[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10311 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 1:09-cv-23777-MGC ; 1:04-cr-20487-MGC-3
ANTHONY COLLINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 10, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Collins, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to vacate, set aside, or correct his sentence, pursuant
to 28 U.S.C. § 2255. In his motion, Collins asserted numerous claims of
ineffective assistance of counsel, including that his trial counsel was ineffective
for failing to (1) convey to the district court his mid-trial desire to plead guilty to
two of the three counts in the indictment, which would have entitled him to a
two-level guideline reduction for acceptance of responsibility; (2) move the
district court to dismiss the superseding indictment based upon a violation of the
Speedy Trial Act and the government’s bad faith in obtaining the superseding
indictment; and (3) investigate his mental health and raise an insanity defense at
trial. On appeal, Collins challenges the district court’s rejection of each of these
claims on the merits, and additionally contends that the district court erred in
denying his first claim for relief without holding an evidentiary hearing because a
factual dispute existed as to whether he conveyed his desire to plead guilty to trial
counsel.
We review claims of ineffective assistance of counsel de novo. Chandler v.
United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). We may affirm on
any ground supported by the record, even if not relied upon by the district court.
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Trotter v. Sec’y, Dep’t of Corr., 535 F.3d 1286, 1291 (11th Cir. 2008).
The Sixth Amendment right to counsel guarantees the right to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.
2052, 2063-64, 80 L.Ed.2d 674 (1984). In order to succeed on a claim of
ineffective assistance of counsel, a movant must show both that (1) counsel’s
performance fell below an objective standard of reasonableness, and (2) a
reasonable probability exists that the result of the proceeding would have been
different but for counsel’s deficiency. Chandler, 218 F.3d at 1312-13.
Counsel’s performance is measured under prevailing professional norms,
and the burden falls on the movant to prove that counsel’s performance was
unreasonable. Id. at 1313. We presume that counsel’s performance was
reasonable, and a movant only rebuts this presumption by demonstrating that no
competent counsel would have engaged in the course of conduct that counsel took.
Id. at 1314-15. With respect to the prejudice prong, a reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S.Ct. at 2068. We do not have to address counsel’s performance
if the movant cannot demonstrate sufficient prejudice. Strickland, 466 U.S. at
697, 104 S.Ct. at 2069.
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I. Guilty Plea
When calculating the applicable range under the Sentencing Guidelines, a
defendant may receive a two-level reduction in his offense level if he clearly
demonstrates acceptance of responsibility for his offense, although such a
reduction is not a matter of right for a defendant who pleads guilty. U.S.S.G.
§ 3E1.1(a) (2005); United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 2006).
The defendant carries the burden of clearly demonstrating his acceptance of
responsibility, and must present more than just a guilty plea. Wade, 458 F.3d at
1279. A guilty plea prior to trial, in combination with the truthful admission of the
offense conduct, is significant evidence of acceptance of responsibility. Id. In
considering whether a defendant qualifies for a reduction for accepting
responsibility, the district court may consider the timeliness of the defendant’s
manifestation of acceptance of responsibility. U.S.S.G. § 3E1.1, comment.
(n.1(h), n.6) (2005).
Section 3E1.1 is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and then later admits guilt and expresses remorse. U.S.S.G.
§ 3E1.1, comment. (n.2) (2005). A conviction at trial, however, does not
automatically preclude an offense level reduction for acceptance of responsibility.
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Id. In rare situations, such as where a defendant goes to trial to assert issues
unrelated to his factual guilt, a defendant may clearly demonstrate an acceptance
of responsibility for his offense although he went to trial. Id. In such an instance,
however, the determination will be based primarily upon the defendant’s pre-trial
statements and conduct. Id.
Collins did not show that he was prejudiced by counsel’s alleged failure to
inform the district court of his mid-trial desire to plead guilty. Collins maintained
that he formulated his desire to plead guilty after the trial began, and only did so
because he saw the weight of the government’s evidence against him.
Accordingly, Collins did not demonstrate a reasonable probability that he would
have received a two-level reduction for accepting responsibility absent trial
counsel’s allegedly deficient performance.
II. Evidentiary Hearing
We review a district court’s denial of an evidentiary hearing for an abuse of
discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). An
evidentiary hearing is required unless the motion, files, and records of the case
conclusively show that the movant is not entitled to any relief. Id. at 714. If the
movant alleges facts that, if true, would entitle him to relief, then the district court
should order an evidentiary hearing. Id. at 714-15.
