No Due Process Right to Pre‑Habeas Access to Raw DNA Data: Fifth Circuit Upholds Texas’s Court‑Controlled Postconviction Discovery Regime and Rejects § 1983 Mandamus

Introduction

In Milam v. Jimerson, the United States Court of Appeals for the Fifth Circuit confronted a capital defendant’s effort to use 42 U.S.C. § 1983 as a vehicle to obtain electronic DNA data from a county prosecutor outside any live state postconviction proceeding. Blaine Keith Milam, on Texas’s death row for the 2010 capital murder of his fiancée’s infant daughter, alleged that Texas’s postconviction regime unconstitutionally vested prosecutors with unreviewable discretion to withhold DNA-related materials and provided no alternative process to obtain them. He also sought authorization to file a successive federal habeas petition based on claimed advances in forensics (bitemark and blood pattern analysis) and a late-arising intellectual-disability claim, and he moved for a stay of execution.

The Fifth Circuit affirmed the dismissal of his § 1983 suit, denied authorization for a successive habeas application, denied a stay, and granted leave to exceed word limits. The ruling synthesizes recent Supreme Court guidance recognizing that state-created postconviction rights may entail ancillary process (Gutierrez v. Saenz, 145 S. Ct. 2258 (2025)), while reaffirming the constrained federal role under District Attorney’s Office v. Osborne, 557 U.S. 52 (2009), and Skinner v. Switzer, 562 U.S. 521 (2011). Central to the decision is the court’s endorsement of Texas’s court-supervised discovery model tied to pending habeas proceedings, and its rejection of § 1983 as a surrogate for mandamus to compel production of raw forensic files from a district attorney.

Summary of the Opinion

Section 1983 claim: Affirmed dismissal. Texas’s postconviction framework—allowing discovery under court supervision during habeas, and otherwise leaving disclosure to prosecutorial discretion—was not “fundamentally inadequate” under Osborne. The court emphasized Milam’s failure to utilize available state procedures.
Rooker–Feldman: Not a bar because Milam attacked the constitutionality of the state scheme, not a particular state-court judgment denying his discovery motion.
Characterization of relief sought: A request to compel release of DNA evidence through § 1983 “sounds in mandamus,” which is improper in federal court against state actors; but even if not mandamus, the due process claim fails on the merits.
Successive habeas: Authorization denied. Even assuming timeliness arguments for some claims, Milam’s new forensic critiques did not meet 28 U.S.C. § 2244(b)(2)(B)’s stringent actual-innocence standard. His intellectual-disability claim was untimely and could not be bootstrapped under Fifth Circuit precedent.
Stay of execution: Denied for lack of a substantial case on the merits under the Nken factors.
Overlength motion: Granted.

Analysis

Precedents Cited and How They Shaped the Decision

District Attorney’s Office v. Osborne, 557 U.S. 52 (2009): Osborne is the anchor. It holds there is no freestanding federal constitutional right to DNA evidence and that state postconviction procedures violate due process only if “fundamentally inadequate to vindicate the substantive rights provided.” The Fifth Circuit measured Texas’s system against this high bar and found it adequate.
Skinner v. Switzer, 562 U.S. 521 (2011): Recognizes § 1983 as an avenue to challenge the constitutionality of a state’s DNA-access procedures (rather than to seek immediate release or to relitigate guilt), but emphasizes the “slim room” for prevailing under Osborne. The panel quoted Skinner’s constraint and applied it to Milam’s challenge.
Reed v. Goertz, 598 U.S. 230 (2023): Clarifies accrual of § 1983 claims challenging DNA-testing procedures. The Fifth Circuit flagged but did not decide limitations here because it resolved on the merits. Reed also confirms that Rooker–Feldman does not bar structural attacks on a state’s procedural regime; the panel relied on Reed to reject the State’s Rooker–Feldman argument.
Gutierrez v. Saenz, 145 S. Ct. 2258 (2025): The Supreme Court recognized that when a state creates postconviction rights, due process may require additional procedures “essential to the realization of the parent right.” The Fifth Circuit adopted this framing but concluded Texas’s existing mechanisms already satisfy any such ancillary-process obligation.
In re TDCJ, 710 S.W.3d 731 (Tex. Crim. App. 2025) and Tex. Code Crim. Proc. art. 11.071, § 5: The Texas Court of Criminal Appeals (CCA) established that trial courts lose general jurisdiction post-finality but reacquire it in habeas; discovery may be ordered then. Subsequent applications require a prima facie showing that the factual/legal basis was previously unavailable. The Fifth Circuit treated these state rules as constitutionally sufficient channels for evidence access.
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007): Sets the prima facie threshold for subsequent habeas relief; the Fifth Circuit highlighted this as the operative standard in Texas.
Tevlin v. Spencer, 621 F.3d 59 (1st Cir. 2010); Cromartie v. Shealy, 941 F.3d 1244 (11th Cir. 2019); Widmer v. Okereke, No. 24-3054, 2025 WL 1432584 (6th Cir. May 19, 2025): The Fifth Circuit cited these decisions to show that courts routinely uphold postconviction regimes providing court-controlled discovery upon threshold showings, reinforcing the constitutionality of Texas’s scheme.
Ramirez v. McCraw, 715 F. App’x 347 (5th Cir. 2017): The panel analogized Milam’s request to a mandamus-like effort to compel evidence production via § 1983, which Fifth Circuit precedent disfavors.
§ 2244(b) line (In re Campbell, In re Morris, Prince v. Thaler): These frame the exacting standard for successive habeas. New evidence must establish that no reasonable factfinder would have found guilt, not merely impeach prior forensic evidence.
Intellectual-disability line (In re Webster, In re Sparks): A late intellectual-disability claim cannot bootstrap an untimely successive application; the one-year clock governs.

