United States District Court, W.D. Virginia, Roanoke Division
K. MOON ' SENIOR UNITED STATES DISTRICT JUDGE
proceeding pro se, filed a civil rights complaint,
pursuant to 42 U.S.C. § 1983. Plaintiff asserts three
claims regarding the alleged unlawful withholding of
post-conviction DNA testing. Because Plaintiff's
complaint does not, and cannot be amended to, state a
cognizable § 1983 claim, I conclude that this action
should be dismissed with prejudice, pursuant to 28 U.S.C.
2001, the Shenandoah County Circuit Court entered a judgment
convicting Fontanes of several felonies and sentenced him to
an active term of fifty-three years' imprisonment. His
direct and collateral appeals were unsuccessful. On November
8, 2013 Fontanes filed a motion pursuant to Va. Code §
19.2-327.1 in the circuit court, requesting DNA testing of
hair found on a white glove at the crime scene. He argued
that the DNA test would exonerate him because the hair on the
glove was brown, but his hair was black. On October 31, 2014,
the circuit court denied Fontanes' motion after the
Commonwealth filed its response. On federal habeas review,
Senior District Judge Jackson L. Kiser dismissed
Fontanes' habeas claims, concluding that Fontanes'
rights were not violated when the circuit court (1) allowed
the Commonwealth to file a late response to his request for
DNA testing; and (2) denied his request for a DNA test of the
hair sample. Fontanes v. Zook, No. 7:15CV00404 (W.D.
Va. Apr. 7, 2016).
filed his current § 1983 complaint on or about April 21,
2017. In his complaint, he asserts that Judge Hupp violated
his rights by (1) allowing Commonwealth's Attorney Wisely
to file a belated response to Fontanes' § 19.2-327.1
motion; and (2) for denying the motion. Further, Fontanes
states that Commonwealth Attorney Wisely's belated
response violated his rights. He avers the violations have
unlawfully precluded him from filing a writ of actual
innocence in the Supreme Court of Virginia. He seeks a
declaration that the actions of Judge Hupp and Commonwealth
Attorney Wisely violated his rights and an injunction
ordering the defendants to proceed with DNA testing.
threshold, Fontanes' complaint does not specifically
allege any conduct by either Judge Hupp or Commonwealth
Attorney Wisely that violated his constitutional rights.
Instead, he merely states Commonwealth Attorney Wisely's
late response to his motion and Judge Hupp's denial of
his request for DNA testing violated his rights. Furthermore,
after a short recitation of facts and Fontanes'
conclusory allegation, the “Legal Claims” section
of his complaint proceeds to quote,  without analysis or
application, the following cases: United States v.
Inadi, 475 U.S. 387 (1986) (¶¶ 1-4 of his
complaint); Mooney v. Holohan, 294 U.S. 103 (1935)
(¶¶ 5-7); Pennsylvania v. Ritchie, 480
U.S. 39 (1987) (¶¶ 8-12); Brady v.
Maryland, 373 U.S. 83 (1963) (¶¶ 13-15); and
Dist. Atty's Office for Third Jud. Dist. v.
Osborne, 557 U.S. 52 (2009) (¶¶ 16-24).
Fontanes has not presented a cognizable claim, because
“a state-court decision is not reviewable by lower
federal courts” as a civil rights claim under §
1983. Skinner v. Switzer, 562 U.S. 521, 532-33
(2011). In Switzer, the Supreme Court explained
that, although state prisoners may pursue § 1983 actions
to challenge postconviction statutes in federal court, the
Rooker-Feldman doctrine bars state prisoners from
using § 1983 to challenge underlying state court
decisions. Id. at 530-34 (“Skinner does not
challenge the adverse [Court of Criminal Appeals] decisions
themselves; instead, he targets as unconstitutional the Texas
statute they authoritatively construed.). Here, Fontanes
challenges Commonwealth Attorney Wisely's belated
response and the underlying state court
decisions that granted leave to file a belated
response and denied Fontanes' motion. Therefore, I lack
subject-matter jurisdiction to review his claim.
extent that Fontanes' claim could be construed as a
violation of due process, Fontanes claim must similarly fail.
As Judge Kiser stated in Fontanes' latest habeas opinion,
“[T]here is no substantive due process right to
post-conviction DNA testing.” Fontanes v.
Zook, No. 7:15CV00404, slip op. at 6 (citing
Osborne, 557 U.S. at 72). Further, Fontanes has not
demonstrated that the Shenandoah County Circuit Court's
adjudication of his § 19.2-327.1 motion
“offend[ed] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental” or “transgresse[d] any recognized
principle of fundamental fairness in operation.”
Osborne, 557 U.S. at 69. Fontanes has not alleged
any facts supporting such a claim.
the action is DISMISSED WITH PREJUDICE and
is STRICKEN from the active docket of the
Clerk is directed to send a copy of this Order to plaintiff.
 A complaint filed by an inmate
challenging the conduct of an “officer or employee of a
government entity” may be dismissed under §
1915A(b)(1) if the complaint is “frivolous, malicious,
or fails to state a ...