UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LINDA J. MONTOYA, Defendant - Appellant. No. 12-8068 (D.C. Nos. 1:10-C R-00206-NDF-2 & 2:12-CV-00036-NDF) (D. Wyo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before KELLY , HOLMES , and MATHESON , Circuit Judges.
Linda Montoya, a federal pr isoner appearing pro se, 1 seeks a certificate of appealability (“COA”) to challenge the distri ct court’s order denying her 28 U.S.C. § 2255 motion to vacate, set asid e, or correct her sentence. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal a “f inal order in a proceeding under section * This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collateral estoppel.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. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Because Ms. Montoya is pr oceeding pro se, we construe her pleadings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also United States v. Pinson , 584 F.3d 972, 975 (10th Ci r. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction st ops, however, at the point at which we begin to serve as his advocate.”). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court-2- 2255”). Ms. Montoya also seeks leave to proceed in forma pauperis . Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we deny both requests and dismiss this matter.
I. BACKGROUND In 2011, Ms. Montoya pled guilty to cons piracy to traffic methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. As part of her plea agreement, the Government dismissed an additional ch arge against her, recommended a three-level reduction in her offense-level calculation unde r the United States Se ntencing Guidelines (the “Guidelines”) for her acceptance of responsibility, and recommended a sentence at the low end of the Guidelines range. Ms. Montoya’s pres entence investigation report (“PSR”) incorporated the three-level reducti on for acceptance of responsibility. The PSR also subtracted two offense levels from her base offense level because Ms. Montoya met the requirements for “safety valve” senten cing. This brought Ms. Montoya’s total offense level to 31 in the PSR. At sentencing, neither party objected to the PSR’s calculations, but Ms. Montoya requested a further downward departure. Through counsel, Ms. Montoya complained that the Government would not recommend a reduction under U.S. S.G. § 5K1.1 for substantial assistance in its investigation beca use it was not interested in the information she could provide. She argued that this punish ed her for being a minor player in the drug conspiracy. The court considered and de nied this request for a further downward departure and sentenced Ms. Mont oya to 108 months in prison, five years of supervised release, no fine, and the forfeiture of $5, 000 in drug proceeds. Ms. Montoya did not-3- appeal her conviction or sentence. On February 16, 2012, Ms. Montoya file d a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. From Ms. Montoya’s § 2255 motion, the district court identified five claims of ine ffective assistance of counsel. The court rejected these claims, explaining that sh e did not demonstrate that her attorney’s performance was unreasonable and that she was prejudiced, as required by Strickland v. Washington , 466 U.S. 668 (1984). On July 30, 2012 , the district court denied her § 2255 motion and concluded she was not entitled to a COA.
II. DISCUSSION Ms. Montoya now seeks a COA to challenge the district court’s order denying her § 2255 motion. “The issuance of a COA is a ju risdictional prerequisite to an appeal from the denial of an issue rais ed in a § 2255 motion.” United States v. Gonzalez , 596 F.3d 1228, 1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, Ms. Montoya must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). A prisoner may make a “substantial showing of the denial of a constitutional right” by “showing that reasonable jurists could debate whether . . . the [motion] should have been resolved in a different manner or that the issues presente d were adequate to deserve encouragement to proceed further.” Slack , 529 U.S. at 484 (quotations omitted). Ms. Montoya makes two arguments in her COA application. First, she argues that the district court erred when it denied her § 2255 motion without an evidentiary hearing.-4- Second, she argues that her counsel was inef fective. Of the five reasons she argued before the district court, she requests a COA on three of them. 2
A. Evidentiary Hearing Ms. Montoya first argues that the dist rict court should have given her an opportunity to develop background facts rela ted to her claims through an evidentiary hearing. But she failed to expl ain in the district court and fails to explain in her motion for COA what the evidentiary hearing would entail or how such a hearing would have affected the district court’s ru ling on her § 2255 motion. “District courts are not required to hold ev identiary hearings in collateral attacks without a firm idea of what the testim ony will encompass and how it will support a movant’s claim.” United States v. Cervini , 379 F.3d 987, 994 (10th Cir. 2004). Reasonable jurists could not debate the correctne ss of the district court’s decision on her evidentiary hearing claim. We th erefore deny a COA on this issue.
B. Ineffective Assistance of Counsel Ms. Montoya next argues that her counse l was ineffective at three points in her proceeding: (1) failing to submit her pro ffer letter to obtain substantial assistance consideration from the Government; (2) fa iling to present evid ence to support a downward variance at sentencing; and (3) refusing to file a direct appeal.

