Jacques R. Williams, Esq. Kelly D. Ambrose
Hamstead, Williams & Shook, PLLC Assistant Attorney General
Morgantown, West Virginia Chief Legal Counsel
Attorney for the Petitioner South Charleston, West Virginia
Attorney for Respondent Hill
Mike Clifford
Prosecuting Attorney
Mary Beth Kershner
Assistant Prosecuting Attorney
Robert William Schulenberg, III
Assistant Prosecuting Attorney
Charleston, West Virginia
Attorneys for Respondent Clifford
JUSTICE DAVIS delivered the opinion of the Court.
JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision of this case.
JUDGE PAUL ZAKAIB, JR., sitting by temporary assignment.
JUSTICE ALBRIGHT dissents and reserves the right to file a dissenting opinion.
CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
3. “Petitioners in mandamus must have a clear legal right to the relief sought
therein and such right cannot be established in the proceeding itself.” Syllabus point 1, State
ex rel. Kucera v. Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
4. “'“An adjudication by a court having jurisdiction of the subject-matter and the
parties is final and conclusive, not only as to the matters actually determined, but as to every
other matter which the parties might have litigated as incident thereto and coming within the
legitimate purview of the subject-matter of the action. It is not essential that the matter
should have been formally put in issue in a former suit, but it is sufficient that the status of
the suit was such that the parties might have had the matter disposed of on its merits. An
erroneous ruling of the court will not prevent the matter from being res judicata.” Point 1,
Syllabus, Sayre's Adm'r v. Harpold, 33 W. Va. 553[, [11 S. E. 16] [(1890)].' Syl. Pt. 1, In
re McIntosh's Estate, 144 W. Va. 583, 109 S.E.2d 153 (1959).” Syllabus point 1, State ex
rel. West Virginia Department of Health & Human Resources v. Cline, 185 W. Va. 318, 406
S.E.2d 749 (1991) (per curiam).
5. “Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action.” Syllabus point 4, Blake v. Charleston Area Medical Center, 201 W. Va. 469, 498 S.E.2d 41 (1997).
6. Before a petitioner is entitled to post-conviction DNA testing the petitioner must file a motion for post-conviction DNA testing in the circuit court that entered the judgment of conviction that the petitioner challenges. In the motion the petitioner must allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is incarcerated; 2) the material upon which the petitioner seeks testing exists and is available; 3) the material to be tested is in a condition that would permit DNA; 4) a sufficient chain of custody of the material to be tested exists to establish such material has not been substituted, tampered with, replaced, or altered in any material respect; 5) identity was a significant issue at trial; and, 6) a DNA test result excluding the petitioner as being the genetic donator of the tested material would be outcome determinative in proving the petitioner not guilty of the offense(s) for which the petitioner was convicted. Finally, the petitioner's theory supporting the request for post-conviction DNA testing may not be inconsistent with the trial defenses.
7. A petitioner bears the costs of post-conviction DNA testing unless the
petitioner qualifies as an indigent, in which case the cost of testing shall be borne by the
State.
Davis, J.:
Clyde H. Richey (hereinafter “Mr. Richey”) seeks an original jurisdiction writ
of mandamus directing Colonel Howard E. Hill, Jr., Superintendent of the West Virginia
State Police, and Mike Clifford, Prosecuting Attorney for Kanawha County, West Virginia
(hereinafter “Colonel Hill” or “Mr. Clifford”), to either conduct DNA tests on certain
evidence used in Mr. Richey's 1979 trial for third-degree sexual assault or to release such
evidence so that he can arrange his own testing. Having reviewed the petition and supporting
memorandum, Colonel Hill's and Mr. Clifford's responses and exhibits, and pertinent
records, we find mandamus does not lie and therefore deny the petition.
A jury convicted Mr. Richey in 1979 on one count of third-degree sexual
assault for having had anal intercourse with a fourteen year-old boy in a motel in Charleston,
West Virginia. At the time of the assault, Mr. Richey was in the House of Delegates. His
victim was a legislative page whom Mr. Richey knew through the Big Brothers program. Mr.
