REPORT AND RECOMMENDATION

WILLIAM E. CASSADY, Magistrate Judge.

This cause is before the Court on petitioner Stephen Terry Britt's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 186), the response in opposition filed by the United States (Doc. 190), petitioner's traverse to the government's response (Doc. 193), and Britt's motion to amend (Doc. 196). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Following consideration of all relevant pleadings in this case, it is recommended that Britt's § 2255 motion be DENIED.

FINDINGS OF FACT

On May 27, 2010, Britt was indicted on one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846,1 one count of possession of a List I chemical—pseudoephedrine—with knowledge and reasonable cause to believe it would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841(c)(2), one count of attempt to manufacture methamphetamine in violation of 21 U.S.C. § 846,2 one count of using and carrying a firearm in connection with a drug trafficking offense and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possessing with to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).3 (Doc. 1, at 1-4.)4 Britt, who was in state custody, made his initial appearance in this Court on June 16, 2010 (see Doc. 17), was arraigned on all charges on June 23, 2010 (Doc. 25), and was ordered detained on June 24, 2010 (Doc. 26).

During the July 8, 2010 Probation Office Conference, which was attended by Britt and his retained attorney, Jeff Deen, Esquire, petitioner was informed that enhanced penalties may apply based on a prior felony drug conviction (Doc. 40, at 1) but, as well, that if convicted on count four (the gun count), there would be "a mandatory consecutive 5 yr custody sentence to the [computed guideline] range (minus 2 level enhancement for gun)[.]" (Id. at 8.) Some four days after the probation office conference, that is, on July 12, 2010, the government filed the following information:

(Doc. 44 (footnote added).)6

At the pretrial conference on July 12, 2010, Britt (through counsel) notified the undersigned that he was desirous of entering a guilty plea (Doc. 47)7 and, on July 20, 2010, Britt entered a counseled guilty plea to counts one and four of the indictment (see Doc. 187, at 19-20), in accordance with the plea agreement which was filed on July 21, 2010 (compare id. at 16-17 ("My copy is the one that we have used, Your Honor. So I don't have that before me.") with id. at 14 ("He doesn't want to get the extra five years but it's going to be 25 if he doesn't get some kind of agreement about cooperating. . . . I talked to him. We have already got the plea agreement. . . . Give him one last chance.") and Doc. 52, at 1 ("The defendant waives rights b through e, listed above, and pleads guilty to Counts 1 and 4 of the Indictment, charging violations of Title 21, United States Code, Section 846, conspiracy to manufacture methamphetamine, a Schedule II controlled substance, and of Title 18, United States Code, Section 924(c)(1), using and carrying a firearm in connection with a drug trafficking felony.")). And while Britt is correct that when he initially appeared before the Court on July 20, 2010, he had decided to not plead in accordance with the plea agreement he and his attorney signed on July 19, 2010 (see Doc. 52, at 13)—he insisted he was not guilty of the gun charge and desired to plead only to the conspiracy charge (see Doc. 187, at 4-6 (Britt's attorney informed the court that Britt was not pleading pursuant to the plea agreement anymore and, instead, was pleading only to the conspiracy count—count one—and planned to go to trial on the remaining counts since the government was not going to dismiss the remaining counts and the Assistant United States Attorney was insisting that Britt plead to the gun count, while Britt was insisting he never possessed the gun))—just as the Court was about to take his guilty plea to the conspiracy count (id. at 13; see also id. at 8-13 (the court explained to Britt—and petitioner indicated his understanding—that given his prior drug conviction he was facing a statutory mandatory minimum sentence of twenty years to life, that he had the right to proceed to trial and have the government prove his guilt beyond a reasonable doubt and that by pleading guilty he was waiving the right to a trial as to count one, and Britt also indicated that he believed the government could prove the facts establishing his participation in a conspiracy to manufacture more than 500 grams of methamphetamine8)), his retained attorney asked the Court to give him one additional opportunity to convince his client to plead guilty to both counts one and four in accordance with the plea agreement and was granted that opportunity (see id. at 13-14).