2 Apart from the evidentiary hearing and in effective assistance of counsel claims, Ms. Montoya identifies two additional issues in her statement of issues. We do not address these issues, as neither is briefed in her motion for COA and neither is applicable to her case.-5- To establish a claim of ineffective assistan ce of counsel, a movant must show both (1) constitutionally deficient pe rformance and (2) resulting prej udice, i.e., “a reasonable probability that, but fo r counsel’s unprofessional errors , the result of the proceeding would have been different.” Strickland , 466 U.S. at 687, 694. If the applicant is unable to show either “deficient performance” or “sufficient prejudice,” the ineffective assistance claim fails. Hooks v. Workman , 606 F.3d 715, 724 (10th Cir. 2010). “[O]ur review of counsel’s perfo rmance under the first prong of Strickland is a highly deferential one.” Byrd v. Workman , 645 F.3d 1159, 1168 (10th Cir. 2011) (quotations omitted), cert. denied 132 S. Ct. 763 (2011). “[W]e indulge in a strong presumption that counsel’s conduct falls with in the wide range of reasonable professional assistance” and presume that counse l’s conduct is sound strategy. Welch v. Workman , 639 F.3d 980, 1010 (10th Cir. 2011) (quotations omitted), cert. denied 132 S. Ct. 292 (2011). “To be deficient, the pe rformance must be outside the wide range of professionally competent assistan ce. . . . [I]t must have b een completely unreasonable, not merely wrong.” Hooks , 606 F.3d at 723 (citation omitted) (quotations omitted). 1. Plea Agreement and Proffer Ms. Montoya contends that her counsel denied her the oppo rtunity to proffer substantial assistance to th e government that would have resulted in an additional Guidelines level reduction unde r § 5K1.1. She alleges that she did not receive the downward departure “because she did not [p ]roffer quickly enough,” and accuses her counsel of effectively denyin g her the opportunity to pro ffer by delaying the sending of-6- the proffer letter. Motion for COA at 10. At sentencing, however, c ounsel explained that Ms. Montoya actually submitted multiple proffer letters, but the Government was not interested in the information provided. Neither Ms. Montoy a, her counsel, nor the Government, mentioned that the proffer letters were submitted too late. At the sentencing hearing, Ms. Montoya did not dispute any of the representations made about the proffers or ask the court or her counsel any questions related to the proffer letters. Although Ms. Montoya claims her counsel de nied her the opportun ity to proffer in a timely manner, the record shows that she did timely proffer. She failed to establish in her § 2255 proceeding before the district c ourt or in her motion for COA any basis for finding that her counsel’s treatment of the pr offer letters was unreasonable. She therefore has failed to show that her counsel was ine ffective or that she was prejudiced by her counsel’s actions with rega rd to the proffer letter. 2. Downward Variance Ms. Montoya argues that her counsel was ineffective because he “failed to move for a variance pursuant to the provisions of 18 U.S.C. [§ 3553(a)].” Motion for COA at 11. She concedes that her counsel “intro duced a partial argument for a variance in sentencing to 78 months” but contends that counsel “did not present any foundational materials or information” to support that argument. Id. She alleges that her attorney seemed unprepared. She contends that had her attorney offered more support for the variance, the judge likely would have granted it. She argues her counsel failed to present-7- her lack of previous criminal history, her stable marriage and family life, and the low probability of recidivism or harm to others. At sentencing, Ms. Montoya’s counsel ar gued that she should receive a downward variance because she played a minimal role in the drug transaction and did not actually know how much methamphetami ne was involved. He also explained that she should receive leniency because her minimal involve ment meant that she was unable to provide the Government with information that would qualify for the § 5K1.1 sentencing reduction. The sentencing court stated that it considered the § 3553(a) factors and commented on Ms. Montoya’s lack of criminal hi story and her stable fa mily situation. Ms. Montoya has failed to show that he r counsel’s actions in requesting the downward variance were unreasonable or that, had her counsel provided additional argument or support for the downward vari ance, the district court’s sentencing determination would have changed. This is reflected in the sentencing court’s acknowledgment of her clean record and stable family. Ms. Montoy a therefore has failed to show that she was prejudiced by her coun sel’s ineffectiveness with regard to her argument for a downward variance. 3. Appeal Finally, Ms. Montoya contends that her counsel denied her the opportunity to appeal after sentencing. But she does not explain what arguments, other than the ineffective assistance of counsel claims brou ght in her § 2255 mo tion, she would have brought had she appealed her sentence. This court has held that “[i]neffective assistance-8- of counsel claims shoul d be brought in collateral proceedi ngs, not on direct appeal.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 19 95). Ineffective assistance of counsel claims brought on direct appeal are “presumptively dismissible, and virtually all will be dismissed.” Id. ; see , e.g. , United States v. Coleman , 9 F.3d 1480, 1487 (10th Cir. 1993).
* * * We conclude that reasonable jurists could not debate the correctness of the district court’s decisions on any of Ms. Montoya’s ine ffective assistance of counsel claims. We therefore deny a COA on these issues.
III. CONCLUSION For the foregoing reasons, we deny Ms. Montoya’s request for a COA, deny her motion for leave to proceed in forma pauperis , and dismiss this matter.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge