Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2026 _________________________________ Christopher M. Wolpert Clerk of Court JAMES EDWARD MONTGOMERY,
Petitioner - Appellant,
v. No. 25-5090 (D.C. No. 4:17-CV-00445-CVE-JFJ) JAMES COTTON, Interim Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before TYMKOVICH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
James Edward Montgomery, an Oklahoma prisoner proceeding pro se, 1 seeks a
certificate of appealability (COA) to appeal from the district court’s denial of his
28 U.S.C. § 2254 habeas application. We deny a COA and dismiss this matter.
I. BACKGROUND
In a bifurcated trial, an Oklahoma state jury first convicted Montgomery of
maiming, resisting an officer, and public intoxication. During the second stage of trial,
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
Because Montgomery represents himself, we construe his filings liberally, but 1
we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 2
the jury found that Montgomery had two prior felony convictions and recommended the
following sentences: a sixty-year prison term for maiming, a one-year prison term for
resisting an officer, and a thirty-day jail term for public intoxication. The trial court
sentenced Montgomery according to the jury’s recommendations. The Oklahoma Court
of Criminal Appeals (OCCA) affirmed his convictions and sentences. He then filed a
§ 2254 habeas application in federal court, claiming insufficient evidence, a due process
violation, ineffective assistance of trial counsel, prosecutorial misconduct, and improper
response to a jury question by the trial court. The district court denied habeas relief.
Montgomery now seeks a COA to appeal the district court’s rejection of his habeas
application.
II. DISCUSSION
Before he can appeal, Montgomery must obtain a COA. See 28 U.S.C.
§ 2253(c)(1)(A). To do so, he must make “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). Because the district court denied his claims on the
merits, Montgomery “must demonstrate 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).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a state
court has adjudicated the merits of a claim, a federal district court may grant habeas relief
on that claim only if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable determination of
2 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 3
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). When reviewing COA requests, we give “deferential treatment [to]
state court decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
A state-court decision is contrary to clearly established federal law if the state
court (1) “applies a rule that contradicts the governing law set forth in Supreme Court
cases,” or (2) “confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a result different from that
precedent.” House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (brackets and internal
quotation marks omitted). A state-court decision involves an unreasonable application of
clearly established federal law “when it identifies the correct governing legal rule from
Supreme Court cases, but unreasonably applies it to the facts.” Id.
Montgomery requests a COA on his sufficiency-of-the-evidence claim, his
ineffective assistance of counsel claim, and his claim that the trial court responded
improperly to a jury question.
A. Sufficiency of the Evidence
Montgomery argues the prosecution failed to prove beyond a reasonable doubt
that he committed the crime of maiming. For a sufficiency-of-the-evidence claim, “the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under
Oklahoma law, “[e]very person who, with premeditated design to injure another, inflicts
upon his person any injury which disfigures his personal appearance or disables any
3 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 4
member or organ of his body or seriously diminishes his physical vigor, is guilty of
maiming.” Okla. Stat. tit. 21, § 751.
Applying Jackson, the OCCA determined the prosecution provided sufficient
evidence at trial for the jury to convict Montgomery of maiming. Montgomery argues
the evidence was insufficient to establish that he had the intent to injure the victim. But
the evidence included testimony from an ophthalmologist who treated the victim that the
victim’s eye injury was consistent with intentional gouging, not an accidental jab.
The district court determined that the OCCA’s rejection of Montgomery’s
sufficiency-of-the-evidence claim was not an unreasonable application of Jackson or
based on an unreasonable determination of the facts presented in state court. We afford
deference to the OCCA’s decision, see Dockins, 374 F.3d at 938, and we conclude no
reasonable jurist would debate the district court’s rejection of Montgomery’s
sufficiency-of-the-evidence claim.
B. Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective-assistance
claims. Under Strickland, the applicant must show (1) “that counsel’s performance was
deficient” and (2) “that the deficient performance prejudiced the defense.” Id. at 687.