(Id. at 14.) The Court actually continued petitioner's plea colloquy to 2 o'clock on July 20, 2010, at which time Britt informed the Court that he wished to plead guilty to count four of the indictment, in addition to count one. (Doc. 187, at 16.) As aforesaid, Britt's counseled guilty pleas to the two counts were made in accordance with the earlier-signed plea agreement, as reflected by the comments his retained attorney made to the Court seeking additional time to convince his client to plead to both counts (see id. at 14), the comments of the Assistant United States Attorney when the parties returned to the courtroom at 2 o'clock (see id. at 16 ("My copy9 is the one that we have used, Your Honor.")), the action of the deputy clerk in docketing the plea agreement—and attached factual resume—on July 21, 2010 (see Doc. 52), the Presentence Investigation Report (see Doc. 120, at 4 & 27 ("On July 20, 2010, Britt pleaded guilty to counts one and four, pursuant to a written plea agreement. . . . Pursuant to the written plea agreement, Britt has entered a plea of guilty to counts one and four of the indictment, in return for the dismissal of the remaining counts." (emphasis in original)), and the conversation at the March 2, 2011 sentencing hearing regarding petitioner's various debriefings by government agents and the government's ultimate determination that Britt had not given them enough information to warrant the filing of a motion for downward departure (see Doc. 188, at 10-13).10

(Doc. 187, at 16-17 & 18-20.)

The January 6, 2011 Presentence Investigation Report reads, in relevant part, as follows:

(Doc. 120, at 27 & 29 (emphasis in original).)

On March 2, 2011, Britt was sentenced to the statutory mandatory minimum of twenty years imprisonment as to count one of the indictment and a consecutive five-year term of imprisonment as to count four. (See Doc. 188, at 14.) Despite Britt's plea for leniency (see id. at 11-12 ("But I ask for all the leniency and all the favor you can give me today.")), and the Court's expressed sympathies with Britt's mother and aunt (id. at 12-13 ("I'm very sympathetic to his mother and aunt, I just can't imagine what it must feel like for them to have to go through this."), the Court's hands were tied in light of the government's decision to not ask for downward departure (compare id. at 13 ("[I]t doesn't matter whether I think you have cooperated or not. It's the government's decision whether you cooperated or not.") with id. ("MS. BEDWELL: Your Honor, we submit to the Court that the statutory penalties apply in this defendant's case.")).11

(Id. at 14, 15 & 15-16; see also Doc. 158 (judgment reflecting the same sentence as to counts one and four of the indictment and the dismissal, on motion of the United States, of counts two, three, and seven).)

On March 29, 2011, Deen filed a motion to withdraw and therein indicated that he was retained to represent Britt only through trial or disposition of the matter in this Court but not on appeal. (See Doc. 168.) In an order entered on April 28, 2011, Judge DuBose instructed retained counsel to show cause, not later than May 12, 2011, why he had not complied with the provisions of Local Rule 83.7(b), by filing a notice of non-appeal or otherwise filing a notice of appeal if requested by Britt to take such action. (See Doc. 173.) Retained counsel's response to the Court's order was a May 4, 2011 motion seeking to withdraw his previously-filed motion to withdraw based upon Britt having pled guilty pursuant to a negotiated plea and his mistaken impression that Britt had filed a pro se notice of appeal; this pleading was docketed as a withdrawal of the motion to withdraw. (See Doc. 174.)

Britt filed his motion to vacate, pursuant to 28 U.S.C. § 2255, on February 21, 2012. (Doc. 186, at 17 (date placed in the prison mailing system).) Therein, Britt raises the following claims of alleged ineffective assistance of trial counsel: (1) his attorney failed to protect his constitutional right to a fair and equitable plea agreement during plea negotiations "where in exchange for his guilty plea the government would have agreed to not pursue the 851 enhancement that doubled his sentence from ten (10) years to twenty (20) years[;]" (2) his attorney failed to conduct any pre-plea discovery, did not retain an investigator, and did not review the applicable law with respect to count four and relevant sentencing guidelines concerning count six; (3) his attorney failed to investigate and advise him under the grouping rule found in the sentencing guidelines manual that any punishments imposed against him for violating counts one and six would have been imposed concurrently; (4) his attorney failed to object to judicial interference in the plea negotiations regarding counts four and six; (5) his attorney failed to object to the government's failure to assert facts sufficient to prove the essential elements of the 924(c) violation charged in count four; and (6) his attorney erred in failing to advise him that he had fourteen (14) days to file an appeal. (Doc. 186, at 4-8.) In addition to these claims of ineffective assistance of counsel, Britt asserts the following as separate claims though they all appear interrelated: (1) judicial participation in or interference in plea negotiations; (2) the judicial participation in his guilty plea to count four, and his attorney's complicity, rendered his guilty plea involuntary; (3) the court abused its discretion in failing to advise Britt that he could appeal his sentence; (4) the court and his attorney intentionally colluded to involuntarily elicit his plea of guilty to count four; and (5) conflict of interest.12

CONCLUSIONS OF LAW

Section 2255 reads, in relevant part, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).

