly accounts for
    ——————
      4 In adopting rules regarding postconviction DNA testing, the Federal
    and State Governments may choose to alter the traditional authority of
    defense counsel with respect to DNA testing. For example, the federal
    statute provides that a prisoner’s declination of DNA testing at trial
    bars a request for postconviction testing only if the prisoner knowingly
    and voluntarily waived that right in a proceeding occurring after the
    enactment of the federal statute. 
    18 U.S. C
    . §3600(a)(3)(A)(i). But
    Alaska has specifically decided to retain the general rule regarding the
    authority of defense counsel. See Osborne I, supra, at 991–992 (citing
    Simeon v. State, 
    90 P.3d 181
    , 184 (Alaska App. 2004)).
       5 JUSTICE STEVENS is quite wrong to suggest that the application of
    
    this familiar principle in the present context somehow lessens the
    prosecution’s burden to prove a defendant’s guilt. Post, at 12, n. 8
    (citing Sandstrom v. Montana, 
    442 U.S. 510
     (1979); In re Winship, 
    397 U.S. 358
     (1970)). Respondent is not challenging the sufficiency of the
    State’s evidence at trial. Rather, he claims that he has a right to obtain
    evidence that may be useful to him in a variety of postconviction
    proceedings. The principle that the prosecution must prove its case
    beyond a reasonable doubt and the principle that a defendant has no
    obligation to prove his innocence are not implicated in any way by the
    issues in this case.
    14   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                       DIST. v. OSBORNE
                       ALITO, J., concurring
    
    the interests of federalism, comity, and finality. And in
    considering the merits of such a claim, the State’s weighty
    interests cannot be summarily dismissed as “ ‘arbitrary, or
    conscience shocking.’ ” Post, at 10 (STEVENS, J., dissent
    ing). With these observations, I join the opinion of the
    Court.
                        Cite as: 557 U. S. ____ (2009)            1
    
                           STEVENS, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                                _________________
    
                                  No. 08–6
                                _________________
    
    
      DISTRICT ATTORNEY’S OFFICE FOR THE THIRD 
    
        JUDICIAL DISTRICT, ET AL., PETITIONERS v.
    
                 WILLIAM G. OSBORNE
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                               [June 18, 2009] 
    
    
       JUSTICE STEVENS, with whom JUSTICE GINSBURG and
    JUSTICE BREYER join, and with whom JUSTICE SOUTER
    joins as to Part I, dissenting.
       The State of Alaska possesses physical evidence that, if
    tested, will conclusively establish whether respondent
    William Osborne committed rape and attempted murder.
    If he did, justice has been served by his conviction and
    sentence. If not, Osborne has needlessly spent decades
    behind bars while the true culprit has not been brought to
    justice. The DNA test Osborne seeks is a simple one, its
    cost modest, and its results uniquely precise. Yet for
    reasons the State has been unable or unwilling to articu­
    late, it refuses to allow Osborne to test the evidence at his
    own expense and to thereby ascertain the truth once and
    for all.
       On two equally problematic grounds, the Court today
    blesses the State’s arbitrary denial of the evidence Os­
    borne seeks. First, while acknowledging that Osborne
    may have a due process right to access the evidence under
    Alaska’s postconviction procedures, the Court concludes
    that Osborne has not yet availed himself of all possible
    avenues for relief in state court.1 As both a legal and
    ——————
     1 Because   the Court assumes arguendo that Osborne’s claim was
    2     DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                         DIST. v. OSBORNE 
    
                        STEVENS, J., dissenting 
    
    
    factual matter, that conclusion is highly suspect. More
    troubling still, based on a fundamental mischaracteriza­
    tion of the right to liberty that Osborne seeks to vindicate,
    the Court refuses to acknowledge “in the circumstances of
    this case” any right to access the evidence that is grounded
    in the Due Process Clause itself. Because I am convinced
    that Osborne has a constitutional right of access to the
    evidence he wishes to test and that, on the facts of this
    case, he has made a sufficient showing of entitlement to
    that evidence, I would affirm the decision of the Court of
    Appeals.
                                  I
      The Fourteenth Amendment provides that “[n]o State
    shall . . . deprive any person of life, liberty, or property,
    without due process of law.” §1. Our cases have fre­
    quently recognized that protected liberty interests may
    arise “from the Constitution itself, by reason of guarantees
    implicit in the word ‘liberty,’ . . . or it may arise from an
    expectation or interest created by state laws or policies.”
    Wilkinson v. Austin, 
    545 U.S. 209
    , 221 (2005). Osborne
    contends that he possesses a right to access DNA evidence
    arising from both these sources.
      Osborne first anchors his due process right in Alaska
    Stat. §12.72.010(4) (2008). Under that provision, a person
    who has been “convicted of, or sentenced for, a crime may
    institute a proceeding for post-conviction relief if the
    person claims . . . that there exists evidence of material
    ——————
    properly brought under 
    42 U.S. C
    . §1983, rather than by an application
    for the writ of habeas corpus, I shall state only that I agree with the
    Ninth Circuit’s endorsement of Judge Luttig’s analysis of that issue.
    See 
    423 F.3d 1050
    , 1053–1055 (2005) (citing Harvey v. Horan, 
    285 F. 3d
     298, 308–309 (CA4 2002) (opinion respecting denial of rehearing en
    banc)); see also McKithen v. Brown, 
    481 F.3d 89
    , 98 (CA2 2007) (agree­
    ing that a claim seeking postconviction access to evidence for DNA
    testing may be properly brought as a §1983 suit); Savory v. Lyons, 
    469 F.3d 667
    , 669 (CA7 2006) (same); Bradley v. Pryor, 
    305 F.3d 1287
    ,
    1290–1291 (CA11 2002) (same).
                          Cite as: 557 U. S. ____ (2009)                      3
    
                             STEVENS, J., dissenting
    
    facts, not previously presented and heard by the court,
    that requires vacation of the conviction or sentence in the
    interest of justice.” Ibid.2 Osborne asserts that exculpa­
    tory DNA test results obtained using state-of-the-art Short
    Tandem Repeat (STR) and Mitochondrial (mtDNA) analy­
    sis would qualify as newly discovered evidence entitling
    him to relief under the state statute. The problem is that
    the newly discovered evidence he wishes to present cannot
    be generated unless he is first able to access the State’s
    evidence—something he cannot do without the State’s
    consent or a court order.
      Although States are under no obligation to provide
    mechanisms for postconviction relief, when they choose to
    do so, the procedures they employ must comport with the
    demands of the Due Process Clause, see Evitts v. Lucey,
    
