Full Opinion

Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 3, 2026 _________________________________ Christopher M. Wolpert Clerk of Court EVERALD S. ALLEN, JR., Petitioner - Appellant, v. No. 26-3169 (D.C. No. 5:26-CV-03043-JWL) ANDREW SERGENT, Commandant, (D. Kan.) United States Disciplinary Barracks, Respondent - Appellee. _________________________________ ORDER AND JUDGMENT * _________________________________ Before BACHARACH, McHUGH, and CARSON, Circuit Judges. _________________________________ Petitioner–Appellant Everald S. Allen, Jr., proceeding pro se, 1 appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s After examining the briefs and appellate record, this panel has determined * unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 1 Because Mr. Allen appears in these proceedings without counsel, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 2 decision. We also deny Mr. Allen’s request to proceed in forma pauperis (“IFP”) on appeal. I. BACKGROUND In 2012, while serving as a Staff Sergeant in the U.S. Army, Mr. Allen was accused of sexually assaulting another service member, T.S., during an Army leadership conference. He was subsequently convicted by a general court-martial of aggravated sexual assault, abusive sexual contact, and obstruction of justice. The issue before us in this appeal arises out of the forensic investigation that followed T.S.’s report of sexual assault. On June 7, 2012, the U.S. Army Criminal Investigation Laboratory (“CIL”) completed a forensic report on evidence collected from T.S.’s body, clothing, and hotel bedsheet. The CIL did not detect any semen or sperm on the collected evidence, but it found male DNA on the inside crotch of T.S.’s underwear. However, although the CIL was able to determine that this DNA came from a male source, “[n]o further DNA testing was performed on the swabbing of [the] inside crotch of [the] underwear due to an insufficient amount of male DNA detected.” ROA at 166. Shortly after the CIL completed this forensic report, an agent from the Army’s Criminal Investigation Division prepared a draft investigation report that summarized various aspects of the investigation, including the CIL’s forensic report. With respect to the forensic report, the draft investigation report stated: “The documentation reflected no semen was found on any exhibits. The documentation further reflected that male DNA was found on the inside crotch of [T.S.’s] underwear.” Id. at 167–68. 2 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 3 Prior to Mr. Allen’s preliminary hearing, his defense counsel received a copy of both the forensic report and the draft investigation report. And at Mr. Allen’s trial, defense counsel argued in part that the general court-martial should acquit him based on the lack of forensic evidence to support T.S.’s allegations. However, the general court-martial rejected these arguments and convicted him. On appeal to the U.S. Army Court of Criminal Appeals (“ACCA”), Mr. Allen argued in part that the evidence was insufficient to sustain his convictions because “[t]here was no DNA linking [Mr.] Allen to the offense of rape.” Id. at 80. However, the ACCA affirmed Mr. Allen’s convictions, 2 and the U.S. Court of Appeals for the Armed Forces denied his petition for review. Mr. Allen then filed a petition for a writ of habeas corpus in the district court, arguing that he was entitled to habeas relief based on (1) unlawful command influence; (2) factual and legal insufficiency; and (3) lack of a unanimous verdict. The district court denied his petition, and we affirmed that decision on appeal. See Allen v. Payne, No. 23-3138, 2023 WL 8368896, at *3–5 (10th Cir. Dec. 4, 2023). Mr. Allen subsequently filed a Privacy Act request for copies of all records related to this case. Pursuant to this request, he received a copy of the investigative agent’s final investigation report, dated June 22, 2012, that differed in a few respects from the draft investigation report that the Government had provided to defense 2 The ACCA summarily disposed of Mr. Allen’s evidentiary argument without discussion. See United States v. Allen, ARMY 20130521, 2016 WL 1221908, at *1 (Army Ct. Crim. App. Mar. 28, 2016). 3 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 4 counsel. As relevant here, the final investigation report summarized the CIL’s written forensic report by stating: “The documentation reflected no semen was found on any evidence. The documentation further reflected that male DNA was found on the inside crotch of [T.S.’s] underwear; however, it was not conclusively [Mr. Allen’s] DNA.” ROA at 169–70. Thus, unlike the draft investigation report, the final investigation report’s summary of the written forensic report included the fact that the CIL did not conclusively identify the male DNA in T.S.’s underwear to be Mr. Allen’s. After receiving a copy of the final investigation report, Mr. Allen filed a petition for a new trial with the Office of the Judge Advocate General, which denied the petition on the procedural basis that it was not filed within three years of the entry of judgment. See 10 U.S.C. § 873 (“At any time within three years after the date of the entry of judgment under section 860c of this title (article 60c), the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence or fraud on the court.”). Mr. Allen then filed the instant petition for federal habeas review, contending that the Government violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide him with the copy of the final investigation report. Specifically, he alleged that the Government violated his rights by suppressing the final investigation report’s statement that the written forensic report indicated that the male DNA inside of T.S.’s underwear “was not conclusively” Mr. Allen’s DNA. ROA at 169–70. 