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Because Collins’s motion, if taken as true, and the record conclusively
established that he did not suffer any prejudice by trial counsel’s alleged failure to
inform the district court of his desire to plead guilty, the district court did not
abuse its discretion by denying this ineffective-assistance-of-counsel claim
without an evidentiary hearing.
III. Speedy Trial Act and Governmental Bad Faith
Under the Speedy Trial Act, an indictment must be filed within 30 days
from the date of an individual’s arrest. 18 U.S.C. § 3161(b) (2004). A
superseding indictment that issues more than 30 days after the arrest, but before
the original indictment is dismissed, does not violate § 3161(b). United States v.
Mosquera, 95 F.3d 1012, 1013 (11th Cir. 1996).
The Speedy Trial Act also requires that the trial of a defendant commence
within 70 days from the later of the filing date of the indictment, or the date the
defendant appeared before a judicial officer of the appropriate court. 18 U.S.C.
§ 3161(c)(1) (2004). A jury trial commences, for purposes of the Speedy Trial
Act, when the district court begins voir dire. United States v. Gonzalez, 671 F.2d
441, 443 (11th Cir. 1982). The filing of a superseding indictment does not reset
the Speedy Trial Act clock for charges that were included in the original
indictment. United States v. Young, 528 F.3d 1294, 1295-97 (11th Cir. 2008).
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Certain periods of time, however, are excluded from the calculation of the
70-day period. See 18 U.S.C. § 3161(h) (2004). Any delay resulting from a
pretrial motion is excluded, and this period runs “from the filing of the motion
through the conclusion of the hearing on, or other prompt disposition of, such
motion.” Id. § 3161(h)(1)(F) (2004). With respect to a motion for which a
hearing is required, the entire period from the filing of the motion to the hearing
on that motion is excluded without reference to whether that time period was
unreasonable. United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991).
If, after the hearing, the court has all of the materials necessary to rule on the
motion, it has the motion under advisement immediately following the hearing.
Id. From that date, any delay reasonably attributable to the period during which
the motion is under advisement by the district court, which cannot exceed 30 days,
is excludable. 18 U.S.C. § 3161(h)(1)(J) (2004); Davenport, 935 F.2d at 1228. A
delay resulting from a codefendant’s motion is excludable as to each codefendant.
United States v. Twitty, 107 F.3d 1482, 1488 (11th Cir. 1997).
Likewise, any period of delay that results from a continuance granted by the
district court is excludable if the district court grants the continuance on the basis
of a finding that “the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial.” 18 U.S.C.
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§ 3161(h)(8) (2004). This time period, however, is only excludable if the district
court sets forth in the record, whether orally or in writing, its reasons for finding
that the ends of justice served by granting the continuance outweigh the best
interests of the public and the defendant in a speedy trial. Id.
Unsubstantiated and conclusory allegations are insufficient to establish
constitutional violations that will support granting a motion to vacate. United
States v. Jones, 614 F.2d 80, 81-82 (5th Cir. 1980).1
The district court erred by concluding that the filing of the superseding
indictment reset the Speedy Trial Act clock. Nonetheless, Collins did not
establish that trial counsel’s failure to move to dismiss the superseding indictment
based upon an alleged violation of the Speedy Trial Act was deficient or
prejudicial. When one computes the days excludable due to Green’s motions, the
period the district court considered those motions, and the district court’s
continuance, fewer than seventy days elapsed.
Moreover, counsel adopted a codefendant’s motion to dismiss the
superseding indictment based upon the government’s bad faith, and the district
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.
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court ultimately denied that motion on the merits. Collins’s attorney, therefore,
did not render deficient performance in this regard. In any event, Collins’s
unsubstantiated and conclusory statements that the government obtained the
superseding indictment in bad faith were insufficient to support a showing of
prejudice.
IV. Insanity Defense
It is an affirmative defense that, at the time of the offense, the defendant was
unable to appreciate the nature and quality or the wrongfulness of his acts as a
result of a severe mental disease or defect. 18 U.S.C. § 17(a). A mental disease or
defect alone is not a defense. Id. The defendant bears the burden of proving an
insanity defense by clear and convincing evidence. Id. § 17(b).
Collins did not show that he was prejudiced by trial counsel’s alleged
failure to investigate his mental health and raise an insanity defense. Neither the
information contained in the presentence investigation report concerning his
psychological history, nor the evidence of his offense conduct, tended to establish
that he was insane at the time of his offenses, and Collins’s bare and
unsubstantiated assertions that a reasonable probability existed that a jury would
have found him insane had trial counsel conducted an investigation were
insufficient to support his motion to vacate.
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After careful review of the record and the parties’ briefs, we affirm the
district court’s denial of Collins’s motion to vacate.
AFFIRMED.
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