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

                                    TENTH CIRCUIT                            July 27, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 LORENZO S. MONTEZ,

           Petitioner–Appellant,

 v.                                                           No. 11-8022
                                                     (D.C. No. 2:10-CV-00017-ABJ)
 STATE OF WYOMING,                                              (D. Wyo.)

           Respondent–Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, GORSUCH, and EBEL, Circuit Judges.


       Lorenzo S. Montez, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s summary judgment order disposing

of his 28 U.S.C. § 2254 habeas petition. We deny Montez’s application for COA.

                                              I

       On the night of March 10, 2007, Montez’s friend discovered Montez, naked from

the waist down and sexually aroused, in bed with the friend’s children.1 She called 911.


       *
         This order is not binding precedent except under the doctrines of law of the case,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
           Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
                                                                            Continued . . .
After the mother and her boyfriend administered some rough justice, police officers

arrived and arrested the bruised and bloodied Montez. He was charged in Wyoming state

court with one count of marijuana possession and two counts of taking immodest,

immoral, or indecent liberties with a minor. A jury convicted him on all three counts.

       Asserting eight claims of ineffective assistance of trial counsel, Montez appealed

to the Wyoming Supreme Court, which affirmed his conviction. See Montez, 201 P.3d at

436. He then filed a timely, untitled petition for “post conviction relief” in the United

States District Court for the District of Wyoming, a petition which the district court

construed as a § 2254 habeas application. The government moved for summary

judgment, and the district court granted the motion. Montez now seeks to appeal.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, Montez must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the [§ 2254]

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) (quotations omitted).

“a determination of a factual issue made by a State court shall be presumed to be correct”
unless a habeas petitioner “rebut[s] the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Montez does not disagree with the
Wyoming state courts’ version of the facts of this case; we therefore recite the facts as
described in Montez v. State, 201 P.3d 434, 437-42 (Wyo. 2009).


                                            -2-
       All of the arguments for federal habeas relief Montez presents in his § 2254

petition were decided on the merits in state court.2 Accordingly, for Montez’s petition to

succeed, he must establish that the state court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(1)-

(2); see Turrentine v. Mullin, 390 F.3d 1181, 1188 (10th Cir. 2004). Any “determination

of a factual issue made by [the] State court shall be presumed to be correct,” and Montez

has “the burden of rebutting the presumption of correctness by clear and convincing

evidence.” § 2254(e)(1). Liberally construing Montez’s pro se application for COA, as

we must, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we discern nine claims.

                                             III

       Montez filed an untitled pleading in Wyoming federal district court on January 25,

2010. Without elaboration, the district court construed it as a § 2254 habeas petition. In

response to the government’s motion for summary judgment, Montez asserted that the

January 25 motion was not actually a habeas petition, and sought leave to “prepare and

file a proper Writ of Habeas Corpus.” The district court denied Montez’s request,

construing it as a motion to amend his habeas petition under Fed. R. Civ. P. 15. As a

       2
        Montez’s first claim, addressed in Section III, infra, advances a procedural
argument relating to the district court’s handling of his case, not a federal habeas claim,
so the AEDPA standard of review does not apply.


                                            -3-
threshold matter on appeal, Montez asserts that this was error, and asks us to remand his

case to the district court to allow him “to investigate and develop his claims.”

       We review the denial of a motion to amend a habeas petition for abuse of

discretion. See United States v. Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000).

Although Rule 15 provides that leave to amend should be “freely give[n] . . . when justice

so requires,” Fed. R. Civ. P. 15(a)(2), we conclude that the district court did not abuse its

discretion. Montez’s January 25, 2010, filing does not specifically request habeas relief.

But it asserts ineffective assistance of trial counsel, and argues that “a post conviction

should be granted.” Montez’s so-called motion to amend filed February 18, 2011—

nearly ten months late under the district court’s local rules—does not assert any new

claims. And in the meantime, Montez had filed another motion specifically calling the

January 25, 2010, filing a “letter on ineffective assistance” and discussing “post

conviction relief.” The district court’s ruling was proper.

                                             IV

       The remainder of Montez’s petition asserts a plethora of reasons his trial counsel

was constitutionally ineffective. “Claims of ineffective assistance of counsel raise mixed

questions of law and fact” and are reviewed de novo, granting deference to underlying

findings of fact. Miller v. Champion, 262 F.3d 1066, 1071 (10th Cir. 2001). To prevail

on his ineffective assistance claims, Montez bears the burden of proving that: (1) his

counsel failed to provide reasonably effective assistance because particular acts or


                                             -4-
omissions of counsel fell outside the “wide range” of reasonably competent assistance

demanded of attorneys practicing criminal law; and (2) the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-92 (1984).

                                               A

       After Montez was charged with violating Wyo. Stat. § 14-3-105 (2006) (repealed

2007), but before he was convicted, the statute was repealed in favor of a new statutory

scheme. Montez does not argue that his conduct would have been permissible under the

new Wyoming laws. In fact, he admits that the new laws impose a higher maximum

sentence. Instead, Montez argues that § 14-3-105 “was not functioning . . . at the time of

trial,” that his conviction was therefore per se invalid, and his trial counsel was

ineffective for failing to advance that argument. His contention is foreclosed by state

law: “[i]f a statute is repealed or amended, the repeal or amendment does not affect

pending actions, prosecutions or proceedings, civil or criminal.” Wyo. Stat. § 8-1-107.

