                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                     FILED
                                                              U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                 No. 07-10331
                                                                   September 7, 2007
                             Non-Argument Calendar               THOMAS K. KAHN
                           ________________________                  CLERK

                                 D. C. Docket Nos.
                                04-00109-CV-JTC-3
                                 01-00006-CR-7-J

DONALD BROOKS,

                                                                Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                                (September 7, 2007)

Before DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Donald Brooks, a federal prisoner serving a life sentence for conspiracy to

possess with intent to distribute at least five kilograms of cocaine and at least fifty
grams of cocaine base, appeals the district court’s order denying his 28 U.S.C. §

2255 motion to vacate, set aside, or correct his sentence, in which he asserted,

among other things, that he had received ineffective assistance of counsel, based on

his trial attorney’s failure to fully apprise him of the risks associated with rejecting

the government’s plea offer and proceeding to trial. According to Brooks, these

risks, of which he was not informed, included that, upon conviction, he would

receive a life sentence as a recidivist offender, under 21 U.S.C. § 841, and that if

sentenced to life, he would not be eligible for parole. On appeal, Brooks argues the

district court erred by rejecting his claims, because he satisfied his burden under

the two-part test of Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

      A district court’s legal conclusions in a 28 U.S.C. § 2255 proceeding are

reviewed de novo, and its factual findings are reviewed for clear error. Lynn v.

United States, 365 F.3d 1225, 1232 (11th Cir. 2004).            Whether a defendant

ultimately has received ineffective assistance of counsel is a mixed question of fact

and law reviewed de novo. Mincey v. Head, 206 F.3d 1106, 1142 (11th Cir. 2000).

      After thorough review of the record and careful consideration of the parties’

arguments, we affirm.

      The relevant facts are straightforward. After Brooks pled not guilty to the

charged cocaine conspiracy, a jury ultimately returned a guilty verdict. He was



                                           2
sentenced, as a recidivist, to a life term, pursuant to 21 U.S.C. § 841. At the

sentencing hearing, the district court inquired as to Brooks’s trial counsel’s

position regarding the “statutory mandatory minimum sentence,” and counsel

responded:

      Judge, I thought I had a good argument. There is a distinction
      between prior felonies when you look at career guideline definition,
      but I did some more research between the time Mr. Elder submitted
      the report to you and today, and there is an [Eleventh] Circuit case
      that refers to 21 United States Code Section 802 subsection I think it’s
      40 that has a broader definition of prior felony. In light of the [United
      States v. Hansley, 54 F.2d 709 (11th Cir. 1995)] case out of the
      [Eleventh] Circuit, I think that the sentence would be life at this point.

      In his memorandum of law filed in support of his § 2255 motion, Brooks

claimed that he received ineffective assistance of trial counsel because, although he

understood that a conviction might result in a life sentence based on the Sentencing

Guidelines, counsel never advised him, in connection with his decision to plead not

guilty and proceed to a jury trial, that, if convicted, he would be sentenced, as a

recidivist, to a “guaranteed” life term, under the mandatory minimum provisions of

21 U.S.C. § 841(a). Brooks also argued that counsel was ineffective for failing to

tell him that if convicted, he would be ineligible for parole. Brooks asserted that as

a result of his trial attorney’s ineffectiveness, he was unable to make an informed

decision on whether to accept the government’s plea offer of a 20-year sentence,

which he “probably” would have accepted had he been adequately informed.

                                          3
       Without holding an evidentiary hearing, the district court denied Brooks’s

ineffective-assistance-of-counsel claims regarding his counsel’s alleged failure to

adequately advise him of the consequences of a conviction in connection with his

“not guilty” plea.1 With respect to Brooks’s claim “that he was not made aware of

the possibility he would serve a life sentence if he was convicted,” the court

concluded that Brooks did not lack a full understanding of the risks of going to trial

and, consequently, was able to make an intelligent choice of whether to accept a

plea or proceed to trial, because he had admitted that he was aware that he could

receive a life sentence under the Sentencing Guidelines, if convicted.

       As for Brooks’s claim that counsel failed to advise him that a federal

sentence did not include the possibility of parole, the district court determined that

Brooks could not show that his trial counsel’s performance was constitutionally

deficient, because counsel’s failure to inform Brooks about parole possibilities was

objectively reasonable, particularly when compared to cases in which courts have

found deficient performance based on erroneous advice concerning parole.                          In

reaching this conclusion, the district court explained its reasoning as follows:



       1
             The district court referred to a magistrate judge consideration of Brooks’s claim that
counsel was ineffective by allegedly preventing him from testifying. After an evidentiary hearing
on that claim, the magistrate judge recommended denial of the claim. In its final order, the district
court adopted the magistrate judge’s recommendation. The disposition of that claim is not at issue
in this appeal.