    469 U.S. 387
    , 393 (1985), by providing litigants with fair
    opportunity to assert their state-created rights. Osborne
    contends that by denying him an opportunity to access the
    physical evidence, the State has denied him meaningful
    access to state postconviction relief, thereby violating his
    right to due process.
      Although the majority readily agrees that Osborne has a
    protected liberty interest in demonstrating his innocence
    with new evidence under Alaska Stat. §12.72.010(4), see
    ante, at 14, it rejects the Ninth Circuit’s conclusion that
    Osborne is constitutionally entitled to access the State’s
    evidence. The Court concludes that the adequacy of the
    ——————
       2 Ordinarily, claims under §12.72.010(4) must be brought within one
    
    year after the conviction becomes final. §12.72.020(a)(3)(A). However,
    the court may hear an otherwise untimely claim based on newly discov­
    ered evidence “if the applicant establishes due diligence in presenting
    the claim and sets out facts supported by evidence that is admissible
    and (A) was not known within . . . two years after entry of the judgment
    of conviction if the claim relates to a conviction; . . . (B) is not cumula­
    tive to the evidence presented at trial; (C) is not impeachment evidence;
    and (D) establishes by clear and convincing evidence that the applicant
    is innocent.” §12.72.020(b)(2) (2002).
    4     DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                         DIST. v. OSBORNE 
    
                        STEVENS, J., dissenting 
    
    
    process afforded to Osborne must be assessed under the
    standard set forth in Medina v. California, 
    505 U.S. 437
    (1992). Under that standard, Alaska’s procedures for
    bringing a claim under §12.72.010(4) will not be found to
    violate due process unless they “ ‘offen[d] some principle of
    justice so rooted in the traditions and conscience of our
    people as to be ranked as fundamental,’ or ‘transgres[s]
    any recognized principle of fundamental fairness in opera­
    tion.’ ” Ante, at 16 (quoting Medina, 505 U. S., at 446,
    448).3 After conducting a cursory review of the relevant
    statutory text, the Court concludes that Alaska’s proce­
    dures are constitutional on their face.
       While I agree that the statute is not facially deficient,
    the state courts’ application of §12.72.010(4) raises serious
    questions whether the State’s procedures are fundamen­
    tally unfair in their operation. As an initial matter, it is
    not clear that Alaskan courts ordinarily permit litigants to
    utilize the state postconviction statute to obtain new
    evidence in the form of DNA tests. The majority assumes
    that such discovery is possible based on a single, unpub­
    lished, nonprecedential decision from the Alaska Court of
    Appeals, see ante, at 16 (citing Patterson v. State, No. A–
    8814 (Mar. 8, 2006)), but the State concedes that no liti­
    gant yet has obtained evidence for such testing under the
    statute.4
       Of even greater concern is the manner in which the
    state courts applied §12.72.010(4) to the facts of this case.
    ——————
      3 Osborne contends that the Court should assess the validity of the
    
    State’s procedures under the test set forth in Mathews v. Eldridge, 
    424 U.S. 319
     (1976), rather than the more exacting test adopted by Medina
    v. California, 
    505 U.S. 437
     (1992). In my view, we need not decide
    which standard governs because the state court’s denial of access to the
    evidence Osborne seeks violates due process under either standard. See
    Harvey, 
    285 F. 3d
    , at 315 (Luttig, J).
      4 The State explained at oral argument that such testing was ordered
    
    in the Patterson case, but by the time access was granted, the relevant
    evidence had been destroyed. See Tr. of Oral Arg. 12.
                         Cite as: 557 U. S. ____ (2009)                     5
    
                             STEVENS, J., dissenting
    
    In determining that Osborne was not entitled to relief
    under the postconviction statute, the Alaska Court of
    Appeals concluded that the DNA testing Osborne wished
    to obtain could not qualify as “newly discovered” because it
    was available at the time of trial. See Osborne v. State,
    
    110 P.3d 986
    , 992 (2005) (Osborne I). In his arguments
    before the state trial court and his briefs to the Alaska
    Court of Appeals, however, Osborne had plainly requested
    STR DNA testing, a form of DNA testing not yet in use at
    the time of his trial. See App. 171, 175; see also 
    521 F.3d 1118
    , 1123, n. 2 (CA9 2008). The state appellate court’s
    conclusion that the requested testing had been available
    at the time of trial was therefore clearly erroneous.5
    Given these facts, the majority’s assertion that Osborne
    “attempt[ed] to sidestep state process” by failing “to use
    the process provided to him by the State” is unwarranted.
    Ante, at 17.
       The same holds true with respect to the majority’s sug­
    gestion that the Alaska Constitution might provide addi­
    tional protections to Osborne above and beyond those
    afforded under afforded under §12.72.010(4). In Osborne’s
    state postconviction proceedings, the Alaska Court of
    Appeals held out the possibility that even when evidence
    does not meet the requirements of §12.72.010(4), the State
    Constitution might offer relief to a defendant who is able
    to make certain threshold showings. See Osborne I, 
    110 P. 3d
    , at 995–996. On remand from that decision, how­
    ever, the state trial court denied Osborne relief on the
    ground that he failed to show that (1) his conviction rested
    primarily on eyewitness identification; (2) there was a
    demonstrable doubt concerning his identity as the perpe­
    ——————
      5 The majority avoids confronting this serious flaw in the state court’s
    
    decision by treating its mistaken characterization of the nature of
    Osborne’s request as if it were binding. See ante, at 17. But see ante,
    at 5, n. 2 (conceding “[i]t is not clear” whether the state court erred in
    reaching that conclusion).
    6    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                        DIST. v. OSBORNE 
    
