                Case: 13-10107    Date Filed: 09/23/2014   Page: 1 of 19


                                                                           [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 13-10107
                            ________________________

                     D.C. Docket Nos. 8:12-cv-00548-EAK-TBM,
                            8:09-cr-00571-EAK-TBM-3



WILSON DANIEL WINTHROP-REDIN,

                           Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                           Respondent - Appellee.

                            ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                 (September 23, 2014)

Before HULL, MARCUS and BLACK, Circuit Judges.

MARCUS, Circuit Judge:

         For his role as a boat crew member in an international drug-smuggling

operation, Wilson Daniel Winthrop-Redin pled guilty to a federal charge of
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conspiracy to possess five kilograms or more of cocaine with the intent to

distribute and was sentenced to 168 months in prison. Two years after entering his

plea, Winthrop-Redin sought postconviction relief under 28 U.S.C. § 2255,

claiming that his plea was coerced by death threats from the boat’s captain and that

his counsel provided ineffective assistance by instructing him not to report the

threats to the district court. We affirm the district court’s rejection of the claims

without an evidentiary hearing. Because Winthrop-Redin put forward only

implausible and conclusory allegations, “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief” without a hearing.

28 U.S.C. § 2255(b); see Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir.

2002).

                                           I.

      A plea agreement signed by Winthrop-Redin contained the following

essential facts. Winthrop-Redin, a Panamanian national, and other codefendants

agreed to participate in a maritime drug-smuggling scheme and received advance

payment of several thousand dollars. In November 2009, Winthrop-Redin and his

codefendants left Panama aboard the St. Vincent-registered Motor Vessel (M/V)

Olympiakos bound for Barranquilla, Colombia. In Colombia, the M/V

Olympiakos received a load of coal, a “cover load” of legitimate cargo to conceal

the smuggling mission. Shortly before the M/V Olympiakos left port, three armed



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individuals boarded the boat to protect the drug shipment. On December 1, 2009,

the M/V Olympiakos met a go-fast boat off the Colombian coast. Ninety bales of

cocaine were moved from the go-fast boat to the M/V Olympiakos. The crew of

the M/V Olympiakos, including Winthrop-Redin, concealed the cocaine in a

hidden compartment. On December 2, 2009, the United States Coast Guard

approached, boarded, and inspected the Olympiakos in international waters. The

Coast Guard discovered the hidden compartment and seized the ninety bales of

cocaine, which weighed over 2,000 kilograms. With the consent of the

government of St. Vincent, Winthrop-Redin and his codefendants were brought to

the United States, with their first point of entry in the Middle District of Florida.

Winthrop-Redin and seven others 1 were indicted on two counts: (1) conspiring to

possess with the intent to distribute and to distribute five kilograms or more of

cocaine while on board a vessel subject to the jurisdiction of the United States, 21

U.S.C. § 960(b)(1)(B)(ii); 46 U.S.C. §§ 70503(a), 70506(a)-(b), as well as (2)

possessing with intent to distribute five kilograms or more of cocaine on board a

vessel subject to the jurisdiction of the United States, 21 U.S.C. § 960(b)(1)(B)(ii);

46 U.S.C. §§ 70503(a), 70506(a).




1
 Joffre Alouso Plaza-Arevalo, Javier Enrique Castillo-Romero, Luis Nunez Reyes-Serrano,
Clemente Bautista-Silva, Gustavo Adolfo de Poll-Noriega, Paulo Andres Molina-Roja, and Jorge
Anres Molina-Molina.


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      Each of the codefendants pled guilty. Winthrop-Redin entered into a written

plea agreement that provided he would plead guilty to conspiracy, the first count of

the indictment, in exchange for the dismissal of the second count, possession.

