Nathan Turner v. Bonnie Dumanis, et al, No. 09-55524 (9th Cir. 2011)

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FILED FEB 24 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT NATHAN KEVIN TURNER, Plaintiff - Appellant, No. 09-55524 D.C. No. 3:08-cv-00360-W-RBB v. MEMORANDUM * BONNIE DUMANIS, District Attorney of the County of San Diego; et al., Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Submitted February 15, 2011 ** Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges. Nathan Kevin Turner, a California state prisoner, appeals pro se from the district court s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of post-conviction access to biological evidence for DNA testing. We have * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § 1291. We review de novo, Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001), and we affirm. The district court properly dismissed Turner s claims that he was denied post-conviction access to biological evidence for DNA testing because he has not stated a viable due process claim. See Dist. Attorney s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2320-23 (2009) (holding that plaintiff had no viable procedural due process claim because state s procedures for post-conviction relief did not transgress recognized principles of fundamental fairness, and that there was no substantive due process right to post-conviction access to DNA evidence). The district court properly dismissed Turner s claims that defendants destroyed materially exculpatory evidence in bad faith because Turner s conviction has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that a constitutional claim that necessarily implies the invalidity of a conviction cannot be brought under § 1983 unless the conviction has already been invalidated). Turner s remaining contentions are unpersuasive. AFFIRMED. 2 09-55524

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