                                                 4
      Brooks contends that he was never made aware that a federal sentence
      came without the possibility of parole: “I believed that if I was
      convicted and received a life sentence, I would be eligible for parole
      in seven years.” Tellingly, Brooks does not assert that his counsel
      told him he would be eligible for parole in seven years, or even that he
      communicated this belief to the attorney and relied on his silence.
      There is considerable authority for the proposition that erroneous
      advice regarding parole may constitute deficient performance.
      McAdoo v. Elo, 365 F.3d 487, 499 (6th Cir. 2004). These courts
      distinguish, however, between giving bad advice and giving nothing
      at all. See id. (“Affirmative misstatements about parole possibilities
      are more objectively unreasonable than failure to inform the defendant
      about the parole possibilities.”); accord James v. Cain, 56 F.3d 662,
      667 (5th Cir. 1995). Indeed, the practical significance of the
      distinction was noted by the Third Circuit when it determined that,
      while “a defendant does not have a constitutional right to be provided
      parole eligibility information prior to entering a plea, . . . any
      information that is provided by defense counsel must be accurate.”
      Meyers v. Gillis, 142 F.3f 664, 667 n.2 (3rd Cir. 1998) (citations
      omitted).

Thus, the district court concluded that affirmative misstatements about parole

possibilities were more objectively unreasonable than what occurred here -- a

failure to inform about those possibilities.

      The district court granted Brooks a certificate of appealability (“COA”) on

the following issue: “whether Petitioner was denied the right to effective assistance

of counsel by his attorney’s ‘fail[ure] to inform [Petitioner] about the consequences

that would result from a conviction at trial.’” 2 This appeal followed.


      2
          In issuing the COA, the district court stated:

                 When the Court determined that counsel’s failure to inform Petitioner

                                                   5
      “The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel.” Yarbrough v. Gentry, 540 U.S. 1, 5 (2003). The legal

standard governing ineffective-assistance-of-counsel claims is set forth in

Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court

established a two-prong test for adjudicating such claims. See also Hill v.

Lockhart, 474 U.S. 52, 58 (1985)(holding that “the two-part Strickland v.

Washington test applies to challenges to guilty pleas based on ineffective

assistance of counsel”). First, a movant must show that counsel’s performance

was deficient.   Strickland, 466 U.S. at 687.            The proper measure of attorney

performance is “reasonableness under prevailing professional norms.” Id. at 688.

Counsel is “strongly presumed” to have rendered adequate assistance and to have

exercised reasonable professional judgment. Id. at 690. Counsel’s performance is

deficient if counsel made errors so egregious that he was not functioning as the

counsel guaranteed under the Sixth Amendment. Id. at 687. Second, a movant

must show that the deficient performance prejudiced the defense. Id. Where an



            of the non-possibility of parole did not constitute ineffective
            assistance of counsel, it relied upon cases from the Third, Fifth, and
            Sixth Circuits because the Eleventh Circuit has not addressed the
            question. Although the Court believes that [counsel’s] failure, if true,
            to inform Petitioner that the sentence resulting from a federal
            conviction comes without the possibility of parole does not constitute
            ineffective assistance of counsel, the Eleventh Circuit should be
            given an opportunity to consider the question.

                                               6
ineffective-assistance-of-counsel claim relates to the entry of a guilty plea, a

movant “must show that there is a reasonable probability that, but for counsel’s

errors, he would . . . have pleaded guilty and would [not] have insisted on going to

trial.” Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (quotation omitted)

(citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).               “It is not enough for the

defendant to show that the errors had some conceivable effect on the outcome of

the proceeding.” Strickland, 466 U.S. at 693.

       On appeal, Brooks argues that his trial counsel was ineffective for

misadvising him as to his maximum sentencing exposure under the Sentencing

Guidelines, rather than the life term he faced as a recidivist, under 21 U.S.C. § 841,

and failing to tell him that he would not have the possibility of parole in connection

with any sentence imposed.3 Brooks asserts that had his trial counsel informed him

that he faced a life sentence without the possibility of parole if convicted at trial, he

“probably” would have accepted the government’s plea offer. Brooks maintains

that because of trial counsel’s misapprehension of the law, trial counsel’s advice

was unreasonably deficient and influenced his decision to accept the government’s

plea offer.


