UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

v.

PEDRO JULIAN MONTOYAGONZALEZ,

 Defendant - Appellant.

No. 14-5136

(N.D. Oklahoma)

(No. 4:14-CV-00640-GKF-TLW and 

4:12-CR-00023-GKF-1)

ORDER DENYING CERTIFICATE OF APPEALABILITY 

Before HARTZ, TYMKOVICH, and BALDOCK, Circuit Judges. 

 

Defendant Pedro Julian Montoya-Gonzalez pleaded guilty in the United States 

District Court for the Northern District of Oklahoma to the charge of reentry of a 

deported alien in violation of 8 U.S.C. § 1326. He was sentenced to 46 months’ 

imprisonment. After our dismissal of his appeal for failure to prosecute, he filed a pro se 

motion for relief under 28 U.S.C. § 2255, claiming that his counsel provided ineffective 

assistance by failing to request (1) credit for the 27 days Defendant was incarcerated after 

his arrest but before he was taken into federal custody, and (2) a downward departure 

based on the “fast-track” early-disposition program, see United States v. Luna-Acosta, 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 10, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-5136 Document: 01019413812 Date Filed: 04/10/2015 Page: 1 
2 

715 F.3d 860, 861 n.2 (10th Cir. 2013) (“The so-called ‘fast track’ program allows a 

defendant, upon motion of the government, to obtain up to a four-level downward 

departure from his offense level in exchange for pleading guilty pursuant to an early 

disposition program.”); USSG § 5K3.1. The district court denied the motion because it 

was untimely under 28 U.S.C. § 2255(f) and Defendant now seeks a certificate of 

appealability (COA) to appeal that denial. See 28 U.S.C. § 2253(c)(1)(B) (requiring 

COA to appeal denial of § 2255 motion). We deny a COA and dismiss the appeal. 

Motions under § 2255 are subject to a one-year statute of limitations. See id. 

§ 2255(f). This court dismissed Defendant’s direct appeal on July 8, 2013, because he 

had failed to pay the filing fee or file a proper motion for leave to proceed in forma 

pauperis (ifp). The limitations period started to run on October 6, 2013, upon expiration 

of the 90-day period for filing a petition for certiorari in the United States Supreme Court. 

See Clay v. United States, 537 U.S. 523, 532 (2003). Defendant submitted his § 2255 

motion more than a year later, on October 13, 2014. In district court he asserted that his 

motion was timely because he had only recently found a case supporting his argument, 

but the district court explained that this discovery was irrelevant under § 2255(f). In his 

appellate brief, Defendant does not contest the district court’s timeliness ruling and has 

Appellate Case: 14-5136 Document: 01019413812 Date Filed: 04/10/2015 Page: 2 
3 

 not offered any basis for overcoming the statutory bar. We therefore DENY the request 

for a COA and DISMISS the appeal. We also DENY the motion for leave to proceed ifp. 

Appellant is ordered to pay the filing fee to the district court forthwith. 

ENTERED FOR THE COURT 

 Harris L Hartz 

Circuit Judge 

Appellate Case: 14-5136 Document: 01019413812 Date Filed: 04/10/2015 Page: 3