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

                             FOR THE TENTH CIRCUIT                        February 7, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-3064
                                                (D.C. Nos. 2:14-CV-02624-JWL &
ANTHONY BROOKS,                                      2:10-CR-20078-JWL-1)
                                                            (D. Kan.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Anthony Brooks seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss

the appeal.

                                           I

      Brooks was indicted on one count of armed bank robbery in violation of

18 U.S.C. § 2113(a) and (d). At trial, the government offered a flotilla of evidence,

including the testimony of Bethany Stone, a forensic scientist who testified as the

government’s DNA expert. Stone analyzed zip ties used by the robber to bind two


      *
         This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
bank tellers’ wrists and ankles during the robbery. She identified Brooks as a major

contributor of DNA recovered from one of the zip ties. Although there was evidence

that Brooks was in a relationship with one of the bank tellers and had sex with her

hours before the robbery, Stone testified that it was “very highly unlikely” that his

DNA wound up on the zip tie as a result of a secondary transfer from this bank teller.

She explained that with a secondary transfer, the person who does not have direct

contact—in this case with the zip tie—would usually be a minor contributor of DNA,

not a major contributor as was Brooks. Based on this and other evidence, the jury

convicted Brooks. The district court sentenced him to 188 months in prison. We

affirmed the conviction on direct appeal. United States v. Brooks, 727 F.3d 1291,

1308 (10th Cir. 2013).

      Brooks subsequently filed a § 2255 motion pro se, claiming his attorney was

ineffective for failing to object to Stone’s testimony.1 He argued that Stone’s opinion

was unreliable and violated Fed. R. Evid. 702, which requires that expert testimony

be based on sufficient facts or data and reliable principles. In support of this claim,

he submitted a new expert report prepared by a forensic consultant, Suzanna Ryan,

who did not testify at trial. Ryan’s report was critical of Stone’s methodologies and

indicated it was “quite possible” that a secondary transfer had occurred based on

Brooks’ relationship with the teller. According to Ryan’s report, “[p]eer-reviewed

journal research actually shows that it is NOT possible to determine if the DNA

      1
        The motion raised four other ineffective assistance claims that are not the
subject of this COA application.

                                            2
present on an item is due to secondary transfer or primary transfer based upon [the]

amount of DNA present or based upon major vs. minor contributor.” In light of this

report, Brooks asserts that Stone’s opinion was speculative and lacked a proper

foundation, and, that as a consequence, his attorney was ineffective for failing to

object to it.

       The district court rejected this claim, reasoning that Stone’s opinion was

premised on her finding that Brooks was a major contributor of the DNA. Moreover,

the court noted that her opinion was supported by literature with which Brooks’ trial

expert agreed on cross-examination. More fundamentally, the court observed that

although Ryan’s report indicated it was impossible to definitively determine whether

a secondary transfer occurred based on a person’s status as a major or minor

contributor, it did not contradict Stone’s opinion, which concerned the likelihood of a

secondary transfer. Thus, the court held that Brooks failed to establish that Stone’s

opinion should have been excluded, that his attorney was deficient in declining to

object, or that he was prejudiced by his attorney’s decision. Brooks now seeks a

COA, arguing that the district court erred both in denying his claim and in failing to

hold an evidentiary hearing on whether Ryan refuted Stone’s opinion.

                                           II

       To appeal the district court’s denial of § 2255 relief, Brooks must obtain a

COA. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). Under this

standard, Brooks must demonstrate “that reasonable jurists could debate whether (or,

                                           3
for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

We do not engage in a “full consideration of the factual or legal bases adduced in

support of the claims” but rather “an overview of the claims . . . and a general

assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

                                           A

      To establish ineffective assistance of counsel, an applicant must show “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694

(1984). This is a two-pronged test requiring both “that counsel’s representation fell

below an objective standard of reasonableness” and that “counsel’s performance . . .

[was] prejudicial to the defense.” Id. at 688, 692.

      Regarding the first prong, no reasonable jurist could debate the district court’s

conclusion concerning counsel’s decision not to object to Stone’s opinion. Stone

testified that a secondary transfer of Brooks’ DNA was “very highly unlikely.” As

the district court observed, this opinion was based on Stone’s finding that Brooks was

a major contributor of the DNA. It was also supported by literature presented at trial

and the testimony of Brooks’ trial expert. Because Ryan’s report addresses the

possibility of determining whether a secondary transfer in fact occurred, not its

likelihood, it does not render Stone’s opinion unreliable. Indeed, the report states

that a secondary transfer was possible but that there is no way to confirm it based on

                                            4
forensic testing. On that score, Stone recognized on cross-examination that a

secondary transfer was “possible but not as likely in this situation.” She also

understood there was no way to confirm secondary transfer based on forensic testing,

as reflected in her answer to this question: “[Y]ou can’t analyze the DNA that you

detected on an object and tell whether it got there by direct touch, by transference

from another human or object, or by some other means, can you?” Stone replied, “I

cannot say how DNA was placed on an item, no.” This testimony is consistent with

Ryan’s report, which perhaps only obliquely commented on the likelihood of a

secondary transfer by stating “it is quite possible that [a] secondary transfer has

occurred in this case.” Even if this statement can be read as commenting on the

likelihood of a secondary transfer, it would have affected only the weight of Stone’s

opinion, not its admissibility. See United States v. Cavely, 318 F.3d 987, 997-98

(10th Cir. 2003) (concluding that, if methodology and reliability of expert testimony

was established, questions underlying its validity went to the weight of the evidence,

not its admissibility); see also Charles Alan Wright et al., 29 Fed. Prac. & Proc. Evid.

