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 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 This order is not binding precedent, except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

February 7, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

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, 
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) (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 
5 

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 
6 

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) 
7 

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. 
8 

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