United States v. Montgomery

GREGORY K. FRIZZELL

Before the court is defendant Richard Dale Montgomery's Motion for Certificate of Appealability ("COA") pursuant to 28 U.S.C. § 2253 [Dkt. #152].

Pursuant to 28 U.S.C. § 2253(c)(1), a defendant is required to obtain a certificate of appealability before appealing a final order in a habeas corpus proceeding. Section 2253(c) instructs that the court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," and the court "indicates which specific issue or issues satisfy [that] showing." A petitioner can satisfy that standard by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

Defendant argued in his habeas corpus motion that trial counsel was ineffective in the following respects: (1) counsel failed to obtain the hard drive from defendant's computer and/or to request a continuance of trial in order to obtain the hard drive; (2) counsel failed to comply with defendant's request to call four character witnesses at the sentencing hearing as mitigating evidence; and (3) counsel failed to comply with defendant's request to file a direct appeal from his conviction and sentence. Following an evidentiary hearing, Magistrate Judge T. Lane Wilson filed a Report and Recommendation in which he recommended denial of the habeas corpus motion. Montgomery objected to the Report and Recommendation, and the court, after conducting a de novo review, accepted the Report and Recommendation and denied Montgomery's habeas corpus motion.

Having reviewed the record, the court concludes that a certificate of appealability should not issue. Defendant has not made a substantial showing of the denial of a constitutional right. Nothing suggests that the Tenth Circuit would find that this court's determination of issues raised by defendant in his habeas corpus motion were debatable among jurists. See Dockins v. Hines, 374 F.3d 935 (10th Cir. 2004).

Accordingly, defendant's request for a certificate of appealability must be denied.

Defendant's Motion for Certificate of Appealability [Dkt. #152] is denied.

______________________________

GREGORY K. FRIZZELL, CHIEF JUDGE

UNITED STATES DISTRICT COURT