I. Ineffective Assistance of Counsel. In this instance, Britt preeminently contends that constitutionally ineffective assistance of counsel entitles him to the relief afforded by 28 U.S.C. § 2255. In order to establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below "an objective standard of reasonableness" and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Jones v. United States, 478 Fed.Appx. 536, 539-540 (11th Cir. Sept. 23, 2011) ("To make a successful claim of ineffective assistance of counsel, a defendant must show: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense.").13 "The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that []he was prejudiced by that performance." Demar v. United States, 228 Fed.Appx. 940, 950 (11th Cir. Jun. 21, 2007) (quotation marks, brackets and citations omitted); see also Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) ("The petitioner bears the burden of proof on the `performance' prong as well as the `prejudice' prong of a Strickland claim, and both prongs must be proved to prevail."), cert. denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d 208 (2002).14 The Strickland v. Washington standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnotes, brackets and ellipses added), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996). Indeed, in the guilty-plea context, the Eleventh Circuit has held that "`counsel owes a lesser duty to a client who pleads guilty than to one who decides to go to trial, and in the former case counsel need only provide his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution's offer and going to trial.'"17 Carter v. United States, 288 Fed.Appx. 648, 649 (11th Cir. Aug. 4, 2008), quoting Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984).

Given the two-prong nature of the test for adjudicating ineffective-assistance-of-counsel claims, it can come as no surprise that "`the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Johnson, supra, 256 F.3d at 1176 (citation omitted). When applying the Strickland standard, it is clear that courts "are free to dispose of ineffectiveness claims on either of its two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert. denied sub nom. Oats v. Moore, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d 243 (1999); see also Adamson v. United States, 288 Fed.Appx. 591, 594 (11th Cir. July 29, 2008) ("The defendant must satisfy both prongs of this test to show a Sixth Amendment violation; if the defendant fails to demonstrate one of these prongs sufficiently, we do not need to address the other."), cert. denied, 555 U.S. 1010, 129 S.Ct. 526, 172 L.Ed.2d 385 (2008); Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) ("[O]nce a court decides that one of the requisite showings has not been made it need not decide whether the other one has been.").

A. Petitioner's § 851 Enhancement Argument. Britt contends, in a conclusory manner, that his retained attorney (Jeff Deen) failed to protect his right to a fair and equitable plea agreement "where in exchange for his guilty plea the government would have agreed to not pursue the 851 enhancement that doubled his sentence from ten (10) years to twenty (20) years." (See Doc. 186, at 4.) As recently underscored by a district court in this Circuit, "[a] criminal defendant does not have the right to obtain a plea agreement with terms tailored to his liking." Hernandez v. United States, 2012 WL 728208, *2 (M.D. Fla. Mar. 6, 2012). This is because "the decision whether to offer a plea agreement and what terms to include in that agreement are matters of prosecutorial discretion[.]" Id., citing Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) ("[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.") (other citation omitted). Given the government's discretion in this regard, along with record evidence placing Britt on notice of the applicability of the § 851 enhancement (Doc. 44)—as well as petitioner's admission of that prior felony drug conviction (see Doc. 188, at 9 ("First off[,] I would like to say I'm sorry . . . to you and coming back before [the court]. I was here [1]4 years ago for marijuana."))—petitioner's rank and conclusory speculation that his attorney could have bargained with the government for a more favorable plea agreement fails. Compare Hernandez, supra ("Vague, conclusory, speculative, or unsupported claims cannot support an ineffective assistance of counsel claim.") and Williams v. United States, 2011 WL 3268308, *5 (M.D. Fla. Aug. 1, 2011) (same) with Chavez v. Secretary Florida Dep't of Corrections, 647 F.3d 1057, 1061 (11th Cir. 2011) ("The allegations must be factual and specific, not conclusory."), cert. denied sub nom. Chavez v. Tucker, ___ U.S. ___, 132 S.Ct. 1018, 181 L.Ed.2d 752 (2012). More specifically, petitioner has established neither ineffective assistance of counsel prong in this regard.