Richey arranged for the victim to accompany him from Morgantown and to stay with him for
several days in a motel room Mr. Richey was renting during the legislative session. After
conviction, Mr. Richey was not incarcerated but instead received five years probation. We
affirmed the conviction in State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982).
At trial, the State introduced three-pairs of the victim's underwear.
(See footnote 1)
State
Police Serologist Fred Zain subjected one pair of the underwear to an unauthorized acid
phosphate test (a test which determines if semen is present), but apparently obtained no test
results. State Police Serologist Robert Murphy performed other testing on all three pairs of
the underwear, which found semen on two of them. However, there was insufficient semen
to determine the blood type of the semen. (See footnote 2)
After conviction, Mr. Richey filed a number of habeas petitions culminating in a habeas proceeding held before Judge A. Andrew MacQueen of the Circuit Court of Kanawha County. (See footnote 3) This proceeding included a claim under In re West Virginia State Police Crime Laboratory, 190 W. Va. 321, 438 S.E.2d 501 (1993) (hereinafter “Zain I”). (See footnote 4) Judge MacQueen dismissed the Zain I claim on April 23, 1996, and the remaining claims on December 2, 1996. We refused a petition for appeal.
After we refused Mr. Richey's habeas appeal, he filed a coram nobis petition,
a W. Va. R. Civ. P. Rule 60(b) motion, and a petition for DNA testing
(See footnote 5)
in the Circuit Court
of Kanawha County, Judge George M. Scott, sitting by temporary assignment. Judge Scott
denied relief in 1998 finding “the claims of the petitioner . . . are . . . barred by the doctrine
of res judicata.” Mr. Richey never petitioned for an appeal from Judge Scott's final order.
In 2002, Mr. Richey filed with the Circuit Court of Kanawha County, Judge
Louis H. Bloom, a motion for DNA testing that Judge Bloom found was “nearly identical”
to the one Mr. Richey filed before Judge Scott.
(See footnote 6)
While this motion was pending, Mr. Richey
filed an original jurisdiction habeas corpus petition in this Court seeking DNA testing, which
we refused. On November 26, 2002, Judge Bloom denied the motion for DNA testing
finding that it was nearly identical to the coram nobis petition Judge Scott denied and was
barred by Judge Scott's decision. Mr. Richey never petitioned for appeal. Mr. Richey now
asks us to order Colonel Hill and Mr. Clifford to perform DNA testing or allow him to
perform such testing.
The Respondents counter that they are not the custodians of the evidence and do not know if the evidence Mr. Richey seeks still exists. They also respond that Mr. Richey does not have a clear legal right to a mandamus because he has previously sought the same relief he now seeks before this Court and was unsuccessful. Consequently, he is barred by res judicata from proceeding in this action. We find that Mr. Richey has not shouldered his “heavy” burden of showing a right to mandamus. 52 Am. Jur. 2d Mandamus § 3 at 272 (2000) (footnote omitted).
Cannot Be Used to Create Such a Right.
“We have characterized the purpose of the writ [of mandamus] as the
enforcement of an established right and the enforcement of a corresponding imperative duty
created or imposed by law.” State ex rel. Ball v. Cummings, 208 W. Va. 393, 398, 540
S.E.2d 917, 922 (1999). Because mandamus enforces only an established right, “[p]etitioners
in mandamus must have a clear legal right to the relief sought therein and such right cannot
be established in the proceeding itself.” Syl. pt. 1, State ex rel. Kucera v. Wheeling, 153 W.
Va. 538, 170 S.E.2d 367 (1969).
Mr. Richey directs us to no authority mandating the State conduct, or allow to
be conducted, DNA testing when the petitioner is not incarcerated. Rather, he directs us to
Zain I where we required inmates seeking relief due to Fred Zain's involvement in their trials
to consent to DNA testing. 190 W. Va. at 327,438 S.E.2d at 507. Our concern in Zain I
revolved around those who were still incarcerated and not those who had already been
released or who had never been incarcerated. We specifically provided in Zain I, “we will
direct the Clerk of this Court to prepare and cause to be distributed to the Division of
Corrections an appropriate post-conviction habeas corpus form.” Id. at 327, 438 S.E.2d at
507 (emphasis added). Our concern in Zain I for those still incarcerated flowed, at least in
part, from the jurisdictional requirement that habeas lies only for one “convicted of a crime
and incarcerated under sentence of imprisonment therefore[.]” W. Va. Code § 53-4A-1(a)
(1967) (2000 Repl. Vol.).