§ 6262 (2d ed. 2016) (“Assuming the expert testimony has the earmarks of reliability,

the evidence is then admitted and subjected to the kind of adversarial attack that

facilitates the jury’s central functions of deciding what weight to attribute to evidence

and which witnesses to believe.”).

      Nevertheless, Brooks argues that, when read in context, Ryan’s report

forecloses all conclusions concerning the likelihood of a secondary transfer based on

his status as a major contributor of the DNA. We disagree. Ryan acknowledged that

                                            5
Stone’s opinion was based on a finding that Brooks was a major contributor of the

DNA. And although she noted that defense counsel did not question Stone on the

basis for her opinion, she recognized that Stone indicated on redirect that her opinion

was based on “a lot of research and publications other labs have performed, [ ]

experimentation, and . . . experience with other case work that usually the most

probable explanation for a major profile is that somebody came into contact with that

item.” Ryan then said that it is impossible “to determine if the DNA present on an

item is due to secondary transfer . . . based upon [the] amount of DNA present,” but

that research articles demonstrate that a secondary transfer is possible. Nothing in

the context of these statements forecloses or refutes the opinion that a secondary

transfer was unlikely. Brooks nevertheless urges us to liberally construe the report as

he does, citing his pro se status at the time Ryan prepared it. See Van Deelen v.

Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007) (noting that pro se filings are

entitled to a solicitous construction). But he offers no authority for extending our

liberal-construction rule to a report prepared by a forensics expert.2


      2
         Brooks also contends we should liberally construe his claim to raise several
additional arguments, including one asserting that, even if Stone’s opinion was
properly admitted, counsel was ineffective in failing “to become sufficiently
well-versed in the scientific literature to be able to effectively cross-examine
Ms. Stone.” Although we afford pro se pleadings a solicitous construction, this
theory was not raised in Brooks’ § 2255 motion, nor was it addressed by the district
court. Thus, we will not consider it. See United States v. Moya, 676 F.3d 1211,
1213 (10th Cir. 2012) (declining to “deviate from the general rule that we do not
address arguments presented for the first time on appeal” (quotation omitted)).
       We acknowledge that another of Brooks’ claims argued that his attorney was
ineffective for failing to seek a continuance to allow his trial expert to better prepare
                                                                               (continued)
                                            6
      As for the second ineffective-assistance prong, no reasonable jurist could

debate the district court’s conclusion that Brooks was not prejudiced by his attorney’s

failure to object. Brooks says the evidence against him “was far from

overwhelming,” but another panel of this court determined on direct appeal that apart

from Stone’s opinion, there was significant evidence supporting the jury’s verdict,

see Brooks, 727 F.3d at 1305. That evidence included the robber’s prior relationship

with the bank teller and knowledge of the bank’s procedures and protocols; the

possibility that the teller gave Brooks information about the bank’s operations; and

testimony that the bank teller with whom Brooks had a relationship was treated more

favorably by the robber than the other teller, was able to easily open a safe with more

money than another safe containing substantially less money, and was unusually calm

immediately following the robbery. Id. at 1305-06. The jury also heard evidence of

for cross-examination by reviewing the government’s literature, but that theory did
not advance the argument Brooks now urges upon us—that his attorney was
ineffective in failing to better educate himself on the scientific literature.
See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011) (holding
new theories raised on appeal are waived or forfeited). And it is unavailing that
Brooks’ appellate docketing statement lists all five claims from his § 2255 motion,
because he does not seek a COA on any other claim. See Kabba v. Mukasey,
530 F.3d 1239, 1248 n.5 (10th Cir. 2008) (“Any issue raised in a Docketing
Statement, but not argued in the opening brief is deemed abandoned . . . .”). Brooks
points out that he mentioned, in his traverse to the government’s response to the
§ 2255 motion, that his attorney should have been better informed on the scientific
literature to correct inaccurate or unreliable testimony. But that passing reference
failed to preserve the entirely new theory he asks us to liberally construe from his
failure-to-object claim. See Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d
1144, 1150 (10th Cir. 2012) (“An issue is preserved for appeal if a party alerts the
district court to the issue and seeks a ruling.” (quotation omitted)). In short, we
decline to construe other theories from Brooks’ consistently articulated claim that
counsel was ineffective for failing to object to Stone’s opinion.

                                           7
Brooks’ phone records; that he matched the description of the robber; and that his

financial circumstances dramatically improved after the robbery. Id. Given this

evidence, the district court’s conclusion is not reasonably debatable, nor does the

issue of prejudice warrant further consideration.

                                           B

      Brooks also contends the district court should have held an evidentiary hearing

to clarify whether Ryan’s report was intended to refute Stone’s opinion. Under

28 U.S.C. § 2255(b), the district court must grant a hearing “[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no

relief.” We review the district court’s decision to deny an evidentiary hearing for

abuse of discretion. United States v. Weeks, 653 F.3d 1188, 1200 (10th Cir. 2011).

Our general assessment of this claim demonstrates Brooks is not entitled to relief. It

follows, then, that no reasonable jurist could debate the court’s decision to deny the

claim without a hearing.

                                           III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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