Winthrop-Redin initialed each page of the agreement and signed its last page. In

the plea agreement, Winthrop-Redin expressly waived his right to appeal his

sentence, except on the grounds that the sentence violated the Eighth Amendment

or exceeded the statutory maximum penalty or the applicable Guidelines range

determined by the district court. Section B.8 of the agreement, “Voluntariness,”

provided that Winthrop-Redin “acknowledges that [he] is entering into this

agreement and is pleading guilty freely and voluntarily . . . without threats, force,

intimidation, or coercion of any kind.” Petitioner also voluntarily agreed to

cooperate fully with the United States in all relevant matters.

      Before the plea was accepted, a magistrate judge questioned Winthrop-

Redin under oath and at length at a hearing to ensure he pled knowingly and

voluntarily. Among other things, the plea colloquy included the following

exchange:

      THE COURT: Mr. Winthrop, has anybody promised you anything
      other than what is set out in your plea agreement to get you to plead?

      MR. WINTHROP-REDIN: No.

      THE COURT: Has anybody promised you a particular sentence?

      MR. WINTHROP-REDIN: No.

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      THE COURT: Has anybody threatened you or a member of your
      family in any way to get you to plead?

      MR. WINTHROP-REDIN: No.

      THE COURT: Do you feel like anybody is forcing you into this
      decision?

      MR. WINTHROP-REDIN: No.

      THE COURT: You’ve been represented here by Mr. Gottfried. Do
      you have any complaints about anything your lawyer has done?

      MR. WINTHROP-REDIN: None.

      The magistrate judge concluded that Winthrop-Redin and his codefendants

were coherent and understood the allegations and potential punishment, and that a

factual basis existed to support the allegations. The court specifically found that

none of defendants had been threatened, forced, or coerced into pleading guilty:

“From everything that appears to me today, gentlemen, your pleas are being

entered freely and voluntarily with an understanding of the consequences and I will

so find and recommend the matter proceed to sentencing.” Thereafter, the district

court accepted the plea and sentenced Winthrop-Redin to 168 months

imprisonment to be followed by 60 months of supervised release. That sentence

reflected a two-level firearms enhancement related to the possession of firearms by

co-conspirators, but Winthrop-Redin received a two-level “safety valve” reduction

pursuant to Sentencing Guidelines § 5C1.2 as a less-culpable defendant who



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agreed to provide information about the offense to law enforcement. See United

States v. Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000).

       Winthrop-Redin filed a direct appeal from the final judgment, arguing that

the district court erred by denying him a minor role reduction and by imposing the

firearms possession enhancement. This Court, however, dismissed the appeal due

to the appeal waiver.

       In March 2012, more than two years after signing the plea agreement and

entering his guilty plea, Winthrop-Redin filed a pro se motion to vacate his

sentence pursuant to 28 U.S.C. § 2255. Inter alia, he argued that his plea was

involuntarily entered because he and his family received death threats, and that he

received ineffective assistance of counsel when deciding to plead guilty. 2 In an

affidavit accompanying the motion, Winthrop-Redin said that he had been hired by

Alexis Hernandez-Soto, “the captain / chief master” of M/V Olympiakos, for a trip

from Panama to Colombia. The United States concedes that Hernandez-Soto was

an informant for the Drug Enforcement Administration. According to Winthrop-

Redin, after a dispute, Hernandez-Soto ordered the assassination of a Colombian

crew member. When Winthrop-Redin confronted him, Hernandez-Soto said that

he and his cohorts would kill Winthrop-Redin and his family if he told the

2
 Winthrop-Redin also argued that his appeal waiver was entered involuntarily, and that the
government breached the plea agreement by recommending a firearm-possession sentencing
enhancement but not recommending he receive a downward departure for substantial assistance.
The certificate of appealability we issued in this case does not include these claims.


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authorities or the crew member’s family about the murder of the Colombian.

