In Skinner v. Switzer, the Court held that there is federal-court subject-matter jurisdiction over petitioner’s complaint requesting post-conviction DNA testing under §1983. Justice Ginsburg wrote for 5 other Justices, and Justice Thomas dissented, joined by Justices Kennedy and Alito.  This holding seems to be in some tension with Heck v. Humphrey, which held that a prisoner could not use 1983 to challenge his underlying conviction.

Justice Ginsburg relied heavily on Wilkinson v. Dotson, which permitted prisoners to rely on 1983 to challenge the “constitutionality ofadministrative decisions denying them parole eligibility.” She read Dotson as holding that this suit was permitted because the prisoner sought no “injunction ordering . . . immediate or speedier release into the community,” id., at 82, and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their] conviction[s] or sentence[s],’”

Measured against our prior holdings, Skinner has properly invoked §1983. Success in his suit for DNA testing would not “necessarily imply” the invalidity of his conviction. While test results might prove exculpatory, that outcome is hardly inevitable; as earlier observed, see supra, at 2, results might prove inconclusive or they might further incriminate Skinner. See Nelson v. Campbell, 541U. S. 637, 647 (2004) (“[W]e were careful in Heck to stress the importance of the term ‘necessarily.’”).12

Justice Thomas begged to differ. Parole is different from post-conviction DNA testing.

Dotson does not control this case. Unlike state collateral review, parole does not evaluate the validity of the under-lying state conviction or sentence. Collateral review per-mits prisoners to “attack their final convictions.” Osborne, supra, at ___ (ALITO, J., concurring) (slip op., at 2). In contrast, parole may provide release, but whether or not aprisoner is paroled in no way relates to the validity of theunderlying conviction or sentence. Whatever the correct-ness of Dotson, parole procedures do not review the valid-ity of a conviction or sentence. For that reason, permittingreview of parole procedures does not similarly risk trans-forming §1983 into a vehicle for “challenging the validity of outstanding criminal judgments.” Heck, 512 U. S., at486.

Dotson does not control this case. Unlike state collateral review, parole does not evaluate the validity of the under-lying state conviction or sentence. Collateral review per-mits prisoners to “attack their final convictions.” Osborne, supra, at ___ (ALITO, J., concurring) (slip op., at 2). In contrast, parole may provide release, but whether or not aprisoner is paroled in no way relates to the validity of theunderlying conviction or sentence. Whatever the correct-ness of Dotson, parole procedures do not review the valid-ity of a conviction or sentence. For that reason, permittingreview of parole procedures does not similarly risk trans-forming §1983 into a vehicle for “challenging the validity of outstanding criminal judgments.” Heck, 512 U. S., at486. lenge in that case was not cognizable under §1983.5 See 512 U. S., at 486. Dotson does not suggest that the Heck approach, which I would continue to follow here, wasincorrect.

I think Thomas has the better argument here. Skinner’s sole purpose here is to challenge his conviction, and obtain a speedier release from prison. He is not seeking the DNA for fun. He wants a second bite at the apple. This would seem to fall neatly into Heck.

In truth, the majority provides a roadmap for any unsuccessful state habeas petitioner to relitigate his claim under §1983: After state habeas is denied, file a §1983 suit challenging thestate habeas process rather than the result. What pris-oner would not avail himself of this additional bite at the apple?3

3Nor is there any reason to believe that the Court’s holding will becabined to collateral review procedures. The Court does not discuss whether a State’s direct review process may be subject to challenge under §1983, but it suggests no principled distinction between directand collateral review. This risks transforming §1983 into a vehicle fordirect criminal appeals. Cf. Heck v. Humphrey, 512 U. S. 477, 486 (1994). Just as any unsuccessful state habeas petitioner will now resortto §1983 and challenge state collateral review procedures, so, too, willunsuccessful appellants turn to §1983 to challenge the state appellate procedures.

Here is how Justice Ginsburg explains this issue:

Although Skinner’s immediate plea is simply for an order requiring DNA testing, his ultimate aim, Switzer urges, is to use the test results as a platform for attackinghis conviction. It suffices to point out that Switzer hasfound no case, nor has the dissent, in which the Court has recognized habeas as the sole remedy, or even an availableone, where the relief sought would “neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.” Dotson, 544 U. S., at 86 (SCALIA, J., concurring).

Well until today there were no cases finding that subject matter jurisdiction existed to seek DNA testing under 1983, so this is somewhat of a weak argument, especially from the Supreme Court.

The Court finds predictions of a proliferation of 1983 actions seeking DNA testing lacking.

Respondent Switzer and her amici forecast that a “vast expansion of federal jurisdiction . . . would ensue” were weto hold that Skinner’s complaint can be initiated under §1983. See Brief for National District Attorneys Association as Amicus Curiae 8. In particular, they predict aproliferation of federal civil actions “seeking postconviction discovery of evidence [and] other relief inescapably associated with the central questions of guilt or punishment.” Id., at 6. These fears, shared by the dissent, post, at 6, are unwarranted.13

In the Circuits that currently allow §1983 claims forDNA testing, see supra, at 1, no evidence tendered by Switzer shows any litigation flood or even rainfall. The projected toll on federal courts is all the more implausible regarding DNA testing claims, for Osborne has rejected substantive due process as a basis for such claims. See supra, at 2.

I wonder if this case represents the start of a trend towards broader application of 1983 as a means to challenge terms of confinement. Interesting split here, with the Chief and Scalia joining the majority.