No Standalone Due‑Process Right to Obtain DNA Electronic Files Outside Court‑Supervised Habeas Discovery: The Fifth Circuit’s Decision in In re Blaine Milam

Introduction

In a consolidated capital case, the United States Court of Appeals for the Fifth Circuit addressed three urgent matters brought by Texas death-row inmate Blaine Keith Milam: (1) an appeal from the dismissal of his 42 U.S.C. § 1983 suit challenging Texas’s postconviction procedures as constitutionally inadequate, (2) an application for authorization to file a successive federal habeas petition under 28 U.S.C. § 2244(b), and (3) a motion to stay execution. The panel (Chief Judge Elrod, and Judges Graves and Higginson) authored by Judge James E. Graves, Jr., affirmed the district court’s dismissal, denied authorization and a stay, and granted leave to file an overlength motion.

The case sits at the intersection of two thorny areas: procedural due process challenges to state postconviction regimes after the Supreme Court’s decisions in District Attorney’s Office v. Osborne and Skinner v. Switzer, and the stringent gatekeeping for successive federal habeas petitions under the Antiterrorism and Effective Death Penalty Act (AEDPA). It also touches the increasingly litigated domain of access to “electronic” DNA data (e.g., instrument output and software files), as distinct from conventional lab reports and bench notes.

Milam argued that, although Texas turned over thousands of pages of DNA records, the State’s refusal to produce the underlying electronic DNA files created during testing—coupled with the lack of a guaranteed avenue to obtain them—rendered Texas’s postconviction procedures fundamentally unfair under the Due Process Clause. He further sought to re-open his federal postconviction proceedings based on assertedly new scientific consensus about bitemark analysis and bloodstain pattern analysis, and a 2025 reinterpretation of DNA evidence by the Southwestern Institute of Forensic Sciences (SWIFS).

Summary of the Opinion

Section 1983 challenge: Affirmed dismissal. Texas’s postconviction procedures—including court‑supervised discovery available during state habeas proceedings and the requirement of a prima facie showing to obtain discovery—are not “fundamentally inadequate” under Osborne. There is no freestanding federal due‑process right to obtain DNA electronic files outside that framework.
Mandamus framing: A request for an injunction compelling a state official to release evidence “sounds in mandamus,” which is improper in this § 1983 posture (Ramirez v. McCraw).
Rooker–Feldman: Not applicable. The suit challenged the constitutionality of Texas’s postconviction scheme, not a particular state-court judgment denying discovery (Reed v. Goertz).
Successive habeas: Denied. Even assuming timeliness and diligence arguendo, Milam’s new evidence did not meet AEDPA’s stringent “no reasonable factfinder” standard (28 U.S.C. § 2244(b)(2)(B)).
Intellectual-disability claim: Denied. The “innocent of the death penalty” theory cannot bypass § 2244(b)’s requirements (In re Webster), and the claim was also untimely (In re Sparks).
Stay of execution: Denied. Although irreparable harm weighs heavily in favor of a stay, Milam failed to make a substantial showing on the merits (Nken v. Holder; Pruett v. Choate).
Other relief: Leave to file a motion exceeding the word limit was granted.

Detailed Analysis

I. The Due‑Process Challenge to Texas’s Postconviction Procedures

A. The claim and its posture

Milam filed a § 1983 action seeking declaratory and injunctive relief against the Rusk County District Attorney, arguing that Texas’s postconviction regime is unconstitutional because it vests unreviewable discretion in prosecutors to withhold DNA-related materials—specifically, electronic data generated during DNA testing—without any guaranteed judicial or administrative process to obtain them. He emphasized that he was not seeking additional DNA testing under Texas Code of Criminal Procedure Article (Chapter) 64, but rather access to the underlying electronic files needed to assess alleged flaws in the testing and conclusions.