Subsequently, Winthrop-Redin said, he was forced to stay in the vessel under death

threats. Winthrop-Redin also claimed that Hernandez-Soto and two other crew

members working as informants for the United States government “coerc[ed] me to

plead guilty under death threats.” Notably, however, he did not offer where, when,

or why he was coerced to plead guilty. All he said was that he “did not have a

choice other than to comply with [Hernandez-Soto’s] orders.” Winthrop-Redin

admitted, as he had to, that he swore under oath at the sentencing hearing that his

guilty plea was entered knowingly and voluntarily and that he had not been

coerced or threatened to do so. He claimed, nevertheless, at the highest order of

abstraction, that he pled out of fear. And he claimed that, but for the threats

against him and his family, he would have proceeded to trial.

      Winthrop-Redin further claimed that he received ineffective assistance of

counsel. He alleged that his attorney advised him not to say anything to the district

court or anyone else about Hernandez-Soto having killed the Colombian crew

member because doing so would complicate the case. Winthrop-Redin also

claimed that, despite his request, his attorney did not contact the Panamanian

Consulate to get legal help and did not contact the Colombian Consulate to notify

them of the crew member’s killing.




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      In response, the United States told the district court that the alleged threats

concerning the murder happened on the vessel before Winthrop-Redin was arrested

(and before he was charged with anything), and that Winthrop-Redin had not

alleged any threats regarding his decision to enter a guilty plea or proceed to trial.

Winthrop-Redin replied that “Hernandez-Soto made direct threats to his family and

movant while movant was detained ready to proceed to trial.” Again notably,

Winthrop-Redin did not offer when the threats had been made and did not explain

where, how, or why. Winthrop-Redin claimed only that his family told him “that

Hernandez-Soto and other cohorts of him were calling them with death threats if

movant proceeded to trial or testified in court about the assassination of the crew

member.”

      The district court refused relief because it found that the record showed

Winthrop-Redin knowingly and voluntarily entered his guilty plea. The district

court noted that Winthrop-Redin’s claim that he was directly threatened while he

“was detained ready to proceed to trial” was factually impossible: Hernandez-Soto

was never charged in the case and thus never detained, and therefore could not

have directly threatened Winthrop-Redin to force him to plead guilty. The court

also found claims about threats to Winthrop-Redin’s family members to be without

merit because Hernandez-Soto told the United States about the death on the vessel

and had no reason to silence Winthrop-Redin. The district court did not conduct an



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evidentiary hearing on this or any of Winthrop-Redin’s other § 2255 claims, which

it also rejected. The court declined to issue a certificate of appealability.

      Winthrop-Redin filed a timely notice of appeal, and we granted a certificate

of appealability on one issue: “Whether Winthrop-Redin is entitled to an

evidentiary hearing on his claim that his guilty plea was not knowing or voluntary

due to threats that he received and ineffective assistance of plea counsel.”

                                           II.

      We review the district court’s denial of an evidentiary hearing in a § 2255

proceeding for abuse of discretion. Aron, 291 F.3d at 714 n.5. “A district court

abuses its discretion if it applies an incorrect legal standard, applies the law in an

unreasonable or incorrect manner, follows improper procedures in making a

determination, or makes findings of fact that are clearly erroneous.” Citizens for

Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216-17 (11th

Cir. 2009) (per curiam). We liberally construe pro se filings, including pro se

applications for relief pursuant to § 2255. Aron, 291 F.3d at 715; Mederos v.

United States, 218 F.3d 1252, 1254 (11th Cir. 2000).

      Section 2255 permits a federal prisoner to bring a collateral challenge by

moving the sentencing court to vacate, set aside, or correct the sentence. 28 U.S.C.

§ 2255(a). Once a petitioner files a § 2255 motion, “[u]nless the motion and the

files and records of the case conclusively show that the prisoner is entitled to no



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relief, the court shall . . . grant a prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true,

would entitle him to relief.” Aron, 291 F.3d at 715 (quoting Holmes v. United

States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A] petitioner need only allege --

not prove -- reasonably specific, non-conclusory facts that, if true, would entitle

him to relief.” Id. at 715 n.6. However, a district court need not hold a hearing if

the allegations are “patently frivolous,” “based upon unsupported generalizations,”

or “affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553 (quoting

Guerra v. United States, 588 F.2d 519, 520-21 (5th Cir. 1979) 3); see, e.g., Lynn v.

