UNITED STATES COURT OF APPEALS TENTH CIRCUIT

LORENZO S. MONTEZ, Petitioner–Appellant,

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

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and EBEL , Circuit Judges.

Lorenzo S. Montez, a state prisoner proc eeding pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s summary judg ment 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 . . . FILED United States Court of Appeals Tenth Circuit 

### July 27, 2011
Elisabeth A. Shumaker Clerk of Court- 2 - After the mother and her boyfriend administ ered some rough justice, police officers arrived and arrested the bruised and bloodied Montez. He was charged in Wyoming state court with one count of ma rijuana possession and two counts of taking immodest, immoral, or indecent liberties with a minor. A ju ry convicted him on all three counts. Asserting eight claims of ineffective assi stance 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 petiti on 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, agre e that) the [§ 2254] petition should have been resolv ed 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 St ate court shall be presumed to be correct” unless a habeas petitioner “rebut[s] the presumption of corr ectness by clear and convincing evidence.” 28 U. S.C. § 2254(e)(1). Montez does not disagree with the Wyoming state courts’ ve rsion 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).- 3 - 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 “c ontrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United Stat es,” or was “based on an un reasonable determination of the facts in light of the evid ence presented in the State cour t 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 sh all be presumed to be correct,” and Montez has “the burden of rebutting the presump tion of correctness by clear and convincing evidence.” § 2254(e)(1). Libe rally construing Montez’s pro se application for COA, as
we must, see Haines v. Kerner , 404 U.S. 519, 520-21 (19 72), we discern nine claims.
III Montez filed an untitled pleadi ng in Wyoming federal dist rict court on January 25, 2010. Without elaboration, the district cour t construed it as a § 225 4 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 le ave to “prepare and file a proper Writ of Habeas Corpus.” Th e district court denied Montez’s request, construing it as a motion to am end his habeas petition under Fe d. 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 handli ng of his case, not a federal habeas claim, so the AEDPA standard of review does not apply.- 4 - threshold matter on appeal, Mont ez asserts that this was erro r, and asks us to remand his case to the district court to allow him “t o 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 “fre ely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), we conc lude that the district court did not abuse its discretion. Montez’s January 25, 2010, filing doe s not specifically request habeas relief. But it asserts ineffective assistance of tria l 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 f iled another motion specifically calling the January 25, 2010, filing a “letter on ine ffective assistance” and discussing “post conviction relief.” The distri ct 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 de ference 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 pr ovide reasonably effective assistan ce because particular acts or- 5 - omissions of counsel fell outside the “wid e 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, 6 89-92 (1984). A After Montez was charged with violating Wy o. Stat. § 14-3-105 (2006) (repealed 2007), but before he was convicted, the statut e was repealed in favor of a new statutory scheme. Montez does not argue that his con duct would have been permissible under the new Wyoming laws. In fact, he adm its 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 argumen t. His contention is foreclosed by state law: “[i]f a statute is rep ealed or amended, the repeal or amendment does not affect pending actions, prosecutions or pr oceedings, civil or criminal.” Wyo. Stat. § 8-1-107.
B Montez also thinks his trial counsel shoul d have attacked the constitutionality of § 14-3-105. Interpreting his § 2254 petition lib erally, 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. Fo cusing on the statute’s use of the word- 6 - “knowingly,” he asserts that the word is ambiguous, and th erefore counsel should have invoked the rule of lenity desc ribed in United States v. Santos , 553 U.S. 507, 514 (2008). However, he scuttles his own argument by pointing to a Wyom ing 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 coun sel should have objected to certain testimony from the victims’ mother. To elicit information about the night of the crime, the government asked the mo ther 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 c onstituted 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- 7 - 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 ha beas 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 statut e which prohibited, in relevant part, “knowingly taking immodest, immoral or indece nt liberties with any child.” Wyo. Stat. § 14-3-105 (2006) (repealed 2 007). His trial counsel subm itted the following proposed jury instruction defining “knowingly”: “K nowing (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 inst ruction and Montez’s counsel did not object. Montez now claims that his counsel’s fa ilure to object constituted ineffective assistance. He asserts that “knowingly” is an element of the crime for which he was- 8 - convicted, and that without an instruction defining “knowi ngly,” his jury instructions were incomplete. But the Wyoming Suprem e Court has specifically considered and rejected this argument. See Schmidt , 29 P.3d at 83.
E Next, Montez claims his counsel was c onstitutionally 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 custom ary 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 no w wishes his counsel had made a Rule 29 motion, he does not carry his burden of esta blishing 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 iden tify 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 arrest ed. According to Montez, this was expert testimony, and his counsel shou ld have sought to have the officers qualified as experts- 9 - 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 defici encies 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 supp ort 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 th e district court acted properly in granting summary judgment. Accordingly, Montez’s application for COA is DENIED

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Entered for the Court

Carlos F. Lucero Circuit Judge