UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Anthony Brooks seeks a certif icate 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 fl otilla of evidence, including the testimony of Bethany Stone, a fo rensic scientist w ho testified as the government’s DNA expert. Stone analyzed zip ties used by the robber to bind two

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 bank tellers’ wrists and ankl es 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 th at it was “very highly unlikely” that his DNA wound up on the zip tie as a result of a secondary transfer fro m this bank teller. She explained that with a secondary transf er, the person who does not have direct contact—in this case with th e zip tie—would usually be a minor contributor of DNA, not a major contributor as was Brooks. Ba sed on this and other evidence, the jury convicted Brooks. The distri ct court sentenced him to 18 8 months in prison. We affirmed the conviction on direct appeal. United States v. Br ooks, 727 F.3d 1291, 1308 (10th Cir. 2013). Brooks subsequently file d 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 th at 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. Acco rding to Ryan’s repor t, “[p]eer-reviewed journal research actually shows that it is NOT possible to determine if the DNA

1 The motion raised four other ineffectiv e assistance claims that are not the subject of this COA application.3 present on an item is due to secondary tran sfer 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 opi nion was speculative and lacked a proper foundation, and, that as a consequence, his attorney wa s ineffective for failing to object to it. The district court rejected this clai m, reasoning that Stone’s opinion was premised on her finding that Brooks was a ma jor contributor of the DNA. Moreover, the court noted that her opinion was supporte d by literature with which Brooks’ trial expert agreed on cross-examination. Mo re fundamentally, the court observed that although Ryan’s report indicated it was impo ssible to definitively determine whether a secondary transfer occurred based on a person’s status as a major or minor contributor, it did not contra dict Stone’s opinion, which concerned the likelihood of a secondary transfer. Thus, the court held th at Brooks failed to es tablish that Stone’s opinion should have been excluded, that hi s attorney was defici ent in declining to object, or that he was prejudiced by his a ttorney’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 whet her Ryan refuted Stone’s opinion.
II To appeal the district court’s denial of § 2255 relief, Br ooks must obtain a COA. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial showing of the deni al of a constitutional right.” § 2253(c)(2). Under this standard, Brooks must demons trate “that reasonable jurists could debate whether (or,4 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) (quot ation omitted). We do not engage in a “full consideration of the factual or legal bases adduced in support of the claims” but rather “an ove rview 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 couns el, 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. Washingt on, 466 U.S. 668, 694 (1984). This is a two-pron ged test requiring both “that counsel’s representation fell below an objective standard of reasonablen ess” and that “counsel ’s performance . . . [was] prejudicial to the de fense.” Id. at 688, 692. Regarding the first prong, no reasonable jurist could de bate 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 hi ghly unlikely.” As the district court observed, this opinion was based on Stone’s fi nding 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 wh ether a secondary transfer in fact occurred, not its likelihood, it does not render St one’s opinion unreliable. Indeed, the report states that a secondary transfer was possible but that there is no way to confirm it based on5 forensic testing. On th at score, Stone recognized on cross-examination that a secondary transfer was “possible but not as likely in this situ ation.” 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 ot her 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 ob liquely commented on the likelihood of a secondary transfer by stating “it is quite possibl e that [a] secondary transfer has occurred in this case.” Ev en if this statement can be read as commenting on the likelihood of a secondary transfer, it would ha ve 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) (con cluding that, if methodology and re liability of expert testimony was established, questions unde rlying 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 earm arks of reliability, the evidence is then admitted and subjected to the ki nd of adversarial attack that facilitates the jury’s central functions of deciding what wei ght 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 that6 Stone’s opinion was based on a finding that Brooks was a major contributor of the DNA. And although she noted that defens e counsel did not question Stone on the basis for her opinion, she recognized that St one indicated on redirect that her opinion was based on “a lot of research and publi cations other labs have performed, [ ] experimentation, and . . . experience with other case work that usually the most probable explanation for a majo r profile is that somebody cam e into contact with that item.” Ryan then said that it is impossible “to determ ine if the DNA present on an item is due to secondary tr ansfer . . . based upon [the ] amount of DNA present,” but that research articles demons trate 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 liber ally construe the report as he does, citing his pro se stat us at the time Ryan prepar ed 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). Bu t 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 assert ing that, even if Stone’s opinion was properly admitted, counsel was ineffectiv e in failing “to become sufficiently well-versed in the scientific literature to be able to eff ectively cross-examine Ms. Stone.” Although we afford pro se pleadings a solicitous construction, this theory was not raised in Brooks’ § 2255 mo tion, nor was it addre ssed 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 firs t 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 tr ial expert to better prepare (continued)7 As for the second ineffective-assistan ce 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 th e evidence against him “was far from overwhelming,” but another pane l of this court determined on direct appeal that apart from Stone’s opinion, there wa s significant evidence suppor ting the jury’s verdict, see Brooks, 727 F.3d at 1305. That eviden ce included the robber’s prior relationship with the bank teller and knowledge of th e bank’s procedures and protocols; the possibility that the teller gave Brooks information ab out the bank’s operations; and testimony that the bank teller with whom Br ooks had a relationship was treated more favorably by the robber than th e other teller, was able to ea sily open a safe with more money than another safe c ontaining substantially less m oney, and was unusually calm immediately following the robbery. Id. at 13 05-06. The jury al so heard evidence of for cross-examination by reviewing the gove rnment’s literature, but that theory did not advance the argument Brooks now urges upon us

— that his attorney was ineffective in failing to be tter educate himself on the scientific literature. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Ci r. 2011) (holding new theories raised on appeal are waived or forfeited). And it is unavailing that Brooks’ appellate docketing statement list s all five claims from his § 2255 motion, because he does not seek a COA on any ot her claim. See Kabba v. Mukasey, 530 F.3d 1239, 1248 n.5 (10t h Cir. 2008) (“Any issue raised in a Docketing Statement, but not argued in the opening brie f is deemed abandoned . . . .”). Brooks points out that he mentioned, in his trav erse to the government’s response to the § 2255 motion, that his attorn ey should have been better informed on the scientific literature to correct inaccura te or unreliable testimony. But that passing reference failed to preserve th e entirely new theory he asks us to liberally construe from his failure-to-object claim. See Somerlott v. Cherokee Nation Distri bs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012) (“An issue is preserved fo r appeal if a party alerts the district court to the issue and seeks a ru ling.” (quotation omitted )). In short, we decline to construe other th eories from Brooks’ consisten tly articulated claim that counsel was ineffective for failing to object to Stone’s opinion.8 Brooks’ phone records; that he matched the description of the robber; and that his financial circumstances dram atically improved after the robbery. Id. Given this evidence, the district court’s conclusion is not reasonably deba table, 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 inte nded 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 ev identiary hearing for abuse of discretion. United States v. We eks, 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 reasonabl e 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