United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . . 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.”).

        “A guilty plea, if induced by promises or threats which deprive it of the

character of a voluntary act, is void. A conviction based upon such a plea is open

to collateral attack.” Machibroda v. United States, 368 U.S. 487, 493 (1962). At

the same time, plea bargaining retains its benefits of certainty and efficiency “only


3
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.


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if dispositions by guilty plea are accorded a great measure of finality.” Blackledge

v. Allison, 431 U.S. 63, 71 (1977); see id. (“To allow indiscriminate hearings in

federal postconviction proceedings . . . for federal prisoners under 28 U.S.C. §

2255 . . . would eliminate the chief virtues of the plea system -- speed, economy,

and finality.”). While § 2255 exists “to safeguard a person’s freedom from

detention in violation of constitutional guarantees,” the Court observed that

“[m]ore often than not a prisoner has everything to gain and nothing to lose from

filing a collateral attack upon his guilty plea.” Id. at 71-72. As a result, “the

representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing,

as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings.” Id. at 73-74; see id.

at 80 n.19 (explaining that if the record reflects the procedures of plea negotiation

and includes a verbatim transcript of the plea colloquy, a petitioner challenging his

plea will be entitled to an evidentiary hearing “only in the most extraordinary

circumstances”). “The subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in

the face of the record are wholly incredible.” Id. at 74.

      The district court did not abuse its considerable discretion in declining to

hold a § 2255(b) evidentiary hearing because Winthrop-Redin’s involuntary plea

claim is based only on conclusory and incredible allegations. We say so for a



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number of reasons. For starters, the record contains powerful evidence from

Winthrop-Redin himself indicating that his guilty plea was knowing and voluntary.

Winthrop-Redin initialed and signed the plea agreement, which specified that he

had decided to plead knowingly and voluntarily, without threats, force,

intimidation, or coercion. Winthrop-Redin then testified under oath and in detail

that his plea had not been induced by threats or force leveled against him or his

family. See Fed. R. Crim. P. 11(b)(2) (“Before accepting a plea of guilty . . . , the

court must address the defendant personally in open court and determine that the

plea is voluntary and did not result from force [or] threats . . . .”). Such “[s]olemn

declarations in open court carry a strong presumption of verity.” Blackledge, 431

U.S. at 74; accord United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th

Cir. 1987) (“While Rule 11 is not insurmountable, there is a strong presumption

that the statements made during the colloquy are true.”). Indeed, because

Winthrop-Redin made statements under oath at a plea colloquy, “he bears a heavy

burden to show his statements were false.” United States v. Rogers, 848 F.2d 166,

168 (11th Cir. 1988) (per curiam).

      In the second place, Winthrop-Redin waited more than two years after he

pled guilty, and only after all other avenues for relief from his sentence were

exhausted, to say anything to the district court about alleged threats. Then, to

counter his “directly inconsistent former testimony,” Winthrop-Redin “tendered



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only his own affidavit.” Bryan v. United States, 492 F.2d 775, 779-80 (5th Cir.

1974) (en banc). The former Fifth Circuit noted in dicta that “the allegations of [a

§ 2255] petitioner accompanied by his own affidavit are insufficient to mandate an

evidentiary hearing in the face of a Rule 11 record detailing statements by the

petitioner that his plea was not induced by any threats or coercion.” Matthews v.