B. Retained Counsel's Alleged Failure to Conduct Pre-Plea Discovery. Britt next contends that his attorney failed to conduct any meaningful pre-plea discovery, "including not retaining an investigator or reviewing the applicable statutory law with respect to count four, [] a 924(c) offense, and/or the relevant U.S.S.G. concerning count six." (Doc. 186, at 5.)

(Id.)

In addressing this multi-pronged claim, the undersigned need note that the government clearly supplied Britt's attorney with discovery at arraignment in accordance with the local procedure in this district, SD ALA LR 16.13(b)(1)(A)-(H) (setting out the list of information that the government is required to tender to the defendant at arraignment or other date set by the Court, including "[a]ll discoverable information within the scope of Rule 16(a) of the Federal Rules of Criminal Procedure[.]"); see Fed.R.Crim.P. 16(a) (setting forth the information that the government is required to disclose to the defendant), inasmuch as the undersigned's June 23, 2010 order on arraignment merely contains a date by which Britt was to make his disclosures to the government (Doc. 25, at 1 ("Discovery in this action shall be conducted according to the requirements of SD ALA LR 16.13. Disclosures by the defendant, required in LR 16.13(b)(4), shall be accomplished no later than July 6, 2010.")). Accordingly, Britt's attorney was well aware of the evidence the government intended to offer in support of the counts contained in the indictment and petitioner not once makes any argument that the government would have been unable to prove the conspiracy charge contained in count one of the complaint. Instead, Britt concedes that at all times—even now—he would enter a guilty plea as to count one of the indictment and argues only that his attorney should have investigated the § 924(c) firearm charge (count four) in order to develop evidence that "the gun in th[e] room" was not his gun and that he never owned or carried a firearm. There are numerous reasons, however, why this Court cannot find that the strategy pursued by Britt's attorney was one that no other competent counsel would have pursued.

Counsel in this case certainly knew that the residence in which the guns outlined in count four of the indictment were found was Green's residence (see Doc. 52, Factual Resume, at 19-21) and he also knew that when this Court began to take Britt's guilty plea on July 20, 2010, Britt did not desire to enter a plea to count four based upon his insistence that the firearms found in the search of Green's residence were not his firearms (see Doc. 187, at 5-6).18 Deen also knew many other things, including the following: (1) Britt was arrested in Green's residence on the same date that the firearms were discovered and, indeed, he was cooking methamphetamine in his co-defendant's residence (and shed) at the time of his arrest (see Doc. 52, Factual Resume, at 20-21); (2) a violation of § 924(c) can be established through evidence of constructive possession (see Doc. 187, at 14),19 among other theories20; and (3) in order for Britt to have an opportunity to plead in accordance with the plea agreement signed on July 19, 2010 (both by Britt and Deen) and have the possibility of the United States make a motion for downward departure,21 the government was insisting that his client plead to both the conspiracy charge and the firearms charge (see Doc. 187, at 5-6 & 14). In light of the foregoing, it was reasonable strategy for Deen to counsel Britt to plead guilty to both counts one and four of the indictment in order to preserve the chance of the government moving for downward departure upon Britt cooperating with the United States, instead of throwing Britt under the proverbial bus by allowing him to plead to count one and a guaranteed twenty-year sentence without a chance for downward departure,22 followed by a trial on the remaining counts of the indictment.23 Accordingly, Deen simply was not deficient in this regard.24

C. Grouping Rule Under the Sentencing Guidelines. Britt argues that his attorney should have investigated the grouping rule found in Chapter 3 of the Sentencing Guidelines and determined that even if he had gone to trial (and was convicted) on counts four and six, he would not have been sentenced to a 35-year term of imprisonment—as counsel told him—but the very same 25 years he is currently serving. (See Doc. 186, at 5-6.) Even assuming the soundness of Britt's "grouping" argument, it does not undermine the soundness of Deen's strategy in counseling petitioner to plead guilty to counts one and four under the plea agreement since it was Deen's aim to provide Britt with a conduit to reduce his sentence—by cooperating with the government—which would have been unavailable to petitioner had he pled guilty only to count one and insisted on going to trial on all remaining counts. Again, Deen was not deficient in this regard.

