FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                     September 15, 2017
                    _________________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
WALTER PAYTON,

       Plaintiff - Appellant,

v.                                                    No. 17-3107
                                           (D.C. No. 5:17-CV-03049-SAC-DJW)
STATE OF KANSAS; 18TH JUDICIAL                           (D. Kan.)
DISTRICT COURT; JAMES
FLEETWOOD, Chief Judge; MARK
BENNETT, Chief District Attorney,

       Defendants - Appellees.


                        ORDER AND JUDGMENT *


Before BRISCOE, O’BRIEN, and BACHARACH, Circuit Judges.


      This appeal involves constitutional claims growing out of the Kansas

courts’ application of a Kansas law (Kan. Stat. Ann. § 21-2512) to Mr.

Payton. Under this law, individuals convicted of rape can petition for new

DNA testing of biological material.


*
      We conclude that oral argument would not materially help us to
decide this appeal. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
      Mr. Payton filed a petition under this law; 1 but the Kansas Court of

Appeals affirmed, and the Kansas Supreme Court denied review. These

decisions led Mr. Payton to file a federal habeas petition, but the federal

courts declined to order habeas relief.

      So, Mr. Payton invoked 42 U.S.C. § 1983, suing a Kansas judge and

prosecutor for violating the U.S. Constitution by misapplying § 21-2512.

The federal district court dismissed the constitutional claims for failure to

state a valid cause of action. We agree with this ruling. 2

      Mr. Payton’s constitutional claims stem from a misunderstanding

about the Kansas law. This law would authorize DNA testing only if Mr.

Payton’s biological material “was not previously subjected to DNA

testing” or could be retested with new DNA techniques likely to be more

accurate and probative. Kan. Stat. Ann. § 21-2512(a)(3). If the new DNA

tests were to favor Mr. Payton in a way that is material to the conviction,

the Kansas district court would need to conduct a hearing. At that point,

§ 21-2512(f)(2) would allow the Kansas district court to grant relief such


1
      See State v. Payton, No. 99,293, 

, 

, at *1
(Kan. Ct. App. Jan. 9, 2009) (per curiam) (unpublished).
2
       In federal district court, a magistrate judge proposed to treat Mr.
Payton’s § 1983 action as another habeas action. In response, Mr. Payton
appeared to question that treatment, pointing out that he had sued under §
1983 rather than file another habeas petition. The district judge observed
that it would have lacked jurisdiction to grant habeas relief. In the appeal,
Mr. Payton has not questioned the district judge’s conclusion regarding a
potential habeas claim.
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as vacating the conviction, deeming the sentence discharged, ordering a

new sentencing proceeding, granting a new trial, or granting other relief

that serves the interests of justice. Kan. Stat. Ann. § 21-2512(f)(2).

      Mr. Payton appears to misunderstand the Kansas law, for

           it would not apply under his version of the facts and

           even if the law were applicable, favorable DNA results would
            not necessarily require relief from the rape conviction or
            sentence.

Mr. Payton states that before his trial, DNA tests showed that he had not

committed rape. But Mr. Payton says that the state judge and prosecutor

explained the results away with false testimony that the rapist had used a

condom.

      In this appeal, Mr. Payton clarifies that he does not want new DNA

tests. Appellant’s Br. at 2 (“Payton is not seeking DNA testing just wants

DNA testing already performed to apply KSA 21-2512.”). Why should he

want further testing? After all, he insists that the prior DNA tests have

already shown his innocence.

      But the Kansas law’s remedies apply only if a petitioner obtains new

DNA tests for biological material that was previously untested or that is

later subject to better forms of testing. See State v. Lackey, 

,

864 (Kan. 2012) (“K.S.A. 21-2512 contemplates the necessity for new or

different DNA testing, not the further analysis of previous test results.”).

Without new DNA tests, the law’s remedies would not be triggered. Thus,
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§ 21-2512 would not apply even if the Kansas district court had credited

Mr. Payton’s allegations.

      But even if § 21-2512 had been triggered, it would not have required

the Kansas courts to disturb the conviction or sentence. Mr. Payton

contends that on a favorable DNA test, the Kansas district court must order

one of the remedies listed in § 21-2512(f)(2). But Kansas’s Supreme Court

has squarely rejected this interpretation, holding that favorable DNA

results do not necessarily entitle a petitioner to any of the remedies in

§ 21-2512(f)(2). Haddock v. State, 

, 848-49 (Kan. 2012).

Thus, Mr. Payton’s theory rests on a misinterpretation of the Kansas law.

                                    * * *

      In our view, Mr. Payton’s constitutional claims are based on a

misunderstanding of the Kansas law. It would not apply here, where Mr.

Payton has expressly disavowed the need for further DNA testing. And

even if the law had been triggered, it would not necessarily have required

the Kansas courts to order one of the remedies listed in § 21-2512(f)(2).

Thus, we affirm the dismissal.

                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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