4 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 5 The district court denied habeas relief for two reasons. First, the district court concluded that Mr. Allen had not met his procedural burden of establishing that he was entitled to habeas review because he did not show that the military courts failed to give “full and fair consideration” to his Brady claim. Id. at 208 (quoting Santucci v. Commandant, 66 F.4th 844, 856 (10th Cir. 2023)). Second, the district court held that even if Mr. Allen could overcome this barrier to review, his claim failed on the merits because the final investigation report’s summary of the written forensic report was not material evidence and therefore did not entitle him to relief under Brady. II. ANALYSIS We need not here decide how, if at all, this circuit’s “full and fair consideration” test applies to a military habeas claim that was dismissed on procedural grounds rather than after consideration of the merits. Instead, we affirm the district court’s alternative holding that, even if Mr. Allen could satisfy the “full and fair consideration” test for habeas review, his Brady claim fails on the merits. “A defendant seeking a new trial based on a Brady[] violation must show by a preponderance of the evidence that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was material.” United States v. Cordova, 25 F.4th 817, 826 (10th Cir. 2022) (internal quotation marks omitted). “Evidence is material ‘when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.’” Id. (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)). This standard is satisfied only if “the 5 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 6 likelihood of a different result is great enough to undermine confidence in the outcome of the trial.” Id. (quoting Smith, 565 U.S. at 75). We conclude that Mr. Allen has not met this standard. As an initial matter, we emphasize that the record does not suggest that anyone at the CIL conveyed information to the investigative agent outside of the CIL’s written forensic report. Rather, the purported evidence on which Mr. Allen relies is simply a summary by the investigative agent of the forensic report’s written findings. Mr. Allen does not explain how an investigative agent’s interpretation of the CIL’s written findings would have been admissible at his trial or how it could have led to the discovery of any new admissible evidence. Cf. Banks v. Workman, 692 F.3d 1133, 1142–44 (10th Cir. 2012) (explaining that “evidence cannot qualify as material without first being admissible or at least ‘reasonably likely’ to lead to the discovery of admissible evidence,” and thus rejecting the defendant’s argument that his Brady rights were violated by the government’s suppression of a note consisting of inadmissible double hearsay (quoting Wood v. Bartholomew, 516 U.S. 1, 8 (1995))). Indeed, it is undisputed that Mr. Allen’s defense counsel was provided with the underlying forensic report long before the court-martial took place. Moreover, the record simply does not support Mr. Allen’s assertion that the final investigation report proved or could have led to proof that “the DNA on the victim’s underwear was not his,” thus providing “concrete proof” of his innocence. Reply Br. at 2. The final investigation report states that the male DNA found on the inside crotch of the victim’s underwear “was not conclusively” Mr. Allen’s. ROA 6 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 7 at 169–70. But this is very different from saying that the DNA “was conclusively not” his, which seems to be how Mr. Allen is interpreting it. By saying that the DNA “was not conclusively” his, the final investigation report indicated only that the DNA testing was unable to conclusively determine whether Mr. Allen was the source of this male DNA. This statement certainly does not exclude him as a possible source of the DNA, nor does it prove his innocence in any way. Instead, consistent with the forensic report available to Mr. Allen’s counsel before trial, this statement stands only for the proposition that the CIL’s testing was unable to either rule Mr. Allen in or rule him out as the contributor of this DNA. The record reflects that Mr. Allen’s trial and appellate counsel were aware that the CIL’s testing did not result in any conclusive forensic evidence of Mr. Allen’s guilt; indeed, they argued that he should be acquitted based on the lack of forensic evidence to support T.S.’s testimony. But this argument was rejected by the military courts, which found the evidence sufficient to convict him despite the CIL’s inability to determine whether Mr. Allen was the source of the male DNA found inside of T.S.’s underwear. 3 Accordingly, Mr. Allen has not shown “a reasonable probability that, had the [final investigation report] been disclosed, the result of the proceeding would have been different.” Cordova, 25 F.4th at 826 (quoting Smith, 565 U.S. at 75). We 3 As defense counsel admitted at Mr. Allen’s trial, his own statements placed him in T.S.’s hotel room on the night of the sexual assault, purportedly because he was watching over her while she was drunk. 7 Appellate Case: 26-3169 Document: 15-1 Date Filed: 11/03/2026 Page: 8 therefore affirm the district court’s holding that Mr. Allen’s Brady claim fails on the merits because he has not satisfied the materiality requirement. Finally, Mr. Allen has filed a motion to proceed IFP on appeal. To succeed on this motion, he must demonstrate both “a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “An appeal is frivolous when the result is obvious, or the appellant’s arguments of error are wholly without merit.” Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993) (quotation marks omitted). We conclude that Mr. Allen’s appeal is frivolous, and we therefore deny his IFP motion. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of Mr. Allen’s habeas claim and DENY his motion to proceed IFP on appeal. Entered for the Court Carolyn B. McHugh Circuit Judge 8