                                               B

       Montez also thinks his trial counsel should have attacked the constitutionality of

§ 14-3-105. Interpreting his § 2254 petition liberally, he appears to claim the statute is

void for vagueness. Yet he also recognizes that “the Wyoming Supreme Court has a long

line of cases stating that . . . § 14-3-105 is not constitutionally vague ‘on its face.’”

Montez therefore argues that his counsel should have challenged the statute as

unconstitutional as applied to his case. Focusing on the statute’s use of the word


                                              -5-
“knowingly,” he asserts that the word is ambiguous, and therefore counsel should have

invoked the rule of lenity described in United States v. Santos, 553 U.S. 507, 514 (2008).

However, he scuttles his own argument by pointing to a Wyoming Supreme Court

decision directly holding that “knowingly,” as used in § 14-3-105, “has no technical

meaning under the law . . . different from its ordinary meaning.” Schmidt v. State, 29

P.3d 76, 83 (Wyo. 2001).

                                            C

      Next, Montez asserts that his trial counsel should have objected to certain

testimony from the victims’ mother. To elicit information about the night of the crime,

the government asked the mother the following questions:

      Q. So you get in the car with [Boyfriend] to take him to his parents’s [sic]
         house after the argument. How far did you and [Boyfriend] make it
         with respect to taking him to his parents’s [sic] house?

      A. A few blocks.

      Q. Then what happened?

      A. [Boyfriend] said that I shouldn’t leave the kids alone with Montez
         because he’s a rapist.

According to Montez, the statement that he is “a rapist” was “prejudicial testimony

designed to inflame the jury,” and also constituted hearsay. Montez appears to be

arguing that his counsel should have objected to the statement under Wyo. R. Evid. 403,

which governs unfair prejudice, and Wyo. R. Evid. 801, governing hearsay.

      As the Wyoming Supreme Court correctly concluded, the statement was not

                                           -6-
hearsay. It was introduced to show its effect upon the person who heard it, not for the

truth of the matter asserted. And although neither the Wyoming Supreme Court nor the

district court addressed Montez’s Wyo. R. Evid. 403 argument, to prevail on his

ineffective assistance claim he must prove that his counsel’s failure to object prejudiced

his defense. See Strickland, 466 U.S. at 689-92. Montez’s bald assertions that he “did

suffer prejudice” are not enough to entitle him to habeas relief, particularly in light of his

own trial testimony that “I just did ten years in the state penitentiary because of rape.”

       Montez also argues that his trial counsel should have moved for a mistrial based

on the same testimony, a contention that fails for the same reasons.

                                              D

       Montez was convicted under a Wyoming statute which prohibited, in relevant part,

“knowingly taking immodest, immoral or indecent liberties with any child.” Wyo. Stat.

§ 14-3-105 (2006) (repealed 2007). His trial counsel submitted the following proposed

jury instruction defining “knowingly”: “Knowing (knowingly) means to have or show

awareness or understanding of (an action), to be well informed, and/or a deliberate;

conscious (act).” After the state objected that such an instruction would turn § 14-3-105

into a specific intent crime, the trial court refused the instruction and Montez’s counsel

did not object.

       Montez now claims that his counsel’s failure to object constituted ineffective

assistance. He asserts that “knowingly” is an element of the crime for which he was


                                             -7-
convicted, and that without an instruction defining “knowingly,” his jury instructions

were incomplete. But the Wyoming Supreme Court has specifically considered and

rejected this argument. See Schmidt, 29 P.3d at 83.

                                              E

       Next, Montez claims his counsel was constitutionally ineffective for failing to

move for acquittal under Wyo. R. Crim. P. 29 at the close of the government’s evidence.

Montez might be right that “[i]t is customary for defense counsel to make a Rule 29

Motion.” But he also correctly cites Harlow v. State, 105 P.3d 1049, 1071 (Wyo. 2005),

for the proposition that “[c]ounsel is not ineffective for failing to file a motion that would

not have been granted.” Although Montez now wishes his counsel had made a Rule 29

motion, he does not carry his burden of establishing that such a motion had a reasonable

probability of being granted. In fact, he admits that “[g]iven the evidence as presented,

counsel may have not been able to prevail on a Rule 29 motion.”

                                              F

       Montez’s penultimate assertion of ineffective assistance relates to the testimony of

two police officers involved in his arrest. Officer Michael Morrow testified that his

training and experience enabled him to identify Montez’s marijuana. Officer Justin

Johnson similarly provided his “opinion as to [Montez] being under the present influence

of drug or alcohol” on the night he was arrested. According to Montez, this was expert

testimony, and his counsel should have sought to have the officers qualified as experts


                                             -8-
and requested a Daubert hearing to test the reliability of their testimony. Montez does not

explain how either officer’s testimony prejudiced him, and consequently fails to show

that his counsel was ineffective for failing to object.

                                              G

       Finally, Montez argues the foregoing deficiencies by his trial counsel constituted

“cumulative error.” However, he admits that “[a] claim of cumulative error cannot be

recognized when there is no underlying error to support it.” Because none of Montez’s

individual claims of ineffective assistance are successful, taken together they cannot

constitute cumulative error.

                                              V

       No reasonable jurist could dispute that the district court acted properly in granting

summary judgment. Accordingly, Montez’s application for COA is DENIED.



                                                          Entered for the Court



                                                          Carlos F. Lucero
                                                          Circuit Judge




                                             -9-