                       STEVENS, J., dissenting 
    
    
    trator; and (3) scientific testing would like be conclusive on
    this issue. Osborne v. State, 
    163 P.3d 973
    , 979–981
    (Alaska App. 2007) (Osborne II). The first two reasons
    reduce to an evaluation of the strength of the prosecution’s
    original case—a consideration that carries little weight
    when balanced against evidence as powerfully dispositive
    as an exculpatory DNA test. The final reason offered by
    the state court—that further testing would not be conclu­
    sive on the issue of Osborne’s guilt or innocence—is surely
    a relevant factor in deciding whether to release evidence
    for DNA testing. Nevertheless, the state court’s conclu­
    sion that such testing would not be conclusive in this case
    is indefensible, as evidenced by the State’s recent conces­
    sion on that point. See also 
    521 F.3d 1118
    , 1136–1139
    (CA9 2008) (detailing why the facts of this case do not
    permit an inference that any exonerating test result would
    be less than conclusive).
       Osborne made full use of available state procedures in
    his efforts to secure access to evidence for DNA testing so
    that he might avail himself of the postconviction relief
    afforded by the State of Alaska. He was rebuffed at every
    turn. The manner in which the Alaska courts applied
    state law in this case leaves me in grave doubt about the
    adequacy of the procedural protections afforded to liti­
    gants under Alaska Stat. §12.72.010(4), and provides
    strong reason to doubt the majority’s flippant assertion
    that if Osborne were “simply [to] see[k] the DNA through
    the State’s discovery procedures, he might well get it.”
    Ante, at 17. However, even if the Court were correct in its
    assumption that Osborne might be given the evidence he
    seeks were he to present his claim in state court a second
    time, there should be no need for him to do so.
                                 II
      Wholly apart from his state-created interest in obtain­
    ing postconviction relief under Alaska Stat. §12.72.010(4),
                         Cite as: 557 U. S. ____ (2009)                   7
    
                            STEVENS, J., dissenting
    
    Osborne asserts a right to access the State’s evidence that
    derives from the Due Process Clause itself. Whether
    framed as a “substantive liberty interest . . . protected
    through a procedural due process right” to have evidence
    made available for testing, or as a substantive due process
    right to be free of arbitrary government action, see Harvey
    v. Horan, 
    285 F.3d 298
    , 315, 319 (CA4 2002) (Luttig, J.,
    respecting denial of rehearing en banc),6 the result is the
    same: On the record now before us, Osborne has estab­
    lished his entitlement to test the State’s evidence.
       The liberty protected by the Due Process Clause is not a
    creation of the Bill of Rights. Indeed, our Nation has long
    recognized that the liberty safeguarded by the Constitu­
    tion has far deeper roots. See Declaration of Independence
    ¶2 (holding it self-evident that “all men are. . . endowed by
    their Creator with certain unalienable Rights,” among
    which are “Life, Liberty, and the pursuit of Happiness”);
    see also Meachum v. Fano, 
    427 U.S. 215
    , 230 (1976)
    (STEVENS, J., dissenting). The “most elemental” of the
    liberties protected by the Due Process Clause is “the inter­
    est in being free from physical detention by one’s own
    government.” Hamdi v. Rumsfeld, 
    542 U.S. 507
    , 529
    (2004) (plurality opinion); see Foucha v. Louisiana, 
    504 U.S. 71
    , 80 (1992) (“Freedom from bodily restraint has
    always been at the core of the liberty protected by the Due
    Process Clause”).
       Although a valid criminal conviction justifies punitive
    detention, it does not entirely eliminate the liberty inter­
    ests of convicted persons. For while a prisoner’s “rights
    may be diminished by the needs and exigencies of the
    institutional environment[,] . . . [t]here is no iron curtain
    
    ——————
      6 See  Harvey, 
    285 F. 3d
    , at 318 (Luttig, J.) (“[T]he claimed right of
    access to evidence partakes of both procedural and substantive due
    process. And with a claim such as this, the line of demarcation is
    faint”).
    8    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                        DIST. v. OSBORNE 
    
                       STEVENS, J., dissenting 
    
    
    drawn between the Constitution and the prisons of this
    country.” Wolff v. McDonnell, 
    418 U.S. 539
    , 555–556
    (1974); Shaw v. Murphy, 
    532 U.S. 223
    , 228–229 (2001)
    (“[I]ncarceration does not divest prisoners of all constitu­
    tional protections”). Our cases have recognized protected
    interests in a variety of postconviction contexts, extending
    substantive constitutional protections to state prisoners on
    the premise that the Due Process Clause of the Fourteenth
    Amendment requires States to respect certain fundamen­
    tal liberties in the postconviction context. See, e.g.,
    Thornburgh v. Abbott, 
    490 U.S. 401
    , 407 (1989) (right to
    free speech); Turner v. Safley, 
    482 U.S. 78
    , 84 (1987)
    (right to marry); Cruz v. Beto, 
    405 U.S. 319
    , 322 (1972)
    (per curiam) (right to free exercise of religion); Lee v.
    Washington, 
    390 U.S. 333
     (1968) (per curiam) (right to be
    free of racial discrimination); Johnson v. Avery, 
    393 U.S. 483
     (1969) (right to petition government for redress of
    grievances). It is therefore far too late in the day to ques­
    tion the basic proposition that convicted persons such as
    Osborne retain a constitutionally protected measure of
    interest in liberty, including the fundamental liberty of
    freedom from physical restraint.
       Recognition of this right draws strength from the fact
    that 46 States and the Federal Government have passed
    statutes providing access to evidence for DNA testing, and
    3 additional states (including Alaska) provide similar
    access through court-made rules alone, see Brief for State
    of California et al. as Amici Curiae 3–4, n. 1, and 2; ante,
    at 9. These legislative developments are consistent with
    recent trends in legal ethics recognizing that prosecutors
    are obliged to disclose all forms of exculpatory evidence
    that come into their possession following conviction. See,
    e.g., ABA Model Rules of Professional Conduct 3.8(g)–(h)
    (2008); see also Imbler v. Pachtman, 
    424 U.S. 409
    , 427, n.
    25 (1976) (“[A]fter a conviction the prosecutor also is
    bound by the ethics of his office to inform the appropriate
                     Cite as: 557 U. S. ____ (2009)            9
    
