Page:Reed v. Goertz.pdf/20

12 former, Reed’s suit is original; if it is the latter, it requires an exercise of appellate jurisdiction.

So, which is it? As already indicated, the correct answer is the latter: Fundamentally, Reed’s complaint—like his certiorari petition before it—contests how “the Texas courts” “interpreted, construed[,] and applied” Chapter 64 “to deny his motion for DNA testing,” App. 14, ¶3, which is why the only relief he requests is an abstract “declaration that the CCA’s interpretation and application of [Chapter] 64 … is unconstitutional.” Id., at 49. The idea that his claim “does not challenge the adverse state-court decisions,” ante, at 4 (internal quotation marks omitted), cannot survive even a cursory examination of his complaint. See.

Nor would the other possibility make any sense. Reed cannot be seeking relief from the district attorney’s enforcement of Chapter 64, because the district attorney has not enforced that law against Reed at all. The sum total of the district attorney’s relevant conduct is as follows. First, he declined to order Reed’s desired testing in his executive discretion, independent of Chapter 64. Next, when Reed asked the Texas courts to grant testing under Chapter 64, the district attorney opposed his motion. Finally, after Reed’s motion proved unsuccessful, the district attorney continued to decline to order Reed’s desired testing. To say that this conduct amounts to enforcing Chapter 64 makes as much sense as saying that a party to a discovery dispute, who defeats a motion to compel, in effect, “enforces” the Federal Rules of Civil Procedure by continuing not to turn over the demanded documents. Again, any due process injury that Chapter 64 has caused Reed is traceable to the CCA’s judicial application of that law in his case, not to any executive