The first prong requires an applicant to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Id.
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Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 26, 2026 _________________________________ Christopher M. Wolpert Clerk of Court JAMES EDWARD MONTGOMERY,
Petitioner - Appellant,
v. No. 25-5090 (D.C. No. 4:17-CV-00445-CVE-JFJ) JAMES COTTON, Interim Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before TYMKOVICH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
James Edward Montgomery, an Oklahoma prisoner proceeding pro se, 1 seeks a
certificate of appealability (COA) to appeal from the district court’s denial of his
28 U.S.C. § 2254 habeas application. We deny a COA and dismiss this matter.
I. BACKGROUND
In a bifurcated trial, an Oklahoma state jury first convicted Montgomery of
maiming, resisting an officer, and public intoxication. During the second stage of trial,
* 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.
Because Montgomery represents himself, we construe his filings liberally, but 1
we do not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 2
the jury found that Montgomery had two prior felony convictions and recommended the
following sentences: a sixty-year prison term for maiming, a one-year prison term for
resisting an officer, and a thirty-day jail term for public intoxication. The trial court
sentenced Montgomery according to the jury’s recommendations. The Oklahoma Court
of Criminal Appeals (OCCA) affirmed his convictions and sentences. He then filed a
§ 2254 habeas application in federal court, claiming insufficient evidence, a due process
violation, ineffective assistance of trial counsel, prosecutorial misconduct, and improper
response to a jury question by the trial court. The district court denied habeas relief.
Montgomery now seeks a COA to appeal the district court’s rejection of his habeas
application.
II. DISCUSSION
Before he can appeal, Montgomery must obtain a COA. See 28 U.S.C.
§ 2253(c)(1)(A). To do so, he must make “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). Because the district court denied his claims on the
merits, Montgomery “must demonstrate 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).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), when a state
court has adjudicated the merits of a claim, a federal district court may grant habeas relief
on that claim only if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable determination of
2 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 3
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). When reviewing COA requests, we give “deferential treatment [to]
state court decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
A state-court decision is contrary to clearly established federal law if the state
court (1) “applies a rule that contradicts the governing law set forth in Supreme Court
cases,” or (2) “confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a result different from that
precedent.” House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (brackets and internal
quotation marks omitted). A state-court decision involves an unreasonable application of
clearly established federal law “when it identifies the correct governing legal rule from
Supreme Court cases, but unreasonably applies it to the facts.” Id.
Montgomery requests a COA on his sufficiency-of-the-evidence claim, his
ineffective assistance of counsel claim, and his claim that the trial court responded
improperly to a jury question.
A. Sufficiency of the Evidence
Montgomery argues the prosecution failed to prove beyond a reasonable doubt
that he committed the crime of maiming. For a sufficiency-of-the-evidence claim, “the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under
Oklahoma law, “[e]very person who, with premeditated design to injure another, inflicts
upon his person any injury which disfigures his personal appearance or disables any
3 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 4
member or organ of his body or seriously diminishes his physical vigor, is guilty of
maiming.” Okla. Stat. tit. 21, § 751.
Applying Jackson, the OCCA determined the prosecution provided sufficient
evidence at trial for the jury to convict Montgomery of maiming. Montgomery argues
the evidence was insufficient to establish that he had the intent to injure the victim. But
the evidence included testimony from an ophthalmologist who treated the victim that the
victim’s eye injury was consistent with intentional gouging, not an accidental jab.
The district court determined that the OCCA’s rejection of Montgomery’s
sufficiency-of-the-evidence claim was not an unreasonable application of Jackson or
based on an unreasonable determination of the facts presented in state court. We afford
deference to the OCCA’s decision, see Dockins, 374 F.3d at 938, and we conclude no
reasonable jurist would debate the district court’s rejection of Montgomery’s
sufficiency-of-the-evidence claim.
