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-CR-00206-NDF-2 & 

 2:12-CV-00036-NDF)

(D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, HOLMES, and MATHESON, Circuit Judges. 

Linda Montoya, a federal prisoner appearing pro se,1

 seeks a certificate of 

appealability (“COA”) to challenge the district court’s order denying her 28 U.S.C. 

§ 2255 motion to vacate, set aside, or correct her sentence. See 28 U.S.C. 

§ 2253(c)(1)(B) (requiring a COA to appeal a “final order in a proceeding under section 

 

* This order is not binding precedent, except under the doctrines of law of the 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

 Because Ms. Montoya is proceeding 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 Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments 

liberally; this rule of liberal construction stops, however, at the point at which we begin 

to serve as his advocate.”). 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 13, 2013

Elisabeth A. Shumaker 

Clerk of Court
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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 conspiracy 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 charge against her, recommended a three-level 

reduction in her offense-level calculation under the United States Sentencing Guidelines 

(the “Guidelines”) for her acceptance of responsibility, and recommended a sentence at 

the low end of the Guidelines range. Ms. Montoya’s presentence investigation report 

(“PSR”) incorporated the three-level reduction 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” sentencing. 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 because it was not interested in the information 

she could provide. She argued that this punished her for being a minor player in the drug 

conspiracy. The court considered and denied this request for a further downward 

departure and sentenced Ms. Montoya 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 
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appeal her conviction or sentence. 

On February 16, 2012, Ms. Montoya filed 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 ineffective assistance of counsel. The court 

rejected these claims, explaining that she 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 jurisdictional prerequisite to an appeal from 

the denial of an issue raised 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 presented 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. 
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Second, she argues that her counsel was ineffective. 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 district court should have given her an 

opportunity to develop background facts related to her claims through an evidentiary 

hearing. But she failed to explain 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 ruling on her § 2255 motion. 

“District courts are not required to hold evidentiary hearings in collateral attacks 

without a firm idea of what the testimony 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 correctness of the district court’s decision on her 

evidentiary hearing claim. We therefore deny a COA on this issue. 

B. Ineffective Assistance of Counsel 

Ms. Montoya next argues that her counsel was ineffective at three points in her 

proceeding: (1) failing to submit her proffer letter to obtain substantial assistance 

consideration from the Government; (2) failing to present evidence to support a 

downward variance at sentencing; and (3) refusing to file a direct appeal. 

 2

 Apart from the evidentiary hearing and ineffective 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. 
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To establish a claim of ineffective assistance of counsel, a movant must show both 

(1) constitutionally deficient performance and (2) resulting prejudice, i.e., “a reasonable 

probability that, but for 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 performance 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 within the wide range of reasonable professional 

assistance” and presume that counsel’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 performance must be outside the wide range of 

professionally competent assistance. . . . [I]t must have been 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 opportunity to proffer 

substantial assistance to the government that would have resulted in an additional 

Guidelines level reduction under § 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 denying her the opportunity to proffer by delaying the sending of 
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the proffer letter. Motion for COA at 10. 

At sentencing, however, counsel explained that Ms. Montoya actually submitted 

multiple proffer letters, but the Government was not interested in the information 

provided. Neither Ms. Montoya, 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 denied her the opportunity 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 court or in her motion for COA any basis for 

finding that her counsel’s treatment of the proffer letters was unreasonable. She therefore 

has failed to show that her counsel was ineffective or that she was prejudiced by her 

counsel’s actions with regard 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 “introduced 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 
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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 argued that she should receive a downward 

variance because she played a minimal role in the drug transaction and did not actually 

know how much methamphetamine was involved. He also explained that she should 

receive leniency because her minimal involvement 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 history and her stable family situation. 

Ms. Montoya has failed to show that her counsel’s actions in requesting the 

downward variance were unreasonable or that, had her counsel provided additional 

argument or support for the downward variance, 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. Montoya therefore has failed 

to show that she was prejudiced by her counsel’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 brought in her § 2255 motion, she would have 

brought had she appealed her sentence. This court has held that “[i]neffective assistance 
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of counsel claims should be brought in collateral proceedings, not on direct appeal.” 

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