                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                         FILED
                                                              U.S. COURT OF APPEALS
                            No. 08-14517                        ELEVENTH CIRCUIT
                        Non-Argument Calendar                     MAY 30, 2013
                      ________________________                      JOHN LEY
                                                                     CLERK
                 D. C. Docket Nos. 05-23260-CV-ASG,
                          96-00443-CR-ASG

ELADIO ALBERTO MUNOZ,



                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     _________________________

                             (May 30, 2013)

Before BARKETT, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
       Eladio Alberto Munoz, a federal prisoner convicted of six felony counts,

including conspiracy to commit Hobbs Act robbery, appeals the denial of his

motion to vacate his conviction, filed pursuant to 28 U.S.C. § 2255. The district

court granted a certificate of appealability (“COA”) as to his claim of ineffective

assistance of counsel, and Munoz now argues that his trial counsel was ineffective

by failing to: (1) file a motion to sever his trial from other codefendants, because

he was prejudiced by evidence relating to crimes for which he was not charged; (2)

advise him of his right to testify at trial; (3) discuss the benefits of pleading guilty;

(4) convey any plea offers made by the government; and (5) file objections to the

computation of his criminal history category for including misdemeanor

convictions for which he was not represented by an attorney. 1 We conclude that

trial counsel did not render ineffective assistance and affirm the ruling of the

district court.

       Whether counsel is ineffective is a mixed question of law and fact that we

review de novo. United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002).
       1
         The district court also granted a COA as to Munoz’s claim that his sentence was
imposed in violation of Booker v. Washington, 524 U.S. 296 (2004). However, this Court has
held that “Booker’s constitutional rule falls squarely under the category of new rules of criminal
procedure that do not apply retroactively to § 2255 cases on collateral review.” Varela v. United
States, 400 F.3d 864, 868 (11th Cir. 2005). Thus, this claim is not properly before us and we do
not consider it.
        To the extent that Munoz raises a claim of prosecutorial misconduct, no COA was
granted as to that claim and we therefore do not consider it.
        We previously ordered a limited remand to the district court to consider Munoz’s Rule
60(b) motions, Munoz v. United States, 451 Fed. App’x 818 (11th Cir. 2011), which were
subsequently considered and denied. Munoz v. United States, No. 05-cv-23260 (S.D. Fla. Feb.
19, 2013).
                                                2
To establish ineffective assistance of counsel, a defendant must show that: (1) his

counsel’s performance was deficient; and (2) the deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

      As mentioned, Munoz points to five perceived failures of his trial counsel

which he maintains constituted ineffective assistance. He first contends that his

counsel’s failure to move to sever his trial from that of his codefendants was

ineffective, but his conclusory claim of prejudice from joinder is insufficient to

satisfy either prong under Strickland. Joinder of Munoz’s case with that of his

coconspirators was appropriate under Federal Rule of Criminal Procedure 8(b),

and, even now, Munoz does not articulate any risk of “actual compelling

prejudice,” which is required to sever the trials of properly joined defendants under

Rule 14. Thus, counsel’s failure to move for severance in the absence of any

colorable claim of prejudice was not deficient, nor, by logical extension, could it

have been prejudicial. See also, United States v. Diaz, 248 F.3d 1065, 1101 (11th

Cir. 2001) (rejecting Munoz’s codefendant’s claim on direct appeal that he was

prejudiced as a result of denial of severance by the same “spillover effect” claimed

here by Munoz).

      As to Munoz’s claims that his counsel failed to advise him of his right to

testify at trial, discuss the benefits of pleading guilty, or convey any plea offers

made by the government, all three claims are belied by the record. Munoz stated to

                                           3
the trial court, on the record, that he had been advised of his right to testify and that

he choose not to. It is also clear from the record that no plea offer was ever

extended to Munoz and there is no indication that Munoz desired to plead guilty;

indeed, before the magistrate judge he maintained that under no circumstances

would he ever have pled guilty. When the failures alleged are directly contradicted

by the record evidence, Munoz simply cannot maintain that his counsel rendered

deficient performance.

      Finally, Munoz’s claim that his counsel was ineffective for failing to object

to the inclusion of certain prior offenses in the presentence investigation report is

without merit because counsel did in fact attempt to make such an objection. After

initially instructing his counsel to make no objections, at the last moment Munoz

alleged to counsel that he had been unrepresented in the proceedings leading to two

state court convictions included in the report. Counsel’s subsequent objections

were denied as untimely, with the district court expressly recognizing that the

untimeliness was the result of Munoz’s actions, not counsel’s. Munoz’s

conclusory assertions to the contrary will not now sustain a claim of deficient

performance.

      AFFIRMED.




                                            4