                        STEVENS, J., dissenting
    
    authority of after-acquired or other information that casts
    doubt upon the correctness of the conviction”). The fact
    that nearly all the States have now recognized some post­
    conviction right to DNA evidence makes it more, not less,
    appropriate to recognize a limited federal right to such
    evidence in cases where litigants are unfairly barred from
    obtaining relief in state court.
       Insofar as it is process Osborne seeks, he is surely enti­
    tled to less than “the full panoply of rights,” that would be
    due a criminal defendant prior to conviction, see Morrissey
    v. Brewer, 
    408 U.S. 471
    , 480 (1972). That does not mean,
    however, that our pretrial due process cases have no rele­
    vance in the postconviction context. In Brady v. Mary
    land, 
    373 U.S. 83
    , 87 (1963), we held that the State vio­
    lates due process when it suppresses “evidence favorable
    to an accused” that is “material either to guilt or to pun­
    ishment, irrespective of the good faith or bad faith of the
    prosecution.” Although Brady does not directly provide for
    a postconviction right to such evidence, the concerns with
    fundamental fairness that motivated our decision in that
    case are equally present when convicted persons such as
    Osborne seek access to dispositive DNA evidence following
    conviction.
       Recent scientific advances in DNA analysis have made
    “it literally possible to confirm guilt or innocence beyond
    any question whatsoever, at least in some categories of
    cases.” Harvey, 
    285 F. 3d
    , at 305 (Luttig, J.). As the
    Court recognizes today, the powerful new evidence that
    modern DNA testing can provide is “unlike anything
    known before.” Ante, at 8. Discussing these important
    forensic developments in his oft-cited opinion in Harvey,
    Judge Luttig explained that although “no one would con­
    tend 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,” in cases “where the government holds previously­
    10   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                        DIST. v. OSBORNE
                       STEVENS, J., dissenting
    
    produced forensic evidence, the testing of which conced­
    edly 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.” 
    285 F. 3d
    , at 317. It does so “out of recognition
    of the same systemic interests in fairness and ultimate
    truth.” Ibid.
       Observing that the DNA evidence in this case would be
    so probative of Osborne’s guilt or innocence that it exceeds
    the materiality standard that governs the disclosure of
    evidence under Brady, the Ninth Circuit granted Os­
    borne’s request for access to the State’s evidence. See 
    521 F. 3d
    , at 1134. In doing so, the Court of Appeals recog­
    nized that Osborne possesses a narrow right of postconvic­
    tion access to biological evidence for DNA testing “where
    [such] evidence was used to secure his conviction, the DNA
    testing is to be conducted using methods that were un­
    available at the time of trial and are far more precise than
    the methods that were then available, such methods are
    capable of conclusively determining whether Osborne is
    the source of the genetic material, the testing can be con­
    ducted without cost or prejudice to the State, and the
    evidence is material to available forms of post-conviction
    relief.” Id., at 1142. That conclusion does not merit
    reversal.
       If the right Osborne seeks to vindicate is framed as
    purely substantive, the proper result is no less clear. “The
    touchstone of due process is protection of the individual
    against arbitrary action of government,” Meachum, 427
    U. S., at 226 (internal quotation marks omitted); Wolff,
    418 U. S., at 558; County of Sacramento v. Lewis, 
    523 U.S. 833
    , 845–846 (1998). When government action is so
    lacking in justification that it “can properly be character­
    ized as arbitrary, or conscience shocking, in a constitu­
                         Cite as: 557 U. S. ____ (2009)                    11
    
                             STEVENS, J., dissenting
    
    tional sense,” Collins v. Harker Heights, 
    503 U.S. 115
    , 128
    (1992), it violates the Due Process Clause. In my view, the
    State’s refusal to provide Osborne with access to evidence
    for DNA testing qualifies as arbitrary.
       Throughout the course of state and federal litigation,
    the State has failed to provide any concrete reason for
    denying Osborne the DNA testing he seeks, and none is
    apparent. Because Osborne has offered to pay for the
    tests, cost is not a factor. And as the State now concedes,
    there is no reason to doubt that such testing would provide
    conclusive confirmation of Osborne’s guilt or revelation of
    his innocence.7 In the courts below, the State refused to
    provide an explanation for its refusal to permit testing of
    the evidence, see Brief for Respondent 33, and in this
    Court, its explanation has been, at best, unclear. Insofar
    as the State has articulated any reason at all, it appears to
    be a generalized interest in protecting the finality of the
    judgment of conviction from any possible future attacks.
    See Brief for Petitioners 18, 50.8
    ——————
      7 JUSTICE ALITO provides a detailed discussion of dangers such as
    
    laboratory contamination and evidence tampering that may reduce the
    reliability not only of DNA evidence, but of any type of physical forensic
    evidence. Ante, at 3–10 (concurring opinion). While no form of testing
    is error proof in every case, the degree to which DNA evidence has
    become a foundational tool of law enforcement and prosecution is
    indicative of the general reliability and probative power of such testing.
    The fact that errors may occur in the testing process is not a ground for
    refusing such testing altogether—were it so, such evidence should be
    banned at trial no less than in postconviction proceedings. More
    important still is the fact that the State now concedes there is no
    reason to doubt that if STR and mtDNA testing yielded exculpatory
    results in this case, Osborne’s innocence would be established.
      8 In his concurring opinion, JUSTICE ALITO suggests other reasons that
    
    might motivate States to resist access to such evidence, including
    concerns over DNA testing backlogs and manipulation by defendants.
    See ante, at 8–10. Not only were these reasons not offered by the State
    of Alaska as grounds for its decision in this case, but they are not in
    themselves compelling. While state resource constraints might justify
    12    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                         DIST. v. OSBORNE
                        STEVENS, J., dissenting
    
       While we have long recognized that States have an
    interest in securing the finality of their judgments, see,
    e.g., Duncan v. Walker, 
    533 U.S. 167
    , 179 (2001); Teague
    v. Lane, 
    489 U.S. 288
    , 309 (1989) (plurality opinion);
    McCleskey v. Zant, 
    499 U.S. 467
    , 491–492 (1991), finality
    is not a stand-alone value that trumps a State’s overriding
    interest in ensuring that justice is done in its courts and
    secured to its citizens. Indeed, when absolute proof of
    innocence is readily at hand, a State should not shrink
    from the possibility that error may have occurred. Rather,
    our system of justice is strengthened by “recogniz[ing] 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.” Harvey, 
    285 F. 3d
    , at 306
    (Luttig, J.). DNA evidence has led to an extraordinary
    series of exonerations, not only in cases where the trial
    evidence was weak, but also in cases where the convicted
    