(See footnote 7)
Mr. Richey's memorandum of law recognizes that habeas is
unavailable to him as he is not incarcerated. Thus, he seeks to extend Zain I to include those
who are not, or as here, who have never been, incarcerated.
(See footnote 8)
This, as we have shown above,
we cannot do.
(See footnote 9)
“'“An adjudication by a court having jurisdiction of the subject-
matter and the parties is final and conclusive, not only as to the
matters actually determined, but as to every other matter which
the parties might have litigated as incident thereto and coming
within the legitimate purview of the subject-matter of the action.
It is not essential that the matter should have been formally put
in issue in a former suit, but it is sufficient that the status of the
suit was such that the parties might have had the matter disposed
of on its merits. An erroneous ruling of the court will not
prevent the matter from being res judicata.” Point 1, Syllabus,
Sayre's Adm'r v. Harpold, 33 W. Va. 553[, [11 S. E. 16]
[(1890)].' Syl. Pt. 1, In re McIntosh's Estate, 144 W. Va. 583,
109 S.E.2d 153 (1959).” Syllabus point 1, State ex rel. West
Virginia Department of Health & Human Resources v. Cline,
185 W. Va. 318, 406 S.E.2d 749 (1991) (per curiam).
Syl. pt. 1, State ex rel. West Virginia Dep't of Health & Hum. Res. v. Cline, 185 W. Va. 318,
406 S.E.2d 749 (1991) (per curiam). Additionally, we have observed that
[o]ur prior cases have recognized that the principles
undergirding res judicata serve “to advance several related
policy goals--(1) to promote fairness by preventing vexatious
litigation; (2) to conserve judicial resources; (3) to prevent
inconsistent decisions; and (4) to promote finality by bringing
litigation to an end.”
State v. Miller, 194 W. Va. 3, 10 n.8, 459 S.E.2d 114, 121 n.8 (1995) (citations omitted).
Mr. Richey responds, however, that res judicata should not be applied if it would be unjust. While we have been cognizant of the need to ensure that application of res judicata does not “plainly defeat the ends of Justice[,]” Gentry v. Farruggia, 132 W. Va. 809, 811, 53 S.E.2d 741, 742 (1949), such an exception must be based upon “extraordinary circumstances” and “courts should be loathe to exercise this power.” Sims v. State, 771 N.E.2d 734, 738 n.2 (Ind. Ct. App. 2002). Accord Arwood v. J.P. & Sons, Inc., 759 So. 2d 848, 850 (La. Ct. App. 2000) (interests of justice exception should be granted only in exceptional cases in order to not defeat the purposes of res judicata). In this case, we face a situation that even more than usual justifies application of res judicata.
As one leading treatise notes, “a dismissal of a second action on the ground that
it is precluded by a prior action is itself effective as res judicata, and a judgment on the merits
that forecloses further litigation of the preclusion question in a third action.” 18A Charles
Alan Wright, et al., Federal Practice and Procedure § 4435 at 148 (2d ed. 2002) (footnote
omitted). In short, a determination of res judicata is itself res judicata. If anything, the rule
that a finding of res judicata is itself res judicata is of stronger force than a determination
to apply res judicata in the first instance. “The principles of res judicata apply to preclude
relitigation of the res judicata issue just as cogently as with any other issue, and perhaps even
more cogently.” 18 Federal Practice & Procedure, supra § 4404 at 65 (footnote omitted).
Judge MacQueen denied Mr. Richey relief under Zain I in 1996. We
subsequently refused Mr. Richey's petition for appeal by a 4-0 vote. Subsequently, Mr.