After the suit was filed, the District Attorney produced more than 4,000 pages of DNA records, but not the electronic output files Milam sought. The district court dismissed the complaint. On appeal, the Fifth Circuit held that even assuming the district court misunderstood aspects of Milam’s theory, the complaint still failed to state a due‑process violation because Texas’s procedures are constitutionally adequate.

B. The governing standards

No freestanding right to postconviction DNA evidence exists under the Constitution (Osborne, 557 U.S. at 72).
Nevertheless, if a state creates a postconviction right (e.g., to DNA testing or related relief), due process may require additional procedures “essential to the realization of the parent right” (Gutierrez v. Saenz, 145 S. Ct. 2258, 2265 (2025)).
But the bar for invalidating a state’s postconviction scheme is high: procedures offend the Due Process Clause “only if they are fundamentally inadequate to vindicate the substantive rights provided” (Osborne, 557 U.S. at 69; Skinner, 562 U.S. at 525).
Federal courts defer substantially to state legislatures and courts in structuring postconviction processes (McKithen v. Brown, 626 F.3d 143, 153 (2d Cir. 2010)).

C. Why Texas’s procedures passed constitutional muster

The Fifth Circuit concluded that Texas provides an adequate pathway to seek the materials Milam wants:

Jurisdiction and timing: A Texas trial court’s general jurisdiction ends when a conviction becomes final but is reacquired during state habeas proceedings; within that window, the court may authorize discovery (In re TDCJ, 710 S.W.3d 731, 735–38 (Tex. Crim. App. 2025)).
Subsequent habeas: After initial state habeas is concluded, a prisoner may file a subsequent habeas application if the factual or legal basis was previously unavailable or fits recognized exceptions (Tex. Code Crim. Proc. art. 11.071, § 5(a)(1); Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007)).
Discovery standard: The applicant need only make a prima facie showing. If a good‑faith basis exists to believe discovery will yield evidence of a constitutional violation, the applicant can identify the specific discovery sought, what it is expected to show, why, and why it cannot be obtained otherwise, while also explaining unavailability earlier or any innocence/punishment gateway (In re TDCJ, 710 S.W.3d at 738–39).

Federal courts have repeatedly upheld systems that confine postconviction discovery to court authorization based on threshold showings (e.g., Osborne on Alaska’s scheme; Tevlin v. Spencer, 621 F.3d 59 (1st Cir. 2010) on Massachusetts; Widmer v. Okereke, 2025 WL 1432584 (6th Cir. 2025) on Ohio; see also Cromartie v. Shealy, 941 F.3d 1244, 1252 (11th Cir. 2019) observing that courts of appeals applying Osborne have upheld state DNA procedures).

The court stressed two additional points:

Nonuse of available process: It is “difficult to criticize the State’s procedures when [the prisoner] has not invoked them” (Osborne, 557 U.S. at 71). The panel noted Milam did not properly pursue an actual‑innocence claim tied to the electronic DNA files through a subsequent habeas vehicle before filing the § 1983 suit.
No authority for broader pre‑application discovery: Milam cited no binding authority holding it unconstitutional to limit discovery to court‑supervised habeas proceedings or to leave prosecutors with discretion absent a court order. The Texas Court of Criminal Appeals has warned against “fishing expeditions” that would defeat the Legislature’s intent to limit repetitive postconviction litigation (In re TDCJ, 710 S.W.3d at 738).

The panel also rejected Milam’s broader attack based on the nonretroactivity of Texas’s 2014 discovery statute (often associated with the Michael Morton Act). Even if that statute does not apply to pre‑2014 conduct, Texas’s overall postconviction scheme provides multiple avenues to seek discovery, and the nonretroactivity point did not establish fundamental inadequacy.

