FILED
United States Court of Appeals
Tenth Circuit
July 29, 2010
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID C. MONTOYA,
Petitioner - Appellant,
v. No. 10-1227
(D. Ct. No. 1:08-CV-00152-WDM)
STEVE HARTLEY, Warden, L.C.F.; (D. Colo.)
THE ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.
Petitioner-appellant David C. Montoya, a state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to challenge the district court’s denial of his habeas
petition which he brought pursuant to 28 U.S.C. § 2254. We take jurisdiction under 28
U.S.C. §§ 1291 and 2253(c), we DENY Mr. Montoya’s application for COA, and we
DISMISS his appeal.
I. BACKGROUND
In 2005, Mr. Montoya pleaded guilty in Colorado state court to one count of
*
This order is not binding precedent except under the doctrines of law of the case,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.
aggravated robbery. Specifically, he admitted that he committed robbery by the use of
force, threats, or intimidation with a deadly weapon (a knife) and that he knowingly put
the victim in reasonable fear of death or bodily injury. He was sentenced to twenty-three
years’ imprisonment for this crime.
Mr. Montoya did not file a direct appeal but he did seek state post-conviction relief
which was denied. He then filed the instant § 2254 petition. In the petition, Mr. Montoya
argues that the district court enhanced his sentence above the statutory maximum based
on facts that were not admitted by him or found by a jury beyond a reasonable doubt in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542
U.S. 296 (2004). The district court denied Mr. Montoya’s § 2254 petition because it
concluded that his twenty-three year sentence was less than the maximum sentence
prescribed by Colorado statute. Mr. Montoya now seeks a COA in order to appeal from
the district court’s decision.
II. DISCUSSION
In order to appeal from the denial of a § 2254 petition, a prisoner must obtain a
COA. 28 U.S.C. § 2253(c)(1)(A). We will issue a COA “only if the applicant has made
a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). When the
district court denies a prisoner’s petition on the merits, a prisoner satisfies this burden by
“demonstrat[ing] that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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In his application for a COA, Mr. Montoya repeats his argument that he was
sentenced to a term of imprisonment beyond the statutory maximum based on facts not
admitted by him or presented to a jury in violation of Apprendi and Blakely. We disagree.
Under Colorado law, aggravated robbery is a class 3 felony and is considered to be
an “extraordinary risk crime.” See Colo. Rev. Stat. § 18-4-302(3). When the defendant
puts the victim in reasonable fear of death or bodily injury by the use of force, threats, or
intimidation with a deadly weapon, aggravated robbery is also considered to be a violent
crime that is subject to certain mandatory sentencing provisions. Id. § 18-4-302(4). The
mandatory sentencing provisions for violent crimes require that the defendant “be
sentenced . . . for a term of incarceration of at least the midpoint in, but not more than
twice the maximum of, the presumptive range . . . .” Id. § 18-1.3-406. Furthermore,
when the crime of violence is also an extraordinary risk crime, “the maximum sentence in
the presumptive range shall be increased by four years . . . .” Id. § 18-1.3-401(10)(a).
The presumptive sentencing range for class 3 felonies like aggravated robbery is
four to twelve years’ imprisonment. Id. § 18-1.3-401(1)(a)(V)(A). Because the Colorado
legislature has determined that aggravated robbery is an extraordinary risk crime,
however, the maximum sentence in the presumptive range is increased to sixteen years.
Furthermore, because Mr. Montoya committed the crime by putting his victim in
reasonable fear of death or bodily injury by the use of force, threats, or intimidation with
a deadly weapon, the sentencing court was required to sentence him to at least the
midpoint of the presumptive range but not more than twice the maximum of the
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presumptive range. In other words, the sentencing court was required by statute to
sentence Mr. Montoya to a term of imprisonment within the range of ten to thirty-two
years. Accordingly, the twenty-three year sentence he received was not beyond the
statutory maximum and did not violate the mandates of Apprendi and Blakely. Therefore,
reasonable jurists could not debate the district court’s assessment of Mr. Montoya’s
constitutional claims.
III. CONCLUSION
For the foregoing reasons, we DENY Mr. Montoya’s application for a COA and
DISMISS his appeal. We also DENY his request to proceed in forma pauperis on appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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