D. Deen's Alleged Failure to Object to Judicial Interference in the Plea Negotiations. Petitioner contends that the trial court interfered in the plea negotiations by "directing" Deen to talk to Britt following a sidebar conference. (See Doc. 186, at 6-7.) The undersigned need not again set forth the contents of the sidebar conference but simply notes that following Deen again talking to Britt, the petitioner entered counseled guilty pleas to counts one and four under the terms of the earlier-negotiated (and signed) plea agreement.

Rule 11(c)(1) of the Federal Rules of Criminal Procedure certainly provides that "[t]he court must not participate in [plea] discussions[]" engaged in by a defendant's attorney and an attorney for the government. Id. The Eleventh Circuit has determined that this "rule imposes `an absolute prohibition on all forms of judicial participation in ... the plea negotiation process.' . . . Simply put, district courts should not offer any comments `touching upon' this subject." United States v. Tobin, 676 F.3d 1264, 1307 (11th Cir. 2012) (citations omitted).

Id. at 1304 & 1306-1307 (internal citations omitted).

Considering the comments made by the Court in this case during the sidebar conference conducted at the behest of defense counsel, nothing about those comments "crossed" Rule 11's "bright line." Indeed, the Court did not "direct" defense counsel to talk to his client, as petitioner has suggested. Instead, the Court simply clarified with counsel that he wanted additional time to speak to his client and, once clarified, granted such request. This Court never suggested to Britt that he speak to Deen to make sure he did not want to plead to both counts one and four (only count one), see Casallas, supra, and certainly offered no comments of the kind found "line crossing" in Tobin, supra. In short, this Court did not judicially interfere in any plea "discussions." Consequently, Deen was not deficient in failing to interpose an objection. There can be no deficient performance by an attorney based on a non-existent claim.

E. Deen's Alleged Failure to Object to the Government's Proffer of Facts Regarding the Firearm Charge. Britt contends that his attorney was deficient in failing to object to the government's failure to set forth facts sufficient "to prove the essential elements of the 924(c) violation charged in Count 4[.]" (Doc. 186, at 7-8.)

United States v. Jones, 480 Fed.Appx. 555, 562 (11th Cir. Jul. 9, 2012) (internal citations omitted), cert. denied, ___ U.S. ___, 133 S.Ct. 963, 184 L.Ed.2d 748 (2013).25 Looking both to the government's proffer (Doc. 187, at 18-19; see also id. at 10-12) and the factual resume (Doc. 52, Factual Resume, at 20-22), see id. at 563 ("Between the proffer and the factual resume, the district court had sufficient facts upon which to support Jones's plea."), defense counsel was not deficient in the manner claimed by Britt because the facts presented to this Court were sufficient to support petitioner's plea to count four (compare Doc. 187, at 18-19 ("The execution of the search warrant where the defendant was in the trailer with the codefendant. The doors and windows were bolted shut. The defendant was in the process of actual manufacturing when the officers arrived on the scene. Subsequently obtained the search warrant. The defendant destroyed certain of the evidence during the course of the officers[`] attempt to enter the residence. And there were two firearms [a Remington 12-gauge shotgun and a New England firearm 410 single shotgun] recovered from the residence. One from the room where the defendant was cooking, the other from a bedroom. And when I say cooking I mean cooking meth. And those firearms function.") with Doc. 52, at 20-22 (a sheriff's deputy observed Britt walk past the back door of his co-defendant's trailer carrying a glass jar that was smoking and thereafter police entered the trailer to prevent petitioner "from destroying evidence of the [methamphetamine] manufacturing process they believed to be ongoing at that time[,]" and upon entry they detected the "overwhelming odor of ammonia" and struggled with Britt in an attempt to prevent him from destroying evidence in the toilet and bathtub; removed from Britt's person a white baggie containing meth residue, several small baggies, and other drug paraphernalia; detected an ammonia smell from a shed behind the trailer and discovered in the search of same six 50-pound bags of ammonium nitrate and a New England Firearms 4.10 single shot shotgun; and discovered in rooms—other than the bedroom—of his co-defendant's trailer a Coleman fuel torch, a glass Mason jar with residue, a Remington sawed off shotgun, a Tupperware bowl containing crushed pill powder, digital scales, "a box of 390 milligrams of pseudoephedrine, a bag with tools and a propane valve, a fish tank aerator pump, [and] two [N]algene bottles containing two glass sample bottles (in the toilet and the tub where Britt had attempted to dispose of the contents)"). See id. at 563 ("The proffer indicated that, on December 29, 2008, the date charged in Count 9, police discovered a methamphetamine manufacturing lab at his address. The factual resume elaborated that the police also found methamphetamine on his person, and pseudoephedrine, digital scales, and baggies inside his trailer. Because the recovered guns were found in close proximity to these materials, a fact-finder could infer that they furthered drug-trafficking activity. . . . Although Jones correctly highlights that he denied to police that he owned the methamphetamine manufacturing materials outside the trailer, this fact did not exonerate him, as he insists. Rather, the fact that he resided alone at the trailer gives rise to an inference of possession, and, in any event, Jones expressly admitted that he resided in the trailer and everything inside it, including materials indicative of drug trafficking, belonged to him. As such, there was sufficient evidence upon which the district court reasonably could infer that Jones's guns facilitated, or at least had the potential to facilitate, his methamphetamine manufacturing activities." (internal citations omitted)).26