    ——————
    delays in the testing of postconviction DNA evidence, they would not
    justify an outright ban on access to such evidence. And JUSTICE ALITO’s
    concern that guilty defendants will “play games with the criminal
    justice system” with regard to the timing of their requests for DNA
    evidence is not only speculative, but gravely concerning. Ante, at 10. It
    bears remembering that criminal defendants are under no obligation to
    prove their innocence at trial; rather, the State bears the burden of
    proving their guilt. See Sandstrom v. Montana, 
    442 U.S. 510
     (1979);
    In re Winship, 
    397 U.S. 358
     (1970). Having no obligation to conduct
    pretrial DNA testing, a defendant should not be bound by a decision to
    forgo such testing at trial, particularly when, as in this case, the choice
    was made by counsel over the defendant’s strong objection. See Os
    borne I, 
    110 P. 3d
    , at 990-991. (JUSTICE ALITO suggests there is reason
    to doubt whether Osborne asked his counsel to perform DNA testing
    prior to trial, ante, at 12. That fact was not disputed in the state
    courts, however. Although Osborne’s trial counsel averred that she “did
    not have a present memory of Osborne’s desire to have [a more specific
    discriminatory] test of his DNA done,” she also averred that she was
    “willing to accept that he does" and that she “would have disagreed
    with him.” Id., at 990.)
                         Cite as: 557 U. S. ____ (2009)                    13
    
                             STEVENS, J., dissenting
    
    parties confessed their guilt and where the trial evidence
    against them appeared overwhelming.9 The examples
    provided by amici of the power of DNA testing serve to
    convince me that the fact of conviction is not sufficient to
    justify a State’s refusal to perform a test that will conclu­
    sively establish innocence or guilt.
       This conclusion draws strength from the powerful state
    interests that offset the State’s purported interest in
    finality per se. When a person is convicted for a crime he
    did not commit, the true culprit escapes punishment.
    DNA testing may lead to his identification. See Brief for
    Current and Former Prosecutors as Amici Curiae 16
    (noting that in more than one-third of all exonerations
    DNA testing identified the actual offender). Crime vic­
    tims, the law enforcement profession, and society at large
    share a strong interest in identifying and apprehending
    the actual perpetrators of vicious crimes, such as the rape
    and attempted murder that gave rise to this case.
       The arbitrariness of the State’s conduct is highlighted
    by comparison to the private interests it denies. It seems
    to me obvious that if a wrongly convicted person were to
    produce proof of his actual innocence, no state interest
    would be sufficient to justify his continued punitive deten­
    tion. If such proof can be readily obtained without impos­
    ing a significant burden on the State, a refusal to provide
    access to such evidence is wholly unjustified.
       In sum, an individual’s interest in his physical liberty is
    one of constitutional significance. That interest would be
    ——————
      9 See generally Brief for Current and Former Prosecutors as Amici
    Curiae; Brief for Jeanette Popp et al. as Amici Curiae; see also Brief for
    Individuals Exonerated by Postconviction DNA Testing as Amici Curiae
    1–20. See also Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 109
    (2008) (documenting that in 50% of cases in which DNA evidence
    exonerated a convicted person, reviewing courts had commented on the
    exoneree’s likely guilt and in 10% of the cases had described the evi­
    dence supporting conviction as “overwhelming”).
    14   DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                        DIST. v. OSBORNE
                       STEVENS, J., dissenting
    
    vindicated by providing postconviction access to DNA
    evidence, as would the State’s interest in ensuring that it
    punishes the true perpetrator of a crime. In this case, the
    State has suggested no countervailing interest that justi­
    fies its refusal to allow Osborne to test the evidence in its
    possession and has not provided any other nonarbitrary
    explanation for its conduct. Consequently, I am left to
    conclude that the State’s failure to provide Osborne access
    to the evidence constitutes arbitrary action that offends
    basic principles of due process. On that basis, I would
    affirm the judgment of the Ninth Circuit.
                                   III
       The majority denies that Osborne possesses a cognizable
    substantive due process right “under the circumstances of
    this case,” and offers two meager reasons for its decision.
    First, citing a general reluctance to “ ‘expand the concept
    of substantive due process,’ ” ante, at 19 (quoting Collins,
    503 U. S., at 125), the Court observes that there is no long
    history of postconviction access to DNA evidence. “ ‘The
    mere novelty of such a claim,’ ” the Court asserts, “ ‘is
    reason enough to doubt that “substantive due process”
    sustains it,’ ” ante, at 19 (quoting Reno v. Flores, 
    507 U.S. 292
    , 303 (1993)). The flaw is in the framing. Of course
    courts have not historically granted convicted persons
    access to physical evidence for STR and mtDNA testing.
    But, as discussed above, courts have recognized a residual
    substantive interest in both physical liberty and in free­
    dom from arbitrary government action. It is Osborne’s
    interest in those well-established liberties that justifies
    the Court of Appeals’ decision to grant him access to the
    State’s evidence for purposes of previously unavailable
    DNA testing.
       The majority also asserts that this Court’s recognition of
    a limited federal right of access to DNA evidence would be
    ill advised because it would “short circuit what looks to be
                         Cite as: 557 U. S. ____ (2009)                  15
    
                            STEVENS, J., dissenting
    
    a prompt and considered legislative response” by the
    States and Federal Government to the issue of access to
    DNA evidence. Such a decision, the majority warns,
    would embroil the Court in myriad policy questions best
    left to other branches of government. Ante, at 19–20. The
    majority’s arguments in this respect bear close resem­
    blance to the manner in which the Court once approached
    the now-venerable right to counsel for indigent defen­
    dants. Before our decision in Powell v. Alabama, 
    287 U.S. 45
     (1932), state law alone governed the manner in which
    counsel was appointed for indigent defendants. “Efforts to
    impose a minimum federal standard for the right to coun­
    sel in state courts routinely met the same refrain: ‘in the
    face of these widely varying state procedures,’ this Court
    refused to impose the dictates of ‘due process’ onto the
    states and ‘hold invalid all procedure not reaching that
    standard.” Brief for Current and Former Prosecutors as
    Amici Curiae 28, n. 8 (quoting Bute v. Illinois, 
    333 U.S. 640
    , 668 (1948)). When at last this Court recognized the
    Sixth Amendment right to counsel for all indigent criminal
    defendants in Gideon v. Wainwright, 
    372 U.S. 335
     (1963),
    our decision did not impede the ability of States to tailor
    their appointment processes to local needs, nor did it
    unnecessarily interfere with their sovereignty. It did,
    however, ensure that criminal defendants were provided
    with the counsel to which they were constitutionally enti­
    tled.10 In the same way, a decision to recognize a limited
    
