                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                        October 25, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 05-2104
                                               (D.C. No. CV-05-0079 LH/DJS)
 LORENZO MONTANA,                                         (D. N.M.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Lorenzo Montana, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2255 petition. He argued below and on appeal that his sentence was

imposed in violation of the Supreme Court’s ruling in United States v. Booker,

125 S. Ct. 738 (2005), and that his trial counsel rendered ineffective assistance.



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
We DENY Montana’s request for a COA on his Booker claim. Because the

district court did not rule on Montana’s ineffective assistance claim, we GRANT

a COA on that issue and REMAND for the district court to determine whether

Montana received ineffective assistance of counsel.

      After pleading guilty to bank robbery, in violation of 18 U.S.C. § 2113(a),

and receiving a two-level enhancement for obstruction of justice, Montana faced a

sentencing guidelines range of 77-96 months’ imprisonment. The court sentenced

him at the high end of the range to 96 months. In his § 2255 petition, Montana

attacked imposition of the obstruction of justice enhancement on Booker grounds,

and argued that he received ineffective assistance of counsel at the plea stage and

at sentencing. The district court dismissed his petition and denied a COA.

Montana now seeks a COA from this court, presenting the same arguments that he

presented below. 1


      1
         Montana’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2255
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(B). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Montana to show “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) (quotations omitted). Because the district court denied Montana a
                                                                        (continued...)

                                          2
      Montana seeks to challenge the court’s application of an obstruction of

justice enhancement, arguing that by increasing his sentence based on judge-found

facts, the court violated his Sixth Amendment rights under Booker. We have held,

however, that “Booker does not apply retroactively to initial habeas petitions.”

United States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005). Therefore,

Montana cannot bring this claim under § 2255.

      In addition to his Booker claim, Montana argued in his § 2255 petition that

“counsel denied him his sixth amendment right to effective assistance of counsel.”

Specifically, Montana alleged that “Petitioner’s attorney Mr. Charles S. Aspinwall,

appointed by the district court, told me not to proceed with the evidentiary hearing,

but rather expect to receive 81.5 months at sentencing; nervertheless [sic], I

received 96 months . . . .” Liberally construing the pro se petition, see Hall v.

Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), Montana argued that but for

counsel’s statement that Montana was likely to receive an 81.5 month sentence, he

would not have withdrawn his objections to the pre-sentence report or agreed to

plead guilty. Montana further asserted as a basis of ineffective assistance that his

counsel failed to investigate the factual allegations surrounding the obstruction of

justice enhancement. The district court did not rule on the ineffective assistance


      1
       (...continued)
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

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claim, but instead dismissed Montana’s § 2255 petition after concluding that

Booker claims may not be raised in collateral proceedings.

      In his application below for a COA, Montana elaborated on his ineffective

assistance of counsel claim, alleging that he “was coerced to withdraw his

objections to the PSR . . . when [Montana’s] attorney Mr. Charles Aspinwall, told

[Montana] that he would be sentenced to the maximum of 96 months if Movant did

not withdraw from his objections [but if he did withdraw] Movant would typically

be sentenced in the middle of the USSG which would mean 81.5 months.”

Montana attached to his application for COA below a letter from his trial counsel,

which states that by pleading guilty, Montana would receive a three-point

reduction for acceptance of responsibility, which “lowers your incarceration

exposure range to 77-96 months. Judges typically sentence in the middle of the

USSG, which would mean 81.5 months in your case.” 2 The application for COA

also alleges ineffective assistance “because counsel failed to perform any pretrial

investigation into the PSR, which resulted in the 2 levels of increase . . . .” In

denying a COA, the district court once again did not discuss Montana’s ineffective



      2
        Although Montana does not assert this as an example of ineffectiveness, it
has not escaped our attention that counsel’s simple calculation is incorrect. The
mid-point of a 77-96 month range is 86.5 not 81.5 months. Given Montana’s
allegation that counsel’s representation of a likely sentence persuaded him to
withdraw his objection to the PSR and to plead guilty, counsel’s innumeracy is
troubling.

                                           4
assistance of counsel argument, but merely stated that “Montana failed to make a

substantial showing of denial of a constitutional right.”

      When ruling on an application for a COA, we do not decide the merits of a

constitutional claim, but rather determine whether “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

different manner . . . .” Slack, 529 U.S. at 484. Given Montana’s clearly-stated

allegations of ineffective assistance, his petition should have been resolved with

discussion and disposition of his ineffective assistance of counsel claim.

      We have held that “[i]neffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal. Such claims brought on

direct appeal are presumptively dismissible, and virtually all will be dismissed.”

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Our

jurisprudence establishes § 2255 petitions as the favored avenue of relief for

federal prisoners asserting ineffective assistance of counsel claims. United States

v. Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998) (“Normally, we require

criminal defendants alleging ineffective assistance of counsel to obtain a ruling by

a district court on their argument by way of a motion pursuant to 28 U.S.C.

§ 2255.”). Therefore, when raised in a § 2255 petition, an ineffective assistance of

counsel claim deserves the district court’s careful attention. At the very least, it

merits factfinding and a ruling. The court’s failure to rule on Montana’s claim of


                                          5
ineffective assistance of counsel justifies granting him a COA on that issue.

      Where an issue has been raised below, but not ruled on, proper judicial

administration generally favors remand for the district court to examine the issue

initially. See, e.g., Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the

general rule, of course, that a federal appellate court does not consider an issue not

passed upon below.”); In re R. Eric Peterson Constr. Co., Inc., 951 F.2d 1175,

1182 (10th Cir. 1991) (“The district court never reached this issue . . . . We

therefore remand this issue to the district court”). Fact-intensive issues such as

ineffective assistance of counsel particularly require initial disposition by the

district court. See Massaro v. United States, 538 U.S. 500, 505 (2003) (“Under the

rule we adopt today, ineffective-assistance claims ordinarily will be litigated in the

first instance in the district court, the forum best suited to developing the facts

necessary to determining the adequacy of representation”). As the Supreme Court

explained, when presenting ineffective assistance of counsel claims to the district

court in a § 2255 proceeding, “the defendant has a full opportunity to prove facts

establishing ineffectiveness of counsel, the government has a full opportunity to

present evidence to the contrary, the district court hears spoken words we can see

only in print and sees expressions we will never see, and a factual record bearing

precisely on the issue is created.” Id. (quotation omitted). For these reasons, we

must remand to the district court.


                                           6
      We do not express any opinion on the merits of Montana’s ineffective

assistance of counsel claim, but merely hold that the district court should have

considered it and ruled upon it, and that we will not do so in the first instance. We

therefore GRANT Montana’s application for a COA on his ineffective assistance

of counsel claim, REVERSE the district court’s judgment, and REMAND to the

district court for proceedings in accordance with this opinion. We DENY

Montana’s application for a COA on his Booker claim and GRANT Montana’s

motion to proceed in forma pauperis.

                                              ENTERED FOR THE COURT


                                              Carlos F. Lucero
                                              Circuit Judge




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