F. Deen's Alleged Failure to Advise Petitioner that he had 14 Days to File an Appeal. Britt's final claim of ineffective assistance of counsel, at least putatively,27 is that Deen failed to advise him that he had 14 days to file an appeal. (Doc. 186, at 8.) Petitioner cannot establish prejudice in this regard because the record is clear that the court advised petitioner that he had 14 days to file a notice of appeal. (Doc. 188, at 15 ("Sentence is imposed as stated. You have 14 days to file your notice of appeal if you wish to appeal.").)

II. Petitioner's Other Claims. Petitioner directs several challenges to the Court's conduct and, more specifically, the Court's alleged interference in plea negotiations and colluding with his attorney to coerce a guilty plea to count four of the indictment. While the undersigned is of the opinion that all of these claims are procedurally barred from review based on Britt's failure to challenge these alleged errors on appeal,28 as explained hereinafter all such claims also totally lack any merit (or evidentiary support).

A. Judicial Participation in or Interference in Plea Negotiations. Because the undersigned has previously determined, in the context of petitioner's claim of ineffective assistance of counsel, that the Court did not participate in or in any way interfere in the plea negotiations, it need only be noted here that petitioner's claim in this regard has no merit.

B. The Judicial Participation in Britt's Ensuing Guilty Plea to Count Four and His Attorney's Complicity in Implementing the Court's Will Rendered his Guilty Plea Involuntary. Beyond noting that this is simply a rehashing of petitioner's baseless judicial interference argument, the undersigned need also make explicit that it was not the Court's "will" that Britt plead guilty to count four inasmuch as the Court stood ready and willing to take petitioner's plea to count one and try him on all remaining counts, including count four.29 Rather, as the record reflects, the Court simply granted defense counsel's request to speak to his client one additional time and it was during this additional conversation that Deen convinced Britt that it was in his best interests to plead guilty to count four, in combination with count one, in order to get the benefits of the plea agreement, including a motion for downward departure by the government upon a determination by the United States that substantial assistance had been provided by petitioner. Nothing about this scenario undermines the voluntary and knowing nature of petitioner's pleas of guilty to counts one and four. Indeed, this was the only logical choice for Britt since it represented the only avenue through which he could obtain a reduction in his sentence.30

C. Abuse of Discretion for the Court to Fail to Advise Britt that he could Appeal his Sentence. This claim has absolutely no merit because the Court in this case clearly informed petitioner at sentencing that he had 14 days to file written notice of appeal if he wanted to appeal. (Doc. 188, at 15 ("Sentence is imposed as stated. You have 14 days to file your notice of appeal if you wish to appeal.").)

D. The Court and Britt's Attorney Intentionally Colluded to Involuntarily Elicit his Plea of Guilty to Count Four. In support of this argument petitioner simply states that he "adopts the factual basis to his six[th] claim[], Volume I and II of the Change of Plea Transcripts[.]" (Doc. 186, at 12.) Beyond noting that this conclusory argument is due to be rejected on its face, the undersigned would note that it is simply a rehashing of petitioner's previous judicial interference claims and need be rejected for the reasons specifically stated. At the risk of continuing to beat a dead horse, the undersigned would simply point out that the record is devoid of any evidence of collusion between the Court and defense counsel.