    ——————
      10 The majority’s position also resembles that taken by Justice Harlan
    
    in his dissent in Miranda v. Arizona, 
    384 U.S. 436
    , 523 (1966), in
    which he faulted the Court for its “ironic untimeliness.” He noted that
    the Court’s decision came at time when scholars, politicians, and law
    enforcement officials were beginning to engage in a “massive reexami­
    nation of criminal law enforcement procedures on a scale never before
    witnessed,” and predicted that the practical effect of the Court’s deci­
    sion would be to “handicap seriously” those sound efforts. Id., at 523–
    524. Yet time has vindicated the decision in Miranda. The Court’s
    16    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL
                         DIST. v. OSBORNE
                        STEVENS, J., dissenting
    
    right of postconviction access to DNA testing would not
    prevent the States from creating procedures by which
    litigants request and obtain such access; it would merely
    ensure that States do so in a manner that is nonarbitrary.
       While it is true that recent advances in DNA technology
    have led to a nationwide reexamination of state and fed­
    eral postconviction procedures authorizing the use of DNA
    testing, it is highly unlikely that affirming the judgment of
    the Court of Appeals would significantly affect the use of
    DNA testing in any of the States that have already devel­
    oped statutes and procedures for dealing with DNA evi­
    dence or would require the few States that have not yet
    done so to postpone the enactment of appropriate legisla­
    tion.11 Indeed, a holding by this Court that the policy
    ——————
    refusal to grant Osborne access to critical DNA evidence rests on a
    practical judgment remarkably similar to Justice Harlan’s, and I find
    the majority’s judgment today as profoundly incorrect as the Miranda
    minority’s was yesterday.
       11 The United States and several States have voiced concern that the
    
    recognition of a limited federal right of access to DNA evidence might
    call into question reasonable limits placed on such access by federal and
    state statutes. See Brief for United States as Amicus Curiae 17–26;
    Brief for State of California et al. as Amici Curiae 1–16. For example,
    federal law and several state statutes impose the requirement that an
    applicant seeking postconviction DNA testing execute an affidavit
    attesting to his innocence before any request will be performed. See,
    e.g., 
    18 U.S. C
    . §3600(a)(1); Fla. Stat. §925.11(2)(a)(3) (2009 Supp.).
    Affirming the judgment of the Ninth Circuit would not cast doubt on
    the constitutionality of such a requirement, however, since Osborne
    was never asked to execute such an affidavit as a precondition to
    obtaining access to the State’s evidence. Similarly, affirmance would
    not call into question the legitimacy of other reasonable conditions
    States may place on access to DNA testing, such as Alaska’s require­
    ment that test results be capable of yielding a clear answer with respect
    to guilt or innocence. “[D]ue process is flexible,” Morrissey v. Brewer,
    
    408 U.S. 471
    , 481 (1972), and the manner in which it is provided may
    reasonably vary from State to State and case to case. So long as the
    limitations placed on a litigant’s access to such evidence remain proce­
    durally fair and nonarbitrary, they will comport with the demands of
                     Cite as: 557 U. S. ____ (2009)          17
    
                        STEVENS, J., dissenting
    
    judgments underlying that legislation rest on a sound
    constitutional foundation could only be constructive.
                                IV
      Osborne has demonstrated a constitutionally protected
    right to due process which the State of Alaska thus far has
    not vindicated and which this Court is both empowered
    and obliged to safeguard. On the record before us, there is
    no reason to deny access to the evidence and there are
    many reasons to provide it, not least of which is a funda­
    mental concern in ensuring that justice has been done in
    this case. I would affirm the judgment of the Court of
    Appeals, and respectfully dissent from the Court’s refusal
    to do so.
    
    
    
    
    ——————
    due process.
                     Cite as: 557 U. S. ____ (2009)            1
    
                         SOUTER, J., dissenting
    
    SUPREME COURT OF THE UNITED STATES
                             _________________
    
                               No. 08–6
                             _________________
    
    
      DISTRICT ATTORNEY’S OFFICE FOR THE THIRD 
    
        JUDICIAL DISTRICT, ET AL., PETITIONERS v.
    
                 WILLIAM G. OSBORNE
    
     ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
    
                APPEALS FOR THE NINTH CIRCUIT
    
                            [June 18, 2009] 
    
    
      JUSTICE SOUTER, dissenting.
       I respectfully dissent on the ground that Alaska has
    failed to provide the effective procedure required by the
    Fourteenth Amendment for vindicating the liberty interest
    in demonstrating innocence that the state law recognizes.
    I therefore join Part I of JUSTICE STEVENS’s dissenting
    opinion.
       I would not decide Osborne’s broad claim that the Four­
    teenth Amendment’s guarantee of due process requires
    our recognition at this time of a substantive right of access
    to biological evidence for DNA analysis and comparison. I
    would reserve judgment on the issue simply because there
    is no need to reach it; at a general level Alaska does not
    deny a right to postconviction testing to prove innocence,
    and in any event, Osborne’s claim can be resolved by
    resort to the procedural due process requirement of an
    effective way to vindicate a liberty interest already recog­
    nized in state law, see Evitts v. Lucey, 
    469 U.S. 387
    , 393
    (1985). My choice to decide this case on that procedural
    ground should not, therefore, be taken either as express­
    ing skepticism that a new substantive right to test should
    be cognizable in some circumstances, or as implying
    agreement with the Court that it would necessarily be
    2     DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                         DIST. v. OSBORNE 
    
