                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________            FILED
                                               U.S. COURT OF APPEALS
                            No. 11-10311         ELEVENTH CIRCUIT
                        Non-Argument Calendar        JULY 10, 2012
                      ________________________        JOHN LEY
                                                        CLERK
       D.C. Docket Nos. 1:09-cv-23777-MGC ; 1:04-cr-20487-MGC-3



ANTHONY COLLINS,



                                                    Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                    Respondent-Appellee.

                     ________________________

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

                            (July 10, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:
      Anthony Collins, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion to vacate, set aside, or correct his sentence, pursuant

to 28 U.S.C. § 2255. In his motion, Collins asserted numerous claims of

ineffective assistance of counsel, including that his trial counsel was ineffective

for failing to (1) convey to the district court his mid-trial desire to plead guilty to

two of the three counts in the indictment, which would have entitled him to a

two-level guideline reduction for acceptance of responsibility; (2) move the

district court to dismiss the superseding indictment based upon a violation of the

Speedy Trial Act and the government’s bad faith in obtaining the superseding

indictment; and (3) investigate his mental health and raise an insanity defense at

trial. On appeal, Collins challenges the district court’s rejection of each of these

claims on the merits, and additionally contends that the district court erred in

denying his first claim for relief without holding an evidentiary hearing because a

factual dispute existed as to whether he conveyed his desire to plead guilty to trial

counsel.

      We review claims of ineffective assistance of counsel de novo. Chandler v.

United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc). We may affirm on

any ground supported by the record, even if not relied upon by the district court.

                                            2
Trotter v. Sec’y, Dep’t of Corr., 535 F.3d 1286, 1291 (11th Cir. 2008).

      The Sixth Amendment right to counsel guarantees the right to the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.

2052, 2063-64, 80 L.Ed.2d 674 (1984). In order to succeed on a claim of

ineffective assistance of counsel, a movant must show both that (1) counsel’s

performance fell below an objective standard of reasonableness, and (2) a

reasonable probability exists that the result of the proceeding would have been

different but for counsel’s deficiency. Chandler, 218 F.3d at 1312-13.

      Counsel’s performance is measured under prevailing professional norms,

and the burden falls on the movant to prove that counsel’s performance was

unreasonable. Id. at 1313. We presume that counsel’s performance was

reasonable, and a movant only rebuts this presumption by demonstrating that no

competent counsel would have engaged in the course of conduct that counsel took.

Id. at 1314-15. With respect to the prejudice prong, a reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S.Ct. at 2068. We do not have to address counsel’s performance

if the movant cannot demonstrate sufficient prejudice. Strickland, 466 U.S. at

697, 104 S.Ct. at 2069.




                                         3
                                   I. Guilty Plea

      When calculating the applicable range under the Sentencing Guidelines, a

defendant may receive a two-level reduction in his offense level if he clearly

demonstrates acceptance of responsibility for his offense, although such a

reduction is not a matter of right for a defendant who pleads guilty. U.S.S.G.

§ 3E1.1(a) (2005); United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 2006).

The defendant carries the burden of clearly demonstrating his acceptance of

responsibility, and must present more than just a guilty plea. Wade, 458 F.3d at

1279. A guilty plea prior to trial, in combination with the truthful admission of the

offense conduct, is significant evidence of acceptance of responsibility. Id. In

considering whether a defendant qualifies for a reduction for accepting

responsibility, the district court may consider the timeliness of the defendant’s

manifestation of acceptance of responsibility. U.S.S.G. § 3E1.1, comment.

(n.1(h), n.6) (2005).

      Section 3E1.1 is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements

of guilt, is convicted, and then later admits guilt and expresses remorse. U.S.S.G.

§ 3E1.1, comment. (n.2) (2005). A conviction at trial, however, does not

automatically preclude an offense level reduction for acceptance of responsibility.

                                          4
Id. In rare situations, such as where a defendant goes to trial to assert issues

unrelated to his factual guilt, a defendant may clearly demonstrate an acceptance

of responsibility for his offense although he went to trial. Id. In such an instance,

however, the determination will be based primarily upon the defendant’s pre-trial

statements and conduct. Id.

      Collins did not show that he was prejudiced by counsel’s alleged failure to

inform the district court of his mid-trial desire to plead guilty. Collins maintained

that he formulated his desire to plead guilty after the trial began, and only did so

because he saw the weight of the government’s evidence against him.

Accordingly, Collins did not demonstrate a reasonable probability that he would

have received a two-level reduction for accepting responsibility absent trial

counsel’s allegedly deficient performance.

                              II. Evidentiary Hearing

      We review a district court’s denial of an evidentiary hearing for an abuse of

discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). An

evidentiary hearing is required unless the motion, files, and records of the case

conclusively show that the movant is not entitled to any relief. Id. at 714. If the

movant alleges facts that, if true, would entitle him to relief, then the district court

should order an evidentiary hearing. Id. at 714-15.