United States, 533 F.2d 900, 902 (5th Cir. 1976). While this clear-cut principle

does not bind our decision because, in prior precedent, the Fifth Circuit explained

that under § 2255(b) “[n]o per se rule can be applied, for in the final analysis, the

issue becomes one of fact,” it does inform our analysis. Bryan, 492 F.2d at 778;

see United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (per

curiam) (“Under the prior precedent rule, we are bound to follow a prior binding

precedent ‘unless and until it is overruled by this court en banc or by the Supreme

Court.’” (quoting United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003))).

The fact that Winthrop-Redin presented only his own affidavit bears on whether

the record conclusively shows he is entitled to no relief. See Bryan, 492 F.2d at

780 (warning against a system where “the number of hearings which a wilful

affiant could provoke as to a single conviction would be limitless, for each time he

could swear that someone at the last preceding hearing suborned false testimony

from him”). In addition, we observe that Winthrop-Redin nowhere alleged what

evidence he intended to adduce at an evidentiary hearing. The district court is



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entitled to discredit a defendant’s newly-minted story about being threatened when

that story is supported only by the defendant’s conclusory statements.

      Moreover, Winthrop-Redin did not put forward “specific and detailed

factual assertions” that, if true, would entitle him to relief. Id. at 779. Winthrop-

Redin’s affidavit states that Hernandez-Soto ordered the killing of a crew member

and threatened Winthrop-Redin not to say anything about the murder. But

Winthrop-Redin was charged with, and pled guilty to, conspiracy to possess

cocaine with the intent to distribute, not murder. Winthrop-Redin’s allegations in

no way connect the threats concerning disclosure of the killing with the decision to

plead guilty, which occurred substantially later in time. As a result, even if it were

true that Hernandez-Soto told Winthrop-Redin to say nothing about the murder,

that fact would not establish that the guilty plea on the drug conspiracy charge was

involuntary. If anything, pleading guilty, which required Winthrop-Redin to tell

the government and the district court about the smuggling operation and all related

matters, created far more risk of divulging details about the alleged murder than

proceeding to trial. After all, in the plea agreement Winthrop-Redin “agree[d] to

cooperate fully with the United States,” to testify “fully and truthfully” in any

federal court proceeding connected with “the charges in this case and other

matters,” and to make “a full and complete disclosure of all relevant information.”

Winthrop-Redin does not explain how Hernandez-Soto’s alleged command not to



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divulge the murder coerced him into entering a plea agreement that involved

cooperating with the government and disclosing all relevant facts.

      Besides the threats tied to the crew member killing, Winthrop-Redin puts

forward no specific facts in support of his conclusory claim that he “was

intimidated and coerced into pleading guilty by codefendants in my case who

threatened to kill me and my family members.” Notably, he does not offer how

Hernandez-Soto conveyed threats urging him to plead guilty, when, where, or how

often they were made, or even why Hernandez-Soto wanted him to plead. He

argues nevertheless that his allegations are sufficiently specific for a hearing

because they include “(1) the naming, or description, of persons involved; (2) an

account of the relevant acts or conduct of such persons; (3) an account of the time

and place where such acts or conduct took place; and (4) a statement of how such

acts or conduct prejudiced the petitioner.” Diamond v. United States, 432 F.2d 35,

40 (9th Cir. 1970). But Winthrop-Redin flunks his own test. He offers no account

of the time, place, or acts involved in the threats he says pressured him into a guilty

plea. Alone, the conclusory assertion that he pled guilty because of death threats

from Hernandez-Soto is not enough to warrant a § 2255 hearing in the face of this

full record, including Winthrop-Redin’s prior testimony that he pled guilty




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knowingly and voluntarily. 4 The district court was not required to allow a fishing-

expedition based only on Winthrop-Redin’s incredible allegations. See

Machibroda, 368 U.S. at 495 (“The language of [§ 2255(b)] does not strip the

district courts of all discretion to exercise their common sense.”).