Richey filed a petition for a writ of coram nobis and Rule 60(b) motion along with a motion
for DNA testing. Judge Scott denied relief based on res judicata in 1998.
(See footnote 10)
Mr. Richey did
not petition for appeal.
(See footnote 11)
In 2002, Judge Bloom denied Mr. Richey DNA testing based upon
Judge Scott's res judicata dismissal. Again, Mr. Richey did not petition for appeal.
In syllabus point 4 of Blake v. Charleston Area Medical Center, 201 W. Va. 469, 498 S.E.2d 41 (1997), we explained:
Before the prosecution of a lawsuit may be barred on the
basis of res judicata, three elements must be satisfied. First,
there must have been a final adjudication on the merits in the
prior action by a court having jurisdiction of the proceedings.
Second, the two actions must involve either the same parties or
persons in privity with those same parties. Third, the cause of
action identified for resolution in the subsequent proceeding
either must be identical to the cause of action determined in the
prior action or must be such that it could have been resolved,
had it been presented, in the prior action.
Here, Blake is met. Judge Bloom entered a final order finding that Judge
Scott's final order barred Mr. Richey from pursuing a claim for DNA testing. This finding
by a court of competent jurisdiction was a final adjudication on the merits of whether Mr.
Richey could seek DNA testing. See 18A Federal Practice and Procedure, supra, § 4435
at 148 (footnote omitted) (dismissal on grounds of res judicata is “a judgment on the merits
that forecloses further litigation of the preclusion question in a third action.”). Moreover,
Mr. Richey never appealed either order. See Hustead on behalf of Adkins v. Ashland Oil,
Co., 197 W. Va. 55, 60, 475 S.E.2d 55, 60 (1996) (“The Appellant admittedly chose not to
file a direct appeal from the circuit court's final order. That decision resulted in the judgment
becoming final and subject to the principles of res judicata.”). Further, both cases involved
the same parties, Mr. Richey and the State of West Virginia (represented in both cases by the
Kanawha County Prosecuting Attorney). Finally, the two cases were based on the same
cause of action-post _ conviction DNA testing relating to Mr. Richey's 1979 conviction.
Thus, we are compelled to conclude that res judicata precludes granting Mr. Richey the relief
he seeks.
(See footnote 12)
We have never spoken as to the precise contours of post-conviction DNA
testing. However, other states have done so by crafting statutes that control the availability
of post-conviction DNA testing. Our research has revealed many of these statutes share
certain common provisions. Thus, we believe that this case provides us an opportunity to
encapsulate the requirements to award post-conviction DNA testing by looking to these
statutes.
(See footnote 13)
We begin by observing that a petitioner in a post-conviction proceeding bears the burden of pleading and subsequently proving his claims by a preponderance of the evidence. As we said in syllabus point 1 of State ex rel. Scott v. Boles, 150 W. Va. 453, 147 S.E.2d 486 (1966):
Under the statute of this state dealing with habeas corpus proceedings
a prima facie case, in order for this Court to issue the writ, may be made by
petition showing by an affidavit or other evidence probable cause to believe
that a person is detained without lawful authority. However, this does not in
any way warrant the release of a petitioner confined in the penitentiary. Such
petitioner has the burden of proving by a preponderance of the evidence the
allegations contained in his petition or affidavit which would warrant his
release.
Placing the burden upon a petitioner seeking post-conviction DNA to plead and
then to prove by a preponderance of the evidence his right to DNA testing is consistent with
the view of other jurisdictions. See, e.g., Mo. Rev. Stat. §§ 547.035(6) (2002) (“The movant
shall have the burden of proving the allegations of the motion by a preponderance of the
evidence.”); N.M. Stat. Ann. § 31-1A-2(C) (Michie 2003 Cum. Supp.) (“The petitioner shall
show, by a preponderance of the evidence . . . .”); Utah Code Ann. § 78-35a-301(6)(b) (2002 Repl. Vol.) (“[T]he court shall order DNA testing if it finds by a preponderance of the
evidence that all criteria . . . have been met.”).
