                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            March 13, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 12-8068
                                                  (D.C. Nos. 1:10-CR-00206-NDF-2 &
 LINDA J. MONTOYA,                                         2:12-CV-00036-NDF)
                                                               (D. Wyo.)
           Defendant - Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Linda Montoya, a federal prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s order denying her 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct her sentence. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal a “final order in a proceeding under section

       * This order is not binding precedent, except under the doctrines of law of the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.
       1
         Because Ms. Montoya is proceeding pro se, we construe her pleadings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments
liberally; this rule of liberal construction stops, however, at the point at which we begin
to serve as his advocate.”).
2255”). Ms. Montoya also seeks leave to proceed in forma pauperis. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we deny both requests and dismiss this matter.

                                  I.    BACKGROUND

       In 2011, Ms. Montoya pled guilty to conspiracy to traffic methamphetamine in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. As part of her plea agreement,

the Government dismissed an additional charge against her, recommended a three-level

reduction in her offense-level calculation under the United States Sentencing Guidelines

(the “Guidelines”) for her acceptance of responsibility, and recommended a sentence at

the low end of the Guidelines range. Ms. Montoya’s presentence investigation report

(“PSR”) incorporated the three-level reduction for acceptance of responsibility. The PSR

also subtracted two offense levels from her base offense level because Ms. Montoya met

the requirements for “safety valve” sentencing. This brought Ms. Montoya’s total

offense level to 31 in the PSR.

       At sentencing, neither party objected to the PSR’s calculations, but Ms. Montoya

requested a further downward departure. Through counsel, Ms. Montoya complained

that the Government would not recommend a reduction under U.S.S.G. § 5K1.1 for

substantial assistance in its investigation because it was not interested in the information

she could provide. She argued that this punished her for being a minor player in the drug

conspiracy. The court considered and denied this request for a further downward

departure and sentenced Ms. Montoya to 108 months in prison, five years of supervised

release, no fine, and the forfeiture of $5,000 in drug proceeds. Ms. Montoya did not
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appeal her conviction or sentence.

       On February 16, 2012, Ms. Montoya filed a motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct her sentence. From Ms. Montoya’s § 2255 motion, the

district court identified five claims of ineffective assistance of counsel. The court

rejected these claims, explaining that she did not demonstrate that her attorney’s

performance was unreasonable and that she was prejudiced, as required by Strickland v.

Washington, 466 U.S. 668 (1984). On July 30, 2012, the district court denied her § 2255

motion and concluded she was not entitled to a COA.

                                   II.    DISCUSSION

       Ms. Montoya now seeks a COA to challenge the district court’s order denying her

§ 2255 motion. “The issuance of a COA is a jurisdictional prerequisite to an appeal from

the denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d

1228, 1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Ms.

Montoya must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A

prisoner may make a “substantial showing of the denial of a constitutional right” by

“showing that reasonable jurists could debate whether . . . the [motion] should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (quotations omitted).

       Ms. Montoya makes two arguments in her COA application. First, she argues that

the district court erred when it denied her § 2255 motion without an evidentiary hearing.
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Second, she argues that her counsel was ineffective. Of the five reasons she argued

before the district court, she requests a COA on three of them.2

       A. Evidentiary Hearing

       Ms. Montoya first argues that the district court should have given her an

opportunity to develop background facts related to her claims through an evidentiary

hearing. But she failed to explain in the district court and fails to explain in her motion

for COA what the evidentiary hearing would entail or how such a hearing would have

affected the district court’s ruling on her § 2255 motion.

       “District courts are not required to hold evidentiary hearings in collateral attacks

without a firm idea of what the testimony will encompass and how it will support a

movant’s claim.” United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004).

Reasonable jurists could not debate the correctness of the district court’s decision on her

evidentiary hearing claim. We therefore deny a COA on this issue.

       B. Ineffective Assistance of Counsel

       Ms. Montoya next argues that her counsel was ineffective at three points in her

proceeding: (1) failing to submit her proffer letter to obtain substantial assistance

consideration from the Government; (2) failing to present evidence to support a

downward variance at sentencing; and (3) refusing to file a direct appeal.

       2
         Apart from the evidentiary hearing and ineffective assistance of counsel claims,
Ms. Montoya identifies two additional issues in her statement of issues. We do not
address these issues, as neither is briefed in her motion for COA and neither is applicable
to her case.

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       To establish a claim of ineffective assistance of counsel, a movant must show both

(1) constitutionally deficient performance and (2) resulting prejudice, i.e., “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 687, 694. If the applicant is unable

to show either “deficient performance” or “sufficient prejudice,” the ineffective

assistance claim fails. Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010).