       Winthrop-Redin also alleges in his affidavit that he told his attorney that he

wanted to tell the district court about the threats from Hernandez-Soto, but that

“counsel misadvised [him] not to say anything about it to the judge, the prosecutor,

or anyone else and that is was better to keep it that way or things would get much

more complicated in the case.” On appeal, Winthrop-Redin argues that he is

entitled to an evidentiary hearing on his claim that counsel was ineffective for

advising him not to tell the district court about the threats and for allowing him to

plead guilty under duress.

       “During plea negotiations defendants are ‘entitled to the effective assistance

of counsel.’” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (quoting McMann v.

Richardson, 397 U.S. 759, 771 (1970)). To establish ineffective assistance, a

defendant must show deficient performance and prejudice. Strickland v.

4
  In an unverified Reply filed in support of his motion, Winthrop-Redin claimed that his family
told him “that Hernandez-Soto and other cohorts of him were calling them with death threats if
movant proceeded to trial or testified in court about the assassination of the crew member.”
Winthrop-Redin does not argue on appeal that statements in the Reply entitle him to a hearing.
And the Reply still fails to allege specific facts. It does not describe which “other cohorts”
conveyed the threats, how many times they did so, when the threats were made, which family
members received them, what the threatening parties actually said, or why Hernandez-Soto and
“other cohorts” wanted him to plead guilty.


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Washington, 466 U.S. 668, 687 (1984). On the first prong, “counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.” Id. at 690. To establish

prejudice, a defendant must show “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Where, as here, the petitioner

challenges his guilty plea based on his counsel’s alleged deficient performance, he

can show prejudice only if “there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Winthrop-Redin is not entitled to a § 2255(b) evidentiary hearing because he

does not specifically allege that he told his attorney he had been threatened with

death unless he pled guilty. Instead, as he explained in his district court

Memorandum of Law, Winthrop-Redin claimed that he told his attorney “the

details of how Hernandez-Soto ha[d] killed the Colombian crew member in the

vessel and that he had threatened to kill movant and his family if he did not keep

his mouth shot [sic].” Even if this allegation were true, Winthrop-Redin would not

be entitled to relief. We cannot say that counsel would have exceeded the bounds

of reasonable professional judgment by advising a client not to tell the judge about



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a separate incident unconnected to the client’s decision to plead guilty. Moreover,

as the government points out, counsel’s alleged advice might even have protected

his client’s interests. If the district court considered murder of the crew member to

be reasonably foreseeable relevant conduct, the court could have increased

Winthrop-Redin’s sentencing level under the Guidelines. See U.S. Sentencing

Guidelines Manual §§ 2A1.1(a), 2D1.1(d)(1) (2009). Nor did Winthrop-Redin

allege prejudice sufficient to warrant a hearing because he did not claim in his

§ 2255 motion or his supporting affidavit that his decision to plead guilty was

affected by his attorney’s advice not to tell the judge about threats related to the

crew member’s murder. 5

       Finally, Winthrop-Redin claims that his counsel was deficient for failing to

contact the Consulates of Panama and Colombia to inform them of the crew

member’s murder and to obtain legal assistance. But Winthrop-Redin does not say

what help, if any, the Consulates could have provided. He certainly does not allege

that the failure to contact them had any effect on his decision to plead guilty.




5
  In his district court Reply, Winthrop-Redin first stated that “[h]ad counsel rendered an
undivided and loyal defense to movant, movant would have testified in camera about the
assassination case, he would have proceeded to trial and he would have never pleaded guilty
. . . .” Again, Winthrop-Redin does not argue on appeal that statements made for the first time in
the Reply entitle him to a hearing. And even if Winthrop-Redin had properly presented it to the
district court, the conclusory allegation would not warrant a hearing. Winthrop-Redin still
alleges no specific facts connecting his attorney’s advice about the death of the crew member
with the decision to plead guilty.


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Without specific allegations supporting his Strickland claim, Winthrop-Redin is

not entitled to a § 2255(b) evidentiary hearing.

      AFFIRMED.




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