D. Ancillary defenses and framing

Limitations: Though Reed v. Goertz (598 U.S. 230 (2023)) sets accrual for certain § 1983 DNA‑access claims at the end of state DNA litigation, the panel found it unnecessary to resolve timeliness because the due‑process claim failed on the merits.
Rooker–Feldman: Because the suit challenged the constitutionality of the regime, not a state court’s discrete discovery ruling, the bar did not apply (Reed, 598 U.S. at 234–35).
Mandamus: A request to compel a state official to release evidence via § 1983 “sounds in mandamus” and is improper (Ramirez v. McCraw, 715 F. App’x 347, 350 (5th Cir. 2017)). Even if not mandamus, the claim fails on the merits.

II. The Successive Federal Habeas Application

A. The AEDPA standard

To file a successive § 2254 application, a prisoner must make a prima facie showing that:

The factual predicate could not previously have been discovered through due diligence; and
The new facts, if proven, would establish by clear and convincing evidence that no reasonable factfinder would have found the applicant guilty (28 U.S.C. § 2244(b)(2)(B); In re Campbell, 750 F.3d 523, 529–30 (5th Cir. 2014)).

The application must also be filed within one year of when the factual predicate could have been discovered through due diligence (28 U.S.C. § 2244(d)(1)(D)), subject to the “miscarriage of justice” gateway (McQuiggin v. Perkins, 569 U.S. 383 (2013)).

B. Application to Milam’s submissions

Milam offered three strands of new evidence: (1) a 2023 scientific consensus undermining bitemark analysis; (2) an August 2025 SWIFS reinterpretation of DNA evidence allegedly contradicting trial conclusions that his DNA was on bite marks; and (3) evolving science criticizing bloodstain pattern analysis. The panel found some claims time‑barred and not saved by McQuiggin; but more importantly, even if considered on the merits, the submissions did not carry the “no reasonable factfinder” burden.

The court emphasized the trial evidence that would allow a reasonable jury to convict regardless of the contested forensics: Milam’s confession to a jail nurse; that only he and the child’s mother were present; delay in reporting the death; the child’s blood on Milam’s clothing; and instructions to his sister to conceal evidence. In similar circumstances, courts deny successive applications where new attacks on the State’s forensics do not supply affirmative exculpatory proof that undermines guilt beyond reasonable dispute (Prince v. Thaler, 354 F. App’x 846, 848 (5th Cir. 2009)).

C. Intellectual-disability claim

Milam also raised an Atkins-type claim, relying on a 2021 report by the State’s trial expert. The panel noted that this court has rejected attempts to treat “innocence of the death penalty” as satisfying § 2244(b)(2)(B)’s gateway (In re Webster, 605 F.3d 256, 257 (5th Cir. 2010)). Even if such a theory were viable, the claim was untimely, and a showing of intellectual disability cannot “bootstrap” an otherwise late application (In re Sparks, 939 F.3d 630, 633 (5th Cir. 2019)).

III. The Stay of Execution

Applying Nken v. Holder’s four-factor test, the court acknowledged that the irreparable harm factor weighs heavily in favor of a stay in capital cases. But a stay still requires a substantial case on the merits and equities that favor relief. Because Milam’s § 1983 appeal failed and he did not meet AEDPA’s gatekeeping standard, he could not satisfy Nken’s threshold showing. The court therefore denied the stay.

