FILED

United States Court of Appeals

Tenth Circuit

January 2, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN DAVID MONTAGUE,

Defendant-Appellant.

No. 07-4171

(D.C. No. 2:06-CV-878-DAK)

(D. Utah)

ORDER DENYING A CERTIFICATE

OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Steven David Montague, 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 motion. For substantially the same reasons as set forth by the

district court, we DENY a COA and DISMISS the appeal. 

On March 3, 2004, Montague pleaded guilty to possession of a controlled

substance in violation of 21 U.S.C. § 844(a). He was then convicted by a jury the

following day on three counts of possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). On June 17, 2004, Montague was sentenced

to 110 months’ imprisonment and 36 months’ supervised release for the three
1

 Montague’s wife had testified before the grand jury, but refused to testify

at trial, invoking the spousal privilege. The government sought to introduce her

grand jury testimony. After a brief evidentiary hearing, the district court

concluded that Montague had procured his wife’s unavailability as a trial witness,

based in part upon his history of domestic violence and several meetings he had

with his wife prior to trial.

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firearm possession counts, and to the same sentence for the drug possession

count, with both sentences to run concurrently.

Montague appealed his conviction and sentence to this court. With respect

to his conviction, he argued that the district court improperly admitted hearsay

evidence under the exception for forfeiture by wrongdoing.1

 United States v.

Montague, 421 F.3d 1099, 1101 (10th Cir. 2005). We upheld the district court’s

evidentiary ruling and affirmed his conviction, but vacated his sentence and

remanded for resentencing in light of United States v. Booker, 543 U.S. 220

(2005).

On November 3, 2005, the district court resentenced Montague to the same

term of imprisonment. Montague filed a § 2255 motion on October 12, 2006,

alleging ineffective assistance of counsel, denial of a speedy trial, vindictive

prosecution, and prosecutorial misconduct. The district court denied the motion,

concluding that Montague’s claims had been decided in the prior appeal, were

time barred, or had not been properly raised on direct appeal. Moreover, the

court noted that Montague had not challenged the conviction to which he had

pleaded guilty and which carried the same sentence as the other charges. Thus,
2

 A petitioner may not appeal the denial of habeas relief under § 2255

without 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 Montague 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 did not rule on

whether to grant a COA, we assume it was denied. 10th Cir. R. 22.1(C). 

Accordingly, Montague may not appeal the district court’s decision absent a grant

of a COA by this court. 

3

 The district court stated only that “many of [Montague’s] current claims

are time-barred, as they fall outside the one-year statute of limitations.” The

(continued...)

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the district court concluded, even if the court found merit in his claims, his

sentence would not change. Montague then filed this timely appeal and request

for COA.2

On appeal, Montague raises five grounds for a grant of COA: (1) The

district court erred in finding that some of his claims were time barred; (2)

Montague’s sentence exceeded the statutory maximum; (3) Trial and appellate

counsel were ineffective by failing to argue that possession of multiple firearms

comprised only one offense; (4) The district court erred in failing to review the

evidentiary ruling again; and (5) cumulative error.

As to his first claim, Montague argues that he filed his § 2255 motion on

October 12, 2006, less than one year after he was resentenced, and thus his

motion was timely under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”).3

 AEDPA’s one-year period of limitation begins to run from the date
3

(...continued)

court did not clarify which claims were time barred, nor did it provide a citation

to the applicable statute of limitations. We interpret this statement as a reference

to AEDPA.

4

 Montague did not file a petition for a writ of certiorari, and thus we only

consider the date on which his time for filing expired.

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on which the judgment of conviction becomes final. 28 U.S.C. § 2255. A

judgment of conviction becomes final when the time for filing a certiorari petition

with the Supreme Court expires.4

 Clay v. United States, 537 U.S. 522, 527

(2003). Accordingly, Montague had 90 days from the entry of our judgment to

file a petition for certiorari. See Sup. Ct. R. 13(1). In this case, we entered

judgment on Montague’s conviction on July 18, 2005, and thus his conviction

became final on October 16, 2005. Because Montague filed his § 2255 motion

less than one year from that date, the district court erred in finding that his claims

were time barred under AEDPA. We conclude, however, that because none of

Montague’s other claims have merit, a grant of COA is not warranted.

Montague claims that under 21 U.S.C. § 844, he may not be sentenced to a

term of imprisonment greater than one year. Because Montague did not raise this

argument in his § 2255 motion before the district court, he has waived it. See

O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir. 1990). 

Moreover, 21 U.S.C. § 844 provides for a wide range of sentences, and Montague

has not provided any evidence or explanation as to why he should have received a

sentence of not more than one year under the statute.
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Regarding his ineffective assistance of counsel claim, Montague contends

that counsel should have argued that his three firearm possession charges be

grouped under U.S.S.G. § 3D1.2. In order to prevail on this claim, Montague

must show that his attorneys’ performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). We indulge a strong

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

professional assistance. Rogers v. United States, 91 F.3d 1388, 1392 (10th Cir.

1996).

Section 3D1.2 allows for “all counts involving substantially the same

harm” to be grouped together. In the context of firearm possession under 18

U.S.C. § 922, we have previously held that possession of firearms seized at the

same time should be treated as a single offense, absent some evidence that the

firearms were obtained at different times. United States v. Dunford, 148 F.3d

385, 389-90 (10th Cir. 1998); United States v. Valentine, 706 F.2d 282, 294 (10th

Cir. 1983). In his application for a COA, Montague asserts that the government

offered no evidence at trial regarding when or how the firearms were acquired. 

Montague did not, however, make this specific claim in his § 2255 motion; rather,

he asserted generally that the counts should have been grouped and provided no

explanation as to why. Although pro se pleadings must be construed liberally, the

district court is not obliged to “assume the role of advocate for the pro se
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litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In light of

Montague’s failure to offer either specific arguments to the district court or

factual support in the record for his contentions on appeal, we conclude that the

district court did not err in finding no merit to his ineffective assistance of

counsel claim.

In Montague’s fourth claim, he argues that in light of “new evidence,” the

district court should have reevaluated its decision to admit his wife’s grand jury

testimony. This evidence consists of a letter written by his wife on August 19,

2005, and addressed to the district court judge. His original § 2255 motion,

however, did not raise this contention as an independent argument. Rather, he

claimed that counsel was ineffective for failing to investigate, or renew a

challenge to, the government’s argument that Montague had procured the

unavailability of his wife’s testimony at trial. Because his wife’s letter post-dates

both the ruling at trial and our affirmation of the ruling on appeal, counsel could

only have raised this challenge on remand. Moreover, it appears that counsel did

investigate this “new evidence”: Prior to resentencing, counsel requested and

received a continuance from the district court to allow him to interview

Montague’s wife about the statements in her letter. We find no indication in the

record that counsel failed to respond to this new evidence adequately. 

Additionally, it is not clear how the contents of the letter would have altered the

district court’s evidentiary ruling. Because Montague has not shown either
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deficient performance or prejudice, we conclude that as presented, this issue did

not warrant further consideration by the district court. See Slack, 529 U.S. at

484. 

Finally, appellee advances the cumulative effect of counsel’s errors as

prejudicial to his defense. Because we conclude that counsel was not ineffective,

this last argument is also without merit.

Accordingly, Montague’s request for COA is DENIED and his appeal is

DISMISSED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge