WASHINGTON ( CNN ) -- A convicted rapist seeking to prove his innocence with a new DNA test lost his appeal Thursday at the Supreme Court . The U.S. Supreme Court case involved a crime in which post-conviction DNA testing was available . The justices ruled 5-4 that inmates can not use a federal civil rights law to press for advanced DNA testing that was unavailable at the time of the crime . Forty-four states and the federal government have laws allowing post-conviction access to biological evidence for such testing , but that number does not include Alaska , where William Osborne was sentenced 15 years ago for a vicious attack on an Anchorage woman . `` He has no constitutional right to obtain post-conviction access to the state 's evidence for DNA testing , '' Chief Justice John Roberts wrote for the majority . He was supported by his conservative colleagues Justices Antonin Scalia , Anthony Kennedy , Clarence Thomas and Samuel Alito . In dissent , Justice John Paul Stevens said , `` There is no reason to deny access to the evidence and there are many reasons to provide it , not the least of which is a fundamental concern in ensuring that justice has been done in this case . '' Justices David Souter , Ruth Bader Ginsburg and Stephen Breyer backed his conclusions . Osborne 's trial attorney in Anchorage made a strategic decision 16 years ago to forgo more sophisticated DNA testing of the evidence in the criminal assault case , believing it might end up working against her client . Several years later , the Alaska inmate sought access to the state 's biological evidence to have a state-of-the-art DNA test done . Although the court was ruling on the specific facts of Osborne 's case , the implications could be felt across the country . The high court refused calls to provide an automatic constitutional right to post-conviction DNA testing for older crimes in which biological evidence is available for such testing . Some states had feared a flood of frivolous lawsuits clogging the courts from prisoners whose guilt has already been established , a fact Roberts noted in his opinion . The Innocence Project , representing Osborne , said DNA testing has exonerated 232 wrongly convicted people in the past two decades . That includes 17 men on death row . Alaska officials told the justices that even if more sophisticated genetic testing did not show the semen and hair at the crime scene matched Osborne , other evidence remains strong enough to uphold the conviction . And they said that since there was no trial error , Osborne should have made his claim of right to access to biological evidence at the trial , not on appeal . Osborne was found guilty in 1993 of kidnapping and assault . He and a co-defendant were convicted of raping an Anchorage prostitute , then beating her with an ax handle , shooting her in the head , and dumping her in a snowbank near the airport , believing she was dead . The victim survived and identified Osborne from photo lineups . He was sentenced to 26 years behind bars , with five years suspended . His co-defendant has continued to implicate Osborne , and the 37-year-old prisoner admitted his guilt in a 2004 parole hearing , although he later said he had made the confession only in the hope it would secure his release . He was not granted parole at that time , but was in 2007 . Initial state forensic testing on a condom and hairs found at the crime scene found the DNA consistent with Osborne 's genetic profile , but that one in six -- or about 15 percent -- of African-Americans like Osborne might share a similar genetic profile . Osborne 's appointed trial counsel declined more sophisticated , independent testing , believing the initial one-in-six ratio represented `` very good numbers '' to make a case for mistaken identity , according to an affidavit submitted in the high court appeal . The trial lawyer was also worried that further testing could work against Osborne . A federal appeals court ruled in favor of Osborne , saying Alaska was trying to `` foreclose '' his possible innocence `` by its simple refusal to open the evidence locker . '' Osborne 's legal team said that under a section of the Civil Rights Act of 1871 , he has a right to such evidence in the government 's possession when making a `` free-standing '' claim of innocence . The high court had never before decided what role DNA can play in post-conviction appeals , despite a variety of testing that has been around for more than two decades . Roberts noted that states are `` actively confronting '' how to handle evolving DNA technology and increasing challenges by inmates . `` To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response , '' he wrote . He said having courts take over this issue now would be wrong . `` We are reluctant to enlist the federal judiciary in creating a new constitutional code of rules for handling DNA . '' The majority found that Alaska 's procedures are adequate . But Souter said the state `` has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the [ Constitution 's ] due process clause . '' Within months after Osborne was paroled , he was re-arrested and then convicted of kidnapping and assault in a home invasion in Anchorage . He is awaiting sentencing on those counts . The Supreme Court case is District Attorney 's Office for the Third Judicial District v. Osborne ( 08-6 ) .
Justices : Inmates can not use federal civil rights law to get advanced DNA testing . 44 states have laws allowing post-conviction access to such evidence . The Supreme Court has ruled that the Constitution doesn't allow for a right of prisoners to obtain DNA from their victims, but it's still legal in most cases.