United States v. Boyd ( 2012 )

11-352-cr
United States v. Boyd
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 17th day of April, two thousand twelve.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges,
MARK R. KRAVITZ,*
District Judge.
___________________________________________
United States of America,
Appellee,
-v.- 11-352-cr
Anthony Boyd,
Defendant-Appellant.
___________________________________________
FOR APPELLANT: Anthony Boyd, pro se, Bruceton Mills, WV.
FOR APPELLEE: Janis M. Echenberg, Jessica Ortiz, Andrew L. Fish, Assistant
United States Attorneys, for Preet Bharara, United States Attorney,
Southern District of New York, New York, N.Y.
*
The Honorable Mark R. Kravitz, of the United States District Court for the District
of Connecticut, sitting by designation.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the district court judgment is AFFIRMED.
Defendant-Appellant Anthony Boyd, pro se, appeals from the post-judgment order of the
United States District Court for the Southern District of New York (Rakoff, J.) denying his
motion for DNA testing. We assume the parties’ familiarity with the underlying facts and the
procedural history of the case.
Boyd has abandoned any challenge to the district court’s denial of his request for DNA
testing under 18 U.S.C. § 3600 by failing to raise the issue in his appellate brief. See United
States v. Greer, 285 F.3d 158, 170 (2d Cir. 2002) (“‘Ordinarily, failure to include an argument in
the appellate brief waives the argument on appeal.’”) (quoting United States v. Zichettello, 208
F.3d 72, 121 (2d Cir. 2000)). Instead, Boyd seeks to raise a claim under 42 U.S.C.
§ 14132(b)(3). Regardless of whether this section creates a private right of action, an issue we
need not reach, Boyd has waived any challenge to the district court’s decision by abandoning the
§ 14132 claim he raised below. This alone provides a sufficient basis for affirming the district
court. Cf. Nokia Corp. v. Uzan, 425 F.3d 1005, 1008 (2d Cir. 2005) (granting motion to dismiss
the appeal where the appellants’ arguments had been waived).
In the district court, Boyd sought, under § 14132, evidence that his DNA profile had been
entered into a searchable database. By contrast, on appeal, Boyd seeks information about the
DNA profile created from the forensic evidence recovered from the crime scenes in this case.
We decline to consider this new claim. See United States v. Lauersen, 648 F.3d 115, 115-16 (2d
Cir. 2011) (finding that, generally, the Court does not consider claims raised for the first time on
appeal) (per curiam). And, find that by requesting different relief under § 14132(b), Boyd has
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abandoned the claim asserted in the district court, see Cruz v. Gomez, 202 F.3d 593, 596 n.3 (2d
Cir. 2000) (“When a litigant – including a pro se litigant – raises an issue before the district court
but does not raise it on appeal, the issue is abandoned.”).
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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