No Constitutional Right to Have State Conduct DNA Test

Armijo v. Tapia, 2008 WL 3059465, No. 08-2095 (10th Cir. Aug. 6, 2008) (unpublished):

Certificate of appealabitlity denied for state habeas petitioner. He failed to make a substantial showing of the denial of a constitutional right as required by 28 USC 2253(c)(2). Defendant convicted of various charges relating to the kidnapping and assault of his girlfriend. Brady did not require the state to perform DNA testing that would arguably support defendant's argument that blood on the knife was his, not his girlfriend's; the state was not required to perform any particular forensic tests. The Court rejected his claim that the Sixth Amendment required the state to conduct the DNA tests because he did not raise the argument before the district court and cited no authority. The Court also rejected the argument that the state committed prosecutorial misconduct by not failing to do the DNA analysis because the trial court did not actually order the state to perform the test; rather, the trial court had suggested that the prosecution help petitioner collect a DNA sample to be used in testing.