       3
           As an initial matter, we disagree with the government’s suggestion that the COA does
not encompass both of these arguments. Construing the issue specified in the COA, in light of the
pleadings and other parts of the record, we will address Brooks’s “miscalculation” claim, as it
reasonably comes with the context of his parole claim and the COA issued for that claim.

                                               7
      With respect to Brooks’s claim that he was misadvised concerning the

sentence he faced and that this somehow affected his decision to plead not guilty

and proceed to trial, we are unpersuaded. Brooks alleged, based on comments

made by his attorney at sentencing, that counsel mistakenly did not think that

Brooks faced a mandatory life sentence under 21 U.S.C. § 841, but rather that

Brooks faced a Guidelines sentence of something less than life imprisonment. At

no point, however, has Brooks ever so much as alleged that his trial counsel

relayed this information to him, in connection with the plea negotiations, which

had occurred well before Brooks’s sentencing hearing.          Indeed, in his § 2255

filings, Brooks acknowledged the he was aware he faced a life sentence if

convicted at trial.   On this record, because Brooks never alleged that counsel

relayed any “miscalculation” with him during plea negotiations, Brooks failed to

allege a sufficient ineffective-assistance-of-counsel claim.

      As for Brooks’s claim concerning his attorney’s failure to tell him that he

would not be eligible for parole, in Holmes v. United States, 876 F.2d 1545, 1552

(11th Cir. 1989), we considered a similar issue, although we “le[ft] open the issue

of what circumstances may exist under which erroneous advice as to eligibility for

parole may be deemed constitutionally ineffective assistance of counsel.”         In

Holmes, we recognized, however, a “distinction between failure to inform and



                                           8
giving misinformation” and noted that the failure to inform is less likely to

constitute ineffective assistance of counsel. Id. n.8 (citing Strader v. Garrison, 611

F.2d 61, 64-65 (4th Cir. 1979)(holding that misinformation of parole consequences

is ineffective assistance of counsel)).

      Moreover, in United States v. Campbell, 778 F.2d 764 (11th Cir. 1985), we

found that an attorney did not render ineffective assistance by failing to inform a

defendant of “collateral consequences,” which we also have held include parole

eligibility, as opposed to “direct consequences,” resulting from of a guilty plea.

See 778 F.2d at 768 (failure to inform defendant of collateral consequences is not

ineffective assistance); Holmes, 876 F.2d at 1549 (“parole eligibility is a collateral

rather than a direct consequence of a guilty plea”); see also United States v. Morse,

36 F.3d 1070, 1072 (11th Cir. 1994) (holding that a district court’s failure to

inform a defendant of potential parole implications does not violate the

requirement that a plea be voluntary and an intelligent choice among the alternative

courses of action (citing Holmes, 876 F.2d at 1548)).

      From our review of the record, it is clear that Brooks’s allegations concern a

failure to inform, and not misinformation, and accordingly the district court did not

err by rejecting Brooks’s ineffective-assistance-of-counsel claim. This conclusion

is further supported by the fact that Brooks has acknowledged that he was aware



                                          9
that he could receive a sentence of life imprisonment if he proceeded to trial and

was convicted, and so he was aware of his maximum possible sentence. Moreover,

since we held that parole eligibility is only a collateral consequence of a guilty

plea, and that counsel is not ineffective for failing to advise on collateral

consequences, trial counsel’s failure to inform Brooks regarding parole did not

constitute objectively unreasonable performance.

      Finally, we note that even if Brooks satisfied his burden on the first prong of

Strickland, he would not be able to satisfy the prejudice prong of the two-part test.

The record reflects that throughout the entire case, Brooks had not expressed any

desire or intent to plead guilty. In his declaration, Brooks asserted that he was

wrongly accused and the testimony of his codefendants that implicated him in

unsuccessful attempts to purchase cocaine and marijuana was false. He also said

that had he been allowed to testify at trial, he would have explained that he was not

aware of any drug deals and did not know most of his codefendants. Even in this

Court, he says only that he “probably” would have pled guilty. On this record,

which includes Brooks’s adamant and consistent assertions of innocence and his

skepticism regarding the government’s plea offer, we cannot conclude that but for




                                         10
either of the instances of alleged ineffective, Brooks would have pled guilty, or that

even if he did, the district court would have accepted the plea.4

       In sum, the district court did not clearly err in its factual findings, nor did it

commit legal error, in its analysis and denial of Brooks’s § 2255 motion.

       AFFIRMED.




       4
         We also reject Brook’s argument that he was entitled to an evidentiary hearing on his §
2255 motion. He failed to satisfy his burden to “allege[ ] facts that, if true, would entitle him to
relief.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (citation omitted).

                                                 11