Legal Reasoning

The court approached Milam’s claims on distinct tracks: (1) the § 1983 procedural due process challenge to Texas’s postconviction access regime, and (2) his request to open the federal habeas gate for successive claims based on evolving forensics and intellectual disability.

1) The § 1983 Due Process Challenge

Texas law places discovery in the orbit of the state courts during active habeas proceedings. After conviction becomes final, trial courts lack general jurisdiction but regain authority in habeas and can order discovery then. A subsequent habeas applicant must make a prima facie showing that new facts or law were previously unavailable and that, if proved, they would likely require relief from conviction or sentence. Within this framework, the Fifth Circuit held Texas affords a constitutionally adequate pathway to evidence:

No freestanding right to DNA data: Osborne forecloses a broad constitutional right to evidence.
Ancillary process satisfied: Even crediting Gutierrez’s recognition that some ancillary process might be due when a state creates postconviction rights, Texas’s court-controlled discovery during habeas sufficiently realizes any parent right.
Discretion outside habeas does not doom the scheme: Milam’s chief criticism—that prosecutors retain discretion to withhold DNA materials unless a court orders discovery—did not render the regime “fundamentally inadequate.” Many states maintain similar judicial-gatekeeping mechanisms; federal courts have upheld them.
Failure to invoke state process: Osborne counsels against invalidating state procedures a prisoner has not even tried to use. The panel underscored that Milam filed his actual-innocence claim after the district court dismissed this suit; he had not taken full advantage of Texas’s available mechanisms when launching his federal due process challenge.
Mandamus-like relief is improper: To the extent Milam sought an injunction compelling the district attorney to turn over electronic DNA byproducts (e.g., raw data files held by SWIFS), the Fifth Circuit treated that relief as sounding in mandamus and not cognizable through § 1983.

The court acknowledged, but did not decide, limitations defenses (Reed governs accrual) because the due process claim failed on the merits. It also rejected a Rooker–Feldman bar because Milam challenged the state’s procedural regime rather than a single case-specific order.

2) Successive Habeas Authorization and the “New Forensics” Claims

Milam sought authorization to file a successive petition based on three strands of “new” evidence: (a) a 2023 consensus deeming bitemark analysis unreliable; (b) an August 2025 SWIFS reinterpretation of DNA evidence allegedly contradicting trial testimony about mixed profiles from bite marks; and (c) evolving criticisms of blood pattern analysis. Some of these claims were potentially time-barred, and none satisfied § 2244(b)(2)(B)’s two-prong test:

Diligence and timing: Claims must be brought within one year of when the factual predicate could have been discovered with diligence, subject to a narrow actual-innocence gateway (McQuiggin v. Perkins). The court indicated that some claims were “possibly or certainly” untimely and not saved by McQuiggin.
Clear-and-convincing actual innocence: Even assuming diligence, Milam had to show new facts that, if proven, would convince a reasonable factfinder that no reasonable juror would find guilt. The court deemed his submissions largely impeaching of the State’s forensics, not affirmatively exculpatory. It emphasized persistent inculpatory evidence: Milam’s confession to a nurse (“I’m going to confess. I did it.”); his exclusive presence at the scene with the child’s mother; delay in reporting; the victim’s blood on his clothing; and instructing his sister to hide evidence.
Intellectual disability: Milam argued he is “innocent of the death penalty” (ineligibility under Atkins-type claims) based on a 2021 report. The panel held that even if such a theory could fit within § 2244(b), his claim was untimely and cannot bootstrap an otherwise time-barred successive application, citing In re Webster and In re Sparks.