Having set forth the evidentiary standard a petitioner seeking post-conviction DNA testing must meet, we turn to establishing what the petitioner must actually prove in order to prevail. We note initially that we have already observed that the general nature of habeas corpus, our own post-conviction habeas corpus statute, and the views of other jurisdictions establish that a post-conviction petitioner seeking DNA testing must be incarcerated. See supra Part III.A. note 7 and accompanying text and Part III.B note 12. We also find that a general requirement is that the petitioner prove the material he or she seeks to test exists and is available. See, e.g., Ga. Code Ann. § 5-5-41(c)(7)(A) (2003 Supp.) (“The court shall grant the motion for DNA testing if it determines that . . . The evidence to be tested . . . is available[.]”); Mont. Code Ann. § 46-21-110(5)(a)(ii) (“The court shall grant the petition if it determines that the petition is not made for the purpose of delay and that . . . the evidence to be tested . . . is available[.]”); N.J. Stat. Ann. § 2A:84A-32a(d)(1) (West 2003 Cum. Ann. Pocket Part) (“The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that . . . the evidence to be tested is available[.]”).
Likewise, because a DNA test result is only useful if it is accurate, it is generally acknowledged that the petitioner must prove that the material to be tested is in a condition that would permit DNA testing. See, e.g., Ga. Code Ann. § 5-5-41(c)(7)(A) (“The court shall grant the motion for DNA testing if it determines that . . . The evidence to be tested is . . . . in a condition that would permit the DNA testing requested in the motion[.]”); Mont. Code § 46-21-110(5)(a)(iii) (“The court shall grant the petition if it determines that . . . the evidence to be tested . . . is in a condition that would permit the requested testing[.]”); N.J. Stat. Ann. § 2A:84A-32a(d)(1) (“The court shall not grant the motion for DNA testing unless, after conducting a hearing, it determines that . . . the evidence to be tested is . . . in a condition that would permit the DNA testing that is requested in the motion[.]”); Ohio Rev. Code Ann. § 2953.74(C)(2)(c) (Anderson 2003 Repl. Vol.) (“If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code, the court may accept the application only if . . . The parent sample of the biological material so collected has not degraded or been contaminated to the extent that it has become scientifically unsuitable for testing, and the parent sample otherwise has been preserved, and remains, in a condition that is scientifically suitable for testing.”).
A similar concern for accuracy undergirds the general requirement that a petitioner seeking post-conviction DNA testing prove a sufficient chain of custody of the material to be tested that establishes the material to be tested has not been substituted, tampered with, replaced, or altered in any material respect. See, e.g., Ga. Code Ann. 5-5- 41(c)(7)(B) (“The court shall grant the motion for DNA testing if . . . The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect[.]”); Mont. Stat. Ann. § 46-21-110(5)(b) (“The court shall grant the petition if . . . the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, degraded, contaminated, altered, or replaced in any material aspect[.]”); 42 Pa. Cons. Stat. § 9543.1(d)(1)(ii) (2003 Cum. Ann. Pocket Part) (“[T]he court shall order the testing requested in a motion . . . after review of the record of the applicant's trial, that the . . . evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been altered in any material respect[.]”) See also FIPA of 2003 § 3600(a)(4) (“[T]he court that entered the judgment of conviction shall order DNA testing of specific evidence if . . . the specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing[.]”) (See footnote 14)
At this junction we must point out that meeting these requirements does not entitle a petitioner to post-conviction DNA testing. Courts and legislatures have recognized an additional critical element. We turn to that element now_the relevancy of DNA testing in a given case.
