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, 

, 170 (2d Cir. 2002) (“‘Ordinarily, failure to include an argument in

the appellate brief waives the argument on appeal.’”) (quoting United States v. Zichettello, 

, 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, 

, 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, 

, 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, 

, 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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