Precedents and Authorities Driving the Decision

District Attorney’s Office v. Osborne, 557 U.S. 52 (2009): No constitutional right to postconviction DNA testing; state procedures violate due process only if fundamentally inadequate to vindicate the state-created rights.
Skinner v. Switzer, 562 U.S. 521 (2011): Prisoners may pursue § 1983 challenges to the constitutionality of DNA‑access procedures; nevertheless, Skinner acknowledged the narrow path created by Osborne.
Reed v. Goertz, 598 U.S. 230 (2023): Clarifies accrual of limitations for certain § 1983 DNA‑access claims and distinguishes system-wide constitutional challenges from state-court-specific rulings for Rooker–Feldman purposes.
Gutierrez v. Saenz, 145 S. Ct. 2258 (2025): Recognizes that state-created postconviction rights can beget ancillary procedural protections necessary to realize those rights; but does not require open-ended access beyond a state’s reasonable framework.
In re TDCJ, 710 S.W.3d 731 (Tex. Crim. App. 2025): Texas law on loss and reacquisition of trial court jurisdiction post‑finality, and the standard for discovery in subsequent state habeas; warns against anticipatory “fishing expeditions.”
Tevlin v. Spencer, 621 F.3d 59 (1st Cir. 2010); Widmer v. Okereke, 2025 WL 1432584 (6th Cir. 2025); Cromartie v. Shealy, 941 F.3d 1244 (11th Cir. 2019): Uphold court-supervised discovery regimes tied to prima facie showings in postconviction settings.
Ramirez v. McCraw, 715 F. App’x 347 (5th Cir. 2017): Treats § 1983 suits seeking orders compelling state officials to release evidence as improper mandamus-like requests.
Prince v. Thaler, 354 F. App’x 846 (5th Cir. 2009): Challenges to the State’s forensic methods, without affirmative exonerating proof, generally fail to satisfy “no reasonable factfinder” standards.
In re Webster, 605 F.3d 256 (5th Cir. 2010); In re Sparks, 939 F.3d 630 (5th Cir. 2019): Intellectual‑disability claims cannot bypass AEDPA’s successive‑petition constraints or timeliness rules.
Nken v. Holder, 556 U.S. 418 (2009): Framework for stays pending appeal.

Legal Reasoning: How the Court Reached Its Conclusions

The court proceeded in measured steps. First, it accepted that due process can, in limited circumstances, protect procedures ancillary to state-created postconviction rights (Gutierrez). Second, it applied Osborne’s “fundamental inadequacy” test, which sets a stringent threshold: a scheme violates due process only if it fails in a systemic way to meaningfully vindicate the state-provided right. Against that backdrop, the court surveyed Texas’s system:

Texas affords discovery within the jurisdictional window of state habeas, including subsequent applications, upon a prima facie showing tailored to the claim and the requested discovery (In re TDCJ; Article 11.071 § 5; Ex parte Campbell).
Federal appellate precedent treats such court‑supervised discovery models as constitutionally sufficient post-Osborne.
Milam did not make use of the mechanism the State provides; and federal courts hesitate to invalidate procedures a prisoner bypassed.

The court also addressed the plaintiff’s attempted reframing: that the case targeted prosecutorial discretion to withhold evidence. The panel responded that, in Texas, prosecutorial discretion is constrained by the availability of court-ordered discovery during live habeas proceedings; the absence of a guarantee of pre‑application discovery is not constitutionally infirm. Finally, the court explained that compelling a prosecutor to release evidence in a standalone civil action is functionally a mandamus request, which § 1983 does not authorize.

On the habeas gatekeeping front, the court applied AEDPA’s demanding standard. Even if forensic disciplines have evolved and a lab has reinterpreted data, the question under § 2244(b)(2)(B) is not whether trial proof is imperfect, but whether, in light of the new facts, no reasonable jury could convict. The remaining nonforensic evidence (confession, opportunity, post‑crime conduct, physical evidence) foreclosed that conclusion here. Claims predicated on intellectual disability cannot sidestep AEDPA or calibration to timeliness.

For the stay, Nken’s test requires a substantial merits showing. Given the failures under § 1983 and AEDPA, the equities could not overcome the absence of a strong merits case, even in the shadow of capital punishment’s irreparable harm.

Impact and Implications

A. For Texas postconviction practice

Channeling discovery into the state habeas framework: Prisoners seeking raw or electronic DNA data must route requests through a live state habeas proceeding, meeting the prima facie standard and explaining unavailability and relevance. Standalone § 1983 suits to compel disclosure are unlikely to succeed.
Prosecutorial discretion tempered by court oversight: The opinion reaffirms that prosecutors may decline to disclose absent a court order, and that is not, by itself, unconstitutional where robust court‑supervised discovery is available during habeas.
Michael Morton Act nonretroactivity not a due‑process defect: The absence of retroactive statutory discovery does not, on its own, render Texas’s broader postconviction regime fundamentally unfair.