B. Ineffective Assistance of Counsel
Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective-assistance
claims. Under Strickland, the applicant must show (1) “that counsel’s performance was
deficient” and (2) “that the deficient performance prejudiced the defense.” Id. at 687.
The first prong requires an applicant to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Id. The second prong requires a showing “that there is a reasonable possibility that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
4 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 5
“When a habeas petitioner alleges ineffective assistance of counsel, deference
exists both in the underlying constitutional test (Strickland) and the AEDPA’s standard
for habeas relief, creating a doubly deferential judicial review.” Harris v. Sharp,
941 F.3d 962, 973 (10th Cir. 2019) (internal quotation marks omitted). “Under this
double deference, we consider whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. at 974 (internal quotation marks omitted).
Montgomery argues the OCCA and the district court unreasonably applied
Strickland when they rejected his claim that trial counsel provided constitutionally
deficient performance by failing to present an expert witness to testify about the effects of
phenylcyclohexyl piperidine (PCP), to establish his defense of intoxication and inability
to formulate intent. The OCCA remanded Montgomery’s case for an evidentiary hearing
on the claim, where trial counsel and a professor of pharmacology testified. The OCCA
then applied Strickland and considered the testimony from the hearing, including trial
counsel’s explanation that he decided not to call an expert on the effects of PCP because
doing so could detract from his efforts to humanize Montgomery through lay witness
testimony about his behavior. The OCCA concluded Montgomery failed to overcome the
presumption that his trial counsel made an informed and reasonable strategic decision not
to call an expert witness. The district court determined that the OCCA reasonably
applied Strickland.
Given the “doubly deferential” review due ineffective-assistance claims, Harris,
941 F.3d at 973, no reasonable jurist would debate the rejection of Montgomery’s claim.
He has not shown that the OCCA’s decision was so beyond the realm of reasonableness
5 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 6
that it could be considered contrary to or an unreasonable application of Strickland. Nor
has he shown that the district court’s evaluation of the OCCA’s application of Strickland
was debatable.
C. Improper Response to Jury Question
“The right of the accused to be present during all critical stages of the trial is basic
and fundamental.” United States v. Carter, 973 F.2d 1509, 1515 (10th Cir. 1992). And
“[a] question from the jury must be answered in open court and only after providing
counsel an opportunity to be heard.” Id.
During deliberations, the jury sent a note asking the trial court judge to define the
term “intent.” The judge wrote back that the jury had the law and evidence necessary to
reach a verdict. Before the OCCA, Montgomery argued the trial court erred by
responding without calling the jury into the courtroom or consulting counsel. He also
argued the trial court erred when it refused to define the term “intent” for the jury.
The OCCA rejected these arguments, reasoning that any error in failing to respond
to the jury in open court after consultation with counsel was harmless because “[t]he
[jury] instructions, read as a whole, made clear the meaning of intent and the need for the
jury to find that Montgomery intentionally inflicted disfiguring injury before it could
convict him of maiming.” R. vol. I at 302. The OCCA further reasoned that “[r]eferring
the jury back to the instructions was an appropriate response” under the circumstances.
Id. The district court determined that Montgomery failed to show that the OCCA’s
rejection of his claim was an unreasonable application of clearly established federal law
6 Appellate Case: 25-5090 Document: 15-1 Date Filed: 03/26/2026 Page: 7
or based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings.
We agree and conclude that no reasonable jurist would debate the district court’s
rejection of Montgomery’s claim. See Carter, 973 F.2d at 1515 (concluding trial court’s
failure to respond to jury question in open court after consultation with counsel was
harmless error because “the trial court’s response simply reiterated its previous
instruction” and the response “was substantially identical to the court’s previous jury
instructions given in the presence of [the defendant] and his counsel”).
III. CONCLUSION
We deny Montgomery’s application for a COA and dismiss this matter.
Entered for the Court
Nancy L. Moritz Circuit Judge