While DNA testing is a powerful tool it “'is not a magic bullet in post- conviction cases.'” Jennifer Boemer, Note, In the Interest of Justice: Granting Post- Conviction Deoxyribonucleic Acid (DNA) Testing to Inmates, 27 Wm. Mitchell L. Rev. 1971, 1985 (2001) (quoting Chris Asplen, Executive Director of the National Commission on the Future of DNA Evidence). DNA “'is only as powerful as it is relevant in a given scenario.'” Id. DNA testing is irrelevant when the issue in the case involves non-identity issues such as consent or intent. Keith A. Findley, Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 Cal. W. L. Rev. 333, 337 (2002) (“Moreover, biological evidence is useless where issues of consent or intent, rather than identity, are in dispute.”). Indeed, many DNA testing statutes require identity to have been a significant issue at trial before testing is permitted. See, e.g., Ga. Code Ann. § 5-5-41(c)(7)(E) (“The court shall grant the motion for DNA testing if it determines that . . . The identity of the perpetrator of the crime was a significant issue in the case[.]”); N.J. Stat. Ann. § 2A:84A- 32a(d)(3) (“The court shall not grant the motion for DNA testing unless . . . the identity of the defendant was a significant issue in the case[.]”). Ohio Rev. Code Ann. § 2953.74(C)(3) (permitting post-conviction DNA testing if, inter alia, “[t]he court determines that, at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing, the identity of the person who committed the offense was an issue.”). See also FIPA § 3600(a)(7) (court that entered judgment of conviction shall order DNA testing, inter alia, “if the applicant was convicted following a trial, [and] the identity of the perpetrator was at issue in the trial[.]”). If the issue of identity of the perpetrator is not an issue or if DNA testing would not be “virtually dispositive” in establishing the petitioner's innocence then DNA testing is not warranted. See, e.g., Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999) (discussing the importance of identity as an issue in the case and, inter alia, that “the nature of the biological evidence makes testing results on the issue of identity virtually dispositive.”); Ohio Rev. Code Ann. § 2953.74(C)(4) (post-conviction DNA testing may be allowed if “[t]he court determines that one or more of the defense theories asserted by the inmate at the trial stage in the case . . . was of such a nature that, if DNA testing is conducted and an exclusion result is obtained, the exclusion result will be outcome determinative.”). In other words, DNA testing is warranted
where the defendant claims he is “actually innocent” of the crime, and
demonstrates that such testing shows that they [sic] did not commit the crime.
DNA testing will not be permitted where such a test would only muddy the
waters and be used by the defendant to fuel a new and frivolous series of
appeals.
149 Cong. Rec. S12,294 (daily ed. Oct. 1, 2003) (statement of Sen. Hatch).
We also observe that post-conviction proceedings are not a venue for a petitioner to retry his case under different theories than those advanced at trial. United States ex rel. Darcy v. Handy, 97 F. Supp. 930, 939 (M.D. Pa. 1951) (holding in a federal habeas case that “[h]aving taken the position assumed at the trial, defendant cannot now properly ask to retry his case on a different theory.”), rev'd on other grounds, 203 F.2d 407 (3d Cir. 1953). Consistent with this, we also recognize that a petitioner may not request DNA testing if the theory supporting the testing contradicts the defenses raised at trial. See, e.g., Ohio Rev. Code Ann. § 2953.74(C)(4) (post-conviction DNA testing allowed if “[t]he court determines that one or more of the defense theories asserted by the inmate at the trial stage in the case . . . was of such a nature that, if DNA testing is conducted and an exclusion result is obtained, the exclusion result will be outcome determinative.”); Utah Code § 78-35a- 301(2)(c) & (6)(b) (petitioner must show “a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support”). See also FIPA § 3600(a)(6)(A) & (B) (DNA testing mandated, inter alia, if “the applicant identifies a theory of defense that--is not inconsistent with an affirmative defense presented at trial; and would establish the actual innocence of the applicant[.]”) In circumstances where the petitioner seeking post-conviction DNA did not contest identity at trial, (See footnote 15) the petitioner would not be entitled to post-conviction DNA testing. See, e.g., Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim App. 2002) (En Banc) (post-conviction DNA rule “requires that identity 'was or is' an issue, not that future DNA testing could raise the issue.”); Sanders v. State, No. 01-00084- CR, 2004 WL 440426 (Tex. App. Mar. 11, 2004) (post-conviction DNA test denied as trial defense was that the attack never occurred and was fabricated by the victim).