B. For forensic‑evidence challenges

Generalized scientific critiques are insufficient: Even sweeping new consensus undermining a forensic field (e.g., bitemark analysis) may not warrant AEDPA relief without case‑specific affirmative evidence that makes guilt impossible for any reasonable factfinder.
Electronic DNA data requests must be tied to a specific claim: Courts will expect a tailored proffer—what files are needed, why they matter to a specific constitutional claim, what they are expected to show, and why they were previously unavailable.

C. For AEDPA successive petitions

“No reasonable factfinder” retains sharp teeth: The decision illustrates the practical difficulty of clearing § 2244(b)(2)(B)’s bar when significant nonforensic inculpatory evidence remains.
Timeliness and diligence remain critical: Even meritorious forensic critiques can be lost if not raised within § 2244(d)(1)(D)’s one‑year window, absent truly exceptional innocence showings (McQuiggin).
Intellectual-disability claims: Fifth Circuit precedent continues to foreclose using “innocent of the death penalty” to end-run § 2244(b), and untimeliness is dispositive even where prima facie intellectual disability is shown.

Complex Concepts, Simplified

Section 1983 vs. habeas corpus: Section 1983 challenges unconstitutional procedures; habeas challenges the lawfulness of custody or sentence. Postconviction discovery requests tied to attacking a conviction or sentence typically belong in habeas, not a freestanding § 1983 suit.
Electronic DNA data: Beyond lab reports, DNA testing generates raw signal files and software outputs (e.g., electropherograms). Access to those files can be crucial to reanalyze mixtures or contamination. This decision holds there is no federal due‑process right to obtain them outside state‑created, court‑supervised procedures.
“Fundamentally inadequate” standard (Osborne): A state’s postconviction procedure violates due process only if its structure is so deficient that it fails to meaningfully vindicate the rights the state itself has created (e.g., access to testing or to meaningful review).
“Sounds in mandamus”: A suit that effectively seeks to order a state official to perform a ministerial duty (e.g., hand over evidence) is akin to mandamus. Federal courts do not issue mandamus to state officials via § 1983.
“No reasonable factfinder” (AEDPA): To clear § 2244(b)(2)(B), new facts must be so compelling that every reasonable juror would have to acquit, even after considering all the evidence (old and new). Showing that trial forensics were imperfect or disputed is usually not enough.
Stay of execution (Nken): Courts weigh likelihood of success, irreparable harm, harm to others, and public interest. Even in capital cases, a stay requires a substantial merits showing.

Conclusion

In re Blaine Milam reinforces a tight, Osborne‑aligned boundary around procedural due process in the postconviction DNA context. The Fifth Circuit holds that Texas’s regime—reserving discovery, including access to sophisticated DNA files, for court‑supervised state habeas proceedings upon a prima facie showing—adequately protects constitutional interests. Attempts to compel production through § 1983 will be treated as improper mandamus‑like efforts or, in any event, will fail absent a showing that the state framework is fundamentally unfair.

On the habeas front, the decision exemplifies AEDPA’s rigor: new critiques of forensic disciplines and even reinterpreted laboratory conclusions do not suffice unless they eliminate the possibility of a reasonable juror’s finding of guilt in light of all the evidence. Intellectual‑disability claims must comply with successive‑petition and timeliness rules and cannot be used to circumvent AEDPA’s gatekeeping.

As a practical roadmap, capital and other postconviction litigants in Texas seeking underlying forensic data should embed tightly tailored discovery requests in a subsequent Article 11.071 application, articulating a concrete prima facie basis as In re TDCJ prescribes. This decision signals that federal courts will not open an alternate § 1983 avenue to obtain electronic DNA data and will maintain a stringent merits screen for successive habeas claims and related stays.