                        SOUTER, J., dissenting 
    
    
    premature for the Judicial Branch to decide whether such
    a general right should be recognized.
       There is no denying that the Court is correct when it
    notes that a claim of right to DNA testing, post-trial at
    that, is a novel one, but that only reflects the relative
    novelty of testing DNA, and in any event is not a sufficient
    reason alone to reject the right asserted, see Reno v. Flo
    res, 
    507 U.S. 292
    , 318–319 (1993) (O’Connor, J., concur­
    ring). Tradition is of course one serious consideration in
    judging whether a challenged rule or practice, or the
    failure to provide a new one, should be seen as violating
    the guarantee of substantive due process as being arbi­
    trary, or as falling wholly outside the realm of reasonable
    governmental action. See Poe v. Ullman, 
    367 U.S. 497
    ,
    542 (1961) (Harlan, J., dissenting). We recognize the
    value and lessons of continuity with the past, but as Jus­
    tice Harlan pointed out, society finds reasons to modify
    some of its traditional practices, ibid., and the accumula­
    tion of new empirical knowledge can turn yesterday’s
    reasonable range of the government’s options into a due
    process anomaly over time.
       As for determining the right moment for a court to
    decide whether substantive due process requires recogni­
    tion of an individual right unsanctioned by tradition (or
    the invalidation of traditional law), I certainly agree with
    the Court that the beginning of wisdom is to go slow.
    Substantive due process expresses the conception that the
    liberty it protects is a freedom from arbitrary government
    action, from restraints lacking any reasonable justification
    id., at 541,1 and a substantive due process claim requires
    attention to two closely related elements that call for great
    care on the part of a court. It is crucial, first, to be clear
    about whose understanding it is that is being taken as the
    ——————
      1 Mutatis mutandis, the same is true of our notions of life and prop­
    
    erty, subject to the same due process guarantee.
                     Cite as: 557 U. S. ____ (2009)            3
    
                         SOUTER, J., dissenting
    
    touchstone of what is arbitrary and outside the sphere of
    reasonable judgment. And it is just as essential to recog­
    nize how much time society needs in order to work
    through a given issue before it makes sense to ask
    whether a law or practice on the subject is beyond the pale
    of reasonable choice, and subject to being struck down as
    violating due process.
      It goes without saying that the conception of the reason­
    able looks to the prevailing understanding of the broad
    society, not to individual notions that a judge may enter­
    tain for himself alone, id., at 542, 544, and in applying a
    national constitution the society of reference is the nation.
    On specific issues, widely shared understandings within
    the national society can change as interests claimed under
    the rubric of liberty evolve into recognition, see Griswold
    v. Connecticut, 
    381 U.S. 479
     (1965) (personal privacy);
    Lawrence v. Texas, 
    539 U.S. 558
     (2003) (sexual intimacy),
    see also Washington v. Glucksberg, 
    521 U.S. 702
    , 752
    (1997) (SOUTER, J., concurring in judgment), or are recast
    in light of experience and accumulated knowledge, com­
    pare Roe v. Wade, 
    410 U.S. 113
     (1973), with Planned
    Parenthood of Southeastern Pa. v. Casey, 
    505 U.S. 833
    (1992) (joint opinion of O’Connor, KENNEDY and SOUTER,
    JJ.).
      Changes in societal understanding of the fundamental
    reasonableness of government actions work out in much
    the same way that individuals reconsider issues of funda­
    mental belief. We can change our own inherited views
    just so fast, and a person is not labeled a stick-in-the-mud
    for refusing to endorse a new moral claim without having
    some time to work through it intellectually and emotion­
    ally. Just as attachment to the familiar and the limits of
    experience affect the capacity of an individual to see the
    potential legitimacy of a moral position, the broader soci­
    ety needs the chance to take part in the dialectic of public
    and political back and forth about a new liberty claim
    4    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                        DIST. v. OSBORNE 
    
                       SOUTER, J., dissenting 
    
    
    before it makes sense to declare unsympathetic state or
    national laws arbitrary to the point of being unconstitu­
    tional. The time required is a matter for judgment de­
    pending on the issue involved, but the need for some time
    to pass before a court entertains a substantive due process
    claim on the subject is not merely the requirement of
    judicial restraint as a general approach, but a doctrinal
    demand to be satisfied before an allegedly lagging legal
    regime can be held to lie beyond the discretion of reason­
    able political judgment.
       Despite my agreement with the Court on this impor­
    tance of timing, though, I do not think that the doctrinal
    requirement necessarily stands in the way of any substan­
    tive due process consideration of a postconviction right to
    DNA testing, even as a right that is freestanding. Given
    the pace at which DNA testing has come to be recognized
    as potentially dispositive in many cases with biological
    evidence, there is no obvious argument that considering
    DNA testing at a general level would subject wholly in­
    transigent legal systems to substantive due process review
    prematurely. But, as I said, there is no such issue before
    us, for Alaska does not flatly deny access to evidence for
    DNA testing in postconviction cases.
       In another case, a judgment about appropriate timing
    might also be necessary on issues of substantive due proc­
    ess at the more specific level of the State’s conditions for
    exercising the right to test. Several such limitations are
    potentially implicated, including the need of a claimant to
    show that the test results would be material as potentially
    showing innocence, and the requirement that the testing
    sought be capable of producing new evidence not available
    at trial. But although I assume that avoiding prematurity
    is as much a doctrinal consideration in assessing the
    conditions affecting a substantive right as it is when the
                         Cite as: 557 U. S. ____ (2009)                   5
    