We now find it would be beneficial to crystalize our conclusions here today and
therefore so hold that before a petitioner is entitled to post-conviction DNA testing the
petitioner must file a motion for post-conviction DNA testing in the circuit court that entered
the judgment of conviction that the petitioner challenges. In the motion the petitioner must
allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is
incarcerated; 2) the material upon which the petitioner seeks testing exists and is available;
3) the material to be tested is in a condition that would permit DNA; 4) a sufficient chain of
custody of the material to be tested exists to establish such material has not been substituted,
tampered with, replaced, or altered in any material respect; 5) identity was a significant issue
at trial; and, 6) a DNA test result excluding the petitioner as being the genetic donator of the
tested material would be outcome determinative in proving the petitioner not guilty of the
offense(s) for which the petitioner was convicted. Finally, the petitioner's theory supporting
the request for post-conviction DNA testing may not be inconsistent with the trial defenses.
Of course, if the test result excludes the petitioner as being the genetic donator of the tested
material, the circuit court shall award appropriate relief.
We wish to further point out that motions for post-conviction DNA testing would fall
under the definition of eligible proceeding under the West Virginia Public Defender Services
Act. W. Va. Code § 29-21-2(2) (1996) (2001 Repl. Vol.). Therefore, we also hold that a
petitioner bears the costs of post-conviction DNA testing unless the petitioner qualifies as
an indigent, in which case the cost of testing shall be borne by the State. See, e.g., Ga. Code
Ann. § 5-5-41(c)(8) (“If the court orders testing pursuant to this subsection, the court shall
determine the method of testing and responsibility for payment for the cost of testing, if
necessary, and may require the petitioner to pay the costs of testing if the court determines
that the petitioner has the ability to pay. If the petitioner is indigent, the cost shall be paid
from the fine and forfeiture fund as provided in Article 3 of Chapter 5 of Title 15.”); Mont.
Code Ann. § 4621-110(11) (“The court shall order a petitioner who is able to do so to pay
the costs of testing. If the petitioner is unable to pay, the court shall order the state to pay the
costs of testing.”).
(See footnote 16)
It is our hope that “[a]s DNA is used increasingly before conviction, the body
of wrongful convictions that can be exposed through postconviction DNA testing will
diminish, and ultimately disappear.” Findley, Learning from our Mistakes, 38 Cal. West. L.
Rev. at 337 (footnote omitted). See also 149 Cong. Rec. S12,294 (daily ed. Oct. 1, 2003)
(statement of Sen. Hatch) (“DNA testing is now standard in pretrial criminal investigations
today[.]”). For those who have been convicted but have not received pre-conviction DNA
tests, we believe our opinion provides the appropriate guidelines for post-conviction testing.
In conclusion, we again reiterate that “the purpose of the legal system is to
provide final resolution of legal controversies[.]” Wellman v. Energy Resources, Inc., 210
W. Va. 200, 207, 557 S.E.2d 254, 261 (2001). Since 1979, Mr. Richey has filed numerous
suits over his conviction.
(See footnote 17)
However, “'[n]o effective judicial system can afford to concede
the continuing theoretical possibility that there is error in every trial.'” State v. Lo, 264 Wis.
2d 1, 38, 665 N.W.2d 756, 774 (2003) (citation omitted). We have thus found no one is
“entitled to appeal upon appeal, attack upon attack, and habeas corpus upon habeas corpus.”
Call v. McKenzie, 159 W. Va. 191, 194, 220 S.E.2d 665, 669 (1975). Accord United States
v. Quinones, 313 F.3d 49, 62 (2d Cir. 2002) (finding no fundamental right to “the continued
opportunity to exonerate oneself throughout the natural course of one's life[.]”), cert. denied,
___ U.S. ___, 124 S. Ct. 807, 157 L. Ed. 2d 702 (2003). Having thoroughly considered the
merits of his claims, we agree that litigation must end sometime and “[t]hat time has come
for Mr. [Richey].” United States v. Keane, 852 F. 2d 199, 206 (7th Cir. 1988).
For the foregoing reasons, the petition for a writ of mandamus is denied.