E. Conflict of Interest. Britt's final claim raised in his § 2255 motion is that his attorney harbor under conflicting interests. (Compare Doc. 186, at 12-14 with Doc. 193, at 6-15.)

(Doc. 186, at 12-13.) As the undersigned has previously indicated, although petitioner has "separated" this claim from all other ineffective assistance of counsel claims, it clearly falls in that category (see, e.g., Doc. 193, at 6-7 (arguing his attorney operated under a conflict of interest)) and the undersigned properly treats it as such.

As explained by the Eleventh Circuit in McCorkle v. United States, 325 Fed. Appx. 804, 2009 WL 1132355 (11th Cir. Apr. 28, 2009), cert. denied, 558 U.S. 865, 130 S.Ct. 176, 175 L.Ed.2d 111 (2009):

Id. at 808 (internal quotation marks, citations, and brackets omitted). As was true in McCorkle, the same is true here and that is Deen "did not have an actual conflict of interest that adversely effected his representation" of Britt;31 therefore, "petitioner was not denied effective assistance of counsel." Id.32

III. Evidentiary Hearing. There is no need for a hearing in this matter because Britt has failed to proffer "credible and specific evidence entitling him to relief." United States v. Salmoran-Calderon, 2012 WL 6827478, *20 (N.D. Fla. Nov. 27, 2012) (citations omitted; emphasis supplied), report and recommendation adopted, 2013 WL 132481 (N.D. Fla. Jan. 10, 2013). In other words, petitioner is not entitled to an evidentiary hearing in this case because his allegations are either frivolous, affirmatively contradicted by the record, or, otherwise, even taking the facts he states as true, same would not entitle him to relief. Aron v. United States, 291 F.3d 708, 714-715 (11th Cir. 2002) ("[I]f the petitioner `alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.' . . . Although we have stated that a district court is not required to hold an evidentiary hearing where the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous, no such circumstances are present here." (internal citations omitted)); see also United States v. Bejacmar, 217 Fed.Appx. 919, 921 (11th Cir. Feb. 15, 2007) ("[I]f the petitioner's allegations are affirmatively contradicted by the record, or the claims are patently frivolous, a district court is not required to hold an evidentiary hearing."); see Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) ("A petitioner is not entitled to an evidentiary hearing . . . when his claims are merely conclusory allegations unsupported by specifics or contentions that in the face of the record are wholly incredible." (internal quotation marks omitted)), cert. denied sub nom. Tejada v. Singletary, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); cf. Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir.) ("Because the 1999 affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion."), cert. denied, 543 U.S. 891, 125 S.Ct. 167, 160 L.Ed.2d 154 (2004).

IV. Certificate of Appealability. In consideration of the foregoing, the Magistrate Judge recommends that the Court deny Britt's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2).

Because all the non-ineffective-assistance-of-counsel claims are procedurally barred,33 Britt is not entitled to a certificate of appealability on those claims. Where, as in the case of the non-ineffective-assistance-of-counsel claims presented here, a habeas petition is being denied on procedural grounds without reaching the merits of the underlying constitutional claims, "a COA should issue [only] when the prisoner shows ... that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("Under the controlling standard, a petitioner must `sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'"). Inasmuch as unexcused procedurally defaulted claims are barred from a § 2255 proceeding, see Lynn, 365 F.3d at 1234, a reasonable jurist could not conclude either that this Court is in error in dismissing those claims in the instant petition or that Britt should be allowed to proceed further on these claims. See Slack, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.").

Britt, similarly, is not entitled to a certificate of appealability on his ineffective-assistance-of-counsel claims. Where, as is the case for Britt's ineffective-assistance-of-counsel claims here, a habeas petition is being denied entirely on the merits of an underlying constitutional claim, a COA should issue only when Britt demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong[,]" Slack, 529 U.S. at 484; see also id. at 483-84 ("To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'"). With respect to Britt's ineffective-assistance-of-counsel claims, the undersigned recommends that the Court find that reasonable jurists could not debate whether his § 2255 motion to vacate should be resolved in a different manner or that any of the remaining issues presented are adequate to deserve encouragement to proceed further. Accordingly, petitioner is not entitled to a certificate of appealability as to these claims.

Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge is of the opinion that petitioner's rights were not violated in this cause and that his request to vacate, set aside or correct his sentence (Doc. 186), should be DENIED. Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.