                            SOUTER, J., dissenting
    
    substantive right itself is the subject of a general claim,2
    there is no need here to resolve any timing issue that
    might be raised by challenges to these details.
      Osborne’s objection here is not only to the content of the
    State’s terms and conditions, but also to the adequacy of
    Alaska’s official machinery in applying them, and there is
    no reason to defer consideration of this due process claim:
    given the conditions Alaska has placed on the right it
    recognizes, the due process guarantee requires the State
    to provide an effective procedure for proving entitlement
    to relief under that scheme, Evitts, 469 U. S., at 393, and
    the State has failed. On this issue, Osborne is entitled to
    relief. Alaska has presented no good reasons even on its
    own terms for denying Osborne the access to the evidence
    he seeks, and the inexplicable failure of the State to pro­
    vide an effective procedure is enough to show a need for a
    §1983 remedy, and relief in this case. JUSTICE STEVENS
    deals with this failure in Part I of his dissent, which I join,
    and I emphasize only two points here.
      In effect, Alaska argues against finding any right to
    relief in a federal §1983 action because the procedure the
    State provides is reasonable and adequate to vindicate the
    post-trial liberty interest in testing evidence that the State
    has chosen to recognize.3 When I first considered the
    ——————
      2 It makes sense to approach these questions as governed by the same
    
    requirement to allow time for adequate societal and legislative consid­
    eration that substantive liberty interests should receive at a general
    level. As Judge Luttig has pointed out, there is no hermetic line
    between the substantive and the procedural in due process analysis,
    Harvey v. Horan, 
    285 F.3d 298
    , 318–319 (CA4 2002), and in this case
    one could argue back and forth about the better characterization of
    various state conditions as being one or the other.
      3 Alaska does not argue that the State’s process for vindicating the
    
    right to test, however inadequate, defines the limit of the right it
    recognizes, with a consequence that, by definition, the liberty interest
    recognized by the State calls for no process for its vindication beyond
    what the State provides.
    6    DISTRICT ATTORNEY’S OFFICE FOR THIRD JUDICIAL 
    
                        DIST. v. OSBORNE 
    
                       SOUTER, J., dissenting 
    
    
    State’s position I thought Alaska’s two strongest points
    were these: (1) that in Osborne’s state litigation he failed
    to request access for the purpose of a variety of postconvic­
    tion testing that could not have been done at time of trial
    (and thus sought no new evidence by his state-court peti­
    tion); and (2) that he failed to aver actual innocence (and
    thus failed to place his oath behind the assertion that the
    evidence sought would be material to his postconviction
    claim). Denying him any relief under these circumstances,
    the argument ran, did not indicate any inadequacy in the
    state procedure that would justify resort to §1983 for
    providing due process.
       Yet the record shows that Osborne has been denied
    access to the evidence even though he satisfied each of
    these conditions. As for the requirement to claim testing
    by a method not available at trial, Osborne’s state-court
    appellate brief specifically mentioned his intent to conduct
    short tandem repeat (STR) analysis, App. at 171, 175, and
    the State points to no pleading, brief, or evidence that
    Osborne ever changed this request.
       The State’s reliance on Osborne’s alleged failure to claim
    factual innocence is equally untenable. While there is no
    question that after conviction and imprisonment he admit­
    ted guilt under oath as a condition for becoming eligible
    for parole, the record before us makes it equally apparent
    that he claims innocence on oath now. His affidavit filed
    in support of his request for evidence under §1983 con­
    tained the statement, “I have always maintained my
    innocence,” id., at 226, ¶2, followed by an explanation that
    his admission of guilt was a necessary gimmick to obtain
    parole, id., at 227, ¶7. Since the State persists in main­
    taining that Osborne is not entitled to test its evidence, it
    is apparently mere makeweight for the State to claim that
    he is not entitled to §1983 relief because he failed to claim
    innocence seriously and unequivocally.
       This is not the first time the State has produced reasons
                        Cite as: 557 U. S. ____ (2009)                   7
    
                            SOUTER, J., dissenting
    
    for opposing Osborne’s request that collapse upon inspec­
    tion. Arguing before the Ninth Circuit, the State main­
    tained that the DNA evidence Osborne sought was not
    material; that is, it argued that a test excluding Osborne
    as the source of semen in the blue condom, found near the
    bloody snow and spent shell casing in the secluded area
    where the victim was raped by one man, would not “estab­
    lish that he was factually innocent” or even “undermine
    confidence . . . in the verdict.” Reply of Appellant, in No.
    06-35875 (CA9 2008), p. 18; see also 
    521 F.3d 1118
    , 1136
    (CA9 2008). Such an argument is patently untenable, and
    the State now concedes that a favorable test could “conclu­
    sively establish Osborne’s innocence.” Reply to Brief in
    Opposition 8.
       Standing alone, the inadequacy of each of the State’s
    reasons for denying Osborne access to the DNA evidence
    he seeks would not make out a due process violation.4 But
    taken as a whole the record convinces me that, while
    Alaska has created an entitlement of access to DNA evi­
    dence under conditions that are facially reasonable, the
    State has demonstrated a combination of inattentiveness
    and intransigence in applying those conditions that add up
    to procedural unfairness that violates the Due Process
    Clause.
    
    
    
    
    ——————
      4 This Court is not in a position to correct individual errors of the
    
    Alaska Court of Appeals or Alaska officials, as §1983 does not serve as
    a mechanism to review specific, unfavorable state-law determinations.
    

Document Info

DocketNumber: 08-6

Citation Numbers: 557 U.S. 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38, 2009 U.S. LEXIS 4536

Filed Date: 6/18/2009

Precedential Status: Precedential

Modified Date: 3/27/2018

Authorities (72)

Danny Joe Bradley v. Bill Pryor , 305 F.3d 1287 ( 2002 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Bute v. Illinois , 333 U.S. 640 ( 1948 )

Darr v. Burford , 339 U.S. 200 ( 1950 )

Poe v. Ullman , 367 U.S. 497 ( 1961 )

Gideon v. Wainwright , 372 U.S. 335 ( 1963 )

Brady v. Maryland , 373 U.S. 83 ( 1963 )

Griswold v. Connecticut , 381 U.S. 479 ( 1965 )

Miranda v. Arizona , 384 U.S. 436 ( 1966 )

Lee v. Washington , 390 U.S. 333 ( 1968 )

Johnson v. Avery , 393 U.S. 483 ( 1969 )

In Re WINSHIP , 397 U.S. 358 ( 1970 )

Cruz v. Beto , 405 U.S. 319 ( 1972 )

Morrissey v. Brewer , 408 U.S. 471 ( 1972 )

Board of Regents of State Colleges v. Roth , 408 U.S. 564 ( 1972 )

Roe v. Wade , 410 U.S. 113 ( 1973 )

Braden v. 30th Judicial Circuit Court of Ky. , 410 U.S. 484 ( 1973 )

Preiser v. Rodriguez , 411 U.S. 475 ( 1973 )

Wolff v. McDonnell , 418 U.S. 539 ( 1974 )

Mathews v. Eldridge , 424 U.S. 319 ( 1976 )

View All Authorities »

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