                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     February 8, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-5135
          v.                                           (N.D. Oklahoma)
 DARRYL E. MONTGOMERY,                        (D.C. No. CV-04-354-TCK-FHM)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      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.

      In this pro se 28 U.S.C. § 2255 action, Darryl E. Montgomery seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his

§ 2255 petition. Montgomery, while in prison serving a life term for first degree


      *
        This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
murder, pled guilty to one count of conspiracy to file false tax returns. He argues

he should be permitted to withdraw his guilty plea because his counsel was

ineffective in connection with the entry of his plea and on direct appeal. We deny

his request for a COA and dismiss this appeal.

      As indicated, while Montgomery was in state prison serving a life term, he

conspired with several other people to file false income tax returns on behalf of

other inmates without their knowledge or consent in order to receive those

inmates’ tax refunds. The indictment against him alleged a conspiracy between

the dates of July 1, 1995, and February 13, 1999. Montgomery pled guilty to a

single count of conspiracy to file false tax returns for the years 1995 and 1996, in

violation of 18 U.S.C. § 286. He also stipulated to a total intended loss to the

government of $922,504.

      Montgomery thereafter filed a motion to withdraw his guilty plea, alleging,

inter alia, that his plea was coerced and therefore involuntary. He also filed a

motion to disqualify the district court judge. The district court denied

Montgomery’s motions to disqualify and to withdraw his guilty plea, and

thereafter overruled Montgomery’s objections to the Presentence Report (“PSR”),

granted the government’s motion for an upward departure under the United States

Sentencing Commission, Guidelines Manual (“USSG”), and sentenced

Montgomery to 120 months’ imprisonment, to be served consecutively to his life




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term of imprisonment. The court also imposed restitution for the actual loss to

the government of $50,912.

      Montgomery filed a direct appeal, challenging the denial of his motion to

disqualify, the upward departure and the failure to make written findings

concerning his objections to the PSR. This court affirmed his sentence, but

remanded for the ministerial purpose of having the district court reduce to writing

its findings regarding Montgomery’s objections to the PSR. See Fed. R. Crim. P.

32. Montgomery then filed this § 2255 petition. 1

      To obtain a COA, Montgomery must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. 2253(c)(2). In order to meet this

burden, he must demonstrate “that reasonable jurists could debate whether (or, 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).


      1
        Montgomery actually filed a request for a COA, without an accompanying
brief, which we construed as his opening brief. He then filed an opening brief,
which we construed as a request to file a supplemental brief, which has been
submitted to us for our decision. We grant Montgomery’s motion to file a
supplemental brief. Although Montgomery has also filed a motion for leave to
proceed on appeal in forma pauperis, that motion is moot. The district court
previously determined that Montgomery was financially unable to obtain adequate
defense counsel and the court appointed counsel to represent him in his criminal
case. Accordingly, pursuant to Fed. R. App. P. 24(a), he may proceed on appeal
in forma pauperis without a redetermination of indigence or further authorization.

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      We have carefully reviewed Montgomery’s pleadings, the district court’s

disposition and the record on appeal. Nothing in the facts, the record on appeal,

or Montgomery’s filings raises an issue which meets our standard for the grant of

a COA. For substantially the reasons set forth by the district court, we DENY

Montgomery’s request for a COA and DISMISS this appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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