3) Stay of Execution

Applying Nken v. Holder, the court recognized the weight of irreparable harm in capital cases but found Milam had not made a strong showing on the merits in either his § 1983 challenge or successive-habeas motion. Without a substantial merits case, and given the other factors, a stay was denied.

Impact and Practical Implications

Postconviction evidence access in Texas: The decision reinforces that defendants must use Texas’s habeas channels to seek discovery of forensic materials, including electronic “byproduct” data from DNA testing. Requests made outside a pending habeas proceeding will generally rest in prosecutorial discretion and, standing alone, do not violate due process.
Limits of § 1983 as an access tool: Federal courts in the Fifth Circuit will view suits that seek to compel production of evidence from state officials as improper mandamus in disguise. Structural attacks on a state’s procedural scheme remain theoretically viable after Skinner and Gutierrez, but plaintiffs face Osborne’s “slim room” to demonstrate fundamental inadequacy.
Role of new forensic science: Evolving science that undercuts the reliability of trial forensics (bitemark and BPA) may help on the merits in state court, but, in federal successive habeas, it will rarely satisfy § 2244(b)(2)(B) unless it is both timely and, taken with the record, leaves no room for a reasonable juror to convict. Mere impeachment is insufficient; affirmative exculpation is key.
Intellectual-disability claims: Post-judgment Atkins-type claims premised on newly generated expert reports must be brought within the one-year clock. The Fifth Circuit will not permit “innocent of the death penalty” arguments to sidestep § 2244’s timing and innocence requirements.
Unresolved limitations issues: The panel declined to resolve precisely when Milam’s § 1983 claim accrued (Reed governs), signaling that future litigants should still carefully brief limitations and accrual, particularly where discovery efforts and state-court proceedings unfold over years.
Interface with public records laws: The opinion leaves intact the Texas OAG’s view that certain DNA-related records statutes apply to DPS-held materials, not necessarily to local-lab files; any constitutional claim must be routed through the state’s habeas-and-discovery apparatus rather than through § 1983 compulsion.

Complex Concepts Simplified

Procedural due process in postconviction: The Constitution does not guarantee access to DNA or other evidence after conviction. A state may create avenues for postconviction relief; due process requires only that those avenues are not fundamentally unfair or arbitrary. Courts ask whether the overall scheme is “fundamentally inadequate” to vindicate state-created rights.
Osborne’s high bar: A state’s process is unconstitutional only if it is so deficient that it cannot vindicate the rights it purports to offer. Judicially supervised discovery tied to habeas proceedings typically suffices.
Rooker–Feldman: Federal district courts cannot act as appellate courts over state judgments. But a general constitutional challenge to a state’s procedures (not a specific case outcome) usually avoids the doctrine.
§ 1983 vs. mandamus: Section 1983 allows suits for constitutional violations. It is not a tool to order state officials to perform particular tasks (like turning over evidence) unless the plaintiff shows a constitutional right to that relief. Requests that simply ask a federal court to command a state officer to act look like mandamus, which federal courts generally cannot grant against state officials.
Successive habeas under § 2244(b)(2)(B): To file a second federal habeas petition, a prisoner must show (1) new facts not previously discoverable with diligence, and (2) that these facts, if proven, would clearly convince that no reasonable juror could find guilt. It is a demanding innocence gateway. Changes in scientific consensus that only undermine the State’s evidence, without affirmative exculpation, usually fail.
McQuiggin actual-innocence gateway: Equitable relief from time bars is available only in the “rare” case where new evidence shows probable actual innocence. It does not revive claims based on debatable shifts in expert opinion that do not negate guilt when weighed with the record.
“Innocent of the death penalty” vs. “innocent of the crime”: An Atkins-type claim argues ineligibility for execution due to intellectual disability. Even if cognizable in some contexts, timing rules still apply; the claim cannot be used to sidestep § 2244’s strictures on successive petitions.

Conclusion

Milam v. Jimerson fortifies the constitutional sufficiency of Texas’s court-controlled postconviction discovery model. Applying Osborne, Skinner, and the Supreme Court’s fresh guidance in Gutierrez, the Fifth Circuit held that Texas’s procedures—discovery only under judicial supervision in active habeas, subsequent-application gatekeeping, and prosecutorial discretion outside that context—do not offend due process. The court also sent a clear message about federal habeas finality: evolving forensic critiques and lab reinterpretations, without more, seldom carry the heavy burden of proving that no reasonable juror could convict; and late intellectual-disability claims remain subject to strict timeliness.

Key takeaways: litigants must exhaust state mechanisms designed for obtaining forensic materials; § 1983 is not a shortcut to compel evidence; and successive federal habeas relief remains the rare exception reserved for truly exonerative new facts. In capital cases, where equities are grave, the merits still rule the stay calculus: absent a substantial showing, a stay will not issue.