       “[O]ur review of counsel’s performance under the first prong of Strickland is a

highly deferential one.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir.

2011) (quotations omitted), cert. denied 132 S. Ct. 763 (2011). “[W]e indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance” and presume that counsel’s conduct is sound strategy. Welch v.

Workman, 639 F.3d 980, 1010 (10th Cir. 2011) (quotations omitted), cert. denied 132

S. Ct. 292 (2011). “To be deficient, the performance must be outside the wide range of

professionally competent assistance. . . . [I]t must have been completely unreasonable,

not merely wrong.” Hooks, 606 F.3d at 723 (citation omitted) (quotations omitted).

                 1. Plea Agreement and Proffer

       Ms. Montoya contends that her counsel denied her the opportunity to proffer

substantial assistance to the government that would have resulted in an additional

Guidelines level reduction under § 5K1.1. She alleges that she did not receive the

downward departure “because she did not [p]roffer quickly enough,” and accuses her

counsel of effectively denying her the opportunity to proffer by delaying the sending of
                                             -5-
the proffer letter. Motion for COA at 10.

       At sentencing, however, counsel explained that Ms. Montoya actually submitted

multiple proffer letters, but the Government was not interested in the information

provided. Neither Ms. Montoya, her counsel, nor the Government, mentioned that the

proffer letters were submitted too late. At the sentencing hearing, Ms. Montoya did not

dispute any of the representations made about the proffers or ask the court or her counsel

any questions related to the proffer letters.

       Although Ms. Montoya claims her counsel denied her the opportunity to proffer in

a timely manner, the record shows that she did timely proffer. She failed to establish in

her § 2255 proceeding before the district court or in her motion for COA any basis for

finding that her counsel’s treatment of the proffer letters was unreasonable. She therefore

has failed to show that her counsel was ineffective or that she was prejudiced by her

counsel’s actions with regard to the proffer letter.

                  2. Downward Variance

       Ms. Montoya argues that her counsel was ineffective because he “failed to move

for a variance pursuant to the provisions of 18 U.S.C. [§ 3553(a)].” Motion for COA at

11. She concedes that her counsel “introduced a partial argument for a variance in

sentencing to 78 months” but contends that counsel “did not present any foundational

materials or information” to support that argument. Id. She alleges that her attorney

seemed unprepared. She contends that had her attorney offered more support for the

variance, the judge likely would have granted it. She argues her counsel failed to present
                                                -6-
her lack of previous criminal history, her stable marriage and family life, and the low

probability of recidivism or harm to others.

       At sentencing, Ms. Montoya’s counsel argued that she should receive a downward

variance because she played a minimal role in the drug transaction and did not actually

know how much methamphetamine was involved. He also explained that she should

receive leniency because her minimal involvement meant that she was unable to provide

the Government with information that would qualify for the § 5K1.1 sentencing

reduction. The sentencing court stated that it considered the § 3553(a) factors and

commented on Ms. Montoya’s lack of criminal history and her stable family situation.

       Ms. Montoya has failed to show that her counsel’s actions in requesting the

downward variance were unreasonable or that, had her counsel provided additional

argument or support for the downward variance, the district court’s sentencing

determination would have changed. This is reflected in the sentencing court’s

acknowledgment of her clean record and stable family. Ms. Montoya therefore has failed

to show that she was prejudiced by her counsel’s ineffectiveness with regard to her

argument for a downward variance.

                 3. Appeal

       Finally, Ms. Montoya contends that her counsel denied her the opportunity to

appeal after sentencing. But she does not explain what arguments, other than the

ineffective assistance of counsel claims brought in her § 2255 motion, she would have

brought had she appealed her sentence. This court has held that “[i]neffective assistance
                                               -7-
of counsel claims should be brought in collateral proceedings, not on direct appeal.”

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Ineffective assistance of

counsel claims brought on direct appeal are “presumptively dismissible, and virtually all

will be dismissed.” Id.; see, e.g., United States v. Coleman, 9 F.3d 1480, 1487 (10th Cir.

1993).

                                           *         *   *

         We conclude that reasonable jurists could not debate the correctness of the district

court’s decisions on any of Ms. Montoya’s ineffective assistance of counsel claims. We

therefore deny a COA on these issues.

                                   III.   CONCLUSION

         For the foregoing reasons, we deny Ms. Montoya’s request for a COA, deny her

motion for leave to proceed in forma pauperis, and dismiss this matter.

                                            ENTERED FOR THE COURT



                                            Scott M. Matheson, Jr.
                                            Circuit Judge




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