AUSTIN (KXAN) — Rodney Reed’s defense team has asked the U.S. Supreme Court to review the dismissal of a 2019 civil rights lawsuit seeking post-conviction DNA testing of crime scene evidence in his death-row case. State prosecutors submitted their response to the high court Wednesday and said Reed’s petition should be denied.

Reed has long sought DNA testing on evidence including a belt believed to be the murder weapon that was never tested. The current U.S. Supreme Court petition is another attempt to ultimately get further DNA testing approved.

The petition arose from a lawsuit filed by Reed in U.S. District Court in August 2019. That lawsuit alleged the Texas Court of Criminal Appeals misinterpreted Texas law that allows for post-conviction DNA testing and violated Reed’s civil rights.

U.S. District Judge Lee Yeakel of Austin dismissed the 2019 lawsuit. The U.S. 5th Circuit Court of Appeals upheld Yeakel’s dismissal. The 5th Circuit ruled Reed’s lawsuit was filed too late, which is the basis of Reed’s current Supreme Court petition for writ of certiorari filed in September.

Reed’s attorneys say the case presents an “exceptionally important issue that has divided the courts of appeal,” according to the petition. In 1998, Reed was convicted and sentenced to death in Bastrop for the rape and murder of 19-year-old Stacey Stites.

State prosecutors argue the statute of limitations expired to make a claim for post-conviction DNA testing of crime scene evidence, according to a response submitted Wednesday afternoon. Prosecutors also pointed out Reed has filed numerous applications in state court and none have been successful so far.

“Over the last 25 years, multiple courts have admonished Reed for his abuse of the judicial process,” prosecutors said in their response. “This suit is another in a long line of dilatory litigation tactics.”

Prosecutors assert Reed’s petition has “jurisdictional defects” and should not have been filed against Bastrop District Attorney Bryan Goertz, who should have sovereign immunity in this instance. And, “on the merits, Reed’s claims fare no better,” the state’s attorneys added.

Reed’s defense team says previous rulings from two separate US appeals courts have created conflicting timeframes for when the clock should begin on the two-year statute of limitations for a civil rights claim, such as Reed’s, for post-conviction DNA testing.

Reed wants the Supreme Court to hear the case and find that his 2019 lawsuit was filed on time.

Conflicting circuit courts

Reed’s defense said the 11th U.S. Circuit Court of Appeals has held that the two-year statute of limitations for this type of civil rights claim begins running at the end of state court litigation denying DNA testing, including any appeals. Alternatively, the 5th Circuit, which ruled on Reed’s case, has a timeframe that begins sooner. The 5th Circuit – joining with the 7th U.S. Circuit Court of Appeals – held that the statute of limitations began running as soon as the state trial court denied DNA testing, despite an appeal, according to Reed’s petition.

With its earlier timeframe, the 5th Circuit ruled Reed had run out of time to file the 2019 civil rights lawsuit seeking more DNA testing, according to Reed’s filing.

“The stakes could not be higher,” Reed’s attorneys argue in the petition. “Had Mr. Reed brought his claims in the 11th Circuit, the court would have proceeded to the weighty question whether the Constitution entitles him to testing that could prove his innocence.”

Prosecutors argued the 5th Circuit’s decision was correct. Furthermore, few similar cases have arisen over the past 20 years and the split Reed references between the circuit courts is not “recurring.”

“Six circuit cases over the last two decades does not demonstrate a recurring issue,” the state argues.

Decisions to come

The Supreme Court could deny the petition and refuse to hear the case. However, the Supreme Court does hear cases to resolve splits between federal appeals courts. Reed argues that such a split exists on this issue. If the Supreme Court hears the case, it could side with the 5th and 7th Circuit Courts and deny Reed’s claim, or the court could rule in Reed’s favor by siding with 11th Circuit Court.

Reed has been represented for years by the Innocence Project, and his legal team has filed numerous applications for relief at every level of the state and federal court system.

Reed currently has separate matters pending in the Texas Court of Criminal Appeals where he filed a writ of habeas corpus, which is a request for the court to consider if a person’s detention is lawful, and a successor petition indicating there has been newly discovered evidence in the case.

Those filings were made in mid-December. The Court of Criminal Appeals is also considering evidence and testimony gathered over the summer during a two-week evidentiary hearing in Bastrop. The Court of Criminal Appeals could opt to give Reed a new trial or let his conviction stand. It is not clear when it will make a decision.