United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Courtney Cobbs, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. § 1983 alleging that
defendants violated his civil rights. The Prison Litigation
Reform Act (PLRA) applies to this case because Cobbs was
incarcerated when he filed his complaint. The PLRA requires
courts to screen complaints brought by prisoner plaintiffs to
confirm they state a claim upon which relief may be granted
and are not frivolous or malicious. 28 U.S.C. § 1915A.
April 5, 2018, the court screened Cobbs's complaint and
allowed him to proceed with a due process claim. (ECF No. 9.)
About a week later, after some of the parties refused to have
a magistrate judge enter final judgment, the case was
reassigned to Chief Judge William Griesbach. That same day,
defendants Richard Chiapete and Patricia Hanson filed a
motion to dismiss. (ECF No. 14.) Judge Griesbach denied the
motion without prejudice based on their failure to comply
with the local rules. (ECF No. 17.) On May 4, 2018, Judge
Griesbach referred the case to this court for all pretrial
proceedings and designated this court “to consider and
submit . . . proposed findings of fact and recommendations
for the disposition of any motion . . . to dismiss . . .
.” (ECF No. 18.) On May 15, 2018, defendants Richard
Chiapete and Patricia Hanson filed an amended motion to
dismiss. (ECF No. 26.) That motion is now fully briefed.
a jury found Cobbs guilty of crimes related to a bank
robbery. Cobbs maintains that he is innocent of the crimes.
In November 2014 Cobbs learned that the Racine Police
Department had two blood collection kits that contained swabs
from a barbed wire fence and two brown envelopes that
contained jean fibers. The evidence had not been subjected to
DNA testing. Cobbs filed a motion in the Racine County
Circuit Court asking that the evidence be preserved and that
he be allowed to pay for DNA testing of the evidence under
Wis.Stat. § 974.07.
February 2, 2015, Racine County Circuit Court Judge Gerald
Ptacek held a hearing to decide Cobbs's motion. (ECF No.
1-1 at 60.) At the hearing Judge Ptacek agreed to order that
the items be preserved, but he refused to order that the
items be DNA tested. He explained, “[I]n my opinion the
evidence isn't really relevant and isn't weighty
enough for us to order independent testing on your
behalf.” (ECF No. 1-1 at 66.) He further stated,
I'm not going to order that they be tested to determine
if they have DNA on them and whose DNA it might be because I
don't think that even in the-taking the view that would
be most favorable to you, it doesn't give evidence that
would be relevant as to whether you were one of the people
who committed the offense or not . . . . If it's yours,
obviously it supports a conviction. If it's not your DNA
evidence, it doesn't help you because there are three
other people involved-two other people involved here.
(Id. at 66-67.)
appealed the Circuit Court's decision to the Wisconsin
Court of Appeals, which placed the appeal in abeyance pending
the Wisconsin Supreme Court's decision in State of
Wisconsin v. Denny, 373 Wis.2d 390 (2017). (ECF No. 1-1
at 70.) Denny was set to reexamine the court's
decision in State v. Moran, 284 Wis.2d 24 (2005),
which held that, under Wis.Stat. § 974.07(6), a
defendant had “the right to test the sought-after
evidence containing biological material” at his own
expense, assuming other statutory prerequisites were met.
Moran, 284 Wis.2d at 51. Moran “drew
a distinction between testing at private expense . . . and
testing at public expense” and concluded that only when
a movant seeks testing at public expense must he satisfy the
heightened requirements set forth in § 974.07(7).
Denny, 373 Wis.2d at 419-20.
February 20, 2017, the Wisconsin Supreme Court in
Denny overruled Moran, holding that §
974.07's requirement that a district attorney turn over
physical evidence and biological samples does not give a
criminal defendant the right to conduct DNA testing of that
evidence at his own expense unless he is able to meet the
heightened requirements in § 974.07(7). Denny,
373 Wis.2d at 418-21.
Denny, the Wisconsin Court of Appeals affirmed the
circuit court's decision to deny Cobbs's request for
DNA testing of the evidence. (ECF No. 1-1 at 71; ECF No. 15-2
at 1.) The Court of Appeals explained,
In Denny the Wisconsin Supreme Court reexamined
Wis.Stat. § 974.07 and concluded that the statute did
not independently authorize DNA testing of evidence at
private expense. Rather, a movement must meet a number of
conditions set forth in the statute before a court may
conclude he or she is entitled to testing. Because Cobbs'
motion did not meet those conditions here, we are satisfied
that the circuit court properly denied it.
(ECF No. 15-2 at 2 (citations omitted).)
asserts that, as interpreted by Denny,
Wisconsin's post-conviction DNA access statute (Wis. Stat
§ 974.07) is unconstitutional because it forecloses his
opportunity to obtain testing of evidence at his own expense.
Cobbs also asserts that the appellate court's decision to
apply the Wisconsin Supreme Court's new interpretation of
the statute to his request for DNA testing violated his due
process rights because he made his request for DNA testing
more than two years before Denny and because the