                                            5
      Because Collins’s motion, if taken as true, and the record conclusively

established that he did not suffer any prejudice by trial counsel’s alleged failure to

inform the district court of his desire to plead guilty, the district court did not

abuse its discretion by denying this ineffective-assistance-of-counsel claim

without an evidentiary hearing.

               III. Speedy Trial Act and Governmental Bad Faith

      Under the Speedy Trial Act, an indictment must be filed within 30 days

from the date of an individual’s arrest. 18 U.S.C. § 3161(b) (2004). A

superseding indictment that issues more than 30 days after the arrest, but before

the original indictment is dismissed, does not violate § 3161(b). United States v.

Mosquera, 95 F.3d 1012, 1013 (11th Cir. 1996).

      The Speedy Trial Act also requires that the trial of a defendant commence

within 70 days from the later of the filing date of the indictment, or the date the

defendant appeared before a judicial officer of the appropriate court. 18 U.S.C.

§ 3161(c)(1) (2004). A jury trial commences, for purposes of the Speedy Trial

Act, when the district court begins voir dire. United States v. Gonzalez, 671 F.2d

441, 443 (11th Cir. 1982). The filing of a superseding indictment does not reset

the Speedy Trial Act clock for charges that were included in the original

indictment. United States v. Young, 528 F.3d 1294, 1295-97 (11th Cir. 2008).

                                            6
      Certain periods of time, however, are excluded from the calculation of the

70-day period. See 18 U.S.C. § 3161(h) (2004). Any delay resulting from a

pretrial motion is excluded, and this period runs “from the filing of the motion

through the conclusion of the hearing on, or other prompt disposition of, such

motion.” Id. § 3161(h)(1)(F) (2004). With respect to a motion for which a

hearing is required, the entire period from the filing of the motion to the hearing

on that motion is excluded without reference to whether that time period was

unreasonable. United States v. Davenport, 935 F.2d 1223, 1228 (11th Cir. 1991).

If, after the hearing, the court has all of the materials necessary to rule on the

motion, it has the motion under advisement immediately following the hearing.

Id. From that date, any delay reasonably attributable to the period during which

the motion is under advisement by the district court, which cannot exceed 30 days,

is excludable. 18 U.S.C. § 3161(h)(1)(J) (2004); Davenport, 935 F.2d at 1228. A

delay resulting from a codefendant’s motion is excludable as to each codefendant.

United States v. Twitty, 107 F.3d 1482, 1488 (11th Cir. 1997).

      Likewise, any period of delay that results from a continuance granted by the

district court is excludable if the district court grants the continuance on the basis

of a finding that “the ends of justice served by taking such action outweigh the

best interest of the public and the defendant in a speedy trial.” 18 U.S.C.

                                           7
§ 3161(h)(8) (2004). This time period, however, is only excludable if the district

court sets forth in the record, whether orally or in writing, its reasons for finding

that the ends of justice served by granting the continuance outweigh the best

interests of the public and the defendant in a speedy trial. Id.

       Unsubstantiated and conclusory allegations are insufficient to establish

constitutional violations that will support granting a motion to vacate. United

States v. Jones, 614 F.2d 80, 81-82 (5th Cir. 1980).1

       The district court erred by concluding that the filing of the superseding

indictment reset the Speedy Trial Act clock. Nonetheless, Collins did not

establish that trial counsel’s failure to move to dismiss the superseding indictment

based upon an alleged violation of the Speedy Trial Act was deficient or

prejudicial. When one computes the days excludable due to Green’s motions, the

period the district court considered those motions, and the district court’s

continuance, fewer than seventy days elapsed.

       Moreover, counsel adopted a codefendant’s motion to dismiss the

superseding indictment based upon the government’s bad faith, and the district


       1
                In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), this
Court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981.



                                                8
court ultimately denied that motion on the merits. Collins’s attorney, therefore,

did not render deficient performance in this regard. In any event, Collins’s

unsubstantiated and conclusory statements that the government obtained the

superseding indictment in bad faith were insufficient to support a showing of

prejudice.

                               IV. Insanity Defense

      It is an affirmative defense that, at the time of the offense, the defendant was

unable to appreciate the nature and quality or the wrongfulness of his acts as a

result of a severe mental disease or defect. 18 U.S.C. § 17(a). A mental disease or

defect alone is not a defense. Id. The defendant bears the burden of proving an

insanity defense by clear and convincing evidence. Id. § 17(b).

      Collins did not show that he was prejudiced by trial counsel’s alleged

failure to investigate his mental health and raise an insanity defense. Neither the

information contained in the presentence investigation report concerning his

psychological history, nor the evidence of his offense conduct, tended to establish

that he was insane at the time of his offenses, and Collins’s bare and

unsubstantiated assertions that a reasonable probability existed that a jury would

have found him insane had trial counsel conducted an investigation were

insufficient to support his motion to vacate.

                                          9
      After careful review of the record and the parties’ briefs, we affirm the

district court’s denial of Collins’s motion to vacate.

      AFFIRMED.




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